IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs October 26, 2011

STATE OF TENNESSEE v. JESSICA BIRKHEAD

Appeal from the Criminal Court for Hamilton County

No. 271915 Rebecca J. Stern, Judge

No. E2011-01001-CCA-R3-CD - Filed February 6, 2012

Appellant, Jessica Birkhead, appeals under Tennessee Rule of Appellate Procedure 3 after

the trial court’s grant of judicial diversion on a charge of vandalism under $500. On appeal,

Appellant asks this Court to determine: (1) whether the evidence was sufficient; (2) whether

the trial court improperly considered irrelevant evidence; (3) whether the trial court

improperly excluded responses to requests for admissions in a related civil suit; and (4)

whether the trial court should have remanded the matter for a preliminary hearing because

there was no transcript or recording of the hearing. We determine that no final judgment of

conviction exists that would entitle Appellant to an appeal pursuant to Tennessee Rule of

Appellate Procedure 3 and that Appellant has not presented a compelling case for the grant

of an extraordinary appeal under Tennessee Rule of Appellate Procedure 10. Accordingly,

Appellant’s appeal is dismissed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is

Dismissed.

JERRY L. SMITH, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and

D. KELLY THOMAS, JR., JJ., joined.

Robin Ruben Flores, Chattanooga, Tennessee, for the appellant, Jessica Birkhead.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant

Attorney General; William H. Cox, III, District Attorney General; and Brian Findley,

Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION

Factual Background

In May of 2009, Appellant was indicted by the Hamilton County Grand Jury for one

count of aggravated assault and one count of vandalism under $500, for events that took

place on Christmas Eve of 2008. Prior to trial, the State dismissed the aggravated assault

charge.

The case proceeded to trial without a jury. At the conclusion of the proof, the trial

court found Appellant guilty of vandalism under $500. A separate sentencing hearing was

held, at which it was determined that Appellant was eligible for judicial diversion. The trial

court placed Appellant on judicial diversion for eleven months and twenty-nine days and

ordered her to complete an anger management course within six months.

Appellant filed a timely motion for new trial. The motion did not set forth specific

grounds for relief. The trial court held a hearing on the motion. At the hearing, counsel for

Appellant outlined the grounds for relief. The trial court denied the motion.

Appellant filed a timely notice of appeal.

Analysis

On appeal, Appellant raises several issues. Appellant challenges the sufficiency of

the evidence, several evidentiary determinations made by the trial court, and complains that

there was no transcript of the preliminary hearing. The State contends that the evidence was

sufficient and Appellant waived any other issues for failure to properly preserve them in a

motion for new trial.

At the outset, we must determine whether this Court has jurisdiction of Appellant’s

appeal. Judicial diversion allows a defendant that is adjudicated guilty to, “upon successful

completion of a diversion program, receive an expungement from all official records any

recordation relating to ‘arrest, indictment or information, trial, finding of guilty, and

dismissal and discharge’ pursuant to the diversion statute.” State v. Schindler, 986 S.W.2d

209, 211 (Tenn. 1999) (quoting T.C.A. § 40-35-313(b)). “The effect of discharge and

dismissal under the diversion statute ‘is to restore the person . . . to the status the person

occupied before such arrest or indictment or information.’” Id. (quoting T.C.A. §

40-35-313(b)). A final disposition of the case does not occur until either the defendant

successfully completes the diversion program or violates a condition of his release. State v.

Teresa Dockery, No. E2001-01493-CCA-R3-CD, 2002 WL 1042187, at *2 (Tenn. Crim.

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App., at Knoxville, May 23, 2002), perm. app. denied, (Tenn. Nov. 2, 2002); State v. Glenna

Kidd, No. 01C01-9808-CR-00344, 1999 WL 298309, at *1 (Tenn. Crim. App., at Nashville,

May 13, 1999). Judicial diversion may be ordered only with the consent of a “qualified

defendant.” T.C.A. § 40-35-313(a)(1)(A).

