        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs November 12, 2015


            STATE OF TENNESSEE v. TIMOTHY L. JEFFERSON

                 Appeal from the Circuit Court for Davidson County
                    No. 15C1312     Amanda McClendon, Judge




                No. M2015-01321-CCA-R3-CD – Filed March 23, 2016
                        _____________________________

Timothy L. Jefferson (“the Petitioner”) appeals from the summary dismissal of his
Petition for Writ of Certiorari and Supersedeas (“the Petition”) for failure to make partial
payment of the initial filing fee. Upon review, we hold that the Petitioner filed sufficient
documentation to show that he was unable to make partial payment of the initial filing
fee. However, we conclude that the trial court properly dismissed the Petition because
the writ of certiorari is not available in this case. Therefore, we affirm the judgment of
the trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which NORMA
MCGEE OGLE and CAMILLE R. MCMULLEN, JJ., joined.

Timothy L. Jefferson, Tiptonville, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Brent Cherry, Senior Counsel; and
Glenn Funk, District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                        I. Factual and Procedural Background

       Following the Petitioner‟s confession to police, he was arrested in connection with
the 1999 shooting death of Mr. Mohammad Rafeat. Timothy L. Jefferson v. State, No.
M2014-00756-CCA-R3-ECN, 2015 WL 2128606, at *1-2 (Tenn. Crim. App. May 6,
2015), perm. app. denied (Tenn. Aug. 14, 2015). The Petitioner was initially charged in
juvenile court, but his case was subsequently transferred to criminal court. Timothy L.
Jefferson v. State, No. M2002-02393-CCA-R3-PC, 2004 WL 300121, at *1 (Tenn. Crim.
App. Feb. 17, 2004), perm. app. denied (Tenn. Sept. 7, 2004). There, he was indicted for
first degree murder and especially aggravated robbery. Id. He pleaded guilty to second
degree murder and was sentenced to forty years‟ incarceration. Id. The especially
aggravated robbery charge was dismissed. Id.

       The Petitioner filed a timely petition for post-conviction relief alleging that he
received ineffective assistance of counsel and that his guilty plea was entered
involuntarily or unknowingly. Timothy L. Jefferson, 2004 WL 300121 at *1. The post-
conviction court denied the petition, and this court affirmed the denial on appeal. Id. at
*4. In August of 2010, the Petitioner filed a pro se petition for writ of habeas corpus, in
which he attempted to relitigate issues raised in his post-conviction petition. Timothy L.
Jefferson, 2015 WL 2128606, at *3. The habeas corpus court denied relief, and the
Petitioner did not seek an appeal from that decision. Id.

       In August 2011, the Petitioner filed an untimely petition for writ of error coram
nobis challenging the validity of his confession. Timothy L. Jefferson v. State, No.
M2011-01653-CCA-R3-CO, 2012 WL 1951094, at *1 (Tenn. Crim. App. May 31, 2012),
perm. app. denied (Tenn. Aug. 16, 2012). The coram nobis court summarily dismissed
the petition, and this court affirmed the dismissal on appeal. Id. at *1, *3.

        In January 2014, the Petitioner filed a second untimely petition for writ of error
coram nobis, asserting that the detective who took his confession had been the subject of
multiple disciplinary proceedings. Timothy L. Jefferson, 2015 WL 2128606, at *3. The
coram nobis court summarily dismissed the petition on the grounds that it was time-
barred, presented previously litigated issues, and failed to state a cognizable claim for
relief. Id. This court affirmed the dismissal on appeal. Id. at *9.

        On April 6, 2015, the Petitioner filed a Petition for Writ of Certiorari and
Supersedeas (“the Petition”) in the Davidson County Circuit Court, which is the subject
of the instant appeal. The Petitioner alleged that the Davidson County Juvenile Court
deprived the Petitioner of due process because the Petitioner did not receive “a full and
fair [transfer] hearing before the juvenile judge[.]” Specifically, the Petitioner argued,
“[T]he [P]etitioner should not have been tried as an adult, when his rights as a minor
under [Tennessee Code Annotated sections] 37-1-115 and 37-1-127[] were violated, and
the extra-judicial statements taken in violation of the rights accorded by the statute(s),
should have been suppressed at the acceptance hearing.” The Petitioner contended that,
had his “extra-judicial” statements been suppressed, the evidence would “preponderate[]
against the trial court‟s finding that the [P]etitioner should be tried as an adult.”

