State v. Robert Bitner

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
FEBRUARY SESS ION, 1998 February 24, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
ROBERT DUANE BITNER, ) C.C.A. NO. 02C01-9705-CC-00177
)
Appe llant, )
) CARROLL COUNTY
V. )
)
) HON. C. CREED MCGINLEY, JUDGE
STATE OF TENNESSEE, )
)
Appellee. ) (POST-C ONVIC TION)
FOR THE APPELLANT: FOR THE APPELLEE:
ROB ERT DUAN E BITN ER, pro se JOHN KNOX WALKUP
Register Number 216742 Attorney General & Reporter
Route 1, Box 330
Tiptonville, TN 38079-9775 KENNETH W. RUCKER
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243
G. ROBERT RADFORD
District Attorn ey Ge neral
ELEANOR CAHILL
Assistant District Attorney General
111 Church Street
P.O. Box 686
Huntingdon, TN 38344-0686
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
This case rep resents an app eal from the dism issal of the Petitio ner’s
petition for post-co nviction relief. The Petitioner was originally convicted of three (3)
counts of aggravated sexual battery and received an effective twenty-four (24) year
sentence. This court affirmed the judgment of the trial court on direct app eal, State
v. Bitner, C.C.A. No. 02C01-9307-CC-00148 , Carroll C ounty (T enn. C rim. App .,
Jackson, May 25, 1994), and the supreme court denied application for permission
to appeal on August 29, 1994. On July 1 0, 1996 , Petitioner filed a petition for post-
conviction relief. Finding that the statu te of limitations had exp ired, the trial court
dismissed the petition without a hearing.
The petition in this case was filed after the effective date of the 1995
Post-Conviction Procedure Act, and is therefore governed by the provisions found
therein. Com piler’s Notes, Tenn. Code Ann. § 40-3 0-201 (1 997). Pu rsuant to
Tennessee Code Annotated section 4 0-30-20 2(a) (199 7), a person in custody under
a sentence o f a court of this state must petition for post-conviction relief within one
year of the date of the final action of the highest state appellate court to which an
appeal is taken or, if no appeal is taken, within one year of the date on which
judgment beca me fin al. This section further provides that the statute of limitations
shall not be tolled for any reason, including any tolling or saving provision otherwise
availab le at law or equity, other than three (3) exceptions set forth in Tennessee
Code Annota ted sectio n 40-30 -202(b)( 1), (2) and (3). None of these exceptions
applie s in this cas e. Jud gme nt in this case became final on August 29, 1994, and
the Petition er did no t file his petition fo r post-co nviction relief u ntil July 10, 19 96.
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According ly, his petition was barred by the statute of limitations. Because the prior
three year statute of limitations had not expired on the e ffective date of the new Ac t,
the Petition er had until Ma y 10, 19 96, in w hich to file his petition for post-conviction
relief. See Com piler’s Notes, Tenn. Code Ann. § 4 0-30-20 1 (1997 ); Mane y v. State,
C.C.A. No. 03C01-9612-CR-00470, Bradley County (Tenn. Crim. App., Knoxville,
Oct. 10, 1997) (no Rule 11 ap plication filed). However, as noted, the petition in this
case was filed beyond that date.
In Carter v. S tate, 952 S.W.2d 417 (Tenn. 1997), our sup reme cou rt
recognized situations in which the new on e year sta tue of limitations would expire
before the prior three year statute. The court held that the enabling provision of the
1995 Act whic h grante d perso ns in thes e situation s until May 10, 199 6, in which to
file a petition for post-conviction relief, adequately protected the rights of these
person s. Id. At 420.
Accordingly, we conclude that the trial court correctly found that the
petition was barred by the statute of limitations, and therefore, a sum mary dismissal
of the petition was ap propriate . Tenn. C ode An n. § 40-3 0-206(b ) (1997).
The judgment of the trial court is affirmed.
____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
JOSEPH B. JONES, Presiding Judge
___________________________________
JOHN H. PEAY, Judge
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