IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

RANDY LEE SHATTO, SR. v. STATE OF TENNESSEE 

Criminal Court for Davidson County

No. 2004-A-866

No. M2007-00054-CCA-R3-PC - Filed November 30, 2007

The Appellant appeals the trial court's dismissal of his petition for post conviction relief. The

Appellant filed his petition outside the statute of limitations. Accordingly, the judgment of the

trial court is affirmed.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed Pursuant to Rule 20, Rules of

the Court of Criminal Appeals

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which DAVID H. WELLES, and

JERRY L. SMITH, J.J., joined.

Randy Lee Shatto, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney

General, for the appellee, State of Tennessee.

MEMORANDUM OPINION

On July 12, 2004, the Appellant pled guilty to one count of rape of a child and accepted a

sentence of fifteen years. The Appellant filed a petition for post-conviction relief on November

1, 2004. The Appellant, by and through counsel, filed an amended petition on March 9, 2005. 

However, at a hearing on March 23, 2005, during which the Appellant and his attorney were

present, the court withdrew the petition upon the Appellant's request. Subsequently, on

December 1, 2006, the Appellant, proceeding pro se, filed a motion to reopen his post-conviction

petition. The trial court treated the pleading as a petition for post-conviction relief instead of a

motion to reopen a post-conviction petition because the Appellant withdrew his prior petition

before a hearing on the merits. The trial court concluded that the Appellant could not move to

reopen a petition that was previously withdrawn. The trial court further concluded that the

petition was filed beyond the statute of limitations. The court observed that the claim would

otherwise not warrant relief under the motion to reopen statute. The Appellant appealed.

The State has filed a motion to affirm the judgment of the trial court pursuant to Rule 20

of the Rules of the Court of Criminal Appeals. The Court finds this motion to be well taken. 
2

The Appellant's post-conviction petition is clearly barred by the statute of limitations. Tennessee

Code Annotated Section 40-30-102(a) provides that a petition for post-conviction relief must be

filed within one year of final judgment. Section 40-30-109(c) further provides that the

withdrawal of a timely filed petition "shall not toll the statute of limitations set forth in § 40-30-

102." The Appellant filed his current petition well over two years after the entry of his guilty

plea, and almost two years following the withdrawal of his initial petition. The Post-Conviction

Procedure Act enumerates few exceptions to this one year time limit. See Tenn. Code Ann. § 40-

30-102(b). In order to qualify, the claim in the petition must be based upon a new rule of

constitutional law requiring retrospective application, must be based upon new scientific

evidence establishing actual innocence, or must assert relief from sentences which were

enhanced because of a previous conviction that has subsequently found to be illegal. Id. None

of these exceptions apply in this case. As the trial court noted, the scientific evidence which the

Appellant alleges is newly discovered was actually made available to the Appellant prior to the

entry of his guilty plea.

The Appellant argues on appeal that the trial court should have treated his pleading as a

petition for a writ of error coram nobis rather than a petition for post-conviction relief. 

Assuming the trial court should have reviewed the pleading as an error coram nobis petition, the

Appellant would nevertheless have been denied relief due to the untimeliness of the filing. A

petition for a writ of error coram nobis must be filed within one year after the judgment becomes

final in the trial court. State v. Mixon, 983 S.W.2d 661, 669-70 (Tenn. 1999). Furthermore,

contrary to the Appellant's suggestion, equitable tolling of the one year statute would not be

warranted in this case because, as noted above, the evidence at issue was not newly discovered

evidence. Appellant's claim that his attorney failed to inform him about the existence of this

evidence should have been pursued through his initial post-conviction petition which he

voluntarily withdrew.

For the reasons stated above, the judgment of the trial court is affirmed in accordance

with Rule 20, Rules of the Court of Criminal Appeals. 

____________________________________

ROBERT W. WEDEMEYER, JUDGE