Frank Barnard v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MAY 1999 SESSION
October 13, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
FRANK BARNARD, * C.C.A. NO. 01C01-9807-CR-00296
APPELLANT, * DAVIDSON COUNTY
VS. * Hon. Steve Dozier, Judge
STATE OF TENNESSEE, * (Post-Conviction)
APPELLEE. *
For Appellant: For Appellee:
Kyle L. Marquardt Paul G. Summers
Attorney for Appellant Attorney General and Reporter
211 Printers Alley, Suite 502 450 James Robertson Parkway
Nashville, TN 37201-1414 Nashville, TN 37243-0493
Georgia Blythe Felner
Counsel for the State
Criminal Justice Division
425 Fifth Avenue North
Nashville, TN 37243
John Seaborg
Washington Square Bldg.
Assistant District Attorney General
222 Second Avenue North
Nashville, TN 37201-1649
OPINION FILED: ____________________
AFFIRMED - RULE 20
NORMA MCGEE OGLE, JUDGE
OPINION
The petitioner, Frank Barnard, appeals the dismissal of his petition for
post-conviction relief by the Davidson County Criminal Court on June 11, 1998. On
November 13, 1992, the petitioner was convicted by a jury in the Davidson County
Criminal Court of first degree murder, felony murder, robbery, and aggravated
sexual battery. The trial court merged the felony murder count with the first degree
murder count because they arose from the same offense. The petitioner filed a
Motion for Judgment of Acquittal and Motion for New Trial. The trial court denied
the motion on all grounds except the trial court reversed the robbery conviction.1 On
September 1, 1994, this court affirmed the petitioner’s convictions and on November
24, 1994, our supreme court denied further review. State v. Barnard, 899 S.W.2d
617 (Tenn. Crim. App), perm. to appeal denied (Tenn. 1994).
On July 31, 1997, the petitioner, Frank Barnard, filed a pro se petition
for post-conviction relief in the Davidson County Criminal Court. The trial court
appointed counsel and the petitioner filed an amended petition for post-conviction
relief on October 21, 1997. On June 5, 1998, the trial court conducted a hearing to
determine if the statute of limitations barred the petition. After the hearing, the trial
court took the matter under advisement and entered an order denying the petition
for post-conviction relief because the petition was filed beyond the applicable statute
of limitations. Having thoroughly reviewed the record and the parties’ briefs, we
conclude that this an appropriate case for affirmance pursuant to Ct. Crim. App.
Rule 20.
1
As noted by the post-conviction court, the State has not sought to re-indict or pursue further
prosecution on the robbery charge.
2
On appeal, the petitioner contends that the strict application of the one
(1) year statute of limitations violates the petitioner’s right to constitutional due
process under the Fourteenth Amendment to the Constitution of the United States
and Article I, Section 8 of the Tennessee Constitution. See Tenn. Code Ann. § 40-
30-202 (1997). The petitioner does not argue that one of the exceptions to the
statute of limitations applies in his case. In essence, the petitioner argues that when
his conviction became final on November 28, 1994, he had three years within which
to file a petition for post-conviction relief. When our legislature amended the period
of limitation in 1995 to the shorter one year period, the petitioner was incarcerated
and without legal counsel to advise him of the new shorter statute of limitations.
The petitioner further argues that, because of his ignorance of the new law, he
should have the original three year period within which to file a petition. Moreover,
the petitioner contends that applying the shorter, one year limitations period denies
the petitioner due process of law.
The petitioner’s convictions became final on November 28, 1994. At
that time, under the existing Post-Conviction Procedure Act, the petitioner had three
years from the date his convictions became final to file his petition for post
conviction relief. See Tenn. Code Ann. § 40-30-102 (1994 Repl.) However, our
legislature enacted the 1995 Post-Conviction Procedure Act which shortened the
statute of limitations period to one year. See Tenn. Code Ann. § 40-30-202 (1997).
Therefore, the petitioner had one year from the effective date of the new statute
(May 10, 1995) to file his petition for post-conviction relief. The petitioner failed to
do so. Furthermore, this court has previously stated that the application of the one-
year statute of limitations for filing petitions for post-conviction relief does not violate
due process in a situation where the three-year statue of limitations had been in
effect at the time the petitioner’s convictions became final. Carothers v. State, 980
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S.W.2d 215, 218-218 (Tenn. Crim. App. 1997); Holston v. State, No. 02C01-9609-
CR-00298, 1997 WL 421212, at *1-2 (Tenn. Crim. App. at Jackson, July 28, 1997).
Moreover, this court has stated that application of the one-year statute of limitations
affords a reasonable opportunity for similarly situated petitioners to file for post-
conviction relief within one year of the statute’s effective date. Id. Tennessee
courts have consistently held that ignorance of the law does not excuse the untimely
filing of a petition for post-conviction relief. Dyer v.State, No. 03C01-9712-CR-
00515, 1998 WL 667872, at *1 (Tenn. Crim. App. at Knoxville, September 23,
1998). Accordingly, we affirm the judgment of the post- conviction court pursuant to
Ct. Crim. App. Rule 20.
__________________________________
Norma McGee Ogle, Judge
CONCUR:
______________________________
David G. Hayes, Judge
_______________________________
Jerry L. Smith, Judge
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