IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 18, 2009

STATE OF TENNESSEE v. DARYL POWELL

Direct Appeal from the Circuit Court for Sequatchie County

No. 4160 Thomas W. Graham, Judge

No. M2008-02510-CCA-R3-CD - Filed June 8, 2010

The Defendant-Appellant, Daryl Powell, appealsfrom the Sequatchie County Circuit Court’s

order denying his motion to determine the conditions and status of his probation and

requiring him to provide a blood sample to the DNA database, which was entered more than

four years after he was sentenced for his conviction for incest, a Class C felony. In his

appeal, Powell argues that he complied with the provisions of Tennessee Code Annotated

section 40-35-321 when he submitted a blood sample to the DNA database during the

investigation of the charges against him in this case. Upon review, we conclude that Powell

does not have an appeal as of right pursuant to Tennessee Rule of Appellate Procedure 3(b).

Accordingly, we dismiss the appeal.

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

CAMILLE R. MCMULLEN,J., delivered the opinion of the court, in which JERRY L. SMITH and

THOMAS T. WOODALL, JJ., joined.

Steven G. Moore, Fort Oglethorpe, Georgia, for the Defendant-Appellant, Daryl Powell.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney

General; J. Michael Taylor, District Attorney General; and Steven H. Strain, Assistant

District Attorney General, for the Appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

A Sequatchie County Grand Jury indicted Powell for the offenses of rape and incest

on April 14, 2002. Powell pleaded guilty to incest, a Class C felony, on February 11, 2003.

On February 23, 2004, the trial court sentenced Powell as a Range I, standard offender to a

sentence of six years, with one year to be served in jail followed by five years of probation.
The court ordered that Powell could participate in a work release program on weekdays after

serving ninety days in jail and ordered that Powell’s jail service was a condition of his

probation. The court also ordered Powell to submit a biological specimen for DNA analysis.

On October 20, 2008, Powell filed a motion to determine the conditions and status of

his probation. In this motion, he specifically objected to providing a blood sample for DNA

analysis because he had previously submitted a blood sample during the investigation into

the charges against him. Powell claimed that his probation officer had informed him that he

would issue an arrest warrant against Powell for a violation of his probation if he did not

provide a second blood sample to be submitted to the DNA database.

Motion Hearing. At the October 27, 2008 motion hearing, neither the State nor the

defense presented any proof. Defense counsel argued, however, that Powell’s blood sample

was obtained and entered into the DNA database by the Tennessee Bureau of Investigation

during Powell’s investigation, which was sufficient to comply with Tennessee Code

Annotated section 40-35-321. Counsel stated that he filed his motion to determine the

conditions and status of Powell’s probation because Powell’s probation officer informed him

that if he refused to submit a DNA sample to the Tennessee Bureau of Investigation to be

entered into the DNA database, then he would seek an arrest warrant for a violation of his

probation. The State responded that Tennessee Code Annotated section 40-35-321(d)(1)

requires that all defendants sentenced for committing a felony or misdemeanor that requires

them to register as a sexual offender after July 1, 1998 must submit a DNA sample. When

defense counsel argued that Powell should not be required to give a second blood sample,

the court stated, “I don’t even know . . . if what they did in the investigation would be

compatible with what they want to do to save [the DNA sample in the database].” Defense

counsel also argued that Powell should not have to undergo the painful procedure to submit

a second blood sample. Defense counsel and the trial court then had the following exchange:

THE COURT: [Powell] has to [provide the second DNA sample] because the

state legislature says he has to do it, it’s the law.

[DEFENSE COUNSEL]: Well, I understand that, Judge, but I mean, I feel he’s

complied with [Tennessee Code Annotated section 40-35-321]. Does it have

to be entered twice?

THE COURT: Apparently it was not entered [into the DNA database]. If you’re

saying that during the investigation, as part of a rape kit or something, they

took it, that’s not the same as giving a sample after it’s all been said and done

and he’s guilty, and something has to be sent off for all time with the

data[base], I can see why they might not have even been compatible [with]

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whatever they did initially. If that’s all he’s saying, he needs to comply with

the law.

On October 27, 2008, the trial court filed a written order denying Powell’s motion and

ordering Powell to submit a second biologicalsample pursuant to Tennessee Code Annotated

section 40-35-321 within a reasonable time period. Powell filed a timely notice of appeal.

