Joseph Veres v. State ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
NOVEMBER SESSION, 1996
April 24, 1997
Cecil W. Crowson
JOSEPH VERES, ) C.C.A. NO. 01C01-9602-CC-00070
Appellate Court Clerk
)
Appellant, )
)
) PUTNAM COUNTY
VS. )
) HON. LEON BURNS, JR.
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction Relief)
FOR THE APPELLANT: FOR THE APPELLEE:
DOUGLAS A. TRANT CHARLES W. BURSON
900 S. Gay Street Attorney General and Reporter
Suite 1502
Knoxville, TN 37902 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 post-
conviction 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Section 40-30-102 (1990) (Repealed).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).
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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
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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
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