FILED

September 4, 1997

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

AUGUST 1997 SESSION

DAVID G. MYERS, *

*

Appellant, *

VS. *

*

STATE OF TENNESSEE, *

*

Appellee. *

*

C.C.A. # 03C01-9612-CR-00457

HAMBLEN COUNTY 

Hon. James E. Beckner, Judge 

(Post-Conviction)

For Appellant:

David G. Myers, Pro Se

228811 NECC 

P.O. Box 5000

Mountain City, TN 37683

For Appellee:

Charles W. Burson

Attorney General & Reporter

Marvin E. Clements, Jr.

Assistant Attorney General

Criminal Justice Division

450 James Robertson Parkway

Nashville, TN 37243-0493

Victor Vaughn

Assistant District Attorney General

510 Allison Street

Morristown, TN 37814

OPINION FILED: 

AFFIRMED

PER CURIAM
1

1995 Tenn. Pub. Act 207 provides in part:

This act shall take effect upon becoming a law, the public

welfare requiring it and shall govern all petitions for postconviction relief filed after this date, and any motions which

may be filed after this date to reopen petitions for postconviction relief which were concluded prior to the effective

date of this act. Notwithstanding any other provision of this

act to the contrary, any person having a ground for relief

recognized under this act shall have at least one (1) year

from the effective date of this act to file a petition or a motion

to reopen under this act.

Id. § 3 (emphasis added).

In this case, the statute of limitations had not expired when the 1995 PostConviction Procedure Act became effective, so the petitioner had one year from May 10,

1995, to file his petition.

2

OPINION

The petitioner, David G. Myers, filed a petition for post-conviction relief

on October 25, 1996. The trial court dismissed the petition as being barred by the

statute of limitations without appointing counsel or holding an evidentiary hearing. 

The petitioner now appeals as of right the dismissal of his petition. We affirm.

Upon the petitioner's plea of guilt to rape, a final judgment of

conviction was entered on November 19, 1993. Effective May 10, 1995, an

amendment to the Post-Conviction Procedure Act reduced the time within which to

file a claim from three years to one year.1 This petition, alleging that the conviction

was void due to a defective indictment, was filed on October 25, 1996, and is thus

barred by the statute of limitations. 

In Curtis Newbern, No. 02C01-9702-CR-00071 (Tenn. Crim. App., at

Jackson, July 1, 1997), appeal filed, July 24, 1997, a panel of this court found that a

defective indictment claim under the doctrine of State v. Roger Dale Hill, No. 01C01-

9508-CC-00267 (Tenn. Crim. App., at Nashville, June 20, 1996), appeal granted,

Jan. 6, 1997, was still subject to the statute of limitations. Newbern, slip op. at 2. In
3

a more recent case, another panel of this court held that a petition challenging an

indictment for failure to allege the mens rea of an offense must still be filed with in

the statute of limitations set forth in Tenn. Code Ann. § 40-30-202(a). James

Edward Hayes v. State, No. 02C01-9704-CC-00169, slip op. at 2 (Tenn. Crim. App.,

at Jackson, July 23, 1997).

Accordingly, the judgment of the trial court is affirmed. 

PER CURIAM