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State v. Malone4/25/2005
as a factor weighing against diversion. While deterrence may be considered as a factor in justifying a denial of diversion, such a factor must be clearly articulable and stated in the record in order to foster meaningful appellate review. See Curry, 988 S.W.2d at 159; State v. Carr, 861 S.W.2d 850, 855 (Tenn. Crim. App. 1993). Moreover, the circumstances of the offense and the need for deterrence "cannot be given controlling weight unless they are of such overwhelming significance that they necessarily outweigh all other factors." State v. Washington, 866 S.W.2d 950, 951 (Tenn.1993) (citations omitted). In this case, the prosecutor does not cite any statistics regarding statutory rape, rather the prosecutor relies on the fact that his judicial district prosecutes roughly sixty to seventy sexually related offenses a year, and the fact that there is an ever-increasing tide of juvenile crime and crimes against juveniles. It is not clear if these sexually related offenses are limited to statutory rape or pertain to other sex crimes. Moreover, it is not clear how much weight was placed on this factor. Thus, as written, we are unable to determine if deterrence value is a legitimate basis to support the denial of pretrial diversion.
Our supreme court has made it abundantly clear that a prosecutor must examine and consider all relevant factors and identify any factual discrepancies between the evidence relied upon by the prosecutor and the evidence presented by the defendant. When a prosecutor fails in this regard, the proper remedy is to remand to the prosecutor for proper evaluation of all the factors relevant to the defendants's application for pretrial diversion. Upon review, we note that the prosecutor failed to consider and weigh all relevant factors favorable to the defendant and failed to identify the factual disputes upon which he relied. Moreover, the prosecutor failed to provide clear explanation as to how much weight each factor was afforded or why certain factors outweighed other factors in denying diversion. Accordingly, we remand this matter to the prosecutor for further consideration of all relevant factors attendant to the defendant's pretrial diversion application.
III. Conclusion
The judgment of the trial court is reversed and the matter is remanded back to the prosecutor for consideration of all relevant factors attendant to the defendant's pretrial diversion application.
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