TN Court of Criminal Appeals Rejects "Diversion" Appeal

By Jay Perry

The Tennessee Court of Criminal Appeals recently sided with the trial judge in rejecting a request for “judicial diversion” in State v. Krystal Bowman.  Judicial diversion refers to a process by which a trial court can defer proceedings in a criminal case.  What this typical means is that after a guilty plea the court will withhold judgment for the probationary period.  At the end of that period, if all of the provisions of probation have been complied with, the court will dismiss the case and the defendant may have his/her record expunged.

Judicial diversion is only available for defendants who have pled guilty (or been found guilty) of a Class C felony or less.  Furthermore, a defendant is only eligible for diversion if they have never previously been convicted of a felony or Class A misdemeanor.  Judicial diversion is a helpful option for people who find themselves before a criminal court for the first time.  It allows for such individuals to take responsibility for their actions while still having the opportunity to live the remainder of their lives without the awful burden of a criminal conviction on their record. 

Judicial diversion is not automatic, however, as State v. Krystal Bowman demonstrates.  The defendant in the case had originally been charged with five counts of forgery and one count of Theft over $60,000.  She only pled guilty to one reduced court, that of Theft over $10,000, a Class C felony.  The theft occurred from her employer who it was alleged she had been embezzling money from for over one year.  The total amount stolen was a matter of some dispute but as part of the plea the defendant agreed to pay $44,000 in restitution.  While the defendant in the case was eligible for diversion, the trial judge ruled against granting it at a sentencing hearing.  Central to the trial court’s rejection of diversion was that the theft had been ongoing over a long period of time.  It also noted that the theft had caused a large financial problem for her employer and even forced them to take out a $130,000 mortgage to stay in business. 

The Defendant appealed that decision and the appellate court reviewed the lower court’s decision under an “abuse of discretion” standard.  This means that the appellate court only reviews to ensure that the record contains any substantial evidence supporting the trial court’s decision.  In the end, the Court of Criminal Appeals agreed with the trial court noting that the defendant had been already been allowed to plead guilty to only one charge and that the “record support’s the trial court’s decision to deny further largess in the form of judicial diversion.”