IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JULY SESSION, 1996
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9601-CC-00005
)
Appellant, )
)
) CARROLL COUNTY
VS. )
) HON. C. CREED MCGINLEY
CAROLYN L. CURRY, ) JUDGE
)
Appellee. ) (Rule 9 Appeal - Pretrial Diversion)
FILED
March 24, 2008
CONCURRING OPINION Cecil Crowson, Jr.
Appellate Court Clerk
I concur with Judge Peay’s opinion in this case. I write separately to point
out that, in my opinion, a finding by the trial judge that the district attorney general
did not consider all relevant factors in denying pretrial diversion does not
necessarily lead to the conclusion that pretrial diversion will be granted. Even
though the district attorney general may have abused his discretion by failing to
consider all relevant factors, the denial may be justified after all relevant factors
are considered. If such is the case, in a manner somewhat analogous to a
“harmless error” analysis, the denial of pretrial diversion should be upheld.
Even though a trial judge may not find an abuse of discretion by the district
attorney general in denying pretrial diversion, the trial judge may nonetheless
consider granting the defendant the relief known as “judicial diversion.” See
Tenn. Code Ann. § 40-35-313.
____________________________________
DAVID H. W ELLES, JUDGE
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