Diversion is the process of having a criminal charge removed from a client’s permanent record. Where I practice in Tennessee there are two types of diversion: judicial and pre-trial. Pre-trial diversion is also known as Attorney General diversion, because the A.G. (also called the D.A. or the prosecutor) has the sole power to grant it. While the two have essentially the same result-dismissal of the charge and the ability to get it expunged-both have some significant differences in practice and procedure. Judicial diversion requires a guilty plea and a period of supervised probation. Pre-trial diversion, which is the focus of this article, works a little bit different. Remember that this article deals specifically with Tennessee laws. Your local laws may vary.
Attorney general diversion is completely at the discretion of the prosecutor. If they so wish, they may suspend prosecution against a client for up to two years. A client would be statutorily eligible for this diversion if they have not had diversion before and they are not seeking to divert a felony offenses, a sex offense, or a DUI. Again, though, granting this type of diversion is up to the District Attorney General. Thus while a client may be eligible, the D.A. may deny their request.
To place a client in pre-trial diversion, the prosecution and the defense must enter into a memorandum of understanding. This states that the prosecution would be suspended for up to two years, and that the client follows certain conditions, which may include staying out of trouble, making restitution, and/or entering counseling or rehab. The memorandum, then, is like a contract between the client and the state.
Where judicial diversion requires a guilty plea and supervised probation, A.G. diversion does not require a guilty plea, and instead of probation the case is simply suspended for up to two years. At the end of the period of suspension the case is dismissed and the client may have all records expunged.
Non-U.S. citizens will want to do pre-trial diversion rather than judicial diversion because there is no guilty plea involved. Under immigration laws, visa holders or permanent residents may be subject to deportation proceedings if they plead guilty to a criminal charge, even if that charge is later dismissed under judicial diversion. In pre-trial diversion, however, no guilty plea is ever entered.
Another issue is that it is only available after the client is indicted by a grand jury. Where I practice in Memphis, Tennessee, it can take many months to get indicted. For many cases judicial diversion is available much sooner, so for clients who want to get their case resolved faster this may be a better option. Both pre-trial and judicial diversion have their pros and cons, and which one is better is going to depend on each particular case and the client’s wishes.
Patrick Stegall is a Memphis criminal attorney. He handles criminal matters ranging from traffic offenses to major felonies, and specializes in helping first-time offenders stay out of jail and keep a criminal charge off their record.