IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JULY SESSION, 1997
JOE HOBSON, ) C.C.A. NO. 02C01-9609-CC-00309
)
Appellant, )
)
) MADISON COUNTY
VS. )
) HON. FRANKLIN MURCHISON
STATE OF TENNESSEE, ) JUDGE
Appellee.
)
) (Post-Conviction) FILED
July 24, 1997
ON APPEAL FROM THE JUDGMENT OF THE
CIRCUIT COURT OF MADISON COUNTY Cecil Crowson, Jr.
Appellate C ourt Clerk
FOR THE APPELLANT: FOR THE APPELLEE:
GEORGE MORTON GOOGE JOHN KNOX W ALKUP
District Public Defender Attorney General and Reporter
227 W . Baltimore Street
Jackson, TN 38301 CLINTON J. MORGAN
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
JERRY W OODALL
District Attorney General
AL EARLS
Assistant District Attorney General
P.O. Box 2825
Jackson, TN 38302
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The Petitioner, Joe Hobson, appeals as of right pursuant to Rule 3 of the
Tennessee Rules of Appellate Procedure from the trial court’s denial of his
petition for post-conviction relief. The Petitioner filed a pro se petition for post-
conviction relief on March 28, 1996, challenging various convictions for drug
offenses received in 1989 and 1990.1 On April 9, 1996, the trial court dismissed
the petition without conducting an evidentiary hearing, finding that it was barred
by the statute of limitations.2 We affirm the judgment of the trial court.
The procedural history of the case at bar is somewhat convoluted. The
Petitioner entered guilty pleas to various drug offenses on January 25, 1989 and
April 16, 1990. He filed a petition for post-conviction relief, which is the subject
of the case sub judice, on March 28, 1996. In the petition, he argued that his
guilty pleas had been entered involuntarily because the trial court had not fully
advised him about his right against self-incrimination and his right of
confrontation. He also claimed that the convictions based on his guilty pleas
were later used to enhance a federal sentence. The State responded to the
petition on April 4, 1996, by moving to dismiss it on the ground that it was barred
by the statute of limitations. On April 9, 1996, the trial court entered an order
1
Th e rec ord is unc lear regard ing the offense s of w hich the P etitioner was ac tually con victed .
In his petition for post-conviction relief, he states that he is challenging convictions for possession of
dilaudid and possession of cocaine. On another document submitted by the Petitioner to the clerk of
the trial court, he refers to convictions for possession of cocaine with intent to sell, possession of
dilaudid with intent to sell, and possession of drug paraphernalia. Unfortunately, the record does not
contain copies of the judgm ents for the challenged co nvictions. The Petitioner does m ake it clear,
however, that the convictions challenged through this petition for post-conviction relief are the drug
offenses to which he pleaded guilty on January 25, 1989 and April 16, 1990.
2
See Tenn . Code A nn. §§ 40-30-2 02, -206(b) (Supp . 1996).
-2-
summarily dismissing the petition as having been barred by the three-year statute
of limitations. 3
It appears that on the same day that the order of dismissal was entered,
April 9, 1996, the Petitioner received a copy of the State’s answer to his petition.
At that time, he was incarcerated in a federal penitentiary in Memphis,
Tennessee. In response to the State’s answer, which argued that the petition
was time-barred, the Petitioner sent additional documents to the clerk of the trial
court in which he had filed his petition. The documents made reference to the
convictions which he was challenging and again set forth his reasons that they
should be set aside. The Petitioner also responded to the State’s contention that
his petition was time-barred by arguing that the Post-Conviction Procedure Act
of 1995 had extended the filing deadline to May 10, 1996. Because he had filed
his petition on March 28, 1996, he asserted that it was not barred by the statute
of limitations. The trial court clerk received and filed these additional documents
on April 11, 1996.
On that same day, April 11, 1996, a copy of the order of dismissal was
mailed to the Petitioner. The envelope in which it was sent, however, did not list
the Petitioner’s name or prisoner number or any other identifying feature. Rather,
it was addressed only to the “Federal Correctional Institute” in “Memphis,
Tennessee.” As a result, there was a long delay between the time the order was
mailed and the time the Petitioner actually received it. It appears that he received
the order on May 10, 1996.
