IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

September 20, 2017 Session

STATE OF TENNESSEE v. MICHAEL NELSON HURT

Appeal from the Criminal Court for Hamblen County

No. 15-CR-476, 15-CR-477, 15-CR-478, 15-CR-479, 16-CR-073

Alex E. Pearson, Judge

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No. E2016-02507-CCA-R3-CD

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Defendant, Michael Nelson Hurt, pled guilty to official misconduct and theft of property 

valued over $1000 and accepted an out-of-range sentence of six years’ probation. 

Defendant applied to the trial court for judicial diversion, which the trial court denied. 

On appeal, Defendant argues that the trial court erred in failing to consider all of the 

common law factors in determining Defendant’s suitability for diversion, resulting in a 

sentence that is disproportionately punitive. Upon our review of the record, we affirm the 

judgments of the trial court but remand the case for the entry of judgment forms on each 

charge that was disposed of by way of the plea agreement.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

and Remanded

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER, J., joined. NORMA MCGEE OGLE, J., concurring in results only.

Troy L. Bowlin II, Morristown, Tennessee, for the appellant, Michael Nelson Hurt.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant 

Attorney General; Dan E. Armstrong, District Attorney General; and Richie Collins, 

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural Background

12/18/2017
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The Hamblen County Grand Jury issued a presentment charging Defendant with 

one count of official misconduct in case number 15-CR-476 and one count of theft of 

property valued over $1000 but less than $10,000 in case number 15-CR-478.1 

Defendant pled guilty as charged in those two cases in exchange for a negotiated out-ofrange sentence of six years on each count to be served concurrently and restitution in the 

amount of $4829.50.

2

 The parties agreed that Defendant would serve his sentence on 

probation and that he could seek judicial diversion at the trial court’s discretion. 

On November 18, 2016, the trial court held a hearing to accept Defendant’s guilty 

plea and to determine the issue of judicial diversion. In lieu of a formal presentation of 

the facts, Defendant agreed that the State could submit a written statement of the 

evidence. While that written statement is not included in the record on appeal, the State 

provided the following summary of the facts during the trial court’s consideration of 

judicial diversion:

Judge, as the Court is aware, [Defendant] was an employee of the 

Morristown Police Department for many years. He was actually a detective

sergeant. As part of his duties, judge, he was in charge of the impound lots. 

Specifically, as it relates to this case, he was in charge of vehicles that had 

been subjected to civil seizures.

. . . .

And for those vehicles whose owners had negotiated their return 

with the Department of Safety, he would collect those monies from those

individuals and return those vehicles to their respective owners and then 

deposit that money into the City of Morristown’s treasury, into their 

account. 

Had this case gone to trial, the [S]tate would have put on proof that 

there were three instances involving automobiles. One count involved the 

 

1

It appears that Defendant was also charged in case number 15-CR-477 with theft of property 

valued under $500; in case number 15-CR-479 with theft of property valued over $1000; and in case 

number 16-CR-073 with four counts of official misconduct, one count of theft of property valued over

$500, and one count of theft of property valued under $500. However, these indictments are not in the 

record on appeal. 

2 While the parties specifically mentioned during the plea hearing that the charges in case 

numbers 15-CR-477, 15-CR-479, and 16-CR-073 would be dismissed, there are no judgment forms in the 

record for these cases. On remand, the trial court should enter judgment forms reflecting the disposition 

of each count of each indictment that was disposed of by way of this plea agreement. See State v. 

Davidson, 509 S.W.3d 156, 217 (Tenn. 2016) (requiring a trial court to prepare a uniform judgment 

document for each count of the indictment).
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negotiated return was [sic] five thousand. That was paid to [Defendant]. 

One thousand of that was deposited. Four thousand was not. There was 

four thousand dollars found in the glove box of his city[-]issued vehicle, 

four thousand in cash.

The other -- There was another instance that involved the specified 

amount was five thousand dollars. [Defendant] -- The [S]tate would allege 

probably -- Well, there’s no doubt that he exceeded his authority. He 

renegotiated that down to thirty-five hundred dollars -- No, I apologize.

