            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE            FILED
                            JULY 1997 SESSION
                                                       August 22, 1997

                                                      Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk


MORRIS R. DONEGAN,                )    NO. 01C01-9608-CR-00354
                                  )
      Appellant                   )    SUMNER COUNTY
                                  )
V.                                )    HON. JANE WHEATCRAFT, JUDGE
                                  )
STATE OF TENNESSEE,               )    (Post-Conviction)
                                  )
      Appellee                    )
                                  )


FOR THE APPELLANT                      FOR THE APPELLEE

David A. Doyle                         John Knox Walkup
District Public Defender               Attorney General and Reporter
117 East Main Street                   450 James Robertson Parkway
Gallatin, Tennessee 37066              Nashville, Tennessee 37243-0493

                                       Lisa A. Naylor
                                       Assistant Attorney General
                                       450 James Robertson Parkway
                                       Nashville, Tennessee 37243-0493

                                       Lawrence Ray Whitley
                                       District Attorney General
                                       113 West Main Street
                                       Gallatin, Tennessee 37066




OPINION FILED:______



AFFIRMED


William M. Barker, Judge
                                                      Opinion

        The Appellant, Morris R, Donegan, appeals as of right the Sumner County

Criminal Court’s dismissal of his petition for post-conviction relief. In 1983, the

Appellant was convicted of three counts of aggravated rape and is currently serving a

sixty-year sentence in the Tennessee Department of Correction. This Court affirmed

the Appellant’s conviction on May 8, 1984.1 See State v. Morris R. Donegan, C.C.A.

No. 84-1-III (Tenn. Crim. App., Nashville, May 8, 1984). At some point thereafter, the

Appellant filed a petition for post-conviction relief which, after an evidentiary hearing,

was dismissed by the trial court. This Court affirmed the trial court’s dismissal in State

v. Morris Radford Donegan, C.A.A. No. 85-78-III (Tenn. Crim. App., Nashville,

Nov. 15, 1985) and the Tennessee Supreme Court denied the Appellant’s petition for

permission to appeal on March 3, 1986.

        The Appellant filed this petition for post-conviction relief alleging that the jury

instructions at his trial unconstitutionally defined reasonable doubt. On May 13, 1996,

without an evidentiary hearing, the trial court issued an order dismissing the petition.

        Pursuant to the now-repealed Post-Conviction Procedure Act, the statute of

limitation applicable to the Appellant’s post-conviction claims was three years.2 Tenn.

Code Ann. § 40-30-102 (repealed 1995). That three-year period began running on

July 1, 1986, the effective date of the statute. The last day on which the Appellant

could have filed such a petition was in July of 1989. See e.g. State v. Mullins, 767

S.W.2d 668, 669 (Tenn. Crim. App. 1988); Smith v. State, 757 S.W.2d 683, 685

(Tenn. Crim. App. 1988); State v. Masucci, 754 S.W.2d 90, 91 (Tenn. Crim. App.

1988); Abston v. State, 749 S.W.2d 487, 488 (Tenn. Crim. App. 1988). The

Appellant’s petition was filed in March of 1996, more than six years after the statute

expired. Consequently, the trial court properly dismissed the Appellant’s petition.


        1
            Th e rec ord d oes not indicate w heth er an y further app eals were so ugh t.

        2
        Prior to the enactment of the 1986 Post-Conviction Procedure Act, no statute of limitations for
post-conviction applications existed.

                                                           2
       Any contention by the Appellant that the new Post-Conviction Procedure Act,

effective May 10, 1995, provided him with a one-year window of opportunity within

which to file his post-conviction petition is meritless. Similar attempts to circumvent

the statute of limitations in this manner have been previously rejected by panels of this

Court. See Roy Barnett v. State, C.C.A. No. 03C01-9512-CV-00394 (Tenn. Crim.

App., Knoxville, Feb. 20, 1997); Stephen Koprowski v. State, C.A.A. No. 03C01-9511-

CC-00365 (Tenn. Crim. App., Knoxville, Jan. 28, 1997); Johnny L. Butler v. State,

C.C.A. No. 02C01-9509-CR-00289 (Tenn. Crim. App., Jackson, Dec. 2, 1996). But

see Arnold Carter v. State, C.C.A. No. 03C01-9509-CC-00270 (Tenn. Crim. App.,

Knoxville, July 11, 1996).

       Accordingly, the trial court’s dismissal of the Appellant’s petition for post-

conviction relief is affirmed.




                                                  __________________________
                                                  WILLIAM M. BARKER, JUDGE

CONCUR:



__________________________
JOHN H. PEAY, JUDGE



__________________________
JERRY L. SMITH, JUDGE




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