Citation Numbers： 604 S.W.2d 889, 1980 Tenn. Crim. App. LEXIS 295
Judges： Brien, Dwyer, Scott
Filed Date： 6/12/1980
Status： Precedential
Modified Date： 11/14/2024
OPINION
This is an application for permission to appeal under Rule 9 of the Tennessee Rules of Appellate Procedure. In the appellant’s application there is an authenticated transcript of the hearing at which the trial
The trial court, while not giving specifics in his order, relied on all three of the sections in Rule 9(a) for granting an appeal by permission. At the hearing on granting permission to appeal, the judge held that his overruling the appellant’s motion for acquittal is properly subject to review under Rule 9 because the appellant then rested and a mistrial was declared when the jury could not agree on a verdict. He relied on these decisions of the Supreme Court of the United States and of this State’s Supreme Court: Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Overturf v. State, 571 S.W.2d 837 (Tenn.1978); and State v. Cabbage, 571 S.W.2d 832 (Tenn.1978). We disagree with the trial court’s conclusion. None of these authorities is applicable here since there has been no conviction. In short, the appellant has not been convicted or acquitted; thus, he may properly be retried in an entirely new proceeding. United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824); State v. Witt, 572 S.W.2d 913 (Tenn.1978).
The appellant will suffer no “irreparable injury”, there will be no “needless, expensive, and protracted litigation”, and there is no “need to develop a uniform body of law”. Thus, none of the grounds listed in Rule 9(a) applies. Interlocutory appeal is inappropriate under these circumstances.
Permission to appeal is denied.