That was fifteen hundred dollars. He actually renegotiated that to fifteen 

hundred, which he was paid that, so that was thirty-five hundred dollars less 

than what the Department of Safety and the vehicle owner had agreed to.

. . . .

That fifteen hundred dollars was not deposited. There was fifteen 

hundred dollars found in his [city-issued] vehicle that was in addition to the 

four thousand dollars.

. . . .

There was another incident that if we had gone to trial, the [S]tate 

would have put on proof that he had collected five hundred dollars for 

another seizure. That the [S]tate would have -- Or the [S]tate would have 

put on proof that was paid to him. The [S]tate would have also called the 

bookkeeper or a representative from the city’s treasury department. That 

person would have testified and shown that none of these amounts were 

ever deposited.

There were also concerning the last two indictments,3judge, there 

were -- I hate to call it scrap iron but there were two central heat and air 

units that [Defendant] took from the impound lot and sold them at

Morristown Iron and Metals.

. . . .

For two central heat and air units and one burned out automobile, 

that totaled eight hundred and twenty-nine dollars and fifty cents. And,

again, the [S]tate would have called the representative from the city from 

the treasury department. That money was never deposited into the city’s 

 

3

It is not clear from the record which two indictments the State is referring to here.
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account. The state would have shown proof that [Defendant] did in fact 

receive monies, receive two checks from Morristown Iron and Metals in his 

name.4

Neither the State nor Defendant presented any witnesses, though the trial court 

questioned Defendant under oath. When the trial court asked Defendant what he was 

planning to do with the money found in his glove box, Defendant explained that he “got 

in a quandary” when a girl could not pay the $5000 she had negotiated with the 

Department of Safety to regain possession of her vehicle. The girl’s father called 

Defendant, and Defendant agreed to accept the reduced amount of $1500 out of 

“sympathy.” Defendant admitted that he did not have the authority to renegotiate the 

amount set by the Department of Safety. Another person had paid $4000 to regain 

possession of his vehicle in addition to a $1000 storage fee because “the vehicle had been 

sitting there for well past the order for him to pick it up.” While Defendant deposited the 

$1000 storage fee, he had not deposited either the $4000 or the $1500 because he was 

trying to figure out a way to reconcile the paperwork for the transactions so that he would 

not get in trouble for accepting the reduced amount for the girl’s vehicle. Defendant 

admitted that he did not need the money that was found in the glove box. As to the scrap 

metal, Defendant stated that the items had been at the impound lot for years and that he 

hauled it off because the lot was running out of space. Defendant admitted that it was not 

his property and that he did not deposit the money in the city’s treasury. Instead, he spent 

the money on “[n]othing in particular.”

Defendant submitted an Application for Certification of Eligibility for Diversion

and several letters from members of the community attesting to his character, both of 

which were entered into evidence. The trial court also entered into evidence what it 

referred to as a presentence report, though the document contained in the record is only a 

single-page “Criminal History Report.” The trial court found that Defendant had never 

been previously granted diversion and did not have a prior disqualifying conviction. In 

fact, the only charges reflected on the Criminal History Report were those currently 

pending before the trial court. 

Through defense counsel, Defendant argued that he had served the community 

well for fifteen years but that he had made a “bad choice” for which he had accepted 

responsibility, agreeing to go “above and beyond” the maximum sentence. Defendant 

noted that the restitution amount would be paid that day out of the money he had posted 

for his bond in addition to the $5500 that had been recovered from the glove box of his 

 

4 The State made an oral motion at the beginning of the hearing, with which Defendant agreed, to 

amend the offense date of case number 15-CR-478, theft of property valued over $1000, to encompass the 

period between April 9, 2014, and January 15, 2015. It is not clear from the record whether this 

amendment was intended to include all the acts of theft described in the statement of facts under a single 

indictment or whether some of these acts were the bases of the indictments that were dismissed.
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city-issued vehicle. Defendant had resigned from the Morristown Police Department and 

no longer had “any hopes of a career in law enforcement.” Defendant had obtained a 

limited real estate license, which could be revoked upon a felony conviction.

