E. PRACTICE ON APPEAL
(a) Parties Previously Permitted to Proceed as Indigent Persons in the Trial Court. A party who has been permitted to proceed in an action in the trial court as an indigent person (which includes a person who has been permitted to proceed there as one who is financially unable to obtain adequate defense in a criminal case) may proceed on appeal as an indigent person unless, before or after the appeal is taken, the trial court finds the party is not entitled so to proceed, in which event the trial court shall state in writing the reasons for such finding.
(b) Leave to Proceed as an Indigent Person on Appeal. Except as provided in (a), a party to an action in the trial court who desires to proceed as an indigent person on appeal shall seek leave so to proceed in the trial court. If leave to proceed as an indigent person is granted, the party may proceed without further application in the appellate court and without prepayment of fees or costs in either court or the giving of security therefor. If leave is denied, the trial court shall state in writing the reasons for the denial.
(c) Subsequent Proceedings on Denial of Leave to Proceed as an Indigent Person. If leave to proceed as an indigent person is denied, or the trial court finds that the party is not entitled so to proceed, the clerk of the trial court shall forthwith serve notice of such action. A motion for leave to proceed as an indigent person may be filed in the appellate court within 30 days after service of notice of the action of the trial court. The motion shall be accompanied by copies of the papers filed in the trial court seeking leave to proceed as an indigent person and by a copy of the statement of reasons given by the trial court for its action.
(d) Motion in an Appellate Court for Leave to Proceed as an Indigent Person on Appeal. If a party to an action on appeal is unable to bear the expenses of the appeal due to poverty, but that party has not sought leave from the trial court to proceed on appeal as an indigent person, or that party becomes indigent during the appeal, the party may seek leave from the appellate court to proceed on appeal as an indigent person. A motion for leave to proceed on appeal as an indigent person filed in the appellate court shall be accompanied by a Uniform Affidavit of Indigency as set forth in Supreme Court Rule 13 (criminal cases) or by a Uniform Civil Affidavit of Indigency as set forth in Supreme Court Rule 29 (civil cases). If leave to proceed as an indigent person is denied by an intermediate appellate court, the appellate court shall state in writing the reasons for the denial.
(e) Subsequent Proceedings on Denial by an Intermediate Appellate Court of Leave to Proceed as an Indigent Person on Appeal. If leave to proceed as an indigent person is denied by an intermediate appellate court, or an intermediate appellate court finds that the party is not entitled so to proceed, the clerk of the appellate courts shall forthwith serve notice of such action. A motion for leave to proceed as an indigent person may thereafter be filed in the Supreme Court within 15 days after service of notice of the action of the intermediate appellate court. The motion shall be accompanied by copies of any papers filed in the trial and appellate courts seeking leave to proceed as an indigent person and by a copy of the statement of reasons given by the trial and intermediate appellate courts for their actions.
(f) Appointment of Counsel in Criminal Actions. In a criminal action, on overruling a motion for a new trial or in arrest of judgment, whichever is later, the trial court shall advise the defendant and appoint counsel on appeal as provided in rule 37(c) of the Tennessee Rules of Criminal Procedure.
[Amended effective July 9, 1990; amended December 29, 2006; effective July 1, 2006; and amended by order filed December 18, 2012, effective July 1, 2013.]
Advisory Commission Comments.
Authority to allow a person to proceed on appeal in a criminal case with appointed counsel is found in Tenn. Code Ann. § 40-14-203. See also, Tenn. S. Ct. R. 13 (applying to criminal cases and to specified civil cases). A poor person may also obtain a transcript in criminal actions without payment of the reporter's fee pursuant to Tenn. Code Ann. § 40-14-312. Under subdivision (a) a person who has been permitted to proceed as a poor person in the trial court may proceed as a poor person on appeal without a redetermination of indigency, unless the trial court finds that the party is not entitled so to proceed. If a person has not previously been permitted to proceed as a poor person, he or she may seek leave from the trial court to do so on appeal pursuant to subdivision (b). If leave to proceed as a poor person on appeal is granted, there is no requirement that leave be sought from the appellate court.
Whenever the trial court denies leave to appeal as a poor person, the court must state in writing the reasons for its denial. Review of the trial court's denial may be sought in the appellate court within 30 days after service of notice of the action of the trial court. Review in the appellate court is by way of motion, rather than by way of an appeal. This simple and expeditious procedure seems clearly preferable to an appeal.
Compensation and reimbursement of attorneys who appeal criminal cases on behalf of poor persons is permitted by Tenn. Code Ann. § 40-14-207. See also, Tenn. S. Ct. R. 13 (applying to criminal cases and to specified civil cases).
Advisory Commission Comment [1990].
The exception in subdivision (b) referring to subdivision (a) is to make it clear that a person already proceeding as a pauper through the trial need not obtain additional leave to proceed under the pauper's oath on appeal.
Advisory Commission Comment [ 2006].
Prior to this amendment, the rule authorized trial courts to determine whether a party should be permitted to proceed on appeal as a poor person, but the Rule did not expressly authorize an appellate court to do so. In some cases, however, the issue of a party’s financial condition does not arise until after the notice of appeal is filed. New paragraphs (d) and (e) give the appellate courts the authority to determine whether an appealing party should be permitted to proceed on appeal as a poor person; it should be noted, however, that the new paragraphs do not preclude the appellate court from remanding the matter to the trial court for a hearing on the issue, if necessary. The term "poor person" as used in the Rule is intended to refer to persons who are indigent for purposes of Rule 13 (appointment, qualifications and compensation of counsel for indigent defendants), or Rule 29 (uniform civil affidavit of indigency), Tenn. S. Ct. R., or any other provision of law.
Advisory Commission Comment [ 2013].
The rule was amended to replace the term “poor” person(s) with the term “indigent” person(s). The amendment was not intended to change the meaning or application of the rule.