       On April 10, 2015, the Davidson County Circuit Court filed an order stating that
the Petitioner had failed to file with the Petition a pauper‟s oath, an affidavit setting forth
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information required by Tennessee Code Annotated section 41-21-805, and partial
payment of the filing fee as required by Tennessee Code Annotated section 41-21-807.
The Petitioner was given twenty days “to comply with the requirements cited above or
the case [would] be dismissed.” On April 29, 2015, the Petitioner filed a notice
indicating that he was attempting to comply with the court‟s order and asserting that
prison officials were “depriving [the Petitioner] of the requested documents in their
control.” On May 1, 2015, the Petitioner filed a motion for appointment of counsel; a
Uniform Civil Affidavit of Indigency; a Certification of Inmate Trust Fund Balance,
stating that, as of April 24, 2015, the Petitioner “currently has a cash balance of $0 is his
inmate trust fund account. And, the average balance for the past six (6) months has been
$0”; and an Inmate Affidavit Pursuant to Tennessee Code Annotated section 41-21-805
et. seq. On June 12, 2015, the Petitioner filed a motion for determination of status of his
case. On June 24, 2015, the trial court filed an order summarily dismissing the
Petitioner‟s case for failing to make partial payment of the filing fee. This timely appeal
followed.

                                               II. Analysis

        The Petitioner raises the following issues on appeal: (1) whether the trial court
properly applied Tennessee Code Annotated section 41-21-807(b)(1) to determine that
the Petitioner had failed to file the partial payment of the filing fee and (2) whether the
trial court erred when it summarily dismissed the Petition.1 The Petitioner‟s brief is not
        1
          We interpret the Petitioner‟s brief to raise the issues as stated above. As written in his brief, the
Petitioner sets forth the issues as follows:

        (1) Whether the trial court committed fundamental error in arbitrarily dismissing [the
        Petitioner‟s] Writ of Certiorari and Supersedeas Petition on the grounds of not complying
        with the court‟s order of filing the partial payment of the filing fee, where the trial court
        pretermitted the issue of determining the [Petitioner‟s] indigency[;]

        (2) Whether the trial court pretermitted the correct standard of review under the definite
        mandate of a Rule of Law in Tennessee under [Tennessee Code Annotated section] 41-
        21-807(b)(1), relating to determining [the Petitioner‟s] indigency—prior to issuing its
        order where the statute mandates that, in abiding the statute: the court shall assess, “and
        when funds exist,” collect as a partial payment of any court fees required by law, an
        initial partial filing fee of twenty percent (20%) of the greater average monthly: (A)
        deposits to the inmate‟s account; or (B) balance in the inmate‟s counts for the sixth-
        month period immediately preceding the filing of the complaint or notice of appeal[; and]

        (3) Whether the trial court pretermitted the correct standard of review under the
        establish[ed] precedent as applied and interpreted in [Bob, a slave v. State, 10 Tenn. 173
        (1826)], relating to use of certiorari prior to issuing its summary dismissal of [the
        Petition], where the trial court‟s findings of fact are “clearly erroneous” and ought not to
        stand if by law there is any means provided by which it can be set aside and avoided.
                                                    -3-
clear, but we interpret his argument to assert that the trial court improperly reviewed the
issue of the Petitioner‟s indigency and arbitrarily dismissed the Petition.

        The State argues that the Davidson County Circuit Court lacked jurisdiction to
consider the Petition because “the reviewing court is the Circuit Court of Davidson
County and the Criminal Court of Davidson County is not a „lower tribunal‟ to the
Circuit Court of Davidson County.” Additionally, the State argues that the writ of
certiorari is not available for the Petitioner‟s challenge to the juvenile court‟s order
transferring the Petitioner to criminal court. Further, the State contends that the
Petitioner has waived review of the juvenile transfer hearing because he failed to raise the
issue in a hearing before the trial court or on direct appeal. Finally, the State asserts that
the Petitioner is not entitled to relief because he failed to make partial payment of the
filing fee as required by law.

