State of Tennessee v. Jeffrey Lynn Whitehead

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs July 19, 2016
STATE OF TENNESSEE v. JEFFREY LYNN WHITEHEAD
Appeal from the Circuit Court for Montgomery County
No. CC15-CR-1111 Jill B. Ayers, Judge
No. M2016-00160-CCA-R3-CD – Filed August 3, 2016
The defendant, Jeffrey L. Whitehead, appeals the order of the Montgomery County
Circuit Court denying his motion to waive costs. Because this court lacks jurisdiction of
the defendant‟s claim, the appeal is dismissed.
Tenn. R. App. P. 3; Appeal Dismissed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and TIMOTHY L. EASTER, JJ., joined.
Jeffrey L. Whitehead, Clarksville, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Assistant
Attorney General; John W. Carney, District Attorney General; and Arthur F. Bieber,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
The scant record in this case establishes that the defendant moved the
Montgomery County General Sessions Court to discharge court costs, jail fees, and fines
that he owed to Montgomery County. After the general sessions court denied the motion,
the defendant appealed to the Montgomery County Circuit Court, again asking for
discharge from court costs, jail fees, and fines based upon his indigency. Although the
trial court conducted an evidentiary hearing on the defendant‟s motion, no transcript of
the hearing was included in the record on appeal. The trial court denied the defendant‟s
motion, and the defendant submitted a timely notice of appeal in this court.
As in any other appeal before this court, our first concern is whether this
court is authorized to hear the case. Tennessee Rule of Appellate Procedure 3 provides,
in pertinent part, as follows:
In criminal actions an appeal as of right by a defendant lies
from any judgment of conviction entered by a trial court from
which an appeal lies to the Supreme Court or Court of
Criminal Appeals: (1) on a plea of not guilty; and (2) on a
plea of guilty or nolo contendere, if the defendant entered into
a plea agreement but explicitly reserved the right to appeal a
certified question of law dispositive of the case pursuant to
and in compliance with the requirements of Rule 37(b)(2)(A)
or (D) of the Tennessee Rules of Criminal Procedure, or if the
defendant seeks review of the sentence and there was no plea
agreement concerning the sentence, or if the issues presented
for review were not waived as a matter of law by the plea of
guilty or nolo contendere and if such issues are apparent from
the record of the proceedings already had. The defendant
may also appeal as of right from an order denying or revoking
probation, an order or judgment entered pursuant to Rule 36
or Rule 36.1, Tennessee Rules of Criminal Procedure, from a
final judgment in a criminal contempt, habeas corpus,
extradition, or post-conviction proceeding, and from a final
order on a request for expunction.
Tenn. R. App. P. 3(b).
Panels of this court have expressed differing views regarding the
availability of an appeal as of right from the denial of a motion to waive or discharge
costs and fines. In Jonathon C. Hood v. State, this court concluded that “Rule 3 of the
Tennessee Rules of Appellate Procedure does not provide for an appeal as of right from
the denial of a motion to discharge fines,” reasoning that Rule 3 limited the availability of
an appeal as of right only to those actions expressly listed within the rule. Jonathon C.
Hood v. State, No. M2009-00661-CCA-R3-PC, slip op. at 1-2 (Tenn. Crim. App.,
Nashville, Aug. 18, 2010). Later, another panel of this court agreed that Rule 3 does not
provide for an appeal as of right from a motion to discharge a fine but decided that, given
the clearly erroneous ruling of the trial court in that case, the improperly filed appeal
should be treated as a common law petition for writ of certiorari. See State v. Jeffrey S.
Zarnik, No. M2009-00478-CCA-R3-CD, slip op. at 2-3 (Tenn. Crim. App., Nashville,
Nov. 23, 2010).
In State v. Betty L. Darden, another panel of this court considered the
question whether Rule 3 provided for an appeal as of right from the trial court‟s denial of
a petition to discharge fines and costs that was filed while the defendant was on probation
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and, therefore, subject to the jurisdiction of the trial court. Without addressing the
holdings in Jonathon C. Hood or Jeffrey S. Zarnik, the court ruled that Rule 3 did provide
such a right, observing that “„the power of the trial court to reduce, suspend, or release
fines‟” necessarily carried with it the right to appeal the court‟s decision. State v. Betty L.
Darden, No. M2011-01697-CCA-R3-CD, slip op. at 2 (Tenn. Crim. App., Nashville,
Nov. 15, 2012) (citation omitted). In support of this proposition, the Betty L. Darden
panel pointed to State v. Bryant, 805 S.W.2d 762 (Tenn. 1991). Bryant, however,
addressed only “whether Tennessee appellate courts have the authority to review fines
imposed within statutory limits by trial courts.” State v. Bryant, 805 S.W.2d 762, 762
(Tenn. 1991). The supreme court concluded that “the legislature intended the Criminal
Sentencing Reform Act of 1982 to include appellate review of fines” and held “that fines
are reviewable . . . as an aspect of criminal sentencing.” Id. at 766-67. We cannot agree
that this holding can be extended to provide an appeal as of right for a collateral attack on
court costs, fines, or other fees.
In our view, Jonathon C. Hood and Jeffrey S. Zarnik present the better-
reasoned approach. The terms of Rule 3 are explicit, and they do not provide for an
appeal as of right from a motion to discharge fines and costs.
That being said, we also do not believe that the improperly filed appeal in
this case should be treated as a petition for a writ of certiorari given the state of the
appellate record. Initially, we observe that the record does not clearly indicate the source
of the debt the defendant seeks to discharge; it does not reveal whether the money owed
consists of court costs, jail fees, probation fees, fines, or other costs. No documentation
of the amount owed or its origin appears in the record. The appellate record also does not
contain a transcript of the hearing on the defendant‟s motion or a statement of the
evidence. As the appellant, the defendant bears the burden of preparing an adequate
record on appeal, see State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993), which includes
the duty to “have prepared a transcript of such part of the evidence or proceedings as is
necessary to convey a fair, accurate and complete account of what transpired with respect
to those issues that are the bases of appeal,” Tenn. R. App. P. 24(b). If the appellant fails
to file an adequate record, this court must presume the trial court‟s ruling was correct.
See State v. Richardson, 875 S.W.2d 671, 674 (Tenn. Crim. App. 1993).
Because Rule 3 does not provide for an appeal as of right from the denial of
the defendant‟s motion and because the record is inadequate to support treating the
improperly filed appeal as a petition for writ of certiorari, the appeal must be dismissed.
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JAMES CURWOOD WITT, JR., JUDGE
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