State v. Glenna Kidd ( 1999 )

FILED
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
May 13, 1999
FEBRUARY 1999 SESSION
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
)
Appellee, ) C.C.A. No. 01C01-9808-CR-00344
)
vs. ) Wilson County
)
GLENNA KIDD, ) Hon. J. O. Bond, Judge
)
Appellant. ) (Best Interest Guilty Plea)
FOR THE APPELLANT: FOR THE APPELLEE:
GLENNA KIDD (pro se) JOHN KNOX WALKUP
P.O. Box 499 Attorney General & Reporter
Shelbyville, TN 37162
GEORGIA BLYTHE FELNER
Assistant Attorney General
425 Fifth Ave. N., 2d Floor
Nashville, TN 37243-0493
TOM P. THOMPSON, JR.
District Attorney General
203 Greentop St., P.O. Box 178
Hartsville, TN 37074-0178
ROBERT N. HIBBETT
Assistant District Attorney
119 College St.
Lebanon, TN 37087
OPINION FILED:________________
APPEAL DISMISSED
JAMES CURWOOD WITT, JR., JUDGE
OPINION
The defendant, Glenna Kidd, appeals from the W ilson County Criminal
Court’s entry of her guilty plea. On March 31, 1998, the defendant entered a best
interest guilty plea to one count of passing a worthless check. The judge granted
judicial diversion of one year pursuant to Tennessee Code Annotated section 40-
35-313.1 On April 16, 1998, the defendant filed a pro se notice of appeal. In the
defendant’s brief, she asks this court to dismiss the charge against her. The
defendant contends that she was coerced and threatened into signing a best
interest guilty plea. Following a review of the record, the briefs of the parties, and
the applicable law, we dismiss the appeal for lack of jurisdiction.
A defendant may appeal as of right from any “judgment of conviction”2
on a guilty plea if the plea agreement contained an explicit reservation of the right
to appeal a certified question of law, or “if the defendant seeks review of the
sentence and there was no plea agreement concerning the sentence,” or if the
issues were not waived by the guilty plea and these issues are apparent from the
record. Tenn. R. App. P. 3(b); see also Tenn. R. Crim. P. 37(b)(2). The defendant
entered a best interest guilty plea and was judicially diverted pursuant to Tennessee
Code Annotated section 40-35-313. According to this section, the court, with the
consent of the defendant, defers further proceedings and places the defendant on
1
This rule states as follows:
If any person who has not previously been convicted
of a felony or a Class A misdemeanor is found guilty
or pleads guilty to a misdemeanor which is
punishable by imprisonment or a Class C, D or E
felony, the court may, without entering a judgment of
guilty and with the consent of such person, defer
further proceedings and place the person on
probation upon such reasonable conditions as it may
require . . . .
Tenn. Code Ann. § 40-35-313(a)(1)(A) (1997).
2
“A judgment of conviction shall set forth the plea, the verdict or findings,
and the adjudication and sentence.” Tenn. R. Crim. P. 32(e).
2
probation without entering a judgment of guilty. Tenn. Code Ann. § 40-35-
313(a)(1)(A) (1997). A final disposition of the case does not occur until either the
defendant violates a condition of the probation or the probation period ends. See
id. at (a)(2). Specifically, this section states:
Upon violation of a condition of the probation, the court
may enter an adjudication of guilt and proceed as
otherwise provided. If, during the period of probation,
such person does not violate any of the conditions of
probation, then upon expiration of such period, the court
shall discharge such person and dismiss the
proceedings against the person. Discharge and
dismissal under this subsection is without court
adjudication of guilt . . . .
Id. Therefore, under judicial diversion there is no “judgment of conviction” to appeal
pursuant to Tennessee Rule of Appellate Procedure 3,3 unless the defendant
violates a condition of the probation and the court enters an adjudication of guilt.
This court may treat an improperly filed Rule 3 appeal as a Rule 10
extraordinary appeal. See State v. Leath, 977 S.W.2d 132, 135 (Tenn. Crim. App.
1998); State v. James Doe, No. 01C01-9102-CR-00046, slip op. at 5-6 (Tenn. Crim.
