         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs September 25, 2002

             STATE OF TENNESSEE v. NELSON KEITH FOSTER

                     Appeal from the Criminal Court for Sullivan County
                            No. S41, 577   R. Jerry Beck, Judge



                                 No. E2002-00323-CCA-R3-CD
                                       October 15, 2002

The Defendant, Nelson Keith Foster, pled guilty to and was convicted of violating a motor vehicle
habitual offender order. The Defendant was subsequently sentenced to three years, to be served on
probation. The Defendant appealed to this Court from the trial court’s denial of his motion to
withdraw his guilty plea. See State v. Nelson Keith Foster, No. E2001-01259-CCA-R3-CD, 2002
Tenn. Crim. App. LEXIS 172 (Knoxville, Mar. 7, 2002). Pending the Defendant’s appeal, he twice
violated the terms of his probation. Still pending the outcome of the Defendant’s appeal, the trial
court revoked the Defendant’s probation. The Defendant now appeals the trial court’s revocation
of his probation. We reverse the trial court’s order revoking the Defendant’s probation and remand
this matter for further proceedings.

            Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court
                                 Reversed and Remanded

DAVID H. WELLES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and ALAN E.
GLENN, JJ., joined.

Mark Toohey, Kingsport, Tennessee, for the appellant, Nelson Keith Foster.

Paul Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General;
Greeley Wells, District Attorney General; and Joseph E. Perrin, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                            OPINION

        The trial court revoked the Defendant’s probation following his admission that he used
marijuana on two occasions subsequent to being sentenced and prior to completing his probationary
period. The order revoking probation was entered January 11, 2002. In this direct appeal, the
Defendant contends that the trial court did not have jurisdiction to revoke his probation because his
direct appeal from his conviction was pending in this Court at the time the revocation proceedings
took place. The State does not address the Defendant’s contention on the merits, instead alleging
that he has waived this issue by failing to include proof of his prior appeal in the record before us.

        Although the State is correct in pointing out that the Defendant has failed to include in the
record before us a copy of his notice of appeal from his conviction in this matter, this Court’s
opinion addressing the appeal is ample proof that the Defendant’s direct appeal from his conviction
was, indeed, pending before this Court during the revocation proceedings. See State v. Nelson Keith
Foster, No. E2001-01259-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 172 (Knoxville, Mar. 7,
2002), perm. appeal dismissed (Tenn. 2002). Accordingly, we will address the Defendant’s
contention on the merits.

        As this Court has previously noted, the jurisdiction of this Court attaches upon the filing of
the notice of appeal and the trial court therefore loses jurisdiction to revoke probation during the
pendency of the appeal. See State v. Patricia Adkisson, Nos. M2000-01079-CCA-R3-CD, M2000-
02319-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 832, at *30-32 (Nashville, Oct. 12, 2001).
Given the March 7, 2002 filing date of this Court’s opinion disposing of the Defendant’s direct
appeal of his conviction, it is obvious that the appeal was pending before this Court on January 11,
2002; accordingly, the trial court did not have jurisdiction to revoke the Defendant’s probation at that
time. Id. We therefore reverse the trial court’s order of revocation. However, the Defendant’s
appeal was not successful and his conviction and sentence have now become final. Accordingly, the
revocation proceedings may now proceed. See id., 2001 Tenn. Crim. App. LEXIS 832, at *32
(holding that, after completion of a direct appeal and return of jurisdiction to the trial court, a trial
court may appropriately consider a probation revocation warrant based on a criminal offense
committed during the appeal).

       The judgment of the trial court is reversed and this matter is remanded for further
proceedings consistent with this opinion.



                                                        ___________________________________
                                                        DAVID H. WELLES, JUDGE




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