IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON SEPTEMBER SESSION, 1999

MICHAEL JOE BOYD, *
* No. W1999-01981-CCA -R3-PC Appellant, *
* SHELBY COUNTY vs. *
* Hon. Carolyn Wade Blackett, Judge STATE OF TENN ESSEE, *
* (Post-Conviction) Appellee. *

For the Appellant : For the Appellee : Robert Hutton, Jr

. Paul G. Summers Glankler Brown PLLC Attorney General and Repor ter 100 Commerce Square - Suite 1 700 Memphis, TN 38103 Jennifer L. Smith Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493

William L. Gibbons District Attorney General John Campbell Asst. District Attor

ney General Criminal Justice Comple x - Suite 301 201 Poplar Avenue Memphis, TN 38103

ORDER FILED: APPEAL DISMISSED

David G. Hay

es, Judge 

# FILED

December 21, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk2 ORDER

This appeal presents the colla teral attack of a 1983 guilty plea to second degree murder. In March 1988, the appellant, Michael J oe Boyd, filed a pro se petition for post-convic

tion relief in the Criminal Court for Shelby County . The postconviction court summari ly dismissed the appell ant’s petition on February 12, 1990. Although no direct appeal of thi s order was taken, the appellant, on March 14, 1990, filed a “Motion to Reconside r and for Opportunity to Put on Testimonial Proof” in the post-conviction court. On December 7, 1998, the court denied the a ppellant’s motion on the ground that it had l ost jurisdiction ov er the matter. The appellant now appeals the post-convicti on court’s rulings of F ebruary 12, 1990, and December 7, 1998. Two issues are rai sed: I. Whether the post-conviction court erred by failing to hol d an evidentiary hearing

prior to disposing of the appellant’s petition. II. Whether the trial court failed to properly advise the appellant of his right against self-i ncrimination prior to ac cepting his guilty

plea to second degree murder.
The State argues that the appellant has waived his ri ght to appeal both the December 1998 order and the February 1990 order.

After re view of the argument s of both parties a nd the ap plicable law, we conclude that the appellant has waived his right to appeal the post-conviction court’s February 1990 order deny ing him post-conviction relief. Moreover, we conclude that this court does not have th e authority to revi ew the post-convict ion court’s order of December 1998. Accordingl y, this appeal is dismi ssed.

Procedural History

On March 1, 1988, the appellant filed nine petitions for post-c onviction relief. Although the appellant’s petitions encompass nine sep arate convictions, the only conviction challenge

d in this appeal is the appell ant’s 1983 guilty plea to second1 The a ppellant filed p etitions for p ost-con viction relief on March 1, 1988, c hallenging the validity of his October 8 , 1979, gui lty pleas to t

wo counts of peti

t larceny , one count of sexual batt

ery, and one count of attemp ted burglary; his April 7, 1983, guilty pleas to one count of fraudulent use of a credit car

d and one count of r

eceiving a stolen cr

edit card;and his October 17, 1983, guilty pl eas to possession of m arijuana, one count of petit larceny, and one count of second deg ree murder.

2 Although not

before thi s court in the present pr oceedings, we not

e that, on March 10, 1988, the appell ant was convict ed of felony

murder and two counts of robbery with a deadly weapon and was ulti mately senten ced to death by a Shelby Count

y jury . These convict ions and sentences were su bsequ ently affirm ed by the T ennes see Su prem e Cou rt. See State v. Boyd , 797 S.W.2d 589 (T enn. 199 0), cert. deni ed , 498 U.S. 1974 , 111 S.Ct . 800 (199 1). Ev idenc e of th e app ellant ’s convicti on for second degree murder, which is chal lenged in the case sub judice , was presented to the jury as evidence in support of the (i)(2) aggravator. 3 degree murder. According ly, our review is limited to this conv

iction. 1 Specific ally, the appellant alleges that hi s guilty plea to sec ond degree murder is inv alid because: (1)The Judg e failed to adv ise me in open

court, on th e record, of my right not to be compelled to incriminate myself if I had a trial. (2) The Judge failed to advi se me in open court, on the recor d, of the mandatory minimum and maximum penalt y provided by law

