Myers v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 03C01-9612-CR-00457
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED AUGUST 1997 SESSION September 4, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk DAVID G. MYERS, * C.C.A. # 03C01-9612-CR-00457 * Appellant, * HAMBLEN COUNTY VS. * * Hon. James E. Beckner, Judge STATE OF TENNESSEE, * * (Post-Conviction) Appellee. * *

For Appellant: For Appellee:

David G. Myers, Pro Se Charles W. Burson 228811 NECC Attorney General & Reporter P.O. Box 5000 Mountain City, TN 37683 Marvin E. Clements, Jr. Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493

Victor Vaughn Assistant District Attorney General 510 Allison Street Morristown, TN 37814

OPINION FILED:

AFFIRMED

PER CURIAM OPINION

The petitioner, David G. Myers, filed a petition for post-conviction relief

on October 25, 1996. The trial court dismissed the petition as being barred by the

statute of limitations without appointing counsel or holding an evidentiary hearing.

The petitioner now appeals as of right the dismissal of his petition. We affirm.

Upon the petitioner's plea of guilt to rape, a final judgment of

conviction was entered on November 19, 1993. Effective May 10, 1995, an

amendment to the Post-Conviction Procedure Act reduced the time within which to

file a claim from three years to one year.1 This petition, alleging that the conviction

was void due to a defective indictment, was filed on October 25, 1996, and is thus

barred by the statute of limitations.

In Curtis Newbern, No. 02C01-9702-CR-00071 (Tenn. Crim. App., at

Jackson, July 1, 1997), appeal filed, July 24, 1997, a panel of this court found that a

defective indictment claim under the doctrine of State v. Roger Dale Hill, No. 01C01-

9508-CC-00267 (Tenn. Crim. App., at Nashville, June 20, 1996), appeal granted,

Jan. 6, 1997, was still subject to the statute of limitations. Newbern, slip op. at 2. In

1 199 5 T enn . Pub . Act 207 p rovide s in pa rt:

This act sh all take effect upon becom ing a law, the public welfa re requiring it and shall govern all petitions for po st- conviction relief filed after this date, and any motions which m ay be filed after this da te to reope n pe titions for pos t- conviction relief which were c oncluded prior to the effective date of this a ct. Notw iths tan ding any othe r 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 the effective date of this act to file a petition or a motion to reo pen und er this act.

Id. § 3 (em phasis add ed).

In this c ase , the statute of lim itations had not expired wh en the 19 95 P ost- Conviction Procedure Act became effective, so the petitioner had one year from M ay 10, 1995, to file his petition.

2 a more recent case, another panel of this court held that a petition challenging an

indictment for failure to allege the mens rea of an offense must still be filed with in

the statute of limitations set forth in Tenn. Code Ann. § 40-30-202(a). James

Edward Hayes v. State, No. 02C01-9704-CC-00169, slip op. at 2 (Tenn. Crim. App.,

at Jackson, July 23, 1997).

Accordingly, the judgment of the trial court is affirmed.

PER CURIAM