The Tennessee Rules of Appellate Procedure require this Court to determine whether

we have jurisdiction in every case on appeal. See Tenn. R. App. P. 13(b). In criminal cases,

an appeal as of right lies from a final judgment of conviction. Tenn. R. App. P. 3(b). In this

case, the trial court granted judicial diversion to Appellant. Under the provisions of the

judicial diversion statute, if Appellant does not violate any of the conditions of probation, the

court shall dismiss the proceedings without an adjudication of guilt. T.C.A. §

40-35-313(a)(2).

In State v. Norris, 47 S.W.3d 457, 461-63 (Tenn. Crim. App. 2000), this Court

concluded that an Appellant has no appeal as of right pursuant to Rule 3(c) of the Tennessee

Rules of Appellate Procedure when the Appellant has been granted judicial diversion. 47

S.W.3d at 462. This Court determined in Norris that it is fair to disallow an appeal as of

right from the grant of judicial diversion because “a trial court may not impose judicial

diversion except with the defendant’s consent.” Id. (citing T.C.A. § 40-35-313(a)(1)(A)

(1997)). “As a practical matter, a trial court rarely if ever grants judicial diversion until a

defendant has literally begged for it.” Id. In other words, even though the grant of judicial

diversion jeopardizes a defendant’s opportunity to raise a legal issue on appeal, the defendant

who accepts diversion can emerge from the process without a conviction. Id.

In Norris, this Court also acknowledged that the situation may arise in which a

defendant granted judicial diversion may seek an appeal pursuant to Tennessee Rule of

Appellate Procedure 9, governing interlocutory appeals, or Tennessee Rule of Appellate

Procedure 10, governing extraordinary appeals. Id. at 463. In fact, an appeal filed

improperly under Rule 3 may be treated as an application for extraordinary appeal pursuant

to Rule 10 of the Tennessee Rules of Appellate Procedure. Id.; State v. Leath, 977 S.W.2d

132, 135 (Tenn. Crim. App. 1998); Teresa Dockery, 2002 WL 1042187, at *3. Under Rule

10, an extraordinary appeal may be sought “if the lower court has so far departed from the

accepted and usual course of judicial proceedings as to require immediate review.” Tenn.

R. App. P. 10(a). This Court should grant an extraordinary appeal when it is established that:

(a) “the ruling of the court below represents a fundamental illegality;” (b) “the ruling

constitutes a failure to proceed according to the essential requirements of the law;” (c) the

ruling is “tantamount to the denial of either party of a day in court;” (d) “the action of the

trial judge was without legal authority;” (e) “the action of the trial judge constituted a plain

and palpable abuse of discretion;” or (f) “either party has lost a right or interest that may

never be recaptured.” State v. Willoughby, 594 S.W.2d 388, 392 (Tenn. 1980).

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Looking at the case herein, with the record presented to this Court on appeal, we

determine that the trial court possessed jurisdiction and had the authority to place Appellant

on judicial diversion, and she agreed to that placement. We further conclude that Appellant

has failed to meet the requirements for the granting of a Rule 10 extraordinary appeal. See

State v. Wiley Moore, Jr., No. M2008-01524-CCA-R3-CD, 2009 WL 2342905 (Tenn. Crim.

App., at Nashville, July 30, 2009); State v. Sherrie Ann Collins, No.

M2007-01356-CCA-R3-CD, 2008 WL 2579170 (Tenn. Crim. App., at Nashville, June 27,

2008). Accordingly, this Court lacks jurisdiction to review Appellant’s appeal, and the

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appeal is dismissed.

Conclusion

For the foregoing reasons, the appeal is dismissed.

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JERRY L. SMITH, JUDGE

We do not determine today whether an interlocutory appeal pursuant to Tennessee Rule of Procedure 9 would

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be the appropriate manner in which to proceed in this case.

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