# FILED December 8, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE NOVEMBER 1998 SESSION JOHN McDONALD, ) ) NO. 01C01-9711-CR-00529 Appellant, ) ) DAVIDSON COUNTY VS. ) ) HON. J. RAND

ALL WYA

TT, JR., STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)
FOR THE APPELLANT : JOHN McDONA LD, Pro Se #125039 P.O. Box 5000 Mountain City, TN 37683- 5000 FOR THE APPEL LEE :

JOHN KNOX WALKUP Attorney General and Repor ter TODD R. KELLEY Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 VICTOR S. JOHNSON III District Attorney General KATY NOVA

K MILLER Assistant

District Attorney

General 222 - 2nd Avenue North Washington Square, Suite 500 Nashville, TN 37201-1649

OPINION FI LED:
AFFIRMED JOE G. RILEY, JUDGE2 OPINION
Petitioner

ap peals the dismissal of his motion to re-open petition for postconviction relief. He claims tha t th e 1987 indictment for aggrav ated rape and aggravatedsexual battery under which he was

convicted failed to ves t jurisdiction in the trial court as per State v. Hill , 954 S.W .2d 725 (Tenn . 1997). Afte r 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 agg ravated rape and aggr avated s exual battery in 1987. A jury convi cted him of two counts of aggr avated sexual battery, and the judgments became final in June1990. Petitioner filed a petit ion for post-conviction r elief in April 1997, which was dismissed by the trial court on July 21, 1997. O n Augu st 13, 1997, he filed a motion to re-open the petition. This motion, li kewise, was dismissed. This appeal followed. REC ORD ON AP PEAL
It is the appellant’s duty to prepare a record which con veys a fair and accurate account ofwhat 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 petiti oner failed to include a copy of the indictment in the record. W e are, therefore , u nable to provide appella te review.

STATUTE OF LIMITATIONS3 Petitione rhas yet another procedural pr oblem. Tenn. Code Ann. § 40-30- 102 (repealed 1995) allowe d petitioners three year s from the date of final action of the highest state appellate court in w hich to file for

post-conviction rel ief. The PostConviction Procedure Act of 1995 did not grant petitioners s eeking post-convict ion reliefan additional year for filin g petitions that were already barr

ed by the statute of limitationsprior to May 10, 1995. State v. Carter , 952 S.W.2d 417, 420 (Tenn. 1997). In the case under rev iew, thi s 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 19 93. The 1995 Act does not grant

petitioner a repriev

e from this limitation. Furthermore, none of the exceptionsto the statute of limitations apply . See Tenn. Code Ann. § 40-30-202(b). Nevertheless, assuming petitioner’s c laim was not time-barr

ed, it would still be without merit. Petiti oner failed to allege an y gr ounds that would entitle hi m to have the original petition for post-conviction rel ief re-opened asrequired by Tenn. Code Ann. § 40-30-217(a). STATE V. HILL
Petitioner

challenges the vali dity of his 1987 indic tment. Without a valid indictment, there can be no jurisdiction and no pr osecution. Dykes v. Compton , __ S.W.2d __, __ (T enn. 199 8). However, we conc lude the alleged languag e in the indictment was sufficient. A s derived from the trial court’s order, the indictment presumably reads i n part: “Countone . . . defendant ‘unlawfully, and feloniously did commit the offense of aggravated sexual battery by

engaging in unlaw

ful 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 ‘w ith force a nd arms . . . unlawfully, and feloniously did engage in sexual penetration, to w it, anal intercourse, of [the victim], a child less than 13 years of age. . .’” A review of this lang uage convinces us that t he indictment met all constitutional4

requirements

as delineated in Hill , 954 S.W.2d at 726-27. Th erefore, petitioner’s claim is without merit. OTHER ISSUES On appeal the petitioner raise s other issues; to wit: the validity of the indictment

base d upon non- Hill issues, improper sentenci ng and the denial of exculpatoryevide nce. These issues were not raised in the trial court and are waived. See Butler v. State , 789 S.W.2d 898, 90 2 (Tenn. 1990). CONCLUSION
Based upon the foregoing, the trial court’s dismissal of peti tioner’s motion to re-open petition for post-conviction relief is AFFIRMED .

____________________________ JOE G. RILEY, JUDGE CONCUR:

____________________________ PAUL G. SUMM ERS, JUDGE

____________________________ L. T. LAFFER

TY, SENIOR JUDGE