                                                    FILED
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE
                                                       May 13, 1999
                        FEBRUARY 1999 SESSION
                                                   Cecil W. Crowson
                                                  Appellate Court Clerk
STATE OF TENNESSEE,               )
                                  )
           Appellee,              )      C.C.A. No. 01C01-9808-CR-00344
                                  )
vs.                               )      Wilson County
                                  )
GLENNA KIDD,                      )      Hon. J. O. Bond, Judge
                                  )
           Appellant.             )      (Best Interest Guilty Plea)



FOR THE APPELLANT:                       FOR THE APPELLEE:

GLENNA KIDD (pro se)                     JOHN KNOX WALKUP
P.O. Box 499                             Attorney General & Reporter
Shelbyville, TN 37162
                                         GEORGIA BLYTHE FELNER
                                         Assistant Attorney General
                                         425 Fifth Ave. N., 2d Floor
                                         Nashville, TN 37243-0493

                                         TOM P. THOMPSON, JR.
                                         District Attorney General
                                         203 Greentop St., P.O. Box 178
                                         Hartsville, TN 37074-0178

                                         ROBERT N. HIBBETT
                                         Assistant District Attorney
                                         119 College St.
                                         Lebanon, TN 37087




OPINION FILED:________________

APPEAL DISMISSED

JAMES CURWOOD WITT, JR., JUDGE




                               OPINION
                The defendant, Glenna Kidd, appeals from the W ilson County Criminal

Court’s entry of her guilty plea. On March 31, 1998, the defendant entered a best

interest guilty plea to one count of passing a worthless check. The judge granted

judicial diversion of one year pursuant to Tennessee Code Annotated section 40-

35-313.1 On April 16, 1998, the defendant filed a pro se notice of appeal. In the

defendant’s brief, she asks this court to dismiss the charge against her. The

defendant contends that she was coerced and threatened into signing a best

interest guilty plea. Following a review of the record, the briefs of the parties, and

the applicable law, we dismiss the appeal for lack of jurisdiction.



                A defendant may appeal as of right from any “judgment of conviction”2

on a guilty plea if the plea agreement contained an explicit reservation of the right

to appeal a certified question of law, or “if the defendant seeks review of the

sentence and there was no plea agreement concerning the sentence,” or if the

issues were not waived by the guilty plea and these issues are apparent from the

record. Tenn. R. App. P. 3(b); see also Tenn. R. Crim. P. 37(b)(2). The defendant

entered a best interest guilty plea and was judicially diverted pursuant to Tennessee

Code Annotated section 40-35-313. According to this section, the court, with the

consent of the defendant, defers further proceedings and places the defendant on


       1
           This rule states as follows:

                If any person who has not previously been convicted
                of a felony or a Class A misdemeanor is found guilty
                or pleads guilty to a misdemeanor which is
                punishable by imprisonment or a Class C, D or E
                felony, the court may, without entering a judgment of
                guilty and with the consent of such person, defer
                further proceedings and place the person on
                probation upon such reasonable conditions as it may
                require . . . .

       Tenn. Code Ann. § 40-35-313(a)(1)(A) (1997).
       2
        “A judgment of conviction shall set forth the plea, the verdict or findings,
and the adjudication and sentence.” Tenn. R. Crim. P. 32(e).

                                          2
probation without entering a judgment of guilty.        Tenn. Code Ann. § 40-35-

313(a)(1)(A) (1997). A final disposition of the case does not occur until either the

defendant violates a condition of the probation or the probation period ends. See

id. at (a)(2). Specifically, this section states:

               Upon violation of a condition of the probation, the court
               may enter an adjudication of guilt and proceed as
               otherwise provided. If, during the period of probation,
               such person does not violate any of the conditions of
               probation, then upon expiration of such period, the court
               shall discharge such person and dismiss the
               proceedings against the person. Discharge and
               dismissal under this subsection is without court
               adjudication of guilt . . . .

Id. Therefore, under judicial diversion there is no “judgment of conviction” to appeal

pursuant to Tennessee Rule of Appellate Procedure 3,3 unless the defendant

violates a condition of the probation and the court enters an adjudication of guilt.



               This court may treat an improperly filed Rule 3 appeal as a Rule 10

extraordinary appeal. See State v. Leath, 977 S.W.2d 132, 135 (Tenn. Crim. App.

1998); State v. James Doe, No. 01C01-9102-CR-00046, slip op. at 5-6 (Tenn. Crim.