After taking a short recess to consider the case, the trial court ruled from the bench 

that it would accept the agreed-upon, out-of-range sentence of six years’ probation,

stating that “if it wasn’t for the fact that you’re pleading outside the range, I’d just reject 

your plea agreement altogether” because “you can’t be trusted with a position of public 

trust such as the police department . . . and just get probation.” However, the trial court 

denied the request for judicial diversion, stating that “under the Parker factors, and this is 

more for the record because I have to build a record, I’m supposed to consider certain 

factors to determine whether or not you’re eligible for a judicial diversion.” The trial 

court considered the fact that Defendant’s criminal conduct directly involved his duties as 

a law enforcement officer. The trial court did not believe that granting diversion in such 

a case would be an effective deterrent for Defendant or others. The trial court found that 

Defendant had a “positive social history” but weighed that against the fact that Defendant 

“mess[ed] up” his career and violated his obligations as a public servant. The trial court 

found the fact that Defendant did not need the money to pay for some kind of debt—that 

“[i]t was just quick cash”—weighed against diversion. The trial court found that 

Defendant’s lack of any prior criminal history weighed in his favor. The trial court was 

“troubl[ed]” by the fact that Defendant held onto the money while he tried to cover up the 

fact that he renegotiated a lesser amount rather than simply turn in the money and admit 

to his error in judgment. The trial court concluded that based on Defendant’s positive 

social history, lengthy career in law enforcement, and his agreement to plead outside the 

range, “six years of probation will serve as a sufficient deterrent to you and others not to 

commit this crime again” but that judicial diversion was not “appropriate under the 

Parker factors.”

Defendant now appeals the denial of judicial diversion, arguing that the trial court 

erred in only considering “certain factors” under State v. Parker, 932 S.W.2d 945, 958 

(Tenn. Crim. App. 1996), that there was no substantial evidence in the record to support 

the trial court’s decision, and that the denial of judicial diversion was “disproportionately 

punitive.”

Analysis

When a defendant challenges the length, range, or manner of service of a sentence, 

this Court reviews the trial court’s sentencing decision under an abuse of discretion 

standard with a presumption of reasonableness. State v. Caudle, 388 S.W.3d 273, 278-79

(Tenn. 2012); State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). This presumption applies 

to “within-range sentencing decisions that reflect a proper application of the purposes and 

principles of the Sentencing Act.” Bise, 380 S.W.3d at 707. This same standard of 
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review applies to the trial court’s decision to grant or deny judicial diversion. State v. 

King, 432 S.W.3d 316, 325 (Tenn. 2014).

Judicial diversion is a form of probation that affords certain qualified defendants 

the opportunity to avoid a permanent criminal record. See T.C.A. § 40-35-313(a)(1)(A). 

If a defendant qualifies for judicial diversion, a trial court may defer proceedings without 

entering a judgment of guilt, placing the defendant on probation without categorizing the 

defendant as a convicted felon. Id. Upon successful completion of the probationary 

period, the trial court will dismiss the charges and the defendant may seek expungement 

of the record, which “restore[s] the person, in the contemplation of the law, to the status 

the person occupied before such arrest or indictment or information.” King, 432 S.W.3d 

at 323 (quoting State v. Schindler, 986 S.W.2d 209, 211 (Tenn. 1999)); see T.C.A. § 40-

35-313(a)(2), (b). However, if the defendant violates the terms of his or her probation, 

“the court may enter an adjudication of guilt and proceed as otherwise provided.” T.C.A. 

§ 40-35-313(a)(2). “Judicial diversion is a form of ‘legislative largess’ available to 

qualified defendants who have entered a guilty or nolo contendere plea or have been 

found guilty of an offense without the entry of a judgment of guilt.” King, 432 S.W.3d at 

323. 

