State v. Steven Newman

• Court: Court of Criminal Appeals of Tennessee
• Decided: March 11, 1998
• Docket: 02C01-9707-CC-00266
• Status: Published

Opinion

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

STATE OF TENNESSEE, ) ) Appellee, ) C. C. A. NO. 02C01-9707-CC-00266 ) vs.

STEVEN S. NEWMAN, ) DECATUR COUNTY ) ) Nos. 25, 86 FILED ) March 11, 1998 Appellant. ) 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 January 5, 1987, the petitioner pled guilty to four

counts of third degree burglary and one count of larceny from a vending machine, and

on October 24, 1988, the petitioner pled guilty to second degree burglary and grand

larceny. No appeal was taken from these convictions. On May 6, 1996, the petitioner

filed a petition for post-conviction attacking the 1987 and 1988 larceny convictions; he

apparently did not challenge the burglary convictions. The petitioner claimed that he

was not fully advised of his rights against self incrimination or that these convictions

could be used to enhance subsequent convictions. Finding that the statute of

limitations had expired, the trial court dismissed the petition without a hearing.

Pursuant to T.C.A. § 40-30-202(a)1, 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 petition in this case was filed well beyond the applicable statute of

1 The petition in this case was filed on May 6, 1996, and is therefore governed by the provisions of the 19 95 Pos t-Convic tion Proc edure A ct. See Comp iler’s Notes, T.C.A. § 40-30-201 (1997). limitations, and is, therefore, untimely. 2 Accordingly, the post-conviction court properly

dismissed the petition without an evidentiary hearing. T.C.A. § 40-30-206(b). Contrary

to the petitioner’s claim, the 1995 Post-Conviction Procedure Act did not create a one

year window in which previously barred claims could be raised. See Carter v. State,

952 S.W.2d 417 (Tenn. 1997).

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 March, 1998.

__________________________________ JOE B. JONES, PRESIDING JUDGE

__________________________________ GARY R. WADE, JUDGE

__________________________________ JERRY L. SMITH, JUDGE

2 The pe tition would als o be bar red und er the pre vious thre e year statu te of limitation s. See T.C.A . § 40-30 -102 (19 90) (rep ealed); Passa rella v. State , 891 S.W .2d 619 ( Tenn . Crim. A pp.), perm . to app. denied, (Tenn. 1994).