IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
December 1999 Session
STATE OF TENNESSEE v. TIMOTHY C. HUTSON
Appeal from the Criminal Court for Davidson County
No. 98-B-1496 Steve R. Dozier, Judge
No. M1999-00329-CCA-R9-CD - Filed August 18, 2000
This appeal arises from the order of the Davidson County Criminal Court upholding the district
attorney general’s refusal to accept the application of the defendant, Timothy C. Hutson, for pretrial
diversion. The defendant asserts that the trial court erred in failing to determine that the district
attorney general abused his discretion by relying on facts not supported by the evidence and by
failing to consider all relevant factors. We conclude that substantial evidence was before the district
attorney general to support the validity of each factor relied on in denying pretrial diversion and that
there was substantial evidence to show that the district attorney general considered all relevant
factors. Accordingly, the judgment of the trial court is affirmed.
Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Criminal Court Affirmed
ALAN E. GLENN, J., delivered the opinion of the court, in which JOE G. RILEY and JAMES CURWOOD
WITT, JR., JJ., joined.
Charles R. Ray and Jeffery S. Frensley, Nashville, Tennessee, for the appellant, Timothy C. Hutson.
Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General;
Victor S. (Torry) Johnson, III, District Attorney General; and Kymberly L.A. Haas, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
The defendant, Timothy C. Hutson, appeals by permission the order of the Davidson County
Criminal Court upholding the district attorney general’s refusal to accept the defendant’s application
for pretrial diversion. The defendant alleges that the trial court erred in failing to determine that the
district attorney general abused his discretion by relying on factors not supported by the evidence and
denying the defendant’s application without considering all relevant factors. We conclude that the
trial court properly determined that the district attorney general acted within his discretion in denying
the defendant’s application for pretrial diversion. Accordingly, the judgment of the trial court is
affirmed.
BACKGROUND
The record establishes that the defendant, over a period of time from May to September 1996,
embezzled some $16,000 from his former employer, Skyline MidSouth, Inc., on seventeen different
occasions. As manager of accounting and finance, the defendant was in a position to divert funds
that were rightfully owed to vendors of his employer into his own personal account. The defendant
was indicted June 16, 1998, for theft of property valued at $10,000 or more but less than $60,000,
a Class C felony, in violation of Tennessee Code Annotated Section 39-14-103.
The defendant, through counsel, applied for pretrial diversion by letter addressed to the
district attorney general’s office dated October 9, 1998. That request was formally denied by letter
from the Office of the District Attorney General dated February 3, 1999. The defendant filed a
petition for writ of certiorari with the Davidson County Criminal Court in conformity with Tennessee
Code Annotated Section 40-15-105(b)(3) (Supp. 1999), for review of the denial of his application.
Pursuant to the petition for certiorari, a hearing was held in the trial court on February 12,
1
1999. At the hearing, the sole witness was General Haas, who had authored the letter on behalf of
the Davidson County District Attorney General denying the defendant’s request for pretrial
diversion. She was called as a witness by the defendant.
Following the hearing, the trial court determined that the district attorney general had not
abused his discretion in denying the defendant’s application and set the matter back on the docket.
The defendant applied to the trial court for permission to appeal its order to this court, and the trial
court granted permission to appeal. This interlocutory appeal is now before us for disposition.
ANALYSIS
Our legislature has provided that the decision to grant pretrial diversion should rest within
the discretion of the district attorney general. See Tenn. Code Ann. § 40-15-105; see also State v.
Curry, 988 S.W.2d 153, 157 (Tenn. 1999) (“[W]hether to grant pretrial diversion to a qualified
defendant who is statutorily eligible is a determination that lies in the discretion of the district
attorney general.”). The discretion vested in the prosecutor is not unbridled; “[i]t must be exercised
so as to serve the interests of justice.” Pace v. State, 566 S.W.2d 861, 864 (Tenn. 1978). Thus, upon
proper application of the defendant, the decision of the prosecutor is subject to review by the trial
1
The defendan t in his petition to the trial court c hallenged, inter alia , the district attorney general’s finding of
“recurring criminal beh avior.” T he petition sho uld include th e “record . . . thus far compiled” and should identify any
“disputed fact” which the p rosecutor failed to identify in the denial letter. State v. Winsett , 882 S.W.2d 80 6, 810 (Tenn.
