        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE             FILED
                         JULY SESSION, 1998         October 12, 1998

                                                Cecil Crowson, Jr.
                                                 Appellate C ourt Clerk
STATE OF TENNESSEE,        )    C.C.A. NO. 03C01-9711-CR-00497
                           )
      Appellee,            )
                           )
                           )    McMINN COUNTY
VS.                        )
                           )    HON. EARLE G. MURPHY
BILLY BIVENS,              )    JUDGE
                           )
      Appe llant.          )    (Official Misc onduc t; Assault)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF McMINN COUNTY


FOR THE APPELLANT:              FOR THE APPELLEE:

DON ALD 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 Avenu e North
                                Nashville, TN 37243-0493

                                JERRY N. ESTES
                                District Attorney General
                                Washington Avenue
                                Athens, TN 37303



OPINION FILED ________________________

APPEAL DISMISSED

DAVID H. WELLES, JUDGE
                                 OPINION

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

misconduct in violation of Tennessee Code Annotated § 39-1 6-402 and a ssau lt

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

on May 30 , 1997, and D efendant filed a M otion for a New Trial and/or Acquittal

on April 11, 1997. B ecause this m otion has not ye t been g ranted or denied,

Defe ndan t’s app eal is no t prope rly before this Court. We therefore dismiss the

appea l for absen ce of a fina l judgme nt.



      Tenn essee Rule of A ppellate P rocedu re 4 pres cribes tha t

      if a timely motion or petition under the Tennessee Rules of Criminal
      Procedu re is filed in the trial court by the defendant . . . under Rule
      29(c) for a judgment of acquittal [or] under R ule 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 C omm ission C omm ents to this section suggest

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

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

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

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



      W e recently considered this precise issue and concluded that it is not

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

have jurisdiction over an appeal where the trial cou rt 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, 19 98) (“T his Co urt’s

                                         -2-
appellate jurisdiction is lim ited 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. 198 9). In that civil case, the pla intiffs tim ely

filed a motion for new trial a nd, alterna tively, a motio n for add itur. 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 n ew trial. Id. The pla intiff filed a notice of appeal, based upon

the trial court’s denial of the m otion for new trial, even tho ugh the reco rd reflected

no action by the de fendan t to accep t 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, “Th e orde r sugg esting additu r and g ranting a new trial is on ly

provisional and is not se lf-exec uting. T he ord er gran ting a n ew trial is not a final

judgment and is not appealab le 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 effe ct,”

the supreme court based its reason ing upo n Ten nesse e Rule o f Appella te

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

Because Rule 4(b) is s ubsta ntively id entica l to the ru le und er con sidera tion in this




          1
              Due, in turn, to the defendant’s failure to decisively accept or reject the additur on the
record.

                                                    -3-
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 a nd/or A cquitta l.3




                                      ____________________________________
                                      DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
GARY R. WADE, PRESIDING JUDGE


___________________________________
JOSEPH M. TIPTON, JUDGE




       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-
