### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs S eptem

ber 9, 2003

ANTONIO BONDS v. STATE OF TENN ESSEE

Direct Appeal from the Criminal Court for Shelby County No. P-26982 Arthur T. Bennett, Judge

No. W2003-00260-CCA-R3-PC - F iled November 14, 2003

The petitioner, Antonio B onds, app eals the dismissal o f his petition for post-conviction relief based
upon its filing beyond the sta tute o f limi tatio ns. He

arg ues h is pet ition was t imely file d. We

hold that for purp oses of th

e post-c onviction

relief s tatute

of limitations, the final action of the Tennessee Supreme Court is the date of its denial of an applica tion for p ermission to appea l, not the d ate it denied the petition to rehear. Because the instant petition was filed more than one ye ar

from the d ate of denial of the application for permission to appeal, we aff irm the judgment of the post-conviction
court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OE G. R ILEY , J., delivered the opinion of the court, in which J ERRY L. S MITH , J., joined. G ARY R. W ADE , P.J., filed a dissenting opinion.

Antonio Bonds, Henning, Tennessee, Pro Se.

Paul G. Summers, Attorney Gene ral andRe porter; Joh

n H. Bled soe, Assis tant Attor ney Genera l; and William L. Gibbons, District Attorney General, for the appellee, State of Te nnessee.

OPINION

A Shelby County

jury convicted

the petitioner of first degree murder , and he was sentenced
to life imprisonment. This court affirmed his conviction. State v. An tonio Bo nds , No. W 2000- 01242-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 610 (Tenn. Crim. App. Aug. 13, 2001, at Jackson). On December 2 7, 2001, the Tenne ssee Supr eme Court

denied hi s applica

tion for p ermission

to appeal. The petitioner filed a petition to rehear, which the state supreme court de nied on February 11, 2002. The mandate was issued February 12, 2002.

On January 10, 2003, the petitioner filed his petition for post-conviction relief alleging, inter alia
, ineffe ctive as sistance of counse l. The post-conviction court dismissed the petition a s untimely since it was not filed within one year after the state supreme court’s orig inal denial of his application for permission to appeal. The petitioner maintains his petition was submitted within the statute of-2-

limitations since it was filed less than one y ear after the supreme court’s de nial of his pet

itio n to rehear.

For

purposes of this case, a petition for post-conviction relief must be filed within one y ear of “the final action of the highest state appellate c ourt to which an appeal is tak en.” Tenn . Code Ann. § 40-30-102(a) (2003). The issue raised in this appeal is whether the Februa ry 11, 2002, order de ny ing the petition to rehear the denial of the application for permission to appeal was the “final action” of the Tennessee

Supreme Court, o r whether that court’s “final action” occurred on D ecember 27, 2001, when it first denied the petitione r’s appl ication f or permis sion to app eal. The state contends the petition to rehear did not toll the statute of limitations, which began to run on December 27, 2001. We agree with the state.

In addit ion t o fix ing a on e-year stat ute of limi tati ons fo r the f

ilin g of a post-conviction petition, Tennessee Code Annotated section 40-30-102(a) (2003) contains a state ment of legislative policy with resp ect to pos t-convic tion proc eeding s. The sta tute prov ides:

The statute of limitations shall not be tolled for any reason, including
any tolling or saving provision otherwise available at law or eq ui ty. Time is of the essence of the right to file a petition for post-convic tion relief or a motion to r

eopen e stablishe d by

this chapter, and the oneyear limitations period is an element of the right to file such an action and is a condition upon its exercise.

Tenn. Code Ann. § 40-30-102(a) (2003).

