Issue: Is a defendant eligible for judicial diversion for a “school zone” enhanced drug offense?
Facts: Defendant was convicted of a drug-related offense committed within 1,000 feet of a school zone, thereby triggering the “school zone” enhancement provided in T.C.A. § 39-17-432. The trial court denied judicial diversion for that conviction and Defendant appealed. On appeal, the State contended that the offense was non-divertable, and, regardless, the trial court properly denied diversion.
Appellate Decision: The intermediate court reversed and remanded for a new sentencing hearing on the grounds that the court failed to consider and weigh all the factors. The intermediate court also held that a “school zone” drug offense is eligible for diversion, namely because it is not among excluded offenses listed in the diversion statute, T.C.A. § 40-35-313. Although the “school zone” statute requires that the mandatory minimum sentence be served upon conviction, the court held that this requirement does not get triggered by a diverted offense because a judgment of guilt is never entered.
Review Granted: May 15, 2014.
Prediction: Ben thinks the supreme court is likely to affirm the holding that “school zone” offenses are divertible for the reasons offered by the intermediate court- in this “chicken and the egg” scenario, the egg is never laid. David disagrees on the diversion eligibility result. David believes the court will reverse and find that the mandatory incarceration language in the school zone statute expresses legislative intent and trumps the diversion eligibility language.