         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                 September 9, 2003 Session

 STATE OF TENNESSEE v. DEWAYNE M. McDANIEL a/k/a ANTHONY
                         McDANIEL

                  Direct Appeal from the Criminal Court for Shelby County
                          No. 00-01582    Joseph B. Dailey, Judge



                 No. W2002-02048-CCA-MR3-CD - Filed December 5, 2003


The appellant, Dewayne A. McDaniel, a/k/a Anthony McDaniel, was convicted by a jury of theft of
property. Specifically, the jury convicted the appellant of the second charge contained in the
indictment, exercising control over property with a value of $10,000 but less than $60,000 without
the consent of the owner, a Class C felony. The trial court sentenced the appellant to fifteen years
as a Range III, persistent offender.

The appellant’s motion for new trial was denied by the trial court in an order entered May 10, 2001.
The trial court entered an order granting a delayed appeal on June 28, 2002. The trial court’s order
granting the delayed appeal indicates that the request for the delayed appeal was made by the
appellant’s attorney, even though no motion for a delayed appeal appears in the technical record
before this Court. The notice of appeal was not filed until September 13, 2002. Because of the
untimeliness of the filing of the notice of appeal the appeal is dismissed.

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

JERRY L. SMITH, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JOE G.
RILEY, J., joined.

Lee A. Filderman, Memphis, Tennessee, for the appellant, DeWayne M. McDaniel.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Steve Jones, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

        After a review of the record, we conclude that this appeal must be dismissed. Although not
raised by either party, we note that the notice of appeal was not timely filed. The granting of a
delayed appeal triggers the thirty-day time limitation for filing a notice of appeal contained in
Tennessee Rule of Appellate Procedure 4. State v. Cordell, 645 S.W.2d 763, 765 (Tenn. Crim. App.
1982); see also Darrel D. Hayes v. State, No. 01C01-9604-CR-00163, 1997 WL 537079, at *3
(Tenn. Crim. App. at Nashville, Sept. 2, 1997); State v. Michael Parks, No. 01C01-9506-CC-00177,
1996 WL 374106, at *4 (Tenn. Crim. App. at Nashville, Jul. 5, 1996); Michael S. Hurt v. State, No.
01C01-9207-CC-00213, 1993 WL 39751, at *3 (Tenn. Crim. App. at Nashville, Feb. 18, 1993).

        The notice of appeal in criminal cases is not jurisdictional, and can be waived by this court
“in the interests of justice.” Tenn. R. App. P. 4(a). Unlike most cases in which a notice of appeal
is untimely filed, the appellant has not filed a motion to waive timely filing of the notice of appeal
or any similar pleading. Typically, such filing would contain acknowledgment that the notice of
appeal was not timely filed and would include verified factual and/or legal assertions why the
interests of justice dictate that this Court should waive timely filing of the 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.

        Accordingly, this appeal is dismissed.



                                                        ___________________________________
                                                        JERRY L. SMITH, JUDGE




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