        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs March 30, 2010

               TOMMY RAY YOUNG v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Campbell County
                       No. 14200    E. Shayne Sexton, Judge




                   No. E2009-01971-CCA-R3-PC - Filed June 8, 2010


The petitioner, Tommy Ray Young, appeals from the summary dismissal of his petition for
post-conviction relief. In this appeal, both the petitioner and the State argue that the post-
conviction court erred by dismissing the petition without a hearing. We agree. Accordingly
the judgment of the post-conviction court is reversed, and the case is remanded for the
appointment of counsel and an evidentiary hearing.

   Tenn. R. App. P. 3; Judgment of the Criminal Court Reversed and Remanded

J AMES C URWOOD W ITT , J R., J., delivered the opinion of the Court, in which D. K ELLY
T HOMAS, J R., and C AMILLE R. M CM ULLEN, JJ., joined.

Tommy Ray Young, Mountain City, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Lacy Wilber, Assistant Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

                On June 29, 2000, a Campbell County Criminal Court petit jury convicted the
petitioner of aggravated robbery for the November 14, 1999 robbery of the Eagle Market in
Jacksboro. Following the trial court’s imposition of a Range III sentence of 30 years’
incarceration on October 11, 2000, the petitioner filed a motion on February 20, 2001, asking
the trial court’s permission to late-file his motion for new trial. See State v. Tommy Ray
Young, No. E2006-00570-CCA-R3-CD (Tenn. Crim. App., Knoxville, Sept. 11, 2007)
(order). On March 12, 2001, the petitioner’s trial counsel filed a motion styled “motion for
new trial,” but he failed to include within the motion any grounds for relief. Id. The
petitioner’s trial counsel filed a motion to withdraw on January 28, 2001, see id., and on May
3, 2001, the petitioner filed a motion seeking trial counsel’s removal. In his motion seeking
removal of counsel, the petitioner again moved the trial court for permission to late-file his
motion for new trial, and he alleged as grounds for relief that his trial counsel had performed
deficiently by failing to timely seek a new trial, that “a certain juror” should have been
excused, and that a sheriff’s deputy tainted the jury’s deliberations. He also noted that “many
other instances” of his counsel’s ineffective performance existed. In October 2003, the
petitioner’s newly-appointed counsel, Mr. Tom Barclay, filed an “Amended Motion for New
Trial” alleging as grounds for relief various instances of trial counsel’s ineffective
representation. In October 2004, the trial court granted Mr. Barclay’s motion to withdraw
and appointed Mr. Michael Hatmaker to represent the petitioner. One month later, the trial
court replaced Mr. Hatmaker with Mr. Robert Scott.

               Finally, on February 15, 2006, the trial court held a hearing on the petitioner’s
pending motion for new trial, which it styled as a hearing on the “Petition for Post-
Conviction Relief and Motion for New Trial.” At the beginning of the hearing, the court
asked whether the petitioner was “incorporating a motion for new trial with the post-
conviction relief,” and Mr. Scott answered that the petitioner had “not actually filed it as a
post-conviction, but it’s sort of morphed into that.” The State filed a copy of the trial
transcript, and both parties presented proof on the issues raised in the amended motion for
new trial.

              Following the trial court’s denial of relief, the petitioner appealed to this court.
On September 11, 2007, this court entered an order partially granting the State’s motion to
dismiss the appeal on the basis that the defendant’s motion for new trial and his notice of
appeal had not been timely filed. See id.; State v. Tommy Ray Young, No. E2006-00570-
CCA-R3-CD, slip op. at 1 (Tenn. Crim. App., Knoxville, Feb. 20, 2008). We ruled that
because the petitioner’s motion for new trial was untimely, our review was limited to
evaluating the sufficiency of the convicting evidence. See Tommy Ray Young, slip op. at 1.
We also concluded that the trial court’s “effort to withdraw the original judgment after it had
become final and substitute an amended judgment was ineffective.” See Tommy Ray Young,
order at 2. The petitioner then filed an unsuccessful application for permission to appeal to
our supreme court. See State v. Tommy Ray Young, No. E2006-00570-SC-R11-CD (Tenn.
Aug. 25, 2008).

                On August 14, 2009, the petitioner filed a petition for post-conviction relief
using a fill-in-the-blank form and alleging as grounds for relief the ineffective assistance of
counsel and the State’s use of “illegal” evidence. The post-conviction court summarily
dismissed the petition, concluding that “a full and fair hearing” on the claims raised in the
petition “was conducted February 15, 2006 and a ruling on the merits was rendered.” The
court held that the petition was subject to summary dismissal as a second petition for post-

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conviction relief and that the claims in the petition had been both waived and previously
determined. The petitioner filed a timely appeal in this court.

               In this appeal, the petitioner contends that the post-conviction court erred by
summarily dismissing his petition because it was not a second petition for relief and because
he had not been given a full and fair hearing on the merits of his claim of ineffective
assistance of counsel. The State agrees, noting that because the petitioner’s motion for new
trial was not timely, the trial court’s hearing on the motion was a legal nullity. We agree.

                A motion for new trial must be made in writing or reduced to writing within
thirty days of the “date the order of sentence is entered.” Tenn. R. Crim. P. 33(b). We stress
that this provision is mandatory, and the time for the filing cannot be extended. Tenn. R.
Crim. P. 45(b); State v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997). In consequence, a trial
court has no jurisdiction to hear or determine the merits of an untimely motion for new trial.
Martin, 940 S.W.2d at 569 (citing State v. Dodson, 780 S.W.2d 778, 780 (Tenn. Crim. App.
1989); State v. Givhan, 616 S.W.2d 612, 613 (Tenn. Crim. App. 1981); Massey v. State, 592
S.W.2d 333, 334-35 (Tenn. Crim. App. 1979)). A motion for new trial which is not timely
filed is a nullity, see State v. Blunkall, 731 S.W.2d 72, 74 (Tenn. Crim. App. 1987) (citing
State v. Lane, 689 S.W.2d 202 (Tenn. Crim. App. 1984); State v. Williams, 675 S.W.2d 499
(Tenn. Crim. App. 1984)), as is the erroneous consideration of a motion for new trial not
timely filed, Martin, 940 S.W.2d at 569. Furthermore, the appellate court is precluded from
considering any issue raised in an untimely motion for new trial for which the remedy is a
new trial. Tenn. R. App. P. 3(e).

               Here, the trial court was without jurisdiction to consider any claim raised in the
petitioner’s untimely motion for new trial the relief for which would be a new trial. This
specifically includes a claim that the petitioner was denied the effective assistance of counsel.
Because the trial court was without jurisdiction to hear the claims raised in the untimely
motion for new trial, the February 15, 2006 hearing and subsequent order purporting to
adjudicate those claims were a legal nullity.1

               Furthermore, because the hearing was a nullity, the petitioner has not been
afforded a full and fair hearing on his claims. Nor has his claim that he was denied the
effective assistance of counsel been waived or previously determined. See T.C.A. § 40-30-
106(g)-(h) (2006). In consequence, the post-conviction court erred by summarily dismissing


        1
           We also note that the fact that the petitioner asserted ineffective assistance of counsel as a ground
for relief in his motion for new trial would not transform the motion into a petition for post-conviction relief.
Although alleging ineffective assistance of counsel in a motion for new trial and on direct appeal is risky,
it is not prohibited. See, e.g., State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn. 2001).

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his petition for post-conviction relief filed on August 14, 2009.

             Accordingly, the judgment of the post-conviction court is reversed, and the
case is remanded for the appointment of counsel and an evidentiary hearing.


                                                   _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




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