IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 1, 2009

GARY E. ALDRIDGE v. JAMES FORTNER, WARDEN, and

STATE OF TENNESSEE

 Appeal from the Circuit Court for Hickman County

No. 08-5049C James Martin, Judge

No. M2009-00477-CCA-R3-HC - Filed September 30, 2009

The petitioner, GaryE. Aldridge, was convicted in 1997 of one count of aggravated kidnapping, two

counts of aggravated rape, one count of rape, and two counts of simple assault, all perpetrated upon

his estranged wife. The trial court imposed an effective sentence of sixty years, with a sentence of

seventeen months and twenty-nine days to be served consecutively. The judgments were affirmed

on direct appeal, and our supreme court denied permission to appeal. State v. GaryEugene Aldridge,

No. 01C01-9802-CC-00075, 1999 WL 632299, at *1 (Tenn. Crim. App. Aug. 19, 1999), perm. to

appeal denied (Tenn. Jan. 31, 2000). Subsequently, the petitioner began a series of post-conviction

filings. This appeal resulted from the dismissal of his fourth petition for writ of habeas corpus. The

State argues that the notice of appeal was untimely and, therefore, the appeal should be dismissed.

We agree and dismiss the appeal. 

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

ALAN E. GLENN,J., delivered the opinion of the court, in which DAVID H.WELLES and CAMILLE R.

MCMULLEN, JJ., joined.

Gary E. Aldridge, Only, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Leslie E. Price, Assistant Attorney

General, for the appellee, State of Tennessee. 

OPINION

FACTS

In the direct appeal of the petitioner’s convictions, this court observed that “the [petitioner’s]

presentation of the issues is clouded by his waffling argument.” Id. at *5. The same description is

true for our review of the petitioner’s fourth try for habeas corpus relief, which, with attachments,
totals 244 pages. The facts, which resulted in the petitioner’s convictions, were set out on direct

appeal:

In May of 1996, Etta Mae Aldridge traveled from Monterrey, California to

the [petitioner’s] residence in Hickman County to visit and, apparently, to discuss

their prospects for marriage. The [petitioner] and Etta Mae had known each other for

approximately two years and had engaged in a long-distance relationship via the

telephone. On June 23, 1996, the [petitioner] and Etta Mae Aldridge were married. 

Two weeks later, Etta’s children joined her in Tennessee. By August that same year,

the couple began experiencingmarital problems. The couple separated and Etta went

to Arkansas to live with relatives. On October 20, 1996, Etta returned to Tennessee

to reconcile with the [petitioner].

On November 1, 1996, the [petitioner] and Etta traveled to their respective

places of employment together, they shared lunch, and returned home together that

evening. The [petitioner] was in a good mood and everything seemed "fine" at

dinner. During their meal, the [petitioner] asked Etta if she had an affair while she

was living in Arkansas. Etta denied any extramarital liaison. Her denial infuriated

the [petitioner] who overturned the dinner table and backhanded Etta across the face. 

He called her a “bitch” and a “liar.” The [petitioner] forced Etta into the couple's

bedroom, where he disrobed. He then “doubled” his leather belt and began beating

Etta upon her legs. While being beaten, he informed her that “he was gonna teach

[her] to lie and to cheat.” When the [petitioner] finally ceased his beating, he

observed the bruises he had inflicted on his wife. He apologized to her, told her he

loved her, and informed her that he would never hurt her again. The couple later

engaged in sexual intercourse.

On November 15, 1996, Etta picked up her final paycheck from her former

employer and completed some errands. She then picked up the [petitioner] from his

place of employment later that afternoon. On the drive home, the [petitioner] started

yelling at Etta about spending her paycheck. The topic then changed from money to

“the guys from Arkansas that [Etta] supposedly had an affair with.” Although she,

again, denied the allegation, the [petitioner] “backhanded” her in the face. He then

instructed her to drive onto a dirt road. Etta pleaded with the [petitioner] not to hurt

her. He responded that “[they] were going to settle it once and for all.” Etta stopped

the vehicle and obeyed the [petitioner’s] command to “get out” of the car. The

[petitioner] then “started hitting [her] with his fist double handed.” The hitting was

followed with a beating with his belt. He threatened that “he felt like just killing

[her] and throwing [her] into the river.” Etta begged him to stop for the sake of the

children. The [petitioner] then instructed Etta to get in the passenger side of the car. 

Still enraged, he then drove to another location. He stopped the car and again

ordered her out of the car. “[H]e beat [her] some more,” threw her on the hood of the

car, and began to choke her. He exclaimed that “he wanted the truth and if [she]

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wasn’t going to tell the truth, he was going to beat it out of [her].” The [petitioner]

wrapped his belt around her neck and started choking her. When he released his

hold, Etta fell to the ground. He then placed his hand in his pocket and told Etta that

“he felt like putting a bullet in [her] head.” The [petitioner’s] anger subsided and he

told Etta to get back in the car. On the way home, however, he again backhanded

her, giving her a “bloody nose.” The victim suffered two black eyes, a bloody nose,

and a swollen lip from this incident.

