Judicial diversion is a sentencing option available to a court in criminal cases in Tennessee for first time offenders and certain eligible offenses. It allows an eligible defendant to avoid a formal conviction if the defendant complies with certain terms and conditions and successfully completes a probationary period of time. The decision of whether to grant or deny judicial diversion is a decision to be made by the sentencing court. But the decision must be made within the confines of established law, and specific factors established by legal precedent. In the recent case of State . Gobble, E2014-01596-CCA-R3-CD (Tenn.Crim.App. 8-12-2015), the Tennessee Court of Criminal Appeals reversed a trial court denial of judicial diversion because the trial court based its decision on an irrelevant (and impermissible) consideration.

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In the Gobble case, the Defendant pled guilty to leaving the scene of an accident involving death. The Defendant, a twenty-year old student and first time offender, sought judicial diversion. Her positive social and behavioral history appeared to indicate she was a favorable candidate for it. However, at the sentencing hearing, the trial court seemed to be troubled by the State’s decision to only charge her with leaving the scene of an accident involving death, rather than vehicular homicide, despite the lack of any evidence that the Defendant had been using drugs or alcohol.

The trial court expressed its dissatisfaction with the charge several times and stated the Defendant had received a “gift” by not being charged with vehicular homicide. On appeal of the denial of diversion, the Court of Criminal Appeals concluded the trial court based its decision, at least in part, on its view that the Defendant should have been charged with a more serious offense. This is not a proper factor to be considered in determining whether to grant or deny a diversion. The charging decision was a decision for the State to make. A court’s dissatisfaction with that decision is not one of the relevant factors to consider in determining whether to grant judicial diversion. The Court of Criminal Appeals reversed the ruling and placed the Defendant on diversion for four years.

For more information about sentencing options in criminal cases, contact The Lanzon Firm.