         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                 September 21, 2004 Session

               STATE OF TENNESSEE v. VICK R. NICHOLS, JR.

                       Appeal from the Circuit Court for Lewis County
                          No. 6393    Robert E. Lee Davies, Judge



                   No. M2003-02001-CCA-R3-CD - Filed February 4, 2005


The Appellant, Vick R. Nichols, Jr., appeals his convictions by a Lewis County jury finding him
guilty of two counts of felony reckless endangerment as lesser included offenses of the indicted
charges of aggravated assault. Following a sentencing hearing, Nichols was granted judicial
diversion. On appeal, Nichols raises five issues for our review: (1) whether felony reckless
endangerment is a lesser included offense of aggravated assault; (2) whether the trial court violated
Tenn. R. Crim. P. 30(c) by failing to reduce supplemental jury instructions to writing; (3) whether
the trial court properly declined to instruct the jury with regard to certain hunting rules and
regulations contained in Title 70, Tennessee Code Annotated; (4) whether the trial court erred by
refusing to instruct the defense of third parties; and (5) whether the evidence was sufficient to
support the verdicts. The State concedes that felony reckless endangerment is not a lesser included
offense of aggravated assault as indicted. We agree. Notwithstanding reversible error, we conclude
that no appeal of right, as provided by Rule 3, Tenn. R. App. P., lies, as the Appellant was granted
judicial diversion and no judgment of conviction has been entered. Accordingly, the appeal is
dismissed.

                             Tenn. R. App. P. 3; Appeal Dismissed

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH and THOMAS T.
WOODALL, JJ., joined.

Matt Q. Bastain, Columbia, Tennessee, Attorney for the Appellant, Vick R. Nichols, Jr.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Kathy
Denise Aslinger, Assistant Attorney General; Jeffrey L. Long, Assistant District Attorney
General, for the Appellee, State of Tennessee.
                                                       OPINION

                                                Factual Background

        On March 9, 2002, Robert Ashworth, Boyd Frazier, Scottie Simmons, Billy Cripps, and Joe
Turner participated in a competition racoon hunt in Lewis County. On this night, teams from various
hunting clubs were competing throughout the county. The group had obtained permission to hunt
on a farm located approximately one mile from the house owned by the Appellant’s parents. After
the hunters released their dogs, several of the dogs crossed onto adjoining land. Frazier and
Ashworth returned to their truck and drove along Trace Creek Road where they were able to detect
the sounds of the dogs from the road. They determined that the dogs were in an area several hundred
yards behind the Appellant’s house located on Trace Creek Road. Ashworth and Frazier parked the
truck across the road and just past the Appellant’s house. Both got out of the truck and walked down
the road in the opposite direction of the house, discussing the best approach to the dogs.

         Ashworth and Frazier decided that the dogs could be reached more easily from another
direction because of the undergrowth of vegetation and turned back to the truck, when the Appellant,
brandishing a weapon, suddenly appeared. Pointing his rifle at Frazier, he shouted, “You’re got ten
seconds to get off my property or I’m going to shoot you.” Then he said, “Ten, nine, three, one and
just started firing.” Ashworth and Frazier testified that one shot was fired in the direction of each
of them, but neither was hit. Ashworth further testified that before being shot at, they attempted to
explain to the Appellant they were part of a club hunt, and they were just trying to get their dogs.
Both Ashworth and Frazier testified that they never left the roadway.1 Immediately upon leaving
the area, Ashworth drove to “city hall” and reported the incident to the authorities. Unaware of what
had just taken place, Simmons, Turner, and Cripps drove past the Appellant’s home, and upon
hearing the dogs, parked on the side of the road. While the three were standing in the road, the
Appellant, armed with a rifle, appeared and ordered them to leave, stating that he had “done shot at
the other truck and I’m fixing to shoot ya’ll.”

