In State v. Sam John Passarella, No. 81-260-Iii (Tenn. Crim. App., At Nashville, October

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
SAM JOHN PASSARELLA, )
November 3, 1998
) C.C.A. NO. 01C01-9801-CR-00049
Appellant, ) (No. C-7353 Below)
Cecil W. Crowson
) DAVIDSON COUNTY
Appellate Court Clerk
VS. )
) The Hon. Seth Norman
STATE OF TENNESSEE, )
) (Dismissal of Post-Conviction Petition)
Appellee. )
) AFFIRMED PURSUANT TO RULE 20
ORDER
This matter is before the Court upon the state’s motion requesting that the
judgment in the above-styled cause be affirmed pursuant to Rule 20, Tennessee Court of
Criminal Appeals Rules. The appellant opposes the motion.
The petitioner was convicted of two counts of aggravated kidnapping and was
sentenced to consecutive sentences totaling 70 years. This Court affirmed the judgment
in State v. Sam John Passarella, No. 81-260-III (Tenn. Crim. App., at Nashville, October
1, 1982), and it does not appear that an application for permission to appeal was filed in
the Supreme Court. Thereafter, the dismissal of the petitioner’s first petition for post-
conviction relief was upheld by this Court. Passarella v. State, 891 S.W.2d 619 (Tenn.
Crim. App. 1994). The petitioner filed his second post-conviction petition on May 9, 1996.
On January 20, 1998, the trial court dismissed the petition as outside the statute of
limitation. We affirm.
The petitioner concedes that this petition for post-conviction relief was filed
outside the statute of limitation. Instead, he is seeking relief under the holding in Burford
v. State, 845 S.W.2d 204 (Tenn. 1992).
Under Burford, our Supreme Court held that a late-filed petition for
post-conviction relief may be allowed if the statute of limitation violates due process as
applied to that petitioner when the government's interest in administrative efficiency and
economy does not outweigh the petitioner's interest and there is nothing stale or fraudulent
regarding petitioner's claim. 845 S.W.2d at 209-210. The petitioner has failed to allege
any interests which would allow the exception to the statute of limitations under Burford.
Furthermore, there is no evidence in the record of any exception applying under T.C.A. §
40-30-202(b)(1997 Repl.). Accordingly, we find that the state’s motion to affirm the
judgment pursuant to Rule 20 is well taken.
IT IS, THEREFORE, ORDERED that the state’s motion to affirm the
judgment of the trial court under Rule 20, Tennessee Court of Criminal Appeals Rules, is
granted, and the judgment of the trial court is affirmed. It appearing that the petitioner is
indigent, costs of these proceedings are taxed to the state.
_____________________________
JOHN H. PEAY, JUDGE
CONCUR:
_____________________________
JERRY L. SMITH, JUDGE
_____________________________
THOMAS T. WOODALL, JUDGE
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