Judicial diversion is a process by which a defendant in a criminal case, who acknowledges guilt of an offense, may still avoid a criminal conviction under certain circumstances. The defendant generally must have no prior criminal convictions and complete a probationary period which may include other requirements imposed by the sentencing court. At the successful conclusion of the diversion terms and probationary period, and completion of payment of court costs and restitution if applicable, the charges can be dismissed by the sentencing court. Not all criminal offenses are eligible for this process. In determining whether to grant judicial diversion if it is requested, a sentencing court must determine eligibility and then must decide whether to grant it based on specific factors which must be weighed by the court in considering the request. In the recent Tennessee case of State v. Turner, M2013-00827-CCA-R3-CD (Tenn.Crim.App. 1-29-2014), the Court of Criminal Appeals reversed a trial court decision denying judicial diversion in a reckless homicide case, and remanded the case for further consideration by the trial court.
In the Turner case, the Defendant pled guilty to reckless homicide and reserved sentencing issues for a trial court hearing. The case arose out of an incident where the Defendant caused a fatal automobile accident while driving under the influence of prescription medication. One person was killed and three others seriously injured. The trial court imposed a sentence of three years, ordering confinement for six months and probation for the balance. The trial court also denied the Defendant’s request for judicial diversion, apparently basing the decision primarily on the fact that the Defendant’s criminal conduct resulted in a death.
The Court of Criminal Appeals noted that every offense of reckless homicide necessarily results in someone’s death, and yet reckless homicide is still a diversion eligible offense under Tennessee law. Therefore, the fact that a death occurred in this case should not be the primary or sole basis for denial of judicial diversion. They also concluded the evidentiary record did not show how the trial court weighed and considered all the relevant factors a court is supposed to consider in determining whether to grant or deny the request. So the case was remanded for further consideration.
For more information on criminal sentencing issues, contact The Lanzon Firm.