Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs February 23, 2017 at Knoxville
from the Circuit Court for Humphreys County No. 12007 George
C. Sexton, Judge
Defendant, Jacqueline Allen, was found guilty by a Humphreys
County Circuit Court jury of assault, a Class A misdemeanor,
and possession of a firearm by a convicted felon, a Class E
felony. See T.C.A. §§ 39-13-101 (2010)
(amended 2013), 39-17-1307 (2010) (amended 2012, 2014). The
trial court sentenced the Defendant as Range I, standard
offender to an effective two years' probation. On appeal,
the Defendant contends that the trial court erred by failing
to inquire about a violation of the sequestration rule
pursuant to Tennessee Rule of Evidence 615. We conclude that
the appeal should be dismissed because the Defendant's
motion for a new trial was untimely.
R. App. P. 3 Appeal as of Right; Appeal Dismissed.
L. Baum, Nashville, Tennessee, for the appellant, Jacqueline
Herbert H. Slatery III, Attorney General and Reporter; Sophia
S. Lee, Senior Counsel; Ray Crouch, District Attorney
General; and Joseph L. Hornick, Assistant District Attorney
General, for the appellee, State of Tennessee.
H. Montgomery, Jr., J., delivered the opinion of the court,
in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr.,
H. MONTGOMERY, JR., JUDGE
2010, the Defendant was indicted for aggravated domestic
assault and possession of a firearm by a convicted felon. The
Defendant proceeded to trial on June 13, 2012, and at the
conclusion of the proof, the jury found her guilty of assault
and possession of a firearm by a convicted felon. The
judgments reflect that on February 11, 2013, the trial court
sentenced the Defendant to an effective sentence of two
years' probation. Also on February 11, 2013, the
judgments were entered, and the Defendant wrote a letter to
the trial court stating that she wanted to file an appeal and
that she needed a court-appointed attorney. On March 7, 2013,
the Defendant filed a pro se motion for a new trial in which
she alleged that the evidence was insufficient to support her
convictions and requested that the trial court appoint an
attorney for the motion. On June 17, 2013, the trial court
entered a written order stating that the Defendant's pro
se motion for a new trial was heard on June 10, 2013, and
that the Defendant did not appear in court for the motion
hearing. As a result, the trial court denied the motion. The
order did not address the Defendant's request for
appointed counsel. A transcript from the motion hearing is
not included in the appellate record. The record reflects no
additional court filings until January 30, 2014.
January 30, 2014, trial counsel filed a motion requesting
permission to withdraw as counsel of record because the
defendant had filed a petition for post-conviction relief and
had been appointed counsel, who was not identified in the
motion. The record reflects that an amended petition for
post-conviction relief was filed on February 4, 2014, and
that an evidentiary hearing was scheduled for May 1, 2014. No
additional information regarding the post-conviction petition
is included in the record. On February 18, 2014, the trial
court granted trial counsel's request to withdraw.
2014, a subsequent attorney (subsequent counsel) representing
the Defendant filed an "amended motion for a new trial,
" alleging that the trial court erred by failing to hold
a hearing after reports that witnesses were talking during
the trial in violation of the sequestration rule. The motion
also alleged that the evidence was insufficient to
"sustain a conviction." On June 25, 2014, the trial
court held a hearing on the amended motion for a new trial,
and the transcript reflects that the court denied the motion
at the conclusion of the hearing. On July 21, 2014,
subsequent counsel filed a notice of appeal. The trial
court's written order denying the Defendant's request
for a new trial was signed by the trial judge on July 30,
2014, and was filed with the trial court clerk's office
on August 1, 2014.
preliminary matter, we note the unique procedural history in
this case. The record reflects, in relevant part, that the
trial court imposed sentencing and entered judgments on
February 11, 2013. On March 7, 2013, the Defendant filed a
pro se motion for a new trial, alleging the evidence was
insufficient to support her convictions. However, trial
counsel represented the Defendant until February 18, 2014,
more than one year after the pro se motion was filed.
courts have concluded that that a defendant "does not
have a constitutional right to participate . . . in [her] own
defense and simultaneously to be represented by participating
counsel." State v. Burkhart, 541 S.W.2d 365,
371 (Tenn. 1976); see Wallace v. State, 121 S.W.3d
652, 655 n.2 (Tenn. 2003); State v. Muse, 637 S.W.2d
468, 470 (Tenn. Crim. App. 1982) (stating a defendant may not
file pro se motions while represented by counsel). Although
the Defendant's pro se motion for a new trial was filed
within the thirty days required by Tennessee Criminal
Procedure Rule 33(b), the record reflects that the Defendant
was represented by trial counsel. As a result, the
Defendant's pro se motion was a nullity, which rendered
the motion filed by subsequent counsel untimely. See
State v. Paul Fred Chappell, No. E2010-02462-CCA-R3-CD,
2012 WL 134236, at *5 (Tenn. Crim. App. Jan. 18, 2012);
see also State v. Martin, 940 S.W.2d 567, 569 (Tenn.
1997); State v. Dodson, 780 S.W.2d 778, 780 (Tenn.
Crim. App. 1989).
thirty-day requirement in Tennessee Rule of Criminal
Procedure 33(b) is mandatory and cannot be extended.
State v. Bough, 152 S.W.3d 453, 460 (Tenn. 2004);
see Tenn. R. Crim. P. 45(b). A trial court does not
have jurisdiction to determine the merits of an untimely
motion for a new trial, and this court is not authorized to
waive the untimely filing of a motion for a new trial.
Martin, 940 S.W.2d at 569; see Dodson, 780
S.W.2d at 780; State v. Givhan, 616 S.W.2d 612, 613
(Tenn. Crim. App. 1981). Therefore, the issues raised in an
untimely motion for a new trial court are considered waived,
except sufficiency of the evidence and sentencing.
Bough, 152 S.W.2d at 460; see T.R.A.P.
3(e). Furthermore, an untimely motion for a new trial will
generally result in an untimely notice of appeal, but the
notice of ...