         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON

                      JANUARY 1998 SESSION
                                                   FILED
                                                   February 18, 1998

                                                   Cecil Crowson, Jr.
STATE OF TENNESSEE,               )                Appellate C ourt Clerk
                                  )    NO. 02C01-9701-CC-00026
      Appellee,                   )
                                  )    LAUDERDALE COUNTY
VS.                               )
                                  )    HON. JOSEPH H. WALKER,
CLEOTHA NASH,                     )    JUDGE
                                  )
      Appellant.                  )    (Reckless Endangerment)



FOR THE APPELLANT:                     FOR THE APPELLEE:

GARY F. ANTRICAN (On Appeal)           JOHN KNOX WALKUP
District Public Defender               Attorney General and Reporter

JULIE K. PILLOW (On Appeal)            CLINTON J. MORGAN
Assistant Public Defender              Assistant Attorney General
118 E. Market Street                   Cordell Hull Building, 2nd Floor
P.O. Box 700                           425 Fifth Avenue North
Somerville, TN 38068                   Nashville, TN 37243-0493

BETH BROOKS (At Trial)                 ELIZABETH T. RICE
2298 S. Germantown Road                District Attorney General
Germantown, TN 38138-5951
                                       MARK E. DAVIDSON
                                       Assistant District Attorney General
                                       302 Market Street
                                       Somerville, TN 38068




OPINION FILED:



APPEAL DISMISSED



JOE G. RILEY,
JUDGE
                                          OPINION



        The defendant, Cleotha Nash, was convicted by a Lauderdale County jury

of reckless endangerment, a Class E felony. The trial court sentenced him to four

(4) years incarceration. Defendant raises three issues for our consideration;1

however, because his notice of appeal was untimely filed, we dismiss this appeal.



                                               I.



        In January 1996, a Lauderdale County jury found defendant guilty of one (1)

count of reckless endangerment, a Class E felony. On February 20, 1996, the trial

court sentenced defendant to four (4) years as a Range II, Multiple Offender. The

judgment reflecting defendant’s conviction and sentence was entered on that same

date. It is undisputed that trial counsel never filed a motion for new trial, notice of

appeal or waiver of appeal.

        On August 13, 1996, defendant filed a pro se “Motion for Transcript of Prior

Trial.” In this motion, defendant requested a transcript of his trial, at state expense,

“for use in accessing the Court in the form of Post [C]onviction Relief.” On August

29, the trial court entered an order granting defendant’s request for a transcript.

The trial court acknowledged that no motion for new trial or notice of appeal had

been filed. The court then determined that the motion should be treated as a

petition for post-conviction relief and appointed counsel. The court further ordered

that defendant be allowed to amend the petition “within thirty days of the entry of the

preliminary order.”

        On November 7, 1996, approximately seventy (70) days subsequent to the

trial court’s order, appointed counsel filed a notice of appeal of the original

conviction and sentence, “requesting the court to allow this late filing in the interest

of justice.”


        1
          Specifically, he asserts: (1) the trial court erred in denying his motion for judgment
of acquittal; (2) the evidence is insufficient to sustain his conviction; and (3) the trial court
erred in sentencing him to the maximum within Range II for this Class E felony.

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                                           II.



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

pertinent part:

       the notice of appeal required by Rule 3 shall be filed with and
       received by the clerk of the trial court within 30 days after the date of
       entry of the judgment appealed from; however, in all criminal cases
       the “notice of appeal” document is not jurisdictional and the filing of
       such document may be waived in the interest of justice. The
       appropriate appellate court shall be the court that determines whether
       such a waiver is in the interest of justice.

Therefore, it is within this Court’s discretion as to whether the timely filing of notice

of appeal is waived. This we decline to do.

       The record in this case is devoid of any reason as to why justice requires that

the timely notice requirement should be waived. Nor does defendant provide this

Court with any explanation for the failure to timely file notice of appeal other than

the bare assertion that “[t]rial counsel, Beth Brooks, did not file a motion for a new

trial. No notice of appeal was filed by trial counsel.” Such an assertion, without

more, is insufficient to persuade us to waive the timely filing requirement.

       Moreover, after reviewing the issues, briefs and the record before this Court,

we conclude that justice does not require us to waive the thirty (30) day filing

requirement of Tenn. R. App. P. 4(a).

       Accordingly, defendant’s appeal is dismissed.



                                                   JOE G. RILEY, JUDGE

CONCUR:



JOE B. JONES, PRESIDING JUDGE



PAUL G. SUMMERS, JUDGE




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