ANALYSIS

Powell argues that the blood sample that was obtained during his investigation and

submitted to the Tennessee Bureau of Investigation fulfills the requirements of Tennessee

Code Annotated section 40-35-321. He also contends that Tennessee Code Annotated

section 40-35-321(e)(1), which requires collection of DNA samples at the time of an

individual’s arrest for a violent felony as defined in Tennessee Code Annotated section 40-

35-321(e)(3), was not in effect at the time of his arrest or the entry of his guilty plea. Powell

claims that the jail authorities failed to take his blood sample as required by Tennessee Code

Annotated section 40-35-321 when he was imprisoned during his ninety-day jail sentence

imposed by the trial court because the jail authorities were aware that they had already

collected a blood sample from him. He further emphasizes that a period of four years lapsed

from the time of his sentencing to the time that his probation officer threatened an arrest

warrant for his failure to submit a second DNA sample. Finally, Powell states that if this

court requires him to submit a second DNA sample, then he requests that his sample be taken

by buccal swab collection kit by a person authorized to obtain the sample pursuant to

Tennessee Code Annotated section 40-35-321(e)(1).

In response, the State contends that Powell has no appeal as of right pursuant to

Tennessee Rule of Appellate Procedure 3(b), thereby requiring dismissal of this appeal.

Alternatively, the State contends that the trial court properly ordered Powell to submit a

second DNA sample since Tennessee Code Annotated section 40-35-321(b) requires

individuals to submit DNA samples to be entered in the database following their conviction

for sexual offenses. See T.C.A. § 40-35-321(b), (d)(1). The State further argues that if the

DNA sample obtained from Powell prior to his conviction resulted in an unsatisfactory

“DNA footprint,” then Powell must “cooperate with authorities for purposes of registering

his DNA in the DNA database pursuant to Tenn. Code Ann. § 40-35-321.”

We must first consider whether Powell has an appeal as of right to this Court.

Tennessee Code Annotated section 16-5-108(a) states that this court has appellate

jurisdiction over final judgments of trial courts in criminal cases and “other cases or

proceedings instituted with reference to or arising out of a criminal case.” T.C.A. § 16-5-

108(a)(1), (a)(2). However, just because this court has subject matter jurisdiction does not

mean that Powell has an appeal as of right in this case. State v. Phillips, 968 S.W.2d 874,

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877 (Tenn. Crim. App. 1996) (concluding that “the fact that we have authority over this case

and the constitutional issue raised does not necessarily mean that the defendant has properly

appealed the case”). Tennessee Rules of Appellate Procedure 3, 9, and 10 are the typical

avenues for appeal. Rules 9 and 10 govern interlocutory appeals and are therefore

inapplicable to this appeal. Rule 3(b) provides:

Availability of Appeal as of Right by Defendant in Criminal Actions. In

criminal actions an appeal as of right by a defendant lies from any judgment

of conviction entered by a trial court from which an appeal lies to the Supreme

Court or Court of Criminal Appeals: (1) on a plea of not guilty; and (2) on a

plea of guilty or nolo contendere, if the defendant entered into a plea

agreement but explicitly reserved the right to appeal a certified question of law

dispositive of the case pursuant to and in compliance with the requirements of

Rule 37(b)(2)(i) or (iv) of the Tennessee Rules of Criminal Procedure, or if the

defendant seeks review of the sentence and there was no plea agreement

concerning the sentence, or if the issues presented for review were not waived

as a matter of law by the plea of guilty or nolo contendere and if such issues

are apparent from the record of the proceedings already had. The defendant

may also appeal as of right from an order denying or revoking probation, and

from a final judgment in a criminal contempt, habeas corpus, extradition, or

post-conviction proceeding.

Tenn. R. App. P. 3(b) (emphasis added).

The record shows that this is not an appeal from a “judgment of conviction” or a final

judgment in a criminal contempt, habeas corpus, extradition, or post-conviction proceeding.

Although the rule allows for an appeal as of right from an order denying or revoking

probation, Powell’s probation was never actually revoked in this case. Moreover, the order

Powell appealed from is the October 27, 2008 order requiring him to submit a second

biological sample pursuant to Tennessee Code Annotated section 40-35-321 within a

reasonable time period. Rule 3(b) does not allow for an appeal as of right from an order

requiring a defendant to submit a DNA sample. Because this case is not properly before this

court, it is dismissed.

CONCLUSION

Upon review, we conclude that Powell does not have an appeal as of right pursuant

to Tennessee Rule of Appellate Procedure 3(b). Accordingly, the appeal is dismissed.

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CAMILLE R. McMULLEN, JUDGE

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