# FILED

November 2, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON AUGUST 1998 SESSION

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9709-C C-00360 ) Appellee ) FAYETTE COU NTY ) v. ) HON. JON KERRY BLAC KWOOD, ) JUDGE JACOB MEEKS, ) ) POST-CONVICTION Defendant/Appellant )

FOR THE APPELLANT : FOR THE APPELLEE : David Crichton John Knox Walkup 111 W. Market Street Attorney General & Repor ter Bolivar, TN 38008 Douglas D. Himes Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493

OPINION FILED

REVERSED JOHN K. BYERS SENIOR JUDGE-2- O P I N I O N The defendant appeals from the dismissal of a peti tion for post-conviction relief, wherein he soug ht a delayed appeal from the judg ment of the Court of Criminal Appeals, whi ch affirmed his trial court c onviction for “hinderin g a secured creditor,” to the Supreme C ourt. The resolution of this case res ts upon whether the defendant w as fully and properly advised by

counsel who represented h im at trial and on first-ti er appeal that he would no longer repr esent him on further appeals, as w ell as the date when the right to apply to the S upreme Court for review would expire and other information required by Rule 14 of the Supreme Court Rules. Our determination of this issue turns upon whether the Clerk of the court complied with the requirements of Rule
14. Rule 14 is as follows:

Permission for leave to w ithdraw as counsel for an indigent defendant after an adverse final decision in the Court of Criminal Appea ls and before preparation and filing of an Appl ication for Permission to Appea l in the Supreme Court must be obtained from the C ourt of Criminal Appeals not l ater than fourteen (14) days after that Court’s entry of final j udgment. The motion shall state (1) that after a study of the op inion of the Court of Criminal Appeals, the brief filed on behalf of the defendant in that Court presents such issues as are available for second-tier appellate review, if sought by defendant pro se, and ( 2) that the written noti fication prescribed by this Rule , along with a copy of t he Court o f Crimina l Appeals opinion, have been forwarded to the defendant. The motion shall be accompanied by a copy of the written not ification forwarded to the defendant whic h shall advise the defendant (1 ) that counsel does not intend to file an A pplicati on for Pe rmission to Appea l and tha t leave of Court is being sought to withdraw; (2) that the defendant may file a pro se Application for Permission to Appeal with the Clerk of the Suprem e Court if filed within sixty

(60) days after entry

of final judgment in the Court of C riminal Appeals; (3) the date on wh ich the Court of Criminal A ppeals opinion was released; and (4) the date on w hich an Application for Permis sion to Appeal is due. The written notific ation must also reflect the defendant’s mailing address to which the noti ce was forwarded. Upon the filing of a timely motion in accord with th e foregoing requirements, the Court of C riminal Appeals, or any judge thereof, may summarily grant the moti on. Upon entry of the order g ranting the motion to withdraw, a copy thereof will be sent to the defendant by the Clerk,1 At this tim e, the defendant ’s wife w as in the pro

cess of div

orcing hi m. -3- accompanied by letter notic e [sic] to defendant of the last day within which to file an Application for Permission to Appeal. The Court of Criminal Appeals ent ered judgment on August 6, 1996 affirming the conviction of the defendant. Coun sel who represented the defendant testified he sent a letter to the defendant’s home in Holly Springs , Mississippi on Aug ust 6, 1996 which included a copy of his motion to withdraw and all of the information required by Rule 14. A copy of the transmittal l etter was filed in the hear ing on the post-conviction petition. There were no copies of the motion, etc. f iled in this case as exhibits. The attorney testified he received a l etter from the defendant subsequently whic

h caused him to think the defendant had not received the letter and documents he mailed on August 6, 1996. As a result, he then, according to his testimony, sent a letter t o the defendant in Tiptonville, Tennes see, where he was incarcerated. A copy of the letter was made an exhibit to counsel’ s testimony. This letter stated counsel was enclos ing the information requir ed by Rule 14 in the packet which accompanied the letter. The exhibit did not contain copies of these documents. The brief of the State in a footn ote says the Court of Criminal Appeals granted the attorney’s motion to withdraw on August 14, 1996. We do not find a copy of the order in the rec ord before us. The defendant testified he did not receiv e the letter mailed to him by the attorney on August 6, 1996. He testified he received the letter sent to his former home address in November 1996 w hen it was forwarded to him by his wife. 1 The trial judge found counsel had indeed informed the defendant of his intent to withdraw and of his right to seek revi ew of his conviction b y the Supreme Court. This finding, of course, is bas ed upon a determination of the credibi lity of the testimony of counsel vis-a-vis the testimony of the defendant. In such case, we are bound by the determination of the cr edibility of witness

es made by the trial judg e. If we were to base our op inion upon this alone, we would affirm the judgment.-4- However, there is

another matter of concern. Rule 14 requires the Clerk of the court to furnish to a defendant a copy of the order granting the motion to withdraw accompanied by letter notice informing the defendant of the last day within which to file an Application for Permission to Appeal to the Sup reme Court. There is no showing in this r

ecord that this was done. The purpose of Rule 14 is to insure that an indigent def endant shall not lose his right to seek rel ief by way of an Applic ation for Permission to Appeal t o the Supreme Court because he is not made aware of the withdraw al of counsel or the expiration of the time in w hich to ask for review

by the Supreme Court throug h no fault of his own. Rule 14 speaks of what counsel must file with the Court of Criminal Appea ls before the court can relieve counsel of further duties in a ca se. Beyond this, Rule 14 places a positive duty upon the Clerk of the court to s end a copy of the order relieving counsel to the defendant. The termination of the right to s eek review by t he Supreme Court may not occur in the absence of the Cler k’s forwarding to the defendant the material required by Rule 14. The requir ement is a safeguard to see that the defendant’s right has been protected. We are compelled to hold that the record does not show compliance wit h Rule 14 in this case. We must, theref ore, reverse the judgment of the trial court denying a delayed appeal to the Supreme Court. The judgment affirming the conviction of the de fendant entered by the Court of Criminal Appeals on August 6, 1996 is set aside and reenter ed on the date the judgment in this case is filed, and the time for filing an App lication for Permission to Appeal to the Supreme Court shall commence to run from that date. The cost of this appeal is taxe d to the State.

John K. Byers, Sen ior Judge-5-

CONCUR:

David H. Wel les, Judge

Jerry L. Smith, Judge