         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON


                JOE BOBBY YARBRO v. STATE OF TENNESSEE

                    Direct Appeal from the Circuit Court for Dyer County
                             No. C02-70 R. Lee Moore, Judge



                   No. W2004-00751-CCA-R3-PC - Filed October 13, 2004




The Petitioner, Joe Bobby Yarbro, appeals the trial court's denial of his petition for post-
conviction relief. The State has filed a motion requesting that this Court affirm the trial court's
denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. Because the
petition for post-conviction relief is time-barred by the statute of limitations, we grant the State's
motion and affirm the judgment of the lower court.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed Pursuant to Rule 20, Rules of
the Court of Criminal Appeals

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

Stephen David Scofield, Dyersburg, Tennessee, for the appellant, Joe Bobby Yarbro.

Paul G. Summers, Attorney General & Reporter; Rachel E. Willis, Assistant Attorney General,
for the appellee, the State of Tennessee.



                                   MEMORANDUM OPINION


        On November 19, 2002, Petitioner entered a guilty plea to one count of possession of
cocaine over .5 grams, a class B felony. Pursuant to the negotiated plea agreement, Petitioner
received a sentence of eight years in the Department of Correction. No appeal was taken by the
Petitioner.


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         On January 29, 2004, Petitioner filed, pro se, a petition for post-conviction relief. As
basis for relief, Petitioner alleges that trial counsel was ineffective and that his guilty plea was
involuntarily entered. He further asserts that he agreed to an eight year suspended sentence; that
suspended sentence was revoked in March 2003. The trial court appointed counsel on February
2, 2004 and permitted counsel thirty days to file an amended petition. On February 17, 2004, the
State filed a motion to dismiss the petition, asserting that the petition was barred by the one-year
statute of limitations. Six days later, on February 23, 2004, the trial court dismissed the petition,
finding the petition time-barred. The trial court further found that no exceptions existed that
would toll the applicable statute of limitations. A notice of appeal document was filed on March
22, 2004.

        Pursuant to Tennessee Code Annotated section 40-30-102(a) (2003 Repl.), a person in
custody under a sentence of a court of this state must petition for post-conviction relief 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 becomes final.
The statute emphasizes that "[t]ime is of the essence of the right to file a petition for post-
conviction relief or motion to reopen established by this chapter, and the one-year limitations
period is an element of the right to file such an action and is a condition upon its exercise." The
judgment of conviction in this matter was entered on November 19, 2002. No direct appeal was
taken. Hence, the Petitioner had until November 19, 2003, in which to seek post-conviction
relief. His petition was not filed until January 29, 2004, outside the applicable statute of
limitations.

         Due process demands, however, that the statute of limitations not be so strictly applied as
to deny a person the opportunity to have his claim heard and determined at a meaningful time
and in a meaningful manner. State v. McKnight, 51 S.W.3d 559 (Tenn. 2001); Seals v. State, 23
S.W.3d 272 (Tenn. 2000); Burford v. State, 845 S.W.2d 204 (Tenn. 1992). Under the Post-
Conviction Procedure Act of 1995, exceptions to the statute of limitations are explicitly set forth,
i.e., (1) claims based upon a new rule of constitutional law applicable to a petitioner's case, (2)
claims based upon new scientific evidence showing innocence, and (3) claims based upon
enhanced sentences that were enhanced because of convictions subsequently found to be illegal.
See Tenn. Code Ann. § 40-30-102(b)(1)- (3). Petitioner has failed to assert one of these
exceptions for tolling the statute. He cites no new constitutional rule, refers to no new scientific
evidence, and makes no claim that an earlier conviction has been overturned. See Tenn. Code
Ann. § 40-30-106(g) (2003 Repl). Thus, no grounds exist as an exception to the statute of
limitations.

       We conclude that the trial court did not err in summarily dismissing the petition for post-
conviction relief as time-barred. Accordingly, it is ordered that the State’s motion is granted.
The judgment of the trial court is affirmed in accordance with Rule 20, Rules of the Court of
Criminal Appeals.




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___________________________________
ALAN E. GLENN, JUDGE




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