        On October 7, 2002, the Appellant was indicted by a Lewis County grand jury on five counts
of aggravated assault by use or display of a deadly weapon. Trial began on March 6, 2003. After
the close of the State’s proof, the trial court found the evidence had failed to establish use or display
of a weapon in the alleged assault of Simmons, Turner, and Cripps. Accordingly, the trial court
entered a judgment of acquittal with regard to aggravated assault. In counts three, four, and five, the
court instructed the jury only on misdemeanor reckless endangerment and simple assault. With
regard to the aggravated assault of Frazier and Ashworth, counts one and two, the court instructed
the jury on aggravated assault, felony reckless endangerment, misdemeanor reckless endangerment,


         1
            This fact was materially contested at trial by the testimony of the Appellant, his sister, and the Appellant’s
mother who were in the house that night. These witnesses collectively testified that Ashworth and Frazier were in their
yard, within five to ten feet from their house, at times spotlighting the bedrooms, and at times hiding behind a large cedar
tree in the yard. The Appellant defended at trial upon a theory of self-defense, protection of third person’s property, and
generally that he never fired his gun at anyone.

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and simple assault. The jury found the Appellant guilty of felony reckless endangerment in counts
one and two and acquitted the Appellant of the remaining three counts.

       After considering the Appellant’s motion for diversion and the evidence presented at the
sentencing hearing, the trial court granted the requested judicial diversion subject to the successful
completion of one year of probation. The Appellant’s motion for new trial was denied, with this
Rule 3 appeal following.

                                                      Analysis

        Preliminary to our review of the merits of the Appellant’s assigned issues, we first address
the State’s motion to dismiss which asserts that the appeal is not properly before this court. After
briefing by the parties was completed in this case, the State filed a motion to dismiss upon grounds
that this court was without jurisdiction to hear this appeal as of right. An appeal as of right only
exists from a final judgment. See Advisory Comm’n Comments, Tenn. R. App. P. 3. The State
contends under the authority of State v. Norris, 47 S.W.3d 457, 461-63 (Tenn. Crim. App. 2000) that
because the Appellant was granted judicial diversion and has since successfully completed his one-
year period of probation, no adjudication of guilt has been made and no judgment of conviction has
been entered.

        In Norris, this court, following a thorough analysis of this issue concluded that an Appellant
has no appeal as of right under Rule 3(c), Tennessee Rules of Appellate Procedure, when granted
judicial diversion.2 Id. at 462. As observed in Norris, no disharmony nor unfairness results from
this rule because “a trial court may not impose judicial diversion except with the defendant’s
consent.” Id. (citing Tenn. Code Ann. § 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.” Norris, 47
S.W.3d at 462. Thus, while the choice to accept judicial diversion may jeopardize a defendant’s
opportunity to raise a legal issue, the quid pro quo is that the defendant who accepts diversion can
emerge from the process without a conviction. Id.

          It is clear from the record that the Appellant both sought and consented to the grant of
judicial diversion in this case. Prior to the sentencing hearing, the Appellant filed a motion for
“Probation and Post-conviction Diversion.” At the sentencing hearing, the Appellant strenuously
argued that “[p]eople like [the Appellant] are the reason the diversion statutes exist to begin with .
. . I think the court can do justice both ways, to the State and to the defense, by a grant of diversion.”
Additionally, although the trial court improperly entered judgments of conviction with respect to
each jury verdict, the judgment forms clearly state that the Appellant’s sentences were being diverted
subject to enumerated probationary conditions.



         2
          Under the provisions of the judicial diversion statute, if the defendant does not violate any of the conditions
of probation, the court shall dismiss the proceedings without an adjudication of guilt. Tenn. Code Ann. § 40-35-
313(a)(2).

