        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                              Assigned on Briefs May 6, 2008

            STATE OF TENNESSEE v. BENJAMIN A. MCALISTER

                     Appeal from the Circuit Court for Madison County
                          No. 04-180     Donald H. Allen, Judge



                    No. W2007-01834-CCA-R3-CD - Filed August 5, 2008


The Defendant, Benjamin A. McAlister, pled guilty in the Madison County Circuit Court to simple
possession of marijuana and possession of drug paraphernalia subject to reservation of a certified
question on appeal. The Defendant then applied for and was granted judicial diversion under
Tennessee Code Annotated section 40-35-313. On appeal, the Defendant presents the following
certified question for our review: whether he voluntarily consented to the search of his residence.
As provided by our diversion statute, no judgment of conviction was entered and, as such, we
conclude that the Defendant has no appeal as of right. Because this Court lacks jurisdiction to
review the appeal, the appeal is dismissed.

                  Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

DAVID H. WELLES, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR., J.,
and DAVID G. HAYES, SR. J., joined.

Gregory D. Gookin, Assistant Public Defender, Jackson, Tennessee, for the appellant, Benjamin A.
McAlister.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General;
Jerry Woodall, District Attorney General; and Shaun Brown, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                           OPINION

                                       Factual Background
       The facts of this case are not in dispute and are fairly straightforward. On March 5, 2007,
a Madison County grand jury indicted the Defendant for simple possession of marijuana and
possession of drug paraphernalia, both Class A misdemeanors. See Tenn. Code Ann. §§ 39-17-418,
-425. Thereafter, the Defendant filed a motion to suppress the evidence, claiming that he did not
voluntarily consent to the search of his residence.
        A hearing on the motion to suppress was conducted on May 14, 2007. Investigator Charlie
Yarbrough of the Madison County Metro Narcotics Division testified that, on October 17, 2006, the
sheriff’s department received a call that an illegal drug transaction or drug use was occurring in the
area of 581 Parkburg Road. Upon investigation of the area, the officers could not locate 581 and
proceeded to 580.

        Investigator Yarbrough knocked on the door of 580, and the Defendant opened the door.
According to Investigator Yarbrough, he informed the Defendant of the tip regarding an illegal drug
transaction and drug use in the area, and the Defendant consented to a search of his home. Also
present in the home were the Defendant’s wife and his twelve-year-old daughter. Investigator
Yarbrough then searched the residence and located “rolling papers” and twenty-eight grams of
marijuana inside a trunk.

        On cross-examination, Investigator Yarbrough acknowledged that he observed surveillance
cameras around the home and that the cameras were functioning on the evening of October 17.
When Investigator Yarbrough was asked why he did not ask the Defendant to sign a consent form,
he responded that it was because he “didn’t have any with” him. Investigator Yarbrough denied that
he or any other officer removed the videotape or tampered with the surveillance equipment.

      The Defendant testified that he recalled hearing a commotion outside his home on October
17. He claimed that he used the surveillance equipment due to his disabilities.

        When he answered the door, Investigator Yarbrough asked, “Where is the meth lab?” The
Defendant responded that “[t]here is no meth lab here.” According to the Defendant, the officers
stated to him that they wanted to search his home, and the Defendant inquired several times if they
had a warrant. He was then told “that they didn’t need a warrant to search that they had enough
cause to search.” When asked if he gave the officers consent to search, he stated that he did not want
to be charged with resisting arrest, so he told the officers, “You do what you think you have to do.”

        According to the Defendant, when he returned home from jail, his security cameras had been
disassembled and the tape had been removed from inside his home. However, he never made a report
to authorities. The Defendant also confirmed that his wife and daughter were asleep and did not hear
the commotion.

        Thereafter, the trial court issued an order denying the motion, finding that “the Defendant
gave consent to law enforcement officers to search his residence.” The issue was one of witness
credibility, and the trial court accredited the testimony of Investigator Yarbrough.

        The Defendant then applied for judicial diversion pursuant to Tennessee Code Annotated
section 40-35-313, and the trial court’s June 6, 2007 order commands that an investigation report
be prepared to determine the Defendant’s suitability for diversion.




