### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs O ctober 1, 2002 STATE O F TENNESSEE v.ADRIA N LUMP KIN Appeal from the Criminal Court for Shelby County No. 99-01712 Carolyn Wade Blackett, Judge

No. W2002-00648-CCA-R3-CD - Filed Nove mber 27, 2002

The Defendant, Adrian L

umpkin, was indicted for aggrava ted assault. He pled guilty and agreed to a sentence of three y

ears with the manne r of service to be determined by the trial court. After a sentencing hearing, the trial court gra nted the Defendant judici al divers ion subject to several condition s. In this appeal, the Defe ndant contends that the trial court er red by placing unreaso nable conditions on its grant of judicial diversion. We conclude that the trial court

had no leg al author

ity to impose a term of incarceration as a condition of judicial diversio n. Howev er, with r espect t o the remaining condition s, we dismi ss the Def endant’ s appeal

because a defendant to wh om ju dici al diversio n was gr

anted ha s no appe al as of r ight. Tenn. R. App.P. 3; 10 ; Judgme nt of the Tri al Court R

eversed in Part ; Appeal Di smisse d in Part; Remanded
D AV ID H. W ELLES , J., deliver ed the opinion of the

court, in which J AMES C URWOOD W ITT , J R . and A LAN E. G LENN , JJ., joined. Jerry Stokes, Memphis, Tennessee, f or the appellant, Adrian Lumpkin. Paul G. Summers, Attorney Gene ral and Reporter; Helena Walton Yarbrough, Assistant Attorney Genera l; William L. Gib

bons, Distr

ict Attorn ey Genera l; and Stephanie Johnson, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

. OPINION

On the even

ing of Se ptember 25, 1999, t

he Defe ndant, Ad

rian L umpkin, was standing outside his house with seven or eight of his friends. A vehicle drive n by Myr on Thomaspassed in front of the Defendant’s house. Words were exchang ed betwe en the Defendant and his group of friends and Myron Thomas a nd his father, Michael Thomas, who was riding in the front pa ssenger seat of the car. A few minutes later, Myron Thomas drove ba ck to the Defendant’s house and parked across the stree

t. When My

ron Thoma s and his f

ather, M ichael T homas, exited their ve

hic l e and1 See Tenn. Code Ann. § 40-35- 313. -2-

began walking toward the Defendant ’s ho use, a brawl ensued. Both My ron and Michael Thomas were inju red and requi red med ical a ttent ion. The Def endan t admi tted t hat, d uring the melee, he grabb ed a wood

en chair off his po

rch and b roke it a cross the back of Michael T

homas.
On February

18, 1999, the Shelby County Grand Jur y returne d an indictment charging the Defendant

with aggravated

assault. The Defendant pled guilty to the charge and

agreed to a sentence of three y ears. The manner in whic h the sent ence wa s to be served was left to the discretion of the trial court . Afte r a sent encin g hearin g, the trial court granted the Defenda nt judicial diversion 1 subject to the following conditions: that the Defendant serve three months in c onfineme

nt, submit to frequent

random drug sc reens, maintain f

ull-time e mploy ment, atte nd ange r manag ement cla sses, perform one-hun dred hou

rs of com munity service , and rema in on probat ion for three years. The Defendant

argues that the conditions imposed by the trial court

were “too unreasonable, unrea listic, too harsh, and unjust.”
We note at the outset that no appeal as of right lies from a grant o f judicia

l diversio n becau se there is no judgment of

convicti on from wh

ich to appeal p

ursuant t o Tennes see Rule o f Appella te Procedure 3. See Tenn. Cod e Ann. § 40 -35-313( a)(1)(A), (2); State v. Glenda Kidd , No. 01C01- 9808-CR-00344, 1999 Tenn. Crim. App. LEXI S 459, at*4 (Nashville, May 13, 1999) . In State v. Norris , 47 S.W.3d 457, 463 (Tenn. Crim. App. 2000), this Court determin ed that a n appea l did not lie for Norris’s co-d ef

endant, who had been placed on judicial diversion. The pane l found that because the co-defendant was gra nted, rather than denied, diversion, and because she had received no judgment of conviction, she had no appeal as of rig ht. Id.
Because the Defendant wa s granted judicial diversion and, consequently , had no judgment of convicti on enter

