# FILED
February 18, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JANUA RY 1998 SESSION

STATE OF TENN ESSEE, ) ) NO. 02C01-9701-CC-00026 Appellee, ) ) LAUDERDALE COUNTY VS. ) ) HON. JOSEPH H. WALKER, CLEOTHA NASH, ) JUDGE ) Appellant. ) (Reckless Endangerment)

FOR THE APPELLANT : GARY F. A

NTRICAN (

On Appeal) District Public Defender JULIE K. PILLOW (On A ppeal) Assistant Public Defender 118 E. Market Street P.O. Box 700 Somerville, TN 38068 BETH BROOKS (A

t Trial) 2298 S. Germantown Road Germantown, TN 38138-5951 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter CLI NTO N J. MOR GAN Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 ELIZABETH T. RICE District Attorney General MARK E. DA

VIDSON Assistant

District Attorney

General 302 Market Street Somerville, TN 38068

OPINION FI LED:

APPEAL DISMISSED

JOE G. RILEY, JUDGE1 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 erre d in sen ten cin g him to t he m axi mum wit hin Ran ge II f or t his Cla ss E fel ony. 2 OPINION

The defendant, Cleotha Nash, was convicted by a Lauderdale County jury of reckless endangerment, a C lass E felony. The trial court sentenced him to four (4) years incarceration. Defendant raises three issues for our consid eratio n; 1 however, because his notice of appeal was untimely filed, we dismiss this appeal.

I.

In January 1996, a

Lauderdale County jury found defendant g uilty 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 judgmentreflecting defendant’s conviction and sentence was entere d 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 transc ript ofhis trial, at state ex pense, “for use in accessing the Court in the form of Post [C]onvicti on Relief.” On August 29, the trial court entered an order granting defendant’s request for a transcript

. The trial court acknowl edged that no motion for new tr ial or not ice of appea l had been filed. The court then determined that the m otion should be treated as a petition forpost-convictionrelief and appointed counsel. The c ourt further ordered that defendant be allowed to amend the petition “within thirty days of the entry of the preliminary order.” On November 7, 1996, approxim ately seven ty (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 Te nnesse e Rules of Appellate Procedure provides, in pertinent part: the notice of appeal required by Rul e 3 shall be filed with an d received by the clerk of the trial court within 30 days after the date of entry of the judgment appealed fro m; how ever, in all crimi nal cases the “notice of appeal” document is not j urisd ictional and the filing of such document may be waived in the intere st of justice. The appropriate appellate court shall be the court that determines w hether 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 jus

tice requires

that the timely notice requirement should be waived. Nor does defendant provide this Court with any explanat i on for the f ailure to timely file not ice of appeal other than the bare assertion that “[t]r ial counsel, Beth Brooks, d id not file a motion for a new trial. No notice of appeal was file d by trial counsel.”

Such an assertion, without more, is insufficient to persuade us to waive the timel y filing require ment. Moreover, after reviewing t he issues, briefs and the record before this Court,
we conclude that justice does no t require us to wai

ve the thirty (30)

da y filing requirement of Tenn. R. App. P. 4(a). Accordingly, defendant’s appeal is dismissed.

JOE G. RILEY, JUDGE CONCUR:
JOE B. JONES, PRESIDING JU DGE

PAUL G. SUMM ERS, JUDGE