FILED

March 24, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

FEBRUARY SESSION, 1998

JAMES W. SMITH, ) C.C.A. NO. 03C01-9707-CR-00250

)

Appellant, )

) RHEA COUNTY

V. ) 

)

) HON. J. CURTIS SMITH, JUDGE

STATE OF TENNESSEE, ) 

)

Appellee. ) (POST-CONVICTION) 

FOR THE APPELLANT: FOR THE APPELLEE:

JAMES W. SMITH, pro se JOHN KNOX WALKUP 

#229668, S.T.S.R.C.F. Attorney General & Reporter

Route 4, Box 600

Pikeville, TN 37367 TIMOTHY F. BEHAN 

Assistant Attorney General

2nd Floor, Cordell Hull Building

425 Fifth Avenue North 

Nashville, TN 37243

J. MICHAEL TAYLOR

District Attorney General 

JAMES W. POPE, III

Assistant District Attorney General

First American Bank Bldg., 3rd Floor

Dayton, TN 37321

OPINION FILED ________________________

AFFIRMED 

THOMAS T. WOODALL, JUDGE
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OPINION

The Petitioner, Jam es W. Smith, appeals the order of the Rhea County Circuit

Court dismissing his pro se petition for post-conviction relief. The trial court found

that the petition was filed outside the statute of limitations. After a review of the

record, we affirm the trial court.

On September 12, 1990, Petitioner was convicted in the Rhea County Circuit

Court for the offenses of rape and incest. He was sentenced to terms of twelve (12)

years and three (3) years to be served consecutively. His direct appeal was affirmed

on March 24, 1992, and his application for permission to appeal to the supreme

court was denied July 9, 1992. Petitioner filed his petition for post-conviction relief

on August 26, 1996, alleging that the indictments against him were fatally deficient

so as to deprive the trial court of jurisdiction. The trial court subsequently dismissed

the petition without an evidentiary hearing because it was filed outside the one-year

statute of limitations and because it fit none of the exceptions to the one-year filing

requirem ent. Tenn. Code Ann. § 40-30-202(a) and (b). 

At the time the Petitioner’s convictions became final, July 9, 1992, the statute

of limitations applicable to post-conviction proceedings was three years. Tenn. Code

Ann. § 40-30-102 (repealed 1995). In 1995, the legislature reduced the statutory

period for filing post-conviction petitions from three (3) years to one (1) year. Tenn.

Code Ann. § 40-30-202(a). The new 1995 Post-Conviction Act governs this petition

and all petitions filed after May 10, 1995. Because the previous three-year statute

of limitations had not expired for Petitioner at the time the new Act took effect, his
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right to petition for post-conviction relief survived under the new Act. See Carter v.

State, 952 S.W.2d 417, 420 (Tenn. 1997).

As a result, Petitioner had one year from the effective date of the new Act,

May 10, 1995, to file for post-conviction relief. Tenn. Code Ann. § 40-30-201 and -

202(a). Petitioner filed his petition for post-conviction relief on August 26, 1996,

more than three months after the expiration of the one-year period. Therefore,

Petitioner’s petition is time-barred by the one-year statute of limitations. 

However, Petitioner alleges that the indictments against him are insufficient

for failure to state a mens rea, thus carving out an exception to the statutory 

one -year filing requirement. See Tenn. Code Ann. § 40-30-202(b)(1). Petitioner

relies upon the decision of this Court in State v. Roger Dale Hill, C.C.A. No. 01C01-

9508-CC-00267, Wayne County (Tenn. Crim App., Nashville, June 20, 1996), in

support of his argument that the decision in Hill established a new constitutional right

not existing at the time of his convictions, thus not barring his petition as untimely.

See Tenn. Code Ann. § 40-30-202(b)(1). However, our supreme court reversed this

Court’s decision in Hill. See State v. Hill, 954 S.W.2d 725 (Tenn. 1997). In any

event, Hill did not establish a new constitutional right not existing at the time of

Petitioner’s conviction.

Accordingly, we conclude that the trial court correctly found that the petition

was barred by the statute of limitations with no statutory exceptions applicable, and

therefore, a summary dismissal of the petition was appropriate. Tenn. Code Ann.

§ 40-30-206(b). 
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____________________________________

THOMAS T. W OODALL, Judge

CONCUR:

___________________________________

JERRY L. SMITH, Judge

___________________________________

WILLIAM B. ACREE, JR., Special Judge