### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs A

ugust 15, 2001 STATE OF TENNESSEE v. WILLIAM EDWIN LAMBETH Direct Appeal from the Criminal Court for Dickson County No. CR-4443 Allen W. Wallace, Judge

No. M2000-00882-CCA-R3-CD - Filed September 7, 2001
A Dickson County Grand Jury indicted the defendant for rape, and the defendant was convicted of the lesser-include

d offense of sex

ual batte ry. The defendant filed

a timely motion for n

ew trial, which was subsequently withdrawn. Almost two months later, the defendant filed a pro se motion alleging his motion fornew trial was unilaterally and improperly withdrawn by counsel. Eventually, the trial court held th

at it lacked jurisd

i ction to hear the motion for new trial since the defendant's original mot i on had been withdrawn, and no timely motion was pending. On appeal, defendant contends the trial court’s jury charge authorized the jury to convict based on lack of consent, when “force or coercion” was alleged in the indictment. We co nclude the mot ion for new trial was not properly before the trial court, thereby waiving this issue. Nevertheless, we have examined the issue for plain error and conclude defendant’s allegation of error is totall

y without merit. The judgment of the trial court is affirmed. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OE G. R ILEY , J., delivered the opinion of the court, in which D A VID H. W ELLES and J AMES C URWOOD W ITT , J R ., JJ., joined. William B. Lockert, III, District Public Def

ender (at trial) , and Timoth y V. Potter, Dickson, Tennessee (on appeal), for the appellant, William Edwin Lambeth. Paul G. Summers, Attorne y General and Re

porter; Thomas E.

Williams, III, Ass

istant A ttorney General; Dan Mit

chum Alsobrooks,

District Attorney General; and Carey J. Thompson, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION-2- PROCEDURAL BACKGROUND The defendant was convicted of sexual battery, and the trial court sentenced him on July 23, 1999, to f our years as a Range II multiple offender. The defendant timely filed a motion for ne w trial on August 16, 1999. On January 24, 2000, the defe ndant's trial counsel filed a mo tion to withdraw the motion for new trial, which was granted by order entered January 25, 2000. On March 15, 2000, the defendant filed a pro se motion to amend the "f raudulently

withdrawn motion for new trial.” On May 24, 2000, the trial court ap pointed new couns

el. On July

26th, the trial court ruled that it lacked jurisdiction to hear the motion for new trial because the defendant's timely motion for new trial had been withdrawn. The defendant’s newly appointed counsel then appealed to this c

ourt. The sole assignment

of error in this appeal is whether the trial court erred in its jury charge relating to the elements of t he sexual offen

ses. Specif

ically, defendant contends the indictment allegedsexual misconduct by “force or coercion,” whereas the jury charge authorized a conviction based upon lack of consent. See Tenn. Code Ann. § 39-13-503(a)(1), (2).

TIMELINESS OF MOTION FOR NEW TRIAL A. Standard of Review
A motion for new trial “shall be made . . . within thirty days of the date the order of sentence is entered.” Tenn . R. Crim. P. 33(b). Th is provision is

mandatory, and the time for filing may not be extended. S ee Tenn. R. C rim. P. 45(b); see also State v. Martin , 940 S.W.2d 567, 569 (Tenn. 1997); State v. Dodson , 780 S.W.2d 778, 780 (Te nn. Crim. App. 1989). The thirty (30) day provision is jurisdictional, a nd an untimely

motion is a nullity

. Dodson , 7 80 S. W.2d at 780 . It deprives the appellant of the opportunity to argue on appeal any issues that should have been raised in the motion for new trial. Martin , 940 S.W.2d at 569. Furthermore, the untimely filing of a motion for new trial does not t

oll the time for filing a notice of appeal; thus, an untimely motion for new trial will also result in an untimely notice of appeal. See State v. Davis , 748 S.W.2d 206, 207 (Tenn. Crim. App. 1987). Unlike the untimely filing of the notice of appeal, this court does not have the authority to waive the untimely filing of a motion for new trial. See Tenn. R. App. P. 4(a); Statev. Givhan , 616 S.W.2d 612, 613 (Tenn. Crim. App. 1980). However, this co urt, in its discretion, may take notice of plain error which affects a substantial right of the defendant where it may be necessary to do substantial justic

e. Tenn. R. Crim. P. 52

(b); State v. Johnson , 980 S.W.2d 414, 418 (Tenn. Crim. App. 1998).

B. Analysis-3-

The defendant was sentenced on July 23, 1999, and the motion for new trial w as filed on August 16, 1999, well within the t hirty-day req uirement. See Tenn. R. Crim. P. 33(b). The defendant then filed a motion to withdraw the motion for new trial, and the trial court entered an order withdrawing the motion for new trial on January 25, 2000. The attempt to revive the motion for new trial, filed a

lmost two months later

, was a nullity. Furth

ermore, the subse

quently filed notice of appeal was untimely. Nevertheless,

we elect to waive the timely filing of the notice of appeal. We will address the merits of the assignment of error under the plain error doctrine.

JURY INSTRUCTIONS
In this appeal, the defendant alleges his conviction must be reversed because the trial court instructed the jury that the state could prove rape and sexual battery by (1) force or coercion, or (2) lack of consent, while the indictment alleged only that the defendant “did unlawfully, feloniously, forcibly , coercively , intentionally or knowingly sexually penetrate [the victim] in violationof Tenn. Code Ann. § 39-13-503, a Class B Felony.” (Emphasi s added). The indi

ctment did

not expressly allege that the sexual penetration was “accomplished without the consent of the victim.” See Tenn. Code Ann. § 39-13-503(a)(2). The trial court in

structed the jury

on rape as follow

s: For you to find the defendant guilty of [rape], the state must have proven beyond a reasonable doub

t the existence of

the following esse

ntial elements: (1) that the defendant

had unlawful sexual penetration of th e alleged victim or the alleged victim had unlawful sexual penetration of the defendant; and (2) that force o

r coercion was u

sed to accomplish t

he act; or (3) that the sexual penetration was accomplished without the consent of

the alleged victim and the defendant knew, or had reason to know, at the time of the penetration that the alleged victim did not consent ; and (4) that the defendant acted intentionally, knowingly or recklessly. (Emphasis added). The trial court further instructed the jury on the less

er-included off

ense of sexual battery as follows:-4-

For you to find the defendant guilty of [sexual battery], the state must have proven beyond a reasona

ble doubt the existe

nce of the follow

ing essential elem

ents: (1) the defendant had unlawful sexual contact with the alleg e d victim in which the defendant intentionally touch

ed the alleged vic

tim ’s inti mate parts, or the clothing covering the immediate area of the alleged victim’s intimate parts; and (2) that force or coercion was used to accomplish the act; [and] (3) that the defendant acted intentionally, knowingly or recklessly. Regardless

of whether or not the jury charge was improper with regard to rape, an i ssu e which we need not decide, defendant’s argument must fail. The def endant was acquitted of rape, making the issue moot as to that charge. As to sexual battery, for which defendant was convicted, the jury charge required proof of “force or coercion ” and makes no mentio

n of lack of conse

nt. According, the issue raised in this appeal is totally devoid of merit.

CONCLUSION Based on the foregoing, we affirm the judgment of the trial court.

___________________________________ JOE G. RILEY, JUDGE