# FILED
July 16, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE AT JAC KSON APR IL SESSION, 199 7

WALLACE BUTLER, ) ) No. 02C01-9511 -CR-00339 Appellant ) ) SHELBY COUNTY vs. ) ) Hon. ARTH UR T. BENNETT, Judge STA TE OF TENN ESSEE, ) ) (Post-Conviction) Ap pellee )
For the Appell ant : For the Appell ee : MA RK MESLER CHA RLES W. BUR SON 200 Jefferson, Suite 1250 Attorney Gen eral and Repor ter Memphis, TN 381 03 JAN IS L. TURN ER Assistant Attorney Gener al Criminal J ustice Div ision 450 James Roberts on Parkway Nashvil le, TN 37243-0493
WILLIAM GIBBONS Distric t Attorney General JENNIFER NICHOLS Asst. Dist rict Attor ney General Third Floor, Criminal Justice Compl ex 201 Poplar Avenue Memphis, TN 38103

OPINION FILE D: AFFIRMED

David G . Hayes Judge1 The appell ant’ s pro sepetition w as c aption ed “W rit of Ha bea s C orpu s.” T he p ostcon viction c ourt p rope rly treated the p etition as one for po st-c onv iction re lief. See Tenn. Code Ann. § 40-30 -108 (repealed 19 95).

2 Appoint ed counsel was permitt ed to wi thdr aw afte r di smissal ofthe pet it ion an d su bs titut ed co un se l wa s a pp oin ted for pu rp os es of a pp ea l. 2 OPINION
The appellant, Wallace Butler, appeals as of rig ht from the Shelby County Criminal C ourt’s dismi ssal of his peti tion for post-conviction relief. The postconviction court summarily dismissed the petition finding the claims alleged were barred by the statute of limi tation.

We affirm.
On February 26, 1985, the appe llant pled guilty to robbery with a deadly weapon and was sentenced to fo rty years as a range II offender. No direct appeal was taken by the appe llant from the jud gment of convi ction. On December 14, 1994, the appellant file d a pro se petition seek ing post-conviction relief. The appell ant’s petiti on raised the c laims of (1) i nvoluntary guilty plea, (2) ineffective assi stance of counsel, and (3) improp er enhancement as a range II offende r. 1 The post-conv iction cour t appointed counsel to represent the appellant and to make any necess ary amendments to the petition. At a scheduled heari ng, appointed counsel conceded th e State’s defense that the appellant’s c laim was barred by the statute of limi tation. Moreover, appoi nted counsel stated t hat, despite dil igent efforts, he w as unable to find an exception to the three yea r statute of li mitation. The cour t dismissed t he petition as b eing time-barred. 2
On appeal, the appel lant, rely ing on Watkins v. State , 903 S.W.2d 302 (Tenn. 1995), sug gests that an exception to the three year statute of li mitations may apply

to this case. In Watkins , the supreme cour t recogniz ed that the3

statute is tol led for a person w ho is of unsound mind at the time the caus e of acti on ac crue s. Ac cord ingly, the a ppe llan t argu es th at he “cou ld very we ll have been laboringunder some mental i nfirmity dur ing the time period when the statute tolled. ” This arg ument is misplaced for two reasons: (1) there is no proof in the recor

d before us that the ap pellant wa s suffering or has ever suffered from a mental ill ness and (2) t his issue i s raised for t he first time on appeal and is, t herefore, wai ved. See Rule 36 Tenn. R. App. P. and Butl er v. State , 789 S.W.2d 898 (Tenn. 1990).
Additionally , we agr

ee with the post-convi ction court’ s determination that the petition i s time-barred. On the date the appellant entered his guil ty plea, no statute of limitat ion for post-con viction proceedings had been enacted. The legislature established a three-year statute of limitations on July 1, 1986. Thus, the appellant had un til July 1, 1989, to file any

such petition

. See Tenn. Code Ann. § 40-30-102 ( repealed 1995). The petition was filed on December 14, 1994. Moreover, no exce ption to the stat ute of limitation is applicabl e in the present case.
The judgment of the post -convic tion court i s affirmed.

____________________________________ DAVID G. HA YES, Judge

CONCUR:

___________________________________ JOSEPH M. TIPTO N, Judge

___________________________________ W ILLIAM M. BARKER, Judge