State v. Davis , 3 Tenn. Crim. App. 625 ( 1970 )

WALKER, Presiding Judge

(concurring).

This petitioner is entitled either to a retrial or to be resentenced. A resentence will accomplish the appeal of which he claims he was unconstitutionally denied.

The record before us shows that the court reporter prepared a bill of exceptions but did not file it because the time granted by the court had expired.

By the procedure followed in People v. Hairston, supra, the judgment of conviction was vacated and the defendant remanded to the trial court for reimposition of the sentence upon the verdict already had. The defendant then had the opportunity of prosecuting and perfecting an appeal, since the time for taking such appeal would date from the rendition of the new judgment.

Under T.C.A. 40-3818 the court may vacate and set aside the judgment and enter an appropriate order and any supplementary orders necessary and proper. The appropriate order in this case is that the defendant be resentenced.