             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT KNOXVILLE                FILED
                           NOVEMBER 1998 SESSION
                                                               January 6, 1999

                                                              Cecil Crowson, Jr.
                                                              Appellate C ourt Clerk


STATE OF TENNESSEE,           )
                              )      C.C.A. No. 03C01-9711-CC-00513
            Appellee,         )
                              )      Blount County
v.                            )
                              )      Honorable D. Kelly Thomas, Jr., Judge
WANDA KILLIAN,                )
                              )      (Denial of Judicial Diversion)
            Appellant.        )




FOR THE APPELLANT:                   FOR THE APPELLEE:

Gregory D. Smith                     John Knox Walkup
One Public Square                    Attorney General & Reporter
Suite 321                            425 Fifth Avenue, North
Clarksville, TN 37040                Nashville, TN 37243-0493
(On Appeal)
                                     Ellen H. Pollack
Raymond M. Garner                    Assistant Attorney General
District Public Defender             425 Fifth Avenue, North
419 High Street                      Nashville, TN 37243-0493
Maryville, TN 37804-4912
(At Trial and On Appeal)             Michael L. Flynn
                                     District Attorney General
                                     363 Court Street
                                     Maryville, TN 37804-5906

                                     Philip H. Morton
                                     Assistant District Attorney General
                                     363 Court Street
                                     Maryville, TN 37804-5906




OPINION FILED: ____________________________


AFFIRMED


L. T. LAFFERTY, SENIOR JUDGE
                                       OPINION



       The appellant, Wanda Killian, hereinafter referred to as the defendant, appeals as

of right from the judgment of the Blount County Criminal Court denying post-trial diversion.

The defendant entered an open plea of guilty to delivery of Clonazepam, a Schedule IV

controlled substance, a Class D felony. At the conclusion of the sentencing hearing, the

trial court imposed a fine of $2,000, a suspended sentence of two years, and two years of

immediate intensive probation. The defendant presents one appellate issue: whether the

trial court erred in denying the defendant post-trial diversion pursuant to Tenn. Code Ann.

§ 40-35-313.



       After a review of the entire record, briefs of all parties, and applicable law, we affirm

the trial court’s judgment.



                                      BACKGROUND



       The Blount County grand jury indicted the defendant for the unlawful and knowing

delivery of a controlled substance, Clonazepam, on January 8, 1997. On January 8, 1997,

Agent Ron Tallott, Blount County Metro Narcotics, along with a confidential informant, went

to the home of the defendant where the undercover officer purchased ten Klonopin pills

from the defendant for the sum of $35.00. Klonopin is a Schedule IV controlled substance,

Clonazepam. The buy was monitored by a wire transmitter.



       On September 19, 1997, the defendant entered an open plea of guilty to delivery

of a Schedule IV controlled substance, a Class D felony, with the trial court to determine

the length and manner of the sentence.



       At the sentencing hearing, the defendant testified she was a divorcée with two

children, ages 18 and 23. The defendant has worked as a licensed life insurance agent

and as a dental surgical assistant. She also holds a license as a beautician. In 1980, the


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defendant was diagnosed with manic depression and has been on medication ever since.

The defendant was drawing a government disability check at the time of the sentencing

hearing.



       At the time of the instant offense, the defendant was taking three Klonopin pills a

day as prescribed by her doctor. The defendant purchased the medication in monthly

distributions of ninety from a pharmacy. The defendant readily admitted to selling the pills

in order to help a friend, Chris Fields, the confidential informant. The defendant needed

the money to buy dog food, cat food, and cat litter.



       The defendant related that in November, 1994, she wrote a check for $13.00 to a

pizza place which was returned to the payee by her financial institution. The defendant

testified she received six months unsupervised probation, paid a $250 fine, and made

restitution for the check. In addition to the worthless check charge, the defendant had a

prior public intoxication charge and a traffic violation offense.




       In its ruling denying judicial diversion, the trial court found the defendant was not

eligible pursuant to Tenn. Code Ann. § 40-35-313. The trial court granted the defendant

immediate intensive probation for two years after determining the minimum sentence of

two years was appropriate.



                                    LEGAL ANALYSIS



       The defendant contends that the trial court erred in not placing her on judicial

diversion. The state disagrees.



