Patmon v. State , 1974 Tenn. Crim. App. LEXIS 249 ( 1974 )

DWYER, Judge

(concurring).

I am in complete accord with my esteemed Presiding Judge in his treatment of the assignments of error advanced in this record and the results of his considerations of them. However, under Rule 43 of the Supreme Court, Judicial Canon 19, I am prompted to write about T.C.A. § 40-2901. This section is highlighted in this opinion, by the appeal of Barbara Sue Patmon, because the learned trial judge suspended her sentence and also allowed direct appeal of her conviction.

It may be judicially acknowledged that one of the foremost problems in this country today is the rising crime rate. The writer believes that one way of combatting this deleterious blight on our society is by expeditiously arriving at a conclusion to a prosecution.

The statute by its terms confers on the defendant the right to petition for a suspended sentence without loss of direct appeal. We think this is good legislation and have no quarrel with that facet of the statute.

However, the merits of the statute end when it extends the power of the judge to grant or deny a suspended sentence after this court or the Supreme Court has returned final judgment. The proviso in question states:

“. . . Provided further, That any defendant may file application for such a suspension of sentence or parole therefrom, upon the return of the final verdict, judgment or award of the court of criminal appeals, or the Supreme Court of Tennessee, as the case may be, whichever may be final, on or before the expiration of the term to which the procedendo of the final appellate court is returned, and the trial court shall have full power to act thereon.”

Under this proviso, see Chapter 513, Public Acts of 1972 and reading the recent decision of our Supreme Court, see Stiller v. State, Tenn., 516 S.W.2d 617, released November 12, 1974 at Nashville, the defendant may, after affirmation, again petition for a suspended sentence and if denied again appeal from that judgment and thereby, again, abate incarceration pending that appeal. I think this portion of the statute is useless and senseless legislation which should be repealed.

I concur in affirming this judgment.