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State v. Dean12/17/1999
t's request for judicial diversion.
Following this proof, the trial court took the matter under advisement until November 23, 1998, at which time the court imposed upon the defendant the previously agreed upon sentence, but denied, without additional explanation, his request for judicial diversion. The defendant timely appealed that denial.
ANALYSIS
It is within the sound discretion of the trial court as to whether a defendant should be placed on judicial diversion. State v. Harris, 953 S.W.2d 701, 705 (Tenn. Crim. App. 1996). In reviewing a refusal to grant judicial diversion, the appellate court must uphold the decision of the trial court if "any substantial evidence [exists in the record] to support the refusal." State v. Hammersley, 650 S.W.2d 352, 356 (Tenn. 1983). The trial court must consider a number of factors in determining whether to grant judicial diversion:
(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 status of 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. State v. Lewis, 978 S.W.2d 558, 566 (Tenn. Crim. App. 1997), perm. app. denied (Tenn. 1998) (citing State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993)).
It does not appear that all of these matters were considered and, as did the court in Lewis, we do not find the record to be sufficiently complete to "allow appropriate appellate review." Lewis, 978 S.W.2d at 567. Accordingly, we remand the matter to the trial court to reconsider the defendant's request for judicial diversion.
ALAN E. GLENN, JUDGE
CONCUR:
JOHN H. PEAY, JUDGE
NORMA McGEE OGLE, JUDGE
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