       When a defendant urges that a trial court committed error in denying judicial

diversion pursuant to Tenn. Code Ann. § 40-35-313, this Court must determine whether

the trial court abused its discretion in failing to sentence the defendant pursuant to the



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statute. 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). Judicial diversion is similar to pretrial diversion; however,

judicial diversion follows a determination of guilt, and the decision to grant judicial diversion

rests with the trial court, not the prosecutor. Anderson, 857 S.W.2d at 572.



       The criteria that must be considered in determining whether an eligible accused

should be granted judicial diversion include: (a) the accused’s amenability to correction;

(b) the circumstances of the offense; (c) the accused’s criminal record; (d) the accused’s

social history; (e) the accused’s physical and mental health; and (f) the deterrence value

to the accused as well as others. State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App.

1996). An additional consideration is whether judicial diversion will serve the ends of

justice, i.e., the interests of the public as well as the defendant. Id.; State v. Randy

Leming, No. 03C01-9709-CC-00426, 1998 LEXIS 731 (Tenn. Crim. App., Knoxville, July

16, 1998).



       In order to be a candidate for judicial diversion, a defendant must be eligible under

Tenn. Code Ann. § 40-35-313(a)(1)(A) (1997) for such consideration. That statute states,

in pertinent part:

              If any person who has not previously been convicted of a
              felony or a Class A misdemeanor is found guilty or pleads
              guilty to a misdemeanor which is punishable by imprisonment
              or a Class C, D or E felony, the court may, without entering a
              judgment of guilty and with the consent of such person, defer
              further proceedings and place the person on probation upon
              such reasonable conditions as it may require, and for a period
              of time not less than the period of the maximum sentence for
              the misdemeanor with which the person is charged. . . .



       Based upon the defendant’s testimony and the presentence report in the record

concerning a worthless check offense, the trial court denied judicial diversion. The

defendant complains that since there is no official record in the Blount County General

Sessions Court of her past criminal charge of passing a worthless check, the trial court was

in error for denying judicial diversion. Further, the defendant urges the alleged sentence



                                               4
appears to be a Class B misdemeanor or a potential pretrial diversion. First, we must

determine the classification of a worthless check charge.



       A person commits the offense of passing a worthless check when the person, with

fraudulent intent or knowingly, “issues or passes a check or similar sight order for the

payment of money for the purpose of paying any fee, fine, tax, license or obligation to any

governmental entity or for the purpose of obtaining money, services, labor, credit or any

article of value, knowing at the time there are not sufficient funds in or on deposit with the

bank or other drawee for the payment in full of the check or order, as well as all other

checks or orders outstanding at the time of issuance.” Tenn. Code Ann. § 39-14-121(a)(1).

The offense of issuing or passing worthless checks is punishable as theft pursuant to

Tenn. Code Ann. § 39-14-105. Value is determined by the amount appearing on the face

of the check on the date of issue. Tenn. Code Ann. § 39-14-121(f).



       Theft of property or services is a Class A misdemeanor if the value of the property

or services obtained is five hundred dollars ($500) or less. Tenn. Code Ann. § 39-14-

105(1).



       A person who is convicted of passing a worthless check with a value of $500 or less

is guilty of a Class A misdemeanor and not eligible for judicial diversion. Based on the

defendant’s testimony, the trial court could reasonably conclude the defendant was

convicted of a Class A misdemeanor when she passed a worthless check in 1994. Once

the defendant disclosed this information, the trial court could not place the defendant on

judicial diversion. We agree with the state that it is the conviction, and not the source of

the evidence, that determines whether the defendant is eligible for judicial diversion.1


       1
         We note there are two inferences which may be drawn from the evidence in this
record. First, the defendant testified she was convicted of passing a worthless check in the
Blount County General Sessions Court for which she received six months unsupervised
probation and was fined $250. Second, since there is no record of the defendant’s charge
in the General Sessions Court, the defendant may have been granted pretrial diversion or
judicial diversion in that court. It is the duty and the burden of the defendant to perfect a
complete record for the trial court’s determination as to a proper sentence and manner of
service. Since the trial court had the benefit of viewing the witness and determining the
credibility of that witness, we assume the trial court was convinced the defendant was

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      We find no error in the trial court’s denial of judicial diversion and affirm the

judgment.



                                        ________________________________________
                                        L. T. LAFFERTY, SENIOR JUDGE


CONCUR:




___________________________________
DAVID H. WELLES, JUDGE




___________________________________
JAMES CURWOOD WITT, JR., JUDGE




convicted in the Blount County General Sessions Court in lieu of diversion.


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