         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs January 10, 2006

                   OSCAR C. WELLS v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Shelby County
                         No. 01-03299    Arthur T. Bennett, Judge



                     No. W2005-01337-CCA-R3-PC - Filed April 19, 2006


The Appellant, Oscar C. Wells, proceeding pro se, appeals the summary dismissal of his petition for
post-conviction relief as being time barred. On appeal, Wells asserts that his petition was timely
filed because he delivered the petition to the appropriate prison official within the requisite one-year
limitation period as authorized by Supreme Court Rule 28. The post-conviction court dismissed the
petition as time barred because the petition was stamped “filed” by the Shelby County Criminal
Court Clerk’s office outside the one-year period. Because these allegations present a factual dispute
as to whether Wells’ petition was timely filed, we vacate the judgment of the post-conviction court
and remand for resolution of this issue.

   Tenn. R. App. P. 3; Judgment of the Post-Conviction Court Vacated; Case Remanded

DAVID G. HAYES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
ALAN E. GLENN , JJ., joined.

Oscar C. Wells, Pro Se.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William L. Gibbons, District Attorney General, for the Appellee, State of Tennessee.

                                              OPINION

                                         Procedural History

        The Appellant was convicted in the Shelby County Criminal Court of one count of first
degree murder and one count of especially aggravated robbery and received an effective sentence of
life plus ten years. The Appellant appealed, and this court affirmed the convictions. See State v.
Oscar C. Wells, No. W2002-01486-CCA-R3-CD (Tenn. Crim. App. at Jackson, Sept. 16, 2003),
perm. to appeal denied, (Tenn. Mar. 1, 2004). He is currently incarcerated at the Northwest
Correctional Complex in Lake County.
        Because the Appellant’s conviction became final on March 1, 2004, he had one year from
that date to file a petition for post-conviction relief. The Appellant alleges that on February 4, 2005,
he placed his petition for post-conviction relief in the mailbox of the correctional facility in which
he resided for mailing to the Shelby County Criminal Court Clerk’s Office as required by Tennessee
Supreme Court Rule 28, section 2(G). Paragraph 22 of the Appellant’s petition states that it was
mailed on “2-4-05,” and the petition reflects that it was signed and verified by the Appellant “2-4-
05” under penalty of perjury.1 On May 15, 2005, an order was entered dismissing the petition as
being time barred. This order provided that the petition was filed on March 31, 2005, as it was
stamped “filed” by the Shelby County Criminal Court Clerk on that date. The Appellant’s pro se
notice of appeal was filed on May 20, 2005.

                                                      Analysis

        The Post-Conviction Procedure Act of 1995 provides that, with certain exceptions not
applicable here, a petition for post-conviction relief must be filed 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 the judgment became final. T.C.A. § 40-30-104(a) (2003).
However, acknowledging the difficulties a pro se prisoner might encounter in delivering a petition
to the appropriate destination within the applicable time limitations, the Tennessee Supreme Court
adopted Supreme Court Rule 28, section 2(g), which provides that a post-conviction petition filed
by a pro se petitioner who is incarcerated is deemed filed when it is received by the appropriate
prison authorities for mailing. Tenn. R. Sup. Ct. 28, § 2(G); see also Lakeith O. Lightfoot v. State,
No. 02C01-9703-CR-00129 (Tenn. Crim. App. at Jackson, Feb. 18, 1998). The Tennessee Rules
of Criminal Procedure similarly provide that if a petition for post-conviction relief is:

         prepared on behalf of a pro se litigant incarcerated in a correctional facility and are
         not received by the clerk of the court until after the time fixed for filing, filing shall
         be timely if the papers were delivered to the appropriate individual at the correctional
         facility within the time fixed for filing.

Tenn. R. Crim. P. 49(c). In effect, “the jailer is . . . the clerk of the [court].” Paul v. State, 75
S.W.3d 926, 929 (Tenn. Crim. App. 2001) (citing Houston v. Lack, 487 U.S. 270, 108 S. Ct. 2379,
2382 (1998)).

        The record before us raises the factual issue of whether the Appellant timely filed a petition
for post-conviction relief on February 4, 2005. Because this court has appellate jurisdiction only,




         1
           W e note, however, that the form of the Appellant’s post-conviction petition in this case does not conform to
the prescribed form as contained in Tenn. R. Sup. Ct. 28, app. A, as no notarization is provided for the Appellant’s
signature.

                                                          -2-
it is necessary that this factual allegation be resolved at the trial court level.2 The State concedes on
appeal the necessity for remand. Accordingly, we remand for a determination of this issue. If the
post-conviction court finds that the petition was timely filed, proceedings consistent with the Post-
Conviction Act should follow. If the post-conviction court finds that the petition was not timely
filed, appropriate findings should be entered and this case dismissed.

                                                  CONCLUSION

       Based upon the foregoing, we vacate the order of the post-conviction court summarily
dismissing the Appellant’s petition for post-conviction relief and remand this case for further
proceedings consistent with this opinion.



                                                                 ___________________________________
                                                                 DAVID G. HAYES, JUDGE




         2
           To avoid this ongoing problem, it is suggested that the envelope containing an appellant’s pro se petition from
a correctional facility be filed with the pro se petition.

                                                           -3-
