           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                      AT JACKSON

                             AUGUST SESSION, 1998                    FILED
                                                               November 2, 1998
STATE OF TENNESSEE,               )      C.C.A. NO. 02C01-9709-CC-00360
                                  )                            Cecil Crowson, Jr.
                                                                     Appellate C ourt Clerk
      Appellee,                   )
                                  )
                                  )      FAYETTE COUNTY
VS.                               )
                                  )      HON. JON KERRY BLACKWOOD
JACOB MEEKS,                      )      JUDGE
                                  )
      Appe llant.                 )      (Post-Conviction)




                               DISSENTING OPINION

      Although I agree w ith the ma jority opinion that the error of the trial court clerk

in giving the appellant proper notice pursuant to Rule 14, Rules of the Supreme

Court, may have cost the appellant his right to apply for permission to appeal to the

Tennessee Supre me C ourt, I must dissent from the holding of the Court that such

an omission entitles the appellant to post-conviction relief in the form of a delayed

appe al.



      Tennessee Code Annotated Section 40-30-203 provides that relief under the

Post-Conviction Act shall be granted:

             . . . when the co nviction or sen tence is void o r voida ble
             because of the abridgment of any right guaranteed by the
             Constitution of Tennessee or the Constitution of the United
             States.


Tennessee Code Annotated Section 40-30-213 allows a delayed appeal when a



                                            1
criminal defendant is unco nstitutio nally denied an appeal from his conviction.1 In

Pinkston v. State, 668 S.W.2d 676 (Tenn. Crim. App. 1984); this Court concluded

that as a matter of state constitutional law the right to the effective assistance of

counsel mandated that counsel may not unilaterally act in such a way so as to deny

a criminal defendant second tier review of his conviction in the Tennessee Supreme

Court. Id. at 677. Thus, following an affirmance of a conviction on direct appeal,

counsel has a duty to timely file an application for perm ission to appea l pursuan t to

Tenn. R. App. P. 11, or to withdraw from the case pursu ant to R ule 14, Rules of the

Tennessee Supre me C ourt.              This latter rule req uires, in ord er for cou nsel to

withdraw, that the de fendan t be fully appris ed in a tim ely fashion of his rights to

second tier review and how to pursue thes e rights. Only then w ill the appellate court

allow couns el to withdra w. Failure to either file a timely application for permission

to appeal or to properly withdraw under Rule 14 of the Rules of the Suprem e Court

would result in the grant of a delayed opportunity to present an application for

permis sion to ap peal to the Tenn essee Supre me C ourt. Id.

        Prior to the adoption of Rule 28, Rules o f the Ten nesse e Supr eme C ourt,

governing post-conviction relief procedure, the delayed opportunity at second tier

review was obtained by the mechanism of having the trial court conduct an

evidentiary hearing wherein the reason for the fa ilure to file a timely application for

permission to appeal is established. If it is estab lished that the failure is the res ult

of the unilate ral act of co unsel in d erogatio n of coun sel’s state c onstitution al duty to

give effective as sistance , the trial court nevertheless denied the post-conviction

petition. On appeal however, this Court could then vacate its previous judgment and

then reinsta te the ju dgm ent im med iately so as to start ag ain the time period for filing



        1
         The legislature could of course authorize a delayed appeal in cases where the deprivation of an
appeal is the result of non-constitutional errors. To date however it has not done so.

                                                    2
an app lication for pe rmission to appe al. Id. at 677-78.

        In 1996 th e Ten nesse e Supr eme C ourt, purs uant to a le gislative direc tive to

adopt rules governing procedure in cases arising under the Post-conviction

Procedures Act, adopted Rule 28, Rules of the Tennessee Supreme Court. See,

Tenn. Code Ann. S ec. 40-3 0-218. rule 28, Sec . 9(D) allow s this Co urt to gran t a

delayed opportunity for second tier review when we find:

                . . . that the petitioner was deprived of the right to request
                an appeal pursuant to Rule 11, Tennessee Rules of
                Appellate Procedure.

W hile a literal reading of this rule might lead one to conclude that it would cover the

situation presented here, i.e. deprivation of discretionary review through the error of

a trial court clerk , it must be remem bered th at Rule 2 8 is intend ed to be consistent

with the Post-C onvictio n Procedures Act. See, Tenn. Code Ann. Sec. 40-30-218.

Therefore, in my opinio n Rule 28 cannot be read to grant a right to delayed second

tier review unless the deprivation of such review is the result of an abridgement of

a state or federal constitutional right such as the state constitutional right to effec tive

assistan ce of cou nsel. Se e, Pinksto n v. State , supra.

        Heretofore, any violation of Rule 14 which resulted in the deprivation of

second tier review has been tied to the actions or inactions of the defendant’s lawyer

which constitutes ineffective assistance of counsel under the state constitution. I am

unaware of any case announcing a constitutional right to have a trial court clerk give

notice as required by Supreme Court Rule 14, and I do not believe any such right

exists.2

        Thus, I do not be lieve the trial co urt clerk’s er ror unde r Rule 14 entitles the

appellant to pos t-conv iction re lief so long as the trial cour t’s findings o f fact,


        2
         It must also be remembered that there is no per se constitutional right to even a first tier appeal
muc h less dis cretionar y second tier review. State v. Gillespie, 898 S.W.2d 738, 741 (Tenn. Crim. App.
1994).

                                                      3
adeq uately supported by the re cord, e stablis hes c ouns el acte d prop erly un der R ule

14, Ru les of the T ennes see Su preme Court. 3

         For thes e reaso ns, I dissen t.



                                                         ___________________________
                                                         JERRY L. SMITH, JUDGE




         3
         The ma jority co nce des that th e trial c ourt’s findin g tha t cou nse l fulfilled his ob ligatio ns un der R ule
14 is adequately supported by the record and that this Court is bound by this finding.

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