Prevailing Party at PCR Must Ensure the Trial Court’s Order Actually Contains Findings of Fact

The Tennessee Court of Criminal Appeals has again admonished trial courts to include actual findings of fact for each and every ground relied upon and to make explicit credibility determinations. TCCA reminds trial courts that they “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 such ground. Tenn. Code Ann. § 40-30-111(b)....  [Making] findings of fact is mandatory. Donald Mays v. State, [2004 WL 2439255, *6 (Tenn. Crim. App. No. W2003-02761-CCA-R3-PC, Oct. 28, 2004)].”
TCCA further wrote, “We take this opportunity to point out again that a mere recitation or summary of the testimony of the witnesses at a hearing is not a ‘finding of fact’ as is required. Such a summary only sets forth the testimony, which is usually contradictory. A ‘finding of fact’ is the post-conviction court’s opportunity to fulfill its responsibility to sort through all the evidence and set forth what actually happened, as opposed to just each witness’s version of what happened. See Charles Bradford Stewart v. State, [2017 WL 2645651, *14 (Tenn. Crim. App. No. M2015-02449-CCA-R3-PC, June 20, 2017)], perm. app. denied (Tenn. Oct. 4, 2017).” Nabi v. State, 2018 WL 1721869, *6 (Tenn. Crim. App. Apr. 9, 2018).
Prevailing parties, either the state or petitioner, must ensure the trial court’s order complies with these requirements in order to facilitate appellate review of the decision.

Roger E. Nell is the District Public Defender at 19th Judicial District of Tennessee and current Chair-Elect of TBA's Criminal Justice Section.


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