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Posted by: Stacey Shrader Joslin on Dec 8, 2014

Court: TN Court of Criminal Appeals

Attorneys 1:

J. Liddell Kirk, Knoxville, Tennessee, for the petitioner, Jerry Rommell Gray.

Attorneys 2:

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Mike Flynn, District Attorney General; and Kevin Allen, Assistant District Attorney General, for the respondent, State of Tennessee.

Judge(s): EASTER

Petitioner, Jerry Rommell Gray, was convicted in Knox County of felony murder, attempted especially aggravated robbery, and attempted aggravated robbery. Trial counsel filed a premature notice of appeal and failed to file a timely motion for new trial. On direct appeal, this Court reviewed Petitioner’s issues, other than sufficiency of the evidence, for plain error. State v. Jerry Rommell Gray, No. E2010-00637-CCA-R3-CD, 2012 WL 2870264, at *1 (Tenn. Crim. App. July 13, 2012). Petitioner’s convictions were affirmed. Petitioner subsequently filed an untimely petition for post-conviction relief in which he sought a delayed appeal based on ineffective assistance of counsel, specifically alleging that trial counsel’s failure to file a timely motion for new trial was presumptively prejudicial. Without ruling on the timeliness of the petition, the post-conviction court determined Petitioner was entitled to a delayed appeal but instructed Petitioner that he was not permitted to file an additional motion for new trial. After a review of the record and authorities, we reverse the decision of the post-conviction court and remand the matter for a hearing, during which the post-conviction court should first determine whether the statute of limitations for postconviction petitions should be tolled. If the post-conviction court determines that the statute should be tolled for due process considerations, the court should then determine if Petitioner received ineffective assistance of counsel and is entitled to a delayed appeal under Tennessee Code annotated section 40-30-113, which authorizes the filing of a motion for new trial when no motion for new trial was filed in the original proceeding. Consequently, the judgment of the post-conviction court is reversed and remanded.