          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT NASHVILLE
                         MAY SESSION, 1997
                                                 FILED
                                                     August 22, 1997

                                                 Cecil Crowson, Jr.
                                                 Appellate C ourt Clerk

STATE OF TENNESSEE,        )
                           )    No. 01C01-9512-CC-00401
      Appellant            )
                           )    MONTGOMERY COUNTY
vs.                        )
                           )    Hon. Robert W. Wedemeyer, Judge
CALVIN EUGENE HEAD,        )
                           )    (Especially aggravated robbery;
      Appellee             )    Conspiracy to commit especially
                                aggravated robbery)

                                State Appeal


For the Appellee:               For the Appellant:

MICHAEL R. JONES                CHARLES W. BURSON
District Public Defender        Attorney General and Reporter
110 Sixth Avenue, West
Springfield, TN 37172           LISA A. NAYLOR
                                Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493


                                JOHN WESLEY CARNEY, JR.
                                District Attorney General

                                ARTHUR BIEBER
                                Asst. District Attorney General
                                204 Franklin Street
                                Suite 200
                                Clarksville, TN 37040



OPINION FILED:

REMANDED



David G. Hayes
Judge
                                                 OPINION



         The State of Tennessee appeals, pursuant to Tenn. R. App. P. 10,1 from

the order entered by the Montgomery County Circuit Court requiring that the

State provide the defendant, Calvin Eugene Head, the same plea agreement

offered to Head's co-defendants. The State contends that the trial court

wrongfully usurped the plea bargaining power expressly granted to the district

attorney general's office. We agree with the State and vacate the order of the

trial court.



         In March, 1994, the Montgomery County Grand Jury indicted Calvin Head

and three co-defendants, all juveniles, on one count of especially aggravated

robbery and one count of conspiracy to commit especially aggravated robbery.

The indictments stem from the January 25, 1994, robbery of a sporting goods

store in Clarksville, during which an employee of the store was beaten with a

crow bar. The employee suffered a fractured skull and shattered cheekbone from

the assault. Head's three co-defendants, pursuant to plea offers recommended

by the State, entered guilty pleas to the reduced charge of robbery, a class C

felony and were placed on judicial diversion. Tenn. Code Ann. § 40-35-

313(a)(1). The district attorney refused, however, to recommend reduction of the

defendant Head’s charge to robbery, a class C felony which would have

permitted consideration for judicial diversion. The State argues their position is

based upon the undisputed fact that it was the defendant Head who struck the

blow with the crow bar. Subsequently, Head requested that he be provided the

same plea arrangement received by his co-defendants. At the hearing on the

defendant’s motion, the trial court found that Head was not the leader in the

commission of the offense , that he was “learning disabled,” and that he “should


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           The Sta te s ubm its th at, a ltho ugh this appeal was filed, by th e district attorney general’s
office, as an appeal as of right under Tenn. R. App. P. 3, it is more properly treated as an
interloc utory appe al und er T enn . R. App. P . 10(a )(1).

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be treated by the State in a consistent and fair manner.” The trial court then

ordered that the defendant Head be “provided the same settlement opportunity

as the other three defendants.” After entry of the order but prior to the

defendant's guilty plea hearing, the State appealed, challenging the trial court's

authority to intervene in plea negotiations. It is this appeal that is currently

before this court.



       Although Rule 11(e) of the Tennessee Rules of Criminal Procedure

permits guilty plea discussions between the district attorney general and the

accused, the district attorney general is not required to engage in plea

bargaining, see Weatherford v. Bursey, 429 U.S. 545, 561, 97 S.Ct. 837, 846

(1977); State v. Hodges, 815 S.W.2d 151, 155 (Tenn. 1991); Parham v. State,

885 S.W.2d 375, 382 (Tenn. Crim. App), perm. to appeal denied, (Tenn. 1994);

nor does the accused have a constitutional right to plea negotiations. See

Mabry v. Johnson, 467 U.S. 504, 507, 104 S.Ct. 2543, 2545-47 (1984);

Weatherford, 429 U.S. at 561, 97 S.Ct. at 846; State v. Washington, 661 S.W.2d

900, 904 (Tenn. Crim. App. 1983), cert. denied, 467 U.S. 1208, 104 S.Ct. 2394

(1984). Moreover, even though plea negotiations are permitted, "the court shall

not participate in any. . .[plea] discussions." Tenn. R. Crim. P. 11(e) (emphasis

added). Thus, Rule 11 expressly prohibits the trial court from ordering the State

to enter into a specific plea agreement with a defendant. See State v. Turner,

713 S.W.2d 327, 330 (Tenn. Crim. App.), perm. to appeal denied, (Tenn.), cert.

denied, 479 U.S. 933, 107 S.Ct. 407 (1986).



       Notwithstanding the plain language of Rule 11(e), Tenn. R. Crim. P., the

doctrine of separation of powers further bars the court from participating in plea

negotiations. The doctrine of separation of powers, as set forth in Article II of the

Tennessee Constitution, is a fundamental principal of American constitutional

government. Town of South Carthage v. Barrett, 840 S.W.2d 895, 897 (Tenn.


                                           3
1992) (citation omitted). Our constitution divides the powers of government into

three distinct, independent, and coordinate departments, namely, legislative,

executive, and judicial, with express prohibition against any encroachment by

one department upon the powers, functions, and prerogatives of the others,

except as directed or permitted by some other provision of the constitution.

Richardson v. Young, 122 Tenn. 471, 491, 125 S.W. 664, 668 (1910) (emphasis

added).



       District attorneys general are officers of the executive branch, who are

entrusted by the citizens of this state with the duty to seek justice. See State v.

Gilliam, 901 S.W.2d 385, 389 (Tenn. Crim. App. 1995); State v. Pendergrass,

No. 01C01-9504-CR-00121 (Tenn. Crim. App. at Nashville, Feb. 28, 1997).

Accord Dearborn v. State, 575 S.W.2d 259, 262 (Tenn. 1978); Foute v. State, 4

Tenn. (3 Hayw.) 98 (1816). It is well established law that it is within the district

attorney general's discretion, and not the trial court's, to decide if and when a

prosecution is to be instituted, the precise character of the offense to be

charged, and, once instituted, whether the prosecution should go forward, enter

into a plea bargain agreement, or dismiss the prosecution. State v. Williams, No.

03C01-9311-CR-00372 (Tenn. Crim. App. at Knoxville, Mar. 24, 1995), perm. to

appeal denied, (Tenn. July, 10, 1995) (citing Turner, 713 S.W.2d at 330); Gilliam,

901 S.W.2d at 389. Because plea bargaining is a matter entirely within the

district attorney general's discretion, the trial court may not require the State to

make a particular plea bargain offer. Turner, 713 S.W.2d at 330.



       The trial court's order directing the State to extend to the defendant,

Calvin Head, the same plea arrangement provided to the three co-defendants

was a total departure from "the accepted and usual course of judicial

proceedings." Turner, 713 S.W.2d at 330 (citing Tenn. R. App. P. 10(a)).

Accordingly, we find that the trial court erred in so ordering.


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       For the reasons stated above, the order of the trial court is vacated, and

the case is remanded to the trial court for trial or other appropriate proceedings.




                                   ____________________________________
                                   DAVID G. HAYES, Judge




CONCUR:




_______________________________
PAUL G. SUMMERS, Judge



_______________________________
JERRY L. SMITH, Judge




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