            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE            FILED
                           SEPTEMBER 1998 SESSION
                                                        November 3, 1998

                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk

LARRY KELLEY,                       )
                                    )   C.C.A. NO. 03C01-9802-CC-00049
            Appellant,              )
                                    )   BRADLEY COUNTY
VS.                                 )
                                    )   HON. CARROLL L. ROSS,
STATE OF TENNESSEE,                 )   JUDGE
                                    )
            Appellee.               )   (Post-Conviction)



FOR THE APPELLANT:                      FOR THE APPELLEE:


ASHLEY OWNBY                            JOHN KNOX WALKUP
180 North Ocoee St.                     Attorney General & Reporter
Cleveland, TN 37311
   (On Appeal)                          ELIZABETH B. MARNEY
                                        Asst. Attorney General
STEVEN DAVIS CRUMP                      John Sevier Bldg.
P.O. Box 42                             425 Fifth Ave., North
Cleveland, TN 37364-0042                Nashville, TN 37243-0493
   (At Hearing)
                                        JERRY N. ESTES
                                        District Attorney General

                                        REBBLE JOHNSON
                                        Asst. District Attorney General
                                        P.O. Box 1351
                                        Cleveland, TN 37364




OPINION FILED:____________________



DELAYED APPEAL GRANTED


JOHN H. PEAY,
Judge
                                      OPINION



              A jury found the petitioner guilty of first-degree murder on December 5,

1991, and a trial court subsequently sentenced the petitioner to life imprisonment. The

petitioner timely appealed to this Court, which affirmed the petitioner’s convictions. See

State v. Kelley, 868 S.W.2d 733 (Tenn. Crim. App. 1993). The petitioner’s counsel, Mr.

Randy Rogers, failed to file an application to appeal by permission to the Tennessee

Supreme Court for further review.



              On May 3, 1995, the petitioner filed a petition for post-conviction relief,

alleging, inter alia, that his counsel was ineffective for failing to timely seek review by the

Tennessee Supreme Court. At the post-conviction hearing, the petitioner testified that

after his conviction had been affirmed by the Court of Criminal Appeals, he never spoke

with Mr. Rogers or received any advice or information on how to file a pro se appeal or

retain another attorney to file an appeal to the Tennessee Supreme Court. Mr. Rogers

also testified. He did not recall advising the petitioner of his option to appeal to the

Supreme Court and admitted it just “fell between the tracks and the cracks.” The post-

conviction court found that the petitioner’s counsel was ineffective for failing to notify the

petitioner of his option to seek review by the Tennessee Supreme Court. The post-

conviction court denied relief on the other grounds alleged in the petitioner’s petition,

finding them to be without merit.



              On appeal, the petitioner argues only that he is entitled to seek delayed

review by the Supreme Court. The State concedes. Considering the trial court’s finding

that the petitioner’s counsel failed to notify the petitioner of his option to seek review by

the Supreme Court, we conclude that the petitioner is entitled to a delayed appeal.



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Therefore, we vacate our judgment in State v. Kelley, 868 S.W.2d 733 (Tenn. Crim. App.

1993)(C.C.A. No. 03C01-9207-CR-00239, filed August 11, 1993), and reinstate it as of

the date of release of this opinion, for the sole purpose of reinstating the time allowed to

file his application seeking permission to appeal his conviction to the Tennessee

Supreme Court.



                                                  _______________________________
                                                  JOHN H. PEAY, Judge



CONCUR:



______________________________
JOSEPH M. TIPTON, Judge



______________________________
DAVID G. HAYES, Judge




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