                                        Jurisdiction

       As an initial matter, we address the State‟s contention that the Circuit Court of
Davidson County did not have jurisdiction to consider the Petition. The State claims that
because the Petitioner sought review of a decision from the Criminal Court of Davidson
County, which is not a lower tribunal to the Circuit Court of Davidson County, the
Circuit Court lacked jurisdiction. However, the State misapprehends the claims raised in
the Petition. The Petitioner asks the Circuit Court to review the transfer order from the
Juvenile Court of Davidson County, which is a lower tribunal to the Circuit Court.
Therefore, the Circuit Court of Davidson County did have jurisdiction to enter a
judgment on the Petition. See Tenn. Code Ann. § 27-8-101 (2014).

                    Failure to Make Partial Payment of the Filing Fee

        The Petitioner asserts that his claim was improperly dismissed for failure to make
partial payment of the filing fee. We agree. Litigants filing civil actions in Tennessee
must file a cost bond and pay an initial filing fee. Indigent parties may file civil actions
without giving security for cost or paying litigation taxes if they file “an oath of poverty”
stating that “owing to [] poverty” they are “not able to bear the expense of the action” and
“are justly entitled to the relief they seek,” and they file “an accompanying affidavit of
indigency as prescribed by court rule.” Tenn. Code Ann. § 20-12-127 (Supp. 2008).
Upon filing the appropriate affidavit of indigency, the costs are held in abeyance until the
end of the litigation. See Tenn. Sup. Ct. R. 29. However, indigent persons are not
excused from paying the initial filing fees required by Tennessee Code Annotated section
8-21-401(a). Alvin Freeman v. Tenn. Dept. of Prob. and Parole, No. M2002-00958-
COA-R3-CV, 2003 WL 1798080, at *2 (Tenn. Ct. App. Apr. 7, 2003), no perm. app.
filed. In 1996, the Tennessee General Assembly enacted Tennessee Code Annotated

                                            -4-
section 41-21-807, which provides a procedure for collecting the required filing fee from
inmates filing civil suits in state courts. That section states:

      (a) An inmate seeking to bring a civil action or appeal a judgment in a civil
      action or proceeding without prepayment of fees or security for the fees, in
      addition to filing the affidavit required by § 41-21-805, shall submit a
      certified copy of the trust fund account statement, or the institutional
      equivalent, for the inmate for the six-month period immediately preceding
      the filing of the complaint or notice of appeal, obtained from the
      appropriate official of each facility at which the inmate is or was confined.

      (b)(1) If an inmate brings a civil action or files an appeal in forma pauperis,
      the inmate shall be required to pay the full amount of the filing fee. The
      court shall assess and, when funds exist, collect, as a partial payment of any
      court fees required by law, an initial partial filing fee of twenty percent
      (20%) of the greater of the average monthly:

      (A) Deposits to the inmate‟s account; or

      (B) Balance in the inmate‟s account for the six-month period immediately
      preceding the filing of the complaint or notice of appeal.

      (2) After payment of the initial partial filing fee, the inmate shall be
      required to make monthly payments of twenty percent (20%) of the
      preceding month‟s income credited to the inmate‟s account. The agency
      having custody of the inmate shall forward payments from the inmate‟s
      account to the clerk of the court each time the amount in the account
      exceeds ten dollars ($10.00) until the filing fees are paid.

      (3) In no event shall the filing fee collected exceed the amount of fees
      permitted by statute for the commencement of a civil action or an appeal of
      a civil action or criminal judgment.

      (4) In no event shall an inmate be prohibited from bringing a civil action or
      appealing a civil or criminal judgment for the reason that the inmate has no
      assets and no means by which to pay the initial partial filing fee.

      (c) In no event shall an inmate bring a civil action or appeal a judgment in a
      civil action or proceeding under this section if the inmate has, on three (3)
      or more prior occasions, while incarcerated or detained in any facility,
      brought an action or appeal in a court of this state or the United States that
      was dismissed on the grounds that it was frivolous, malicious or failed to

                                           -5-
       state a claim upon which relief may be granted, unless the inmate is under
       imminent danger of serious physical injury.

