Alternatives to Revocation of Judicial Diversion

What happens when a defendant who is on judicial diversion violates the terms of the diversion agreement? Off to prison to serve the original sentence? Not necessarily. The trial court retains considerable discretion in forming a remedy.[1]

Tennessee statutes provide for probation and even judicial diversion for worthy defendants. The diversion statute allows defendants the possibility of having their cases dismissed and records expunged upon the successful completion of a term of probation.[2] Judicial diversion allows a qualified, deserving defendant the opportunity to complete probation and to get the case dismissed and expunged — in effect a clean slate.

Unfortunately, sometimes our clients seem to have an extraordinary ability to mess up our best work. What happens when defendants can’t keep all of their promises to the court? Revocation of judicial diversion has serious consequences including the imposition of a criminal conviction that likely will be on the defendant’s record forever. Often, we assume that the only question is whether the defendant violated the terms of probation, and if so the defendant gets revoked, conviction is entered and the defendant is sentenced to serve the original sentence.

The statute governing revocation of diversion, however, gives the court a permissive authority to revoke diversion upon a violation. “Upon violation of a condition of the probation, the court may enter an adjudication of guilt and proceed as otherwise provided.”[3]

Recently, in State v. Hensley, the Court of Criminal Appeals examined this permissive language and held that revocation is not mandatory upon a finding of violation of a condition of diversion.[4] “The General Assembly’s use of the permissive term ‘may’ indicates that a trial court retains the discretion to leave the defendant on judicial diversion, even after it finds that the defendant violated the terms of his diversionary probation.”[5]

In Hensley, the trial court expressed the opinion that once it determined the defendant violated the terms of his judicial diversion, it had no choice but to revoke diversion, enter a judgment of conviction, and impose sentence.[6]

The trial court’s opinion was based on its understanding of State v. Johnson.[7] In Johnson, the Court of Criminal Appeals determined that the record supported the trial court’s decision to revoke Johnson’s diversion and decided to “take this opportunity to clarify the procedure to be utilized in cases involving the revocation of judicial diversion.” The procedure suggested by the court consisted of the following:

  1. Upon placing a defendant on judicial diversion, the trial court shall enter an order reflecting the grant of judicial diversion, the length and conditions of probation, and that further proceedings are deferred.[8]  This shall be by order and not by the entry of the customary judgment of conviction form. A standard probation order may also be entered. Jail time may not be imposed as a condition of probation under the judicial diversion statute.
  2. If there is an alleged violation of probation, the matter shall proceed under the ordinary procedure for revocation of probation.[9]
  3. If the trial court determines by a preponderance of the evidence that the defendant has violated probation, the trial court may find a violation of probation.[10]
  4. Upon finding a violation of probation, the trial court shall proceed to sentence the defendant for the original offense.[11] Sentencing shall proceed pursuant to the standard provisions of the Sentencing Act.[12]
  5. The trial court shall then enter a standard judgment of conviction form reflecting the sentence. Either under the special conditions portion of the judgment form or by separate order, there should also be a notation that the judgment is being entered pursuant to the judicial diversion statute based upon a violation of probation.[13]

Despite the wording of paragraph 4 of Johnson (above), the Hensley court clarified that trial courts have the discretion to revoke or allow a defendant to continue on diversion:

Thus, properly construed, Johnson’s numbered paragraph 4 actually advises the following: “Upon finding a violation of probation, and then determining that judicial diversion should be revoked, the trial court shall proceed to sentence the defendant for the original offense.”

Construed literally, however, as the trial court apparently did in this case, the dictum contained in paragraph 4 of Johnson could be construed as contrary to the express language of the relevant statute. As set forth above, the judicial diversion statute grants the trial court the discretion to revoke diversion upon its finding of a probation violation. See Tenn. Code Ann. § 40–35–313(a)(2).[14]

If the court decides to revoke diversion, the court retains the full array of sentencing options — not just to order the service of the full sentence. The court, after a hearing, could place the defendant on probation, enhanced probation, community alternatives to prison, etc.[15]

Many plea agreements provide an agreed sentence and that the defendant will apply for diversion. There is an argument, however, that such an agreement would not survive the revocation because, upon revocation of diversion, the court is bound by Tenn. Code Ann. § 40-35-210(b) to consider the normal principals of sentencing before imposing sentence upon revocation of diversion.[16 ]

I’m not advocating that defendants routinely receive a second, second chance. There may be occasions, however, such as a minor infraction after years of successfully adhering to the requirements of probation, when the court may wish to exercise its discretion not to revoke diversion, even when there has been a violation, and even upon revocation, the court has discretion to consider available alternatives to incarceration.

Notes

  1. Credit goes to my law partner Steve Johnson for researching and developing this issue.
  2. Tenn. Code Ann. 40-35-313 (the statute refers to the authority of the court to “defer” proceedings, which is generally known as “judicial diversion”).
  3. Tenn. Code Ann. § 40-35-313(a)(2).
  4. State v. Hensley, 2013 WL 793579 at*2 (Tenn.Crim.App. 3/4/2013).
  5. State v. Hensley, 2013 WL 793579 at *2 (citing State v. Hunter, 1 S.W.3d 643, 648 (Tenn.1999).
  6. Id., 2013 WL 793679 at 1.
  7. State v. Johnson, 15 S.W.3d 515 (Tenn.Crim.App.1999).
  8. See Tenn. Code Ann. § 40–35–313(a)(1)(A).
  9. See Tenn. Code Ann. § 40–35–311(a).
  10. See Tenn. Code Ann. § 40–35–311(e).
  11. See Tenn. Code Ann. § 40–35–313(a)(2).
  12. See Tenn. Code Ann. § 40–35–101 et seq.
  13. State v. Johnson, 15 S.W.3d at 518-19. (emphasis added).
  14. State v. Hensley, 2013 WL 793579, *4 (Tenn. Crim. App. 2013).
  15. See Tenn. Code Ann. 40-35-104.
  16. See State v. Judkins, 185 S.W.3d 422 (Tenn.Crim.App. 2005).

WADE DAVIES is the managing partner at Ritchie, Dillard, Davies & Johnson PC in Knoxville. He is a 1993 graduate of the University of Tennessee College of Law. The majority of his practice has always been devoted to criminal defense. Davies is a member of the Tennessee Bar Journal Editorial Board.