A defendant is eligible for judicial diversion if he or she is found guilty or pleads 

guilty or nolo contendere to a Class C, D, or E felony; has not been previously convicted 

of a felony or Class A misdemeanor; has not been previously granted judicial or pretrial 

diversion; and is not seeking deferral for a sexual offense or for an offense committed by 

an elected or appointed official “in the person’s official capacity or involv[ing] the duties 

of the person’s office.” See T.C.A. § 40-35-313(a)(1)(B)(i). “Eligibility under the statute 

does not, however, constitute entitlement to judicial diversion; instead, the decision of 

whether to grant or deny judicial diversion is entrusted to the discretion of the trial court.” 

King, 432 S.W.3d at 323; see also State v. Dycus, 456 S.W.3d 918, 929 (Tenn. 2015) 

(“There is no presumption that a defendant is a favorable candidate for judicial 

diversion.”). 

In determining whether a defendant is a favorable candidate for diversion, the trial 

court must consider several common law factors:

“(a) The accused’s amenability to correction, (b) the circumstances of the 

offense, (c) the accused’s criminal record, (d) the accused’s social history, 

(e) the accused’s physical and mental health, and (f) the deterrence value to 

the accused as well as others. The trial court should also consider whether 

judicial diversion will serve the ends of justice—the interests of the public 

as well as the accused.”
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King, 432 S.W.3d at 326 (quoting Parker, 932 S.W.2d at 958). “[T]he trial court must 

weigh the factors against each other and place an explanation of its ruling on the record.” 

Id. at 323 (citing State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 

1999)). Our supreme court has explained:

[W]hen the trial court considers the Parker and Electroplating factors, 

specifically identifies the relevant factors, and places on the record its 

reasons for granting or denying judicial diversion, the appellate court must

apply a presumption of reasonableness and uphold the grant or denial so 

long as there is any substantial evidence to support the trial court’s 

decision. Although the trial court is not required to recite all of the Parker

and Electroplating factors when justifying its decision on the record in 

order to obtain the presumption of reasonableness, the record should reflect 

that the trial court considered the Parker and Electroplating factors in 

rendering its decision and that it identified the specific factors applicable to 

the case before it. Thereafter, the trial court may proceed to solely address 

the relevant factors.

Id. at 327. A trial court is not required to use specific “magic words” in its consideration 

of the relevant factors. Id. at 327 n.8. However, failure to consider the common law 

factors results in a loss of the presumption of reasonableness, and this Court will either 

conduct a de novo review or remand the case to the trial court for reconsideration. Id. at 

327-28.

Defendant argues that the trial court failed to make specific findings with regard to 

each of the Parker factors. Defendant quotes the following language from State v. 

Hamilton:

[W]here, as here, a trial court specifically limits its discussion to certain 

factors and omits any analysis of the remaining factors, including the 

defendant’s criminal record, social history, and present condition; the 

deterrent effect on other criminal activity; and whether pretrial diversion 

would serve the ends of justice and the best interests of both the public and 

the defendant, the trial court has not satisfied its review obligations.

498 S.W.3d 7, 17 (Tenn. 2016). However, Hamilton specifically addressed a trial court’s 

review of a prosecutor’s decision to deny pretrial diversion under a writ of certiorari, not 

a trial court’s consideration of judicial diversion. Id. at 16-17. While many of the 

similarities between pretrial and judicial diversion have allowed courts to “draw[] heavily 

from the case law governing pretrial diversion to analyze cases involving judicial 

diversion,” State v. Cutshaw, 967 S.W.2d 332, 343 (Tenn. Crim. App. 1997), the 

Tennessee Supreme Court has not applied the deferential Bise standard of review to 
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pretrial diversion, see generally State v. Stephens, 497 S.W.3d 408 (Tenn. 2016). As 

clearly stated in King, “the trial court is not required to recite all of the Parker and 

Electroplating factors when justifying its decision on the record in order to obtain the 

presumption of reasonableness” so long as the record reflects that the trial court 

considered the factors and identified those relevant to the case before it. 432 S.W.3d at 

327; see also Dycus, 456 S.W.3d at 930.

