        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs August 2, 2016

                    ERIC DATES v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                     No. 09-07729       Lee V. Coffee, Judge
                     ___________________________________

              No. W2015-02230-CCA-R3-PC - Filed January 24, 2017
                    ___________________________________

The Petitioner, Eric Dates, appeals the Shelby County Criminal Court‟s summary
dismissal of his petition for post-conviction relief. The Petitioner argues, and the State
concedes, that the post-conviction court erred in dismissing his petition for lack of
jurisdiction because his probation had expired. Upon our review, we reverse the
judgment of the post-conviction court and remand this matter for an evidentiary hearing
on the merits of the petition.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed
                                  and Remanded

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ROBERT L. HOLLOWAY, JR., JJ., joined.

Joseph A. McClusky, Memphis, Tennessee, for the Petitioner, Eric Dates.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Stephen W. Ragland,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

       Facts. The Petitioner was convicted by a Shelby County Criminal Court jury of
driving under the influence (DUI), a Class A misdemeanor. He was sentenced to eleven
months and twenty-nine days, which was suspended to supervised probation after he
served forty-eight hours in the Shelby County Division of Correction. The Petitioner
filed a motion for new trial, which the trial court denied. This court confirmed the
Petitioner‟s sentence, and the Tennessee Supreme Court denied the Petitioner‟s
application for permission to appeal. See State v. Eric Dates, No. W2012-01030-CCA-
R3-CD, slip op. at 1-15 (Tenn. Crim. App. Sept. 6, 2013), perm. app. denied (Tenn. Jan.
14, 2014). On January 13, 2015, the Petitioner filed a petition for post-conviction relief
alleging that he received ineffective assistance of counsel at trial. The post-conviction
court found that the Petitioner presented a colorable claim; however, the court questioned
whether it had jurisdiction to hear the case since the Petitioner‟s probation had expired.1
The Petitioner and the State filed memoranda addressing the post-conviction court‟s
concerns, and the court held a hearing to address this issue on August 14, 2015. 2

        At the hearing, counsel for the Petitioner stated that although the Petitioner had
fully served his sentence, he was still subject to collateral consequences of his conviction
because it could be used to enhance a sentence in the future. Counsel relied on State v.
McCraw, 551 S.W.2d 692, 694 (Tenn. 1977) and Ledford v. State, 708 S.W.2d 419, 420
(Tenn. Crim. App. Nov. 19, 1985) for the proposition that “collateral consequences
should be considered for post-conviction purposes.” The State argued that the Petitioner
was no longer “under any sentence of the court” and therefore was not “in custody” for
purposes of the Post-Conviction Procedure Act (“the Act”). Furthermore, the State
asserted that the petition for post-conviction relief failed to allege the prejudicial or
collateral consequences the Petitioner suffered due to his conviction.

       After reviewing the relevant law and considering the arguments of counsel, the
post-conviction court dismissed the petition because the Petitioner suffered no prejudicial
or collateral consequences due to his misdemeanor conviction and was not “in custody”
according to the Act. The post-conviction court filed a written order dismissing the
petition on October 12, 2015, and the Petitioner filed a notice of appeal on November 12,
2015.
                                      ANALYSIS

       On appeal, the Petitioner argues that the post-conviction court erred in summarily
dismissing his petition for post-conviction relief. As an initial matter, we must address
the State‟s contention that the Petitioner did not file a timely notice of appeal and failed
to explain why this court should waive the thirty-day filing requirement. On October 12,
2015, the post-conviction court filed an order dismissing the petition for post-conviction

        1
          The trial court‟s order dismissing the petition for post-conviction relief states that the Petitioner
was placed on probation “on or about January 20, 2014, for [eleven] months and [twenty-seven] days”
and that his probation ended “on or about January 20, 2015.” However, the post-conviction court noted at
the August 14, 2015, hearing that the Petitioner‟s sentence expired before he filed his petition on January
13, 2015. Despite the lack of clarity in the record, this court will infer based on the briefs and transcript
submitted on appeal that the Petitioner fully served his probation before he filed his petition for post-
conviction relief.
        2
          The post-conviction court also heard arguments in a companion case, Joseph Floyd v. State,
which involved slightly different facts but raised the same issue presented in this appeal. See Joseph
Floyd v. State, No. W2015-02232-CCA-R3-PC, 2016 WL 4545995, at *1 (Tenn. Crim. App. Aug. 30,
2016).
                                                          -2-
relief. The Petitioner‟s notice of appeal was filed on November 12, 2015. The State
argues and the Petitioner concedes that November 12, 2015, is thirty-one days after the
post-conviction court denied the petition for post-conviction relief. However, the
Petitioner maintains that the notice of appeal was timely because “November 11, a
holiday, did not count against [the Petitioner].”

