                IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                  AT JACKSON


ODELL SMITH,                                      )
                                                  )
         Petitioner,                              ) C. C. A. NO. 02C01-9803-CR-00060
                                                  )
vs.                                               ) SHELBY COUNTY

STATE OF TENNESSEE,
                                                  )
                                                  ) No. P-05385
                                                                                  FILED
                                                  )
         Respondent.                              )                        June 5, 1998

                                                                                 Cecil Crowson, Jr.
                                                                                  Appellate C ourt Clerk
                                               ORDER


                This matter is before the Court upon the state’s motion to affirm the trial

court’s judgment pursuant to Rule 20, Rules of the Court of Criminal Appeals. The

record reflects that the petitioner originally received several convictions for burglary,

grand larceny, and receiving stolen property in 1975 and 1979. The record also shows

that the petitioner has filed at least four petitions for post-conviction relief challenging

the validity of these convictions. See e.g. Odell Smith v. State, No. 102, Shelby County

(Tenn. Crim. App., at Jackson, Sep. 27, 1989), perm. to app. denied, (Tenn., Jan. 2,

1990).



                In November 1996, the petitioner was apparently convicted of first degree

murder and sentenced to life imprisonment without the possibility of parole. The

petitioner filed the present petition for post-conviction relief attacking his previous

convictions because they were used as an aggravating circumstance in the sentencing

phase of his 1996 murder trial. However, none of the judgment sheets are contained in

the record. The trial court dismissed the present petition finding that the one-year

statute of limitations has expired.



                T.C.A. § 40-30-202(a)1 provides that a person in custody under a

sentence of a court of this state must petition for post-conviction relief within one year of

the date of the final action of the highest state appellate court to which an appeal is



         1
           The petition in this case was filed on November 6, 1997, and is therefore governed by the
provision s of the 1 995 Po st-Con viction Pro cedure Act. See Comp iler’s Notes, T.C.A. § 40-30-201 (1997).
taken or, if no appeal is taken, within one year of the date on which judgment became

final. The Post-Conviction Procedure Act provides several limited exceptions to the

one-year statute of limitations, however none of them are applicable to the present

case. See § 40-30-202(b). The petition in this case was filed well beyond the

applicable statute of limitations, and is, therefore, untimely.2



                 Moreover, T.C.A. § 40-30-202(c) provides that no more than one petition

for post-conviction relief may be filed attacking a single judgment, and mandates that

the trial court shall summarily dismiss any second or subsequent petition if a prior

petition was filed and resolved on the merits by a court of competent jurisdiction. Since

the petitioner previously filed at least one petition that was resolved on the merits by the

trial court and by this Court on appeal, the petitioner's present petition was properly

dismissed. Additionally, after reviewing the entire record on appeal, we find that the

petitioner’s claim does not fall within one of the limited circumstances under which a

prior petition may be re-opened. See T.C.A. § 40-30-217.



                 For the reasons stated above, we conclude that the trial court did not err

in dismissing the petitioner’s petition for post-conviction relief. Accordingly, it is hereby

ORDERED that the judgment of the trial court is affirmed in accordance with Rule 20,

Rules of the Court of Criminal Appeals.


                 Enter, this the ___ day of May, 1998.



                                                     __________________________________
                                                     DAVID G. HAYES, JUDGE


                                                     __________________________________
                                                     PAUL G. SUMMERS, JUDGE


                                                     __________________________________
                                                     JOE G. RILEY, JUDGE



        2
           The pe tition would als o be bar red und er the pre vious thre e year statu te of limitation s. See
T.C.A . § 40-30 -102 (19 90) (rep ealed); Passa rella v. State , 891 S.W .2d 619 ( Tenn . Crim. A pp.), perm . to
app. denied, (Tenn. 1994).

                                                         2
