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Tennessee has two different forms of diversion that are often confused: pretrial diversion and judicial diversion. Both can potentially end with dismissal and expungement, but they work very differently.
The biggest differences are when diversion occurs, whether the defendant pleads guilty, who decides whether diversion is granted, and the eligibility requirements. Understanding those differences can be extremely important before accepting or rejecting a proposed resolution.
What Is Pretrial Diversion?
Pretrial diversion is governed by Tennessee Code Annotated § 40-15-105. It is a suspended prosecution arranged through a memorandum of understanding between the district attorney and a qualified defendant.
The defendant does not plead guilty or get found guilty before entering pretrial diversion. Instead, prosecution is suspended while the defendant completes the agreed conditions. The statutory diversion period generally cannot exceed two years.
What Happens If You Successfully Complete Pretrial Diversion?
If the defendant successfully completes the memorandum of understanding, the prosecution is dismissed as provided by Tennessee law and the defendant can pursue expungement of the diverted charge.
Because there was no guilty plea or adjudication of guilt before diversion, pretrial diversion can be particularly attractive when a defendant qualifies and the prosecutor agrees to it.
What Is Judicial Diversion?
Judicial diversion is governed by Tennessee Code Annotated § 40-35-313. Unlike pretrial diversion, the defendant pleads guilty, pleads nolo contendere, or is found guilty before the court grants diversion.
The judge then defers entry of the judgment of guilt and places the defendant on probation. If diversion is successfully completed, the court can discharge the defendant, dismiss the proceedings, and the eligible record can be expunged.
Who Decides Whether You Get Diversion?
For pretrial diversion, the district attorney plays the central role because the statute requires a memorandum of understanding with the prosecution.
Judicial diversion is a judicial decision. Even if a defendant is statutorily eligible, judicial diversion is not automatic. The court decides whether diversion should be granted after considering the circumstances of the case and the defendant.
Do You Have to Plead Guilty for Pretrial Diversion?
No. That is one of the most important distinctions. Pretrial diversion suspends the prosecution without a guilty plea or finding of guilt.
Judicial diversion, by contrast, occurs after a guilty or nolo contendere plea or a finding of guilt. The judgment of guilt is deferred while the defendant completes the diversionary probation.
Can Everyone Get Judicial or Pretrial Diversion?
No. Both statutes contain eligibility requirements and disqualifications. Prior criminal history, prior use of diversion, the charged offense, and other statutory factors can make a defendant ineligible.
Eligibility should be checked carefully before a plea is entered. A defendant should not assume that being a first-time offender automatically guarantees either form of diversion.
What Happens If You Violate Diversion?
The consequences depend on which form of diversion is involved.
With pretrial diversion, violating the memorandum can result in the prosecution resuming. With judicial diversion, a violation can lead the court to terminate diversion, enter the judgment of guilt, and impose the consequences associated with the conviction and sentence.
A diversion violation should therefore be treated seriously even though the original case was placed on a path toward dismissal.
Which Type of Diversion Is Better?
There is no universal answer, but pretrial diversion has an important structural advantage: the defendant does not plead guilty before the prosecution is suspended.
However, pretrial diversion may not be available or offered in a particular case. Judicial diversion can still be an excellent outcome for an eligible defendant because successful completion can result in dismissal and expungement rather than a permanent conviction.
Why Do Immigration and Other Collateral Consequences Matter?
A disposition that avoids a Tennessee conviction for state-law purposes can still have consequences under federal immigration law, professional licensing rules, employment policies, or other systems that use different definitions.
A noncitizen should obtain immigration advice before entering any guilty or nolo contendere plea, including a plea associated with judicial diversion.
How Kevin Kennedy Can Help With Diversion
Kevin Kennedy represents people seeking favorable resolutions in Nashville and throughout Middle Tennessee. As a former prosecutor, he has evaluated diversion and plea resolutions from the prosecution side.
Kevin can determine whether diversion is legally available, compare pretrial and judicial diversion with other possible outcomes, negotiate with the prosecution, and present the strongest available case for diversion when it serves the client’s goals.
Frequently Asked Questions
Does pretrial diversion require a guilty plea?
No. Prosecution is suspended through an agreement with the district attorney without a guilty plea or finding of guilt.
Does judicial diversion require a guilty plea?
Judicial diversion follows a guilty or nolo contendere plea or a finding of guilt, but the court defers entry of the judgment while the defendant completes diversion.
Can both forms of diversion end in expungement?
Yes, when the defendant successfully completes the applicable diversion and otherwise qualifies for expungement.
Is diversion automatic for a first offense?
No. Statutory eligibility and the decision of the prosecutor or judge, depending on the form of diversion, still matter.
Talk With a Nashville Criminal Defense Lawyer
If you are considering diversion in Nashville or elsewhere in Middle Tennessee, Kevin Kennedy Law Firm can determine which options are legally available and help you evaluate the consequences before you enter a plea or diversion agreement.
This website is designed for general information only. It is not legal advice nor does it form a lawyer/client relationship.