What is Diversion? Diversion is a broader term which may refer to either Pre-trial diversion or Judicial diversion. In either case, the purpose of diversion is to allow a defendant to admit some level of responsibility for a criminal act while avoiding a permanent conviction on their record. Pre-trial Diversion Under T.C.A. §40-15-105, pre-trial diversion is a method by which someone charged with a crime may avoid criminal prosecution. Pre-trial diversion requires the defendant to enter into a memorandum of understanding (MOU) with the State, in which the prosecutor agrees to suspend prosecuting the case for a set period of time, not to exceed two years. During this time, the defendant must follow certain conditions, including avoiding new charges and completing any agreed upon classes or treatment programs. If the defendant fails to complete the terms of the MOU, the diversion ceases and the State may proceed with prosecuting the case. Also, the MOU must include a written statement from the defendant describing his or her version of the facts of the alleged offenses. Once the conditions have been met and the set period of time has elapsed, the charges can be dismissed and expunged once the statutorily required fee has been paid to the court clerk. Pre-trial diversion is totally discretionary, and whether or not it may be offered to an individual depends entirely on the practice of that particular jurisdiction. Additionally, only certain offenses are eligible for pre-trial diversion and an individual would not qualify if they had any prior A or B misdemeanor convictions, or any felony convictions. Judicial Diversion Under T.C.A. §40-35-313, judicial diversion allows someone charged with a crime to be placed on probation for a set period of time, with certain conditions, without the judge entering a judgment of guilty. Unlike pre-trial diversion, judicial diversion is either granted by the judge after a defendant is found guilty, or by agreement if the defendant enters a conditional guilty plea. If the defendant violates the terms and conditions of probation, the judge may enter a judgment of guilty and proceed with sentencing the defendant, including a sentence of jail time. If the probationary period is successfully completed, the defendant can have the charges dismissed and permanently expunged from their record, once the fee set by statute has been paid to the court clerk. Not all offenses qualify for judicial diversion, and only someone who has never been convicted of a felony or class A misdemeanor for which a period of incarceration was served is eligible. For more information, see our Education Center post on Judicial Diversion here. Can I Get Diversion for my Current Charges? There are many factors that affect someone’s eligibility for either form of diversion, and this question can only be answered on a case by case basis. Before someone can be placed on Judicial Diversion, their attorney must submit a diversion application to the Tennessee Bureau of Investigation, after which the T.B.I. will provide a certificate that either confirms or denies eligibility for Judicial Diversion. The fee for this request is $100. The laws governing diversion are complex, and are often changing. Don’t assume you are eligible without first consulting an attorney. For those who are eligible, diversion is an incredible privilege that, if treated as such, affords someone charged with a crime a genuine opportunity to learn from their mistakes without suffering the life altering consequences of a criminal conviction.
What is Judicial Diversion? Judicial Diversion is an incredible privilege and opportunity that, if treated as such, affords someone charged with a crime a genuine opportunity to learn from their mistakes without suffering the life altering consequences of a criminal conviction. Under T.C.A. §40-35-313, Judicial Diversion allows a qualified defendant to enter a conditional guilty plea and after the defendant successfully completes probation, the charge is dismissed and can be permanently expunged from the defendant’s record. A “qualified defendant” for Judicial Diversion, pursuant to T.C.A. §40-35-313(a)(1)(B)(i), means a defendant who: Pleads guilty or nolo contendre to the charges; Is not seeking deferral of further proceedings for any offense committed by any elected or appointed person in the executive, legislative, or judicial branch of the state or any political subdivision of the state, which offense was committed in the person’s official capacity or involved the duties of the person’s office; Is not seeking Judicial Diversion for a sexual offense in violation of T.C.A §39-15-502, §71-6-117, or §71-6-119; Is not seeking Judicial Diversion for driving under the influence of an intoxicant as prohibited by T.C.A. §55-10-401, vehicular assault under T.C.A. §39-13-106 prior to service of the minimum sentence required by T.C.A. §39-13-106; Is not seeking Judicial Diversion for a Class A or B felony; Has not previously been convicted of a felony or a Class A misdemeanor for which a period of incarceration is served; Has not previously been granted Judicial Diversion or Pretrial Diversion. If a defendant is eligible for Judicial Diversion and either the district attorney’s office or the judge agrees to it, he or she will be conditionally sentenced to probation in lieu of incarceration. However, a recent change in the judicial diversion law does allow for up to 30 days to be served in jail prior to beginning the probation sentence. How long the probation period would be could range from 1 to 10 years depending on the charges, but typically judicial diversion sentences are less than 5 years. There are also additional conditions attached to probation in many cases, such as community service work, fines, treatment, and/or counseling. If the probationary period is successfully completed, the defendant can have the charges dismissed and permanently expunged from his or her record. However, if the defendant violates the terms and conditions of probation or receives a new criminal charge during the probationary period, the judge may enter a permanent judgment of guilty and proceed with sentencing the defendant, including requiring the defendant to serve jail time. Thus, during the diversion probationary period, it is essential that the defendant maintain good and lawful conduct, in addition to complying with any and all condition of his or her probation. Can I Get Judicial Diversion for my Current Charges? There are many factors that affect someone’s eligibility for Judicial Diversion, and this question can only be answered on a case-by-case basis. Before someone can be placed on Judicial Diversion, their attorney must submit a diversion application to the Tennessee Bureau of Investigation, after which the T.B.I. will provide a certificate that either confirms or denies eligibility for Judicial Diversion. The fee for this request is $100. The laws governing Judicial Diversion are complex and are often changing. Don’t assume you are eligible without first consulting an attorney. If you have been charged with a crime in Nashville or Middle Tennessee, call the criminal defense attorneys at Ryan C. Davis Law, PLLC at (615) 649-0110 to ensure that you receive a fair outcome in your case.