State v. Hammersley
Decision Date | 25 April 1983 |
Citation | 650 S.W.2d 352 |
Parties | STATE of Tennessee, Plaintiff-Appellant, v. Freddie L. HAMMERSLEY, Defendant-Appellee. 650 S.W.2d 352 |
Court | Tennessee Supreme Court |
David M. Himmelreich, Asst. Atty. Gen., Nashville, for plaintiff-appellant; William M. Leech, Jr., Atty. Gen., Nashville, of counsel.
Mary A. Parker, Nashville, for defendant-appellee; Deneise Turner Lott, Nashville, of counsel.
The appellee, Freddie L. Hammersley, was arrested for stealing four hubcaps valued at approximately three hundred dollars ($300.00). The appellee sought to enter into a memorandum of understanding under the provisions of T.C.A., Sec. 40-15-102, et seq., the pretrial diversion statute, with John Hestle, the District Attorney General for Montgomery County, but Mr. Hestle refused to do so. Pursuant to T.C.A., Sec. 40-15-105(b)(3), the appellee petitioned the trial court for a writ of certiorari, alleging that the failure to divert constituted an abuse of prosecutorial discretion. The trial court, Honorable Sam E. Boaz presiding, denied the petition and on appeal to the Court of Criminal Appeals that court reversed. We granted the State's application for permission to appeal under T.R.A.P. 11.
The decision whether or not to accede to pretrial diversion rests within the discretion of the District Attorney General, subject to review by the trial court for abuse of prosecutorial discretion. T.C.A., Sec. 40-15-105(b)(3).
Pace v. State, Tenn., 566 S.W.2d 861, 864 (1978).
The task thus imposed upon prosecutors of deciding which defendants are worthwhile candidates for diversion is indeed a demanding one. Almost all criminal defendants, whether first offenders or not, would claim remorse and ascribe to themselves a desire to walk the straight and narrow if presented an opportunity to avoid prosecution; the responsibility placed upon prosecutors to pick and choose among the lot based upon a particular candidate's amenability to rehabilitation or recidivism requires the exercise of unusual powers of discrimination.
Diversion allows for the quick and inexpensive disposition of cases for which such action is deemed appropriate. As the Supreme Court of New Jersey said in State v. Leonardis, 71 N.J. 85, 363 A.2d 321 (1976):
We believe that in order for prosecutors to properly exercise the discretion vested in them by the pretrial diversion statute some objective standards should be established to guide them in the decision-making process. The following observation by the Supreme Court of New Jersey provides enlightenment on this point:
State v. Leonardis, supra, 363 A.2d at 329.
Some points of reference are already established; for instance, Chief Justice Henry in his separate concurring opinion in Pace v. State, supra, has suggested 566 S.W.2d at 871.
See, also, Blackwell v. State, Tenn.Cr.App., 605 S.W.2d 832 (1980); State v. Poplar, Tenn.Cr.App., 612 S.W.2d 498 (1980).
However, evidence of the need for further clarification is shown by the divergence of opinion which exists within the Court of Criminal Appeals. In Ball v. State, Tenn.Cr.App., 604 S.W.2d 65 (1979), it was held that "a trial judge may now deny probation upon the ground of deterrence alone." 604 S.W.2d at 66. This holding was the direct result of an amendment to T.C.A., Sec. 40-2904 (ch. 911, Pub. Acts, 1978). Since Henry, C.J., had likened the discretion of prosecutors in pretrial diversion situations to that possessed by the trial judge in probation cases, the question thus arose whether deterrence alone was an adequate justification for denying pretrial diversion. In Blackwell v. State, supra, the court responded to this question, Judge Daughtrey saying:
An opinion seemingly contrary to this interpretation was expressed in State v. Watkins, Tenn.Cr.App., 607 S.W.2d 486 (1980), wherein Judge Byers, writing on behalf of the court, stated:
In our opinion deterrence should be considered in pretrial diversion cases in the same manner as we have approved for consideration in probation cases. Our instruction in that regard is set out by Justice Fones in State v. Michael, Tenn., 629 S.W.2d 13 (1982) as follows:
* * *
Deterrence to others should not be eliminated as a matter of law and in all cases from consideration by the District Attorney General or by the trial judge in deciding whether to grant pretrial diversion; deterrence either of the individual or of others is as relevant here as in granting or denying probation.
When deciding whether to enter into a memorandum of understanding under the pretrial diversion statute a prosecutor should focus on the defendant's amenability to correction. Any factors which tend to accurately reflect whether a particular defendant will or will not become a repeat offender should be considered. Such factors must, of course, be clearly articulable and stated in the record in order that meaningful appellate review may be had. Among the factors to be considered in addition to the circumstances of the offense are the defendant's criminal record, social history, the physical and mental condition of a defendant where appropriate, and the likelihood that pretrial diversion will serve the ends of justice and the best interest of both the public and the defendant. See, Tenn., State v. Grear, 568 S.W.2d 285 (1978); Stiller v. State, Tenn., 516 S.W.2d 617, 621 (1974).
In the instant case the record reveals that the appellee was twenty-one years old at the time the offense was committed and had no criminal record. Subsequent to his arrest a probation report was prepared that was admitted at the hearing on the petition for a writ of certiorari. This report contains twelve categories of information that are to be considered when deciding whether probation or, in this case, diversion, is warranted. The categories are: attitude, behavior since arrest, prior record, home environment, current drug usage, current alcohol usage, emotional stability, past employment, general reputation, marital stability, family responsibility and attitude of law enforcement. The appellee received a favorable recommendation in all of these areas except general reputation, family responsibility and attitude of law enforcement. Those three categories were marked "N/A," presumably because the probation officer who prepared the report did not have...
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...judicial diversion only for an abuse of discretion. See State v. Turco, 108 S.W.3d 244, 246 n. 5 (Tenn.2003) (citing State v. Hammersley, 650 S.W.2d 352, 356 (Tenn.1983)). Upon review of a denial of judicial diversion, we will accord the trial court the benefit of its discretion if “any sub......
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...and best interests of both the public and the defendant. See State v. Washington, 866 S.W.2d 950, 951 (Tenn.1993); State v. Hammersley, 650 S.W.2d 352, 355 (Tenn.1983). A trial court should consider the same factors when deciding whether to grant judicial diversion. See State v. Bonestel, 8......
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...lower court's denial of judicial diversion is subject to reversal on appeal only if that court abused its discretion. State v. Hammersley, 650 S.W.2d 352, 356 (Tenn.1983). When a defendant challenges the denial of judicial diversion, we may not revisit the issue if the record contains any s......
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State v. Martin, No. E2005-02155-CCA-R3-CD (Tenn. Crim. App. 9/18/2007)
...9 (Tenn. 2000). An abuse of discretion exists if the record contains no substantial evidence to support the denial. State v. Hammersley, 650 S.W.2d 352, 356 (Tenn. 1983); Bonestel, 871 S.W.2d at 167. In determining whether to grant judicial diversion, the trial court must consider (1) the d......