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Posted by: Tanja Trezise on Feb 6, 2013

Court: TN Court of Criminal Appeals

Attorneys 1:

Elaine Heard, Nashville, Tennessee, for the appellant, Frederick Alexander Avery.

Attorneys 2:

Robert E. Cooper, Jr., Attorney General and Reporter, Meredith DeVault, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): OGLE

The petitioner, Frederick Alexander Avery, was convicted by a jury in the Davidson County Criminal Court of aggravated robbery, especially aggravated robbery, reckless endangerment, and attempted second degree murder. As a violent offender, he received a total effective sentence of life without the possibility of parole. Subsequently, the petitioner filed a petition for post-conviction relief, alleging that his trial counsel was ineffective for failing to file a motion for severance and a motion for a speedy trial and for advising the petitioner to not testify at trial. The post-conviction court denied relief, holding that the petitioner failed to establish that counsel was ineffective. However, because trial counsel had miscalculated the date for filing an appeal to the supreme court, the post-conviction court granted the petitioner a Rule 11 delayed appeal. See Tenn. S. Ct. R. 28, § 9(D)(1)(b). The petitioner appeals the denial of post-conviction relief based on his ineffective assistance of counsel claims. Upon review, we conclude that the post-conviction court properly granted the petitioner a delayed appeal. However, the post-conviction court erred by not staying the post-conviction proceeding pending the disposition of the delayed appeal.