# FILED
March 13, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON JANUARY 1998 SESSION

STATE OF TENNESSEE, ) ) APPELLEE, )

) No. 02-C-01-9703-CR-0 0094 ) ) Shelby County v. ) ) Arthur T. Benn ett, Judge ) ) (Sentencing) CHERYL D. SUDDUTH, ) ) APPELLANT. )

FOR THE APPE LLANT: FOR THE APPELLEE: Coleman W. Garrett John Knox Walkup Attorney at Law Attorney General & Repor ter 200 Jefferson Avenue, Suite 850 425 Fifth Avenue, North Memphis, TN 38103 Nashville, TN 37243-0493 (Appeal Only) Clinton J. Morgan Gerald S. Green Counsel for the State Attorney at Law 425 Fifth Avenue, North 147 Jefferson Avenue, Suite 714 Nashville, TN 37243-0493 Memphis, TN 38103 (Trial On ly) William L. Gibbons District Attorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103 Jamey S. Kaplan Assistant District A

ttorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103 Charles W. Bell Assistant District A

ttorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103

OPINION FILED:____________________________ AFFIRMED Joe B. Jones, Pre siding Judge2 

## O P I N I O N

The appellan t, Cheryl D. Sudduth (defendant), was convicted of forgery in excess of $10,000, a Class C felony, following her pl ea of guilt y to the offense. The trial court , finding the defendant

to be a standard offender, imposed a Range I s entence consisting of a $1,000 fine and confinement for four (4) y ears in the Shelby County Correctional Center. The trial court suspended the defendant’s sentence and placed her on pr obation for a period of five (5) years. In this court, the defendant contends the trial court abused its discretion by refusing to grant he rjudicial diversi on. After a thorough revi ew of the record, the bri efs submitted by the parties, and the law governing the issue presented for review, it is the opinion of this cou rt that the judgment of the trial court should be

affirmed. The facts in this case wer e sti pulated to at

the submissi on hearing.The STM Mortgage Company of Dallas, Texas, issued acheck in the amount of $17,704.24. The checkwas made payable to Ronal d Sudduth and Cheryl Sudduth and Cummins Construction Company (correctlyspelled “Cummings”).The defendant forg ed the name of Cummings Construction Company on the back of the check by using a com pany stamp without permission betw een September 20, 1991, and October 15, 1991. The defendant was indicted o n April 16 , 1992, b y the Shelb y County Gra nd Jury. It appears the defendant was not in custody when s he was indicted. A capias was issued forher arrest on April 16, 1992. She wasarrested and placed in the Shelby County Jail

on April 22, 1992. The defendant was thirty-one years of age when s he was sentenced. She was
s ingle. S he has one daughter who w as thirteen years of age a t sentencing. The defendant is a graduate of State Technical Institute in Memphis. She graduated in 1979. According to th e pres entence report, the defendant was employed by the Shelby County Government from 1985until 1990. She was fired,but the reason she was fired is not provided. She work ed for Federal Express from M ay of 1992 until Oc t ober of 1992. She resigned from this position. He r last place of employment was Spiffy Cleaners. It appears she was released because the business closed. When a defendant contends the trial court committed error in refusing to impose a3

sentence pursuant to Tenn. Code Ann. § 40-35- 313, commonly referred to as “ judicial diversion,”

the standard of review is an abuse ofdiscretion. State v. Bonestel , 871 S.W.2d 163, 167 (Tenn. Crim. App. 1993); State v. Anderson , 857 S.W.2d 571, 572 (Tenn. Cr im. App. 1992); State v. George , 830 S.W.2d 79, 80 (Tenn. Crim. App. 1992). Thus, this court must determine whether the trial court abused it s discretio n in refusing to grant the defendant judicial divers ion. In this case, the trial cou rt considered the defendant’s acq uisition of a sta mp for endorsing the check from the victim’s business. She had a prior convic ti on for driving without a license. The court also t ook into consideration the defendant’ s apparent lack of candor. The trial court stated: “ What you want to do is tell the truth

. And see, you were kind of shading it about a couple of thi ngs. . . .” The trial c ourt also considered the circumstances of the offense and the amount in controversy. The trial court did not abuse its discretion in refusing to grant judic ial diversion. The factors considered by the tr ial court support its dec ision in this regard

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______________________ _ JOE B. JONES, PRESID ING JUDGE

CONCUR:

______________________________________ PAUL G. SUMMERS, JUD GE

______________________________________ DAVID G. HAYES, JUD GE