On Thanksgiving Day, Etta decided to leave the [petitioner]. That evening,

she left their home and, accompanied by her children, went to a motel. The

following day, she went to a women's shelter. The Hickman County Sheriff's

Department was informed of the November 1 and November 15 assaults and charges

were filed against the [petitioner]. Sometime during the month of December, Etta

contacted an attorney to initiate divorce proceedings against the [petitioner]. On

December 9, 1996, an order of protection issued from the Hickman County General

Sessions Court enjoining the [petitioner] from abusing, threatening to abuse, or

committing any acts of violence upon Etta. Despite this order of protection, Etta

encountered the [petitioner] at the home of a mutual friend, Peggy Mitchell, during

the early part of January. The [petitioner] told Etta that “he started wanting to be

with [her] again” and that he was “sorry and that [they] could work things out.” 

Consequently, Etta “went with him to his home where [they ] made love that night.”

On January 14, 1997, Etta Mae Aldridge filed a complaint of divorce in the

Hickman County Chancery Court alleging irreconcilable differences and

inappropriate marital conduct. The complaint alleged that the couple last resided in

the same household on November 28, 1996.

Between 11:00 and 12:00 p.m. on January18, the [petitioner] arrived at Etta’s

apartment wanting to talk with her. The [petitioner] attempted to persuade Etta to

leave the apartment with him so they could talk in private. Etta resisted. The

[petitioner] then quietly warned her that if she did not accompany him, “he would

shoot [her] and then [her] kids.” Etta retrieved her coat and told her twenty-one year

old daughter Dawn to dial “911.” It was later revealed that Dawn did not place the

telephone call until the following morning. 

On the way to the [petitioner’s] house, he reminded Etta that he had

previously warned her, “if he didn't get to take Cindy home with him on

Wednesday,” “[Etta’s] life wouldn’t be worth two cents.” Etta pleaded for him not

to harm her. He responded, “Oh, I’m not going to hurt you, I’m going to kill you.” 

He added that “he would give [her] two choices, either a .357 or a .44.” Shortly

thereafter, they arrived at the [petitioner’s] house and went inside. The [petitioner]

then advised Etta that “[they] could do it [her] way or his way” and he began

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questioning her about her affairs in Arkansas. When she denied having an affair, he

hit her in the face.

And then he grabbed [her] . . . by the arm, then we went into

the bedroom and he shut the door, and I tried to grab a statute and it

fell out of my hand, and then he grabbed me by this arm and he

picked me up and he shoved me against the wall. Then he took his

hand and he choked me and I started fighting him back, I started

kicking and fighting him back, and then I fell to the floor and he

started choking me some more and Istarted kicking him trying to get

him off of me.

And then he picked me up and he threw me across the bed and

I hit a night stand and I cut my ear, and I knocked over the night stand

and a lamp and broke it and he told me to sit it back up, so I did. And

then he-----grabbed me again and he told me to take off my clothes,

so I took them off and we went into the bathroom and the water pipes

had broken, so he raised the back of the toilet and he dipped a towel

and he washed my face . . . and I thought maybe he wasn't going to

hurt me anymore.

. . . And then we went back into the bedroom and he started

hitting me again and he threw me on the bed and he started choking

me, so I scratched him and he let go, and then he kept holding me

down and I twisted his penis and he ripped my underwear at the same

time.

. . . .

He forcibly had [vaginal] sex with me. I told him no, but he

did anyway.

. . . .

He made me roll over and he put some liquid, it smelled like

cherries, on me and he [put it] . . . on my anal area.

. . . .

And then he had forced sex with me there.

. . . .

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I asked him to quit and he wouldn’t. I kept trying to get away,

but I couldn’t.

. . . .

It hurt. I can’t describe how bad it hurt.

. . . .

He told me that all white trash, white whores liked it.

. . . .

I got dressed, he said he wanted to go to a friend’s house . . .

to Peggy Mitchell’s house. . . . We went there because Gary said he

wanted to have a threesome and that she liked women. So when we

got there Gary sat in the recliner. . . .

So Gary pulled me down in his lap and he raised my denim

skirt . . . I had on high knee boots . . . and he didn’t let me put my

underwear back on.

. . . .

And he pulled my skirt up and he showed Peggy--and he

asked her how would she like to get a hold of that.

. . . .

[Peggy responded] ‘It looks real good, Gary, but I don’t think

so tonight. I don’t feel well.’ So Gary put my skirt back down . . . .

we left.

. . . .

[When we got back to his house] [w]e had sex again. . . .

. . . [H]e wanted to have oral sex.

. . . .

I didn’t want to do anything with him. I just wanted to go

home.

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. . . .

We had vaginal sex and then we went to sleep.

The next morning, the [petitioner] told Etta he loved her and that he was

sorry. The couple then “just made love again.” He asked her if she wanted to stay

at the house with him. She declined his offer. Later, the [petitioner] warned Etta that

if she told anyone about what happened he would beat her and then kill her. Early

the next afternoon, before returning her home, the [petitioner] told Etta that he was

“proud of her because she had put up a good fight.”

Id. at **1-3 (footnotes omitted).

