FILED

December 23, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

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-Conviction)

ON APPEAL FROM THE JUDGMENT OF THE

CRIMINAL COURT OF McMINN COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

TIMOTHY WELLS JOHN KNOX WALKUP

Pro Se Attorney General and Reporter

Carter County Work Camp

Caller #1 PETER M. COUGHLAN

Roan Mountain, TN 37687 Assistant Attorney General

425 5th Avenue North

Nashville, TN 37243

JERRY N. ESTES

District Attorney General

Washington Avenue

Athens, TN 37303

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
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OPINION

The Petitioner, Timothy Wells, appeals as of right pursuant to Rule 3 of the

Tennessee Rules of Appellate Procedure from the trial court’s denial of his

petition for post-conviction relief. The Petitioner filed a petition for post-conviction

relief on June 11, 1996. On July 8, 1996, the trial court dismissed the petition

without conducting an evidentiary hearing. Although on different grounds than

relied upon by the trial judge, we affirm the judgment of the trial court.

On August 11, 1993, the Petitioner pleaded guilty to one count of

aggravated burglary, five counts of burglary, one count of theft over $1000, one

count of theft over $500, and one misdemeanor count of theft under $500. He

was sentenced as a Range II, multiple offender to six years for aggravated

burglary, four years for each burglary conviction, four years for theft over $1000,

two years for theft over $500, and eleven months and twenty-nine days for the

theft under $500 conviction. The sentences were ordered to run concurrently

with each other, but the aggravated burglary conviction and the five burglary

convictions were ordered to be served consecutively to several prior convictions.

The Petitioner waived his right to appeal.

On June 11, 1996, the Petitioner filed the pro se petition for post-conviction

relief which is the subject of this appeal. In the petition, he argued that his trial

counsel rendered ineffective assistance during the guilty plea proceedings and

that his guilty pleas were not entered knowingly or voluntarily because he did not

understand the consequences of the pleas he was entering. The trial court
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reviewed the petition and reviewed the audio-taped recording of the hearing on

the guilty pleas conducted on August 11, 1993. The trial court dismissed the

Petition without conducting an evidentiary hearing, concluding that the petition

was based on “blatent lies and misrepresentations” that were without merit. We

affirm the judgment of the trial court not on this reasoning, but because the

Petitioner’s claims are time-barred.

Although the Petitioner has argued the merits of his petition in this appeal,

the State counters that the petition was properly dismissed because it was timebarred. The Petitioner acknowledges in his petition that it was filed beyond the

one year statute of limitations, but argues that it should be governed by the prior

Post-Conviction Procedure Act that provided a three-year statute of limitations.

We disagree. At the tim e the Petitioner’s convictions became final, the statute

of limitations applicable to post-conviction proceedings was three years. Tenn.

Code Ann. § 40-30-102 (repealed 1995). The three-year statute of limitations

was subsequently shortened to one year by the new Post-Conviction Procedure

Act, which took effect on May 10, 1995. See Tenn. Code Ann. § 40-30-201 et

seq. (Supp. 1996). At the time the new Act took effect, the previous three-year

statute of limitations had not expired for the Petitioner.

Of course, the new Post-Conviction Procedure Act governs this petition

and all petitions filed after May 10, 1995. See Tenn. Code Ann. § 40-30-201 et

seq. (Supp. 1996). This Act provides, in pertinent part, that “notwithstanding any

other provision of this part to the contrary, any person having ground for relief

recognized under this part shall have at least one (1) year from May 10, 1995, to

file a petition or a motion to reopen a petition under this part.” Compiler’s Notes
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to Tenn. Code Ann. § 40-30-201 (Supp. 1996) (referring to Acts 1995, ch. 207,

§ 3). Because the previous three-year statute of limitations had not expired for

the Petitioner at the time the new Act took effect, his right to petition for postconviction relief survived under the new Act. State v. Carter, ___ S.W.2d ___

(Tenn. 1997).

As a result, the Petitioner had one year from the effective date of the new

Act, May 10, 1995, to file for post-conviction relief. See Compiler’s Notes to

Tenn. Code Ann. § 40-30-201 (Supp. 1996) (referring to Acts 1995, ch. 207, § 3);

Tenn. Code Ann. § 40-30-202(a) (Supp. 1996). He filed his petition for postconviction relief on June 11, 1996, about one month after the expiration of the

one-year period. The Petitioner has not alleged that he fits within one of the

enumerated exceptions to the one-year statute of limitations. See Tenn. Code

Ann. §§ 40-30-202(b) and -202(c) (Supp. 1996). Accordingly, we conclude that

the petition is barred by the statute of limitations. Furthermore, the trial court may

summarily dismiss a petition that was not filed within the applicable statute of

limitations. See Tenn. Code Ann. § 40-30-206(b).

For the reasons set forth in the discussion above, we conclude that the

petition for post-conviction relief was properly dismissed. The judgment of the

trial court is therefore affirmed.

____________________________________

DAVID H. WELLES, JUDGE
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CONCUR:

____________________________

GARY R. WADE, JUDGE

____________________________

JERRY L. SMITH, JUDGE