### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs J

uly 26, 2000 STATE OF TENNESSEE v. DOYLE R. STEVENS Appeal from the Circuit Court for Blount County Nos. C-11526, C-11527, and C-11528 Steven M. Bevil, Judge by Interchange

No. E1999-02097-CCA-R3-CD November 6, 2000

In July 1999, the defendant entered a plea of nolo contendre on two counts of veh icul ar homicide and one count of agg

ravated assault

. The defendant contends that the trial court erred by not gra nting judicial diversion. We concl ude that the defendant was not a “qualified defendant” for judicial diversion. His 1992 conviction for drivin

g while under the influence of an intoxicant qualifies as a Class A misdemeanor, and therefore he is not “qualified” for

judicial diversion. Accordingly, we affirm the judgment of the trial court. Tenn. R. App. P. 3, Appeal as of Right; Judgment of the Circuit Court Affirmed J OHN E VERETT W ILLI AMS , J., delivered the opinion of the court, in which J OSEPH M. T IPTON and R OBERT W. W EDEMEYER , JJ., joined. Raymond M ack Ga rner, District Pub lic Defender, a

nd Jon A. Anderson, A

ssistant District Pub

lic Defender, Mar

yville, Tenn

essee, for the a

ppellant, Doy

le R. Stevens. Paul G. Summers, Attorney General and Report e r; R. Stephen Jobe, As sistant Attorney General; Michael L. Flynn, District Attorney General; and John Bobo and Tammy Harrington, Assistant District Attorneys, for the appellee, State of Tennessee.

OPINION In July 1999, the d efendant, Do yle R. Stephens, pled nolo contendre to one count of aggravated

assault, a Class D felony, and two counts of vehicular homicide, both Class

C felonies. See Tenn. Code Ann. §§ 39-13-102, -213. The defendant was subsequently sentenced to a four-year sentence for the aggravated assault charge, and two six-year sentences for e ach vehicular homicide charge. All sentences run concurrently. The trial judge imposed an alternative sentence by ordering split confinement. The

split confinement s

entence mandate

d that t he defend ant spend two day s a week in the county workhouse for a period of one y ear. Further, the defendant was given a ten-year period of supervised probation; ordered to pay restitution; ordered to take part in a drug and alcohol-2-

follow-up program; and or dered to refra

in from using drug

s an d/or alcohol. In this appeal, the defendant contends that

the trial court erred by not granting judicial diversion. After a careful review, we affirm the judgment of the trial court. FACTS On June 9, 1998, the defendant was driv ing on U.S. Highway 411 when he crossed the centerline and struck an oncoming car. In the car with the defendant were thr ee children. The car in the oncoming lane contained the driver and one passenger. The accident

resulted in the death of the driver of the oncoming car and the death of one of the children in

the car with the defendant. The defendant’s two-month-old daughter suffered severe head injuries that have resulted in constant treatment and physical therapy to this day

. The passenger in the oncoming car, the remaining passenger in the defendant’s ca

r, and the defen

dant himself also suffered injuries of a lesser degree. When the defendant was taken to the hospital, a blood sample was taken fro m him. A n analysis o f the blood sample revealed that the defendant had used cocaine near the time of the accident. The defendant admitted that he ingested a half a gram of cocaine, but cla imed that he used the cocaine the day before the accident. In a motion to the trial court, the defendant reques ted either ju dicial diversion or pretrial diversion. In a letter from the District Attorney’s office , the defendant’s request for pretrial diversion was denied. Fur ther, at th e sentencin g hearing, the trial co urt denied the defendant’s request for judicial diversion. ANALYSIS We begin our analysis by noting tha t the record

indicates that there may be some confusion about the difference

between judicia

l diversion and pre

trial diversion. Whi

le judicial diversion and pretrial diversion are simi lar in purpose, the

y are none

theless separat

e and dist

inct legisl ative concepts tak ing place a t different points in legal proceedings. The decision to grant judicial diversion rests with the tria l court, not the prosecutor. Furthe r, judicial d

iversion follows a determination of guilt, but acts to defer the entry of any judgment of conviction. See Tenn. Code. Ann. § 40-35-313; State v. Anderson , 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992). With pretrial diversion, however, the decision to grant or deny an application for suc h rests with the d istrict attorney general. Unlike judicial diversion, pretrial diversion takes place before trial, and is a means of avoiding the co nsequence s of a public prosecution for those who have the potential to be rehabilitated and avoid future criminal charges. See Tenn. Code Ann. § 40-15-105(b)( 3); Statev. Pinkham , 955 S.W.2d 956, 959 (Tenn. 1997); State v. Houston , 900 S.W.2d 712, 714 (T enn. Crim. App. 1995). The dynamics that follow a defendant’s failure to abide by the terms imposed on him or her-3-

at the time judicial diversion or pretrial diversion is granted also serve as a key distinction between the two concepts. Unlike pretrial diver sion, if the defendant does not comply with the conditions placed upon him or her when judicial diversion is granted, then the judgment of conviction that was originally deferred is entered without the need for a trial. Under pretrial diversion, however, if the defendant fails to comply with the ter ms impo sed on him or her at the time pretrial d

iversion is granted, the defendant must be tried and found guilty before a judg ment of conviction may be entered. Judicial Diversion The defendant conte

nds that the trial court erredby denying him judicial diversion. Tennessee Code Ann otated § 40-35-313 state s that “[t]he court ma y defer fu rther proceedi

ngs against a qualified defendant and place such defendant on probation upon such reasona

ble conditions as it may require without entering a judgmen t of guilty.” Tenn. Code Ann. § 40-35-313(a)(1)(A). Further, the Tennessee Co de Annotated sets

forth that a person is qualifie

d for judicial dive

rsion if he or she “[h]as not previously b een convicted of

a felony or

Class A misdemeanor.” Tenn. Code Ann. § 40-35-313(a)(1)(B)(i)( c ). A review of t he defe ndant’s criminal history reveals that the defendant was convicted on A

ugust 3, 1992, of d

riving while unde

r the influence o

f an intoxicant, a Class A misdemeanor. See Tenn. Code Ann. §§ 55-10-403(a)(1), 40-35-111(e) (1). This conviction automatically disqualifies the defendant for judicial diversion. Having determined that the defendant is not qualified for judicial diversion, this Court sees no reason to continue any further in this analysis. The trial court was correct in deny ing the defendant judicial diversion. CONCLUSION We conclude that

the defendant was no

t a “qualified de

fendant” for jud

icial diversion. H

is 1 992 conviction for dr

iving while under

the influence of

an intoxicant qualif

ies as a Class A misdemeanor, and therefore he is not a “qualified defendant” for purposes of judicial diversion.



### ___________________________ JOHN EVERETT WILLIAMS, JUDGE