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 McCallie Avenue Attorney General and Reporter Chattanooga, TN 37403 TIMOTHY F. BEHAN Assistant Attorney General 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 , S.W .2d at 207 . There fore, the fa ilure to timely file a motion for new trial 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 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.

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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