Glen Marshall Cheek v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: June 22, 1999
• Docket: 03C01-9809-CR-00335
• Status: Published

Opinion

FILED IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE June 22, 1999 AT KNOXVILLE Cecil Crowson, Jr. Appellate C ourt MAY 1999 SESSION Clerk

GLEN MARSHALL CHEEK ) ) Appellant, ) C.C.A. No. 03C01-9809-CR-00335 ) vs. ) Hamilton County ) STATE OF TENNESSEE, ) Hon. Douglas A. Meyer, Judge ) Appellee. ) (Post-Conviction)

FOR THE APPELLANT: FOR THE APPELLEE:

ARDENA J. GARTH PAUL G. SUMMERS District Public Defender Attorney General & Reporter

DONNA ROBINSON MILLER MARVIN S. BLAIR, JR. Assistant Public Defender Assistant Attorney General 701 Cherry Street, Suite 300 425 Fifth Ave. N., 2d Floor Chattanooga, TN 37402 Nashville, TN 37243-0493

WILLIAM H. COX III District Attorney General 600 Market Street, Suite 310 Chattanooga, TN 37402

OPINION FILED:________________

AFFIRMED-RULE 20

JAMES CURWOOD WITT, JR., JUDGE

OPINION The petitioner, Glen Marshall Cheek, appeals from the Hamilton

County Criminal Court’s order dismissing his petition for post-conviction relief. The

petitioner was convicted of aggravated sexual battery on November 5, 1993. On

March 25, 1997, he filed a pro se petition for post-conviction relief alleging that his

conviction was based on an indictment which did not state the culpable mental

state. The trial court denied relief because it found the indictment was sufficient

pursuant to State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997). Upon review, we find

no error of law requiring reversal and affirm the judgment of the trial court pursuant

to Court of Criminal Appeals Rule 20.

The state contends that the petition is barred by the statute of

limitations. Under the Post-Conviction Procedure Act of 1995, petitions filed after

May 10, 1995, must be filed within one (1) year from the date of the final action of

the highest state appellate court to which an appeal is taken or, if there is no

appeal, within one (1) year of the date that the judgment became final. See Tenn.

Code Ann. § 40-30-202(a) (1997). However, the act gave petitioners, whose three

year statute of limitations under the previous act had not already expired, one year

from the effective date of the act, May 10, 1995, in which to file a petition for post-

conviction relief. See Tenn. Code Ann. § 40-30-201, Compiler’s Notes (1997). A

petition filed beyond the one year statute of limitations can only be considered if

certain statutory exceptions apply. See Tenn. Code Ann. § 40-30-202(b) (1)-(3)

(1997).

The petitioner failed to file his petition for post-conviction relief within

the applicable limitations period. The petitioner does not contend that any of the

statutory exceptions apply to his claim. Instead, the petitioner contends that the

statute of limitations should not bar his petition because application of the statute

of limitations would not afford him a reasonable opportunity to have his claim

2 reviewed. See Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992). The petitioner

has stated no reasons why due process requires the statute of limitations not be

applied to his case. We find the petition is barred by the statute of limitations.

Accordingly, the judgment of the trial court dismissing the petition is

affirmed pursuant to Court of Criminal Appeals Rule 20.

________________________________ JAMES CURWOOD WITT, JR., JUDGE

CONCUR:

_______________________________ JOHN EVERETT WILLIAMS, JUDGE

_______________________________ ALAN E. GLENN, JUDGE