1 The post-conviction petition is not in the record. The date of filing was stipulated at oral

argument. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE STATE OF TENNESSEE v. MIKEL U . PRIMM Direct Appeal from the Circuit Court for Dickson County No. CR-3291 Allen W. Wallace, Judge (at trial) Robert E. Burch, Judge (post-conviction)
No. M1999-00354-CCA-R3-CD - Decided June 2, 2000

The defendant, Mikel U. Primm, was convicted of sale of cocaine. Because the defendant's appeal was untimely filed, the appeal is dismissed. Tenn. R. App. P. 3; Appeal Dismissed W ADE , P.J., delivered the opinion of the court, in which S MITH and W EDEMEYER , JJ., joined. James W. Sowell (on appeal), Dickson, Tennessee, Carey Thompson (at trial), Charlotte, Tennessee, for the appellan

t, Mikel U. Primm. Paul G. Summers, Attorne y General & Repor

ter, Marvin E. Cle

ments, Jr., Assistant Attorney Ge nera l, Dan M. Alsobrooks, District Attorney General, Suzanne M. Lockert, Assistant District Attorney, for the appellee, State of Tennessee.

OPINION On March 17, 1997, the defendant, Mikel U. Primm, was convicted of sale of cocaine

. See Tenn. Code Ann. § 39-17-417. Thetrial judge, Allen W. Wallace, imposed a Range I sentence of five years. On June 4, 1997, the defendant filed a motion for new trial. Approximately six weeks later, the defendant filed an amended motion for new trial. Nearly two months passed before the trial court overruled the motion. There was no notice of appeal. On November 9, 1998, 1 the defendant filed a petition for post-conviction relief. Although the trial judge, Robert E. Burch, determined that the petition was not timely filed, he concluded that "in

the interests of ju

stice, relief sha

ll be granted

. . . [because the defendant's] conviction was never appealed." Judge Burch appointed counsel, set aside and re-entered the order denying a ne w t rial, and directed newly appointed counsel to file a notice of appea

l.-2- On June 28 , 1996, Jerry Simmon s, a paid informan

t who was working f

or the Dickso

n County Sheriff's Department, arranged to purchase crack cocaine from the de fendant. Detective Michael Holman placed an audio transmitter on Simmons and provided him with en

ough cash to

buy drugs. Detective Holman maintained audio surveillance while Simmons paid $30 to the defendant in exchange for crack containing .2 gram of cocaine base. A

t trial, an audiotape of the transaction was played for the jury. Simmons identified the voice of the defendant.

In this appeal, the defendant contends tha t many of the comments recorded on the audiotape should have been excluded at trial as inadmissible hearsay. Because, however, the trial court lacked jurisdiction to vacate and re-enter the order overruling the motion for new trial, even "in the interests of justice," this court cannot consider the issue presented on the merits. Therefore, the appeal must be dismissed.

Rule 33(b) of

the Tennessee Rules of Criminal Procedure provides that a motion for new trial must be filed within 30 days of the entry of se ntence. The def

endant failed to t

imely file his motion for new trial under this rule.

To perfect an app

eal, a notice of

appeal must be filed with "the clerk of the trial court w ithin 30 da ys after the date of entry of the judgment . . . ." Tenn. R. App. P. 4(a). In criminal cases, the filing of a notice of appeal may be waived "in the intere st of justice," but only by the "appropriate appellate

court." Id. (emphasis added) ; State v. Scales , 767 S.W.2d 157 (Tenn. 1989). The trial court has no such authority. Adelayed appeal is authorized by Tenn. Code Ann. § 40-30- 213 when the petitione

r is denied effe

ctive ass istance of co unsel due to the failure to perfect an appeal of right. See Tenn. Code Ann. § 40-30-213; Tenn. R. App. P. 3. Yet a petition seeking the grant of a delayed appeal must be filed within the statute of limitations. Tenn. Code Ann. § 40-30- 202(a); Handley v. State , 889 S.W.2d 223, 224 (Tenn. Crim. App. 1994). No court may consider an untimely post-conviction petition except in certain unusual c

ircumstances, no

ne of which would apply here. See Sands v. State , 903 S.W.2d 297 (Te nn. 1995); Burford v. State , 845 S.W.2d 204 (Tenn. 1992). While

the trial court could not grant a delayed appeal in this instance, t hat would ordinarily have been the pr

oper remedy. De

spite our prefer

ence to consider the merits of the appeal and our admiration of

the trial court's ingenuity in attempting to permit such a review, that procedure would not, in our

view, honor the legislat

ure's intention to li

mit any considera

tion of relief af

ter so long a delay. Neither should we exercise our discretion to allow an appeal "in the inter ests o f justice" when the defend

ant did not file a notice of appeal until lon g after the expir

ation of the statute of limitations for the filing of post-conviction relief.

Accordingly, the appeal is dismissed.