State v. Cleotha Nash

• Court: Court of Criminal Appeals of Tennessee
• Decided: February 18, 1998
• Docket: 02C01-9701-CC-00026
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

JANUARY 1998 SESSION FILED February 18, 1998

Cecil Crowson, Jr. STATE OF TENNESSEE, ) Appellate C ourt Clerk ) NO. 02C01-9701-CC-00026 Appellee, ) ) LAUDERDALE COUNTY VS. ) ) HON. JOSEPH H. WALKER, CLEOTHA NASH, ) JUDGE ) Appellant. ) (Reckless Endangerment)

FOR THE APPELLANT: FOR THE APPELLEE:

GARY F. ANTRICAN (On Appeal) JOHN KNOX WALKUP District Public Defender Attorney General and Reporter

JULIE K. PILLOW (On Appeal) CLINTON J. MORGAN Assistant Public Defender Assistant Attorney General 118 E. Market Street Cordell Hull Building, 2nd Floor P.O. Box 700 425 Fifth Avenue North Somerville, TN 38068 Nashville, TN 37243-0493

BETH BROOKS (At Trial) ELIZABETH T. RICE 2298 S. Germantown Road District Attorney General Germantown, TN 38138-5951 MARK E. DAVIDSON Assistant District Attorney General 302 Market Street Somerville, TN 38068

OPINION FILED:

APPEAL DISMISSED

JOE G. RILEY, JUDGE OPINION

The defendant, Cleotha Nash, was convicted by a Lauderdale County jury

of reckless endangerment, a Class E felony. The trial court sentenced him to four

(4) years incarceration. Defendant raises three issues for our consideration;1

however, because his notice of appeal was untimely filed, we dismiss this appeal.

I.

In January 1996, a Lauderdale County jury found defendant guilty of one (1)

count of reckless endangerment, a Class E felony. On February 20, 1996, the trial

court sentenced defendant to four (4) years as a Range II, Multiple Offender. The

judgment reflecting defendant’s conviction and sentence was entered on that same

date. It is undisputed that trial counsel never filed a motion for new trial, notice of

appeal or waiver of appeal.

On August 13, 1996, defendant filed a pro se “Motion for Transcript of Prior

Trial.” In this motion, defendant requested a transcript of his trial, at state expense,

“for use in accessing the Court in the form of Post [C]onviction Relief.” On August

29, the trial court entered an order granting defendant’s request for a transcript.

The trial court acknowledged that no motion for new trial or notice of appeal had

been filed. The court then determined that the motion should be treated as a

petition for post-conviction relief and appointed counsel. The court further ordered

that defendant be allowed to amend the petition “within thirty days of the entry of the

preliminary order.”

On November 7, 1996, approximately seventy (70) days subsequent to the

trial court’s order, appointed counsel filed a notice of appeal of the original

conviction and sentence, “requesting the court to allow this late filing in the interest

of justice.”

1 Specifically, he asserts: (1) the trial court erred in denying his motion for judgment of acquittal; (2) the evidence is insufficient to sustain his conviction; and (3) the trial court erred in sentencing him to the maximum within Range II for this Class E felony.

2 II.

Rule 4(a) of the Tennessee Rules of Appellate Procedure provides, in

pertinent part:

the notice of appeal required by Rule 3 shall be filed with and received by the clerk of the trial court within 30 days after the date of entry of the judgment appealed from; however, in all criminal cases the “notice of appeal” document is not jurisdictional and the filing of such document may be waived in the interest of justice. The appropriate appellate court shall be the court that determines whether such a waiver is in the interest of justice.

Therefore, it is within this Court’s discretion as to whether the timely filing of notice

of appeal is waived. This we decline to do.

The record in this case is devoid of any reason as to why justice requires that

the timely notice requirement should be waived. Nor does defendant provide this

Court with any explanation for the failure to timely file notice of appeal other than

the bare assertion that “[t]rial counsel, Beth Brooks, did not file a motion for a new

trial. No notice of appeal was filed by trial counsel.” Such an assertion, without

more, is insufficient to persuade us to waive the timely filing requirement.

Moreover, after reviewing the issues, briefs and the record before this Court,

we conclude that justice does not require us to waive the thirty (30) day filing

requirement of Tenn. R. App. P. 4(a).

Accordingly, defendant’s appeal is dismissed.

JOE G. RILEY, JUDGE

CONCUR:

JOE B. JONES, PRESIDING JUDGE

PAUL G. SUMMERS, JUDGE