        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs March 1, 2011

               TRIPLETT MCNEAL v. STATE OF TENNESSEE

            Direct Appeal from the Circuit Court for Lauderdale County
                     No. 6389    Joseph H. Walker, III, Judge




                 No. W2010-01201-CCA-R3-HC - Filed May 20, 2011


The Petitioner, Triplett McNeal, pled guilty to aggravated robbery, especially aggravated
kidnapping, and especially aggravated robbery and agreed to an effective sentence of thirty
years in the Tennessee Department of Correction. He filed a petition for writ of habeas
corpus in the Lauderdale County Circuit Court, and the habeas corpus court dismissed the
petition. The Petitioner now appeals the denial of his petition for habeas corpus relief and,
after a review of the record in this case, we conclude that the Petitioner’s notice of appeal
is untimely. As such, we dismiss the Petitioner’s appeal.

               Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which A LAN E. G LENN and
C AMILLE R. M CM ULLEN, JJ., joined.

Triplett McNeal, Pro se, Henning, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; and D. Michael Dunavant, District Attorney General, for the Appellee,
State of Tennessee.

                                        OPINION
                              I. Facts & Procedural History

       The Petitioner pled guilty in 1991 to one count of aggravated robbery (Count 1), two
counts of especially aggravated robbery (Counts 2 and 3), and one count of especially
aggravated kidnapping (Count 4). He agreed to be sentenced to two consecutive fifteen-year
sentences in Counts 2 and 3, which were to be served concurrently with an eight-year
sentence in Count 1 and a fifteen-year sentence in Count 4. Accordingly, the judgment form
in Count 3 noted that his sentence in Count 3 was to be served consecutively to his sentence
in Count 2 and concurrently to his sentence in Count 4.

        In 2007, the Petitioner filed a petition for habeas corpus relief. The habeas court
dismissed his 2007 petition, and the Petitioner appealed this dismissal, but this Court
dismissed his appeal because he failed to file a brief. The Petitioner filed the present petition
for habeas corpus relief on March 15, 2010. This petition appears, in large part, to rehash
the issues raised in his 2007 petition. The Petitioner alleges in his present petition that “since
all of the offenses were found under . . . one single indictment, all of the offenses should
have been concurrent sentences” and that the Petitioner’s judgment in Count 3 was “void”
because it ordered the consecutive service of two sentences for crimes alleged within the
same indictment.

        In a March 24, 2010 order, the habeas corpus court dismissed the petition after finding
that the trial court’s imposition of consecutive sentencing in Counts 2 and 3 was lawful and
that the Petitioner’s sentence had not expired.

        The Petitioner filed his notice of appeal on May 26, 2010, late by over one month.
See Tenn. R. App. P. 4(a). In a criminal case, however, a defendant’s notice of appeal is not
jurisdictional and may be waived in the “interest of justice.” Tenn. R. App. P. 4(a).

        Shortly after he filed his late notice of appeal, the Petitioner filed a motion in this
Court to allow him to supplement the appellate record. This Court, however, finding “the
Petitioner [sought] not to supplement the appellate record but to offer explanation as to the
late-filed notice of appeal document,” elected to treat the Petitioner’s motion as a motion for
a waiver of the timely filing requirement. Recognizing that the Petitioner explained the delay
in filing the notice of appeal and also sought status updates from the trial court regarding
disposition of his habeas corpus petition, this Court nonetheless concluded that the “interest
of justice” did not require waiver of the notice of appeal. This Court also denied the
Petitioner’s request to supplement the record.

        In our view, nothing in the record indicates that we should depart from our previous
determination in this case that waiver of the Petitioner’s timely filed notice of appeal is not
in the “interest of justice.” As such, we conclude that the Petitioner has waived his appeal
of the habeas corpus court’s judgment by failing to file a timely notice of appeal. See Tenn.
R. App. P. 24(b). Accordingly, we dismiss his appeal.

                                        III. Conclusion

       In accordance with the aforementioned reasoning and authorities, we conclude that

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the Petitioner’s notice of appeal in this case was untimely and waiver of a timely filed notice
of appeal is not in the interest of justice. As such, we dismiss the Petitioner’s appeal.

                                                   _____________________________
                                                     ROBERT W. WEDEMEYER, JUDGE




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