# FILED
September 30, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF CRIMIN AL APPEALS OF TENN ESSEE

AT NASHVILLE JUNE 1997 SESSI ON

TONY CRAIG WOODS, ) ) APPELLA NT, )

) No. 01-C-01- 9606-CR-00238 ) ) Davidson C ounty v. ) ) Thom as H. Shrive r, Judge ) ) (Post-C onv ict ion Rel ief) STATE OF TENNESSEE, ) ) APPELLEE. )

FOR TH E APPEL LANT: FOR THE APPELLEE: John E. Herbi son John Knox Walkup Attorney at Law Attorney Gen eral & Repor ter 2016 Eighth Avenue, South 500 Charlotte A venue Nashvil le, TN 37204 Nashvil le, TN 37243-0497 (App eal O nly) Eugene J. Honea W. Casey Reed Assistant Attorney Gener al Attorney at Law 450 James Roberts on Parkway 211 Printer’ s Alley Nashvil le, TN 37243-0493 Suite 400 Nashvil le, TN 37201 Victor S. J ohnson, III (Tria l Only) Distric t Attorney General Washington Square Buildi ng, Suite 500 222 Second Avenue, North Nashvil le, TN 37201-1649 Thomas B. Thurman Assistant D istrict A

ttorney Gener

al Washington Square Buildi ng, Suite 500 222 Second Avenue, North Nashvil le, TN 37201-1649

OPINION FILE D:________________________________

_ AFFIRMED
Joe B. Jo nes, Pre siding Jud ge2 

## O P I N I O N

The appellant, Tony

Craig Woods (petitioner ), appeals asof right from a j udgment of the trial court dismissing his action for post-conviction relie f. The tr ial court r uled the action was barr

ed by the stat ute of limitations . In this C ourt, the petit ioner contends (a) the trial cour t sho uld h ave afforded him the opportunity to present ev idence to ex plain why he failed to file his action t imely and ( b) the reasonabl e doubt instruc tion given by the tr ial court was const itutionally infirm. After a thoroug h review of the record, th e briefs submitted by the parti es, and the law governi ng the issue s presented for review, it is the opi nion of this Court the judgment of the t rial court should be affirmed. The peti tion er was c onvic ted o f mu rder in th e fir st de gree, robb ery with a deadly weapon, and possession of a sawed-of f shotgun. He appeale d as of right to this Cour t. The petitioner’ s convic

tions were affirmed by this Court, but

his sentences

were modified

. State v. Woods , 814 S.W.2d 378 (Tenn. Crim. App. 1991). Thesupreme court denied the pe tition for permission to appeal on Jul y 29, 1991. The petitioner in itiated this action on March 2, 1995, more than thre e years after the supreme court denied the app lication. The State of Tennessee filed an answer asserti ng the action wa s barred by the statute of limitations. The trial cour

t heard argu ment on th e reasonable doubt instruction raised by the petit ioner. The purpose of the hear ing was to determine w hether this was a new issu e which wasnot barred by the statute of

limitations. The trial court properly concluded th is was not a new

issue, and, furt hermore, the petitioner would not b e entitled torelief if the issue was

not time barre d. The petitioner c laims the tri al cour t sho uld h ave given him an opportunity to explain why the petition wasnot filed timely . This grou nd was not br ought to the att ention of the trial court until after the juri sdiction of the court had expired. Therefore, the petit ioner was not entitled to a hearing on this ground

. The trial cour

t ruled the act ion was bar red on Nove mber 21, 1995. The petitioner subsequentlyfiled a timely noti ce of appeal on December 4, 19 95. Subsequentl y, the petitioner

filed a pro se pleading entitled “Motion for Reconsideration of Petition for Post3

Convictio n Reli ef” on December 29, 1995. Petitioner’s counsel fil ed a pleading entitled “Motion for Reconsider ation of Petition for

