### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs A ugus t 11 , 200 4
STA TE OF TEN NES SEE v. SHER RY LY NN JOHNS ON
Appeal f romthe Circ uit Court for Robertson County No. 01-0425 John H. Gasaway, III , Judge

No. M2002- 01495-CCA -R3-C D - F iled Septem ber 8, 2004

F oll ow ing a

be nc h tria l, the De fe nd a nt, She rry L y nn John so n, wa s c on vic te d of a ssa ult , a Cla ss A misdemeanor. T he trial c ourt place d the Def endant on judicial diver sion. I n this appeal, the De fe nd a nt a sse rt s th a t th e tr ia l c ou rt mis int e rp re te d th e a ssaul t st a tut e a ndthat th e e vid e nc e is insufficient to support her conviction. Because t he Defenda nt was placed on judicial diver sion, no judgme nt of conviction h as b een entere d, and the De fenda nt has no appe al as of right unde r Tenne ssee Rule of A ppellate Proc edure 3. Acc ording ly , the appe al is dismis sed. Tenn. R. App . P . 3; Appeal Dism issed

D AVI D H. W EL L ES , J ., delivere d the opinion of the court, in which N OR MA M C G EE O G LE and R OB E R T W. W EDEMEYER , J J ., joined.

L ee B orthick, Spring field, Tenne ssee, f or the a ppellant, Sherry

L y nn J ohnson.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; El iza be th T . Ry a n, As sis ta nt A tto rn e y Ge ne ra l; J ohn Carney , District Attorney Gene ral; and D ent Morriss, Assistant District Attorney Gene ral, for the appe llee, State of Te nnessee
. OP IN ION

We will briefly

discuss the underly ing f

acts. The Def

endant’ s brother had been arr ested by loca l la w e n f

o r c e me n t a u th o r it ie s
. D u r in g h is arr e s t, h e w a s in ju r e d a n d w a s tr a n s p o r ted to the ho sp ita l. U po n h e ari ng of he r br othe r’ s a

rr e st a ndinj ur ie s, the De fe nd a nt w e nt t o th e ho sp ita l to inquire about his well being

. Whil e there she encounte red a law enfor ceme nt of fice r who ha d been involved in the arr est of her b ro ther. An a ltercation ensued, during which the of fice r stated the Def endant struc k him in the chest. The of fice r spra y ed the De fenda nt with mace , handcuf fed he r and place d her unde r ar

rest. She wa s char g ed with assault and r esisting a rre st.-2-

Following a benc h trial, the De fenda nt was convicted of assault. See Tenn. Code Ann. § 39- 13-101(a )(2) . The trial judg e dismissed the cha rg e of r esisting a

rre st. Subsequently , by

“ag ree ment of the pa rties,” the D efe ndant was pla ced on “ Post Trial Dive rs i o n , ” wh ich is often re fer red to a s judicial diversion. See Te nn. Code Ann. § 40-35- 313(a) (1)( A). Pursuant to this statute, no judg ment of convic tion was enter ed and the proceeding s wer e deferr ed for six months. The Def endant f iled a notice of

appea l, and on appe al she a sserts that the trial court mi sinterpre ted t he assault statute and that the evidenc e is insufficient to support her conviction.

Rule 3 of the Te nnessee Rules of Appellate Procedur e identifies those cases which may be appea led as a

matter of right. Ge nera lly , such an a ppeal lies “ from any

judgm en t of conviction enter ed by a trial court from which an appea l lies to the Supreme Court or Court of C ri m i nal Appea ls. . . .” Tenn. R. App. P. 3(b). I n addition, an appeal of rig ht is available when the tr ial court has denie d or re voked probation, and in certain other c ircumstance s not applicable he re. See id.

Be cause no judgme nt of conviction is enter ed when judicial diversion is g rante d, this Court has held that a

defe ndant h as n o appea l as of rig ht under Te nnessee Rule of Appellate Procedur e 3(b). See State v. Norris, 47 S. W

. 3 d 4 57, 462-63 (Te nn. Crim. App. 2000); State v. Adrian Lumpkin, No. W2002-00 648-CCA-R3-CD, 2002 WL 31730894, at * 1-2 (T enn. Crim. App. J ackson, N ov. 27, 2002). See a lso St ate v. Teresa Docke ry , No. E2001-01493- CCA-R3-CD, 2002 WL 1042187, at * 3 (Te nn. Crim. App., Knox ville, May 23, 2002). We note that an appe al filed imprope rl y u n der Rule 3 may be tre ated a s an application for
e xtra or din ary

app e a l pu rs ua nt t o Rule 10 of the Te nn e sse e Rul e s o f A pp e lla te Pr oc e du re . Se e Sta te v. Norris, 47 S.W.3d at 463. Here , howeve r, the trial c ourt ce rtainly had jurisdiction to determine the Def endant’ s g uilt and had the author ity to place he r on judicial diversion

. Un der the circ umstances p re s en t ed i n this case, it is our opinion that the Def endant doe s not meet the
re qu ir e me nts fo r the g ra nti ng of a Rul e 10 e xtra or din ary

app e a l.

Acc ording ly , beca

use we have c oncluded that this matter is not prope rly befor e us, the a

ppeal is dismi ssed.

___________________________________ DAVI D H. WEL LES, J UDGE