        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 January 13, 2016 Session

         STATE OF TENNESSEE v. ALEX HARDIN HUFFSTUTTER

                Appeal from the Criminal Court for Davidson County
                   No. 2011-D-3092    Mark J. Fishburn, Judge




                 No. M2015-00950-CCA-R3-CD – Filed March 2, 2016
                         _____________________________

In conjunction with the entry of a nolo contendere plea to first offense driving under the
influence (“DUI”), Defendant, Alex Hardin Huffstutter, reserved a certified question for
appeal pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(A) in which he asked
this Court to determine whether Tennessee Code Annotated section 40-35-313 excluded
DUI as an offense for which judicial diversion was available. On appeal, this Court
determined that the question was not dispositive and dismissed the appeal. State v. Alex
Hardin Huffstutter, No. M2013-02788-CCA-R3-CD, 2014 WL 4261143, at *1 (Tenn.
Crim. App. Aug. 28, 2014), no perm. app. filed. Subsequently, Defendant filed a motion
in the trial court seeking reconsideration of his eligibility for judicial diversion. The trial
court considered the motion and issued an order denying relief. Defendant appeals the
denial of the motion to reconsider. After a review, we determine that the appeal is not
properly before this Court. Consequently, the appeal is dismissed.

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

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which THOMAS T.
WOODALL, P.J., and JOHN EVERETT WILLIAMS, J., joined.

Michael D. Noel, Brentwood, Tennessee, for the appellant, Alex Hardin Huffstutter.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Glenn Funk, District Attorney General; and Fred Pickney, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                         OPINION
        Nearly five years ago, Defendant was charged with first offense DUI in Davidson
County. He was indicted for DUI and DUI per se on October 28, 2011. He sought
judicial diversion from the trial court. The trial court, determining that Defendant was
not a qualified defendant eligible for diversion, denied the application for judicial
diversion based on the DUI statute, Tennessee Code Annotated section 55-10-401, and
State v. Vasser, 870 S.W.2d 543 (Tenn. Crim. App. 1993). Thereafter, Defendant entered
a nolo contendere plea to DUI; the State dismissed the DUI per se charge. As part of the
plea agreement, Defendant reserved the following certified question of law pursuant to
Tennessee Rule of Criminal Procedure 37(b)(2)(A): “Does T.C.A. § 40-35-313 (2007)[ ]
exclude driving under the influence of an intoxicant as prohibited by T.C.A. § 55-10-401
as a type of offense for which judicial diversion was not available to [the appellant] who
was otherwise qualified for judicial diversion? (Prior to the July 1, 2011 amendment to
the statute).”

       On appeal, this Court determined that the denial of judicial diversion was not
dispositive, commenting:

      [T]he trial court ruled that [Defendant] was not entitled to diversion
      because he had been convicted of DUI, which precluded eligibility for
      judicial diversion.      Accordingly, the trial court did not examine
      [Defendant‟s] qualifications for judicial diversion. Regardless, if this
      [C]ourt were to decide that [Defendant], as a DUI offender, was eligible for
      judicial diversion, the result would be for us to remand to the trial court for
      a determination of [Defendant‟s] qualifications for diversion. This [C]ourt
      has previously explained, “„An issue is dispositive when this [C]ourt must
      either affirm the judgment or reverse and dismiss. An issue is never
      dispositive when we might reverse and remand.” State v. Oliver, 30
      S.W.3d 363, 364 (Tenn. Crim. App. 2000) (quoting State v. Wilkes, 684
      S.W.2d 663, 667 (Tenn. Crim. App. 1984)).

Alex Hardin Huffstutter, 2014 WL 4261143, at *2. As a result, this Court dismissed the
appeal and the case was “remanded to the Criminal Court of Davidson County for the
execution of judgment and the collection of costs accrued below.” State v. Alex Hardin
Huffstutter, No. M2013-02788-CCA-R3-CD (Tenn. Crim. App. Aug. 28, 2014)
(judgment). Defendant did not seek permission to appeal pursuant to Rule 11 of the
Tennessee Rules of Appellate Procedure. Thus, this Court‟s August 28, 2014 opinion
became the law of this case.

       With neither explanation nor authority, Defendant filed a motion to set a diversion
hearing “pursuant to the Court of Criminal Appeals opinion in this cause” in the trial
court on January 23, 2015. Later, Defendant filed a “Motion and Memorandum for Re-
consideration of Whether Defendant is an Eligible and Qualified Defendant Pursuant to
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T.C.A. § 40-35-313 (2007).” In the motion, Defendant sought a hearing to “reconsider
Defendant‟s entitlement and qualifications for judicial diversion.”

        On March 11, 2015, the trial court held a hearing on Defendant‟s qualifications for
diversion. At the hearing, the State allegedly argued that the trial court did not have
jurisdiction to consider the diversion application.1 Defendant filed a brief in the trial
court in which he argued that the trial court retained jurisdiction because the “judgment
of guilt ha[d] not been entered.”

