ONION, Presiding Judge.
This is an appeal from a conviction for burglary with intent to commit theft wherein the punishment was assessed at twelve (12) years.
On February 14, 1973, the court appointed Honorable Daylee Wiggins as counsel for appellant. Such counsel filed a motion for new trial on February 20, 1973, and the court conducted a hearing on such motion without setting aside the sentence earlier imposed. At the hearing appellant offered no evidence and the motion was overruled. The court then resentenced the appellant and then permitted the appellant to give notice of appeal. Such resentence is not in the record before us.
First, we observe that the motion for new trial was not timely filed in light of the provisions of Article 40.05, Vernon's Ann.C.C.P. Further, where a defendant has waived the time in which to file motions for a new trial and in arrest of judgment and sentence is pronounced, then the court is under no obligation to permit such motions to be filed. Adams v. State, 440 S.W.2d 844 (Tex.Cr.App. 1969); Bedell v. State, 443 S.W.2d 850 (Tex.Cr.App. 1969); Bennett v. State, 450 S.W.2d 652 (Tex.Cr. App. 1970). If the court agrees to permit the belated filing of a motion for new trial where sentence has been pronounced, sentence should be set aside and an order to that effect entered. Adams v. State, supra; Duke v. State, 462 S.W.2d 596 (Tex. Cr.App. 1971). And "good cause" should be shown for the late filing of such a motion for new trial. Article 40.05, supra; cf. Defore v. State, 460 S.W.2d 128 (Tex. Cr.App. 1970).
It is noted that the sentence was not set aside and good cause for belated filing was not made.
Further, the court's action could not be authorized under Article 40.09, Sec. 12, Vernon's Ann.C.C.P. See and cf. Watkins v. State, 438 S.W.2d 819 (Tex.Cr.App. 1969).
It appears obvious that the action taken was designed to give the appellant the opportunity to give a belated notice of appeal.
Article 44.08, Vernon's Ann.C.C.P., provides the time limitations for giving notice of appeal. Section (e) of such statute provides:
In Menasco and Hill v. State, 503 S.W.2d 273 (delivered July 3, 1973), this court first said:
There is nothing in the record to support the giving of belated notice of appeal. In absence of the necessary supporting evidence, we cannot determine if there was "good cause" to support a belated notice of appeal. See Menasco and Hill v. State, supra.
A trial court may not use the procedure here utilized to avoid the necessity of showing "good cause."
The appeal is dismissed.