             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                      September 26, 2000 Session

                    STATE OF TENNESSEE v. ROBBIE CARRIGER

                          Appeal from the Criminal Court for Carter County
                               No. S14447    Robert E. Cupp, Judge



                                      No. E2000-00823-CCA-R3-CD
                                           December 20, 2000


The state challenges the trial court’s order placing the defendant, Robbie Carriger, on pretrial
diversion based upon its finding that the prosecutor abused his discretion for failing to consider all
the factors relevant to pretrial diversion in his written response denying diversion. The state
contends that the trial court erred in refusing to consider the prosecutor’s amended response to the
application for pretrial diversion. We hold that the trial court properly refused to consider the
prosecutor’s amended response, but we reverse the trial court’s automatic grant of pretrial diversion
and remand the case for the trial court to consider the defendant’s entitlement to pretrial diversion
in light of the relevant factors.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in Part,
                            Reversed in Part, and Remanded

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which JERRY L. SMITH and JAMES
CURWOOD WITT, JR., JJ., joined.

Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General;
and Joe C. Crumley, Jr., District Attorney General, for the appellant, State of Tennessee.

Rowland E. Verran, Johnson City, Tennessee, attorney for the appellee, Robbie Carriger.

                                                    OPINION

       The state appeals as of right from the Carter County Criminal Court’s order placing the
defendant, Robbie Carriger,1 on pretrial diversion for his charge of statutory rape, a Class E felony.
Upon the defendant’s petition for a writ of certiorari, the trial court found that the prosecutor had


         1
          W e note that the defendant’s name appears as Robert Allen Carriger o n the briefs and various do cuments in
the record, but it is this court’s policy to use the defendant’s name as it appears on the presentment, absent any
amendment in the record.
abused his discretion in his denial of the defendant’s application for pretrial diversion by failing to
consider all of the factors set forth in State v. Curry, 988 S.W.2d 153, 157 (Tenn. 1999). It also
found that Curry prevented the court’s consideration of the state’s amended response to the
defendant’s application for pretrial diversion, and it ordered diversion. The state contends that the
trial court should have considered its amended response before determining that the prosecutor
abused his discretion. We hold that the trial court properly refused to consider the state’s amended
response and affirm its finding of abuse of discretion based upon the prosecutor’s failure to consider
all the factors. We reverse the trial court’s automatic grant of diversion upon finding an abuse of
discretion and remand the case for the trial court to make findings and a determination of whether
the defendant is entitled to pretrial diversion in light of the relevant factors.

        The defendant was charged with statutory rape, occurring when he was forty years old and
the victim was fifteen. This conduct resulted in the birth of a child to the victim. The defendant
requested pretrial diversion, alleging that he and the victim wished to marry but that her parents
would not give their consent. He asserted that he was willing to support the child until he and the
victim could marry once she turned eighteen. The defendant’s application for pretrial diversion
stated that he graduated from high school, was twice divorced, and had a disability resulting from
surgery on his shoulder in 1995. It listed his nerves, loss of sleep, and a spur on his heel as other
medical problems. It related that since August 1996, he had worked as a crew chief for the City of
Elizabethton’s Waste Water Department, earning $8.20 an hour. He had previously worked as a
machine operator for Shaw Industries from 1992 or 1993 through May 1995, as a supervisor at
Specialty Produce for an undisclosed time, and with Mor-Flo Industries from 1978 to 1988. The
defendant reported leaving Shaw Industries to return to Elizabethton from South Pittsburg,
Tennessee. He said that he left the other two jobs because they required too many work hours. He
reported that he attended Pinecrest Christian Church in Johnson City, Tennessee. He admitted that
he was arrested for public intoxication as a juvenile in 1974.

        The Board of Probation and Parole’s Investigation Report reveals that the defendant earned
his certification in water and wastewater operation in February 1998. It relates that the defendant
reported that he first used alcohol as a teenager but has no problems with alcohol. He stated that he
experimented with marijuana as a teenager but has not used it since that time. The defendant does
not have any children from his previous marriages, and he lives alone in his own trailer. The
defendant reported that his relationship with the victim grew over two years, during which they were
good friends, talked a lot, and played basketball. He stated that the victim telephoned him daily and
wrote him letters. He denied that they had a physical relationship during this time. In the victim
impact statement included in the report, the victim stated that she wanted to marry the defendant, that
she and the defendant loved each other, and that she did not think the defendant should be punished
because he had not committed a crime. The victim stated that she felt stress because her parents
would not allow her to see or speak with the defendant.

