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FILED

August 20, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

APRIL 1998 SESSION

STATE OF TENNESSEE ,

 §

APPELLEE 

 §

VS. C.C.A. No. 01C01-9707-CC-00244

 § WILLIAMSON COUNTY

 HON. HENRY DENMARK BELL

ANTONIO JOHNSON, §

APPELLANT (JUDICIAL DIVERSION)

FOR THE APPELLANT FOR THE APPELLEE

Niles S. Nimmo John Knox Walkup

Realtors Bldg., Suite 200 Attorney General and Reporter

306 Gay St. 425 Fifth Avenue, North

Nashville, TN 37201 Nashville, TN 37243

–––––

Daryl J. Brand

Assistant Attorney General

425 Fifth Avenue, North

Nashville, TN 378243

Derek K. Smith

Assistant District Attorney General

P. O. Box 937

Franklin, TN 37065-0937

OPINION FILED: _______________________

AFFIRMED

L. T. LAFFERTY, SPECIAL JUDGE
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 OPINION

Following a bench trial, the appellant, Antonio Jackson, was convicted of the

unlawful possession of cocaine, a Class A misdemeanor. The trial court sentenced the

defendant to serve sixty (60) days, day for day, and pay a fine of $2,500. The trial

court suspended the sixty (60) day sentence and placed the defendant on supervised

probation for eleven (11) months and twenty-nine (29) days. Following a direct

appeal, this Court found that the trial court had abused its discretion in sentencing the

defendant and remanded the case for resentencing pursuant to judicial diversion. State

v. Antonio Jac kson, Williamson County, No. 01C01-9601-CC-00014 (Tenn. Crim.

App. Nashville, December 13, 1996). In resentencing the de fendant, the trial court

imposed judicial diversion but retained the conditions of probation from the original

judgment.

The defendant presents one issue for review: “Whether the trial court erred by

imposing a fine as part of a sentence entered under authority of Tenn. Code Ann. § 40-

35-313.” After a thorough review of the record, the briefs submitted by both parties,

and the law governing the issue presented for review, it is the opinion of this Court

that the sentence imposed by the trial court should be affirmed.

A.

When an accused challenges the length and manner of service of a sentence, it

is the duty of this Court to conduct a de novo review on the record with a presumption

that the “determinations made by the court from which the appe al is taken are

correct.” Tenn. Code Ann. § 40-35-401(d). This presumption is “conditioned upon

the affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166,

169 (Tenn. 1994). The presumption does not apply to the legal conclusions reached

by the trial court in sentencing the accused or to the determinations made by the trial

court which are predica ted upon uncontroverted facts. State v. Butler, 900 S.W.2d
 

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 In Alberd, this court concluded that statutory fines may not be imposed in cases involving pretrial

diversion

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305, 311 (Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim.

App. 1994), per. App. Denied (Tenn. 1994); State v. Bonestel, 871 S.W.2d 1634, 166

(Tenn. Crim. App. 1993). However, this court is required to give great weight to the

trial court’s determination of controverted facts because the trial court’s determination

of these facts is predicated upon the witnesses’ demeanor and appearance when

testifying.

The party challenging the sentences imposed by the trial court has the burden

of establishing that the sentences are e rroneous. Sentencing Commission Comments

to Tenn. Code Ann. § 40-35-401; Ashby, 823 S.W.2d at 169; Butler, 900 S.W.2d at

311. In this case, the defendant has the burden of illustrating that the sentences

imposed by the trial court are erroneous.

The record indicates that during the resentencing hearing the trial court failed

to articulate the conditions. The trial court merely stated “put on 11/29 supervised

probation, report by mail, on ordinary conditions and drug screens.” Therefore, the

standard of review on appeal is de novo without a presumption of correctness. Tenn.

Code Ann. § 40-35-402(d). 

B.

The defendant argues that judicial diversion is similar in purpose to pretrial

diversion, therefore, this Court’s holding in State v. Alberd, 908 S.W.2d 414 (Tenn.

Crim. App. 1994), controls.1

 Additionally, the defendant asserts the trial court lacked

authority to impose a fine in conjunction with judicial diversion.

(1)

Pretrial diversion and judicial diversion are similar in nature but differ

statutorily. The pretrial diversion statute is located in Tenn. Code Ann. § 40-15-101,

seq. The judicia l diversion statute, however, is loc ated in Tenn. Code Ann. 
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§ 40-35-313, and was incorporated in the Sentencing Act of 1989. Under pretrial

diversion, Tenn. Code Ann. § 40-15-105(a), a defendant who meets certain criteria,

enters into a memorandum of understanding with the District Attorney General,

whereby both parties agree that the prosecution of certain crimes will be suspended

for a spe cified pe riod, not to exce ed two (2) years from the filing of the memorandum. 

The parties agree that the defendant will be supervised by an appropriate agency,

department, program, group or association and at the conclusion of the supervised

period, if no violations of the memorandum of understanding are proven, the trial

court may dismiss the prosecutions with prejudice.

The judicial diversion statute, Tenn. Code Ann. § 40-35-313(a)(1)(A) states:

“If any person who has not previously been convicted of a

felony of a Class A misdemeanor is found guilty or pleads guilt to a

misdemeanor which is punishable by imprisonment of a Class C, D or E

felony, the court may, without entering a judgment of guilty and with the

consent of such person, defer further proceedings and place the person on

probation upon such reasonable conditions as it may require, and for a period

of time not less than the period of the maximum sentence for the misdemeanor

with which the person is charged, or not more than the period of the maximum

sentence of the felony with which the person is charged. . . .

