Purkey v. State ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JULY 1997 SESSION
October 8, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
RALPH DEAN PURKEY, ) C.C.A. NO. 03C01-9607-CC-00257
)
Petitioner/Appellant ) COCKE COUNTY
)
v. ) HON. REX HENRY OGLE,
) JUDGE
STATE OF TENNESSEE, )
) POST CONVICTION
Respondent/Appellee )
FOR THE APPELLANT FOR THE APPELLEE
Charles R. Ray, Esq. Charles W. Burson
211 Third Avenue North Attorney General & Reporter
P.O. Box 198288
Nashville, TN 37219 Marvin E. Clements, Jr.
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
OPINION FILED
AFFIRMED
JOHN K. BYERS
SENIOR JUDGE
OPINION
This is an appeal from the summary dismissal of a petition for post-conviction
relief.
On September 25, 1986, the defendant was convicted of grand larceny,
concealing stolen property, and being a habitual criminal. He was sentenced to
serve 10 years on the grand larceny and concealing stolen property convictions, and
a mandatory life sentence on the habitual criminal conviction. The sentences were
ordered to be served concurrently. The trial court’s judgment became final on
November 30, 1986.
The defendant’s trial counsel timely moved for a new trial, but the motion was
dismissed because of the defendant’s escape status. The defendant took no
appeal of the convictions. Since his return to custody, the defendant has filed three
(3) pro se petitions for post-conviction relief, each of which was summarily
dismissed as falling outside the applicable statute of limitations.
This third petition for post-conviction relief was filed May 10, 1996 and
dismissed May 28, 1996. The defendant’s post-conviction counsel raises the
following issue on appeal:
I. Whether the trial court erred by dismissing the petition for post-
conviction relief, as being barred by the applicable statute of limitations,
without the opportunity for a full and fair hearing on the merits.
The judgment of the trial court is affirmed.
Under the law in effect when the defendant was convicted,
“A prisoner in custody under sentence of a court of this state must
petition for post-conviction relief under this chapter within three (3)
years of the date of the final action of the highest state appellate court
to which an appeal is taken or consideration of such petition shall be
barred.” Tenn. Code Ann. § 40-30-102 (repealed by 1995 Tenn. Pub.
Act 207, Section 1).
The trial court’s judgment became final on November 30, 1986, and the
defendant took no appeal of the convictions. Therefore, the defendant’s opportunity
to petition for post-conviction relief expired three years later, on November 30, 1989.
See Rickie J. Wallen v. State, No. 03C01-9601-CC-00039, Sullivan County (Tenn.
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Crim. App. Jan. 9, 1997), app. filed (Tenn. Feb. 5, 1997); Warren v. State, 833
S.W.2d 101 (Tenn. Crim. App. 1992), appeal denied (Tenn. May 11, 1992) (both
cases holding that the three year statute of limitations for post-conviction relief
begins to run from the date of final conviction if no action to perfect the right to
appeal is taken).
Since the defendant’s petition was not timely filed under Tenn. Code Ann.
§ 40-30-102, the trial judge properly dismissed it.
In contesting this conclusion, the defendant argues that the recent decision of
this Court in Arnold Carter v. State, No. 03C01-9509-CC-00270, Monroe County
(Tenn. Crim. App. July 11, 1996), app. granted (Tenn. Dec. 2, 1996), affords him
relief. In Carter, a panel of this Court, with Judge Welles dissenting, construed the
new Post-Conviction Procedure Act, Tenn. Code Ann. § 40-30-201 (1996 Supp.), as
providing a “one-year window” during which any defendant could file a post-
conviction petition. The case held that the one-year window is available even if the
petition would have been barred by the three year statute of limitations allowed
under the previous Act.
However, the Supreme Court recently resolved this issue and held that
“petitioners for whom the statute of limitations expired prior to the effective date of
the new Act, i.e., May 10, 1995, do not have an additional year in which to file
petitions for post-conviction relief.” Carter v. State, ___ S.W.2d ___ (Tenn. 1997)
(filed Sept. 8, 1997, at Knoxville). Interpreting the new Act, the Supreme Court
explained: “We agree with the view that the statute was intended to restrict the time
and opportunity to seek post-conviction relief. Clearly, this purpose is not served by
a statutory construction that allows additional time and opportunity for petitioners
whose claims are already barred by the prior statute of limitations.” Id. Therefore,
the defendant’s issue on appeal has no merit.
The trial court’s dismissal of the petition was proper and we affirm the
judgment below.
John K. Byers, Senior Judge
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CONCUR:
David H. Welles, Judge
Thomas T. Woodall, Judge
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