          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON             FILED
                            JULY 1998 SESSION           August 21, 1998

                                                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk
VIKKI LYNN SPELLMAN,                 )
                                     )   NO. 02C01-9801-CC-00036
      Appellant,                     )
                                     )   TIPTON COUNTY
VS.                                  )
                                     )   HON. JOSEPH H. WALKER, III,
STATE OF TENNESSEE,                  )   JUDGE
                                     )
      Appellee.                      )   (Post-Conviction)



FOR THE APPELLANT:                       FOR THE APPELLEE:

VIKKI LYNN SPELLMAN, Pro Se              JOHN KNOX WALKUP
# 81976                                  Attorney General and Reporter
Special Needs Facility
7575 Cockrill Bend Industrial Road       PETER M. COUGHLAN
Nashville, TN 37209-1057                 Assistant Attorney General
                                         Cordell Hull Building, 2nd Floor
                                         425 Fifth Avenue North
                                         Nashville, TN 37243-0493

                                         ELIZABETH T. RICE
                                         District Attorney General
                                         302 Market Street
                                         Somerville, TN 38068




OPINION FILED:



REVERSED AND REMANDED



JOE G. RILEY,
JUDGE
                                       OPINION



       This case represents an appeal from the trial court’s summary dismissal of

the appellant’s petition for post-conviction relief based upon the statute of

limitations. Appellant contends her mental incompetence tolled the statute of

limitations. We reverse and remand for a determination of appellant’s alleged

mental incompetence and its effect upon the statute of limitations.



                              PROCEDURAL HISTORY



       The appellant pled guilty to first degree murder on April 18, 1988, and

received a life sentence. No appeal was taken. On June 15, 1989, the appellant

filed her first petition for post-conviction relief alleging ineffective assistance of

counsel and was represented by appointed counsel. Just prior to the evidentiary

hearing on the merits of the petition, the appellant withdrew the petition.

       On December 24, 1997, the appellant filed this her second petition for post-

conviction relief again alleging ineffective assistance of counsel at the time of her

original guilty plea. In this petition, she asserts that she withdrew her first petition

because of her “psychological state” as she was in “no condition to assist post-

conviction counsel in presenting anything in a logical, orderly fashion to the Court.”

       The trial court dismissed the present petition without a hearing, finding that

the petition was barred by the statute of limitations. See Tenn. Code Ann. § 40-30-

202(a). On appeal, the appellant, citing Watkins v. State, 903 S.W.2d 302 (Tenn.

1995), claims that application of the statute of limitations in this case would violate

constitutional due process.



                            STATUTE OF LIMITATIONS



       Tenn. Code Ann. § 40-30-202(a) provides that a person in custody under a

sentence of a court of this state must petition for post-conviction relief within one (1)


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year of the final action of the highest state appellate court to which an appeal is

taken or, if no appeal is taken, within one (1) year of the date on which the judgment

became final. The statute further provides that the limitations period “shall not be

tolled for any reason, including any tolling or saving provision otherwise available

at law or equity.” Id. None of the specified exceptions to the statute apply in this

case. See Tenn. Code Ann. § 40-30-202(b).



                                A. Saving Statute



       The appellant’s insistence that the saving statute, Tenn. Code Ann. § 28-1-

106, applies to post-conviction proceedings is misplaced. The appellant relies upon

Watkins, wherein our Supreme Court held that this statute applied in post-conviction

proceedings. 903 S.W.2d at 305. However, this holding construed the 1989 Post-

Conviction Procedure Act. In 1995, the legislature specifically amended the Post-

Conviction Procedure Act to preclude the application of the saving provision. Tenn.

Code Ann. § 40-30-202(a). Accordingly, appellant cannot benefit from Tenn. Code

Ann. § 28-1-106.



                                 B. Due Process



       This, however, does not end our inquiry. Watkins now becomes relevant in

determining whether constitutional due process is applicable. There, the appellant’s

first petition was dismissed without a hearing because the appellant was unable to

proceed with the petition due to his mental incompetence. The second petition was

not filed until after the statute of limitations expired and was, consequently,

dismissed by the trial court. In remanding the matter for further proceedings on the

post-conviction petition, the Supreme Court, relying upon Burford v. State, 845

S.W.2d 204 (Tenn. 1992), based its reasoning upon constitutional due process

considerations in addition to the application of the saving statute. The Court stated

that if the appellant’s “allegations of incompetency prove to be valid, application of


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the statute of limitations would effectively deprive him of an opportunity to challenge

his conviction in a meaningful time and manner.” Watkins, 903 S.W.2d at 306

(emphasis added). 1 Furthermore,

       [i]f the petitioner was mentally incompetent, and therefore legally
       incapable, he would be denied any opportunity to assert his
       constitutional rights in a post-conviction petition, unless the period of
       limitations was suspended during his mental incompetence. Due
       process requires that some reasonable opportunity to assert those
       rights be afforded.

Id.



