### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON August 7, 2001 Session STATE OF TENNESSEE v. MARCUS J. TURCO Direct Appeal from the Criminal Court for Shelby County No. I98-00168 John P. Colton, Jr., Judge

No. W2001-01085-CCA-R3-CD - Filed September 14, 2001

This is an appeal by the State of Tennessee from an order g ranting the defendant judicial diversion for the offense of sexual battery. This order was the result of a Tenn. R. Crim. P. 35 motion to reducea pre vio usl y ord ered sen ten ce of one year i n th e cou nty j ail w ith all time suspended and supervisedprobation for one year. Although the Tenn. R. Crim. P. 35 motion was timely filed, the trial court did not act upon the motion until after the original probatedsentence had been fully served and ex pired. Two issues of first impression are presented in this appeal. We conclude that (1) judicial diversion is not a “sentence” and, therefore, may not be gran ted as Rule 35 relief; and (2) a trial court may not modify a sentence under Rule 35 after the sentence hasbeen fully served and expired. Accordingly, we reverse the judgment of the trial court. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Criminal C

ourt Reversed; Remanded
J OE G. R ILEY , J., delivered the opinion of the court, in which A LAN E. G LENN , J., joined. D AVID G. H AYES , J., filed a concurring opinion. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney Gene ral ; William L. Gibbons, Dis trict Attorney

General; and Pau

l Thomas Hoover, Jr. , Assist ant Distri ct Attorney General, for the appellant, State of Tennessee. Irvin M. Salky (at

hearing and on

appeal) and Stephen I. Cohen (at hearing), Memphis, Tennessee, for the appellee, Marcus J. Turco.

OPINION
On April 23, 1999, def

endant entered a plea of guilty to the offense of

sexual battery

with the understanding that the trial court would either place the defendant on judicial diversion or o therwise determine the appropriate sentence. After a sentencing hearing , the trial court

entere d extensive written findings of fact and conclusions of law denying judicial diversion and imposing1 On July 27, 2000, the motion was discus sed at an i n-chamb ers

con fer enc e at whi ch t imedefense counsel noted thatthe motion had bee n pending during

the entire pr

obationary pe

riod but had be

en continued on pr

evious occas

ions for variou s reasons.

2 Our suprem e court ha s never ru led on this sp ecific issue, although i

t denied per

mission to appeal i

n Biggs

. (continu ed...) -2- a one-year suspended

sentence. An order of probation was entered June 28, 1999, at which time the defendant formally began serving his time on probation.
On July 27, 1999, defendant filed a notice of appeal. On the same date, defendant filed in the trial court a

“MOTION FOR NEW

TRIAL/HEARING, TO RECONSI DER JUDGMENT AND TO CORRECT OR REDUCE SENTENCE.” Defendant’s motion was not heard in the trial court prior to the expiration of defendant’s probation in June 2000. 1
The motion was considered by the trial court on November 30, 2000, five months after the pre viouslyimposed sentence had been fully served, at which time the trial court agreed to the defendant’s request for judicialdiversion. On December 8, 2000, an order wasentered placing the defendant “on Judicial Diversion for a period of one year, upon the condition that Petitioner receive counseling from Dr. John V. Ciocca on a regular basis during this one year per iod.” The order

did notindicate the eff

ect, if any, of th

e one year of supervised pro

bation already

completed. The sta

te timely filed notice of appeal on December 19, 2000.
On January 12, 2001, defendant filed a motion to withdraw his notice of

appeal. The motion was granted by this court on January 29, 2001.

JURISDICTIONAL ISSUE Generally , a trial court’s ju dgment becomes

final thirty

days after

its entry unle

ss a time l y notice of appeal or a sp

ecified post-tri

al motion is filed. Te

nn. R. App. P. 4(a) a

nd (c); State v. Moore , 8 14 S.W.2d 381, 382 (Tenn. Crim. App. 1991). The jurisdiction of the appellate court attaches upon the filing of a notice of appea

l; therefore, the trial court loses jurisdiction and has no power to modify

or amend the judgment after the filing of the notice of appeal. State v. Penderg rass , 937 S.W.2d 834, 837 (Tenn. 1996). Defendant filed a notice of appeal on July 27, 1999; therefore, the filing of the notice of

appeal would ordinarily

divest the trial co

urt of any f

urther jurisdicti

on to modify the judgment of conviction.
However , defendant s imultaneously filed with the notice of appeal a Tenn R. Crim. P. 35 motion for

a reduction of sentence. This court has determined that the filing of a notice of appeal does not divest the trial court of jurisdiction to hear a timely filed Rule 35 motion. State v. Bi ggs , 769 S.W.2d 506, 509 (Tenn. Crim. App. 1988). 2 Thus, we conclude the trial court retained2 (...continued)

