I. DISPOSITION OF APPEALS

216

Rule 42: Issuance, Stay, and Recall of Mandates From the Appellate Court.

(a) Definition; Issuance; Stay on Petition for Rehearing.  Copies, certified by the clerk of the appellate court, of the judgment, any order as to costs or instructions as to interest, and a copy of the opinion of the appellate court shall constitute the mandate.

 The clerk of the Supreme Court shall transmit to the clerk of the trial court the mandate of the Supreme Court, with notice to the parties, 11 days after entry of the judgment unless the court orders otherwise. The timely filing of a petition for rehearing will stay the mandate until disposition of the petition unless the court orders otherwise. If the petition is denied, the mandate shall issue immediately upon the filing of an order denying rehearing. In cases remanded to the Court of Appeals or Court of Criminal Appeals, a formal mandate shall not issue unless the Supreme Court orders otherwise, but the provisions of this rule are otherwise applicable.

 The clerk of the Court of Appeals and Court of Criminal Appeals shall transmit to the clerk of the trial court the mandate of the Court of Appeals or Court of Criminal Appeals, with notice to the parties, 64 days after entry of judgment unless the court orders otherwise. The timely filing of a petition for rehearing will stay the mandate until disposition of the petition unless the court orders otherwise. The mandate shall issue 64 days after denial of the petition for rehearing or, if the petition for rehearing is granted, 64 days after entry of judgment on rehearing.

 Issuance of the mandate in all cases shall not be delayed for the taxing of costs. The clerk of the appellate court shall be responsible for collecting the clerk's fees.

(b) Stay When Review by Supreme Court Is Sought.  Unless otherwise ordered by the Supreme Court, Court of Appeals, Court of Criminal Appeals, or a judge thereof, the timely filing of an application for permission to appeal in the Supreme Court shall stay the issuance of the mandate of the Court of Appeals or Court of Criminal Appeals, which stay is effective until final disposition by the Supreme Court. Upon the filing of an order of the Supreme Court denying the application for permission to appeal, the mandate shall issue immediately.

(c) Stay When Review May Be Sought in the Supreme Court of the United States.  In cases in which review by the Supreme Court of the United States may be sought, the appellate court whose decision is sought to be reviewed or a judge thereof, and in any event the Supreme Court of Tennessee or a judge thereof, may stay the mandate.

(d) Recall of a Mandate.  The power to stay a mandate includes the power to recall a mandate.

[As amended effective July 1, 1980; and by order effective July 1, 1996; and by order entered January 26, 1999, effective July 1, 1999.]

Advisory Commission Comment.

Subdivisions (b) and (c) specify the procedure to be followed when the decision of an intermediate appellate court is the subject of an application for permission to appeal to the Supreme Court of this state, and when any decision of any court of this state may be reviewed by the Supreme Court of the United States.

The rule provides that a formal mandate is not necessary when the Supreme Court remands a case to the Court of Appeals or Court of Criminal Appeals. In addition, the rule specifies when the mandate issues from an intermediate appellate court upon the grant or denial of a petition for rehearing.

Advisory Commission Comments [1996].

This is an amendment to conform to the 1995 amendment extending application for permission to appeal time from 30 days to 60 days.

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