             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT NASHVILLE               FILED
                                JUNE 1997 SESSION
                                                           September 30, 1997

                                                           Cecil W. Crowson
TONY CRAIG WOODS,                    )                    Appellate Court Clerk
                                     )
                   APPELLANT,        )
                                     )     No. 01-C-01-9606-CR-00238
                                     )
                                     )     Davidson County
v.                                   )
                                     )     Thomas H. Shriver, Judge
                                     )
                                     )     (Post-Conviction Relief)
STATE OF TENNESSEE,                  )
                                     )
                      APPELLEE.      )



FOR THE APPELLANT:                         FOR THE APPELLEE:

John E. Herbison                           John Knox Walkup
Attorney at Law                            Attorney General & Reporter
2016 Eighth Avenue, South                  500 Charlotte Avenue
Nashville, TN 37204                        Nashville, TN 37243-0497
(Appeal Only)
                                           Eugene J. Honea
W. Casey Reed                              Assistant Attorney General
Attorney at Law                            450 James Robertson Parkway
211 Printer’s Alley                        Nashville, TN 37243-0493
Suite 400
Nashville, TN 37201                        Victor S. Johnson, III
(Trial Only)                               District Attorney General
                                           Washington Square Building, Suite 500
                                           222 Second Avenue, North
                                           Nashville, TN 37201-1649

                                           Thomas B. Thurman
                                           Assistant District Attorney General
                                           Washington Square Building, Suite 500
                                           222 Second Avenue, North
                                           Nashville, TN 37201-1649




OPINION FILED:_________________________________

AFFIRMED


Joe B. Jones, Presiding Judge
                                     OPINION


       The appellant, Tony Craig Woods (petitioner), appeals as of right from a judgment

of the trial court dismissing his action for post-conviction relief. The trial court ruled the

action was barred by the statute of limitations. In this Court, the petitioner contends (a) the

trial court should have afforded him the opportunity to present evidence to explain why he

failed to file his action timely and (b) the reasonable doubt instruction given by the trial

court was constitutionally infirm. After a thorough review of the record, the briefs submitted

by the parties, and the law governing the issues presented for review, it is the opinion of

this Court the judgment of the trial court should be affirmed.

       The petitioner was convicted of murder in the first degree, robbery with a deadly

weapon, and possession of a sawed-off shotgun. He appealed as of right to this Court.

The petitioner’s convictions were affirmed by this Court, but his sentences were modified.

State v. Woods, 814 S.W.2d 378 (Tenn. Crim. App. 1991). The supreme court denied the

petition for permission to appeal on July 29, 1991. The petitioner initiated this action on

March 2, 1995, more than three years after the supreme court denied the application. The

State of Tennessee filed an answer asserting the action was barred by the statute of

limitations.

       The trial court heard argument on the reasonable doubt instruction raised by the

petitioner. The purpose of the hearing was to determine whether this was a new issue

which was not barred by the statute of limitations. The trial court properly concluded this

was not a new issue, and, furthermore, the petitioner would not be entitled to relief if the

issue was not time barred.

       The petitioner claims the trial court should have given him an opportunity to explain

why the petition was not filed timely. This ground was not brought to the attention of the

trial court until after the jurisdiction of the court had expired. Therefore, the petitioner was

not entitled to a hearing on this ground.

       The trial court ruled the action was barred on November 21, 1995. The petitioner

subsequently filed a timely notice of appeal on December 4, 1995. Subsequently, the

petitioner filed a pro se pleading entitled “Motion for Reconsideration of Petition for Post


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Conviction Relief” on December 29, 1995. Petitioner’s counsel filed a pleading entitled

“Motion for Reconsideration of Petition for Post-Conviction Relief” on January 18, 1996.

Counsel also filed a pleading entitled “Motion to Withdraw Notice of Appeal” on January

18, 1996. The latter motion sought to withdraw the notice of appeal previously filed without

prejudice. The purpose of this motion was to permit the petitioner to raise additional issues

and have a hearing on these issues.

