         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON                 FILED
                            MAY SESSION, 1998               June 8, 1998

                                                         Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk

STATE OF TE NNE SSE E,            )    C.C.A. NO. 02C01-9707-CC-00284
                                  )
           Appe llant,            )
                                  )    MADISON COUNTY
V.                                )
                                  )
                                  )    HON. WHIT LAFON, JUDGE
KEN NET H LEA TH,                 )
                                  )
           Appellee.              )    (STATE APPEAL)



FOR THE APPELLEE:                      FOR THE APPELLANT:

GEORGE MORTON GOOGE                    JOHN KNOX WALKUP
District Public Defender               Attorney General & Reporter

STEPHEN P. SPRACHER                    MAR VIN E. C LEM ENT S, JR.
Assistant Public Defender              Assistant Attorney General
227 West Baltimore                     2nd Floor, Cordell Hull Building
Jackson, TN 38301                      425 Fifth Avenu e North
                                       Nashville, TN 37243

                                       JAMES G. WOODALL
                                       District Attorn ey Ge neral

                                       JAMES W. THOMPSON
                                       Assistant District Attorney General
                                       225 Martin Luther King Drive
                                       P.O. Box 2825
                                       Jackson, TN 38302




OPINION FILED ________________________

REVERSED AND REMANDED

THOMAS T. WOODALL, JUDGE
                                    OPINION
              In this case, the State has filed a notice of appeal pursuant to Rule 3 of

the Tenn essee Rules o f Appella te Proced ure. The trial co urt sente nced D efenda nt,

Kenn eth Leath, to s ix (6) years in carcera tion in the D epartm ent of Correction as a

Range II offender for his conviction of burglary in violation of Tennessee Code

Annotated section 39-14-402. In a three (3) count indictment, the Defendant was

origina lly charge d with one (1) coun t of burglary , one (1) co unt of theft o f property

less than $500 .00 value, and o ne (1) count o f vandalism in an amount less than

$500.00. The Defendant’s guilty plea was entered on July 16, 1997. On that date,

a document styled “Plea of Guilty and Waiver of Jury Trial and Appeal” was signed

by the Defendant, his counsel, and the Assistant District Attorney. That document

spec ifically states that the sentence to be imposed upon the negotiated plea

agreement pursuant to Rule 11(e)(1)(C) of the Tennessee Rules of Criminal

Procedure, was an eight (8) ye ar, Ran ge II sentence in the Department of

Correction. The theft and vandalism charges were to be dismissed. At the guilty

plea hearing, the trial court ag reed to allow the D efendant to ple ad guilty, but

unilate rally reduce d the leng th of sente nce to six (6) years. We reverse and remand

this case to the trial cou rt for further pr oceed ings con sistent with this opinion .



              The pertinent portion of the guilty plea hearing is as follows:


       [ASSIS TAN T D.A .]:        Your Hono r please, M r. Leath is plea ding in 97-54
                                   to burglary of a building, a Class E [sic] felony which
                                   carries a range of punishmen t of two to twelve
                                   years. Pursu ant to o ur agre eme nt, we’r e asking
                                   that the second count, theft of property, and the
                                   third count, which is vandalism, be dismissed.




                                            -2-
                       The State on a trial in this matter would show that
                       on October the 3rd, 1996 in Madison County, the
                       Defendant did un lawfully e nter a b uilding , to-wit,
                       Sunb elt Screen P rinters in Madison C ounty, without
                       the consent of the owner a nd with the intent to
                       comm it theft of property.

                       The State recom mends upon a plea of guilty a
                       sentence of eight years as a Ra nge II offen der. W e
                       recommend that there be no fine, and we
                       recommend that this is to be served in the
                       Department of Corrections [sic] and to run
                       consecutively to any prior convictions.

THE COURT:             Mr. Leath, is that what you understood the
                       recommendation to be?

THE DEFENDANT:         Yes, sir.

THE COURT:             All right. I find your decision to plead g uilty has
                       been made freely, that yo u’ve had the advice of a
                       lawyer whom yo u say yo u’re sa tisfied. [s ic]. I’ll
                       accept the recommendation of the District Attorney
                       with the exception I’m going to make it six years
                       rather tha n eight ye ars.

                              ***
[ASSIS TAN T D.A .]:   Your Honor, this was done p ursuan t to Rule
                       11(e)(1)(C). Note the State’s objection.

