State of Tennessee v. Kim McBride Murphy ( 2008 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
May 20, 2008 Session
STATE OF TENNESSEE v. KIM MCBRIDE MURPHY
Direct Appeal from the Criminal Court for Cumberland County
No. 9541 John Turnbull, Judge
No. E2007-02647-CCA-R3-CD - Filed October 17, 2008
Following a bench trial in Cumberland County, the defendant, Kim McBride Murphy, was convicted
of driving under the influence (DUI), a Class A misdemeanor, and sentenced to eleven months and
twenty-nine days, with thirty days to be served in confinement. The defendant filed a timely motion
for new trial, which the trial court orally denied. No written order of the denial is included in the
record, however. On appeal, the defendant contends that the evidence is insufficient to support her
conviction for DUI. After review of the record, we conclude that we lack jurisdiction in the case
because the record contains no written denial of the motion for new trial. Accordingly, the appeal
is dismissed.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JERRY L. SMITH and
THOMAS T. WOODALL , JJ., joined.
David Brady, District Public Defender, and John B. Nisbet, III, Assistant Public Defender, for the
appellant, Kim McBride Murphy.
Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General;
Anthony J. Craighead, District Attorney General; and Mark E. Gore, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
Procedural History
The defendant was arrested and charged with DUI after an officer from the Crossville Police
Department observed that her van had traveled off the road and knocked over a sign. Upon
approaching the vehicle, the officer saw the defendant “holding onto the door of the van” and saw
the defendant’s eleven-year-old son inside the vehicle. The officer also noticed that the defendant
had trouble locating her driver’s license, had dark and swollen eyes, was unsteady on her feet, and
had slurred speech. She was also unable to successfully complete multiple field sobriety tests.
When the officers attempted to place the defendant under arrest, she became belligerent and had to
be forced into the police car. Upon arrival at the police station, she refused to submit to a blood or
breath test.
The defendant was subsequently indicted by a Cumberland County grand jury for one count
of DUI and one count of child endangerment. The State subsequently dismissed the child
endangerment charge, and a bench trial was conducted on the DUI charge. After hearing the
evidence presented, the trial court found the defendant guilty as charged. She was subsequently
sentenced to a term of eleven months and twenty-nine days, thirty days of which was to be served
in confinement. Following entry of judgment, the defendant filed a timely motion for new trial. The
trial court orally denied that motion, but no written order denying the motion is included in the
record. Notice of appeal was subsequently filed.
Analysis
On appeal, the defendant raises the single issue of sufficiency of the evidence. However,
prior to reviewing that issue, we must first address the State’s contention that this court should
dismiss the appeal for lack of jurisdiction because there is no written order denying the motion for
new trial included in the record.
The State is correct that the Tennessee Rules of Appellate Procedure require us to determine
if we have jurisdiction in every case on appeal. Tenn. R. App. P. 13(b). In criminal cases, an appeal
as of right lies from a final judgment of conviction. Tenn. R. App. P. 3(b). Such appeal is initiated
by filing a notice of appeal within thirty days of the final judgment date. Tenn. R. App. P. 4(a). In
criminal actions, “if a timely motion or petition under the Tennessee Rules of Criminal Procedure
is filed in the trial court by the defendant . . . under Rule 33(a) for a new trial, . . . the time for appeal
for all parties shall run from entry of the order denying a new trial. . . .” Tenn. R. App. P. 4(c). Until
the trial court denies the motion for a new trial, this court does not have jurisdiction over the case.
See e.g., State v. James Lee Foreman, II, M2002-02595-CCA-R3-CD (Tenn. Crim. App. at
Nashville, Mar. 4, 2004) (dismissing appeal for lack of jurisdiction because appellate record did not
contain a written order denying the motion for a new trial, a transcript of the hearing on the motion
for a new trial, or a document showing that the trial court denied the motion for a new trial); see also
State v. Dorris Nell Jones, No. M2007-00791-CCA-R3-CD (Tenn. Crim. App. at Nashville, Feb.
27, 2008) (dismissing appeal for lack of jurisdiction because the record did not contain a motion for
new trial, the trial court’s hearing on the motion, or an order denying the motion); State v. Terry
Lynn Byington, No. E2006-02069-CCA-R3-CD (Tenn. Crim. App. at Knoxville, Nov. 26, 2007)
(dismissing appeal for lack of jurisdiction because the appellate record did not contain the motion
for a new trial or written order that the motion for a new trial was denied), Tenn. R. App. P. 11
application granted, (Tenn. June 14, 2008); State v. Gregory O. Cherry, No. W2006-00015-CCA-
R3-CD (Tenn. Crim. App. at Jackson, July 27, 2007) (dismissing appeal for lack of jurisdiction
because the record did not contain an order or transcript of any proceeding showing that disposition
was made on the motion for a new trial); State v. Brent Tolbert, No. M2006-01621-CCA-R3-CD
(Tenn. Crim. App. at Nashville, June 28, 2007) (dismissing appeal for lack of jurisdiction because
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the trial court “never entered a written order denying the motion” for a new trial); but see State v.
Perry A. March, No. M2006-02732-CCA-R3-CD (Tenn. Crim. App., at Nashville, July 15, 2008)
(a minute entry entered by the trial court, which is contained in the appellate record, is effective to
overrule the motion for new trial and confer jurisdiction on this court).
We also note the recent case of State v. Kevin Allen Gentry, No. E2007-02029-CCA-R3-CD
(Tenn. Crim. App. at Knoxville, July 30, 2008), in which a panel of this court dismissed the appeal
for lack of jurisdiction. In that case, just as in the case before us, a copy of the motion for new trial
was included, along with a transcript of the motion for new trial hearing which contained an oral
denial by the trial court of the motion. Id. However, no written denial of the motion was included
in the record nor was a minute entry indicating the denial. Id. In the opinion, the court noted that
on May 5, 2008, the Tennessee Supreme Court granted permission to appeal in State v. Terry Lynn
Byington, one of the cases which was relied upon to reach the determination that the court had no
jurisdiction. In the order granting the appeal, our supreme court stated, “For oral argument, the
Court is particularly interested in the following issue: Whether appellate jurisdiction can be
conferred through a minute entry indicating denial of the motion for new trial, without the entry of
a separate written order.” Id. While noting that the Tennessee Supreme Court would soon be
providing guidance in the matter, the court in Gentry dismissed the appeal based upon the current
state of the law. Id.
Likewise, we must conclude that the current state of the law requires that a written order
disposing of the motion for new trial be contained in the record in order to confer jurisdiction upon
this court to review any issues appealed. Because there is no such order contained in the record
before us, we must dismiss the appeal for lack of jurisdiction.
CONCLUSION
Based upon the foregoing, the appeal is dismissed.
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JOHN EVERETT WILLIAMS, JUDGE
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