            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                                        May 2000 Session

                   STATE OF TENNESSEE v. BRIAN SULLIVAN

                Appeal as of Right from the Criminal Court for Shelby County
                              No. 98-14049   Chris Craft, Judge



                    No. W1999-00941-CCA-R3-CD - Filed October 23, 2000


The appellant, Brian Sullivan, entered a plea of nolo contendere in the Shelby County Criminal
Court to one count of attempted aggravated sexual battery, a Class C felony. The trial court
sentenced the appellant to a term of three (3) years, suspended. On appeal, the appellant argues that
the trial court erred in denying his petition for judicial diversion. After a review of the record before
this Court, we conclude that because the appellant was convicted of a sexual offense, he is statutorily
ineligible for judicial diversion. Therefore, the judgment of the trial court is affirmed.

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

JERRY SMITH, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR., and
ROBERT W. WEDEMEYER , JJ, joined.

Robert M. Brannon, Jr., Memphis, Tennessee attorney for the appellant, Brian Sullivan.

Paul G. Summers, Attorney General and Reporter, Mark E. Davidson, Assistant Attorney General,
Nashville, Tennessee and William L. Gibbons, District Attorney General, James Wax, Assistant
District Attorney, attorneys for the appellee, State of Tennessee.

                                              OPINION

In November 1998, the appellant was charged with one (1) count of aggravated sexual battery1, and
several months later, he entered a plea of nolo contendere to one (1) count of attempted aggravated
sexual battery. Subsequently, the appellant filed a petition for judicial diversion pursuant to
Tennessee Code Annotated section 40-35-313, and after an evidentiary hearing, the trial court denied
diversion, finding that the appellant was not an appropriate candidate.



        1
        The indictment also charged two (2) additional counts; however, those counts were
subsequently dismissed by the state.
        In his sole issue on appeal, the appellant contends that the trial court abused its discretion in
denying judicial diversion. However, we need not reach this issue because the appellant is statutorily
ineligible for diversion. Judicial diversion is governed by Tenn. Code Ann. § 40-35-313. Under
Tenn. Code Ann. § 40-35-313(a)(1)(B) (1997), “no defendant, who is found guilty of or pleads guilty
to a sexual offense, shall be eligible for deferral of further proceedings and probation as authorized
by this section.” Attempted aggravated sexual battery is a “sexual offense” within the meaning of
this provision. See Tenn. Code Ann. § 40-35-313(a)(1)(B)(iii) and (viii).
        The appellant entered a plea of nolo contendere to one (1) count of attempted aggravated
sexual battery. “A plea of nolo contendere admits every essential element of the offense, . . . and it
is tantamount to an admission of guilt for purposes of the case in which the plea is entered.” Teague
v. State, 772 S.W.2d 932, 943 (Tenn. Crim. App. 1988); see also State v. Bilbrey, 816 S.W.2d 71,
75 (Tenn. Crim. App. 1991) (“[a] nolo contendere plea has the same effect as a guilty plea, . . .”).
By accepting the appellant’s plea of nolo contendere to attempted aggravated sexual battery, the trial
court entered a finding a guilt as to this offense. Therefore, we hold that when a defendant enters
a plea of nolo contendere to a “sexual offense” as defined by Tenn. Code Ann. § 40-35-
313(a)(1)(B)(i) - (viii), he is ineligible for judicial diversion under the statute.
        The appellant was convicted of a “sexual offense” as defined in the judicial diversion statute
and, as a result, is ineligible for judicial diversion. Accordingly, the trial court’s judgment denying
the appellant’s petition for judicial diversion is affirmed.



                                                        ___________________________________
                                                        JERRY SMITH, JUDGE




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