# FILED February 24, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON FEBRUARY SESS ION, 1998

ROBERT DUANE BI TNER, ) C.C.A.NO. 02C01-9705-CC-00177 ) Appe llant, ) ) CARROLL COUNTY V. ) ) ) HON.C. CREE D MCGINLE Y, JU DGE STATE OF TENNESSEE, ) ) Appellee. ) (POST-C ONVIC TION)

FOR THE APPELLANT : FOR THE APPELLEE : ROB ERT DUAN E BITN ER, pro se JOHN KNOX WALKUP Register Number 216742 Attorney General& Reporter Route 1, Box 330 Tiptonvil le, TN 38079-9775 KENNETH W. RUCKER Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 G. ROBERT RA DFORD District Attorn ey Ge neral ELEANOR CAHILL Assistant Distri ct Attorney General 111 Church Street P.O. Box 686 Huntingdon, TN 38344-0686

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINIO N

This case rep resents an app eal from the dism issal of th e Petitio ner’s petiti on for post-co nviction relief. The Petiti oner was origi nally conv icted of three (3) counts of aggravated sexual battery and received an ef fectiv e twenty-f

our (24) year sentence. This court af firmed the j udgment of the trial court on direct app eal, State
v. Bitner , C.C.A. No. 02C01- 9307- CC -00148 , Carroll C ounty (T enn. C rim. App ., Jackson, May 25, 1994 ), and thesup remecourt deni ed applicat ion for permissi on to appeal on August 29, 1994. On July 1 0, 1996 , Petitioner filed a petition for postconvicti on relief . Finding thatthe statu te of limitations had exp ired, the trial court dismissed the pet ition without a heari ng.

The petiti on in thi s case was fil ed after t he ef fective da te of the 19 95 Post-Convict ion Procedure Act , and is t herefore governed by the prov isions found therein. Com piler’s Notes , Tenn . Co de An n. § 40-3 0-201 (1 997). Pu rsuant to Tennessee Code Annotated section 4 0-30-20 2(a) (199 7), a person in custody under
a sentence o f a court of this state must pet ition f or post-conv iction relief within on e yearof the dateof the fi nal acti on o f the highest state appel late court to which an appeal is taken or, if no ap peal is taken, wit hin one year of the date on which judgment beca me fin al. This secti on further provides t hat the statu te of li mitations shall not be tolled for any reason, including any tolling or savi ng provision otherwise availab le at law or eq ui ty, ot her than thr ee (3) except ions set forth in Tennessee Code Annota ted sectio n 40-30 -202(b)( 1), (2) and (3). None of t hese excepti ons applie s in this cas e. Jud gme nt in this case became final on August 29, 1994, and the Petition er did no t file his petition fo r post-co nviction relief u ntil July 10, 19 96.-3-

According ly, his peti tion was barr ed by the stat ute of li mitations . Because the pr ior three year stat ute of li mitations had not expired on the e ffective date of the new Ac t, the Petition er had until Ma y 10, 19 96, in w hich to file his peti tion for post- convicti on relief. See Com piler’s Notes , Tenn. Code Ann. § 4 0-30-20 1 (1997 ); Mane y v. State , C.C.A. N o . 03C01-9612-CR-00470, Br adley County (

Tenn. Crim. App., Knoxvill e, Oct. 10, 1997) (no Rule 11 ap plication filed). However, as noted, the petition in this case was fil ed beyond that date.

In Carter v. S tate , 952 S.W.2d 4 17 (Tenn . 1997), our sup reme cou rt recognized situations in which the new on e year sta tue of limitat ions would expire before the prior

three year stat ute. The court held that

the enabli ng provisi on of the 1995 Act whic h grante d perso ns in thes e situation s until May 10, 199 6, in which to file a petiti on for post- con victi on relief, adequately protected the ri ghts of these person s. Id . At 420.

Acco rdi ngly, we conclude that the tri al court correctl y found that the petiti on was barred by t he statute of limi tations, and therefore, a sum mary dismissal of the petition was ap propriate . Tenn. C ode An n. § 40-3 0-206(b ) (1997).

The judgment of the t rial cour t is af firmed.

____________________________________ THOMAS T. W OODALL, Judge CONCUR:

___________________________________ JOSEPH B. JONES, Presiding Judge

___________________________________ JOHN H. PEAY, Judge