        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE             FILED
                        MARCH SESSION , 1998           May 15, 1998

                                                 Cecil W. Crowson
STATE OF TENNESSEE,        )                   Appellate Court Clerk
                                C.C.A. NO. 01C01-9704-CC-00148
                           )
      Appellee,            )
                           )
                           )    FRANKLIN COUNTY
VS.                        )
                           )    HON. BUDDY D. PERRY
TED RAY BRANNAN,           )    JUDGE
                           )
      Appe llant.          )    (Aggra vated B urglary an d The ft)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CIRCUIT COURT OF FRANKLIN COUNTY


FOR THE APPELLANT:              FOR THE APPELLEE:

PHILIP A. CONDRA                JOHN KNOX WALKUP
Public Defender                 Attorney General and Reporter
204 Betsy P ack Drive
Jasper, TN 37347                DARYL J. BRAND
                                Assistant Attorney General
                                425 Fifth Avenu e North
                                Nashville, TN 37243-0493

                                J. MICHAEL TAYLOR
                                District Attorney General

                                STEVEN M. BLOUNT
                                Assistant District Attorney General
                                324 Dinah Shore Blvd.
                                Win cheste r, TN 37 398




OPINION FILED ________________________

APPEAL DISMISSED

DAVID H. WELLES, JUDGE
                                        OPINION

       The Defen dant, Ted Ray Brannan, appeals as of right pursuant to Rule 3

of the Tennessee Rules of Appellate Procedure. He was convicted by a Fr anklin

Coun ty jury of one count of aggrava ted burg lary and o ne cou nt of theft of p roperty

valued in excess of one thousand dollars ($1000) but less than ten thousand

dollars ($10,000). 1        For the aggra vated burglary co nviction, the trial court

sentenced him as a Range III persistent o ffender to ten years imprison ment w ith

the Departm ent of Correction . For the theft conviction, the trial court sentenced

him as a care er offend er to twelve years imprisonm ent. The se ntences we re

ordered to run concurrently. In this appeal, the Defendant raises five issues:

       1) That the evide nce wa s legally insu fficient to sup port the ve rdicts
       because the testimony of the Defendant’s accomplice was not
       adequately corroborated;
       2) that the trial court erred in charging the pattern jury instruction
       defining accomplice;
       3) that he was denied due process by the State’s failure to produce
       the ac com plice’s p rior state men t until trial;
       4) that he was denied his right to confront witnesses by the trial
       court’s restriction of cross-examination of the accomplice on the
       subject of the accomplice’s pretrial diversion application; and,
       5) that he was denied due process by the State’s failure to disclose
       alleged discussions of leniency for the accomplice in exchange for
       his testim ony aga inst the D efenda nt.

As we will discuss below, we conclude that the Defendant has waived

consideration of issues two through five becau se he faile d to file a timely motion

for new trial. Furthe rmor e, bec ause the De fenda nt also failed to file a tim ely

notice of appeal, we conclude that he has waived consideration of his first issue,

and w e there fore dis miss this ap peal.




       1
           Tenn. Code A nn. §§ 39-14-403, 39-14-103 , and 39-14-105(3).

                                                 -2-
      W e begin with a very brief summary of the pertinent facts. On January 10,

1994, the home of J.C. Garner was burglarized. An item of jewelry and three

shotgu ns were taken from the hom e. Charles R ose drove by the Garner home

at approximately noon on January 10, 1994. He observed a blond-haired young

man stand ing ne ar the ro ad cra dling g uns in his arms a nd dec ided to inve stigate

the situation further. As he drove up the road a short distance loo king for a

suitab le place to turn around, he passed a brown van. Rose turned around and

drove back toward the spot where the young man had been standing. En route,

he again passed the brow n van, this tim e traveling in the opp osite direc tion. He

could not find the blond-haired young man.



      A short time later, a brown van was stopped in nearby Coffee County. The

driver of the van was the Defendant. Mickey Arp was a passenger in the van.

