         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                      November 8, 2000 Session

                       STATE OF TENNESSEE v. JOHN RUFF

                                 Circuit Court for Shelby County
                                         No. 96-09407, 08



                   No. W1999-01536-CCA-R3-CD - Filed January 19, 2001


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

               I concur with the majority’s rationale that led to the conclusion that the charges were
properly dismissed below without prejudice. However, I also agree with the majority’s statements
about the unavailability of a Rule 3 appeal in this case. Because no appeal as a matter of right is
availed to the defendant under Rule 3, I would conclude that this court is without jurisdiction to
consider the defendant’s issue with respect to the dismissal of charges without prejudice. See Tenn.
R. App. P. 3(b). Although the practical result is the same in that the action of the trial court is not
being reversed, I would dismiss the appeal.

                The majority has undertaken to consider the substantive issue, and had we the
jurisdiction to consider it, I would concur in Judge Welles’s excellent analysis.



                                                       ____________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE
