# FILED March 24, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE FEBRUARY SESS ION, 1998
JAMES W. SMI TH, ) C.C.A.NO. 03C01-9707-CR-00250 ) Appe llant, ) ) RHEA COUNTY V. ) ) ) HON.J. CU RTIS S MITH, JUDGE STATE OF TENNESSEE, ) ) Appellee. ) (POST-C ONVIC TION) FOR THE APPELLANT : FOR THE APPELLEE : JAME S W. S MITH , pro se JOHN KNOX WALKUP #229668, S. T.S.R.C. F. Attorney General& Reporter Route 4, Box 600 Pikevil le, TN 37367 TIMOTHY F.BEHAN Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 J. MI CHAEL T

AYLOR District Attorn ey Ge neral JAME S W. P OPE , III Assistant Distri ct Attorney General First Ameri can Bank Bldg., 3r d Floor Dayton, TN 37321

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION The Petition er, Jam es W . Smith , appe als the order of the Rh ea Co unty C ircuit Court dismissing his pro sepetiti on for post- convicti on relief . The tri al court f ound th at the petition was filed o utside the statute of lim itations. Afte r a review o f t h e record, w e affirm the trial court. On September 12, 1990, Pet itioner was convicted in the Rhea Coun ty Circu it Court for the offen ses of rap e and inc est. He w as sen tenced to terms of twelve (12) years and three (3) yea rs to be served c onsecutively. His direct app eal was aff irmed on March 24, 199 2, and h is applicatio n for perm ission to ap peal to the suprem e court was denied July 9, 1992. Petit ioner fi led his pet ition f or post-conv ictionrelief on August 26, 1996, all eging that the i ndictments agai nst him were fatally defici ent so as to depri ve the trial court of juri sdicti on. The trialcourt subsequent ly dismissed the petiti on without an evidenti ary heari ng because it wasfiledoutside t he one-year statute of li mitations

and because it fit none of the excepti ons to the one-year fi ling requirem ent. Ten n. Cod e Ann. § 40-30-2 02(a) an d (b).
At theti me the Pe titioner’s conviction s beca me fina l, July 9, 199 2, the statu te of limitati ons applic able to post -convict ion proceedi ngs was three year s. Tenn. Code Ann. § 40-30-10 2 (re p ealed 1995 ). In 1995, the legislature re duced the s tatutory period for fi ling post-convict ion peti tionsfrom three (3) yea rs to one (1) year. Tenn. Code Ann. § 4 0-30-20 2(a). The new 1995 Post-Convict ion Act governs this pet ition and a ll petitions f iled after May 10, 1995. Because the previo us three -year statu te of limitatio ns ha d not e xpired for Pe titioner a t the tim e the ne w Act to ok effe ct, his-3-

right to petit ion for

post-convi ction rel ief survived under th e new A ct. See Carter v. State , 952 S.W .2d 417, 420 (Tenn. 199 7).
As a result, Petiti oner had one year f rom the effect ive d ate o f the new Act, May 10, 1995, to fil e for post- convicti on relief . Tenn. Code Ann. § 40-30-201 and - 202(a). Petitioner filed his petition fo r post- convicti on relief on August 26, 1996, more than three months after t he expirat ion of theone- y ear period. Therefore, Petitione r’s petition is tim e-barred by the on e-year sta tute of limitatio ns. Howeve r, Petitioner a lleges tha t the indictm ents against hi m are insuff icient for fai lure to st

ate a mens rea , thus carving out an exception to the s tatutory one -year filing req uireme nt. See Tenn. Code Ann. § 40-30-202( b)(1). Petiti oner reliesupon the decision of this Court

in State v. Rog er Da le Hill , C.C. A. No. 01C01- 9508-CC-00267, Wayne Coun ty (Tenn. Crim App., N ashville , June 20, 19 96), in support of his argument that thedecision i n Hill establi shed a new constit utional right not existi ng at the ti me of his convi ctions, thus not barri ng his peti tion asuntimely. See Tenn. Code A nn. § 40-30-2 02(b)(1). How ever, o ur sup reme court re verse d this Cou rt’s decision i n Hill . See State v. Hill , 954 S.W.2d 725 (Tenn. 1997). In any event, Hill did not establisha new constit utional right not existi ng at the ti me of Petiti oner’s convi ction. According ly, we conclude that the tri al court correctl y found that the petit ion was barred by the stat ute of li mitations with nostatutor

y excepti ons applicabl e, and therefor e, a sum mary d ismissa l of the petition was ap propriate . Tenn . C ode Ann. § 40-30 -206(b).-4- ____________________________________ THOMAS T. W OODALL, Judge CONCUR:

___________________________________ JERRY L. SMITH, Judge

___________________________________ WILLIAM B. ACREE, JR., Special Judge