Police officers discovered three shotguns concealed under some clothing in the

rear of the van and a woman’s gold watch on the person of Mickey Arp. J.C.

Garner later identified the property as having been taken from his home. It

appears that at the time of the crimes, Mickey Arp was nineteen years old and

had blond h air. The Defe ndant was forty years old and h ad brown h air.



      Mickey Arp implicate d the De fendan t in the com mission of the crim es. Arp

testified that the Defe ndan t picke d him up and drove to the Garner home. The

Defendant then told Arp which door Garner left unlocked and the location of the

guns in the hom e. Acco rding to Arp, the Defendant told him that he would drop

Arp off, drive down the roa d a short distance, turn around and come back to pick

Arp up outside the hom e. J.C. Garner testified that he had known the Defendant




                                          -3-
since the latter had been a child. Garner stated that the Defe ndan t had b een in

his home several times.



       On March 8, 1994, the Defendant and Mickey Arp were jointly indicted on

charges of aggravated burglary and theft of property valued between one

thousand dollars ($1000) and ten thousand dollars ($10,000). Mickey Arp’s case

was later severed from th e Defendant’s case. The Defendant was tried on

September 1, 1994, and found guilty as charged.



       It is at this point in the procedural history of the Defendant’s case that the

problems which lead to our disposition of this ap peal d evelop . The D efend ant’s

sentencing hearing was orig inally set for O ctober 1 1, 1994 . Up to that point, the

Defendant had been represented by the District Public Defender. On October 11,

1994, however, the D efendant inform ed the trial court that he had retained an

attorney, Arthur Jenkins, to represent him. In response, the trial court entered an

order relieving the Dis trict Pub lic Defe nder a nd en tering A rthur Je nkins as

counsel of record. The trial court continued the sentencing hearing to November

4, 1994, to allow new counsel time to prepare. The sentencing hearing was

conducted on No vemb er 4, with the Defen dant rec eiving a ten -year Ra nge III

persistent offender sentence for aggravated burglary and a twelve-year career

offende r senten ce for theft.



       On November 9, 1994, in response to confusion over who bore the

respon sibility for preparing the transcript of the evidence for appeal, the District

Public D efende r filed a mo tion to ascertain the resp onsibilities o f his office with

regard to representation of the Defendant. The District Public Defender sent

                                          -4-
notice to the D istrict Attorney General’s office and to Arthur Jenkins that he

intended to bring the motion before the trial court for a hearing on November 18,

1994. The trial court did indeed conduct a hearing on the motion on November

18, 1994, at which time the trial court reaffirmed that the District Public Defender

had been relieved of representing the Defendant and that Arthur Jenkins was

counsel of record for all further proceedings. An order was filed to that effect on

December 15, 199 4, nunc pro tunc. On December 1, 1994, Arthur Jenkins filed

a motion seeking to be relieve d as cou nsel for the Defen dant and to have the

District Public D efende r reinstated . It appears , howeve r, that the motion was

never presented to the trial court for a hearing.



       Nothing further too k place re garding the Defe ndant’s case for many

months. On November 22, 1995, the Defendant filed a complaint against Arthur

Jenkins with the Board of Professional Responsibility, alleging that he had been

having difficulty communicating with Jenkins about the status of his case. On

January 9, 1996, the trial judge conducted a hearing in chambers, at which time

he relieved Arthu r Jenk ins as c ouns el of rec ord, re instate d the D istrict Pu blic

Defende r, and allowed for a “delay ed app eal” by gra nting thirty days within which

to file a motion for new trial. On February 9, 1996, the District Public Defender

filed a motion for new trial, which was amended on Oc tober 15 , 1996. The trial

judge conducted a hearing on the motion for new trial on November 18, 1996, at

which time he denied the motion. The District Public Defender filed a notice of

appeal on December 11, 1996.



