IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
December 4, 2007 Session
STATE OF TENNESSEE v. SELETTA MCKINNIS
Interlocutory Appeal from the Circuit Court for Dyer County
No. C06-340 Lee Moore, Judge
No. W2007-01537-CCA-R9-CD - Filed January 22, 2008
The Defendant, Seletta McKinnis, was arrested and pled guilty to failing to appear in court. She
received a sentence of “time served.” The Defendant was subsequently indicted on separate offenses
and applied for pretrial diversion. The prosecutor denied her application, explaining that she had
previously served a sentence of confinement. She appealed to the Circuit Court, which also denied
her application, and now she appeals, arguing that her “time served” sentence should not preclude
her from pretrial diversion. Finding no error, we affirm the trial court’s judgment.
Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Affirmed
ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID G. HAYES, and JOHN
EVERETT WILLIAMS, JJ., joined.
H. Tod Taylor, Dyersburg, Tennessee, for the Appellant, Seletta McKinnis.
Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Lacy
Wilber, Assistant Attorney General; C. Phillip Bivens, District Attorney General, for the Appellee,
State of Tennessee.
OPINION
I. Facts
On February 24, 2006, the police arrested the Defendant for failing to appear in court, and
she was released on bond the following day. On February 27, 2006, she pled guilty for that offense
and received a sentence of “time served.”1 On October 9, 2006, the Defendant was arrested on
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There seems to be a discrepancy in the amount of time the Defendant served. According to the Defendant’s
brief, she was arrested on February 24, 2006, and was released on bond on February 25, 2006. The State cites to the
charges of aggravated assault and reckless endangerment. The Defendant applied for pretrial
diversion, and the District Attorney General denied the application. The Defendant appealed for
certiorari to the Dyer County Circuit Court, but the Court also denied the pretrial diversion
application. The Circuit Court allowed the Defendant to pursue an interlocutory appeal, and this
Court granted the permission to appeal pursuant to Tennessee Rules of Appellate Procedure Rule
9.
II. Analysis
The Defendant alleges that she is entitled to pretrial diversion because her previous “time
served” sentence should not count as a period of confinement. The State argues that the Defendant
was arrested and confined in jail prior to making bond. Upon being convicted and sentenced, the
Defendant received a jail sentence equal in length to the “time served” between her arrest and her
release on bond. As such, the Defendant has a prior misdemeanor conviction for which a sentence
of confinement was served, and thus, she is not statutorily qualified for pretrial diversion. We agree
with the State.
Pretrial diversion allows the district attorney general to suspend prosecution for a period of
up to two years against a defendant who meets certain statutory requirements. See T.C.A. § 40-15-
105(a)(1)(A) (2006). In order to qualify for pretrial diversion, the defendant must not have
previously been granted diversion under this statute; must not have a prior misdemeanor conviction
for which a sentence of confinement was served or a prior felony conviction within a five-year period
after completing the sentence or probationary period for such prior conviction; and must not be
seeking diversion for a Class A or B felony, a sexual offense, driving under the influence, or
vehicular assault. T.C.A. § 40-15-105(a)(1)(B)(i)(a)-(c) (emphasis added). Such eligibility does not
presumptively entitle a defendant to pretrial diversion, but rather places such a decision within the
discretion of the district attorney so long as the defendant is statutorily qualified. State v. Curry, 988
S.W.2d 153, 157 (Tenn. 1999).
It is the defendant’s duty to demonstrate suitability for pretrial diversion. State v. Winsett,
882 S.W.2d 806, 809-10 (Tenn. Crim. App. 1993). However, this requirement does not relieve the
prosecutor of his or her duty to consider and articulate all the relevant factors. Curry, 988 S.W.2d
at 157. The district attorney is required to consider all relevant factors when determining whether
to grant pretrial diversion. State v. Carr, 861 S.W.2d 850, 855 (Tenn. Crim. App. 1993). The
Tennessee Supreme Court has outlined the criteria that should be considered by the prosecutor in
granting or denying pretrial diversion:
When deciding whether to enter into a memorandum of understanding under the
District Attorney General’s letter to Defense Counsel, which says that the Defendant served ten days. W e merely note
the discrepancy for future reference and continue with our analysis because it is not determinative for the issue raised.
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pretrial diversion statute a 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.
State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983); accord Curry, 988 S.W.2d at 157.
