        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs September 10, 2013

               STATE OF TENNESSEE v. DWAYNE B. HARRIS

              Direct Appeal from the Circuit Court for Madison County
                    No. 12-287, 12-288    Donald H. Allen, Judge




               No. W2012-02342- CCA-R3-CD - Filed January 3, 2014


Defendant, Dwayne B. Harris, appeals from the trial court’s order revoking Defendant’s
sentences of probation following a hearing in which violation of conditions of probation were
admitted to by Defendant through his attorney. While acknowledging on appeal that
violations of probation conditions had been admitted, Defendant asserts the trial court still
erred by revoking probation and ordering him to serve his sentences in incarceration. The
State argues the appeal should be dismissed because the notice of appeal was filed seven days
late. Defendant admits the notice of appeal was late but requests this court to waive the
timely filing of the notice of appeal. Under the circumstances, we decline to do so.
Accordingly, the appeal is dismissed.

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

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R. and D. K ELLY T HOMAS, J R., JJ., joined.

Gregory D. Gookin, Jackson, Tennessee, for the appellant, Dwayne B. Harris.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney
General; James G. Woodall, District Attorney General; and Brian Gilliam, Assistant District
Attorney General, for the appellee, the State of Tennessee.

                                        OPINION

        On June 18, 2012, Defendant pled guilty in the Circuit Court of Madison County to
the following offenses: possession of marijuana; violation of the drinking age law; public
intoxication; and possession of drug paraphernalia, all misdemeanors, plus possession of
marijuana with intent to sell, a Class E felony. He received an effective sentence of two
years, eleven months, and twenty-nine days to be served on probation. On August 29, 2012,
and September 5, 2012, a probation violation warrant and an amended probation violation
warrant, respectively, were issued against Defendant.

        One of the violations of probation alleged and admitted to by Defendant was that he
failed to successfully complete a 28-day residential treatment program because Defendant
was discharged after two days for disruptive behavior. Other allegations of probation
violations were that Defendant was arrested for vandalism on August 30, 2012 and failed to
report the arrest to his probation officer. Through counsel at the probation violation hearing,
Defendant asserted that the vandalism charge would be dismissed in the City Court of
Jackson if Defendant paid $1,580.00 of restitution within six months. Furthermore counsel
acknowledged Defendant failed to notify his probation officer of the arrest for vandalism but
asked the trial court “not to hold that against [Defendant] because he was in custody.”

        The order revoking probation and ordering Defendant to serve by incarceration his
entire effective sentence was entered on September 24, 2012. The notice of appeal was not
filed until October 31, 2012, thirty-seven days later. Defendant admirably and candidly
begins his appellant brief by acknowledging that the notice of appeal was not filed within the
thirty-day limit provided in Tennessee Rule of Appellate Procedure 4(a). Defendant also
correctly points out that Rule 4(a) provides that in criminal cases the “‘notice of appeal’
document is not jurisdictional and the filing of such document may be waived in the interest
of justice.” Defendant requests this court waive the timely filing of the notice of appeal “in
the interest of justice” but does not elaborate on why, in this case, the interest of justice
requires this court to waive the timely filing of the notice of appeal.

       In State v. Rockwell, 280 S.W.3d 212 (Tenn. Crim. App. 2007) this court quoted from
State v. Markettus L. Broyld, No. M2005-00299-CCA-R3-CO, 2005 WL 3543415, at *1
(Tenn. Crim. App. Dec. 27, 2005) as follows:

        In determining whether waiver is appropriate, this court will consider the
        nature of the issues presented for review, the reasons for and the length of
        the delay in seeking relief, and any other relevant factors presented in this
        particular case.

Rockwell, 280 S.W.3d at 214.

       The court in Rockwell further held,

        Waiver is not automatic and should only occur when “the interest of justice”
        mandates waiver. If this court were to summarily grant a waiver whenever

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        confronted with untimely notices, the thirty-day requirement of Tennessee
        Rule of Appellate Procedure 4(a) would be rendered a legal fiction.

Id.

       In light of the relevant factors and the caution espoused in Rockwell under
circumstances in this case, we respectfully decline to waive the timely filing of the notice of
appeal.

       Accordingly, this appeal is dismissed.

                                                    _________________________________
                                                    THOMAS T. WOODALL, JUDGE




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