Session Date October 7, 2014
Direct Appeal from the Criminal Court for Shelby County No. 11-07916 W. Mark Ward, Judge
Ruchee J. Patel, Memphis, Tennessee, for the appellant, Ladell Walker.
Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy P. Weirich, District Attorney General; and Susan Taylor, Assistant District Attorney General, for the appellee, State of Tennessee.
Norma McGee Ogle, J., delivered the opinion of the Court, in which Camille R. McMullen and Timothy L. Easter, JJ., joined.
NORMA MCGEE OGLE, JUDGE
I. Factual Background
In November 2011, the Shelby County Grand Jury indicted the appellant for the aggravated assault of Latischa Boyd. At trial, the victim testified that she and the appellant used to be friends but that she started having "problems" with him. On May 1, 2011, the victim's birthday, the appellant gave money to the victim, her children, and her sister. The victim thought the money was a gift, but the appellant later contacted her and told her that the money was for her "not to press charges." On May 13, 2011, the victim was sitting outside her sister's apartment when the appellant approached and demanded that she return the money to him. The appellant pulled two guns out of the pockets of his hoodie and threatened to "burn" the victim. The victim said she was scared because she thought the appellant was going to shoot her. She immediately called 911, and the appellant ran away. A few days later, the victim went to the police department, viewed a photograph array containing the appellant's photograph, and identified him as the man who had threatened her.
Cynthia Boyd testified that she was the victim's older sister and the "resident manager" of an apartment complex. She stated that after the appellant gave money to the victim, he began threatening the victim. On May 13, 2011, Boyd was inside her apartment when she heard the appellant and the victim argue and heard the appellant threaten to "burn" the victim. The victim came into Boyd's apartment and telephoned the police. Later that day, the appellant returned to Boyd's apartment, claiming that he wanted to rent an apartment from her. Boyd let the appellant into her apartment and saw the imprint of guns in his clothing. Boyd said that the appellant threatened to "blow [her a**] off" and that her husband tried to lock the appellant in the apartment while she telephoned the police. However, the appellant "managed to get out."
The jury convicted the appellant of simple assault, a Class A misdemeanor, as a lesser-included offense of aggravated assault, a Class C felony. After a sentencing hearing, the trial court sentenced him to nine months to be served in confinement.
On appeal, the appellant contends that the evidence is insufficient to support the conviction. The State argues that we should dismiss the appeal because the notice of appeal was untimely and that, in any event, the evidence is sufficient. We have decided to waive the requirement of the timely filing of the notice of appeal and address the appellant's argument. We conclude that the evidence is sufficient.
The trial court sentenced the appellant on May 24, 2013. At the conclusion of the hearing, the court agreed to postpone execution of the judgment until June 4, 2013, in order for the appellant to make living arrangements for his grandfather. Nevertheless, the trial court entered the judgment of conviction on May 24. On July 17, 2013, trial counsel filed the appellant's motion for new trial, and the trial court held a hearing on the motion that same day. The trial court denied the appellant's motion for new trial and requested that trial counsel continue to represent the appellant on direct appeal. Trial counsel filed the appellant's notice of appeal on July 29, 2013.
"A judgment becomes final in the trial court thirty days after its entry if no post-trial motions are filed." State v. Mixon, 983 S.W.2d 661, 670 (Tenn. 1999). When a judgment becomes final, a trial court loses jurisdiction to amend it. State v. Peele, 58 S.W.3d 701, 705-06 (Tenn. 2001). In this case, the appellant should have filed his motion for new trial on or before June 24, 2013. Therefore, his July 17, 2013 motion for new trial was untimely and a nullity. See Tenn. R. Crim. P. 33(b). Moreover, because the trial court did not have jurisdiction to hear and determine the merits of the untimely motion, the court's "erroneous consideration ...