# FILED October 12, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE JULY SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9711- CR-00497 ) Appellee, ) ) ) McMINN COUNTY VS. ) ) HON. EAR LE G. MURPHY BILLY BIVENS, ) JUDGE ) Appe llant. ) (Official Misc onduc t; Assault)

ON APPEAL FROM THE JUDGMENT OF THE CRIMIN AL COURT OF McMI NN COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : DON ALD B . REID JOHN KNOX WALKUP 10 West Madison Avenue Attorney Generaland Reporter P.O. Box 628 Athens, TN 37371-0628 CLINTON J. MORGAN Assistant Attorney General 425 5th Avenu e North Nashvill e, TN 37243-0493 JERRY N. ESTES Distri ct Attor ney General Washington Avenue Athens, TN 37303
OPINION FILED ________________________ APPEAL DISMI SSED DAVID H. WELLES , JUD GE-2- 

# OPINION

The Defe nd ant, Bil ly Bivens , appeals f rom his convi ctions for offi cial misconduct in viol ation of Tennesse e Code Annotated § 39-1 6-402 and a ssau lt in violat ion of § 39-1 3-101. The tri al court en tered judgment o n both convic tions on May 30 , 1997, and D efendant filed a M otion for a New Trial and/or Acquittal
on April 11, 1997. B ecause this m otion has not ye t been g rante d or denied, Defe ndan t’s app eal is no t prope rly before this Court. We therefor e dismiss the appea l for absen ce of a fina l judgme nt.

Tenn essee Rule of A ppellate P rocedu re 4 pres cribes tha t if a timely moti on or petit ion under the Tennessee Rules of Cri minal Procedu re is fi led in t he trialcourt by t he defendant . . . under Rule 29(c) for a judgment

of acquittal [or] under R ule 33(a) for a new trial

. . . , the time for appeal for all parties s hall run f rom entry of the orderdenying a new trial or granting or denying any ot her such motion or petition. Tenn. R. App. P. 4(c ). Advisory C omm ission C omm ents to this section suggest that“it woul d be undesirabl e to proceed wi th the appeal while the tri al court has before it a motion the gran ti ng of which would vacate or alter the judgment appealed fro m, and wh ich might af fect eit her the avai lability of or the decisi on whether to se ek appellate review .” Id. (Advisory Com m’n Com ments).

We recently

considered t his preci se issue and concl uded that i t is not simp ly a matter of des irabil ity, but one of j urisdic tion; and this Court

does not have jurisdi ction over an appe al where the trial cou rt retains jurisdiction over a post-tr ial motion
. Statev. La ndy G. Ka sh , C. C.A. No. 01C01-9705-CR-00179, Smith County (Tenn. Crim. App., Nash vi lle, Feb . 23, 19 98) (“T his Co urt’s1 Due, in turn, to the defendant’s failure to decisively ac cept or reject

the additur on the record. -3- appellate jurisdiction is lim ited to review of the finaljudgments of t rial cour ts, and the refore, we cannot entert ain this appeal as we are wi thout jurisdict ion to do so.”).
Furthermore, thesup remecourt has provided s ome guidance in Evans v. Wilson , 776 S.W .2d 939, 940 (Tenn. 198 9). In that civilcase, the pla intiffs tim ely fi led a motion for new trial a nd, alterna tively, a motio n for add itur. Id. The tria l court ruled that

the jury

verdict was inadequa te, suggested an additur, and overruledthe motion for new tri al on all other poi nts. I d. If, however, the defendanthad reject ed the recommended additur, then the plaintiffs would have been entitled to a n ew trial. Id. The pla intiff filed a notice of appeal, based upon the trialcourt’s denial of the m otion for new trial, even tho ugh the reco rd reflected no action by the de fendan t to accep t or reject the additur. Id.

In Evans , the supreme court affirmed the court of appeals’ remand of the
case because the motion f or new tri al had not decisively been gr anted or denied. 1 The cou rt he ld, “Th e orde r sugg esting additu r and g ranting a new trial is on ly provisi onal and is not se lf-exec uting. T he ord er gran ting a n ew trial is not a fi nal judgment and is not app ealab le as of right.” Id. at 941 (cit ing Tenn . R. App . P. 3(a)). In holdi ng that the notice of appeal fi led by the pl aintif f was “without effe ct,” the supreme court bas ed its reason ing upo n Ten nesse e Rule o f Appella te Procedu re 4(b), whi ch specifi es the ti me for appe al i n civil cases
. Id. at 942. Because Rule 4(b) is s ubsta ntively id entica l to the ru le und er con sidera tion in this2 See supra at 2. The differences

are procedu ral—the rul e lists motions available under the Tennessee Rules of Civi l Procedure that toll running of

the time for appeal until decided by the trial court.

3 We note that the State raised t his issuein its brief filed on Feb ruary 25, 1998; however, the deficiency was apparently not corrected. -4- case, Rule 4(c), 2 we reaff irm our d ecision i n Kash that thi s appeal must be dismissed. The tim e for en tering an appea l does not begi n to run unti l the trial
c ourt has entered an or der granti ng or denying Defendant’s Moti on for a Ne w Trial a nd/or A cquitta l. 3

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ GARY R. WADE, PRESI DING J UDGE

___________________________________ JOSEPH M. TIPTON, JUDGE