      C. Watkins’ Application to the 1995 Post-Conviction Procedure Act



       In light of Watkins, we proceed to interpret Tenn. Code Ann. § 40-30-202(a)

which states, “[t]he statute of limitations shall not be tolled for any reason, including

any tolling or saving provision otherwise available at law or equity.” The clear

legislative intent is to eliminate tolling provisions, such as the saving statute;

however, Tenn. Code Ann. § 40-30-202(a) may not eliminate a constitutionally

required tolling provision. Since our Supreme Court determined in Watkins that

incompetence tolls the statute of limitations under constitutional due process,

incompetence remains a viable tolling provision under the 1995 Post-Conviction

Procedure Act.



               D. Sufficiency of Appellant’s Allegations of Tolling



       In the present case, the appellant’s first petition for post-conviction relief was

dismissed before consideration on the merits. The appellant alleged in her present

petition that her psychological condition precluded her from pursuing the first

petition in 1990. The court below dismissed the second petition based solely upon

the running of the statute of limitations, without a finding as to mental incompetence.

The matter in Watkins was remanded for this determination.


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         In Watkins, there was apparently nothing before the Court establishing the appellant
was, in fact, mentally incompetent. The same is true in this case.

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       We note that appellant did not allege that she was incompetent during the

entire period from 1990 to the filing of the present petition on December 24, 1997.

If appellant were incompetent in 1990, but regained competency thereafter, the

statute of limitations may still have expired prior to her filing on December 24, 1997.

Therefore, even on the face of the petition, appellant did not sufficiently allege facts

that would show the filing was timely. We find it difficult to fault the trial court for its

dismissal based upon the allegations in the petition. Nevertheless, this issue is one

of first impression under the 1995 Post-Conviction Procedure Act. A remand for

appointment of counsel and the filing of an amended petition would be appropriate

under these circumstances.



                     OTHER FACTS APPEARING IN RECORD



       A remand is also uniquely justified by the facts appearing in the record which

arguably lend support to a claim of mental incompetence. Prior to the original trial,

the appellant was delivered to the West Tennessee Mental Health Institute at

Bolivar, Tennessee, by the Tipton County Sheriff’s Office for emergency treatment.

The trial court ordered a pre-trial evaluation to be conducted by the West

Tennessee Mental Health Institute. The Institute reported that the appellant was

competent to stand trial and that a defense of insanity could not be supported.

Although the Institute reported that the appellant was not subject to commitment to

a mental health institution, it recommended “outpatient supportive counseling

through the Tri-County Mental Health Center.”

       At the time of the appellant’s first petition for post-conviction relief in June

1989, she alleged she was then residing at the DeBerry Correctional Institute, which

is a Special Needs Facility.

       The current petition for post-conviction relief alleged that at the time of its

preparation on December 19, 1997, the appellant was also confined in the DeBerry

facility. This latter petition alleged that the first petition was dismissed “as a result

of petitioner and counsel so requesting because of the petitioner’s psychological



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state at the time.” The petition further alleged that there were no efforts made on

the part of any counsel to “ascertain if her psychological state had improved to the

point that she could assist counsel in presenting the facts asserted in the initial

petition.”

       Based upon the record, there is arguable evidence of mental health problems

as early as 1988 and as recently as when the present petition was filed. Although

the present petition does not allege facts sufficient to warrant the trial court in tolling

the statute of limitations found in Tenn. Code Ann. § 40-30-202(a), the record does

evince sufficient documented bases of prior mental health problems to warrant, in

this case, further findings of the court in order to determine whether appropriate

grounds exist for the tolling of the statute of limitations based upon the Watkins due

process rationale. In other words, the appellant has not made mere conclusory

allegations of incompetence. Rather, the record presents a unique justification for

further findings of fact on the statute of limitations issue.



                                        REMAND



       Upon remand, the trial court should appoint counsel and determine if

appellant was ever incompetent after her original conviction became final. The

statute of limitations was three (3) years prior to May 10, 1995. If appellant was

competent for three (3) years prior to May 10, 1995, the statute of limitations expired

at the end of the three (3) year period and the present petition filed December 24,

1997, was untimely.

       Effective May 10, 1995, the statute of limitations became one (1) year. If the

statute of limitations did not expire prior to May 10, 1995, the new one (1) year

statute of limitations must be applied. Appellant did not file her present petition until

December 24, 1997. Incompetence would need to be determined between May 10,

1995, and December 24, 1996. If appellant was competent for a year prior to

December 24, 1996, the statute would have expired at the end of that year period.

The present petition filed December 24, 1997, would, therefore, be untimely.



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       For appellate purposes the trial court should make findings as to alleged

incompetence prior to May 10, 1995, and subsequent to May 10, 1995.



                                   CONCLUSION



       For the reasons stated above, we vacate the trial court’s judgment dismissing

the appellant’s second petition for post-conviction relief. The matter is remanded

for appointment of counsel and further proceedings on the petition. If the trial court

finds that the appellant was in fact mentally incompetent, as alleged, at the time of

the withdrawal of the first petition, the trial court shall then determine when and

whether the appellant regained competence, and whether the present petition was

timely filed.



                                                  JOE G. RILEY, JUDGE

CONCUR:




CURWOOD WITT, JUDGE




ROBERT W. WEDEMEYER, SPECIAL JUDGE




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