         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs October 1, 2002

                  STATE OF TENNESSEE v. ADRIAN LUMPKIN

                      Appeal from the Criminal Court for Shelby County
                       No. 99-01712    Carolyn Wade Blackett, Judge



                  No. W2002-00648-CCA-R3-CD - Filed November 27, 2002


The Defendant, Adrian Lumpkin, was indicted for aggravated assault. He pled guilty and agreed to
a sentence of three years with the manner of service to be determined by the trial court. After a
sentencing hearing, the trial court granted the Defendant judicial diversion subject to several
conditions. In this appeal, the Defendant contends that the trial court erred by placing unreasonable
conditions on its grant of judicial diversion. We conclude that the trial court had no legal authority
to impose a term of incarceration as a condition of judicial diversion. However, with respect to the
remaining conditions, we dismiss the Defendant’s appeal because a defendant to whom judicial
diversion was granted has no appeal as of right.

Tenn. R. App. P. 3; 10; Judgment of the Trial Court Reversed in Part; Appeal Dismissed in
                                     Part; Remanded

DAVID H. WELLES, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR. and
ALAN E. GLENN, JJ., joined.

Jerry Stokes, Memphis, Tennessee, for the appellant, Adrian Lumpkin.

Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Stephanie Johnson, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION


         On the evening of September 25, 1999, the Defendant, Adrian Lumpkin, was standing
outside his house with seven or eight of his friends. A vehicle driven by Myron Thomas passed in
front of the Defendant’s house. Words were exchanged between the Defendant and his group of
friends and Myron Thomas and his father, Michael Thomas, who was riding in the front passenger
seat of the car. A few minutes later, Myron Thomas drove back to the Defendant’s house and parked
across the street. When Myron Thomas and his father, Michael Thomas, exited their vehicle and
began walking toward the Defendant’s house, a brawl ensued. Both Myron and Michael Thomas
were injured and required medical attention. The Defendant admitted that, during the melee, he
grabbed a wooden chair off his porch and broke it across the back of Michael Thomas.

        On February 18, 1999, the Shelby County Grand Jury returned an indictment charging the
Defendant with aggravated assault. The Defendant pled guilty to the charge and agreed to a sentence
of three years. The manner in which the sentence was to be served was left to the discretion of the
trial court. After a sentencing hearing, the trial court granted the Defendant judicial diversion1
subject to the following conditions: that the Defendant serve three months in confinement, submit
to frequent random drug screens, maintain full-time employment, attend anger management classes,
perform one-hundred hours of community service, and remain on probation for three years. The
Defendant argues that the conditions imposed by the trial court were “too unreasonable, unrealistic,
too harsh, and unjust.”

        We note at the outset that no appeal as of right lies from a grant of judicial diversion because
there is no judgment of conviction from which to appeal pursuant to Tennessee Rule of Appellate
Procedure 3. See Tenn. Code Ann. § 40-35-313(a)(1)(A), (2); State v. Glenda Kidd, No. 01C01-
9808-CR-00344, 1999 Tenn. Crim. App. LEXIS 459, at *4 (Nashville, May 13, 1999). In State v.
Norris, 47 S.W.3d 457, 463 (Tenn. Crim. App. 2000), this Court determined that an appeal did not
lie for Norris’s co-defendant, who had been placed on judicial diversion. 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.

        Because the Defendant was granted judicial diversion and, consequently, had no judgment
of conviction entered against him, he may not appeal as of right. See id. at 461-63; State v. Vasile
Cavopol, No. M2001-01034-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 784, at *3 (Nashville,
Sept. 16, 2002). However, if a defendant takes issue with the conditions attached to a grant of
judicial diversion, the defendant is not without a remedy. A trial court may not impose judicial
diversion without the consent of the defendant. See Tenn. Code Ann. § 40-35-313(a)(1)(A). A
defendant has the option of declining judicial diversion:
       [A] defendant has the options (1) to eschew judicial diversion if he or she wishes to
       seek a review of a given issue through the appropriate method of appeal, (2) when
       seeking judicial diversion after a guilty plea, to reserve a certified question, upon
       submitting a plea, to be presented on appeal pursuant to Rule 37(b) after judicial
       diversion is denied and a judgment is entered, or if diversion is granted, to be
       presented on appeal if and when the diversion probation is revoked and judgment is
       entered, (3) if judicial diversion is granted after a trial, to raise an issue on appeal in
       the event of a revocation of the diversion probation, or (4) in the appropriate
       circumstances, to seek a discretionary, interlocutory appeal under Tennessee Rules
       of Appellate Procedure 9 or 10.


       1
           See Tenn. Code Ann. § 40-35-313.

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Norris, 47 S.W.3d at 463. While the choice to accept judicial diversion may inhibit a defendant’s
ability to raise a legal issue, the defendant who accepts judicial diversion may, by his or her own free
will, “emerge from the process without a conviction on his or her record.” Id.


        That being said, an appeal filed improperly under Rule 3 may be treated as an application for
extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. See
Norris, 47 S.W.3d at 463; State v. Leath, 977 S.W.2d 132, 135 (Tenn. Crim. App. 1998). 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). The Tennessee Supreme Court has held that an extraordinary appeal should only be granted
        a. Where the ruling of the court below represents a fundamental illegality.
        b. Where the ruling constitutes a failure to proceed according to the essential
        requirements of the law.
        c. Where the ruling is tantamount to the denial of either party of a day in court.
        d. Where the action of the trial judge was without legal authority.
        e. Where the action of the trial judge constituted a plain and palpable abuse of
        discretion.
        f. Where either party has lost a right or interest that may never be recaptured.


State v. Willoughby, 594 S.W.2d 388, 392 (Tenn. 1980).


        Although the Defendant failed to raise the issue in his brief, the trial court imposed an illegal
condition on its grant of judicial diversion by ordering the Defendant to serve three months in jail.
This Court has held that imposing a jail term as a condition of judicial diversion is incompatible with
the provisions of Tennessee Code Annotated section 40-35-313, the judicial diversion statute. See
State v. Paul David Cable, No. 03C01-9409-CR-00349, 1995 Tenn. Crim. App. LEXIS 447, at *12
(Knoxville, June 1, 1995). “Inasmuch as no judgment of guilt is to be entered when judicial
diversion is granted, the trial court would not be authorized to sentence the defendant to a period of
confinement.” State v. James C. Wolford, No. 03C01-9708-CR-00319, 1999 Tenn. Crim. App.
LEXIS 139, at *13 (Knoxville, February 18, 1999) (citations omitted). Therefore, “[j]ail time may
not be imposed as a condition of probation under the judicial diversion statute.” State v. Johnson,
15 S.W.3d 515, 518-19 (Tenn. Crim. App. 1999). Because the trial court imposed an illegal
condition on its grant of judicial diversion, the Defendant meets the requirements for the partial
granting of a Rule 10 extraordinary appeal.


        Having found that the trial court had no legal authority to order incarceration as a condition
of its grant of judicial diversion, we reverse the trial court with respect to the imposition of that
condition. However, with respect to the remainder of the Defendant’s appeal, the appeal is


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dismissed because there is no appeal as of right from a grant of judicial diversion. This case is
remanded to the trial court for such further proceedings as may be warranted.




                                                     ___________________________________
                                                     DAVID H. WELLES, JUDGE




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