FILED

September 09, 1997

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

JUNE SESSION, 1996

JERRY DORSEY, )

) C.C.A. NO. 02C01-9508-CR-00218

Appellant, )

) SHELBY COUNTY

VS. )

) HON. W. FRED AXLEY

STATE OF TENNESSEE, ) JUDGE

)

Appellee. ) (Post-Conviction Relief)

FOR THE APPELLANT FOR THE APPELLEE

CHRISTOPHER L. NEARN CHARLES W. BURSON

100 North Main Building Attorney General and Reporter

Suite 3400

Memphis, TN 38103 DEBORAH A. TULLIS

Assistant Attorney General

450 James Robertson Parkway

Nashville, TN 37243

JOHN W. PIEROTTI

District Attorney General

EDGAR PETERSON

Assistant District Attorney

201 Poplar Avenue

Memphis, TN 38103

OPINION FILED ____________________

AFFIRMED IN PART; REMANDED IN PART

JERRY L. SMITH, JUDGE
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OPINION

Appellant Jerry Dorsey appeals from the dismissal of his third petition for postconviction relief. On January 22, 1988 Appellant pled guilty to aggravated sexual

battery, aggravated assault, and burglary. On February 21, 1995, the postconviction court dismissed Appellant’s third petition for post-conviction relief after

addressing the petition on its merits. On November 26, 1996, this Court ordered

Appellant and the State to file supplemental briefs addressing whether Appellant’s

third petition for post-conviction relief was outside of the statute of limitations found

in Tennessee Code Annotated § 40-30-102 (1990) (Repealed). Appellant claims

that although his third petition is time-barred, this Court should address the claims

raised in his third petition because his case remains open due to lack of notice of the

dismissal of his first petition for post-conviction relief. The issue for review before

this Court is whether Appellant’s third petition for post-conviction relief was filed

beyond the statute of limitations found in Tennessee Code Annotated § 40-30-102.

After entering into a negotiated plea agreement on January 22, 1988,

Appellant was sentenced to fifteen years for aggravated sexual battery, six years for

aggravated assault, and ten years for burglary. The sentences were ordered to be

served concurrently for an effective sentence of fifteen years. On February 27,

1989, Appellant filed his first petition for post-conviction relief which was dismissed.

Although the record does not contain a copy of this petition, the record indicates that

it was essentially a request for documents. Appellant claims that he never received

a copy of the Order of Dismissal of his first petition. On September 19, 1989,

Appellant filed his second petition for post-conviction relief, which was styled as an
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amendment to his first petition. His second petition for post-conviction relief was

dismissed. On May 27, 1993, Appellant filed a writ of habeas corpus, which the

court treated as a petition for post-conviction relief. On August 19, 1993 Appellant

filed an amendment to his third petition. Even though Appellant in his writ of habeas

corpus conceded that a third petition for post-conviction relief was time-barred, the

post-conviction court allowed Appellant to proceed under the amendment to the third

petition, consolidating Appellant’s second petition with his third petition. On

February 21, 1995, the post-conviction court dismissed Appellant’s third petition for

post-conviction relief.

Appellant argues that although his third petition for post-conviction relief was

filed beyond the time permitted by Tennessee Code Annotated § 40-30-102, he

should nevertheless be allowed to proceed under his most recent filing since the

statute of limitations was tolled by his failure to receive a copy of the Order of

Dismissal of his first petition. He maintains that under Tennessee Rule of Civil

Procedure 58, an order without a certificate of service signed by only one party is a

nonfinal order which cannot be appealed. Therefore, as Appellant’s argument goes,

Appellant’s first petition remains open, permitting us to address the claims found in

his third petition.

The Post-Conviction Procedure Act provides that, “The clerk of the court shall

send a copy of the final judgment to the petitioner....” Tenn. Code Ann. § 40-30-

119(1990) (Repealed). Therefore, we need not consider Appellant’s claim that Rule

58 of the Tennessee Rules of Civil Procedure is applicable. In fact, we have held
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that a petitioner who does not receive the notice mandated by the Post-Conviction

Procedure Act is entitled to relief from the dismissal of his petition. Clotfelter v.

State, No. 03C01-9206-CR-00210, 1993 WL 247926, at *3 (Tenn. Crim. App. July

8, 1993). In Clotfelter, petitioner filed his first petition for post-conviction relief on

April 2, 1987, alleging that his guilty pleas were involuntarily entered. His first

petition was dismissed although he alleged that he never received a copy of the

order of dismissal. On November 1, 1991 Clotfelter filed his second petition for postconviction relief again alleging an involuntary plea. We held that because Clotfelter’s

second petition was beyond the three-year statute of limitations found in Tennessee

Code Annotated § 40-30-102, his second petition was time-barred. Clotfelter, 1993

WL 247926, at *4. However, we remanded the case to the trial court to hold an

evidentiary hearing on whether or not Clotfelter’s first petition could be reopened if

in fact he did not receive proper notice. Similarly, in Morgan v. State, petitioner filed

a second petition beyond the statute of limitations but claimed that it should be heard

because he never received notice of the dismissal of the first petition. No. 03C01-

9306-CR-00184, 1994 WL 71202, at *1 (Tenn. Crim. App. March 9, 1994), perm. to

app. den., (Tenn. 1994). We refused to hear Morgan’s second petition because it

was time-barred and had absolutely no relation to the grounds stated for relief in his

first petition. Morgan, 1994 WL 71202, at * 2.

In the case at bar, we find that Appellant’s third petition for post-conviction

relief is time-barred, and therefore we affirm its dismissal. As for re-opening

Appellant’s first filing, we remand the case to the post-conviction court for an

evidentiary hearing to determine whether or not Appellant received notice of the

dismissal of his first petition. If he did not, he is entitled to a hearing on the grounds
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raised in the first petition and the first petition only.

______________________________

JERRY L. SMITH, JUDGE

CONCUR

_______________________________

JOSEPH M. TIPTON, JUDGE

_______________________________

DAVID H. WELLES, JUDGE
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