            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                          FEBRUARY 1998 SESSION
                                                       FILED
                                                           April 22, 1998

                                                      Cecil Crowson, Jr.
LARRY PITTMAN,                    )                    Appellate C ourt Clerk

                                  )    C.C.A. NO. 02C01-9704-CC-00138
             Appellant,           )
                                  )    MADISON COUNTY
VS.                               )
                                  )    HON. FRANKLIN MURCHISON,
STATE OF TENNESSEE,               )    JUDGE
                                  )
             Appellee.            )    (Post-conviction)



FOR THE APPELLANT:                     FOR THE APPELLEE:


GEORGE GOOGE                           JOHN KNOX WALKUP
Public Defender                        Attorney General & Reporter

DANIEL J. TAYLOR                       KENNETH W. RUCKER
Asst. Public Defender                  Asst. Attorney General
227 West Baltimore                     425 Fifth Ave., North
Jackson, TN 38301                      Cordell Hull Bldg., Second Fl.
                                       Nashville, TN 37243-0493

                                       JERRY WOODALL
                                       District Attorney General

                                       AL EARLS
                                       Asst. District Attorney General
                                       P.O. Box 2825
                                       Jackson, TN 38301




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                           OPINION



                 A Madison County jury convicted the petitioner of armed robbery in May

1984. The petitioner appealed, and this Court affirmed his conviction on April 23, 1986.1

He then applied for permission to appeal to the Supreme Court, but his application was

denied on July 28, 1986. The petitioner then filed a post-conviction petition alleging

ineffective assistance of counsel. His petition was denied and this Court affirmed the

denial on May 18, 1988.2 The petitioner then filed a second petition for post-conviction

relief on May 9, 1996. In this petition, he alleges that the “moral certainty” jury instruction

is not constitutionally valid.



                First, we are unsure as to why the trial court did not dismiss this petition for

being filed outside the statute of limitations. When the petition was argued, no one

questioned its timeliness. The State’s brief suggests that the trial court was under the

impression that the Post-Conviction Procedure Act of 1995 allowed all petitioners an

additional year in which to file their petition regardless of whether the original three year

statute of limitations had expired. While a panel of this Court did so hold in at least one

case,3 this issue has now been decided by the Supreme Court. In Carter v. State, 952

S.W.2d 417 (Tenn. 1997), the Court determined that the new act does not provide an

additional year to those petitioners whose statute of limitations had expired under the old

act. Thus, in this case, the trial court should not have entertained this petition. The

defendant’s conviction became final in 1986. By filing this second petition in 1996, he is


        1
         State v. Larry Pittman, No. 20, Madison County (Tenn. Crim. App. filed April 23, 1986, at
Jack son)(p erm . to app. denied July 28, 1986).

        2
         Larry Pittm an v. State , No. 21, Madison County (Tenn. Crim. App. filed May 18, 1988, at
Jack son)(p erm . to app. denied Aug. 29, 1988).

        3
          See Arnold C arter v. State , No. 03C01-9509-CC-00270, Monroe County (Tenn. Crim. App. filed
July 11, 1996, at Knoxville).

                                                   2
clearly outside the statute of limitations. This petition should have been dismissed on this

ground.



              Second, even if the petition had been filed on time, the petitioner is not

entitled to any relief. In addressing the very issue raised by this petitioner, the Supreme

Court stated that the phrase “moral certainty” in a jury instruction is “permissible if the

context in which the instruction is given ‘clearly convey[s] the jury’s responsibility to

decide the verdict based on the facts and the law.’” Carter v. State, 958 S.W.2d 620, 626

(Tenn. 1997) quoting State v. Nichols, 877 S.W.2d 722, 734 (Tenn. 1994). The jury

instruction used in this case satisfied the standard, and thus, the issue raised by this

petition is without merit. The dismissal of the petition is affirmed.



                                                  ______________________________
                                                  JOHN H. PEAY, Judge


CONCUR:



______________________________
JOSEPH B. JONES, Judge



______________________________
THOMAS T. WOODALL, Judge




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