         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                               Assigned on Briefs June 9, 2004

                    STATE OF TENNESSEE v. BRIAN FRENCH

                Direct Appeal from the Circuit Court for Montgomery County
                          No. 49900040    Michael R. Jones, Judge



                     No. M2002-02465-CCA-R3-CD - Filed June 29, 2004


The defendant, Brian French, appeals the revocation of his probation. We dismiss the appeal due
to the untimely filing of the notice of appeal.

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

JOE G. RILEY , J., delivered the opinion of the court, in which JERRY L. SMITH and ALAN E. GLENN ,
JJ., joined.

Roger Eric Nell, District Public Defender; and Russel A. Church, Assistant District Public Defender,
for the appellant, Brian French.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
John Wesley Carney, Jr., District Attorney General; and Helen O. Young, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

        On August 14, 2001, the defendant pled guilty to the sale of more than one-half ounce of
marijuana, a Class E felony, and received a one-year sentence as a Range I standard offender to be
served on probation. See Tenn. Code Ann. § 39-17-417(g)(1). The trial court revoked the defendant’s
probation in November 2001. The defendant received determinate release in January 2002, and
again embarked on probation. On May 6, 2002, a probation violation warrant was issued alleging
the defendant failed to report to his probation officer, failed to pay the required fees, and violated
curfew. Following a hearing, the trial court revoked the defendant’s probation and ordered him to
serve his one-year sentence in confinement with credit for time served.

        The defendant filed his notice of appeal on September 26, 2002, forty-two days after the trial
court’s entry of its August 15, 2002, order revoking the defendant’s probation. Tennessee Rule of
Appellate Procedure 4(a) provides that a notice of appeal must be filed within thirty days of the
judgment from which the appeal is taken. However, the appellate court in a criminal case may
waive the timely filing of a notice of appeal “in the interest of justice.” Tenn. R. App. P. 4(a); see
Crittenden v. State, 978 S.W.2d 929, 932 (Tenn. 1998). In the case at bar, the defendant filed his
notice of appeal twelve days beyond the thirty-day requirement. The record and the defendant’s
brief do not offer any explanation for the failure to file a notice of appeal in a timely fashion, nor
has the defendant requested that this court waive the timely filing of the notice of appeal.

        Furthermore, the record indicates the defendant was not on bond pending appeal and has
since been released from confinement. Following the filing of the notice of appeal, this court
granted the defendant’s motions for extension of time to file his brief on January 27 and March 19,
2003. No brief was filed; the appeal languished. On January 27, 2004, this court issued an order
instructing defense counsel to file his brief. The defendant’s brief was lodged on February 6 and
accepted by this court as late-filed by order of February 17, 2004. The state’s brief was filed on
March 16, and the case was placed on this court’s June 2004 docket, approximately one year and
ten months after the trial court revoked the defendant’s probation. Moreover, defense counsel’s
affidavit attached to his motion for acceptance of his late-filed brief indicates the defendant has fully
served his sentence, and defense counsel made numerous unsuccessful attempts to contact the
defendant concerning prosecution of this appeal. It further appears the bases for appellate relief are
utterly without merit. Therefore, we conclude the “interest of justice” does not require a waiver of
the timely filing of the notice of appeal.

        Accordingly, the appeal is dismissed.




                                                        ____________________________________

                                                        JOE G. RILEY, JUDGE




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