IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs September 1, 2015

STEVEN TUCKER v. STATE OF TENNESSEE

Appeal from the Circuit Court for Lauderdale County

No. 8716 Joe H. Walker, III, Judge

No. W2015-00241-CCA-R3-PC - Filed October 9, 2015

_____________________________

Petitioner, Steven Tucker, was convicted of theft of property valued at $1,000 or more 

but less than $10,000, a Class D felony, and was sentenced to twelve years as a career 

offender. State v. Steven Van Tucker, No. W2010-01943-CCA-R3-CD, 2012 WL 

1478774, at *1 (Tenn. Crim. App. Apr. 25, 2012). This court affirmed his convictions on 

direct appeal. Id. Petitioner subsequently filed a petition for post-conviction relief, and 

he now appeals the post-conviction court‟s denial of relief. Petitioner argues that his 

Fourth Amendment rights were violated when law enforcement entered a home, which 

did not belong to petitioner, with only an arrest warrant for the petitioner and that his trial 

counsel was ineffective for failing to challenge the search. Following our thorough 

review of the record, the parties‟ briefs, and the applicable law, we dismiss petitioner‟s 

appeal as untimely.

Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

ROGER A. PAGE, J., delivered the opinion of the Court, in which JAMES CURWOOD WITT,

JR., and TIMOTHY L. EASTER, JJ., joined.

Billy G. Burk, District Public Defender; and David S. Stockton, Assistant District Public 

Defender, for the Appellant, Steven Van Tucker.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;

D. Michael Dunavant, District Attorney General; and Julie K. Pillow, Assistant District 

Attorney General, for the Appellee, State of Tennessee.
-2-

OPINION

I. Facts from Trial

The evidence at trial showed that an unoccupied home was burglarized and that 

the furniture had been removed. Steven Van Tucker, 2012 WL 1478774, at *1-2. Police 

officers contacted two local furniture stores that bought and sold used furniture and found 

a dining room set at Furniture Unlimited. Id. at *1. The store owner then provided law 

enforcement with the carbon copy of the check made out to petitioner that the owner had 

used to pay petitioner for the furniture. Id. The owner also told law enforcement that 

petitioner had been driving a black Chevrolet Avalanche. Id. This court on direct appeal 

stated: 

[The investigator] ascertained [petitioner‟s] address and had a warrant 

issued for [petitioner‟s] arrest. He went to the apartment where [petitioner]

lived with Aisha Jones, [petitioner‟s] co-defendant, and spoke to the 

landlord, Raymond Proctor. Ms. Jones arrived and gave her consent for [the 

investigator] to search the apartment. When [the investigator] entered the 

apartment, he observed “a house full of furniture that fit the description of 

the [missing] furniture . . . .

Id. at *1. As a result of this incident, petitioner was convicted of theft of property valued 

at $1,000 or more but less than $10,000. Id. Petitioner subsequently filed a petition for 

post-conviction relief, and he now appeals the post-conviction court‟s denial of relief. 

II. Analysis

Petitioner argues that his Fourth Amendment rights were violated when law 

enforcement entered a home, which did not belong to petitioner, with only an arrest 

warrant and that his trial counsel was ineffective for failing to challenge the search. The 

State responds that petitioner has forfeited review of his claims by filing his notice of 

appeal nearly nine months late. We agree with the State. 

Tennessee Rule of Appellate Procedure 4(a) states that a “notice of appeal 

required by Rule 3 shall be filed with and received by the clerk of the trial court within 30 

days after the date of entry of the judgment appealed from.” In this case, the postconviction court filed its order on April 14, 2014. Therefore, petitioner should have filed 

his notice of appeal within thirty days of April 14, 2014. However, petitioner filed his 

notice of appeal on February 9, 2015, nearly nine months late. 

Tennessee Rule of Appellate Procedure (4)(a) provides that “in all criminal cases 

the „notice of appeal‟ document is not jurisdictional and the filing of such document may 
-3-

be waived in the interest of justice. The appropriate appellate court shall be the court that 

determines whether such a waiver is in the interest of justice.” “„In determining whether 

waiver is appropriate, this court will consider the nature of the issues presented for 

review, the reasons for and the length of the delay in seeking relief, and any other 

relevant factors presented in the particular case.‟” State v. Rockwell, 280 S.W.3d 212, 

214 (Tenn. Crim. App. 2007) (quoting State v. Markettus L. Broyld, No. M2005-00299-

CCA-R3-CO, 2005 WL 3543415, at *1 (Tenn. Crim. App. Dec. 27, 2005)). However, 

waiver is not automatic. “If this court were to summarily grant a waiver whenever 

confronted with untimely notices, the thirty-day requirement of Tennessee Rule of 

Appellate Procedure 4(a) would be rendered a legal fiction.” Id. (citing Michelle Pierre 

Hill v. State, No. 01C01-9506-CC-00175, 1996 WL 63950, at *1 (Tenn. Crim. App. Feb.

13, 1996)). In this case, there is nothing in the record to show that petitioner requested 

permission to file an untimely appeal or that he provided any explanation for his 

untimeliness. In fact, petitioner has failed to even acknowledge that his notice of appeal 

was untimely. Therefore, we conclude that the interests of justice do not necessitate 

review of petitioner‟s claims, and we dismiss petitioner‟s appeal as untimely. 

CONCLUSION

Based on the parties‟ briefs, the record, and the applicable law, we dismiss 

petitioner‟s appeal. 

_________________________________

ROGER A. PAGE, JUDGE