IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
APRIL SESSION, 1997
WALLACE BUTLER, )
) No. 02C01-9511-CR-00339
Appellant )
) SHELBY COUNTY
vs. )
) Hon. ARTHUR T. BENNETT, Judge
STATE OF TENNESSEE, )
Appellee
)
)
(Post-Conviction)
FILED
July 16, 1997
For the Appellant: For the Appellee: Cecil Crowson, Jr.
Appellate C ourt Clerk
MARK MESLER CHARLES W. BURSON
200 Jefferson, Suite 1250 Attorney General and Reporter
Memphis, TN 38103
JANIS L. TURNER
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
WILLIAM GIBBONS
District Attorney General
JENNIFER NICHOLS
Asst. District Attorney General
Third Floor, Criminal Justice Complex
201 Poplar Avenue
Memphis, TN 38103
OPINION FILED:
AFFIRMED
David G. Hayes
Judge
OPINION
The appellant, Wallace Butler, appeals as of right from the Shelby County
Criminal Court’s dismissal of his petition for post-conviction relief. The post-
conviction court summarily dismissed the petition finding the claims alleged were
barred by the statute of limitation.
We affirm.
On February 26, 1985, the appellant pled guilty to robbery with a deadly
weapon and was sentenced to forty years as a range II offender. No direct
appeal was taken by the appellant from the judgment of conviction. On
December 14, 1994, the appellant filed a pro se petition seeking post-conviction
relief. The appellant’s petition raised the claims of (1) involuntary guilty plea, (2)
ineffective assistance of counsel, and (3) improper enhancement as a range II
offender.1 The post-conviction court appointed counsel to represent the
appellant and to make any necessary amendments to the petition. At a
scheduled hearing, appointed counsel conceded the State’s defense that the
appellant’s claim was barred by the statute of limitation. Moreover, appointed
counsel stated that, despite diligent efforts, he was unable to find an exception to
the three year statute of limitation. The court dismissed the petition as being
time-barred.2
On appeal, the appellant, relying on Watkins v. State, 903 S.W.2d 302
(Tenn. 1995), suggests that an exception to the three year statute of limitations
may apply to this case. In Watkins, the supreme court recognized that the
1
The appellant’s pro se petition w as c aption ed “W rit of Ha bea s Corpu s.” T he p ost-
con viction c ourt p rope rly treated the petition as one for po st-conviction relief. See Tenn. Code
Ann. § 40-30 -108 (repealed 19 95).
2
Appointed counsel was permitted to withdraw after dismissal of the petition and
substituted counsel was appointed for purposes of a ppeal.
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statute is tolled for a person who is of unsound mind at the time the cause of
action accrues. Accordingly, the appellant argues that he “could very well have
been laboring under some mental infirmity during the time period when the
statute tolled.” This argument is misplaced for two reasons: (1) there is no
proof in the record before us that the appellant was suffering or has ever
suffered from a mental illness and (2) this issue is raised for the first time on
appeal and is, therefore, waived. See Rule 36 Tenn. R. App. P. and Butler v.
State, 789 S.W.2d 898 (Tenn. 1990).
Additionally, we agree with the post-conviction court’s determination that
the petition is time-barred. On the date the appellant entered his guilty plea, no
statute of limitation for post-conviction proceedings had been enacted. The
legislature established a three-year statute of limitations on July 1, 1986. Thus,
the appellant had until July 1, 1989, to file any such petition. See Tenn. Code
Ann. § 40-30-102 (repealed 1995). The petition was filed on December 14,
1994. Moreover, no exception to the statute of limitation is applicable in the
present case.
The judgment of the post-conviction court is affirmed.
____________________________________
DAVID G. HAYES, Judge
CONCUR:
___________________________________
JOSEPH M. TIPTON, Judge
___________________________________
WILLIAM M. BARKER, Judge
3