        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs July 13, 2010

         STATE OF TENNESSEE v. TAVARUS DETTERIO GRIFFIN

             Direct Appeal from the Circuit Court for Hardeman County
                     No. 08-01-0612   J. Weber McCraw, Judge




                 No. W2009-01000-CCA-R3-CD - Filed May 9, 2011


Following a jury trial, Defendant, Tavarus Detterio Griffin, was convicted of two counts of
aggravated robbery and two counts of aggravated kidnapping. The trial court imposed an
effective sentence of twenty years. Judgments of conviction were entered on October 2,
2008. An untimely motion for new trial was filed on January 30, 2009. On May 12, 2009,
the trial court entered an order purporting to deny the motion for new trial, rather than
dismissing the untimely motion as requested in a written response filed by the State. An
untimely notice of appeal was filed May 12, 2009. Defendant, through counsel, has raised
only two issues on appeal: (1) whether Defendant was denied his right to due process and a
fair trial because the jury pool was allowed to see Defendant in the courtroom wearing jail
clothing and restrained by leg irons and handcuffs; and (2) whether counsel who represented
Defendant throughout the trial and sentence hearing (who is not the same counsel who filed
the motion for new trial) rendered ineffective assistance of counsel. Because the only issues
raised on appeal are waived as a result of not being included in a timely-filed motion for new
trial, we conclude that this is not a case where timely filing of the notice of appeal should be
waived. Accordingly, Defendant’s appeal is dismissed.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and C AMILLE R. M CM ULLEN, JJ., joined.

Javier Michael Bailey, Bolivar, Tennessee (on appeal) and William Hatton, Bolivar,
Tennessee (at trial) for the appellant, Tavarus Detterio Griffin.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; D. Michael Dunavent, District Attorney General; and Joe L. VanDyke, Assistant
District Attorney General, for the appellee, the State of Tennessee.
                                          OPINION

        Because Defendant does not challenge on appeal either the sufficiency of the evidence
or the sentencing imposed by the trial court, we will not set forth the facts of the case which
resulted in Defendant’s convictions. However, we feel compelled to review procedural facts
which result in our disposition of this appeal. For the purposes of clarification, we will refer
to the attorney who represented Defendant through the trial and sentencing hearing as “trial
counsel.” The attorney who filed and presented the motion for new trial and continues to
represent Defendant in this appeal will be referred to as “appellate counsel.”

      Just after the trial court imposed the sentences, the following colloquy occurred in the
proceedings:

       [Trial Counsel]:      Is the finding of the Court, the 135 days’ credit, is that - -

       THE COURT:            He is given 135 days’ credit, yes. Thank you. [Trial
                             Counsel], if your client wishes to file an appeal, I will
                             appoint you to represent him.

       [Trial Counsel]:      All right, I will go ahead and get that notice - - I didn’t
                             know if I needed to file a motion for new trial first. [sic]

       THE COURT:            You may with regard to the consecutive sentencing issue.
                             I think that’s appealable by either party and certainly
                             with regard to the issue on the trial, go ahead and prepare
                             whatever motion needs to be prepared and we’ll set that.

       [Trial Counsel]:      Your Honor, I’ll be appointed then for the appeal.

       THE COURT:            Correct. Thank you, sir.

      Trial counsel filed a motion to withdraw as counsel for Defendant approximately two
weeks before the trial. While there is no order in the record disposing of the motion, we
assume it was not granted because trial counsel did represent Defendant as noted above. The
above-quoted colloquy occurred on the same day the judgments of conviction were entered,
on October 2, 2008.

       According to the record on appeal, absolutely nothing else occurred in this case (other
than an order returning items of personal property to the victims) until January 30, 2009,
when appellate counsel filed two motions on behalf of Defendant:

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       (1) Motion for New Trial Pursuant to Rule 37(D) [sic] of the Tennessee Rules
       of Criminal Procedure

       (2) Motion for Reduction of Sentence Pursuant to Rule 35 of the Tennessee
       Rules of Criminal Procedure

        A motion to reduce sentence pursuant to Tennessee Rule of Criminal Procedure 35
must be filed within 120 days after the date the sentence is imposed. Tenn. Rule Crim. P.
35(a). Sentence was imposed on October 2, 2008, and the Rule 35 motion was filed 120 days
later. Therefore, the Rule 35 motion was timely filed but there is nothing in the record that
clearly shows the Rule 35 motion to reduce sentence was ever ruled upon or even presented
to the trial court for a hearing. The trial court’s order only “denied” the motion for new trial.
The notice of appeal states only that Defendant “appeal[s] the judgment in this cause.”
Defendant does not raise the issue of the Rule 35 motion in the appeal and we will therefore
not address it further.

        Regarding the issues which Defendant has presented in his brief on appeal, we note
that if found to have merit, either one of the issues would require a new trial, and not
dismissal of the charges or modification of sentencing. As such, to be properly presented and
not waived on appeal, the issues would have to be presented in a timely filed motion for new
trial. Tenn. R. App. P. 3(e).

       In its brief, the State has asserted that the appeal should be dismissed because the
notice of appeal was not timely filed. The State correctly acknowledges that this Court can
waive the timely filing of this notice of appeal in the interest of justice. Tenn. R. App. P.
4(a). A notice of appeal, to be timely filed in this case, would have had to be filed within 30
days of October 2, 2008, the day the judgments of conviction were entered, unless a timely
filed motion for new trial was filed within 30 days of October 2, 2008.

     Our court, in State v. Vaughn, 279 S.W.3d 584 (Tenn. Crim. App. 2008) aptly
summarized the consequences when a motion for new trial is not timely filed:

              Initially, we address the State’s argument that this Court should dismiss
       the Defendant’s appeal because his motion for a new trial was untimely filed.
       Tennessee Rule of Criminal Procedure 33(b) mandates that a defendant’s
       motion for a new trial must be made within thirty days of the date the order of
       sentence is entered:
              A motion for a new trial shall be in writing or, if made orally in
              open court, be reduced to writing, within thirty days of the date
              the order of sentence is entered. The court shall liberally grant

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              motions to amend the motion for new trial until the day of the
              hearing on the motion for a new trial.

       Tenn. R. Crim. P. 33(b) (emphasis added). A trial court does not have
       jurisdiction to rule on a motion filed outside the thirty-day period. State v.
       Bough, 152 S.W.3d 453, 460 (Tenn. 2004). Consequently, “[i]f a motion for
       new trial is not timely filed, all issues are deemed waived except for
       sufficiency of evidence and sentencing.” Id. (Citing State v. Martin, 940
       S.W.2d 567, 569 (Tenn. 1997); see also Tenn. R. App. P. 3(e). Further, this
       Court does not have the authority to waive the untimely filing of a motion for
       a new trial. State v. Givhan, 616 S.W.2d 612, 613 (Tenn. Crim. App. 1980);
       see also Tenn. R. App. P. 4(a).

Id. at 593.

        After the State argued that the appeal in the case sub judice should be dismissed for
failure to timely file the notice of appeal, Defendant did not file a reply brief addressing that
issue, or move to amend his brief to challenge the sufficiency of the evidence or the
sentences imposed. The only two issues presented by Defendant on appeal are waived
because they were not included in a timely filed motion for new trial. Accordingly, we
conclude that it is not in the interest of justice to waive the timely filing of the notice of
appeal. Accordingly, the appeal should be dismissed.

                                       CONCLUSION

       This appeal is dismissed. The clerk of this Court shall send a copy of the judgment
and the opinion in this case directly to Defendant as well as to Defendant’s counsel of record.

                                                     ___________________________________
                                                     THOMAS T. WOODALL, JUDGE




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