What is the name of your state?What is the name of your state? Tennessee
I posted earlier about a judge denying me Pretrial Diversion for a misdemenor charge of resisting arrest, despite the fact that it is my first offense (I am 43 years old) and happened under very difficult circumstances. But I was surprized with the stiffness of the punishment, which was as follows:
1. two days in jail
2. fine, in the amount of $800
3. six months probation
4. community service, 48 hours
My earlier post was about my right to pretrial diversion for which I obtained a document of elegeability. What are my options, I cannot see myself with a criminal record because it is not me. I am so demoralized by it and would spare no effort to get this issue expunged.
I have done some research and found very relevant information, please help.
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VIII. Judicial Diversion.
The defendant complains that the trial court erred in denying judicial diversion. See
Tenn. Code Ann. § 40-35-313(a)(1) (2003). This procedure is similar to pretrial diversion; however, judicial diversion follows a determination of guilt, and the decision to grant diversion rests with the trial court, not the prosecutor. State v. Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992). The presumption of favorable candidacy for alternative sentencing set forth in Tennessee Code Annotated section 40-35-102(6) does not apply, and a denial of judicial diversion is subject to reversal on appeal only if that court abused its discretion. State v. Electroplating, Inc., 990 S.W.2d 211, 228-29 (Tenn. Crim. App. 1998); State v. Bonestel, 871 S.W.2d 163, 167 (Tenn. Crim. App. 1993), overruled in part on other grounds by State v. Hooper, 29 S.W.3d 1 (Tenn. 2000). When a defendant challenges the denial of judicial diversion, we may not revisit the issue of whether the record contains any substantial evidence supporting the trial court’s decision. State v. Robinson, 139 S.W.3d 661, 665 (Tenn. Crim. App. 2004); State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996).
In determining whether to grant judicial diversion, the trial court must consider
(a) the accused’s amenability to correction,
(b) the circumstances of the offense,
(c) the accused’s criminal record,
(d) the accused’s social history,
(e) the accused’s physical and mental health,
(f) the deterrence value to the accused as well as others, and
(g) whether judicial diversion will serve the interests of the public as well as the accused.
Parker, 932 S.W.2d at 958; Bonestel, 871 S.W.2d at 168. Moreover, the record must reflect that the court has weighed all of the factors in reaching its determination. The court must explain on the record why the defendant does not qualify under its analysis, and if the court has based its determination on only some of the factors, it must explain why these factors outweigh the others. Id.
JUDICIAL DIVERSION
When a defendant contends that the trial court committed error in refusing to impose a
sentence pursuant to Tenn. Code Ann. § 40-35-313, commonly referred to as “judicial diversion,” this Court must determine whether the trial court abused its discretion in failing to sentence pursuant to the statute. State v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim. App. 1997); State v. Bonestel, 871 S.W.2d 163, 167 (Tenn. Crim. App. 1993). Judicial diversion is similar to pretrial diversion; however, judicial diversion follows a determination of guilt, and the decision to grant judicial diversion rests with the trial court, not the prosecutor. State v. Anderson, 857 S.W.2d 571, 572
(Tenn. Crim. App. 1992). When a defendant challenges the trial court’s denial of judicial diversion, we may not revisit the issue if the record contains any substantial evidence supporting the trial court’s decision. Cutshaw, 967 S.W.2d at 344; Parker, 932 S.W.2d at 958. The criteria that must be considered in determining whether an eligible accused should be granted judicial diversion include: (a) the defendant’s amenability to correction; (b) the circumstances of the offense; (c) the defendant’s criminal record; (d) the defendant’s social history; (e) the defendant’s physical and mental health; and (f) the deterrence value to the defendant and others. Cutshaw, 967 S.W.2d at 343-44; Parker, 932 S.W.2d at 958. An additional consideration is whether judicial diversion will serve the ends of justice, i.e., the interests of the public as well as the defendant. Cutshaw, 967 S.W.2d at 344; Parker, 932 S.W.2d at 958.
ANALYSIS
Firstly, we do not feel we can effectively review the circumstances of the offenses due to the absence of the guilty plea transcript. See Keen, 996 S.W.2d at 844. The circumstances of the offenses are indeed important in determining whether the defendant should be granted judicial diversion. See Cutshaw, 967 S.W.2d at 344; Parker, 932 S.W.2d at 958. We, therefore, presume the trial court was correct. Keen, 996 S.W.2d at 844.
