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Webster v. State

Court of Criminal Appeals of Tennessee, Jackson

March 29, 2018

JAVON WEBSTER
v.
STATE OF TENNESSEE

          Assigned on Briefs June 6, 2017

          Appeal from the Criminal Court for Shelby County No. 99-03924, 99-03925 Chris Craft, Judge

         Petitioner, Javon Webster, appeals from the post-conviction court's summary dismissal of the post-conviction petition filed approximately twelve years after expiration of the one year statute of limitations for post-conviction petitions. Petitioner alleged facts in his petition which he claims justify tolling of the statute of limitations based upon due process grounds. After review of the record, we affirm the judgment of the post-conviction court.

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

          Javon Webster, Clifton, Tennessee, Pro Se.

          Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Reggie Henderson, Assistant District Attorney General, for the appellee, State of Tennessee.

          Thomas T. Woodall, P.J., delivered the opinion of the court, in which Norma McGee Ogle and Robert W. Wedemeyer, JJ., joined.

          OPINION

          THOMAS T. WOODALL, PRESIDING JUDGE

         In its order dismissing the late filed petition for post-conviction relief, the post-conviction court made the following findings:

This cause came on to be heard May 31, 2016, on the Petition for Post-conviction Relief filed December 11, 2015, upon preliminary consideration mandated by T.C.A. § 40-30-106, and the record as a whole,
FROM ALL OF WHICH THE COURT FINDS that after having examined the technical record, the Court has determined that the petition was clearly filed more than one year after the last appellate action on petitioner's case, and therefore it plainly appears that the petition has not been filed within the statute of limitations of one year set forth in T.C.A. § 40-30-102, and should be dismissed.
The defendant was indicted for Murder in the Perpetration of Robbery and Especially Aggravated Robbery in Shelby County indictments 98-006751 and 98-06752. The following year, the above-styled superceding [sic] indictments, 99-03924 and 99-03925, were returned charging him with these same offenses, along with four other co-defendants. On April 22, 1999, he was convicted after a trial by jury of Murder First Degree and Criminal Attempt: Especially Aggravated Robbery on indictments 99-03924 and 99-03925. On March 15, 2000 indictments 98-006751 and 98-06752 were nolle prosequied. The Court of Criminal Appeals affirmed his conviction on February 7, 2002, remanding one of the indictments for sentencing on the Criminal Attempt: Especially Aggravated Robbery, finding that this court should not have merged that conviction with the Murder First Degree conviction, but should have sentenced the defendant separately on that conviction. See State v. Javon Webster, 81 S.W.3d 244 (Tenn. Crim. App. 2002). After this court sentenced him to a concurrent sentence on the second count, on August 12, 2002, the defendant filed a petition for post-conviction relief on the two original indictments, 98-006751 and 98-06752, which had been nolle prosequied. That petition, styled P-26682, was assigned to trial judge J. C. McLin for handling in Division IX of Criminal Court, and was dismissed by him as filed outside the statute of limitation[s] of one year by order dated October 3, 2002, as those two indictments had been disposed of on March 26, 2000, more than two years prior to the petition's being filed. This court has previously sent the petitioner copies taken from that court jacket, P-26682, of Judge McLin's order denying that petition and of the envelopes used to mail that decision to the defendant and the Office of the Attorney General in October of 2002, showing that he had notice in 2002 of Judge McLin's dismissal. No appeal was ever taken from Judge McLin's order of dismissal, and no additional petition for post-conviction relief was filed for the next 13 years. The petitioner did file a pro se petition for writ of certiorari in 2010, however, using the correct indictment numbers, which was denied by the Court of Criminal Appeals. In that opinion, which is attached to this order, Judge [McMullen] clearly stated that the petitioner "includes a case history for case number 99-03924-25. That case history has no relation to case number 98-06751-52." The petitioner still filed no petition for post-conviction relief for the next 5 years.
The defendant was returned to Shelby County on indictments 99-03924 and 99-03925, and he was re-sentenced by this court on October
I, 2002. No appeal was ever taken from the Court of Criminal Appeals decision affirming his convictions or this court's sentence given him on October 1, 2002, and no petition for post-conviction relief was filed on the Defendant's convictions from the instant indictments, 99-03924 and ...

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