### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs A

ugust 7, 2001 KARL HAMILTON, a.k.a. R. P REWITT v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Shelby County No. P21270 Carolyn Wade Blackett, Judge

No. W2000-02240-CCA-R3-PC - Filed September 14, 2001

Petitioner appea

ls the order of the

Shelby County Crimina

l Court dismissing his pe

tition for postconviction relief. Following an evidentiary hearing, the court held that the petition was time-barred by the statute of limitations. After a thorough review of the record, we conclude that the petition was filed timely, and reverse the decision of the post-conviction court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed

A LAN E. G LENN , J., delivered the opinion of the court, in which D AVID G. H AYES and J OE G. R ILEY , JJ., joined. Robert B. Gaia, Memphis, Tennessee, for the appellant, Karl Hamilton.

Paul G. Summe

rs, Attor ney General and Reporter; John H. B ledsoe, Assistant A ttorney Genera

l; William L. Gibbons, District Attorney General; and Stephanie Johnson, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION

In Ap ril 1996, the petitioner was convicted of burglary by a jury in the Shelby C ount y Criminal Court, and was sen tenced as a

career offender

to twelve years in the Tennessee Department of Correction. This c

ourt affirmed on

direct appeal,

and th e Tennessee Supreme Court denied p ermission to appeal. See State v. Karl Hami lton a.k.a. Randolp

h Pruitt, No. 02C 01-9611-CR

00390, 1997 WL 584303 (Tenn. Crim. App. Sept. 19, 1997), perm. to appeal denied (Tenn. Apr. 20, 1998).

On April 26, 1999, the petitioner filed a pro se petition for post-c onvicti on relief in t he Shelby County Criminal Court. The court dismissed the petition for failure to fi le within the statute of limitations. On appeal, this court reversed the dismissal order and remanded the case to determine whether the petition had been timely delivered to the prison authorities for mailing. S ee Karl Hamilton, a.k.a. Randolph Prewitt v. State , No. W1999-01793-CCA-R3-PC, 2000 WL 72043 (Tenn.-2-

Crim. App. Jan. 25, 2000) . Following a heari ng, the post-convi

c tion co urt again dismissed the petition as untimely, and it is that dismissa l which is the basis f

or this appeal.
ANALYSIS

Petitioner argues that his petition for post-conviction r

elief was wrongl

y dismissed becaus

e there was sufficient evide nce a t the hearing to sho w that his petition ha

d been timely filed

. As a general rule, the findin gs of fact of a trial court are conclusive on appeal unless the evidence preponderates against the judgment. Cooper v. State , 849 S.W.2d 744, 7 46 (Te nn. 1993). Accordingly, this court is bound to affirm the judgment unless the record indicates otherwise. Black
v. State , 794 S.W.2d 752, 755 (T enn. Crim. App. 1990). The burden of establishing that the evidence preponderates

against the trial court’s findings is on the petitioner. Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997).

The law controlling petitions for post-conviction relief is set out in the 1995 Post-Conviction Procedure Act. See Tenn. Code Ann. §§ 40-30-201 to -310. I t provides that, with certai n exceptions,

a petition for post-conviction relief must be filed within one year of the date of the final action of the highest state appellate court to which an appea

l is taken, or, if no

appeal is taken, w

ithin
one year of the date on which the judgment became final. Tenn. Code Ann. § 40-30-202(a) (1997). Rule 49(c) of the Ten

nessee Rule s of Criminal Procedure provides in pertinent part that: “If petitions for post-conviction relief or other papers are prepared by or on behalf of a pro se litigant incarcerated

in a correctional facility, filing shall be timely if the papers are de livered to the appropriate

individual at th e correctional facility within the time fixed for filing.” See Neely v. State , 34 S.W.3d 879, 880 (Tenn. Crim. App.), perm. to appeal denied (Tenn. 2000). Additionally, the version in effec

t, at the time

the pro se petition was filed, of Rule 28, Section 2(G), of theRules of the Supreme Court of Tennessee provided that: “[a] post-con victio n petition filed by a pro se petitioner who is incarcerated is filed when it is received by the appropri ate prison authorities for mailing.” See id.

Petitioner’s application for permission to appeal to the Tennessee Supreme Court was denied
on April 20, 1998, and he had one year fro m that date to file a petition for post-conviction relief. While th e pro se pet ition for post-conviction relief bears the petitioner’s signature as “Randolph Prewitt,” he did not date

it. However, the notary statement on the signature page of the petition bears the date April 13, 1999, apparently in the same handwriting as the signature of the notary. Likewise, the petitioner’s affidavit, setting out additional information , and a pparently filed with his petition for post-conviction relief, also was dated April 13, 1999, by the notary public. The first page of the petition bears the stamp of the Shelby County Criminal Court Clerk, with the handwritten signature of a deputy clerk a

nd the handwritte

n date Apri l 26, 1999. Thus, alth ough the petition ap

pears to have been notarized within the limitations period, it was not filed by the clerk until after the period had expired.

At the hearing held

on May 11, 2000, the petitioner identified his petition for post-conviction relief, as well as an envelope in which, apparently, h e had placed the petition for mailing to the-3-

criminal court clerk. He

said that he delivered both to the “mail prison authorities” at the institution where he was then housed but was not asked when he had done this. However, an employee from the mail room at the West Tennessee State Penitentiary testified that the envelope car rie d their outgoing mail stamp with the da te t hat “[l]ooks like April 15th [1999]. It’s kind of --.” The witness’s response was inte rrupted, and she

was not asked to co

mplete it. She also st

ated that it is the habit and routine o

f the mail room to stamp files on the day they are received for mailing. After considering the testimony presented, the post-conviction court held that the petition was not time

ly filed and dismissed it. Although the proof is sketchy, w e note that the ori

ginal pro se petition was executed before a notary public

on April 13, 1999, and

the interrupted s

tatement of the ma

il room clerk was t

hat it “[ l]ooks like” the institution received it on Ap

ril 15, 1999. Both of t

hese dates a

re within th e statutory period for the timely filing of a petition for post-conviction relief. At the conclusion of the hearing, the prose cutor c orrectly observed that the issue which this court remanded for determination
was whether the petition for post-conviction relief had been timely because it had been “delivered to the appropriate prison authority” for mailing or whether it was untimely because it had, instead, “been delivered to a fa

mily friend.” The only proof presented shows that the petition was delivered to the institu

tion’s ma il room to be sent to the Shelby County Criminal Court Clerk’s Office apparently

withi n the limit ations period. Thus, we conclude that the petition for post-conviction relief was timely filed.

The State has argued on appeal that the petitioner’s proof of timeliness was deficient beca use th e envelope, about w

hich the mail room c

lerk testified, w

as not made an exh

ibit to th e hearing

. However, since the onl y evidence in the record is that the

petitioner, appa

rently, made a time

ly delivery o f the petition “to appropriate prison authorities for mailing,” it would not appear to be pivotal to our consideration whether the e nvelope, itself, was made an exhibit. In this regard, we note additio nally that, at the h earing, the State

neither questione

d the mail room cler

k as to he r interpretation of the date nor argued that the delivery was not timely. Accordingly, the fact that the envelope was not made an exhibit does not affect our conclusion.
CONCLUSION

Based upon the foregoing authorities and reasoning, we conclude that the petition for po stconviction relief was timely because it was delivered to the institution’s mail room. Accordingly, we reverse the finding of the post-conviction court that the petition was untimely and remand this matter for further proceedings consistent with this opinion.

___________________________________ ALAN E. GLENN, JUDGE