Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs November 8, 2016
from the Criminal Court for Davidson County No. 2005-D-3215
Mark J. Fishburn, Judge
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.
R. App. P. 3 Appeal as of Right; Appeal Dismissed
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.
T. Woodall, P.J., delivered the opinion of the court, in
which Alan E. Glenn and Robert W. Wedemeyer, JJ., joined.
T. WOODALL, PRESIDING JUDGE
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).
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.
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.
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.
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 ...