             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE                 FILED
                            OCTOBER 1998 SESSION
                                                             December 9, 1998

                                                            Cecil W. Crowson
WENDELL GENE WATTS,             )                          Appellate Court Clerk
                                )
             Appellant,         )    No. 01C01-9711-CC-00533
                                )
                                )    Maury County
v.                              )
                                )    Honorable James L. Weatherford, Judge
                                )
STATE OF TENNESSEE,             )    (Post-Conviction)
                                )
             Appellee.          )



For the Appellant:                   For the Appellee:

Shara Ann Flacy                      John Knox Walkup
District Public Defender             Attorney General of Tennessee
   and                                      and
William C. Bright                    Karen M. Yacuzzo
Assistant Public Defender            Assistant Attorney General of Tennessee
128 North Second St.                 425 Fifth Avenue North
P.O. Box 1208                        Nashville, TN 37243-0493
Pulaski, TN 38478-1208
(AT TRIAL                            Michael T. Bottoms
                                     District Attorney General
Shara Ann Flacy                      P.O. Box 459
District Public Defender             Lawrenceburg, TN 38464
   and                                       and
Joseph L. Penrod                     Robert Sanders
128 North Second Street              Assistant District Attorney General
P.O. Box 1208                        Maury County Courthouse
Pulaski, TN 38478-1208               Columbia, TN 38401
(ON APPEAL)




OPINION FILED:____________________


AFFIRMED PURSUANT TO RULE 20

Joseph M. Tipton
Judge
                                          OPINION



                       The petitioner, Wendell Gene Watts, appeals the denial of post-

conviction relief by the Maury County Circuit Court. He is presently in the custody of the

Department of Correction serving a ninety-nine-year sentence for his conviction for

aggravated rape in 1982. The petitioner contends that the statute of limitations should

not bar his petition for post-conviction relief because: (1) he lacked the resources with

which to file it timely; (2) his interest in presenting his grounds for relief outweighs the

government’s interest in applying the statute of limitations; and (3) State v. Livingston,

907 S.W.2d 392 (Tenn. 1995), announced a new rule, and its application is not barred

by the three-year statute of limitations for post-conviction relief.



               The petitioner was convicted on January 26, 1982, of aggravated rape

and sentenced to ninety-nine years. The conviction was affirmed by this court. State v.

Wendall [sic] Gene Watts, No. 82-72-III, Maury County (Tenn. Crim. App. Oct. 6, 1982),

app. denied (Tenn. Jan. 31, 1983).



               The petitioner filed a petition for post-conviction relief on February 28,

1996, and subsequently filed three amendments. The state responded that the petition

was barred by the statute of limitations.



               The post-conviction court granted a hearing to determine whether the

petition was time barred, and on October 30, 1997, ordered the petition dismissed due

to the failure to file within the statute of limitations.



               Tenn. Code Ann. § 40-30-202 is the controlling authority with regard to the

statute of limitations on post-conviction relief petitions. It provides for a review of a




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post-conviction petition filed outside the statute of limitations only in specific instances.

The petitioner’s claims in this case fail to meet any of these exceptions.



              We note that the petitioner asserts a new rule was established by our

supreme court in Livingston, which would entitle him to a review of this post-conviction

petition. Livingston concerned the admissibility of “fresh complaint” evidence in light of

the Tennessee Supreme Court’s decision in State v. Kendricks, 891 S.W.2d 597 (Tenn.

1994). In Jimmy Wayne Wilson v. State, No. 03C01-9611-CR-00409, Sullivan County

(Tenn. Crim. App. Oct. 30, 1997), Wilson made an argument analogous to the

petitioner’s: that the Kendricks court created a new constitutional right requiring

retroactive application to his case. However, the court held that Kendricks did not

establish a new constitutional right but simply modified the principles governing “fresh

complaint” evidence. Likewise, we conclude that Livingston did not establish a new

constitutional right requiring retroactive application. Rather, it is a modification of

evidentiary principles governing “fresh complaint” testimony. Therefore, the trial court

properly denied the petitioner’s claim since it was barred by the statute of limitations.



              After full consideration of the record, the briefs, and the law governing the

issues presented, we are of the opinion that the record supports the trial court’s action,

that no error of law exists that would require a reversal, and that no precedential value

would be derived from the rendering of an opinion. Therefore, we conclude that the

judgment of the trial court should be affirmed pursuant to Rule 20, Tenn. Ct. Crim. App.




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                                  ___________________________
                                  Joseph M. Tipton, Judge

CONCUR:



___________________________
Joe G. Riley, Judge



___________________________
James Curwood, Jr., Judge




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