### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON May 7, 2002 Session
STATE OF TENN ESSEE v. ERICA J. HARTWELL Direct Appeal from the Circuit Court for Tipton County

No. 5470 Joseph H. Walker, Judge

No. W2001-03116-CCA-R3-CO - Filed June 9, 2003

In thi s appeal the appellant, Erica J. Hartwell, contends that the Circuit Court of Tipto n Co un ty, Tennessee, erred in deny ing her a writ of certiorari to re view andvacate the orders of the Tipton County General Sessions Court revoking the appellant’s probation. She maintains that the general sessions court conducted

the probation revocation hearing without proper notice and without informing her of her right to an attorney at the hearing and her r

ight to a ppeal. We

hold that under the circumst

ances th e writ of certiorari is not available. The judgment of the circuit court is therefore AFFIRMED. Tenn. R. App.P. 3; Judg ment of t he Trial Court is Affirm ed.
J ERRY L. S MITH , J., delivered the opinion of the cou r t, in which D AVID G. H AYES and A LAN E. G LENN , JJ., joined.
C. Michael

R obi ns, Mas sey , Mc Clus ky & Ro bbi ns, Mem

phi s, T enn ess ee, for

app ell ant , Er

ica J. Hartwell.
Paul G. Summers, Attorney Gene ral & Reporter; P. Robin Dixon, Jr., Assista nt Attorne

y General ; Elizabeth Rice, District Attorney Gene ral, for appellee, State of Tennessee.
OPINION Factual Backgr

ound Upon her guilty

pleas for three counts of theft under $500, on Octobe r 12, 1 999, the de fendantrecei ved a tota l sentenc e of 11 mon

ths and 29 d ay s suspended to time se rved. Asa condition of her

probation, the defendant was ordered by the Tipton County General Sessions Court to pay $339.75 in restitution within sev en day s and the r emaining balance and cour t costs within 90 day s. When the de

fendant didnot meet with her

probation officer or pay

restitution, a warrant dated October 19, 1999 was issued. The defendant contends that she was arrested on

October 11, 2000. A probation revocation hearing was he ld on October 17, 2000, and the defendant was incarcerated1 In 200 2 the G enera l Assem bly of T enne ssee am end ed this sta tute to sp ecify ho w ap pea ls in multip le par ty

comparative fault

cases are to be appealed from g enera l session s cou rt to the cir cuit co urt. In all oth er resp ects the sta tute is i dentic al t o the ver sion s et out above. -2- for fail ure to pay restitution and failure to report to her probation officer. The defe ndant was later released and returned

to county probation on June 19, 2001. On September 4, 2001, the defendant filed a Petition for Writs of Constitutional Certiorari and Supersedeas, requesting that the trial cour t vacate the Octob er 17 ord

er that revok ed her probation and the June 19 order that placed her on probation a second time. The trial court denied the defe ndant’s request to vacate the orders of the Tipton County General Sessions Court. The appe al to this Court followed.

Applicability of the Writ of Certiorari
The writ of certiorari derives from Article 6, Section 10 of the Constitution of Tennessee, but the practic e with re spect to ho w and when it may be obtained is set out in statutory provisions enacted by t h e General A ssembly of Tennessee. Tragle v. Burde tte , 438 S.W.2d 736, 737 (Tenn. 1969). To da y, the statutory provisions reg arding the writ are found at Tenne ssee Code Annotated section 27-8-101, et seq . The remedy of certiorari is not available as of right, b ut is only to be granted under unusual or extraordinary circumstances. Clark v. Metropolitan Gov’t of Na s hville , 827 S.W.2d 31 2, 316 (Te nn. App. 1 991). The

writ may also not take the plac e of an appeal when an express provision for an appeal is available. Burdet te , at 737; Sullivan v. Cox , 167 Tenn. 253, 68 S.W.2d 933 (1934); although, there are some circumstances suc h a fr aud, contrivance by the opposing party or the c ourt, or the willful or negligent act of the cour t clerk that will excuse the failure to pursue an available appeal a nd permit review by

