        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs October 26, 2011

               STATE OF TENNESSEE v. JESSICA BIRKHEAD

                  Appeal from the Criminal Court for Hamilton County
                         No. 271915 Rebecca J. Stern, Judge



                  No. E2011-01001-CCA-R3-CD - Filed February 6, 2012


Appellant, Jessica Birkhead, appeals under Tennessee Rule of Appellate Procedure 3 after
the trial court’s grant of judicial diversion on a charge of vandalism under $500. On appeal,
Appellant asks this Court to determine: (1) whether the evidence was sufficient; (2) whether
the trial court improperly considered irrelevant evidence; (3) whether the trial court
improperly excluded responses to requests for admissions in a related civil suit; and (4)
whether the trial court should have remanded the matter for a preliminary hearing because
there was no transcript or recording of the hearing. We determine that no final judgment of
conviction exists that would entitle Appellant to an appeal pursuant to Tennessee Rule of
Appellate Procedure 3 and that Appellant has not presented a compelling case for the grant
of an extraordinary appeal under Tennessee Rule of Appellate Procedure 10. Accordingly,
Appellant’s appeal is dismissed.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is
                                     Dismissed.

J ERRY L. S MITH, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE and
D. K ELLY T HOMAS, J R., JJ., joined.

Robin Ruben Flores, Chattanooga, Tennessee, for the appellant, Jessica Birkhead.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; William H. Cox, III, District Attorney General; and Brian Findley,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                         OPINION

                                    Factual Background

       In May of 2009, Appellant was indicted by the Hamilton County Grand Jury for one
count of aggravated assault and one count of vandalism under $500, for events that took
place on Christmas Eve of 2008. Prior to trial, the State dismissed the aggravated assault
charge.

        The case proceeded to trial without a jury. At the conclusion of the proof, the trial
court found Appellant guilty of vandalism under $500. A separate sentencing hearing was
held, at which it was determined that Appellant was eligible for judicial diversion. The trial
court placed Appellant on judicial diversion for eleven months and twenty-nine days and
ordered her to complete an anger management course within six months.

      Appellant filed a timely motion for new trial. The motion did not set forth specific
grounds for relief. The trial court held a hearing on the motion. At the hearing, counsel for
Appellant outlined the grounds for relief. The trial court denied the motion.

       Appellant filed a timely notice of appeal.

                                          Analysis

       On appeal, Appellant raises several issues. Appellant challenges the sufficiency of
the evidence, several evidentiary determinations made by the trial court, and complains that
there was no transcript of the preliminary hearing. The State contends that the evidence was
sufficient and Appellant waived any other issues for failure to properly preserve them in a
motion for new trial.

       At the outset, we must determine whether this Court has jurisdiction of Appellant’s
appeal. Judicial diversion allows a defendant that is adjudicated guilty to, “upon successful
completion of a diversion program, receive an expungement from all official records any
recordation relating to ‘arrest, indictment or information, trial, finding of guilty, and
dismissal and discharge’ pursuant to the diversion statute.” State v. Schindler, 986 S.W.2d
209, 211 (Tenn. 1999) (quoting T.C.A. § 40-35-313(b)). “The effect of discharge and
dismissal under the diversion statute ‘is to restore the person . . . to the status the person
occupied before such arrest or indictment or information.’” Id. (quoting T.C.A. §
40-35-313(b)). A final disposition of the case does not occur until either the defendant
successfully completes the diversion program or violates a condition of his release. State v.
Teresa Dockery, No. E2001-01493-CCA-R3-CD, 2002 WL 1042187, at *2 (Tenn. Crim.

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App., at Knoxville, May 23, 2002), perm. app. denied, (Tenn. Nov. 2, 2002); State v. Glenna
Kidd, No. 01C01-9808-CR-00344, 1999 WL 298309, at *1 (Tenn. Crim. App., at Nashville,
May 13, 1999). Judicial diversion may be ordered only with the consent of a “qualified
defendant.” T.C.A. § 40-35-313(a)(1)(A).

       The Tennessee Rules of Appellate Procedure require this Court to determine whether
we have jurisdiction in every case on appeal. See Tenn. R. App. P. 13(b). In criminal cases,
an appeal as of right lies from a final judgment of conviction. Tenn. R. App. P. 3(b). In this
case, the trial court granted judicial diversion to Appellant. Under the provisions of the
judicial diversion statute, if Appellant does not violate any of the conditions of probation, the
court shall dismiss the proceedings without an adjudication of guilt. T.C.A. §
40-35-313(a)(2).

        In State v. Norris, 47 S.W.3d 457, 461-63 (Tenn. Crim. App. 2000), this Court
concluded that an Appellant has no appeal as of right pursuant to Rule 3(c) of the Tennessee
Rules of Appellate Procedure when the Appellant has been granted judicial diversion. 47
S.W.3d at 462. This Court determined in Norris that it is fair to disallow an appeal as of
right from the grant of judicial diversion because “a trial court may not impose judicial
diversion except with the defendant’s consent.” Id. (citing T.C.A. § 40-35-313(a)(1)(A)
(1997)). “As a practical matter, a trial court rarely if ever grants judicial diversion until a
defendant has literally begged for it.” Id. In other words, even though the grant of judicial
diversion jeopardizes a defendant’s opportunity to raise a legal issue on appeal, the defendant
who accepts diversion can emerge from the process without a conviction. Id.

        In Norris, this Court also acknowledged that the situation may arise in which a
defendant granted judicial diversion may seek an appeal pursuant to Tennessee Rule of
Appellate Procedure 9, governing interlocutory appeals, or Tennessee Rule of Appellate
Procedure 10, governing extraordinary appeals. Id. at 463. In fact, an appeal filed
improperly under Rule 3 may be treated as an application for extraordinary appeal pursuant
to Rule 10 of the Tennessee Rules of Appellate Procedure. Id.; State v. Leath, 977 S.W.2d
132, 135 (Tenn. Crim. App. 1998); Teresa Dockery, 2002 WL 1042187, at *3. Under Rule
10, 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.” Tenn.
R. App. P. 10(a). This Court should grant an extraordinary appeal when it is established that:
(a) “the ruling of the court below represents a fundamental 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.” State v. Willoughby, 594 S.W.2d 388, 392 (Tenn. 1980).

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        Looking at the case herein, with the record presented to this Court on appeal, we
determine that the trial court possessed jurisdiction and had the authority to place Appellant
on judicial diversion, and she agreed to that placement. We further conclude that Appellant
has failed to meet the requirements for the granting of a Rule 10 extraordinary appeal. See
State v. Wiley Moore, Jr., No. M2008-01524-CCA-R3-CD, 2009 WL 2342905 (Tenn. Crim.
App., at Nashville, July 30, 2009); State v. Sherrie Ann Collins, No.
M2007-01356-CCA-R3-CD, 2008 WL 2579170 (Tenn. Crim. App., at Nashville, June 27,
2008).1 Accordingly, this Court lacks jurisdiction to review Appellant’s appeal, and the
appeal is dismissed.

                                                  Conclusion

        For the foregoing reasons, the appeal is dismissed.




                                                     ___________________________________
                                                     JERRY L. SMITH, JUDGE




        1
          W e do not determine today whether an interlocutory appeal pursuant to Tennessee Rule of Procedure 9 would
be the appropriate manner in which to proceed in this case.

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