All Content

Posted by: Tanja Trezise on May 29, 2013

Court: TN Court of Criminal Appeals

Attorneys 1:

C. Brad Sproles, Kingsport, Tennesssee, for the Appellant, Robert Otis Simerly.

Attorneys 2:

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; Tony Clark, District Attorney General; and Ken Baldwin, Assistant District Attorney General, for the Appellee, State of Tennessee.


In 2004, a Johnson County jury convicted the Petitioner, Robert Otis Simerly, of first degree felony murder, and the jury sentenced him to life in prison with the possibility of parole. This Court affirmed his conviction on appeal. State v. Robert Simerly, No. E2002-02626- CCA-R3-CD, 2004 WL 443294, at *1 (Tenn. Crim. App., at Knoxville, Mar 11, 2004), perm. app. denied (Tenn. Oct. 4, 2004). The Petitioner filed a petition for post-conviction relief and a motion for recusal, which the post-conviction court denied after a hearing. On appeal, the Petitioner contends that the post-conviction court erred when it denied the Petitioner’s motion for recusal because, during the trial, the judge improperly reminded the prosecutor to establish venue. The State counters first that the appeal was untimely filed. The State further avers that the Petitioner is not entitled to relief based upon the trial court’s failure to recuse itself. After a thorough review of the record and applicable authorities, we conclude that, pursuant to the circumstances of this case, the Petitioner’s petition should not be dismissed based on his failure to timely file a notice of appeal. We further conclude that he is not entitled to post-conviction relief based upon the merits of his claim. The postconviction court’s judgment is, therefore, affirmed.