State ex rel. Potter v. Bomar

• Decision Date: 08 February 1962
• Citation: 13 McCanless 577,354 S.W.2d 767,209 Tenn. 577
• Parties: , 209 Tenn. 577 STATE of Tennessee ex rel. James D. POTTER, Petitioner, v. Lynn BOMAR, Warden, Respondent.
• Court: Tennessee Supreme Court

Page 767

354 S.W.2d 767

13 McCanless 577, 209 Tenn. 577

STATE of Tennessee ex rel. James D. POTTER, Petitioner, v. Lynn BOMAR, Warden, Respondent.

Supreme Court of Tennessee.

Feb. 8, 1962.

James D. Potter, petitioner, pro se.

Henry C. Foutch, Asst. Atty. Gen., Nashville, for respondent.

WHITE, Justice.

Plaintiff in error, James D. Potter, is now confined in the Tennessee State Penitentiary under a conviction for the crime of simple robbery from the Criminal Court of Johnson County, Tennessee. He filed his petition for a writ of habeas corpus in the Criminal Court for Davidson County, Tennessee, and upon the hearing thereon on the 27th day of January, 1961, the Court entered an order dismissing and denying the petition and allowed the defendant a period of thirty days in which to perfect and appeal to this Court. George P. Linebaugh, Jr., an attorney appointed by the Court to represent the petitioner, James D. Potter, in his hearing before the trial court, was released from any further duty or obligation to continue to represent the petitioner, James D. Potter, he, in the opinion of the court, having fully discharged his duty to the court and to the petitioner by representing him in the trial court.

A motion to dismiss the appeal of the said James D. Potter was filed on behalf of the defendant in this Court on the grounds that (1) no assignments of error or brief in support thereof had been filed to comply with Rules 14 and 15 of this Court and (2) that said Potter had failed or neglected to file a cost bond or take the pauper's oath in lieu of executing a cost bond as required by statute. The motion was overruled in an opinion written by Mr. Justice Swepston for the Court. A petition to rehear was then filed on behalf of the defendant in error, Lynn Bomar, the Court wrote another opinion in which it was held that it was not necessary for one who is confined in the penitentiary to execute a pauper's oath or make an appeal bond in a case of this kind. T.C.A. § 23-1836.

The Court then held that the second ground of the motion to dismiss was not well taken. In regard to the first ground of the motion the Court held that upon consideration of Potter's confinement in the penitentiary under the judgment of conviction aforesaid and since he was not represented by counsel, the Court allowed him 15 days within which to file his assignments of error and brief; otherwise the appeal would be dismissed.

A document designated 'Assignments of Error, Brief and Argument' was filed in person by James D. Potter and we shall consider this as compliance with the requirement of the opinion on the petition to rehear.

In his petition and in the assignments of error filed by James D. Potter he makes a collateral attack upon the judgment rendered against him upon his original trial by saying among other things that he was an indigent person at the time of his trial, and as such he was entitled to have a transcript of the testimony furnished him by the State in accordance with Section 40-2010, T.C.A., said section being in the following words and figures:

'APPOINTMENT OF REPORTER IN CAPITAL CASES.--Whenever any party shall be indicted and arraigned upon any indictment or presentment on which the death penalty may be inflicted and the district attorney-general in charge of the prosecution shall make it known that he intends to insist upon the inflicition of capital punishment and such defendant be financially unable to employ counsel and the trial court be required to appoint counsel for such defendant, the trial judge then after making due inquiry and investigation as to the financial condition of the accused may in his discretion appoint a capable court reporter to report such trial, such court reporter to be paid the prevailing rates therefor in such community; provided that the entire amount to be paid to such reporter for any one case shall not exceed two hundred fifty dollars ($250). The sums directed to be paid to such court reporter shall be taxed as a part of the costs and payable in the same way as other costs of such prosecution.'

To the petition the defendant filed an answer or response in which he sets out that the petitioner was represented by counsel of his own choice, to-wit, Edward S. Brown and O. H. Wilson, both being able and competent lawyers of the Johnson City, Tennessee Bar. The answer further recites that the attorneys representing the petitioner filed a motion for a new trial on his behalf which was overruled on the...