of the crime to wh ich I was cha rged and t o which I was p leading gu ilty. (3) The Judge failed to advi se me in open court, on the recor d, that he or the State may ask questions about the offense to which I pl ead guilty and that my ans

wers to these questio ns under oath, on the record, and in the presence of co unsel, if untruthful could result in a prosecut ion for p erjury. (4) The Judge failed to advi se me in open court, on the recor d, that the conviction resulti ng from my guilty pl ea may be used in a subsequent proceeding to enha nce the punishment for subsequent offenses.
The appellant requested that his petitions for post -conviction relief be held in abeyance pending the outcome of his appeal of his felony murder conv iction. 2 On June 29, 1988, the trial court appointed counsel and on, July 27, 1988, and September 20, 1988, appointed counsel fil ed amendments to the petitions alleg ing as an additional ground that “his guilty pleas are invalid in that he was not properly advised of his constitutio nal rights as mandated in Rounsaville v. Stat e , 733 S.W.2d 506 (Tenn. 1987).” Appointed counsel was permitted to withdraw on December 14, 1988, and substitute counsel w as designated. On February12, 1990, the postconviction court entered, without holding an evidentiary hearing, its findings of fact and conclusions of law w ith respect to the appellant’ s petitions for post-conv iction relief. Specifically, the post-conviction cour t found: Pursuant to the a uthorit y of Housler

and Wallace , the Court finds that, with exception of the firs t claim [that the trial co urt failed to advise the appellant of his right ag ainst self-incrimination] , none of the asserted grounds are a proper basis for Post-Conviction Relief even if they are found to be breached. These claims g o beyond the requirements o f Boykin and are therefore not constituti onally based. With respect to petitioner’s claim that he was not advised of his right against self-incriminat ion in a trial, the Cour t finds to be without merit.3 The post-convict ion court found that t he only al legati on raisi ng a constit utionalclaim was the appellan t’s conten tion that the trial c ourt failed to a dvise him of his right ag ainst self-inc rimination

. The court specif icall y concluded that all other cla ims failed t

o rise to a violation of a const ituti onal right. Thus, the post- convicti on court di d address all allegat ions rai sed in the appe llant ’s peti tion and in his amended petiti on. 4 . . . This Court has recei ved transcripts of each of the h earings and, where petitioner has fail ed to rebut the same, finds such to be prima facie evidence that he was i nformed of this privilege.

. . . It appears, and this Court finds , that petitioner knowi ngly and intelligently w

aived his privil ege against self-incri mination. Therefore, there have been no violat ions amounting to constituti onal error and the prior guilty ple

as were properly entered.

Subsequently, on March 14, 1990, the appellant filed in the S helby County Criminal Court a “Motion to Reconsider and For O pportunity to Put on Testimoni al Proof.” Essentially, the appellant asserts in hi s motion that because the postconviction court denied relief based, in part, upon the appe llant’s failure to meet his burden of proof, he should be granted an “op portunity to put on testimonial proof.” Additionally, the appell ant argues that the post-conv iction court’s findings

failed to address whether his g uilty pleas were invalid as he was no t advised of the consequences of his guilty pleas as enhancement factors f or future punishments. 3 The State responded to the appellant’s motion on December 23, 1993, asser ting that the appellant had been provi ded an evidentiary hear ing on his post-convi ction petitions. The record indic ates that on January 13, 1994, an d May 12, 1995, appointed counsel filed memorandum in su pport of the appellant’s petition s for postconviction relief. The r ecord also reflects that, on Ap ril 13, 1995, the Shelby C ounty Criminal Court heard pr oceedings on the appellant’s petition for post-convic tion relief and took such matter under advisement until May 19, 1995. On December 7, 1998, the Shelby County C riminal Court denied the appel lant’s Motion to Reconsi der on grounds that since the appel lant failed to appeal the Findings of Fact and Conclusions of Law entered by the trial court within thirty days of its entry, the Criminal Court lost j urisdiction to revi ew the merits of its order. On December 14, 1998, the appellant filed a notice of appeal from both the December 1998 order and the February 1990 order.

