FILED

March 8, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

(HEARD AT DYERSBURG)

 FOR PUBLICATION

 Filed: March 8, 1999

STATE OF TENNESSEE, )

) CARROLL CRIMINAL 

Appellee, )

)

)

Vs. ) HON. C. CREED MCGINLEY,

) JUDGE

) 

CAROLYN L. CURRY )

) NO. 02-S-01-9709-CC-00079

Appellant. )

For Appellant: For Appellee:

Donald E. Parish John Knox Walkup

IVEY, PARISH & JOHNS Attorney General & Reporter

Huntingdon, Tennessee

Michael E. Moore

Solicitor General

Timothy F. Behan

Assistant Attorney General

Nashville, Tennessee

At Trial:

Robert Radford

District Attorney General

Eleanor Cahill

Assistant District Attorney General

Huntingdon, Tennessee

O P I N I O N

COURT OF CRIMINAL APPEALS 

REVERSED; JUDGMENT OF THE 

TRIAL COURT REINSTATED. ANDERSON, C.J
1

 Oral argu me nt wa s hea rd in th is cas e on M arch 4, 1998, in Dyers burg , Dyer Cou nty,

Tenn essee , as part of this Cou rt’s S.C.A.L .E.S. (Supreme Court Advancing Legal Education for Students)

project.

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We granted this appeal to determine whether the trial court properly ruled

that the prosecution abused its discretion by failing to consider all of the relevant

factors in denying the defendant’s application for pretrial diversion, and whether the

Court of Criminal Appeals erred in remanding the case for an evidentiary hearing.1

The Court of Criminal Appeals agreed that the prosecutor’s written letter denying

diversion did not discuss all of the relevant factors, but remanded for an evidentiary

hearing to allow the prosecutor to testify as to the factors that were considered in

denying pretrial diversion.

After reviewing the record and controlling authority, we conclude that the trial

court properly determined that the prosecution abused its discretion by failing to

consider all of the relevant factors before denying pretrial diversion. We also

conclude that the Court of Criminal Appeals erred in remanding the case to allow

the prosecutor an opportunity to correct these deficiencies during an evidentiary

hearing. Accordingly, we reverse the Court of Criminal Appeals’ judgment and

reinstate the judgment of the trial court.

BACKGROUND

The defendant, Carolyn C. Curry, worked as an assistant clerk for the City of

McKenzie, Tennessee, from 1985 to 1995. Over a two-year period from July of

1993 to July of 1995, Curry embezzled over $27,000 from the City. She later was

indicted for theft of property valued between $10,000 and $60,000. 

Curry applied for pretrial diversion. According to her application, she was a

divorced, 34-year-old mother of three children, ages 19, 13, and 8. Curry had

graduated from college with honors in 1983, and she served in the Tennessee

National Guard from 1983 to 1990, when she was honorably discharged. She was

an active member of her church and numerous charitable and community
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organizations including the United Way, United Neighbors, Concerned Citizens, and

youth softball. Numerous letters included with her application attested to her

charitable and community involvement. 

Curry had no prior arrests or convictions. She cooperated with authorities in

this case when her actions were discovered, admitting that she took money for

family and living expenses and proposing a restitution program. She stated that: “I

sincerely regret my actions and regret the shame that my actions have brought to

bear on myself and my family.”

In denying the application for pretrial diversion, the prosecutor, in a written

response, gave the following reasons:

We are in receipt of your application for pre-trial

diversion . . . . We have carefully reviewed the

application and the attached letters.

. . . 

During a period of approximately two years, from

July 1, 1993, through July 11, 1995, approximately

$27,368.73 in city funds were embezzled by her. This

was not a one time embezzlement or theft, but a

complicated, well-thought out criminal scheme to take

money from the City of McKenzie. 

. . .

We have considered the defendant’s past history

and her conduct for two years in defrauding the City of

McKenzie. This was a calculated criminal scheme that

took planning and thought. It manifests a criminal intent

for a long period of time and not something that

happened at once.

We cannot believe that it would be in the best

interests of the public, the defendant, and justice to

overlook a criminal scheme of this proportion and grant

pre-trial diversion . . . .

Curry sought review of the prosecutor’s decision by filing a petition for writ of

certiorari in the trial court. After hearing argument of counsel, the trial court found
2

 The transcripts indicate that the trial court initially voiced its concern that the outcome be

consistent with an unrelated embezzlement case in which diversion had been granted. The court later

clarified, how ever, that it wa s applying th e contro lling standa rds to the f acts in this c ase. 

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that diversion had been denied solely based upon the circumstances of the offense,

specifically, the two-year duration, and ruled:

After considering the Application for Pre-Trial

Diversion of the Defendant, the letter response from the

office of the District Attorney General . . ., and arguments

of counsel, the Court found that the Office of the District

Attorney General had abused its discretion in denying

pre-trial diversion and that the Defendant should be

placed on pre-trial diversion. . . .

