State v. Aubrey Brigance

• Court: Court of Criminal Appeals of Tennessee
• Decided: January 13, 1998
• Docket: 02C01-9709-CR-00342
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

AUBREY M. BRIGANCE, ) ) Petitioner, ) C. C. A. NO. 02C01-9709-CR-00342 ) vs.

STATE OF TENNESSEE, ) SHELBY COUNTY ) ) No. P-16907 FILED ) January 13, 1998 Respondent. ) Cecil Crowson, Jr. Appellate C ourt Clerk

ORDER

This matter is before the court upon the state's motion, pursuant to Rule

20, Rules of the Court of Criminal Appeals, to affirm the judgment of the trial court by

order rather than formal opinion. On December 4, 1978, the petitioner pled guilty to first

degree burglary and was sentenced to five years imprisonment. No appeal was taken.

On May 7, 1996, the petitioner filed a petition for post-conviction relief alleging an

involuntary guilty plea and ineffective assistance of counsel. Finding that the statute of

limitations had expired, the trial court dismissed the petition without a hearing.

Pursuant to T.C.A. § 40-30-202(a), a person in custody under a sentence

of a court of this state must petition for post-conviction relief within one year of the date

of the final action of the highest state appellate court to which an appeal is taken or, if

no appeal is taken, within one year of the date on which judgment became final. The

Post-Conviction Procedure Act provides several limited exceptions to the one-year

statute of limitations, however, none of them are applicable to the present case. See §

40-30-202(b).

Judgment in this case became final on December 4, 1978, and the

petitioner did not file his petition for post-conviction relief until May 7, 1996.

Accordingly, his petition is clearly barred by the statute of limitations. The petitioner,

citing State v. Carter, 952 S.W.2d 417 (Tenn. 1997) (holding that the 1995 Post-

Conviction Procedure Act did not revive claims barred by the previous statute of limitations), acknowledges this fact in his brief and states that the issue is raised on

appeal in order to preserve other rights and remedies which may be available to him in

the future.

We conclude, therefore, that the trial court did not err in dismissing the

petitioner’s petition for post-conviction relief. Accordingly, it is hereby ORDERED that

state's motion is granted and the judgment of the trial court is affirmed in accordance

with Rule 20, Rules of the Court of Criminal Appeals.

Enter, this the ___ day of January, 1998.

_________________________________ PAUL G. SUMMERS, JUDGE

_________________________________ JOE B. JONES, PRESIDING JUDGE

_________________________________ DAVID G. HAYES, JUDGE