State v. Jason Bradburn

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 01C01-9803-CC-00110
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED JANUARY 1999 SESSION March 3, 1999

Cecil W. Crowson Appellate Court Clerk JASON BRADBURN ) ) C.C.A. NO. 01C01-9803-CC-00110 Appellant, ) ) MAURY COUNTY VS. ) ) HON. JIM T. HAMILTON, STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction - Delayed Appeal)

FOR THE APPELLANT: FOR THE APPELLEE:

MICHAEL J. FLANAGAN JOHN KNOX WALKUP 95 White Bridge Rd., Suite 208 Attorney General & Reporter Nashville, TN 37205 DARYL J. BRAND Asst. Attorney General John Sevier Bldg. 425 Fifth Ave., North Nashville, TN 37243-0493

MIKE BOTTOMS District Attorney General

STELLA L. HARGOVE -and- JESSE DURHAM Asst. District Attorneys General P.O. Box 1619 Columbia, TN 38401-1619

OPINION FILED:____________________

APPEAL DISMISSED

JOHN H. PEAY, Judge OPINION

The petitioner seeks a delayed appeal from the trial court’s order revoking

his probation. After a review of the record and applicable law, we dismiss the petitioner’s

appeal.

In April 1994, the petitioner pled guilty to several charges for which he

received an effective sentence of twelve years, six years to be served on supervised

probation and six years to be served on unsupervised probation. In July 1996, the

petitioner was arrested for several other offenses, including possession of marijuana and

unlawful possession of a weapon. Four days later, his probation officer filed a probation

violation report, alleging that the petitioner had violated his probation by failing to obey

the laws, failing to report his new arrest, illegally possessing a weapon, possessing

marijuana, and failing to pay all required fees. Following a probation revocation hearing

in December 1996, the petitioner’s probation was revoked. He did not appeal.

In December 1997, the petitioner filed a petition for post-conviction relief,

alleging that his attorney had been ineffective for failing to appeal the probation

revocation and for stating at the probation revocation hearing that the petitioner had

violated the terms of his probation. By agreed order, the parties “stipulated that prior

counsel for the petitioner was not ineffective in his representation,” but “agreed . . . that

the petitioner is entitled to a delayed appeal upon the revocation of his probation.”

The Post-Conviction Procedure Act of 1995 provides that a petitioner who

is unconstitutionally denied an appeal from his or her original conviction may seek a

delayed appeal from the original conviction, see T.C.A. § 40-30-213(a), but there is no

2 authority for a delayed appeal from an order revoking probation. The parties’ agreed

order cannot circumvent the Legislature’s clear intention to allow delayed appeals only

from original convictions and not from other judgments. The petitioner’s attempt to

belatedly appeal from the trial court’s probation revocation order is unauthorized, and his

appeal is accordingly dismissed.1

_______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ DAVID H. WELLES, Judge

______________________________ THOMAS T. W OODALL, Judge

1 W e note that even if the petitioner’s delayed appeal were authorized by statute, the record contains ample evidence to support the trial court’s decision to revoke his probation. Thus, even if we were to consider the merits of the petitioner’s appeal, the probation revocation order would be affirmed.