           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                                            FILED
                            APRIL 1998 SESSION
                                             August 20, 1998

                                             Cecil W. Crowson
                                           Appellate Court Clerk
                                           §
STATE OF TENNESSEE ,
          APPELLEE
                                     §
VS.                                      C.C.A. No. 01C01-9707-CC-00244
                                     §   WILLIAMSON COUNTY
                                         HON. HENRY DENMARK BELL
ANTONIO JOHNSON,                     §
         APPELLANT                       (JUDICIAL DIVERSION)




FOR THE APPELLANT                        FOR THE APPELLEE

Niles S. Nimmo                           John Knox Walkup
Realtors Bldg., Suite 200                Attorney General and Reporter
306 Ga y St.                             425 Fifth A venue, N orth
Nashville, TN 37201                      Nashville, TN 37243
  –––––
                                         Daryl J. Brand
                                         Assistant Attorney General
                                         425 Fifth A venue, N orth
                                         Nashville, TN 378243

                                         Derek K . Smith
                                         Assistant District Attorney General
                                         P. O. Box 937
                                         Franklin, TN 37065-0937




OPINION FILED: _______________________


AFFIRMED

L. T. LAFFERTY, SPECIAL JUDGE




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                                        OPINION

       Following a bench trial, the appellant, Antonio Jackson, was convicted of the

unlawful possession of cocaine, a Class A misdemeanor. The trial court sentenced the

defendant to serve sixty (60) days, day for day, and pay a fine of $2,500. The trial

court suspended the sixty (60) day sentence and placed the defendant on supervised

probation for eleven (11) months and twenty-nine (29) days. Following a direct

appeal, this Court found that the trial court had abused its discretion in sentencing the

defend ant and reman ded the case fo r resente ncing p ursuan t to judic ial diver sion. State

v. Anto nio Jac kson, Williamson County, No. 01C01-9601-CC-00014 (Tenn. Crim.

App. Nashv ille, December 13, 19 96). In resentencing the de fendant, the trial court

imposed judicial diversion but retained the conditions of probation from the original

judgme nt.

       The defendant presents one issue for review: “Whether the trial court erred by

imposing a fine as part of a sentence entered under authority of Tenn. Code Ann. § 40-

35-313.” After a thorough review of the record, the briefs submitted by both parties,

and the law gov erning the issue presented fo r review, it is the opinion of this Cou rt

that the sentence imposed by the trial court should be affirmed.

                                             A.

       When an accuse d challeng es the length and ma nner of serv ice of a sente nce, it

is the duty of this Court to conduct a de novo review on the record with a presumption

that the “determinations m ade by the court from which the appe al is taken are

correct.” Tenn. Code Ann. § 40-35-401(d). This presumption is “conditioned upon

the affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166,

169 (Tenn. 1994). The presumption does not apply to the legal conclusions reached

by the trial court in sentencing the accused or to the determinations made by the trial

court w hich are predica ted upo n unco ntrove rted fac ts. State v. B utler, 900 S.W.2d

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305, 311 (Tenn. C rim. App . 1994); State v. S mith, 891 S.W.2d 922, 929 (Tenn. Crim.

App. 19 94), per. Ap p. Denied (Tenn. 19 94); State v. B oneste l, 871 S.W.2d 1634, 166

(Tenn. Crim. App. 1993). However, this court is required to give great weight to the

trial court’s determination of controverted facts because the trial court’s determination

of these facts is predicated upon the witnesses’ demeanor and appearance when

testifying.

        The party challenging the sentences imposed by the trial court has the burden

of establishin g that the sen tences are e rroneous. S entencing Comm ission Com ments

to Tenn. C ode An n. § 40-35 -401; Ashby, 823 S.W .2d at 169; Butler, 900 S.W.2d at

311. In this case, the defendant has the burden of illustrating that the sentences

imposed by the trial court are erroneous.

        The record indicates that during the resentencing hearing the trial court failed

to articulate the conditions. The trial court merely stated “put on 11/29 supervised

probation, report by mail, on ordinary conditions and drug screens.” Therefore, the

standard of review on appeal is de novo without a presumption of correctness. Tenn.

