Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs March 28, 2018
from the Circuit Court for Anderson County No. B7C00135
Donald Ray Elledge, Judge
April 2005, Donald Scott Kimbrough ("the
Petitioner") pled guilty to second degree murder and
attempted second degree murder. Pursuant to a plea agreement,
the Defendant received an effective sentence of twenty-five
years' incarceration. Almost twelve years after his
guilty plea, in March 2017, the Petitioner filed an untimely
petition for post-conviction relief. The Petitioner
acknowledged that his petition was untimely filed but
asserted that the statute of limitations should be tolled
because he was a minor at the time of the
offenses. The post-conviction court summarily
dismissed the petition as time-barred after finding that no
statutory exception existed to toll the limitations period
and that the Petitioner failed to establish a basis for due
process tolling. The Petitioner now appeals the
post-conviction court's order. However, because the
Petitioner filed an untimely notice of appeal with this court
and the interest of justice does not favor a waiver of the
timely filing requirement in this case, the Petitioner's
appeal is dismissed.
R. App. P. 3 Appeal as of Right; Appeal Dismissed
Scott Kimbrough, Mountain City, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter; Sophia
S. Lee, Senior Counsel; Dave S. Clark, District Attorney
General, for the appellee, State of Tennessee.
L. Holloway, Jr., J., delivered the opinion of the court, in
which John Everett Williams and J. Ross Dyer, JJ., joined.
L. HOLLOWAY, JR., JUDGE
brief, the State asserts as a preliminary matter that the
Petitioner's appeal should be dismissed based on his
failure to file a timely notice of appeal. The
post-conviction court summarily dismissed the petition in an
order filed April 3, 2017. In addition to finding that the
petition was time-barred, the post-conviction court noted
that the petition was not verified as required by Tennessee
Code Annotated § 40-30-104(d)-(e). On April 25, 2017,
the Petitioner filed a "Motion to Reconsider Order
Denying Petitioner for Relief from Conviction or Sentence and
Motion for Leave to Amend Petition for Relief from Conviction
or Sentence in Order for the Petition to be Verified and
Motion for Appointment of Attorney." The Petitioner
requested that the post-conviction court vacate its April 3
order and allow the Petitioner to file a properly verified
petition, a copy of which the Petitioner attached to the
motion to reconsider. On May 17, 2017, the post-conviction
court entered an order denying the motion to reconsider,
finding that the Petitioner "completely ignore[d]"
the timeliness issue and "simply focuse[d] on the
finding of the [post-conviction court] that the Petition was
not verified pursuant to T.C.A. §
40-30-104(d)-(e)[.]" The Petitioner then filed a notice
of appeal on June 22, 2017.
4(a) of the Tennessee Rules of Appellate Procedure states
that the notice of appeal "shall be filed with and
received by the clerk of the trial court within 30 days after
the date of entry of the judgment appealed from." Tenn.
R. App. P. 4(a). There are certain motions that will toll the
time for filing the notice of appeal, including a motion for
new trial under Rule 33(a) of the Tennessee Rules of Criminal
Procedure. See Tenn. R. App. P. 4(c). However, a
motion to reconsider is not among the specified motions that
toll the thirty-day requirement. State v. Lock, 839
S.W.2d 436, 440 (Tenn. Crim. App. 1992) (citing State v.
Bilbrey, 816 S.W.2d 71, 74 (Tenn. Crim. App. 1991)).
Furthermore, this court has noted that our rules of criminal
procedure do not provide for a motion to reconsider.
State v. Ryan, 756 S.W.2d 284, 285 n. 2 (Tenn. Crim.
App. 1988). Thus, the notice of appeal in this case should
have been filed by May 3, 2017, thirty days after the entry
of the post-conviction court's April 3 order. The
Petitioner filed his notice of appeal on June 30, 2017,
fifty-eight days after the deadline. However, the notice of
appeal is not jurisdictional in criminal cases, and this
court may waive the timely filing requirement "in the
interest of justice." Tenn. R. App. P. 4(a). To
determine whether waiver is appropriate, this court considers
"the nature of the issues presented for review, the
reasons for and length of the delay in seeking relief, and
any other relevant factors presented in the particular
case." State v. Markettus L. Broyld, No.
M2005-00299-CCA-R3-CO, 2005 WL 3543415, at *1 (Tenn. Crim.
App. Dec. 27, 2005), no perm. app. filed.
response to the State's argument, the Petitioner contends
in a reply brief, without further explanation, that his
motion to reconsider "was in the nature of a motion for
new trial[.]" Based on this assertion, the Petitioner
appears to argue that he had thirty days from the
post-conviction court's May 17 order denying the motion
to reconsider, in which to file a notice of appeal. However,
even if we accepted the Petitioner's erroneous
contention, the notice of appeal filed June 22, 2017, would
still be untimely.
conclude that a waiver of the requirement of a timely notice
of appeal is inappropriate in this case. The reason for the
delay in seeking relief-a presumed misunderstanding of the
law-weighs against a waiver. See State v. Rockwell,
280 S.W.3d 212, 214 (Tenn. Crim. App. 2007). Moreover, the
Petitioner has not addressed in either of his briefs the
post-conviction court's determination that the petition
was untimely and that he was not entitled to tolling of the
statute of limitations. The Petitioner merely asserts that
the post-conviction court dismissed the petition due to
"a defect" in his pleadings, i.e., the
failure of the Petitioner to submit a petition verified under
oath pursuant to Tennessee Code Annotated §
40-30-104(d)-(e), which he argues the post-conviction court
should have allowed him to correct. The Petitioner
incorrectly states that the post-conviction court "did
not address the issue of whether [the] petition was timely
filed or, whether [the] late-filed petition was nonetheless
validly filed based upon the circumstances of this
case." In dismissing the petition, the post-conviction
court clearly found that "the statute of limitations has
run . . . and this action should be dismiss[ed]
accordingly." The post-conviction court noted that
"there [was] no allegation of  new scientific evidence
establishing a claim of actual innocence, there [was] no
enhancement of sentence, and in fact the negotiated plea was
in fact within the Range as required by law." The
post-conviction court reviewed the petition, the judgments of
conviction, and the "entire file in the State of
Tennessee v. Donald Scott Kimbrough case number
A3CR262A" and could not find "any
justification" for allowing the case to proceed to a
hearing. The Petitioner's complete failure to address the
post-conviction court's ruling that the petition is
time-barred also weighs against a waiver. Accordingly, the
Petitioner's appeal is dismissed as untimely.
the interest of justice does not require a waiver of the
timely filing of the notice of ...