State v. Holder

634 S.W.2d 284, 1982 Tenn. Crim. App. LEXIS 425

• Court: Court of Criminal Appeals of Tennessee
• Decided: March 24, 1982
• Status: Published

Opinion

OPINION

BYERS, Judge.

On January 23, 1980, the defendant was convicted of possession of a C. B. radio with altered serial numbers and of possession of gaming devices.

On February 20,1980, the defendant filed a motion for a judgment of acquittal, a motion for a new trial and a motion for a suspended sentence. On February 2, 1981, the trial court heard the motion for a suspended sentence, granted the motion, and placed the defendant on probation. The motion for judgment of acquittal and the motion for a new trial were not argued by counsel for the defendant nor considered by the court. So far as the record reflects, these motions remained on the court docket.

On April 20, 1981, the defendant’s suspended sentence was revoked, and he was ordered to serve the sentence for the offense on which he was convicted.

The defendant then sought to have the motion for a new trial considered. The trial judge found the defendant had waived or abandoned his motion for a new trial.

We affirm the judgment of the trial judge and dismiss the appeal.

The right to pursue a motion for a new trial “may be intentionally abandoned and effectively waived under appropriate circumstances.” Commonwealth ex rel. Shadd v. Myers, 223 A.2d 296, 301 (Penn.1966).

Had the defendant not violated the terms of his probation and remained under the suspended sentence, we are confident the defendant would have continued to refrain from seeking a ruling on the motion.

On the record before us, we find the defendant accepted the benefits of probation without the intent to appeal his conviction and waived the right to proceed on the motion for acquittal and motion for new trial. See Reeder v. State, 556 S.W.2d 485 (Mo.App.1977).

O’BRIEN and DAUGHTREY, JJ., concur.