*1 T.C.A. 39—4923 was erroneous. Under Sec. pos- judgment
these circumstances the of a committing
session firearm while nullity.
fеlony must considered a under No. 3423 Indictment degree
for murder in the first is affirmed. guilty defendant
kidnapping under Indictment 3424 is No.
affirmed sentence to be served to the imposed
consecutive sentence under
Indictment No. 3423. The under
Indictment possession No. 3425 for of a while committing
firearm vacat- felony
ed set aside. BYERS, JJ.,
WALKER concur.
George Arlen MASSEY
STATE of Tennessee. Appeals Tennessee, of Criminal
At Knoxville.
Sept. Appeal
Permission to Denied
Court Nov. Jenkins, MacDonald,
Aubrey James C. S. Burks, Jr., Offices, Charles Law C. Jenkins Knoxville, Jenkins, & for appellant. Leech, Jr., Gen., Wil- Atty. William M. Sizer, Nashville, Gen., Atty. liam P. Asst. Webster, Gen., Atty. Ronald A. Dist. Ran- Nichols, Tollison, dall E. Kim Asst. Dist. Gen., Knoxville, Attys. appellee. *2 14, 1978, II, 1978. Acts of Volume Public OPINION They pgs. became effective on 1691-1692. SCOTT, Judge. 13, July 1978. day As the rеsult of a three trial the law, prior a new Under motion a trial 4, 1978, returned a verdict on October find- thirty only applied days could be for within appellant guilty of murder in the decree, from the verdict or fixing punishment degree second and his at TCA, affected, sought be to 40-2603. § years forty penitentiary. in the state Al- 332, This code via Ch. section entered our though excеptions bill is silent con- 1, However, thirty 1973. Public Acts § trial, cerning new any oral motion for a 1932,1950 to Code days rule traces its roots 4, minutes Court for October TCA, Supp., Interpreting 40- § 8980. § recite, a New Trial entered and “Motion for has held that the this Court same, days to allowed within which file days thirty of conviction becomes final af- 1978.” argued be November entry, ter of a absenсe appellant’s The written motion for a new appropriate other for a new trial or motion 13, 1978, trial filed and on November Bouchard, motion. State following filed a motion day (Tenn.Cr.App.1977). strike that to Rule pursuant motion State, unpublished Gray, In et a1. 33(b), Tenn.R.Crim.P. The motion for a Court, Jackson, at June opinion of this subsequently new heard over- 40-2603, TCA, 14, 1979, interpreting § brief, supplemental ruled. In its the State Tenn.R.Crim.P., 37(d), Rule this Court held persists position Tennessee that to dismiss the motion of the State is under Rule. motion late granted, be because appellant’s appeal must jury, cases tried to a ... a timely new was not the motion for a motion for a new trial overruled filed. appellate is review prerequisite “(the Earlier, that, Supreme) held State, . . Whisnant v. 532 S.W.2d Court, of lower as well as other courts 14(5) (Tenn.Cr.App.1975), Rule Tn. (sic) jurisdiction, control or lose Rules, Sup.Ct. adopted as a rule of this judgments . . when over its final . Court July expiration thirty there has been an Tenn.R.Crim.P., 33(b), pro Tenn. days.” Hethcoat that, “(a) for a new trial shall vides motion (1964). 376 S.W.2d orally writing, or if made made thirty readily days apparеnt It is writing, open court shall be reduced to implant- firmly is new motions rule for thirty (empha within after verdict." jurisprudence of our ed in the criminal added) important sis to note that the of Rule is only innovation State. thirty days motion must be filed within one as to when be- explicit statement verdict, judg regard after without gins computation of time. is ment entered on verdict. Committeе patterned is af- Tenn.R.Crim.P. Tenn.R.Crim.P. Vol. Comments of Criminal ter 33 of the Federal Rules 5A, TCA, p. Cum.Supp., 118. These requirement The time Procedure. pro govern new all criminal so-called under the Federal for a new trial motion ceedings ninety subse commenced mandatory and held to be Rule has been quent approval by to their the General As Hence, the District Court jurisdictional. Governor, as sembly far Weiss, F.Supp. pend practicable, proceedings all then late-filed (W.D.Pa.1958) to hear a refused Joint ing, Rule House Tenn.R.Crim.P. motion. approving the rules was Resolution No. 135 days time thirty the General As We hold that the adopted by both houses of Tenn.R.Crim.P., 27, 1978, requirement 33(b), sembly approved by of Rule on March Blanton, Governоr, It com- April Ray Honorable that, 2, 1978, knowledge Gregorian again mon under the On October calendar, 13,1978 given November was more than jury trial. On October thirty days after October jury again appellant guilty, found the Facts, p. murder, World Almanac and Book of is, degree and fixed of second 786. The was already final when punishment forty years the Peniten- the motion for a new trial was filed. The *3 tiary. jurisdiction trial court had no to consider for The minutes of the court October the motion and Court jurisdic- this has no recording to the verdict of addition appeal. tion to entertain the following,entry, contain “Mo- jury, the the is dismissed. thirty a New Trial entered and for same, to within which file to allowed
