         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs October 2, 2012

                   DALLAS WYLEY v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Shelby County
                    No. 10-00783    Carolyn Wade Blackett, Judge


              No. W2012-00537-CCA-MR3-PC - Filed October 29, 2012


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

Dallas Wyley (“the Petitioner”) pleaded guilty to one count of attempt to commit first degree
premeditated murder, one count of attempt to commit especially aggravated robbery, and one
count of employing a firearm during the commission of a dangerous felony. For these
offenses, the Petitioner was sentenced to an effective term of twenty-one years. The
incarcerated Petitioner subsequently filed for post-conviction relief, pro se, which the post-
conviction court dismissed summarily as untimely. The Petitioner adduced proof that his
petition was filed timely pursuant to Tennessee Supreme Court Rule 28. The State concedes
that the Petitioner is entitled to a hearing on the issue of whether his petition was filed timely.
We hold that the post-conviction court erred in summarily dismissing the Petitioner’s claim
for relief as untimely. Accordingly, we reverse the judgment of the post-conviction court and
remand this matter for a hearing to determine whether the petition for post-conviction relief
was filed timely and for such other proceedings as may be necessary.

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,
J R., and R OGER A. P AGE, JJ., joined.

Dallas Wyley, Tiptonville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Amy
Weirich, District Attorney General; and Lora Fowler, Assistant District Attorney General,
for the appellee, State of Tennessee.
                                                OPINION

                               Factual and Procedural Background

        The Petitioner was indicted in January 2010 for one count of attempt to commit first
degree murder, one count of attempt to commit especially aggravated robbery, and one count
of employing a firearm during the commission of a dangerous felony, all committed on May
15, 2009. The Defendant pleaded guilty to each indicted offense, and the trial court
sentenced the Defendant as a Range I offender to fifteen years for the attempted first degree
murder, to eight years for the attempted especially aggravated robbery, and to six years on
the firearm offense. The trial court ordered partial consecutive service, resulting in an
effective sentence of twenty-one years. The trial court entered the judgment orders on June
17, 2010.

       The incarcerated Petitioner subsequently filed for post-conviction relief, proceeding
pro se. The petition is stamped filed on July 19, 2011. The State responded that the petition
was filed outside the one-year statute of limitations.1 By written order filed August 16, 2011,
the post-conviction court summarily dismissed the petition on the basis that it was time-
barred. However, the post-conviction court also found that the petition had been filed “on
or about August 2, 2011.” Upon the Petitioner’s subsequent attempts to have the post-
conviction court “reconsider” its ruling, the post-conviction court entered another written
order on April 17, 2012, correctly noting that the petition for post-conviction relief was filed
on July 19, 2011. The post-conviction court again determined, however, that the petition was
untimely and therefore denied relief.2

       In conjunction with obtaining a delayed appeal from this Court, the Petitioner
adduced proof that he deposited his petition for post-conviction relief with the appropriate
prison authorities on July 13, 2011. Therefore, he contends that his petition was timely
pursuant to Tennessee Supreme Court Rule 28, section 2(G). The State concedes that the
Petitioner has adduced sufficient proof that his filing may have been timely so as to entitle
him to a hearing on the issue of the timeliness of his petition.


        1
            See Tenn. Code Ann. § 40-30-102(a) (2006).
        2
           In its April 17, 2012 order, the post-conviction court also purported to deny the Petitioner’s claim
for post-conviction relief “on the merits” on the basis of a pleading not before it. The Petitioner claims to
have filed a motion to have the post-conviction court “reconsider” its August 16, 2011 ruling. This pleading
is not in the record before this Court, and the post-conviction court has asserted that the court clerk’s file
does not contain such a motion. Nevertheless, the post-conviction court characterized the Petitioner’s
attempts to have the court’s August 16, 2011 ruling “reconsidered” as a motion to re-open his original claim
for relief. However denominated, the post-conviction court should not have adjudged the merits of the
underlying claim for relief on the basis of a pleading that was not in the record.

                                                     -2-
                                           Analysis

        As noted by the State in its brief, the Petitioner’s judgments of conviction became
final thirty days after their entry because he filed no direct appeal. See State v. Green, 106
S.W.3d 646, 650 (Tenn. 2003). Thus, the judgments became final on July 17, 2010, and the
one-year statute of limitations applicable to petitions for post-conviction relief ran on July
17, 2011. However, because July 17, 2011, was a Sunday, the Petitioner had until Monday,
July 18, 2011, to file timely. See Tenn. R. Crim. P. 45(a)(2); Guadalupe Arroyo v. State, No.
E2006-01037-CCA-R3-PC, 2007 WL 3144999, at *2 (Tenn. Crim. App. Oct. 29, 2007);
Stephen L. Carey v. State, No. 03C01-9309-CR-00330, 1994 WL 630524, at *1-3 (Tenn.
Crim. App. Nov. 8, 1994).

       Tennessee Supreme Court Rule 28, section 2(G) provides as follows:

               If papers required or permitted to be filed by these rules are prepared
       by or on behalf of a pro se petitioner incarcerated in a correctional facility and
       are not received by the clerk of the court until after the time fixed for filing,
       filing shall be timely if the papers were delivered to the appropriate individual
       at the correctional facility within the time fixed for filing. “Correctional
       facility” shall include a prison, jail, county workhouse or similar institution in
       which the pro se petitioner is incarcerated. This provision shall also apply to
       service of papers by pro se petitioners pursuant to these rules. Should
       timeliness of filing or service become an issue, the burden is on the pro se
       petitioner to establish compliance with this provision.

Tenn. Sup. Ct. R. 28, § 2(G). Thus, if the Petitioner can establish that he complied with the
provisions of this Rule, then his petition for post-conviction relief was filed timely and
cannot be disposed of summarily on the basis that it was filed outside the applicable statute
of limitations. We agree with the State’s concession that the Petitioner is entitled to a hearing
on the timeliness of his petition for post-conviction relief.

                                          Conclusion

       The post-conviction court’s orders denying the Petitioner’s petition for post-
conviction relief are reversed. This matter is remanded to the post-conviction court for a
hearing on the timeliness of the petition for post-conviction relief and for such other
proceedings as may be necessary.


                                            _________________________________
                                            JEFFREY S. BIVINS, JUDGE

                                               -3-
