### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE August 2000 Session

ALVIN FEATHERSTONE v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County No. 98-C-1913 Seth Norman, Judge

No. M1999-01871-CCA-R3-PC - Filed September 8, 2000

The Defendant, Alvin

Featherstone,

appeals as of rig

ht from the trial c

ourt's d enial of post-conviction relief w ithout an evid

entiary hearing. He pleaded guilty to possession of cocaine for resale on October 15, 1998. He was sentenced to eight ye

ars imprisonment, t

o be served in

the Community Corrections program. It appears that the Defendant's Community Corrections sentence was revoked, and he was resentenced on March 24, 1999 to a

n eight ye ar sentence to

be served in the Department of Correction. On December 8, 1999, t h e Defendant filed a petition for post-conviction relief, alleging that the trial court erred by revoking

his Community

Corrections sentence and resentencing him an d further alleging that he was not informed he had the right to appeal the rev ocation an d resentenci ng. The trial court summarily dismissed the petition as barred by the statute of limitatio

ns. We hold that the petition was not barred by the statute of limitations. Accordingly, we reverse the judgment of the trial court dismissing the petition for post-conviction relief.

Tenn. R. App. 3 Appeal as of Right; Judgment o

f the Criminal Cour

t Reversed.

D AVID H. W ELLES , J., delivered the opinion of the court, in which J OSEPH M. TIPTON , and R OBERT W. W EDEMEYER , JJ., joined.

Alvin Featherstone, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; Victor S. Johnson; District Attorney General, and Pam Ander son, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Although the record in this case is sparse, i

tappears from

the Defendant's petition for postconviction relief

and the trial court's order dismissing that petition that the De

fendant pleade

d guilty on October 15, 199 8 to possession of cocaine for re

sale, and he rec

eived an eight-

year sente nce to be served in the Commun ity Correct

ions program. Th

e Defendant' s Community Corr ectio n s sentence was subsequently revoked, and he was resentenced on March 24, 1999 to eight ye ars to be-2-

served in the Department of Correction. It does not appear that the Defendant appealed

from that
sentence. Subseq uentl y, on December 8, 1999, the Defendant filed a pro sepetition for postconviction relief, in which he complained of multiple errors occurring during the revocation proceedings,

and he asserted that the trial court erred in revoking his Com munity Corrections
sentence. He alleged generally that his attorney 's representation at the revocation proceeding was deficient. He further alleged that he was not informed that he hadthe right to appeal the revocation of his Comm unity Corrections sentence. He asked the trial court to hold a hearing to determine whether he should be reins

tate d to the Community Co rrections prog

ram or, in the alte

rnative, to determine w hether the proce dures utilized to ter

minate his Community

Corrections s entence violate d his rights.

The trial court summarily dismissed the petition as barred by the statute of limitations because it was filed over a year after the orig

inal judgment wa

s final. Tennessee Code Annotated § 40-30-202(a) provides that a defendant "must petition for post-conviction relief under this part within one (1) ye

ar of the date of

the final a

ction of the highest state appellate court to which an appeal is taken or, if no appeal is taken, within one (1) year of the date on which the judgmen t became final, or consideration of such p etition shall be barred ." Had the Defendant been attacking his original judgment of conviction, which was entered on October 15, 1998, his post-conviction petition, filed a year and almost two months later, would have been time-barred.

However, the Defendant w as attacking the

judgment of the tr

ial court revokin

g his Community

Corrections sentence and resentencing him to imprisonment in the D epartm ent of Correction. The petition was fi led within a year of that revocation and resentencing . In Baker v. State
, 989 S.W.2d 739 (Tenn. Crim. App. 1 998), this Court con sidered the appli

cation of the statu

te of limitations to a post-conviction petition filed after the resentencing of a defen d ant whose community

corrections sentence had been revoked. We held that when the resentencing is the final action from which no appeal was taken, the statute of limita tions did not begi n to run unt il t hir ty da ys after the defendant was resentenced. Id. at 7 41. Acco rdi ngly, the Defendant's p etition attacking

his revocation and resentencing is not barred by the stat u te of limitations, and the trial judge erred by summarily dismissing the petition as time-barred.

The judgment of the trial court dismissing the Def endant's post-conviction pe tition is reversed, and t

his case is reman

ded for further

proceedings.

___________________________________ DAVID H. WELLES, JUDGE