           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE


             MICHAEL EUGENE DUFF v. STATE OF TENNESSEE

                               Criminal Court for Knox County
                                         No. 61563



                                 No. E2000-03041-CCA-R3-PC
                                     November 14, 2002

                                             ORDER

        The state has filed a Petition to Rehear relative to our opinion’s apparent imposition of
limitations upon the trial court’s reconsideration of the facts upon remand. The state asserts that
the trial court should have the ability to determine whether prejudice exists by considering the
evidence in toto. The state notes that the trial court has not made any findings regarding
prejudice and should not be restricted in its assessment. The petitioner responds that our court’s
opinion foreclosed any need for the trial court to assess prejudice generally. He states that we
have already concluded that prejudice exists if the trial court finds a particular witness to be
credible.

        We believe that the petitioner’s arguments beg the question because they hinge upon the
part of our opinion that the state seeks to change. In this respect, given the responsibility of the
trial court to make findings of fact and conclusions of law, we conclude that the state raises a
valid concern. Therefore, in consideration of the foregoing, it is hereby ORDERED that the
judgment and opinion entered on September 11, 2002, are vacated.



                                                     PER CURIAM
