         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON


               MICHAEL K. KENNEDY v. STATE OF TENNESSEE

                       Appeal from the Circuit Court for Chester County
                             No. 00-072 Roy B. Morgan, Judge



                   No. W2004-00178-CCA-R3-HC - Filed February 11, 2005


The Petitioner, Michael K. Kennedy, appeals the trial court's denial of his petition for habeas corpus
relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief
pursuant to Rule 20, Rules of the Court of Criminal Appeals. It appears from the record before us
that the notice of appeal was not timely filed and this Court cannot conclude that justice requires that
this Court waive the timely filing requirement. Accordingly, the State’s motion is granted and the
above-captioned appeal is dismissed.

 Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed Pursuant to Rule 20, Rules of
                            the Court of Criminal Appeals

ALAN E. GLENN , J., delivered the opinion of the court, in which DAVID G. HAYES and J.C. MCLIN ,
JJ., joined.

Michael K. Kennedy, pro se.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General,
for the appellee, State of Tennessee.


                                   MEMORANDUM OPINION

        On December 4, 2001, Petitioner Michael K. Kennedy pled nolo contendere to numerous
burglary, theft and vandalism charges in Chester and Henderson Counties, reserving a certified
question of law pursuant to the plea agreement. See State v. Michael Kennedy, No. W2001-03107-
CCA-R3-CD, 2003 WL 402798, * 1(Tenn. Crim. App., at Jackson, Feb. 21, 2003), perm. to appeal
denied, (Tenn. May 27, 2003). For his convictions, the Petitioner received an effective sentence of
fifteen years. Id. On appeal, this Court determined that it did not have jurisdiction over three of the



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Henderson County convictions as the issue was not dispositive. Id. The Court affirmed the
remaining convictions. Id.

         On October 14, 2003, the Petitioner filed a petition for habeas corpus relief in the Circuit
Court for Chester County. As grounds for relief, Petitioner asserted that the judgments are void and
his sentence of confinement is illegal because (1) the trial court was without the statutory authority
to order restitution along with a sentence of confinement, (2) the trial court was not empowered to
determine and order the payment of restitution without proof of actual loss, (3) the value element mst
be charged in the indictment and must be proven beyond a reasonable doubt , and (4) the trial court
had no authority to impose a fine where there was no written waiver of the right to have the jury
impose the fine. Petitioner also claimed that his guilty pleas were not knowingly and voluntarily
entered. On November 26, 2003, the trial court appointed counsel, in case number 03-4442,
pursuant to sections 8-14-205 and 40-30-207, Tennessee Code Annotated. On December 1, 2003,
the trial court dismissed a petition for post-conviction relief filed by Petitioner. On December 5,
2003, the habeas court denied relief for the following reasons, (1) the petition was not filed in the
proper venue, (2) the Petitioner’s issues regarding restitution are moot since none of the judgments
require the payment of restitution, (3) the Petitioner’s argument that the court lacks authority to order
restitution along with confinement is erroneous, (4) the Petitioner waived his right to a jury trial and
agreed to the sentence imposed, therefore, he waived any right to have a jury determine the value of
restitution, and (5) Apprendi v. New Jersey is not applicable to theft cases where the Petitioner
waives his right to a jury trial and admits all the necessary elements of the offense.

        A notice of appeal document was filed, in case 00-072, on January 22, 2004, in the Chester
County Circuit Court. Within the document, Petitioner explained that the late-filing of the notice
of appeal document was caused by his belief that appointed counsel would have filed a notice on his
behalf. No motion to excuse the late-filed notice of appeal document was filed with this Court.

         Pursuant to Rule 4, Tennessee Rules of Appellate Procedure, a notice of appeal shall be filed
within thirty days after entry of the judgment from which an appeal is sought. In criminal
proceedings, however, the notice is not jurisdictional. Accordingly, this Court may review untimely
appeals and determine whether the notice requirement should be waived. Tenn. R. App. P. 4.
Waiver is not automatic and should only occur when “the interest of justice” mandates waiver. To
hold otherwise, by summarily granting waiver whenever confronted with untimely notices, renders
the thirty day requirement a legal fiction and circumvents the rule. See Michelle Pierre Hill v. State,
No. 01C01-9506-CC-00175, 1996 WL 63950, *1 (Tenn. Crim. App., at Nashville, Feb. 13, 1996),
perm. to appeal denied, (Tenn. May 28, 1996).

        Although Petitioner’s filing was pro se, Rule 4, Tennessee Rules of Appellate Procedure,
does not relieve pro se appellants from the thirty day notice requirement. Thus, Petitioner’s pro se
status remains but one factor in deciding whether the interest of justice mandates waiver of the thirty
day notice requirement. In determining whether waiver is appropriate this Court shall consider the
nature of the issues for review, the reasons for the delay in seeking relief, and other relevant factors
presented in each case.

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        Our review of the record before us reveals the following:
        1. Petitioner failed to attach his judgment forms to his petition, a requirement under
Tennessee Code Annotated § 29-21-107(b)(2). A trial court may dismiss a petition for failure to
comply with the statute. State ex rel. Wood v. Johnson, 216 Tenn. 531, 393 S.W.2d 135, 136 (Tenn.
1965). This, however, is not the court’s only option. The habeas court may choose to permit the
petitioner the opportunity to comply with the procedural requirements, or the habeas court may
choose to adjudicate the petition on its merits. Hickman v. State, No. E2002-01916-SC-R11-PC,
2004 WL 2563267, *3 (Tenn. Sept.2, 2004) (for publication). It appears that the habeas court
elected to review the petition on its merits. The habeas court found that the Petitioner was not
entitled to relief. As the judgments of conviction are not contained in the appellate record, this Court
must presume the findings of the trial court correct. It is the appellant's duty to prepare a record
which conveys a complete account of what transpired in the lower court with respect to the issues
presented on appeal and failure to do so may result in waiver of that issue. See Tenn. R. App. P.
24(b).


        2. Petitioner filed his petition in Chester County rather than in Wayne County where he was
confined. The defendant seeking habeas corpus relief should apply to the court most convenient in
distance unless a sufficient reason exists to apply elsewhere. Tenn. Code Ann. § 29-21-105. The
Petitioner asserts that the convicting court possessed all of the records relevant to his sentence. Also,
the issue relates to a void sentence, which the convicting court can correct at any time, not a void
conviction in terms of the verdict of guilt. These circumstances have been held to provide a
sufficient reason for a defendant striving to correct an illegal sentence to file his habeas corpus
petition in the convicting court. See, e.g., State v. Donald Ree Jones, No. M2000-00381-CCA-R3-
CD, 2000WL1520012, *1 (Tenn. Crim. App., at Nashville, Oct. 13, 2000).

       3. The Petitioner’s fifteen-year sentence has not expired.

        4. The record before this Court reveals that counsel was appointed to represent Petitioner in
case number 03-4442, the post-conviction proceeding, and not case 00-072, the habeas corpus
proceeding. Accordingly, Petitioner’s reliance upon trial counsel to file a notice of appeal document
in case 00-072 is misplaced.


       We conclude that the record evinces no basis for determining that justice requires us to excuse
the timely filing of a notice of appeal. In absence of a timely filed notice of appeal, the above-
captioned appeal is dismissed. Costs of this appeal are taxed to the State.



                                        ____________________________________
                                                          ALAN E. GLENN, JUDGE


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