        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT KNOXVILLE            FILED
                          APRIL 1998 SESSION           May 27, 1998

                                                    Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk

DONALD WELCH,                )
                             ) C.C.A. No. 03C01-9702-CR-00043
     Appellant,              )
                             ) Sullivan County
V.                           )
                             ) Honorable Lynn W. Brown, Judge,
STATE OF TENNESSEE,          ) Sitting by Interchange
                             )
     Appellee.               ) (Post-Conviction)
                             )




FOR THE APPELLANT:                 FOR THE APPELLEE:

Donald Welch, Pro Se               John Knox Walkup
#204186                            Attorney General & Reporter
Hardeman County
Correctional Facility              Sandy C. Patrick
5240 Union Springs Road            Assistant Attorney General
Whiteville, TN 38075               2d Floor Cordell Hull Building
                                   425 Fifth Avenue North
                                   Nashville, TN 37243-0943

                                   H. Greeley Wells, Jr.
                                   District Attorney General

                                   Barry P. Staubus
                                   Assistant District Attorney General
                                   140 Blountville Bypass
                                   P.O. Box 526
                                   Blountville, TN 37617




OPINION FILED: _______________________


AFFIRMED


PAUL G. SUMMERS,
Judge




                             OPINION
       In April 1992, the appellant, Donald Welch, was convicted of aggravated

rape, attempted felony murder, and theft. His convictions on direct appeal to this

Court were affirmed on February 9, 1994, and the Tennessee Supreme Court

denied his application for permission to appeal on May 16, 1994.



       On November 12, 1996, the appellant filed a pro se petition for post-

conviction relief, arguing that his conviction for attempted felony murder should

be set aside because that offense does not exist in Tennessee. The trial court

dismissed the petition on December 2, 1996, finding that it was filed after the

statute of limitations had expired.



       The appellant’s sole issue on appeal is whether the trial court erred by

dismissing his post-conviction petition as time barred. We affirm.



       The appellant argues that the trial court erred in dismissing his petition for

post-conviction relief. He asserts that the Tennessee Supreme Court’s decision

in State v. Kimbrough, 924 S.W.2d 888 (Tenn. 1996), held that attempted felony

murder does not exist as an offense in Tennessee. Therefore, because this is

the offense for which he was convicted in 1992, he argues that he was tried and

convicted under a charging instrument that fails to state a claim in violation of his

due process rights under the Tennessee and United States Constitutions. He

contends, therefore, that his conviction and his sentence are void.



       The state argues that the trial court properly dismissed the petition for

post-conviction relief as time barred. It notes as a preliminary matter that

although the appellant’s appeal was not timely filed, it will address the merits of

his appeal. The state maintains that the new Post-Conviction Procedure Act,

which became effective on May 10, 1995, governs the appellant’s petition. Thus,

the appellant had one year from the Act’s effective date, or until May 10, 1996, to



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file a post-conviction petition. However, the appellant did not file his petition until

November 12, 1996, which was after the statute of limitations had expired.



       Based upon the record before us, we agree with the state that the

appellant filed his petition after the statute of limitations had expired. The

appellant’s direct appeal became final with the denial of permission to appeal by

the Supreme Court on May 16, 1994. As the state notes in its brief, the

appellant’s petition is governed by the new Post-Conviction Procedure Act, which

became effective May 10, 1995, because the appellant did not file his petition for

post-conviction relief until November 12, 1996. See Compiler’s Notes, Tenn.

Code Ann. § 40-30-201 (Supp. 1996). Accordingly, we affirm the trial court’s

dismissal of the appellant’s petition for post-conviction relief, but note that the

appellant is not precluded from filing a writ of habeas corpus.




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                                     _______________________
                                     PAUL G. SUMMERS, Judge


CONCUR:




____________________________
JERRY L. SMITH, Judge




____________________________
CURWOOD W ITT, Judge




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