State v. Poplar, 2

• Decision Date: 18 December 1980
• Docket Number: No. 2,2
• Citation: State v. Poplar, 612 S.W.2d 498 (Tenn. Crim. App. 1980)
• Parties: STATE of Tennessee, Appellee, v. Cleveland POPLAR and Danny Lee Buggs, Appellants.
• Court: Tennessee Court of Criminal Appeals

Page 498

612 S.W.2d 498

STATE of Tennessee, Appellee, v.Cleveland POPLAR and Danny Lee Buggs, Appellants.

No. 2

Court of Criminal Appeals of Tennessee, at Jackson.

Dec. 18, 1980.

Paul Garvan Summers, Somerville, for Poplar.

Edward B. Johnson, Somerville, for Buggs.

William M. Leech, Jr., Atty. Gen., Jennifer Helton Small, Asst. Atty. Gen., Nashville, Michael W. Whitaker, Dist. Atty. Gen., Somerville, for appellee.

OPINION

TATUM, Judge.

This is a Rule 9(Tennessee Rules of Appellate Procedure) appeal from a judgment of the Criminal Court that affirmed the refusal of the District Attorney General to allow pre-trial diversion.

The District Attorney General filed a written assignment of his reasons for declining to enter into memoranda of understanding or to divert prosecution of the defendants.He admits that neither defendant has previous criminal convictions but states, in substance, that the defendants have not shown any overriding reasons as to why they should receive preferred treatment.He states that the circumstances of these defendants are no different from 50% of the criminal defendants in that court, and he assumes the position that the deterrent effect of the criminal law will be eroded by the wholesale diversion of the prosecution of defendants without criminal records.

The Legislature created the pre-trial diversion program by Chapter 352 of the Public Acts of 1975.The scheme of the legislature is set out in T.C.A. § 40-2108.In summary, this code section provides that in cases"where the defendant is charged with a felony and does not have a previous felony conviction or charged with a misdemeanor and does not have a previous misdemeanor conviction,"he is entitled to have his prosecution"suspended for a specified period" without being required to plead to the indictment, if he is charged with an offense punishable by confinement for a period of 10 years in the penitentiary or less.The statute contemplates a rehabilitation program for a period not to exceed two years in accordance with a memorandum of understanding between the defendant and the District Attorney General which must be approved by the trial judge.When the defendant has successfully completed the rehabilitation program, then all charges against him must be dismissed without the defendant being tried for the offense with which he is charged.T.C.A. § 40-4001 provides for the destruction of the records of the criminal charge.

In the instant case, we first note that the trial judge apparently conducted a de novo hearing to determine whether the District Attorney General abused his discretion.T.C.A. § 40-2108(b) provides that the defendant has a right to petition for a writ of certiorari to the trial court for an abuse of prosecutorial discretion.The trial court then must determine whether the prosecuting attorney abused his discretion in refusing to divert a defendant's prosecution.By necessity, a de novo hearing is not appropriate; the trial judge should bring before him only the evidence made available to and considered by the District Attorney General in determining whether to grant a diversion of prosecution.The statute vests discretion only with the District Attorney General and not with the trial judge; for this reason, a determination of whether the District Attorney General abused his discretion could only be determined by considering what evidence was before the District Attorney General when he considered the application for diversion.Since the judgment in this case was rendered, the Court of Criminal Appeals in State v. Watkins, 607 S.W.2d 486(Tenn.Cr.App.1980), has held:

"This act being akin to the probation act under which trial judges may suspend sentences and place people convicted of crimes on probation, the same rule of review by the appellate court of a trial judge's action in those cases is applicable to the trial judge's review of the action of the District Attorney General in refusing to enter into a memorandum of understanding."

However, since the trial judge, the District Attorney General and the defendants all treated the de novo hearing as appropriate and since nothing is before us to distinguish what evidence was before the trial judge, but not before the District Attorney General, we elect to consider the transcript of the de novo hearing.

The defendant, Poplar, at the time of the hearing, was 22 years of age.He had three children but was unmarried.He testified that he supported these three children although he admitted on cross-examination that the children had all been on Welfare through the Department of Human Services since their birth.

Poplar was laid off from his employment at Harmon International in Hardeman County due to the present economic situation.He introduced evidence that part-time employment was available to him, and he expressed an intent to accept this employment in the near future.He was recently cited to court for failure to make child support payments, but he has no prior criminal record.

He is charged for committing two crimes of burglarizing two pickup trucks and stealing three firearms which he sold.He admitted committing these crimes for the reason that his mother was in Kansas City and that he did not have any money.There is evidence that he attended church but did not engage in civic or community activities.He lives with his mother in Mississippi, and his mother works.He testified that he assisted his mother financially.There were many witnesses brought by him from Mississippi who recommended to the trial court that his prosecution be diverted.

The District Attorney General and the Circuit Judge indicated that they were experiencing difficulty in determining the criteria for eligibility of persons applying for diversion...