1993). In our view, this “d isputed fact” justified the evid entiary hearing that was held in re sponse to th e defendant’ s
petition for writ o f certiorari. At the hearing , the defenda nt called the ass istant prosec utor who w rote the denial letter
and questioned her about the “recurring criminal behavior” which she relied upon to deny the diversio n request.
However, we remind trial courts that evidentiary hearings on the petitition for certiorari must be used “only to resolve
any factual disputes raised by the prosecu tor or the defendant . . .[,] but [the trial courts are] not to hear additional
evidence.” State v. Curry, 988 S.W.2d 153 , 157-58 (Tenn. 1999).
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court for abuse of prosecutorial discretion. See Tenn. Code Ann. § 40-15-105(b)(3). The decision
of the prosecutor is presumptively correct, and the trial court will reverse that decision only upon
a showing by the applicant that there has been a patent or gross abuse of prosecutorial discretion.
See State v. Houston, 900 S.W.2d 712, 714 (Tenn. Crim. App. 1995) (citing State v. Hammersley,
650 S.W.2d 352, 356 (Tenn. 1993)). An abuse of discretion in this context requires that the record
show “an absence of any substantial evidence to support the refusal of the District Attorney General
to enter into a memorandum of understanding.” Hammersley, 650 S.W.2d at 356; see also Curry,
988 S.W.2d at 158 (noting that the record “must show an absence of any substantial evidence to
support the refusal of the district attorney general to enter into a memorandum of understanding
before a reviewing court can find an abuse of discretion”).
Our supreme court has observed that “[t]he task thus imposed upon prosecutors of deciding
which defendants are worthwhile candidates for diversion is indeed a demanding one.” Hammersley,
650 S.W.2d at 353. It is demanding because, as stated by our supreme court:
Almost all criminal defendants, whether first offenders or not, would
claim remorse and ascribe to themselves a desire to walk the straight
and narrow if presented an opportunity to avoid prosecution; the
responsibility placed upon prosecutors to pick and choose among the
lot based upon a particular candidate’s amenability to rehabilitation
or recidivism requires the exercise of unusual powers of
discrimination.
Id. While our legislature has defined a “qualified defendant” as one who meets statutory
requirements set out in Tennessee Code Annotated Section 40-15-105(a)(1)(B)(i),2 the courts have
provided guidance to prosecutors in determining which defendants among those who pass the
statutory requirements are then suitable for pretrial diversion. See Curry, 988 S.W.2d at 157 (“One
who is statutorily eligible is not presumptively entitled to diversion.”). The factors that are relevant
to the prosecutor’s determination should focus on the defendant’s “amenability to correction.” Id.
(quoting State v. Pinkham, 955 S.W.2d 956, 959-60 (Tenn. 1997)). With this focus in mind, the
prosecutor should consider the following:
2
According to this section, a “qualified de fendant” must meet each o f the following requirements:
(a) The defendant has not previously been granted pretrial diversion under
the provisions of this chapter;
(b) The defe ndant does not have a prior misdemeanor conviction for
which a sentence o f confinemen t is served or a prior felony conviction within a five-
year period after completing the sentence or probationary program for such prior
conviction; and
(c) The offense for which the prosecution is being suspend ed is not a Class
A or Class B felony, a sexual offense, driving under the influence of an intoxicant
as prohib ited by § 55 -10-401 , or vehicular a ssault as proh ibited by § 3 9-13-10 6.
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[T]he 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.
Id. (relying on Hammersley, 650 S.W.2d at 355). Pretrial diversion represents the benevolence of
the State in that diversion may result in dismissal of the prosecution and expungement of the
defendant’s record.3
If the decision is to refuse to enter into a memorandum of understanding for pretrial
diversion, the prosecutor’s response must be formal and in writing given the limited nature of
certiorari review and should include:
(1) An enumeration of all the evidence considered;
(2) An enumeration of the relevant factors considered and
how some factor or factors controlled the decision or
outweighed other factors;
(3) An identification of any disputed issues of fact.
