         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs August 7, 2001

                    STATE OF TENNESSEE v. ANDREIA JONES

                  Direct Appeal from the Criminal Court for Shelby County
                       No. 98-13899-13903    Joseph B. Dailey, Judge



                    No. W2000-01536-CCA-R3-CD - Filed August 27, 2001


Defendant challenges the denial of pretrial diversion by the District Attorney General and subsequent
denial of relief by the trial court. We conclude that the defendant failed to file a petition for writ of
certiorari and improperly sought to have the trial court consider matters not presented to the District
Attorney General; thus, defendant has failed to establish that the District Attorney General abused
his discretion in denying pretrial diversion. We affirm the judgment of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOE G. RILEY, J., delivered the opinion of the court, in which DAVID G. HAYES and ALAN E. GLENN,
JJ., joined.

Robert C. Brooks, Memphis, Tennessee, for the appellant, Andreia Jones.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Daniel S. Byer, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                              OPINION

       Defendant and two co-defendants were indicted in five separate indictments, each containing
two counts of forgery. She sought pretrial diversion from the District Attorney General which was
denied. The trial court concluded the District Attorney General did not abuse his discretion in
denying the request. Subsequently, defendant entered pleas of guilty to five counts of forgery and
received concurrent sentences of one year for each count, which was suspended with supervised
probation for a term of three years. The facts stated at the plea submission hearing indicate that the
defendant along with two co-defendants resided at the home of an elderly woman. They stole her
checkbook and cashed various forged checks at different businesses over a period of several days.
Subsequent to the guilty plea, defendant filed a Tenn. R. App. P. 3 appeal as of right to this court
challenging only the denial of pretrial diversion. See Tenn. R. Crim. P. 38 (authorizing a Tenn. R.
App. P. 3 appeal of the denial of pretrial diversion if no interlocutory appeal was sought).


                                                   BACKGROUND

       The request for pretrial diversion did not come in a formal application, but rather in a four-
paragraph letter from defense counsel.1 The letter stated that the defendant was twenty-six years old,
had no prior record, was charged with offenses “arising out of a single episode,” had two co-
defendants who had pled guilty, was involved in stealing several items which included a checkbook,
had “passed the proceeds of [the] theft,” and contended her participation was limited to filling out
two checks for $60.00 and $100.00 as confirmed by a document examiner.

        The prosecutor had been provided a Probation Investigation Report. The prosecutor also had
available to him a “Probable Cause Narrative” relating to the circumstances of the offense. It
indicated that all three defendants lived at the victim’s residence, took her checkbook, and wrote
numerous checks to different businesses. It also indicated that the victim stated she was approached
by the defendant and a co-defendant who told her that “they did take the checkbook and wrote the
checks, that they would pay her back. (Total of checks written $695.00).”

       In the written denial the prosecutor noted that the defendant’s age, residence in Memphis for
seven years, and lack of a prior criminal record favored pretrial diversion. However, the prosecutor
noted the following negative factors:

         (1)       defendant dropped out of high school due to a lack of interest and had limited
                   connections to the Memphis community;

         (2)       defendant has never been gainfully employed, and her ability to make restitution is
                   limited;

         (3)       the crimes were systematic;

         (4)       the crimes were committed in collusion with two co-conspirators;

         (5)       the crimes were committed against an elderly victim;

         (6)       deterrence is a necessity due to the frequency of elder fraud crimes in the community;
                   and




         1
           This court has observed that a numbe r of judicial distr icts utilize a detailed application form for those seeking
pretrial diver sion. We highly recom mend the u se of a similar for m.

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       (7)     pretrial diversion would send the wrong message to the defendant and the
               community.

        The record does not contain a petition for writ of certiorari. The record does include a
transcript of a hearing in the criminal court on the denial of pretrial diversion. At that hearing the
prosecutor testified as to his reasons for denying diversion. The defendant also testified and gave
various explanations for the negative factors relied upon by the prosecutor. The trial court concluded
that the District Attorney General had not abused his discretion in denying diversion.


                                    PRETRIAL DIVERSION

        The Pretrial Diversion Act provides a means of avoiding the consequences of a public
prosecution for those who have the potential to be rehabilitated and avoid future criminal charges.
See Tenn. Code Ann. § 40-15-105. Pretrial diversion is extraordinary relief for which the defendant
bears the burden of proof. State v. Baxter, 868 S.W.2d 679, 681 (Tenn. Crim. App. 1993); State v.
Poplar, 612 S.W.2d 498, 501 (Tenn. Crim. App. 1980). The decision to grant or deny an application
for pretrial diversion is within the discretion of the District Attorney General. Tenn. Code Ann. §
40-15-105(b)(3); State v. Pinkham, 955 S.W.2d 956, 959 (Tenn. 1997); State v. Houston, 900
S.W.2d 712, 714 (Tenn. Crim. App. 1995).