        The state submitted a written response denying the defendant’s application for pretrial
diversion based upon the circumstances of the case and the need for deterrence. The prosecutor
found the circumstances of the case, a forty-year-old man seducing a fifteen-year-old girl, to be


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especially shocking and reprehensible. The prosecutor determined that if the defendant had truly
cared about the victim, he would not have impregnated her; that if returned to the community, the
defendant would likely find another victim to satisfy his sexual desires; and that the grant of pretrial
diversion in this case would do nothing to deter others bent upon committing statutory rape.

        The defendant petitioned the trial court for a writ of certiorari to review the prosecutor’s
denial of pretrial diversion. Citing State v. Curry, 988 S.W.2d 153 (Tenn. 1999), the defendant
contended that the prosecutor abused his discretion in basing the denial of diversion upon the
circumstances of the offense and deterrence without considering all of the relevant factors, including
his lack of a criminal record and his favorable social history, and without stating why the seriousness
of the offense and deterrence outweighed all other factors. He further argued that the record
contained no factual basis to support the prosecutor’s determination that he is not a suitable
candidate for rehabilitation; that the offense was especially violent, horrifying, shocking,
reprehensible, offensive, or otherwise of an excessive degree; or that he would re-offend if placed
on pretrial diversion. The defendant pointed to the victim impact statement in which the victim
stated that she planned to marry him when she turned eighteen and that she did not want him to be
punished because she did not believe that he had committed a crime. He claimed that his lack of a
criminal record and his favorable social and work history reveal his amenability to rehabilitation.

         Before the trial court ruled upon the certiorari petition, the state filed an amended response
to the defendant’s application for pretrial diversion. In its amended response, the state thoroughly
discussed the factors relevant to pretrial diversion, listed the evidence both favorable and unfavorable
to the defendant, and found that the unfavorable factors outweighed the favorable factors in both
number and import. The defendant filed a response to the state’s amended response, claiming that
many of the state’s allegations were not documented by evidence in the file and disagreeing with the
state’s interpretation of some of the evidence.

        The trial court concluded that the prosecutor’s initial response based solely upon the
circumstances of the case and deterrence constituted an abuse of discretion under Curry because the
prosecutor failed to consider all of the relevant factors. For this reason, it ordered that the defendant
be placed on pretrial diversion. The court concluded that Curry prevented it from considering the
state’s amended response.

        The state contends that the trial court should have considered its amended response to the
defendant’s application for pretrial diversion. It argues that the amended response furthers the intent
of Curry that prosecutors make conscientious and readily reviewable decisions in evaluating pretrial
diversion applications. It maintains that permitting an amended response will not surprise a
defendant with new evidence because the defendant can respond to the amended response, as the
defendant did in this case, and can also request an evidentiary hearing to clarify any factual disputes.
Finally, it argues that allowing an amended response advances the policies that underlie the
requirement of a written response because it further shows that the prosecutor thought about and
justified the denial in terms of the relevant factors, it defines the area of controversy, and it narrows
the issues and restricts the state’s evidence at any future evidentiary hearing.


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         The defendant contends that Curry, which reaffirmed the relevant factors that the prosecutor
must consider, was the applicable law when he requested pretrial diversion and had been in effect
for six months at the time the state filed its initial response. He argues that once a defendant files
a petition for certiorari, the state is foreclosed from amending its denial and the defendant is entitled
to judicial review of the prosecutor’s initial decision. He claims that the prosecutor cannot introduce
new evidence after making his or her diversion record and that the trial court may only consider that
evidence which has been considered by the prosecutor. He argues that the state’s amended response
is an impermissible attempt to fill in the gaps in the first, inadequate response.

