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State v. Jansen7/8/1999
On June 5, 1995, the Madison County grand jury returned an indictment charging the defendants, James M. Jansen and Scott R. Luckman, with storage of liquor for sale, a Class A misdemeanor. The indictment charged a third defendant with unlawful sale of alcoholic beverages. Jansen and Luckman sought pretrial diversion. The district attorney general's denial of their application was reversed by the trial court after a certiorari hearing. In this Rule 9 appeal, the State argues that the trial court erred in ordering pretrial diversion for the defendants. Following a review of the record and applicable authorities, we reverse the trial court's entry of pretrial diversion as to each defendant and remand the case for further proceedings.
The Department of Correction Investigation Report filed in support of the defendants' application for pretrial diversion includes the following "official version:"
"On 2-25-95 . . . During a search of the premises known as "Planet Rock" Club, located at 702 Old Hickory Blvd. in Jackson, Tennessee, I found and seized several gallons of intoxicating liquors in the office and behind the bar. I had earlier received information from Special Agent Bond Tubbs, TABC that he had purchased liquor inside the club on the same date and seen liquor served to other persons in the club. I know SA Tubbs to be a reliable person. I also found James Jansen and Scott Luckman on the premises in the role of club-owner/operator."
The defendants elected not to submit a statement for the report. However, their attorney's letter to the district attorney general requesting diversion asserts the following:
"As you probably know, these gentlemen are partners in the business which owns Planet Rock, where the criminal offense with which they are charged allegedly occurred. They are charged with unlawful sale of an alcoholic beverage, and there would be proof that some beverages were sold by some individual in the club. Both of my clients deny that the persons selling the alcohol on that occasion were employees of theirs, and they also deny authorizing any of their employees to make such illegal sales. It appears that their crime might be one of negligence and not being fully aware of what was going on at their place of business. I think that pre-trial diversion would be a fair way to resolve this matter, and it would enable both of these gentlemen to lead productive lives without a criminal conviction being on their record."
The letter also relates that defendant Jansen is 44 years of age and was honorably discharged after serving six years in the United States Navy. He is a college graduate and is described as a prominent businessman with no prior criminal record. According to the application letter, defendant Luckman is 28 years old and a high school graduate with no prior criminal record. He comes from a large family who his attorney believes will be supportive. Finally, it is asserted in the letter that the presentence reports reflect favorably upon the character of each defendant. From our examination of these reports, the only additional information we find possibly relevant to character assessment is that defendant Luckman pays child support . There were no letters of recommendation or other documentation showing suitability for diversion submitted on behalf of either defendant.
By letter dated October 4, 1995, the district attorney general gave the following reasons for denying pretrial diversion:
"1. It is the defendant's responsibility to provide this office with sufficient evidence of his qualifications for pretrial diversion. The defendant has failed to provide this office with any evidence and having failed i
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