Thomas Barlow v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: May 21, 1998
• Docket: 01C01-9707-CC-00257
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED MAY 1998 SESSION May 21, 1998 THOMAS W. BARLOW, ) Cecil W. Crowson ) C.C.A. NO. 01C01-9707-CC-00257 Appellate Court Clerk Appellant, ) ) RUTHERFORD COUNTY VS. ) (No. F-38600 Below) ) STATE OF TENNESSEE, ) The Hon. James K. Clayton, Jr. ) Appellee. ) (Dismissal of Post-Conviction Petition) )

FOR THE APPELLANT: FOR THE APPELLEE:

REBECCA A. ROBINSON JOHN KNOX WALKUP 123 E. Main Street, Suite D Attorney General and Reporter Murfreesboro, TN 37130 CLINTON J. MORGAN Assistant Attorney General Cordell Hull Building, Second Floor 425 Fifth Avenue North Nashville, TN 37243-0493

WILLIAM C. WHITESELL, JR. District Attorney General

JOHN W. PRICE, III Assistant District Attorney General 303 Rutherford County Judicial Building Murfreesboro, TN 37130

OPINION FILED _______________________

AFFIRMED PURSUANT TO RULE 20

GARY R. WADE, PRESIDING JUDGE OPINION

The petitioner, Thomas W. Barlow, appeals as of right from the trial court’s

dismissal of his post-conviction petition as outside the statute of limitations. The petitioner

contends that the trial court erred in considering the untimeliness of the post-conviction petition

because the state failed raise the statute of limitations as an affirmative defense. He also

submits that the trial court erred in finding it lacked jurisdiction over the matter. After reviewing

the entire record, the briefs, and the applicable law, we find that the judgment of the trial court

should be affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeals Rules.

Although neither the guilty plea nor the judgment is included in the record on

appeal, it appears that on October 3, 1994, the petitioner ple d guilty to aggravated sexual battery.

Subsequently, the petitioner filed his petition for post-conviction relief on November 14, 1996.

Counsel was appointed to represent the petitioner, and his post-conviction petition was amended.

The case was set for a hearing on the merits, however, at the beginning of the hearing, the state

notified the trial court that the petition had been filed outside the statute of limitations.

Accordingly, the trial court dismissed the petition upon a finding that the petition was filed outside

the one-year statute of limitations.

Pursuant to T.C.A. § 40-30-202(a), a petitioner 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 was taken or, if no appeal was taken, within one year of the date on which the

judgment became final. The Compiler’s Notes to T.C.A. § 40-30-201 states that the 1995 Post-

Conviction Act governs all petitions for post-conviction relief filed after May 10, 1995. Moreover,

the Compiler’s Notes indicate that “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 motion to reopen a

petition under this part.” Moreover, the statute clearly states that the one-year limitation period

shall not be tolled for any reason, including any tolling or saving provision otherwise available at

law or equity. T.C.A. § 40-30-202(a).

Under T.C.A. § 40-30-202(b), a court does not have jurisdiction to consider a

petition for post-conviction relief if it was filed outside the one-year statute of limitations unless

(1) the claim in the petition is based upon a final ruling of an appellate court establishing a

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application of that right is required; (2) the claim in the petition is based upon new scientific

evidence establishing that such petitioner is actually innocent of the offense or offenses for which

the petitioner was convicted; or (3) the claim in the petition seeks relief from a sentence that was

enhanced because of a previous conviction and such conviction in the case in which the claim

is asserted was not a guilty plea with an agreed sentence, and the previous conviction has

subsequently been held to be invalid.

In the present case, the petitioner filed his petition for post-conviction relief outside

the statute of limitations set forth in T.C.A. § 40-30-202(a), and he has failed to show that any of

his claims fall within one of the exceptions set forth in T.C.A. § 40-30-202(b).

IT IS, THEREFORE, ORDERED that the judgment of the trial court is affirmed

pursuant to Rule 20. Because the petitioner is indigent, costs are taxed to the state.

________________________________ GARY R. WADE, PRESIDING JUDGE

CONCUR:

________________________________ DAVID G. HAYES, JUDGE

________________________________ JERRY L. SMITH, JUDGE

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