The trial court denied the State’s motion to reconsider but granted a motion for

interlocutory appeal.2 The Court of Criminal Appeals agreed that the response

denying pretrial diversion did not sufficiently state the relevant factors which had

been considered by the prosecutor, yet further held:

[T]he trial court should schedule an evidentiary hearing

and allow the district attorney general to testify in order to

fill in the gaps left by the letter. Only in this way can the

trial court have assurances that it is considering the

same evidence considered by the prosecutor in his or her

decision to deny pretrial diversion. Only in this way can it

determine whether the prosecutor abused his or her

discretion in denying diversion. 

We granted the defendant’s application for permission to appeal to review the

sufficiency of the prosecutor’s written denial of diversion and the question of

permitting the prosecutor to correct its deficiencies by testifying in an evidentiary

hearing.

ANALYSIS

The pretrial diversion program, drafted and enacted by the Legislature, allows

the District Attorney General to suspend a prosecution against a qualified defendant

for a period of up to two years. Tenn. Code Ann. § 40-15-105(a)(1)(A)(1997 &

Supp. 1998). A qualified defendant pursuant to the statute is one who has not
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previously been granted diversion and does not have a prior misdemeanor

conviction for which confinement was served or a prior felony conviction within a five

year period after completing the sentence or probationary period for the conviction.

Tenn. Code Ann. § 40-15-105(a)(1)(B)(i)(a)-(b) (Supp. 1998). The offense for which

diversion is sought may not be a class A felony, a class B felony, a sexual offense,

driving under the influence, or vehicular assault. Tenn. Code Ann. § 40-15-

105(a)(1)(B)(i)(c) (Supp. 1998).

Any grant of diversion must be conditioned on one or more of the following

conditions: that the defendant not commit any criminal offense; that the defendant

refrain from activities, conduct, or associations related to the charge; that the

defendant receive rehabilitative treatment, counseling and education; that the

defendant make restitution to the victim; that the defendant pay court costs and the

costs of the diversion; and that the defendant abide by any other terms or conditions

as may be agreed upon. Tenn. Code Ann. § 40-15-105(a)(2)(A)-(H) (1997 & Supp.

1998). If the defendant violates a term or condition, the prosecution may terminate

diversion and resume the criminal prosecution. Tenn. Code Ann. § 40-15-105(d)

(1997 & Supp. 1998).

One who is statutorily eligible is not presumptively entitled to diversion. 

Instead, whether to grant pretrial diversion to a qualified defendant who is statutorily

eligible is a determination that lies in the discretion of the district attorney general. 

State v. Pinkham, 955 S.W.2d 956 (Tenn. 1997). The relevant considerations for

the prosecutor are as follows: 

When deciding whether to enter into a memorandum of understanding

under the pretrial diversion statute a prosecutor should focus on the

defendant’s amenability to correction. Any factors which tend to

accurately reflect whether a particular defendant will or will not become

a repeat offender should be considered. Such factors must, of course,

be clearly articulable and stated in the record in order that meaningful

appellate review may be had. Among the factors to be considered in

addition to the circumstances of the offense are the defendant’s

criminal record, social history, the physical and mental condition of a

defendant where appropriate, and the likelihood that pretrial diversion
3

The dissent, quoting only the last sentence of this passage from Pinkham, concludes that

“potential for rehabilitation” is not a “factor” that must be clearly articulated and stated in the record by the

prosecutor. This conclusion is simply at odds with the language in Pinkham when rea d in its e ntirety.

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will serve the ends of justice and the best interest of both the public

and the defendant.

Id. at 959-60 (quoting State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983)).3

If the district attorney general denies pretrial diversion, the denial must be in

writing and must include “an enumeration of the evidence that was considered and a

discussion of the factors considered and weight accorded each.” Pinkham, 955

S.W.2d at 960. This “requirement entails more than an abstract statement in the

record that the district attorney general has considered these factors.” State v.

Herron, 767 S.W.2d 151, 156 (Tenn. 1989). Instead, the factors considered “must

be clearly articulable and stated in the record. . . .” Id.; see also State v.

Washington, 866 S.W.2d 950 (Tenn. 1993). That a defendant, obviously, bears the

burden of demonstrating suitability for diversion does not relieve the prosecutor’s

obligation to examine all of the relevant factors and to set forth the required findings. 

E.g., Pinkham, 955 S.W.2d at 960.

The prosecutor’s response must be in writing. As the Court of Criminal

Appeals has observed, there are at least three reasons for requiring a written

response:

First, the statement would compel the prosecutor to think

about and justify his denial in terms of the applicable

standards. Second, the statement of reasons would

define the area of controversy at the evidentiary hearing. 

