FILED

December 8, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

NOVEMBER 1998 SESSION

JOHN McDONALD, )

) NO. 01C01-9711-CR-00529

Appellant, )

) DAVIDSON COUNTY

VS. )

) HON. J. RANDALL WYATT, JR.,

STATE OF TENNESSEE, ) JUDGE

)

Appellee. ) (Post-Conviction)

FOR THE APPELLANT:

JOHN McDONALD, Pro Se

#125039

P.O. Box 5000

Mountain City, TN 37683-5000

FOR THE APPELLEE:

JOHN KNOX WALKUP

Attorney General and Reporter

TODD R. KELLEY

Assistant Attorney General

Cordell Hull Building, 2nd Floor

425 Fifth Avenue North

Nashville, TN 37243-0493

VICTOR S. JOHNSON III

District Attorney General

KATY NOVAK MILLER

Assistant District Attorney General

222 - 2nd Avenue North

Washington Square, Suite 500

Nashville, TN 37201-1649

OPINION FILED: 

AFFIRMED

JOE G. RILEY,

JUDGE
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OPINION

Petitioner appeals the dismissal of his motion to re-open petition for postconviction relief. He claims that the 1987 indictment for aggravated rape and

aggravated sexual battery under which he was convicted failed to vest jurisdiction

in the trial court as per State v. Hill, 954 S.W.2d 725 (Tenn. 1997). After a thorough

review of the record provided, we find this claim to be without merit and AFFIRM the

decision of the trial court.

PROCEDURAL HISTORY

Petitioner was indicted for aggravated rape and aggravated sexual battery

in 1987. A jury convicted him of two counts of aggravated sexual battery, and the

judgments became final in June 1990. Petitioner filed a petition for post-conviction

relief in April 1997, which was dismissed by the trial court on July 21, 1997. On

August 13, 1997, he filed a motion to re-open the petition. This motion, likewise,

was dismissed. This appeal followed.

RECORD ON APPEAL

It is the appellant’s duty to prepare a record which conveys a fair and

accurate account of what transpired with respect to the issues which form the basis

of the appeal in order to allow for a meaningful appellate review. Tenn. R. App. P.

24; State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). This appeal is

essentially based upon sufficiency of the indictment, yet petitioner failed to include

a copy of the indictment in the record. We are, therefore, unable to provide

appellate review.

STATUTE OF LIMITATIONS
3

Petitioner has yet another procedural problem. Tenn. Code Ann. § 40-30-

102 (repealed 1995) allowed petitioners three years from the date of final action of

the highest state appellate court in which to file for post-conviction relief. The PostConviction Procedure Act of 1995 did not grant petitioners seeking post-conviction

relief an additional year for filing petitions that were already barred by the statute of

limitations prior to May 10, 1995. State v. Carter, 952 S.W.2d 417, 420 (Tenn.

1997). 

In the case under review, this Court affirmed petitioner’s convictions and

sentences on March 1, 1990. The Supreme Court denied permission to appeal on

June 4, 1990. Thus, his petition was time-barred as of June 1993. The 1995 Act

does not grant petitioner a reprieve from this limitation. Furthermore, none of the

exceptions to the statute of limitations apply. See Tenn. Code Ann. § 40-30-202(b).

Nevertheless, assuming petitioner’s claim was not time-barred, it would still

be without merit. Petitioner failed to allege any grounds that would entitle him to

have the original petition for post-conviction relief re-opened as required by Tenn.

Code Ann. § 40-30-217(a).

STATE V. HILL

Petitioner challenges the validity of his 1987 indictment. Without a valid

indictment, there can be no jurisdiction and no prosecution. Dykes v. Compton, __

S.W.2d __, __ (Tenn. 1998). However, we conclude the alleged language in the

indictment was sufficient.

As derived from the trial court’s order, the indictment presumably reads in

part:

“Count one . . . defendant ‘unlawfully, and feloniously did commit the

offense of aggravated sexual battery by engaging in unlawful sexual

contact to wit: touching of the genital area . . . [of the victim] . . . and

the said [victim] was a child less than (13) thirteen years of age. . .’”

 “Count two . . . defendant ‘with force and arms . . . unlawfully, and

feloniously did engage in sexual penetration, to wit, anal intercourse,

of [the victim], a child less than 13 years of age. . .’”

A review of this language convinces us that the indictment met all constitutional
4

requirements as delineated in Hill, 954 S.W.2d at 726-27. Therefore, petitioner’s

claim is without merit. 

OTHER ISSUES

On appeal the petitioner raises other issues; to wit: the validity of the

indictment based upon non-Hill issues, improper sentencing and the denial of

exculpatory evidence. These issues were not raised in the trial court and are

waived. See Butler v. State, 789 S.W.2d 898, 902 (Tenn. 1990).

CONCLUSION

Based upon the foregoing, the trial court’s dismissal of petitioner’s motion to

re-open petition for post-conviction relief is AFFIRMED.

____________________________

JOE G. RILEY, JUDGE

CONCUR:

____________________________

PAUL G. SUMMERS, JUDGE

____________________________

L. T. LAFFERTY, SENIOR JUDGE