Jamie Scott Moore v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 11, 2012
JAMIE SCOTT MOORE v. STATE OF TENNESSEE
Appeal from the Circuit Court for Rutherford County
No. F58884 Don R. Ash, Judge
No. M2012-00049-CCA-R3-HC - Filed October 18, 2012
Petitioner, Jamie Scott Moore, pled guilty in Rutherford County to two counts of attempted
sale of methamphetamine on October 6, 2006. As a result, he was sentenced to six years at
thirty percent as a Range I, standard offender on each offense, to be served concurrently with
each other. Petitioner was to serve 270 days prior to release on probation. As part of the plea
agreement, Petitioner agreed that on his first violation of probation he would waive any
application for a suspended sentence and serve the sentence in its entirety. Petitioner filed
a petition for writ of mandamus in which he argued that he was “prematurely and illegally
released” before serving all 270 days of the agreed sentence. After a hearing on the petition,
the trial court denied the petition. Petitioner appeals. After a review of the record, we
determine that Petitioner has failed to support his argument with authority, failed to present
the court with an adequate record for review, and sought an appeal to this court from the
denial of a writ of mandamus, a right not prescribed in Tennessee Rule of Appellate
Procedure 3(b). Consequently, the appeal is dismissed, and the judgment of the trial court
is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Affirmed;
Appeal Dismissed.
J ERRY L. S MITH, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT, J R.
and A LAN E. G LENN, JJ., joined.
Jamie Scott Moore, Pro Se, Murfreesboro, Tennessee.
Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; William Whitesell, District Attorney General, and Jennings Jones,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual Background
From the scant record supplied to this Court on appeal, we have determined that
Petitioner pled guilty to two counts of the attempted sale of methamphetamine in Rutherford
County on October 6, 2006. The judgment forms indicate that Petitioner was sentenced to
six years at 30% as a Range I, standard offender. The judgment forms indicate that Petitioner
was to serve 270 days in incarceration prior to suspension of the remainder of the sentence.
The judgment indicated that Petitioner was ordered to serve the balance of the sentence on
“state probation” and noted that Petitioner “agrees on his first violation of probation he will
waive any and all application for suspended sentence and serve out his sentence in its
entirety.”
On September 7, 2011, Petitioner filed a “Petition for Writ of Mandamus” in which
he called upon the trial court to “enforce the plea contract.” Specifically, Petitioner alleged
that he was released on January 4, 2007, only 90 days after the entry of his guilty pleas.
Petitioner claimed that his probation was revoked and his sentence was placed back into
effect on December 7, 2010. At that time, Petitioner stated that the trial court ordered
Petitioner to receive 270 days of jail credit “which was never actually served.” As a result
of the trial court’s error, Petitioner contends that “he was prematurely and illegally released”
and “wrongfully placed on probation before he had the opportunity to serve the 270 days of
incarceration” as required by the original plea agreement. As a result, Petitioner asked the
court to enforce the plea agreement and grant Petitioner suspension of his sentence after
service of 270 days.
The trial court held a hearing on the motion. The transcript of the hearing does not
appear in the record on appeal. The trial court denied the grant of the writ in an order entered
on January 5, 2012. In the order, the trial court summarized Petitioner’s argument as follows:
The Petitioner argues that being released from jail early before he
served his 270 days is a “direct breach of the plea agreement.” Thus, the
Petitioner argues, he is entitled to the suspension of his sentence because he
has not served the 270 days originally required in his plea agreement. The
Petitioner further claims his violation of probation is “rendered moot” because
he was “illegally on probation to begin with.” Lastly, the Petitioner argues he
was denied the correctional treatment which “would have substantially
enhanced his capacity to lead a law-abiding life on probation” when he was
prematurely released. Essentially, at the hearing, the Petitioner claimed if he
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would have been able to serve those additional approximate 180 days, then he
might not have violated his probation approximately three years later.
The trial court concluded that “the facts do not show a clear and specific legal right
to be enforced or a duty which ought to be and can be performed” and denied the writ.
Petitioner filed a premature notice of appeal.
Analysis
On appeal, Petitioner insists that the trial court erred by denying the writ of mandamus
because his release prior to the expiration of 270 days in incarceration was a mistake that
rendered his plea agreement void. The State disagrees, arguing: (1) that Petitioner has no
right of appeal from the denial of the writ of mandamus; (2) that Petitioner failed to provide
an adequate record on appeal for this Court’s review; and (3) that even if this Court were to
construe the petition as a petition for habeas corpus, it should be denied.
At the outset, we note that Petitioner has waived his appellate issue because the record
on appeal did not include: (1) the transcript of the hearing on the writ of mandamus; (2) the
transcript of the guilty plea hearing; (3) the transcript of the probation revocation hearing;
or (4) the order revoking probation. It is well-settled that it is the duty of the appellant to
prepare a record that conveys a fair, accurate, and complete account of what transpired in the
trial court with respect to the issues that form the basis for the appeal. Tenn. R. App. P.
24(b); State v. Thompson, 36 S.W.3d 102, 108 (Tenn. Crim. App. 2000); State v. Miller, 737
S.W.2d 556, 558 (Tenn. Crim. App. 1987). In the absence of an adequate record, this Court
must presume the correctness of the trial court’s ruling. State v. Bibbs, 806 S.W.2d 786, 790
(Tenn. Crim. App. 1991).
Additionally, Petitioner fails to cite any authority on appeal that would entitle him to
relief. Tennessee Rule of Appellate Procedure 27(a)(7) provides that a brief shall contain
“[an] argument . . . setting forth the contentions of the appellant with respect to the issues
presented, and the reasons therefor, including the reasons why the contentions require
appellate relief, with citations to the authorities and appropriate references to the record . .
. relied on.” Tennessee Court of Criminal Appeals Rule 10(b) states that “[i]ssues which are
not supported by argument, citation to authorities, or appropriate references to the record will
be treated as waived in this court.” See also State v. Sanders, 842 S.W.2d 257 (Tenn. Crim.
App.1992) (determining that issue was waived where defendant cited no authority to support
his complaint). Petitioner fails to cite any authority to support his argument.
Moreover, we can find no proscribed right of appeal to this court from the denial of
a writ of mandamus in Tennessee Rule of Appellate Procedure 3(b). The rule provides:
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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, Tennessee Rules of Criminal
Procedure, and from a final judgment in a criminal contempt, habeas corpus,
extradition, or post-conviction proceeding.
An appeal to this Court from the denial of the writ of mandamus is not included in the rule,
and we have not been directed to any other authority authorizing an appeal of a mandamus
action to this Court.
As a result of Petitioner’s failure to provide an adequate record on appeal, failure to
cite to authority for his argument, and failure to appeal from an event described in Tennessee
Rule of Appellate Procedure 3(b), Petitioner’s appeal is dismissed.
Conclusion
For the foregoing reasons, the appeal is dismissed.
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JERRY L. SMITH, JUDGE
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