State v. Dodson

• Decision Date: 29 August 1989
• Citation: 780 S.W.2d 778
• Parties: STATE of Tennessee, Appellee, v. Dennis E. DODSON, Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 778

780 S.W.2d 778

STATE of Tennessee, Appellee, v. Dennis E. DODSON, Appellant.

Court of Criminal Appeals of Tennessee,

at Knoxville.

Aug. 29, 1989.

Permission To Appeal Denied by Supreme

Court Nov. 27, 1989.

Leroy Phillips, Jr., Leonard M. Caputo, Chattanooga, for appellant.

Charles W. Burson, Atty. Gen. & Reporter, C. Anthony Daughtrey, Asst. Atty. Gen., Nashville, Gary D. Gerbitz, Dist. Atty. Gen., Thomas J. Evans, Frank Groves, Asst. Dist. Attys. Gen., Chattanooga, for appellee.

OPINION

JONES, Judge.

The appellant, Dennis E. Dodson, was convicted of aggravated assault, robbery with a deadly weapon, and assault with intent to commit rape by a jury of his peers. The jury also found that the appellant was a habitual criminal and sentenced him to life imprisonment for the offense of robbery with a deadly weapon. The trial court, finding that the appellant was a persistent offender and he committed especially aggravated offenses, imposed the following Range II sentences: ten (10) years in the Department of Correction for aggravated assault and fifteen (15) years in the Department of Correction for assault with the intent to commit rape.

The appellant appealed as of right to this Court following the denial of his motion for a new trial. Tenn.R.App.P. 3(b).

The appellant has raised two issues for review. He contends that (a) the State failed to establish beyond a reasonable doubt that he was sane when the offenses were committed; and (b) the trial court committed error of prejudicial dimensions in permitting the State to cross-examine a defense witness regarding other crimes he had committed.

The record reflects that the appellant's motion for a new trial and notice of appeal were not filed timely. The trial judge sentenced the appellant on December 15, 1987. The appellant's motion for a new trial was not filed in the cause until July 14, 1988, approximately seven months after sentencing. Consequently, the time for the filing of the notice of appeal was not tolled by the filing of the motion for a new trial.

A motion for a new trial is required to be filed within thirty (30) days of the date the order of sentence is filed in this cause. ¹ The provision is mandatory; and the time for the filing of a motion for a new trial cannot be extended. ² A motion for a new trial which is not timely filed is a nullity. ³

A trial judge does not have jurisdiction to hear and determine the merits of a motion for a new trial which has not been timely filed. ⁴ The trial judge has no alternative but to dismiss the motion. ⁵ The fact that a trial judge erroneously considers and rules upon a motion that has not been timely filed does not validate the motion; and an appellate court will not consider the issues raised in the motion ⁶ unless the issue or issues would result in the dismissal of the prosecution against the accused. ⁷

The failure to timely file a motion for new trial does not deprive this Court of jurisdiction. ⁸ The jurisdiction of this Court attaches with the timely filing of a notice of appeal. ⁹ However, the failure to timely file a motion for a new trial results in the waiver of those issues which may result in the granting of a new trial. ¹⁰ In the case sub judice, this Court can only consider the issue addressing the sufficiency of the evidence. ¹¹

A notice of appeal is required to be filed with the clerk of the trial court within thirty days after the entry of the judgment or order from which relief is sought. ¹² Thus, the defendant is required to file the notice of appeal within thirty days from the entry of the order of sentence unless the defendant timely files a post-trial motion for (a) judgment of acquittal, (b) a new trial, or (c) arrest of judgment. The timely filing of these motions tolls the time for the filing of the notice of appeal. ¹³

Since the appellant failed to timely file a motion for a new trial, the time for the filing of the notice of appeal was not tolled pursuant to Rule 4(c), Tenn.R.App.P. Thus, the notice of appeal was not timely filed.

There were two remedies available for the correction of this procedural fault. First, the appellant could have sought post-conviction relief pursuant to T.C.A. § 40-30-120. Second, the appellant could have filed a motion in this Court requesting that the timely filing of a notice of appeal be waived in the interest of justice. ¹⁴ 4] The record does not reflect that the appellant invoked either remedy. However, this Court may waive the notice of appeal requirement on its own motion when it is in the interest of justice to do so. Since the appeal of the appellant has merit, it is in the interest of justice that the notice of appeal requirement be waived. However, our review will be limited to the issue addressing the sufficiency of the evidence.

