IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs August 6, 2002
LEWIS V. HILL v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. P-25322 John P. Colton, Jr., Judge
No. W2002-00443-CCA-R3-PC - Filed January 8, 2003
The petitioner, Lewis V. Hill, appeals the Shelby County Criminal Court’s denial of his petition for
post-conviction relief, claiming that the trial court erred by determining that he filed his petition
outside the statute of limitations. He contends that his petition was not time-barred because it was
filed within one year of this court’s denying his motion to waive the timely filing of a notice of
appeal. We affirm the trial court’s dismissal of the petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
JOSEPH M. TIPTON, J., delivered the opinion of the court, in which THOMAS T. WOODA LL and JOHN
EVERETT WILLIAMS, JJ., joined.
Charles W. Gilchrist, Jr., Memphis, Tennessee, for the appellant, Lewis V. Hill.
Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;
William L. Gibbons, District Attorney General; and R. Scott McCullough, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
The record reflects that a jury convicted the petitioner of attempted second degree murder
and attempted especially aggravated robbery, Class B felonies, on September 1, 1999, and that on
October 1, 1999, the trial court sentenced him as a Range II, multiple offender to an effective
sentence of thirty-one years in confinement. The petitioner’s trial attorney filed a timely motion for
new trial, which was denied by the trial court on December 3, 1999, but did not file a notice of
appeal. On June 9, 2000, the petitioner filed a pro se motion with this court requesting waiver of the
timely filing of a notice of appeal. See T.R.A.P. 4(a). In his motion, the petitioner claimed that his
trial attorney failed to file the notice of appeal as the petitioner had requested. On August 1, 2000,
this court denied the motion pursuant to Rule 22, T.R.A.P., because the petitioner did not “provide
this Court with any documentation regarding the cause to be appealed (i.e., copies of the judgments
of conviction, the motion for new trial, or the trial court’s written denial).” However, this court
stated that it would reconsider the petitioner’s motion if he complied with Rule 22(a). Apparently,
the petitioner took no action.
The petitioner filed a pro se petition for post-conviction relief on July 5, 2001, which was
amended by appointed counsel. The petition raises various claims, including the ineffectiveness of
petitioner’s trial counsel because counsel “did not fully explain his appeal rights, causing petitioner
to miss his deadline for filing a pro se Notice of Appeal.” The trial court dismissed the petition
without an evidentiary hearing on the basis that the petitioner filed his petition outside the one-year
statute of limitations. See Tenn. Code Ann. § 40-30-202(a). Although the trial court noted that
Tenn. Code Ann. § 40-30-202(b) and (c) provided certain exceptions to the one-year statute of
limitations period, it determined that none of the exceptions applied in this case.
The petitioner acknowledges that he filed his petition for post-conviction relief more than
one year after the trial court denied his motion for new trial. However, he contends that his petition
was timely filed because he filed it within one year of the date this court denied his motion to waive
the timely filing of a notice of appeal. The state contends that the trial court properly dismissed the
petition for post-conviction relief. We agree with the state.
Tenn. Code Ann. § 40-30-202 is the controlling authority with regard to the statute of
limitations for post-conviction relief petitions. It provides that
a person in custody under a sentence of a court of this state must
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. The statute of limitations shall not be
tolled for any reason, including any tolling or saving provision
otherwise available at law or equity. Time is of the essence . . . .
A trial court’s judgment becomes final thirty days after its entry unless a timely notice of appeal or
specified post-trial motion is filed. See T.R.A.P. 4(a), (c). If a petitioner files a petition for post-
conviction relief outside the one-year statute of limitations, a court may still consider it if (1) a new
constitutional right has been recognized; (2) the petitioner’s innocence has been established by new
scientific evidence; or (3) a previous conviction that enhanced the petitioner’s sentence has been held
to be invalid. Tenn. Code Ann. § 40-30-202(b)(1)-(3). A court may also consider an untimely
petition for post-conviction relief if applying the statute of limitations would deny the petitioner due
process. Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992); see, e.g., Seals v. State, 23 S.W.3d
272 (Tenn. 2000) (holding that due process mandates the tolling of the statute of limitations under
the 1995 Sentencing Act during periods of a petitioner’s mental incompetence).
The petitioner claims that after the trial court denied his motion for new trial, he thought that
his trial attorney was continuing to represent him and that he did not need to do anything further
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concerning his appeal. He contends that once he learned he no longer had an attorney, he filed a
motion with this court requesting that this court waive a timely filing of a notice of appeal. Without
any legal argument, he contends that his petition for post-conviction relief was not time-barred
because he filed it within one year of this court’s denying his motion. However, Tenn. Code Ann.
§ 40-30-202(a) states that if the petitioner does not appeal his conviction, he must file a petition for
post-conviction relief within one year of the date on which the judgment of conviction became final.
Therefore, absent this court’s granting the defendant’s motion to waive the timely filing of a notice
of appeal, the statute of limitations began to run from the time the judgments of conviction became
final, which was well before this court denied the petitioner’s motion. The trial court properly
dismissed his post-conviction petition.
We also note that the petitioner obviously knew by June 6, 1999, that his trial attorney was
no longer acting on his behalf. Although the time to file a notice of appeal had expired, the
petitioner still had six months to file a petition for post-conviction relief. This court has held that
six months is a “reasonable opportunity” in which to file a petition for post-conviction relief. Barry
N. Waddell v. State, No. M2001-00096-CCA-PC, Davidson County, slip op. at 4 (Tenn. Crim. App.
Oct. 17, 2001), app. denied (Tenn. Apr. 8, 2002).
Based upon the foregoing and the record as a whole, we affirm the trial court’s dismissal of
the petition for post-conviction relief.
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JOSEPH M. TIPTON, JUDGE
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