OPINION
HARBISON, Chief Justice.Appellee and two co-defendants were convicted of robbery. Appellee was sentenced to fifteen years imprisonment as a Range II offender. On appeal to the Court of Criminal Appeals, he contended for the first time that the State had failed to comply with requirements of T.C.A. § 40-35-202(a) and the related provisions of Rule 12.3, Tennessee Rules of Criminal Procedure. This statute and the procedural rule require that when the District Attorney seeks enhanced punishment, written notice must be filed with the trial court not less than 10 days prior to trial.
The record in the present case shows that written notice was filed with the clerk of the trial court and served on defense counsel on the day the trial commenced, November 13, 1984. The record does not disclose whether the filing occurred before the beginning of trial proceedings. No testimony was adduced on November 13, and that day was consumed with jury selection and opening statements. The introduction of testimony began on November 14, and trial was concluded on November 16. The sentencing hearing did not occur until nearly a month later, on December 14, 1984.
Counsel for appellee interposed no objection at the trial, at the sentencing hearing or in the motion for a new trial respecting the notice filed by the District Attorney. The issue was raised for the first time on appeal. A divided panel of the Court of Criminal Appeals held that the notice was ineffective. The cause was remanded for a new sentencing hearing within Range I.
The question of the effect of late notice by the State has been discussed in a number of unreported decisions, and various panels of the Court of Criminal Appeals have differed in their interpretation. For this reason we granted review in the present case.
The procedural rule, Rule 12.3 of the Tennessee Rules of Criminal Procedure, became effective on August 22, 1984. The statute, T.C.A. § 40-35-202(a), was enacted in 1982. In the interim a number of panels of the Court of Criminal Appeals had held that notice filed on the date of the trial was sufficient, even though the statute provides that it must be filed and served “before trial or acceptance of a guilty plea on the primary offense.” A related statute, T.C.A. § 40-35-109(f), requires that “writ*81ten notice shall be given prior to trial on guilt as provided in § 40-35-202(a).”
Most of the panels of the Court of Criminal Appeals which had considered the matter had held that any error which might have occurred was harmless and would not vitiate the sentence unless the accused could show some prejudice because of the late filing. In the case of Crump v. State, 672 S.W.2d 226 (Tenn.Crim.App.1984), it was held that the complete failure to file such a notice would not suffice to void the sentence on post-conviction petition where a Range II sentence had been agreed upon in plea bargaining prior to the filing of a guilty plea and the imposition of sentence.
Rule 12.3(a) of the Tennessee Rules of Criminal Procedure provides:
Notice in Noncapital Cases. — Written statements of the district attorney giving notice that the defendant should be sentenced to an enhanced punishment, for an especially aggravated offense, and/or as a persistent offender shall be filed not less than ten (10) days prior to trial. If the notice is filed later than this time, the trial judge shall grant the defendant upon his motion a reasonable continuance of the trial.
Subsection (c) provides that the notice shall be in writing, filed with the court and served on counsel.
The comment of the Advisory Commission to this rule is as follows:
This time limitation will allow defense lawyers an opportunity to plan trial strategy or engage in appropriate plea negotiations. Nevertheless, since the notice requirement is based to a large extent on a defendant’s prior record, this record may only come to light shortly before trial. Under this and related circumstances, it would be unfair for the State to proceed to trial unable to establish proof at the sentencing hearing. Consequently, the State may provide notice in less than ten (10) days but the defendant is entitled to a continuance to rechart his course of action. If the defendant does not request a continuance, the written notice shall be valid.
Of course, good practice requires that the notice be filed in accordance with the procedural rule. Nevertheless, the notice deals with the sentencing hearing, not the conduct of the trial on guilt or innocence. The statutes on sentencing contemplate a separate hearing for that purpose, usually held several days or weeks after a verdict of conviction. See T.C.A. § 40-35-209.
We are of the opinion that the fact the notice is not filed until the date trial begins does not render the notice ineffective in the absence of some showing of prejudice on the part of the accused, particularly where defense counsel does not move for a continuance or postponement of the trial as he is clearly authorized to do under Rule 12.3(a). In the absence of a motion for continuance, in our opinion, any objection to the delayed notice by the State ordinarily should be deemed to have been waived. This result is especially true in the present case where the matter was not even raised in the trial court, at the sentencing hearing or on the motion for new trial.
The judgment of the Court of Criminal Appeals is reversed, and the judgment of the trial court is reinstated at the cost of appellee. The cause will be remanded to the trial court for any further proceedings which may be necessary.
FONES, COOPER and DROWOTA, JJ., concur. BROCK, J., dissents.