FILED

August 12, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

MARCH 1999 SESSION 

RODNEY L. JEFFRIES, ) C.C.A. NO. 02C01-9807-CR-00214

)

Appellant, )

) SHELBY COUNTY

V. ) 

)

) HON. JAMES C. BEASLEY, JR., 

STATE OF TENNESSEE, ) JUDGE 

)

Appellee. ) (POST CONVICTION) 

SEPARATE CONCURRING OPINION

I concur in the result reached in the majority opinion authored by

Presiding Judge Gary R. Wade. I write separately, however, to express my concern

that appointed counsel for the Appellant at the trial court level did not proceed to

represent Appellant in the appeal to this court from the trial court’s dismissal of the

petitions for post-conviction relief.

In this case, the Appellant filed pro se petitions for post-conviction relief

attacking each conviction in a separate petition. On August 11, 1998, the trial court

entered an order nunc pro tunc for March 18, 1998 appointing counsel to represent

Appellant. The order provides as follows:

Be it remembered that the Court ascertained in the

absence of the Petitioner, that the above Petitioner is

financially unable to employ counsel as a result of his

present incarceration, and that it is incumbent upon the

Court to appoint counsel to represent said Petitioner’s

interests in his absence.
-2-

And further, the Court is of the opinion that the Public

Defender of Shelby County, Tennessee, should not be

appointed to represent the Petitioner herein, for good

cause shown. 

IT IS THEREFORE ORDERED, ADJUDGED AND

DECREED that[ ] Monica Simmons, a licensed Attorney in

the State of Tennessee, be appointed to represent the

Petitioner in the above-captioned cause. 

The record reflects that after the trial court made its findings of fact and

ruling dismissing the petitions on the record in open court, it requested counsel for

the Appellant to draft the order reflecting the court’s ruling. Counsel agreed to

comply with this request. The order was entered. There was no request by counsel

to withdraw from further representation of Appellant. Appellant filed a pro se notice

of appeal. While no motion was filed by Appellant for appointment of counsel on

appeal, he did type in “*ATTORNEY REQUESTED*” at the bottom of the front page

of the “Docketing Statement” filled out by him and returned to the clerk of this court.

The “Docketing Statement” is not required by any rule of procedure or rule of any

court, but is sent by the clerk of the appellate courts to appellants in order to obtain

information about cases. 

In any event, Appellant did not bring to the attention of this court by

motion, any desire to have counsel appointed to represent him on appeal. However,

in cases where an attorney is properly appointed to represent a petitioner in postconviction proceedings in the trial court, I feel that it is incumbent upon the trial court

and appointed counsel to ensure that counsel remains attorney of record in the

direct appeal of the dismissal of the first post-conviction petition, unless appointed

counsel is properly permitted to withdraw and other counsel is appointed.
-3-

Tenn. Sup. Ct. R. 28, § 10(a) states that “[a]n appeal from the dismissal

or denial of a post-conviction petition shall be in accordance with the Tennessee

Rules of Appellate Procedure.” Rule 18(a) of the Tennessee Rules of Appellate

Procedure provides the following: 

A party who has been perm itted to proceed in an action in

the trial court as a poor person (which includes a person

who has been permitted to proceed there as one who is

financially unable to obtain adequate defense in a criminal

case) may proceed on appeal as a poor person unless,

before or after the appeal is taken, the trial court finds the

party is not entitled so to proceed, in which event the trial

court shall state in writing the reasons for such finding. 

In the Post-Conviction Procedure Act, Tennessee Code Annotated

section 40-30-215 states that “[i]ndigency shall be determined and counsel and court

reporters appointed and reimbursed as now provided for criminal and habeas corpus

cases by chapter 14, parts 2 and 3 of this title.” 

Tennessee Code Annotated section 40-14-205 allows an attorney

appointed by the trial court to withdraw as counsel of record upon good cause

shown, but requires the trial court to immediately appoint another attorney in the

former attorney’s place. Furthermore, Tennessee Code Annotated section 40-14-

203, made applicable to post-conviction cases by Tennessee Code Annotated

section 40-30-215, entitles a petitioner to appointed counsel on the direct appeal

from the denial of a first petition for post-conviction relief. 

Despite the failure of the trial court and appointed counsel in the postconviction proceedings to ensure that Appellant was represented by counsel in this

direct appeal, the particular facts of this case, in my opinion, do not justify a reversal
-4-

of the trial court’s order, or appointment of counsel to file a substituted brief on behalf

of Appellant in this court. Appellant’s brief was adequate to convey his arguments.

The proof in the record overwhelmingly justifies the affirmance of the trial court’s

judgment dismissing the petitions for post-conviction relief.

Most cases, however, would require, at a minimum, that counsel be

appointed to file a substituted brief on appeal. Under normal circumstances, the

State would need to file a brief in response thereto. Of course, the resultant delay

in disposition of post-conviction cases would be contrary to the prompt disposition

of post-conviction cases and the administration of justice.

I am authorized to state that both Presiding Judge Wade and Judge

Tipton join in with me in this concurring opinion.

____________________________________

THOMAS T. W OODALL, Judge