IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 21, 2016

STATE OF TENNESSEE v. KEVIN DEAN ATKINS

Appeal from the Circuit Court for Stewart County

No. 2014-CR-3 Larry J. Wallace, Judge

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No. M2015-01636-CCA-R9-CD – Filed November 2, 2016

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The Defendant, Kevin Dean Atkins, appeals the trial court’s order setting aside a plea 

agreement whereby the Defendant pled guilty to public intoxication and admitted 

violating the terms of his probation for a prior conviction. The Defendant filed a motion 

for permission to seek an interlocutory appeal of the trial court’s order pursuant to Rule 9 

of the Tennessee Rules of Appellate Procedure, and his motion was granted. On appeal, 

the State concedes that the trial court’s order violated the Defendant’s double jeopardy 

rights. We agree and accept the State’s concession. Accordingly, we reverse the 

judgment of the trial court and remand the case for further proceedings consistent with 

this opinion.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Reversed; 

Remanded

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which NORMA 

MCGEE OGLE and TIMOTHY L. EASTER, JJ., joined.

James R. Potter, Clarksville, Tennessee, for the appellant, Kevin Dean Atkins.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior 

Counsel; John W. Carney, District Attorney General; and Brooke M. Orgain, Assistant 

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

OPINION

FACTUAL AND PROCEDURAL HISTORY

On January 21, 2014, the Defendant was indicted for driving under the influence 

(“DUI”) and DUI per se. See T.C.A. § 55-10-401(1), (2). On November 24, 2014, the 
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Defendant appeared before the trial court on the DUI charges and a violation of probation 

charge. Defense counsel announced that the Defendant agreed to waive the hearing on 

the violation of probation, serve ten days in jail on the weekends, and extend the 

probationary period by one year. Defense counsel also announced that the Defendant 

agreed to plead guilty to a reduced charge of public intoxication and serve a probated 

sentence of eleven months and twenty-nine days to run consecutive to the violation of 

probation. In response to questioning by the trial court, both the State and defense 

counsel advised the trial court that everything had been addressed. The trial court agreed 

to accept the weekend service of ten days if the Defendant passed a drug screen.

The Defendant confirmed under oath that he wished to waive the hearing on the 

probation violation charge and admit the violation. The trial court found the Defendant 

in violation of his probation and sentenced him to ten days in jail to be served on 

weekends upon the passing of a drug screen. The trial court also extended the 

Defendant’s probation for one year after the Defendant said he agreed to the extension. 

The trial court advised the Defendant that he was charged with an amended count 

of public intoxication. Defense counsel stated that public intoxication was a Class C 

misdemeanor, even though he had previously announced that the conviction was a Class 

A misdemeanor with a sentence of eleven months and twenty-nine days. When asked 

what agreement had been reached with the prosecutor, defense counsel replied, “We 

didn’t discuss the time. It was just the charge.” The prosecutor stated that if the 

Defendant was “going to plea to public intox, then a C misdemeanor is fine.” The trial 

court asked, “So it will be 30 days now?” The prosecutor replied, “Yeah.” The trial 

court advised the Defendant of his right to a trial, and the Defendant confirmed that he 

wished to waive his right to a trial and enter a guilty plea. 

The prosecutor then set out the factual basis for the plea as follows:

Deputy Jody L. Batton of the Stewart County sheriff’s office was 

dispatched to 1711 Tobacco Port Road in Bumpus Mills Tennessee on a 9-

1-1 call, a vehicle being off the roadway and on fire. Upon the officer’s 

arrival, the fire department was already on there, Officer Batton made 

contact with the defendant Kevin Atkins and smelled an [odor] of alcohol 

coming from his person. His speech was slow and slurred and his eyes 

were watery and bloodshot.... [T]he defendant did admit to drinking two 

beers in a four hour span and he performed poorly on field sobriety tests.... 

I think they did take blood from him, but he was taken to the hospital for a 

health check due to the accident.
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The trial court stated, “The Court finds a factual basis for it, as well as admissions of the 

defendant, accepts the plea agreement. It’s amended to a public intox, Class C 

misdemeanor sentence conviction, 30 day sentence consecutive—suspended to probation, 

consecutive to the [violation of probation].” The trial court scheduled the Defendant’s 

report date for the ten-day sentence for Friday, November 28, 2014.

On November 24, 2014, the trial court entered an order, stating:

Upon recommendation of a plea agreement by the State of Tennessee 

through the District Attorney’s Office and the defendant through the 

defendant’s attorney. The State of Tennessee and the victim’s interest (if 

applicable) has been represented by the District Attorney’s Office and the 

defendant’s interest has been represented by the defendant’s attorney. The 

District Attorney’s Office in making their recommendation of this plea 

agreement has weighed the relative strengths and weaknesses of their case 

and the entire record of this action and from all of which, the Court finds as 

follows:

1.) That based on the foregoing recommendation, the following attached 

Order of the Judgment is hereby authorized and incorporated herewith.

The judgment, however, was not attached to the trial court’s order. 

