### IN THE COURT OF CRIMI NAL APPEALS OF TE NNESSEE AT NASHVILLE
R A N D Y LE E S HA TT O, S R . v. STA TE OF TEN NES SEE

Criminal Court for

Davidson County No. 2004-A- 866

No. M2007- 00054-CCA -R3-P C - Filed Novem ber 30, 2007

The Appe llant appea ls the trial court's dismissal of his petition for post conviction relief. T he Appellant filed his petition outside the statute of limitations. Accordingly, the judgment of the trial court is af

firmed. Tenn. R. App . P. 3; Judgment of the Tr ial Court Aff irme d Pursuan t to Rule 20, Rules of th e Co ur t o f C r im ina l A ppe als
R OBER T W. W EDEMEYER , J., delivere d the opinion of the court, in which D AVI D H. W ELL ES , and J ER R Y L. S MIT H , J.J., joined. Randy Lee Shatto, pro se. Robert E. Cooper, Jr ., Attorney Ge nera l & Reporter; Elizabe th B. Marney, Assistant Attorney Gene ral, for

the appe llee, State of Te nnessee .

M EM ORAN DU M OP IN ION On July 12, 2004, the Appellant pled guilty to one count of r ape of a child and a cce pted a sentenc e of f

ifteen ye ars. The Appellant filed a petition for post-conviction re lief on Nove mber 1, 2004. The Appe llant, by and through counse l, filed an a mended pe tition on M arc h 9, 2005. Howeve r, at a

hearing on March 23, 2005, during which the Appe llant and his attorney we re prese nt, the court withdre w the petition upon the Appellant's re quest. Subsequently, on Dec ember

1, 2006, the Appellant, pr ocee ding pro se, filed a motion to reopen his post-conviction petition. The trial court treate d the pleading a s a petition for post-c onviction relief instea d of a motion to reopen a post-c onviction petition because the Appellant withdre w his prior petition be fo rea he ari ng on theme ri ts. Th e tria l c ou rt c on c lud e d th a t th e Ap pe llant c ou ld n ot m ov e to reope n a petition that was pre viously withdrawn. The tria l court further c oncluded that the pe tit ionwa s f

ile d b e yo ndthestatut e of lim itatio ns . T he c ou rt

ob se rv e d th a t th e c la im w ou ld otherwise not wa

rrant relief unde r the motion to reopen statute. The Appe llant appea led. The State ha s filed a motion to affir m the judgme nt of the trial cour t pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The Court f inds this m otion to be well taken.2

Th e Ap pe lla

nt' s post-conviction petition is clearly ba rre d by the statute of limitations. Tennessee Code Annotated Sec tion 40-30-102(a ) provides that a petition for post-convic tion relief must be filed within one yea

r of f inal judgment. Section 40-30-109(c ) further provide s that the withdrawa l of a timely filed petition "shall not tol l the statute of limitations set forth in § 40-30- 10 2. " T he Ap pe llant f

ile d h is c ur

re nt p e tit ionwe ll o ve r t wo ye ars a ft e r the e ntry o f h is g uil ty plea, and almost two years f ollowing the withdrawa l of his initi al petition. The Post-Conviction Procedur e Ac t enumerates few exce ptions to t his one yea r time limit . See Te nn. Code Ann. § 40- 30-102(b) . In orde r to qualify, the c laim in the petition mus t be base d upon a new rule of c on sti tut ion a l la w r e qu iring re tr os pe c tiv e app lic a tio n, mus t beba se d u po n n e w s c ie nti fi c evidenc e esta

blishing actual innocenc e, or must assert relief f rom sentenc es which w ere enhanc ed bec ause of

a pre vious conviction that has subsequently found to be illegal. Id. None of these e xceptions apply in this case . As the trial court noted, the scientific e vidence which the Appellant allege s is newly discovere d was a ctually made a vailable to the Appe llant prior to the entry of his guilty plea. Th e Ap pe llant a

rg ue s o n a

pp e a l th a t th e tria l c ou rt

sh ou ld h a ve tr e a te d h is p le a din g a s a petition for a writ of err or cor am nobis rather than a pe tition for post-conviction relief

. Assuming the trial court should have revie wed the ple ading as a n err or cor am nobis petition, the Appellant would neve rtheless ha ve bee n denied r elief due to the untimeliness of the filing. A petition for a writ of err or cor am nobis must be filed within one yea r af ter the judgment be comes final in the trial court. State v. Mixon, 983 S .W.2d 661, 669-70 ( Tenn. 1999). Furthe rmore, contra ry to the Appe llant's suggestion, equitable tolling of the one yea r statute would not be war rante d in this case bec ause, a s noted above , the evidenc e at issue wa s not newly discover ed e vid e nc e . A pp e llant' s c la im that hi s atto rn e y f a ile d to inf

orm hi m a

bo ut the e xis te nc e of

thi s evidenc e should have been pur sued through his initial post-conviction petition which he voluntarily withdrew. For the rea sons stated above , the judgment of the trial c ourt is affirmed in acc ordanc e with Rule 20, Rules of the Court of Criminal Appeals.

____________________________________ ROBERT W. WEDEMEY ER, JUDGE