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Heath v. State

Court of Criminal Appeals of Tennessee, Jackson

September 5, 2017

DEAN HEATH
v.
STATE OF TENNESSEE

          Assigned on Briefs August 15, 2017 at Knoxville

         Appeal from the Criminal Court for Shelby County No. 10-02252 W. Mark Ward, Judge.

         The Petitioner filed a pro se petition for post-conviction relief. The post-conviction court summarily dismissed the petition because it was not timely filed and the Petitioner failed to present any factual allegations or documents allowing the tolling of the statute of limitations. On appeal, the Petitioner concedes that his petition was untimely filed but argues that the statute of limitations should be tolled and his petition addressed on its merits. The Petitioner also contends that this court should treat his motion to vacate, which was denied by the trial court, as a properly-filed petition for post-conviction relief. After a thorough review of the record and applicable case law, we affirm.

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

          Eric Mogy, Memphis, Tennessee, for the appellant, Dean Heath.

          Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Omar Malik, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Camille R. McMullen, JJ., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE.

         Factual and Procedural Background

         A Shelby County jury convicted Dean Heath, "the Petitioner, " of first degree premeditated murder, first degree felony murder, and especially aggravated robbery. The trial court merged the murder convictions and sentenced the Petitioner to life and imposed a concurrent sentence of twenty-five years for especially aggravated robbery. On direct appeal, the Petitioner claimed that the trial court erred in finding him competent to stand trial and that there was not sufficient evidence to sustain the convictions. This court affirmed the convictions and application for permission to appeal was denied by the supreme court. State v. Dean Heath, No. W2011-02515-CCA-R3-CD, 2013 WL 2297133, at *1 (Tenn. Crim. App. May 23, 2013), perm. app. denied (Tenn. Oct. 17, 2013).

         On January 21, 2016, the Petitioner filed a pro se Petition for Post-Conviction Relief ("the Petition"). Below the section of the Petition asking the Petitioner to "state why the statute of limitations should not bar [his] claim, " was handwritten:

Because in the matter of me failing to go pass [sic] the statute of limitations, was one my mental capability doen't [sic] fully register in this field of work, so I had to go wit [sic] the help I could, me or my family can't afford proper legal assistant for this case to be awarded in its proper form.

         The post-conviction court appointed counsel on February 1, 2016. On February 24, the State moved to dismiss, arguing the Petition was not timely filed. Post-conviction counsel filed an affidavit stating that, shortly after he was appointed, he asked the Petitioner and the Petitioner's mother for additional information to "demonstrate the [P]etitioner's inability to manage his affairs or understand his legal rights and liabilities." Post-conviction counsel stated that, as of March 21, he had received no information from the Petitioner or the Petitioner's mother. On March 22, the post-conviction court entered an order summarily dismissing the petition because it was not timely filed and because the Petitioner "fail[ed] to present any factual allegations or documents allowing the tolling of the statute." On April 13, the Petitioner filed a Notice of Appeal and a motion asking for appointment of counsel. On April 14, the post-conviction court found that it had lost jurisdiction after the filing of a notice of appeal and denied appointment of counsel for appeal. On August 1, the Petitioner filed a pro se "Motion to Vacate the Previous Post-Conviction Judgment Order and/or Appoint Counsel for Purposes of Appeal in the Interest of Justice" ("the Motion to Vacate"). By order entered on August 4, the post-conviction court denied the Motion to Vacate and again denied appointment of counsel. On August 22, the Petitioner filed a pro se Notice of Appeal from the denial of the Motion to Vacate.[1] ...


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