         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs November 29, 2006

              JAMES BRIAN STEVENS v. STATE OF TENNESSEE

                  Direct Appeal from the Circuit Court for Bedford County
                              No. 10675    Lee Russell, Judge



                   No. M2006-00696-CCA-R3-PC - Filed December 29, 2006


The pro se petitioner, James Brian Stevens, appeals the summary dismissal of his petition for post-
conviction relief, arguing that the statute of limitations should have been tolled during the time that
he spent on probation. Following our review, we affirm the dismissal of the petition as time-barred.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ALAN E. GLENN , J., delivered the opinion of the court, in which DAVID G. HAYES and D. KELLY
THOMAS, JR., JJ., joined.

James Brian Stevens, Northeast Correctional Complex, Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia Lee, Assistant Attorney General;
William M. McCown, District Attorney General; and Michael D. Randles, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                               FACTS

        On April 3, 2003, the petitioner pled guilty in the Bedford County Circuit Court to felony
evading arrest and reckless endangerment with a deadly weapon. At the conclusion of a June 5,
2003, sentencing hearing, the trial court sentenced him as a Range I, standard offender to concurrent
terms of four years for the evading arrest conviction and two years for the reckless endangerment
conviction, with ninety days to be served in jail and the balance of the time on supervised probation.
On February 6, 2006, the petitioner filed a pro se petition for post-conviction relief in which he
alleged that he received ineffective assistance of counsel, his guilty pleas were unknowing and
involuntary, and illegal evidence was used to secure his convictions. The petitioner argued that the
trial court’s February 3, 2005, revocation of his probation for his “dirty drug screen” should result
in the tolling of the statute of limitations during the time he had spent on probation. On February
9, 2006, the post-conviction court entered an order dismissing the petition on the basis that it was
untimely filed and the petitioner had not set out any “recognized exception that would toll the statute
of limitations.” On March 24, 2006, the petitioner filed a notice of appeal in this court.

                                             ANALYSIS

        The petitioner argues that his post-conviction petition was timely, as he filed it within one
year of the trial court’s revocation of his probation. He apparently believes that, because service of
his sentence was suspended while he was on probation, his judgment did not become final until the
trial court revoked his probation and reinstated his sentence. The State argues that the post-
conviction court properly dismissed the petition on the basis that it was filed outside the applicable
one-year statute of limitations. We agree with the State.

        Under the Post-Conviction Procedure Act of 1995, a claim for post-conviction relief must
be filed “within one (1) 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 (1) year of the date on which the
judgment became final, or consideration of such petition shall be barred.” Tenn. Code Ann. §
40-30-102(a) (2003). The statute contains a specific anti-tolling provision, stating:

        The statute of limitations shall not be tolled for any reason, including any tolling or
        saving provision otherwise available at law or equity. Time 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. Except as specifically provided in
        subsections (b) and (c), the right to file a petition for post-conviction relief or a
        motion to reopen under this chapter shall be extinguished upon the expiration of the
        limitations period.

Id. Subsection (b) of the statute sets forth the three narrow exceptions under which an untimely
petition may be considered: (1) when the claim is based upon a final ruling of an appellate court
establishing a constitutional right that was not recognized at the time of trial and which requires
retrospective application; (2) when the claim is based upon new scientific evidence establishing that
the petitioner is innocent; and (3) when a previous conviction that was not a guilty plea and which
was used to enhance the petitioner’s sentence has been held to be invalid. Id. § 40-30-102(b).

        None of the above narrow exceptions exists in this case. Moreover, the petitioner failed to
allege or demonstrate the existence of any factors, such as mental incompetence during the relevant
period, under which due process considerations would require that the statute of limitations be tolled.
See, e.g., State v. Nix, 40 S.W.3d 459, 464 (Tenn. 2001) (“We emphasize that to make a prima facie
showing of incompetence requiring tolling of the limitations period, a post-conviction petition must
include specific factual allegations that demonstrate the petitioner's inability to manage his personal
affairs or understand his legal rights and liabilities.”). Since no direct appeal was filed in this case,
the judgment became final on June 5, 2003, the date the judgments were entered by the trial court.
Thus, the statute of limitations for filing a post-conviction petition expired on June 5, 2004. The


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petitioner is simply mistaken in his assertion that the judgment did not become final until the trial
court revoked his probation. We, therefore, agree with the State that the petition is barred by the
one-year statute of limitations.

                                          CONCLUSION

        We conclude that the petition for post-conviction relief was filed outside the one-year statute
of limitations and that the petitioner has not shown any facts which would require that the statute of
limitations be tolled. Accordingly, we affirm the dismissal of the petition as time-barred.


                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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