Analysis5 The appellant’s appeal includes both the December 7, 1998 order and the February 12, 1990 order of the Shelby County Crimi nal Court. The State contends that the appellant has waiv ed his right of review

of the issues presented because he has failed to timely file his notice of appeal arising from the post-conviction court’s denial of post-conviction relief, thus, causing the t rial court to lose jur isdiction over his post-trial motion. We acknowledge that the initial question before this court is whether we have j urisdiction to consider the appeal of the December 1998 order denying the appellant’s Motion to Reconsider and whether the filing of this postjudgment motion tolled the thir ty day time period in which to file a notice of appeal

.

Again, the post-convic

tion court entered an order on February 12, 1990, denying the appellant rel ief on all nine of his post-conv iction petitions. Rather than filing a notice of appeal to thi s court, the appellant, on Mar ch 14, 1990, filed with the post-conviction court

a “Motion to Reconsider and for Opportunity to Put on Testimonial Proof.” On December 7, 1998, the post-convicti on court entered an order dismissing the appe llant’s “Motion to Rec onsider.” On December 14, 1998, the appellant filed a notice of appeal t o this court from both the December 1998 order and the February 1990 order.

The State contends that the appellant has waived his rig ht to complain of both the December 1998 order and the February 1990 order. Spec ifically, the State contends that the post-convi ction court correctly found that it was without jurisdiction to entertain the appellant’s “ Motion to Reconsider” onc e the court’s order deny ing post-conviction relief became final. Moreover, a “Motion to Reconsider” does not toll the running of the thirty day appeal period in a post- conviction proceeding

. Accordingly, the Stat

e asserts that the appellant has waived his rig ht to appeal the post-conviction court

’s dismissal of his petiti on for post-conviction r elief entered on February 12, 1990.

The appellant responds that he w as not required to file a notice of appeal until thirty days

after the post-conviction court disposed of his post-j udgment motion. Specifically, the appella nt asserts that his timely filed “Motion to Reconsider ” tolled the thirty day appeal period. In support of his content ion, the appellant relies upo n Tenn. R. Civ. P. 59.02 and 59.04, insisting that the Post-Conviction Procedure Act is6

governed by the Rul es of Civil Procedure. Alternatively, th e appellant argues that irrespective of whether this court finds the Rul es of Civil Procedure apply, case law dictates that he was not required to file a notice of appeal until af ter the trial court disposed of his post-judgment mot ion.

Our initial inquiry relative to the determination of our jurisdiction over this proceeding focuses upon wheth er the Rules of CivilProcedure apply to postconviction proceedings. The appellate courts of this s tate have not defined whether proceedings initiated under the Post-Conviction Pr ocedure Act are purely c ivil orcriminal in nature. Invariably, such proceedings have been characterized as quasicivil, quasi-criminal, and “hybrid affairs.” See Watkins v. State , 903 S.W.2d 302, 304 (Tenn. 1995). In Watkins v. State , our supreme court observ ed, citing the American Bar Association’ s Standards for Criminal Ju stice, 2nd Ed.: Post-conviction rev

iew has become an establish ed part of the criminal process. In formulating a r ule we recognize that the post-conviction proceeding is procedural ly separate and apart from the o riginal criminal prosecution. . .. It seeks not to convi ct, but to set aside a conviction which i s void or voidable because of the abridgement of constitutional rights . The base root of the proceedings is criminal. The procedure by which a criminal conviction may be set aside is civil in nature, therefore it is tried under the Rules of Civil Procedure and less stringent evidentiary rules apply. If the petitioner is unsuccessful in his application his criminal status is retained. Watkins , 903 S.W.2d at 305 (emphasis in original)

. See also State v. Ronnie Calvin “Pig” St

yles , No. 03S01-9108-CR-67 (Tenn. at Knoxville, Jan. 25 , 1993). Notwithstanding, thi s general statement that the R ules of Civil Procedur e should be applied, the court noted that “[ t]he procedural characteri stics of the post-convic tion remedy should be appropriate to the purposes of the remedy.” Watkins , 903 S.W.2d at 305.

