Demetrice A. Smith v. State of Tennessee ( 2020 )

08/19/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs May 19, 2020
DEMETRICE A. SMITH v. STATE OF TENNESSEE
Appeal from the Criminal Court for Knox County
No. 113178 PC Bob R. McGee, Judge
No. E2019-01689-CCA-R3-PC
The petitioner, Demetrice A. Smith, appeals the denial of his petition for post-conviction
relief, which petition challenged his 2017 guilty-pleaded convictions of possession of a
firearm after having been convicted of a felony drug offense and failure to appear, alleging
that his guilty pleas were unknowing and involuntary because he was deprived of the
effective assistance of counsel. Because no final order issued in the court below, we lack
jurisdiction to hear this appeal. Consequently, the appeal is dismissed, and the case is
remanded to the post-conviction court for a new evidentiary hearing.
Tenn. R. App. P. 3; Judgment of the Criminal Court Dismissed and Remanded
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN, and J. ROSS DYER, JJ., joined.
J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Demetrice A. Smith.
Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Assistant
Attorney General; Charme P. Allen, District Attorney General; and TaKisha Fitzgerald,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
In June 2017, the petitioner pleaded guilty to one count each of possession
of a firearm after having been convicted of a felony drug offense and failure to appear, and
the State dismissed two other charges. The agreed sentence was eight years for the firearm
conviction and four years for the failure to appear conviction for a total effective sentence
of 12-years’ incarceration to be served consecutively to a prior sentence for a parole
violation.
The petitioner filed a timely pro se petition for post-conviction relief, and,
after the appointment of counsel, he filed an amended petition, alleging that his guilty pleas
were unknowing and involuntary because he was deprived of the effective assistance of
counsel and did not understand his rights.
The post-conviction court conducted an evidentiary hearing in August 2019,
and the court announced an oral disposition, denying post-conviction relief. The record
indicates that a final written order was forthcoming, but no such order was included in the
record on appeal. After this court ordered the post-conviction court to supplement the
record with the final order, the post-conviction court clerk filed a notice that no final order
issued.
The Post-Conviction Procedure Act contemplates the filing of a final, written
order. See T.C.A. § 40-30-111(b) (“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, and shall state the findings of fact and conclusions of law with
regard to each ground.”); cf. State v. Byington, 284 S.W.3d 220 (Tenn. 2009) (holding that
a minute entry that states the trial court’s disposition is sufficient to confer jurisdiction so
long as neither party “moves the trial court to set forth findings of fact and conclusions of
law”). Because no final order issued below, we lack jurisdiction to hear this appeal.
Moreover, because the judge who presided over this case below has since retired, the
petitioner is entitled to a new evidentiary hearing on his post-conviction petition and a final,
written order, including findings of fact and conclusions of law.
Accordingly, the appeal is dismissed, and the case is remanded to the post-
conviction court for a new evidentiary hearing.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
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