            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                       AT JACKSON

                              MARCH 1997 SESSION



JAMES LEROY JACKSON,               *      C.C.A. # 02C01-9605-CC-00180

             Appellant,            *      HARDIN COUNTY

VS.                                *      Hon. Julian P. Guinn, Judge

STATE OF TENNESSEE,                *      (Post-Conviction)

             Appellee.             *




For Appellant:                            For Appellee:

James Leroy Jackson                       Charles W. Burson
Pro Se                                    Attorney General & Reporter
Cold Creek Correctional Facility
P.O. Box 1000                             Clinton J. Morgan
Henning, TN 38041-1000                    Assistant Attorney General
                                          450 James Robertson Parkway
                                          Nashville, TN 37243-0493

                                          John Overton
                                          Asst. District Attorney General
                                          Main Street
                                          Savannah, TN 38372


OPINION FILED:_____________________



AFFIRMED



PER CURIAM
                                          OPINION

                  The petitioner, James Leroy Jackson, appeals the trial court's denial of

his petition for post-conviction relief. The issue presented for review is whether the

trial court correctly dismissed the petition without an evidentiary hearing on the basis

that it was barred by the statute of limitations. We affirm the judgment of the trial

court.



                  The petitioner pled guilty in 1988 to armed robbery, first degree

burglary, and two counts of aggravated assault; the effective sentence imposed was

Range II, fifty years. The petitioner appealed the sentence to our court and our

court affirmed. State v. James Leroy Jackson, No. 10 (Tenn. Crim. App., at

Jackson, Sept. 13, 1989). Our supreme court denied review on November 27,

1989.



                  This petition for post-conviction relief was filed on November 28, 1995.

It alleges that the petitioner's guilty pleas were not knowing and voluntary, that the

petitioner received ineffective assistance of counsel, and that the petitioner's

sentence is illegal for not following statutory guidelines. The trial court dismissed

the petition as being time barred. On appeal, the petitioner argues first, that the trial

court erred in not appointing an attorney to file an amended petition, and secondly,

that the district attorney and trial judge both failed to comply with the duties imposed

upon them pursuant to the Post-Conviction Procedure Act of 1995. We need not

address these contentions because it is obvious this petition is barred by the statute

of limitations.




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             Effective May 10, 1995, the new Post-Conviction Procedure Act

replaced the prior act in its entirety. See 1995 Tenn. Pub. Act 207, §§ 1 and 3.

Because this petition was filed in November of 1995, the most recent legislation

replaced a three-year with a one-year limitation:

             (a) ...[A] person in custody under a sentence of a court of
             this state must petition for post-conviction relief under
             this part within one (1) 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 (1) year of the
             date on which the judgment became final, or
             consideration of such petition shall be barred. The
             statute of limitations shall not be tolled for any reason....

             (b) No court shall have jurisdiction to consider a petition
             filed after such time unless:

                       (1) The claim in the petition 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.
             Such petition must be filed within one (1) year of the
             ruling of the highest state appellate court or the United
             States [S]upreme [C]ourt establishing a constitutional
             right that was not recognized as existing at the time of
             trial;

                     (2) The claim in the petition is based upon new
             scientific evidence establishing that such petitioner is
             actually innocent of the offense or offenses for which the
             petitioner 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, in which case the
              petition must be filed within one (1) year of the finality of
              the ruling holding the previous conviction to be invalid.

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



              Because the conviction in this case became final in 1989, this petition

appears to have been barred not only by the current one-year statute of limitations

but also the former three-year statute. Moreover, the grounds raised do not appear


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to fall within any of the exceptions set out in Tenn. Code Ann. § 40-30-202(b)(1), (2),

or (3) (Supp. 1996). We also note that the propriety of the petitioner's sentence has

been previously determined by our court on his direct appeal. See Tenn. Code Ann.

§ 40-30-206 (h) (Supp. 1996) ("[a] ground for relief is previously determined if a

court of competent jurisdiction has ruled on the merits after a full and fair hearing").



              In Arnold Carter v. State, No. 03C01-9509-CC-00270 (Tenn. Crim.

App., at Knoxville, July 11, 1996), appeal granted, (Tenn., Dec. 2, 1996), a panel of

this court, by a two-to-one margin, ruled that the literal terms of the new statute

created a one-year window, starting on May 10, 1995, during which post-conviction

petitions may be filed, notwithstanding the date of the judgment:

              This act shall take effect upon becoming a law, the public
              welfare requiring it and shall govern all petitions for post-
              conviction relief filed after this date, and any motions
              which may be filed after this date to reopen petitions for
              post-conviction relief which were concluded prior to the
              effective date of this act. Notwithstanding any other
              provision of this act to the contrary, any person having a
              ground for relief recognized under this act shall have at
              least one (1) year from the effective date of this act to file
              a petition or a motion to reopen under this act.

1995 Tenn. Pub. Act 207, § 3 (emphasis added).



              This majority found no ambiguities in the terminology of the statute

despite the reasonable argument by the dissent to the contrary. In Carter, our

supreme court granted the state's application for permission to appeal. While no

decision has yet been filed, other panels of this court have adopted the dissenting

view in Carter and have held that the new act did not create a new one-year filing

period. See, e.g., Ronald Albert Brummitt v. State, No. 03C01-9512-CC-00415

(Tenn. Crim. App., at Knoxville, Mar. 11, 1997); Jimmy Earl Lofton v. State, No.

02C01-9603-CR-00073 (Tenn. Crim. App., at Jackson, Mar. 7, 1997); Roy Barnett v.

State, No. 03C01-9512-CV-00394 (Tenn. Crim. App., at Knoxville, Feb. 20, 1997);

                                            4
Stephen Koprowski v. State, No. 03C01-9511-CC-00365 (Tenn. Crim. App., at

Knoxville, Jan. 28, 1997); Johnny L. Butler v. State, No. 02C01-9509-CR-00289

(Tenn. Crim. App., at Jackson, Dec. 2, 1996). A majority of this panel now adheres

to the holding in these subsequent cases. Thus, this claim is barred by the statute

of limitations.



                  The judgment is affirmed.



                                                  PER CURIAM

                                                  Joe B. Jones, Presiding Judge
                                                  Gary R. Wade, Judge
                                                  Curwood Witt, Judge




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