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        On July 16, 2007, the trial court accepted the guilty plea of the Defendant to the crimes as
charged,1 and the plea agreement reflected that the Defendant had reserved as a certified question
the issue raised in his motion to suppress. Pursuant to the terms of the plea agreement, the
Defendant was to receive sentences of eleven months and twenty-days on both counts (75 percent
release eligibility status), to be served concurrently.

        The trial court entered an order on July 26, 2007, granting the Defendant judicial diversion.
In this order, it was noted that the issue raised by the Defendant in his motion to suppress was
dispositive of the case (consent to search) and that the Defendant intended to pursue this issue on
appeal.

        The Defendant now presents his certified question for our review.

                                               ANALYSIS
        Judicial diversion is a legislative largess whereby a defendant adjudicated guilty may, 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 Tenn. Code Ann. § 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 Tenn. Code Ann. § 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. App., Knoxville, May 23, 2002); State v. Glenna Kidd, No.
01C01-9808-CR-00344, 1999 WL 298309, at *1 (Tenn. Crim. App., Nashville, May 13, 1999).
Judicial diversion may be ordered only with the consent of a “qualified defendant.” Tenn. Code
Ann. § 40-35-313(a)(1)(A).

        Rule 3 of the Tennessee Rules of Appellate Procedure establishes that an appeal as a matter
of right lies “from any judgment of conviction entered by a trial court from which an appeal lies to
the Supreme Court or Court of Criminal Appeals: (1) on a plea of not guilty . . . .” Tenn. R. App.
P. 3(b); see also Tenn. R. Crim. P. 37(b)(1). In addition, Rule 3(b) provides that a “defendant may
also appeal as of right from an order denying or revoking probation, and from a judgment in a
criminal contempt, habeas corpus, extradition, or post-conviction proceeding.” Tenn. R. App. P.
3(b). An adjudication of guilt followed by an order of judicial diversion does not result in a
judgment of conviction unless the defendant violates the conditions imposed by the trial court.
Dockery, 2002 WL 1042187, at *2; Kidd, 1999 WL 298309, at *1.

        In State v. Norris, 47 S.W.3d 457 (Tenn. Crim. App. 2000), this Court determined that an
appeal did not lie for Norris’ co-defendant, who had been placed on judicial diversion. 47 S.W.3d
at 463. The panel found that, because the co-defendant was granted, rather than denied, diversion,
and because she had received no judgment of conviction, she had no appeal as of right. Id.


        1
            A transcript of the guilty plea hearing is not included in the record on appeal.

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“Although the choice to accept judicial diversion at least postpones and perhaps jeopardizes the
defendant’s opportunity to raise a legal issue, the quid pro quo, as compared to the defendant who
pleads guilty and receives a conviction and a probated sentence, is that the defendant who accepted
diversion has a self-determined chance to emerge from the process without a conviction on his or
her record.” Id. Because the Defendant was granted judicial diversion and, consequently, no
judgment of conviction was entered against him, he may not appeal as of right. See id. at 461-63.

         That being said, an appeal filed improperly under Rule 3 may, however, be treated as an
application for extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate
Procedure. Norris, 47 S.W.3d at 463; State v. Leath, 977 S.W.2d 132, 135 (Tenn. Crim. App.1998);
Dockery, 2002 WL 1042187, at *3. Rule 10 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.” Tenn. R. App. P. 10(a). An extraordinary appeal should only be
granted 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).

        Under these criteria, the trial court possessed jurisdiction and had the authority to place the
Defendant on judicial diversion. We conclude that the Defendant has failed to meet the requirements
for the granting of a Rule 10 extraordinary appeal. Accordingly, this Court lacks jurisdiction to
review the Defendant’s appeal, and the appeal is dismissed.

                                            CONCLUSION
       Because the Defendant was placed on judicial diversion and no adjudication of guilt was
entered, this Court lacks the jurisdiction to review the Defendant’s appeal. Accordingly, the appeal
is dismissed.



                                                        ______________________________
                                                        DAVID H. WELLES, JUDGE




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