State v. Lee Hamrick

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 02C01-9609-CR-00294
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

AUGUST SESSION, 1997 FILED February 6, 1998 LEE C. HAMRICK, ) C.C.A. NO. 02C01-9609-CR-00294 ) Cecil Crowson, Jr. Appe llant, ) Appellate C ourt Clerk

) ) SHELBY COUNTY VS. ) ) HON . BERN IE WEIN MAN STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Co nviction Re lief)

FOR THE APPELLANT: FOR THE APPELLEE:

LEE C. HAMRICK JOHN KNOX WALKUP Pro Se Attorney General and Reporter 3735 Rivers ide Drive Knoxville, TN 37914 CLINTON J. MORGAN Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493

WILLIAM L. GIBBONS District Attorney General

P. T. HOOVER Assistant District Attorney 201 Poplar Street, Ste. 301 Memphis, TN 38103

OPINION FILED ________________________

AFFIRMED PURSU ANT TO RU LE 20

JERRY L. SMITH, JUDGE OPINION

On April 18, 1994, in the Shelby County Criminal Court, Appellant, Lee C.

Hemrick, entered multiple guilty pleas to theft charges. He received an effective

sentence of fifteen years. Appe llant filed no dire ct app eal. In th is app eal,

Appellant presents the following issue for revie w: whe ther the trial cou rt erred in

dismiss ing App ellant's pe tition for post-c onviction re lief.

After a review of the record, we affirm the judgment of the trial court

pursuant to Court of Criminal Appeals Rule 20.

On May 31, 1996, A ppellant filed his petition fo r post-co nviction relief. On

June 18, 1996, the trial court dismissed Appellant's petition without conducting

an evidentiary hearing, finding that it was barred by the statute of limitations.

Appellant filed a notice of appe al to this Court on July 29 , 1996, m ore than thirty

days from the judgm ent of the tria l court.

Initially, we note that Appellant's appeal should be dismissed because it

was untime ly filed on July 2 9, 1996 . T ENN. R. A PP. P. 4(a). In addition, the

judgm ent of the tria l court is corre ct.

Prior to the adoption of the rece nt Post-C onviction P rocedu re Act, petitions

like the pres ent one had to be filed within thre e years o f the date of the final

action of the highest state appellate court to which an appeal was taken. Tenn.

Code Ann. § 40-30-102 (1995, Repl.). Accordingly, the three-year statute of

limitatio ns would have e xpired on April 18, 19 97. How ever, the n ew Po st-

-2- Conviction Procedu re Act, which took e ffect on May 1 0, 199 5, sub sequ ently

reduced the three -year statu te of limitation s to one yea r. Tenn . Code Ann. § 40-

30-201 et seq. (Supp. 1996). Appellant's three-year filing period had not expired

at the time the new act took e ffect.

This Court held in Kenn eth Cu lp v. State that "the new Post-Conviction

Procedu re Act gove rns this pe tition and a ll petitions filed a fter May 1 0, 1995 ."

C.C.A. No. 02 C01 -9608 -CC- 0026 8, Lau derda le Cou nty (Te nn. C rim. App.,

Jackson, July 24, 1997). This act provides in part: "Notwithstanding any other

provisio n of this part to the contrary, any person having ground for relief

recognized under this part shall have at least one (1) year from May 10 , 1995, to

file a petition or a motion to reopen a petition unde r this part." Compiler's Notes

to Tenn. Code Ann. § 40-30-201 (Supp. 1996) (referring to Acts 1995, ch. 207,

§ 3). Because the previous three-yea r statute of limitations had not expired for

Appellant at the time the new Act took effect, his righ t to petition for p ost-

conviction relief survived under th e new A ct.

Therefore, Appellant had one year from the effective date of the new Act,

May 10, 199 5, to file for pos t-conviction relief. See C ulp, C.C.A. No. 02C01-

9608-CC-0268, slip op. He filed his petition for post-conviction relief on May 31,

1996, shortly after the expiration of the one-year statute of limitations.

According ly, we conclud e that the trial court prop erly dism issed Appe llant's

petition as barred by the statute of limitations and affirm the judgment pursuant

to Court of Criminal Appeals Rule 20.

____________________________________ JERRY L. SMITH, JUDGE

-3- CONCUR:

___________________________________ DAVID G. HAYES, JUDGE

___________________________________ THO MAS T. W OOD ALL,

-4-