Tennessee § 40-35-313 - Probation — Conditions — Discharge and dismissal — Expunction from official records — Fee.

§ 40-35-313. Probation — Conditions — Discharge and dismissal — Expunction from official records — Fee.

The court may defer further proceedings against a qualified defendant and place the defendant on probation upon such reasonable conditions as it may require without entering a judgment of guilty and with the consent of the qualified defendant. The deferral shall be for a period of time not less than the period of the maximum sentence for the misdemeanor with which the person is charged or not more than the period of the maximum sentence of the felony with which the person is charged. The deferral is conditioned upon the defendant paying an amount to be determined by the court of not less than ten dollars ($10.00) nor more than thirty-five dollars ($35.00) per month as part payment of expenses incurred by the agency, department, program, group or association in supervising the defendant, and upon the defendant paying 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. The payments shall be made to the clerk of the court in which proceedings against the defendant were pending, who shall send the payments to the agency, department, program, group or association responsible for the supervision of the defendant, unless the defendant is found to be indigent and without anticipated future funds with which to make the payment. The clerk of the court collecting the payment is permitted to retain five percent (5%) of the proceeds collected for the handling and receiving of the proceeds as provided in this subdivision (a)(1)(A). As used in this subsection (a), “qualified defendant” means a defendant who: Is found guilty of or pleads guilty or nolo contendere to the offense for which deferral of further proceedings is sought; Is not seeking deferral of further proceedings for any offense committed by any elected or appointed person 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; Is not seeking deferral of further proceedings for a sexual offense, a violation of § 39-15-502, § 39-15-508, § 39-15-511, or § 39-15-512, driving under the influence of an intoxicant as prohibited by § 55-10-401, vehicular assault under § 39-13-106 prior to service of the minimum sentence required by § 39-13-106, or a Class A or B felony; Has not previously been convicted of a felony or a Class A misdemeanor for which a sentence of confinement is served; and Has not previously been granted judicial diversion under this chapter or pretrial diversion. As used in subdivision (a)(1)(B)(i)(c) , “sexual offense” means conduct that constitutes: Aggravated prostitution, as described in § 39-13-516; Aggravated rape, as described in § 39-13-502; Aggravated sexual battery, as described in § 39-13-504; Aggravated sexual exploitation of a minor, as described in § 39-17-1004; Attempt, as described in § 39-12-101, solicitation, as described in § 39-12-102 or conspiracy, as described in § 39-12-103, to commit any of the offenses enumerated in this subdivision (a)(1)(B)(ii); Especially aggravated sexual exploitation of a minor, as described in § 39-17-1005; Rape, as described in § 39-13-503; Rape of a child, as described in § 39-13-522; Sexual battery by an authority figure, as described in § 39-13-527; Sexual exploitation of a minor, as described in § 39-17-1003; Statutory rape by an authority figure, as described in § 39-13-532; Incest, as described in § 39-15-302; Patronizing prostitution from a person who is younger than eighteen (18) years of age or has an intellectual disability, as described in § 39-13-514(b)(3); Promoting the prostitution of a minor, as described in § 39-13-515(c)(1); or Continuous sexual abuse of a child, as described in § 39-13-518. (a) As used in this subsection (a), “reasonable conditions” includes, but is not limited to, the use of a transdermal monitoring device or other alternative monitoring device for all qualified defendants granted deferral pursuant to this section on or after July 1, 2014, if the court determines that the defendant's use of alcohol or drugs was a contributing factor in the defendant's unlawful conduct. If the court requires a qualified defendant to use a transdermal monitoring device or other alternative monitoring device on or after July 1, 2016, as a condition of the defendant's release, and 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. “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. (iii) (a) As used in this subsection (a), “reasonable conditions” includes, but is not limited to, the use of a transdermal monitoring device or other