Finally, the statement of reasons would restrict the

prosecutor to a particular rationale and insure that the

prosecutor would offer no new reasons at the evidentiary

hearing.

State v. Brown, 700 S.W.2d 568, 570 (Tenn. Crim. App. 1985) (quoting Steven W.

Feldman, The Tennessee Pretrial Diversion Act: A Practitioner’s Guide, 13 Mem. St.

U. L. Rev. 285, 302 n.106 (1983)). The prosecutor’s written response must also
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identify any factual disputes between the evidence relied upon and the application

filed by the defendant. Id.

If the application for pretrial diversion is denied, the defendant may appeal by

petitioning the trial court for a writ of certiorari. Tenn. Code Ann. § 40-15-105(b)(3)

(1997 & Supp. 1998). The only evidence that may be considered by the trial court is

the evidence that was considered by the district attorney general. State v. Winsett,

882 S.W.2d 806, 810 (Tenn. Crim. App. 1993). The trial court may conduct a

hearing only to resolve any factual disputes raised by the prosecutor or the

defendant concerning the application, but not to hear additional evidence that was

not considered by the prosecutor. See Pinkham, 955 S.W.2d at 960. 

The action of the prosecutor is presumptively correct, and it is subject to

review by the trial court only for an abuse of discretion. The record in this regard

must show an absence of any substantial evidence to support the refusal of the

district attorney general to enter into a memorandum of understanding before a

reviewing court can find an abuse of discretion. The appellate court must determine

whether the trial court’s decision is supported by a preponderance of the evidence. 

Id.

The State contends that the trial court improperly substituted its decision for

that of the prosecutor who, after considering all of the relevant factors, denied

diversion because of the seriousness of the offense and the need for deterrence. 

The defendant maintains the trial court properly found an abuse of discretion in that

the prosecutor failed to consider her favorable social history and amenability to

correction. She also argues that the prosecutor is not entitled to testify at an

evidentiary hearing to correct the deficiencies. 

Our review, like that of the lower courts, indicates that the prosecutor’s

primary consideration in the written denial of diversion was the circumstances of the
4

 The dissent cites several Court of Criminal Appeals’ opinions, some unpublished, for the

proposition that the circumstances of the offense may alone justify the denial of diversion. Although these

cases neces sarily involve ca se-by-ca se dete rmina tions, they do not nega te the pros ecution’s obligation to

consider all relevant factors, including those factors that pertain to a defendant’s potential for

rehabilitation. E.g., Pinkham, 955 S.W .2d at 959 ; Washington, 866 S.W .2d at 951 ; Herron, 767 S.W.2d at

156; State v. Lutry, 938 S.W .2d 431, 4 33 (Te nn. Crim . App. 199 6); State v. Carr, 861 S.W.2d 850, 858

(Tenn. Crim. App . 1993).

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offense, specifically, the amount of money taken and the duration of the criminal

activity. The denial letter stated that diversion was not “in the best interest of the

public,” which, although imprecise, arguably includes deterrence. Although the

prosecutor asserts that he had “carefully reviewed the application and the attached

letters,” the denial does not discuss the defendant’s favorable social history, lack of

a criminal record, and potential for rehabilitation. Moreover, assuming these

essential factors were, in fact, considered, there is no explanation as to how much

weight they were afforded and no rationale as to why they were outweighed by the

other factors in denying diversion. E.g., Herron, 767 S.W.2d at 156. 

The State argues, and the dissent writes, that the seriousness of the offense

itself may justify a denial of diversion. A review of the case law reveals, however,

that the circumstances of the offense and the need for deterrence may alone justify

a denial of diversion, but only if all of the relevant factors have been considered as

well. E.g., Washington, 866 S.W.2d at 951 (“circumstances of the case and the

need for deterrence may be considered as two of the many factors, [but] they

cannot be given controlling weight unless they are of such overwhelming

significance that they . . . outweigh all other factors”). The facts and circumstances

of nearly all criminal offenses are by definition serious; only by analyzing all of the

relevant factors, including those favorable to the defendant, can appropriate

candidates for this legislative largess be identified in a manner consistent with the

purpose of the pretrial diversion act. Herron, 767 S.W.2d at 156.4

In Pinkham, for instance, the defendant was charged with falsely representing

himself as a lawyer, impersonating a licensed professional, and aggravated perjury. 

The denial of diversion emphasized the circumstances of the offense, the losses
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sustained by the victim, and the “systematic and continuing criminal activity,” but

also gave extensive consideration to the other relevant factors:

In making this decision to reject the defendant’s diversion

application, I have considered that [the defendant] is a 50

year old man with no criminal record. I have considered

his exemplary social history. I have considered that [the

defendant] appears to be a leader in his community, as

evidenced by the character and reference letters from

lawyers, teachers, professors, ministers, doctors, et al. I

have considered all of the parameters of [the

defendant’s] social, family, personal, educational and

professional background.

