JUDICIAL DIVERSION – TENN CODE ANN. 40-35-313
We all make mistakes and one mistake should not define a person. If this is the first time you’ve been charged with a crime or crimes, understandably you are worried. If you have gone a step further and researched the maximum punishments that accompany the crime(s) you are charged with, you are keeping yourself up at night worrying. Any criminal conviction on one’s record can have significant consequences on their ability to obtain jobs, housing, or loans. REST ASSURED. Fortunately, Tennessee has a program for one-time offenders called Judicial Diversion, although it could be more accurately described as Tennessee’s “Golden Ticket.”
WHAT IS JUDICIAL DIVERSION?
Judicial Diversion, which is governed by Tennessee Code Annotated 40-35-313, is an option for anyone who has not previously been convicted of most Class C,D and E felonies or misdemeanor offense, and who has not previously entered into a diversion program. Judicial diversion allows a qualified defendant to enter a conditional plea of guilty and after the defendant successfully completes probation, the diverted charge is dismissed and can be expunged off the defendant’s record.
WHAT ARE THE REQUIREMENTS OF JUDICIAL DIVERSION?
A “qualified defendant” for judicial diversion under 40-35-313 (a)(1)(B)(i) means a defendant who:
- (a) Is found guilty of or pleads guilty or nolo contendere to the offense for which deferral of further proceedings is sought;
- (b) 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;
- (c) Is not seeking deferral of further proceedings for a sexual offense, a violation of § 39-15-502, § 71-6-117, or § 71-6-119, driving under the influence of an intoxicant as prohibited by § 55-10-401, vehicular assault under § 39-13-106 prior to service of the minimum sentence required by § 39-13-106, or a Class A or B felony;
- (d) Has not previously been convicted of a felony or a Class A misdemeanor for which a sentence of confinement is served; and
- (e) Has not previously been granted judicial diversion under this chapter or pretrial diversion.
Prior to entering the conditional plea, an application must be sent to the Tennessee Bureau of Investigation to determine whether or not you have previous charges that would render you ineligible for diversion. If you are eligible and a judge agrees to place you on judicial diversion, you will be required to go on a period of probation, typically from 6 to 18 months. During your probation period, you are required to maintain good and lawful conduct. In many cases, there are additional conditions attached to your probation such as community service work, fines, the payment of restitution to victims, and/or treatment or counseling programs. In addition to the $45 a month probation fees, you are also required to pay your court costs before the end of your probation period.
WHAT IF I DON’T FOLLOW THE RULES?
If you fail to meet the conditions of your probation, or you receive a new charge during your probation period, the judge may revoke your diversion and sentence you under the charge that was diverted. According to the judicial diversion statute, if probation is violated, “the court may enter an adjudication of guilt and proceed as otherwise provided.” Tenn. Code Ann. 40-35-313(a)(2). This means that failure to comply with the rules of your diversion may require you to serve jail time.
YOU’VE SUCCESSFULLY COMPLETED DIVERSION: WHAT NOW?
After you have successfully completed your probation term and complied with all diversion conditions, you (or your attorney) can return to court and request that the charge or charges be permanently expunged from your record. Pursuant to Tenn. Code Ann. 40-35-313, upon the dismissal of the person and discharge of the proceedings against the person under subsection (a), the person may apply to the court for an order to expunge from all official records, other than the nonpublic records to be retained by the court under subsection (a) and the public records that are defined in § 40-32-101(b), all recordation relating to the person’s arrest, indictment or information, trial, finding of guilty and dismissal and discharge pursuant to this section.
GIVE US A CALL
If you have been charged with an offense in Davidson, Williamson, Rutherford, or any surrounding Middle Tennessee county and wish to know more about your diversion options and how to fight your charges, contact one of the experienced criminal defense attorneys at Freeman & Fuson. You may be eligible to have your charge or charges diverted, eventually dismissed, and permanently expunged from your record. One mistake does not define you. We can help you navigate the process of using your Golden Ticket and ensure that your rights are fully asserted and protected.