Toby v. State

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED R.B. TOBY, *

Appellant, * C.C.A.#03C01-9711-CC-00507 August 17, 1998 VS. * SEVIER COUNTY

STATE OF TENNESSEE, * Cecil Crowson, Jr. Appellee. * Appellate C ourt Clerk

ORDER

The petitioner, R.B. Toby, proceeding pro se, appeals as of right from the

Sevier County Criminal Court’s dismissal of his petition for post-conviction relief. The

record reflects that the petitioner pled guilty to two counts of vehicular homicide, one

count of vehic ular assault, an d one count o f violating the Hab itual Motor Vehic le Statute

on January 13, 1994. By plea agreement, he received an aggregate sentence of fifteen

(15) years in the Department of Correction. The sentence included two concurrent ten

(10) year sentences for each vehicular hom icide conviction, a five (5) year consecutive

sentence for the vehicular assault conviction, and a concurrent four (4) year sentence for

the habitual mo tor vehicle offen der conviction .

The petitioner did not appeal the sentence bu t filed a petition for pos t-

conviction relief on October 23, 1996. He alleged that the indictments upon which he

was convicted were fatally deficient in failin g to state the term of the grand jury and in

failing to adequately state the facts surrounding the offense. In dismissing the petition

without an evidentiar y hearing, the trial cour t concluded tha t the petition was not time ly

filed and that the petitioner’s claims did not present any exception to the statute of

limitations.

After full consideration of the record, the briefs, and the law governing the

issues presented, we are of the opinion that the record supports the trial court’s actions and that no precedential value would be derived from the rendering of an opinion. The

petition was filed ou tside the statute of lim itations, see T.C.A. § 40-30-202, and the

petitioner’s claim s do not fall unde r any of the exception s to the statute of limitatio ns, see

T.C.A. § 40-30 -202(b). It is , therefor e, ORDER ED that the judgm ent of the trial court is

affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeals Rules. Due to the

petitioner’s indigence, costs shall be taxed to the state.

Gary R. Wade, Judge

CONCUR:

Joseph M. Tipton, Judge

David H. Welles, Judge