           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE

            RANDY LEE SHATTO, SR. v. STATE OF TENNESSEE

                             Criminal Court for Davidson County
                                       No. 2004-A-866


                  No. M2007-00054-CCA-R3-PC - Filed November 30, 2007



The Appellant appeals the trial court's dismissal of his petition for post conviction relief. The
Appellant filed his petition outside the statute of limitations. Accordingly, the judgment of the
trial court is affirmed.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed Pursuant to Rule 20, Rules of
the Court of Criminal Appeals

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID H. WELLES, and
JERRY L. SMITH , J.J., joined.

Randy Lee Shatto, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney
General, for the appellee, State of Tennessee.

                                  MEMORANDUM OPINION

        On July 12, 2004, the Appellant pled guilty to one count of rape of a child and accepted a
sentence of fifteen years. The Appellant filed a petition for post-conviction relief on November
1, 2004. The Appellant, by and through counsel, filed an amended petition on March 9, 2005.
However, at a hearing on March 23, 2005, during which the Appellant and his attorney were
present, the court withdrew the petition upon the Appellant's request. Subsequently, on
December 1, 2006, the Appellant, proceeding pro se, filed a motion to reopen his post-conviction
petition. The trial court treated the pleading as a petition for post-conviction relief instead of a
motion to reopen a post-conviction petition because the Appellant withdrew his prior petition
before a hearing on the merits. The trial court concluded that the Appellant could not move to
reopen a petition that was previously withdrawn. The trial court further concluded that the
petition was filed beyond the statute of limitations. The court observed that the claim would
otherwise not warrant relief under the motion to reopen statute. The Appellant appealed.

        The State has filed a motion to affirm the judgment of the trial court pursuant to Rule 20
of the Rules of the Court of Criminal Appeals. The Court finds this motion to be well taken.
The Appellant's post-conviction petition is clearly barred by the statute of limitations. Tennessee
Code Annotated Section 40-30-102(a) provides that a petition for post-conviction relief must be
filed within one year of final judgment. Section 40-30-109(c) further provides that the
withdrawal of a timely filed petition "shall not toll the statute of limitations set forth in § 40-30-
102." The Appellant filed his current petition well over two years after the entry of his guilty
plea, and almost two years following the withdrawal of his initial petition. The Post-Conviction
Procedure Act enumerates few exceptions to this one year time limit. See Tenn. Code Ann. § 40-
30-102(b). In order to qualify, the claim in the petition must be based upon a new rule of
constitutional law requiring retrospective application, must be based upon new scientific
evidence establishing actual innocence, or must assert relief from sentences which were
enhanced because of a previous conviction that has subsequently found to be illegal. Id. None
of these exceptions apply in this case. As the trial court noted, the scientific evidence which the
Appellant alleges is newly discovered was actually made available to the Appellant prior to the
entry of his guilty plea.

         The Appellant argues on appeal that the trial court should have treated his pleading as a
petition for a writ of error coram nobis rather than a petition for post-conviction relief.
Assuming the trial court should have reviewed the pleading as an error coram nobis petition, the
Appellant would nevertheless have been denied relief due to the untimeliness of the filing. A
petition for a writ of error coram nobis must be filed within one year after the judgment becomes
final in the trial court. State v. Mixon, 983 S.W.2d 661, 669-70 (Tenn. 1999). Furthermore,
contrary to the Appellant's suggestion, equitable tolling of the one year statute would not be
warranted in this case because, as noted above, the evidence at issue was not newly discovered
evidence. Appellant's claim that his attorney failed to inform him about the existence of this
evidence should have been pursued through his initial post-conviction petition which he
voluntarily withdrew.

       For the reasons stated above, the judgment of the trial court is affirmed in accordance
with Rule 20, Rules of the Court of Criminal Appeals.




                                                      ____________________________________
                                                      ROBERT W. WEDEMEYER, JUDGE




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