        The decision to grant or deny an application for pretrial diversion is within the discretion of
the prosecuting attorney. Tenn. Code Ann. § 40-15-105; Curry, 988 S.W.2d at 157. In making this
determination, the prosecutor should

        focus on the defendant’s amenability to correction. Any factors which tend to
        accurately reflect whether a particular defendant will or will not become a repeat
        offender should be considered. Such factors must, of course, be clearly articulable
        and stated in the record in order that meaningful appellate review may be had.
        Among the factors to be considered in addition to the circumstances of the offense
        are the defendant’s criminal record, social history, the physical and mental condition
        of a defendant where appropriate, and the likelihood that pretrial diversion will serve
        the ends of justice and the best interest of both the public and the defendant.

Curry, 988 S.W.2d at 157 (quoting State v. Pinkham, 955 S.W.2d 956, 959-60 (Tenn. 1997) and
State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983)). The prosecutor’s response must be in
writing, must list the evidence considered, and must point out any factual discrepancies between the
evidence upon which the prosecutor relied and that presented in the defendant’s application. Curry,
988 S.W.2d at 157. The response must discuss the factors considered by the prosecutor and the
weight given to each factor. Id. “That a defendant, obviously, bears the burden of demonstrating
suitability for diversion does not relieve the prosecutor’s obligation to examine all of the relevant
factors and to set forth the required findings.” Id.

        If the prosecutor denies the application for pretrial diversion, the defendant has the right to
petition the trial court for a writ of certiorari alleging that the prosecutor has abused his or her
discretion. Tenn. Code Ann. § 40-35-105(b)(3). The decision of the prosecutor to grant or deny
pretrial diversion is presumptively correct and will not be set aside absent an abuse of discretion.
Curry, 988 S.W.2d at 158; Hammersley, 650 S.W.2d at 356. In reviewing the prosecutor’s denial
of pretrial diversion, the trial court may consider only that evidence considered by the prosecutor.
Curry, 988 S.W.2d at 158. In order to hold that an abuse of discretion occurred, the trial court must
find that the record lacks substantial evidence supporting the prosecutor’s determination. Id.

      On appeal, the trial court’s factual determinations will be overturned only if the evidence
preponderates against them. State v. Carr, 861 S.W.2d 850, 856 (Tenn. Crim. App. 1993); State v.
Helms, 720 S.W.2d 474, 476 (Tenn. Crim. App. 1986). In Curry, our supreme court applied the


                                                  -4-
preponderance of the evidence standard to the review of the trial court’s decision regarding the
prosecutor’s abuse of discretion, rather than limiting this standard to the trial court’s factual findings.
Curry, 988 S.W.2d at 158 (citing Pinkham, 955 S.W.2d at 960). Respectfully, the trial court’s
determination that the prosecutor has or has not abused his or her discretion is a legal conclusion,
not binding upon the appellate court. See Carr, 861 S.W.2d at 856; see, e.g., Hammersley, 650
S.W.2d at 356 (holding that the record must be devoid of any substantial evidence to support the
denial of pretrial diversion for a reviewing court to find an abuse of discretion and applying this
standard to hold that the prosecutor’s denial of diversion based solely upon deterrence was an abuse
of discretion). When the facts are undisputed, the underlying issue that this court must determine
on appeal remains whether, as a matter of law, the prosecutor abused his or her discretion in denying
pretrial diversion. See Carr, 861 S.W.2d at 856; State v. Brooks, 943 S.W.2d 411, 413 (Tenn. Crim.
App. 1997); State v. Morgan, 934 S.W.2d 77, 82 (Tenn. Crim. App. 1996); see also State v.
Houston, 900 S.W.2d 712, 714 (Tenn. Crim. App. 1995) (limiting the appellate court’s role to
determining whether any substantial evidence supports the prosecutor’s denial of pretrial diversion
in light of the relevant factors); Helms, 720 S.W.2d at 476 (reversing the trial court’s finding of
abuse of discretion because the facts were undisputed and substantial evidence in the record
supported the prosecutor’s denial of pretrial diversion).

