IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 22, 2010

STATE OF TENNESSEE v. JAY BEAN

Direct Appeal from the Circuit Court for Rutherford County

No. F-58423 David Bragg, Judge

No. M2009-02059-CCA-R3-CD - Filed March 16, 2011

Defendant, Jay Bean, filed a “Motion to Furlough Defendant” from his sentence of

incarceration in order for him to be admitted to a drug treatment program. The trial court

denied the motion and Defendant filed a notice of appeal. Among other assertions, the State

argues that the appeal should be dismissed because Defendant’s chosen avenue to seek

review of the trial court’s order, Tennessee Rule of Appellant Procedure 3(b), does not

permit an appeal as of right in this case. We agree with the State and dismiss the appeal.

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

THOMAS T. WOODALL, J., delivered the opinion of the Court, in which JERRY L. SMITH and

J.C. MCLIN, JJ., joined.

Gerald L. Melton, District Public Defender; and Russell N. Perkins, Assistant Public

Defender, Murfreesboro, Tennessee, for the appellant, Jay Bean.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant

Attorney General; William C. Whitesell,Jr., District Attorney General; and Trevor H. Lynch,

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

OPINION

Pursuant to a negotiated plea agreement, Defendant pled guilty to aggravated burglary,

theft over $1,000.00, and vandalism over $1,000.00. With concurrent sentencing, he

received an effective sentence of six years to be served by split confinement: 180 days of

confinement, with the balance suspended on supervised probation for six years. The

judgments of conviction were entered on May 9, 2006. On February 15, 2008, the trial court

entered an order sustaining a violation of probation warrant. The warrant is not in the record,

so the reason(s) for violation of probation is not apparent. The trial court ordered Defendant
to serve 45 days incarceration followed by reinstatement to supervised probation for the

balance of the sentence.

Another violation of probation occurred, but again the warrant is not in the record.

A probation violation order was entered on July 20, 2009. The order states that there was an

“[a]greed [r]evocation, based on the grounds specified in the warrant.” There is no transcript

of the probation violation court proceedings in the record. The order revoked probation and

ordered Defendant to serve by incarceration the originally imposed sentence of 6 years, with

credit for time already served. An additional notation on the order provided that “Court to

determine if furlough allowed.” Defendant filed both his “Motion to Furlough Defendant”

and an amendment to the motion on August 14, 2009. On August 28, 2009, the trial court

held a hearing solely on the issue of whether to grant a furlough, at which Defendant

testified. On September 9, 2009, the trial court entered its order denying the motion for a

furlough.

On September 24, 2009, Defendant filed a “Notice of Appeal” to the Court of

Criminal Appeals from the trial court’s “judgment entered in this action on the 9 day of

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September 2009, after hearing held on August 28, 2009, whereby his motion for furlough

was denied and he was ordered to serve his sentence.”

In his brief on appeal, Defendant has not limited his argument to the trial court’s

denial of his motion for a furlough. He also argues that the trial court should have sentenced

him to a community based alternative to incarceration upon revocation of his probation.

As applicable in Defendant’s case, Tennessee Code Annotated section 40-35-316(a)

provides in pertinent part that a trial court under certain circumstances “shall have

jurisdiction to grant furlough for any medical, penological, rehabilitative or humane reason,

upon conditions to be set by the sentencing court.”

Addressing first the issue of whether an appeal as of right is available from a trial

court’s order denying a defendant’s motion for a furlough, we conclude that it is not

available. Tennessee Rule of Appellate Procedure 3(b) provides that a defendant may appeal

as of right from: (1) a judgment of conviction upon a plea of not guilty, or on a plea of guilty

or nolo contendere under circumstances not applicable in this case; (2) a sentence when there

is no plea agreement concerning the sentence; (3) an order which denies or revokes

probation; and (4) final judgments in criminal contempt, post-conviction, habeas corpus, or

extradition proceedings.

The notice of appeal, the pertinent portion of which is set forth above, could not be

more clear as to what Defendant sought to appeal - - the order denying his motion for a

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furlough from his six-year sentence. The order which Defendant desires to appeal is not a

judgment of conviction from a plea of not guilty, or from a plea of guilty or nolo contendere.

The order does not set a sentence which was not part of a negotiated plea agreement. Neither

is the order a final judgment in one of the other proceedings named in Rule 3(b).

Specifically, the order detailed in Defendant’s notice of appeal did not refer to the revocation

of his probation. The most recent order revoking probation was entered on July 20, 2009.

Clearly, Defendant did not refer to that order in his notice of appeal.

If an order is not specifically listed in Rule 3(b) as one of the types of orders or

judgments from which an appeal as of right exists, then there is no appeal as of right from

that order. In State v. Thomas Coggins, No. M2008-00104-CCA-R3-CD, 2009 WL 482491,

*1 (Tenn. Crim. App. at Nashville, Feb. 25, 2009), the trial court revoked the defendant’s

previously imposed probation and suspended sentence on August 21, 2007, following an

evidentiary hearing. The defendant filed a “Motion for New Hearing and For Arrest of

Judgment” on September 4, 2007. The trial court entered a written order denying this motion

on December 4, 2007, and the defendant filed a notice of appeal on December 13, 2007. A

panel of this Court determined that based upon the sole issue presented on appeal, the

defendant was attempting to appeal only the trial court’s denial of a new probation revocation

hearing, and not the revocation of his probation. Id. at *4. The Court in Thomas Coggins

held that the defendant had no Rule 3(b) appeal as of right from the order and dismissed the

appeal. Id.

Even if we construed Defendant’s notice of appeal to include the order revoking

probation on July 20, 2009, the notice of appeal filed on September 24, 2009, would not be

timely. A timely notice of appeal filed pursuant to Rule 3(b) must be filed within 30 days

after entry of the order appealed from. The notice of appeal is not jurisdictional in criminal

cases, and the timely filing of it may be waived in the interest of justice. Defendant failed

to include in the record a transcript of the probation revocation hearing. Neither is a copy

of the probation violation warrant included in the appellate record. Furthermore, this was

Defendant’s second violation of his probation. There is absolutely nothing in the record or

in Defendant’s brief which would warrant waiver of the timely filing of the notice of appeal

to address Defendant’s complaint about being ordered to serve the sentence by incarceration

rather than by a community based alternative to incarceration. Defendant is not entitled to

relief.

CONCLUSION

The appeal in this case is dismissed.

_________________________________

THOMAS T. WOODALL, JUDGE

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