See id., see also State v. Winsett, 882 S.W.2d 806, 810 (Tenn. Crim. App. 1993), perm. app. denied
(Tenn. 1994). The only evidence the trial court may consider on a grant of certiorari is the evidence
that was considered by the district attorney general. See Curry, 988 S.W.2d at 157 (citing Winsett,
882 S.W.2d at 810). A hearing in this context should be “only to resolve any factual disputes raised
by the prosecutor or the defendant concerning the application, but not to hear additional evidence
that was not considered by the prosecutor.” Id. at 157-58. A hearing “may be useful to clarify
matters already in the record about which there may be some dispute.” Winsett, 882 S.W.2d at 810.
The role of the trial court is to determine whether there is any substantial evidence in the record to
support the district attorney general’s refusal to enter into a memorandum of understanding for
3
The applicab le law states:
(e) D I S M IS S A L W I T H P REJUDICE. The trial court shall dismiss with prejudice any
warrant or charge against the defendant upon the expiration of ninety (90) days after
the expiration o f the period of suspension specified in the memorandum of
understanding is filed; provide d, that no termin ation of the memorandum of
understanding has been filed under the pro visions of subsection (d). If the
prosecution is dismissed with prejudice , jeopard y shall attach, and the court shall
make a minute entry to that effect. Upon dismissing any warrant or charge against
the defendant pursuant to this section, the judge shall send or ca use to be sen t a
copy of the order of dismissal to the Tennessee Bureau of Investigation for entry
into its expunged criminal offender and pretrial diversion database. Such order
shall include the name of the defendant, the defendant’s date of birth and social
security number, the offense for which diversion was granted, the date diversion
was granted and the date the charge or warrant was dismissed.
Tenn. Code Ann. § 40-15-10 5(e) (Supp. 1999).
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pretrial diversion because, if there is any substantial evidence, the district attorney general cannot,
as a matter of law, have abused his discretion in denying diversion.
The appropriate standard of review for the appellate court is somewhat less clear. Cases have
indicated that the trial court’s findings of fact in pretrial diversion cases are presumed correct unless
the evidence of record preponderates against those findings. See State v. Lutry, 938 S.W.2d 431,
434 (Tenn. Crim. App. 1996) (“For purposes of our review, the findings of the trial court are binding
on this court unless the evidence preponderates against such findings.”). The presumptive correctness
relates to the trial court’s factual findings, and these are presumed correct unless the evidence of
record preponderates against them. See State v. Helms, 720 S.W.2d 474, 476 (Tenn. Crim. App.),
perm. app. denied (Tenn. 1986) (“It is true that on appeal from the action of the trial judge in
diversion cases, the trial judge’s finding of fact is binding on this court unless we find that the
evidence preponderates against the trial judge’s finding.”).
In Helms, this court went on to distinguish the standard when the facts were not in dispute:
“However, in the case at bar, the facts are undisputed. Therefore, the trial judge erroneously reversed
the action of the District Attorney General since there was substantial evidence to support the
prosecutor’s refusal to enter into a memorandum of understanding.” Id. In State v. Carr, 861
S.W.2d 850, 856 (Tenn. Crim. App. 1993), the evidence was also undisputed, and this court stated,
“[O]ur review relates solely to whether or not there is any substantial evidence in the record to
support the prosecutor’s refusal to enter into a memorandum of understanding for pretrial diversion.”
Similarly, we recently described our role in appeals taken from a denial of pretrial diversion in the
following way: “Our role is limited to determining whether any substantial evidence exists to
support that decision within the frame work of these factors [the Hammersley factors]. . . . [T]he
trial court’s findings of facts are binding on us unless the evidence preponderates against such
findings.” State v. Houston, 900 S.W.2d 712, 714-15 (Tenn. Crim. App. 1995). The
“preponderance of the evidence” standard, then, applies to the trial court’s findings of fact where
facts are disputed. “Any substantial evidence” is the abuse of discretion standard, which the trial
court applies to the determination of the prosecutor and which we, in turn, apply to the judgment of
the trial court.4 It is logical that this court not apply a stricter standard to the conclusions of the trial
court than the trial court applied in reaching those conclusions in the first place. This
standard—abuse of discretion based on whether or not there is any substantial evidence in the record
to support the determination of the prosecutor—weighs heavily in favor of the decision of the
prosecutor and then the decision of the trial court.
