         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON

                         JANUARY 1998 SESSION
                                                            FILED
                                                            February 18, 1998

                                                            Cecil Crowson, Jr.
LAKEITH O. LIGHTFOOT,             )                         Appellate C ourt Clerk
                                  )    NO. 02C01-9703-CR-00129
      Appellant,                  )
                                  )    SHELBY COUNTY
VS.                               )
                                  )    HON. ARTHUR T. BENNETT,
STATE OF TENNESSEE,               )    JUDGE
                                  )
      Appellee.                   )    (Post-Conviction)



FOR THE APPELLANT:                     FOR THE APPELLEE:

D. TYLER KELLY                         JOHN KNOX WALKUP
213 E. Lafayette                       Attorney General and Reporter
Jackson, TN 38301-6217
                                       KENNETH W. RUCKER
                                       Assistant Attorney General
                                       Cordell Hull Building, 2nd Floor
                                       425 Fifth Avenue North
                                       Nashville, TN 37243-0493

                                       WILLIAM L. GIBBONS
                                       District Attorney General

                                       PERRY S. HAYES
                                       Assistant District Attorney General
                                       201 Poplar Street, Ste. 301
                                       Memphis, TN 38103-1947




OPINION FILED:



REMANDED



JOE G. RILEY,
JUDGE
                                     OPINION


       In this post-conviction case the sole issue is whether the petitioner filed his

petition for post-conviction relief within the one-year statute of limitations. Since the

record does not reveal whether or not the pro se petitioner delivered the petition to

the appropriate prison authority for mailing within the statute of limitations, we

remand for further proceedings.



                                            I



       Petitioner, Lakeith O. Lightfoot, on January 29, 1996, entered a guilty plea

to second degree murder and received a sentence of 30 years as a Range II

Multiple Offender. The plea of guilty and sentence were the result of a plea

agreement.

       A petition for post-conviction relief was filed in the trial court on January 30,

1997. The petition alleges the guilty plea was unintelligently and involuntarily

entered and was the product of ineffective assistance of counsel. The petition

reveals that it was executed and sworn to on January 24, 1997, when petitioner was

an inmate at Northwest Correction Center in Lake County, Tennessee.

       The trial court summarily dismissed the petition since it was filed one (1) day

beyond the one-year statute of limitations.



                                           II



       This matter is governed by the Post-Conviction Procedure Act of 1995. See

Tenn. Code Ann. § 40-30-201 Compiler’s Notes. This legislation provides that, with

certain exceptions not applicable here, a petition for post-conviction relief must be

filed 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. Tenn. Code Ann. § 40-30-202(a).




                                           2
        The state contends the petition was filed one (1) day beyond the statute of

limitations and was properly dismissed by the trial court. Petitioner argues that the

judgment did not become final until 30 days after the entry of the guilty plea, thereby

making the petition timely filed. Furthermore, the defendant contends the petition

was timely filed by delivering the petition into the hands of the appropriate prison

official for mailing.



                                           III



        Petitioner firstly contends that his judgment of conviction did not become final

until thirty (30) days after it was entered. We disagree. Defendant’s guilty plea was

entered pursuant to a plea agreement in which the petitioner accepted the

recommended sentence of thirty (30) years and waived his right to appeal. Upon

waiving his right to appeal on the day of entry of the guilty plea, the judgment

became final and the statute of limitations began to run. See Passarella v. State,

891 S.W.2d 619, 624 (Tenn. Crim. App. 1994); Warren v. State, 833 S.W.2d 101,

102 (Tenn. Crim. App. 1992). Accordingly, the statute of limitations began to run

January 29, 1996, and expired January 29, 1997.



                                           IV



        Petitioner contends his petition was timely filed since it was delivered to

appropriate prison officials for mailing prior to January 30, 1997. The state correctly

notes the record does not reflect the date the petition was delivered to prison

officials.

        The Post-Conviction Procedure Act itself does not make any allowances for

inmates with regard to the statute of limitations. However, the Supreme Court of

Tennessee, pursuant to Tenn. Code Ann. § 40-30-218, enacted rules of practice

and procedure governing post-conviction matters. Sup. Ct. Rules, Rule 28. These

rules provide that a post-conviction petition filed by a pro se petitioner who is


                                           3
incarcerated is deemed to be filed on the date it is received by the appropriate

prison authorities for mailing. Sup. Ct. Rules, Rule 28, § 2(G).1 Therefore, as the

state concedes, this petition was timely filed if it was delivered to the appropriate

prison official for mailing prior to January 30, 1997.



                                                V



        Unfortunately, the record does not contain any kind of certification that the

petition was delivered to a prison official for mailing. Nevertheless, we note that the

petition was actually filed by the criminal court clerk in Shelby County on January

30th, yet executed by the petitioner at Northwest Correction Center in Lake County,

Tennessee, on January 24th. Although it is most likely that the petition was timely

delivered to prison authorities and mailed within the statute of limitations, it is

theoretically possible that the petition was given to someone other than a prison

official and hand delivered to the clerk.

        We conclude that the petitioner should be given the opportunity to establish

whether or not the petition was delivered to the appropriate prison official for mailing

within the statute of limitations. If so, the petitioner should be allowed to proceed.

If not, the trial court should make the appropriate findings and dismiss the petition.



        This case is REMANDED to the trial court for further proceedings consistent

with this opinion.




        1
         Effective July 1, 1997, Tenn. R. Crim. P. 49(c) provides that post-conviction relief
petitions of pro se litigants incarcerated in a correctional facility are deemed timely filed if
delivered to the appropriate individual at the correctional facility within the time fixed for filing.
See also Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), holding that
the notice of appeal required by Fed. R. App. P. 4 (a)(1) is considered filed by a pro se inmate
upon delivery to prison authorities.

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                                      ____________________________
                                      JOE G. RILEY, JUDGE



CONCUR:

_______________________________
JOE B. JONES, PRESIDING JUDGE



______________________________
PAUL G. SUMMERS, JUDGE




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