Franko Fykes v. State

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED JULY SESSION, 1997 February 20, 1998

Cecil W. Crowson Franko D. Fykes, ) Appellate Court Clerk C.C.A. NO. 01C01-9611-CR-00490 ) Appe llant, ) ) ) DAVIDSON COUNTY VS. ) ) THOMAS H. SHRIVER. JUDGE STATE OF TENNESSEE, ) ) Appellee. ) (Post Conviction)

FOR THE APPELLANT: FOR THE APPELLEE:

Franko Donell Fykes,Pro Se John Knox Walkup TDOC No. 109999 Attorney General and Reporter Cold C reek C orrection al Facility P.O. Box 1000 Henning, TN 38041-1000 Lisa A. Naylor Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243

Victor S. Johnson District Attorney General

Nick Bailey Assistant District Attorney Washington Square, Ste 500 Nashville, TN 37201-1649

OPINION FILED ________________________

AFFIRMED PURSU ANT TO RU LE 20

JERRY L. SMITH, JUDGE OPINION In this appe al of the summary dismissal of his post-conviction petition

Appe llant, Frank o Don ell Fyke s, asks this Co urt to re view the va lidity of his

conviction entered upon his pleas of guilty on March 20, 1986. Appellant pled

guilty to aggravated rape and burglary of an automobile. As part of the plea

agreem ent App ellant rece ived sen tences totaling forty-fo ur years.

Without acknowledging his post-conviction petition was time-barred under

the three yea r statute of limitations in effe ct whe n his co nviction beca me fin al,

Appellant argues that the ena ctment on May 10, 1995, of the new one year

statute of limitations for post-conviction petitions creates a new one year period

in which he may file for post-conviction relief. Our State Supreme Court has only

recen tly resolved this issue adversely to A ppellant’s position. Carter v. S tate,

Monroe Co., No. 03-S-01-9612-CR-00117 (Tenn. S. Ct. September 8, 1997, at

Knoxville). Thus the petition for post-conviction relief was properly dismissed.

According ly, the judgm ent of the trial court is affirm ed in all resp ects

pursuant to Rule 20, Rules of the Court of Criminal Appeals. Costs of the appeal

will be taxed to the Ap pellant.

____________________________________ JERRY L. SMITH, JUDGE

CONCUR:

___________________________________ PAUL G. SUMMERS, JUDGE

-2- ___________________________________ DAVID G. HAYES, JUDGE

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