         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs September 9, 2003

                   ANTONIO BONDS v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Shelby County
                          No. P-26982    Arthur T. Bennett, Judge



                  No. W2003-00260-CCA-R3-PC - Filed November 14, 2003


GARY R. WADE, P.J., dissenting.

        I fully agree with my colleagues that the Tennessee Rules of Appellate Procedure do not
recognize a petition to rehear the denial by our supreme court of an application for permission to
appeal. In several instances, our supreme court had observed that there is no authority for such a
petition. See, e.g., John Wayne Slate, Jr. v. State, No. 03C01-9201-CR-00014 (Tenn., at Knoxville,
Feb. 6, 1995) (stating that “a petition to rehear the denial of a Rule 11 application for permission to
appeal is unknown to the Tennessee Rules of Appellate Procedure”). In this case, however, as in
some others, our supreme court “denied” the petition, thereby acting on the request. Tennessee Code
Annotated section 40-30-202(a) requires a post-conviction petition within one year of “the final
action of the highest state appellate court to which an appeal is taken.” In Lease v. Tipton, 722
S.W.2d 379 (Tenn. 1986), our high court issued an opinion resulting from a petition to rehear its
denial of an application for permission to appeal. Further, the Advisory Commission Comments to
Tennessee Rule of Appellate Procedure 39 provide that the court “generally disfavors petitions to
rehear following denials of applications for permission to appeal.” (Emphasis added.) The
Comments do not indicate that such petitions are prohibited.

        Because our supreme court took “action” on the petitioner’s petition to rehear by its denial
thereof on February 11, 2002, and because the petition was filed on January 10, 2003, I would hold
that the natural language of the act would permit this petition as timely filed. In my view, a reversal
and remand would be warranted.



                                               _______________________________________
                                               GARY R. WADE, PRESIDING JUDGE