App., Nashville, June 29, 1992). Tennessee Rule of Appellate Procedure 10(a)

provides that an extraordinary appeal may be sought “if the lower court has so far

departed from the accepted and usual course of judicial proceedings as to require

immediate review . . . .” In State v. Willoughby, 594 S.W.2d 388, 392 (Tenn. 1980),

our supreme court held that an extraordinary appeal should only be granted when

it is established that: (a) the ruling of the court below represents a fundamental


       3
         The author of this opinion has reached the same conclusion, albeit the
minority position, as he reached in State v. Stephen J. Udzinski and Donna
Stokes, No. 01C01-9810-CC-00431, slip op. at 12 (Tenn. Crim. App., Nashville,
Feb. 5, 1998). In Udzinski, a defendant who had been granted judicial diversion
attempted to appeal the validity of a search warrant through a certified question
of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2). The author
of this opinion concluded, despite the disagreement of the other two members of
that panel, that a defendant who chooses to accept judicial diversion has no
appeal as of right because there has been no judgment of conviction. Udzinski,
slip op. at 11-12.

                                            3
illegality, (b) the ruling constitutes a failure to proceed according to the essential

requirements of the law, (c) the ruling is tantamount to the denial of either party of

a day in court, (d) the action of the trial judge was without legal authority, (e) the

action of the trial judge constituted a plain and palpable abuse of discretion, or (f)

either party has lost a right or interest that may never be recaptured.



              Under these criteria, treating the defendant’s improper Rule 3 appeal

as a Rule 10 extraordinary appeal is not appropriate under the circumstances of the

case at bar. The trial judge possessed the authority and discretion to accept the

defendant’s guilty plea and grant judicial diversion. Furthermore, the defendant

could challenge her guilty plea in a post-conviction proceeding if an adjudication of

guilt ever occurs. See Tenn. Code Ann. § 40-30-203 (1997). Additionally, a direct

appeal is not the usual mechanism for challenging the validity of a guilty plea. See

State v. Antonio Demonte Lyons, No. 01C01-9508-CR-00263 (Tenn. Crim. App.,

Nashville, Aug. 15, 1997) (guilty pleas are generally challenged by motions in the

trial court pursuant to Tennessee Rule of Criminal Procedure 32(f), or if Rule 32(f)

is not available, then by post-conviction petition). The present case illustrates the

problem in raising the guilty plea issue on direct appeal. The sparse record reflects

only a brief plea submission hearing which the trial court held pursuant to

Tennessee Rule of Criminal Procedure 11. The defendant, who was serving as her

own counsel, indicated that she was submitting the best-interest plea voluntarily.

This record is devoid of any basis for this court to find that the plea was invalid. Cf.

State v. Brandon Wilson, No. 03C01-9609-CC-00352, slip op. at 10 (Tenn. Crim.

App., Knoxville, Sept. 1, 1998) (direct appeal challenge to validity of guilty plea,

based upon mental incompetency, entertained by appellate court when the record

reflected a full evidentiary hearing in the trial court on the issue of competency),

perm. app. granted (Tenn. 1999). For all the above reasons, the Rule 3 appeal will

not be treated as an appeal under Rule 10.

                                           4
               The state contends that the defendant has waived her right to appeal

the entry of her best interest guilty plea because she did not file a motion to

withdraw her guilty plea in the trial court pursuant to Tennessee Rule of Criminal

Procedure 32(f).4 If the defendant was attempting to withdraw her guilty plea

pursuant to Rule 32(f), then she should have filed a motion to withdraw her guilty

plea in the trial court. However, in all likelihood, this issue is moot because the

defendant’s one year diversion period ended on March 31, 1999. At the end of the

diversion period, depending on the defendant’s compliance with the conditions of

probation, the defendant will be discharged and the proceedings dismissed or an

adjudication of guilt will be entered. See Tenn. Code Ann. § 40-35-313(a)(2)

(1997). If a judgment of conviction is entered, the defendant could file a motion to

withdraw her guilty plea pursuant to Rule 32(f) before the judgment became final.

See generally State v. Antonio Demonte Lyons, No. 01C01-9508-CR-00263 (Tenn.

Crim. App., Nashville, Aug. 15, 1997).



               We find that this court lacks the jurisdiction to review the defendant’s

appeal. Accordingly, the appeal is dismissed.




                                           ________________________________
                                           JAMES CURWOOD WITT, JR., JUDGE


CONCUR:


      4
          This rule states as follows:

             (f) Withdrawal of Plea of Guilty. -- A motion to
             withdraw a plea of guilty may be made upon a
             showing by the defendant of any fair and just reason
             only before sentence is imposed; but to correct
             manifest injustice, the court after sentence, but before
             the judgment becomes final, may set aside the
             judgment of conviction and permit the defendant to
             withdraw the plea.
       Tenn. R. Crim. P. 32(f).

                                           5
_______________________________
DAVID G. HAYES, JUDGE



_______________________________
JOHN EVERETT WILLIAMS, JUDGE




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