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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE OCTOBER 1997 SESSION

FILED
December 4, 1997 Cecil W. Crowson Appellate Court Clerk

STATE OF TENNESSEE, Appellee, VS. AUSTIN KIPLING STRATTON, Appellant.

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NO. 01C01-9611-CC-00472 CHEATHAM COUNTY HON. ROBERT E. BURCH, JUDGE (Sale of Cocaine)

FOR THE APPELLANT: R. N. (BO) TAYLOR (Appeal) 112 Long Hollow Pike Suite 206 Goodlettsville, TN 37072 JAMES M. JOHNSON (Trial Court) 112 Frey Street Ashland City, TN 37015-1806

FOR THE APPELLEE: JOHN KNOX WALKUP Attorney General and Reporter DARYL J. BRAND Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 DAN M. ALSOBROOKS District Attorney General SUZANNE M. LOCKERT Assistant District Attorney General P. O. Box 580 Charlotte, TN 37036-0580

OPINION FILED:

AFFIRMED

JOE G. RILEY, JUDGE

OPINION

Defendant, Austin Kipling Stratton, seeks review of his consecutive sentences totaling twenty (20) years for various drug offenses. The sentences resulted from a plea of guilty. We find that the notice of appeal was untimely filed, and no relief is merited under Tenn. R. Crim. P. 35(b). Accordingly, we affirm the judgment of the trial court.

PROCEDURAL HISTORY

On October 24, 1994, defendant entered a guilty plea to two (2) counts of selling cocaine, one (1) count of possession of cocaine with intent to sell, and one (1) count of simple possession of marijuana. On December 16, 1994, the trial court sentenced him to ten (10) years in the Tennessee Department of Correction on one (1) count of selling cocaine; ten (10) years consecutive on the possession of cocaine with intent to sell; six (6) years concurrent on the other count of selling cocaine; and eleven (11) months, twenty-nine (29) days on the marijuana possession, concurrent, for an effective sentence of twenty (20) years. He was represented by the same counsel at plea and sentencing. After the sentencing, second counsel filed a Motion for New Trial. Before it was heard, present counsel was retained. Counsel

persuaded the trial court to consider the motion for new trial as a Rule 35(b) motion. After an evidentiary hearing on June 19, 1996, the trial court denied relief. Defendant filed his notice of appeal on June 28, 1996.

UNTIMELY NOTICE OF APPEAL

Upon pleading guilty and being sentenced, defendant should have filed a notice of appeal within thirty (30) days after the entry of the judgments. Tenn. R. App. P. 4(a). Instead, he filed a motion for new trial. Such a motion is not

appropriate after a guilty plea. See State v. McClintock, 732 S.W.2d 268, 271 (Tenn.

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1987). The motion did not toll the thirty-day period. Therefore, the notice of appeal filed in June 1996 was untimely. The notice of appeal is not jurisdictional in criminal cases, and its untimely filing may be waived "in the interest of justice." Tenn. R. App. P. 4(a). Defendant was sentenced in December 1994, and the motion for new trial was filed in January 1995. The motion converting the new trial request into a Tenn. R. Crim. P. 35(b) hearing was not filed and heard until June 1996, some year and a half later. The record is unclear as to why the delay was so lengthy. We see no reason to waive the untimely filing in the interest of justice. We, therefore, will review the denial of the Tenn. R. Crim. P. 35(b) request for a reduction in the sentence.1

RULE 35 STANDARD OF REVIEW

Tenn. R. Crim. P. 35(b) authorizes a trial judge to reconsider a previouslyimposed sentence and reduce it if such a reduction is "in the interest of justice." Tenn. R. Crim. P. 35(b), Advisory Commission Comments. In contrast to the standard of review applicable to sentencing appeals perfected under Tenn. Code Ann.

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