         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               Assigned on Briefs April 29, 2008

                    LEBRON MOORE v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Hamilton County
                          Nos. 256713        Don W. Poole, Judge



                       No. E2007-01070-CCA-R3-PC - Filed July 10, 2008


JOSEPH M. TIPTON , P.J., dissenting.

         The last court to consider the petitioner’s mental fitness was the trial court that dismissed his
post-conviction case without prejudice in 1988 because the petitioner was mentally incompetent to
proceed. We are presently faced with a Motion to Reopen form that is quite limited when compared
to the form for a petition for post-conviction relief. It does assert, however, that the petitioner was
found incompetent and that he did not seek an appeal because he was unaware of the process due
to his incompetence.

        When a trial court considered the Motion to be a post-conviction petition and appointed
counsel, it ordered that the case be set for an evidentiary hearing regarding the petition’s timeliness.
Unfortunately, counsel did not amend the pleading to include necessary information to pursue a post-
conviction case, including any reason that would toll the statute of limitations. Also, counsel did
not present any evidence at the hearing that would allow the trial court to consider whether the
petitioner’s incompetence justified the late filing.

       The petitioner lost his original post-conviction day in court because he was found
incompetent. He has now lost his day in court for not specifically alleging and proving his
incompetence. Under the circumstances of this case, I believe the petitioner should be presumed
incompetent for the tolling of the statute of limitations until the state proves to the contrary in an
appropriate hearing.



                                                         ____________________________________
                                                         JOSEPH M. TIPTON, PRESIDING JUDGE
