# FILED September 4, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF CRIMIN AL APPEALS OF TENN ESSEE

AT KNOXVILLE AUGUST 1997 SESSION

DAVID G. MY ERS, * * Appellant, * VS. * * STATE OF TENNESSEE, * * Appellee. *

* C.C.A. # 03C0 1-9612-CR- 00457

HAMBLEN CO UNTY Hon. James E. Bec kner, Judge (Post-Conv iction)

For Appellant : David G. Myers, Pro Se 228811 NECC P.O. Box 5000 Mountain Cit

y, TN 37683 For Appellee: Charles W. Burson Attorney Gen eral & Repor ter Marvin E. Clements, Jr. Assistant Attorney Gener al Criminal J ustice Division 450 James Roberts on Parkway Nashvil le, TN 37243-0493 Victor Vaug hn Assistant D istrict A

ttorney Gener

al 510 Allison St reet Morristown, TN 37814 OPINION FILE D:

AFFIRMED

PER CURIAM1 199 5 T enn . Pub . Act 2 07 p rovide s in pa rt: T his ac t sh all ta ke eff ec t up on be co m ing a la w, t he pu blic welfa re re quiring it and s hall go vern all petitions for po stconvi cti on rel ieffi led after thi s date, and anymotions whi ch m ay be f iled afte r this da te to re ope n pe titions fo r pos tconviction reli ef which were c oncluded prior to the effective date of this a ct. N otw iths tan din g a ny o the r pr ov isio n o f th is act t o the cont rary , any person hav ing a ground f or rel ief recogni zed under

thi s act shal l hav e at l east one ( 1) y ear from the eff ecti ve dat e of t his act to f il e a peti ti on or a moti on to reo pen und er this act. Id. § 3 (em phasis add ed).

In this c ase , the s tatute of lim itations had not e xpire d wh en th e 19 95 P ostConvict ion Pr ocedure Actbecame effecti ve, so the pet it ioner had one y ear fr om M ay 10, 1995, t o fi le hi s peti ti on. 2 OPINION The petitioner, D avid G. M yers, fil ed a petition for p ost-convi ction reli ef on October 25, 1996 . The trial court dismiss ed the petition as being barred by the statute of limitat ions wit hout appointingcounsel or hol ding an ev identiary hearing. The peti tioner

now a ppealsas of r ight the di smiss al of hi s peti tion. We affirm.
Upon the petiti oner's plea of g uilt to rape, a final judgment of convicti on was entered on November 19, 1993. Effective May 10, 199 5, an amendment to the Post- Convicti on Procedure Ac t reduced the ti me within which to file a claim from three years to one year. 1 This petition , allegingthat the conv iction was vo id due to a defectiv e indictment, was filed on October 25, 1996, and is thus barred by the statute of limi tations.

In Curtis Newbern , No. 02C01-970 2-CR-00071 (Tenn. Crim. App., at Jackson, Jul y 1, 1997), appeal filed , July 24, 1997, a panel of this court found that a defec tive in dic tmen t cl aim u nder

the d octrine of State v. Roger Dale Hill , No. 01C01- 9508-CC-00267 (Tenn. Crim. Ap p., at Nashv ille, June 20, 1996), appeal granted , Jan. 6, 1997, was still s ubject to the statute of limitati ons. Newbern , slip op. at 2. In3 a more recent case, another panel of this court he ld that a petiti on challengi ng an indictment for f ailure to allege the mens rea of a n offense m ust still be filed with in the statute of limi tations set forth in Tenn. Code Ann. § 40-30-202(a)

. James Edward Hay

es v. State , No. 02C01-9704-CC-00169, slip op. at 2 (Tenn. Crim. Ap p., at Jackson, July 23, 1997).

Accordingl y, the judg ment of the trial court is affirmed.

PER CURIAM