Smith v. State

• Decision Date: 21 September 1993
• Citation: 873 S.W.2d 5
• Parties: Gary Lynn SMITH, Appellant, v. STATE of Tennessee, Appellee.
• Court: Tennessee Court of Criminal Appeals

Page 5

873 S.W.2d 5

Gary Lynn SMITH, Appellant, v. STATE of Tennessee, Appellee.

Court of Criminal Appeals of Tennessee at Knoxville.

Sept. 21, 1993.

No Permission to Appeal Applied

for to the Supreme Court.

Charles M. Corn, Dist. Public Defender, Cleveland, for appellant.

Charles W. Burson, Atty. Gen. & Reporter, Kimbra R. Spann, Asst. Atty. Gen., Nashville, Jerry N. Estes, Dist. Atty. Gen., Lance Karl Hiltbrand, Asst. Dist. Atty. Gen., Athens, for appellee.

OPINION

PEAY, Judge.

The defendant pled guilty to second degree burglary. ¹ The defendant appeals as of right from the trial court's dismissal of his post-conviction petition to set aside the plea as unconstitutional. ² We remand for an evidentiary hearing to determine whether the defendant filed his petition within the statute of limitations for the Tennessee Post-Conviction Procedure Act.

On October 12, 1976, the defendant entered a guilty plea to the charge of second degree burglary and was sentenced to three years. A Petition for Post-Conviction Relief was filed with the Clerk of Court alleging the defendant's guilty plea was void as unconstitutional. The notarization date appearing on the petition is April 22, 1988. However, the filing date stamped on the petition is November 13, 1990. The trial court held no evidentiary hearing to determine the actual date of filing. The petition was dismissed as untimely pursuant to T.C.A. § 40-30-102 which required the defendant to file no later than July 1, 1989. ³

The trial court's order of dismissal was dated February 19, 1991. Notice of appeal to this Court was filed pro se on July 24, 1991.

T.R.A.P 4(a) provides that a notice of appeal shall be filed within thirty days after the date of entry of judgment. The appellate court may, however, in the interest of justice, waive the filing of such document.

The State argues that because the defendant allowed more than five months to lapse before perfecting his appeal to this Court, the appeal should be dismissed as untimely. We do not agree. The defendant was not represented by counsel at the time of his appeal. Moreover, the underlying issues of this case require resolution in order to do substantial justice.

The defendant contends that his petition was improperly dismissed since (1) the State failed to raise the statute of limitations as a defense, and (2) the trial court failed to hold an evidentiary hearing to resolve a dispute over the date of filing.

The statute of limitations is an affirmative defense which the State must plead and prove. Daryl K. Burford v. State, No. 01-C-01-9105-CR-00131, Trousdale County, 1991 WL 207923 (Tenn.Crim.App. filed October 17, 1991, at Nashville), rev'd on other grounds, 845 S.W.2d 204 (Tenn.1992). See German Bank v. Haller, 103 Tenn. 73, 78, 52 S.W. 288, 289 (1899); Caccamisi v. Thurmond, 39 Tenn.App. 245, 267-268, 282 S.W.2d 633, 644 (1955). Failure to plead and prove an affirmative defense constitutes a waiver of the defense. See Denny v. Webb, 199 Tenn. 39, 45, 281 S.W.2d 698, 701 (1955). This requirement safeguards against possible prejudice arising from an opponent's use of surprise tactics. See Daryl K. Burford v. State, No. 01-C-01-9105-CR-00131, Trousdale County, 1991 WL 207923 (Tenn.Crim.App. filed October 17, 1991, at Nashville), rev'd on other grounds, 845 S.W.2d 204 (Tenn.1992).

The State failed to raise the statute of limitations in its response to the defendant's petition for post-conviction relief. Accordingly, this defense could not be raised by the State on appeal. The trial court did not err, however, in raising the issue sua sponte.

The statute in question is unambiguous. T.C.A. § 40-30-102 requires that a petition for post-conviction relief must be filed by the statute of limitations deadline or "consideration of such petition shall be barred " (emphasis added). The mandatory language of the statute empowers the trial court to raise the statute of limitations issue and to dismiss cases filed after the deadline, regardless of whether the State has properly raised this defense.

Alternatively, the Sixth Circuit has held that where a defense has not been pled, but the petitioner has raised the issue in his own pleadings, there is no waiver. Overseas Motors, Inc. v. Import Motors Ltd., 375 F.Supp. 499, 512-13 (E.D.Mich.1974) aff'd on other grounds, 519 F.2d 119 (6th Cir.1975) cert. denied 423 U.S. 987, 96 S.Ct. 395, 46 L.Ed.2d 304 (1975). In the instant case, the petitioner recognized the potential application of the T.C.A. § 40-30-102 statute of limitations in his post-conviction petition by providing "that any limitation on time allowed to [p]etition for [r]elief would not apply where a conviction and sentence was held to be void."

Affirming the trial court's right to consider the statute of limitations under these conditions does not frustrate the purpose of the plead and prove requirement. The language of the statute of limitations is unambiguous. The defendant was required to file his post-conviction petition by July 1, 1989, or it would be time barred. He was, therefore, on fair notice of the existence and applicability of the statute of limitations and could act accordingly. Moreover, since the defendant himself was actually aware of the statute of limitations, the possibility of prejudice arising from an opponent's use of surprise tactics was negated.

Petitioner does not contend that application of the statute of limitations violates his right to due process. In Burford, 845 S.W.2d 204 (Tenn.1992), the Tennessee Supreme Court held that T.C.A. § 40-30-102 complies with federal and state due process requirements. It noted, however, that circumstances might arise in which the application of the post-conviction relief statute of limitations would not afford a petitioner reasonable opportunity to raise his claim. Burford, 845 S.W.2d 204, 208. Petitioner does not...