State v. Jason Bradburn ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JANUARY 1999 SESSION
March 3, 1999
Cecil W. Crowson
Appellate Court Clerk
JASON BRADBURN )
) C.C.A. NO. 01C01-9803-CC-00110
Appellant, )
) MAURY COUNTY
VS. )
) HON. JIM T. HAMILTON,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction - Delayed Appeal)
FOR THE APPELLANT: FOR THE APPELLEE:
MICHAEL J. FLANAGAN JOHN KNOX WALKUP
95 White Bridge Rd., Suite 208 Attorney General & Reporter
Nashville, TN 37205
DARYL J. BRAND
Asst. Attorney General
John Sevier Bldg.
425 Fifth Ave., North
Nashville, TN 37243-0493
MIKE BOTTOMS
District Attorney General
STELLA L. HARGOVE
-and-
JESSE DURHAM
Asst. District Attorneys General
P.O. Box 1619
Columbia, TN 38401-1619
OPINION FILED:____________________
APPEAL DISMISSED
JOHN H. PEAY,
Judge
OPINION
The petitioner seeks a delayed appeal from the trial court’s order revoking
his probation. After a review of the record and applicable law, we dismiss the petitioner’s
appeal.
In April 1994, the petitioner pled guilty to several charges for which he
received an effective sentence of twelve years, six years to be served on supervised
probation and six years to be served on unsupervised probation. In July 1996, the
petitioner was arrested for several other offenses, including possession of marijuana and
unlawful possession of a weapon. Four days later, his probation officer filed a probation
violation report, alleging that the petitioner had violated his probation by failing to obey
the laws, failing to report his new arrest, illegally possessing a weapon, possessing
marijuana, and failing to pay all required fees. Following a probation revocation hearing
in December 1996, the petitioner’s probation was revoked. He did not appeal.
In December 1997, the petitioner filed a petition for post-conviction relief,
alleging that his attorney had been ineffective for failing to appeal the probation
revocation and for stating at the probation revocation hearing that the petitioner had
violated the terms of his probation. By agreed order, the parties “stipulated that prior
counsel for the petitioner was not ineffective in his representation,” but “agreed . . . that
the petitioner is entitled to a delayed appeal upon the revocation of his probation.”
The Post-Conviction Procedure Act of 1995 provides that a petitioner who
is unconstitutionally denied an appeal from his or her original conviction may seek a
delayed appeal from the original conviction, see T.C.A. § 40-30-213(a), but there is no
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authority for a delayed appeal from an order revoking probation. The parties’ agreed
order cannot circumvent the Legislature’s clear intention to allow delayed appeals only
from original convictions and not from other judgments. The petitioner’s attempt to
belatedly appeal from the trial court’s probation revocation order is unauthorized, and his
appeal is accordingly dismissed.1
_______________________________
JOHN H. PEAY, Judge
CONCUR:
______________________________
DAVID H. WELLES, Judge
______________________________
THOMAS T. W OODALL, Judge
1
W e note that even if the petitioner’s delayed appeal were authorized by statute, the record
contains ample evidence to support the trial court’s decision to revoke his probation. Thus, even if we
were to consider the merits of the petitioner’s appeal, the probation revocation order would be affirmed.
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