        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON

                         AUGUST SESSION, 1999      FILED
                                                Ocotober 31, 1999
TYLER W. BANES,              )   C.C.A. NO. 02C01-9812-CC-00378
                             )                  Cecil Crowson, Jr.
      Appe llant,            )                 Appellate Court Clerk
                             )
                             )   MADISON COUNTY
VS.                          )
                             )   HON. FRANKLIN MURCHISON,
STATE OF TENNESSEE,          )   JUDGE
                             )
      Appellee.              )   (Post-Conviction)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CIRCUIT COURT OF MADISON COUNTY


FOR THE APPELLANT:               FOR THE APPELLEE:

TYLER W. BANES                   PAUL G. SUMMERS
Pro Se                           Attorney General and Reporter
Turney Center, Route 1
Only, TN 37140-9709              R. STEPHEN JOBE
                                 Assistant Attorney General
                                 425 Fifth Avenu e North
                                 Nashville, TN 37243-0493

                                 JERRY W OODALL
                                 District Attorney General

                                 ALFRED EARLS
                                 Assistant District Attorney General
                                 P.O. Box 2825
                                 Jackson, TN 38302




OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                         OPINION

          Pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure, the

Defendant, Tyler W. Banes appeals as of right the trial court’s order dismissing his pro

se petition for post-conviction relief. We conclude, without reaching the merits of the

Defendant’s claims, that the Defendant’s petition for post-conviction relief is time-

barred. We accordingly affirm the dismissal of the Defendant’s petition for post-

conviction relief by the trial court.



          In May 1992, the Defendant was convicted of aggravated rape and aggravated

sexual battery. In October 1993, this Court dismissed the Defendant’s conviction for

aggravated sexual battery, but affirmed his conviction for aggravated rape.1 The

Tennessee Supreme Court denied the Defendant’s application for permission to appeal

in 1994.



          The Defendant subsequently filed a petition for writ of error coram nobis,

requesting that his conviction for aggravated rape be set aside and that he be granted

a new trial because of newly discovered evidence. The evidence upon which he based

his petition was a recantation of testimony by the minor victim of his crime. However,

the trial court denied the petition, voicing distrust of the victim’s recantation. On May

1, 1996, this Court affirmed the trial court’s dismissal of the petition for writ of error

coram nobis.2



          On December 2, 1997, the Defendant filed a pro se petition for post-conviction

relief and a pro se amendment to his petition for post-conviction relief. The trial court


1
    State v. Banes, 874 S.W .2d 73, 81 (Tenn. Crim . App. 1993).

2
  Tyler W ayne Ban es v. State , No. 02C 01-950 8-CC -00249 , 1996 W L 2183 55 (Te nn. Crim . App.,
Jackson, May 1, 1996.

                                                   -2-
summarily dismissed the petition on November 20, 1998, finding that all issues raised

by the Defendant in his petition were either previously determined or waived in that they

were not raised on direct appeal. The Defendant now appeals pro se from the

dismissal of his petition.



       The pro se petition alleges generally prosecutorial misconduct, ineffective

assistance of counsel and improper jury instructions. An amendment to the petition

alleges that the indictment is defective. From our review of the record on appeal, we

conclude that the petition is barred by the applicable statute of limitations.



       At the time the Defendant’s conviction became final, the statute of limitations

applicable to post-conviction proceedings was three years. Tenn. Code Ann. § 40-30-

102 (repealed 1995). The three-year statute of limitations was subsequently shortened

to one year by the new Post-Conviction Procedure Act, which took effect on May 10,

1995. See id. § 40-30-210 to -310 (1997). The new statute of limitations begins to run

from the “date of the final action of the highest state appellate court to which an appeal

is taken or, if no appeal is taken, [from] the date on which the judgment became final.”

Id. § 40-30-202(a). At the time the new act took effect, the previous three-year statute

of limitations had not expired for the Defendant.



       Of course, the new Post-Conviction Procedure Act governs this petition and all

petitions for post-conviction relief filed after May 10, 1995.          Id.      The notes

accompanying the new act explain that “any person having ground for relief recognized

under [the new act] shall have at least one (1) year from May 10, 1995, to file a petition

or motion to reopen a petition under” the new act. Id. § 40-30-201 compiler’s notes;

see also Carter v. State, 952 S.W.2d 417, 419-20 (Tenn. 1997). The new act provides

that a reviewing court may entertain a late-filed petition for post-conviction relief only

if certain narrow exceptions apply. See Tenn. Code Ann. § 40-30-202(b)(1)-(3) (1997).

                                           -3-
         The Defendant’s conviction was affirmed by this Court on direct appeal in

October 1993, and the Tennessee Supreme Court denied the Defendant’s application

for permission to appeal in 1994. The Defendant thus had until May 10, 1996, one year

from the effective date of the new Post-Conviction Procedure Act, to file his petition for

post-conviction relief. His petition, filed on December 2, 1997, obviously falls outside

of this time period.3 Therefore, the Defendant’s petition is barred by the one-year

statute of limitations applicable to post-conviction proceedings. Moreover, we conclude

that none of the statutory exceptions apply. See Tenn. Code Ann. § 40-30-202 (a), (b).



         Accordingly, we affirm the trial court’s dismissal of the Defendant’s petition for

post-conviction relief.




                                                ____________________________________
                                                DAVID H. WELLES, JUDGE



CONCUR:



 ___________________________________
JERRY L. SMITH, JUDGE


___________________________________
JAMES CURWOOD WITT, JUDGE




3
   The amended petition alleges that the original petition was filed on May 6, 1996. In a response
to the State ’s m otion to dis mis s the petitio n as t ime -bar red, th e De fend ant a lleges that th e cler k’s
office lost o r misp laced the docum ents. Th e Defe ndant ap parently se nt a copy o f the petition to
the District Attorney’s office in May, 1996, but the record reflects that the petition and other
documents were not filed in the Court Clerk’s office until December 2, 1997.

                                                         -4-
