             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                                JANUARY 1998 SESSION

                                                             FILED
                                                               March 13, 1998
STATE OF TENNESSEE,                    )
                                       )                     Cecil Crowson, Jr.
                                                             Appellate C ourt Clerk
                    APPELLEE,          )
                                       )          No. 02-C-01-9703-CR-00094
                                       )
                                       )          Shelby County
v.                                     )
                                       )          Arthur T. Bennett, Judge
                                       )
                                       )          (Sentencing)
CHERYL D. SUDDUTH,                     )
                                       )
                   APPELLANT.          )



FOR THE APPELLANT:                          FOR THE APPELLEE:

Coleman W. Garrett                          John Knox Walkup
Attorney at Law                             Attorney General & Reporter
200 Jefferson Avenue, Suite 850             425 Fifth Avenue, North
Memphis, TN 38103                           Nashville, TN 37243-0493
(Appeal Only)
                                            Clinton J. Morgan
Gerald S. Green                             Counsel for the State
Attorney at Law                             425 Fifth Avenue, North
147 Jefferson Avenue, Suite 714             Nashville, TN 37243-0493
Memphis, TN 38103
(Trial Only)                                William L. Gibbons
                                            District Attorney General
                                            201 Poplar Avenue, Suite 3-01
                                            Memphis, TN 38103

                                            Jamey S. Kaplan
                                            Assistant District Attorney General
                                            201 Poplar Avenue, Suite 3-01
                                            Memphis, TN 38103

                                            Charles W. Bell
                                            Assistant District Attorney General
                                            201 Poplar Avenue, Suite 3-01
                                            Memphis, TN 38103




OPINION FILED:____________________________

AFFIRMED

Joe B. Jones, Presiding Judge
                                     OPINION


       The appellant, Cheryl D. Sudduth (defendant), was convicted of forgery in excess

of $10,000, a Class C felony, following her plea of guilty to the offense. The trial court,

finding the defendant to be a standard offender, imposed a Range I sentence consisting

of a $1,000 fine and confinement for four (4) years in the Shelby County Correctional

Center. The trial court suspended the defendant’s sentence and placed her on probation

for a period of five (5) years. In this court, the defendant contends the trial court abused

its discretion by refusing to grant her judicial diversion. After a thorough review of the

record, the briefs submitted by the parties, and the law governing the issue presented for

review, it is the opinion of this court that the judgment of the trial court should be affirmed.

       The facts in this case were stipulated to at the submission hearing. The STM

Mortgage Company of Dallas, Texas, issued a check in the amount of $17,704.24. The

check was made payable to Ronald Sudduth and Cheryl Sudduth and Cummins

Construction Company (correctly spelled “Cummings”). The defendant forged the name

of Cummings Construction Company on the back of the check by using a company stamp

without permission between September 20, 1991, and October 15, 1991.

       The defendant was indicted on April 16, 1992, by the Shelby County Grand Jury.

It appears the defendant was not in custody when she was indicted. A capias was issued

for her arrest on April 16, 1992. She was arrested and placed in the Shelby County Jail on

April 22, 1992.

       The defendant was thirty-one years of age when she was sentenced. She was

single. She has one daughter who was thirteen years of age at sentencing. The

defendant is a graduate of State Technical Institute in Memphis. She graduated in 1979.

       According to the presentence report, the defendant was employed by the Shelby

County Government from 1985 until 1990. She was fired, but the reason she was fired is

not provided. She worked for Federal Express from May of 1992 until October of 1992.

She resigned from this position. Her last place of employment was Spiffy Cleaners. It

appears she was released because the business closed.

       When a defendant contends the trial court committed error in refusing to impose a


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sentence pursuant to Tenn. Code Ann. § 40-35-313, commonly referred to as “judicial

diversion,” the standard of review is an abuse of discretion. State v. Bonestel, 871 S.W.2d

163, 167 (Tenn. Crim. App. 1993); 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). Thus, this court

must determine whether the trial court abused its discretion in refusing to grant the

defendant judicial diversion.

       In this case, the trial court considered the defendant’s acquisition of a stamp for

endorsing the check from the victim’s business. She had a prior conviction for driving

without a license. The court also took into consideration the defendant’s apparent lack of

candor. The trial court stated: “What you want to do is tell the truth. And see, you were

kind of shading it about a couple of things. . . .” The trial court also considered the

circumstances of the offense and the amount in controversy.

       The trial court did not abuse its discretion in refusing to grant judicial diversion. The

factors considered by the trial court support its decision in this regard.




                                            _______________________________________
                                                JOE B. JONES, PRESIDING JUDGE



CONCUR:



______________________________________
     PAUL G. SUMMERS, JUDGE



______________________________________
      DAVID G. HAYES, JUDGE




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