State v. Smith

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED DECEMB ER SESSION, 1997 March 26, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk HAROLD VERNON SMITH, ) C.C.A. NO. 03C01-9704-CR-00130 ) Appe llant, ) ) ) HAWKINS COUNTY VS. ) ) HON. JAMES E. BECKNER STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF HAWKINS COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

HAROLD VERNON SMITH JOHN KNOX WALKUP Pro Se Attorney General and Reporter Ann X N.E.C.C. P.O. Box 5000 SANDY COPOUS PATRICK Mountain City, TN 37683-5000 Assistant Attorney General 425 5th Avenu e North Nashville, TN 37243

C. BERKELEY BELL District Attorney General

DOUG GODBEE Assistant District Attorney General Courthouse, Main Street Rogersville, TN 37857

OPINION FILED ________________________

AFFIRMED PURSU ANT TO RU LE 20

DAVID H. WELLES, JUDGE ORDER

The Petitioner, Harold Vernon Smith, appeals the trial court’s dismissal of

his pro se petition for post-conviction relief. The is the latest installment of his

collateral challenges to his life sentence as an habitual criminal. In his petition,

he argued that the indictments for the underlying offenses failed to charge

essential elements of the offenses. The trial court dism issed the petition. W e

conclude that the Appellant is not entitled to post-conviction relief and we

therefo re affirm the trial c ourt’s o rder of dism issal.

The Petitioner was convicted of five counts of armed robbery on June 15,

1981 and sentenced to life imprisonment as an habitual criminal. The convictions

were affirmed by this Court on June 11, 1982 and the supreme court denied

permission to appe al on Se ptemb er 7, 198 2. State v. S mith, 639 S.W.2d 677

(Tenn. Crim. App.) perm. to appeal denied (Tenn. 1982). The Petitioner filed the

current petition for post-conviction relief on January 2 4, 1997. Th e trial court

dismissed the petition without a hearing on February 28, 1997, finding that it was

barred by the statute of limitations. The Petitioner now appeals.

The new P ost-C onvictio n Pro cedu re Act g overn s this pe tition and all

petitions filed after Ma y 10, 199 5. See Tenn. Code Ann. § 40-30-201 et seq.

(Supp. 1996). T his Act pro vides, in pe rtinent part, that “notwithstanding any other

provision 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 m otion to reope n a pe tition un der this part.” C omp iler’s Notes

-2- to Ten n. Cod e Ann. § 40-30-2 01 (Su pp. 199 6) (referring to Acts 1995, ch. 207,

§ 3). The convictions in question became final on September 7, 1982. The

previous three-yea r statute of lim itations be gan to run for the Petition er on J uly

1, 1986, and expired on July 1, 1989. As a result, the Petitioner was already

barred by the previo us statute of limitations on the da te the new Act took effect,

May 10, 1995. See Carter v. S tate, 952 S.W . 2d 417 (Tenn. 1997). Nor does the

Petition er’s claim fit within any of the statutorily-recognized exceptions to the

statute of limitations . See Tenn.C ode Ann . § 40-30-202 (b)--(c) (Supp.199 6).

Thus, the trial c ourt did not err in finding that the petition was barred by the

statute of limitations.

Even if we were to addre ss the Petition er’s cla im on its me rits, we w ould

conclude that it has no merit. In support of his petition and argument, the

Petitioner relies primarily upon the decision of this Co urt in State v. Rog er Da le

Hill, C.C.A. No. 01C01-9508 -CC-0 0267, W ayne C ounty (T enn. C rim. App .,

Nashville, June 20, 1996). We first note that this Court’s decision in Hill was

based upon an inte rpreta tion of o ur new crimin al cod e, and this code is

applic able only to offenses occurring after November 1, 1989. Secondly, our

supreme court has reversed th is Court’s decision in Hill. See State v. Hill, 954

S.W .2d 725 (Te nn. 1997).

