FILED

February 18, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

JANUARY 1998 SESSION

STATE OF TENNESSEE, )

) NO. 02C01-9701-CC-00026

Appellee, )

) LAUDERDALE COUNTY

VS. )

) HON. JOSEPH H. WALKER,

CLEOTHA NASH, ) JUDGE

)

Appellant. ) (Reckless Endangerment)

FOR THE APPELLANT:

GARY F. ANTRICAN (On Appeal)

District Public Defender

JULIE K. PILLOW (On Appeal)

Assistant Public Defender

118 E. Market Street

P.O. Box 700

Somerville, TN 38068

BETH BROOKS (At Trial)

2298 S. Germantown Road

Germantown, TN 38138-5951

FOR THE APPELLEE:

JOHN KNOX WALKUP

Attorney General and Reporter

CLINTON J. MORGAN

Assistant Attorney General

Cordell Hull Building, 2nd Floor

425 Fifth Avenue North

Nashville, TN 37243-0493

ELIZABETH T. RICE

District Attorney General

MARK E. DAVIDSON

Assistant District Attorney General

302 Market Street

Somerville, TN 38068

OPINION FILED: 

APPEAL DISMISSED

JOE G. RILEY,

JUDGE
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

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.”
3

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