Post-Conv iction Rel ief”on January 18, 1996. Counsel a l s o fi l e d a p l e a d i n g e n t i t l e d “ M o t i o n t o Wi thdra w Notice of Appeal” on January 18, 1996. The latter motion sought to withdraw the notice of appeal previ ously filed without prejudice. The purpose of this mot ion was to permit the peti tioner to rai se additional issues and have a hearing on these issues. The record makes i t clear thegrounds raised by the petitioner

were bar red by the statute of limitat ion s. Thus, the ground pertaining to the reasonable doubt instruction is timebarred. This Court and th e supre me court have held on numerous occasions an attackon this instruction will not entitle the petit ioner to relief from his conv ictions. See State v. Nichols , 877 S.W.2d 722 (Tenn. 1994); Booker v. State , Williamson County No. 01-C-01-9606- CC-00271 (Tenn. Crim. App., Ju ne 30, 1997); Pettyjohn v . State , 885 S.W.2d 364 (Te nn. Cr im. App.), per . app . denied (Tenn. 1994). This Court w ill address

the contention that the trial court failed to permit thepetitioner to present evidence as to why the petition was not timely filed. This g round is w ithout merit i n the context of this case. The petitioner di d not seek a hear ing or make an offer of proof as to w hy the petit ion
wasnot filed timely . This issue first surfaced w hen the trial court heard the statements of counsel regarding the petitions to reconsider o n Ap ril 1, 1996. There are three reasons why thi s issue is

not meritori ous. First, the initial notice of appeal was binding u pon the petitioner . The notice had the effect of invoking this Court’s j urisdicti on . State v. Peak , 823 S.W.2d 228, 229 (Tenn. Crim. App. 1991); State v. Bi lbrey , 816 S.W.2d 71, 74 (Tenn. Crim. App. 1 991); Stat e v. Givhan , 616 S.W.2d 612, 613 (Tenn. Crim. App. 1980), per . app . denied (Tenn. 1981). As a general r ule, the tria l court may not hear motionsfiled subsequen tly to the filing of the notice of appea l. There is no statute, rule, or common law decision w hich permits a party to withdraw
a notice of appeal w ithout prejudi ce so the party may liti gate additiona l issues. Moreover, such a rule would thaw justice because a party could file and withdraw the notice of appeal with impunity

and present addi tional issue s to litig ate. It would also prevent the state from raising issues in th e appellate cour t.4 The only procedure avail able to t he petition er was th e dismissal of the appeal pursuantto Tenn. R. App. P. 15(a). Obviously, the petitioner did not want to dismiss his appeal. Nor did he follow the pr ocedure mandated by

this rule. While a motion was filed, itwas not for

the purpose of dismissing the a ppeal. Further, this motion was not brought to the attention of the tr ial court unt il the heari ng and no order was ever ent ered regar ding the dispositi on of the motion. Second, neither a motio n to rehear nor a motion to r

econsider is

authorizedby the Tennessee Rules of Cri minal Procedure, the Ten n essee Rules of Post-Convi ction Procedure, or the TennesseeRules of Appell ate Procedure. State v. Burr ow , 769 S.W.2d 510, 511 (Tenn. Cri m. App. 1989) (di scussing motion to rehea r); State v. Ry an , 756 S.W.2d 284, 285 n.2 (Tenn. Cr im. App.), per . app . denied (Tenn. 1988) (dis cussing moti on to reconsider). Consequently, the trial court should not have entertained the pe titioner’s motions to reconsider. The petitioner was not entitled to a hearing on these motions. Third, the trial court did not have jurisdic tion to hear the motions to reconsider

. The authority of a trial cour

t to rule on motions in a l awsuit expires thir ty days after the entry

of judgment. Stat e v. Lock , 839 S.W.2d 436, 439 (Tenn. Crim. App . 1992); State v. Moore , 814 S

. W. 2d 381, 382 (Tenn. Crim. Ap p. 1991); State v. Do dson , 780 S.W.2d 778, 780 (Tenn. Crim

. App.), per . app . denied (Tenn. 1989); State v. Hamlin , 655 S.W.2d 200, 202 (Tenn. Crim. App. 198 3). Thus, all of the proceeding s incident t o the petitions to rehear
were void si nce t he m otio ns were file d mo re th an th irty da ys after the trial court ruled the suit was barred by the statute of limitations. In conclusion, the petitioner’s suit was barred by the statute of limitations. Furthermore, the trial court did not have jurisdict ion to conduct a hearing re garding the trial court’s refusal to permi t the petitioner to present ev idence pertaini ng to why the petition
was no t fil ed ti mely.

_______________ _____________________ _______ _ JOE B. JONES , PRESIDING JUDGE5

CONCUR:

______________________________________ WILLIAM M. BARKER, JUDG E

______________________________________ THOMAST. WOODALL, JUDGE