Secondly, we reject the defendant's contention that he has been unduly penalized simply because he was a law enforcement officer. A defendant's status as a law enforcement officer need not be ignored by a sentencing court in deciding whether or not to grant the largess of judicial diversion. On the other hand, a law enforcement officer should not automatically be excluded from consideration from judicial diversion simply because of his or her employment status, especially for an off-duty, non-job related offense. One's employment status is simply one factor, among many, to consider in making the judicial diversion determination. The issue before this court is not whether defendant is a suitable candidate for alternative sentencing. He is a good candidate for and has been granted an alternative sentence in the form of full probation. The sole question before this court is whether there is any substantial evidence to support the denial of judicial diversion. Anderson, 857 S.W.2d at 572. We conclude, after considering the entire record in light of the findings of the trial court, that there is. The defendant relies upon our opinion in State v. James M. Williams, No. 02C01-9710-CR- 00388, 1999 WL 2848 (Tenn. Crim. App. filed January 5, 1999, at Jackson), perm. to app. Denied (Tenn. 1999), and argues that defendant's status as a law enforcement officer should not be used as the basis for denying judicial diversion for offenses unrelated to his employment. However, in
Williams we upheld the denial of judicial diversion while granting probation. While a defendant may be presumed to be a favorable candidate for alternative sentencing, no such presumption exists with regard to judicial diversion. Thus, in Williams we concluded that, even though diversion would have been appropriate, we should defer to the decision of the trial court to deny judicial diversion, absent a clear abuse of discretion.
http://www.tsc.state.tn.us/opinions...2/LewisTLII.pdf
The reasoning behind the practice is that people who commit a minor offense, or who are acquitted of crimes, should not be stigmatized with an arrest or criminal record.
STATE OF TENNESSEE v. DONALD J. MOORE
Court:TCCA
Attorneys:
Timothy S. Priest, Winchester, Tennessee, for the appellant, Donald J.
Moore.
Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; and Kenneth J. Shelton, Jr., Assistant
District Attorney General, for the appellee, State of Tennessee.
Judge: LAFFERTY
First Paragraph:
At the conclusion of a sentencing hearing, the trial court imposed a
sentence of 11 months and 29 days in the Coffee County jail with
Defendant to serve 90 days before being released to probation for the
offense of simple possession of a controlled substance, to wit:
methamphetamine, plus a fine of $1,000. In this appeal as of right,
Defendant asserts: (1) That the trial court abused its discretion in
failing to sentence the Defendant to judicial diversion provided by
Tenn. Code Ann. S 40-35-313; (2) Whether the trial court properly
weighed the mitigating factors presented by Defendant in the
sentencing hearing?; and (3) Whether the trial court imposed an
excessive sentence? After a review of the entire record, briefs of
parties, oral arguments and applicable law, we find the trial court
abused its discretion in denying judicial diversion and remand for a
judgment of judicial diversion. Thus, the trial court's judgment is
reversed and remanded.
I posted earlier about a judge denying me Pretrial Diversion for a misdemenor charge of resisting arrest, despite the fact that it is my first offense (I am 43 years old) and happened under very difficult circumstances. But I was surprized with the stiffness of the punishment, which was as follows:
1. two days in jail
2. fine, in the amount of $800
3. six months probation
4. community service, 48 hours
My earlier post was about my right to pretrial diversion for which I obtained a document of elegeability. What are my options, I cannot see myself with a criminal record because it is not me. I am so demoralized by it and would spare no effort to get this issue expunged.
I have done some research and found very relevant information, please help.
============
VIII. Judicial Diversion.
The defendant complains that the trial court erred in denying judicial diversion. See
Tenn. Code Ann. § 40-35-313(a)(1) (2003). This procedure is similar to pretrial diversion; however, judicial diversion follows a determination of guilt, and the decision to grant diversion rests with the trial court, not the prosecutor. State v. Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992). The presumption of favorable candidacy for alternative sentencing set forth in Tennessee Code Annotated section 40-35-102(6) does not apply, and a denial of judicial diversion is subject to reversal on appeal only if that court abused its discretion. State v. Electroplating, Inc., 990 S.W.2d 211, 228-29 (Tenn. Crim. App. 1998); State v. Bonestel, 871 S.W.2d 163, 167 (Tenn. Crim. App. 1993), overruled in part on other grounds by State v. Hooper, 29 S.W.3d 1 (Tenn. 2000). When a defendant challenges the denial of judicial diversion, we may not revisit the issue of whether the record contains any substantial evidence supporting the trial court’s decision. State v. Robinson, 139 S.W.3d 661, 665 (Tenn. Crim. App. 2004); State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996).
In determining whether to grant judicial diversion, the trial court must consider
(a) the accused’s amenability to correction,
(b) the circumstances of the offense,
(c) the accused’s criminal record,
(d) the accused’s social history,
(e) the accused’s physical and mental health,
(f) the deterrence value to the accused as well as others, and
(g) whether judicial diversion will serve the interests of the public as well as the accused.
Parker, 932 S.W.2d at 958; Bonestel, 871 S.W.2d at 168. Moreover, the record must reflect that the court has weighed all of the factors in reaching its determination. The court must explain on the record why the defendant does not qualify under its analysis, and if the court has based its determination on only some of the factors, it must explain why these factors outweigh the others. Id.
