Edward Nesbitt v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: October 30, 1997
• Docket: 01C01-9611-CR-00491
• Status: Published

Opinion

FILED IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE October 30, 1997 SEPTEMBER 1997 SESSION Cecil W. Crowson Appellate Court Clerk EDWARD F. NESBITT, ) ) Appellant, ) C.C.A. No. 01C01-9611-CR-00491 ) vs. ) Davidson County ) STATE OF TENNESSEE, ) Honorable Ann Lacy Johns, Judge ) Appellee. ) (Post Conviction) )

FOR THE APPELLANT: FOR THE APPELLEE:

WILLIAM A. LANE JOHN KNOX WALKUP Attorney at Law Attorney General & Reporter 3236 Dilton Mankin Road Murfreesboro, TN 37127 DARYL J. BRAND Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493

VICTOR S. JOHNSON, III District Attorney General

ROGER MOORE Assistant District Attorney General 222 Second Ave. North, Ste. 500 Nashville, TN 37201-1649

OPINION FILED: ____________________

AFFIRMED - RULE 20

CURWOOD WITT JUDGE OPINION

The petitioner, Edward F. Nesbitt, appeals the Davidson County

Criminal Court's dismissal of his petition for post-conviction relief. The petitioner is

serving a ten-year sentence following his May 18, 1990 guilty plea to the crime of

aggravated robbery. In this post-conviction action, filed December 8, 1995, he

challenges his conviction is various constitutional respects. The lower court found

his claims barred by the one-year statute of limitations and dismissed his petition

without appointing counsel or conducting a hearing. The petitioner acknowledges

more than three years passed between the date of his conviction and the filing of

his petition,1 but he alleges the 1995 Post-Conviction Procedure Act provided him

with a one-year window to file a claim. Having reviewed the record, we affirm the

judgment of the lower court pursuant to Rule 20 of the rules of this court.

Our supreme court recently held that the Post-Conviction Procedure

Act of 1995 did not revive previously expired post-conviction claims. Arnold Carter

v. State, --- S.W.2d ---, No. 03-S-01-9612-CR-00117 (Tenn., Knoxville, Sept. 8,

1997). Moreover, the petitioner before us has presented no claim which would

entitle him to untimely relief. See Tenn. Code Ann. § 40-30-206(g) (Supp. 1996);

Burford v. State, 8445 S.W.2d 204 (Tenn. 1992). His claims are barred. The trial

court did not err in summarily dismissing his petition. Tenn. Code Ann. § 40-30-

206(b) (Supp. 1996). As a result, we find no error of law requiring reversal. The

lower court's judgment is affirmed pursuant to Rule 20, Court of Criminal Appeals

Rules.

1 Prior to the 1995 amendments to the Post-Conviction Procedure Act, a petitioner had three years to file his claim. Tenn. Code Ann. § 40-30-102 (1990) (repealed 1995).

2 _______________________________ CURWOOD WITT, JUDGE

CONCUR:

_______________________________ GARY R. WADE, JUDGE

_______________________________ THOMAS T. WOODALL, JUDGE