alternative monitoring device for all qualified defendants granted deferral pursuant to this section on or after July 1, 2014, if the court determines that the defendant's use of alcohol or drugs was a contributing factor in the defendant's unlawful conduct. If the court requires a qualified defendant to use a transdermal monitoring device or other alternative monitoring device on or after July 1, 2016, as a condition of the defendant's release, and 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. “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. As used in this subsection (a), “reasonable conditions” also includes, but is not limited to, the requirement that a qualified defendant serve a period or periods of confinement in the local jail or workhouse not to exceed a total of thirty (30) days. The provisions of this subsection (a) relative to the payment of a supervision fee shall not apply to any person subject to chapter 28, part 2 of this title. Upon violation of a condition of the probation, the court may enter an adjudication of guilt and proceed as otherwise provided. If, during the period of probation, the person does not violate any of the conditions of the probation, then upon expiration of the period, the court shall discharge the person and dismiss the proceedings against the person. Discharge and dismissal under this subsection (a) is without court adjudication of guilt, but a nonpublic record of the discharge and dismissal is retained by the court solely for the purpose of use by the courts in determining whether or not, in subsequent proceedings, the person qualifies under this subsection (a) or for the limited purposes provided in subsections (b) and (c). The discharge and dismissal shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime or for any other purpose, except as provided in subsections (b) and (c). Discharge and dismissal under this subsection (a) may occur only once with respect to any person. No order deferring further proceedings and placing the defendant on probation as authorized by this subsection (a) may be entered by the court on or after July 1, 1998, unless there is attached to it a certificate from the Tennessee bureau of investigation stating that the defendant does not have a prior felony or Class A misdemeanor conviction. No order deferring further proceedings and placing the defendant on probation as authorized by this subsection (a) may be entered by the court if the defendant was 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 on or after July 1, 2004, and prior to July 1, 2018, or charged with a violation of § 39-15-507 on or after January 1, 2019, or § 39-15-510 on or after July 1, 2019, unless the order contains a provision that the defendant agrees without contest or any further notice or hearing that the defendant'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. The certificate provided by the bureau pursuant to subdivision (a)(3)(A) is only a certification that according to its expunged criminal offender and pretrial diversion database the defendant is not disqualified from deferral and probation under this section by virtue of a prior felony or Class A misdemeanor conviction. The certificate is not a certification that the defendant is eligible for the deferral and probation, and it shall continue to be the duty of the district attorney general, and judge to make sufficient inquiry into the defendant's background to determine eligibility. Upon the dismissal of the person and discharge of the proceedings against the person under subsection (a), the person may apply to the court for an order to expunge from all official records, other than the nonpublic records to be retained by the court under subsection (a) and the public records that are defined in § 40-32-101(b), all recordation relating to the person's arrest, indictment or information, trial, finding of guilty and dismissal and discharge pursuant to this section; provided, that no records of a person who is dismissed from probation and whose proceedings are discharged pursuant to this section shall be expunged if the offense for which deferral and probation was granted was a sexual offense as defined by § 40-39-202. Each application shall contain a notation by the clerk evidencing that all court costs are paid in full, prior to the entry of an order of expunction. If the court determines, after hearing, that the person was dismissed and the proceedings against the person discharged, it shall enter the order. The effect of the order is to restore the person, in the contemplation of the law, to the status the person occupied before the arrest or indictment