IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs August 11, 2004
STATE OF TENNESSEE v. SHERRY LYNN JOHNSON
Appeal from the Circuit Court for Robertson County
No. 01-0425 John H. Gasaway, III, Judge
No. M2002-01495-CCA-R3-CD - Filed September 8, 2004
Following a bench trial, the Defendant, Sherry Lynn Johnson, was convicted of assault, a Class A
misdemeanor. The trial court placed the Defendant on judicial diversion. In this appeal, the
Defendant asserts that the trial court misinterpreted the assault statute and that the evidence is
insufficient to support her conviction. Because the Defendant was placed on judicial diversion, no
judgment of conviction has been entered, and the Defendant has no appeal as of right under
Tennessee Rule of Appellate Procedure 3. Accordingly, the appeal is dismissed.
Tenn. R. App. P. 3; Appeal Dismissed
DAVID H. WELLES, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and
ROBERT W. WEDEMEYER , JJ., joined.
Lee Borthick, Springfield, Tennessee, for the appellant, Sherry Lynn Johnson.
Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General;
John Carney, District Attorney General; and Dent Morriss, Assistant District Attorney General, for
the appellee, State of Tennessee.
OPINION
We will briefly discuss the underlying facts. The Defendant’s brother had been arrested by
local law enforcement authorities. During his arrest, he was injured and was transported to the
hospital. Upon hearing of her brother’s arrest and injuries, the Defendant went to the hospital to
inquire about his well being. While there she encountered a law enforcement officer who had been
involved in the arrest of her brother. An altercation ensued, during which the officer stated the
Defendant struck him in the chest. The officer sprayed the Defendant with mace, handcuffed her and
placed her under arrest. She was charged with assault and resisting arrest.
Following a bench trial, the Defendant was convicted of assault. See Tenn. Code Ann. § 39-
13-101(a)(2). The trial judge dismissed the charge of resisting arrest. Subsequently, by “agreement
of the parties,” the Defendant was placed on “Post Trial Diversion,” which is often referred to as
judicial diversion. See Tenn. Code Ann. § 40-35-313(a)(1)(A). Pursuant to this statute, no judgment
of conviction was entered and the proceedings were deferred for six months. The Defendant filed
a notice of appeal, and on appeal she asserts that the trial court misinterpreted the assault statute and
that the evidence is insufficient to support her conviction.
Rule 3 of the Tennessee Rules of Appellate Procedure identifies those cases which may be
appealed as a matter of right. Generally, such an appeal 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. . . .” Tenn. R. App. P. 3(b). In addition, an appeal of right is available when the trial court
has denied or revoked probation, and in certain other circumstances not applicable here. See id.
Because no judgment of conviction is entered when judicial diversion is granted, this Court
has held that a defendant has no appeal as of right under Tennessee Rule of Appellate Procedure
3(b). See State v. Norris, 47 S.W.3d 457, 462-63 (Tenn. Crim. App. 2000); State v. Adrian
Lumpkin, No. W2002-00648-CCA-R3-CD, 2002 WL 31730894, at * 1-2 (Tenn. Crim. App.
Jackson, Nov. 27, 2002). See also State v. Teresa Dockery, No. E2001-01493-CCA-R3-CD, 2002
WL 1042187, at * 3 (Tenn. Crim. App., Knoxville, May 23, 2002).
We note that 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. See State
v. Norris, 47 S.W.3d at 463. Here, however, the trial court certainly had jurisdiction to determine
the Defendant’s guilt and had the authority to place her on judicial diversion. Under the
circumstances presented in this case, it is our opinion that the Defendant does not meet the
requirements for the granting of a Rule 10 extraordinary appeal.
Accordingly, because we have concluded that this matter is not properly before us, the appeal
is dismissed.
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DAVID H. WELLES, JUDGE
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