Code Ann. § 40-35 -402(d ).

                                                        B.

        The defendant argues that judicial diversion is similar in purpose to pretrial

diversion, therefore, this Court’s holding in State v. Alberd, 908 S.W.2d 414 (Tenn.

Crim. App. 1994), controls.1 Additionally, the defendant asserts the trial court lacked

authority to impose a fine in conjunction with judicial diversion.

                                                        (1)

        Pretrial diversion and judicial diversion are similar in nature but differ

statutorily. The pretrial diversion statute is located in Tenn. Code Ann. § 40-15-101,

seq. Th e judicia l diversio n statute , howe ver, is loc ated in T enn. C ode A nn.


    1
            In Alberd, this court concluded that statutory fines may not be imposed in cases involving pretrial
diversion



3
§ 40-35-313, and was incorporated in the Sentencing Act of 1989. Under pretrial

diversion, Tenn. Code Ann. § 40-15-105(a), a defendant who meets certain criteria,

enters into a m emoran dum of understan ding with the District A ttorney G eneral,

whereby both parties agree that the prosecution of certain crimes will be suspended

for a spe cified pe riod, no t to exce ed two (2) yea rs from the filing of the m emor andum .

The parties agree that the defendant will be supervised by an appropriate agency,

department, program, group or association and at the conclusion of the supervised

period, if no violations of the memorandum of understanding are proven, the trial

court may dismiss the prosecutions with prejudice.

       The judicial diversion statute, Tenn. Code Ann. § 40-35-313(a)(1)(A) states:

                        “If any person w ho has not previou sly been convicted o f a
        felony of a Class A misdemeanor is found guilty or pleads guilt to a
        misdemea nor which is pun ishable by imprisonm ent of 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, or not more than the period of the maximum
        senten ce of the felony with w hich the person is charg ed. . . .

                        (2) . . . If, during the period of probation, such person does not
        violate any of the conditions of the probation, then upon expiration of such
        period, the court shall discharge such person and dismiss the proceedings
        against the person. Discharge and dismissal under this subsection is without
        court adjudication of guilt, but a non-public record thereof is retained by the
        court solely fo r the purpo se of use by the courts in d etermining whether or not,
        in subsequent proceedings, such person qualifies under this subsection, or for
        the limited purposes provided in subsection (b). Such discharge and dismissal
        shall not be deemed a conviction for purposes of disqualifications or
        disabilities imposed by law upon conviction of a crime or for any other
        purpose, except as provided in subsection (b). Discharge and dismissal under
        this sub section may o ccur on ly once with re spect to any pe rson.”

       In State v. A lberd, 908 S.W .2d 414 (T enn. Crim . App. 199 4), a panel o f this

court concluded that mandatory minimum fines for drug offense may not be required

as a condition of a m emorandum of understanding for p retrial diversion. This court

held that mandatory minimum fines may only be imposed following a conviction, and

pretrial diversion was not a result of conviction. Because judicial diversion follows a


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determ ination o f guilt, Alberd, does n ot gove rn case s involv ing jud icial dive rsion.

Howe ver, even in cases invo lving pretrial d iversion, trial cou rts have the a uthority to

require defendants to pay restitution, court costs, and costs of supervision. Tenn.

Code An n. § 40-15-105(a)(2).

                                              (2)

       The judicial diversion statute, Tenn. Code Ann. § 40-35-313 authorizes the

imposition of probation “upon such reasonable conditions as it may require.”

Conditions of probation “must be reasonable and realistic and must not be so stringent

as to be harsh, oppressive, or palpably unjust.” Stiller v. S tate, 516 S.W.2d 617, 620

(Tenn. 19 74). Trial co urts may im pose any terms and conditions n ot inconsisten t with

the Tennessee Sentencing Reform Act. See State v. H uff, 760 S.W.2d 633, 639 (Tenn.

Crim. App. 19 88).

