King v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: May 19, 1998
• Docket: 03C01-9705-CC-00179
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED FEBRUARY 1998 SESSION May 19, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk

TERRY LYNN KING, ) ) No. 03C01-9705-CC-00179 Appe llant, ) ) Graing er Cou nty vs. ) ) Honorable Rex Henry Ogle, Judge STATE OF TENNESSEE, ) ) (Post-Conviction) Appellee. )

FOR THE APPELLANT: FOR THE APPELLEE:

EDWARD C. MILLER JOHN KNOX WALKUP Public Defender Attorney General & Reporter P. O. Box 416 Dandridge, TN 37725 MARVIN E. CLEMENTS, JR. Assistant Attorney General Cordell Hull Bldg., Second Floor 425 Fifth Avenu e, North Nashville, TN 37243-0493

ALFRED C. SCHMUTZER, JR. District Attorney General

RICHARD VANCE Assistant District Attorney 339 A. M ain St. Newport, TN 37821

OPINION FILED:____________________

AFFIRMED PURSU ANT TO RU LE 20

WILLIAM B. ACREE, JR. SPECIAL JUDGE OPINION

The petition er, Te rry Lynn King, a ppea ls as of r ight the trial cou rt’s dismiss al of his pe tition for post-c onviction re lief.

The p etitioner en tered a p lea of guilty to firs t degree murde r and to aggravated kidnapping o n May 3, 198 4. He received a sentence of life and five years imprisonment. The petitioner filed a petition for post-conviction relief on Octo ber 11 , 1988 . He wa s den ied relie f, and th e den ial was affirme d by this Court on December 11, 1990. See King v. Sta te, (1990 Tenn.Crim.App. LEXUS 817, filed D ecem ber 11, 1 990, at K noxville).

This petition was filed on March 14, 1996. The trial court dismissed the petition with out an e videntiary h earing.

We find that the petition is ba rred by the statute of lim itations.

Prior to Ju ly 1, 1986 , there wa s not a sta tute of limitatio ns for po st- conviction relief. That year, the legislature enacted T.C.A. §40-30-102, which provided for a three year statute. Thereafter, this Court held that all persons who had been convicted of crimes prior to July 1, 1986, had three years from that date within which to file a petition for post-conviction relief. See Abston v. State, 749 S.W.2d 487, 488 (Tenn.Crim.App. 1988). Because the petitioner’s conviction predate d the effec tive date of th e Act, the petitioner h ad until Ju ly 1, 1989 , to file. He timely filed a petition, and it was denied.

In 1995 , the legislatu re reduc ed the sta tutory perio d for filing pos t- conviction petitions to one year. T.C.A. §40-30-202 (a). This Act became effective on May 10, 1995. The petitioner contends that under the new Act, he had o ne yea r within w hich to file ano ther pe tition. Th is cont ention is not w ell taken. The new act does not revive claims that which were barred by the previous statute of lim itations. Carter v. S tate, 952 S.W.2d 417, 420 (Tenn. 1997). F urtherm ore, the p etitioner do es not alle ge facts w hich wo uld allow h im to file under T.C.A . §40-30-202 (b).1

1 (b) No court shall have jurisdiction to consider a petition filed after such time unless: (1) The claim in the petition is based upon a final ruling of an appellate court establishing a constitutional right that was not recognized as existing at the time of trial, if retrospective application of that right is required. Such petition must be filed within one (1) year of the ruling of the highest state appellate court or the United States supreme court establishing a constitutional right that was not recognized as existing at The judgment of the trial court is affirmed in accordance with Rule 20 Tennessee Court of Criminal Appeals.

___________________________________ WILLIAM B. ACREE, JR., SPECIAL JUDGE

CONCUR:

___________________________________ JERRY L. SMITH, JUDGE

____________________________________ THOMAS T. WOODALL, JUDGE

the time of trial; (2) The claim in the petition is based upon new scientific evidence establishing that such petitioner is actually innocent of the offense or offenses for which the petitioner was convicted; or (3) The claim asserted in the petition seeks relief from a sentence that was enhanced because of a previous conviction and such conviction in the case in which the claim is asserted was not a guilty plea with an agreed sentence, and the previous conviction has subsequently been held to be invalid, in which case the petition must be filed within one (1) year of the finality of the ruling holding the previous conviction to be invalid.