It is observed

that the holding of Watkins was expressly limited to the procedural issue of the tolli ng of the statute of limitations. See Watkins , 903 S.W.2d at 305-307. Indeed, the court concluded that “[f]or the procedural purposes relevant to this case , a post-conviction petition should be considered civil in nature.” Watkins , 903 S.W.2d at 305 (emp hasis added). Consequently, the court determined that, for purposes of toll ing the statute of limitations , Tenn. Code Ann. § 28-1-106 (tolling statute of limitations period for persons of unsound mind) is4 Com pare with Tenn. Code Ann. § 40-30- 202(a) (1997) (“[t] he statute of li mitations shal l not be tolled for an y reason , including an y tolling or saving provision o therwise available at law or equity); Vikki Lyn n Spellm an v. State , No. 02C01-9801-CC-00036 ( Tenn. Crim. App. at

Jackson, Aug. 21, 1998), perm. to appeal gr anted , (Tenn. Mar. 1 5, 1999) (Tenn. Code Ann. § 28-1-106 not applicab le to 1995 Post-C onviction P rocedu re Act). See gene rally Tenn. Sup. Ct. R. 2 8 § 3(B) (1996) (“[ n]eith er the Tennessee Rules of CivilProcedure nor t he Tennessee Rules of Cri minal Procedure apply to post-conviction proceedings ex cept as specifically provided by these rules”).

5 The draf

ters of th e Act r

ejected prop osingan act writ ten i n gener ic t erms li ke the Ne braska Pos t-Co nvictio n Pro ced ure A ct. . . . Ins tead , they p ropo sed an ac t whic h out lines b asic procedures, wri

tten i n specifi c terms, in an ef fort to achieve “cl arity and simplicity,”

“greater control” over construction, and “less need for adjudication to clarify the [statute’s] meaning.” Gary L. Ande rson, Post-Convicti on Relief

in Tennessee--Four teen Years of Jud

icial Administr

ation Unde r the Pos t-Conv iction Proc edure A ct, 48 Tenn. L. Rev.605, 6 10 fn. 16 (198 1) (ci tin g F. Denn is, Mem orandu m to L aw Re vision Co mm ission Sta te of Te nness ee Re lating to a Po stConviction Procedure Act for T ennessee 45-4 6 (Tenn. State Archives)). 7 applicable to post-conviction proceedings. 4 By expressly limiting their holdi ng to the tolling provisi ons of the Act, the supreme court i mplicitly upheld their previous holding in State v. Scales , 767 S.W.2d 157 (Tenn. 1989). In Scales , the court concluded that, for purposes of Ten n. R. App. P. 4, post-conviction proceedings are criminal in nature and the notice of appeal may be waiv ed in the interest of justice. Scales , 767 S.W.2d at 158. Thus, there is no definitiv e answer to which r

ules,

Criminal or Civi l, are to apply. Rather, the determination of which r ules apply under the pre-1995 Post-Conviction Procedure Act must be made on a ca se-by-case basis.

Post-conviction procedure is not constitutionally mandated procedure; rath er, it exists purely

as a creature of the state leg islature. See Jason L. Jennings v. State , No. 01C01-9703-CR-00106 (Tenn. Crim. App. at Nashville, Apr. 1, 1998), perm. to appeal denied , (Tenn. Nov. 9, 1 998) (citing Abston v. State , 749 S.W.2d 487, 488 (Tenn. Crim. App. 1988); James Leon Crowder v.State , No. 01C01-9005- CR-00129 (Tenn. Crim. App. at Nashville, Dec. 20, 1990)). In this regard, all procedu ral aspects sho uld be fi rst det ermined by the A ct itse lf. 5 In support of this proposition, we acknow ledge the well-establ ished rule of statutory co nstruction providing that a specific provision relating to a particular subject of a statute controls over a general prov

ision applicable to a multitude of subjects. See Cooper v. Alcohol C. of City of Memphis , 745 S.W.2d 278, 280 (Tenn. 1988). See also State v. Nelson , 577 S.W.2d 465, 466 (Tenn. Crim. App. 1978) (the s pecific provision prevails because the leg islature was “car efully directing it

s attention to the particular subject matter”). Likewise, the specific mandates of a statut ory provision shall take precedence over the gener al provisions of the rul es of procedure. See Cooper , 7456 The Post-Convicti on Procedure Act expr essly gover

