          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT JACKSON
                        APRIL SESSION, 1997




WALLACE BUTLER,             )
                            )   No. 02C01-9511-CR-00339
      Appellant             )
                            )   SHELBY COUNTY
vs.                         )
                            )   Hon. ARTHUR T. BENNETT, Judge
STATE OF TENNESSEE,         )

      Appellee
                            )
                            )
                                (Post-Conviction)
                                                            FILED
                                                              July 16, 1997
For the Appellant:              For the Appellee:           Cecil Crowson, Jr.
                                                            Appellate C ourt Clerk
MARK MESLER                     CHARLES W. BURSON
200 Jefferson, Suite 1250       Attorney General and Reporter
Memphis, TN 38103
                                JANIS L. TURNER
                                Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493


                                WILLIAM GIBBONS
                                District Attorney General

                                JENNIFER NICHOLS
                                Asst. District Attorney General
                                Third Floor, Criminal Justice Complex
                                201 Poplar Avenue
                                Memphis, TN 38103



OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                              OPINION



        The appellant, Wallace Butler, appeals as of right from the Shelby County

Criminal Court’s dismissal of his petition for post-conviction relief. The post-

conviction court summarily dismissed the petition finding the claims alleged were

barred by the statute of limitation.



        We affirm.



        On February 26, 1985, the appellant pled guilty to robbery with a deadly

weapon and was sentenced to forty years as a range II offender. No direct

appeal was taken by the appellant from the judgment of conviction. On

December 14, 1994, the appellant filed a pro se petition seeking post-conviction

relief. The appellant’s petition raised the claims of (1) involuntary guilty plea, (2)

ineffective assistance of counsel, and (3) improper enhancement as a range II

offender.1 The post-conviction court appointed counsel to represent the

appellant and to make any necessary amendments to the petition. At a

scheduled hearing, appointed counsel conceded the State’s defense that the

appellant’s claim was barred by the statute of limitation. Moreover, appointed

counsel stated that, despite diligent efforts, he was unable to find an exception to

the three year statute of limitation. The court dismissed the petition as being

time-barred.2



        On appeal, the appellant, relying on Watkins v. State, 903 S.W.2d 302

(Tenn. 1995), suggests that an exception to the three year statute of limitations

may apply to this case. In Watkins, the supreme court recognized that the


        1
          The appellant’s pro se petition w as c aption ed “W rit of Ha bea s Corpu s.” T he p ost-
con viction c ourt p rope rly treated the petition as one for po st-conviction relief. See Tenn. Code
Ann. § 40-30 -108 (repealed 19 95).

        2
         Appointed counsel was permitted to withdraw after dismissal of the petition and
substituted counsel was appointed for purposes of a ppeal.

                                                   2
statute is tolled for a person who is of unsound mind at the time the cause of

action accrues. Accordingly, the appellant argues that he “could very well have

been laboring under some mental infirmity during the time period when the

statute tolled.” This argument is misplaced for two reasons: (1) there is no

proof in the record before us that the appellant was suffering or has ever

suffered from a mental illness and (2) this issue is raised for the first time on

appeal and is, therefore, waived. See Rule 36 Tenn. R. App. P. and Butler v.

State, 789 S.W.2d 898 (Tenn. 1990).



       Additionally, we agree with the post-conviction court’s determination that

the petition is time-barred. On the date the appellant entered his guilty plea, no

statute of limitation for post-conviction proceedings had been enacted. The

legislature established a three-year statute of limitations on July 1, 1986. Thus,

the appellant had until July 1, 1989, to file any such petition. See Tenn. Code

Ann. § 40-30-102 (repealed 1995). The petition was filed on December 14,

1994. Moreover, no exception to the statute of limitation is applicable in the

present case.



       The judgment of the post-conviction court is affirmed.




                                   ____________________________________
                                   DAVID G. HAYES, Judge



CONCUR:



___________________________________
JOSEPH M. TIPTON, Judge



___________________________________
WILLIAM M. BARKER, Judge


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