ISSUES
4
W e note that this app roach ap pears to va ry from that stated by our supreme court in Curry where the court
referred to a preponderance of the evidence sta ndard witho ut distinguishing w hether this was to be applie d to the findings
of fact where there is a dispute or to the final conclusions of the trial court. This difference is significant since
“preponderance of the evidence” is a stricter standard than is “any substantial evidence.” See Laws v. Celebrezze, 368
F.2d 6409, 642 (4th Cir. 1966) (defining substantial evidence as “more than a mere scintilla of evidence but may be
somewhat less than a preponderance”). Even if we were to apply a preponderance of the evidence standard to the
conclusion of the trial court here, the outcome of this appeal would not be altered.
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Here, there are no facts in dispute. The defendant has not contested the prosecutor’s portrayal
of the circumstances under which he embezzled monies from Skyline MidSouth, Inc.; the amount
embezzled; or the extent of time during which the criminal conduct continued.5 Therefore, we
review the judgment of the trial court to determine whether there is any substantial evidence to
support the prosecutor’s denial of pretrial diversion.
The defendant’s complaint is that the evidence does not support the position taken by the
district attorney general in the letter of denial and that he failed to consider all the relevant factors,
relying instead on circumstances of the crime and deterrence.
A. Letter of Denial
The district attorney general’s letter of denial of pretrial diversion enumerates the evidence
he considered, which includes the report of the sheriff’s office, the facts and circumstances of the
offense,6 and the taped interview with the defendant. The defendant contends that this evidence does
not support the five reasons stated for denying his request for pretrial diversion.
As to the first reason for the denial— the circumstances of the crime—the letter noted the
recurring nature of the criminal behavior of the defendant as signifying that this was not a single,
impulsive act, which is more easily explained, but an ongoing plan of criminal conduct. The record
also indicates that the activity stopped only when Skyline discovered the theft. The following
exchange took place at the interview between the defendant and the prosecutor on January 4, 1999:
Q. At what point in time did it become apparent to you that what you
were doing was illegal?
5
The following chronology, gleaned from the record, is not disputed:
Early 1996 While separated from wife, who remains in Dallas, Tex as, with
their three children, defendant moves to Nashville to assist
elderly grandmother.
April 1996 Defendant begins work for Skyline MidSouth, Inc., as manager
of finance and accounting; defendant’s age is 37.
May-Sept Defendant embezzles funds totaling some $16,000
1996 from Skyline.
Sept. 1996 Defendant and wife reco ncile and she moves with c hildren to
Nashville.
Nov. 1996 Defendant is fired from position at Skyline.
Dec. 1997 Defendant begins treatment for alcoholism with Ann Doak.
July 1997 Defendant begins work with new firm , P.I.C., in Franklin ,
Kentuck y.
Feb. 1998 Defendant begins construction on $225 ,000 hom e in Lebanon,
Tennessee.
June 1998 Defenda nt is indicted for th eft of funds from Skyline.
6
The district attorney general’s letter refers to “the facts and circumstances of the offense as summarized in the
attached Memoranda,” but no attached memoranda are included as part of the defend ant’s appen dix to petition for writ
of certiorari.
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A. Well, after my wife came back up . . .
Q. And when did she come in?
A. It was in, like in the beginning of ‘97 [sic] after this, you know,
when she came up to start the new school year and she saw how much
that I was drinking, that I had been drinking and had really said, you
know, that “You need to get help,” and I was really ugly and hateful
to her about that. . . . [A]nyway, then I finally went to Skyline and
told them I am having a real bad time with my alcohol and I need
help, I need help. And, you know, then subsequent to that I was
terminated from my job.
Q. Why do you believe you were terminated?
A. Well, I mean, they didn’t give me any reason, you know, at the
time. They just sent me a letter. They did ask me about the checks
and I was going, “Well, I don’t know. I cannot tell you.” And, uh, so
I don’t know whether it was that or was the alcohol or that I just
didn’t have a good excuse as to what I had done. . . .
