Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs November 28, 2017
from the Circuit Court for Montgomery County No.
CC-2017-CR-80 Jill Bartee Ayers, Judge
Terry Lea Bunch, appeals the summary dismissal of his
petition for post-conviction relief for being filed untimely.
Petitioner alleged in his petition that defects in the
affidavit of complaint rendered his conviction void. Having
reviewed the record and the parties' briefs, we affirm
the judgment of the post-conviction court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
R. Potter, Clarksville, Tennessee, for the appellant, Terry
Herbert H. Slatery III, Attorney General and Reporter; M.
Todd Ridley, Assistant Attorney General; John Wesley Carney,
Jr., District Attorney General; and Arthur Bieber, Assistant
District Attorney General, for the appellee, State of
T. Woodall, P.J., delivered the opinion of the court, in
which Robert W. Wedemeyer and J. Ross Dyer, JJ., joined.
T. WOODALL, PRESIDING JUDGE
pled guilty to driving under the influence ("DUI")
second offense and was sentenced to 11 months and 29 days, to
be suspended on probation after 45 days of incarceration. The
judgment was entered on June 1, 2015.
pro se petition for post-conviction relief has two file
stamps of the Montgomery County Circuit Court Clerk. One file
stamp is dated December 8, 2016, and the other stamp is dated
January 20, 2017. There is a notation on the petition that
states, "move to circuit court." In his brief on
appeal, Petitioner states that he filed his petition on
December 8, 2016, in the Montgomery County General Sessions
Court, and the petition was subsequently re-filed in the
Montgomery County Circuit Court. On January 23, 2017, the
trial court entered a written order summarily dismissing the
petition as time-barred.
petition, Petitioner alleged that defects in the affidavit of
complaint rendered the charging instrument and subsequent
conviction void. The affidavit of complaint contains a
typewritten statement of the facts surrounding
Petitioner's arrest. At the bottom of the typewritten
statement, there is a handwritten note that states,
"[Defendant] has prior convictions for DUI with his last
conviction on 7/12/2013." Petitioner contends that the
statement does not conform to the requirements of Tennessee
Code Annotated section 5-10-411(b)(2) because it did not
"disclose the time, place, and state of his previous DUI
State contends that Petitioner has failed to establish any
grounds for due process tolling of the statute of limitations
and that none of the statutory exceptions that toll the
post-conviction one year statute of limitations apply.
Therefore, the post-conviction court properly dismissed the
petition as untimely.
relief is available when a "conviction or sentence is
void or voidable because of the abridgment of any right
guaranteed by the Constitution of Tennessee or the
Constitution of the United States." T.C.A. §
40-30-103. A person in custody under a sentence of a court of
this state must petition for post-conviction relief
"within one year of the date of the final action of the
highest state appellate court to which an appeal is taken or,
if no appeal is taken, within one year of the date on which
the judgment becomes final." Id. §
40-30-102(a). "The statute of limitations shall not be
tolled for any reason, including any tolling or saving
provision otherwise available at law or equity."
Id. Moreover, "[t]ime is of the essence of the
right to file a petition for post-conviction relief or motion
to reopen established by this chapter, and the one[ ]year
limitations period is an element of the right to file the
action and is a condition upon its exercise."
Id. If it plainly appears on the face of the
post-conviction petition that the petition was filed outside
the one year statute of limitations or that a prior petition
attacking the conviction was resolved on the merits, the
post-conviction court must summarily dismiss the petition.
Id. § 40-30-106(b). "The question of
whether the post-conviction statute of limitations should be
tolled is a mixed question of law and fact that is . . .
subject to de novo review." Bush v. State, 428
S.W.3d 1, 16 (Tenn. 2014) (citing Smith v. State,
357 S.W.3d 322, 355 (Tenn. 2011)).
Code Annotated section 40-30-102(b) provides three exceptions
to the statute of limitations for petitions for
post-conviction relief: (1) claims based on a final ruling of
an appellate court establishing a constitutional right not
recognized as existing at the time of trial and given
retroactive effect by the appellate courts; (2) claims based
upon new scientific evidence establishing that the petitioner
is actually innocent of the conviction offense; and (3)
claims seeking relief from a sentence that was ...