        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                 Assigned on Briefs February 23, 2017 at Knoxville

              STATE OF TENNESSEE v. JACQUELINE ALLEN

                Appeal from the Circuit Court for Humphreys County
                        No. 12007 George C. Sexton, Judge
                      ___________________________________

                 No. M2014-01475-CCA-R3-CD – Filed May 3, 2017
                      ___________________________________

The Defendant, Jacqueline Allen, was found guilty by a Humphreys County Circuit Court
jury of assault, a Class A misdemeanor, and possession of a firearm by a convicted felon,
a Class E felony. See T.C.A. §§ 39-13-101 (2010) (amended 2013), 39-17-1307 (2010)
(amended 2012, 2014). The trial court sentenced the Defendant as Range I, standard
offender to an effective two years’ probation. On appeal, the Defendant contends that the
trial court erred by failing to inquire about a violation of the sequestration rule pursuant
to Tennessee Rule of Evidence 615. We conclude that the appeal should be dismissed
because the Defendant’s motion for a new trial was untimely.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and D. KELLY THOMAS, JR., JJ., joined.

James L. Baum, Nashville, Tennessee, for the appellant, Jacqueline Allen.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Ray Crouch, District Attorney General; and Joseph L. Hornick, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

       In 2010, the Defendant was indicted for aggravated domestic assault and
possession of a firearm by a convicted felon. The Defendant proceeded to trial on June
13, 2012, and at the conclusion of the proof, the jury found her guilty of assault and
possession of a firearm by a convicted felon. The judgments reflect that on February 11,
2013, the trial court sentenced the Defendant to an effective sentence of two years’
probation. Also on February 11, 2013, the judgments were entered, and the Defendant
wrote a letter to the trial court stating that she wanted to file an appeal and that she
needed a court-appointed attorney. On March 7, 2013, the Defendant filed a pro se
motion for a new trial in which she alleged that the evidence was insufficient to support
her convictions and requested that the trial court appoint an attorney for the motion. On
June 17, 2013, the trial court entered a written order stating that the Defendant’s pro se
motion for a new trial was heard on June 10, 2013, and that the Defendant did not appear
in court for the motion hearing. As a result, the trial court denied the motion. The order
did not address the Defendant’s request for appointed counsel. A transcript from the
motion hearing is not included in the appellate record. The record reflects no additional
court filings until January 30, 2014.

       On January 30, 2014, trial counsel filed a motion requesting permission to
withdraw as counsel of record because the defendant had filed a petition for post-
conviction relief and had been appointed counsel, who was not identified in the motion.
The record reflects that an amended petition for post-conviction relief was filed on
February 4, 2014, and that an evidentiary hearing was scheduled for May 1, 2014. No
additional information regarding the post-conviction petition is included in the record.
On February 18, 2014, the trial court granted trial counsel’s request to withdraw.

       In June 2014, a subsequent attorney (subsequent counsel) representing the
Defendant filed an “amended motion for a new trial,” alleging that the trial court erred by
failing to hold a hearing after reports that witnesses were talking during the trial in
violation of the sequestration rule. The motion also alleged that the evidence was
insufficient to “sustain a conviction.” On June 25, 2014, the trial court held a hearing on
the amended motion for a new trial, and the transcript reflects that the court denied the
motion at the conclusion of the hearing. On July 21, 2014, subsequent counsel filed a
notice of appeal. The trial court’s written order denying the Defendant’s request for a
new trial was signed by the trial judge on July 30, 2014, and was filed with the trial court
clerk’s office on August 1, 2014.

       As a preliminary matter, we note the unique procedural history in this case. The
record reflects, in relevant part, that the trial court imposed sentencing and entered
judgments on February 11, 2013. On March 7, 2013, the Defendant filed a pro se motion
for a new trial, alleging the evidence was insufficient to support her convictions.
However, trial counsel represented the Defendant until February 18, 2014, more than one
year after the pro se motion was filed.

       Our courts have concluded that that a defendant “does not have a constitutional
right to participate . . . in [her] own defense and simultaneously to be represented by
participating counsel.” State v. Burkhart, 541 S.W.2d 365, 371 (Tenn. 1976); see
Wallace v. State, 121 S.W.3d 652, 655 n.2 (Tenn. 2003); State v. Muse, 637 S.W.2d 468,
470 (Tenn. Crim. App. 1982) (stating a defendant may not file pro se motions while
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represented by counsel). Although the Defendant’s pro se motion for a new trial was
filed within the thirty days required by Tennessee Criminal Procedure Rule 33(b), the
record reflects that the Defendant was represented by trial counsel. As a result, the
Defendant’s pro se motion was a nullity, which rendered the motion filed by subsequent
counsel untimely. See State v. Paul Fred Chappell, No. E2010-02462-CCA-R3-CD,
2012 WL 134236, at *5 (Tenn. Crim. App. Jan. 18, 2012); see also State v. Martin, 940
S.W.2d 567, 569 (Tenn. 1997); State v. Dodson, 780 S.W2d 778, 780 (Tenn. Crim. App.
1989).

       The thirty-day requirement in Tennessee Rule of Criminal Procedure 33(b) is
mandatory and cannot be extended. State v. Bough, 152 S.W.3d 453, 460 (Tenn. 2004);
see Tenn. R. Crim. P. 45(b). A trial court does not have jurisdiction to determine the
merits of an untimely motion for a new trial, and this court is not authorized to waive the
untimely filing of a motion for a new trial. Martin, 940 S.W.2d at 569; see Dodson, 780
S.W.2d at 780; State v. Givhan, 616 S.W.2d 612, 613 (Tenn. Crim. App. 1981).
Therefore, the issues raised in an untimely motion for a new trial court are considered
waived, except sufficiency of the evidence and sentencing. Bough, 152 S.W.2d at 460;
see T.R.A.P. 3(e). Furthermore, an untimely motion for a new trial will generally result
in an untimely notice of appeal, but the notice of appeal is not jurisdictional and may be
waived in the interest of justice. See T.R.A.P. 4(a) (stating the the notice of appeal shall
be filed within thirty days after entry of the judgment from which a defendant appeals).

       The judgments were entered on February 11, 2013, but the motion for a new trial
was filed by subsequent counsel in June 2014. The motion for a new trial was untimely,
which resulted in an untimely notice of appeal. Although we may waive the timely filing
of the notice of appeal in the interest of justice, we cannot do the same for the untimely
motion for a new trial. The Defendant’s sole issue on appeal is whether the trial court
erred by failing to investigate an alleged violation of Tennessee Rule of Evidence 615,
not sufficiency of the evidence or sentencing. Therefore, we conclude that the
Defendant’s issue is waived and that the appeal should be dismissed.

        In consideration of the foregoing and the record as a whole, the appeal is
dismissed.



                                             ____________________________________
                                             ROBERT H. MONTGOMERY, JR., JUDGE




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