                                                                                      07/27/2017
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                       Assigned on Briefs November 8, 2016

           STATE OF TENNESSEE v. CYRUS RANDY WHITSON

               Appeal from the Criminal Court for Davidson County
                   No. 2005-D-3215 Mark J. Fishburn, Judge
                    ___________________________________

                          No. M2016-01420-CCA-R3-CD
                      ___________________________________

Defendant, Cyrus Randy Whitson, appeals the trial court’s dismissal of his motion for
arrest of judgment. On appeal, Defendant argues that because the judgment form for his
murder conviction is lacking the “file-stamp” date, his motion is timely and should have
been granted. Because Defendant does not have a right to appeal the trial court’s
dismissal pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure, we dismiss
the appeal.

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

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which ALAN E. GLENN
and ROBERT W. WEDEMEYER, JJ., joined.

Cyrus Randy Whitson, Mountain City, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
and Glenn Funk, District Attorney General, for the appellee, State of Tennessee.

                                      OPINION

       Defendant was indicted for first degree felony murder in count one and first
degree premeditated murder in count two. The felony murder charge was later dismissed.
A jury convicted Defendant of first degree premeditated murder, and the trial court
sentenced Defendant to life. This court affirmed his conviction on direct appeal. See
State v. Cyrus Randy Whitson, No. M2007-02197-CCA-R3-CD, 2009 WL 3787457, at *1
(Tenn. Crim. App. Nov. 12, 2009). Defendant filed a petition for post-conviction relief,
arguing that he received the ineffective assistance of counsel. Following an evidentiary
hearing, the post-conviction court denied his petition. This court affirmed the post-
conviction court’s denial of relief. See Cyrus Randy Whitson v. State, No. M2014-01941-
CCA-R3-PC, 2015 WL 6123061, at *1 (Tenn. Crim. App. Oct. 19, 2015), perm. app.
denied ( Tenn. Feb. 18, 2016).

        On May 26, 2016, Defendant filed a pro se “Motion for Arrest of Judgment.” In
his motion, Defendant argued that although the charge was dismissed, the trial court
“placed” him on trial for the first degree felony murder charge because the jury charge
instructed the jury that he was “charged in Count I of the indictment with the crime of
premeditated First Degree Murder.” He contended that he was, therefore, convicted of a
charge that was dismissed—count one. Moreover, he argued that this court, on both
direct and post-conviction appeal, stated that Defendant was convicted of first degree
felony murder. Defendant also addressed the issue of the timeliness of his motion for
arrest of judgment. He noted that “although the judgment itself was dated June 19, 2007,
the document bears no ‘file-stamp’ date showing that it was filed with the clerk and made
part of the record.” He claimed that his motion was, therefore, timely.

       On June 30, 2016, the trial court dismissed Defendant’s motion for arrest of
judgment as untimely, noting that the court’s minute entry, along with its date notation
from Defendant’s trial date was sufficient to render the judgment properly filed on June
19, 2007. Defendant appeals the trial court’s dismissal.

      On appeal, Defendant argues that the trial court erred by finding that his motion
was untimely. He also contends that his motion should be granted on its merits because
he was convicted of an offense that the State dismissed.

        Tennessee Rule of Criminal Procedure 34(a) allows a defendant to file a motion to
arrest judgment when either “the indictment, presentment or information does not charge
an offense” or “the court was without jurisdiction of the charged offense.” Rule 34 does
not, however, provide the defendant with the right to appeal a trial court’s ruling on a
motion for arrest of judgment. See Tenn. R. Crim. P. 34.

      Tennessee Rule of Appellate Procedure 3 only provides criminal defendants with
an appeal of right

      from any judgment of conviction entered by a trial court from which an
      appeal lies to the Supreme Court or Court of Criminal Appeals: (1) on a
      plea of not guilty; and (2) on a plea of guilty or nolo contendere, if the
      defendant entered into a plea agreement but explicitly reserved the right to
      appeal a certified question of law dispositive of the case pursuant to and in
      compliance with the requirements of Rule 37(b)(2)(A) or (D) of the
      Tennessee Rules of Criminal Procedure, or if the defendant seeks review of
      the sentence and there was no plea agreement concerning the sentence, or if
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      the issues presented for review were not waived as a matter of law by the
      plea of guilty or nolo contendere and if such issues are apparent from the
      record of the proceedings already had. The defendant may also appeal as of
      right from an order denying or revoking probation, an order or judgment
      entered pursuant to Rule 36 or Rule 36.1, Tennessee Rules of Criminal
      Procedure, from a final judgment in a criminal contempt, habeas corpus,
      extradition, or post-conviction proceeding, and from a final order on a
      request for expunction.

Tenn. R. App. P. 3(b). Our supreme court has held when construing rules of procedure
with clear and unambiguous text, “we need not look beyond the plain language of the text
to ascertain its meaning.” State v. Rowland, No. W2014-02311-SC-R11-CD, ___ S.W.3d
___, 2017 WL 2391959, at *2 (Tenn. 2017) (citing State v. Brown, 479 S.W.3d 200, 205
(Tenn. 2015)). Rule 3(b) does not grant a defendant an appeal as of right from the denial
of a motion for an arrest of judgment filed years after this court affirmed the defendant’s
conviction on direct appeal. Accordingly, this court does not have jurisdiction over the
appeal, and the appeal, therefore, is dismissed.


                                  ____________________________________________
                                  THOMAS T. WOODALL, PRESIDING JUDGE




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