or information. No person as to whom the order has been entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of the person's failures to recite or acknowledge the arrest, or indictment or information, or trial in response to any inquiry made of the person for any purpose, except when the person who has been availed of the privileges of expunction then assumes the role of plaintiff in a civil action based upon the same transaction or occurrence as the expunged criminal record. In that limited situation, notwithstanding this section or § 40-32-101(a)(3)-(c)(3) to the contrary, the nonpublic records are admissible for the following purposes: A plea of guilty is admissible into evidence in the civil trial as a judicial admission; and A verdict of guilty by a judge or jury is admissible into evidence in the civil trial as either a public record or is admissible to impeach the truthfulness of the plaintiff. In addition, the nonpublic records retained by the court, as provided in subsection (a), shall constitute the official record of conviction and are subject to the subpoena power of the courts of civil jurisdiction. Notwithstanding this section or § 40-32-101(a)(3)-(c)(3) to the contrary, a plea of guilty or a verdict of guilty by a judge or jury for a criminal felony offense involving an act of terrorism or any other felony offense involving violence, coercion, dishonesty or the disruption of the operations of a state or local government is admissible into evidence in a civil action for the purpose of impeaching the truthfulness, veracity or credibility of a witness if the plea or verdict occurred within ten (10) years of the date the evidence is sought to be admitted and the witness is a party to the civil action. The plea or verdict is admissible for the purposes set out in this subsection (c) notwithstanding the fact that the public records of the plea or verdict have been expunged pursuant to this section either prior to or after the commencement of the civil action at which the plea or verdict is sought to be admitted. In addition, the nonpublic records retained by the court, Tennessee bureau of investigation or a local law enforcement agency shall constitute official records of plea or verdict and are subject to the subpoena power of the courts of civil jurisdiction. Any court dismissing charges against a person and ordering the expunction of a person's public records following the discharge of proceedings pursuant to this section after October 1, 1998, shall send or cause to be sent a copy of the dismissal and expunction order 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 and expunction order dated on or after July 1, 1999, if the charge dismissed is classified as a Class B or C misdemeanor. The order shall contain the name of the person seeking dismissal and expunction, the person's date of birth and social security number, the offense that was dismissed and the date the dismissal and expunction order is entered. [Deleted by 2019 amendment.] Acts 1989, ch. 591, § 6; 1990, ch. 980, §§ 25, 26; 1995, ch. 349, § 1; 1996, ch. 997, § 1; 1997, ch. 455, § 2; 1997, ch. 456, § 2; 1998, ch. 1099, §§ 8-10; 2000, ch. 645, § 2; 2000, ch. 813, § 7; 2002, ch. 849, §§ 14-16; 2003, ch. 323, § 2; 2004, ch. 780, § 9; 2006, ch. 973, § 3; 2007, ch. 528, § 2; 2007, ch. 536, § 1; 2011, ch. 484, § 2; 2012, ch. 766, § 2; 2012, ch. 1041, § 4; 2014, ch. 567, § 4; 2015, ch. 125, § 1; 2016, ch. 993, § 15; 2016, ch. 1026, § 1; 2017, ch. 466, § 4; 2018, ch. 951, § 1; 2018, ch. 1046, § 3; 2018, ch. 1050, §§ 8, 9; 2019, ch. 200, § 4; 2019, ch. 474, §§ 14, 15; 2020, ch. 607, § 1; 2020, ch. 741, § 1. Sentencing Commission Comments. This section permits disposition of misdemeanors and certain felonies to include probation with the possibility of dismissal and expungement if the defendant successfully complies with the terms of probation. The eligibility criteria are set forth in subdivision (a)(1) and provide that the defendant cannot have a prior record for any felony conviction or for any Class A misdemeanor convictions. The provisions of this section apply to all misdemeanors except for driving under the influence and driving on a cancelled, suspended or revoked license. See §§ 55-10-403(b)(1) and 55-50-504(e) . Compiler's Notes. Former chapter 35, §§ 40-35-101 — 40-35-112 , 40-35-201 — 40-35-214 , 40-35-301 — 40-35-316 , 40-35-401 — 40-35-403 , 40-35-501 — 40-35-504 (Acts 1982, ch. 868, § 1; T.C.A., §§ 40-35-108 , 40-43-101 — 40-43-104 , 40-43-106 , 40-43-107 , 40-43-109 — 40-43-112 , 40-43-201 — 40-43-205 , 40-43-207 — 40-43-212 , 40-43-214 , 40-43-301 — 40-43-304 , 40-43-306 — 40-43-309 , 40-43-311 — 40-43-315 , 40-43-401 — 40-43-403 , 40-43-501 — 40-43-504 ), concerning the Tennessee Criminal Sentencing Reform Act of 1982, was repealed by Acts 1989, ch. 591, § 6. The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 subsequent legislation. 