State v. Monroe Davis

• Court: Court of Criminal Appeals of Tennessee
• Decided: August 19, 1997
• Docket: 02C01-9608-CR-00291
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON AUGUST SESSION, 1997

MONROE E. DAVIS, ) ) No. 02C01-9608-CR-00291 Appellant ) ) SHELBY COUNTY vs. ) ) Hon. Arthur T. Bennett, Judge STATE OF TENNESSEE, )

Appellee ) ) (Post-Conviction) FILED August 19, 1997 For the Appellant: For the Appellee: Cecil Crowson, Jr. Appellate C ourt Clerk MICHAEL E. SCHOLL CHARLES W. BURSON 212 Adams Avenue Attorney General and Reporter Memphis, TN 38103 KENNETH W. RUCKER Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493

WILLIAM GIBBONS District Attorney General

RHEA CLIFT Asst. District Attorney General Criminal Justice Complex Suite 301 201 Poplar Street Memphis, TN 38103

OPINION FILED:

AFFIRMED PURSUANT TO RULE 20

David G. Hayes Judge OPINION

The appellant, Monroe E. Davis, appeals the Shelby County Criminal

Court's dismissal of his petition for post-conviction relief. On October 6, 1989,

the appellant pled guilty to one count of second degree murder and one count of

petit larceny. Pursuant to a plea agreement, the appellant was sentenced, as a

range I offender, to twenty years for the murder conviction and to one year for

the petit larceny conviction to be served concurrently in the Department of

Correction. On April 4, 1995, he filed a petition for post-conviction relief

asserting a breach of his negotiated plea agreement in that he was denied

release by the Board of Parole after thirty percent of his sentence was served.

The trial court dismissed the petition as being barred by the three year statute of

limitations. See Tenn. Code Ann. § 40-30-102(1990). In this appeal, the

appellant contends that, "due to the motion to recuse and [the] transfer of his

petition to a new court without proper notice," the statute of limitations should not

bar his petition.1

The record supports the trial court's finding that the petition is time-barred.

The limitations period on the appellant's claims began to run on November 6,

1989. See Tenn. Code Ann. § 40-30-102 (repealed 1995). Thus, the appellant

had three years from this date in which to file a cognizable claim for post-

conviction relief.2 Tenn. Code Ann. § 40-30-102. The petition in the instant case

was filed on April 4, 1995, well past the three year statute of limitations; thus, the

1 Specifically, the appellant contends that the trial court's order granting its recusal prevented him from knowing in which court an amendm ent to his petition should be filed. The app ellant filed his po st-conviction petition on April 4, 1995 . Sub stituted cou nse l was app ointed to represent the appellant in this matter on January 10, 1996. On January 12, 1996, a motion was filed req ues ting tha t the trial judge b e rec use d. On M arch 7, 1996 , the m otion w as g rante d. First, the appe llant's original petition was filed o utside the three yea r period. T he a ppe llant's m otion to recuse was filed approximately nine months after his post-conviction petition was filed. Moreover, lack of know ledge do es n ot excus e late filings . Sk inner v. State, No. 02C01-9403-CC-00039 (Tenn . Crim . App . at Jackson , July 13, 1994), perm. to appeal denied, (Tenn. Oct. 10, 1994) (citing W illis v. State, No. 01C0 1-9211-C R-003 59 (Te nn. Crim . App. at Nashville, Oct. 21, 1993), perm. to appeal denied, (Te nn. M ar. 7, 1994 )). Th is claim is without m erit.

2 The appellant had until Novem ber 6, 1992, to file a petition for post-con viction relief.

2 appellant is "barred" from seeking post-conviction relief.

Notwithstanding the fact that the petition is time-barred, the appellant fails

to state a constitutionally cognizable claim for relief under the Post-Conviction

Procedure Act. See Tenn. Code Ann. § 40-30-105 (1990). The release

eligibility date is the earliest date an inmate convicted of a felony is eligible for

parole and is dependant upon numerous factors. No constitutional right exists to

be released at the earliest release eligibility date. See Depew v. State, No.

03C01-9504-CR-00116 (Tenn. Crim. App. at Knoxville, Aug. 21, 1995).

Pursuant to Rule 20, Rules of the Court of Criminal Appeals, we affirm the

judgment of the trial court.

____________________________________ DAVID G. HAYES, Judge

CONCUR:

______________________________ JERRY L. SMITH, Judge

_____________________________ THOMAS T. WOODALL, Judge