way of c ertiorari. See e.g. McMurry v. Milan , 32 Tenn 17 6 (1852); Belcher v. Belcher , 18 Tenn. 1 21 (1836) ; Kearney v. Jackson , 9 Tenn. 294 (1830 ); Genera

l Motors Ac ceptanc e Corp. v. Dennis , 675 S.W.2d 489 (Tenn. App. 1984). At the time the general sessions court revoked t he appellant’s probation, Tennessee Code Annotated section 27-5-108 (2000) 1 provided:

(a) Any party

may appea

l from an adverse decision of the general sessions c ourt to the

circuit c ourt of the county within a period of ten (10) da ys o n comply ing with t

he provis ions of this chapter. (b) This provision allowing ten (10) day s in which t o perfect an appeal s hall apply in every county of Tenne ssee, any provision of any private act to the contrary

notwithstanding, it being the legislative intentto establish auniform period of ten (10) day in which any such appeal may

be perfected in any

county in Tennessee

. (c) Any appeal s hall be he ard de no vo in the c ircuit co urt. (d) If n o appea

l is taken within the ti me provid ed, th e n execution may issue.2 The State contends t his ca se is moot because t he appell ant’ s sent ence expir ed on October 3, 20 01. Although the States makes a compelling argument, we believe that because the appellant ’s unsuccessf ul first try at pro batio n will
rema in on he r crimin al reco rd an d can be use d aga inst her at sentenci ng for any future cri minal c onvict ions s he may incur, this appeal shou ld not be d ismissed on gro unds of mo otness. -3- The Attorney Gene

ral of this state has opined that this statute is the appropriate ve hicle t o re vi ew a revocation of probation in genera l sessions court. See 2001 WL 1218266 (Tenn. A.G.). We are persuaded

the Attor ney Genera l is correct in his op inion. I t theref ore appe ars that t

he writ of certior ari is not p

roper in this case unless the appellant can demonstrate suffic ient excuse for not availing herself of her appellate rights under section 27-5-108 (2000). In the instan

t case the appellant’s general sessions probation was revoked on October 17, 200 0, she was in

carce rated a nd retur ned to pro

bation on June 19, 2001 . The pet iti on for wr

it o f certiorari was not filed until September 4, 2001. 2 The appellant offers no excuse for this delay a nd the failure to pursue her

statutory appea

l in a timely fashion other than to maintain that the geneal sessions judge did not inform her of her right to an attorney and to appeal his decision. Whether the general sessions judge di d or did not inform the

appella nt of her rights does not, in

these circumst ances, excuse

her fro m taking

steps on he

r own to c ontact a

n attorne y a nd/or to a vail her self for an appeal. Having bee n represented

by the public defe

nder on the origina

l charg es, one w ould think th e appellant

would have made efforts to contact that attorney and inform counsel of her alleged predicament. The appellant makes noallegation that she was isolated by the authorities or prevented from contacting an attorney . Indeed, she ultimately

did find an attorney a

lmost a year a

fter the probation revocation proceeding. Our sys tem of cr

iminal justi ce make s extraord inary effortsto keep individuals caught up in it informed of their l egal r

ights. I f it does, on occa sion, fai l to do so, as the appellant suggests, the effected individua

l s hould n ot be absolved of all responsibility for ta king measures to protect themselve s. We do not believe mere ignorance of a n individual as to his or

her appe llate rig hts is a sufficient basis for excusing the filing of an appe al and allowing reviewof the inferior tribunal’s actions by w ay

of cert iorari. T herefo re, the c ircuit jud

ge wascorrect to deny

the petiti on for the

writ of cert iorari.
Conclusion In light of the fore going, the judgment of the circ uit court is AFFIRMED.

___________________________________ JERRY L. SMITH, JUDGE