State v. Michael Evans

We granted this appeal primarily to clarify the procedure that governs when a trial court or the Court of Criminal Appeals determines that a criminal defendant was unilaterally deprived of the right to seek second-tier review pursuant to Tennessee Rule of Appellate Procedure 11. We conclude that Tennessee Supreme Court Rule 28, section (9)(D) has superseded the procedural framework of State v. Pinkston, 668 S.W.2d 676 (Tenn. Crim. App. 1984). However, the State has raised valid concerns about voids in the procedure, and as a result, we have filed contemporaneously with this opinion an order publishing for public comment a proposed amendment to Rule 28, section (9)(D). The amendment addresses the concerns raised by the State in this case, as well as other procedural issues likely to arise in the delayed appeal context. The Court solicits comments from all interested parties. Although the trial court's order granting a delayed appeal in this case contained inappropriate language purporting to "vacate[] and reinstate[]" the judgment of the Court of Criminal Appeals, the trial court otherwise substantially complied with the procedure set forth in Rule 28, Section (9)(D). Therefore, the defendant's delayed application for permission to appeal was properly filed in this Court. This Court granted the application, and after reviewing the record and considering the issues raised, we conclude that none of the assigned errors warrant reversal. Therefore, the judgment of the Court of Criminal Appeals is affirmed.