VIII. APPEAL

217

Rule 37: Appeal.

(a) Definition of an Appeal. An “appeal” refers to direct appellate review available as a matter of right, appeals in the nature of writs of error, and all other direct appeals in criminal cases

(b) When an Appeal Lies. The defendant or the state may appeal any order or judgment in a criminal proceeding when the law provides for such appeal. The defendant may appeal from any judgment of conviction:

(1) on a plea of not guilty; or

(2) on a plea of guilty or nolo contendere, if:

(A) the defendant entered into a plea agreement under Rule 11(c) but explicitly reserved–with the consent of the state and of the court–the right to appeal a certified question of law that is dispositive of the case, and the following requirements are met:

(i) the judgment of conviction or order reserving the certifed question that is filed before the notice of appeal is filed contains a statement of the certified question of law that the defendant reserved for appellate review;

(ii) the question of law as stated in the judgment or order reserving the certifed question identifies clearly the scope and limits of the legal issue reserved;

(iii) the judgment or order reserving the certifed question reflects that the certified question was expressly reserved with the consent of the state and the trial court; and

(iv) the judgment or order reserving the certifed question reflects that the defendant, the state, and the trial court are of the opinion that the certified question is dispositive of the case; or

(B) the defendant seeks review of the sentence and there was no plea agreement under Rule 11(c); or

(C) the errors complained of were not waived as a matter of law by the guilty or nolo contendere plea, or otherwise waived, and if such errors are apparent from the record of the earlier proceedings; or

(D) if there is no plea agreement pursuant to Rule 37(b)(2)(A), the defendant–with the consent of the court–explicitly reserved the right to appeal a certified question of law that is dispositive of the case, and the requirements of Rule 37(b)(2)(a)(i)-(ii) are otherwise met.

(c) Procedure for Advising Defendant of Appellate Rights. After overruling a motion for a new trial or a motion in arrest of judgment, whichever comes last, the trial judge shall do the following:

(1) Advise of Right to Appeal. Advise the defendant of the right to appeal; and

(2) Determine Indigency; Ensure Counsel. Determine–from evidence or stipulation–for the record whether the defendant is indigent. If the defendant is indigent, the court shall advise the defendant that, if he or she has not already retained appellate counsel or if counsel has not previously been appointed, the court will appoint appellate counsel and that a transcript or statement of the evidence will be furnished at state expense.

(d) Pursuing or Waiving an Appeal. Before the judgment on the guilty verdict becomes final, the following shall be done:

(1) Seeking Appeal. If an appeal is sought, the defendant in person or by counsel shall file a timely notice of appeal with the clerk in accordance with Rule 4(a), Tennessee Rules of Appellate Procedure; or

(2) Waiving Appeal. If an indigent or nonindigent defendant who has the right to appeal a conviction chooses to waive the appeal, counsel for the defendant shall file with the clerk, during the time within which the notice of appeal could have been filed, a written waiver of appeal, which must:

(A) clearly reflect that the defendant is aware of the right to appeal and voluntarily waives it; and

(B) be signed by the defendant and the defendant’s counsel of record.

(e) Duties of Counsel Regarding Appeal.

(1) Counsel Retained for Trial But Not Appeal.  An attorney retained by the defendant to represent the defendant for the trial but not for appeal, shall timely advise the trial court of this fact at the hearing on the motion for a new trial. Thereupon, such counsel will be permitted to withdraw as counsel of record, except as provided in Rule 37(e)(2).

(A) Appellate Counsel for Non-Indigent Defendant. If the defendant is not indigent at the time counsel is permitted to withdraw, the court shall advise the defendant of the right of appeal and the time for filing the notice of appeal.

(B) Appellate Counsel for Indigent Defendant. If the defendant is indigent at the time counsel is permitted to withdraw, the court shall appoint appellate counsel for the defendant.

(2) Retained Counsel Filing Notice of Appeal.  Retained counsel–whether or not fully paid–who files a notice of appeal shall represent the defendant on appeal. Such retained counsel shall fully comply with all appellate rules as to timely filing and appearances. Retained counsel shall be allowed to withdraw as counsel of record only for good cause and only if application is made when not delinquent in his or her duties.

(3) Appointed Counsel for Indigent Defendant. Pursuant to Tenn. Sup. Ct. Rule 13, § 1(e)(5), counsel appointed in the trial court to represent an indigent defendant shall continue to represent the defendant throughout the proceedings, including any appeals, until the case has been concluded or counsel has been allowed to withdraw by a court.

[As amended by order filed December 21, 2010, effective July 1, 2011.]

Advisory Commission Comments.

This rule retains present law as to when a direct appeal lies, except for the significant provisions addressing appeals from pleas of guilty and nolo contendere. The first provision permits an appeal in the context of a controlling question that needs answering, such as the constitutionality of a statute upon which a charge is grounded or the validity of the search upon which the state's case must be made, and should avoid the necessity for many trials. The rules regarding certified questions of law that are dispositive of the case vary depending on whether there is a plea bargain and whether the state agrees to the appeal. See Tenn. R. Crim. P. 37(b)(2)(i) and (iv). In order for an attorney to perfect an appeal of a certified question, the attorney must be certain that the application fully comports with the requirements for this type of an appeal as set forth by the Tennessee Supreme Court in its decision of State v. Preston, 759 S.W.2d 647 (Tenn. 1988). Failure to follow the dictates of the Preston decision could result in the dismissal of the appeal.

The second situation addressed was arguably always appealable, i.e., a sentence complaint where there was no agreement as to sentence. The third provision will apply in cases where guilt was not contested but the record clearly reflects an invalidating error, such as the clear denial of the right to counsel or a conviction under an invalid statute, wherein it would be judicially inefficient to require a post-conviction collateral attack when the error is apparent upon the face of the existing record.

The Rule requires that the defendant must be advised of pertinent appellate rights. In all cases if an appeal is to be waived, this must be put on record.

The problem of retained attorneys initiating an appeal and doing nothing further is addressed by Rule 12 of the Rules of the Tennessee Court of Criminal Appeals. This rule addresses the same problem. Retained counsel who commence the appellate process are deemed to be fully retained to complete it.

Counsel considering withdrawal or termination of representation should consult Tenn. Sup. Ct. R. 14 (procedure for withdrawal in Court of Appeals and Court of Criminal Appeals) and Tenn. Sup. Ct. R. 8, RPC § 1.16 (declining and terminating representation).

See T.C.A. § 40-26-105, dealing with the expanded circumstances under which the writ of error coram nobis may issue in criminal cases.

Advisory Commission Comments [2011].

The amendment to Rule 37(b)(2)(A) addresses those cases where the certified question of law is not stated in the judgment. In such cases, the amendment removes the requirement that a separate document setting forth the certified question of law be incorporated by reference in the judgment, and it allows the requirements of the Rule to be met by an order entered by the trial court certifying the question.

Advisory Commission Comments [2013].

Rule 37(b)(2) was amended to clarify the provisions regarding the appeal of cases in which the defendant reserves a certified question of law.  See State v. Joseph L. Lands, No. W2011-00386-CCA-R3-CD, 2012 Tenn. Crim. App. LEXIS 203 (Tenn. Crim. App. March 29, 2012) (discussing history of Rule 37(b)(2) and apparent drafting error in earlier revision of the rule).

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