State of Tennessee v. Terry Lynn Byington

Defendant, Terry Byington, was convicted of DUI, fourth offense, and was sentenced to three years in the Department of Correction as a Range II, multiple offender for this Class E felony, with a minimum of 150 days to be served day for day. On direct appeal, this Court held that he waived all issues presented except for the sentencing issue and a challenge of the sufficiency of the evidence, because the motion for new trial was not timely filed, and was therefor a nullify. See State v. Terry Lynn Byington, No. E2003-02316-CCA-R3-CD, 2004 WL 1606993, (Tenn. Crim. App. at Knoxville, July 19, 1004) perm. app. denied. (Tenn. Dec. 28, 2004). Subsequently, defendant filed a petition for post-conviction relief and, pursuant to T.C.A. _ 40-30-113, a delayed appeal was ordered by the post-conviction court. Upon delayed appeal, this Court dismissed the appeal because the order denying the motion for new trial was not in the record. The Supreme Court granted defendant's application for permission to appeal, and subsequently vacated this Court's judgment and remanded the case to this Court "for review of the issues raised by [Defendant] in his motion for new trial." See State v. Byington, 284 S.W.3d 220, 227 (Tenn. 2009). After review of the issues presented, the briefs of the parties, and the entire record, we affirm the judgment of the trial court.