On the evening of August 16, 1985, the appellant approached a convenience store carrying a rifle case in one hand and a book in the other hand. The convenience store clerk, who had been the victim of a recent robbery, became frightened when she noticed that the appellant was approaching the store. She immediately called her brother. Shortly thereafter she called the East Ridge Police Department.

When the appellant entered the store, the victim was on the telephone talking to the dispatcher of the East Ridge Police Department. She noticed that the appellant had left the gun case and book outside. After glancing around the store to see if anyone else was there, the appellant asked the victim whether the store was for sale. When the victim told the appellant the store was in fact for sale, the appellant began to query her about the store. The victim advised the appellant that all questions regarding the sale of the store would have to be addressed to her real estate agent. The appellant subsequently walked through the store, and, at one point, talked to a customer. When the customer was ready to leave the store, the victim convinced him to remain and assist her in monitoring the appellant's movements. Later, the appellant approached the victim, threw an open adult magazine on the counter in front of her, and he asked: "How do you like this?" The victim closed the magazine without comment. He also told the victim that her father, who worked in the store part-time, had placed three cases of beer in a back room at his request. He stated that he wanted to buy the magazine and the beer. He told her he would go outside to get his money while she brought the beer to the counter. According to the appellant, the purchase price of the beer, as agreed, was $10.00. The appellant then exited the store.

The appellant subsequently reentered the store with a Bible and a rifle. He placed the Bible on top of the magazine. There was a ten dollar bill protruding from the Bible. He then walked around the counter and cut the telephone cord while the victim was talking to the police dispatcher. He grabbed the victim around her waist and led her into a back room. The appellant admonished the victim not to make any noise. He told her the gun was loaded and threatened to kill her if she made a sound.

After the appellant and victim entered the room, the appellant closed the door and proceeded to slap and choke the victim. He hit her with such force she fell to the floor. When she began to cry, he again threatened to kill her. As the victim lay on the floor, the appellant sat on top her, began slapping one side of her head and then the other; and he attempted to remove her blouse. When she resisted, he grabbed her by the hair and began pounding her head against the concrete floor. Ultimately, he was successful in removing her blouse. As he was attempting to unbutton her jeans, a police officer kicked the door open and pointed his gun at the appellant. The appellant told the police officer: "Don't shoot; don't shoot; Jesus don't shoot me."

The appellant provided the police with his name, nickname, date of birth, place of birth, address, zip code, height, weight, social security number, and occupation. Enroute to the police station, the appellant stated that he was glad that the officer did not shoot him. After he arrived at the police station, he inquired as to the amount of his bond; and he told a police officer, who attempted to interview him with a tape recorder present: "You don't expect me to say anything on that tape, do you?" He also told an officer: "I won't serve a day for it; I'll plead insanity."

The appellant relied upon the defense of insanity. He presented several witnesses to support his defense.

The appellant's former wife, Janet Dodson, noticed a change in the appellant during the months of July and August of 1985. She filed suit for divorce on July 16, 1985. According to Mrs. Dodson, the appellant was unable to sleep at night, he was apparently hyperactive, overly ambitious, and his goals were not realistic. As time progressed, he began to "talk in circles," repeat himself, and his conduct gradually became "very bizarre."

Approximately a week before the date in question, Mrs. Dodson went to her former residence at the request of the appellant. She found that personal effects had been strewn throughout the house. Much of the furniture was missing. She discovered that scraps of paper had been tacked to the living room walls. The appellant told her the scraps of paper "were his investments" and they "proved that he had become a millionaire." He also told her that he had been "called to help pave the way for Jesus to return to Earth." She observed the appellant conversing with a non-existent person; and she opined that he had not washed his clothes or taken a bath in at least a week. He later called her and asked to borrow $50.00.

During a family gathering on July 4, 1985, the appellant's father noticed that he was "real hyper" and "obsessed with talking about his business ... to the extent that it was just annoying." The appellant was "talking about being a millionaire" and what he intended to...