        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                 March 27, 2012 Session

    STATE OF TENNESSEE v. BETHANY LORRAINE KUYKENDALL

                 Appeal from the Circuit Court for Anderson County
                   No. B1C00018       Donald Ray Elledge, Judge




              No. E2011-01350-CCA-R3-CD - Filed September 12, 2012


The Defendant, Bethany Lorraine Kuykendall, pleaded guilty to theft of property valued at
more than $1000 but less than $10,000, for which she was granted judicial diversion with the
requirements that she complete two years of probation and pay $150 per month toward
restitution. On appeal, she contends that the trial court abused its discretion in setting the
restitution amount. Because we lack jurisdiction to consider her appeal, we dismiss it.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which T HOMAS T. W OODALL
and C AMILLE R. M CM ULLEN, JJ., joined.

Nancy C. Meyer, Assistant District Public Defender, Clinton, Tennessee, for the appellant,
Bethany Lorraine Kuykendall.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; David S. Clark, District Attorney General; and Ryan Spitzer, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

        The record reflects that the elderly victim allowed the Defendant and the Defendant’s
infant to live in the victim’s home without paying rent for one or two months because the
Defendant had no other place to go. After the Defendant left, the victim received a telephone
call from an unidentified person, who said the Defendant laughed about stealing the victim’s
jewelry. The victim then discovered that several pieces of her jewelry were missing. She did
not give the Defendant permission to take the jewelry. On three dates, the Defendant pawned
a total of eighteen pieces of jewelry belonging to the victim. The victim reported to the
police that the stolen property had a value of $7950, and jewelry valued at approximately
$1050 was recovered.

       The Defendant and the State agreed that the Defendant would plead guilty to theft and
request judicial diversion including two years of probation and restitution in an amount to
be determined by the court after a hearing. The court accepted the agreement and the
Defendant’s guilty plea.

       A restitution hearing was held four months later. The victim testified that she had
memory problems. She said that she initially reported to the police that an “assortment of
jewelry” was taken. Later, she and her son made a list of the stolen items and their respective
values. Items other than the jewelry were included, but the trial court noted that the
information only charged the Defendant with the theft of jewelry and that the other items
were not included for purposes of restitution in the case. The victim’s list was received as
an exhibit. The victim said none of the items on the list were recovered.

       A police officer testified about the recovered items. She acknowledged that the victim
did not provide her with a complete list of missing items. A list of recovered items was
received as an exhibit.

      A former co-worker of the Defendant testified that the Defendant and she had been
employed at Sonic. Her testimony was unclear whether the Defendant quit or was fired.

        The Defendant testified that she had been unemployed for three months. She said she
left her last job because she broke her toe and her manager cut her hours. She said she
searched for other employment. She said she lived with her brother and did not currently pay
rent, although he needed financial assistance. She was attempting to qualify for Food
Stamps. She had over $6000 of past medical bills, owed court costs, and was obligated to
pay $100 per month for child support.

      The court determined that the victim’s pecuniary loss was $6588 and that the
Defendant had the ability to earn money but left her last employment voluntarily. The court
ordered the Defendant to pay $150 per month in restitution for the rest of her probation term.

        On appeal, the Defendant contends that the trial court erred in determining the amount
of restitution. The State counters that the Defendant’s appeal must be dismissed because the
Defendant has no appeal as of right from a grant of judicial diversion. We agree with the
State.




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      Tennessee Rule of Appellate Procedure 3(b) establishes the alternatives in which a
criminal defendant has an appeal as of right:

              (b) Availability of Appeal as of Right by Defendant in
              Criminal Actions. In criminal actions an appeal as of right by
              a defendant 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; and (2)
              on a plea of guilty or nolo contendere, if the defendant entered
              into a plea agreement but explicitly reserved the right to appeal
              a certified question of law dispositive of the case pursuant to
              and in compliance with the requirements of Rule 37(b)(2)(i) or
              (iv) of the Tennessee Rules of Criminal Procedure, or if the
              defendant seeks review of the sentence and there was no plea
              agreement concerning the sentence, or if the issues presented for
              review were not waived as a matter of law by the plea of guilty
              or nolo contendere and if such issues are apparent from the
              record of the proceedings already had. The defendant may also
              appeal as of right from an order denying or revoking probation,
              and from a final judgment in a criminal contempt, habeas
              corpus, extradition, or post-conviction proceeding.

