# FILED
July 7, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF T ENNESSEE AT NA SHVILLE PHILIP E. KN IGHT, ) ) C.C.A. NO. 01C01-9709-CR-0 0417 Appellant, ) (No. SN-1 519 3 Bel ow) ) DAVIDSON COUNTY VS. ) ) The Hon. Fran k G. Clemen t, Jr. STATE OF TENNESSEE, ) ) (Dismissal of P ost-Conv iction Petiti on) Appellee. ) ) AFFIRMED PURSUANT TO RULE 20

O R D E R This matter is before the Court upon the stat e’s motion request ing that the judgment in th e above-s tyled cause be affirmed pursuant to Rul e 20, Tennessee Court o f Criminal Appeals Rules.

It appears that on J une 30, 1994, the petitioner pled guilt

y to one count of vehicular

homicide and four count s of reckless endang erment with a wea pon. No appeal w as taken. Thereafter, on Octobe r 7, 1997, the petitioner fil ed a petiti on for post -convic tion rel ief. The trial court dis mi ssed the petiti on without a hearing upon a fi nding that the petition w

as barred by the one-yea r statute of limitation. T he petitio n er then filed an applicati on for in terlocutoryap peal, w hich was also deni ed. Howev

er, the t rial co urt wai

ved the fi ling of a timely notice of appeal and allowed a delay ed appeal.
Initially, we note that pursuant to T.R.A.P. 4(a), motions to w ai ve the notic e of appeal document shall be reviewed by this Court to determine whether such a waiver is in the interest of justice, and

we find that

it is in the interest of justice that the requirement

be waived in this case. See State v. Scales , 767 S.W.2d 157 (Tenn. 1989).

Regardless, we find that the petition for post-c onviction r elief is barred by the statute of limitation. Pursuant to T.C.A. § 40-30-206(a), a petitioner must petition for

post convictionrelief within one year of the date of the final action of the highest state appell ate court to which a n appeal was taken . The Compile r’s Notes to T.C.A. § 40-30-201 states that the 1995 Post-Convicti on Act governs all petitions fo r post-convict ion relie f filed after May

10, 1995. Moreover, the Compiler’s Notes indicate that “any per son having grou nd forrelief recog nized underthis part sha ll have at least one (1) year from May 10, 1995, to file a pet ition or a motion to reopen a petition under this part.”

### -2- UnderT.C.A. § 40-30-202( b), a court does not hav e jur isdiction to consider a petition forpost-convict ion relie f if it was filed outsi de the one-year statute of li mitation unless (1) th e claim in the petition is based upon a final ruling of an appe llate court establishi ng a constitutio nal right t hat w as not recognized as existing at the tim e of trial, if retrospective applicatio n of that right is required ; (2) the cla im in the petiti on is based upon ne w s cientific evidenceestablishi ng that such petitioner is ac tually i nnocent of the offense or offenses fo r which the petitioner was convicted ; or (3) the claim in the petiti on seeks relief from a sentenc e that was enhanced because of a p revious convi ction and such conviction i n the case in whi ch the claim is asserted was not a guil ty plea with an agreed sente nce, and the previous convict ion has subsequently

been held to be invalid.

In the present case, the petiti oner filed hi s petition fo r post-convi ction relief on October 7, 1996. Accordingl y, the petition i s governed by t he 1995 Post-Convi ction Act, and the petition w

as filed outsi de the statute oflimitation set forth in T.C.A. § 40-30-202(a). Moreover, the petiti one r has failed t o show that any

of his claims fall

within on e of the exceptions

set forth in T.C.A. § 40-30-202( b). Instead, t he petitione r submits that our Sup re me Court’s opinion in Carter v. State , 952 S.W.2d 417 (Tenn. 1997), has been misconstrued to mean thatthe right of those petitioners who originally fell under the three-year statuteof limitation to file a post-conviction petition expired on May 10, 1996. This argument is without merit.

IT IS, THEREFORE, ORDERED that the state’s motion t o affirm the judgment

of the trial court under Rule 20, T e nnessee Court of Cr iminal Appeals Rules,

is granted, and the judgment of the trial court is affirmed. Costs of these proceedings are taxed to the petitioner.

_______________________ ______ DAVID H. WELLES, JUDGE
CONCUR:

_______________________ ______ JERRY L. SMITH, JUDGE

_______________________ ______ THOMAS T. WOODALL, JUDGE