IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
OCTOBER 1996 SESSION
FILED
March 24, 2008
Cecil Crowson, Jr.
Appellate Court Clerk
WALLACE BUTLER, )
) C.C.A. NO. 02C01-9510-CC-00297
Appellant, )
) FAYETTE COUNTY
VS. )
) HON. JON KERRY BLACKWOOD,
RICKY BELL, WARDEN, ) JUDGE
)
Appellee. ) (Habeas Corpus/Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
GARY ANTRICAN CHARLES W. BURSON
Public Defender Attorney General & Reporter
SHANA McCOY-JOHNSON MARY ANNE QUEEN
Asst. Public Defender Legal Assistant
118 East Market St. -and-
Somerville, TN 38068-0700 ELLEN H. POLLACK
Asst. Attorney General
450 James Robertson Pkwy.
Nashville, TN 37243-0493
ELIZABETH T. RICE
District Attorney General
302 Market St.
Somerville, TN 38068-1600
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
The petitioner was convicted by a jury of five counts of armed robbery, four
of which were affirmed and one of which was reversed and dismissed by this Court in an
opinion filed on March 6, 1985. Application for permission to appeal to the Supreme
Court was denied on June 10, 1985. The petitioner subsequently filed a petition for writ
of habeas corpus on May 24, 1995, which the court below treated as one for post-
conviction relief and dismissed without a hearing on the basis that it was time-barred. He
contends that this summary dismissal was improper. After reviewing the record, we
affirm the lower court’s judgment.
The petition in this case was filed in Fayette County, Tennessee, the county
in which the petitioner was originally convicted. His petition shows that he is presently
incarcerated in Davidson County, Tennessee. The only allegation contained in the
petition is that the trial court erred in allowing certain witnesses to testify on behalf of the
State at trial. A petition for habeas corpus must be filed in the county which is the most
convenient in point of distance to the applicant unless a sufficient reason be given in the
petition for not applying to such court. T.C.A. § 29-21-105 (1980). The petition was not
filed in Davidson County nor was there any allegation as to why it was not filed in said
county. Also, relief in habeas corpus proceedings is available only if the judgment
attacked is void upon its face or the record, or if the defendant’s sentence of
imprisonment has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). In this
case, the petitioner has failed to allege any matter that would make his judgment void.
We conclude that the trial judge properly considered the petition as one for post-
conviction relief rather than habeas corpus. T.C.A. § 40-30-205(c) (1996 Supp).
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Finding that the trial judge properly considered the petitioner’s petition as
one for post-conviction relief, we now look to determine if the trial judge properly applied
the statute of limitations. The petitioner’s conviction became final on June 10, 1985, the
date permission to appeal was denied by our Supreme Court. Shortly thereafter, our
legislature enacted a three year statute of limitations that was applicable to all petitions
for post-conviction relief filed on or after July 1, 1986. T.C.A. § 40-30-102 (1986 Supp.).
The petitioner’s right to file for post-conviction relief would therefore have been barred on
July 1, 1989. See Abston v. State, 749 S.W.2d 487, 488 (Tenn. Crim. App. 1988). The
instant petition was filed on May 24, 1995.
We acknowledge that this petition falls within the purview of the new Post-
Conviction Procedure Act, T.C.A. § 40-30-201 et seq. (1996 Supp), which applies to all
post-conviction petitions filed after May 10, 1995. See 1995 Tenn. Pub. Act 207, § 3.
This new Act provides, in pertinent part, that "[n]otwithstanding any other provision of this
part to the contrary, any person having ground for relief recognized under this part shall
have at least one (1) year from May 10, 1995, to file a petition or a motion to reopen a
petition under this part." Compiler's Notes to T.C.A. § 40-30-201 (1996 Supp) referring
to Acts 1995, ch. 207, § 3. And we realize that another panel of this Court has held, with
one member dissenting, that the new Post-Conviction Procedure Act provides "a one-
year window" in which every defendant may file a petition. Arnold Carter v. State, C.C.A.
No. 03C01-9509-CC-00270, Monroe County (Tenn. Crim. App. filed July 11, 1996, at
Knoxville). That case holds that the one-year window is available even if the petition
would have been barred by the three year statute provided under the previous act.
However, we adopt the view set forth in Judge Welles' dissent, concluding
that
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this language is only applicable to those who were not barred
by the statute of limitations at the time this statute went into
effect. Thus, if less than three years had already passed at
the bill's enactment, a defendant assuming that he had three
years in which to file a petition for post-conviction relief would
not be foreclosed from bringing a suit; instead, he would still
have the one year from the effective date of the statute.
Like Judge Welles, we do not believe that the new Act provides to those defendants
previously barred a new one year period in which to petition for post-conviction relief. At
most, it provides those barred an opportunity to reopen a prior petition within one year
of the new Act's effective date. T.C.A. § 40-30-217 (1996 Supp). The allegations under
review do not meet the criteria of this section.
The instant petition is barred by the three year statute of limitations
applicable under the prior Act. Therefore, the action of the trial court in dismissing the
petition was appropriate and we accordingly affirm the judgment below.
______________________________
JOHN H. PEAY, Judge
CONCUR:
______________________________
PAUL G. SUMMERS, Judge
______________________________
DAVID G. HAYES, Judge
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