When asked about the shape of the accounting system at Skyline, the defendant described
it as “a total mess.” The prosecutor questioned him on this point:
Q. Mr. Hutson, do you think that somebody, a logical person, could
easily see the situation that you were in as one where you realized
when you started working for Skyline, that it was, in essence, a
perfect opportunity to steal from the company without the company
knowing it because of the state of their accounting procedures?
A. I . . .
Q. I mean, it was easy for you, wasn’t it?
A. Yes, it . . .
Q. And you got away with it?
A. No, I didn’t.
Q. Well, you did for quite some time, didn’t you?
A. And, you know, there was no controls there.
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The defendant had been in a trusted position for approximately one month when he embarked
on a pattern of stealing from his employer. The fact that he was in a position to take criminal
advantage of a state of disarray and quickly and repeatedly did so is substantial evidence that
supports the circumstances of the crime as a ground for denying pretrial diversion.
Second, the prosecutor points to the defendant’s failure to take action to admit his
wrongdoing in a timely fashion and to respond appropriately to his responsibilities for the wrongs
committed. The defendant responded to questions concerning what he did with the thousands of
dollars he stole in the following way:
Q. What did you do with the money that you received?
A. Well, that was one of the things that my wife had asked me as
well. And like I told her, I don’t have a good . . . I don’t have
anything to show for it.
Q. Can you give us a hint? Because over a five month period of time
we show that you stole $16,000. What happened to that money?
What did you do with it?
A. Well, I mean, I don’t know. There’s a long period of time
between that I have no recognition, or recollection of it at all. I mean
...
Q. Do you have a clue as to what you did with it?
A. No, ma’am, I don’t.
Although the defendant blamed alcohol for his troubles, he admitted that he did go to work
“pretty much” on a daily basis during this period. The prosecutor also pointed out that the checks
written by the defendant on Skyline’s account to himself were neatly and carefully written in very
specific amounts, such as $596.53, usually amounts Skyline owed to vendors, and showed no signs
of being written by someone incapacitated by alcohol. There was substantial evidence to support
the district attorney general’s second ground, a failure to accept responsibility in a timely fashion.
Third, the letter contends that criminal prosecution is necessary to deter the defendant from
future criminal acts. The prosecutor questioned the defendant about his relationship with his new
employer during their interview, and the following facts emerged:
Q. What did you tell them [new employer] that the reason was for
your termination by Skyline?
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A. I told them the truth that I had been . . . that I was an alcoholic and
that when I was working for Skyline that I had taken some money and
that I was working to get that resolved, you know, through the courts.
Q. Who did you tell at your current place of employment?
A. Blake Russell, who is my boss.
Q. Ok. So, you’re saying that he knew that before he hired you?
A. No, he did not; he did not know that until recently. 7
The prosecutor also questioned the defendant concerning his present situation:
Q. And what house is it that you are living in in Lebanon now?
A. It’s over on Point Barton Lake.
Q. Can you tell me the approximate value of the home that you
currently have?
A. $225,000.
Q. And when did you purchase that home?
A. We’re buying it now. Well, we built the house.
Q. Tell me the date please that you began construction on this home
in Lebanon?
A. Well, it was in February of last year.
Q. Ok. February of ’98?
A. Yes, ma’am.
Both the district attorney general and the trial court attached great weight to the factor of
deterrence. The trial court, in upholding the prosecutor’s denial of pretrial diversion, stated that “the
Court attached great weight to the deterrence factor, and agrees with the District Attorney General
that practices such as this require deterrence.” Although the defendant asserts that his current
employment does not involve writing checks or touching any money, the evidence considered by the
7
According to the defendant, a treacherous co usin called his p resent emp loyer with inform ation abo ut his
criminal activities a t Skyline, and this fo rced him to come forw ard.
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district attorney general, including the defendant’s speedy move to take advantage of the state of
affairs at Skyline; his pursuit of an affluent lifestyle at the very time he was facing criminal charges,
including building a $225,000 home; and his tendency to manipulate responses to questions so that
an answer appears favorable until skilled questioning reveals otherwise all are substantial evidence
and support the factor of need for deterrence.
As to the fourth reason in the letter of the district attorney general—the fact that the
defendant had not made any attempt to pay restitution—the defendant provided the following
evidence during the taped interview:
Q. Okay. What attempts did you make to make restitution to
Skyline?
