James Burns v. State of Tennessee ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
December 15, 2004 Session
JAMES BURNS v. STATE OF TENNESSEE
Appeal from the Circuit Court for Marshall County
Nos. 15939 Charles Lee, Judge
No. M2004-00793-CCA-R3-PC - Filed March 29, 2005
The petitioner pled guilty to one count of second degree murder and one count of aggravated assault
on February 7, 2003. The trial court sentenced him to twenty (20) years and five (5) years,
respectively, for the above convictions. The petitioner filed a petition for post-conviction relief. The
trial court held a hearing and stated upon the record that the petition was denied. However, a written
order was never entered by the trial court. Because there is no final order from which the petitioner
may appeal, we dismiss the appeal.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Dismissed
JERRY L. SMITH , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
NORMA MCGEE OGLE, JJ., joined.
Merrilyn Feirman, Nashville, Tennessee and Andrew Jackson Dearing, III, Assistant Public
Defender, Shelbyville, Tennessee, for the appellant James Burns.
Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; Mike
McCowen, District Attorney General, and Weakley E. Barnard, Assistant District Attorney General,
for the appellee, State of Tennessee.
OPINION
Factual Background
On February 7, 2003, the petitioner pled guilty to second degree murder and aggravated
assault. The trial court sentenced him to twenty (20) years and five (5) years, respectively, for the
above convictions. On January 20, 2004, the petitioner filed a petition for post-conviction relief.
After the trial court appointed counsel, an amended petition was filed March 10, 2004.
A hearing was held on March 18, 2004. The petitioner testified, as did his mother and father.
The State’s witnesses consisted of the two attorneys who had represented the petitioner during the
proceedings leading up to his guilty plea. At the conclusion of the hearing, the trial court stated its
findings and denied the petitioner’s petition. We have been unable to locate a written order in the
technical record denying his petition. On March 24, 2004, the petitioner filed a notice of appeal in
the trial court.
ANALYSIS
The petitioner has appealed the denial of his post-conviction petition as of right under Rule
3 of the Tennessee Rules of Appellate Procedure. Rule 3 states that a defendant may appeal as of
right “from a final judgment in a . . . post-conviction proceeding.” Tenn. R. App. P. 3(b). Tennessee
Code Annotated section 40-30-111 is entitled “Final disposition of petitions.” This section reads,
in part, “Upon the final disposition of every petition, the court shall enter a final order, and . . . shall
set forth in the order or a written memorandum of the case all grounds presented . . . .” Tenn. Code
Ann. § 40-30-111(b) (emphasis added). Tennessee Code Annotated section 40-30-116 further states,
“The order granting or denying relief under the provisions of this part shall be deemed a final
judgment, and an appeal may be taken to the court of criminal appeals in the manner prescribed by
the Tennessee Rules of Appellate Procedure.”
In the case sub judice, the technical record does not include a final order entered by the trial
court. The trial court did include its finding of fact and conclusions of law in the transcript of the
hearing, but these findings were never included or referenced in a written final order by the trial
court. Because there is no final judgment from which the petitioner may appeal, we are compelled
to dismiss this appeal. See Tenn. R. App. P. 3(b) (stating an appeal of right lies from a judgment
entered by a trial court in certain situations); State v. Howard C. Covington, No. W2001-01575-
CCA-R3-CD, 2002 WL 1592704 at *3 (Tenn. Crim. App., at Jackson, July 16, 2002) (concluding
that no final judgments were included in the record on appeal and this Court could not adjudicate
the issues without a final judgment).
CONCLUSION
For the reasons stated above, we dismiss the petitioner’s appeal.
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JERRY L. SMITH, JUDGE
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