# FILED December 23, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE OCTOBER SESSION, 1997 TIMOTHY WELLS, ) C.C.A. NO. 03C01-9701- CR-00008 ) Appellant ) ) ) McMINN COUNTY VS. ) ) HON. MAYO L.MASHBURN STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Convi ction)

ON APPEA L FROM THE JUDGMENT OF THE CRIMINAL COURT OF McMINN COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : TIMOTHY W ELLS JOHN KNOX WALKUP Pro Se Attorney Generaland Reporter Carter C ount

y Work Camp Caller #1 PETER M. COUGHLAN Roan Mountain, TN 37687 Assistant Attorney General 425 5th Avenu e North Nashvill e, TN 37243 JERRY N. ESTES Distri ct Attor ney General Washington Avenue Athens, TN 37303
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE-2- 

# OPINION

The Petitioner, Timothy Wells, appeal s as of ri ght pursuant t o Rule 3 of the Tennessee Rules of Appellate Procedure from the trial co urt’s deni al of his petiti on for post-co nviction relief. The Petiti oner fil ed a petit ion for post-convi ction relief on June 11, 1996. On Jul y 8, 1996, t he trialcourt dis missed the petiti on without conducting an ev identiar y hearing. Although on d iffer ent grounds tha n relied upo n by the trial jud ge, we a ffirm the jud gmen t of the trial cou rt.

On August 11, 1993, the Petiti oner pleaded guilty to one co unt of aggravated burglary , five counts of burglary, one count of t heft over $1000, one count of theft

over $500, and one mi sdemean or co unt o f th eft under $500. He was senten ced as a Ran ge II, mu lti ple offend er to six years for

aggravated burglary, four year

s for each burglary conv iction , four years for t heft over $1000, two years for theft over $500, and el even months and twent y-nine days

for the theft under $500 convi ction. The sente nces were o rdere d to run conc urren tly with each other, but the aggrav ated burglar

y con viction and the five burg lary convicti ons were ordered to be s erved consecutively to several prior convict ions. The Petition er waiv ed his right to a ppea l.

On June 11, 1996, t he Petiti oner filed the pro se petiti on for post- convicti on relief which is t he subject of this appeal . In the petiti on, he argued that his trial counsel rendered ineffec tive assi stance duri ng the guil ty plea pr oceedings and thathis gu ilty pleas were n ot ente red kn owing ly or voluntar ily becaus e he did not understand the consequences of the pleas he was en tering . The trial court-3-

reviewed t he petiti on and reviewed t he audio-taped recording of the hearing on the guilty

pleas conducted o n August 11, 1993. The trial cour t dis missed the Petiti on without conducting an evi dentiary hearing, concl uding that the pet ition was based on “blatent lies and misrep resenta tions” that w ere witho ut merit. We affirm the judgment of the tri al cou rt not on this reas oning, but because the Petiti oner’s cl aims are ti me-barred.
Although the Petiti oner has argued th e merits of his pe tition in th is app eal, the State counter

s that thepetiti on was properly dismissed because it was t imebarred. The Petiti oner acknowledgesin his pet ition t hat it was filed beyond the one year stat ute of li mitations , butargues that it shoul d be governed by the prior Post-Convict ion Procedure Act that prov ided a three-yearstatute of l imitations. We disagree
. At the tim e the P etitione r’s con victions beca me fin al, the statute of limitations appl icable to post-convi ction proceedings was thr ee years. Tenn. Code Ann. § 40-3 0-102 (repe aled 1995). T he three-ye ar statute of li mitations was subs eque ntly shortened to one year by t he new Post-Convict ion Procedure Act, which too k eff ect on M ay 10, 19 95. See Tenn. Code Ann. § 40-30-201 et seq. (Supp. 1996). At the time the new Act took eff

ect, the p revious t hree-year statute of limitations had not expired for the P etitioner.

Of course , thenew Po st- Convicti on Procedure Act governs this petiti on and all petitions filed after May 10, 199 5. See Tenn. Code Ann. § 40-30-201 et seq. (Supp. 1996). This Act provides, in perti nent part, that “not withstandi ng any otherprovisi on of this part to t he contrary , an y person hav ing ground for relief recognized under this part shallhave at least one (1) year f rom May 10, 1995, to file a petition or a motion to reo pen a petit ion under thi s part.” Compiler’s Notes-4-

to Ten n. Cod e Ann. § 40-30-2 01 (Su pp. 199 6) (referring to Acts 1995, ch. 207, § 3). Because t he previousthree-year statute of limitations had not expired for the Petitioner a t the time th e new A ct to ok effe ct, his right to p etition for po stconvicti on relief surv ived under t he new Act. State v. Carter , ___ S.W.2d ___ (Tenn. 19 97).

As a result, the Petit ioner had one year

from the effective date of the new Act, May 10 , 1995, to file fo r post-co nviction relief. See Com pil er’s Notes to Tenn. Code Ann. § 4 0-30-20 1 (Sup p. 1996 ) (referring to Acts 19 95, ch. 20 7, § 3); Tenn. Code A nn. § 40-30-2 02(a) (Supp . 1996). H e filed his pe tition for postconvicti on relief

on June 1 1, 1 996, about one month af ter the ex pirati on of the one-year

period. The Pet itione r has not all eged that he f its wit hin one of t he enumerated excepti on s to the on e-year sta tute of limitatio ns. See Tenn. Code Ann. §§ 40-30-202(b) and -202(c) (S upp. 1996 ). Accordingly, we conclude that the petiti on is barred by the statute of limitations. Fu rthermore, the trial court may s umm arily dismiss a petition that was not fi led withi n the appli cable stat ute of limitations. See Tenn. C ode Ann . § 40-30-206 (b).

For the reasons set

forth i n the discussi on above, we concl ude t hat the petiti on for

post-convi ction rel iefwas properly dismissed. The judgment of the trialcourt is

therefor

e affirmed.

____________________________________

DAVID H. WELLES , JUD GE-5-

CONCUR:

____________________________ GARY R. WADE, JUDGE

____________________________ JERRY L . SMI TH, J UDGE