THE COURT:             Note the Sta te’s exception. You’re now sentenced.

[ASSIS TAN T D.A .]:   For the record, the State with draws its
                       recommendation and wo uld ask th at it be set for
                       trial.

THE COURT:             The Court de nies that. H e’s sente nced. You may
                       take yo ur app eal.

                               ***

[ASSIS TAN T D.A .]:   Just for the record, I wa nt to point o ut, it’s done
                       pursuant to Rule 11(e)(1 )(C), which the Sta te’s
                       position is that the Court can either accept or reject
                       the plea a nd can not mo dify it.

THE COURT:             All right, note yo ur exce ption. M otion is overruled.
                       Your exception is overruled.




                                   -3-
             The Defendant initially challenges the right of the State to appeal

pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. Tennessee

Code Annota ted sectio n 40-35 -402 allow s the Sta te in a criminal case to appeal from

the length, range, or manner of the service of a sentence imposed by the sentencing

court. Howe ver, subs ection (b) lim its an app eal from a senten ce und er that code

section to one or more of the following conditions:


      (1)    The court improperly sentenced the defendant to the wrong
             sentence range;

      (2)    The court granted a ll or part of the sentence on probation;

      (3)    The cou rt ordered all or part of the s entences to run concurre ntly;

      (4)    The court improperly found the defendant to be an
             especially mitigated offender; or

      (5)    The enhancement and mitigating factors we re not weighed
             properly.


             Based upon a fair reading of Tennessee Code Annotated section 40-35-

402, none of the conditions of an appeal by the State are applicable to the situation

in this case. Under Rule 3(c) of the Tennessee Rules of Appella te Procedure, the

State can appeal from an order of the trial court where:


      (1)    The substantive effect of which results in dismissing an
             indictme nt, informa tion, or com plaint;

      (2)    Setting aside a verdict of guilty and entering a judgment of
             acqu ittal;

      (3)    Arresting judgm ent;

      (4)    Granting or refusing to revoke probation; or

      (5)    Rem anding a child to the juvenile co urt.




                                          -4-
             Rule 3(c) of the Tennessee Rules of Appellate Procedure also provides

that the State may appeal from a final judgment in a habeas corpus, extradition, or

post-conviction proceeding.



             The State diligently filed a notice of appeal on July 28, 1997, twelve (12)

days after the trial co urt’s action in the guilty plea hearing. While a judgment has

been entere d reflec ting a s enten ce of s ix (6) yea rs in the Department of Correction,

the judgm ent inc ludes the follo wing n otation : “The court re jects the State ’s

recommendation to the agreed sentence of 8 years, Rg II and modifies the sentence

to 6 yrs, Rg II, over the State’s objection.” The judgment was filed on July 28, 1997,

the sam e date tha t the notice of appe al was filed by the Sta te.



             W e agree with the Defendant that the State cannot appeal as of right

pursuant to Rule 3 of the Tennessee Rules of Appellate Procedu re from the trial

court’s disposition in this case. In addition, Rules 9 and 10 of the Tennessee Rules

of Appellate Procedure pertain to interlocutory orders of the trial cou rt and in this

case a final judgment has been entered. However, we feel the State is not without

a remedy. Tennessee Code Annotated section 27-8-101, commonly referred to as

the “common-law writ of certiorari” provides in pertinent part as follows:


      The writ of certiorari may be granted whenever authorized by law, and
      also in all cases where an inferior tribunal . . . has exceeded the
      jurisdiction conferred, or is acting illegally, when, in the judgment of the
      court, there is no other p lain, speedy, or adeq uate re med y. This
      section does not app ly to actions governed by the Tennessee Rules of
      Appe llate Proce dure.”




             As sum marize d by the T ennes see Co urt of App eals,



                                           -5-
      The writ of certiorari lies at common law to review and supervise the
      proceedings of inferior tribunals, but does not take the place of appeal
      or writ of error, and brings up the entire record to determine whether
      there has been an excess or absence of jurisdiction, or failure to
      proceed according to the essential requirem ents of the law.

Clark v. Metro . Gov. o f Nash ville, 827 S.W.2d 312, 316 (T enn. A pp. 19 91) (em phas is
added) (citing Con ners v. City of K noxville , 136 Ten n. 428, 189 S .W. 87 0 (1916)).



