# FILED April 22, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON FEBRUARY

1998 SESSION

LARRY PITTMAN, ) ) C.C.A. NO. 02C 01-9704-CC-00138 Appellant, ) ) MADISON COUNTY VS. ) ) HON. FRANKLIN MURCHISON, STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-conviction)

FOR THE APPE LLANT: FOR THE APPELLEE:
GEORGE GOOGE JOHN KNOX WALKUP Public Defender Attorney General & Repor ter DANIEL J. TA

YLOR KENNETH W. RUCKER Asst. Public Defender Asst. Attorney General 227 West Baltimore 425 Fifth Ave., North Jackson, TN 38301 Cordell Hull Bldg., Second Fl. Nashville, TN 37243-0493 JERRY WOODALL District Attorney General AL EARLS Asst. District Attor

ney General P.O. Box 2825 Jackson, TN 38301

OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge1 State v. Larry Pi ttman , No. 20, Madi son County (Tenn. Crim. App. fi led April 23, 1986, at Jack son)(p erm . to app. denied July 28, 1986).

2 Larry Pittm an v. State , No. 21, Madi son County (Tenn. Crim. App. fi led May 18, 1988, at Jack son)(p erm . to app. denied Aug. 29, 1988).

3 See Arnold C arter v. State , No. 03C01-9509-CC-00270, Monroe County (Tenn. Crim. App. fi led July 11, 1996, at Knoxville). 2 

### O P I N I O N

A Madison Cou nty jury convicted the petitioner of armed robbery in May 1984. The petitioner appealed, and this Court affirmed his conv iction on April 23, 1986. 1 He then applied for permission to appeal to the Supreme Court, but hi s application was denied on July 2 8, 1986. The petitioner then filed a po st-conviction petiti on alleging ineffe ctive assistance of counsel. His petition was denied and this Cour t affirmed the denial on May 18, 1988. 2 The petitioner then filed a second petition for post-conviction reliefon May 9, 1996. In this petition, he alleges that the “moral certainty” j ury instruction is not constitutionally

valid.
First, we are unsure as to w hy the trial court did not dismiss this petition for being filed outside the statute of limit ations. When the petition was argued, no on e questioned its timeliness. The State’s brief suggests that the trial court was und er the impression t hat the Po st-Conviction Proce dure Act of 1995 allowed all petitioners an additional year in which to file their petition regardl ess of whether the origi nal three year statute of limitations had expired. While a panel of this Court did so hold in at l east one case, 3 this issuehas now been decided by the Supreme Court . In Carter v. State , 952 S.W.2 d 417 (Tenn. 1997), the Court determined that th e new act does not provid e a n additional year to those petitioners whose statute of limitations had expired under the old act. Thus, in thi s case, the t rial court should not ha

ve entertai ned this peti tion. Th e defendant’s convicti on became final in 1986. By filing

this second petition in 1996, he is3

clearlyoutside t he statu te of lim itations . This pet ition sho uld have been dismissed on this ground.
Second, even if the petitio n h ad been filed on time, the petitioner is not entitled to any relief. In addressing the veryissue raisedby this petitioner, th e Supreme Court stated that the phrase “moral certainty” in a jur y instruction is “permissible if the context in which the instruc tion is given ‘ clearly co nvey[s] the jury ’s responsibility

to decide the verdict based on the facts and the law.’” Carter v. State , 958 S.W.2d 620, 626 (Tenn. 1997) quoting State v. Nichols , 877 S. W.2d 72 2, 734 (Tenn. 1994). The jury instruction used in this case satisfied the standard, and thus, the i ssue raised by this petition is without mer

it. The dismissal of the petiti on is affirmed.

______________________________ JOHN H. PEAY, Judge CONCUR:

______________________________ JOSEPH B. JONES, Judge

______________________________ THOMAS T. WOODALL, Judge