# FILED
May 6, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE DECEMBER 1998 SESSION
JAMES GORDON COONS, I II, ) ) Appellant, ) No. 01C01-9801-CR-00014

) ) Davidson County v. ) ) Honorable Ann Lacy Johns, J udge ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. )

CONCURRING OPINION
I concur with the major ity opinion. I note, thoug h, that the case upon which the opinion reli es to conclude that the statute of l imitations may not be rais ed for the first time on appeal was decided under the former post-conv iction procedure act. I am hesitant to say that such a total bar exists under the 1995 Post-Convictio n Procedure Act, given the affirmative duty of the tri al court to assess the timel iness of the petition regardless of whether it is raised by the state as a defense and the apparent jurisdictional effect of the running of the statute.

Pursuant to Tenn. Code Ann. § 40-30- 206(a), the trial court must examine the petition and the existing court records. According to 206(b), “[i]f it plainly appears from the face of the petition, an y annexed exhibits or the prior proceedings in the case that the petition was not fil ed . . . within the time s et forth in the statute of limitati ons . . . the judge shall enter an or der dismissing the petition.” These provisions should put a petitioner on notice that the i ssue of the statute of limitations i s always present i n postconviction cases.2 Also, it is signific

ant to note that Tenn. Code Ann. § 40-30- 202(a) provides the following relative to the significance of the running of the statute of limitations:

Time is of the essence of the right t o file a pet ition for postc onviction relief or a motion to reopen established by this chapter, an d t he one-year limitations period is an element of the right to file such an action and is a condition upon i t s exercise. Except as specifically provided in subsections (b ) and (c), the right to file a petition for post-conviction relief or a motion to reopen under this chapter shall be extinguished upon the expiration of the limita tions period. Subsection (b) express ly states that no court s hall have jurisdict ion to consider an untimely petition absent thr ee exceptions that do not apply in the present case. Under these circumstances, I believe that the running of the statut e of limitations could be addressed for the first time on appeal if it were plainly shown from the face of the record.
On the other hand, if the record does not plainly show th at the statute of limitations has run, I bel ieve that the state, as the maj ority opinion concludes , should be barred from raising the i ssue for the first time on appeal. If the issue is not raised i n the trial cou rt, the pe titioner has no op portunit y to resolve any questi ons of f act. Thu s, we should not try to resolve such a question from an unclear record. Such is the case before us.

In its brief, the state notes tha t the petition “appears to be t ime barred.” It states that the trial cour t entered its judgment of conv iction on April 25, 1996, and that the petitioner filed his petition on April 28, 1997. How ever, although the recor d reflects that the petition was stamped filed in the trial court’ s office on April 28, 1997, the petitioner’s certificate of service of an exact copy upon the district attorney general reflects that the copy w as delivered to the pri son post office for mailing on Apri l 24, 1997. For incarcerated post -conviction petitioner

s, a pro se petition is deemed filed when it is deliver

ed to or received by the appropriate prison official

. See Tenn. R. Cri m.3

P. 49(c); Tenn. Sup. Ct. R. 28,§ 2(G). Thus, the petition i ndicates that it was fil ed within one year of the entr y of the judgment of convicti on.
Moreover, pursuant to Tenn. Code Ann. § 40-30-202(a), the pe tition must be filed within one yea r of the date th at the trial court’s ju dgment of conv iction beca me final. Ordinarily, a judgment becomes final thirty days after it is entered, meaning that the petitioner in the present case would have had unti l May 25, 1997, to file his petition. I note that in State v. Hall , 983 S.W.2d 710, 71 1 (Tenn. Crim. App. 1998), this court held that when a plea is ent ered pursuant to a plea agree ment and the defendant waives his rig ht to appeal, the judgment becomes final on the date of the entry of the judgment of conviction, not thirty days later.In this respect, the rec ord before us reflects that the defendant waiv ed his right to “tri al and appellate review of the conviction.” How

ever, nothing in the r

ecord indicates whether the waiver inclu ded sentenc ing or wheth er the pet itioner k nowingly int ended to waive an app eal comp letely.

The ultimate point is that the record does not plainly s how that the petition was filed untimely. Thus,we are to treat the petition as timely filed.

___________________________ Joseph M. Tipto n, Judge