           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON             FILED
                            AUGUST 1998 SESSION
                                                       November 2, 1998

                                                      Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk

STATE OF TENNESSEE,                 )    C.C.A. NO. 02C01-9709-CC-00360
                                    )
      Appellee                      )    FAYETTE COUNTY
                                    )
v.                                  )    HON. JON KERRY BLACKWOOD,
                                    )    JUDGE
JACOB MEEKS,                        )
                                    )    POST-CONVICTION
      Defendant/Appellant           )




FOR THE APPELLANT:                       FOR THE APPELLEE:

David Crichton                           John Knox Walkup
111 W. Market Street                     Attorney General & Reporter
Bolivar, TN 38008
                                         Douglas D. Himes
                                         Assistant Attorney General
                                         425 Fifth Avenue North
                                         Nashville, TN 37243-0493




OPINION FILED


REVERSED
JOHN K. BYERS
SENIOR JUDGE
                                     OPINION

      The defendant appeals from the dismissal of a petition for post-conviction

relief, wherein he sought a delayed appeal from the judgment of the Court of

Criminal Appeals, which affirmed his trial court conviction for “hindering a secured

creditor,” to the Supreme Court.

      The resolution of this case rests upon whether the defendant was fully and

properly advised by counsel who represented him at trial and on first-tier appeal that

he would no longer represent him on further appeals, as well as the date when the

right to apply to the Supreme Court for review would expire and other information

required by Rule 14 of the Supreme Court Rules. Our determination of this issue

turns upon whether the Clerk of the court complied with the requirements of Rule

14.

      Rule 14 is as follows:

             Permission for leave to withdraw as counsel for an indigent defendant
      after an adverse final decision in the Court of Criminal Appeals and before
      preparation and filing of an Application for Permission to Appeal in the
      Supreme Court must be obtained from the Court of Criminal Appeals not later
      than fourteen (14) days after that Court’s entry of final judgment.

              The motion shall state (1) that after a study of the opinion of the Court
       of Criminal Appeals, the brief filed on behalf of the defendant in that Court
       presents such issues as are available for second-tier appellate review, if
       sought by defendant pro se, and (2) that the written notification prescribed by
       this Rule, along with a copy of the Court of Criminal Appeals opinion, have
       been forwarded to the defendant.

               The motion shall be accompanied by a copy of the written notification
       forwarded to the defendant which shall advise the defendant (1) that counsel
       does not intend to file an Application for Permission to Appeal and that leave
       of Court is being sought to withdraw; (2) that the defendant may file a pro se
       Application for Permission to Appeal with the Clerk of the Supreme Court if
       filed within sixty (60) days after entry of final judgment in the Court of Criminal
       Appeals; (3) the date on which the Court of Criminal Appeals opinion was
       released; and (4) the date on which an Application for Permission to Appeal
       is due. The written notification must also reflect the defendant’s mailing
       address to which the notice was forwarded.

              Upon the filing of a timely motion in accord with the foregoing
       requirements, the Court of Criminal Appeals, or any judge thereof, may
       summarily grant the motion. Upon entry of the order granting the motion to
       withdraw, a copy thereof will be sent to the defendant by the Clerk,


                                               -2-
      accompanied by letter notice [sic] to defendant of the last day within which to
      file an Application for Permission to Appeal.

      The Court of Criminal Appeals entered judgment on August 6, 1996 affirming

the conviction of the defendant. Counsel who represented the defendant testified

he sent a letter to the defendant’s home in Holly Springs, Mississippi on August 6,

1996 which included a copy of his motion to withdraw and all of the information

required by Rule 14. A copy of the transmittal letter was filed in the hearing on the

post-conviction petition. There were no copies of the motion, etc. filed in this case

as exhibits. The attorney testified he received a letter from the defendant

subsequently which caused him to think the defendant had not received the letter

and documents he mailed on August 6, 1996. As a result, he then, according to his

testimony, sent a letter to the defendant in Tiptonville, Tennessee, where he was

incarcerated.

       A copy of the letter was made an exhibit to counsel’s testimony. This letter

stated counsel was enclosing the information required by Rule 14 in the packet

which accompanied the letter. The exhibit did not contain copies of these

documents.

       The brief of the State in a footnote says the Court of Criminal Appeals

granted the attorney’s motion to withdraw on August 14, 1996. We do not find a

copy of the order in the record before us.

       The defendant testified he did not receive the letter mailed to him by the

attorney on August 6, 1996. He testified he received the letter sent to his former

home address in November 1996 when it was forwarded to him by his wife.1

       The trial judge found counsel had indeed informed the defendant of his intent

to withdraw and of his right to seek review of his conviction by the Supreme Court.

This finding, of course, is based upon a determination of the credibility of the

testimony of counsel vis-a-vis the testimony of the defendant. In such case, we are

bound by the determination of the credibility of witnesses made by the trial judge. If

we were to base our opinion upon this alone, we would affirm the judgment.




      1
          At this time, the defendant’s wife was in the process of divorcing him.

                                           -3-
       However, there is another matter of concern. Rule 14 requires the Clerk of

the court to furnish to a defendant a copy of the order granting the motion to

withdraw accompanied by letter notice informing the defendant of the last day within

which to file an Application for Permission to Appeal to the Supreme Court. There is

no showing in this record that this was done.

       The purpose of Rule 14 is to insure that an indigent defendant shall not lose

his right to seek relief by way of an Application for Permission to Appeal to the

Supreme Court because he is not made aware of the withdrawal of counsel or the

expiration of the time in which to ask for review by the Supreme Court through no

fault of his own.

       Rule 14 speaks of what counsel must file with the Court of Criminal Appeals

before the court can relieve counsel of further duties in a case. Beyond this, Rule

14 places a positive duty upon the Clerk of the court to send a copy of the order

relieving counsel to the defendant.

       The termination of the right to seek review by the Supreme Court may not

occur in the absence of the Clerk’s forwarding to the defendant the material required

by Rule 14. The requirement is a safeguard to see that the defendant’s right has

been protected.

       We are compelled to hold that the record does not show compliance with

Rule 14 in this case. We must, therefore, reverse the judgment of the trial court

denying a delayed appeal to the Supreme Court.

       The judgment affirming the conviction of the defendant entered by the Court

of Criminal Appeals on August 6, 1996 is set aside and reentered on the date the

judgment in this case is filed, and the time for filing an Application for Permission to

Appeal to the Supreme Court shall commence to run from that date.

       The cost of this appeal is taxed to the State.




                                          John K. Byers, Senior Judge




                                           -4-
CONCUR:




David H. Welles, Judge




Jerry L. Smith, Judge




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