         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  November 20, 2002 Session

                MANNY T. ANDERSON v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Davidson County
                         No. 98-B-1242    Cheryl Blackburn, Judge



                      No. M2002-00641-CCA-R3-PC - Filed April 30, 2003


The petitioner pled guilty to two counts of aggravated assault and one count of aggravated
kidnapping on September 10, 1998, and was sentenced as a Range II, multiple offender to concurrent
sentences of eight years at 35% for each count of aggravated assault and as a Range I, standard
offender to eight years at 30% for the aggravated kidnapping charge, with the sentence suspended
and the petitioner placed on eight-year probation. As a result of a probation violation, the trial court,
on September 14, 2001, revoked probation and amended the judgments so that the sentence to be
served for aggravated kidnapping was modified to eight years at 100%. Challenging the amendment,
a pro se petition for post-conviction relief was filed on January 2, 2002, which was denied as being
untimely. On appeal, the petitioner argues that, because the one-year statute of limitations began to
run at the time of entry of the amended judgment for the kidnapping conviction, his post-conviction
petition was timely. We agree and reverse the order of the post-conviction court dismissing the
petition as untimely.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which DAVID H. WELLES and JOE G.
RILEY, JJ., joined.

Barry R. Tidwell, Nashville, Tennessee, for the appellant, Manny T. Anderson.

Paul G. Summers, Attorney General and Reporter; Christine M. Lapps, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Roger Moore, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                                     OPINION

                                                       FACTS

        The petition to enter plea of guilty dated September 10, 1998, provides that the petitioner,
Manny T. Anderson, was to plead guilty to two counts of aggravated assault and one count of
aggravated kidnapping. According to the petition, the punishment for each of the two counts of
aggravated assault was to be “8 years, Range II suspend all but time served[,] 8 years supervised
probation concurrent 52 weeks Peace,” and for the aggravated kidnapping “8 yrs., Rg. I suspend all
but time served[,] 8 years supervised probation concurrent consecutive to 96-B-855.” These pleas
of guilty were accepted, and sentences imposed, by another trial court judge sitting by interchange.

        In a letter dated June 11, 1999, the Tennessee Department of Correction notified the trial
court of an “upcoming change in the calculation of [the petitioner’s] sentence that was imposed
September 10, 1998” because, in January 1998 when the aggravated kidnapping was committed,
Tennessee Code Annotated section 40-35-501 mandated that anyone convicted of that offense must
serve 100% of the sentence imposed.1 “If revoked from probation,” the letter states, “the Department
will be recalculating [the petitioner’s] sentence to comply with the order of the Davidson County
court.”

        Subsequently, the trial court issued a warrant on January 21, 2000, for the petitioner’s arrest
because of the allegation that he had violated his probation by being arrested for aggravated child
abuse on December 1, 1999, and failing to report the arrest to his probation officer as was required.
Thereafter, amended judgments were entered on April 19, 2000, stating: “Defendant admits
violation; time served; back onto probation after serving sentence in 96-B-855.”

        On September 14, 2001, the trial court again entered amended judgments for the petitioner’s
September 10, 1998, convictions for aggravated assault and aggravated kidnapping, providing the
sentence to be served for aggravated kidnapping was modified to eight years at 100% “to serve as
a violent offender.” The sentences to be served for the two counts of aggravated assault were left
unchanged.



       1
           Tennesse e Co de A nnotated sec tion 40 -35-5 01(i) (1997) provides, in pertine nt part:
                  (1) There shall be no release eligibility for a person committing an offense, on or
                  after July 1, 1995 , that is enumerated in subdivision (2). Such person shall serve
                  one hundred percent (100%) of the sentence imposed by the court less sentence
                  credits earned and retained. However, no sentence reduction credits authorized by
                  § 41-21-236, or any other provision of law, shall operate to reduce the sentence
                  imposed by the court by more than fifteen percent (15%).
                  (2) The offenses to which the provisions of subdivision (1) apply are:
                  ....
                       (D) Aggravated kidnapping.




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        The petitioner filed a pro se petition for post-conviction relief, styled “Petition for Relief
from Conviction or Sentence,” on January 2, 2002, contesting the resentencing as to the aggravated
kidnapping conviction and seeking to withdraw his pleas of guilty as to this offense as well as both
counts of aggravated assault. This petition was denied by an order entered January 16, 2002, which
stated:

                        The final action of the trial court in this matter occurred when
                it sentenced Petitioner to an effective sentence of eight (8) years at
                one hundred percent (100%) on September 10, 1998. Therefore, the
                judgment of the Court became final on that date. Accordingly,
                Petitioner’s deadline for filing his petition within the statutory
                guidelines was September 10, 1999. Petitioner did not file his
                petition until January 2, 2002, over one (1) year after the statute of
                limitations had tolled in this matter.

