         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE             FILED
                         FEBRUARY SESS ION, 1998         March 24, 1998

                                                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk

JAMES W. SMITH,                   )   C.C.A. NO. 03C01-9707-CR-00250
                                  )
           Appe llant,            )
                                  )   RHEA COUNTY
V.                                )
                                  )
                                  )   HON. J. CURTIS SMITH, JUDGE
STATE OF TENNESSEE,               )
                                  )
           Appellee.              )   (POST-C ONVIC TION)



FOR THE APPELLANT:                    FOR THE APPELLEE:

JAME S W. S MITH , pro se             JOHN KNOX WALKUP
#229668, S.T.S.R.C.F.                 Attorney General & Reporter
Route 4, Box 600
Pikeville, TN 37367                   TIMOTHY F. BEHAN
                                      Assistant Attorney General
                                      2nd Floor, Cordell Hull Building
                                      425 Fifth Avenue North
                                      Nashville, TN 37243

                                      J. MICHAEL TAYLOR
                                      District Attorn ey Ge neral

                                      JAME S W. P OPE , III
                                      Assistant District Attorney General
                                      First American Bank Bldg., 3rd Floor
                                      Dayton, TN 37321




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                      OPINION
       The Petition er, Jam es W . Smith , appe als the order of the Rh ea Co unty C ircuit

Court dismissing his pro se petition for post-conviction relief. The trial court found

that the petition was filed o utside the statute of lim itations. Afte r a review o f the

record, w e affirm the trial court.



       On September 12, 1990, Petitioner was convicted in the Rhea Coun ty Circu it

Court for the offen ses of rap e and inc est. He w as sen tenced to terms of twelve (12)

years and three (3) yea rs to be served c onsecutively. His direct appeal was affirmed

on March 24, 199 2, and h is applicatio n for perm ission to ap peal to the supreme

court was denied July 9, 1992. Petitioner filed his petition for post-conviction relief

on August 26, 1996, alleging that the indictments against him were fatally deficient

so as to deprive the trial court of jurisdiction. The trial court subsequently dismissed

the petition without an evidentiary hearing because it was filed outside the one-year

statute of limitations and because it fit none of the exceptions to the one-year filing

requirem ent. Ten n. Cod e Ann. § 40-30-2 02(a) an d (b).



       At the time the Pe titioner’s conviction s beca me fina l, July 9, 199 2, the statu te

of limitations applicable to post-conviction proceedings was three years. Tenn. Code

Ann. § 40-30-10 2 (repealed 1995 ). In 1995, the legislature re duced the s tatutory

period for filing post-conviction petitions from three (3) yea rs to one (1) year. Tenn.

Code Ann. § 4 0-30-20 2(a). The new 1995 Post-Conviction Act governs this petition

and a ll petitions filed after May 10, 1995. Because the previo us three -year statu te

of limitatio ns ha d not e xpired for Pe titioner a t the tim e the ne w Act to ok effe ct, his




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right to petition for post-conviction relief survived under th e new A ct. See Carter v.

State, 952 S.W .2d 417, 420 (Tenn. 199 7).



       As a result, Petitioner had one year from the effective date of the new Act,

May 10, 1995, to file for post-conviction relief. Tenn. Code Ann. § 40-30-201 and -

202(a). Petitioner filed his petition fo r post-conviction relief on August 26, 1996,

more than three months after the expiration of the one-year period. Therefore,

Petitione r’s petition is tim e-barred by the on e-year sta tute of limitatio ns.



       Howeve r, Petitioner a lleges tha t the indictm ents against him are insufficient

for failure to state a mens rea, thus carving out an exception to the s tatutory

one -year filing req uireme nt. See Tenn. Code Ann. § 40-30-202(b)(1). Petitioner

relies upon the decision of this Court in State v. Rog er Da le Hill, C.C.A. No. 01C01-

9508-CC-00267, Wayne County (Tenn. Crim App., N ashville , June 20, 19 96), in

support of his argument that the decision in Hill established a new constitutional right

not existing at the time of his convictions, thus not barring his petition as untimely.

See Tenn. Code A nn. § 40-30-2 02(b)(1). How ever, o ur sup reme court re verse d this

Cou rt’s decision in Hill. See State v. Hill, 954 S.W.2d 725 (Tenn. 1997). In any

event, Hill did not establish a new constitutional right not existing at the time of

Petitioner’s conviction.



       According ly, we conclude that the trial court correctly found that the petition

was barred by the statute of limitations with no statutory exceptions applicable, and

therefore, a sum mary d ismissa l of the petition was ap propriate . Tenn . Code Ann.

§ 40-30 -206(b).




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                         ____________________________________
                         THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
JERRY L. SMITH, Judge


___________________________________
WILLIAM B. ACREE, JR., Special Judge




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