        It is the defendant’s responsibility to provide the prosecuting attorney with as complete an
application as circumstances warrant, including sufficient background information and data to enable
the prosecutor to make a reasoned decision to grant or deny pretrial diversion. State v. Herron, 767
S.W.2d 151, 156 (Tenn. 1989); State v. Winsett, 882 S.W.2d 806, 810 (Tenn. Crim. App. 1993).

        If the application for pretrial diversion is denied, the defendant must appeal by petitioning
the criminal court for a statutory writ of certiorari. Tenn. Code Ann. § 40-15-105(b)(3). In the
petition, the defendant

               should identify any part of the district attorney general’s factual basis he or
               she elects to contest. We would expect such contests to be limited to matters
               that are materially false or based on evidence obtained in violation of the
               petitioner’s constitutional rights.

Pinkham, 955 S.W.2d at 960.

        The only evidence that may be considered by the trial court is the evidence that was
considered by the District Attorney General. State v. Curry, 988 S.W.2d 153, 157 (Tenn. 1999). A
hearing is conducted only to resolve any factual disputes concerning the application, and the trial
court should not hear additional evidence which was not considered by the prosecutor. Id. at 157-58.




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        A prosecutor's decision to deny diversion is presumptively correct, and the trial court should
only reverse that decision when the appellant establishes an abuse of discretion. Id. at 158; Houston,
900 S.W.2d at 714. The record must be lacking in any substantial evidence to support the District
Attorney General’s decision before an abuse of discretion can be found. Pinkham, 955 S.W.2d at
960. The trial court may not substitute its judgment for that of the District Attorney General when
the decision of the District Attorney General is supported by the evidence. State v. Watkins, 607
S.W.2d 486, 488 (Tenn. Crim. App. 1980).


                                             ANALYSIS

A. Failure to File Petition for Certiorari

        To seek relief from the District Attorney General’s denial of pretrial diversion, one must file
a petition for statutory writ of certiorari in the criminal court. The petition should identify any
factual disputes with the District Attorney General. Pinkham, 955 S.W.2d at 960. It is the filing of
the petition which vests authority in the criminal court to review the action of the District Attorney
General. No such petition was filed in this case. The failure to file the petition waives appellate
review of this issue.

B. Matters Not Considered by Prosecutor

        Regardless of waiver, defendant is not entitled to relief. Defendant in her brief relies upon
evidence introduced at the certiorari hearing in which she explained that she dropped out of high
school since she had been raped and become pregnant. She testified she was unemployed since she
had four children, drew disability, and otherwise had been unable to find work in the five years she
had been in Memphis. She further testified she was trying to get her GED but had not done so,
explaining that “you got to call around, because, see, I don’t know too much about Memphis because
I don’t really still live in Memphis.” Defense counsel, through the testimony of the prosecutor who
denied pretrial diversion, endeavored to establish that the prosecutor was not aware of this additional
information when he denied diversion.

        The trial court conducts a certiorari hearing only to resolve any factual issues raised by the
prosecutor or the defendant, not to hear additional evidence. See Curry, 988 S.W.2d at 157-58. The
alleged facts relied upon by defendant were never brought to the District Attorney General’s
attention prior to the hearing. No factual disputes were identified prior to the hearing. Furthermore,
as noted by the trial court, the trial court must limit its consideration to the evidence which was
before the prosecutor at the time of the denial and to the reasons given by the prosecutor at that time.
See id.

        We reject defendant’s contention that “[t]he State has a duty to obtain complete and accurate
information before making a decision of this magnitude about a citizen’s life. If that involves
interviewing the defendant for more than a few minutes, or more than once, that is no great burden


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on the State.” To the contrary, it is the defendant’s responsibility to furnish the state with sufficient
background information to enable the prosecutor to make a reasoned decision. Herron, 767 S.W.2d
at 156. Thus, the additional information provided at the certiorari hearing had not been considered
by the prosecutor and could not be considered by the trial court.

        We conclude that the letter application for diversion, the Probable Cause Narrative, the
Probation Investigation Report, and the written denial of diversion, which was the only evidence
properly before the trial court, clearly reveal that there was substantial evidence to support the
District Attorney General’s denial of pretrial diversion.


                                           CONCLUSION

        Based upon our review of the record, we affirm the judgment of the trial court.


                                                ___________________________________
                                                JOE G. RILEY, JUDGE




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