 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Tipton5/24/2005
Facts and Procedural History
The defendant, Russell L. Tipton, was charged with reckless operation of a motor vessel and failure to observe the motor vessel light law. Pursuant to Tennessee Rule of Appellate Procedure 9, he was granted application for interlocutory appeal to challenge the District Attorney General's denial of pretrial diversion. Upon careful review of the briefs, record, and applicable law, we reverse the judgment of the trial court and remand the matter to the District Attorney General for further consideration of the pertinent factors and for a more thorough discussion of the evidence considered and the weight accorded to each factor.
The defendant was indicted by a Franklin County Grand Jury, which charged him with one count of reckless or negligent operation of a motorboat or vessel and one count of failing to exhibit proper lights on a boat or vessel. The defendant filed an application for pretrial diversion on May 23, 2002, which was denied by the District Attorney General. The defendant then filed a petition for writ of certiorari in the trial court, which was likewise denied on September 23, 2003. Subsequently, the trial court granted the defendant's motion for a Rule 9 interlocutory appeal, and this court granted the application for permission to appeal. On appeal, the defendant contends that the District Attorney General's denial of pretrial diversion is not supported by substantial evidence and should be reversed.
The record reveals that on July 4, 2002, the defendant and his wife were aboard a pontoon boat on Tim's Ford Lake in Franklin County. They pulled the boat to the south side of a channel to watch fireworks displays from the Tim's Ford Marina and from the Town of Winchester. At approximately nine o'clock in the evening, the pontoon, which was allegedly operating without proper lights, was struck by a ski boat that had several young men aboard. Upon striking the defendant's boat, one of the passengers, James Eric Jones, "was thrown forward from the forward cabin of the motorcoach and ultimately drowned."
On May 23, 2003, the defendant submitted an application for pretrial diversion. In a letter denying the defendant's application, the District Attorney General noted the seriousness of the offense, the need for deterrence, and the defendant's failure to accept responsibility or feel remorse for his actions. In support of his position, the District Attorney General indicated that the defendant failed to answer "question #32," which asked for the defendant's recitation of the events in question. However, the defendant contends that he did not refuse to respond, but rather attached a copy of his statement to authorities following the incident. The letter denying diversion also noted several factors which were favorable to the defendant, such as his lack of a criminal record, his social history, his amenability to correction, and his "attitude and behavior since arrest and attitude of law enforcement." However, the District Attorney General ultimately summarily concluded that the "other factors considered herein outweigh " these factors and denied diversion.
Following the District Attorney General's denial of pretrial diversion, the defendant filed a petition for writ of certiorari. In an order denying the petition, the trial court found that the District Attorney General considered and weighed all relevant factors as set out in case law and that substantial evidence existed in the record to support the decision. Accordingly, the trial court found that there was no abuse of discretion on the part of the District Attorney General and denied the writ of certiorari. The petitioner now appeals to this court, pursuant to
Page 1 2 3 4 Tennessee DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|