         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                   August 7, 2001 Session

                 STATE OF TENNESSEE v. MARCUS J. TURCO

                  Direct Appeal from the Criminal Court for Shelby County
                         No. 198-00168    John P. Colton, Jr., Judge



                  No. W2001-01085-CCA-R3-CD - Filed September 14, 2001



David G. Hayes, concurring.

        I join with the majority in concluding that the trial court was without authority to modify
the defendant’s sentence after the sentence had expired. I write separately because I also find
that the trial court was without authority to grant judicial diversion in this case even if the
sentence had not expired. Absent appropriate legislation, the trial court is without authority to
invent its own sentencing programs.

       Tennessee Code Annotated § 40-35-313(a)(1)(A), commonly referred to as judicial
diversion, provides in relevant part as follows:

       If any person . . . is found guilty or pleads guilty . . . the court may, without
       entering a judgment of guilty . . ., defer further proceedings and place the person
       on probation upon . . . conditions as it may require, . . . .

       Subsection 313(a)(1)(B)(2) contains the following language: Upon violation of a
       condition of the probation, the court may enter an adjudication of guilt . . .
       Discharge and dismissal under this subsection is without court adjudication of
       guilt.

As emphasized above, the statute provides that the sentencing court receives the guilty plea but
defers further proceedings without adjudicating guilt or without entering a judgment of
conviction. An adjudication of guilt is only entered when the defendant violates a condition of
probation, Tenn. Code Ann. § 40-35-313(a)(1)(B)(2), which is then followed by imposition of
punishment.

        On April 23, 1999, the defendant entered a plea of guilty to sexual battery, a class E
felony, and was adjudicated guilty of this offense. Following a sentencing hearing, the trial court
denied the defendant’s request for judicial diversion and, instead, imposed a one year suspended
sentence with supervised probation. The judgment of conviction was entered on July 28, 1999.

        There is no sentencing authority which permits judicial diversion following adjudication
of guilt or imposition of sentencing. Accordingly, I find that, in addition to the majority’s
position, the trial court was without statutory authority to grant judicial diversion.



                                             ______________________________________
                                             David G. Hayes, Judge




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