         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                            JANUARY 1998 SESSION
                                                         FILED
                                                         January 29, 1998

                                                        Cecil Crowson, Jr.
MICHAEL S. HOLMES,                   )                   Appellate C ourt Clerk
                                     )
      Appellant,                     )   C. C. A. No. 02C01-9703-CR-00106
                                     )
V.                                   )   Shelby County
                                     )
STATE OF TENNESSEE,                  )   Honorable Chris Craft, Judge
                                     )
      Appellee.                      )   (Post-Conviction: Facilitation of a
                                     )   Felony)


FOR THE APPELLANT:                   FOR THE APPELLEE:

A C Wharton, Jr.                     John Knox Walkup
Shelby County Public Defender        Attorney General & Reporter

Edward G. Thompson                   Kenneth W. Rucker
Assistant Public Defender            Assistant Attorney General
616 Adams Avenue                     Criminal Justice Division
Memphis, TN 38103                    450 James Robertson Parkway
                                     Nashville, TN 37243-4351

                                     William L. Gibbons
                                     District Attorney General

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




OPINION FILED: _____________________


AFFIRMED


PAUL G. SUMMERS,
Judge




                                 OPINION
       The Shelby County Criminal Court dismissed the appellant Michael S.

Holmes’ petition for post-conviction relief and he appeals. We affirm.



       On June 1, 1993, the appellant pled guilty to facilitation of a felony and

was sentenced to five years imprisonment. No appeal was taken. On

September 18, 1996, the appellant filed a petition for post-conviction relief,

alleging ineffective assistance of counsel. Finding that the statute of limitations

had expired, the trial court dismissed the petition upon preliminary consideration

pursuant to Tennessee Code Annotated § 40-30-206(b) (Supp. 1996).



       The trial court appointed the public defender’s office to represent the

appellant on appeal. The appellant’s attorney argues that the trial court was

without jurisdiction to appoint counsel because the appointment was made more

than thirty days after the trial court dismissed the petition. The state does not

address the issue. This concern does not affect the validity of the appeal. The

appellant properly perfected his appeal to this Court.



       On appeal, the appellant argues that the trial court erred in dismissing his

petition without appointing counsel and conducting a hearing. Tennessee Code

Annotated §§ 40-30-206(a) & (b) provide that a trial court shall dismiss a post-

conviction petition upon preliminary consideration if it plainly appears from the

record that the petition was not filed within the time set forth in the statute of

limitations. Preliminary consideration is a review of the record by the court.

Tenn. Code Ann. § 40-30-206(a), -(b). Appointment of counsel and a hearing

are not required.




        The appellant’s petition is clearly barred by the statute of limitations. A

person in custody under a sentence of a court of this state must petition for post-

                                          -2-
conviction relief within one year of the date of the final action of the highest state

appellate court to which an appeal is taken or if no appeal is taken, within one

year of the date on which judgment became final. 1 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

Tenn. Code Ann. § 40-30-202(b) (Supp. 1996).



           The appellant also argues that the application of the statute of limitations

to the facts of his case violate his right to due process because he has been

deprived of a reasonable opportunity to have his post-conviction claim heard.

We find nothing in the record to establish that the appellant has been denied a

reasonable opportunity to have his claims heard. See Watkins v. State, 903

S.W.2d 302 (Tenn. 1995); Burford v. State, 845 S.W.2d 204 (Tenn. 1992). The

appellant also cites People v. Germany, 674 P.2d 345 (Colo. 1983) as

supporting his position that the application of the statute of limitations to his case

is unconstitutional. The facts in the case at bar are clearly distinguishable from

the facts in Watkins, Burford, and Germany. Nothing of a constitutional

magnitude prevented the appellant from timely filing his petition.



           The trial court’s dismissal of the petition is affirmed.




                                                                       ______________________________
                                                                       PAUL G. SUMMERS, Judge


CONCUR:



         1
           W e rea lize the appe llant’s c onvic tion or igina lly fell un der th e thre e-yea r limitatio n wh ich ch ange d to on e year in
May 1995. This has no bearing on the case’s outcome.


                                                                     -3-
__________________________
DAVID G. HAYES, Judge




__________________________
JOE G. RILEY, Judge




                             -4-
