Webb v. State ( 1971 )

GALBREATH, Judge

(dissenting).

In Brown v. State, Tenn.Cr.App., 445 S.W.2d 669, Judge W. Wayne Oliver, writing unanimously for this Court, said:

“Without a clear and detailed finding of fact by the trial judge, the petitioner and his counsel and the appellate court are at a complete loss to know the basis of the trial judge’s decision and judgment; assignment of errors and appellate review are seriously frustrated if not completely thwarthed by lack of a definitive finding of fact by the trial judge. These official shortcomings alone would require reversal of the judgment of the trial court and remand for a new trial upon the petition.”

As noted in Judge Mitchell’s opinion it was necessary for him to sort out the facts developed at the evidentiary hearing in order for this Court to decide the appeal. But this was, under the law, the sole function of the trial judge, and the case should have been remanded with an appropriate mandate to comply with the law. Failure to have the trial judge’s finding of fact in the record leaves it incomplete and the action below reversible. Bound by a like mandate to observe the law as it is impressed on me forces me to reluctantly dissent from the majority holding that the error involved is harmless.