ed aga inst him, he may not appea

l as of right. See id. at 461-63 ; State v. V asile Cavopol , No. M2001-01034-CCA-R 3-CD, 200 2 Tenn. Crim. App. LEXI S 784, at *3 (Nashville, Sept. 16, 2002) . Howeve r, if a de fendant ta kes issue with the conditions attached to a grant of judicial diversion , the defendant is not without a remedy . A trial court may not impose judicial diversion without the consent of the defe ndant. See T enn. Code Ann. § 40-35-313(a)(1)(A). A defendant has the option of declining judicial diversion: [A] defendant has the options (1) to eschew judicial diversio n if he or

she wishe s to seek a review of a g iven iss ue thr ough the appropriate method of appeal, (2) when seeking judicial diversion after a guilty plea, to reserve a certified question, upon submitting a plea, to be presented on appea l p ursuant to Rule 37(b) after judicial diversion is denied and a judgment is entered, or if d iversion is granted, to be presented on appeal if and when the diversion probation is revoked and judg ment is entered, (3) if jud

icial dive rsion is granted after

a trial, t o raise an issue o n appea

l in th e event of a revocation of the diversion probation, or (4) in the appropri at e circumstances, to seek a discretionary , interlocutory appe al under Tennessee Rules of Appellate Procedure 9 or 10.-3-

Norris , 47 S.W.3d a

t 463. While

the choic e to acc ept judic ial diver sion may inhibit a defendant’s ability to raise a legal issue, the defendant who accept s judicial diversion may, by his or her own free will, “emerge from the process without a c onviction on his or her record.” Id.

That being said, an appeal filed improperly under Rule 3 may be trea

ted as an application for extraordinary

appeal p ursuant t o Ru le 10 of the Tennessee Rules of Appellate Procedure. See Norris , 47 S.W.3d at

463; State v. L

eath , 977 S.W.2d 132, 135 (Tenn. Crim. App. 1998). Rule 10 provides that an extraordinary a ppeal may be

sought “if the lower

court has so far departed from the accepted and usual course of judicial proceedings a s to require immediate review.” Tenn. R. App. P. 10(a). The Tennessee Supreme Court has held that an extraordinary appe al should only be gr anted

a. Wh er e t he ru li ng of

th e c ou rt be lo w r ep re se nt s a fu nd am en ta l i ll eg al it y. b. Where the ruling constitutes a fai lure to proceed according to the esse ntial requirements of the law. c. Where the ruling

is tantamount to the d

enial of either p arty

of a day in court. d. Wh er e t he ac ti on of

th e t ri al ju dg e w as wi th ou t l eg al au th or it y.
e. Where the action of the trialjudge c onst ituted a plain and palpable abuse of discretion. f. Where either party

has lost a right or interest that may never be recaptured.
State v. Willoughby , 594 S.W.2d 388, 392 (Tenn. 1980).

Alth ough the Defe

ndant fa iled to ra ise the iss ue in his brief, the trial court imposed an illegal condition on its gr

ant of jud icial dive rsion by orderin g the De

fendant to serve three mo nths in jail

. This Courthas held that imposing a jail ter m as a condition of ju dicial div ersion is incompati ble with the provisions of Tennessee Code Annotated section 40-35-313, the judicial diversion statute. See Statev. Paul Davi d Cable , No. 03C01-9409-CR-00349, 1995 Tenn. Crim. App. LEXI S 447, at *12 (Knoxville, June 1, 1995). “Inasmuch as no judgment of guilt is to be enter ed when judi cial diversion is granted, the trial court would not be authorized to sentence the defe ndant toa period of confinement.” State v. James C. Wolford , No. 03C01 -9708-CR- 00319, 199 9 Tenn. Cr im. App. LEXIS 139, at *13 (Knoxville, February 18, 1999) (citations omitted). Therefore, “[j]ail time may not be impo sed as a

condition of probation under the judicial diversion statute.” State v. Johnson , 15 S.W.3d 5 15, 518-19 (Tenn. Crim . App. 1999 ). Be cause the trial court imposed an illegal condition on its grant of judicial diversion, the Defendant meets the re quiremen ts for the partial granting of a

Rule 10 extr

aordina ry appeal.
Having found that the trial court had no legal authority

to order incarceration as a condition of its gra nt of judic ial diver sion, we r everse the trial court with resp ect to the imposition of that condition. However, with respect to the remainder of the Defe ndant’s a ppeal, th e appea l is-4-

dismissed because

th ere is no appe al as of r ight fr om a gra nt of judic ial diver sion. This c ase is remanded to the trial court for such further pr oceedings as may

be warranted.

___________________________________ DAVID H. WEL

LES, JUDGE