Tenn. Code Ann. § 41-21-807 (2014).

       In this case, the Petitioner submitted a Uniform Civil Affidavit of Indigency,
which included the pauper‟s oath; an Inmate Affidavit Pursuant to Tennessee Code
Annotated section 41-21-805 et seq.; and a Certification of Inmate Trust Fund Balance
(“the Trust Fund Certification”). The Trust Fund Certification is signed by the trust fund
custodian and notarized. It states that, as of April 24, 2015, the Petitioner “currently has
a cash balance of $0 in his inmate trust fund account. And the average balance for the
past six (6) months has been $0.”

       The State argues that Tennessee Code Annotated section 41-21-807(a) requires the
Petitioner to submit certified copies of his trust fund account statements for the six
months immediately prior to filing the Petition and that the single-page Trust Fund
Certification was insufficient to satisfy the statute‟s requirements. We disagree with the
State‟s interpretation of section 41-21-807(a). The statute explicitly states that an inmate
“shall submit a certified copy of the trust fund account statement, or the institutional
equivalent[.]” Tenn. Code Ann. § 41-21-807(a) (2014). We believe the Trust Fund
Certification form signed by the trust fund custodian and notarized satisfies the
requirements of the statute. Additionally, courts in this state have previously been able to
review inmates‟ ability to pay the partial filing fee in cases when the petition for writ of
certiorari was supported by similar documentation. See, e.g., Gary Wallace v. Tennessee
Dept. of Corr., No. M2005-01916-COA-R3-CV, 2006 WL 3246104, at *1 (Tenn. Ct.
App. Nov. 8, 2006) (“Plaintiff filed a certificate by the custodian of inmate accounts
which stated that as of May 19, Plaintiff had a total of $1.05 in his trust account and that
the average balance in Plaintiff‟s trust account during the previous six months was
$19.48”); Alvin Freeman, 2003 WL 1798080, at *2 (“Mr. Freeman had $23.55 in his
prison trust fund account on the day before he filed his petition in this case. The average
balance in his account for the six immediately preceding months was $24.85”).
Therefore, we conclude that the Petitioner filed sufficient documentation to show that he
had “no assets and no means by which to pay the initial partial filing fee,” and he could
not be prohibited from bringing a civil action for failure to make said payment. See
Tenn. Code Ann. § 41-21-807(b)(4). Dismissal of the Petition for failure to make partial
payment of the filing fee was improper. However, as discussed below, the Petition was
subject to dismissal because the writ of certiorari was not available in this case.

                           Availability of the Writ of Certiorari

       The writ of certiorari derives from article 6, section 10 of the Constitution of the
State of Tennessee. The practice by which a writ may be obtained is set out in Tennessee
                                           -6-
Code Annotated sections 27-8-101 through 27-8-118. “The remedy of certiorari is not
available as of right, but is granted under unusual or extraordinary circumstances.” Clark
v. Metro. Gov‟t of Nashville and Davidson Cnty., 827 S.W.2d 312, 316-17 (Tenn. Ct.
App. 1991). Review under the common law writ is limited to a determination of whether
the “inferior tribunal, or officer exercising judicial functions has exceeded the jurisdiction
conferred, or is acting illegally[.]” Tenn. Code Ann. § 27-8-101 (2014); see also Boyce
v. Williams, 389 S.W.2d 272, 276 (Tenn. 1965). The writ is not used to review the
intrinsic correctness of a judgment rendered by an inferior tribunal but only to review the
manner in which the decision was reached. In re Sentinel Trust Co., 206 S.W.3d 501,
524 (Tenn. Ct. App. 2005). We review the lower court‟s decision de novo. Case v.
Shelby Cnty. Civil Serv. Merit Bd., 98 S.W.3d 167, 172 (Tenn. Ct. App. 2002).

       Generally, certiorari may not be awarded when an express avenue for appellate
review is available. Tragle v. Burdette, 438 S.W.2d 736, 737 (Tenn. 1969); State v.
Hartwell, 124 S.W.3d 629, 631 (Tenn. Crim. App. 2003). However, failure to pursue an
available appeal will be excused and review by way of certiorari permitted under certain
circumstances such as “a fraud, contrivance by the opposing party or the court, or the
willful or negligent act of the court clerk.” Hartwell, 124 S.W.3d at 631.

