            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE

                DAVID E. GARRISON v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Davidson County
                        No. 2000-C-1424 Cheryl A. Blackburn, Judge



                     No. M2003-02137-CCA-R3-PC- Filed October 8, 2004



The Petitioner, David E. Garrison, appeals the trial court's dismissal of his petition for post
conviction relief. The State has filed a motion requesting that this Court affirm the trial court's
denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner filed
his petition outside the statute of limitations. Accordingly, the State's motion is granted, and the
judgment of the trial court is affirmed.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed Pursuant to Rule 20, Rules of
the Court of Criminal Appeals

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH, J., and
ROBERT W. WEDEMEYER, J., joined.

David M. Hopkins, for the appellant.

Paul G. Summers, Attorney General & Reporter; Michelle Chapman McIntire, Assistant
Attorney General, for the appellee, State of Tennessee.

                                   MEMORANDUM OPINION

        This matter is before the court upon motion of the appellee, the State of Tennessee, to affirm
the judgment in this case pursuant to Rule 20, Rules of the Court of Criminal Appeals. The
petitioner is appealing the trial court's dismissal of his petition for post-conviction relief, following
the revocation of his probation.

        Petitioner was indicted for one count of especially aggravated kidnapping and three counts
of aggravated rape. On July 30, 2001, the petitioner pled guilty to the amended charge of aggravated
assault pursuant to a plea bargain. Petitioner was sentenced to eight years as a range one offender,
pleading out of the range for a class “c” felony. The remaining counts were dismissed as part of the
plea bargain. Petitioner’s sentence was suspended all but time served, and he was placed on
supervised probation for a period of seven years. On January 22, 2003, the trial court revoked
petitioner’s probation, and his sentence was placed into effect.

        Petitioner filed a pro se petition for post-conviction relief on May 27, 2003, attempting to
challenge his convictions by guilty plea on July 30, 2001. Specifically, petitioner contended that
his guilty plea was not knowingly and voluntarily entered; that counsel misrepresented that if his
probation was revoked, he would receive all of the time he spent on probation as jail credit; that trial
counsel failed to adequately investigate the facts of his case; and that trial counsel coerced him into
pleading guilty on the day of his trial. The trial court initially determined that the petition for post-
conviction relief might be timely filed, appointed counsel, and allowed appointed counsel to file an
amended petition. The State filed a motion to dismiss, and the petitioner filed a response. The trial
court ultimately determined that the petition was untimely, as it was filed more than one year after
the petitioner’s guilty plea on July 30, 2001. The court further determined that where, as here, the
court put the original sentence into effect following the probation revocation without altering the
sentence, the time period for filing a petition for post-conviction was not extended.

        Tennessee Code Annotated Section 40-30-102(a) provides that a petition for post-conviction
relief must be filed within one year from final judgment. The appellant filed his petition beyond the
time allowed by the statute, and none of the enumerated exceptions to this time limit apply in this
case. See Tenn. Code Ann. § 40-30-102(b). Under the Post-Conviction Procedure Act, exceptions
to the statute of limitations are explicitly set forth, i.e., (1) claims based upon a new rule of
constitutional law applicable to a petitioner's case, (2) claims based upon new scientific evidence
showing innocence, and (3) claims based upon sentences that were enhanced because of a previous
conviction and the previous conviction was subsequently found to be illegal. See Tenn. Code Ann.
§ 40-30-102(b)(1)-(3) (2003 Repl.). Petitioner has failed to assert one of these exceptions for tolling
the statute. He cites no new constitutional rule, refers to no new scientific evidence, and makes no
claim that an earlier conviction has been overturned. See Tenn. Code Ann. § 40-30-106(g) (2003
Repl.). Moreover, the petitioner’s probation revocation did not give rise to a claim for post-
conviction relief or a rerunning of the one year statute of limitations. See Young v. State, 101
S.W.3d 430 (Tenn. Crim. App. 2002) explaining that an order revoking suspension of sentence and
probation does not impose a new sentence subject to collateral attack under the Tennessee Post-
Conviction Procedure Act. As the court contemplated in Young, the revocation of probation may
occur long after the one-year statute of limitations has expired for attack of the conviction and
original sentence, id. at 432, which is what occurred in this case.

        Petitioner argues that the statute of limitations should be tolled by due process considerations
pursuant to State v. Williams, 44 S.W.3d 464 (Tenn. 2001). Petitioner cites to Williams and states
that “[w]here circumstances beyond the petitioner’s control preclude him from actively raising his
post-conviction claims, the statute of limitations should be tolled.” Petitioner then states that an
attorney’s misrepresentation, either attributable to deception or other misconduct, would be beyond
a defendant’s control and therefore tolling of the statute of limitations would be applicable.
Specifically, petitioner contends that he did not know the effects of his guilty plea, due to trial
counsel’s misrepresentations, until after his probation revocation hearing on January 22, 2003.
Notwithstanding petitioner’s attempt to bring his case under the umbrella of due process tolling


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contemplated by Williams, the facts of this case simply do not warrant tolling. The
misrepresentations by counsel in Williams made it impossible for that petitioner to file his post-
conviction petition because petitioner believed his direct appeal was ongoing. Id. at 470-71. In this
case, petitioner gives no explanation as to why it was impossible for him to learn of the alleged
misrepresentations and timely file his petition. Instead, he simply states that he did not learn of
misrepresentations made by counsel prior to or at his guilty plea hearing until after his probation
was revoked. The petitioner fails to assert any circumstances that were beyond his control that
precluded him from actively raising his post-conviction claims. Accordingly, tolling does not apply.

         Finally, petitioner’s claim that he was not “in custody” as required by the Post-Conviction
Procedure Act while serving probation also fails. For purposes of post-conviction, “one could be
presumed to be ‘in custody’ so long as there is ‘any possibility of restraint on liberty,’ and there is
a danger one might suffer ‘any collateral consequences.’” Watt v. State, 894 S.W.2d 307 (Tenn.
Crim. App. 1994). Accordingly, petitioner’s supervised probation places petitioner in custody for
purposes of the post-conviction statute. Petitioner had one year from the date of the final judgment
to file his petition for post-conviction relief, and he failed to do so. The trial court was correct in
dismissing the petition for post-conviction relief.

        Accordingly, the state's motion to affirm is hereby granted. The judgment is affirmed in
accordance with Rule 20, Rules of the Court of Criminal Appeals. Because the appellant is indigent,
costs are taxed to the State.




                                                       ____________________________________
                                                       DAVID H. WELLES, JUDGE




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