       Having set forth the proced ural back ground of the pres ent case, we turn

now to the principles which lead to our d ispos ition. A m otion fo r new tr ial is

                                          -5-
required to be filed “w ithin thirty days of the date th e orde r of sen tence is

entered .” Tenn. R. Crim. P. 33( b). Th is time period is mandatory and cannot be

extended. Tenn . R. Crim . P. 45(b); State v. Martin , 940 S.W.2d 567, 569 (Tenn.

1997); State v. Dodson, 780 S.W.2d 778, 780 (Tenn. Crim. App. 1989). A trial

court does not have jurisdiction to hear and determine the merits of a motion for

new trial which h as not be en time ly filed. Martin , 940 S.W .2d at 569 ; Dodson,

780 S.W .2d at 7 80. Th us, a tria l court’s errone ous c onsid eration of an u ntime ly

motion for new trial d oes no t validate the motion . Id. The failure to file a motion

for new trial in a timely manner renders waived those issues which may re sult in

the granting of a new trial. Id. In other wo rds, an a ppellate court will not consider

any issue raised in the motion unless it would result in dismissal of the

prosec ution. Id.



       In the case sub judice, the order of sentence was entered on November 4,

1994. The Defendant filed a motion for new trial on February 9, 1996, well after

the expiration of the thirty-day period. As a result, we can only conclude that the

Defendant has waived con sidera tion of is sues two thro ugh five raised on this

appe al. 2 Becau se of the untimely motion for new trial, our review is confined

solely to the first issue on appeal, addressing the sufficiency of the evidence.

See Dodson, 780 S.W.2d at 780.




       2
        Of course, this Court has discretion to review the record for apparent errors to
prevent needless litigation, injury to the interest of the public and prejudice to the judicial
process. Tenn. R. App. P. 13(b). Furthermore, it is within this Court’s discretion to notice at
any time an error affecting a substantial right of the defendant, even though not raised in a
motion for new trial, where necessary to do substantial justice. Tenn. R. Crim. P. 52(b).
We decline to exercise our discretion in the case at bar.

                                              -6-
       In addressing the Defendant’s first issue, challenging the sufficiency of the

convicting evidence, we are faced with another problem stemming from the

failure to file a mo tion for new trial in a timely fa shion. A notice of appe al is

required to be filed with the clerk of the trial court within thirty days afte r the date

of entry of the judg ment o r order from which re lief is sough t. Tenn. R . App. P .

4(a). Timely filing of a motion for new trial tolls this period until entry of the order

denying the m otion for new trial. Ten n. R. App. P. 4 (c).



       In the present case, because the untimely motion for new trial was a nullity,

it did not toll the thirty-day pe riod for filing a n otice of ap peal. See State v. Davis ,

748 S.W .2d 206 , 207 (T enn. C rim. App . 1987). The Defendant filed his notice

of appeal on December 11, 1996, well beyond the thirty-day period from the entry

of the judgments of conviction on November 4, 1994.



       Of course, Rule 4(a) of the Tennessee Rules of Appellate Procedure

provides that the notice of app eal do cum ent is n ot jurisd ictiona l and th at time ly

filing may therefore be waived in the interest of justice. In the case sub judice,

however, the Defendant has failed to present any reason why the interest of

justice requires waiver of th e nece ssity for timely filing o f a notice o f appea l. We

find nothing in the record before this Court from which we can conclude that the

interes t of justic e requ ires us to waive timely filin g of the notice of app eal.



       For the rea sons set forth in the d iscuss ion ab ove, w e con clude that the

Defendant has waived consideration of issues two through five because he failed

to file a timely motion for new trial and has waived consideration of his first issue




                                            -7-
because he failed to file a timely notice of appeal. We therefore dismiss this

appe al.




                               ____________________________________
                               DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JOSEPH M. TIPTON, JUDGE



___________________________________
JOE G. RILEY, JUDGE




                                     -8-
