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State v. Curry3/8/1999
y which is a valid factor for consideration." Id. at 680. The court noted that pretrial diversion was an extraordinary largess of the law and affirmed the denial of diversion based upon the circumstances of the offense.
In the case now before us, I believe that the record is replete with substantial evidence supporting the district attorney's reasons for denying pretrial diversion. Utilizing the factors set forth by this Court's recent decision in State v. Pinkham, 955 S.W.2d 956 (Tenn. 1997), I would find the following:
""1. The district attorney more than adequately addressed the circumstances of the offense and the serious nature of the offense;"
"2. The defendant's social history indicates that for at least two years the defendant was involved in a sustained criminal scheme to defraud a city and embezzle a substantial amount of money;"
"3. The defendant's physical and mental condition were likely not appropriate factors for consideration in this case; and"
"4. Pretrial diversion would not serve the best interest of both the public and the defendant as diversion would diminish the serious nature of this crime and diminish the public's confidence in the criminal Justice system's ability to address crimes of a serious and ongoing nature."
I would hold that the district attorney's letter denying diversion more than adequately addressed the criteria set forth in Pinkham, 955 S.W.2d at 959-60, even though the letter could have been more detailed. The reasons cited for the denial are similar or greater in both substance and form to grounds held adequate in numerous published cases. The circumstances of the defendant's offense and the need to deter fraud as well as thefts of large sums of money are sufficiently overwhelming to justify denial of pretrial diversion in this case. Moreover, the defendant's offenses are more serious than offenses discussed in published cases in which denials have been upheld based solely upon the circumstances of the offense and the need for deterrence.
The majority's holding allows the defendant to avoid being tried for her crimes merely because the prosecutor failed to explicitly include in the letter denying pretrial diversion words referencing, as the majority states, "the defendant's favorable social history, lack of a criminal record, and potential for rehabilitation." (emphasis added). I disagree with the majority's finding that the defendant has a "favorable" social history and background. I believe that someone who continually commits serious crimes involving deception, planning, and fraud over a two-year period of time has a less than favorable social history, has an extensive criminal background, and is a poor candidate for rehabilitation. Moreover, the defendant ceased her criminal activity only when she was caught, and her criminal activity would likely have continued had she not been caught.
I disagree with the majority's decision that an abuse of discretion occurred merely due to a district attorney's failure to specifically or explicitly address non-statutory criteria. I further disagree with the majority's concern that a remand creates a danger "that new reasons for consideration will be introduced during the hearing." Unlike judicial diversion, applications for pretrial diversion generally occur while a criminal proceeding is in its infancy. Witnesses have not testified, discovery is ongoing, and a presentence report has not been prepared. I believe that the public's need for protection from offenders of serious crimes and the public's interest in avoiding the depreciation of the seriousness of crimes outweigh any prejudice a defendant may suffer if additional but valid
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