       In this case, the subject of the Petition is the juvenile court‟s order transferring the
Petitioner to criminal court. The juvenile court has exclusive jurisdiction over juveniles
alleged to be delinquent. Tenn. Code Ann. § 37-1-103(a)(1) (Supp. 2000). However,
upon petition, notice, and a hearing, the juvenile court may transfer a juvenile to criminal
court to be tried as an adult. Tenn. Code Ann. § 37-1-134(a) (Supp. 2000). Such transfer
terminates the jurisdiction of the juvenile court. Tenn. Code Ann. § 37-1-134(c) (Supp.
2000). There is no interlocutory appeal from a juvenile court‟s decision to transfer a
juvenile to criminal court. Tenn. Code Ann. § 37-1-159(d) (Supp. 2000). However, a
juvenile may challenge the transfer to criminal court as follows:

       If and only if a nonlawyer judge presides at the transfer hearing in juvenile
       court, then the criminal court, upon motion of the [juvenile] filed within ten
       (10) days of the juvenile court order, excluding nonjudicial days, shall hold
       a hearing as expeditiously as possible to determine whether it will accept
       jurisdiction over the [juvenile]; provided, that if no such motion is filed
       with the criminal court within the ten-day period, excluding nonjudicial
       days, such [juvenile] shall be subject to indictment, presentment or
       information for the offense charged and thus subject to trial as an adult. . . .

Id. After such a hearing, the criminal court may either (1) remand the juvenile back to
the jurisdiction of the juvenile court or (2) enter an order certifying that it has taken
jurisdiction over the juvenile. Tenn. Code Ann. § 37-1-159(e) (Supp. 2000). If the
criminal court enters an order certifying that it has taken jurisdiction, then “[f]ollowing
                                           -7-
the order, the [juvenile] shall be subject to indictment, presentment or information for the
offenses charged.” Tenn. Code Ann. § 37-1-159(e)(2) (Supp. 2000). If the criminal
court accepts jurisdiction pursuant to subsection (e), the juvenile may appeal that decision
to this court “only following a conviction on the merits of the charge.” Tenn. Code Ann.
§ 37-1-159(f) (Supp. 2000).

        This court has held that a juvenile may also appeal a transfer order entered by a
lawyer juvenile court judge. State v. Griffin, 914 S.W.2d 564, 566 (Tenn. Crim. App.
1995), no perm. app. filed. In such cases, in order to preserve the issue for appeal, the
juvenile must either (1) enter a plea of not guilty, proceed to trial, and pursue an appeal if
convicted or (2) enter a plea of guilty or nolo contendre and reserve the issue as a
certified question of law pursuant to Tennessee Rule of Criminal Procedure 37. Id.

        In this case, it is not clear whether the Petitioner was transferred to criminal court
by a nonlawyer juvenile court judge or a lawyer juvenile court judge. However, for the
purposes of a writ of certiorari, the distinction is irrelevant. Under either circumstance,
there was an express avenue for appellate relief available to the Petitioner. There is no
indication that he filed a motion in criminal court challenging the transfer, that he
reserved the issue as a certified question of law when he entered his guilty plea, or that he
filed a direct appeal of his conviction to this court. Further, the Petitioner offers no
excuse for his delay in seeking appellate review of the juvenile court‟s decision that
would permit certiorari review. Accordingly, relief by way of certiorari is not available
in this case.2

                                             III. Conclusion

        For the aforementioned reasons, the judgment of the trial court is affirmed.


                                                           _________________________________
                                                           ROBERT L. HOLLOWAY, JR., JUDGE




        2
           Additionally, the State raises a separate argument that the Petitioner has waived review of his
transfer hearing by failing to reserve the issue as a certified question of law and pursue a direct appeal.
However, upon review of the State‟s brief, it appears that the State is merely restating its argument that
certiorari relief is not available in this case. Because we have already determined that the Petitioner is not
entitled to certiorari relief, we need not address the State‟s separate claim.
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