T.R.A.P. 3(b). Our supreme court has interpreted Rule 3 to limit appeals as of right to those
things expressly enumerated in the rule. See State v. Lane, 254 S.W.3d 349, 353 (Tenn.
2008); State v. Adler, 92 S.W.3d 397, 401 (Tenn. 2002), superseded by statute, T.C.A. § 40-
32-101(a)(1), as recognized in State v. L.W., 350 S.W.3d 911, 915-16 (Tenn. 2011). A
defendant does not have an appeal as of right when she pleads guilty and receives judicial
diversion because no judgment has been entered, nor has the diversion resulted from entry
of any of the appealable orders specified by the rule. State v. Norris, 47 S.W.3d 457, 461
(Tenn. Crim. App. 2000); see also State v. Wiley Moore, Jr., No. M2008-01524-CCA-R3-CD
(Tenn. Crim. App. July 30, 2009) (holding that a defendant who received judicial diversion
had no appeal as of right of an award of interest on restitution owed and that no compelling
case was presented for extraordinary review pursuant to Tennessee Rule of Appellate
Procedure 10); State v. Sherrie Ann Collins, No. M2007-01356-CCA-R3-CD (Tenn. Crim.
App. June 27, 2008) (holding that a defendant who received judicial diversion had no appeal
as of right for review of the amount of restitution ordered).

       After the State raised the jurisdictional issue in its brief, the Defendant filed a reply
brief arguing that she did not waive her Rule 3 appeal as of right because the restitution
amount was a probation condition that could be reviewed as part of the sentence imposed by

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the court and was not waived as a matter of law by her guilty plea. She cites this court’s
opinion in State v. Paul David Cable, No. 03C01-9409-CR-00349 (Tenn. Crim. App. June
1, 1995), which reversed the trial court’s imposition of split confinement for a defendant
receiving judicial diversion because a jail term was not permitted under the judicial diversion
statute. We note that Paul David Cable dealt with a probation condition that was not allowed
by the statute, as opposed to one that was legally permissible but which the defendant
contended was an abuse of the court’s discretion. Cf. State v. Adrian Lumpkin, No. W2002-
00648-CCA-R3-CD (Tenn. Crim. App. Nov. 27, 2002) (permitting T.R.A.P. 10 review of
the trial court’s imposition of incarceration as a condition of judicial diversion because the
court had no legal authority to order it but declining to consider the defendant’s remaining
issues regarding other probation conditions because there was no T.R.A.P. 3 appeal as of
right from the grant of diversion). Also, Paul David Cable predated this court’s published
opinion in Norris, which is binding authority.

       We acknowledge that this court has reviewed restitution amounts awarded as a
probation condition without considering whether the appeal was within the scope of Rule 3.
See State v. Ardie Mae Culbreath, No. M2007-01157-CCA-R3-CD (Tenn. Crim. App. July
21, 2008); State v. Holden Gregory Reece, No. E2007-01183-CCA-R3-CD (Tenn. Crim.
App. May 21, 2008); cf. State v. Johnson, 980 S.W.2d 410, 413 (Tenn. Crim. App. 1998)
(affirming trial court’s imposition of a fine or contribution of a monetary amount that did not
exceed the statutory maximum as a probation condition of judicial diversion). We question
whether the court should have reached the merits of the appeals in these cases, and we
decline to consider them authoritative in this case when the court did not address the question
of whether the appeal was properly before it and in light of our published decision in Norris.
See Norris, 47 S.W.3d at 461.

       The Defendant urges us to consider her issue as an extraordinary appeal pursuant to
Tennessee Rule of Appellate Procedure 10. A Rule 10 appeal is initiated on application, the
grant of which is in the appellate court’s discretion. T.R.A.P. 10. No such application was
made in this case, although we acknowledge that an improperly filed Rule 3 appeal may be
considered as an application for review under Rule 10. See, e.g., State v. Leath, 977 S.W.2d
132, 135 (Tenn. Crim .App. 1998).

