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State v. Polston8/19/2004
we're talking about the facts, the proof was the victim came up to you as a peacemaker. . . .
And so what we had was a terrible, terrible set of circumstances. We're not just talking about . . . it's bad. [Anytime] people get hit and get hurt, that's terrible, that's bad. But I think the Court would be derelict in duties if it did not look at. . . what were the extent of these injuries[.] . . .
The jury said, and I think the facts support it, you caused it to be put in motion. And then, this person is now seriously impaired. It's not that he had a headache for an hour. Although, that would be bad. It's not that he had a cut on his jaw. It's now, based on the proof that we had, he had some sight impairment, he had some hearing impairment, because a grown up can't control himself.
Maybe it was the alcohol? I don't know. That's pathetic, for whatever reason. That is a horrible situation.
The Court feels that under all of the facts and circumstances of this case, under the extent, particularly the extent of the injuries involved in this case, diversion would not be appropriate.
And I think that society has an interest in this. I certainly do. And certainly, as pointed out maybe by your perspective, sure it would be great not to even have this on your record. But, I doubt seriously if this would -- I don't know, I can't say that, I don't know what the long[-]range effect of this would be. But I do know that society has a right to expect that when people are seriously injured from the actions of another, that [there are] some consequences for that.
1. Diversion
The Defendant argues that the trial court abused its discretion in declining to impose a sentence pursuant to Tennessee Code Annotated section 40-35-313 (1997 & Supp. 2002), commonly referred to as "judicial diversion." According to this statute, the trial court may, at its discretion, following a determination of guilt, defer further proceedings and place a qualified defendant on probation without entering a judgment of guilt. Tenn. Code Ann. § 40-35-313(a)(1)(A). A qualified defendant is one who:
(a) Is found guilty of or pleads guilty or nolo contendere to the offense for which deferral of further proceedings is sought;
(b) Is not seeking deferral of further proceedings for a sexual offense or a Class A or Class B felony; and
(c) Has not previously been convicted of a felony or a Class A misdemeanor.
Tenn. Code Ann. § 40-35-313(a)(1)(B)(i)(a), (b), (c). When a defendant contends that the trial court committed error in refusing to grant judicial diversion, we must determine whether the trial court abused its discretion by denying the defendant's request for judicial diversion. State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998); State v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim. App. 1997). Judicial diversion is similar to pretrial diversion; however, judicial diversion follows a determination of guilt, and the decision to grant judicial diversion is initiated by the trial court, not the prosecutor. State v. Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992). When a defendant challenges the trial court's denial of judicial diversion, we may not revisit the issue if the record contains any substantial evidence supporting the trial court's decision. Cutshaw, 967 S.W.2d at 344; State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). In Anderson, this Court stated:
We conclude that judicial diversion is similar in purpose to pretrial diversion and is to be imposed within the discretion of the trial court subject only to the same constraints applicable to prosecutors
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