            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT NASHVILLE          FILED
                             AUGUST 1998 SESSION
                                                            October 21, 1998

                                                           Cecil W. Crowson
                                                          Appellate Court Clerk
STATE OF TENNESSEE,                      )    C.C.A. NO. 01C01-9801-CC-00001
                                         )
      Appellee                           )    MARSHALL COUNTY
                                         )
v.                                       )    HON. CHARLES LEE,
                                         )    JUDGE
TIMOTHY WAYNE HENDERSON,                 )
                                         )
      Defendant/Appellant                )




FOR THE APPELLANT:                            FOR THE APPELLEE:

Michael D. Randles                            John Knox Walkup
Assistant District Public Defender            Attorney General & Reporter
Seventeenth Judicial District
P.O. Box 1119                                 Timothy F. Behan
Fayetteville, TN 37334                        Assistant Attorney General
                                              Criminal Justice Division
                                              Second Floor, Cordell Hull Building
                                              425 5th Avenue North
                                              Nashville, TN 37243




OPINION FILED


APPEAL DISMISSED
JOHN K. BYERS
SENIOR JUDGE
                                     OPINION

       The defendant was convicted of aggravated sexual battery and sentenced to

serve nine years and eight months as a Range 1, standard offender.

       The defendant raises the following issues:

       1.     That the evidence is insufficient as a matter of law to sustain a
              conviction for aggravated sexual battery.

       2.     That the defendant’s sentence is excessive and contrary to the law.

       3.    That the trial court erred by admitting into evidence hearsay
                    statements of the alleged victim, Kristin Doud, through the
       witness              Mary Jane Boyer regarding what Kristin told Mary Jane
       Boyer had            happened regarding the defendant.

       We dismiss the appeal.

       We conclude that the defendant has waived consideration of issue three

because he failed to file a timely motion for new trial. Furthermore, because the

defendant also failed to file a timely notice of appeal, we conclude that he has

waived consideration of his first and second issues.

       The judgment in this case was entered on September 3, 1997. On that date,

the trial judge continued the case until October 8, 1997 for the filing of a motion for a

new trial. The motion for a new trial was filed on October 8, 1997.

       Rule 33(b) of the Tennessee Rules of Criminal Procedure requires the filing

of a motion for a new trial within thirty days of entry of the judgment. The action of

the trial judge in granting a continuance does not toll the running of the thirty day

time limit to file the motion because the time period is mandatory and cannot be

extended. Tenn. R. Crim. P. 45(b); State v. Martin, 940 S.W.2d 567, 569 (Tenn.

1997). The trial judge does not have jurisdiction to hear a motion for a new trial

when it is not timely filed. The failure to file the motion timely waives issues upon

which an appellant seeks a new trial, as is sought under issue three by the

defendant.




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       When the motion for a new trial is not timely filed, the appellate court will

consider only those issues which would result in the dismissal of a case. In this

case, only the first issue would require a dismissal of the case. The sentencing

issue may also be reviewed in the absence of a motion for a new trial.

       In addressing the defendant’s first and second issues, which challenge the

sufficiency of the convicting evidence and the sentence, we are faced with another

problem stemming from the failure to file a motion for new trial in a timely fashion. A

notice of appeal is required to be filed with the clerk of the trial court within thirty

days after the date of entry of the judgment or order from which relief is sought.

Tenn. R. App. P. 4(a). Timely filing of a motion for new trial tolls this period until

entry of the order denying the motion for new trial. Tenn. R. App. P. 4(c).

       In the present case, because the untimely motion for new trial was a nullity, it

did not toll the thirty day period for filing a notice of appeal. See State v. Davis, 748

S.W.2d 206, 207 (Tenn. Crim. App. 1987). The defendant filed his notice of appeal

on October 29, 1997, well beyond the thirty day period from the entry of the

judgment of conviction on September 3, 1997.

       Of course, Rule 4(a) of the Tennessee Rules of Appellate Procedure provides

that the notice of appeal document is not jurisdictional and that timely filing may

therefore be waived in the interest of justice. In the case sub judice, however, the

defendant has failed to present any reason why the interest of justice requires

waiver of the necessity for timely filing of a notice of appeal. We find nothing in the

record before this Court from which we can conclude that the interest of justice

requires us to waive timely filing of the notice of appeal.

       We therefore dismiss this appeal.




                                            John K. Byers, Senior Judge

CONCUR:




David H. Welles, Judge

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Jerry L. Smith, Judge




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