             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                       AT JACKSON

                             SEPTEMBER 1997 SESSION
                                                                FILED
                                                               September 19, 1997

                                                               Cecil Crowson, Jr.
                                                                Appellate C ourt Clerk
TROY LEE GODWIN,                   )
                                   )     No. 02-C-01-9611-CC-00426
             APPELLANT,            )
                                   )     Gibson County
v.                                 )
                                   )     Dick Jerman, Jr., Judge
STATE OF TENNESSEE,                )
                                   )     (Post-Conviction Relief)
             APPELLEE.             )




FOR THE APPELLANT:                       FOR THE APPELLEE:

Troy Lee Godwin, 129279                  John Knox Walkup
Cold Creek Correctional Facility         Attorney General & Reporter
P. O. Box 1000                           500 Charlotte Avenue
Henning, TN 38041-1000                   Nashville, TN 37243-0497

                                         Georgia Blythe Felner
                                         Assistant Attorney General
                                         450 James Robertson Parkway
                                         Nashville, TN 37243-0493

                                         Clayburn L. Peeples
                                         District Attorney General
                                         110 South College Street, Suite 200
                                         Trenton, TN 38382

                                         Theodore H. Neumann
                                         Assistant District Attorney General
                                         110 South College Street, Suite 200
                                         Trenton, TN 38382




OPINION FILED: _________________________________


REVERSED AND REMANDED


Joe B. Jones, Presiding Judge
                                         OPINION

         The appellant, Troy Lee Godwin (petitioner), appeals as of right from a judgment of

the trial court summarily dismissing his suit for post-conviction relief. The trial court found

the suit was barred by the statute of limitations. The petitioner contends he is entitled to

the benefit of the one-year window contained in the Post-Conviction Procedure Act of

1995. After a thorough review of the record, the briefs submitted by the parties, and the

law governing the issue presented for review, it is the opinion of this Court the judgment

of the trial court should be reversed and this cause remanded to the trial court for the

appointment of counsel and an evidentiary hearing, if warranted by the allegations

contained in the petition or any amended petitions which may be filed in the cause.

         The petitioner was convicted of robbery with a deadly weapon, aggravated rape, and

aggravated kidnapping on July 17, 1989. He subsequently appealed his convictions and

sentences as of right. This Court set aside the sentences imposed by the trial court and

remanded the cause for a new sentencing hearing. State v. Troy Lee Godwin, Gibson

County No. 02-C-01-9103-CR-00037, 1991 WL 181805 (Tenn. Crim. App., Jackson,

September 18, 1991). The petitioner subsequently appealed the sentence imposed by the

trial court. This Court affirmed the sentence. State v. Troy Lee Godwin, Gibson County

No. 02-C-01-9206-CC-00139, 1993 WL 22003 (Tenn. Crim. App., Jackson, February 3,

1993).

         The petitioner filed this action, his first suit for post-conviction relief, on May 2, 1996.

The state filed what was entitled a “preliminary response” on June 13, 1996. The state’s

response expressed the view that the petitioner’s suit was barred by the three year statute

of limitations. The trial court entered an order dismissing the suit on July 9, 1996.

         This case is governed by Judge David H. Welles’s opinion in Betsy Jane

Pendergrast v. State, Rutherford County No. 01-C-01-9607-CC-00289 (Tenn. Crim. App.,

Nashville, May 16, 1997). In Pendergrast, this Court held the one (1) year statute of

limitations contained in the Post-Conviction Procedure Act of 1995 was applicable. See

Tenn. Code Ann. § 40-30-202(a). Thus, the petitioner’s suit for post-conviction relief was

not barred by the statute of limitations. In ruling, Judge Welles stated:



                                                  2
              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). It is clear that the petition in the case sub judice was
              filed several days after the expiration of the three-year statute
              of limitations.

              The new Post-Conviction Procedure Act is applicable to this
              petition and all petitions filed after May 10, 1995. This Act
              repealed the three-year statute of limitations and enacted in its
              place a one-year statute of limitations. On the effective date
              of this Act, same being May 10, 1995, the repealed three-year
              statue of limitations had not yet run on the petitioner’s right to
              file a petition for post-conviction relief. The 1995 Act provided,
              in pertinent part, that “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 a petition under this act.” 1995 Tenn. Pub. Acts Ch.
              207, § 3.

              Because it is clear that the three-year statute of limitations had
              not run on this Defendant at the time the legislature repealed
              the statute and replaced it with a one-year statute, we believe
              that the provision quoted above provided this Defendant one
              year from the effective date of the Act or until May 10, 1996, to
              file [his] petition for post-conviction relief. . . . [T]he petition
              herein was timely filed on February 1, 1996 and should have
              been considered by the trial court on the merits.

Slip op. at 2-3 (footnotes omitted).

       This Court adopts the holding and the reasoning of Judge Welles in Pendergrast.

Thus, the judgment of the trial court is reversed.




                                            ________________________________________
                                                JOE B. JONES, PRESIDING JUDGE


CONCUR:



___________________________________
     DAVID H. WELLES, JUDGE



___________________________________
        JOE G. RILEY, JUDGE




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