        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs September 9, 2009

    STATE OF TENNESSEE v. HECTOR DIAZ PENA IN RE: AARON
    BONDING COMPANY, T BONDING COMPANY & AROUND THE
               CLOCK BONDING COMPANY, LLC

            Direct Appeal from the Criminal Court for Davidson County
                    No. 2007-C-2427     Steve R. Dozier, Judge


                 No. M2008-01271-CCA-R3-CD - Filed April 22, 2010




N ORMA M CG EE O GLE, J., dissenting.

        I respectfully disagree with the majority’s conclusion that this appeal should be
dismissed. The record on appeal includes the court’s minutes for April 30, 2008. The
minutes reflect that on October 4, 2007, judgment nisi was taken against the defendant and
that a scire facias was issued and served. According to the minutes, a final judgment was
entered against the defendant and his sureties in the amount of $75, 000 “the penalty of the
defendant’s appearance bond, for which execution will issue, together with the costs of this
prosecution.”

        The majority concludes that dismissal is appropriate because the record does not
include a final judgment in compliance with Tennessee Rule of Civil Procedure 58. As
support for its position, the majority cites State v. Donald Edward Lynch, In re: X-Cell
Bonding Co., No. E2005-01362-CCA-R3-CD, 2006 WL 3102348 (Tenn. Crim. App. at
Knoxville, Nov. 2, 2006) and State v. Howard C. Covington, In re: Memphis Bonding Co.,
No. W2001-01575-CCA-R3-CD, 2002 WL 1592704 (Tenn. Crim. App. at Jackson, July 16,
2002). In my view, the cases cited by the majority are distinguishable from the instant case.
In Lynch, this court dismissed the appeal, concluding that the record did not contain a
judgment in compliance with Rule 58. Lynch, No. W2001-01575-CCA-R3-CD, 2002 WL
1592704, at *1. The court noted that the minutes included in the record on appeal reflected
that a hearing was held on the surety’s motion to extend time to bring the defendant in. Id.
The trial court denied the motion and ordered final forfeiture. Id. However, the minutes did
not reflect the amount of the forfeiture. Id. This court noted that “‘[t]he purpose of
[Tennessee Rule of Civil Procedure 58] is to insure that a party is aware of the existence of
a final, appealable judgment in a lawsuit in which he is involved.’” Id. (quoting Masters ex
rel. Masters v. Rishton, 863 S.W.2d 702, 705 (Tenn. Ct. App. 1992)). This court further
noted that “‘[Tennessee Rule of Civil Procedure] 58 reflects the principle that a court speaks
only through its written judgments, duly entered upon its minutes; therefore, no oral
pronouncement is of any effect unless and until made a part of a written judgment duly
entered.’” Id. (quoting Environmental Abatement, Inc. v. Astrum R.E. Corp., 27 S.W.3d 530,
536 (Tenn. Ct. App. 2000)).

       In Covington, the appeal was dismissed because the documents contained in the
record did not “have the character of final judgments,” and the record did not contain “any
order of final forfeiture or other entry of monetary judgment against Memphis Bonding.”
Covington, No. W2001-01575-CCA-R3-CD, 2002 WL 1592704, at *2. As in Lynch, this
court concluded the documents did not constitute a final judgment as required by Rule 3 of
the Tennessee Rules of Appellate Procedure. Id.

        Conversely, in the instant case, the court minutes are styled in the nature of an order.
The minutes set out the procedural history, which is in compliance with Tennessee Code
Annotated section 40-11-139; the amount of the forfeiture; provides for execution; and
assesses court costs. I would conclude, as did a panel of this court in State v. Jose E. Bejar,
In re: Liberty Bonding Co., No. W2008-01369-CCA-R3-CD, 2010 WL 844769, at *2,(Tenn.
Crim. App. at Jackson, Mar. 10, 2010), that “the absence of a written order is not fatal when
the record contains a minute entry disposing of the matter.” (citing State v. March, 293
S.W.3d 576, 581 (Tenn. Crim. App. 2008)); see also State v. Byington, 284 S.W.3d 220, 226
(Tenn. 2009).

                                                    _________________________________
                                                    NORMA McGEE OGLE, JUDGE




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