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State v. Curry3/8/1999
COURT OF CRIMINAL APPEALS REVERSED; JUDGMENT OF THE TRIAL COURT REINSTATED.
We granted this appeal to determine whether the trial court properly ruled that the prosecution abused its discretion by failing to consider all of the relevant factors in denying the defendant's application for pretrial diversion, and whether the Court of Criminal Appeals erred in remanding the case for an evidentiary hearing. The Court of Criminal Appeals agreed that the prosecutor's written letter denying diversion did not discuss all of the relevant factors, but remanded for an evidentiary hearing to allow the prosecutor to testify as to the factors that were considered in denying pretrial diversion.
After reviewing the record and controlling authority, we conclude that the trial court properly determined that the prosecution abused its discretion by failing to consider all of the relevant factors before denying pretrial diversion. We also conclude that the Court of Criminal Appeals erred in remanding the case to allow the prosecutor an opportunity to correct these deficiencies during an evidentiary hearing. Accordingly, we reverse the Court of Criminal Appeals' judgment and reinstate the judgment of the trial court.
BACKGROUND
The defendant, Carolyn C. Curry, worked as an assistant clerk for the City of McKenzie, Tennessee, from 1985 to 1995. Over a two-year period from July of 1993 to July of 1995, Curry embezzled over $27,000 from the City. She later was indicted for theft of property valued between $10,000 and $60,000.
Curry applied for pretrial diversion. According to her application, she was a divorced, 34-year-old mother of three children, ages 19, 13, and 8. Curry had graduated from college with honors in 1983, and she served in the Tennessee National Guard from 1983 to 1990, when she was honorably discharged. She was an active member of her church and numerous charitable and community organizations including the United Way, United Neighbors, Concerned Citizens, and youth softball. Numerous letters included with her application attested to her charitable and community involvement.
Curry had no prior arrests or convictions. She cooperated with authorities in this case when her actions were discovered, admitting that she took money for family and living expenses and proposing a restitution program. She stated that: "I sincerely regret my actions and regret the shame that my actions have brought to bear on myself and my family."
In denying the application for pretrial diversion, the prosecutor, in a written response, gave the following reasons:
"We are in receipt of your application for pre-trial diversion . . . . We have carefully reviewed the application and the attached letters."
"During a period of approximately two years, from July 1, 1993, through July 11, 1995, approximately $27,368.73 in city funds were embezzled by her. This was not a one time embezzlement or theft, but a complicated, well-thought out criminal scheme to take money from the City of McKenzie."
"We have considered the defendant's past history and her conduct for two years in defrauding the City of McKenzie. This was a calculated criminal scheme that took planning and thought. It manifests a criminal intent for a long period of time and not something that happened at once."
"We cannot believe that it would be in the best interests of the public, the defendant, and Justice to overlook a criminal scheme of this proportion and grant pre-trial diversion . . . ."
Curry sought review of the prosecutor's decision by filing a petition for writ of certiorari in the trial court. After hearing arg
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