Tennessee § 40-15-105 - Memorandum of understanding — Suspended prosecution.

§ 40-15-105. Memorandum of understanding — Suspended prosecution.

A qualified defendant may, by a memorandum of understanding with the prosecution, agree that the prosecution will be suspended for a specified period, not to exceed two (2) years from the filing of the memorandum of understanding. As a condition of this suspension, the qualified defendant shall agree to pay ten dollars ($10.00) per month as part payment of expenses incurred by the agency, department, program, group or association in supervising the defendant. The payments shall be made to the agency, department, program, group or association responsible for the supervision of defendant. For purposes of this section, “qualified defendant” means a defendant who meets each of the following requirements: The defendant has not previously been granted pretrial diversion under this chapter or judicial diversion under § 40-35-313; The defendant does not have a prior conviction for a Class A or B misdemeanor or for any class of felony; and The charged offense for which the prosecution is being suspended is not a felony or any of the following offenses: Driving under the influence of an intoxicant as prohibited by § 55-10-401; Any misdemeanor sexual offense prohibited by title 39, chapter 13, part 5; Conspiracy, under § 39-12-103, to commit any Class E felony sexual offense prohibited by title 39, chapter 13, part 5; Criminal attempt, under § 39-12-101, to commit any Class E felony sexual offense prohibited by title 39, chapter 13, part 5; Solicitation, under § 39-12-102 to commit any Class D or Class E felony sexual offense prohibited by title 39, chapter 13, part 5; Child abuse or child neglect or endangerment as prohibited by § 39-15-401; Domestic assault as prohibited by § 39-13-111; or Any misdemeanor offense committed by any elected or appointed person or employee in the executive, legislative, or judicial branch of the state or any political subdivision of the state, which offense was committed in the person's official capacity or involved the duties of the person's office. Notwithstanding the provisions of subdivision (a)(1)(A) to the contrary, in any county having a population in excess of eight hundred thousand (800,000), according to the 1990 federal census or any subsequent federal census, the defendant shall pay a fee of not less than ten dollars ($10.00) nor more than thirty-five dollars ($35.00) per month, as determined by the court. Prosecution of the defendant shall not be suspended unless the parties in the memorandum of understanding also agree that the defendant observe one (1) or more of the following conditions during the period in which the prosecution is suspended: That the defendant not commit any offense; That the defendant not engage in specified activities, conduct and associations bearing a relationship to the conduct upon which the charge against the defendant is based; That the defendant participate in a supervised rehabilitation program which may include treatment, counseling, training and education; That in the proper case the defendant make restitution in a specified manner for harm or loss caused by the offense, if restitution is within the defendant's capabilities; That the defendant pay court costs in a specified manner; That the defendant pay, in addition to the payment of ten dollars ($10.00) per month required by this section, any or all additional costs of the defendant's supervision, counseling or treatment in a specified manner based upon the defendant's ability to pay; That the defendant reside in a designated place including, but not limited to, a residential facility for persons participating in a particular program of rehabilitation if residence there is necessary in order to participate fully in the program; That the defendant behave in any specified manner consistent with good citizenship or other terms and conditions as may be agreed upon by the parties; and That for any memorandum entered into on or after July 1, 2014, the defendant use a transdermal monitoring device or other alternative monitoring device if, in the opinion of the district attorney general, the defendant's use of alcohol or drugs was a contributing factor in the defendant's unlawful conduct. If a memorandum entered into on or after July 1, 2016, requires the use of a transdermal monitoring device or other alternative monitoring device, before approving the memorandum, the judge shall determine if the defendant is indigent. If the court determines the defendant is indigent, the court shall order that the portion of the costs of the device that the person is unable to pay be paid by the electronic monitoring indigency fund, established in § 55-10-419; As used in this subdivision (a)(2)(I), “transdermal monitoring device” means any device or instrument that is attached to the person, designed to automatically test the alcohol or drug