ns the commencement of post-convict ion actions, the content

s of the peti

tion, the method of servi ce, the abi lit y to amend said pet iti ons, and the resp onse b y the State. See, e.g. , Tenn. Code Ann. §§ 40- 30-103; 40-30- 104;40-30-106; 40- 30-107; 40-30- 114 [ repealed 1995 ]. The Ac t defines th e groun ds for re lief, defens es availab le to the State an d the avail abili ty, scop e and taking of evidence of any

hearing. Tenn. Code Ann. §§ 40-30-102; 40- 30-105; 40-30- 109; 40-30-110; 40-30-111; 40- 30-112. Furt hermore, the Act expressly provides for final disposit ion of pet iti ons and any appeal s therefrom, making no reference to applicat ion of any additi onal rul es or statut es other than the Tennessee Rules of Appellate Procedure. Tenn. Code Ann. §§ 40-30-118; -122. 8 S.W.2d at 280. Thus, the Post-Conviction Pr ocedure Act should be construed within its own terms supplemented by the Rules of Civil and Criminal Procedure where expressly

authorized to do so. 6 See Charles A. Griffin v. Stat e , No. 01C01- 9307-CC-00225 (Tenn. Crim. Ap p. at Nashville, Dec . 23, 1993), concurring in results only , (Tenn. Mar. 28, 1994) (“s uits brought pursuant to the Post-Conviction Procedure Act are gov

erned by the Act--such a ctions are not governe

d by either the Tennessee Rules of Criminal Procedure or the Tenn essee Rules of Civil Procedure); Russell Davis v . State , No. 02C01-9307-CR-00132 ( Tenn. Crim. App. at Jackson, Mar. 23, 1993), aff’d by , 912 S.W.2d 689 (Tenn. 1995).

A review of the Act leads us to the conclusion that a motion to reconsider is not expressly author

ized in a post-convi ction proceeding. See Tony Craig Woods v. State , No. 01C01-9606-CR-00238 ( Tenn. Crim. App. at Nashvi lle, Sept. 30, 1997), perm. to appeal denied , (Tenn. Jun. 2 9, 1998) (citing State v. Burrow , 769 S.W.2d 510, 511 (Tenn. Crim. App. 1989); State v. Ryan , 756 S.W.2d 284, 285 n. 2 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1988)). The Act was designed to achieve finality thr

ough one post-convicti on hearing in which a ll grounds for challenging the val idity of a conviction would be considered, ther eby eliminating subsequent petitions for rel ief in state and federal courts. See G. Gray, Memorandum to Tennessee Judicial C ouncil Post Convicti on Procedure Act (Oct. 22, 1970) (Tenn. State Archives). This purpose would be frustrated if this court were to interpret the Ac t to include a list of non-ex haustible post-judgment motio ns. Indeed, under the Post-Convi ction Procedure Act, “[t] he order granting or denying relief . . . shall be deemed a final judgment , and an appeal may be taken to the court of criminal appeals in the manner prescribed by the Tennessee R ules of Appellate Procedure.” Tenn. Code Ann. §40- 30-122 [ repealed

1995] (emphasis added). Once a judgment is final, the t rial court generall y loses jurisdict ion to amend it. State v. Lock , 839 S.W .2d 436, 440 (T enn. Crim. App. 1992) (citing State v. Moore , 814 S.W.2d 381 (Tenn. Crim. App. 1991); Ray v. State , 576 S.W.2d 598, 6029

(Tenn. Crim. App. 1978)). Ac cordingly, the post-conviction court lost jurisdiction over the proceeding w

hen it entered its order deny ing relief on February

12, 1990.

Additionally, the Rules

of Appellate Procedure do not permit an appeal as of right from an order denyi ng a motion to reconsider. Tenn. R. App. P. 3(b) prov ides that: an appeal as of right by a de fendant lies from any judgment of conviction entered by

a trial court from whi ch an appeal lies to the Supreme Court or Court of Cr iminal Appeals: (1) on a pl ea of not guilty; and (2) on a plea of guilty or nolo c ontendere, if the defendant entered into a plea agreement but explicitly res

erved with the consent of the state and the trial court the right to appeal a cert ified question of law dispositive of the action, or if the defendant seeks review of his sentence and there was no ple a agreement concerning hi s sentence, or if the issues presented for r eview were not w

aived as a matter of law by the plea of guilty or nolo contendere and if such issues are apparent from the record of the proceedi ngs already had. The defendant may also appeal as of rig ht from an order denying or revoking probation, an d from a final judgment in a cri minal contempt, habeas corpus, extraditi on, or post-conviction proceeding. Accordingly, this

court does not have juri sdiction to consider the appe llant’s “Motion to Reconsider.” We conclude that the appeal o f the December 1998 order of the post-conviction court

is not properly before thi s court.

