Talley v. State

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED APRIL SESSION, 1998 August 17, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

Sam uel L ee T alley, ) C.C.A. NO. 03C01-9702-CR-00063 )

Appe llant, )

)

) Hamilton COUNTY

VS. )

) Hon. Stephen M. Bevil. JUDGE STATE OF TENNESSEE, )

)

Appellee. ) (Post Conviction - Sentencing)

FOR THE APPELLANT: FOR THE APPELLEE:

SAMUEL LEE TALLEY JOHN KNOX WALKUP W.T.H.S.F. Attorney General and Reporter P. O. Box 1050 Henning, TN 38041-1050 SANDY C. PATRICK Assistant Attorney General 425 Fifth Avenu e North

Nashville, TN 37243-0943

BILL COX

District Attorney General 600 Market Street

Chattanooga, TN 37402-1972

ORDER FILED ________________________ AFFIRMED PURSU ANT TO RU LE 20 JERRY L. SMITH, JUDGE

ORDER

In this appe al of the summary dismissal of his post-conviction petition

Appe llant, Samu el Lee Talley, as ks this Court to re view the validity of h is conviction entered on July 17 , 1991. A ppellant w as foun d guilty of the offense of especially aggra vated robbe ry. The court fixed his s entence at twe nty-five years in the De partment o f Correction as a Range I S tandard O ffender.

Appellant argues that the trial court improperly dismissed his petition for post conviction relief as being outside th e statute of limitations period. Appellant was convicted in 1991; he did not file for post conviction relief until 1996. At the time petitioner pled guilty, he had three years in which to file a petition for post conviction relief. He faile d to do so. In 1995, the legislature repealed the former Post-Conviction Procedure Act; the new act, which governs this petition, replaced the three year statute of limitations with a one year statu te. Tenn . Code . Ann. § 49-30-201 Compiler’s Notes; Tenn. Code Ann. § 40-30-202. Thus, Petitioner had until May 10, 1996 to file his petition for relief. His petition filed July 1, 1996, was not timely filed. Under Tennessee Code Annotated § 40-30-20 2(a), Courts ha ve jurisdiction to consider late pe titions only if the claim is based on a previously unrecognized constitutional right, new scientific evidence establishes the petitioner’s innocence, or the sentence was enhanced because of a pervious conviction which was subsequently invalidated. Appellant’s petition does not fall into any of these ca tegories. Thu s the petition for post-conviction relief was properly dismissed.

Accordingly, the judgment of the trial court is affirmed in all respects pursuant to Rule 20, Rules of the Court of Criminal Appeals.

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Beca use it a ppea rs to the Cour t that Ap pellan t, Sam uel Le e Ta lley, is indigent, costs will be paid by the State.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

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PAUL G. SUMMERS, JUDGE

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CURWOOD WITT, JUDGE