content in a person by contact with the person's skin at least once per one-half (½) hour regardless of the person's location, and which detects the presence of alcohol or drugs and tampering, obstructing, or removing the device. The memorandum of understanding may include stipulations concerning the admissibility in evidence of specified testimony, evidence or depositions if the suspension of the prosecution is terminated and there is a trial on the charge. The memorandum of understanding shall also include a statement of the defendant's version of the facts of the alleged offenses. The defendant's statement of the facts relative to the charged offenses shall not be admissible as substantive evidence in any civil or criminal proceeding against the defendant who made the statement. However, evidence of the statement is admissible as impeachment evidence against the defendant who made the statement in any criminal proceeding resulting from the termination of the memorandum of understanding pursuant to subsection (d). No other confession or admission of the defendant obtained during the pendency of and relative to the charges contained in the memorandum of understanding shall be admissible in evidence for any purpose, other than cross-examination of the defendant. The memorandum of understanding shall be in writing signed by the parties and shall state that the defendant waives the right to a speedy trial, and the right to be indicted at any particular term of court and after July 1, 2004, if the individual is charged with a violation of a criminal statute the elements of which constitute abuse, neglect or misappropriation of the property of a vulnerable person as defined in § 68-11-1002, the memorandum of understanding or diversion order contains a provision that the individual agrees without contest or any further notice or hearing that the individual's name shall be permanently placed on the registry governed by § 68-11-1003, a copy of which shall be forwarded to the department of health. This filing shall toll any applicable statute of limitations during the pendency of the diversionary period. The pretrial diversion procedures are authorized and a memorandum of understanding may be permitted in the municipal courts of home rule municipalities where the defendant is charged with a misdemeanor and does not have a previous misdemeanor or felony conviction within the five-year period after completing the sentence or probationary program for the prior conviction. The procedures in those municipal courts shall be subject to the same terms and conditions, including those related to expenses and costs, as set forth in this subsection (a), and any expenses and costs paid by the defendants shall be paid to the clerk of the municipal court in which the proceedings were held. Promptly after the memorandum of understanding is made, the prosecuting attorney shall file it with the court, together with a notice stating that pursuant to the memorandum of understanding of the parties under this section and §§ 40-15-102 — 40-15-104, the prosecution is suspended for a period specified in the notice. Upon this filing, if the defendant is in custody, the defendant may be released on bond or on the defendant's promise to appear if the suspension of prosecution is terminated and there is a trial on the charge. The memorandum of understanding must be approved by the trial court before it is of any force and effect. The trial court shall approve the memorandum of understanding unless the: Prosecution has acted arbitrarily and capriciously; Memorandum of understanding was obtained by fraud; Diversion of the case is unlawful; or Certificate from the Tennessee bureau of investigation required by § 40-15-106 is not attached. The defendant shall have a right to petition for a writ of certiorari to the trial court for an abuse of prosecutorial discretion. If the trial court finds that the prosecuting attorney has committed an abuse of discretion in failing to divert, the trial court may order the prosecuting attorney to place the defendant in a diversion status on the terms and conditions as the trial court may order. A defendant's diversion under such terms and circumstances may be terminated as provided by subsection (d) and shall be subject to all other provisions of this section. The parties by mutual consent may modify the terms of the memorandum of understanding at any time before its termination. Nothing in this section shall prohibit a behavioral contract or agreement setting out behavior or goals expected of and to be achieved by the defendant made between a counselor and defendant, but that agreement need not be filed with the court. The memorandum of understanding shall be terminated and the prosecution may resume as if there had been no memorandum of understanding if either the defendant or prosecuting attorney files a notice that the memorandum of understanding is terminated. If the memorandum of