             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                          SEPTEMBER 1998 SESSION
                                                        FILED
                                                           October 15, 1998

                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk
MARK GRIMES,                       )
                                   )   C.C.A. No. 02C01-9801-CR-00003
             Appellant,            )
                                   )   Shelby County
V.                                 )
                                   )   Honorable W . Fred Axley, Judge
STATE OF TENNESSEE,                )
                                   )
             Appellee.             )   (Post-Conviction)



FOR THE APPELLANT:                     FOR THE APPELLEE:

Mark Grimes                             John Knox Walkup
No. 138621                             Attorney General & Reporter
Route 1, Box 660
Tiptonville, TN 38079                  Clinton J. Morgan
(pro se, on appeal)                    Counsel for the State
                                       425 Fifth Avenue North
                                       Nashville, TN 37243-0493

                                       William L. Gibbons
                                       District Attorney General

                                       Rosemary Andrews
                                       Assistant District Attorney General
                                       Criminal Justice Complex, Suite 301
                                       201 Poplar Avenue
                                       Memphis, TN 38103




OPINION FILED:____________________



AFFIRMED


PAUL G. SUMMERS,
Judge
                                       OPINION



          The appellant pled guilty to three counts of rape and judgment was entered

on these pleas on July 14, 1993. The appellant was sentenced as a Range I standard

offender to three consecutive terms of twelve years each for an effective sentence of

thirty-six years. On September 9, 1997, the appellant filed his “Motion to Set Aside

Guilty Pleas” claiming that he had pled guilty on the basis that he would be eligible for

parole after serving thirty percent of his sentences. He states that he “recently

became aware that he would have to serve his sentence at one hundred percent”

pursuant to T.C.A. § 39-13-523(b), which requires multiple rapists to serve their entire

sentences. Accordingly, he argues, he was “misled” into pleading guilty and would

have gone to trial had he been properly informed about his parole eligibility (or lack

thereof). The court below construed the motion as a claim for post-conviction relief

and dismissed it as barred by the statute of limitations. We affirm.



          We first note that our rules of criminal procedure do permit a defendant to

move for the withdrawal of his or her guilty plea. Tenn. R. Crim. P. 32(f). However,

after sentence has been imposed, such a motion may be granted only “to correct

manifest injustice” and before the judgment becomes final. Id. The motion in this

case was filed long after judgment became final; thus, this avenue of relief is not

available to the appellant.



          However, the court below had the discretion to treat the motion as a petition

for post-conviction relief. See, e.g., Norton v. Everhart, 895 S.W.2d 317, 319 (Tenn.

1995) (“a trial court is not bound by the title of the pleading, but has the discretion to

treat the pleading according to the relief sought.”) Prior to May 10, 1995, the statute

of limitations for post-conviction petitions was three years. T.C.A. § 40-30-102

(repealed 1995). On May 10, 1995, the limitations period was shortened to one year.

T.C.A. § 40-30-202(a) and Compiler's Notes to § 40-30-201. Since the previous three


                                             2
year statute of limitations had not expired as of May 10, 1995, the appellant's right to

petition for post-conviction relief survived under the new Act. Carter v. State, 952

S.W.2d 417, 420 (Tenn. 1997). Thus, the appellant had one year from May 10, 1995,

in which to file for post-conviction relief, or until May 1996. His pleading was not filed

until September 1997. Therefore, the court below was correct in concluding that the

appellant's claim for relief was time-barred.1



            That the appellant became aware of his plight only “recently” does not

rescue him. Because he filed his pleading after May 10, 1995, we must look to the

new Post-conviction Act to determine under what circumstances a late-filed petition

may be considered. See T.C.A. § 40-30-201, Compiler's Notes. The Act provides

that

            No court shall have jurisdiction to consider a petition filed [late]
            unless: (1) The claim is . . . based upon a final ruling of an
            appellate court establishing a constitutional right that was not
            recognized as existing at the time of trial, if retrospective
            application of that right is required. . . . (2) The claim in the petition
            is based upon new scientific evidence establishing that such
            petitioner is actually innocent of the . . . offenses for which [he] was
            convicted; or (3) The claim asserted in the petition seeks relief from
            a sentence that was enhanced because of a previous conviction
            and such conviction in the case in which the claim is asserted was
            not a guilty plea with an agreed sentence, and the previous
            conviction has subsequently been held to be invalid[.]

T.C.A. § 40-30-202(b). The appellant's pleading fits into none of these categories.

Accordingly, the statute of limitations had expired by the time he filed his “Motion.”



            The appellant's claim for relief being time-barred, the judgment below is

affirmed.




                                                    ________________________________
                                                    PAUL G. SUMMERS, Judge



        1
         However, we respectfully disagree with the court below that the applicable statute of limitations ran
on July 14, 1994.

                                                      3
CONCUR:




____________________________________
DAVID H. WELLES, Judge




____________________________________
JOE G. RILEY, Judge




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