FILED

October 12, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

JULY SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9711-CR-00497

)

Appellee, )

)

) McMINN COUNTY

VS. )

) HON. EARLE G. MURPHY

BILLY BIVENS, ) JUDGE

)

Appellant. ) (Official Misconduct; Assault)

ON APPEAL FROM THE JUDGMENT OF THE

CRIMINAL COURT OF McMINN COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

DONALD B. REID JOHN KNOX WALKUP

10 West Madison Avenue Attorney General and Reporter

P.O. Box 628

Athens, TN 37371-0628 CLINTON J. MORGAN

Assistant Attorney General

425 5th Avenue North

Nashville, TN 37243-0493

JERRY N. ESTES

District Attorney General

Washington Avenue

Athens, TN 37303

OPINION FILED ________________________

APPEAL DISMISSED

DAVID H. WELLES, JUDGE
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OPINION

The Defendant, Billy Bivens, appeals from his convictions for official

misconduct in violation of Tennessee Code Annotated § 39-16-402 and assault

in violation of § 39-13-101. The trial court entered judgment on both convictions

on May 30, 1997, and Defendant filed a Motion for a New Trial and/or Acquittal

on April 11, 1997. Because this m otion has not yet been granted or denied,

Defendant’s appeal is not properly before this Court. We therefore dismiss the

appeal for absence of a final judgment.

Tennessee Rule of Appellate Procedure 4 prescribes that 

if a timely motion or petition under the Tennessee Rules of Criminal

Procedure is filed in the trial court by the defendant . . . under Rule

29(c) for a judgment of acquittal [or] under Rule 33(a) for a new trial

. . . , the time for appeal for all parties shall run from entry of the

order denying a new trial or granting or denying any other such

motion or petition.

Tenn. R. App. P. 4(c). Advisory Commission Comments to this section suggest

that “it would be undesirable to proceed with the appeal while the trial court has

before it a motion the granting of which would vacate or alter the judgment

appealed from, and which might affect either the availability of or the decision

whether to seek appellate review.” Id. (Advisory Com m’n Com ments).

We recently considered this precise issue and concluded that it is not

simply a matter of desirability, but one of jurisdiction; and this Court does not

have jurisdiction over an appeal where the trial court retains jurisdiction over a

post-trial motion. State v. Landy G. Kash, C.C.A. No. 01C01-9705-CR-00179,

Smith County (Tenn. Crim. App., Nashville, Feb. 23, 1998) (“This Court’s
1

 Due, in turn, to the defendant’s failure to decisively accept or reject the additur on the

record. 

-3-

appellate jurisdiction is limited to review of the final judgments of trial courts, and

therefore, we cannot entertain this appeal as we are without jurisdiction to do

so.”).

Furthermore, the supreme court has provided some guidance in Evans v.

Wilson, 776 S.W.2d 939, 940 (Tenn. 1989). In that civil case, the plaintiffs timely

filed a motion for new trial and, alternatively, a motion for additur. Id. The trial

court ruled that the jury verdict was inadequate, suggested an additur, and

overruled the motion for new trial on all other points. Id. If, however, the

defendant had rejected the recommended additur, then the plaintiffs would have

been entitled to a new trial. Id. The plaintiff filed a notice of appeal, based upon

the trial court’s denial of the motion for new trial, even though the record reflected

no action by the defendant to accept or reject the additur. Id. 

In Evans, the supreme court affirmed the court of appeals’ remand of the

case because the motion for new trial had not decisively been granted or denied.1

The court held, “The order suggesting additur and granting a new trial is only

provisional and is not self-executing. The order granting a new trial is not a final

judgment and is not appealable as of right.” Id. at 941 (citing Tenn. R. App. P.

3(a)). In holding that the notice of appeal filed by the plaintiff was “without effect,”

the supreme court based its reasoning upon Tennessee Rule of Appellate

Procedure 4(b), which specifies the time for appeal in civil cases. Id. at 942.

Because Rule 4(b) is substantively identical to the rule under consideration in this
2

 See supra at 2. The differences are procedural—the rule lists motions available under

the Tennessee Rules of Civil Procedure that toll running of the time for appeal until decided by

the trial court.

3

 We note that the State raised this issue in its brief filed on February 25, 1998;

however, the deficiency was apparently not corrected. 

-4-

case, Rule 4(c),2 we reaffirm our decision in Kash that this appeal must be

dismissed. The tim e for entering an appeal does not begin to run until the trial

court has entered an order granting or denying Defendant’s Motion for a New

Trial and/or Acquittal.3 

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

GARY R. WADE, PRESIDING JUDGE

___________________________________

JOSEPH M. TIPTON, JUDGE