State of Tennessee v. Cyrus Randy Whitson ( 2017 )


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  •                                                                                       07/27/2017
    IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    Assigned on Briefs November 8, 2016
    STATE OF TENNESSEE v. CYRUS RANDY WHITSON
    Appeal from the Criminal Court for Davidson County
    No. 2005-D-3215 Mark J. Fishburn, Judge
    ___________________________________
    No. M2016-01420-CCA-R3-CD
    ___________________________________
    Defendant, Cyrus Randy Whitson, appeals the trial court’s dismissal of his motion for
    arrest of judgment. On appeal, Defendant argues that because the judgment form for his
    murder conviction is lacking the “file-stamp” date, his motion is timely and should have
    been granted. Because Defendant does not have a right to appeal the trial court’s
    dismissal pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure, we dismiss
    the appeal.
    Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
    THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which ALAN E. GLENN
    and ROBERT W. WEDEMEYER, JJ., joined.
    Cyrus Randy Whitson, Mountain City, Tennessee, Pro Se.
    Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
    and Glenn Funk, District Attorney General, for the appellee, State of Tennessee.
    OPINION
    Defendant was indicted for first degree felony murder in count one and first
    degree premeditated murder in count two. The felony murder charge was later dismissed.
    A jury convicted Defendant of first degree premeditated murder, and the trial court
    sentenced Defendant to life. This court affirmed his conviction on direct appeal. See
    State v. Cyrus Randy Whitson, No. M2007-02197-CCA-R3-CD, 
    2009 WL 3787457
    , at *1
    (Tenn. Crim. App. Nov. 12, 2009). Defendant filed a petition for post-conviction relief,
    arguing that he received the ineffective assistance of counsel. Following an evidentiary
    hearing, the post-conviction court denied his petition. This court affirmed the post-
    conviction court’s denial of relief. See Cyrus Randy Whitson v. State, No. M2014-01941-
    CCA-R3-PC, 
    2015 WL 6123061
    , at *1 (Tenn. Crim. App. Oct. 19, 2015), perm. app.
    denied ( Tenn. Feb. 18, 2016).
    On May 26, 2016, Defendant filed a pro se “Motion for Arrest of Judgment.” In
    his motion, Defendant argued that although the charge was dismissed, the trial court
    “placed” him on trial for the first degree felony murder charge because the jury charge
    instructed the jury that he was “charged in Count I of the indictment with the crime of
    premeditated First Degree Murder.” He contended that he was, therefore, convicted of a
    charge that was dismissed—count one. Moreover, he argued that this court, on both
    direct and post-conviction appeal, stated that Defendant was convicted of first degree
    felony murder. Defendant also addressed the issue of the timeliness of his motion for
    arrest of judgment. He noted that “although the judgment itself was dated June 19, 2007,
    the document bears no ‘file-stamp’ date showing that it was filed with the clerk and made
    part of the record.” He claimed that his motion was, therefore, timely.
    On June 30, 2016, the trial court dismissed Defendant’s motion for arrest of
    judgment as untimely, noting that the court’s minute entry, along with its date notation
    from Defendant’s trial date was sufficient to render the judgment properly filed on June
    19, 2007. Defendant appeals the trial court’s dismissal.
    On appeal, Defendant argues that the trial court erred by finding that his motion
    was untimely. He also contends that his motion should be granted on its merits because
    he was convicted of an offense that the State dismissed.
    Tennessee Rule of Criminal Procedure 34(a) allows a defendant to file a motion to
    arrest judgment when either “the indictment, presentment or information does not charge
    an offense” or “the court was without jurisdiction of the charged offense.” Rule 34 does
    not, however, provide the defendant with the right to appeal a trial court’s ruling on a
    motion for arrest of judgment. See Tenn. R. Crim. P. 34.
    Tennessee Rule of Appellate Procedure 3 only provides criminal defendants with
    an appeal of right
    from any judgment of conviction entered by a trial court from which an
    appeal lies to the Supreme Court or Court of Criminal Appeals: (1) on a
    plea of not guilty; and (2) on a plea of guilty or nolo contendere, if the
    defendant entered into a plea agreement but explicitly reserved the right to
    appeal a certified question of law dispositive of the case pursuant to and in
    compliance with the requirements of Rule 37(b)(2)(A) or (D) of the
    Tennessee Rules of Criminal Procedure, or if the defendant seeks review of
    the sentence and there was no plea agreement concerning the sentence, or if
    -2-
    the issues presented for review were not waived as a matter of law by the
    plea of guilty or nolo contendere and if such issues are apparent from the
    record of the proceedings already had. The defendant may also appeal as of
    right from an order denying or revoking probation, an order or judgment
    entered pursuant to Rule 36 or Rule 36.1, Tennessee Rules of Criminal
    Procedure, from a final judgment in a criminal contempt, habeas corpus,
    extradition, or post-conviction proceeding, and from a final order on a
    request for expunction.
    Tenn. R. App. P. 3(b). Our supreme court has held when construing rules of procedure
    with clear and unambiguous text, “we need not look beyond the plain language of the text
    to ascertain its meaning.” State v. Rowland, No. W2014-02311-SC-R11-CD, ___ S.W.3d
    ___, 
    2017 WL 2391959
    , at *2 (Tenn. 2017) (citing State v. Brown, 
    479 S.W.3d 200
    , 205
    (Tenn. 2015)). Rule 3(b) does not grant a defendant an appeal as of right from the denial
    of a motion for an arrest of judgment filed years after this court affirmed the defendant’s
    conviction on direct appeal. Accordingly, this court does not have jurisdiction over the
    appeal, and the appeal, therefore, is dismissed.
    ____________________________________________
    THOMAS T. WOODALL, PRESIDING JUDGE
    -3-
    

Document Info

Docket Number: M2016-01420-CCA-R3-CD

Judges: Presiding Judge Thomas T. Woodall

Filed Date: 7/27/2017

Precedential Status: Precedential

Modified Date: 7/27/2017