        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs December 21, 2010

              STATE OF TENNESSEE v. KEANEST D. WHITSON

                Appeal from the Criminal Court for Washington County
                   Nos. 33292 & 35646     Lynn W. Brown, Judge


                   No. E2010-00408-CCA-R3-CD - Filed June 28, 2011




J OSEPH M. T IPTON, P.J., concurring and dissenting.

       I agree with my colleagues that the common law writ of certiorari is the proper means
to have this court address the trial court’s actions regarding improperly reducing the felony
theft charge to unauthorized use of an automobile. I differ, though, in how the issue is
addressed. I also agree with Judge Thomas that a new sentencing hearing is in order.

        Judge Witt states that certiorari applies to allow us to review the actions regarding the
judgment for unauthorized use of an automobile. He also concludes that there is no relief for
the State’s claims regarding the trial court’s sentencing without a hearing. Judge Thomas
states that certiorari applies so as to allow all the trial court’s actions to be reviewed. They
both rely on State v. Leath, 977 S.W.2d 132, 136 (Tenn. Crim. App. 1998), in which this
court converted an improper appeal to one by common law writ of certiorari in order to
address a trial court’s unilateral reduction of a sentence.

        The problem I see arises from Bd. of Prof’l Responsibility v. Cawood, 330 S.W.3d
608, 609 (Tenn. 2010), in which our supreme court held that a petition for writ of certiorari
“must be supported by oath or affirmation and state that it is the first application for the
writ.” Without these requirements, the appellate court is without subject matter jurisdiction.
Id. In the present case, no such oath or statement is provided. Judge Witt acknowledges
Cawood, but notes it dealt with the requirements for a statutory writ of certiorari and, in any
event, concludes that it does not control this court’s conversion of an improper appeal into
a certiorari appeal. I respectfully disagree.

       The common law writ has been codified. See T.C.A. § 27-8-101 (2010); Moody v.
State, 160 S.W.3d 512, 515 (Tenn. 2005); McGee v. State, 340 S.W.2d 904, 905 (Tenn.
1960). Pursuant to Tennessee Code Annotated section 27-8-06, a petition must be on oath
and provide a statement that it is the first application for a writ. Nothing in this chapter,
entitled “Certiorari and Supersedeas,” indicates that these requirements apply only to the
statutory writ for certiorari under section 27-8-102 and not to the common law writ under
section 27-8-101. See T.C.A. §§ 27-8-101 to 118.

       As for whether this court has the authority to convert an improper appeal into a
certiorari appeal, I note again that the requirements for an oath and a statement have been
viewed to be necessary to confer jurisdiction on the reviewing court. Pursuant to Tennessee
Rule of Appellate Procedure 2, this court may for good cause suspend the requirements of
any of the appellate rules, except for certain time limitations that primarily relate to the
supreme court. I do not believe, though, that this provision grants jurisdiction that is required
by a statute that is not part of the appellate rules. In other words, this court does not have
independent authority to convert an improper appeal as of right to a petition for a writ of
certiorari unless the appeal meets the statutory requirements for a certiorari appeal. The
appeal in the present case does not.

        On the other hand, I believe an appeal as of right is appropriate to resolve the
sentencing issues. I also believe that the way the trial court failed to provide a sentencing
hearing when imposing the sentences was error and was prejudicial to the judicial process.
See T.R.A.P. 36(b). The trial court essentially usurped the State’s terms of the agreement
but altered a primary requirement regarding the theft offense. Once the trial court rejected
the agreement because of the term of confinement, any summary imposition of sentences,
including the sentence imposed for the community corrections revocation, did not follow the
Sentencing Act’s requirements for a sentencing hearing and a presentence report. See T.C.A.
§ 40-35-209 (2003) (amended 2009). The trial judge’s actions were out of line, and the case
should be remanded for appropriate proceedings before another trial judge.




                                                     ____________________________________
                                                     JOSEPH M. TIPTON, PRESIDING JUDGE




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