Court of Criminal Appeals of Tennessee, Knoxville
Session December 19, 2017
from the Criminal Court for Knox County No. 107165 G. Scott
State of Tennessee appeals the Knox County Criminal
Court's imposition of an eleven months, twenty-nine
days' confinement at 75% service for theft of property
valued at more than $500 but less than $1000. See
T.C.A. §§ 39-14-103 (2014) (theft); 39-14-105
(2014) (amended 2017) (grading of theft). On appeal, the
State contends that the trial court erred by sentencing the
Defendant pursuant to the amended version of the grading of
theft statute that became effective after the commission of
the offense. However, we have concluded that this court lacks
jurisdiction to consider the issue because no appeal of right
lies for the State pursuant to Tennessee Rule of Appellate
Procedure 3 or Tennessee Code Annotated section 40-35-402. As
a result, we dismiss the appeal.
R. App. P. 3 Appeal as of Right; Appeal Dismissed
Herbert H. Slatery III, Attorney General and Reporter;
Jeffery D. Zentner, Assistant Attorney General; Charme Allen,
Assistant Attorney General; and Kyle Hixson, Assistant
District Attorney General, for the appellant, State of
E. Stephens, District Public Defender; Jonathan Harwell,
Assistant District Public Defender (on appeal); Chris Irwin,
Assistant District Public Defender (at trial), for the
appellee, Joshua Thidor Cross.
H. Montgomery, Jr., J., delivered the opinion of the court,
in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr.,
H. MONTGOMERY, JR., JUDGE
case relates to the Defendant's December 1, 2016 guilty
plea to two counts of theft of property valued at more than
$500 but less than $1000. See id. §§
39-14-103; 39-14-105. The two counts merged into a single
count of theft by operation of law. Pursuant to the plea
agreement, the trial court determined the length of the
Defendant's sentence at a sentencing hearing.
guilty plea hearing, the State's recitation of the facts
was as follows:
Your Honor, if we were called to trial in this case we would
call the witnesses listed in the indictment including the
victim, Ronnie Moffett. He would testify that on June 3,
2015[, ] . . . [the Defendant] was at his home here in Knox
County, Tennessee. [Mr. Moffett would testify] that [the
Defendant] took a crossbow and a knife [from] Mr.
Moffett's vehicle without his consent. Proof would
further show that on the next day [the Defendant] pawned the
crossbow at a pawn shop in LaFollette. The value of the
crossbow and the knife would be proven to be $855.00.
State presented the plea agreement to the trial court and the
following exchange occurred:
[THE STATE]: Judge, [the Defendant] is charged in a two count
indictment in docket number 107165. These two counts are
alternate counts -
THE COURT: Okay.
[THE STATE]: [O]f theft over $500.00 but less than $1, 000.00
occurring on . . . [June 3, 2015], a class E felony. [The
Defendant] will be pleading guilty to the ...