Where pretrial diversion is denied by the district attorney, the factors and evidence
considered in making the decision must be clearly set forth in writing along with the weight accorded
to each factor. State v. Pinkham, 955 S.W.2d 956, 960 (Tenn. 1997); Winsett, 882 S.W.2d at 810.
The factors must be “clearly articulable and stated in the record.” Hammersley, 650 S.W.2d at 355.
Failure to consider and articulate all of the relevant factors constitutes an abuse of discretion. See
Curry, 988 S.W.2d at 157-58.
A defendant who has been denied pretrial diversion by the district attorney has the right to
petition for a writ of certiorari to the trial court for an abuse of prosecutorial discretion. T.C.A. §
40-15-105(b)(3). Although a district attorney’s decision to grant or deny pretrial diversion is
presumptively correct, a trial court may overrule a district attorney’s denial of pretrial diversion
where there has been an abuse of discretion See Hammersley, 650 S.W.2d at 356. The trial judge
cannot simply substitute his or her own judgment for that of the district attorney. State v. Watkins,
607 S.W.2d 486, 488 (Tenn. Crim. App. 1980). To show prosecutorial abuse of discretion, the
record must lack any substantial evidence to support the denial of pretrial diversion. Curry, 988
S.W.2d at 158.
The legislature vested the authority to prosecute a case or divert it with the prosecutor rather
than the court. See T.C.A. § 40-15-105; Carr, 861 S.W.2d at 858. The trial court “must not re-
weigh the evidence, but must consider whether the district attorney general has weighed and
considered all of the relevant factors and whether there is substantial evidence in the record to
support the district attorney general’s reasons for denying diversion.” State v. Yancey, 69 S.W.3d
553, 559 (Tenn. 2002). On appeal, this Court is “bound by the factual findings made by the trial
court unless the evidence preponderates against them.” State v. Bell, 69 S.W.3d 171, 177 (Tenn.
2002). An appellate court should apply the preponderance of the evidence standard of review of the
trial court’s decision regarding a prosecutor’s abuse of discretion. Curry, 988 S.W.2d at 158.
“When the facts are undisputed, the underlying issue that this [C]ourt must determine on appeal
remains whether, as a matter of law, the prosecutor abused his or her discretion in denying pretrial
diversion.” State v. Carriger, No. E2000-00823-CCA-R3-CD, 2000 WL 1861823, at *4 (Tenn.
Crim. App., at Knoxville, Dec. 20, 2000), no Tenn. R. App. P. 11 application filed.
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In its letter denying the Defendant’s application for pretrial diversion, the prosecutor stated:
I[t] appears that this defendant is not a “qualified defendant” for pretrial
diversion. On her application she listed one prior arrest for domestic assault in
Dyersburg City Court in 2004 on which she received a sentence of 11/29 suspended
with counseling and Court costs. She does, however, have another arrest on February
24, 2006 in Dyersburg City Court for failure to appear in which she received a ten
day sentence which she did serve. She also had an arrest in July, 2004 by the Dyer
County Sheriff’s Department for driving on a revoked or suspended license which
she did not list.
The District Attorney General and the trial court both denied the Defendant’s petition for pre-trial
diversion because she had a period of confinement from February 2006. The dispute between the
Defendant and the State is whether a sentence of “time served” counts as a “period of confinement.”
See T.C.A. § 40-15-105(a)(1)(B)(i)(b). The Tennessee Annotated Code does not define
“confinement,” so we turn to its plain language meaning. According to Black’s Law Dictionary,
“confinement” means an “act of imprisoning or restraining someone; the state of being imprisoned
or restrained.” 318 (8th ed. 2004). The Defendant spent at least one night in jail after being arrested
pursuant to a warrant, and she was not released until she paid a bond. Upon the entry of the
Defendant’s guilty plea, the municipal court imposed a sentence of confinement equal in length to
the time the Defendant spent in jail (“time served”) before her guilty plea. We conclude that the
Defendant’s “time served” sentence was a period of confinement imposed by the municipal court
for her misdemeanor conviction and served by the Defendant. Therefore, the Defendant had a prior
misdemeanor conviction for which a sentence of confinement was served, and the Defendant was
not statutorily qualified for pretrial diversion.
III. Conclusion
Based on the foregoing reasoning and authorities, we affirm the judgment of the trial court.
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ROBERT W. WEDEMEYER, JUDGE
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