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)(1)(B)(iii), shall be known and may be cited as “Amelia's Law”. Acts 2017, ch. 466, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Elderly and Vulnerable Adult Protection Act.” Acts 2018, ch. 951, § 2 provided that the act, which amended this section, shall apply to orders of deferral entered on or after July 1, 2018. Acts 2018, ch. 1046, § 12 provided that the act, which amended this section, shall apply to offenses committed on or after July 1, 2018. Acts 2018, ch. 1050, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Elderly and Vulnerable Adult Protection Act of 2018.” Acts 2018, ch. 1050, § 17 provided that the act, which amended this section, shall apply to acts committed on or after January 1, 2019. Amendments. The 2019 amendment by ch. 200 deleted (d)(2) which read, “(2) Beginning July 1, 2012, a defendant applying to a court for expunction of the defendant's records following successful completion of the diversion program authorized by this section shall be assessed a three-hundred-fifty-dollar fee. The fee shall be transmitted by the clerk of the court to the state treasurer for deposit in the special fund established in § 40-32-101(d)(2) .” The 2019 amendment by ch. 474, in (a), substituted “§ 39-15-502 , § 39-15-508 , § 39-15-511 , or § 39-15-512 ” for “§ 39-15-502 , § 71-6-117 , § 71-6-119 , or § 39-15-508 ” in (a)(1)(B)(i)(c); and substituted “a violation of § 39-15-507 on or after January 1, 2019, or § 39-15-510 on or after July 1, 2019” for “a violation of § 39-15-507 or § 71-6-117 on or after July 1, 2018” in (a)(3)(A). The 2020 amendment by ch. 607 added (a)(1)(B)(ii)(m) and (a)(1)(B)(ii)(n) . The 2020 amendment by ch. 741 added (a)(1)(B)(ii)(o) . Effective Dates. Acts 2019, ch. 200, § 10. July 1, 2019. Acts 2019, ch. 474, § 18. January 1, 2020; provided that for administrative and rulemaking purposes, the act took effect May 24, 2019. Acts 2020, ch. 607, § 2. March 20, 2020. Acts 2020, ch. 741, § 2. June 22, 2020. Cross-References. Confidentiality of public records, § 10-7-504 . Destruction or release of records, § 40-32-101 . Penalty for Class A, B or C misdemeanor, § 40-35-111 . Penalty for Class A or B felony, § 40-35-111 . Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 11.3, 11.4, 22.103. Law Reviews. Alternatives to Revocation of Judicial Diversion, 49 Tenn. B.J. 19 (2013). Attorney General Opinions. Effective date of subdivision (a)(3)(A) as October 1, 1998, OAG 98-166 (8/28/98), 1998 Tenn. AG LEXIS 166. Collection of supervision fee by private probation service, OAG 99-029, 1999 Tenn. AG LEXIS 22 (2/17/99). Peace officers standards and training (POST) pre-employment requirements, OAG 00-026, 2000 Tenn. AG LEXIS 26 (2/15/00). A trial judge may not entertain any ex parte actions regarding judicial diversion or expungement pursuant to T.C.A. § 40-35-313 , OAG 02-099, 2002 Tenn. AG LEXIS 106 (9/16/02). While a trial court may retain the power to alter or amend a defendant's sentence after 30 days, it has no authority to expunge a defendant's criminal record pursuant to T.C.A. § 40-35-313 if the defendant has not been sentenced pursuant to the terms of that section and a valid judgment of conviction is in effect, OAG 02-099, 2002 Tenn. AG LEXIS 106 (9/16/02). A court is not authorized to enter an order of diversion without first receiving a certificate from the Tennessee bureau of investigation stating that defendant does not have a prior felony or Class A misdemeanor conviction, OAG 04-009, 2004 Tenn. AG LEXIS 9 (1/27/04). The date the order is entered with the Tennessee bureau of investigation certificate attached is the effective date of the diversion, OAG 04-009, 2004 Tenn. AG LEXIS 9 (1/27/04). DUI conviction cannot be expunged through a pretrial diversion program or through judicial diversion, OAG 04-009, 2005 Tenn. AG LEXIS 41. Pretrial diversion and judicial diversion are available to defendants only as prejudgment procedures, OAG 06-008, 2006 Tenn. AG LEXIS 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). Under T.C.A. § 62-35-130(e) licensed armed and unarmed security guards/officers are required to notify the Commissioner of Commerce and insurance only of “conviction[s],” and a guilty plea entered as a condition of judicial diversion is not a “conviction” under T.C.A. § 40-35-313 . OAG 16-17, 2016 Tenn. AG LEXIS 18 (5/6/2016).