         The statute authorizing pretrial diversion and the filing of a petition for writ of certiorari
makes no provision for the filing of an amended response to the denial of diversion. See Tenn. Code
Ann. § 40-35-15. We begin by noting the uniqueness of certiorari review: “Certiorari is a procedural
vehicle which has enjoyed an extremely long life. It functions properly when a court uses it to
review a proceeding to determine whether there were any irregularities.” State v. Winsett, 882
S.W.2d 806, 809 (Tenn. Crim. App. 1993) (citing Black’s Law Dictionary, 228 (6th ed. 1990)). As
such, it is an inappropriate procedure for considering new or additional evidence. See id.; State v.
Poplar, 612 S.W.2d 498, 500 (Tenn. Crim. App. 1980) (recognizing that because the pretrial
diversion statute permits the defendant to seek certiorari review, the trial court should consider only
that evidence considered by the prosecutor when determining whether to grant diversion), abandoned
on other grounds by State v. Neese, 713 S.W.2d 90, 91 (Tenn. Crim. App. 1986). Thus, as stated
above, in reviewing a petition for certiorari arising from the denial of pretrial diversion, the trial
court may consider only that evidence considered by the prosecutor in evaluating the defendant’s
application for diversion. See Curry, 988 S.W.2d at 158; Winsett, 882 S.W.2d at 810; State v.
Brown, 700 S.W.2d 568, 570 (Tenn. Crim. App. 1985).

         In the past, this court has permitted prosecutors to supplement their denial of pretrial
diversion with additional reasons in the interest of judicial economy. See State v. Sutton, 668
S.W.2d 678, 680 (Tenn. Crim. App. 1984). In Sutton, the prosecutor denied diversion orally. After
the defendant filed a petition for certiorari but before the hearing and at the trial court’s request, the
state filed a supplemental pleading, setting forth its reasons for denying diversion more specifically
than those provided in its answer to the petition. The defendant argued that the state developed the
evidence upon which it relied in the supplemental pleading after its initial denial of diversion. The
court held that



                                                   -5-
       all information in possession of the District Attorney General may be relied upon by
       the State at the certiorari hearing in Criminal Court. We agree with the state that to
       hold otherwise would be to promote judicial inefficiency since the prosecution can,
       with good cause, always terminate diversion, on the basis of new information, and
       resume prosecution pursuant to T.C.A. § 40-15-105(d). This is not to say that
       evidence may be accepted and considered by the trial judge that has never been
       submitted to the District Attorney General since the court considers only whether the
       District Attorney General abused his discretion in denying diversion.

Id. (citing Poplar, 612 S.W.2d at 500). Consistent with Sutton, this court has continued to exclude
evidence that was never submitted to the prosecutor. See State v. Shaun Matthew Dinwiddie, No.
01C01-9809-CC-00268, slip op. at 8 (Tenn. Crim. App. Apr. 21, 1999) (holding that by considering
supportive letters from the defendant’s family and testimony of the defendant’s remorse, the trial
court “improperly exceeded the scope of certiorari review by entertaining evidence not considered
by the district attorney general”).

        In State v. Brown, 700 S.W.2d 568 (Tenn. Crim. App. 1985), the court turned from its
holding in Sutton. In Brown, the prosecutor provided a written denial of pretrial diversion, which
stated that the defendant was not eligible under the statute. At the certiorari hearing, the prosecutor
argued that the denial was based upon the circumstances of the case and the defendant’s failure to
mention prior arrests in the application. The defendant challenged the prosecutor’s substitution of
new reasons at the hearing. Citing Poplar, 612 S.W.2d at 500, the court held that in reviewing the
denial of pretrial diversion for an abuse of discretion, the trial court could only consider that
evidence before the prosecutor at the time he evaluated the diversion application. Brown, 700
S.W.2d at 570. The court noted the reasons behind requiring a written response to the diversion
application:

       “First, the statement would compel the prosecutor to think about and justify his
       denial in terms of the applicable standards. Second, the statement of reasons would
       define the area of controversy at the evidentiary hearing. Finally, the statement of
       reasons would restrict the prosecutor to a particular rationale and insure that the
       prosecutor would offer no new reasons at the evidentiary hearing.”