A. Well, when, as I mentioned, when they were asking me to tell
them how much I had done and I told them I didn’t know. And they
were going, “Well, you’ve got to tell us.” Well, that’s when I sought
legal help just to make sure that, you know . . .
Q. Just to make sure what?
A. Just to make sure I was doing the right things.
The defendant explained that it was his attorney who advised him to do nothing and wait and
see what Skyline would do. Within seven months of being fired from Skyline, the defendant was
earning $45,000 a year at P.I.C. and yet took no steps to restore the funds he stole from Skyline. The
district attorney general pointed to this failure as indicative of the defendant’s willingness to blame
Skyline for lacking proper control rather than taking full responsibility for his criminal acts. This
fourth factor is supported by substantial evidence and is a valid factor.
The fifth and final factor on which the district attorney general based the denial of pretrial
diversion is the defendant’s lack of remorse, which the prosecutor contends indicates that the
defendant is not amenable to correction. The defendant’s partial denial of the crime—for example,
his response that he had no idea about a check he issued to a fictitious company, T.A.E.—indicated
to the district attorney general that the defendant was not amenable to correction because of his lack
of appreciation of the wrongfulness of his conduct or remorse for having hurt his employer. That
is not to say that the defendant is not sorry to be in the situation in which he finds himself. As he
stated in his interview, he wants to make amends, just not at too high a price. There was substantial
evidence to support the factor of lack of remorse.
In reviewing each of the factors set out by the district attorney general, we conclude that
substantial evidence was before the district attorney general to support the validity of each factor
relied on in denying pretrial diversion.
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B. Consideration of All Relevant Factors
The defendant asserts that the district attorney general abused his discretion in denying his
application for pretrial diversion by failing to consider all relevant factors and relying primarily on
the circumstances of his crime and the need for deterrence. The defendant correctly asserts that the
circumstances or seriousness of the offense and the need for deterrence may alone justify a denial
of diversion, but only if all of the relevant factors have been considered. See Curry, 988 SW.2d at
158 (citing State v. Washington, 866 S.W.2d 950, 951 (Tenn. 1993)).
Criteria for the letter of denial are judicially imposed. Our supreme court has made it
imminently clear that this letter must be more than a mere “abstract statement.” State v. Herron, 767
S.W.2d 151, 156 (Tenn. 1989). “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.” Id. If the district attorney general
bases the decision on factors felt to outweigh others submitted for consideration, there must be an
indication why those factors outweigh others. See id. Without this complete analysis, no prosecutor
should be surprised when either the trial court or this court determines that prosecutorial discretion,
which is significant in pretrial diversion cases, has been abused. Although we have determined that
no prosecutorial abuse of discretion occurred in this case, the letter of denial here was not fully in
compliance with Herron.
We conclude, however, that the prosecutor’s denial of the diversion request was not based
entirely upon the circumstances of the offense. The letter communicates the prosecutor’s substantial
concerns with the defendant’s lack of amenability to correction based upon his failure to tender
restitution and his lack of remorse and candor, factors which are outside the nature and
circumstances of the offense itself. As indicated above, we believe the record contains substantial
evidence supporting these conclusions, and we believe these concerns justify a denial of pretrial
diversion in this case.
Although the denial letter does not expressly articulate that the prosecutor considered all of
the Hammersley factors, it referenced an “attached Memoranda,” upon which the prosecutor relied.
The memoranda were not made a part of the record via the defendant’s petition for writ of certiorari.
It was the defendant’s responsibility to present with his petition the record as had been compiled to
that point. State v. Winsett, 882 S.W.2d 806, 810 (Tenn. 1993). Without the complete letter and
its incorporated components, we cannot conclude that the prosecutor failed to consider all of the
required factors.
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CONCLUSION
We conclude that there is substantial evidence to support the district attorney general’s
denial of pretrial diversion, and, therefore, the district attorney general did not abuse his discretion
in refusing to enter into a memorandum of understanding for pretrial diversion with the defendant.
Accordingly, the judgment of the trial court is affirmed.
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ALAN E. GLENN, JUDGE
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