State of Tennessee v. Nkobi I. Dunn - Concurring

I write a separate concurring opinion to point out and review certain important facets of the appellate record in this case. The record reflects that the defendant’s guilty pleas were “open”; they did not contain any specified sentences pursuant to Tennessee Rule of Criminal Procedure 11(e)(1)(C). See Tenn. R. Crim. P. 11(e)(1)(C) (providing for an agreement between defendant and state “that a specific sentence is the appropriate disposition of the case”). Had the plea agreement contained specific, properly articulated sentencing provisions pursuant to Rule 11(e)(1)(C), they may have survived the revocation of judicial diversion probation, depending upon the terms as accepted by the court. See State v. Hollie D. Campbell, No. E2000-00373-CCA-R3-CD (Tenn. Crim. App., Knoxville, July 2, 2001) (Witt, J., concurring), perm. app. denied (Tenn. 2001); see also Tenn. Code Ann. § 40-35-203(b) (1997) (dispensing with requirement of sentencing hearing when sentence is agreed upon and accepted by trial court); accord id. § 40-35-205(d). However, the trial court, having apparently received and accepted open pleas made in conjunction with the diversion provisions of Tennessee Code Annotated section 40-35-313(a), was positioned and obliged, after revocation of the judicial diversion probation, to resume the case at the pre-diversion point of departure. This means that, following the revocation, the court’s next task was to conduct a sentencing hearing. Tenn. Code Ann. §§ 40-35-203(a) (1997), -209(a) (Supp. 2002).