TATUM, J., with opinion. concurs 17,1978.” argued be оn November No- On 13, 1978, vember motion for written TATUM, Judge, concurring. the new trial was filed with Clerk. On Judge concur in hold Scott 14, 1978, the November Assistant District requirement the time for case, Attorney, prosecuted who had this Motion for Trial a New “Motion to filed a Strike” accordance the If Motion for a New 33(b) with Rule Tenn.R. of Criminal Proce- Trial is not required, filed within the time dure. then the of conviction becomes legal final. stage It is this snarl begins the record to reveal a rea- fails Judge also concur with Cornelius fully agree intellectually son. this portion in the Dissenting. Opinion of his brought an proceeding should have to holding that the loss in this reality, proceeding legal end. In con- case did prejudice appellant. I have tinued unabated. reviewed Judge the record and concur with finding 1, 1978, Cornelius in his that no reversible On December en- error was committed. tered an order that the motion for a new heard, (Dis- presence trial was
CORNELIUS, Judge, dissenting. trict) appellant Attorney General and sign Judge difficult not to Scott’s provided: his counsel. The order opinion which goes directly alleged tо an Counsel, argued Motion “Said breach of of Tennessee Rules of and well considered understood Criminal Procedure. This rule is as follows: Court, is, things in all overruled.” “A motion for a new trial shall made be “Thereupon, excepts to defendant in writing, orally or if made open court prays ap- of the Court and an shall writing, to thirty reduced within peal sitting the next the Court of days after verdict. The Court shall Appeals appeal the Criminal which Court motion allow amendments until liberally ” grants. . . . the day hearing the motion for a (defendant) permitted . “. . he new trial.” County Jail in remain the Knox order Appellant’s began lawsuit in the Criminal to file give attorneys motions County of Knox February Court setting of bond.” return of an indictment Jury charging pаnel Grand the offense of murder On December another (in arraigned the first degree). responding He was to a Petition Cer- pre-trial hearings, March 1977. After Supersedeas pending bond tiorari and to set appellant had a trial and was found appeal, proceeding to the tri- remanded 13,1977. guilty September on sen- He was al to either set a rеasonable bond tenced to prison. September life in On pending or set in an forth order the 1977, a written motion a new trial reasons to court’s hold the defendant granted November without bond by the trier of facts and re- determined
On December the trial court upon the court is rendered instated the bond been judge. approved by the trial verdict when pending trial. The court noted proceeding, generally In the Federal exception ruling by to its the State “guilt” and the court jury determines allowing appeal, thirty the State an prescribes the guilty, upon the Excep- which to file Bill of within trying sentencing judgment. enters following pro- tions. The order carried the meaning of our Rules determine the vision, necessary perfect “All matters Procedure, my I cannot remove Criminal State’s shall be made an exhibit to is as thoughts far from Rule too this cause”. There is no evidence in the follows: pursued. appeal, record that “Purpose and Construction.—These On the trial court en- deter- provide are intended to finding appellant tered to be indi- an order *4 proceeding. every mination criminal of gent appeal. of purpose simplic- construed to secure They shall be complete transcript court the ordered in ity procedure, in fairness administra- proceedings, paid by costs to be the unjust ex- elimination the State. delay.” pense 23,1979, the case On March record this show it was comments The committee the by Clerk of Court received the this Rule con- commission’sintention that This Appeals at Knoxville. record Criminal Rules of 2 of the Federal form to Rule pages transcript relative to contains v. Procedure. In United States Criminal no appellant’s trial. There is Bill of second Weiss, F.Supp. a District Court Exceptions excep- to thе relative State’s con- Pennsylvania Western District of the prayer tions and for an in connection it the denying 33 as the Federal Rule strued order the trial court’s of December where motion right grant a new trial the The District Court is filed out of time. jurisdictional requirements appellant's that April On counsel found the mandatory and cannot Assignments the statute are of Error Brief of However, goes the District waived. Court May the At- the Clerk. On preju- practicality not in say on to this does torney Reply filed his Brief. On General defendant, (District) for this court dice the heard this June this case was arguments considered the nevertheless has of our court and carried over has the defendant and the reasons opinion upоn the before us. record a new trial granting asserted the 17,1979, Supple- filed a July On find to be them judgment, for arrest of court to con- requesting mental Brief held, The District Court not substantial. which was not point question sider the indicted the defendant was “Very simply, brief. raised in the State’s statute, the trial under a constitutional Scott, Judge judge, accept- has My fellow fair, on the evidence and' he was convicted contention, finding ed the that Rule State’s approach was taken presented.