IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JANUARY 1998 SESSION
FILED
January 29, 1998
Cecil Crowson, Jr.
MICHAEL S. HOLMES, ) Appellate C ourt Clerk
)
Appellant, ) C. C. A. No. 02C01-9703-CR-00106
)
V. ) Shelby County
)
STATE OF TENNESSEE, ) Honorable Chris Craft, Judge
)
Appellee. ) (Post-Conviction: Facilitation of a
) Felony)
FOR THE APPELLANT: FOR THE APPELLEE:
A C Wharton, Jr. John Knox Walkup
Shelby County Public Defender Attorney General & Reporter
Edward G. Thompson Kenneth W. Rucker
Assistant Public Defender Assistant Attorney General
616 Adams Avenue Criminal Justice Division
Memphis, TN 38103 450 James Robertson Parkway
Nashville, TN 37243-4351
William L. Gibbons
District Attorney General
Daniel Woody
Assistant District Attorney General
Criminal Justice Complex, Suite 301
201 Poplar Avenue
Memphis, TN 38103
OPINION FILED: _____________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
The Shelby County Criminal Court dismissed the appellant Michael S.
Holmes’ petition for post-conviction relief and he appeals. We affirm.
On June 1, 1993, the appellant pled guilty to facilitation of a felony and
was sentenced to five years imprisonment. No appeal was taken. On
September 18, 1996, the appellant filed a petition for post-conviction relief,
alleging ineffective assistance of counsel. Finding that the statute of limitations
had expired, the trial court dismissed the petition upon preliminary consideration
pursuant to Tennessee Code Annotated § 40-30-206(b) (Supp. 1996).
The trial court appointed the public defender’s office to represent the
appellant on appeal. The appellant’s attorney argues that the trial court was
without jurisdiction to appoint counsel because the appointment was made more
than thirty days after the trial court dismissed the petition. The state does not
address the issue. This concern does not affect the validity of the appeal. The
appellant properly perfected his appeal to this Court.
On appeal, the appellant argues that the trial court erred in dismissing his
petition without appointing counsel and conducting a hearing. Tennessee Code
Annotated §§ 40-30-206(a) & (b) provide that a trial court shall dismiss a post-
conviction petition upon preliminary consideration if it plainly appears from the
record that the petition was not filed within the time set forth in the statute of
limitations. Preliminary consideration is a review of the record by the court.
Tenn. Code Ann. § 40-30-206(a), -(b). Appointment of counsel and a hearing
are not required.
The appellant’s petition is clearly barred by the statute of limitations. A
person in custody under a sentence of a court of this state must petition for post-
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conviction relief within one 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
year of the date on which judgment became final. 1 The Post-Conviction
Procedure Act provides several limited exceptions to the one-year statute of
limitations; however, none of them are applicable to the present case. See
Tenn. Code Ann. § 40-30-202(b) (Supp. 1996).
The appellant also argues that the application of the statute of limitations
to the facts of his case violate his right to due process because he has been
deprived of a reasonable opportunity to have his post-conviction claim heard.
We find nothing in the record to establish that the appellant has been denied a
reasonable opportunity to have his claims heard. See Watkins v. State, 903
S.W.2d 302 (Tenn. 1995); Burford v. State, 845 S.W.2d 204 (Tenn. 1992). The
appellant also cites People v. Germany, 674 P.2d 345 (Colo. 1983) as
supporting his position that the application of the statute of limitations to his case
is unconstitutional. The facts in the case at bar are clearly distinguishable from
the facts in Watkins, Burford, and Germany. Nothing of a constitutional
magnitude prevented the appellant from timely filing his petition.
The trial court’s dismissal of the petition is affirmed.
______________________________
PAUL G. SUMMERS, Judge
CONCUR:
1
W e rea lize the appe llant’s c onvic tion or igina lly fell un der th e thre e-yea r limitatio n wh ich ch ange d to on e year in
May 1995. This has no bearing on the case’s outcome.
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__________________________
DAVID G. HAYES, Judge
__________________________
JOE G. RILEY, Judge
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