         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs August 15, 2001

           STATE OF TENNESSEE v. WILLIAM EDWIN LAMBETH

                 Direct Appeal from the Criminal Court for Dickson County
                          No. CR-4443    Allen W. Wallace, Judge



                   No. M2000-00882-CCA-R3-CD - Filed September 7, 2001

A Dickson County Grand Jury indicted the defendant for rape, and the defendant was convicted of
the lesser-included offense of sexual battery. The defendant filed a timely motion for new trial,
which was subsequently withdrawn. Almost two months later, the defendant filed a pro se motion
alleging his motion for new trial was unilaterally and improperly withdrawn by counsel. Eventually,
the trial court held that it lacked jurisdiction to hear the motion for new trial since the defendant's
original motion had been withdrawn, and no timely motion was pending. On appeal, defendant
contends the trial court’s jury charge authorized the jury to convict based on lack of consent, when
“force or coercion” was alleged in the indictment. We conclude the motion for new trial was not
properly before the trial court, thereby waiving this issue. Nevertheless, we have examined the issue
for plain error and conclude defendant’s allegation of error is totally without merit. The judgment
of the trial court is affirmed.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOE G. RILEY, J., delivered the opinion of the court, in which DAVID H. WELLES and JAMES
CURWOOD WITT, JR., JJ., joined.

William B. Lockert, III, District Public Defender (at trial), and Timothy V. Potter, Dickson,
Tennessee (on appeal), for the appellant, William Edwin Lambeth.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney
General; Dan Mitchum Alsobrooks, District Attorney General; and Carey J. Thompson, Assistant
District Attorney General, for the appellee, State of Tennessee.




                                             OPINION
                                 PROCEDURAL BACKGROUND

        The defendant was convicted of sexual battery, and the trial court sentenced him on July 23,
1999, to four years as a Range II multiple offender. The defendant timely filed a motion for new
trial on August 16, 1999. On January 24, 2000, the defendant's trial counsel filed a motion to
withdraw the motion for new trial, which was granted by order entered January 25, 2000. On March
15, 2000, the defendant filed a pro se motion to amend the "fraudulently withdrawn motion for new
trial.”

          On May 24, 2000, the trial court appointed new counsel. On July 26th, the trial court ruled
that it lacked jurisdiction to hear the motion for new trial because the defendant's timely motion for
new trial had been withdrawn. The defendant’s newly appointed counsel then appealed to this court.

        The sole assignment of error in this appeal is whether the trial court erred in its jury charge
relating to the elements of the sexual offenses. Specifically, defendant contends the indictment
alleged sexual misconduct by “force or coercion,” whereas the jury charge authorized a conviction
based upon lack of consent. See Tenn. Code Ann. § 39-13-503(a)(1), (2).


                        TIMELINESS OF MOTION FOR NEW TRIAL

A. Standard of Review

        A motion for new trial “shall be made . . . within thirty days of the date the order of sentence
is entered.” Tenn. R. Crim. P. 33(b). This provision is mandatory, and the time for filing may not
be extended. See Tenn. R. Crim. P. 45(b); see also State v. Martin, 940 S.W.2d 567, 569 (Tenn.
1997); State v. Dodson, 780 S.W.2d 778, 780 (Tenn. Crim. App. 1989). The thirty (30) day
provision is jurisdictional, and an untimely motion is a nullity. Dodson, 780 S.W.2d at 780. It
deprives the appellant of the opportunity to argue on appeal any issues that should have been raised
in the motion for new trial. Martin, 940 S.W.2d at 569. Furthermore, the untimely filing of a motion
for new trial does not toll the time for filing a notice of appeal; thus, an untimely motion for new trial
will also result in an untimely notice of appeal. See State v. Davis, 748 S.W.2d 206, 207 (Tenn.
Crim. App. 1987). Unlike the untimely filing of the notice of appeal, this court does not have the
authority to waive the untimely filing of a motion for new trial. See Tenn. R. App. P. 4(a); State v.
Givhan, 616 S.W.2d 612, 613 (Tenn. Crim. App. 1980). However, this court, in its discretion, may
take notice of plain error which affects a substantial right of the defendant where it may be necessary
to do substantial justice. Tenn. R. Crim. P. 52(b); State v. Johnson, 980 S.W.2d 414, 418 (Tenn.
Crim. App. 1998).




B. Analysis

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       The defendant was sentenced on July 23, 1999, and the motion for new trial was filed on
August 16, 1999, well within the thirty-day requirement. See Tenn. R. Crim. P. 33(b). The
defendant then filed a motion to withdraw the motion for new trial, and the trial court entered an
order withdrawing the motion for new trial on January 25, 2000. The attempt to revive the motion
for new trial, filed almost two months later, was a nullity. Furthermore, the subsequently filed notice
of appeal was untimely.

       Nevertheless, we elect to waive the timely filing of the notice of appeal. We will address the
merits of the assignment of error under the plain error doctrine.


                                     JURY INSTRUCTIONS

        In this appeal, the defendant alleges his conviction must be reversed because the trial court
instructed the jury that the state could prove rape and sexual battery by (1) force or coercion, or (2)
lack of consent, while the indictment alleged only that the defendant “did unlawfully, feloniously,
forcibly, coercively, intentionally or knowingly sexually penetrate [the victim] in violation of Tenn.
Code Ann. § 39-13-503, a Class B Felony.” (Emphasis added). The indictment did not expressly
allege that the sexual penetration was “accomplished without the consent of the victim.” See Tenn.
Code Ann. § 39-13-503(a)(2).

       The trial court instructed the jury on rape as follows:

       For you to find the defendant guilty of [rape], the state must have proven beyond a
       reasonable doubt the existence of the following essential elements:

       (1) that the defendant had unlawful sexual penetration of the alleged victim
       or the alleged victim had unlawful sexual penetration of the defendant; and

       (2) that force or coercion was used to accomplish the act; or

       (3) that the sexual penetration was accomplished without the consent of the alleged
       victim and the defendant knew, or had reason to know, at the time of the penetration
       that the alleged victim did not consent; and

       (4) that the defendant acted intentionally, knowingly or recklessly.

(Emphasis added).

       The trial court further instructed the jury on the lesser-included offense of sexual battery as
follows:



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       For you to find the defendant guilty of [sexual battery], the state must have proven
       beyond a reasonable doubt the existence of the following essential elements:

       (1) the defendant had unlawful sexual contact with the alleged victim in which the
       defendant intentionally touched the alleged victim’s intimate parts, or the clothing
       covering the immediate area of the alleged victim’s intimate parts; and

       (2) that force or coercion was used to accomplish the act; [and]

       (3) that the defendant acted intentionally, knowingly or recklessly.

        Regardless of whether or not the jury charge was improper with regard to rape, an issue
which we need not decide, defendant’s argument must fail. The defendant was acquitted of rape,
making the issue moot as to that charge. As to sexual battery, for which defendant was convicted,
the jury charge required proof of “force or coercion” and makes no mention of lack of consent.
According, the issue raised in this appeal is totally devoid of merit.


                                        CONCLUSION

       Based on the foregoing, we affirm the judgment of the trial court.




                                                     ___________________________________
                                                     JOE G. RILEY, JUDGE




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