IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON MARCH 1999 SESSION FILED August 12, 1999 ROD NEY L. JEF FRIES , ) C.C.A. NO. 02C01-9807-CR-00214 Cecil Crowson, Jr. ) Appellate Court Clerk Appe llant, ) ) SHELBY COUNTY V. ) ) ) HON . JAME S C. B EASLE Y, JR., STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (POST CON VICTIO N)

SEPARATE CONCURRING OPINION

I concur in the result reac hed in the majority op inion auth ored by Presiding Judge G ary R. W ade. I write separa tely, however, to expre ss my con cern that appointed counsel for the Appellant at the trial court level did not pro ceed to represent Appellant in the a ppeal to this court from th e trial co urt’s dismissal of the petitions fo r post-co nviction relief.

In this case, the Appellant filed pro se petitions for post-conviction relief attacking each conviction in a separate petition. On August 11, 1998, the trial court entered an order nunc pro tunc for March 18, 1998 appointing counsel to represent Appellant. The order provides as follows:

Be it remembered that the Court ascertained in the absence of the Pe titioner, tha t the ab ove P etitione r is financ ially unable to employ counsel as a resu lt of his present incarceration, and that it is incumbent upon the Court to appoint cou nsel to repres ent sa id Petitio ner’s interests in his absence.

And further, the Court is of th e opin ion tha t the Pu blic Defender of Shelby County, Tennessee, should not be appointed to represent the Petitioner herein, for good cause shown .

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that[ ] Monica Simmons, a licens ed Atto rney in the State of Tennessee, be appointed to represent the Petitione r in the abo ve-captio ned ca use.

The record reflects that after the trial court made its findings of fact and ruling dismissing the petitions on the record in open court, it requested counsel for the Appe llant to draft the orde r reflecting th e court’s ru ling. Cou nsel agre ed to com ply with this request. The order was entered. There was no request by counsel to withdraw from further representation of Appellant. Appellant filed a pro se notice of appeal. While no motion was filed by Appellant for appointment of counsel on appe al, he did type in “*ATTORNEY REQ UESTED*” at the bottom of the front page of the “Doc keting S tateme nt” filled ou t by him and re turned to the c lerk of th is court.

The “Docketing Statement” is not required by any rule of procedure or rule of any court, but is sent by the clerk of the appellate courts to app ellants in orde r to obta in informa tion abou t cases.

In any even t, Appellan t did not brin g to the atte ntion of this c ourt by motion, any des ire to have counsel appointed to re present him on appea l. However, in cases where an attorney is properly ap pointed to repres ent a pe titioner in pos t- conviction proceedings in the trial court, I feel that it is incumbent u pon the trial court and appointed counsel to ensure that counsel remains attorney of record in the direct appeal of the dismissal of the first post-conviction petition, unless appointed counsel is properly permitted to withdraw and other counsel is appointed.

-2- Tenn. Sup. C t. R. 28, § 10(a) states that “[a]n appeal from the dismissal or denial of a post-conv iction petition shall be in accordance with the Tennessee Rules of Appellate Procedure.” Rule 18(a) of the Tennessee Ru les of Ap pellate Proced ure provid es the follo wing:

A party who has be en perm itted to proceed in an action in the trial court as a poor person (which includes a person who has been permitted to proceed there a s one who is financ ially unab le to obtain adequate defense in a criminal case) may proceed on appeal as a poor person unless, before or after the ap peal is taken, the trial court finds the party is not entitled so to proceed, in which event the trial court sha ll state in writing th e reaso ns for suc h finding.

In the Post-Conviction Procedure Act, Tennessee Code Annotated section 40-30-215 states that “[i]ndigency shall be determined and coun sel and cou rt reporters appointed and reimbursed as now provided for criminal and habeas corpus cases by ch apter 14, parts 2 a nd 3 of this title.”

Tennessee Code Annotated section 40-14-205 allows an attorney appointed by the trial court to withdraw as counsel of record upon good cause shown, but requires the trial court to immediately appoint another attorney in the former attorney’s place. Furthermore, Tennessee Code Annotated section 40-14- 203, made applicable to post-conviction cases by Tennessee Code Annotated section 40-30-215, entitles a petitioner to appointed counsel on the direct appeal from the denial of a first petition for p ost-con viction relief.

Desp ite the failure o f the trial court a nd app ointed co unsel in th e post- conviction procee dings to ensure that Appellant was represented by counsel in this direct appe al, the particular facts of this case, in my opinion, do not justify a reversal -3- of the trial c ourt’s o rder, o r appo intme nt of co unse l to file a su bstitute d brief o n beh alf of Appellant in this court. Appellant’s brief was adequate to convey his arguments.

The proof in the record overw helm ingly jus tifies the affirma nce o f the trial c ourt’s judgm ent dism issing the petitions for p ost-con viction relief.

Most cases, however, would require, at a minimum, that counsel be appointed to file a substituted brief on appeal. Under normal circumstances, the State would need to file a b rief in response thereto. Of course, the resultant delay in disposition of post-conviction case s wou ld be contrary to the prompt disposition of post-conviction cases and the administration of justice.

I am authorized to state that both Presiding Judge Wade and Judge Tipton join in with me in this concurring opinion.

____________________________________ THOMAS T. W OODALL, Judge

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