Judicial diversion is the process in criminal law where a person pleads guilty to a crime and can later have the charge removed (or expunged) from their record following a period of probation. It is granted by the judge, hence its name. This article will discuss the process and requirements of judicial diversion, but be advised that it deals specifically with Tennessee law. Your local laws may vary.
Diversion is a first-time offenders program. That is, an individual must generally have a clean record. In Tennessee, they cannot have any prior disqualifying convictions, which would include any felonies or Class A misdemeanors. Some common examples of Class A misdemeanors would be shoplifting, DUI, and simple drug possession. Furthermore, the crime to which they are pleading guilty cannot be a sex crime or a class A or B felony. Class A or B felonies are the serious violent crimes, such as armed robbery, carjacking, large-scale narcotics trafficking, and first or second-degree murder. Finally, the individual cannot have participated in diversion before. You get to use it one time and one time only, and it must be your first time.
Under judicial diversion a client must first plead guilty to the charge. Only after they have entered the plea may they “apply" for diversion. Applying means submitting a form to the Tennessee Bureau of Investigation that verifies they do not have any disqualifying convictions and they have not gone on diversion before. Their lawyer or probation officer would submit the form for them. Whether the client is approved or not, the TBI will send the form back indicating as such. Assuming the client is approved, they are now ready to start diversion. At the same time the client will meet with a probation officer who will compile a presentence report. This report will detail the client’s background, including work, school, family, health, and any criminal charges. Judges require a presentence report before placing an individual on probation.
After the guilty plea, the case will be reset for approximately 30 days for time to get the TBI and presentence reports. On the next court date, assuming everything is in order and the client is approved, they will officially be placed on diversion. Specifically they are now on probation for the length of sentence for the crime to which they pled guilty. For instance, in Tennessee a shoplifting charge carries a sentence of 11 months and 29 days. For shoplifting diversion, then, the client will go on probation for 11 months and 29 days. For a felony such as Burglary the range of punishment for a first-time offender is 2-4 years, so an individual who went on diversion for that charge would be on probation 2-4 years. The case will be reset to the last day of their sentence (yes, they sometimes get reset for several years off) for the client to come back to court and have the charge dismissed. The charge will not be dismissed unless they have completed all the requirements of probation, which could include classes, restitution, and probation fees. The client will also be required to pay all court costs. Once this is done, they may have the entire case expunged.
Diversion is an excellent way for a client to avoid a permanent criminal conviction on their record. As long as they don’t have any prior convictions and are not charged with a serious violent crime, they’ll generally be eligible. However, one class of clients that I do not recommend judicial diversion to are non-U.S. citizens. Clients who are visa holders or permanent residents should avoid judicial diversion because of the required guilty plea. Even though the charge is later dismissed and expunged, under immigration law any guilty plea could be fatal to their status in the U.S. and subject them to deportation proceedings. I would try to get these clients into Attorney General diversion, which does not require a guilty plea but is at the discretion of the prosecutor. Another option is to try and convince the prosecutor to dismiss the charge in exchange for an upfront payment of restitution and/or court costs.
Patrick Stegall is a Memphis criminal defense lawyer who has assisted many clients through the diversion process. Mr. Stegall specializes in helping first-time offenders stay out of jail and keep criminal charges off their record. For more information, please contact him by email at [email protected] or call him at (901) 205-9894.