The opinion
01/03/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs November 5, 2019
TIMOTHY A. BAXTER v. STATE OF TENNESSEE
Appeal from the Circuit Court for Madison County
No. 11-651 Donald H. Allen, Judge
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No. W2019-00590-CCA-R3-CD
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In 2010, Timothy A. Baxter, Defendant, was charged with aggravated assault and was
arraigned on May 9, 2011. Defendant was subsequently charged with failure to appear
for his June 13, 2011 court date on the aggravated assault charge. A jury found
Defendant guilty of failure to appear, and the trial court sentenced him to six years in the
Tennessee Department of Correction. This court affirmed Defendant’s judgment of
conviction on direct appeal in January 2014.1 Defendant filed a pro se “Motion to
Correct Record and Amend Judgment” on March 21, 2018. The trial court dismissed this
motion on April 17, 2018, and Defendant filed a pro se “Motion to Alter or Amend”
under Tennessee Rule of Civil Procedure 59(e) on April 30, 2018. The trial court denied
Defendant’s Motion to Alter or Amend on March 8, 2019, and Defendant timely appeals.
Because Defendant has failed to provide an adequate record for review, and because this
court does not have jurisdiction, the appeal is dismissed.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS, P.J., and CAMILLE R. MCMULLEN, J., joined.
Timothy A. Baxter, Hartsville, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Jody Pickens, District Attorney General; and Shaun Brown, Assistant
District Attorney General, for the appellee, State of Tennessee.
1
State v. Timothy Aaron Baxter, No. W2012-02555-CCA-R3-CD, 2014 WL 29102 (Tenn. Crim.
App. Jan. 3, 2014), perm. app. denied (Tenn. May 29, 2014).
OPINION
In his pro se “Motion to Correct Record and Amend Judgment,” Defendant argued
that he was entitled to pretrial jail credits from the date of his June 26, 2011 arrest for
failure to appear until his August 9, 2012 trial.
In its “Order Dismissing Motion to Correct and Amend Judgment,” the trial court
stated:
[Defendant] was in the custody of the Tennessee Department of
Correction and had to be transported back to Madison County for his
appearances and trial. [Defendant] is not entitled to pretrial jail credits if he
is serving a sentence in the Tennessee Department of Correction. The State
properly awarded [Defendant] credits for the time that he was in the
Madison County Jail after having been returned to Madison County for his
hearings in this case. The judgments in this matter are correct.
In his pro se “Motion to Alter or Amend,” Defendant stated that he was arrested
on June 26, 2011 and held without bail. He contended that “it wasn’t until 1/10/2012 that
[he] was released to the Tennessee Department of Correction” and asked the trial court to
take judicial notice of the judgments of conviction pursuant to Tennessee Rule of
Evidence 201(e).
In its “Order Denying [Defendant’s] Pro Se Motion to Alter or Amend,” the trial
court stated:
The 6 year sentence in this case, Madison County Circuit Court
docket #11-651, is to be served consecutive to the sentences in Madison
County Circuit Court cases #11-250, #01-915, and #01-792, as stated per
the judgment in case #11-651.
....
The Madison County Jail records clearly show that between June
26th, 2011 through August 12th, 2012, that [D]efendant was transported
back and forth from the Tennessee Department of Correction (where he was
serving other felony sentence) and was held temporarily in the local jail
from March 13th, 2012 through March 21st, 2012, then from May 16th,
2012 through May 22nd, 2012, then from August 3rd, 2012 through August
14th, 2012 and then October 12th, 2012 through October 15th, 2012, which
are the correct number of days that he was held in the Madison County Jail
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in case #11-651. Each of these pre-trial jail credit periods are reflected on
the Final Sentencing Judgment in this case, docket #11-651. Again, after a
thorough and careful review of the Madison County Jail records, by this
[c]ourt, the days of pre-trial jail credits in this case #11-651 are correct and
have been so properly reflected on the final sentencing judgment order in
this case.
On appeal, Defendant argues that the trial court abused its discretion by making
erroneous findings of fact and conclusions of law “compounded by a failure to correctly
award all pre-trial jail credit earned on the failure to appear conviction in direct
contravention of T[ennessee] C[ode] A[nnotated section] 40-23-101(c).” The State
responds that the record on appeal is inadequate for review and that Defendant is not
entitled to pretrial credit against more than one sentence at a time.
Initially, we note that the Rules of Appellate Procedure do not contemplate an
appeal as of right from an order denying a motion to alter or amend.
In criminal actions an appeal as of right by a defendant lies 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
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, from a final order on a request
for expunction, and from the denial of a motion to withdraw a guilty plea
under Tennessee Rules of Criminal Procedure 32(f).
Tenn. R. App. P. 3(b). The instant appeal does not fall under any of the circumstances
available for a direct appeal for a defendant. Therefore, we conclude that the present case
does not fall within the purview of Rule 3, and the appeal must be dismissed.
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Even if this court did have jurisdiction, Defendant has failed to provide an
adequate record for review. A defendant bears the burden of preparing an adequate
record on appeal, see State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993), which includes
the duty to “have prepared a transcript of such part of the evidence or proceedings as is
necessary to convey a fair, accurate and complete account of what transpired with respect
to those issues that are the bases of appeal.” Tenn. R. App. P. 24(b). This court is
precluded from considering an issue presented for review when the record is incomplete
and does not contain a transcript of the proceedings relevant to the issue, or portions of
the record upon which the defendant relies. Ballard, 855 S.W.2d at 560-61 (citing State
v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). If the defendant fails to file
an adequate record, this court must presume the trial court’s ruling was correct. See State
v. Richardson, 875 S.W.2d 671, 674 (Tenn. Crim. App. 1993). Because Defendant failed
to provide the judgment forms for his convictions, the record is inadequate.
Conclusion
The appeal is dismissed for lack of jurisdiction.
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ROBERT L. HOLLOWAY, JR., JUDGE
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