IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE FILED JULY SESSION, 1998 October 12, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9711-CR-00497 ) Appellee, ) ) ) McMINN COUNTY VS. ) ) HON. EARLE G. MURPHY BILLY BIVENS, ) JUDGE ) Appe llant. ) (Official Misc onduc t; Assault)

ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF McMINN COUNTY

FOR THE APPELLANT: FOR THE APPELLEE: DON ALD B . REID JOHN KNOX WALKUP West Madison Avenue Attorney General and Reporter P.O. Box 628 Athens, TN 37371-0628 CLINTON J. MORGAN Assistant Attorney General 5th Avenu e North Nashville, TN 37243-0493 JERRY N. ESTES District Attorney General Washington Avenue Athens, TN 37303

OPINION FILED ________________________ APPEAL DISMISSED DAVID H. WELLES, JUDGE OPINION The Defendant, Billy Bivens, appeals from his convictions for official misconduct in violation of Tennessee Code Annotated § 39-1 6-402 and a ssau lt in violation of § 39-13-101. The trial court entered judgment on both convictions on May 30 , 1997, and D efendant filed a M otion for a New Trial and/or Acquittal on April 11, 1997. B ecause this m otion has not ye t been g ranted or denied, Defe ndan t’s app eal is no t prope rly before this Court. We therefore dismiss the appea l for absen ce of a fina l judgme nt.

Tenn essee Rule of A ppellate P rocedu re 4 pres cribes tha t if a timely motion or petition under the Tennessee Rules of Criminal Procedu re is filed in the trial court by the defendant . . . under Rule 29(c) for a judgment of acquittal [or] under R ule 33(a) for a new trial . . . , the time for appeal for all parties shall run from entry of the order denying a new trial or granting or denying any other such motion or petition.

Tenn. R. App. P. 4(c ). Advisory C omm ission C omm ents to this section suggest that “it would be undesirable to proceed with the appeal while the trial court has before it a motion the gran ting of which would vacate or alter the judgment appealed from, and which might affect either the availability of or the decision whether to se ek appellate review .” Id. (Advisory Com m’n Com ments).

W e recently considered this precise issue and concluded that it is not simp ly a matter of desirability, but one of jurisdiction; and this Court does not have jurisdiction over an appeal where the trial cou rt retains jurisdiction over a post-trial motion . State v. Landy G. Kash, C.C.A. No. 01C01-9705-CR-00179, Smith County (Tenn. Crim. App., Nashville, Feb . 23, 19 98) (“T his Co urt’s -2- appellate jurisdiction is lim ited to review of the final judgments of trial courts, and therefore, we cannot entertain this appeal as we are without jurisdiction to do so.”).

Furthermore, the supreme court has provided some guidance in Evans v. Wilson, 776 S.W .2d 939, 940 (Tenn. 198 9). In that civil case, the pla intiffs tim ely filed a motion for new trial a nd, alterna tively, a motio n for add itur. Id. The trial court ruled that the jury verdict was inadequate, suggested an additur, and overruled the motion for new trial on all other points. Id. If, however, the defendant had rejected the recommended additur, then the plaintiffs would have been entitled to a n ew trial. Id. The pla intiff filed a notice of appeal, based upon the trial court’s denial of the m otion for new trial, even tho ugh the reco rd reflected no action by the de fendan t to accep t or reject the additur. Id.

In Evans, the supreme court affirmed the court of appeals’ remand of the case because the motion for new trial had not decisively been granted or denied.1 The court held, “Th e orde r sugg esting additu r and g ranting a new trial is on ly provisional and is not se lf-exec uting. T he ord er gran ting a n ew trial is not a final judgment and is not appealab le as of right.” Id. at 941 (citing Tenn. R. App. P. 3(a)). In holding that the notice of appeal filed by the plaintiff was “without effe ct,” the supreme court based its reason ing upo n Ten nesse e Rule o f Appella te Procedu re 4(b), which specifies the time for appeal in civil cases . Id. at 942.

Because Rule 4(b) is s ubsta ntively id entica l to the ru le und er con sidera tion in this

Due, in turn, to the defendant’s failure to decisively accept or reject the additur on the record.

-3- case, Rule 4(c), 2 we reaffirm our decision in Kash that this appeal must be dismissed. The tim e for entering an appeal does not begin to run until the trial court has entered an order granting or denying Defendant’s Motion for a New Trial a nd/or A cquitta l.3

____________________________________ DAVID H. WELLES, JUDGE

CONCUR:

___________________________________ GARY R. WADE, PRESIDING JUDGE

___________________________________ JOSEPH M. TIPTON, JUDGE

See supra at 2. The differences are procedural—the rule lists motions available under the Tennessee Rules of Civil Procedure that toll running of the time for appeal until decided by the trial court.

We note that the State raised this issue in its brief filed on February 25, 1998; however, the deficiency was apparently not corrected.

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