App., Nashville, June 29, 1992). Tennessee Rule of Appellate Procedure 10(a)
provides that an extraordinary appeal may be sought “if the lower court has so far
departed from the accepted and usual course of judicial proceedings as to require
immediate review . . . .” In State v. Willoughby, 594 S.W.2d 388, 392 (Tenn. 1980),
our supreme court held that an extraordinary appeal should only be granted when
it is established that: (a) the ruling of the court below represents a fundamental
3
The author of this opinion has reached the same conclusion, albeit the
minority position, as he reached in State v. Stephen J. Udzinski and Donna
Stokes, No. 01C01-9810-CC-00431, slip op. at 12 (Tenn. Crim. App., Nashville,
Feb. 5, 1998). In Udzinski, a defendant who had been granted judicial diversion
attempted to appeal the validity of a search warrant through a certified question
of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2). The author
of this opinion concluded, despite the disagreement of the other two members of
that panel, that a defendant who chooses to accept judicial diversion has no
appeal as of right because there has been no judgment of conviction. Udzinski,
slip op. at 11-12.
3
illegality, (b) the ruling constitutes a failure to proceed according to the essential
requirements of the law, (c) the ruling is tantamount to the denial of either party of
a day in court, (d) the action of the trial judge was without legal authority, (e) the
action of the trial judge constituted a plain and palpable abuse of discretion, or (f)
either party has lost a right or interest that may never be recaptured.
Under these criteria, treating the defendant’s improper Rule 3 appeal
as a Rule 10 extraordinary appeal is not appropriate under the circumstances of the
case at bar. The trial judge possessed the authority and discretion to accept the
defendant’s guilty plea and grant judicial diversion. Furthermore, the defendant
could challenge her guilty plea in a post-conviction proceeding if an adjudication of
guilt ever occurs. See Tenn. Code Ann. § 40-30-203 (1997). Additionally, a direct
appeal is not the usual mechanism for challenging the validity of a guilty plea. See
State v. Antonio Demonte Lyons, No. 01C01-9508-CR-00263 (Tenn. Crim. App.,
Nashville, Aug. 15, 1997) (guilty pleas are generally challenged by motions in the
trial court pursuant to Tennessee Rule of Criminal Procedure 32(f), or if Rule 32(f)
is not available, then by post-conviction petition). The present case illustrates the
problem in raising the guilty plea issue on direct appeal. The sparse record reflects
only a brief plea submission hearing which the trial court held pursuant to
Tennessee Rule of Criminal Procedure 11. The defendant, who was serving as her
own counsel, indicated that she was submitting the best-interest plea voluntarily.
This record is devoid of any basis for this court to find that the plea was invalid. Cf.
State v. Brandon Wilson, No. 03C01-9609-CC-00352, slip op. at 10 (Tenn. Crim.
App., Knoxville, Sept. 1, 1998) (direct appeal challenge to validity of guilty plea,
based upon mental incompetency, entertained by appellate court when the record
reflected a full evidentiary hearing in the trial court on the issue of competency),
perm. app. granted (Tenn. 1999). For all the above reasons, the Rule 3 appeal will
not be treated as an appeal under Rule 10.
4
The state contends that the defendant has waived her right to appeal
the entry of her best interest guilty plea because she did not file a motion to
withdraw her guilty plea in the trial court pursuant to Tennessee Rule of Criminal
Procedure 32(f).4 If the defendant was attempting to withdraw her guilty plea
pursuant to Rule 32(f), then she should have filed a motion to withdraw her guilty
plea in the trial court. However, in all likelihood, this issue is moot because the
defendant’s one year diversion period ended on March 31, 1999. At the end of the
diversion period, depending on the defendant’s compliance with the conditions of
probation, the defendant will be discharged and the proceedings dismissed or an
adjudication of guilt will be entered. See Tenn. Code Ann. § 40-35-313(a)(2)
(1997). If a judgment of conviction is entered, the defendant could file a motion to
withdraw her guilty plea pursuant to Rule 32(f) before the judgment became final.
See generally State v. Antonio Demonte Lyons, No. 01C01-9508-CR-00263 (Tenn.
Crim. App., Nashville, Aug. 15, 1997).
We find that this court lacks the jurisdiction to review the defendant’s
appeal. Accordingly, the appeal is dismissed.
________________________________
JAMES CURWOOD WITT, JR., JUDGE
CONCUR:
4
This rule states as follows:
(f) Withdrawal of Plea of Guilty. -- A motion to
withdraw a plea of guilty may be made upon a
showing by the defendant of any fair and just reason
only before sentence is imposed; but to correct
manifest injustice, the court after sentence, but before
the judgment becomes final, may set aside the
judgment of conviction and permit the defendant to
withdraw the plea.
Tenn. R. Crim. P. 32(f).
5
_______________________________
DAVID G. HAYES, JUDGE
_______________________________
JOHN EVERETT WILLIAMS, JUDGE
6