                                                                                           03/25/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs February 12, 2019

            STATE OF TENNESSEE v. LOUIS DANE DEVILLIER

               Appeal from the Circuit Court for Williamson County
        Nos. I-CR099102, I-CR099073, I-CR160704 Michael Binkley, Judge
                    ___________________________________

                           No. M2018-00565-CCA-R3-CD
                       ___________________________________


THOMAS T. WOODALL, J., concurring.

        I concur in the conclusion that the judgments of the trial court should be affirmed
if the decision of this court must be made addressing the merits of the case. However, I
would dismiss the appeal because, as the State correctly points out, the notice of appeal
was not timely filed, and Defendant has failed to seek a waiver of the timely filing of the
notice.

       In its brief, the State clearly raised the issue that the appeal should be dismissed.
The total of what is stated on page 5 is as follows, printed in the same font with bold
capital letters as in the brief:

        STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

              Whether this appeal should be dismissed because the
        notice of appeal was nine days late; alternatively, whether the
        trial court properly sentenced the defendant to confinement
        following his guilty plea to misdemeanor offenses.

      On the first page of the argument section of the State’s brief, footnote 3 takes up
almost one-half of the page, and states as follows, in the same font size as is in the brief:

        3 The State notes that the trial court’s judgments were filed on
        February 15, 2018, but Defendant’s notice of appeal was not filed
        until March 28, 2018, which was nine days late. (I, 47-51, 57-60.)
        The trial court entered a prepared order addressing sentencing
        and Defendant’s report date on March 6, 2018, which is the date
        given for the filing of the judgment on Defendant’s notice of appeal
        document. However, the notice of appeal was still due 30 days
        after entry of the uniform judgment document. Tenn. R. App. P.
        4(a); see State v. Grace Ann Blair, No. M2015-01231-CCA-R3-
        CD, 2016 WL 6776356, at *3 (Tenn. Crim. App. Nov. 16, 2016)
        (filing of the judgment form started the time to file the notice of
        appeal even though the trial court later entered written findings)
        (no perm. app. filed). Accordingly, this appeal should be
        dismissed unless the Court decides to waive the timely filing
        requirement in the interest of justice.

       Finally, in its “CONCLUSION” on page 19 of its brief, the State requests the
following relief:

                                     CONCLUSION

             This appeal should be dismissed because the notice of
        appeal was not timely filed, and Defendant has not sought
        waiver. Alternatively, the judgment of the Williamson County
        Circuit Court should be affirmed.

        Any attorney who read the State’s brief in this case could not fail to see that the
State was requesting the appeal to be dismissed because the notice of appeal was not
timely filed. The State’s brief was filed on October 26, 2018. The record shows that
Defendant’s counsel was also served with a copy of the State’s brief by e-mail on
October 26, 2018. Pursuant to Rule 29(a) of the Tennessee Rules of Appellate
Procedure, Defendant had 14 days to file a reply brief that could have addressed the
State’s accurate claim that the notice of appeal was not timely filed and could have
requested waiver of the timely filing in the interests of justice. Tenn R. App. P. 4(a).
However, no reply brief was filed. In addition, Defendant, through counsel, could have
filed a motion to waive the timely filing of the notice of appeal, but no motion was filed.

       There are at least four explanation for Defendant’s complete failure to address the
State’s request for this court to dismiss the appeal: counsel read the State’s brief, but did
not understand the significance of the State’s argument; counsel understood the State’s
argument but failed to research for an appropriate response; counsel understood the issue
but decided to ignore the issue; or, counsel never read the State’s brief.

      Utter failure by defense counsel in this case to respond to the State’s argument to
dismiss an appeal because of an untimely filed notice of appeal is sadly not an isolated
event. I have seen this identical situation in previous cases, most recently in Lazette

                                            -2-
Sanders v. State, No. W2018-00098-CCA-R3-PC, 2019 WL 911137 (Tenn. Crim. App.
Feb. 21, 2019).

        This court routinely waives the timely filing of a notice of appeal when the
appealing party requests the relief and provides some reason to show that in the interest
of justice the waiver should be granted, even when the time periods of delinquency are
longer than the nine days in this case. However, if a party apparently indicates by
inaction that no interests of justice exist to waive the timely filing of the notice of appeal,
I do not see the need to deny the State’s request to dismiss the appeal in cases such as this
one.

                                    ____________________________________________
                                    THOMAS T. WOODALL, JUDGE




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