        Rule 4(a) of the Tennessee Rules of Appellate Procedure states, “the notice of
appeal required by Rule 3 shall be filed with and received by the clerk of the trial court
within 30 days after the date of entry of the judgment appealed from . . . .” However, this
rule also states that “in all criminal cases the „notice of appeal‟ document is not
jurisdictional and the filing of such document may be waived in the interest of justice.”
Tenn. R. App. P. 4(a); see State v. Scales, 767 S.W.2d 157,158 (Tenn. 1989) (“For
purposes of Rule 4(a), Tenn. R. App. P., post-conviction proceedings are criminal in
nature and the notice of appeal may be waived „in the interest of justice.‟”). We note that
“„[i]n determining whether waiver is appropriate, this court will consider the nature of the
issues presented for review, the reasons for and the length of the delay in seeking relief,
and any other relevant factors presented in the particular case.‟” State v. Rockwell, 280
S.W.3d 212, 214 (Tenn. Crim. App. 2007) (quoting State v. Markettus L. Broyld, No.
M2005-00299-CCA-R3-CO, 2005 WL 3543415, at *1 (Tenn. Crim. App. Dec. 27,
2005)). “Waiver is not automatic and should only occur when „the interest of justice‟
mandates waiver. If this court were to summarily grant a waiver whenever confronted
with untimely notices, the thirty-day requirement of Tennessee Rule of Appellate
Procedure 4(a) would be rendered a legal fiction.” Id. (citing Michelle Pierre Hill v.
State, No. 01C01-9506-CC-00175, 1996 WL 63950, at *1 (Tenn. Crim. App. Feb. 13,
1996)). Furthermore,

       In computing any period of time prescribed or allowed by the rules, the date
       of the act, event, or default after which the designated period of time begins
       to run shall not be included. The last day of the period so computed shall
       be included unless it is a Saturday, a Sunday, or legal holiday as defined in
       Tenn. Code Ann. [§] 15-1-101, . . . in which event the period runs until the
       end of the next day which is not one of the aforementioned days.

Tenn. R. App. P. 21(a). Based on our review of the record, the thirtieth day following
October 12, 2015, fell on November 11, 2015, a legal holiday in the State of Tennessee.
See T.C.A. § 15-1-101 (“November 11, known as „Veterans‟ Day‟” is a legal holiday).
Since the thirtieth day fell on November 11, 2015, this day was not included in the thirty-
day time limit as prescribed by Rule 21(a) of the Tennessee Rules of Appellate
Procedure; thus, November 12, 2015, became the thirtieth day. See e.g., Wright v.
Blalock, No. 86-96-II, 1986 WL 5033, at *1-2 (Tenn. Ct. App. Apr. 30, 1986).
Therefore, the Petitioner‟s notice of appeal was not untimely. However, even if the
                                                -3-
petition was untimely by one day, we conclude that the “interest of justice” is best served
by granting a waiver in this case. See Tenn. R. App. P. 4(a); see also Crittenden v. State,
978 S.W.2d 929, 932 (Tenn. 1998).

       The Petitioner argues that he continues to face collateral consequences due to his
misdemeanor conviction and that he is “in custody” for purposes of the Act. Thus, the
Petitioner contends that he is entitled to an evidentiary hearing on the merits of his
petition. The State on appeal agrees with the Petitioner and concedes that the post-
conviction court erred by dismissing the petition.

        Under Tennessee law, a person must be “in custody” to seek post-conviction
relief. See T.C.A. § 40-30-102(a). “[I]n custody” for purposes of the statute means any
possible restraint on liberty even though the defendant‟s sentence has been fully served.
See McCraw, 551 S.W.2d at 694 (Tenn. 1977). The “in custody” requirement has been
“liberally construed to permit collateral review of an allegedly unconstitutional
conviction, whether or not the . . . petitioner is in fact in custody, if such petitioner is still
suffering under a direct or concomitant disability due to the conviction.” Brandon S.
Massengill v. State, No. E2015-00501-CCA-R3-PC, 2015 WL 7259279, at *2 (Tenn.
Crim. App. Nov. 17, 2015) (quoting State v. McClintock, 732 S.W.2d 268, 272 (Tenn.
1987)). “The mere serving of a sentence [does] not prevent a collateral attack on the
conviction” because such a conviction may be used as “a basis for infliction of greater
punishment.” McCraw, 551 S.W.2d at 694 (citing Sibron v. New York, 392 U.S. 40, 57
(1965)). Moreover, “a criminal case is moot only if it is shown that there is no possibility
that any collateral legal consequences will be imposed on the basis of the challenged
conviction.” Id. at 694 (quoting Sibron, 392 U.S. at 57).

        We agree that the post-conviction court erred in dismissing the petition for post-
conviction relief. The record reflects that the Petitioner was found guilty of a
misdemeanor DUI. After exhausting all of his appeals and completing the remainder of
his probation, the Petitioner filed a petition for post-conviction relief. Although the
Petitioner‟s sentence has expired, the conviction could be used to enhance a future
sentence, particularly if the Petitioner is charged with a second DUI. See T.C.A. § 55-10-
405 (“For the sole purpose of enhancing the punishment . . . every violation of
[Tennessee Code Annotated section] 55-10-401 that resulted in a conviction . . . shall be
considered in determining the number of prior offenses.”). “A misdemeanor conviction
may therefore lead to a collateral legal consequence in the future and is a proper subject
for post-conviction relief.” Ledford, 708 S.W.2d at 420. This court has held that a
Petitioner is in custody for purposes of seeking post-conviction relief even though his
misdemeanor conviction had expired because it “continues to impose a restraint on his
liberty.” Brandon S. Massengill, 2015 WL 7259279, at *2; see also Albert v. State, 813
S.W.2d 426, 427 (Tenn. 1991). Accordingly, because the Petitioner is still subject to
                                                   -4-
collateral legal consequences from his expired sentence, we conclude that the post-
conviction court erred in dismissing his petition and remand for an evidentiary hearing.

                                   CONCLUSION

      We reverse the judgment of the post-conviction court and remand for further
proceedings consistent with this opinion.


                                            ____________________________________
                                           CAMILLE R. McMULLEN, JUDGE




                                              -5-
