State v. Robert Bitner

• Court: Court of Criminal Appeals of Tennessee
• Decided: February 24, 1998
• Docket: 02C01-9705-CC-00177
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON FILED FEBRUARY SESS ION, 1998 February 24, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk

ROBERT DUANE BITNER, ) C.C.A. NO. 02C01-9705-CC-00177 ) Appe llant, ) ) CARROLL COUNTY V. ) ) ) HON. C. CREED MCGINLEY, JUDGE STATE OF TENNESSEE, ) ) Appellee. ) (POST-C ONVIC TION)

FOR THE APPELLANT: FOR THE APPELLEE:

ROB ERT DUAN E BITN ER, pro se JOHN KNOX WALKUP Register Number 216742 Attorney General & Reporter Route 1, Box 330 Tiptonville, TN 38079-9775 KENNETH W. RUCKER Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243

G. ROBERT RADFORD District Attorn ey Ge neral

ELEANOR CAHILL Assistant District Attorney General 111 Church Street P.O. Box 686 Huntingdon, TN 38344-0686

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE OPINION

This case rep resents an app eal from the dism issal of the Petitio ner’s

petition for post-co nviction relief. The Petitioner was originally convicted of three (3)

counts of aggravated sexual battery and received an effective twenty-four (24) year

sentence. This court affirmed the judgment of the trial court on direct app eal, State

v. Bitner, C.C.A. No. 02C01-9307-CC-00148 , Carroll C ounty (T enn. C rim. App .,

Jackson, May 25, 1994), and the supreme court denied application for permission

to appeal on August 29, 1994. On July 1 0, 1996 , Petitioner filed a petition for post-

conviction relief. Finding that the statu te of limitations had exp ired, the trial court

dismissed the petition without a hearing.

The petition in this case was filed after the effective date of the 1995

Post-Conviction Procedure Act, and is therefore governed by the provisions found

therein. Com piler’s Notes, Tenn. Code Ann. § 40-3 0-201 (1 997). Pu rsuant to

Tennessee Code Annotated section 4 0-30-20 2(a) (199 7), a person in custody under

a sentence o f 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 beca me fin al. This section further provides that the statute of limitations

shall not be tolled for any reason, including any tolling or saving provision otherwise

availab le at law or equity, other than three (3) exceptions set forth in Tennessee

Code Annota ted sectio n 40-30 -202(b)( 1), (2) and (3). None of these exceptions

applie s in this cas e. Jud gme nt in this case became final on August 29, 1994, and

the Petition er did no t file his petition fo r post-co nviction relief u ntil July 10, 19 96.

-2- According ly, his petition was barred by the statute of limitations. Because the prior

three year statute of limitations had not expired on the e ffective date of the new Ac t,

the Petition er had until Ma y 10, 19 96, in w hich to file his petition for post-conviction

relief. See Com piler’s Notes, Tenn. Code Ann. § 4 0-30-20 1 (1997 ); Mane y v. State,

C.C.A. No. 03C01-9612-CR-00470, Bradley County (Tenn. Crim. App., Knoxville,

Oct. 10, 1997) (no Rule 11 ap plication filed). However, as noted, the petition in this

case was filed beyond that date.

In Carter v. S tate, 952 S.W.2d 417 (Tenn. 1997), our sup reme cou rt

recognized situations in which the new on e year sta tue of limitations would expire

before the prior three year statute. The court held that the enabling provision of the

1995 Act whic h grante d perso ns in thes e situation s until May 10, 199 6, in which to

file a petition for post-conviction relief, adequately protected the rights of these

person s. Id. At 420.

Accordingly, we conclude that the trial court correctly found that the

petition was barred by the statute of limitations, and therefore, a sum mary dismissal

of the petition was ap propriate . Tenn. C ode An n. § 40-3 0-206(b ) (1997).

The judgment of the trial court is affirmed.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JOSEPH B. JONES, Presiding Judge

___________________________________ JOHN H. PEAY, Judge

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