Harold v. Smith

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
DECEMBER 1995 SESSION
March 12, 1996
Cecil Crowson, Jr.
Appellate Court Clerk
HAROLD V. SMITH, * C.C.A. #03C01-9506-CR-00168
APPELLANT, * HAWKINS COUNTY
VS. * Hon. James E. Beckner, Judge
STATE OF TENNESSEE, * (Post-Conviction)
APPELLEE. *
For the Appellant: For the Appellee:
Harold V. Smith Charles W. Burson
Pro Se Attorney General and Reporter
P.O. Box 500 450 James Robertson Parkway
Northeast Correction Center Nashville, TN 37243-0493
Mountain City, TN 37683
Clinton J. Morgan
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
C. Berkeley Bell Jr.
District Attorney General
John Douglas Godbee
Asst. District Attorney General
Hawkins County Courthouse
Rogersville, TN 37857
OPINION FILED:
AFFIRMED
William M. Barker, Judge
OPINION
The appellant, Harold V. Smith, appeals from the Hawkins County
Criminal Court's judgment summarily dismissing his petition for post-conviction relief.
The trial court dismissed the petition on May 17, 1995, without appointing counsel or
holding an evidentiary hearing. The court found that the petition was barred by the
statute of limitations1 and that the issues had been previously determined. After a
review of the record and applicable authority, we affirm the judgment.
The petition was filed on April 12, 1995, and the State filed an answer to
the petition on May 15, 1995. According to the petition, the appellant was convicted of
several counts of armed robbery and adjudged a habitual criminal on July 15, 1981.
Our court affirmed the judgment. State v. Harold Vernon Smith, No. 55 (Tenn. Crim.
App., June 11, 1982, Knoxville). The Tennessee Supreme Court denied the appellant's
application for permission to appeal on September 7, 1982. A long line of lawsuits
requesting collateral relief from the habitual criminal conviction and the underlying
convictions followed. See, e.g., Smith v. State, 814 S.W.2d 45 (Tenn. 1991); Smith v.
State, 757 S.W.2d 683 (Tenn. Crim. App. 1988); Harold V. Smith v. State, No. 03C01-
9312-CR-00393 (Tenn. Crim. App., July 1, 1994, Knoxville); Harold V. Smith v. State,
No. 95 (Tenn. Crim. App., June 25, 1987, Knoxville).
In this petition, the appellant alleged that his "enhanced punishment [as]
an habitual criminal is invalid because it does not comport with the statutory
prerequisites with respect to prior felony convictions." The appellant cites Beechum v.
1
The Post-Conviction Procedure Act governing this suit contained a three year
statute of limitations. Tenn. Code Ann. §40-30-102 (1990 Repl.). This provision, along
with the remainder of the Act, was repealed by Acts 1995, ch. 207 §1. See Tenn. Code
Ann. §40-30-201 et seq. (1995 Supp.). The new Post-Conviction Procedure Act
contains a one year statute of limitations. Tenn. Code Ann. §40-30-202(a)(1995
Supp.).
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United States, ___ U.S. ___, 114 S. Ct. 1669, 128 L. Ed. 2d 383 (1994), and argues that
the suit is not time barred because Beechum was not available as a ground for relief
until it was decided on May 16, 1994. On appeal, he maintains that he is entitled to
relief under Beechum. He also complains that the trial judge and the State failed to
comply with the statutory requirements of the Post-Conviction Procedures Act.
We disagree. In Beechum v. United States, supra, the United States
Supreme Court interpreted 18 U.S.C. §921(a)(20), a statute dealing with the definition
of a "conviction" for purposes of the federal firearms statute. Id. at 1671. The
defendants had claimed that prior federal convictions could not be used against them
because their civil rights had been restored pursuant to state law. The court held as
a matter of federal statutory interpretion that a restoration of civil rights for federal
felons must be pursuant to federal law. Id. In sum, Beechum does not afford any relief
to the appellant. See Dewey Scott Frazier v. State, No. 03C01-9505-CR-00142 (Tenn.
Crim. App., Feb. 8, 1995, Knoxville). It follows that it also does not serve as a basis for
exempting this case from the statute of limitations. Id.
This petition was clearly barred by the three year statute of limitations,
and it was subject to summary dismissal. See Hardin v. State, 873 S.W.2d 2, 3 (Tenn.
Crim. App. 1993). The appellant's contentions that the trial judge should have
appointed counsel, conducted a hearing, and entered detailed findings of fact and law
are without merit. Likewise, because the grounds in the petition were conclusively
incorrect, the appellant was not harmed by the State's apparent failure to serve the
appellant with a copy of its answer to the petition. See, e.g., Givens v. State, 702
S.W.2d 578, 579 (Tenn. Crim. App. 1985); Tonia Lee Davenport v. State, No. 02C01-
9307-CC-00151 (Tenn. Crim. App., Feb. 8, 1995, Jackson).
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___________________________
William M. Barker, Judge
______________________________
David G. Hayes, Judge
______________________________
Jerry L. Smith, Judge
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