Subsequently, the petitioner began a series of pro se filings: (1) a 2000 petition for post- 1

conviction relief, alleging ineffective assistance of counsel and denial of the petitioner’s right to

testify, which was dismissed by the post-conviction court and affirmed on appeal, Gary Eugene

Aldridge v. State, No. M2001-02452-CCA-R3-PC, 2002 WL 31598841, at *1 (Tenn. Crim. App.

Nov. 19, 2002); (2) a 2003 petition for writ of habeas corpus, alleging that the indictments were

invalid, which the trial court dismissed, and the dismissal was affirmed on appeal, Gary E. Aldridge

v. State, No. M2003-00703-CCA-R3-HC, 2004 WL 2346144, at *1 (Tenn. Crim. App. Oct. 19,

2004); (3) a 2005 petition for writ of habeas corpus, alleging that a jury had not determined all facts

upon which his sentencing had been based, the imposition of consecutive sentences was cruel and

unusual punishment, the fact he was married to the victim precluded his being prosecuted for rape,

the trial court violated his right against self-incrimination, and an amendment to the indictment

violated his right to a grand jury adjudication. The petition was dismissed by the trial court, the

dismissal was affirmed on appeal, and permission to appeal was denied. Gary E. Aldridge v. State,

No. M2005-01861-CCA-R3-HC, 2006 WL1132073, at *1 (Tenn. Crim. App. Apr. 28, 2006), perm.

to appeal denied (Tenn. Nov. 27, 2006); and (4) a 2007 petition for writ of habeas corpus, alleging

that the indictment was defective and, as a result, he was being illegally detained. The trial court

dismissed this petition, and the dismissal was affirmed on appeal. Gary Aldridge v. State, No.

M2007-01268-CCA-R3-HC, 2007 WL 4232920, at *1 (Tenn. Crim. App. Dec. 3, 2007). 

The present appeal resulted from the dismissal of the fourth petition for writ of habeas corpus

filed by the petitioner, which was filed in 2008 and contended that the petitioner’s sentences were

void because he was not awarded jail credits as required; that the petitioner was sentenced in the

wrong offender classification; that the court erred in ordering that certain of his sentences be served

consecutively; and that the court did not have the authority to issue an amended judgment. The trial

court dismissed this petition on August 13, 2008. The petitioner then filed a motion to alter or

amend the judgment, which was denied on February 10, 2009, and this appeal was filed on February

18, 2009. 

It is unclear from the record as to the date this petition was filed, but the post-conviction court entered an order

1

appointing counsel for the petitioner on August 31, 2000.

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ANALYSIS

Pursuant to Tennessee Rule of Appellate Procedure 3(b), a petitioner may appeal as of right

from the final judgment of the habeas corpus proceeding. The notice of appeal shall be filed within

thirty days after the date of entry of the judgment. Tenn. R. App. P. 4(a). Rule 4(a) further provides,

however, that in all criminal cases the notice of appeal is not jurisdictional and may be waived “in

the interest of justice.”

In this matter, as we have set out, after the trial court dismissed his fourth petition for writ

of habeas corpus, the petitioner did not file a notice of appeal but, instead, a motion to reconsider.

As this court has explained, the filing of such does not toll the thirty-day period within which the

notice of appeal must be filed: 

Pursuant to Tennessee Rules of Appellate Procedure 4(a), a notice of appeal

“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[.]” There are certain motions that toll

the time for filing the notice of appeal. Tenn. R. App. P. 4(c). However, a motion to

reconsider is not among the specified motions that toll the thirty-day requirement.

State v. Lock, 839 S.W.2d 436, 440 (Tenn. Crim. App. 1992) (citing State v. Bilbrey,

816 S.W.2d 71, 74 (Tenn. Crim. App. 1991)). Furthermore, this court has noted that

our rules of criminal procedure do not provide for a motion to rehear or reconsider.

State v. Ryan, 756 S.W.2d 284, 285 n. 2 (Tenn. Crim. App. 1988). 

State v. Rockwell, 280 S.W.3d 212, 214 (Tenn. Crim. App. 2007).

Thus, the petitioner had thirty days to appeal from the trial court’s dismissal of his petition

on August 13, 2008. Apparently, he believed that he did not have to file a notice of appeal until after

the trial court ruled on his motion to reconsider. As explained by Rockwell, however, this was not

the case, and his notice of appeal was untimely by six months. We have reviewed the issues raised

in the petition for writ of habeas corpus which, with attachments, totals 244 pages, as well as his

reply to the State’s motion to dismiss. We note that the petitioner did not address in any fashion the

untimeliness of his notice of appeal, although raised by the State. We conclude that the interest of

justice does not require our waiving the untimely filing of the notice of appeal to consider the

petitioner’s claims. See State v. Markettus L. Broyld, No. M2005-00299-CCA-R3-CO, 2005 WL

3543415, at *1 (Tenn. Crim. App. Dec. 27, 2005). 

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CONCLUSION

Based upon the foregoing authorities and reasoning, we conclude that the interest of justice

does not require our waiving the defendant’s failure to file a timely appeal and, therefore, the appeal

is dismissed.

___________________________________ 

ALAN E. GLENN, JUDGE

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