Notwithstanding this

conclusion, we must als o determine the propriety of the appellant’s appeal of the post-conv iction court’s order of F ebruary 12, 1990. An appeal as of right is initiated by the filing of a notice of appeal, T enn. R. App. P. 3(e), within thirty day

s of the entry of the judgment bei ng appealed. Tenn. R. App. P. 4(a). For purposes of notice of appeal requirements, the Po st-Conviction Procedure Act has been construed as being criminal in nature. See Scales , 767 S.W.2d at 158. Thus, the notice of appeal docum ent is not jurisdictional and the filing of such document may be waived i n the interest of justice. Tenn. R. App. P. 4(a); Scales , 767 S.W.2d at 158. The thirty day period s hall not be tolled but for the ti mely filing of a (1) motion for judgment of acquittal; (2) motion f or new trial; (3) motion for arrest of judgment; or (4) motion for a s uspended sentence. Tenn. R. App. P. 4( c). If one of the enumerated motions is filed, the thirty days runs from the entry of the order determining such motion or motions. Tenn. R. App. P. 4(c). The Post-Conviction Procedure Act, by its very nature and purpose , does not contemplate the filing of any of the motions enumerated in Tenn. R . App. P. 4(c). Thus, no post- judgment motions are permitted to suspend the running of the appeal time from the ent ry of7 This rule has be en am ended to delete the motion for discre tionary cos ts. See Tenn. R. Civ. Pro. 59 (1999). 10 the judgment in a post-conv iction proceeding. See Lock , 839 S.W.2d at 440 (citations omitted). Indeed,regarding a motion to r econsider, this court has specifically noted that “ there is no provision in the Tennessee Rules of Crimina l Procedure for a ‘petition to reconsider’. . . .” Id. (citing State v. Ryan , 756 S.W.2d at 285 n.2).

Notwithstanding our conclusion, even if the Rul es of Civil Procedure applied as argued by the appellant; the Motion to Reconsider filed in the present case would not toll the thir

ty day filing peri od. The only motions contemplated under the Rules of Civil Proce

dure for extending the time for taking steps for appellate proceedings are a motion for di rected verdict, a m otion to make a dditional fin dings of fact, a motion to assess costs, a motion for new trial, and a motion to amend the judgment. 7 See Tenn. R. Civ. Pro. 59.01 (1990). In essence, the purpose of these motions is to prevent unnece ssary appeals by g iving the trial c ourt an opportunity to
correct errors w

hich occurred before the entry of judgment. See M AC L EAN AND M AC L EAN , T ENNESSEE P RACTICE , R ULES OF C IVIL P ROCEDURE , v. 4 § 59.2 (1989).

In reviewing the motion, this court must consi der the substance of the motion in determining whether it is in fact one of the specified post-trial mot ions which toll commencement of the time period. See Tennes see Farme rs Mut. Ins . Co. v. Farmer , 970 S.W.2d 453, 455 (Tenn. 1998); see also Tenn. R. Civ. P. 8.05 ( no technical forms of pleading or motions are required). Applying this rul e, we can ascertain that the appellant’ s “Motion to Reconsider ” is, in substance, a motion for an evidentiary heari ng. Clearly, thi s motion is not encompassed by Tenn. R. Civ. P. 59.01 and, therefore, does not toll the thirty day time per iod. Thus, even applying the Rules of Civil Pr

ocedure, the motion does not toll the thirty day time per iod.

