State v. Gaylen Scott

• Court: Court of Criminal Appeals of Tennessee
• Decided: June 27, 1997
• Docket: 02C01-9707-CC-00244
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

APRIL 1998 SESSION FILED May 1, 1998

Cecil Crowson, Jr. STATE OF TENNESSEE, ) Appellate C ourt Clerk ) C.C.A. No. 02C01-9707-CC-00244 Appellee, ) ) vs. ) HARDIN COUNTY No. 7480 ) ) GAYLEN AUBREA SCOTT ) AFFIRMED- RULE 20 ) Appellant. )

ORDER

The defendant, Gaylen Aubrea Scott, was convicted by a jury of three (3)

counts of driving without a valid driver’s license and two (2) counts of violating

the vehicle registration law. He was sentenced to thirty (30) days for each of the

driver’s license violations. One (1) of the convictions was ordered to be served

consecutively for an effective sentence of sixty (60) days. The sentences were

suspended, and the defendant was placed on unsupervised probation. No

sentence was imposed for the registration law violations.

The defendant contends, inter alia, that the state failed to prove he must

be licensed to drive a car; that because he was not engaged in a commercial

activity when stopped, the state was “ultra vires” in arresting him; and that his

arrest was a ploy by the state to collect money from him in violation of various

sections of both the United States and Tennessee Constitutions.

The defendant was sentenced on June 4, 1997. He filed a notice of

appeal on June 27, 1997. No motion for new trial was filed. A defendant

wishing to appeal a conviction after a jury trial should file a written motion for new

trial within thirty (30) days of the date the order of sentence was entered. Tenn.

R. Crim. P. 33 (b). The thirty (30) day provision is jurisdictional, and an untimely

motion is a nullity. State v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997). The trial court, cognizant of the defendant’s intention to proceed on appeal pro se,

specifically explained to the defendant that he must file a motion for new trial

within thirty (30) days in order to appeal to this Court. The defendant indicated

that he understood. The defendant filed a notice of appeal, but not a motion for

new trial. When a motion for new trial is not timely made, this Court may only

consider issues which would result in the dismissal of the charges, sufficiency of

the evidence and sentencing. State v. Williams, 675 S.W.2d 499, 501 (Tenn.

Crim. App. 1984). This Court may also consider plain errors affecting the

substantial rights of the defendant if review is necessary to do substantial justice.

State v. Maynard, 629 S.W.2d 911, 913 (Tenn. Crim. App. 1981).

The defendant has also failed to make appropriate references to the

record as required by Tenn. R. App. P. 27 (g) and Rule 10 (b) of the Tennessee

Court of Criminal Appeals. Accordingly, the issues are waived. State v. Turner,

919 S.W.2d 346, 358 (Tenn. Crim. App. 1995); State v. Killebrew, 760 S.W.2d

228, 233 (Tenn. Crim. App. 1988).

Evidence presented to the jury was clearly sufficient to support the

convictions. Officers testified that defendant was checked on three (3) separate

occasions and was unable to produce a driver’s license. On two (2) of those

occasions, the vehicle being driven by the defendant had an expired registration.

After a careful review of the record, we find no error committed by the trial

court regarding the convictions or sentencing.

It is, therefore, ordered that the judgment of the trial court is AFFIRMED in

accordance with Rule 20, Rules of the Tennessee Court of Criminal Appeals. As

it appears the defendant is indigent, costs of appeal are taxed to the state.

_________________________ JOE G. RILEY, JUDGE

2 CONCUR:

_________________________ DAVID G. HAYES, JUDGE

_________________________ WILLIAM M. BARKER, JUDGE