Id. (quoting Steven W. Feldman, Tennessee Pretrial Diversion Act: A Practitioner’s Guide, 13
Memphis St. U. L. Rev. 285, 302 n.106 (1983)); see also Curry, 988 S.W.2d at 157. Based upon the
importance of the written response, the court restricted the trial court’s certiorari review to the
evidence that the prosecutor had before him at the time of denial and to the reasons given by the
prosecutor at the time he or she denied the application:

       Thus, we hold that, not only is the trial judge to confine his consideration to the
       evidence considered by the District Attorney General at the time he considered the
       application, but that he must also confine his review to the reason or reasons given
       by the District Attorney General at that time. Fairness demands that the defendant


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        know what allegations he must meet when he comes before the trial judge on his
        application. Furthermore, the state has the resources to fully investigate the
        applicant’s background prior to the determination to grant or deny diversion.

Brown, 700 S.W.2d at 570.

         In State v. David George, No. 37, Shelby County (Tenn. Crim. App. Nov. 16, 1988), app.
denied (Tenn. May 8, 1989), this court applied Brown to hold that the trial court erred in considering
the prosecutor’s affidavit, which provided additional reasons for denying diversion and which was
filed after the defendant petitioned for certiorari but before the certiorari hearing. When “the District
Attorney refuses to enter into a memorandum of understanding and commits his reasons to writing,
he cannot shift to a later stance after the writ of certiorari has been issued.” David George, slip op.
at 3 (determining that prosecutor’s reasoning in initial memorandum was an abuse of discretion).

        More recently, in Curry, our supreme court held that this court erred in remanding the case
to the trial court for an evidentiary hearing to allow the prosecutor to testify to the other factors
considered in the denial of pretrial diversion but not enumerated in the written denial. 988 S.W.2d
at 159-60. The court reasoned that this procedure

        decreases the importance of the written response and increases the risk that new
        reasons or considerations will be introduced during the hearing without notice to the
        defendant. Second, the standard of review governing certiorari proceedings require
        the trial court to consider only that which has already been considered by the
        prosecutor. See Winsett, 882 S.W.2d at 809 (evidence considered at hearing
        exceeded certiorari review). Accordingly, . . . an evidentiary hearing may be held
        only to clarify factual disputes in the record, and may not be held to allow the
        prosecutor to discuss new or additional considerations regarding the denial of
        diversion.

Id. at 160. In State v. Norman Jeffery Pipkin, No. W1998-02738-CCA-RM-CD, Hardeman County
(Tenn. Crim. App. May 24, 2000), this court held that the prosecutor abused her discretion by failing
to state in the written denial why the circumstances of the offenses outweighed the other relevant
factors and to relate the facts favorable to the defendant. The court recognized that in the wake of
Curry, no opportunity exists for a remand to inquire into deficiencies in the prosecutor’s written
response: “Because the opinion in Curry requires that the district attorney must not leave ‘gaps’ in
providing the written response to the application for diversion, and because there can be no remand
for inquiry into those ‘gaps,’ the judgement of the trial court must be reversed . . . .” Norman Jeffery
Pipkin, slip op. at 8.

        Our review of these cases brings us to the firm conclusion that while the case is on certiorari
review, the prosecutor may not amend his or her written response to the diversion application for the
purpose of adding reasons upon which denial is based, which were available to the prosecutor at the
time of the original denial. The state argues that an amended response will not take the defendant


                                                  -7-
by surprise because it is a written document, which the defendant may contest and the trial court may
review. Yet because an amended response requires the defendant and the court to look beyond the
prosecutor’s initial written denial of diversion to find the complete basis for denial, it changes the
basis for denial that the defendant must contest and decreases the importance of the initial written
denial. As such, it violates the precepts of Curry and Brown.

