1 The record contains conflicting information about this original charge. The May

28, 1997, petition for post-conviction relief indicates a conviction date of April 1, 1979. Judge Seth Norman's order of dismissal indicates a conviction date of October 24, 1979. The discrepancy is not material to our disposition of the case. 

# FILED April 16, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE MARCH 1999 SESS ION RICKY W. McELHANEY, ) ) NO. 01C01-9806-CR-00247 Appellant, ) ) DAVIDSONCOUNTY No. C-4396 VS. ) ) HON. SETH NORMA N, JUDGE STATE OF TENN ESSEE, ) ) Appellee. ) (Post-Conviction) ) ) AFFIRMED -

RULE 20 O R D E R Petitioner, RICKY

W. McELHA NEY, appeals the trial court's dismissal of his petition for post

-convi ction r

elief. In 1979, petitioner pled guilty to attempt to commit a felony. 1 He received an agreed se ntence o f one yea r and one day. According to petitioner, he was rel eased on this conviction in 1980.
Petitioner

received new convictions from the Hamilton County Criminal Court in 1993. The 1979 conviction was used to enhance punishment by placi ng petitioner in the R ange III sentencing categ ory. When this happened, petitioner asserts he prepared his first petition for post-convic tion relief attacking the v alidity of the 1979 guilty

plea. That petition was not filed because "the[District] Attorney General return[ed] it . . . stati ng that it should be filed i n Ha milton County." Petitioner

then filed an amended petition in Hamilton County whi ch was dismissed forbeing filed in the

wrong court. Petitioner appealed that dismissal and this Court affirmed, holding th e petitio n should have been filed in Davidson County. Ri ck y W. McElha ney

v. State , C.C.A. No. 03C01-9603-C R-00097, Hamilton County (Tenn . Crim. App. filed May 1, 1997, at Knoxville). On the basis of that decision, petit ioner2

claims he filed another petition for post-conviction r elief in Davidson County on November 28, 1995.
The record shows that

the petition for post-convic tion relief at issue here w as filed on May 28, 1997. The trial court appointed counsel, and an amend ed petition was filed on August 14, 1997. The Davidson County C ourt dismissed the petition as time barred on November 18, 1997. This appeal followed.
When petitioner

pled guilty in 1979, there was no statute of limitations on the filing of petitions for

post-convictionrelief. However, Tenn. Code Ann. § 40-30-102 (repealed 1995) est ablished a three-ye ar statut e of limi tations effect ive July 1, 1986. Petitioner

argues that

limitation s period did

not become

applicable to his case until October of 1993 when his Hamilton County convictions

were enhanced by the 1979 conviction. Thus, he reas ons, he had until 1996

in which to file a petition seeking relief.
The state argues that the statute of limitations on petitione r’s claim in this case expired in 1989. We agree.The convic tion on petit ioner’s g uilty plea became final in 1979. He had until June 30, 1989, in w hich to file a petition chall enging that plea. See Potts v. State , 833 S.W .2d 60, 61 (Tenn. 1992). The fact that the conviction was used to enhance a sentence in 1993 does not reac tiva te the limitationsperiod. See Watt v. S tate , 8 94 S.W.2d 307, 309 (Tenn. Crim. App. 1994).
Under the 1995 Post-Convictio n Procedure Act, which repealed the prior Act, petitioner’s claim is still time barred. Tenn. C ode Ann. § 40-30-202 established a one-year statute of limitations for post-conviction claim s, but did not grant an add itional year to petitioners whose statute of limitations expired prior to Ma y 10 , 199 5. Carter v. State , 952 S.W.2d 417, 420 (Tenn. 1997). As discussed abov e,3

petitioner’s claim expired in 1989. Nothing prevented petitioner from filing a petition for relief prior to 1989.
The judgment of the trial court is affirmed pursuant to Rule 20, Tenness ee Court of Criminal Appeals. It appear ing that the appellant is indigent, costs shall be taxed to the state. So ordered. Enter:

_______________________ JOE G. RILEY, JUDGE CONCUR:

____________________________ DAVID H. WELL ES, JUDGE

____________________________ JOHN EVERETT WILLIA MS, JUDGE