I have weighed all those factors in deciding whether the

interests of justice would be served best by placing [the

defendant] on diversion. I have concluded that the

interests of the public substantially outweigh the interests

of the defendant. Since [the defendant] is a highly

educated person who holds a law degree, [the

defendant] knew that his conduct was unlawful and

unethical. Unquestionably, [the defendant] made a

deliberate choice to violate the law. Having violated the

criminal laws . . ., [the defendant] made an

unconscionable decision to engage in a continual pattern

of deception and dishonesty. 

Id. at 959. In affirming the denial of diversion, this Court observed that the district

attorney general extensively discussed the relevant factors, identified the evidence

considered, and set forth the weight afforded to each factor as well as the rationale

for his conclusion. Id. at 961. 

In contrast, the defendant in Herron, a 24-year-old woman with no prior

criminal record, was charged with two counts of larceny by trick, one offense

involving $5000 and the other involving $6000. The prosecutor’s denial of pretrial

diversion was based primarily on the circumstances of the “contrived, deliberate”

offenses and the need to deter such offenses. Although the trial court denied the

defendant’s petition for certiorari, the Court of Criminal Appeals concluded that the

district attorney general failed to consider other relevant factors that were favorable

to the defendant. 
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This Court agreed with the intermediate court’s determination that both the

prosecutor and the trial court failed to consider “that defendant did not have any

criminal record, her social history, her physical and mental condition, including her

educational background, her employment history as well as the stability and

continued support of her family.” Id. at 155. Moreover, the Court once again

stressed that “if the district attorney general bases his decision on less than the full

complement of factors . . . he must, for the record, state why he considers that those

he relies on outweigh the others submitted for his consideration.” Id. at 156.

In this case, the prosecutor’s denial letter concentrated solely upon the

circumstances of the offense and, arguably, a veiled consideration of deterrence. 

There was no apparent consideration given to the defendant’s lack of a criminal

record, favorable social history, and obvious amenability to correction. Moreover,

the prosecutor did not articulate or state why those factors that were considered,

i.e., seriousness of the offense and deterrence, necessarily outweighed the other

relevant factors. The evidence presented a close case on the diversion question;

however, the failure by the prosecutor to consider and articulate all of the relevant

factors constitutes an abuse of discretion. We therefore agree with the conclusion

of the lower courts.

We agree with the dissent’s observations that the offenses committed by the

defendant were serious and aggravated in nature, and further, that the prosecutor’s

findings in this regard were supported by the record. Where we differ, however, is in

our conclusion that the prosecutor’s denial did not show that all relevant factors

were considered in denying diversion, in particular, those factors relevant to the

amenability for rehabilitation. The dissent finds that there were no favorable factors

on the defendant’s behalf, a conclusion with which we disagree based on this 34-

year-old divorced mother of three’s history of church, community, and charitable

activity and otherwise squeaky clean record until this offense, as shown by the

evidence in the record. 
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Moreover, the dissent strains to conclude that the evidence regarding the

defendant’s background was unfavorable and that her potential for rehabilitation

was minimal simply by looking only to the circumstances and time span of the

offense. Under such an analysis, in which the facts and circumstances are given

conclusive weight against a defendant’s potential for correction, rare is the

defendant who would qualify for pretrial diversion. 

Finally, we also conclude that the Court of Criminal Appeals erred in

remanding the case for an evidentiary hearing in order for the prosecutor to “fill in

the gaps” and correct any deficiencies in the record. First, the procedure adopted

by the Court of Criminal Appeals decreases the importance of the written response

and increases the risk that new reasons or considerations will be introduced during

the hearing without notice to the defendant. Second, the standards of review

governing certiorari proceedings require the trial court to consider only that which

has already been considered by the prosecutor. See Winsett, 882 S.W.2d at 809

(evidence considered at hearing exceeded certiorari review). Accordingly, as

discussed above, an evidentiary hearing may be held only to clarify factual disputes

in the record, and may not be held to allow the prosecutor to discuss new or

additional considerations regarding the denial of diversion.

CONCLUSION

We agree with the trial court that the prosecutor failed to consider all of the

relevant factors and, therefore, abused his discretion in denying the defendant’s

application for pretrial diversion. We further conclude that the Court of Criminal

Appeals erred in remanding the case for a hearing. Accordingly, the judgment of

the Court of Criminal Appeals is reversed and the judgment of the trial court is

reinstated. Costs of appeal are taxed to the State of Tennessee.

________________________________

RILEY ANDERSON, CHIEF JUSTICE
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CONCUR:

Drowota and Birch, JJ.

DISSENT:

Holder, J. - see separate Dissenting Opinion