State v. Roy Smith

• Court: Court of Criminal Appeals of Tennessee
• Decided: June 17, 1996
• Docket: 02C01-9712-CR-00468
• Status: Published

Opinion

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

ROY CLEVELAND SMITH, JR., ) ) Petitioner, ) C. C. A. NO. 02C01-9712-CR-00468 ) vs.

STATE OF TENNESSEE, ) SHELBY COUNTY ) ) No. P-18667 FILED ) May 7, 1998 Respondent. ) Cecil Crowson, Jr. Appellate C ourt Clerk

ORDER

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

petition for post-conviction relief. On June 17, 1996, the petitioner pled guilty to rape of

a child and received a fifteen year sentence. No appeal was taken. On June 23, 1997,

the petitioner’s petition for post-conviction relief was filed by the trial court. Finding that

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

hearing.

On appeal, the petitioner claims that he timely submitted his petition to the

appropriate prison authorities for mailing. See Rule 28, §2(G), Rules of the Supreme

Court. In support of his position, the petitioner attaches as an appendix to his brief a

copy of a mail room receipt dated June 16, 1997. However, there is nothing in the

record to substantiate the petitioner’s claim in this respect. It is the petitioner’s duty to

prepare an adequate record on appeal. State v. Banes, 874 S.W.2d 73, 82 (Tenn.

Crim. App. 1993). This Court cannot consider an issue which is not preserved in the

record for review. See T.R.A.P. 24(b). Moreover, allegations of fact contained in a

brief may not be considered as evidence. State v. Bennett, 798 S.W.2d 783, 789

(Tenn. Crim. App. 1990). Accordingly, the petitioner’s claim must fail.

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). The record reflects that the petition in this case was filed beyond the

applicable statute of limitations, and is, therefore, untimely. Accordingly, the post-

conviction court properly dismissed the petition without an evidentiary hearing. T.C.A. §

40-30-206(b).

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 May, 1998.

_____________________________ PAUL G. SUMMERS, JUDGE

_____________________________ JOHN H. PEAY, JUDGE

_____________________________ THOMAS T. WOODALL, JUDGE