       The Co urt finds the im position of a fine or contrib ution of a m onetary am ount,

not exceeding the maximum statutory fine, to be a reasonable condition of judicial

diversion. Tenn. Code Ann. § 40-35-313. The United States Sixth Circuit Court of

Appeals addressed a similar question in construing Tenn. Code Ann. § 40-21-109

(now Tenn. Code Ann. § 40-35-313) regarding the payment of costs as a condition of

probation. The Court concluded In re H ollis, 810 F.2d 106 , 108 (6th Cir. 1987):

                       “The state c riminal cou rt clearly intend ed the asses sment of c osts
       to be a condition of appellee’s probation under section 40-21-109. Tenn. Code
       Ann. § 40-21-109 (1982). An assessment of costs, moreover, appears to be an
       appropriate condition of probation under this section. . . . We believe that
       section 40- 24-105(b ) of the Ten nessee C ode, wh ich provide s that costs ‘sh all
       not be deemed part to the penalty’ in a criminal case, and upon which the
       district court relied in reaching its decision, is displaced in this instance by the
       more specific provisio ns of se ction 40 -21-10 9.”

       Federal courts have also held the imposition of fines to be permissible pursuant

to the parallel fe deral statute fo r post-conv iction deferra l. See 18 U .S.C. 3651 ; United

States v . Tepfer , 748 F.Supp. 31 0, 311 (E.D. Pa. 19 90).




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       Althoug h pretrial dive rsion and ju dicial diversio n are simila r in nature, ther e is

a significant difference between the imposition of probation pursuant to pretrial

diversion and judicial diversion. The purpose of judicial diversion is to avoid placing

the stigma and collatera l consequ ences of a c riminal con viction on th e defenda nt, in

addition to providing the defendant a means to be restored fully and to useful and

produ ctive citiz enship . State v. P orter, 885 S .W.2d 93, 95 ( Tenn . Crim . App. 1 994).

This Court has recognized the very “fact that a defendant seeking judicial diversion

stands b efore th e court h aving a lready b een fou nd guil ty--read y to be s entenc ed,”

places the defendant in dramatically different posture than that of a person seeking

pretrial diversion. See State v. P orter, 885 S.W.2d at 94-95.

       A somewhat analogous situation was addressed by this Court in State v. Vasser,

870 S.W.2d 543 (Tenn. Crim. App. 1993). The defendant, Vasser, upon being found

guilty of drivin g under th e influence of an intoxic ant conten ded he w as entitled to

judicial diversion after serving forty-eight (48) hours, per Tenn. Code Ann. § 40-35-

313. This Court in construing Tenn. Code Ann. §55-10-403(B)(1)--Penalties for

Driving under the influence of intoxicants--concluded that a “convicted” person must

serve the “minimum sentence” and thus is not eligible for the provisions of Tenn.

Code Ann. § 40-35-313. Thus in a general sense, a “conviction” has been defined as

the “result of a criminal trial (or guilty plea) which ends in a judgment or sentence that

the accused is guilty as charged.” Technically, a conviction involves not only a

verdict, but also a sentence passed by the court. See State v. V asser, 870 S.W.2d 543,

at 545; Ru le 32(e) Te nnessee R ules of Crim inal Proced ure. Since th e trial court did

not enter an order of conviction, but ordered the defendant to judicial diversion, the

trial court was entitled to set reasonable conditions of probation including the payment

of fines.

       In conclusion, this Court finds that the order of the trial court requiring the

defendant to pay a fine of $2,500 as a condition of his probation pursuant to judicial

6
diversion w as approp riate. The im position of a statutory m andatory m inimum fine is

acceptable in cases involving judicial diversion because judicial diversion, unlike

pretrial diversion, involves an adjud ication of guilt by the trial court. Finally, fines are

permissible conditions of probation under judicial diversion so long as they do not

exceed the maximum specified by statute for the offense committed.



                                            __________________________
                                            L. T. Lafferty, Special Judge

CONCUR:

______________________________
Gary Wade, Presiding Judge

______________________________
Thomas Woodall, Judge




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