Gillihan v. State

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED FEBRUARY, 1998 SESSION March 24, 1998

Cecil W. Crowson Appellate Court Clerk

JAMES GILLIHAN a/k/a ) No. 01C01-9706-CC-00235 DAVID GILLIHAN ) ) Appellant, ) ) Franklin County vs. ) ) Honorable Henry Denmark Bell, Judge

STATE OF TENNESSEE, ) ) (Post-conviction) Appellee. )

FOR THE APPELLANT: FOR THE APPELLEE:

EUGENE HONEA JOHN KNOX WALKUP Assistant Public Defender Attorney General & Reporter 407-C Main St., P.O. Box 68 Franklin, TN 37243-0068 DARYL J. BRAND Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493

OPINION FILED: ____________________

AFFIRMED PURSUANT TO RULE 20

CURWOOD WITT JUDGE OPINION

The petitioner, James Gillihan, appeals pursuant to Rule 3 of the Tennessee

Rules of Criminal Procedure from the trial court’s dismissal of his petition for post-

conviction relief. In this appeal, the petitioner contends that the trial court erred in

dismissing his petition. We disagree and affirm the action of the trial court.

In 1980, a jury convicted the petitioner of armed robbery and

possession of stolen property and sentenced him to serve 50 years on the first

conviction and three to five years on the second. This court affirmed his conviction

for armed robbery but reversed the conviction on the second count. State v. Foust,

625 S.W.2d 287, 290 (Tenn. Crim. App. 1981). 1 The Tennessee Supreme Court

denied his petition to appeal on December 14, 1981. On March 7, 1997, the

petitioner filed a petition for post-conviction relief in the Franklin County Circuit

Court. The trial court dismissed the petition without a hearing on April 1, 1997

because the petition was barred by the statute of limitations. The public defender’s

office filed a timely notice of appeal. 2

The assistant public defender has filed an Anders brief stating that

after a conscientious review of the record and law, he has found nothing in the

record that might arguably support an appeal.3 We agree. Pursuant to the law

applicable to Gillihan’s petition, his right to file for post-conviction relief expired on

July 1, 1989. Tenn. Code Ann. § 40-3-102 (1990) (repealed May 10, 1995).

Nothing in the record indicates that one of the exceptions in section 40-30-202(b)

would apply in this case, and the petitioner has no earlier petition that could be

reopened according to subsection (c). Tenn. Code Ann. § 40-30-202(b),(c) (1997).

1 Gillihan, Terry Foust and Terry Lee were convicted in a joint trial, and they filed a joint appeal. 2 Apparently, the trial court appointed the public defender’s office to represent the petitioner in this appeal. 3 See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967).

2 On this record there is no room for doubt that the trial court was

justified in finding that Gillihan’s petition was barred by the statute of limitations.

Therefore, based upon a thorough reading of the record, the briefs of the parties,

and the law governing the issue presented for review, the judgment of the trial court

is affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeals.

__________________________ CURWOOD W ITT, Judge

______________________________ GARY R. WADE, Judge

______________________________ WILLIAM M. BARKER, Judge