APPELLATE COURT OPINIONS

I concur with the majority opinion. I note, though, that the case upon which the opinion relies to conclude that the statute of limitations may not be raised for the first time on appeal was decided under the former post-conviction procedure act. I am hesitant to say that such a total bar exists under the 1995 Post-Conviction Procedure Act, given the affirmative duty of the trial court to assess the timeliness of the petition regardless of whether it is raised by the state as a defense and the apparent jurisdictional effect of the running of the statute.

The Defendant, Jimmy Sills, appeals the trial court’s summary dismissal of his petition for writ of habeas corpus. In his pro se brief to this C ourt, Defendant argues that his convictions for first degree murder and for use of a firearm during commission of a felony violate double jeopardy because the use of a firearm is an essential element of first degree murder. For the same reasons this issue was previously determined to be without merit, we affirm the judgment of the trial cou rt.