              Therefore, the proper procedure for the State to seek review of the trial

court’s dispo sition in this case would have been by writ of certiorari. However, we

do not fee l that it is in the interests of justice in this case to dismiss the appeal. Our

supreme court ha s held tha t it has the au thority to trans form a n app eal im prope rly

filed under Rule 3 of the Tennessee Rules of Appellate Procedure into a proper

appeal under Rule 10 of the Te nness ee Ru les of Ap pellate P rocedu re. State v.

Gallaher, 730 S.W .2d 622, 623 (Tenn. 198 7). Our court has also held that it has the

same power o ver appe als filed in this c ourt. State v. James Doe, No. 01C01-9102-

CR-00046, Lexis 971, slip op. at 3, Davidson County (Tenn. Crim. App., Nashville,

June 2 9, 1992 ).



              Rule 36(a) of the Te nness ee Ru les of Ap pellate Proce dure p rovide s in

part that the court of criminal appeals “shall grant the relief on the law and facts to

which the party is entitled or the proceeding otherwise requires and may grant any

relief, including the giving of an y judgmen t and mak ing of any order . . . .”



              Thus, we shall treat this matter as a petition for writ of certiorari by the

State, an d we pro ceed to determ ine the m atter on the merits.




                                            -6-
              The “Plea of Guilty and Waiver of Jury Trial and Appeal” form signed

by the Defe ndant, h is couns el, and the Assistan t District Attorn ey une quivoc ally

states that the nego tiated g uilty plea is entere d purs uant to Rule 11(e)(1)(C) of the

Tennessee Rules of Criminal Procedure. That rule specifically states that the parties

“[a]gree th at a spec ific sentenc e is the ap propriate disposition of the cas e.”



              Our supreme court has held that “[t]here is no provision in Rule 11(e)

[Tenn. R. Crim. P.] that permits the trial court to alter the agreement if the plea is

being entered und er subsection (1)(C).” State v. Grady H argrove, No. 01S01-9203-

CC-0 0035, s lip op. at 3, H umph reys Co unty (Te nn., Nas hville, Aug. 9 , 1993).



              The Defendant argues that Rule 11(e)(4) of the Tennessee Rules of

Criminal Procedure permits the trial court to reduce the length of the sentence in a

negotiated plea a greem ent. T hat rule provides that the trial cour t must, if it rejects

a plea agreement, advise the defendant that if he or she persists in a guilty plea the

dispo sition of the case may be less favorable for the defendant than that

contemplated by the plea agreem ent. In addition to the fact that the suprem e court

has implicitly rejected this argument in Hargrove , we furthe r note that Rule 11(e)(4)

contemplates the trial court rejecting the entire plea agreement and by necessity the

guilty plea of the defendant. The warning is for the defendant who might desire to

proceed and enter a g uilty plea notwithstandin g the trial court’s rejection of the e ntire

plea ag reeme nt.



              In the case sub judice, the trial court accepted all portions of the

negotiated plea agreement except the length of the sentence. For unexplained

reasons, the trial c ourt un ilaterally decided to reduce the length of the sentence

                                            -7-
which had been agreed upon by the parties pursuant to Rule 11(e)(1)(C) of the

Tenn essee Rules o f Crimina l Proced ure.



              W e conclud e that the tria l court exceeded its auth ority by u nilatera lly

reducing the sentence, thus failing to proceed with the essential requirements of the

law. Accordingly, the judgment must be reversed and this case remanded to the trial

court. If the trial court still reje cts the negotiated agreement as set forth in the “Plea

of Guilty and Waiver of Jury Trial and Appeal” signed on July 16, 1997 and filed of

record on July 17, 1997, then the State shall be entitled to present proof at a

sentencing hearing if the Defendant chooses to persist in a plea of g uilty to all coun ts

of the indictment without an agreed disposition. Of course, the parties can further

negotia te for a different agreement if the trial court continues to reject the negotiated

plea agreement previously entered into betwe en the p arties. If the trial co urt accep ts

the previously signed agreement upon remand, judgment shall be entered reflecting

that Defenda nt is sentenced to serve eight (8) years in the Department of Correction

as a Range II offender under the terms and conditions of the agreement signed on

July 16, 1997.

                                   ____________________________________
                                   THOMAS T. W OODALL, Judge


CONCUR:


___________________________________
JOHN H. PEAY, Judge


___________________________________
PAUL G. SUMMERS , Judge




                                            -8-
