Pretrial Diversion vs. Judicial Diversion in Tennessee
Both kinds of diversion can end a Tennessee criminal case in dismissal instead of a conviction, and both can lead to expungement. The key difference: pretrial diversion pauses the case with no guilty plea, by agreement with the prosecutor, while judicial diversion comes after a guilty plea or finding, and the judge holds off on entering a conviction while you complete probation. Each is available only once in your life.
Pretrial diversion (Tenn. Code Ann. § 40-15-105)
How it works. You and the prosecutor sign a written memorandum of understanding. Prosecution is suspended for up to 2 years, usually with conditions. You do not plead guilty. The judge must approve the agreement.
Who qualifies. You must meet all of these:
You have never had pretrial or judicial diversion before.
You have no prior conviction for a Class A or B misdemeanor or for any felony.
The current charge is not a felony and is not on the excluded list.
Excluded charges include DUI, domestic assault, misdemeanor sexual offenses, child abuse, neglect or endangerment, and certain offenses by public officials in their official role.
When you finish. The court dismisses the charge with prejudice 90 days after the suspension period ends. The dismissal order goes to the Tennessee Bureau of Investigation (TBI) for its expunged criminal offender and pretrial diversion database.
Judicial diversion (Tenn. Code Ann. § 40-35-313)
How it works. You plead guilty or no contest, or are found guilty. With your consent, the judge defers further proceedings and places you on probation without entering a judgment of guilt. The prosecutor does not have to agree. It is up to the judge.
Who qualifies.
The charge is not a Class A or B felony, a DUI, a listed sexual offense, or certain public corruption offenses.
You have not been convicted of a felony, or of a Class A misdemeanor for which you served a sentence of confinement.
You have never had judicial or pretrial diversion before.
Because felonies below Class B are not excluded, judicial diversion can be an option for some Class C, D and E felonies, where pretrial diversion is not.
The TBI check. A judge cannot enter a judicial diversion order unless a certificate from the TBI is attached. This is how courts check whether you have had diversion before.
When you finish. The court discharges you and dismisses the case without a conviction.
If you violate probation. The court may enter a judgment of guilt and sentence you. You lose the benefit of diversion.
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Call (615) 997-7618 to talk with Kylene Ross or Chloe Hawes about your situation. Arrested after hours? Send us a message and we are notified right away.
Side by side
Guilty plea needed? Pretrial diversion: no. Judicial diversion: yes (or a guilty finding).
Prosecutor must agree? Pretrial diversion: yes, by written agreement. Judicial diversion: no, the judge decides.
Felonies? Pretrial diversion: not available. Judicial diversion: available except Class A and B.
Longest term? Pretrial diversion: up to 2 years. Judicial diversion: probation up to the maximum sentence for the offense.
DUI? Excluded from both.
Domestic assault? Pretrial diversion: excluded. Judicial diversion: not on the exclusion list.
Result? Pretrial diversion: dismissal with prejudice. Judicial diversion: dismissal, no conviction.
Expungement after diversion
Completing either kind of diversion lets you petition to expunge the public records of the charge (Tenn. Code Ann. § 40-32-106). Records of diversions for sexual offenses cannot be expunged this way. A clerk's fee applies to diversion expungements (Tenn. Code Ann. § 40-32-106, referring to § 8-21-401).
The dismissal order is also sent to the TBI for its diversion database, and courts check with the TBI before granting judicial diversion. Diversion is available only once, so treat yours as valuable.
Read more in our article on how long expungement takes in Tennessee.
Which one fits your case?
It depends on the charge, your record and the prosecutor's position. A few common patterns under the statutes:
First-time misdemeanor, such as shoplifting under $1,000: both may be possible. Pretrial diversion avoids a guilty plea altogether.
Lower-level felony: pretrial diversion is not available. Judicial diversion may be.
Domestic assault: pretrial diversion is excluded. Judicial diversion is not.
DUI: neither is available.
In Sumner County, misdemeanor cases and felony preliminary hearings are heard in Sumner County General Sessions Court, and felony cases are resolved in Sumner County Criminal Court. Diversion can come up in either court.
How we can help
Kylene Ross and Chloe Hawes regularly ask for diversion for clients in Sumner, Wilson, Robertson, Williamson and Davidson counties when the law allows it. We check your eligibility, talk with the prosecutor, and help you finish the terms and file for expungement afterward. See our criminal defense services, our drug charge page, or our expungement page.
Ready to Talk?
Call (615) 997-7618 to talk with Kylene Ross or Chloe Hawes about your situation. Arrested after hours? Send us a message and we are notified right away.
Sources
This article is general information about Tennessee law, not legal advice for your situation.
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