On January 13, 2015, the State filed a “Motion to Set Aside Judgment” in case 

number 2014-CR-3, the public intoxication conviction. The State alleged that the 

Defendant’s guilty plea was based upon an offer presented to defense counsel by Connie 

Turner, a probation officer. The State further alleged that when the prosecutor received 

the offer from defense counsel, the prosecutor believed it to be an offer made by one of 

the other assistant attorney generals in the district. According to the State, when the 

prosecutor stated this belief on the record, neither defense counsel nor Ms. Turner 

objected. The State maintained that as a result, the guilty plea was invalid. The 

Defendant filed an answer, asserting that he entered a knowing and voluntary plea with 

full knowledge by the State and that the State was, therefore, barred from raising the 

issue on the grounds of estoppel. The Defendant also asserted that the judgment was 

final and that the State’s motion was time- barred.

During a hearing on the State’s motion, the Defendant did not dispute that Ms. 

Turner approached defense counsel and handed him a written offer disposing of the 

probation violation charge and the DUI charges. The prosecutor stated that she believed 

that another prosecutor had made the offer and that defense counsel also may have 

believed that a prosecutor made the offer. The prosecutor characterized the events as a 

“misunderstanding.” 
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At the conclusion of the hearing, the trial court granted the State’s motion. The 

court found that the judgment was not final because he had not yet signed it. The court 

also found that there was no “mutual meeting of the minds” between the parties. The 

court stated: 

And because the plea agreement was for everything, includ[ing] the 

[violation of probation] and the DUI, the Court is going to set aside all of 

it.... I don’t know if the State’s motion was just for the DUI or not, but it’s 

going to set aside all of it. And so, basically, the parties—both sides will be 

returning to status quo as they were before November 24, 2014.

The Defendant subsequently sought permission from the trial court to file an 

application for permission to appeal pursuant to Rule 9 of the Tennessee Rules of 

Appellate Procedure. The Defendant filed a notice, attaching his incarceration record 

which showed that he had served eight days of his ten-day sentence.1 The trial court 

granted the Defendant’s motion, and this court subsequently granted the Defendant’s 

application for permission to appeal.

ANALYSIS

The Defendant contends that the trial court erred in vacating his guilty plea. The 

State concedes that the trial court’s order violated the Defendant’s double jeopardy rights. 

We agree with the State that under the circumstances of this case, the trial court’s order 

vacating the Defendant’s guilty plea violated his double jeopardy rights.

Rule 32(f) of the Tennessee Rules of Criminal Procedure provides for a 

mechanism by which a defendant may move to set aside a guilty plea after the plea has 

been accepted by the trial court. The Tennessee Rules of Criminal Procedure do not 

provide the State with the same opportunity. Nevertheless, this court has recognized a 

trial court’s authority to set aside a guilty plea after the court has accepted the plea but 

before the judgment is entered. See State v. Burris, 40 S.W.3d 520, 523-24 (Tenn. Crim. 

App. 2000). “[A]fter judgment has been entered[,] a trial court does not have the inherent 

power to withdraw its acceptance of the plea.” Id. at 524 (citations omitted). Because 

the judgment had not been entered in the present case, the trial court had the authority to 

set aside the Defendant’s guilty plea. Nevertheless, we must consider whether the trial 

court’s decision to withdraw its acceptance of the Defendant’s plea agreement violated 

the double jeopardy provisions of the United States and Tennessee Constitutions.

 

1 According to the record, the Defendant was incarcerated November 28-30 and 

December 5-7, 19-21, and 26-28 of 2014.
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The United States and Tennessee Constitutions protect an accused from being 

twice placed in jeopardy for the “same offense.” See U.S. Const. amend. V; Tenn. Const. 

art. I, § 10. The prohibition against double jeopardy affords three fundamental 

protections: (1) protection against a second prosecution following an acquittal; (2) 

protection against a second prosecution following conviction; and (3) protection against 

multiple punishments for the same offense. State v. Watkins, 362 S.W.3d 530, 547 

(Tenn. 2012) (citations omitted). The policy reasons supporting these protections include 

goals of certainty, reliability, and respect for the “judicial process” and “finality of 

judgments,” Bray v. State, 506 S.W.2d 772, 775 (Tenn. 1974); prevention of 

prosecutorial overreaching, Ohio v. Johnson, 467 U.S. 493, 498-99 (1984); and 

prevention of the expense, embarrassment, and anxiety of repeated defenses, id.

The Tennessee Supreme Court has held that “jeopardy does not attach at a hearing 

on a guilty plea until the plea is unconditionally accepted.” State v. Todd, 654 S.W.2d 

379, 383 (Tenn. 1983). In Todd, the parties reached an agreement reducing the 

defendant’s second degree murder charge to voluntary manslaughter, and the trial court 

signed an order during the plea hearing reducing the charge to voluntary manslaughter. 

