State v. Maney

• Court: Court of Criminal Appeals of Tennessee
• Decided: March 23, 1998
• Docket: 03C01-9704-CR-00135
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED JANUARY, 1998 SESSION March 23, 1998

Cecil Crowson, Jr. Appe llate Court C lerk THOMAS CALVIN MANEY, JR. ) C.C.A. NO. 03C01-9704-CR-00135 ) Appellant, ) BRADLEY COUNTY ) v. ) Hon. R. Stephen Bebb, Judge ) STATE OF TENNESSEE, ) ) (Post-Conviction) Appellee. )

FOR THE APPELLANT: FOR THE APPELLEE:

THOMAS CALVIN MANEY, JR. JOHN KNOX WALKUP N.E.C.C. #216056, Pro se Attorney General & Reporter P.O. Box 5000 Mountain City, TN 37683 SANDY COPOUS PATRICK Assistant Attorney General 2d Floor Cordell Hull Building 425 Fifth Ave. North Nashville, TN 37243-0943

JERRY N. ESTES District Attorney General 130 Washington Ave. P.O. Box 647 Athens, TN 37371-0647

OPINION FILED: ___________________

APPEAL DISMISSED

CURW OOD WITT, JUDGE OPINION

Thom Calvin M as aney, the petitioner, appeals the Bradley County Criminal

Court’s dismissal of his post-conviction petition on February 29, 1996. From the scant record

before us we learn that the petitioner pleaded guilty on March 11, 1994 and was sentenced to

serve eleven months and twenty-nine days.1 The petitioner filed a petition for post-conviction

relief on July 7, 1994 alleging ineffective assistance of counsel, prosecutorial misconduct, and

falsification of official documents. The trial court dismissed the petition by a written order dated

February 29, 1996 because the petitioner failed to appear at a hearing scheduled two days earlier.

The order was not filed until June 3, 1996. According to a letter in the record, the petitioner filed a

motion to reconsider the dismissal on February 3, 1997. The record contains no copy of the

motion. He filed a notice of appeal on March 24, 1997.

We are unable to reach the merits of this appeal for several reasons. First, the

petitioner filed his notice of appeal more than nine months after the order dismissing his petition

was filed on June 3, 1996. The rules of appellate procedure require that a notice of appeal be filed

within thirty days after the entry of the judgm fromwhich the defendant is appealing. Tenn. R. ent

App. P. 4(a). Although this court may waive the tim filing of the notice of appeal when the ely

interests of justice require pursuant to Rules 3(e) and 4(a) of the Tennessee Rules of Appellate

Procedure, this case does not warrant such a waiver. Moreover, even if this court were to waive

the timely filing of the notice of appeal, the outcom would not change. The official record is totally e

inadequate. It does not contain the proceedings and documents that are relevant to the issues;

therefore, this court is precluded fromconsidering them. State v. Draper, 800 S.W.2d 489, 493

(Tenn. Crim. App. 1990). In the absence of an adequate record on appeal, this court must

presume that the trial court’s rulings were supported by sufficient evidence. Tenn. R. App. P.

24(b); State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). Lastly, the petitioner’s brief

1 The official record consists of a technical record containing 12 pages. Basically, the record contains the post-conviction petition, the order of dismissal, the notice of appeal, and three letters written by the petitioner to the trial court clerk. The petitioner included a copy of the judgment form in his brief. However, before we may consider an exhibit or attachment, it must have been received into evidence, m arked by the trial judge, clerk, or court reporter, and included in the record transmitted to this court. Tenn. R. App. P. 24(f); State v. Bennett, 798 S.W.2d 783, 789 (Tenn. Crim. App. 1990).

2 presents no arguments that would require us to set aside the trial court’s order dismissing his

petition due to his failure to appear. In fact, the brief never addresses the order fromwhich the

petitioner is appealing. The brief speaks only to the issues raised in the petition, issues which the

trial court has never resolved. Rule 10(b) of the Rules of the Court of Criminal Appeals provides

that issues unsupported by argum and citation to legal authority are waived. ent

For the reasons given above, the appeal in this case is dismissed for failure to file

a timely notice of appeal pursuant to Rule 3(e) of the Tennessee Rules of Appellate Procedure.

__________________________ CUR OD W Judge WO ITT,

______________________________ GARY R. WADE, Judge

______________________________ JOSEPH M. TIPTON, Judge