^’ This 33(b) is patterned Tenn.R.Crim.P. after in Donald Gene panel of this court another of the Federal Rules Criminal opinion unpublished Gray, et al. jurisdic- Procedure Jackson, June Judge filed at Dwyer, weight He finds with much tional. (new interpreting T.C.A. § jurisdiction tо consider had no court adoption of our trial statute in effect before new trial and the motion 33) and Rule appeal. has to entertain Weiss,supra, the Dis- In United States United States point that we have differ- It is at this trict Court relied United States case of concepts. Necessarily, ence Court (1947), Federal Rule. Smith 331 U.S. as the is-not same case in which was a L.Ed. 1610. state, sentence are In our the verdict and Smith ap- authority to entertain manda- was without government seeking writs of way Ninth Circuit lead peal. Yet the Ap- the Court of prohibition mus and from fol- by saying the in Weiss for the results grant- peals require vacation of an order lowing: Mencolo, ing a new trial to John who had to examine
been convicted of tax evasion. The Third “We have taken occasion jur- notwithstanding the care Circuit Court denied the writs but the Su- record with appears. The ev- defect which preme (See page isdictional Court the relief. strong and convinc- idence in this case 1332, Sup.Ct. Reporter for Rule 33 as of accorded ing and the trial Smith, 1946). I consider United States v. Judgment affirmed.” impartial. fair and
supra,
develop-
interesting in relation to
Rules,
clearly
ment of
the an-
but not
States,
“Rule Criminal Procedure 37—not 33—
taking
relates to
manner for
appellant’s praying
as
for
complied with
appeal.”2
an
appeal. The
granted
aрpeal
an
perfected
as authorized
The Tenth Circuit denied the motion to
Smith,
judge.
185 Tenn.
Bell
dismiss the
The second
S.W.2d
reason
655[1].
Turning
present
case
back
found
my action is
footnotes of Unit-
statutes,
authorities,
I
Tennessee
Cir.,
Simon,
F.2d 260. It
ed States v.
discount,
condensing
would
sake of
are civil cases involv-
is true
cases cited
opinion,
Section
T.C.A. as
govеrn-
the action of the United States
well
added to the Code in 1973 as
as the
ment,
but the Third Circuit considered
dealing
cases
a new
motions for
noteworthy
case similar
cases
in a criminal
superseded
which
been
have
Ap
our Chancery
to ours.
Court of
See
adoption of the
consider
Rules.
would
peals reasoning McClung
v. Embreeville
Bouchard, Tеnn.Cr.App.,
Freehold,
Co.,
Land,
Ry.
Tenn.Ch.
Iron &
authority upon
S.W.2d
as
the ques-
Scott,
App.,
S.W.
55. See Cothron v.
tion of
there
a valid and
became
Tenn.App.
446 S.W.2d
535[5].
complete
appeal pur-
order of conviction for
Kennedy, 174 Tenn.
In James v.
McClain,
poses.
State v.
Tenn.
writ-
Chief Justice Green
judg-
S.W.2d 680. The trial court entered
court,
ing for
construed a statute then
prеsent
ment
case
December
existing
provided
which
there be
1978. On this date the trial
noted
judgments of
appeal from certain
the court
excepted
(appellant)
that defendant
County
Davidson
General Sessions
prayed
an
the court
following:
opinion
ended
granted.
plaintiff presses
“The
our considera-
give just
court must
consider this
Co.,
Railroad
84 Tenn.
Campbell
as
much consideration to
Rule 37
270,16
justice
Lea
In that case
believe
Federal courts
peace
from his
supra,
Gray,
and this court
construed
judgment which
not show the term
did
*6
unjustifiable ex
these Rules to eliminate
appeal was
nor the court
to which the
pense
I
I
delay.
would do likewise.
cir-
papers
were sent
takеn.
record,
public
prepared
would review the
there heard
cuit court and the case
expense, presently before this court rather
the unsuc-
its merits. After
than
dismiss the
To dismiss
point
parties
cessful
made
appeal
proceed
will
further
necessitate
acquired jurisdiction
circuit court
not
ings under
the Post-Conviction statute.
appeal. This
by reason of this defective
a
There is
reasonable
the matter
certainty
objection came too
court held that
on appeal
will be back in
on the
not
case is
control-
late. We think this
now
record
before us
the addition
permissible,
ling
here. An
proceed
the record of the Post-Conviction
forbidden,
There was
that case.
not
ing.
my
following
fortify
action
grant-
nothing
defect
but
formal
First,
reasoning.
37
apply
would
not
appeal. The court was
ing of the
reasoning
and the
of the Tenth Circuit
dealing
with a case
Lugan
majority
and the
United States
prohibited.”
S.,
opinion of
Lott
U.
U.S.
assignments of er-
[2,
reviewing appellant’s
Ad
3],
S.Ct.
examination assign- obliged
court is not to consider this
ment of error. Rockett v. Tenn.Cr.
App., 475 561. Also see State
Fowler, 213 Tenn.
Appellant carry has failed to the burden showing suppression
in this court of