       Tennessee Code Annotated section 40-30-202(a), upon which the court based its ruling,
provides, in pertinent part:

                [A] person in custody under a sentence of a court of this state must
                petition for post-conviction relief under this part within one (1) 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 (1) year
                of the date on which the judgment became final, or consideration of
                such petition shall be barred. The statute of limitations shall not be
                tolled for any reason, including any tolling or saving provision
                otherwise available at law or equity.

       The petitioner filed a second pro se petition for post-conviction relief, styled “Amendment
of Post Conviction,” on January 29, 2002, setting out claims similar to that in his first petition and
seeking his “immediate release.” The post-conviction court denied this petition as well for being
untimely. The petitioner’s notice of appeal filed on February 27, 2002, appeals from the post-
conviction court’s January 30, 2002, dismissal of his second post-conviction petition, but not the
January 16, 2002, dismissal of the first post-conviction petition.

                                             ANALYSIS

        The petitioner argues that the one-year statute of limitations on post-conviction petitions
began to run at the discovery of the facts on which the petition was based and, therefore, the trial
court erred in denying his request for relief as untimely. As he argues in his brief, “at the time of his
plea, the issue that forms the heart of his petition for post-conviction relief, was not discoverable to
him, nor was there a reasonable expectation that he could have discovered the issue within the one
year statute of limitation period.”



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       The State contends that the petitioner’s argument is waived because his notice of appeal was
untimely and, in any event, that the trial court correctly held that the statute of limitations began to
run on September 10, 1998, the day the petitioner entered his guilty pleas.

       Because the trial court first denied his petition on January 16, 2002, and he filed his notice
of appeal on February 27, 2002, the State is correct in stating that the petitioner’s notice of appeal
was outside of the thirty-day statutory time period mandated by Tennessee Rule of Appellate
Procedure 4(a) which provides, in pertinent part, as follows:

                In an appeal as of right to the Supreme Court, Court of Appeals or
                Court of Criminal Appeals, the notice of appeal required by Rule 3
                shall be filed with and received by the clerk of the trial court within
                30 days after the date of entry of the judgment appealed from;
                however, in all criminal cases the "notice of appeal" document is not
                jurisdictional and the filing of such document may be waived in the
                interest of justice. The appropriate appellate court shall be the court
                that determines whether such a waiver is in the interest of justice.

Although the petitioner does not argue that the requirement of a timely filing of a notice of appeal
should be waived in the interest of justice, Rule 4 permits this court to waive the requirement on our
own motion when it is in the interest of justice to do so. Here, because the petitioner’s appeal has
merit, we conclude that it is in the interest of justice that the notice of appeal requirement be waived.
See State v. Dodson, 780 S.W.2d 778, 780-81 (Tenn. Crim. App. 1989). Therefore, we will now
consider the single narrow issue raised by the petitioner’s appeal.

        The State contends that the statute of limitations began to run on September 10, 1998, the
day the petitioner entered his guilty pleas. Urging a strict adherence to the language of Tennessee
Code Annotated section 40-30-202(a) stating that the one-year “statute of limitations shall not be
tolled for any reason,” the State argues that it had run on January 2, 2002, when the first petition for
post-conviction relief was filed. The State further asserts that none of the statutory exceptions to the
one-year statute of limitations applies to the petitioner. See Tenn. Code Ann. § 40-30-202(b).

        In certain circumstances, due process prohibits the strict application of the post-conviction
statute of limitations to bar a petitioner’s claim when the grounds for relief, whether legal or factual,
arise after the point at which the limitations period would normally have begun to run, as explained
in Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995), setting out the three-step process to determine
whether to apply the statute of limitations:

                (1) determine when the limitations period would normally have begun
                to run; (2) determine whether the grounds for relief actually arose
                after the limitations period would normally have commenced; and (3)
                if the grounds are “later-arising,” determine if, under the facts of the



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               case, a strict application of the limitations period would effectively
               deny the petitioner a reasonable opportunity to present the claim.

Id.

       By the State’s argument, the petitioner had only until September 10, 1999, to complain about
an amended judgment which was not filed until two years later, in September 2001. We respectfully
disagree that the petitioner, exercising even extraordinary diligence, could have anticipated an
occurrence two years later or, even if he did so anticipate, draft a post-conviction petition to
complain about a violation of his rights occurring two years in the future.

        Accordingly, we respectfully disagree with the State’s position and conclude that the statute
of limitations for the petitioner’s filing of a post-conviction petition began to run in September 2001
when the amended judgment was filed as to the aggravated kidnapping. Thus, the post-conviction
petition was timely, although the notice of appeal was not. Given the circumstances, however, we
waive the untimely filing of the notice of appeal and remand the matter for the petition to be
considered as timely.

                                          CONCLUSION

        Based on the foregoing authorities and reasoning, we reverse the trial court’s denial of the
the petition for post-conviction relief and remand the post-conviction petition to be treated as being
timely filed.

                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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