Tennessee § 40-26-105 - Writ of error coram nobis.

§ 40-26-105. Writ of error coram nobis.

There is made available to convicted defendants in criminal cases a proceeding in the nature of a writ of error coram nobis, to be governed by the same rules and procedure applicable to the writ of error coram nobis in civil cases, except insofar as inconsistent herewith. Notice of the suing out of the writ shall be served on the district attorney general. No judge shall have authority to order the writ to operate as a supersedeas. The court shall have authority to order the person having custody of the petitioner to produce the petitioner in court for the hearing of the proceeding. The relief obtainable by this proceeding shall be confined to errors dehors the record and to matters that were not or could not have been litigated on the trial of the case, on a motion for a new trial, on appeal in the nature of a writ of error, on writ of error, or in a habeas corpus proceeding. Upon a showing by the defendant that the defendant was without fault in failing to present certain evidence at the proper time, a writ of error coram nobis will lie for subsequently or newly discovered evidence relating to matters which were litigated at the trial if the judge determines that such evidence may have resulted in a different judgment, had it been presented at the trial. The issue shall be tried by the court without the intervention of a jury, and if the decision be in favor of the petitioner, the judgment complained of shall be set aside and the defendant shall be granted a new trial in that cause. In the event a new trial is granted, the court may, in its discretion, admit the petitioner to bail; provided, that the offense is bailable. If not admitted to bail, the petitioner shall be confined in the county jail to await trial. The petitioner or the state may pray an appeal in the nature of a writ of error to the court of criminal appeals from the final judgment in this proceeding. Acts 1955, ch. 166, § 1; 1978, ch. 738, § 1; modified; T.C.A., § 40-3411; Acts 2010, ch. 652, § 1. Compiler's Notes. This section may be affected by Tenn. R. Crim. P. 37. Cross-References. Writ of error coram nobis in civil cases, title 27, ch. 7. Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 22.140, 33.74. Tennessee Jurisprudence, 2 Tenn. Juris., Appeal and Error, § 9; 16 Tenn. Juris., Judgments and Decrees, §§ 52, 54; 20 Tenn. Juris., New Trials, § 6. Law Reviews. Criminal Law in Tennessee in 1976-1977 — A Critical Survey, IV. Procedure (Joseph G. Cook), 45 Tenn. L. Rev. 20.