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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE NOVEMBER 1997 SESSION

FILED
December 23, 1997 Cecil Crowson, Jr.
Appellate C ourt Clerk

JIMMY D. DILLINGHAM, Appellant, V.

STATE OF TENNESSEE, Appellee.

) ) C.C.A. No. 03C01-9702-CR-00048 ) ) Unicoi County ) ) Honorable Lynn W . Brown, Judge ) ) (Post-Conviction) )

FOR THE APPELLANT: Douglas K. Shults Shults & Shults 111 Gay Street P.O. Box 129 Erwin, TN 37650

FOR THE APPELLEE: John Knox Walkup Attorney General & Reporter Timothy F. Behan Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 David E. Crockett District Attorney General Lisa Nidiffer Rice Assistant District Attorney General Unicoi County Courthouse Erwin, TN 37650

OPINION FILED: ___________________

AFFIRMED

PAUL G. SUMMERS, Judge

OPINION

The appellant, Jimmy D. Dillingham, was convicted on October 23, 1989, of attempted bank robbery. On October 31, 1989, he was sentenced to forty years in the Tennessee Department of Correction. After unsuccessfully appealing his conviction, he filed a petition seeking post-conviction relief. In his petition he alleged that the trial court erred in sentencing him under the Sentencing Reform Act of 1982.1 After hearing arguments from counsel and reviewing the record, the trial court summarily dismissed the petition. The appellant challenges this dismissal.

The appellant contends that if he had been sentenced under the Sentencing Reform Act of 1989, the maximum sentence he could have received was fifteen years. He claims that if the trial judge had followed normal scheduling procedures when setting the date for his sentencing hearing, he would have fallen under the 1989 Act. Furthermore, he argues that the trial judge violated Tenn. Code Ann.

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