State Of Tenn. v. Bean
| Decision Date | 16 March 2011 |
| Docket Number | No. M2009-02059-CCA-R3-CD,M2009-02059-CCA-R3-CD |
| Parties | STATE OF TENNESSEE, v. JAY BEAN. |
| Court | Tennessee Court of Criminal Appeals |
Direct Appeal from the Circuit Court for Rutherford County
No. F-58423 David Bragg, Judge
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
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.
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 Defendantto 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 9th day of 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...
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