                                                                                               12/11/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs December 4, 2018

                DARRELL MALONE v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                     No. 16-00646     Paula Skahan, Judge


                              No. W2018-00524-CCA-R3-PC


The Petitioner, Darrell Malone, appeals the Shelby County Criminal Court’s summary
dismissal of his petition for post-conviction relief from his 2016 conviction for attempt to
commit rape and his four-year sentence. The Petitioner contends that the post-conviction
court erred by determining that his petition was untimely. We reverse the judgment of the
post-conviction court and remand the case for consideration of the issues raised in the
petition.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and ROBERT L. HOLLOWAY, JR., JJ., joined.

Michael R. Working (on appeal) and Darrell Malone (in post-conviction court), Pro Se,
Memphis, Tennessee, for the appellant, Darrell Malone.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Assistant
Attorney General; and Amy P. Weirich, District Attorney General, for the appellee, State of
Tennessee.

                                          OPINION

        The Petitioner’s conviction relates to an April 2013 incident, which resulted in the
Petitioner’s being indicted for rape in January 2016. After a jury trial, the Petitioner was
convicted of attempted rape. On November 30, 2016, the trial court imposed a four-year
sentence of split confinement, with one year in confinement at 100% service and three years
to be served on probation. The judgment was likewise entered on November 30, 2016, and a
written order reflects that the Petitioner waived his rights to file a motion for a new trial and
to appeal his conviction.
        On December 29, 2017, the Petitioner filed the instant pro se petition for post-
conviction relief, alleging multiple instances of the ineffective assistance of counsel. The
Petitioner asserted relative to the petition’s timeliness that the time in which to file a post-
conviction petition expired on January 2, 2018. He stated that the judgment became final on
December 30, 2016, that December 30 and 31, 2017, fell on a weekend, and that January 1,
2018, was a legal holiday. The State did not submit a response to the petition, and on
February 22, 2018, the post-conviction court entered an order dismissing the petition on the
basis that it was untimely. The court found that the Petitioner waived his rights to a new trial
and to appeal on November 30, 2017, “thereby triggering the finality of judgment.” The
court also determined that the petition failed to state an adequate basis for tolling the statute
of limitations. This appeal followed.

       The Petitioner contends that the post-conviction court erred by determining that his
petition for relief was untimely. He argues that the deadline to file the petition was Saturday,
December 30, 2017, that the courthouse was closed on Sunday, December 31, 2017, that the
courthouse was closed on Monday, January 1, 2018, as a result of a legal holiday, and that
his petition was timely filed on January 2, 2018. The State responds that regardless of
whether the Petitioner waived his rights to file a motion for a new trial and to appeal his
conviction, the post-conviction court erred by determining that the statute of limitations
period began to run upon the entry of the judgment. We agree that the petition was timely
filed.

         Generally, a petitioner “must petition for post-conviction relief . . . 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 the petition shall be barred.” T.C.A. § 40-30-102(a) (2018); see Tenn.
Sup. Ct. R. 28 § 4(B). “A trial court’s judgment as a general rule becomes final thirty days
after its entry unless a timely notice of appeal or specified post-trial motion is filed.” State v.
Peele, 58 S.W.3d 701, 704 (Tenn. 2001); see State v. Mixon, 938 S.W.2d 661, 670 (Tenn.
2001); State v. Pendergrass, 937 S.W.2d 834, 837 (Tenn. 1996). This rule applies
“regardless of whether there has been a waiver of the right to appeal.” State v. Green, 106
S.W.3d 646, 650 (Tenn. 2003).

       The record reflects that the judgment of conviction was entered on November 30,
2016, and that, as a result, the judgment became final on December 30, 2016. Therefore, the
Petitioner was required to file his petition for post-conviction relief on or before December
30, 2017. See Tenn. R. Crim. P. 45(a)(2). The record reflects that the pro se post-conviction
petition was filed on Friday, December 29, 2017. Therefore, the petition was filed before the
expiration of the one-year statute of limitations period and was timely.


                                            -2-
       Based upon the foregoing and the record as a whole, the judgment of the post-
conviction court is reversed, and the case is remanded to the court for consideration of the
Petitioner’s ineffective assistance allegations.



                                          ____________________________________
                                          ROBERT H. MONTGOMERY, JR., JUDGE




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