3
See Tenn . Code A nn. § 40-30-10 2 (repealed 199 5).
-3-
After receiving the copy of the State’s answer to his petition but before
receiving the copy of the order of dismissal, the Petitioner decided to write directly
to the trial court in response to the State’s contention that the petition was time-
barred. On April 24, 1996, he wrote a letter to the trial court explaining that his
petition was not filed after the statute of limitations had expired because the 1995
Post-Conviction Procedure Act had extended the filing deadline to May 10, 1996.
He also enclosed a copy of the relevant portion of the 1995 Act. The letter was
received and filed by the trial court clerk on April 26, 1996.
On April 29, 1996, apparently in response to this letter, the trial court
entered an order appointing the district public defender as counsel for the
Petitioner. A hearing on the matter was set for June 24, 1996. It is unclear
whether the trial court realized that the petition had already been dismissed as
of April 9, 1996. At that time, counsel for the Petitioner was unaware that the
petition had already been dismissed. Thus, counsel began to investigate the
case. During the investigation, counsel discovered that the petition had been
dismissed by an order entered on April 9, 1996. As a result, counsel filed a
motion to set aside the order of dismissal pursuant to Tennessee Rule of Civil
Procedure 60.02.4 In support of the Rule 60.02 motion, counsel argued that the
Petitioner had not received proper notice of the order of dism issal, seemingly by
mistake or inadvertence, until after the time period for filing notice of appeal had
expired. See Tenn. R. App. P. 4(a).
4
Tennessee Rule of Civil Procedure 60.02 allows a trial court to provide relief from final
judgments, orders or proceedings for a number of reasons, including “mistake, inadvertence, surprise
or ex cus able neg lect.”
-4-
During the time that counsel was discovering that the petition had already
been dismissed, the Petitioner finally received the copy of the order of dismissal.
In response to that order, he filed a pro se notice of appeal on May 20, 1996. As
a result, the record was sent to the clerk of this Court. No ruling was ever made
on the Rule 60.02 motion, nor was the evidentiary hearing scheduled for June 24,
1996, ever conducted.
On appeal, the Petitioner, with the assistance of counsel, argues primarily
that this Court should avoid reaching the merits of the trial court’s dismissal of the
post-conviction petition. Instead, he requests that we remand this case to the
trial court for consideration of the Rule 60.02 motion and, if that motion is deemed
well-taken, an evidentiary hearing on the post-conviction petition as was originally
scheduled for June 24, 1996. The Petitioner contends that he has a colorable
claim for the extension of the post-conviction statute of limitations to May 10,
1996, that should be considered by the trial court.
Initially we note that, although there has been procedural confusion in this
case and a Rule 60.02 motion was filed, it is from the trial court’s order of
dismissal that the Petitioner now appeals. The present case is before this Court
pursuant to the Petitioner’s notice of appeal filed on May 20, 1996. Obviously,
the notice of appeal was filed after the expiration of the thirty-day time period from
the entry of the trial court’s order of dism issal. Tenn. R. App. P. 4(a). The State,
however, concedes that the Petitioner was not properly served with a copy of the
order of dismissal. Given that circumstance and that the notice of appeal is not
jurisdictional, the State has agreed to waive timely filing of the notice. See Tenn.
R. App. P. 4(a). We see no purpose in remanding this case for the trial court’s
-5-
consideration of the Rule 60.02 motion and, should that motion be found to be
well-taken, consideration of the Petitioner’s claim that the 1995 Post-Conviction
Procedure Act extended the filing deadline for his petition for post-conviction
relief. W e believe that we have sufficient information to address the merits of the
Petitioner’s appeal from the trial court’s order of April 9, 1996, dismissing the
petition.
Although the Petitioner’s primary argum ent on appeal is that this Court
should remand to the trial court for consideration of the Rule 60.02 motion, it is
clear from the petition, other documents in the record, and the appellate brief that
he also argues that his petition was not barred by the statute of limitations
because of the one-year grace period provided by the 1995 Post-Conviction
Procedure Act. See Compiler’s Notes to Tenn. Code Ann. § 40-30-201 (Supp.