                                                          -3-
        In response to the State’s motion to dismiss, the Appellant urges this court to treat his Rule
3 appeal as of right as a Rule 10 extraordinary appeal in order to review the lesser included jury
instruction error which the State concedes is reversible error. In Norris, this court acknowledged that
an improperly filed Rule 3 appeal may be treated as a Rule 10 extraordinary appeal. 47 S.W.3d at
463 (citing State v. Leath, 977 S.W.2d 132, 135 (Tenn. Crim. App. 1998)). 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, or . . . if necessary for complete determination of the action on appeal. . . .”

         We conclude, as did the court in Norris, that the Appellant does not present a compelling
case for the granting of a Rule 10 appeal. The submission of an erroneous jury instruction does not
generally meet the requirement “that the lower court has so far departed from the accepted and usual
course of judicial proceedings as to require immediate review.” The claim before us is not that the
trial court was acting without authority, rather that the trial court erred in the exercise of its authority.
The grant of judicial diversion by the trial court to a defendant who both requests and consents to
diversion is clearly authorized. Indeed, a defendant has the option of declining judicial diversion.
State v. Adrian Lumpkin, No. W2002-00648-CCA-R3-CD (Tenn. Crim. App. at Jackson, Nov. 27,
2003). Accordingly, we conclude that the Appellant’s consent to judicial diversion, as opposed to
pursuing an appeal from judgments of conviction, pretermits any review of the issues raised on
appeal.3

         The State concedes, and we agree, that the trial court committed reversible error by
instructing the jury that reckless endangerment is a lesser included offense of aggravated assault,
when committed by intentionally or knowingly causing another to reasonably fear imminent bodily
injury by use or display of a deadly weapon. See State v. Moore, 77 S.W.3d 132, 136 (Tenn. 2002).
It is fundamental that an accused may be convicted only of an offense charged in the indictment or
of an offense that is a lesser included offense of that charge. State v. Rush, 50 S.W.3d 424, 427-28
(Tenn. 2001). To do otherwise, violates the defendant’s constitutional rights. Id. at 427.
Nonetheless, because the error is constitutional as opposed to jurisdictional, it is subject to waiver.

        In State v. Yoreck, our supreme court reiterated the rule that a “defendant who enters a plea
of guilty waives all nonjurisdictional defects and constitutional infirmities.”4 133 S.W.3d 606, 612



         3
          This court in Lumpkin acknowledged that a defendant may challenge via a Rule 10 appeal (1) the conditions
attached to a grant of judicial diversion or (2) after a trial, raise an issue on appeal in the event of a revocation of the
diversion program. Lumpkin, No. W 2002-00648-CCA-R3-CD.

         4
           In contrast, jurisdictional defects may be challenged at any time. State v. Nixon, 977 S.W .2d 119, 120 (Tenn.
Crim. App. 1997). “Lack of jurisdiction” refers to subject matter jurisdiction which a defendant has no power to waive.
Id. at 120-121 (citing Pon v. U. S., 168 F.2d 373, 374 (1948) (interpreting Rule 12 of Fed. R. Crim. P., which is virtually
identical to our Rule 12)). Subject matter jurisdiction is the power of the court to hear and decide a particular type of
action. In the present case, it is undisputed that the Lewis County Circuit Court had exclusive original jurisdiction of
the criminal offenses.

                                                            -4-
(Tenn. 2004) citing State v. McKinney, 74 S.W.3d 291, 306 (Tenn. 2002); State v. Pettus, 986
S.W.2d 540, 542 (Tenn. 1990)). The court found that it was not error to allow defendants to plead
guilty to crimes which were not lesser included offenses of the original indicted offense. Id.
Similarly, we conclude that the Appellant’s consent to diversion permitting expungement of his
adjudications of guilt waives all non-jurisdictional defects, including that of permitting the jury to
convict on an offense for which he was never charged. Because the appeal is not properly before this
court, the State’s motion to dismiss is granted.

                                          CONCLUSION

       Because we find that no Rule 3 appeal lies in this case and that the case is not proper for Rule
10 extraordinary relief, the appeal is dismissed.



                                                               ______________________________
                                                               DAVID G. HAYES, JUDGE




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