understanding is terminated by the prosecution, the defendant may petition the court to review the action of the prosecution to determine whether the prosecution acted arbitrarily, capriciously or abused its discretion to terminate. If the court so finds, it may order the defendant reinstated under the defendant's memorandum of understanding or order the pending charges dismissed with or without jeopardy attaching. The trial court shall dismiss with prejudice any warrant or charge against the defendant upon the expiration of ninety (90) days after the expiration of the period of suspension specified in the memorandum of understanding is filed; provided, that no termination of the memorandum of understanding has been filed under subsection (d). If the prosecution is dismissed with prejudice, jeopardy shall attach and the court shall make a minute entry to that effect. Upon dismissing any warrant or charge against the defendant pursuant to this section, the judge shall send or cause to be sent a copy of the order of dismissal to the Tennessee bureau of investigation for entry into its expunged criminal offender and pretrial diversion database; provided, however, that the court shall not be required to send to the bureau a copy of any dismissal order dated on or after July 1, 1999, if the charge dismissed is classified as a Class B or C misdemeanor. The order of dismissal shall include the name of the defendant, the defendant's date of birth and social security number, the offense for which diversion was granted, the date diversion was granted and the date the charge or warrant was dismissed. Acts 1975, ch. 352, § 4; 1976, ch. 643, §§ 1-4; 1979, ch. 376, §§ 1-3; 1980, ch. 746, §§ 1-4; 1981, ch. 439, §§ 1-3; T.C.A. § 40-2108; Acts 1983, ch. 193, §§ 1-3; 1984, ch. 576, § 1; 1990, ch. 980, § 20; 1993, ch. 281, § 1; 1995, ch. 508, § 1; 1997, ch. 456, § 1; 1998, ch. 1099, §§ 1-5; 2000, ch. 645, § 1; 2000, ch. 813, §§ 2-6; 2003, ch. 323, § 1; 2004, ch. 780, § 8; 2007, ch. 471, §§ 1-3; 2011, ch. 484, § 1; 2012, ch. 766, § 1; 2014, ch. 567, § 1; 2016, ch. 586, § 1; 2016, ch. 993, § 12; 2017, ch. 93, § 1; 2018, ch. 1046, § 3. Compiler's Notes. Acts 2000, ch. 813, § 8, provided that the amendments to this section apply to applicable offenses committed on or after July 1, 2000. Acts 2011, ch. 484, § 3 provided that the act, which amended § 40-15-105(a)(1)(B) and § 40-35-313(a)(1)(B)(i) , shall not apply to the eligibility of a person for suspension of prosecution pursuant to title 40, chapter 15, part 1 if the offense for which such person is charged was committed prior to July 1, 2011. The law in effect at the time shall govern such person. Acts 2011, ch. 484, § 4 provided that the act, which amended § 40-15-105(a)(1)(B) and § 40-35-313(a)(1)(B)(i) , shall govern the eligibility of a person for suspension of prosecution pursuant to title 40, chapter 15 for any person charged with an offense that was committed on or after July 1, 2011. Acts 2014, ch. 567, § 6 provided that the act, which added subdivision (a)(2)(I), shall be known and may be cited as “Amelia's Law”. Acts 2018, ch. 1046, § 12 provided that the act, which amended this section, shall apply to offenses committed on or after July 1, 2018. For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement. Amendments. The 2017 amendment inserted “or employee” in (a)(1)(B)(iii)(h). The 2018 amendment substituted “electronic monitoring indigency” for “DUI monitoring” preceding “fund” in (a)(2)(I)(i). Effective Dates. Acts 2017, ch. 93, § 2. July 1, 2017. Acts 2018, ch. 1046, § 12. July 1, 2018. Cross-References. Penalties for Class A, B or C misdemeanors, § 40-35-111 . Penalties for Class D or E felonies, § 40-35-111 . Rule Reference. This section is referred to in Rule 38 of the Tennessee Rules of Criminal Procedure. Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 11.2, 11.3, 11.20, 11.21, 11.23, 11.24, 11.25, 11.41, 11.42, 11.45. Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, §§ 23, 24, 43. Attorney General Opinions. Defendant's liability for court costs in pretrial diversion program, OAG 04-099 (6/24/04). DUI conviction cannot be expunged through a pretrial diversion program or through judicial diversion, OAG 05-041 (4/5/05). Pretrial diversion and judicial diversion are available to defendants only as prejudgment procedures, OAG 06-008 (1/10/06). Authority of board of probation and parole to supervise individuals on pretrial diversion. OAG 10-07, 2010 Tenn. AG LEXIS 7 (1/22/10). Constitutionality of amendments by Acts 2012, ch. 766 regarding exclusion of public officials from pretrial or judicial diversion. OAG 12-76, 2012 Tenn. AG LEXIS 72 (7/25/12). “Elected or appointed person” as used in T.C.A. § 40-15-105(a)(1)(B)(iii)(h) includes only public employees who have been elected or appointed to their respective positions in the executive, legislative, or judicial branch of state government. OAG 17-05, 2017 Tenn. AG LEXIS 5 (1/19/2017).