RULE 37. APPEAL(a) Definition of an Appeal. Direct appellate review available as a matter of right is herein called an appeal and embraces appeals in the nature of writs of error and all other direct appeals in criminal cases.
(b) When an Appeal Lies. An appeal lies from any order or judgment in a criminal proceeding where the law provides for such appeal, and from any judgment of conviction:
(1) upon a plea of not guilty; or
(2) upon a plea of guilty or nolo contendere if:
(i) defendant entered into a plea agreement under Rule 11(e) but explicitly reserved with the consent of the State and of the court the right to appeal a certified question of law that is dispositive of the case; or
(ii) defendant seeks review of the sentence set and there was no plea agreement under Rule 11(e); or
(iii) the error(s) complained of were not waived as a matter of law by the plea of guilty or nolo contendere, or otherwise waived, and if such errors are apparent from the record of the proceedings already had; or
(iv) defendant explicitly reserved with the consent of the court the right to appeal a certified question of law that is dispositive of the case.
(c) Procedure for Advising Defendant of the Right to Appeal. Upon overruling a motion for a new trial, or a motion in arrest of judgment, whichever comes last, the trial judge shall advise the defendant of the right to appeal. In all cases, the trial judge from evidence or stipulation, shall determine for the record whether the defendant is indigent. If the defendant is indigent, the trial judge shall advise the defendant that, if he or she has not already retained counsel to prosecute on appeal, counsel will be appointed for that purpose and that a transcript or statement of the evidence will be furnished at state expense.
(d) Pursuing or Waiving an Appeal. Before the judgment upon the verdict of guilty becomes final, the defendant, in person or by counsel must file a notice of appeal in accordance with Rule 4(a), Tennessee Rules of Appellate Procedure. Counsel for all defendants, whether indigent or not, who have a right to appeal from a judgment of conviction, shall either timely file such notice of appeal or file with the clerk during the time within which the notice of appeal could have been filed, a written waiver of appeal signed by the defendant. Such waiver of the right of appeal shall clearly reflect that the defendant was aware of the right and voluntarily waived it. Such waiver shall be subscribed to by counsel of record for the defendant.
(e) Duties of Counsel Regarding Appeal. An attorney retained by the defendant to represent the defendant for the trial, and not upon appeal, shall timely advise the trial court of this fact at the hearing on the motion for new trial. Thereupon, such counsel will be permitted to withdraw as counsel of record. If the defendant is indigent, counsel shall be appointed to represent the defendant on appeal. If the defendant is not indigent, the defendant will be advised of the right of appeal and the time within which the notice of appeal must be filed. Retained counsel filing a notice of appeal, whether counsel be fully paid or not, shall represent the defendant on appeal, fully complying with all of the rules of the appellate court as to timely filing and appearances therein, and shall be allowed to withdraw as such counsel of record only for good cause and if application is made when such attorney is not delinquent in his or her duties.
[Amended effective August 22, 1984.]
This rule retains present law as to when a direct appeal lies, except for the significant provisions addressing appeals from pleas of guilty and nolo contendere. The first provision permits a plea bargain and an appeal in the context of a controlling question that needs answering, such as the constitutionality of a statute upon which a charge is grounded or the validity of the search upon which the State's case must be made, and should avoid the necessity for many trials. The second situation addressed was arguably always appealable, i.e., a sentence complaint where there was no agreement as to sentence. The third provision will apply in cases where guilt was not contested but the record clearly reflects an invalidating error, such as the clear denial of the right to counsel or a conviction under an invalid statute, wherein it would be judicially inefficient to require a post-conviction collateral attack when the error is apparent upon the face of the existing record.
It is very important that the trial court make a determination of indigency for the record at the outset of the appellate process. The defendant must also be advised of the pertinent rights. An appeal is never automatic, but must be prayed and granted. In all cases if an appeal is to be waived, this must be put on record.
A recurring problem for the Court of Criminal Appeals in the past was that of retained attorneys praying and obtaining an appeal and doing nothing further. This was met by Supplemental Rule 1, Court of Criminal Appeals, adopted May 24, 1976. This rule addresses the same problem. The trial court will determine indigency and appoint counsel to prosecute appeals in those cases; retained counsel who commence the appellate process are deemed to be fully retained to complete it.
See also Chapter 738, Public Acts 1978, effective March 28, 1978, dealing with the expanded circumstances under which the writ of error coram nobis may issue in criminal cases.
Comment to 1984 Amendment
The amendment to section (b) allows the defendant to appeal a certified question of law without the consent of the district attorney. This provision would only apply where there was no plea agreement and the defendant pled to the charge with the court imposing sentence.
Subsection (b) of the rule provides for two (2) circumstances in which a defendant may appeal a certified question of law that is dispositive of the case. See Tenn. R. Crim. P. 37(b)(i) and (iv). In order for an attorney to perfect an appeal under either of these two (2) sections, the attorney must be certain that the application fully comports with the requirements for this type of an appeal as set forth by the Tennessee Supreme Court in its decision of State v. Preston, 759 S.W.2d 647 (Tenn. 1988). Failure to follow the dictates of the Preston decision could result in the dismissal of the appeal.
The amendment to section (c) of the rule changes the language of the rule by eliminating the term "bill of exceptions" and substitutes the term "transcript or statement of the evidence" to comport with the new terminology contained in Rule 24, Tennessee Rules of Appellate Procedure.
The amendments to sections (d) and (e) of the rule eliminate reference to praying and being explicitly granted an appeal by the trial judge. The amendments conform this rule to Rule 4(a), Tennessee Rules of Appellate Procedure.