Steven DeWayne Bolden v. State of Tennessee

• Court: Court of Criminal Appeals of Tennessee
• Decided: March 6, 2000
• Docket: W1999-00029-CCA-R3-PC
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON FILED DECEMBER 1999 SESSION March 6, 2000

Cecil Crowson, Jr. Appellate Court Clerk STEVEN DEWAYNE BOLDEN, * No. W1999-00029-CCA-R3-PC

Appellant, * LAKE COUNTY

vs. * Hon. R. Lee Moore, Jr., Judge

STATE OF TENNESSEE, * (Post-Conviction)

Appellee. *

For Appellant: For Appellee:

Steven DeWayne Bolden Paul G. Summers W.T.S.P., Site 2 Attorney General and Reporter P.O. Box 1150 425 Fifth Avenue North Henning, TN 38041-1150 Nashville, TN 37243-0493

R. Stephen Jobe Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North Nashville, TN 37243-0493

OPINION FILED:

AFFIRMED

NORMA MCGEE OGLE, JUDGE OPINION

The petitioner, Steven DeWayne Bolden, appeals the dismissal of his

petition for post-conviction relief by the Lake County Circuit Court on March 26,

1999. Following a review of the record and the parties’ briefs, we affirm the

judgment of the post-conviction court.

On August 18, 1994, the petitioner was convicted by a jury in the Lake

County Circuit Court of aggravated assault. The trial court sentenced the petitioner

as a standard, Range 1 offender to three years incarceration in the Tennessee

Department of Correction. On July 26, 1996, this court affirmed the petitioner’s

conviction, and, on December 30,1996, our supreme court denied further review.

State v. Bolden, No.02C01-9502-CC-0053, 1996 WL 417673 (Tenn. Crim. App. at

Jackson), perm. to appeal denied, (Tenn. 1996). On January 20, 1999, the

petitioner filed the instant pro se petition for post-conviction relief in the Lake County

Circuit Court. The petitioner asserted that his conviction is void, because he was

originally indicted on one count of attempted first degree murder and did not consent

to the amendment of his indictment to include the offense of aggravated assault.1

The post-conviction court dismissed the petition due to the expiration of the

applicable statute of limitations.

The instant petition for post-conviction relief was filed after May 10,

1995, and is therefore governed by the provisions of the Post-Conviction Procedure

Act of 1995. This act requires that a petitioner file a 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 was taken. Tenn. Code Ann. 40-30-202(a) (1997). No court has

1 The indictment was amende d by a “Consent Order” signed by the trial court, the prosecutor, and the p etitioner’s trial co unsel.

2 jurisdiction to hear a petition filed after the expiration of the limitations period unless

a petitioner’s claims fall within one of three exceptions enumerated in the statute, id.

at (b), or application of the limitations period would offend principles of due process,

cf. Burford v. State, 845 S.W.2d 204, 208-209 (Tenn. 1992). See also Seals v.

State, No. 03C01-9802-CC-00050, 1999 WL 2833, at *2 (Tenn. Crim. App. at

Knoxville, January 6, 1999)(this court observed that the “anti-tolling” provision of the

1995 Act has no operation against constitutional principles).

We agree with the post-conviction court and the State that the

petitioner has failed to demonstrate that one of the statutory exceptions is applicable

in his case. Moreover, application of the statute of limitations in this case does not

offend due process. Finally, a petition alleging a void indictment and, consequently,

a void judgment of conviction must still be filed within the statute of limitations set

forth in Tenn. Code Ann. § 40-30-202(a). See Myers v. State, No. 03C01-9612-CR-

00457, 1997 WL 542332, at *1 (Tenn. Crim. App. at Knoxville, September 4,

1997)(per curiam).2

For the foregoing reasons, we affirm the judgment of the post-

conviction court.

Norma McGee Ogle, Judge

2 Of course, “the statute of limitations for filing post-conviction petitions in no way precludes the filing of petitions for habeas corpus w hich contest void judgmen ts.” Taylor v. Sta te, 995 S.W.2d 78, 84 (Tenn. 1999).

3 CONCUR:

Gary R. Wade, Presiding Judge

John Everett W illiams, Judge