James C. Leveye v. State of Tennessee

• Court: Court of Criminal Appeals of Tennessee
• Decided: July 23, 1997
• Docket: 01C01-9606-CC-00258
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED MAY SESSION, 1997 July 23, 1997

Cecil W. Crowson JAMES C. LEVEYE, ) C.C.A. NO. 01C01-9606-CC-00258 Appellate Court Clerk ) Appellant, ) ) ) WILLIAMSON COUNTY VS. ) ) HON. DONALD P. HARRIS STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction Relief)

FOR THE APPELLANT: FOR THE APPELLEE:

E. COVINGTON JOHNSTON, JR. CHARLES W. BURSON 136 Fourth Avenue South Attorney General and Reporter Franklin, TN 37064 DARYL J. BRAND Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493

JOE D. BAUGH, JR. District Attorney General

DEREK K. SMITH Assistant District Attorney P. O. Box 937 Franklin, TN 37065-0937

OPINION FILED ________________________

AFFIRMED PURSUANT TO RULE 20

JERRY L. SMITH, JUDGE ORDER

Appellant James C. Leveye appeals the dismissal of his petition for post-

conviction relief, presenting the following issue: whether the trial court erred in

dismissing his petition as time-barred.

After a review of the record, we affirm the judgment of the trial court

pursuant to Court of Criminal Appeals Rule 20.

A W illiamson County Circuit Court jury found Appellant guilty of three

counts of vehicular burglary, two counts of petit larceny, one count of grand

larceny, one count of illegally possessing explosives, and of being a habitual

criminal. He received a life sentence plus eight years in the Tennessee

Department of Correction. On direct appeal, this Court set aside the habitual

criminal conviction and remanded for resentencing. The Tennessee Supreme

Court affirmed that judgment on September 24, 1990, constituting, for the

purpose of the post-conviction statute of limitations, the final action of the highest

state appellate court.

On December 11, 1995, Appellant filed this post-conviction petition,

alleging newly discovered evidence. The trial court dismissed the petition as

time-barred by the statute of limitations found at Tennessee Code Annotated

Section 40-30-202(a).

In this appeal, Appellant maintains that his petition is not time-barred,

arguing that Section 40-30-202(a), while shortening the statute of limitations for

-2- post-conviction cases from three years to one year, created a one year window

from its effective date to present post-conviction claims. Appellant claims

therefore that he had one year from May 10, 1995, the effective date of Section

40-30-202(a), to file his petition.

On numerous occasions, this Court has addressed the precise issue raised

by this appeal. In Carter v. State, 1996 WL 389243 (Tenn. Crim. App. July 11,

1996) (W elles, J., dissenting), perm. app. granted, (Tenn. Dec. 2, 1996), a

divided panel of this Court agreed with the position espoused by Appellant in this

appeal. However, in the overwhelming majority of cases decided since Carter,

this Court has taken the position that Tennessee Code Annotated Section 40-30-

202(a) does not operate to revive post-conviction claims already barred under the

previous limitation period. See, e.g., Brummitt v. State, 1997 WL 106679 (Tenn.

Crim. App. Mar. 11, 1997); Pendleton v. State, 1997 WL 59501 (Tenn. Crim. App.

Feb. 13, 1997); Blake v. State, 1997 W L 55939 (Tenn. Crim. App. Feb. 12,

1997); Carter v. State, 1997 W L 59422 (Tenn. Crim. App. Feb. 12, 1997);

Tillman v. State, 1997 W L 55853 (Tenn. Crim. App. Feb. 12, 1997); Kimery v.

State, 1997 WL 31143 (Tenn. Crim. App. Jan. 28, 1997); Koprowski v. State,

1997 W L 33638 (Tenn. Crim. App. Jan. 28, 1997); Butler v. State, 1996 WL

691506 (Tenn. Crim. App. Dec. 2, 1996); Butler v. Bell, 1996 W L 667907 (Tenn.

Crim. App. Nov, 19, 1996).

W e believe the better-reasoned decisions of this Court to be those which

hold that post-conviction claims which were time-barred under the previous post-

conviction statute of limitations remain time-barred even after the enactment of

Section 40-30-202(a). To hold otherwise would circumvent the clear legislative

-3- intent of the statute, that being to limit the number of post-conviction petitions and

to reduce the time within which such petitions must be filed.

Accordingly, we affirm the trial court’s judgment pursuant to Court of

Criminal Appeals Rule 20.

____________________________________ JERRY L. SMITH, JUDGE

CONCUR:

___________________________________ PAUL G. SUMMERS, JUDGE

___________________________________ DAVID G. HAYES, JUDGE

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