Maney v. State

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED JULY SESSION, 1997 October 10, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

THO MAS C . MANE Y, JR., ) C.C.A. NO. 03C01-9612-CR-00470 )

Appe llant, )

)

) BRADLEY COUNTY

VS. )

) HON. R. STEVE BEBB

STATE OF TENNESSEE, ) JUDGE )

Appellee. ) (Post-Conviction)

ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF BRADLEY COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

THO MAS C. MA NEY, J R., JOHN KNOX WALKUP Pro Se Attorney General and Reporter Register Number 216056 Route 1, Box 330 Tiptonville, TN 38079-9775 MARVIN E. CLEMENTS, JR.

Assistant Attorney General 425 5th Avenu e North

Nashville, TN 37243

JERRY N. ESTES

District Attorney General

RANDY G. ROGERS

Assistant District Attorney General 204 North Jackson

Athens, TN 37303

OPINION FILED ________________________ REVERSED AND REMANDED DAVID H. WELLES, JUDGE

OPINION

The Defe ndan t appe als the trial court’s dismiss al of his pe tition for post-

conviction relief. The single issue presented for our review is whether the trial court erred in its determ ination that the petition wa s barred by the statute of limitations. W e conclude tha t the petition is not time-ba rred. W e therefore reverse the judgment of the trial court and remand this case fo r further proceedings.

From this record, it appears that on February 12, 1993, the Defendant was convicted on his pleas of guilty to one count of felony possession of cocaine and one count of felony possession of marijuana. He received an effective sentence of eight years. There was no appeal from his convic tion or sen tences . The po st- conviction relief petition under consideration herein , appa rently th e Def enda nt’s first petition, was filed on M ay 9, 1996. The trial court dismissed the petition based on the statute of limitations. It is from the order of the trial court dismissing the petition that the Defendant appeals.

At the time the Defendant’s convictions became fin al, the statute of limitations applicable to post-conviction proceedings was three years. Tenn. Code Ann. § 40-30-102 (repealed 1995). It is clear that the petition in the case sub judice was filed after the expiration of the three-year statute of limitations.

The new Pos t-Conviction Proc edure Act is a pplica ble to this petition and all petitions filed after May 10, 199 5. See Tenn. Code Ann. § 40-30-201 et seq.

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(Supp. 1996). This Act repealed the three-year statute of limitations and enacted in its place a one-year statute of limitations. On th e effective d ate of this A ct, same being May 10, 1995, the repealed three-year statute of limitations had not yet run on th e petitione r’s right to file a pe tition for post-c onvic tion relief. The 1995 Act pro vides, in pertinent part, that “notwithstanding any other provision of this act to the contrary, any person having a ground for relief recognized under this act shall have at least one (1) year from th e effec tive date of this a ct to file a petition or a motion to reopen a petition under th is act.” 199 5 Ten n. Pub. A cts ch. 207, § 3.

Because it is clear that the three-year statute of limitations had not run on this Defendant at the time the legislature repealed that statute and re place d it with a one-year statute, we believe that the provisio n quo ted ab ove pr ovided this Defendant one year from the effective date of the Act, or until May 10, 1996, to file his petition for post-conviction relief. Therefore, the petition herein was tim ely filed on May 9, 19 96, and sho uld have been considered by the trial court on the merits.1

The judgmen t of the trial court dismissing this petition is reversed, and this case is remanded to the trial court for further proceedings.

1 W e note that in at least one prior case in this Court, the State conceded that the statute of limitations did not bar consideration of a petition filed under the same factual circumstances as the one in the case sub judice. See Betsy Ja ne Pen dergras t v. State, C.C.A. No. 01C01-9607-CC- 00289, Rutherford Co unty (Tenn. Crim. App., Nash ville, May 16, 1997).

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_________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

THOMAS T. WOODALL, JUDGE

___________________________________

JOHN K. BYERS, SENIOR JUDGE