(2) . . . If, during the period of probation, such person does not

violate any of the conditions of the probation, then upon expiration of such

period, the court shall discharge such person and dismiss the proceedings

against the person. Discharge and dismissal under this subsection is without

court adjudication of guilt, but a non-public record thereof is retained by the

court solely for the purpose of use by the courts in determining whether or not,

in subsequent proceedings, such person qualifies under this subsection, or for

the limited purposes provided in subsection (b). Such discharge and dismissal

shall not be deemed a conviction for purposes of disqualifications or

disabilities imposed by law upon conviction of a crime or for any other

purpose, except as provided in subsection (b). Discharge and dismissal under

this subsection may occur only once with respect to any pe rson.”

In State v. Alberd, 908 S.W.2d 414 (Tenn. Crim. App. 1994), a panel of this

court concluded that mandatory minimum fines for drug offense may not be required

as a condition of a memorandum of understanding for pretrial diversion. This court

held that mandatory minimum fines may only be imposed following a conviction, and

pretrial diversion was not a result of conviction. Because judicial diversion follows a
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determination of guilt, Alberd, does not gove rn cases involving judicial dive rsion. 

However, even in cases involving pretrial diversion, trial courts have the authority to

require defendants to pay restitution, court costs, and costs of supervision. Tenn.

Code Ann. § 40-15-105(a)(2).

(2)

The judicial diversion statute, Tenn. Code Ann. § 40-35-313 authorizes the

imposition of probation “upon such reasonable conditions as it may require.” 

Conditions of probation “must be reasonable and realistic and must not be so stringent

as to be harsh, oppressive, or palpably unjust.” Stiller v. State, 516 S.W.2d 617, 620

(Tenn. 1974). Trial courts may impose any terms and conditions not inconsistent with

the Tennessee Sentencing Reform Act. See State v. Huff, 760 S.W.2d 633, 639 (Tenn.

Crim. App. 1988).

The Court finds the imposition of a fine or contribution of a monetary amount,

not exceeding the maximum statutory fine, to be a reasonable condition of judicial

diversion. Tenn. Code Ann. § 40-35-313. The United States Sixth Circuit Court of

Appeals addressed a similar question in construing Tenn. Code Ann. § 40-21-109

(now Tenn. Code Ann. § 40-35-313) regarding the payment of costs as a condition of

probation. The Court concluded In re Hollis, 810 F.2d 106, 108 (6th Cir. 1987):

“The state c riminal court clearly intended the assessment of costs

to be a condition of appellee’s probation under section 40-21-109. Tenn. Code

Ann. § 40-21-109 (1982). An assessment of costs, moreover, appears to be an

appropriate condition of probation under this section. . . . We believe that

section 40-24-105(b) of the Tennessee Code, which provide s that costs ‘shall

not be deemed part to the penalty’ in a criminal case, and upon which the

district court relied in reaching its decision, is displaced in this instance by the

more specific provisions of section 40-21-109.”

Federal courts have also held the imposition of fines to be permissible pursuant

to the parallel federal statute for post-conviction deferra l. See 18 U.S.C. 3651; United

States v. Tepfer, 748 F.Supp. 310, 311 (E.D. Pa. 1990).
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Although pretrial diversion and judicial diversion are similar in nature, there is

a significant difference between the imposition of probation pursuant to pretrial

diversion and judicial diversion. The purpose of judicial diversion is to avoid placing

the stigma and collatera l consequences of a c riminal conviction on the defendant, in

addition to providing the defendant a means to be restored fully and to useful and

productive citiz enship. State v. Porter, 885 S.W.2d 93, 95 (Tenn. Crim. App. 1994). 

This Court has recognized the very “fact that a defendant seeking judicial diversion

stands before the court having a lready been found guilty--ready to be sentenced,”

places the defendant in dramatically different posture than that of a person seeking

pretrial diversion. See State v. Porter, 885 S.W.2d at 94-95.

A somewhat analogous situation was addressed by this Court in State v. Vasser,

870 S.W.2d 543 (Tenn. Crim. App. 1993). The defendant, Vasser, upon being found

guilty of driving under the influence of an intoxic ant contended he was entitled to

judicial diversion after serving forty-eight (48) hours, per Tenn. Code Ann. § 40-35-

313. This Court in construing Tenn. Code Ann. §55-10-403(B)(1)--Penalties for

Driving under the influence of intoxicants--concluded that a “convicted” person must

serve the “minimum sentence” and thus is not eligible for the provisions of Tenn.

Code Ann. § 40-35-313. Thus in a general sense, a “conviction” has been defined as

the “result of a criminal trial (or guilty plea) which ends in a judgment or sentence that

the accused is guilty as charged.” Technically, a conviction involves not only a

verdict, but also a sentence passed by the court. See State v. Vasser, 870 S.W.2d 543,

at 545; Rule 32(e) Tennessee Rules of Criminal Procedure. Since the trial court did

not enter an order of conviction, but ordered the defendant to judicial diversion, the

trial court was entitled to set reasonable conditions of probation including the payment

of fines.

In conclusion, this Court finds that the order of the trial court requiring the

defendant to pay a fine of $2,500 as a condition of his probation pursuant to judicial
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diversion was appropriate. The imposition of a statutory mandatory minimum fine is

acceptable in cases involving judicial diversion because judicial diversion, unlike

pretrial diversion, involves an adjudication of guilt by the trial court. Finally, fines are

permissible conditions of probation under judicial diversion so long as they do not

exceed the maximum specified by statute for the offense committed.

__________________________

L. T. Lafferty, Special Judge

CONCUR:

______________________________

Gary Wade, Presiding Judge

______________________________

Thomas Woodall, Judge