State v. Larry Baxter

• Court: Court of Criminal Appeals of Tennessee
• Decided: March 11, 1998
• Docket: 02C01-9707-CC-00233
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON MARCH 1998 SESSION

FILED LARRY WAYNE BAXTER, ) ) March 11, 1998 Petitioner, ) C. C. A. NO. 02C01-9707-CC-00233 ) Cecil Crowson, Jr. vs. ) HARDIN COUNTY Appellate C ourt Clerk ) STATE OF TENNESSEE, ) Nos. 7571-73 ) Respondent. )

ORDER

This case represents an appeal from the dismissal of the petitioner’s

petitions for post-conviction relief. On April 2, 1975, the petitioner pled guilty to third

degree burglary, on March 24, 1977, the petitioner again pled guilty to third degree

burglary, and on June 25, 1992, the petitioner pled guilty to aggravated assault. No

appeal was taken from these convictions. On May 29, 1997, the petitioner filed

petitions for post-conviction relief attacking each of these three convictions. The

petitioner claimed that he was not fully advised of his rights against self incrimination or

that these convictions could be used to enhance subsequent convictions. Finding that

the statute of limitations had expired, the trial court dismissed the petitions without a

hearing.

Pursuant to T.C.A. § 40-30-202(a)1, 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). The petitions in this case were filed well beyond the applicable statute of

1 The petitions in this case were filed on May 29, 1997, and are therefore governed by the provision s of the 1 995 Po st-Con viction Pro cedure Act. See Comp iler’s Notes, T.C.A. § 40-30-201 (1997). limitations, and are, therefore, untimely. 2 Accordingly, the post-conviction court properly

dismissed the petition without an evidentiary hearing. T.C.A. § 40-30-206(b).

Moreover, our Supreme Court recently recognized that the 1995 Post-Conviction

Procedure Act did not create a one year window in which previously barred claims could

be raised. See Carter v. State, 952 S.W.2d 417 (Tenn. 1997).

For the reasons stated above, we conclude that the trial court did not err

in dismissing the petitioner’s petition for post-conviction relief. Accordingly, it is hereby

ORDERED that 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 March, 1998.

________________________________ JOE B. JONES, PRESIDING JUDGE

________________________________ GARY R. WADE, JUDGE

________________________________ JERRY L. SMITH, JUDGE

2 The petitions relating to the 1975 and 1977 convictions would also be barred under the previous three year statute of lim itations. See T.C.A . § 40-30 -102 (19 90) (rep ealed); Passa rella v. State , 891 S.W .2d 619, 6 24 (Te nn. Crim . App.), perm. to app. denied, (Tenn. 1994). The petitioner’s argument that the previo us statu te shou ld not app ly becaus e he nev er soug ht an app eal is withou t merit. See W arren v. State , 833 S.W .2d 101, 1 02 (Te nn. Crim . App.), perm. to app. denied, (Te nn. 1 992 ). Bec aus e the old three year s tatute of lim itation s had not e xpire d on t he ef fectiv e dat e of th e new act, th e pet itione r had until May 10, 1 996, in wh ich to file his pe tition attackin g the 199 2 convic tion. See Com piler’s Note s, T.C.A . § 40-30-2 10 (199 7); Mane y v. State, 03C 01-9 612 -CR -004 70 (T enn . Crim . App ., Oc t. 10, 1 997 ). Th is petition, however, was filed well beyond that date. Moreover, this Court has held that the application of the three year and one year statute of limitations does not violate the petitioner’s constitutional right to due proces s. See Phillips v. State , 890 S.W .2d 37, 38 (Tenn . Crim. A pp.), perm. to app. denied, (Tenn. 1994); Holston v. State , No. 02C01-9609-C R-00298 (Te nn. Crim. App., July 28, 1997).