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State v. Dinwiddie4/21/1999
The defendant was charged by indictment with possession with intent to sell marijuana, possession with intent to deliver marijuana, and possession of drug paraphernalia. The State denied the defendant pretrial diversion, a decision which the trial court reversed after a hearing. The State now appeals, arguing that the trial court erred in granting pretrial diversion to the defendant. Following a review of the record, we reverse the trial court's entry of pretrial diversion and remand the case for further proceedings.
According to the incident report in this case, the defendant's car had been reported in the past to be involved in drug deals. One evening, a police investigator watched as the defendant, accompanied by three friends, drove to a convenience store where he used a pay phone. The defendant then drove to an apartment complex and parked near another car occupied by two individuals. While the defendant's friends waited in his car, the defendant climbed into the back seat of the other car. Approximately one minute later, he returned to his car, carrying his wallet in his hand. The defendant's car was stopped a short while later. The defendant refused to give consent for a vehicle search, but during a patdown for weapons, an officer discovered a small baggie of marijuana and two packs of rolling papers in the defendant's "groin area," and the defendant was arrested. While searching the defendant's vehicle, officers found another baggie of marijuana "behind the radio console area." The total amount of marijuana seized totaled approximately one ounce. A later strip search of the defendant revealed a crack pipe inside his rectum.
On February 20, 1998, the trial court entered an order, apparently upon the defendant's request, directing the parties to "explore the possibility of pre-trial diversion." The record, however, does not contain an application for pretrial diversion, any supporting materials, or even any reference that the defendant filed a formal written application and supporting materials.
On March 16, 1998, the Tennessee Department of Correction filed its pretrial diversion investigation report, which reflects that the defendant, who is single and has no dependents, has no prior adult arrests or convictions. This report also reflects that the defendant left high school after completing the eleventh grade because he was missing too many school days, but he later obtained his GED and plans to continue his education at a local community college. Apparently, the defendant had tried to enroll in night classes, but could not because the classes he wanted were full. According to the report, the defendant held various part-time, temporary jobs during summer and while he was in school. In February 1998, the defendant was hired for a production/assembly-type job paying $6.50 per hour, but he resigned three days later when he obtained work at Lowe's as a forklift operator for $10.00 per hour. According to the report, the defendant had been living with his parents until recently, when he moved out and began renting an apartment. Also included in this report was the defendant's statement that he "has no more involvement with marijuana" and wanted to participate in the pretrial diversion program because he did not want a felony criminal record. The defendant also stated that he submitted to a drug screen when he was hired for his first job in February 1998 and that he must pass a drug test at Lowe's, too.
By letter dated March 17, 1998, the district attorney general denied pretrial diversion based upon his review of the pretrial diversion investigation report. The district attorney general gave the following reasons for denying pretrial diversion:
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