       The record makes it clear the grounds raised by the petitioner were barred by the

statute of limitations. Thus, the ground pertaining to the reasonable doubt instruction is

time barred. This Court and the supreme court have held on numerous occasions an

attack on this instruction will not entitle the petitioner to relief from his convictions. See

State v. Nichols, 877 S.W.2d 722 (Tenn. 1994); Booker v. State, Williamson County No.

01-C-01-9606-CC-00271 (Tenn. Crim. App., June 30, 1997); Pettyjohn v. State, 885

S.W.2d 364 (Tenn. Crim. App.), per. app. denied (Tenn. 1994). This Court will address the

contention that the trial court failed to permit the petitioner to present evidence as to why

the petition was not timely filed. This ground is without merit in the context of this case.

       The petitioner did not seek a hearing or make an offer of proof as to why the petition

was not filed timely. This issue first surfaced when the trial court heard the statements of

counsel regarding the petitions to reconsider on April 1, 1996. There are three reasons

why this issue is not meritorious.

       First, the initial notice of appeal was binding upon the petitioner. The notice had the

effect of invoking this Court’s jurisdiction. State v. Peak, 823 S.W.2d 228, 229 (Tenn.

Crim. App. 1991); State v. Bilbrey, 816 S.W.2d 71, 74 (Tenn. Crim. App. 1991); State v.

Givhan, 616 S.W.2d 612, 613 (Tenn. Crim. App. 1980), per. app. denied (Tenn. 1981).

As a general rule, the trial court may not hear motions filed subsequently to the filing of the

notice of appeal.

       There is no statute, rule, or common law decision which permits a party to withdraw

a notice of appeal without prejudice so the party may litigate additional issues. Moreover,

such a rule would thaw justice because a party could file and withdraw the notice of appeal

with impunity and present additional issues to litigate. It would also prevent the state from

raising issues in the appellate court.



                                              3
       The only procedure available to the petitioner was the dismissal of the appeal

pursuant to Tenn. R. App. P. 15(a). Obviously, the petitioner did not want to dismiss his

appeal. Nor did he follow the procedure mandated by this rule. While a motion was filed,

it was not for the purpose of dismissing the appeal. Further, this motion was not brought

to the attention of the trial court until the hearing and no order was ever entered regarding

the disposition of the motion.

       Second, neither a motion to rehear nor a motion to reconsider is authorized by the

Tennessee Rules of Criminal Procedure, the Tennessee Rules of Post-Conviction

Procedure, or the Tennessee Rules of Appellate Procedure. State v. Burrow, 769 S.W.2d

510, 511 (Tenn. Crim. App. 1989) (discussing motion to rehear); State v. Ryan, 756

S.W.2d 284, 285 n.2 (Tenn. Crim. App.), per. app. denied (Tenn. 1988) (discussing motion

to reconsider). Consequently, the trial court should not have entertained the petitioner’s

motions to reconsider. The petitioner was not entitled to a hearing on these motions.

       Third, the trial court did not have jurisdiction to hear the motions to reconsider. The

authority of a trial court to rule on motions in a lawsuit expires thirty days after the entry of

judgment. State v. Lock, 839 S.W.2d 436, 439 (Tenn. Crim. App. 1992); State v. Moore,

814 S.W.2d 381, 382 (Tenn. Crim. App. 1991); State v. Dodson, 780 S.W.2d 778, 780

(Tenn. Crim. App.), per. app. denied (Tenn. 1989); State v. Hamlin, 655 S.W.2d 200, 202

(Tenn. Crim. App. 1983). Thus, all of the proceedings incident to the petitions to rehear

were void since the motions were filed more than thirty days after the trial court ruled the

suit was barred by the statute of limitations.

       In conclusion, the petitioner’s suit was barred by the statute of limitations.

Furthermore, the trial court did not have jurisdiction to conduct a hearing regarding the trial

court’s refusal to permit the petitioner to present evidence pertaining to why the petition

was not filed timely.




                                     ____________________________________________
                                           JOE B. JONES, PRESIDING JUDGE




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CONCUR:



______________________________________
     WILLIAM M. BARKER, JUDGE



______________________________________
    THOMAS T. WOODALL, JUDGE




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