         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs December 12, 2001

                    JASON MICHON v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Davidson County
                        No. 98-B-1159    Cheryl A. Blackburn, Judge



                     No. M2001-00343-CCA-R3-PC - Filed January 4, 2002


Petitioner appeals the summary dismissal of his petition for post-conviction relief after the trial court
found it was barred by the statute of limitations. We conclude that due process considerations may
have tolled the running of the statute of limitations if trial counsel misled petitioner concerning his
intention to pursue an appeal. We, therefore, reverse and remand for an evidentiary hearing on the
issue of tolling.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed;
                                        Remanded

JOE G. RILEY, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR. and JOHN
EVERETT WILLIAMS, JJ., joined.

Jason Michon, Clifton, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Roger D. Moore, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                              OPINION

                                    PROCEDURAL HISTORY

       Petitioner was convicted by a jury of aggravated robbery in February 1999. He was
sentenced to a term of eleven years in May 1999. A timely filed motion for new trial was denied in
July 1999. Apparently, trial counsel did not file a notice of appeal.

       Petitioner filed a petition for post-conviction relief on December 21, 2000. The petition
alleged, inter alia, that he was deprived of effective assistance of counsel prior to and during trial.
Petitioner also asserted he was deprived of effective assistance of counsel due to counsel’s failure
to pursue appellate relief, although petitioner was led to believe counsel was pursuing an appeal.

        The trial court summarily dismissed the petition, concluding it was barred by the statute of
limitations. The trial court further concluded petitioner made no allegations which would toll the
statute of limitations. This appeal followed.


                   DUE PROCESS TOLLING OF STATUTE OF LIMITATIONS

         A petition for post-conviction relief must be filed within one year of the date the judgment
became final if no appeal was taken. Tenn. Code Ann. § 40-30-202(a). Here, the judgment became
final in August 1999, thirty days after the sentencing judgment was entered. The December 2000
filing of the petition was well beyond one year. Thus, the petition was untimely unless the statute
of limitations was tolled.

         This case is controlled by Williams v. State, 44 S.W.3d 464 (Tenn. 2001), which, in fairness
to the trial court, was filed subsequent to the order of dismissal. The record in Williams indicated
the petitioner might have been denied the opportunity to timely challenge his conviction through no
fault of his own, but because of possible misrepresentations of counsel. Id. at 468. The court noted
that if one erroneously believes that counsel is continuing to represent him in seeking appellate
relief, he is essentially precluded from pursuing certain remedies independently. Id. at 469 (citations
omitted). The court concluded that if counsel, in fact, misled the petitioner into believing
representation was continuing, then due process required tolling of the statute of limitations. Id. at
471. The court remanded for an evidentiary hearing relating to the tolling issue. Id.

        Petitioner in the case sub judice alleged he was led to believe that counsel was pursuing an
appeal of his conviction, and he did not learn otherwise until after the one year had run. Based upon
the allegations of petitioner, we conclude that he is entitled to a hearing on the issue of tolling. Just
as the court did in Williams, we remand for an evidentiary hearing to determine whether the
petitioner was, in fact, misled into believing that his counsel would seek appellate review. See id at
471. Specifically, the trial court shall determine (1) whether due process tolled the statute of
limitations so as to give the petitioner a reasonable opportunity after the expiration of the limitations
period to present his claim in a meaningful time and manner; and (2) if so, whether petitioner’s filing
of his petition on December 21, 2000, was within the reasonable opportunity afforded by the due
process tolling. Id. Counsel should be appointed to represent petitioner.1


         1
          W e note that Tenn. R. Crim. P. 37 (d) provides that cou nsel fo r any defenda nt who h as a right to ap peal shall
either timely file notice of ap peal or a w ritten w aiver of ap peal signed by the defendan t. The trial court noted that no
appeal was filed from the original conviction, but the record is silent as to whether a waiver of appeal was filed.
Nev ertheless, we assume it was not as the state does not contend otherwise. Regardless, the failure to file a written
waiver does not, in and of itself, render the jud gm ent invalid. See Ranier v. State, 958 S.W.2d 356, 357 (Tenn. Crim.
                                                                                                               (con tinued...)

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                                             CONCLUSION

       Accordingly, we reverse the judgment of the trial court and remand for an evidentiary
hearing.


                                                           ___________________________________
                                                           JOE G. RILEY, JUDGE




        1
           (...continued)
Ap p. 19 97); Dale M . Jenk ins v. S tate, CCA No. 01C01-9405-CR-00156, 1995 WL 218500, at *3 (Tenn. Crim. App.
Ap r. 13, 1 995 , at Nashville).

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