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State v. Shelton12/17/2001
science, or otherwise prohibited by this chapter . . . ." Tenn. Code Ann. § 40-35- 303(d)(9). Thus, a trial court is free to impose any terms and conditions that are not inconsistent with the Sentencing Act. See State v. Johnson, 980 S.W.2d 410, 413 (Tenn. Crim. App. 1998). The conditions imposed, however, "must be reasonable and realistic and must not be so stringent as to be harsh, oppressive or palpably unjust." Stiller, 516 S.W.2d at 620.
Here, the trial court based its decision to require service in the halfway house on the fact that the defendant had been granted judicial diversion some ten years earlier. The trial court made the following observations:
hat really aggravates the court at this time is . . . somebody who has been given an opportunity by some judge once before continues to participate in illegal activity. And it seems like you haven't learned your lesson.
The court is going to place you at Project WIT for four months. . . . And hopefully this program will teach you that it is time for you to grow up and be a man and stop playing around with people that don't . . . have anything to do with you being a contributing citizen in this society.
The judicial diversion statute provides that after an adjudication of guilt, a trial court may defer entry of judgment until a defendant successfully completes a diversion program or violates a condition of his release. See Tenn. Code Ann. § 40-35-313. If a defendant is successful, the statute provides for expungement from "all official records . . . all recordation relating to the person's arrest, indictment or information, trial, finding of guilty, and dismissal and discharge pursuant to this section." Tenn. Code Ann. § 40-35-313(b). The effect of dismissal under the diversion statute "is to restore the person, in the contemplation of the law, to the status the person occupied before such arrest or indictment or information." Id.
Our supreme court has held that " xpungement does not return a person to the position occupied prior to committing the offense." State v. Schindler, 986 S.W.2d 209, 211 (Tenn. 1999). Our high court ruled that "the testimony and evidence of the criminal acts preceding the arrest are admissible as evidence of prior bad acts or evidence of social history even if expungement is later obtained." Id. In State v. Lane, 3 S.W.3d 456, 462 (Tenn. 1999), our supreme court held that "the criminal acts underlying an expunged conviction may properly be considered to determine whether a defendant is a suitable candidate for alternative sentencing." The court cautioned that only the underlying acts, not the conviction or grant of diversion itself, could be considered. Id.
Here, there was no proof of the facts which lead to the earlier conviction. The trial court could not deny probation based solely upon a prior grant of judicial diversion. Because the state produced no evidence demonstrating that the defendant was not otherwise a suitable candidate for probation and because the circumstances of the offense, as stipulated, do not outweigh all other factors pertinent to probation, the presumption of correctness attached to the sentence has been overcome.
Accordingly, the judgment of the trial court is modified to provide for immediate probation. The cause is remanded to allow the trial court to impose appropriate conditions of probation, such as random drug testing, other than placement in a halfway house.
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