IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE FILED FEBRUARY SESS ION, 1998 March 24, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk JAMES W. SMITH, ) C.C.A. NO. 03C01-9707-CR-00250 ) Appe llant, ) ) RHEA COUNTY V. ) ) ) HON. J. CURTIS SMITH, JUDGE STATE OF TENNESSEE, ) ) Appellee. ) (POST-C ONVIC TION)

FOR THE APPELLANT: FOR THE APPELLEE: JAME S W. S MITH , pro se JOHN KNOX WALKUP #229668, S.T.S.R.C.F. Attorney General & Reporter Route 4, Box 600 Pikeville, TN 37367 TIMOTHY F. BEHAN Assistant Attorney General 2nd Floor, Cordell Hull Building Fifth Avenue North Nashville, TN 37243 J. MICHAEL TAYLOR District Attorn ey Ge neral JAME S W. P OPE , III Assistant District Attorney General First American Bank Bldg., 3rd Floor Dayton, TN 37321

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE OPINION The Petition er, Jam es W . Smith , appe als the order of the Rh ea Co unty C ircuit Court dismissing his pro se petition for post-conviction relief. The trial court found that the petition was filed o utside the statute of lim itations. Afte r a review o f the record, w e affirm the trial court.

On September 12, 1990, Petitioner was convicted in the Rhea Coun ty Circu it Court for the offen ses of rap e and inc est. He w as sen tenced to terms of twelve (12) years and three (3) yea rs to be served c onsecutively. His direct appeal was affirmed on March 24, 199 2, and h is applicatio n for perm ission to ap peal to the supreme court was denied July 9, 1992. Petitioner filed his petition for post-conviction relief on August 26, 1996, alleging that the indictments against him were fatally deficient so as to deprive the trial court of jurisdiction. The trial court subsequently dismissed the petition without an evidentiary hearing because it was filed outside the one-year statute of limitations and because it fit none of the exceptions to the one-year filing requirem ent. Ten n. Cod e Ann. § 40-30-2 02(a) an d (b).

At the time the Pe titioner’s conviction s beca me fina l, July 9, 199 2, the statu te of limitations applicable to post-conviction proceedings was three years. Tenn. Code Ann. § 40-30-10 2 (repealed 1995 ). In 1995, the legislature re duced the s tatutory period for filing post-conviction petitions from three (3) yea rs to one (1) year. Tenn. Code Ann. § 4 0-30-20 2(a). The new 1995 Post-Conviction Act governs this petition and a ll petitions filed after May 10, 1995. Because the previo us three -year statu te of limitatio ns ha d not e xpired for Pe titioner a t the tim e the ne w Act to ok effe ct, his

-2- right to petition for post-conviction relief survived under th e new A ct. See Carter v. State, 952 S.W .2d 417, 420 (Tenn. 199 7).

As a result, Petitioner had one year from the effective date of the new Act, May 10, 1995, to file for post-conviction relief. Tenn. Code Ann. § 40-30-201 and - 202(a). Petitioner filed his petition fo r post-conviction relief on August 26, 1996, more than three months after the expiration of the one-year period. Therefore, Petitione r’s petition is tim e-barred by the on e-year sta tute of limitatio ns.

Howeve r, Petitioner a lleges tha t the indictm ents against him are insufficient for failure to state a mens rea, thus carving out an exception to the s tatutory one -year filing req uireme nt. See Tenn. Code Ann. § 40-30-202(b)(1). Petitioner relies upon the decision of this Court in State v. Rog er Da le Hill, C.C.A. No. 01C01- 9508-CC-00267, Wayne County (Tenn. Crim App., N ashville , June 20, 19 96), in support of his argument that the decision in Hill established a new constitutional right not existing at the time of his convictions, thus not barring his petition as untimely.

See Tenn. Code A nn. § 40-30-2 02(b)(1). How ever, o ur sup reme court re verse d this Cou rt’s decision in Hill. See State v. Hill, 954 S.W.2d 725 (Tenn. 1997). In any event, Hill did not establish a new constitutional right not existing at the time of Petitioner’s conviction.

According ly, we conclude that the trial court correctly found that the petition was barred by the statute of limitations with no statutory exceptions applicable, and therefore, a sum mary d ismissa l of the petition was ap propriate . Tenn . Code Ann. § 40-30 -206(b).

-3- ____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JERRY L. SMITH, Judge

___________________________________ WILLIAM B. ACREE, JR., Special Judge

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