        On May 8, 2015, the trial court entered a “Memorandum Opinion” in which the
trial court determined that Defendant was “an otherwise ideal candidate for diversion”
but that “the law has regrettably tied this court‟s hands and left it no choice but to deny
the motion.” On May 11, 2015, the trial court entered an order denying the motion and
putting Defendant‟s “agreed upon sentence pursuant to his plea agreement [into] effect.”

       On May 21, 2015, Defendant filed a notice of appeal from the “denial of
defendant‟s eligibility for judicial diversion.” On May 27, 2015, the trial court entered a
stay of the judgment of conviction “pending appeal.”

                                              Analysis

        At the outset, we would be remiss if we did not at least acknowledge that this is
the Defendant‟s second appeal and has a distinct feeling of déjà vu. Well over a year
ago, when Defendant entered the nolo contendere plea and reserved a certified question,
this Court addressed what Defendant is now attempting to address again—whether DUI
is an offense for which judicial diversion is available. Defendant‟s motion filed after
dismissal of the appeal, in which he seemingly argued that the holding of this Court
somehow entitled him to a hearing “to reconsider Defendant‟s entitlement and
qualifications for judicial diversion,” is antithetical to this Court‟s actual holding. On
appeal, this Court determined that Defendant was not entitled to relief because the
certified question was not dispositive of the issue. Alex Hardin Huffstutter, 2014 WL
4261143, at *2. In other words, we determined if the question were answered in
Defendant‟s favor, he would not have been entitled to a dismissal of his conviction but
merely a remand for a determination of whether he was a candidate for diversion. Id.
This Court‟s opinion did not direct the trial court to make such a determination and, once
our mandate issued, it had no basis to do so. “Under the law of the case doctrine, an
appellate court‟s decision on an issue of law is binding in later trials and appeals of the
same case if the facts on the second trial or appeal are substantially the same as the facts
in the first trial or appeal.” Memphis Pub. Co. v. Tenn. Petroleum Underground Storage

       1
         The transcript of this hearing is not included in the technical record on appeal. We base our
understanding of the State‟s argument on what we are able to glean from the technical record.
                                                   -3-
Tank Bd., 975 S.W.2d 303, 305 (Tenn. 1998) (citing Life & Cas. Ins. Co. v. Jett, 133
S.W.2d 997, 998-99 (Tenn. 1939); Ladd v. Honda Motor Co., 939 S.W.2d 83, 90 (Tenn.
Ct. App. 1996)).

        Additionally, the Tennessee Rules of Criminal Procedure do not recognize a
motion to reconsider, State v. Turco, 108 S.W.3d 244, 245 n.2 (Tenn. 2003), and
Tennessee Rule of Appellate Procedure 3(b) does not provide for an appeal as of right
from the denial of a motion to reconsider. Therefore, this Court does not have
jurisdiction over the denial of the motion to reconsider.

       To the extent Defendant is arguing that the execution of the judgment was stayed
pending appeal because the trial court entered an order doing so, we note that the order
was filed in the trial court after Defendant filed the notice of appeal herein. The
jurisdiction of the Court of Criminal Appeals attaches upon the filing of the notice of
appeal and, therefore, the trial court loses jurisdiction. State v. Pendergrass, 937 S.W.3d
834, 837-38 (Tenn. 1996) (citing State v. Peak, 823 S.W.2d 228, 229 (Tenn. Crim. App.
1991)), reh’g denied (Tenn. Nov. 12, 1996); cf. Spence v. Allstate Ins. Co., 883 S.W.2d
586, 596 (Tenn. 1994). After the filing of the notice of appeal, the trial court only retains
limited power to correct clerical mistakes in judgments and other errors in the record
arising from oversight or omission. See Tenn. R. Crim. P. 36 (“Clerical mistakes in
judgments, orders, or other parts of the record and errors in the record arising from
oversight or omission may be corrected by the court at any time and after such notice, if
any, as the court orders.”).

       Finally, Defendant‟s motion was not and could not be deemed a motion for
reduction of sentence under Tennessee Rule of Criminal Procedure 35 and was not, in
substance or form, a motion to withdraw a guilty plea under Tennessee Rule of Criminal
Procedure 32(f).

        For all of the above reasons, Defendant‟s appeal is not properly before this Court.
Consequently, the appeal is dismissed, and the matter is remanded to the trial court for
execution of the December 2, 2013 judgment as entered. The time for finality of
Defendant‟s DUI conviction and sentence is long overdue. Notwithstanding Defendant‟s
filing a petition to appeal to the Supreme Court, Defendant shall commence service of his
period of incarceration within thirty (30) days of entry of this Court‟s judgment. See
T.C.A. § 55-10-402(f)(1). Should Defendant file an application pursuant to Tennessee
Rule of Appellate Procedure 11, his period of incarceration shall commence within thirty
(30) days after notice of denial, should the application be denied by the Supreme Court.


                                                  _________________________________
                                                  TIMOTHY L. EASTER, JUDGE
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