IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs April 8, 2008

TONY SHEFFA v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. P-26146 W. Fred Axley, Judge

No. W2007-01443-CCA-R3-PC - July 2, 2008

The petitioner, Tony Sheffa, appeals the Shelby County Criminal Court’s denial of post-conviction

relief. On appeal, he alleges that his trial counsel was ineffective and, that because of the

ineffectiveness of counsel, his pleas were not knowingly and voluntarily entered. Upon our review

of the record and the parties’ briefs, we conclude that the post-conviction court did not have

jurisdiction to hear the petition. Therefore, we dismiss the appeal. 

Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed.

NORMA MCGEE OGLE,J., delivered the opinion of the court, in whichJOHN EVERETT WILLIAMS and

J.C. MCLIN, JJ., joined.

R. Andrew Hutchison (on appeal) and Paul Guibao (at trial), Memphis, Tennessee, for the appellant,

Tony Sheffa.

Robert E. Cooper,Jr., AttorneyGeneral andReporter; Rachel E. Willis, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Tom Hoover, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

On January 29, 2001, the petitioner entered guilty pleas to two counts of especially

aggravated robbery, two counts of especially aggravated kidnapping, one count of evading arrest,

one count of resisting official detention, and one count of being a convicted felon in possession of

a handgun. The petitioner received a total effective sentence of thirty years in the Tennessee

Department of Correction. 
 The post-conviction court’s order denying the petitioner’s amended petition for post-conviction relief 1

indicates that the petitioner’s motion to reopen “was granted after further review.” The order granting the motion is

not in the appellate record. 

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Subsequently, on February 8, 2002, the petitioner filed a petition for post-conviction relief.

The State filed a motion to dismiss the petition, alleging that the petition was not timely filed. The

post-conviction court granted the State’s motion and dismissed the petition. 

Thereafter, on April 28, 2003, the petitioner filed a motion asking the post-conviction court

to reopen his post-conviction petition, arguing that “[t]he petition was timely filed by Petitioner.

However, due to an institutional lockdown, the Petition did not reach the Shelby County Clerks until

February 8, 2002.” The record reflects that this motion was granted, although the record does not

reflect the date the motion was granted. 

1

On October 14, 2004, the petitioner filed an amended petition for post-conviction relief,

alleging further instances of ineffective assistance of counsel. A post-conviction hearing was held

on February 5, 2007, regarding the amended petition. At the post-conviction hearing, the petitioner’s

post-conviction counsel stated, without dispute, that the State had consented to the motion to reopen

the post-conviction action. The post-conviction court proceeded to hear the petitioner’s claims for

post-conviction relief. 

At the conclusion of the hearing, the post-conviction court found that the petitioner had failed

to prove the claims alleged in his amended post-conviction petition. On appeal, the petitioner

challenges this ruling. 

II. Analysis

Before we address the merits of the petitioner’s claims, we must first address a procedural

challenge raised by the State. Forthe first time on appeal, the State contends that the post-conviction

court did not have jurisdiction to hear the petitioner’s amended post-conviction petition. In its brief,

the State “concedes that the post-conviction court erred in dismissing the original petition,”

explaining that the original petition was timely filed. However, the State contends that the petitioner

did not appeal this erroneous dismissal. Instead, the petitioner filed a motion to reopen more than

a year after the dismissal. The State argues that the petition does not fall into any of the categories

authorizing the reopening of post-conviction petitions; thus, the post-conviction court was without

jurisdiction to hear the petition. We agree with the State. 

Initially, we note that “[r]elief under [the Post-Conviction Procedure Act] shall be granted

when the conviction or sentence is void or voidable because of the abridgment of any right

guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn. Code

Ann. § 40-30-103 (2003). However, to obtain relief,

a person in custody under a sentence of a court of this state must
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petition for post-conviction relief under this part within one (1) year

of the date of the final action 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 judgment became final, or consideration of

such petition shall be barred.

Tenn. Code Ann. § 40-30-102(a) (2003); see also Williams v. State, 44 S.W.3d 464, 468 (Tenn.

2001). The statute emphasizes that time is of the essence of the right to file a petition for

post-conviction relief or motion to reopen established by this chapter, and the one-year 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). 

In the instant case, the petitioner pled guilty on January 29, 2001. Generally, “a judgment

of conviction entered upon a guilty plea becomes final thirty days after acceptance of the plea

agreement and imposition of sentence.” State v. Green, 106 S.W.3d 646, 650 (Tenn. 2003). On

appeal, the State acknowledges that the petitioner’s guilty plea did not become final until February

28, 2001; therefore, his original petition, which was filed on February 8, 2002, was timely. We

agree. Thus, the post-conviction court’s dismissal of the original petition was erroneous. 

Upon the erroneous dismissal of the original petition, the petitioner should have filed, within

thirty days, a notice of appeal. Specifically, we note that Rule 3(b) of the Tennessee Rules of

Appellate Procedure provides that a criminal defendant may appeal to this court following “a final

judgment in a . . . post-conviction proceeding.” Rule 4(a) of the Tennessee Rules of Appellate

Procedure instructs that “the notice of appeal required by Rule 3 shall be filed with and received by

the clerk of the trial court within 30 days after the date of entry of the judgment appealed from;

however, in all criminal cases the ‘notice of appeal’ document is not jurisdictional and the filing of

such document may be waived in the interest of justice.” 

The petitioner did not file a notice of appeal contesting the erroneous dismissal of his original

petition. Instead, more than one year after the dismissal, the petitioner filed a motion to reopen his

original petition. The record indicates that, at some point, this motion was granted. In certain

limited circumstances, a petitioner may file a motion to reopen a prior petition for post-conviction

relief. Tennessee Code Annotated section 40-30-117(a) (2003) provides that a petitioner may file

a motion to reopen the first post-conviction petition if:

(1) The claim in the motion is based upon a final ruling of an

appellate court establishing a constitutional right that was not

recognized as existing at the time of trial, if retrospective application

of that right is required . . . ; or

(2) The claim in the motion is based upon new scientific evidence

establishing that such petitioner is actually innocent of the offense or

offenses for which the petitioner was convicted; or
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(3) The claim asserted in the motion seeks relief from a sentence that

was enhanced because of a previous conviction and such conviction

in the case in which the claim is asserted was not a guilty plea with

an agreed sentence, and the previous conviction has subsequently

been held to be invalid . . . ; and

(4) It appears that the facts underlying the claim, if true, would

establish by clear and convincing evidence that the petitioner is

entitled to have the conviction set aside or the sentence reduced.

As the State contends, the petitioner’s motion to reopen did not fall into any of these limited

circumstances. Therefore, the post-conviction court erroneously granted the petitioner’s motion to

reopen. 

As we noted earlier, the petitioner did not file a notice of appeal contesting the dismissal of

his original petition. Therefore, thirty days after the order dismissing the petition was filed, the postconviction court’s judgment became final. Thus, no “amended” petition could be filed on a

completed action. Further, the “amended” petition cannot be treated as a new post-conviction

petition. Generally, a petitioner may file only one petition for post-conviction relief. See Tenn.

Code Ann. § 40-30-102(c). Accordingly, the post-conviction court had no jurisdiction to address

the complaints in the petitioner’s amended petition. 

III. Conclusion

Based upon the foregoing, we conclude we must dismiss the petitioner’s appeal. 

___________________________________ 

NORMA McGEE OGLE, JUDGE