1 This court has in fact previously entertained an appeal as of right for a defendant who was

convictedat a jury trial and placed on judicia

l d iversion. S ee State v. Stephanie Y. Dowagiac , 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE STATE OF TENNESSEE v. ROBER T A. NORRIS and LIDA MEAD OR Direct Appeal from the Criminal Court for Cumberland County

No. 4860A & B Leon Burns, Jr., Judge

No. E1999-00485-CCA-R3-CD - Decided June 2, 2000

J UDGE R ILEY concurring in part; dissenting in part. I concur in all respects wi

th the scholarly

opinion by Judge Witt relating to the invalidity of the search w arrant an d dismissal of char ges as to the Defe

ndant Norris. How

ever, I respec

tfully disagree with the majority's conclusion that Defendant Meador, who rec eiv ed judicial diversion, cannot appeal to this

court pursuant to Tenn. R. Crim. P. 37(b)(2)(i). I would not dismiss he r appeal. The leadopinion relies upon a minority

position in State v. Stephen J. Udzinski and Donna Stokes , C.C.A. No. 01C01-9610-CC- 00431, Dickson Coun

ty (Tenn. Crim. App. filed February 5, 1998, at Nashville), no perm. to app. filed , and also relies upon State v. Glenna Kidd , C.C.A. No. 01C01-9808-CR-00344, Wilson County (Tenn. Crim. App. file d May 13, 1999, at Nashville), no perm. to app. filed . In Glenna Kidd defendant entered a guilty plea, was granted judicial diversion, and filed a pro se notice of appeal contending she was coerced into entering the guilty plea. She was attacking the validity

of her guilty plea and did not enter her guilty plea reserving a certified question of law pursuant to Te

nn. R. Crim. P. 37(b)(2). Clear ly, she did

not come within the r

equirements of Tenn. R. Crim. P. 37(b). Although the panel concluded that judicial diversion cannot i mmediately give rise to an appeal

as of right, this

conclusion was unnecessary for the disposition of the appeal. Accordingly, I believe Glenna Kidd is distinguishable. The essence of the ma

jority's holdi ng is that one who en ters a guilty plea a

nd consents to judicial diversion cannot r eserve a certi

fied question of la

w pursu a nt to Tenn. R. Crim. P. 37(b), since there is no "judgment of conviction." I would note that a defendant may also be placed on judicial diversion even after a contested jury trial, assuming the defendant is agreeable. See Tenn. Code Ann. § 40-35-313(a)(1)(A). According to the logic of the majority opinion, such a defendant would have no appeal as of right relating to the guilty verdict since there would be no “judgment of con viction.” 1 Acc ording to the majority, such a person could appeal the guilty verdict as of rightC.C.A. No. 02C01-9610-CR-00353, Shelby County (Tenn. Crim. App. filed October 13, 1997, at Jackson) (defendant challenged sufficiency of the evidence).

2 As stated in footnote 1, this court has previously entertained such an appeal as of right.
3 Tenn. Code Ann. § 40-11-130(b) requires a defendant on “post-ple a diversion,” whi ch is another name for judicial diversion, to post bond upon anappeal to this court. Defendants on “postplea diversion” are placed in the same category as defend ants on pre-tria l diversion, commun

ity corrections,

probation and defendants who are fined. Id . Implicitly, this statute recogniz

es the same right to appeal by all such defendants. -2- only if and when judicial diversionwere later revoked and defendant sentenced by a “judgment of conviction.” I do not believe tha t such an unusual r

esult is contemplated by the Tennessee Rules of Appellate Procedure or the Tennessee Rules of Criminal Procedure. It would further ap

pear that such a d

efendant could

not secure an interlocutory extraordinary appeal purs uant to Tenn. R. App. P. 10 upon agreeing to judicial diversion. To secure an extraordinary appeal, a defendant must show either that (1) the trial court “s o far departed from the accepted and usual course of judicial proceedings as to require immediate review;” or (2) the appeal is necessary for a “complete determination of t

he action on appe

al as otherwise pr

ovided in these rules.” Tenn. R. App. P. 10(a). Such a high standard for reviewwould not be met in the ordinary case. The majority opinion places a defendant securing judicial diversion in a “catch 22.” If a defendant pleads guilty

and agrees to judicial diversion, such a defendant could not appeal reserving a certified question of law. On the other hand, if such a person pled guilty and agreed

to a judgment of conviction with a sentence imposing the same terms of probationas would be imposed for judicial diversion, such a

person could appeal reserving a certified question of law. Likewise, if a defendant were convicted at a jur

y trial and agree

d to judicial divers

ion, such a defen

dant w ould f

orfeit a sufficiency of the evidence appeal as of right at the time he or she agreed to judicial diversion. 2 On the other hand, if such a defendant rejected judicial diversion and dema nded a sentence

resulting in a judgment of

conviction, such a defendant could appeal as of right at that time. Surely, our rules do not contemplate such a “catch 22" result. Te nn. R. Crim . P. 37(b) express ly authorizes an a

ppeal from an “or

der” as well as a “judgment.” Reading the Tenne ssee Rules of Appe

llate P rocedure and the Tennessee Rules of Crimin al Procedure in pari materia with the judicial div

ersion statute, I c

an only conclude t

hat a person receiving judicial diversion based upon a guilty plea a nd ordered to be on probation can immediately

appeal that order by properly reserving a certified question of law; and, similarly, I can only conclude t hat a defendant convicted at a jury trial who agrees to judicial diversion may immediately appea

l as a matter of ri

ght. 3 F or these reasons, I respectfully disagree with the majority’s dismissal of D efendan t-3-

Meador’s appeal. I would vacate her plea and dismiss the charges against her.