         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs October 28, 2003

                    STATE OF TENNESSEE v. JAY CHAMBERS

                       Appeal from the Criminal Court for Scott County
                             No. 7547 E. Shayne Sexton, Judge



                                  No. E2002-01308-CCA-R3-CD
                                         March 25, 2004


JOSEPH M. TIPTON , J., concurring.

         I concur in the results reached in the majority opinion. I believe, however, that the failure
to file a motion for new trial does not foreclose our acting on plain error which affects substantial
rights of the defendant. See Tenn. R. Crim. P. 52(b). For example, courts have reversed convictions
and granted new trials based upon plain error because of the failure to instruct on lesser included
offenses even though the issue was not preserved by the motion for a new trial. See, e.g., State v.
Terry, 118 S.W.3d 355 (Tenn. 2003); State v. Walter Wilson, W2001-01463-CCA-R3-CD, Shelby
County (Tenn. Crim. App. Sept. 4, 2002); State v. Jason Thomas Beeler, W1999-01417-CCA-R3-
CD, Obion County (Tenn. Crim. App. Nov. 22, 2000). Thus, we should not necessarily limit our
consideration to whether the defendant’s claims would result in dismissal.

        I also believe that our holding that the appeal is to be dismissed obviates any need to consider
the merits of the defendant’s claims. We should not decide such claims by obiter dictum. Most
importantly, though, the majority opinion looks to the transcript of a null proceeding, i.e., the new
trial motion hearing, to decide the defendant’s claim of the ineffective assistance of counsel. We
should not rely upon such a hearing.

        My concurrence is based upon my conclusion that based on the record before us, the
defendant has not presented just cause for our waiving the filing of a notice of appeal. Therefore,
I agree that the appeal should be dismissed.



                                                       ____________________________________
                                                       JOSEPH M. TIPTON, JUDGE
