State of Tennessee v. Carolyn L. Curry - Concurring

Opinion

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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