June 19, 2001
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Howard H. Vogel
GARY LEON CURETON v. STATE OF TENNESSEE Court:TCCA Attorneys: Jonathan M. Holcomb, Rogersville,Tennessee, for appellant, Gary Leon Cureton. Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan, Assistant Attorney General, Nashville, Tennessee; C. Berkeley Bell, District Attorney General; Cecil C. Mills, Jr., Assistant District Attorney, Greeneville, Tennessee, for appellee, State of Tennessee. Judge: SMITH First Paragraph: On May 21, 1999, Gary Leon Cureton, the Petitioner and Appellant, pled guilty in the Greene County Criminal Court to two counts of rape and two counts of sexual battery and waived his right to appeal. Following the guilty plea, the trial court sentenced the Petitioner to serve seventeen years incarceration. On May 25, 2000, the Greene County Court Clerk received a post conviction petition from the incarcerated pro se Petitioner and stamped the document to indicate that it had been filed on that date. On June 2, 2000 the trial court issued a preliminary order dismissing the petition on the ground that it was not timely filed. On June 12, the trial court received a pro se motion to reconsider the dismissal of the petition, but the trial court denied the motion on June 19, 2000. On August 2, 2000, this Court ordered the trial court to address the Petitioner's request for the appointment of counsel, and the trial court subsequently appointed counsel to assist with the Petitioner's appeal. The Petitioner appeals the trial court's dismissal of his petition and subsequent denial of his motion to reconsider, arguing that he carried his burden of proving that the petition was timely filed. Because the Petitioner was never afforded an opportunity to prove that he timely filed his petition, we remand for a hearing to determine whether the Petitioner's petition was timely filed. http://www.tba.org/tba_files/TCCA/curetongary.wpd
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