The record in this case reflects that the trial court considered the appropriate 

Parker factors. The trial court discussed at length the circumstances of the offense, 

especially the fact that the offense directly involved Defendant’s duties as a law 

enforcement officer,5that Defendant violated the public trust placed in him to handle 

money owed to the city, and that Defendant did not have a specific need for the money, 

such as a debt or a sick child, that might mitigate the offense. The trial court found that 

these circumstances weighed against granting judicial diversion. The trial court also 

considered deterrence to both Defendant and the public, finding that granting diversion in 

this situation would not “send the right message.” The trial court considered Defendant’s 

lack of any criminal record and his positive social history, finding that both of these

factors weighed in his favor. While the trial court did not specifically mention the words 

“amenability to correction,” the trial court did state that it appreciated Defendant’s 

candidness with regard to the scrap metal and that it was accepting the plea agreement 

because Defendant had agreed to a sentence outside of his range. These statements 

indicate that the trial court did consider Defendant’s amenability to correction and found 

that Defendant’s acceptance of responsibility weighed at least somewhat in his favor. 

The trial court did not address Defendant’s physical and mental health; however, 

Defendant presented no evidence to indicate that this factor would have been relevant to 

the trial court’s decision one way or the other. 

Because the trial court considered the Parker factors, identified those that were 

relevant to this case, and placed its reasoning on the record, its decision to deny judicial 

diversion is entitled to a presumption of reasonableness. Based on the limited record 

before this Court, there is substantial evidence to support the trial court’s findings. The 

trial court did not abuse its discretion in denying judicial diversion. See State v. Jason 

Erik Redden, No. E2016-00998-CCA-R3-CD, 2017 WL 1019511, at *12 (Tenn. Crim. 

App. Mar. 15, 2017) (finding no abuse of discretion when trial court denied diversion to 

police chief charged with official misconduct for mishandling vehicles and money), no 

perm. app. filed. 

 

5 There is no evidence in the record that Defendant’s position with the Morristown Police 

Department was an elected or appointed position such that he would be ineligible for diversion under

Tennessee Code Annotated section 40-35-313(a)(1)(B)(i)(b).
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Finally, Defendant argues that the trial court’s denial of judicial diversion is 

“disproportionately punitive” in that a felony conviction will result in Defendant losing 

his rights to vote and to possess a firearm and may result in the loss of his limited real 

estate license. However, Defendant has cited no authority for the proposition that a 

denial of judicial diversion may be overturned on the ground that the resulting conviction 

is “disproportionately punitive,” thereby waiving that argument. See Tenn. R. Ct. Crim. 

App. 10(b). Regardless, Defendant agreed to the six-year probationary sentence in the 

event the trial court denied diversion; he cannot now complain about the outcome of his 

plea simply because his gamble on the trial court’s discretion did not pay off. Likewise, 

Defendant’s complaint that the trial court “did not even conduct an evidentiary hearing 

on any issues it discussed” is a nonstarter given the fact that Defendant did not request a 

separate sentencing hearing nor made any attempt to introduce additional witnesses or 

testimony that would have been relevant to the issue of judicial diversion. See Tenn. R. 

App. P. 36(a) (stating that this Court will not grant relief “to a party responsible for an 

error or who failed to take whatever action was reasonably available to prevent or nullify

the harmful effect of an error”). Moreover, Defendant has again failed to cite any 

authority that the “hearing on the petition in open court in which the parties presented 

arguments” about which he now complains was legally inadequate for the trial court to 

consider Defendant’s suitability for judicial diversion. See Tenn. R. Ct. Crim. App. 

10(b). Defendant is not entitled to relief.

Conclusion

Based on the foregoing, we affirm the judgments of the trial court. However, we 

remand the case for the entry of judgment forms on each charge that was disposed of by 

way of this plea agreement. 

____________________________________

TIMOTHY L. EASTER, JUDGE