IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs October 3, 2023

STATE OF TENNESSEE v. JOHN BUTLER

Appeal from the Criminal Court for Shelby County

Nos. W2100939, W2100942, C2104512, C1204513 Paula L. Skahan, Judge

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No. W2023-00566-CCA-R3-CD

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ROBERT H. MONTGOMERY, JR., J., concurring in the results.

I concur in the majority’s conclusion that the trial court acted within its discretion 

in revoking the Defendant’s judicial diversion probation and imposing a three-year 

sentence. I part ways with my fellow panel members in my reasoning for this conclusion.

“In judicial diversion cases, no judgment of conviction is entered, and a sentence is 

imposed only in the instance that the defendant fails to successfully complete the period of 

probation pursuant to the grant of judicial diversion.” State v. Dycus, 458 S.W.3d 918, 928 

(Tenn. 2015); see T.C.A. § 40-35-313(a)(1)(A), (a)(2) (2019) (subsequently amended).

Tennessee Code Annotated section 40-35-313(a)(2) governs revocation of probation for a 

defendant placed on judicial diversion. In pertinent part, the statute provides, “Upon 

violation of a condition of the probation, the court may enter an adjudication of guilt and 

proceed as otherwise provided.” T.C.A. § 40-35-313(a)(2); see State v. Judkins, 185 

S.W.3d 422, 425 (Tenn. Crim. App. 2005) (interpreting “proceed as otherwise provided”

in Code § 40-35-313(a)(2) to authorize the trial court, upon revocation of judicial diversion, 

to impose a sentence consistent with the Sentencing Reform Act).

The enactments of 2016 Public Acts, chapter 906 and 2021 Public Acts, chapter 

409, sections 24 and 25 provided for graduated sanctions for probationers who committed 

technical violations, thereby amending Code section 40-35-311(e)(1), but these enactments

did not amend the Code section 40-35-313(a)(2), which forms the basis for sentencing of 

a defendant previously on judicial diversion probation upon the revocation of his diversion.

“[S]pecific statutory provisions control over general provisions.” Martin v. Powers, 505 

S.W.3d 512, 524 (Tenn. 2016) (citing Lovelace v. Copley, 418 S.W.3d 1, 20 (Tenn. 2013)).

I presume that when the Legislature enacted the 2016 and 2021 amendments, it was aware 

of its prior enactments, of existing law, and of how the courts of this state have previously 

construed those prior enactments. See, e.g., New v. Dumitrache, 604 S.W.3d 1, 14 (Tenn. 

11/28/2023
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2020). As a result, the graduated sanction provisions do not apply to the Defendant in this 

case, who was placed on judicial diversion probation. Based upon my reading of the 

majority opinion, I surmise that the other members of this panel disagree with my

conclusion that the graduated sanctions of the current probation statute do not apply to 

individuals who were ordered to complete a term of probation in conjunction with a grant 

of judicial diversion, without regard to the timing of the offense in relation to the enactment 

of the graduated sanctions provisions. This procedure is in contrast with the procedure 

applicable to those individuals who have been convicted of an offense and who were 

ordered to serve a sentence involving probation, to which the graduated sanctions 

provisions now apply.

The Defendant in the present case was granted judicial diversion and, although 

adjudicated guilty, no judgment and sentence were imposed. See T.C.A. § 40-35-

313(a)(1)(A). Rather, he was given a term of probation to complete and, if he did so 

successfully, the court would have been required to discharge him and dismiss the criminal 

proceedings against him. See id. at (a)(2) (“If, during the period of probation, the person 

does not violate any of the conditions of the probation, then upon expiration of the period, 

the court shall discharge the person and dismiss the proceedings against the person.”). The 

procedure for revocation of judicial diversion remains unchanged; whereas, the procedure 

for defendants placed on probation after entry of a judgment and sentencing proceedings 

is governed by the more general provisions of Code section 40-35-311, which include 

graduated sanctions for technical violations. See Martin, 505 S.W.3d at 524. 

If the trial court finds that a defendant has violated the terms of his judicial diversion 

probation, it may enter a judgment of guilt and sentence the defendant in accord with the 

Sentencing Reform Act. See id. § 40-35-313(a)(2) (“Upon violation of a condition of the 

probation, the court may enter an adjudication of guilt and proceed as otherwise 

provided.”); State v. Johnson, 15 S.W.3d 515, 519 (Tenn. Crim. App. 1999) (stating that a 

trial court which revokes a defendant’s judicial diversion shall sentence the defendant in 

accord with the Sentencing Reform Act and enter a judgment of conviction); State v. Brys 

Drew Hensley, No. E2012-00812-CCA-R3-CD, 2013 WL 793579, at *2 (Tenn. Crim. App. 

Mar. 4, 2013) (stating that if a defendant on judicial diversion probation violates a term of 

probation, the State may seek to revoke diversion, the trial court may revoke diversion, and 

upon revocation, the court shall sentence the defendant according to the Sentencing Reform 

Act) (citing Alder v. State, 108 S.W.3d 263, 266 (Tenn. Crim. App. 2002)).

Because the Defendant was placed on probation in conjunction with a grant of 

judicial diversion, the trial court was authorized to revoke the grant of diversion upon a 

showing that the Defendant had violated a term of his probation. See T.C.A. § 40-35-

313(a)(2). The court found that violations of the terms of probation alleged in the 

revocation warrant had occurred. The court determined that revocation of diversion and 
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entry of an adjudication of guilt was appropriate and proceeded to sentence the Defendant 

to an effective three-year incarcerative sentence. See id. § 35-13-313(a)(2); State v. 

Dagnan, 641 S.W.3d 751, 759 (Tenn. 2022); Alder, 108 S.W.3d at 266. The Defendant 

does not argue that the court erred in the imposition of the sentence once it revoked judicial 

diversion. The record does not demonstrate that the court abused its discretion. See State 

v. Pollard, 432 S.W.3d 851, 859 (Tenn. 2013) (providing for appellate review to challenges 

to the length of a sentence within the appropriate sentence range to be conducted “under 

an abuse of discretion standard with a ‘presumption of reasonableness.’”); Dagnan, 641 

S.W.3d at 757 (providing that a trial court’s determination regarding a probation revocation 

is reviewed for abuse of discretion).

With this rationale, I concur in the result reached by the majority.

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ROBERT H. MONTGOMERY, JR., JUDGE