Although we have concluded that the appellant’s Motion to Reconsider did not toll the thirty day time period, we must still determine whether the appellant’s notice of appeal of the February 1990 order was timely filed. Tenn. R. App. P. 4(a) provides that a notice of appeal shall be filed with and r eceived by the clerk

of the trial court withi n thirty days after the date of entry of the judgment appealed from.11

Thus, the appellant’s filing of his notice of app eal on December 14, 1998, was well outside the thirty day time period. Notwithstanding, the rules also provide that “in all criminal cases ‘the noti ce of appeal’ document is not juri sdictional, and the filing of such document may be waiv ed in the interest of justice. ’” Tenn. R. App. P. 4(a); see also Scales , 767 S.W.2d at 158 (hold ing that for purposes of Tenn. R. App. P. 4(a), post-conviction procee dings are criminal i n nature).

In determining whether the thirty day time l imit for filing a notice of appeal should be waived in th e instant case, we note that the notice of appeal was filed almost nine years after the pos t-conviction court’ s denial of post-convicti on relief. The conviction giving rise to the post-conviction claim occurred approximately sixteen years pri or to the filing of this noti ce. The appellant was repr esented by counsel over this time s pan and failed to comply with the applicable rules of procedure, in addition to fail ing to follow the prov isions of the Post-Convi ction Procedure Act. Also, w e note that the appellant has failed t o provide this court w

ith any reason as to why

justice requires th at the timely notice req uirement should be waived.

Another important consideration in support of waiver is the policy consideration that “there must be a finality to all litigation, criminal as well as civil.” House v. State , 911 S.W.2d 705, 713 (Tenn. 1995), cert. denied , 517 U.S. 1193, 116 S.Ct. 1685 (1996) (citat ions omitted). A defendant in a cr iminal prosecution should be bound by the judgment entered just as a party t o a civil suit. Id. Such “[p]erpetual disrespect for the finality of convicti ons disparages the entire criminal justice system,” by

burdening its judici al resources and diminishi ng the reliability of review due to the pass

age of time. See House , 911 S.W.2d at 713 (citing McClesky v. Za nt , 499 U.S. 467, 493, 111 S.Ct. 1454, 1469 (1991)). Indeed, the United States Supreme Court c haracterized the finality of judgments as “[one] of the law’s very objects.” House , 911 S.W .2d at 713 (quot ing McClesky , 499 U.S. at 491, 111 S.Ct. at 1468)). Thus, after reviewing the issues, briefs, and the record be fore this court, we conclu de that justice does not req uire us to waive th e thirty day filing8 In fur therance

of our ob liga

tion t o examine th e nature of the i ssues presen ted for review, we note, again, that the appellant has presented two issues: (1) that he was denied an e videntiary hearing on his petition and (2) that his guilty pleas were unknow ingly entered. First, the record does not conclusively establish that the appellant was denied an evidentiary hearing. Moreover, Ten n. Co de A nn. § 40-3 0-10 9(a) (1) pr ovide s tha t “[w]h en th e pet ition h as be en co mp eten tly draf ted a nd all p leadin gs, file s and reco rds o f the c ase ... con clus ively sh ow th at the petitio ner is entitled to no relief, the court may order the petition dismissed.” See also Tenn. Code Ann. § 40- 30-104 (b) (petition s hall have a ttached affidavits, rec ord, or oth er eviden ce sup porting its allegations ); Baxter v. Rose , 523 S.W.2d 930, 939 (Tenn. 1 975). A revi ew of the tr anscript of

the guilty plea hea ring show s that the trial c ourt advis ed the ap pellant of his right agains t self-incrim ination.

12 requirement of Tenn. R. App. P. 4(a). 8 See, e.g. , State v. Cleotha Nash , No. 02C01- 9701-CC-0026 (Tenn. Crim. App . at Jackson, Feb. 18, 1998), perm. to appeal denied , (Tenn. Oct. 12, 1998).

Following a rev

iew of the record before this court, we conclude that the appellant has waived hi s right to appeal the low er court’s denial of his pet ition for post-conviction reli ef. Additionally, we fin d that the appellant’s appeal of the l ower court’s denial of his Moti on to Reconsider is not pr operly before this court.

It is, therefore, ORDERED , that the appellant’s appeal be d ismissed.

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

_________________________________________ JOE G. RILEY, Judge

_________________________________________ THOMAS T. W OODALL, Judge