FILED

February 24, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

FEBRUARY SESSION, 1998

ROBERT DUANE BITNER, ) C.C.A. NO. 02C01-9705-CC-00177

)

Appellant, )

) CARROLL COUNTY

V. ) 

)

) HON. C. CREED MCGINLEY, JUDGE

STATE OF TENNESSEE, ) 

)

Appellee. ) (POST-CONVICTION) 

FOR THE APPELLANT: FOR THE APPELLEE:

ROBERT DUANE BITNER, pro se JOHN KNOX WALKUP 

Register Number 216742 Attorney General & Reporter

Route 1, Box 330

Tiptonville, TN 38079-9775 KENNETH W. RUCKER

Assistant Attorney General

2nd Floor, Cordell Hull Building

425 Fifth Avenue North 

Nashville, TN 37243

G. ROBERT RADFORD 

District Attorney General 

ELEANOR CAHILL

Assistant District Attorney General

111 Church Street

P.O. Box 686 

Huntingdon, TN 38344-0686

OPINION FILED ________________________

AFFIRMED 

THOMAS T. WOODALL, JUDGE
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OPINION

This case represents an appeal from the dismissal of the Petitioner’s

petition for post-conviction relief. The Petitioner was originally convicted of three (3)

counts of aggravated sexual battery and received an effective twenty-four (24) year

sentence. This court affirmed the judgment of the trial court on direct appeal, State

v. Bitner, C.C.A. No. 02C01-9307-CC-00148, Carroll County (Tenn. Crim. App.,

Jackson, May 25, 1994), and the supreme court denied application for permission

to appeal on August 29, 1994. On July 10, 1996, Petitioner filed a petition for postconviction relief. Finding that the statute of limitations had expired, the trial court

dismissed the petition without a hearing.

The petition in this case was filed after the effective date of the 1995

Post-Conviction Procedure Act, and is therefore governed by the provisions found

therein. Compiler’s Notes, Tenn. Code Ann. § 40-30-201 (1997). Pursuant to

Tennessee Code Annotated section 40-30-202(a) (1997), a person in custody under

a sentence of a court of this state must petition for post-conviction relief within one

year of the date of the final action of the highest state appellate court to which an

appeal is taken or, if no appeal is taken, within one year of the date on which

judgment became final. This section further provides that the statute of limitations

shall not be tolled for any reason, including any tolling or saving provision otherwise

available at law or equity, other than three (3) exceptions set forth in Tennessee

Code Annotated section 40-30-202(b)(1), (2) and (3). None of these exceptions

applies in this case. Judgment in this case became final on August 29, 1994, and

the Petitioner did not file his petition for post-conviction relief until July 10, 1996. 
-3-

Accordingly, his petition was barred by the statute of limitations. Because the prior

three year statute of limitations had not expired on the effective date of the new Act,

the Petitioner had until May 10, 1996, in which to file his petition for post-conviction

relief. See Compiler’s Notes, Tenn. Code Ann. § 40-30-201 (1997); Maney v. State,

C.C.A. No. 03C01-9612-CR-00470, Bradley County (Tenn. Crim. App., Knoxville,

Oct. 10, 1997) (no Rule 11 application filed). However, as noted, the petition in this

case was filed beyond that date.

In Carter v. State, 952 S.W.2d 417 (Tenn. 1997), our supreme court

recognized situations in which the new one year statue of limitations would expire

before the prior three year statute. The court held that the enabling provision of the

1995 Act which granted persons in these situations until May 10, 1996, in which to

file a petition for post-conviction relief, adequately protected the rights of these

persons. Id. At 420.

Accordingly, we conclude that the trial court correctly found that the

petition was barred by the statute of limitations, and therefore, a summary dismissal

of the petition was appropriate. Tenn. Code Ann. § 40-30-206(b) (1997). 

The judgment of the trial court is affirmed.

____________________________________

THOMAS T. W OODALL, Judge 

CONCUR:

___________________________________

JOSEPH B. JONES, Presiding Judge

___________________________________

JOHN H. PEAY, Judge