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

WADE, P.J., delivered the opinion of the court, in which SMITH and WEDEMEYER, JJ., joined.

James W. Sowell (on appeal), Dickson, Tennessee, Carey Thompson (at trial), Charlotte, Tennessee,

for the appellant, Mikel U. Primm.

Paul G. Summers, Attorney General & Reporter, Marvin E. Clements, Jr., Assistant Attorney

General, 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. The trial 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 justice, relief shall be granted

. . . [because the defendant's] conviction was never appealed." Judge Burch appointed counsel, set

aside and re-entered the order denying a new trial, and directed newly appointed counsel to file a

notice of appeal.
-2-

On June 28, 1996, Jerry Simmons, a paid informant who was working for the Dickson

County Sheriff's Department, arranged to purchase crack cocaine from the defendant. Detective

Michael Holman placed an audio transmitter on Simmons and provided him with enough 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. At trial, an audiotape of the transaction

was played for the jury. Simmons identified the voice of the defendant. 

In this appeal, the defendant contends that 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 sentence. The defendant failed to timely file

his motion for new trial under this rule. 

To perfect an appeal, a notice of appeal must be filed with "the clerk of the trial court

within 30 days 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 interest 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. A delayed appeal is authorized by Tenn. Code Ann. § 40-30-

213 when the petitioner is denied effective assistance of counsel 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 circumstances, none of which would

apply here. See Sands v. State, 903 S.W.2d 297 (Tenn. 1995); Burford v. State, 845 S.W.2d 204

(Tenn. 1992). 

While the trial court could not grant a delayed appeal in this instance, that would

ordinarily have been the proper remedy. Despite our preference 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 legislature's intention to limit any consideration of relief after so

long a delay. Neither should we exercise our discretion to allow an appeal "in the interests of

justice" when the defendant did not file a notice of appeal until long after the expiration of the statute

of limitations for the filing of post-conviction relief. 

Accordingly, the appeal is dismissed.