Jeremy Shane Johnson v. State of Tennessee - Concurring ( 2008 )

IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs, October 20, 2008 JEREMY SHANE JOHNSON v. STATE OF TENNESSEE Direct Appeal from the Criminal Court for Hamilton County No. 265798 Hon. Don W. Poole, Judge No. E2007-02531-COA-R3-CV - FILED DECEMBER 8, 2008 D. MICHAEL SWINEY , J., concurring. I concur in our Opinion in this case. I write separately to express my concern that apparently a juvenile in the situation such as Petitioner has no procedure available to him to petition for a post-adjudication review of a delinquency determination. I agree that the Tennessee statutes on post-conviction procedure pertain only to claims based upon a criminal conviction. I likewise agree that a juvenile adjudication is not a criminal conviction pursuant to Tennessee statutes. I also agree that Tenn. Code Ann. § 37-1-301 et seq., pertaining to juvenile post-commitment procedures, specifically Tenn. Code Ann. § 37-1-302, are applicable only if the juvenile is in the custody of the Department of Children’s Services pursuant to a commitment by a juvenile court of this State at the time the post-commitment petition is filed. Here, Petitioner was never in the custody of the Department of Children’s Services pursuant to a commitment by a juvenile court of this State. Under our holding, which I believe is mandated by the statutes and case law, a juvenile in a situation such as the Petitioner’s has no avenue for post-adjudication review of a delinquency determination. However, perhaps we have misread the statutes and case law and our Supreme Court will provide some additional guidance as to a different interpretation of these statutes. ___________________________________ D. MICHAEL SWINEY, JUDGE