Thus, it is apparent that the legislature intended to definit ively restrict, rather than expand, the time frame within which post-conviction proceedings must be initiated. The cour ts should interpret this statute in a way that furthers that policy rather than undermines it. See Carter v. State

, 952 S.W.2d 417, 420 (Tenn. 1997) (holding petitioners for whom statute of limitations had expired under the ol d Act did not have ad ditional ti me to file

under the

new Act) . Of cour se, in ord er to determine when the

one-y ear sta tue of limi tations begins to r un, one must determine when the judgment of the highest state court to which an appeal is taken bec omes final. We address this issue in light of the above-stated legislative policy

.

This court has held that for purposes of the one-y ear statute of limitations in post-conviction
cases, the final action of the Tennessee Supreme Court is ge nerally either

the date that

court denies

an applica

tion for p ermission

to appea l or the da

te it fi les an opinion on the merits of the case. Sidney McGlowan v. State , No. W2000-01925-CCA-R3-PC, 2001 Tenn. Crim. App. LEXI S 935,
at *9 (Tenn. Crim. App. Nov. 29, 2001, at Jackson). Ce rt ai nl y, a criminal defendant should no t b e able to extend the

intended statute of limitations in which to f

ile a post- convicti on petition by t imely filin g a frivolo

us petition

to rehea r our supr

eme cour t’s denia l of applic ation for

permissio n to appeal. This would be contrary to the expressed leg i slative intent of Tennessee Code Annotated section 40-30-102(a) (2003).-3-

Perhaps more import antly, t he language of Te

nnessee Rule of Appellate Procedure 39(a) governing rehearing provides no substantial justification for filing a petition to rehear the denial of

an applica

tion for p ermission

to appea l. The liste d bases f

or relief on a pet

ition to re hear al l relate
to the cour

t’s “opin ion.” Te nn. R. App. P. 39(a). An order deny ing app lication f

or permis sion to appeal is not an o pinion. We do note the Advisory Commission Comment to the rule states the “Supreme Court generally

disfavors petitions to rehear following denials of applications for permission to appeal.” However, we do not interpret this comment as specifically authorizing such petitions, especia

lly a s it would

relate t o the fina lity of its denial of the application for permission
to appeal. See Laur

a Coffey , et al v. Cherokee Aviation, Inc.
, No. E1999-01037-COA-R3-CV, 2000 Tenn. App. LEXIS 467, at **11- 12 (Tenn . Ct. App. July 19, 2000, at Knoxville) (noting Advisory Commission Comments are persuasive authority but may not alter the cle ar text of the rule), perm. to app. denied

(Tenn 2001).

Tennessee Rule of Appellate Procedure 38 governs entry of the appe llate cou rt’s judgment following receip t of the c ourt’s opinion

. Immediately following is Rule 39 dealing with rehe arings

. Rule 39 speaks in terms of petitioning to rehear the appeal based on inconsistencies a nd/or errors found in th

e appell ate cour

t’s opinion

.
Further, Tennessee Rule of Appellate Procedure 42(b) provides that the mandate of the intermed iate appella

te court is to issue “i mm ed ia te ly” upon the denial of an application for permission
to appeal by the

Tennessee Supreme Court. Thus, upon denial of a discr etionary appe al, the trial
court is immedia

tely given d irectio n to comply

with the ju dgment o f the inte rmediate appella te court

. In addition, the rule

contain s no provision authorizing a stay of the mandate upon the filing of an “order of the Supreme Court

denying the application for

permissio n to appea

l.” Tenn . R. App. P. 42(b).

We do note tha

t the Tenn essee Sup

reme Cour

t did issue an order in

this case , which sim

ply stated the petition to rehear was denied, and the mandate wa s issued t hereaf ter. Nevertheless, we place no significanc e upon these facts as it would relate to the finality of its action in denying

the application for per

mission to a

ppeal. The final action of the Tennessee Supreme Court, for purpose s of triggering

the statute of

limitations , was the

date it de nied the a pplicatio n for per

mission to a

ppeal.

We, therefore, conclude the post-conviction petition was untimely . The judgment of the post-conviction court is affirmed.

____________________________________ JOE G. RILEY, JUDGE