In addition to being a determination that is initially made by the trial court and not the prosecutor, judicial diversion is requested "after pleas of guilty or verdicts of guilty." State v. George, 830 S.W.2d 79, 80 (Tenn.Crim.App. 1992). Under Tennessee Code Annotated section 40-35-313(a)(2), when judicial diversion is granted, a conviction may later be entered if the defendant fails to fulfill his probation obligations.
See Bonestel, 871 S.W.2d at 168. In addition, this Court applies "the same level of review as that which is applicable to a review of [a] district attorney general's action in denying pre-trial diversion." State v. George, 830 S.W.2d 79, 80 (Tenn.Crim.App. 1992); see also Bonestel, 871 S.W.2d at 168; Anderson, 857 S.W.2d at 572. In other words, this Court reviews the record to determine whether the trial court abused its discretion. See Bonestel, 871 S.W.2d at 168; Anderson, 857 S.W.2d at 572.
In reviewing such issues, this Court must determine whether the trial court abused its discretion by failing to sentence the accused pursuant to the statute.Bonestel, 871 S.W.2d at 167; State v. Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992); State v. George, 830 S.W.2d 79, 80 (Tenn. Crim. App. 1992). In this Court, the party challenging the sentence imposed by the trial court has the burden of establishing that the sentence imposed by the trial court was erroneous.
In reviewing such issues, this Court must determine whether the trial court abused its discretion by failing to sentence the accused pursuant to the statute. Bonestel, 871 S.W.2d at 167; State v. Anderson, 857 S.W.2d 571, 572 (Tenn.Crim.App. 1992); State v. George, 830 S.W.2d 79, 80 (Tenn.Crim.App. 1992). In this Court, the party challenging the sentence imposed by the trial court has the burden of establishing that the sentence imposed by the trial court was erroneous.
Judicial diversion and pretrial diversion are likewise similar in that this Court applies "the same level of review as that which is applicable to a review of a district attorney general's action in denying pre-trial diversion." State v. George, 830 S.W.2d 79, 80 (Tenn. Crim. App. 1992); see also, Bonestel, 871 S.W.2d at 168; Anderson, 857 S.W.2d at 572. To be successful on appeal, a defendant must show an abuse of discretion by the trial court.
In reviewing these issues this Court must determine whether the trial court abused its discretion in failing to sentence the accused pursuant to the statute. State v. George, 830 S.W.2d 79, 80 (Tenn. Crim. App. 1992); State v. Oscar Anderson, 857 S.W.2d 571 (Tenn. Crim. App., 1992, Jackson). As this Court said in Anderson:
It has long been held that "an appeal may be taken after entry of judgment when the trial court denies judicial diversion." State v. George, 830 S.W.2d 79, 80 (Tenn.Crim.App. 1992). One caveat enunciated by our Supreme Court relevant to an appeal from a denial of judicial diversion is that "the trial court may entertain the issue of judicial diversion only when the court rejects the [guilty plea] agreement or when such an option is reflected in the 11(e)(1)(C) plea agreement."
Although generally, when a defendant challenges the manner of service of a sentence, the review is de novo with a presumption of correctness, when the accused challenges the denial of judicial diversion, the standard of review is different. State v. Parker, 932 S.W.2d 945, 956 (Tenn.Crim.App. 1996) (citingState v. Anderson, 857 S.W.2d 571, 572 (Tenn.Crim.App. 1992);State v. George, 830 S.W.2d 79, 80 (Tenn.Crim.App. 1992)). Because the decision to grant judicial diversion lies with the sound discretion of the trial court, that decision will not be overturned on appeal absent an abuse of discretion. Id.; State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn.Crim.App. 1998).
See Bonestel, 871 S.W.2d at 168. In reviewing the decision of a trial court to grant or deny judicial diversion, this Court applies "the same level of review as that which is applicable to a review of the district attorney general's action in denying pre-trial diversion." State v. George, 830 S.W.2d 79, 80 (Tenn.Crim.App. 1992); see also Anderson, 857 S.W.2d at 572. In other words, this Court reviews the record to determine whether the trial court abused its discretion. See Bonestel, 871 S.W.2d at 168; Anderson, 857 S.W.2d at 572. To find an abuse of discretion, we must determine that no substantial evidence exists to support the ruling of the trial court.
In addition, this Court should apply "the same level of review as that which is applicable to a review of the district attorney general's action in denying pre-trial diversion." State v. George, 830 S.W.2d 79, 80 (Tenn.Crim.App. 1992). We conclude that the record does not show an absence of any substantial evidence to support the trial court's refusal to grant judicial diversion.