Morris Donegan v. State ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JULY 1997 SESSION
August 22, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
MORRIS R. DONEGAN, ) NO. 01C01-9608-CR-00354
)
Appellant ) SUMNER COUNTY
)
V. ) HON. JANE WHEATCRAFT, JUDGE
)
STATE OF TENNESSEE, ) (Post-Conviction)
)
Appellee )
)
FOR THE APPELLANT FOR THE APPELLEE
David A. Doyle John Knox Walkup
District Public Defender Attorney General and Reporter
117 East Main Street 450 James Robertson Parkway
Gallatin, Tennessee 37066 Nashville, Tennessee 37243-0493
Lisa A. Naylor
Assistant Attorney General
450 James Robertson Parkway
Nashville, Tennessee 37243-0493
Lawrence Ray Whitley
District Attorney General
113 West Main Street
Gallatin, Tennessee 37066
OPINION FILED:______
AFFIRMED
William M. Barker, Judge
Opinion
The Appellant, Morris R, Donegan, appeals as of right the Sumner County
Criminal Court’s dismissal of his petition for post-conviction relief. In 1983, the
Appellant was convicted of three counts of aggravated rape and is currently serving a
sixty-year sentence in the Tennessee Department of Correction. This Court affirmed
the Appellant’s conviction on May 8, 1984.1 See State v. Morris R. Donegan, C.C.A.
No. 84-1-III (Tenn. Crim. App., Nashville, May 8, 1984). At some point thereafter, the
Appellant filed a petition for post-conviction relief which, after an evidentiary hearing,
was dismissed by the trial court. This Court affirmed the trial court’s dismissal in State
v. Morris Radford Donegan, C.A.A. No. 85-78-III (Tenn. Crim. App., Nashville,
Nov. 15, 1985) and the Tennessee Supreme Court denied the Appellant’s petition for
permission to appeal on March 3, 1986.
The Appellant filed this petition for post-conviction relief alleging that the jury
instructions at his trial unconstitutionally defined reasonable doubt. On May 13, 1996,
without an evidentiary hearing, the trial court issued an order dismissing the petition.
Pursuant to the now-repealed Post-Conviction Procedure Act, the statute of
limitation applicable to the Appellant’s post-conviction claims was three years.2 Tenn.
Code Ann. § 40-30-102 (repealed 1995). That three-year period began running on
July 1, 1986, the effective date of the statute. The last day on which the Appellant
could have filed such a petition was in July of 1989. See e.g. State v. Mullins, 767
S.W.2d 668, 669 (Tenn. Crim. App. 1988); Smith v. State, 757 S.W.2d 683, 685
(Tenn. Crim. App. 1988); State v. Masucci, 754 S.W.2d 90, 91 (Tenn. Crim. App.
1988); Abston v. State, 749 S.W.2d 487, 488 (Tenn. Crim. App. 1988). The
Appellant’s petition was filed in March of 1996, more than six years after the statute
expired. Consequently, the trial court properly dismissed the Appellant’s petition.
1
Th e rec ord d oes not indicate w heth er an y further app eals were so ugh t.
2
Prior to the enactment of the 1986 Post-Conviction Procedure Act, no statute of limitations for
post-conviction applications existed.
2
Any contention by the Appellant that the new Post-Conviction Procedure Act,
effective May 10, 1995, provided him with a one-year window of opportunity within
which to file his post-conviction petition is meritless. Similar attempts to circumvent
the statute of limitations in this manner have been previously rejected by panels of this
Court. See Roy Barnett v. State, C.C.A. No. 03C01-9512-CV-00394 (Tenn. Crim.
App., Knoxville, Feb. 20, 1997); Stephen Koprowski v. State, C.A.A. No. 03C01-9511-
CC-00365 (Tenn. Crim. App., Knoxville, Jan. 28, 1997); Johnny L. Butler v. State,
C.C.A. No. 02C01-9509-CR-00289 (Tenn. Crim. App., Jackson, Dec. 2, 1996). But
see Arnold Carter v. State, C.C.A. No. 03C01-9509-CC-00270 (Tenn. Crim. App.,
Knoxville, July 11, 1996).
Accordingly, the trial court’s dismissal of the Appellant’s petition for post-
conviction relief is affirmed.
__________________________
WILLIAM M. BARKER, JUDGE
CONCUR:
__________________________
JOHN H. PEAY, JUDGE
__________________________
JERRY L. SMITH, JUDGE
3