(Tenn. Apri

l 3, 1989 ). As wi

ll be a ppar ent sub seq uent ly i n th is opi nio n, d ual jur is dic ti onal con si der

ati on of the same issue creates som e very u nique p roblem s. See gen erally , State v. Bil brey , 81 6 S. W.2d

71, 75 ( Tenn . Cr

im. App. 1991). We dou bt that Tenn. R. Crim. P. 35 was int ended as a vehi

cle to re hear in the

trial court that

which w as specificall y considered and denied, while an appeal o f that same issue is pend ing. Ord inarily, the ap propriate remed y wou ld simply be an app eal. See Pendergrass , 937 S.W.2d at 837. Neverthel ess, we wil

l foll ow the publis

hed Biggs hol ding fo r purposes of

this appeal. See Tenn. Sup. Ct. R. 4(H)(2) (provi ding that opinions i

n the official

reporter are consi

dered controlling authority ). -3- jurisdiction to consider the mot ion since the requ

est was t imely made wi thin 120 days after the judgment was entered; however, the trial court had no jurisdiction to modify the sentence other than pursuant to Rule 35.

JUDICIAL DIVERSION AS A REDUCTION IN SENTENCE The stat e conte nds Rule 35 does not authorize a modification of a judgment of conviction to judicial diversion. This presents an issue of first impression. The state’s argument is persuasive. Whilejudicial diversion has been loosely referred to in cases as a “manner of service” of a sentence, it is fundamentally different. See , e.g ., State v. Harr is , 953 S.W.2d 701, 702 (Tenn. Crim. App. 1996) (referring to the “manner of service o f the sentence, including the availability of judicial diversion”). Judicial diversion is not listed as a “sentencing alternative”under Tenn. Code Ann. § 40-35-104. Although judicia l diversion follows

a finding of gu

ilt or plea of

guilty, a person placed on judicial diversion is not sentenced for the crime; instead, no judgment of conviction is entered. See State v. Johnson , 15 S.W.3d 515, 517 (Tenn. Crim. App. 1999). Upon the granting of judicial diversion, all further

proceedings are deferred with the person placed on probation. Tenn. Code Ann. § 40-35-313(a)(1)(A). If the per son satisf actorily c ompletes the perio

d of probation, he

or she is discharged, the case

dismissed, and all records expunged. Tenn. Code Ann. § 40-35-313(a)(2) and (b). If the person violates probation, judi ci al diversion may be revoked and a sentence imposed. Tenn. Code Ann. § 40

-35-313(a)(2) ; Johnson , 15 S.W.3d at 518. The Committee Comments to Rule 35 provide that the “ modification perm

itted by this r

ule is any modific ation otherwise permitted by the law when the judge originally imposed sentence including but not limited to a tr ansfer to the wor khouse or probati

on to otherwise eli

gible defendants.” Nevertheless, Rule 35 expressly provides that the “modification can only be as to any sentencethat the court could have originally imposed.” We conclude that judicial diversion is not a “sentence” and is not authorized by Rule 35.
We reject defendant’s contention that our Biggs ruling authorized a sentence reduction t o judicial diversion. See 769 S.W.2d at509. Biggs concerned a request for reduction to a sentence withprobation, not

judicial diversion. Id . Likewise, we reject defendant’s contention that our recent case of State v. Hollie D. Ca mpbell , C.C.A. No. E2000-0 03 73-CCA-R3-CD, 2001 WL 739240 (Tenn. Crim. App. filed July 2, 2001, at Knoxville), recognized judicial diversion as a “sentence.” The issue in Campbell

rela ted to the length of sentence that could be imposed upon revocation of3 Fed. R. Cr. P. 35 has since been a mended several t

imes and prese

ntly has no

provision authorizi

ng a defendant to seek reduction of a sent ence except for “arit

hmetical, techni

cal, or other cl

ear error.” See Fed. R. Cr. P. 35 (2001).

-4- judicial diversion. Our court specifically recognized that “the very

issuance of judic

ial diversion is t o defe r no t on ly th e ent ry ofthe jud gmen t, b ut a ny sentenceat that time.” Camp bell , 2001 W L 739240, at *2 (emphasis added).
For these reasons, the trial court was without authority to grant judicial diversion as a form of relief under Tenn. R. Crim. P. 35.

