                      IN THE COURT OF APPEALS OF TENNESSEE
                                   AT JACKSON
                                      On-Briefs November 29, 2006

                     STATE OF TENNESSEE v. ANTONIO D. ADAMS

                     A Direct Appeal from the Criminal Court for Shelby County
                      No. JV-00139     The Honorable Arthur T. Bennett, Judge



                        No. W2005-02972-COA-R3-JV - Filed January 17, 2007


        Appellant appeals the Criminal Court of Shelby County’s dismissal of his appeal from the
Juvenile Court of Shelby County. The Criminal Court found that Appellant’s notice of appeal was not
timely filed under T.C.A. § 37-1-159. Finding that the Appellant’s appeal was timely, we reverse and
remand.

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

W . F RANK C RA W FO RD , P.J., W .S., delivered the opinion of the court, in which A LAN E. H IGHERS , J. and D AVID R.
F ARM ER , J., joined.

W illiam E. Robilio, Assistant Public Defender, Memphis, Tennessee for Appellant, Antonio Adams

Paul G. Summers, Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General, Nashville, Tennessee
for Appellee, State of Tennessee

                                                    OPINION

       On September 16, 2005, a petition alleging that the juvenile defendant, Antonio D. Adams
(“Adams,” or “Appellant”), was in unlawful possession of a handgun was filed in the Juvenile Court
of Shelby County. On September 23, 2005, following a hearing, the Juvenile Court Referee entered
an Order recommending that Adams be committed to the Department of Children’s Services. On
October 12, 2005, Adams filed a pro se notice of appeal to the Criminal Court of Shelby County.
On November 21, 2005, a hearing was held in the Criminal Court during which the State of
Tennessee (“State,” or “Appellee”) argued that Adams’s appeal should be dismissed as time-barred
because it was not filed within ten (10) nonjudicial days of the Referee’s recommendation. On
November 21, 2005, the trial court issued an order dismissing Adams’s appeal as time-barred.
Adams appeals and raises one issue for review as stated in his brief:

                  Did the Criminal Court err when it dismissed Appellant’s appeal of
                  a finding of delinquency from Juvenile Court to Criminal Court, on
                 the basis that it was not timely filed pursuant to Tenn. Code Ann. §
                 37-1-159.

        The application of T.C.A. § 37-1-159 is a question of law. As such, our review of the trial
court’s order is de novo upon the record with no presumption of correctness accompanying the trial
court’s conclusions of law. See Tenn. R. App. P. 13(d); Waldron v. Delfss, 988 S.W.2d 182, 184
(Tenn. Ct. App. 1998); Sims v. Stewart, 973 S.W.2d 597, 599-600 (Tenn. Ct. App. 1998).

        T.C.A. § 37-1-159 (2005) provides, in relevant part:

                 The appeal shall be perfected within ten (10) days, excluding
                 nonjudicial days, following the juvenile court's disposition. If a
                 rehearing of a matter heard by a referee is not requested or provided
                 pursuant to § 37-1-107(e), the date of the expiration of the time
                 within which to request rehearing shall be the date of disposition for
                 appeal purposes, and the parties and their attorneys shall be so
                 notified by the referee. If there is a rehearing by the judge, the appeal
                 period shall commence the day after the order of disposition is
                 entered.1

T.C.A. § 37-1-107(e) provides:

                 (e) Any party may, within five (5) days thereafter, excluding
                 nonjudicial days, file a request with the court for a hearing by the
                 judge of the juvenile court. The judge may, on the judge's own
                 motion, order a rehearing of any matter heard before a referee, and
                 shall allow a hearing if a request for such hearing is filed as herein
                 prescribed. Unless the judge orders otherwise, the recommendation
                 of the referee shall be the decree of the court pending a rehearing.

Under T.C.A. § 37-1-107(e), Adams had five (5) days from the entry of the September 23, 2005
before the ten (10) nonjudicial days provided in T.C.A. § 37-1-159 began to run. In short, he had
fifteen (15) nonjudicial days from September 23, 2005 in which to file his notice of appeal.
Excluding nonjudicial days, our calculation shows that the time period for filing the notice of appeal
in this case expired on October 14, 2005. Because Adams filed his notice of appeal on October 12,
2005, he was clearly within the statutory time frame.




        1
           T.C.A. § 37-1-102(b)(17) provides that nonjudicial days “means Saturdays, Sundays, and legal holidays.
Nonjudicial days begin at four thirty p.m. (4:30 p.m.) on the day preceding a weekend or holiday, and end at eight
o’clock a.m. (8:00 a.m.) on the day after a weekend or holiday.”

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         The State asserts that Adams has waived his argument because it was not presented in the
trial court and, in fact, his attorney conceded at the hearing that the notice of appeal was not timely
filed. It is clear to this Court that the State and Adams’ attorney misconstrued the applicable statutes
and lost sight of the fact that the notice of appeal was, in fact, timely filed. In Heatherly v.
Merrimack Mut. Fire Ins. Co., 43 S.W.3d 911 (Tenn. Ct. App. 2000), the Court said:

                           As a general matter, appellate courts will decline to consider
                   issues raised for the first time on appeal that were not raised and
                   considered in the trial court. Reid v. State, 9 S.W.3d 788, 796 (Tenn.
                   Ct. App. 1999). However, Tenn. R. App. P. 13(b)2 and 36(a)3 give
                   appellate courts considerable discretion to consider issues that have
                   not been properly presented in order to achieve fairness and justice.
                   Aaron v. Aaron, 909 S.W.2d 408, 412 (Tenn. 1995). Taken together,
                   these rules permit appellate courts to grant complete relief to the
                   parties as long as they have been given fair notice and an opportunity
                   to be heard on the dispositive issues. Realty Shop, Inc. v. RR
                   Westminster Holding, Inc., 7 S.W.3d 581, 608 (Tenn. Ct. App.
                   1999).

Id. at 916; see also Frazier v. Elmore, 173 S.W.2d 563, 567 (Tenn. 1943).

       The trial court accepted the parties’ contentions. In its brief, the state has conceded that this
case merits remand for a trial. We agree.

       For the foregoing reasons, we reverse the order of the trial court and remand for such further
proceedings as may be necessary consistent with this Opinion. Costs of this appeal are assessed to
the Appellee, the State of Tennessee.




                                                         __________________________________________


         2
           Tenn. R. App. P. 13(b) states: “Review generally will extend only to those issues presented for review. The
appellate court shall also consider whether the trial and appellate court[s] have jurisdiction over the subject matter,
whether or not presented for review, and may in its discretion consider other issues in order, among other reasons: (1)
to prevent needless litigation, (2) to prevent injury to the interests of the public, and (3) to prevent prejudice to the
judicial process.”

         3
           Tenn. R. App. P. 36(a) states that the appellate courts “shall grant the relief on the law and facts to which the
party is entitled or the proceeding otherwise requires and may grant any relief . . . provided, however, relief may not be
granted in contravention of the province of the trier of fact.”

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W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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