JUDICIAL DIVERSION
When a defendant contends that the trial court committed error in refusing to impose a
sentence pursuant to Tenn. Code Ann. § 40-35-313, commonly referred to as “judicial diversion,” this Court must determine whether the trial court abused its discretion in failing to sentence pursuant to the statute. State v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim. App. 1997); State v. Bonestel, 871 S.W.2d 163, 167 (Tenn. Crim. App. 1993). Judicial diversion is similar to pretrial diversion; however, judicial diversion follows a determination of guilt, and the decision to grant judicial diversion rests with the trial court, not the prosecutor. State v. Anderson, 857 S.W.2d 571, 572
(Tenn. Crim. App. 1992). When a defendant challenges the trial court’s denial of judicial diversion, we may not revisit the issue if the record contains any substantial evidence supporting the trial court’s decision. Cutshaw, 967 S.W.2d at 344; Parker, 932 S.W.2d at 958. The criteria that must be considered in determining whether an eligible accused should be granted judicial diversion include: (a) the defendant’s amenability to correction; (b) the circumstances of the offense; (c) the defendant’s criminal record; (d) the defendant’s social history; (e) the defendant’s physical and mental health; and (f) the deterrence value to the defendant and others. Cutshaw, 967 S.W.2d at 343-44; Parker, 932 S.W.2d at 958. An additional consideration is whether judicial diversion will serve the ends of justice, i.e., the interests of the public as well as the defendant. Cutshaw, 967 S.W.2d at 344; Parker, 932 S.W.2d at 958.
ANALYSIS
Firstly, we do not feel we can effectively review the circumstances of the offenses due to the absence of the guilty plea transcript. See Keen, 996 S.W.2d at 844. The circumstances of the offenses are indeed important in determining whether the defendant should be granted judicial diversion. See Cutshaw, 967 S.W.2d at 344; Parker, 932 S.W.2d at 958. We, therefore, presume the trial court was correct. Keen, 996 S.W.2d at 844.
Secondly, we reject the defendant's contention that he has been unduly penalized simply because he was a law enforcement officer. A defendant's status as a law enforcement officer need not be ignored by a sentencing court in deciding whether or not to grant the largess of judicial diversion. On the other hand, a law enforcement officer should not automatically be excluded from consideration from judicial diversion simply because of his or her employment status, especially for an off-duty, non-job related offense. One's employment status is simply one factor, among many, to consider in making the judicial diversion determination. The issue before this court is not whether defendant is a suitable candidate for alternative sentencing. He is a good candidate for and has been granted an alternative sentence in the form of full probation. The sole question before this court is whether there is any substantial evidence to support the denial of judicial diversion. Anderson, 857 S.W.2d at 572. We conclude, after considering the entire record in light of the findings of the trial court, that there is. The defendant relies upon our opinion in State v. James M. Williams, No. 02C01-9710-CR- 00388, 1999 WL 2848 (Tenn. Crim. App. filed January 5, 1999, at Jackson), perm. to app. Denied (Tenn. 1999), and argues that defendant's status as a law enforcement officer should not be used as the basis for denying judicial diversion for offenses unrelated to his employment. However, in
Williams we upheld the denial of judicial diversion while granting probation. While a defendant may be presumed to be a favorable candidate for alternative sentencing, no such presumption exists with regard to judicial diversion. Thus, in Williams we concluded that, even though diversion would have been appropriate, we should defer to the decision of the trial court to deny judicial diversion, absent a clear abuse of discretion.
http://www.tsc.state.tn.us/opinions...2/LewisTLII.pdf
The reasoning behind the practice is that people who commit a minor offense, or who are acquitted of crimes, should not be stigmatized with an arrest or criminal record.
STATE OF TENNESSEE v. DONALD J. MOORE
Court:TCCA
Attorneys:
Timothy S. Priest, Winchester, Tennessee, for the appellant, Donald J.
Moore.
Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; and Kenneth J. Shelton, Jr., Assistant
District Attorney General, for the appellee, State of Tennessee.
Judge: LAFFERTY
First Paragraph:
At the conclusion of a sentencing hearing, the trial court imposed a
sentence of 11 months and 29 days in the Coffee County jail with
Defendant to serve 90 days before being released to probation for the
offense of simple possession of a controlled substance, to wit:
methamphetamine, plus a fine of $1,000. In this appeal as of right,
Defendant asserts: (1) That the trial court abused its discretion in
failing to sentence the Defendant to judicial diversion provided by
Tenn. Code Ann. S 40-35-313; (2) Whether the trial court properly
weighed the mitigating factors presented by Defendant in the
sentencing hearing?; and (3) Whether the trial court imposed an
excessive sentence? After a review of the entire record, briefs of
parties, oral arguments and applicable law, we find the trial court
abused its discretion in denying judicial diversion and remand for a
judgment of judicial diversion. Thus, the trial court's judgment is
reversed and remanded.