Opinion
11-22-2023
Marshall G. TATE v. STATE of Tennessee
Circuit Court for Franklin County, No. 20-CR-174
ORDER
PER CURIAM
Upon consideration of the application for permission to appeal of Marshall G. Tate, and the record before us, the application is summarily granted for the purpose of vacating the judgment of the Court of Criminal Appeals and remanding the case to the trial court for entry of a sufficient order resolving the petition for post-conviction relief.
[1] Tennessee Code Annotated section 40-30-111(b) states, "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." (emphasis added). See also Tenn. Sup. Ct. R. 28, § 9(A) ("The order shall contain specific findings of fact and conclusions of law relating to each issue presented."). The post-conviction court’s duty under the statute is mandatory.
[2] The order entered by the trial court summarily denied the petition but did not address the issues raised in the post-conviction petition as required by statute. The trial judge who originally held the hearing on the petition has since retired. Upon remand, the case should be assigned to a trial judge, and the trial court may enter findings based upon the record. If it is not possible for the trial court to make sufficient findings, the court may, in its discretion, hold a new hearing. Within sixty days of entry of the trial court’s amended order, the trial court clerk shall transmit to the Court of Criminal Appeals, as a supplemental record, an amended order resolving the petition for post-conviction relief. Upon the filing of the amended order, the Court of Criminal Appeals may order additional briefing, if appropriate, and thereafter shall reconsider the case.
This order is designated for publication pursuant to Tenn. Sup. Ct. R. 4.