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State v. Whitson

Court of Criminal Appeals of Tennessee, Nashville

July 27, 2017

STATE OF TENNESSEE
v.
CYRUS RANDY WHITSON

          Assigned on Briefs November 8, 2016

         Appeal from the Criminal Court for Davidson County No. 2005-D-3215 Mark J. Fishburn, Judge

         Defendant, Cyrus Randy Whitson, appeals the trial court's dismissal of his motion for arrest of judgment. On appeal, Defendant argues that because the judgment form for his murder conviction is lacking the "file-stamp" date, his motion is timely and should have been granted. Because Defendant does not have a right to appeal the trial court's dismissal pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure, we dismiss the appeal.

         Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

          Cyrus Randy Whitson, Mountain City, Tennessee, Pro Se.

          Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; and Glenn Funk, District Attorney General, for the appellee, State of Tennessee.

          Thomas T. Woodall, P.J., delivered the opinion of the court, in which Alan E. Glenn and Robert W. Wedemeyer, JJ., joined.

          OPINION

          THOMAS T. WOODALL, PRESIDING JUDGE

         Defendant was indicted for first degree felony murder in count one and first degree premeditated murder in count two. The felony murder charge was later dismissed. A jury convicted Defendant of first degree premeditated murder, and the trial court sentenced Defendant to life. This court affirmed his conviction on direct appeal. See State v. Cyrus Randy Whitson, No. M2007-02197-CCA-R3-CD, 2009 WL 3787457, at *1 (Tenn. Crim. App. Nov. 12, 2009). Defendant filed a petition for post-conviction relief, arguing that he received the ineffective assistance of counsel. Following an evidentiary hearing, the post-conviction court denied his petition. This court affirmed the post-conviction court's denial of relief. See Cyrus Randy Whitson v. State, No. M2014-01941- CCA-R3-PC, 2015 WL 6123061, at *1 (Tenn. Crim. App. Oct. 19, 2015), perm. app. denied (Tenn. Feb. 18, 2016).

         On May 26, 2016, Defendant filed a pro se "Motion for Arrest of Judgment." In his motion, Defendant argued that although the charge was dismissed, the trial court "placed" him on trial for the first degree felony murder charge because the jury charge instructed the jury that he was "charged in Count I of the indictment with the crime of premeditated First Degree Murder." He contended that he was, therefore, convicted of a charge that was dismissed-count one. Moreover, he argued that this court, on both direct and post-conviction appeal, stated that Defendant was convicted of first degree felony murder. Defendant also addressed the issue of the timeliness of his motion for arrest of judgment. He noted that "although the judgment itself was dated June 19, 2007, the document bears no 'file-stamp' date showing that it was filed with the clerk and made part of the record." He claimed that his motion was, therefore, timely.

         On June 30, 2016, the trial court dismissed Defendant's motion for arrest of judgment as untimely, noting that the court's minute entry, along with its date notation from Defendant's trial date was sufficient to render the judgment properly filed on June 19, 2007. Defendant appeals the trial court's dismissal.

         On appeal, Defendant argues that the trial court erred by finding that his motion was untimely. He also contends that his motion should be granted on its merits because he was convicted of an offense that the State dismissed.

         Tennessee Rule of Criminal Procedure 34(a) allows a defendant to file a motion to arrest judgment when either "the indictment, presentment or information does not charge an offense" or "the court was without jurisdiction of the charged offense." Rule 34 does not, however, provide the defendant with the right to appeal a trial ...


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