         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs November 18, 2003

                       STATE OF TENNESSEE v. GLEN HOLT

                      Appeal from the Criminal Court for Morgan County
                              No. 8773A E. Eugene Eblen, Judge



                                  No. E2003-01100-CCA-R3-CD
                                        January 14, 2004


JOSEPH M. TIPTON, J., concurring and dissenting.

        I concur in most of the conclusions and reasoning in the majority opinion, but I dissent from
the remand in this case. I believe that the record sufficiently shows that the defendant made a
knowing and intelligent waiver of his right to testify. The failure to follow the specific Momon
requirements should not disturb the judgment in this case. Counsel told the trial court, in open court
with the defendant present, that he had advised the defendant of his rights to testify and not to testify
and that he thought the defendant understood those rights. When the record states that the
“Defendant indicates affirmatively” in response to the trial court’s asking him if he understood his
rights and was not going to testify, I have no problem in concluding that the defendant intentionally
relinquished his right to testify. Moreover, given the fact that counsel at the motion for new trial
hearing indicated that the defendant had consulted with him and had made a decision not to testify
further justifies my conclusion. To require a Momon hearing under the circumstances in this case
would be putting form above substance. I would affirm the trial court.



                                                        ____________________________________
                                                        JOSEPH M. TIPTON, JUDGE
