       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT NASHVILLE            FILED
                     AUGUST SESSION, 1998         October 23, 1998

                                               Cecil W. Crowson
STATE OF TENNESSEE,       )                  Appellate Court Clerk
                              C.C.A. NO. 01C01-9706-CC-00231
                          )
     Appellee,            )
                          )
                          )   MARION COUNTY
VS.                       )
                          )   HON. BUDDY PERRY
JOS EPH MAR TIN TH URM AN,)   JUDGE
                          )
     Appe llant.          )   (Direct Appe al - Preme ditated First
                          )   Degree M urder)



FOR THE APPELLANT:            FOR THE APPELLEE:

HOWARD B. BARNWELL, JR.       JOHN KNOX WALKUP
829 McCallie Avenue           Attorney General and Reporter
Chattanooga, TN 37403
                              TIMOTHY F. BEHAN
                              Assistant Attorney General
                              425 Fifth Avenu e North
                              Nashville, TN 37243

                              J. MICHAEL TAYLOR
                              District Attorney General

                              STE VE ST RAIN
                              Assistant District Attorney
                              Jasper, TN



ORDER FILED ________________________

AFFIRMED PURSU ANT TO RU LE 20

JERRY L. SMITH, JUDGE
                                             ORDER


        The appe llant, Jo seph Martin Thurman, was convicted by a Marion Coun ty

jury of one (1) count of premeditated first degree murder and one (1) count of

arson. He was sentenced to concurrent terms of life imprisonment for murder

and three (3) years for arson. On appeal, he presents se veral iss ues fo r this

Cou rt’s review.1 Howe ver, beca use the record re flects that ap pellant failed to

timely file his m otion fo r new tr ial and notice of appeal, all issues presented on

appeal are waived, an d this appeal is no t properly before this Court. Therefore,

the judgment of the trial court is affirmed pursuant to Tennessee Court of

Criminal Appeals Rule 20.

                                                    I

        The jury return ed a ve rdict in this case on October 6, 1996. Appellant was

sentenced on November 26, 1996, and the judgments were entered on that date.

The motio n for ne w trial was filed on December 30, which was overruled on

January 15, 1997. Appellant filed a notice of appeal on February 11, 1997.

                                                    II

        A motion for a new trial “shall be made ... within thirty days of the date the

order of senten ce is ente red.”             Te nn. R. C rim. P. 33( b).           Th is provis ion is

manda tory, and the time for filing may not be extended. Tenn. R. C rim. P. 45(b);

see State v. Martin, 940 S.W .2d 567 , 569 (T enn. 19 97); State v. Dodson, 780

S.W.2d 778, 7 80 (T enn. C rim. A pp. 19 89). A motio n for ne w trial wh ich is

untim ely filed is a nullity. State v. Dodson, 780 S.W .2d at 780 ; State v. Davis ,

748 S.W .2d at 207 . There fore, the fa ilure to timely file a motion for new trial

        1
            Appellant contends that (1) the trial court erred in admitting his statement into evidence because
it was taken in violation of his constitutional rights; and (2) his constitutional rights were violated by the
state ’s failu re to p rodu ce au tops y phot ogra phs until th e day b efor e trial.

                                                   -2-
results in the waive r of those is sues w hich m ay result in th e granting of a new

trial. 2 State v. Sowder, 826 S.W .2d 924 , 926 (T enn. C rim. App . 1991). Because

appe llant’s motion for new trial was filed more than thirty (30) days after the

judgmen ts of conviction were entered, his m otion was un timely.

         A trial court does not have jurisdiction to hear and determine the merits of

a motion for new trial which w as untim ely filed. State v. Martin , 940 S.W.2d at

569. The fact that a trial judge errone ously cons iders a nd rule s on a n untim ely

filed motio n for new trial does n ot validate th e motio n. Id.

         The jurisdiction o f this Cou rt attaches upon th e timely filing o f a notice of

appe al. Dodson, 780 S .W .2d at 7 80. Th e notic e of ap peal m ust be filed “with in

30 days after the date of entry of the judgment appealed from.” Tenn. R. App. P.

4(a). The time for filing a notice of appeal is tolled if a defendant timely files a (1)

motion for judgment of acquittal; (2) motion for new trial; (3) motion for arrest of

judgm ent; or (4) motion for a suspend ed sentenc e. Tenn. R . App. P. 4(c);

Dodson, 780 S.W.2d at 780. However, because appellant’s motion for new trial

was untimely filed, the time for filing his notice of appeal was not tolled pursuant

to Tenn. R. App. P. 4(c). As a result, appe llant’s notice o f appe al was untim ely

filed.

         The require men t of timely filing of notice of appeal can be waived in the

interest of justice. Tenn. R. App. P. 4(a). H owever, appellant never requested

that this Court waive the filing require men t in the in terest o f justice . Thus , this

Cou rt declin es to w aive the timely filin g requ ireme nt for no tice of a ppea l.




         2
         This Court, in its discretion, may take notice of an error which affects a substantial right of the
defendant where it ma y be necessary to do substantial justice. Tenn. R. Crim. P. 52(b).

                                                    -3-
       Appe llant’s issues are waived by his failure to timely file a motion for new

trial. Moreover, this Court declines to waive the notice of appeal requirement on

its own motion. Accordingly, the judgment of the trial court is affirmed pursuant

to Rule 20 of the Tennessee Court of Criminal A ppeals. Cos ts of appeal are

taxed to th e State o f Tenn essee , as it appe ars app ellant is indig ent.



                                   ____________________________________
                                   JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
DAVID H. WELLES, JUDGE


___________________________________
JOHN K. BYERS, JUDGE




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