         We note, though, that Tennessee courts have previously remanded cases for the prosecutor
to reconsider the diversion application in light of new legal standards. See Winsett, 882 S.W.2d at
809-10 (clarifying the procedures for the consideration and review of pretrial diversion applications
and remanding for the petitioner to file a new pretrial diversion application); State v. Damon Byrd,
No. 01C01-9707-CR-00248, Davidson County, slip op. at 2 (Tenn. Crim. App. Sept. 22, 1998), app.
denied (Tenn. Mar. 8, 1999) (noting that the supreme court remanded the case to the prosecutor for
further consideration of the pretrial diversion application in relation to the factors set forth in State
v. Washington, 866 S.W.2d 950 (Tenn. 1993)); State v. Spencer Barrett Minch, No. 66, Shelby
County, slip op. at 5 (Tenn. Crim. App. Nov. 29, 1989) (remanding the case for the petitioners to
reapply for pretrial diversion and the prosecutor to consider the applications using the procedures
set forth in State v. Herron, 767 S.W.2d 151 (Tenn. 1989)). Also, a change in the circumstances of
the defendant may merit a remand to the prosecutor. See State v. Darla Young Mayo, No. 01C01-
9208-CC-00261, Dekalb County, slip op. at 7-8 (Tenn. Crim. App. Nov. 18, 1993) (remanding the
case to the trial court for the prosecutor to reconsider diversion “under the circumstances presently
existing” when the defendant had acquired a job and moved from the housing project at which the
drug offenses occurred and neither the prosecutor nor the trial court indicated how the defendant’s
favorable factors weighed in relation to the negative factors). Finally, the courts will not sanction
an absurd result by prohibiting the consideration of evidence which was discovered by the prosecutor
after the defendant petitioned for certiorari despite the prosecutor’s good faith efforts and which
clearly shows that the defendant is ineligible or is not entitled to diversion. In this respect, we
recognize that circumstances may exist under which a prosecutor may seek or a trial court may order
a remand of the diversion application. However, this case does not fall within the circumstances that
merit such a remand.

        The defendant contends that the prosecutor’s abuse of discretion in failing to consider all of
the factors relevant to pretrial diversion, without more, entitles him to pretrial diversion. A panel
of this court recently rejected this contention in a split decision in State v. Johnnie Bell, Jr., No.
E1999-00819-CCA-R9-CD, Sullivan County (Tenn. Crim. App. Nov. 27, 2000). We adopt the
reasoning of the majority opinion in Johnnie Bell, Jr. and apply it as follows.

        In Curry, our supreme court held that the prosecutor’s failure to enumerate and consider all
of the relevant factors constituted an abuse of discretion, and it reinstated the trial court’s grant of
pretrial diversion. Curry, 988 S.W.2d at 159-60. Justice Holder, dissenting, warned that the
majority’s holding would allow defendants to avoid prosecution based solely upon the procedural
omissions of the prosecutor:




                                                  -8-
        I question whether the legislature intended that a criminal committing a series of
        serious, sustained, planned, and deceptive crimes over a two-year period of time
        automatically be granted diversion merely because a district attorney failed to employ
        a preferred term in the letter denying diversion. The majority’s holding could
        effectively allow defendants committing serious offenses . . . to avoid prosecution
        merely because a district attorney commits a non-prejudicial omission affecting
        neither a constitutional nor a statutory right.

Id. at 163. In this case, the defendant argues that the prosecutor’s abuse of discretion requires an
order granting pretrial diversion. However, we note that in response to Justice Holder’s dissent, the
majority in Curry reviewed and approved the merits of the defendant’s request for diversion. Id. at
159. This indicates that the defendant must show entitlement to diversion even if an abuse of
discretion exists.

         Also, we do not believe that Tenn. Code Ann. § 40-15-105 or prior Tennessee decisions
support the defendant’s argument. Section 40-15-105(b)(3) provides in pertinent part: “If the trial
court finds that the prosecuting attorney has committed an abuse of discretion in failing to divert, the
trial court may order the prosecuting attorney to place the defendant in a diversion status on such
terms and conditions as the trial court may order.” (Emphasis added). In interpreting a statute, our
role is to give effect to the legislature’s intent when enacting the statute. Owens v. State, 908 S.W.2d
923, 926 (Tenn. 1995). When a statute is unambiguous, the court should enforce the statute as
written, without resorting to auxiliary rules of construction. Browder v. Morris, 975 S.W.2d 308,
311 (Tenn. 1998). “Unambiguous statutes must be construed to mean what they say.” Robertson
v. University of Tennessee, 912 S.W.2d 746, 747 (Tenn. 1995) (citation omitted). The plain
meaning of the term “may” necessarily implies discretion. The use of “may” in § 40-15-105(b)(3)
reveals that the trial court is not required to order pretrial diversion upon finding that the prosecutor
has abused his or her discretion.