In the case sub judice, we have examined the language of the challenged

indictment and we conclude that the indictment adequately alleged the criminal

offenses charged and sufficiently informed the Petitioner of the charges against

him such that the convicting court had jurisdiction. We see no reason for further

discussion or analysis. The Petitioner’s convictions are not void. T hus, h is

-3- petition presen ts no cognizable claim for the purposes of post-conviction relief or

habeas corpus relief. See Charle s Edwa rd Orren v. State, C.C.A. No. 03C01-

9704-CR-00141, Johnson County (Tenn. Crim. App., Knoxville, Feb. 13, 199 8);

Georg e F. Jones , Jr. v. State, C.C.A. No. 03C01-9702-CR-00062, Johnson

Coun ty (Tenn. Crim. App., Kn oxville, Feb. 3 , 1998); Randy B laine Knight v.

Carlton, W arden, C.C.A. No. 03C01-9705-CR-00162, Johnson County (Tenn.

Crim. App., Kn oxville, Jan. 2 6, 1998 ); Perry C . Riley v. State , C.C.A. No. 03C01-

9705-CR-00181, Morgan County (Te nn. Crim. Ap p., Knoxville, Jan. 23, 19 98);

Roy A. Burch v. State, C.C.A. N o. 03C 01-961 0-CR -00391 , Johnson County,

(Tenn. Crim. App., Kn oxville, Jan. 1 6, 1998 ); State v. Dare l G. Bo lin, C.C.A. No.

03C01-9212-CR-00450, Cumberland County (Tenn. Crim. App., Knoxville, Jan.

15, 199 8); Josep h Ron ald Duc los v. State , C.C.A. No. 03C01-9705-CR-00182,

Morgan County (Tenn. Crim. App., Knoxville, Jan. 16, 1998);State v. Rogers L.

McKinley, C.C.A . No. 03C 01-961 2-CR -00455 , Bledsoe County (Tenn. Crim.

App., Knoxville, Ja n. 6, 1998 ); Timo thy W ayne Jo hnson v. Bowlen, Warden,

C.C.A. No. 03C01-9611-CR-00443, Bledsoe County (Tenn. Crim. App., Knoxville,

Dec. 23, 199 7); Darryl D ouglas Sheets v. State, C.C.A. No. 03C01-9701-CR-

00031, Johnson County (Tenn. Crim. App., Kn oxville, Dec . 23, 1997 ); Jerry Cox

v. State,C.C.A. No. 03C0 1-9610 -CR-0 0392, J ohnso n Cou nty (Ten n. Crim. A pp.,

Knoxville, Dec. 23 , 1997); Bruce B elk v. State , C.C.A. No. 03C01-9703-CR-

00109, Morga n Cou nty (Ten n. Crim. A pp., Kno xville, Dec. 23 , 1997); Abel

Rodriguez, Jr. v. State,C.C.A. No. 03 C01-9 612-C R-004 63, Gre ene C ounty

(Tenn. Crim. App., Kn oxville, Dec . 23, 1997 ); Don ald Wa yne Ho lt v. State, C.C.A.

No. 03C01-9702-CR-00059, Johnson Cou nty (Tenn. Crim. App., Knoxville, Dec.

23, 1997); Gene Hibbard v. State, C.C.A . No. 03C01-9702-CR-00077, Knox

County (T enn. Crim. A pp., Knoxville, Dec. 23 , 1997).

-4- W e conc lude th at no e rror of la w requ iring a reversal o f the jud gme nt is

apparent on the re cord. Ba sed up on a tho rough re ading o f the record , the briefs

of the parties, and the law governing the issues presented for review, the

judgment of the tria l court is affirme d in ac corda nce w ith Rule 20 of the Court of

Criminal Appeals of Tennessee.

____________________________________ DAVID H. WELLES, JUDGE

CONCUR:

___________________________________ DAVID G. HAYES, JUDGE

___________________________________ THOMAS T. WOODAL, JUDGE

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