State v. Mikel U. Primm ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
STATE OF TENNESSEE v. MIKEL U. PRIMM
Direct Appeal from the Circuit Court for Dickson County
No. CR-3291 Allen W. Wallace, Judge (at trial)
Robert E. Burch, Judge (post-conviction)
No. M1999-00354-CCA-R3-CD - Decided June 2, 2000
The defendant, Mikel U. Primm, was convicted of sale of cocaine. Because the defendant's appeal
was untimely filed, the appeal is dismissed.
Tenn. R. App. P. 3; Appeal Dismissed
WADE, P.J., delivered the opinion of the court, in which SMITH and WEDEMEYER , JJ., joined.
James W. Sowell (on appeal), Dickson, Tennessee, Carey Thompson (at trial), Charlotte, Tennessee,
for the appellant, Mikel U. Primm.
Paul G. Summers, Attorney General & Reporter, Marvin E. Clements, Jr., Assistant Attorney
General, Dan M. Alsobrooks, District Attorney General, Suzanne M. Lockert, Assistant District
Attorney, for the appellee, State of Tennessee.
OPINION
On March 17, 1997, the defendant, Mikel U. Primm, was convicted of sale of cocaine.
See Tenn. Code Ann. § 39-17-417. The trial judge, Allen W. Wallace, imposed a Range I sentence
of five years. On June 4, 1997, the defendant filed a motion for new trial. Approximately six weeks
later, the defendant filed an amended motion for new trial. Nearly two months passed before the trial
court overruled the motion. There was no notice of appeal. On November 9, 1998,1 the defendant
filed a petition for post-conviction relief. Although the trial judge, Robert E. Burch, determined that
the petition was not timely filed, he concluded that "in the interests of justice, relief shall be granted
. . . [because the defendant's] conviction was never appealed." Judge Burch appointed counsel, set
aside and re-entered the order denying a new trial, and directed newly appointed counsel to file a
notice of appeal.
1
The post-conviction petition is not in the record. The date of filing was stipulated at oral
argument.
On June 28, 1996, Jerry Simmons, a paid informant who was working for the Dickson
County Sheriff's Department, arranged to purchase crack cocaine from the defendant. Detective
Michael Holman placed an audio transmitter on Simmons and provided him with enough cash to buy
drugs. Detective Holman maintained audio surveillance while Simmons paid $30 to the defendant
in exchange for crack containing .2 gram of cocaine base. At trial, an audiotape of the transaction
was played for the jury. Simmons identified the voice of the defendant.
In this appeal, the defendant contends that many of the comments recorded on the
audiotape should have been excluded at trial as inadmissible hearsay. Because, however, the trial
court lacked jurisdiction to vacate and re-enter the order overruling the motion for new trial, even
"in the interests of justice," this court cannot consider the issue presented on the merits. Therefore,
the appeal must be dismissed.
Rule 33(b) of the Tennessee Rules of Criminal Procedure provides that a motion for
new trial must be filed within 30 days of the entry of sentence. The defendant failed to timely file
his motion for new trial under this rule.
To perfect an appeal, a notice of appeal must be filed with "the clerk of the trial court
within 30 days after the date of entry of the judgment . . . ." Tenn. R. App. P. 4(a). In criminal
cases, the filing of a notice of appeal may be waived "in the interest of justice," but only by the
"appropriate appellate court." Id. (emphasis added); State v. Scales, 767 S.W.2d 157 (Tenn. 1989).
The trial court has no such authority. A delayed appeal is authorized by Tenn. Code Ann. § 40-30-
213 when the petitioner is denied effective assistance of counsel due to the failure to perfect an
appeal of right. See Tenn. Code Ann. § 40-30-213; Tenn. R. App. P. 3. Yet a petition seeking the
grant of a delayed appeal must be filed within the statute of limitations. Tenn. Code Ann. § 40-30-
202(a); Handley v. State, 889 S.W.2d 223, 224 (Tenn. Crim. App. 1994). No court may consider
an untimely post-conviction petition except in certain unusual circumstances, none of which would
apply here. See Sands v. State, 903 S.W.2d 297 (Tenn. 1995); Burford v. State, 845 S.W.2d 204(Tenn. 1992).
While the trial court could not grant a delayed appeal in this instance, that would
ordinarily have been the proper remedy. Despite our preference to consider the merits of the appeal
and our admiration of the trial court's ingenuity in attempting to permit such a review, that procedure
would not, in our view, honor the legislature's intention to limit any consideration of relief after so
long a delay. Neither should we exercise our discretion to allow an appeal "in the interests of
justice" when the defendant did not file a notice of appeal until long after the expiration of the statute
of limitations for the filing of post-conviction relief.
Accordingly, the appeal is dismissed.
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