          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                    Assigned on Briefs August 20, 2002

                      STATE OF TENNESSEE v. NKOBI I. DUNN

                Direct Appeal from the Criminal Court for Washington County
                                         NO . 25433



                                   NO . E2001-02120-CCA-R3-CD
                                         DECEMBER 23, 2002



James Curwood Witt, Jr., J., concurring.

                I write a separate concurring opinion to point out and review certain important facets
of the appellate record in this case. The record reflects that the defendant’s guilty pleas were “open”;
they did not contain any specified sentences pursuant to Tennessee Rule of Criminal Procedure
11(e)(1)(C). See Tenn. R. Crim. P. 11(e)(1)(C) (providing for an agreement between defendant and
state “that a specific sentence is the appropriate disposition of the case”). Had the plea agreement
contained specific, properly articulated sentencing provisions pursuant to Rule 11(e)(1)(C), they may
have survived the revocation of judicial diversion probation, depending upon the terms as accepted
by the court. See State v. Hollie D. Campbell, No. E2000-00373-CCA-R3-CD (Tenn. Crim. App.,
Knoxville, July 2, 2001) (Witt, J., concurring), perm. app. denied (Tenn. 2001); see also Tenn. Code
Ann. § 40-35-203(b) (1997) (dispensing with requirement of sentencing hearing when sentence is
agreed upon and accepted by trial court); accord id. § 40-35-205(d). However, the trial court, having
apparently received and accepted open pleas made in conjunction with the diversion provisions of
Tennessee Code Annotated section 40-35-313(a), was positioned and obliged, after revocation of the
judicial diversion probation, to resume the case at the pre-diversion point of departure. This means
that, following the revocation, the court’s next task was to conduct a sentencing hearing. Tenn. Code
Ann. §§ 40-35-203(a) (1997), -209(a) (Supp. 2002).

                Perhaps the lower court’s practice of entering judgments following the acceptance of
the pleas and the grant of judicial diversion misled that court, after revocation, into presuming that
sentences had already been imposed. The appellate record reflects that, with respect to each offense
to which the defendant pleaded guilty, the court entered a judgment on a standard, Tennessee
Supreme Court Rule 17 judgment form, as modified by the trial court. The modifications included
inserting the word “Expungement” in the caption before the word “Judgment” and the notation that
the guilty plea was made “pursuant to T.C.A. 40-35-313.” On the misdemeanor “judgment,” the court
appears to have imposed a sentence of eleven months, 29 days on probation. On the felony
“judgment,” the court appears to have imposed a sentence of three years on probation.1 Following
the entry of these “judgments,” the court entered a judicial diversion probation order; however, that
order reflects that the defendant had been “sentenced.”

                 Obviously, the trial court must enter an order to effect the terms and conditions of
judicial diversion and to sanction discharge of the proceedings and possible expungement of the
record should the probation terms be satisfied. See id. § 40-35-313(a)(1)(A), (b) (2002). However,
pressing a Rule 17 judgment form, as modified, into serving as such an order may be disingenuous.
The Rule 17 judgment form is to be utilized to effect a judgment of conviction. Tenn. R. Crim. P.
32(e). It sets forth not only the plea but also the “verdict or findings, and the adjudication and
sentence.” Id.; see also R. Tenn. Sup. Ct. 17 (judgment shall be prepared for each conviction). Thus,
the use of a judgment that imposes a conviction and a sentence conflicts with the scheme of judicial
diversion; Code section 40-35-313(a)(1)(A) provides that after a verdict or plea of guilty, the trial
court defers or diverts the proceedings “without entering a judgment of guilty.” The use of an order
aptly drafted to grant judicial diversion and to reflect the scheme of section 40-35-303(a)(1)(A) would
have better assisted the trial court in returning to the point of departure, following the diversion
hiatus. In any event, convictions and sentences should not be imposed prior to the grant of judicial
diversion.

               I join in the majority opinion because, in light of the whole record, I view the
“Expungement Judgments” to be the lower court’s attempt to enter judicial diversion orders, rather
than conviction judgments that imposed specific, probated sentences. Viewed in that light, the
sentencing terms in the judgments are essentially nullities, especially when the record contains neither
plea-agreement provisions for sentences nor, in the alternative, any indication that a pre-probation
sentencing hearing was held or waived.




                                                               ____________________________________
                                                               James Curwood Witt, Jr., Judge




         1
            The inclusion of specific sentences in the “judgments” could indicate that sentencing proposals were made
as part of a plea agreement; however, the record contains no indicia of plea agreement terms beyond the open guilty plea
doc ument, and there is no indication of a plea-submission hearing.

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