         The legislature has vested the authority to prosecute a case or to divert it with the prosecutor
rather than the court. Carr, 861 S.W.2d at 858; see Tenn. Code Ann. § 40-15-105. The trial court
may not merely substitute its own judgment for that of the prosecutor but, instead, must “defer to the
prosecutor’s discretion when the record contains any substantial evidence to support the decision.”
Id. In reviewing the prosecutor’s denial of diversion, the trial court must look at all the relevant
factors to determine whether the prosecutor considered them, and if he or she did not, to determine
whether pretrial diversion is appropriate. Herron, 767 S.W.2d at 156; Carr, 861 S.W.2d at 858.
Essentially, Herron provides that in reviewing whether the prosecutor has abused his or her
discretion regarding whether diversion should be granted, the trial court must undertake the same
process required of the prosecutor in considering and weighing the relevant factors. In this respect,
the trial court may consider only the record that was before the prosecutor. See Curry, 988 S.W.2d
at 157 (holding that in reviewing the denial of diversion, the trial court is limited to the evidence
considered by the prosecutor). Because the trial court is limited to the record considered by the
prosecutor, the trial court will not surprise the defendant by basing its determination upon new
reasons not in the record. In turn, this court will defer to the trial court’s determination unless it is


                                                  -9-
not supported by substantial evidence in the record. In other words, we review the trial court’s
determination regarding the defendant’s entitlement to diversion for an abuse of discretion.

         To the extent that this procedure gives some measure of discretion over the decision of
whether to divert to the trial court, it is the legislature that gave the trial court that discretion by
employing the term “may” in section 40-15-105(b)(3) as discussed above. Furthermore, the grant
of discretion to the trial court is wholly appropriate:

               Diversion may not be regarded as a mere extension of the charging process.
       It does not come into play until after the indictment. The plan of diversion, or the
       denial thereof, follows indictment and comes after the prosecutor has fully
       discharged all discretionary functions and after the prosecutorial die has been cast.
       Once committed to prosecution, the case is before the court for disposition. The
       process, at this stage, becomes fundamentally judicial and must end in a verdict, a
       nolle [prosequi,] or pretrial diversion.

               . . . . [T]he jurisdiction of the court has been invoked by indictment and
       disposition becomes a judicial responsibility.

Pace v. State, 566 S.W.2d 861, 870 (Tenn. 1978) (Henry, C.J., concurring) (footnote omitted).
Finally, the alternative – the automatic grant of pretrial diversion upon a finding that the prosecutor
has abused his or her discretion – could result in the award of pretrial diversion for a wholly
undeserving, yet “eligible,” applicant. Curry, 988 S.W.2d at 163 (Holder, J., dissenting) (warning
that an automatic grant of pretrial diversion based upon a procedural error by the prosecutor could
result in diversion for “defendants committing serious offenses such as manslaughter, kidnapping,
and vehicular homicide”). Such a reflexive award of pretrial diversion belies the fact that pretrial
diversion is a legislative largess granted only to those who can show their entitlement. Cf. Curry,
988 S.W.2d at 158 (holding that the “facts and circumstances of nearly all criminal offenses are by
definition serious; only by analyzing all of the relevant factors, including those favorable to the
defendant, can appropriate candidates for this legislative largess be identified in a manner consistent
with the purpose of the pretrial diversion act”).

        Based upon the foregoing and the record as a whole, we affirm the trial court’s conclusion
that the prosecutor abused his discretion in failing to consider all of the relevant factors. We also
affirm the trial court’s refusal to consider the state’s amended response. However, because the trial
court failed to undertake the weighing process required by Herron, we reverse the grant of diversion
and remand the case for the trial court to consider and weigh the relevant factors in relation to the
defendant’s entitlement to pretrial diversion.



                                                        ___________________________________
                                                        JOSEPH M. TIPTON, JUDGE


                                                 -10-
