         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                   January 27, 2009 Session

                  STATE OF TENNESSEE v. DENNIS BURNETT

                     Appeal from the Criminal Court for Monroe County
                            No. 04-098   Carroll L. Ross, Judge



                   No. E2007-02258-CCA-MR3-CD - Filed August 17, 2009



JAMES CURWOOD WITT , JR., J., concurring.

              I concur in the result reached by the majority; however, I depart slightly from the
majority’s chosen pathway to those results. Specifically, I would hold that the issues raised on
appeal were precluded by the absence of a timely motion for new trial rather than by their absence
from such a motion.

               The “motion” for new trial was filed within the 30-day time limit; however, the
“motion” alleged no ground for a new trial. No amendment was filed within the 30-day time limit
to state grounds for a new trial.

                 To be sure, Tennessee Rule of Criminal Procedure 33(b) provides that the trial “court
shall liberally grant motions to amend the motion for new trial until the day of the hearing on the
motion for a new trial.” See Tenn. R. Crim. P. 33(b). This provision, however, avails only the
defendant who has filed a “motion” and done so in a timely manner. “A motion shall state . . . with
particularity the grounds on which it is made . . . .” Tenn. R. Crim. P. 47(c)(1). In my view, the
putative motion for new trial filed by the defendant was ineffectual because it stated no grounds for
relief. In this situation, no motion existed for subsequent amendment, for the trial court’s
adjudication, or for appellate review.

               All in all, however, this interpretation of the post-judgment actions in this case leads
only to appellate consideration of plain error, which we have duly accorded the defendant in the
majority opinion.


                                                       ___________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE
