# FILED July 3, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE AT JAC KSON
FLOYD L . DA

VIS, ) ) Petitioner, ) C. C. A. NO. 02C01-9704-CR-00134 ) vs. ) SHELBY COUNTY ) STA TE OF TENN ESSEE, ) No. P-17990 ) Respondent. )
O R D E R
This matter is before the Court upo n the state’s mot ion request ing that the judgment in the above-styled cause be af firmed pursuant to Rule 20, Rules of the Court of Criminal Appea ls. It appear s that the final j udgment in the pet itioner’s case was entered on April 21, 1995. Subsequently, on January 27, 1997, the p etitioner filed his petition for post -convic

tion relief. The trial cour t dismissed t he petition w ithout a hearin g u p o n a fi n d i n g t h a tt h e p e t i t i o n w a s b a r r e d b y t h e o n e - y e a r

s t a t u t e o f l i m i t a t i o n . We agree.
Pursuant to T.C.A . § 40-30-202(a), a petition er must petiti on for postconvicti on relief w ithin one year of the date of the final action of the hig hest state appellate court

to which an appeal is taken or, if no appeal is taken, w ithin one year of the date on whi ch the judgment became final. The Compi ler’s Not es to T.C.A. § 40- 30- 201 state that the 1 995 Post-Conv iction Act g overns al l petitions for post-conv iction relief filed after M ay 10, 1995. M oreover, t he Compiler’ s Notes indi cate that any person having g round for reli ef recogniz ed under this par t shall have at least one year from May 10, 1995, to file a petiti on or a motion to reopen a petiti on under this par t. Under T.C.A. § 40-30-202(b), a court does not have juri sdiction to consider a peti tion for post-conviction relief if it was filed outside the one-year statute of limitation unl ess (1) the claim in the petition is based upon a final ru ling of an appel late2

court establishing a constitutional right that was not recognized at the tim e of trial, if retrospecti ve application of that rig ht is req uired, (2) the claim in t he petition is based upon new sci entific evi dence establis hing that suc h petitioner i s actually innocent of the offense or offenses for whi ch the petitione r was convicted, or (3) the cl aim in the petition seeks

relief from a senten ce that was enhanced because of a previous convicti on and such conv iction in th e case in w hich the clai m is asserted was not a guilty plea with an agreed sentence, and the previous conviction has subseque ntly been held to be inv

alid. In the present case, the petiti oner filed his petition for post -convic tion relief on Januar

y 27, 1997. Accordingly , the petition i s gover ned by the 1995 P ostConviction Act, and the petition was filed ou tside the statute of limitation set forth in T.C.A. § 40-30-202(a). Moreover, the pet itioner has failed to show that any of his claims fall within one of the exception s set forth in T.C.A. § 40-30 -202(b).

It is, therefore, ORDEREDthat the state’ s motion to affirm the j udgment of the trial court under Rul e 20, Rules of the C ourt of Crimina l Appeals, is granted, and t he judgment of the tr ial court i s affirmed.

Enter, this t he ___ day of June, 1997.

_____________________________ DAVID G. HA

YES, JUDG E

_____________________________ JOE B. JONES, PRESIDING JUDGE

_____________________________ JOE G. RILEY , JUDGE