         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE        FILED
                       OCTOBER 1997 SESSION
                                                  December 4, 1997

                                                 Cecil W. Crowson
                                                Appellate Court Clerk
STATE OF TENNESSEE,               )
                                  )    NO. 01C01-9611-CC-00472
      Appellee,                   )
                                  )    CHEATHAM COUNTY
VS.                               )
                                  )    HON. ROBERT E. BURCH,
AUSTIN KIPLING STRATTON,          )    JUDGE
                                  )
      Appellant.                  )    (Sale of Cocaine)



FOR THE APPELLANT:                     FOR THE APPELLEE:

R. N. (BO) TAYLOR (Appeal)             JOHN KNOX WALKUP
112 Long Hollow Pike                   Attorney General and Reporter
Suite 206
Goodlettsville, TN 37072               DARYL J. BRAND
                                       Assistant Attorney General
JAMES M. JOHNSON (Trial Court)         450 James Robertson Parkway
112 Frey Street                        Nashville, TN 37243-0493
Ashland City, TN 37015-1806
                                       DAN M. ALSOBROOKS
                                       District Attorney General

                                       SUZANNE M. LOCKERT
                                       Assistant District Attorney General
                                       P. O. Box 580
                                       Charlotte, TN 37036-0580




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                      OPINION



        Defendant, Austin Kipling Stratton, seeks review of his consecutive sentences

totaling twenty (20) years for various drug offenses. The sentences resulted from a

plea of guilty. We find that the notice of appeal was untimely filed, and no relief is

merited under Tenn. R. Crim. P. 35(b). Accordingly, we affirm the judgment of the

trial court.



                             PROCEDURAL HISTORY



        On October 24, 1994, defendant entered a guilty plea to two (2) counts of

selling cocaine, one (1) count of possession of cocaine with intent to sell, and one (1)

count of simple possession of marijuana. On December 16, 1994, the trial court

sentenced him to ten (10) years in the Tennessee Department of Correction on one

(1) count of selling cocaine; ten (10) years consecutive on the possession of cocaine

with intent to sell; six (6) years concurrent on the other count of selling cocaine; and

eleven (11) months, twenty-nine (29) days on the marijuana possession, concurrent,

for an effective sentence of twenty (20) years. He was represented by the same

counsel at plea and sentencing. After the sentencing, second counsel filed a Motion

for New Trial.    Before it was heard, present counsel was retained.           Counsel

persuaded the trial court to consider the motion for new trial as a Rule 35(b) motion.

After an evidentiary hearing on June 19, 1996, the trial court denied relief. Defendant

filed his notice of appeal on June 28, 1996.



                         UNTIMELY NOTICE OF APPEAL



        Upon pleading guilty and being sentenced, defendant should have filed a

notice of appeal within thirty (30) days after the entry of the judgments. Tenn. R.

App. P. 4(a).    Instead, he filed a motion for new trial.      Such a motion is not

appropriate after a guilty plea. See State v. McClintock, 732 S.W.2d 268, 271 (Tenn.


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1987). The motion did not toll the thirty-day period. Therefore, the notice of appeal

filed in June 1996 was untimely.

       The notice of appeal is not jurisdictional in criminal cases, and its untimely

filing may be waived “in the interest of justice.” Tenn. R. App. P. 4(a). Defendant

was sentenced in December 1994, and the motion for new trial was filed in January

1995. The motion converting the new trial request into a Tenn. R. Crim. P. 35(b)

hearing was not filed and heard until June 1996, some year and a half later. The

record is unclear as to why the delay was so lengthy. We see no reason to waive the

untimely filing in the interest of justice.

       We, therefore, will review the denial of the Tenn. R. Crim. P. 35(b) request for

a reduction in the sentence.1



                          RULE 35 STANDARD OF REVIEW



       Tenn. R. Crim. P. 35(b) authorizes a trial judge to reconsider a previously-

imposed sentence and reduce it if such a reduction is “in the interest of justice.”

Tenn. R. Crim. P. 35(b), Advisory Commission Comments. In contrast to the

standard of review applicable to sentencing appeals perfected under Tenn. Code

Ann. § 40-35-401(d), appellate review of Rule 35(b) rulings is governed by the “abuse

of discretion” standard. State v. Irick, 861 S.W.2d 375, 376 (Tenn. Crim. App. 1993).

       In addition to the present drug convictions, defendant had prior convictions for

possession of marijuana, possession of drug paraphernalia and felony possession

of marijuana with intent to sell. He was on probation for the latter felony offense

when he committed the drug paraphernalia offense.

       Defendant had been doing various drugs for over twenty (20) years and



       1
        We realize the ordinary standard of review of sentences is de novo with a presumption
of correctness. Tenn. Code Ann. § 40-35-401(d). If we had waived the untimely filing of the
notice of appeal, such would have been our standard of review of defendant’s sentences. Even
though we have elected not to waive the untimely filing, we, nevertheless, have examined the
record under the de novo standard with a presumption of correctness. Considering the statutory
guidelines, the sentencing hearing testimony and the entire record, we conclude the trial court
did not err in the imposition of the sentences. Thus, we reach the same conclusion under this
standard of review that we do in reviewing the Tenn. R. Crim. P. 35(b) denial.

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considered himself a drug addict for at least fifteen (15) years. He began selling

drugs in the late 1980's. His employment history was sporadic.             He received

significant financial assistance from his mother. It is also apparent he profited greatly

from the sale of drugs over the years even though he used much of this profit to

purchase drugs for personal use.

       The defendant conceded that he would travel to Nashville approximately twice

a week and purchase approximately five to seven grams of cocaine for resale.

Although the purchase price approximated $50 per gram, defendant’s resale of the

cocaine was for approximately $50 per half gram. The trial court found that

defendant was a “professional criminal” and “an offender whose record of criminal

activity is extensive.” Tenn. Code Ann. § 40-35-115(b)(1) and (2). Accordingly, the

trial court found that running two of the ten-year sentences consecutively was

appropriate. We agree. The testimony of the defendant supports these findings of

the trial court.

       The trial court properly concluded that the defendant had been selling drugs

for a minimum of eight years. The record supports the need to protect society

against further criminal conduct by the defendant, and that the consecutive

sentences are reasonably related to the severity of the offenses committed.

See State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).

       In summary, we find no abuse of discretion in the trial court’s refusal to reduce

defendant’s sentences.



       Accordingly, the judgment of the trial court is affirmed.




                                                   JOE G. RILEY, JUDGE




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CONCUR:




JOE B. JONES, PRESIDING JUDGE




WILLIAM M. BARKER, JUDGE




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