### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
DURROCCUS D. HARRIS v. STATE OF TENNESSEE
Direct Appeal from the Circuit Court for Rutherford County

No. F-43870 James K. Clayton, Jr., Judge

No. M1999-02171-CCA-R3-PC - Decided June 30, 2000

The petitioner, who ple

d guilty to tw

o counts of possess

ion of cocaine ov

er .5 grams, fil

ed for postconviction relief on the grounds that the plea agreement was breached by the Department of Correction 's failure to place him in a boot camp program. The trial court summarily dismissed the petition . On appeal, we affirm th e trial cour t's dismissal of the petition where (1) the petition was filed o uts ide the one -year sta tut e of l imi tat ion s, a nd ( 2) t he p lea agre eme nt i ncl ude d on ly a "recommendation" for boot camp that was not binding on the Department of Correction. Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

. W ADE , P.J., delivered the opinion of the court, in which R ILEY and O GLE , JJ., joined.

William B. Bullock and John H. Baker III (on appeal), Mur

freesboro, Ten

nessee, for the a

ppellant, Durroccus D. Harris.

Paul G. Sum mers, At torney General & Reporter, Clinton J. Morgan, Assistant Attorney General, and Jennings H. Jones, Assistant District Attorney, for the appellee, State of Tennessee.

OPINION

The petitioner, Durroccus D. Harris, appeals the trial court's dismissal of his petition for post-conviction r

elief. In this app

eal of right , the single issue presented for review is whether the petition was ba

rred by the statut

e of limitations. Because the petition was filed more than one year after the

judgment of convic

tion, it was proper

ly dismissed by the tr

ial court.

On March 19, 1998, the defendant entered pleas of guilt to two counts of possession of cocaine over .5 grams. In accordance with the plea agreement, the trial court imposed a Range I sentence of nine years with the recommendatio

n to the Department of Correction that he be admitted into a b oo t camp program. The petitioner remained in jail until February 1, 1999, when he was committed to the Classification Center at the Department

of Correction's Middle Tennessee Reception Center. Ultimately, the petitioner was denied admission into the boot camp program.

In his petition for post

-conviction relie

f, which was f

iled S eptember 1, 1999, the-2-

petitioner contended that his guilty pleas were neither know ing ly nor voluntarily entered. The petitioner specifically

alleged that there had been a breach of the plea agreement. In its answer, the state denied the petitioner's allegations and contended that the statute of limitatio ns precluded post

conviction relief. The trial court denied the petition without an evidentiary hearing because the judgmentmerely provided that boot camp had been recommended

and because, as a matter of law, the Department

of Correction was not bound by the recommendation. In a motion to reconsider, the petitioner alleged that he believed that the Department of Correction was bound by the recommendation of the trial court and that if the statute of limitations had expired, he w a s nevertheless

entitled to relief

because he had n

o knowledge of the

breach of the ple

a agreement unti

l
more than one year after the entry of the judgment of

conviction. See Burford v. State , 845 S.W.2d 204 (Tenn. 1992). In a supple mental motion, the pe

titioner included t

he eligibility crite

ria for boot camp which, he complains, "shows that he should have been cons ide red for Boot Camp Program placement based

upon the recommen

dation of the conv

icting judge."

The trial cou rt denied relief and dismissed the petition on September 27, 1999. Thirty-five

days later, on November 1, 1999, the petitioner filed a notice of appeal. T he petitio ner's motion to reconsider was filed on the same date and, as such, could not have tolled the time for filing the notice of appeal. See also Tenn. R. App. P. 4(b), (c) (enumera t ing timely motions which terminate running of time for filing notice of appeal). Nevertheless, the timely filing of a notice of appeal may be waiv

ed by this cou

rt in a post-conviction

case "in the inte

rest of justice." Ten

n. R. App. P. 4(a); State v. Scales , 767 S.W.2d 157 (Tenn. 1989).

While this court may entertain the appeal, the petitioner is still no

t entitled to

relief. Because the judgment of conviction was entered on March 19, 1998, the statute of limitations had expiredwhen the petitioner filed his claim for post-convictionrelief on September 1, 1999. Tenn. Code Ann. § 40-30-202(a), (b). The applicable statute specifically provides that courts do not have jurisdiction to consider a petition filed after one year, absent certain circumstances, none of which appear in this case. Id. ; cf. Sands v. State , 903 S.W.2d 297 (Tenn. 1995) (holding that under prior post-conviction act, petition was time-barred where statute of limitations had run and claim for relief
was not a "later arising ground"); Burford v. State , 845 S.W.2d 204 (Tenn. 1992) (holding that under prior post-conviction a

ct, petition was not

barred by statute

of limit ations when earlier enhancing convictions were not declared void u ntil after statute had run). In consequence, the petition was subject to a summary dismissal. See Carothers v. State , 980 S.W.2d 215 (Tenn. C rim. App. 1997). Finally, a "recommendation" is that and nothing more. The trial court di d recommen d bootcamp for the peti

tioner, but entry i

nto the boot camp pr

ogram is subject to admi nistrative discretion, as indicated in the exhibit filed by the petitioner. Thus, even if the statute of limitations didnot bar the petition, that the petitioner was denied entry into the boot c

amp program would

not, standing alone, invalidate the pleas of guilt. Had the petitioner been e

rroneously

denied admission into the boot camp

program, any re

course availabl

e would have bee

n appropriately

pursued through the Administrative Procedures Act. See Tenn. Code Ann. §§ 4-5-101 to -324.

Accordingly, the judgment is affirmed.-3-