       Rule 10 review is appropriate only “(1) if the lower court has so far departed from the
accepted and usual course of judicial proceedings as to require immediate review, or (2) if
necessary for complete determination of the action on appeal as otherwise provided in [the
Rules of Appellate Procedure].” T.R.A.P. 10(a). Our supreme court has said that a Rule 10
appeal is appropriate in the same situations as would be fitting for the common law writ of
certiorari:



                                              -4-
              the court’s ruling represents a fundamental illegality, the ruling
              fails to proceed according to the essential requirements of the
              law, the ruling is tantamount to the denial of a party’s day in
              court, the trial court’s action is without legal authority, the
              action of the trial court constitutes a plain and palpable abuse of
              discretion, or either party has lost a right or interest that may
              never be recaptured.

State v. McKim, 215 S.W.3d 781, 791 (Tenn. 2007) (citing State v. Willoughby, 594 S.W.2d
388, 392 (Tenn. 1980)).

       In considering these factors, we note the Defendant does not contend that the trial
court was without legal authority to set the restitution amount. She argues that the court
erred in determining the amount. The plea agreement called for restitution in an amount to
be determined by the trial court after a hearing. The record reflects that the Defendant was
afforded a restitution hearing and that the court considered the evidence presented in
determining the restitution amount. In addition to the Defendant’s agreement to restitution
in an amount determined by the court as a condition of judicial diversion, the trial court was
statutorily authorized to impose restitution as a condition of probation. See T.C.A. §§ 40-35-
303(d)(10) (2010) (authorizing the trial court to order restitution as a condition of probation),
-304(a) (2010) (“A sentencing court may direct a defendant to make restitution to the victim
of the offense as a condition of probation.”), -313(a)(1)(A) (2010) (amended 2011)
(permitting a trial court to impose “reasonable conditions” of probation upon a grant of
judicial diversion); cf. State v. Yvonne B. Ragland, No. E2005-02016-CCA-R3-CD (Tenn.
Crim. App. Aug. 14, 2006) (stating that upon remand, the trial court shall place the defendant
on judicial diversion with reasonable conditions that may include restitution) (citing Johnson,
980 S.W.2d at 412-13).

       Considering whether the Defendant has lost a right that can never be recaptured, we
note this court’s statement in Norris:

              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.




                                               -5-
Norris, 47 S.W.3d at 463. As Norris states, a defendant has the choice whether to accept
diversion. See id., T.C.A. § 40-35-313(a)(1)(A) (The court may grant diversion “with the
consent of the qualified defendant.”). The Defendant had the opportunity to negotiate with
the State and submit a plea agreement for the court’s consideration that included an agreed
amount of restitution. She chose to accept the plea agreement and judicial diversion without
knowing the amount of restitution that would be imposed following a hearing. The
Defendant voluntarily waived her right to a Rule 3 appeal by agreeing to judicial diversion
with the trial court determining the amount of restitution she would pay. She has not
presented a case in which Rule 10 review is appropriate. See Wiley Moore, Jr., slip op. at
3-4 (holding that the defendant did not present a compelling case for Rule 10 review of the
trial court’s order imposing a probation condition of judicial diversion that required the
defendant to pay interest as part of the restitution amount).

        In so holding, we have considered the Defendant’s argument that due process requires
that we consider her appeal. She has not cited any authority to support her argument. In the
absence of any authority, we hold that we are limited by the parameters of Tennessee Rule
of Appellate Procedure 3(b) and our supreme court’s determination that the scope of the rule
is to be narrowly construed. See Lane, 254 S.W.3d at 353.

        Finally, we have considered the Defendant’s supplemental authority. She cites State
v. Wilson, 6 S.W.3d 504, 506 (Tenn. Crim. App. 1998), which involved a Rule 3 appeal by
the State of a dismissal of an arrest warrant following the defendant’s conviction on the
warrant. The court “decline[d] to base [its] decision on an exclusively literal interpretation
of the language of Rule 3 of the Tennessee Rules of Appellate Procedure” and held that Rule
3 review was appropriate because the State’s appeal arose from a criminal prosecution. Id.
To the extent that Wilson supports an expansive interpretation of Rule 3, we consider our
supreme court’s Lane decision calling for a narrow approach to be authoritative and decline
to follow the earlier opinion of this court in Wilson.

       In consideration of the foregoing and the record as a whole, the appeal is dismissed.




                                           ____________________________________
                                           JOSEPH M. TIPTON, PRESIDING JUDGE




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