State v. Tyler Banes ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
AUGUST SESSION, 1999 FILED
Ocotober 31, 1999
TYLER W. BANES, ) C.C.A. NO. 02C01-9812-CC-00378
) Cecil Crowson, Jr.
Appe llant, ) Appellate Court Clerk
)
) MADISON COUNTY
VS. )
) HON. FRANKLIN MURCHISON,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
ON APPEAL FROM THE JUDGMENT OF THE
CIRCUIT COURT OF MADISON COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
TYLER W. BANES PAUL G. SUMMERS
Pro Se Attorney General and Reporter
Turney Center, Route 1
Only, TN 37140-9709 R. STEPHEN JOBE
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243-0493
JERRY W OODALL
District Attorney General
ALFRED EARLS
Assistant District Attorney General
P.O. Box 2825
Jackson, TN 38302
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
Pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure, the
Defendant, Tyler W. Banes appeals as of right the trial court’s order dismissing his pro
se petition for post-conviction relief. We conclude, without reaching the merits of the
Defendant’s claims, that the Defendant’s petition for post-conviction relief is time-
barred. We accordingly affirm the dismissal of the Defendant’s petition for post-
conviction relief by the trial court.
In May 1992, the Defendant was convicted of aggravated rape and aggravated
sexual battery. In October 1993, this Court dismissed the Defendant’s conviction for
aggravated sexual battery, but affirmed his conviction for aggravated rape.1 The
Tennessee Supreme Court denied the Defendant’s application for permission to appeal
in 1994.
The Defendant subsequently filed a petition for writ of error coram nobis,
requesting that his conviction for aggravated rape be set aside and that he be granted
a new trial because of newly discovered evidence. The evidence upon which he based
his petition was a recantation of testimony by the minor victim of his crime. However,
the trial court denied the petition, voicing distrust of the victim’s recantation. On May
1, 1996, this Court affirmed the trial court’s dismissal of the petition for writ of error
coram nobis.2
On December 2, 1997, the Defendant filed a pro se petition for post-conviction
relief and a pro se amendment to his petition for post-conviction relief. The trial court
1
State v. Banes, 874 S.W .2d 73, 81 (Tenn. Crim . App. 1993).
2
Tyler W ayne Ban es v. State , No. 02C 01-950 8-CC -00249 , 1996 W L 2183 55 (Te nn. Crim . App.,
Jackson, May 1, 1996.
-2-
summarily dismissed the petition on November 20, 1998, finding that all issues raised
by the Defendant in his petition were either previously determined or waived in that they
were not raised on direct appeal. The Defendant now appeals pro se from the
dismissal of his petition.
The pro se petition alleges generally prosecutorial misconduct, ineffective
assistance of counsel and improper jury instructions. An amendment to the petition
alleges that the indictment is defective. From our review of the record on appeal, we
conclude that the petition is barred by the applicable statute of limitations.
At the time the Defendant’s conviction became final, the statute of limitations
applicable to post-conviction proceedings was three years. Tenn. Code Ann. § 40-30-
102 (repealed 1995). The three-year statute of limitations was subsequently shortened
to one year by the new Post-Conviction Procedure Act, which took effect on May 10,
1995. See id. § 40-30-210 to -310 (1997). The new statute of limitations begins to run
from the “date of the final action of the highest state appellate court to which an appeal
is taken or, if no appeal is taken, [from] the date on which the judgment became final.”
Id. § 40-30-202(a). At the time the new act took effect, the previous three-year statute
of limitations had not expired for the Defendant.
Of course, the new Post-Conviction Procedure Act governs this petition and all
petitions for post-conviction relief filed after May 10, 1995. Id. The notes
accompanying the new act explain that “any person having ground for relief recognized
under [the new act] shall have at least one (1) year from May 10, 1995, to file a petition
or motion to reopen a petition under” the new act. Id. § 40-30-201 compiler’s notes;
see also Carter v. State, 952 S.W.2d 417, 419-20 (Tenn. 1997). The new act provides
that a reviewing court may entertain a late-filed petition for post-conviction relief only
if certain narrow exceptions apply. See Tenn. Code Ann. § 40-30-202(b)(1)-(3) (1997).
-3-
The Defendant’s conviction was affirmed by this Court on direct appeal in
October 1993, and the Tennessee Supreme Court denied the Defendant’s application
for permission to appeal in 1994. The Defendant thus had until May 10, 1996, one year
from the effective date of the new Post-Conviction Procedure Act, to file his petition for
post-conviction relief. His petition, filed on December 2, 1997, obviously falls outside
of this time period.3 Therefore, the Defendant’s petition is barred by the one-year
statute of limitations applicable to post-conviction proceedings. Moreover, we conclude
that none of the statutory exceptions apply. See Tenn. Code Ann. § 40-30-202 (a), (b).
Accordingly, we affirm the trial court’s dismissal of the Defendant’s petition for
post-conviction relief.
____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
JERRY L. SMITH, JUDGE
___________________________________
JAMES CURWOOD WITT, JUDGE
3
The amended petition alleges that the original petition was filed on May 6, 1996. In a response
to the State ’s m otion to dis mis s the petitio n as t ime -bar red, th e De fend ant a lleges that th e cler k’s
office lost o r misp laced the docum ents. Th e Defe ndant ap parently se nt a copy o f the petition to
the District Attorney’s office in May, 1996, but the record reflects that the petition and other
documents were not filed in the Court Clerk’s office until December 2, 1997.
-4-