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Jordan v. State

Court of Criminal Appeals of Tennessee, Nashville

October 31, 2014

JERMAINE CARLTON JORDAN
v.
STATE OF TENNESSEE

Assigned on Briefs September 9, 2014

Appeal from the Criminal Court for Davidson County No. 2006-C-1984 J. Randall Wyatt, Jr., Judge

Jermaine Carlton Jordan, pro se, Clifton, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Victor S. Johnson III, District Attorney General; and Christopher Buford, Assistant District Attorney General, for the appellee, State of Tennessee.

Timothy L. Easter, J., delivered the opinion of the Court, in which James Curwood Witt, Jr. and D. Kelly Thomas, Jr., JJ., joined.

OPINION

TIMOTHY L. EASTER, JUDGE

Factual and Procedural Background

On August 4, 2006, Petitioner was indicted by the Davidson County Grand Jury for attempted first degree murder, especially aggravated kidnapping, aggravated kidnapping, and two counts of aggravated assault. On April 27, 2007, Petitioner pled guilty to attempted first degree murder and especially aggravated kidnapping and received a total effective sentence of seventeen years, to be served at 100 percent. There was no direct appeal.

On June 12, 2007, Petitioner filed a pro se petition for post-conviction relief. After the appointment of counsel, Petitioner filed an amended petition on September 12, 2007. Petitioner argued that he received ineffective assistance of counsel based on trial counsel's failure to adequately interview and investigate witnesses and that his plea was involuntary and unknowing because counsel erroneously advised him that he would be eligible for parole. After a hearing, the post-conviction court filed a detailed written order denying relief because Petitioner failed to prove his claims by clear and convincing evidence. Petitioner appealed, and this Court affirmed the judgment of the post-conviction court. Jermaine Jordan v. State, No. M2008-00623-CCA-R3-PC, 2009 WL 1272277 (Tenn. Crim. App. May 6, 2009), perm. app. denied (Tenn. Oct. 19, 2009).

On May 17, 2013, Petitioner filed a petition for writ of error coram nobis, an amended petition for writ of error coram nobis, and several motions for production of evidence and transcripts. On September 17, 2013, the coram nobis court entered an order summarily dismissing the petition, finding that the petition was time-barred and failed on its face to allege valid grounds for coram nobis relief. Petitioner filed a motion to reconsider on October 11, 2013. The coram nobis court denied that motion on October 14, 2013. Petitioner filed a notice of appeal with this Court on October 29, 2013.

Analysis

As an initial matter, the State contends that this appeal should be dismissed because Petitioner did not timely file his notice of appeal. Under Rule 4(a) of the Tennessee Rules of Appellate Procedure, the notice of appeal must be filed "within 30 days after the date of entry of the judgment appealed from." This Court has previously noted that a motion to rehear or reconsider is not authorized by the Tennessee Rules of Criminal Procedure and, therefore, does not "suspend the running of the appeal time from the entry of the judgment." State v. Lock, 839 S.W.2d 436, 440 (Tenn. Crim. App. 1992) (citing State v. Bilbrey, 816 S.W.2d 71, 74 (Tenn. Crim. App. 1991)); see State v. Turco, 108 S.W.3d 244, 245 n.2 (Tenn. 2003). However, Rule 4(a) also states that "in all criminal cases the 'notice of appeal' document is not jurisdictional and the filing of such document may be waived in the interest of justice." Therefore, we will excuse Petitioner's untimely filing of his notice of appeal and consider the merits of his contention that due process considerations require tolling the statute of limitations for filing a petition for writ of error coram nobis.

Relief by petition for writ of error coram nobis is provided for in Tennessee Code Annotated section 40-26-105. That statute provides, in pertinent part:

Upon a showing by the defendant that the defendant was without fault in failing to present certain evidence at the proper time, a writ of error coram nobis will lie for subsequently or newly discovered evidence relating to matters which were litigated at the trial if the judge determines that such evidence ...

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