REDUCTION AFTER SEN TENCE EXPIRATION
Even assuming the tria l court had authority to grant judicial diversion under Rule 35, that would notnecessarily

resolve this appe

al. The state arg

ues that the trial c

ourt may not g

rant a Rule 35 modific ation aft er the sentence has been fully

served and expire

d. This too is an issue

of first impression. In order to resolve this issue, an analysis of Rule 35 is necessar y. Rule35 was not a

part of our original Rules of Criminal Procedure, but was added in 1984. Although somew h at similar at the time to its federal counterpart, Fed. R. Cr. P. 35, it is far more limited. 3 See Tenn. R. Crim. P. 35 Committee Comments. Rule 35 provides extraordinary relief, does not authorize the stay of the sentence original ly i mposed, and does no

t entitle a defend

ant to bailpending an appeal of an adverse decision. See Committee Comments. Although not expre ssly stated, it is implicit that prom pt action upon a Rule

35 request is necessary in order for the defendant or the state to seek meaningful appellate relief. Unde rd efendant’s theo

ry, a timely

filed Rule 35 motion t

olls the finality

of a judgment in the trial court until the trial court rules, even months or years after the sentence ha s been fully served. Under this theory, even if the appellate court affirmed the denial of judicial diversion, the pending Rule35 motion in the trial court would prevent the finality of the judgment and still allow the trial court to subsequently

grant judicial d

iversion. This is co

ntrary to a

ll principles of the

fin ali ty o f judgments. The f

ollowing scenar

io is possible under

this theory: (1) the trial court denies judicial diversion, sending the defendant to

the state penitentiar

y for three

years; (2) that denial is appe aled; (3) the appellate co

urt affirms the de

nial;4 We recognize defendant has been placed in a proced ural dilem ma to the extent that h e timely re quested Rule

35 relief, ev entually se cured an order for judicial dive rsion, dism issed his orig inal appe al, and has now had the order of judicia l divers ion set aside by this court. We also note our rul ings regar

ding Rule 35 are

matters of

first impression in this state. Altho ugh w e in no way are indicating whether t his court would entert

ain a late-f

iled notice of appeal

from the original de nial of judic ial diversion , such a req uest is not pr ohibited b y our ru ling in the presen t appeal. See Tenn. R. App . P. 4(a) (stating that timely f iling of no tice of app eal is not jurisd ictional bu t may b e waive d). -5- (4) after

the penitentiary sentence ha s been fu lly served, the trial court grantsjudicial diversion under a previously and timely filed Rule 35 motion; and (5) a further appeal is filed by the state. Such a scenario w

as not contemplate

d by Rule 35 or the Tennessee Rules of Appellate Procedure.
Our view is supported by federal cases decided under the pre vious version of Fed. R. Cr. P. 35. The previous version of the federal rule provided that the trial court could “reduce a sentence within 120 days after the sentence was imposed. . . .” Fed. R. Cr. P. 35(b)(1979). Under the literal language of the rule, it

would appear the federal trial court could not act upon a timely filed motion beyond the 120 day time period. However, most federal courts interpreted the rule to allow the trial court to retain jurisdiction for

a reasonable period of time to act upon the motion. See United States v. DeMier , 671 F.2d 1200 (8 th Cir. 1982); United Sta tes v. Men

doza , 581 F.2d 89 (5 th Cir. 1978); UnitedStates v. S tollings , 516 F.2d 1287 (4 th Cir. 1975) . Although no fixed time limit dictated whether the federal trial court had acted within a reasonable time in ruling upo n a m otion for reduction, reasonableness was “evaluated in light of the polic

ies supporting the

timelimitation and the reasons for the delay

in each case.” United States v. Smith , 650 F.2d 206, 209 (9 th Cir. 1981).
We conclude that a ruling upon a timely Rule 35

motion should be made

within a reasonable periodof time . We further conc lude that, at the ve

ry least, th

e trial court lose

s jurisdiction to consider a Rule 35 motion once the previously imposed sentence has been fully served and expired.

CONCLUSION
For the above reaso

ns, we reverse

the judgment of thetrial court. The case is remanded for entry of a judgment of conviction consistent with that which had previously been enter ed. Th e judgment should note that the sentence has been fully served.4

___________________________________ JOE G. RILEY, JUDGE