### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE THOMAS J. MCKEE v. STATE OF TENNESSEE Direct Appeal from the Criminal Court for Knox County No. 69610 Richard R. Baumgartner, Judge

No. E2000-00008-CCA-R3-PC - Decided July 6, 2000

The defendant appeals the trial court’s dismissal of his petition for post-conviction relief. The trial court determined the petition was time-barred by Tennessee Code Annotated section 40-30- 202(a) (1997). Because the trial court erroneously determined that the one-year statute of limitations period began to run as of the conviction date of September 7, 1995, rather than when the Tennessee Supreme Court denied permission to appeal on December 28, 1998, we conclude that the post-conviction petition filed on December 9, 1999 was timely and reverse the judgment of the trial court

. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the trial court is REVERSED. W ITT , J., delivered the opinion of the court, in which H AYES , J., and O GLE , J., joined. Thomas J. McKee, Pro Se. Michael E. Mo o re, Solicitor General, R. Stephen Jobe, Assistant Attorney General, Nashville, Tennessee, Randall E. Nichols, District Attorney General, Knoxville, Tennessee, for the Appellee, State of Tennessee. OPINION

The petitioner, Thoma

s J. McKee, appe

als the Knox County Criminal Court’s dismissal of his petition for post-conviction relief. He argues, and the state agrees, that the

statute of limitations set fort

h in Tennessee Code Annotated section 40-30-202(a) was erroneously applied to his case. Because we concl ude tha t both parties are

correct, the jud

gment of the trial c

ourt is reversed, and the case is remanded to the trial court for further post-conviction procee dings. The trial court convicted the defendant of first degree murder on

September 7, 1995. He appealed his conviction to this court, which affirmed the conviction on April 28, 1998. See State v. Thomas J. McKee , No. 03 C01-9603-CR-00092 (Tenn. Crim. App., Knoxville, Apr. 28, 1998). The petitioner applied to the supreme court for permission to

appeal, but by order entered December 28, 1998, the supreme court denied the application.-2- The petitioner filed his post-conviction petition in the trial court on December 9, 1999. That court determin ed that the petition

was barred by the

statute of limitatio

ns set forth in Tennessee Code Annotated section 40-30-20 2(a) because

more than one year had elapsed between the September 7, 1995 date of the conviction and the December 9, 1999 filing of the petition for post-conviction relief. On appeal, the defendant challenges this action, arguing that Code section 40-30-202(a) provides for the o ne-year statute

of limitations to

run from the “date of the final action of the highest

state appellate court to which an appeal is taken or, if no appeal is taken, within one (1) year of the date on which the judgment beca

me final.” Tenn. Code Ann. § 40-30-202(a) (1997). The state agree

s that the defenda

nt is correct. Post-conviction petitions must be filed within one year of the date of the “final action of the highest

state appellate court to which an appeal is taken.” Id . In the present c ase, the highest state appellate court involved is our supreme court, and its final action was taken on December 28, 1998. Accordingly, the present petition, which was filed on December 9, 1999, was timely.

The order of the trial court is reversed , and the cause is remanded to the trial court for further post

-conviction proc

eedings.