# FILED
October 6, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JULY 1998 SESSION
CLAUDE E. MOSLEY, JR. , * C.C.A. # 03C01-9710-CR-00473

Appellant, * SULLIVAN CO UNTY VS. * Hon. R. Jerry Beck, Ju dge STATE OF TENNESSEE, * (Post-Conviction)

Appellee. *

For Appellant : For Appellee : Claude E. Mosley, Pro Se John Knox Walkup TDOC #249824 Attorney General & Repor ter HCCF P.O. Box 549 Ellen H. Pollack Whiteville, TN 38075 Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243 Joseph Eugene Perrin Assistant District A

ttorney General 140 Blountville Bypass P.O. Box 526 Blountville, TN 37617-0526

OPINION FILED:_____________________

REVERSED AND REMAND ED
GARY R. WADE, PRESIDING JUDGE2 OPINION The petitioner, Claude E. Mosley, Jr., appeals from the trial court's denial of post-conviction relief. The issue presented for r eview is whether

the trial court erred by ruli ng that the petition was barred by the statute of li mitations and by dismissing the petition without an evidentiar y hearing or the appointment of counsel. We reverse the judgment of the trial court an d remand for f urther proceed ings consistent with this opinion.

On March 19, 1996, the petitione r pled guilty to theft un der $10,000.00. Tenn. Code Ann. §§ 39-14 -103, -105(3). At the same time, he also pled guilty to vi olating a habitual traffic offender or der. Tenn. Code Ann. § 55-10- 616. For the latter conv iction, the trial court

imposed a Range I, one-ye ar sentence. In a probation hearing, ori ginally scheduled for M ay 3 but held on June 7, the tr ial court denied probation and sentenc ed the defendant to the Department of Correction. On June 21, 1996, the judgment form was entered upon the court minutes.
The petitioner did not appeal the j udgment of the trial court. H e mailed this petition for post-conv iction relief on June 3, 1997, and it was filed two day s later. He challenged the habitual t raffic offender conviction on the basi s that he was illegally charged, that he received ineffective assistance of counsel, and that his guilty plea was neither knowingly nor voluntarily entered. In defense, the state contended that the defendant's post-conv iction petition was bar

red by the one-year statute of limitations, citi ng March 19 as the date judg ment was entered. See Tenn. Code Ann. § 40-30-202(a). Pur suant to Tenn. Code Ann. § 40-30-206, the trial court dismissed the petition with prejudice, listing the following grounds:3 1. The Petitioner's date of conv iction was March 19, 1996. 2. No appeal was taken from thi s conviction. 3. The Petitioner filed his peti tion for relief on June 5, 1997. This petition was fil ed too late. T.C.A. Section 40- 30-202.

The Post-Conviction Proc edure Act of 1995 provides that the petitioner "must petition for post-convi ction relief under this par t within one (1) y

ear of the date of the final action of the highest state app ellate court to which an appeal is taken or, if no appeal is taken, withi n one (1) year of the date on w hich the judgement became final." Tenn. Code Ann. § 40-30-202( a). As a general rule,the judgment becomes final thirty day s after its entry by the clerk. State v. Pendergrass , 937 S.W.2d 834, 837 (Tenn. 1996); Tenn. R. App. P. 4.

Here, there was no appeal or motion for new trial. The final judgment, which was entered upon the court minutes on June 21, 1996, became final July 21, 1996. In consequence, the petiti oner had until July 21, 1997, to file his petition for post-conviction reli ef. Tenn. Code Ann. § 40-30-202(a). The petition was filed within the limitations

period.
Accordingly, the j udgment of the trial court is reversed. We remand this cause for appointment of counsel, an opportunity to amend the petit ion for postconviction relief, and an e videntiary hearing

.

__________________________________ Gary R. Wad e, Presiding Judge4 CONCUR:

______________________________ Joseph M. Tipto n, Judge

______________________________ David H. Wel les, Judge