In State v. Winsett, 882 S.W.2D 806 (Tenn. Crim. App. 1993), Now Justice

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                 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                          AT KNOXVILLE                            FILED
                                    MARCH 1996 SESSION
                                                                                      July 9, 1996

                                                                                  Cecil Crowson, Jr.
                                                                                  Appellate Court Clerk
STATE OF TENNESSEE,                        )
                                           )
                 Appellee,                 )       No. 03C01-9509-CC-00285
                                           )
                                           )       Sevier County
v.                                         )
                                           )        Hon. Rex Henry Ogle, Judge
                                           )
CHRIS RAMEY,                               )        (Pretrial Diversion Denial)
                                           )
                 Appellant.                )



                                       CONCURRING OPINION



                 I concur in affirming the trial court. However, I believe that the record on

appeal is adequate for full appellate review on the merits.



                 In State v. Winsett, 882 S.W.2d 806 (Tenn. Crim. App. 1993), now Justice

A.A. Birch discussed appropriate procedures for pretrial diversion. The opinion

indicates that all of the materials considered by the prosecutor are to be filed with the

trial court by a defendant with the defendant’s petition for writ of certiorari. Id. at 810.

In this respect, Winsett indicates that the trial court may decide the cause upon receipt

of the petition and the attached record, if an evidentiary hearing is unnecessary. I

believe the Winsett procedure1 was basically followed in this case.



                 The appellant’s petition is marked filed on April 17, 1995, and states that

his “petition to enter into a memorandum of understanding with accompanying materials

in support thereof have been filed with the court and are incorporated herein by

reference,” and that the prosecutor’s denial letter was incorporated by reference and

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         The record reflects that the parties and the trial court were fully aware of W insett and its
teachings, although its case style is m isnam ed in the record.
attached to the petition. The trial court clerk certified that the record on appeal

contained all the papers filed in the trial court in this case. The transcript of the

arguments of counsel and comments by the trial court reflect that the trial court was

considering the trial court record before it.



              Although the record before us could be more specific in terms of showing

that it is the same record that was presented to the prosecutor and the trial court, I

believe it is sufficient under Winsett to allow us to review all of the materials with

adequate confidence that it is the correct record. In any event, it shows that the denial

was justified as explained in the majority opinion.



                                                    _____________________________
                                                    Joseph M. Tipton, Judge




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