1996) (referring to Acts 1995, ch. 207, § 3). Accordingly, he contends that the
trial court erred in finding that his petition for post-conviction relief was barred by
the statute of limitations. At the time the Petitioner’s convictions became final,
the statute of limitations applicable to post-conviction proceedings was three
years. Tenn. Code Ann. § 40-30-102 (repealed 1995). The expiration of the
three-year statute of limitations in the Petitioner’s case occurred in 1992 for his
guilty pleas entered on January 25, 1989, and in 1993 for the guilty pleas entered
on April 16, 1990. As we stated above, the present petition was not filed until
March 28, 1996.
Of course, the new Post-Conviction Procedure Act governs this petition
and all petitions filed after May 10, 1995. See Tenn. Code Ann. § 40-30-201 et
seq. (Supp. 1996). W e agree with the Petitioner that this Act provides, in
-6-
pertinent part, that “notwithstanding 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 Tenn. Code Ann. § 40-30-
201 (Supp. 1996) (referring to Acts 1995, ch. 207, § 3). The Petitioner argues
that these terms of the new Post-Conviction Procedure Act allowed him one year
from May 10, 1995, to file his petition and, thus, his March 1996 petition was
timely filed.
W e recognize that another panel of this Court has held, with one member
dissenting, that the new Post-Conviction Procedure Act provides “a one-year
window” during which each and every defendant may file a petition. See Arnold
Carter v. State, C.C.A. No. 03C01-9509-CC-00270, Monroe County (Tenn. Crim.
App., Knoxville, July 11, 1996), perm. to appeal granted (Tenn. 1996). The
Carter court held that the one-year window is available even if the petition would
have been long ago barred by the three-year statute provided under the previous
act.
Other panels of this Court have followed the reasoning of the dissent in
Carter and held that the 1995 Act did not provide previously-barred petitioners
with a new one-year period from May 10, 1995 during which they could petition
for post-conviction relief. See Doyle Carter v. State, C.C.A. No. 01C01-9511-CC-
00398, Davidson County (Tenn. Crim. App., Nashville, Feb. 12, 1997); Eric C.
Pendleton v. State, C.C.A. No. 01C01-9604-CR-00158, Davidson County (Tenn.
Crim. App., Nashville, Feb. 12, 1997); W allace Butler v. Ricky Bell, W arden,
C.C.A. No. 02C01-9510-CC-00297, Fayette County (Tenn. Crim. App., Jackson,
-7-
Nov. 19, 1996); Johnny L. Butler v. State, C.C.A. No. 02C01-9509-CR-00289,
Shelby County (Tenn. Crim. App., Jackson, Dec. 2, 1996); Stephen Koprowski
v. State, C.C.A. No. 03C01-9511-CC-00365, Anderson County (Tenn. Crim.
App., Knoxville, Jan. 28, 1997); Steve Koprowski v. State, C.C.A. No. 03C01-
9511-CR-00378, Knox County (Tenn. Crim. App., Knoxville, Jan. 28, 1997).
W e choose to follow the reasoning set forth in the Carter dissent. In our
view, the one-year window provided by the language of the new Act is applicable
only to those petitioners who were not already barred by the previous statute of
limitations at the time the new Act took effect. Thus, if the previous three-year
statute of limitations had not expired on a petitioner at the time the new Act took
effect, he or she would have one year from the effective date of the statute, May
10, 1995, to file for post-conviction relief. This approach is in accordance with the
general tenor of the entire Act as well as its legislative history.
In the case sub judice, the record indicates that the Petitioner was
convicted on guilty pleas in January of 1989 and April of 1990. The previous
three-year statute of limitations expired for the Petitioner in 1992 and 1993. As
a result, the Petitioner was already barred by the previous statute of limitations
on the date the new Act took effect, May 10, 1995. Furthermore, the Petitioner
has not demonstrated that he fits within an exception to the statute of limitations.
See Tenn. Code Ann. § 40-30-202(b), (c) (Supp. 1996). Accordingly, the trial
court properly found that the petition was barred by the statute of limitations.
-8-
For the reasons set forth in the discussion above, we conclude that the trial
court did not err in dismissing the petition for post-conviction relief. We therefore
affirm the judgment of the trial court.
____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
JOE B. JONES, PRESIDING JUDGE
___________________________________
JOE G. RILEY, JUDGE
-9-