Id. at 380-81. After the trial court concluded during the same plea hearing that the 

agreement reached by the parties regarding the defendant’s sentence was too lenient, the 

trial court rejected the plea agreement and ordered the defendant to stand trial for second 

degree murder. Id. at 381. On appeal, the Tennessee Supreme Court held that because 

the trial court never accepted the plea, jeopardy never attached, and “the trial court, 

therefore, was not prohibited by the double jeopardy clause from revoking its preliminary 

determination to reduce the charge as part of the plea negotiations. Until a final judgment 

is entered a court is free to reject the plea and plea agreement.” Id. at 383 (citing United 

States v. Sanchez, 609 F.2d 761, 763 (5th Cir. 1980)).

In State v. Atkins, this court held that jeopardy did not attach when the trial court 

initially accepted the defendant’s best interest plea but later rejected the State’s 

sentencing recommendation following a separate sentencing hearing when the trial court 

elected to treat the plea agreement as contingent upon the court’s review of the 

presentence report. State v. Atkins, 867 S.W.2d 350, 353 (Tenn. Crim. App. 1993); Tenn. 

R. Crim. P. 11(c)(1)(C), (c)(3)(A) (providing that when the State agrees that a specific 

sentence is appropriate as part of a plea agreement, the trial court may accept or reject the 

agreement or “may defer its decision until it has had an opportunity to consider the 

presentence report”).

In State v. Burris, this court held that a trial court’s decision to set aside a guilty 

plea after the court had accepted the plea did not violate double jeopardy when the 

court’s acceptance of the plea was premised on the trial court’s misunderstanding of the 

terms of the plea and the misunderstanding was reflected in the record. Burris, 40 
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S.W.3d at 526-27. The trial court accepted the defendant’s guilty plea to lesser-included 

drug offenses and sentenced the defendant to the agreed upon sentence. Id. at 522-23. 

The only issue that remained was whether the defendant would receive a suspended 

sentence. Id. at 523. During the sentencing hearing, the trial court learned that it did not 

have the same understanding of the terms of the plea as the parties. Id. The court 

subsequently withdrew its acceptance of the plea and declined to accept a plea to any 

charge other than that set forth in the indictment. Id. In upholding the trial court’s 

decision to withdraw its acceptance of the plea, this court noted that a final judgment had 

not been entered, that the trial court’s misunderstanding of the terms of the plea were 

reflected in the transcript of the guilty plea hearing, and that the policies behind the 

double jeopardy clause were not at issue. Id. at 525-27.

While a final judgment had not been entered in the present case, the record reflects 

that the trial court unconditionally accepted the Defendant’s guilty plea and all terms of 

the plea agreement, including the recommended sentences, during the plea hearing. The 

trial court then entered an order reflecting its acceptance of the Defendant’s guilty plea. 

No issues requiring a separate sentencing hearing remained. Cf. id. at 523 (noting that a 

separate sentencing hearing was required to determine the manner of service of the 

defendant’s sentence); Atkins, 867 S.W.2d at 353 (noting that the trial court elected to 

treat the plea agreement as contingent upon its review of the presentence report). Shortly 

after the trial court’s acceptance of what the court later found to be a “package deal” that 

resolved both the violation of probation and DUI charges, the Defendant began serving 

his ten-day sentence in confinement for violating his probation and completed at least a 

majority of the sentence before the State filed a motion seeking to withdraw the plea. 

Thus, the Defendant appears to have relied upon the agreement to his detriment. 

Moreover, unlike Burris, no misunderstanding existed regarding the terms of the 

plea agreement. See Burris, 40 S.W.3d at 526-27. The transcript of the plea hearing 

reflects that the parties and the trial court understood all terms of the plea agreement. 

Rather, the misunderstanding involved the source of the plea offer, which was not yet 

discovered at the time of the plea hearing. It was only after the trial court unconditionally 

accepted the Defendant’s plea and the Defendant served at least a majority of his 

sentence before the misunderstanding came to light. 

Nothing in the record established that the misunderstanding was derived from 

fraudulent acts committed by the Defendant or his counsel. See State v. Fred Fulgenzi, 

No. 02C01-9802-CR-00038, 1999 WL 544645, at *4 (Tenn. Crim. App. July 27, 1999) 

(addressing whether defense counsel engaged in fraudulent acts in procuring the plea, 

justifying the trial court’s decision to set aside the defendant’s guilty plea). During the 

hearing on the State’s motion to set aside the plea agreement and in its brief on appeal, 

the State argued that both parties mistakenly believed that a prosecutor with the district 
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attorney general’s office had approved the plea offer. The State acknowledged that 

multiple prosecutors had appeared before the trial court in Stewart County, and the trial 

court described the day of the plea hearing as “hectic.” Accordingly, under the unique 

circumstances of this case, we conclude that the trial court’s decision to withdraw its 

acceptance of the plea agreement violated the Defendant’s double jeopardy rights.

CONCLUSION

Based on our review of the record and the applicable law, we reverse the trial 

court’s order vacating the Defendant’s plea agreement and remand the case to the trial 

court for entry of judgments in accordance with the terms of the plea agreement.

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JOHN EVERETT WILLIAMS, JUDGE