by Jonathan Carroll and Ryan C. Davis
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.
