Joseph Veres vs. State

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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE NOVEMBER SESSION, 1996 JOSEPH VERES, Appellant, VS. STATE OF TENNESSEE, Appellee. FILED April 24, 1997 ) ) ) ) ) ) ) ) ) ) Cecil W. Crowson C.C.A. NO. 01C01-9602-CC-00070 Appellate Court Clerk PUTNAM COUNTY HON. LEON BURNS, JR. JUDGE (Post-Conviction Relief) FOR THE APPELLANT: FOR THE APPELLEE: DOUGLAS A. TRANT 900 S. Gay Street Suite 1502 Knoxville, TN 37902 CHARLES W. BURSON Attorney General and Reporter EUGENE J. HONEA Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243 BILL GIBSON District Attorney General BEN FANN Assistant District Attorney 145 S. Jefferson Avenue Cookeville, TN 38501 OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE OPINION Appellant Joseph Veres appeals from the dismissal of his petition for post-co nviction relief. O n Augu st 24, 199 5, Appe llant filed a pe tition for postconviction relief, alleging ineffective assistance of counsel and several other constitutional violations. The post-conviction court dismissed his petition as time-b arred . The is sue b efore th is Cou rt is whe ther A ppella nt s pe tition is barred by the statute of limitations found in Tennessee Code Annotated Section 40-30-102 (1990) (Repealed). For the reasons stated below, we affirm the d ecision o f the post-c onviction c ourt. The dates relevant to this appeal are as follows. On January 24, 1984, Appe llant was c onvicted of aggra vated se xual batte ry and ag gravated rape. On April 24, 1985, this Court affirmed Appellant s convictions. On July 15, 1985 th e Ten nesse e Supr eme C ourt den ied App ellant s app lication for ap peal. On July 1, 1986, the three year statute of limitations found in Tennessee Code Anno tated S ection 40-30 -102 b ecam e effec tive. On July 1, 1 989, A ppella nt s allowable time within which to file a petition for post-conviction relief expired.1 Tennessee Code Annotated Section 40-30-101 et seq. was amended and codified as Tennessee Code Annotated Section 40-30-202 et seq. On May 10, 1995, the amended act became effective. On August 24, 1995, Appellant filed his petition for post-co nviction relief. 1 When the final action of the highest state appellate court falls on a date before July 1, 1986, the effective d ate of T ennes see C ode An notated S ection 40 -30-102 , the limitation p eriod beg ins to run on th e effec tive date of th e statute. See Abston v. State , 749 S.W.2d 487 (Tenn. Crim. App. 1988); Sm ith v. State , 757 S.W .2d 683 (Tenn. Crim . App. 1988). -2- Appellant argues that even though his petition was filed beyond the three year statute o f limitations found un der the old Po st-Conviction Pro cedure Act, his pe tition may b e revived b y filing it under th e ame nded a ct. In support of his argument he cites Section 3 of Public Chapter 207, which is not codified but which is noted in the Compiler s Notes under Section 40-30-201 and provides : [N]otwithstanding a ny other provision o f this act to the contrary, any person having a ground for relief recognized under this act shall have at least one (1) yea r from the effective da te of this act to file a petition or a motion to reopen a petition under this act. We recognize that this Court has held that S ection 3 c reates a one-yea r window within whic h perso ns with previous ly time-ba rred petition s may s eek relief u nder the new ac t. Carter v. State, No. 0 3C0 1-950 9-CC -0027 0, 199 6 W L 389 243 (T enn. C rim. A pp. Ju ly 11, 199 6) (W elles, J., disse nting), perm. app. granted, (Tenn . Dec. 2, 1 996). However, several of our decisions since then have followed Judge Welles dissent. See, e.g., State v. B rumm itt, 1997 WL 106679 (Tenn. Crim. App. Mar. 11 , 1997); Carter v. S tate, 1997 WL 59422 (Tenn. Crim. App. Feb. 13, 1997); Pend leton v. Sta te, 1997 W L 59501 (T enn. Crim. A pp. Feb. 13, 1 997); Blake v. S tate, 1997 W L 5593 9 (Ten n. Crim. A pp. Feb . 12, 1997 ); Tillman v. State, 1997 W L 5585 3 (Ten n. Crim. A pp. Feb . 12, 1997 ); Kimer y v. State, 1997 W L 3114 3 (Ten n. Crim. A pp. Jan . 28, 1997 ); Kopro wski v. Sta te, 1997 WL 33638 (Tenn . Crim. A pp. Jan . 28,199 7); Butler v. Sta te, 1996 WL 691506 (Tenn . Crim. A pp. De c. 2, 1996 ); Butler v. Bell, 1996 WL 667907 (Tenn. Crim. App. N ov, 19, 1 996). W e find th at the b etter re ason ed view is expre ssed in Judge Welles dissent, concluding that petitions barred by the statute of limitations contained in the old Post-Conviction Procedure Act may not be revived by filing u nder th e am ende d act. T he cle ar inten t of our le gislatu re in -3- enacting the amended act was to put an end to multiple post-conviction appea ls and to lim it the time in w hich a sin gle petition must b e filed. Therefore, we affirm the judgment of the post-conviction court and hold that the petition for post-conviction relief filed by Appellant is barred by the applicable statute of limitations. ____________________________________ JERRY L. SMITH, JUDGE CONCUR: ___________________________________ JOHN H. PEAY, JUDGE ___________________________________ DAVID H. WELLES, JUDGE -4-

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