        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                  January 14, 2014 Session

                    STATE OF TENNESSEE v. IRIS A. JONES

                 Appeal from the Circuit Court for Cheatham County
                         No. 16332 Larry J. Wallace, Judge


                 No. M2013-00938-CCA-R3-CD - Filed August 20, 2014


J OSEPH M. T IPTON, P.J., concurring in part; dissenting in part.

       I respectfully disagree with the majority opinion’s conclusion that this court may
consider the State’s appeal of the trial court’s granting judicial diversion as an appeal as of
right pursuant to Tennessee Rule of Appellate Procedure 3(c)(4), but I believe the court can
accept the appeal pursuant to Tennessee Rule of Appellate Procedure 10 as an extraordinary
appeal. In this regard, I agree with the majority opinion’s conclusion that the trial court erred
in granting judicial diversion.

        The majority opinion concludes that jurisdiction exists to consider the appeal pursuant
to Rule 3(c)(4) because the State seeks review of an order or judgment “granting or refusing
to revoke probation.” I disagree that the order granting diversion is an order granting
probation as contemplated in Rule 3(c). I note that our supreme court has referred to the
status of a person who is granted diversion as a “conditional probation.” State v. King, 432
S.W.3d 316, 323 (Tenn. 2014). The purpose of judicial diversion is to give qualified
individuals the chance to have their charges dismissed and their record cleared of the
prosecution. The process includes the lack of a judgment of conviction and a period of
“conditional probation,” after which, if successful, the charges may be dismissed and
removed from their record. If the defendant is unsuccessful, the trial court may impose a
judgment of conviction and sentence the defendant. In other words, the case remains
pending during the period of “conditional probation,” and there is nothing “final” about the
case. Moreover, the State’s appeal assails the trial court’s granting judicial diversion, not the
status of probation.

       As for the cases upon which the majority opinion relies as examples of judicial
diversion appeals under Rule 3, neither the parties nor the courts raised the issue of the
courts’ jurisdiction to entertain the appeals pursuant to Rule 3. In this regard, I also disagree
with this court’s statement in State v. Daniel Bilbrey, M2002-01043-CCA-R3-CD (Tenn.
Crim. App. Mar. 3, 2004), that “judicial diversion is . . . a probationary sentence.” Id. at 7.

        On the other hand, I believe the appeal should be allowed to proceed as an
extraordinary appeal pursuant to Rule 10. Such an appeal is appropriate for a ruling
reflecting a fundamental illegality, made without legal authority, or constituting “a plain and
palpable abuse of discretion.” State v. McKim, 215 S.W.3d 781, 791 (Tenn. 2007). Also,
an improperly filed Rule 3 appeal may be considered as an application for review under Rule
10. See, e.g., State v. Leath, 977 S.W.2d 132, 135 (Tenn. Crim. App. 1998). Pursing this
avenue, I conclude that the trial court was without legal authority to grant judicial diversion
under the facts in this case and the existing law. Therefore, I concur in the result reached in
the majority opinion.

       For these reasons, I dissent in part and concur in part.


                                            ____________________________________
                                            JOSEPH M. TIPTON, PRESIDING JUDGE




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