About Pleas: What is judicial diversion?

About Pleas: What is judicial diversion?

Criminal & DUI

About Pleas: What is judicial diversion?

The bottom line: Judicial diversion is a program in Tennessee that allows eligible defendants to avoid a criminal conviction and have their charges dismissed and expunged upon successful completion of probation.

Judicial diversion, sometimes called “40-35 diversion,” is a second chance for first-time offenders to avoid a criminal conviction, if the district attorney agrees to make it part of a plea agreement.

choice of two pats

To be eligible for judicial diversion in Tennessee, you must meet certain criteria: you must not have been previously sentenced to jail/prison time for a felony or for an A misdemeanor; you must not have participated in judicial diversion or pre-trial diversion in the past; you must be charged with a qualifying offense (judicial diversion is not available for most violent crimes or for DUI); and you must apply for and receive a certificate of eligibility from the Tennessee Bureau of Investigations (the application costs $100.00).

To take advantage of judicial diversion, you must plead guilty to a crime, but the judge does not enter judgment at that time. Instead, the judge waits to enter judgment until you have had an opportunity to complete probation.

During this probationary period, you will be required to check in regularly with your probation officer, pass random drug tests, engage in lawful behavior (meaning, no new arrests), and comply with all conditions of your probation. Common conditions include community service, classes, and drug and alcohol treatment programs.

If you successfully complete probation, the charges against you will be dismissed and the charge(s) can then be expunged from your record.

If you do not complete your probation requirements, your guilty plea may become final and you may be required to serve your original sentence in jail.

For a printable resource to help you understand judicial diversion, please see my guide: Understanding Judicial Diversion.

About Preliminary Hearings:  What is “probable cause”?

About Preliminary Hearings:  What is “probable cause”?

Criminal & DUI

About Preliminary Hearings:  What is “probable cause”?

The bottom line:  Probable cause means there is enough evidence to cause a reasonable belief that a crime was committed and that the defendant committed it.

Probable cause is a concept that is important in several aspects of criminal law.  This post deals with probable cause in the context of a preliminary hearing in Tennessee.

In order for a case to be bound over to the Grand Jury, the District Attorney must present enough evidence in the preliminary hearing to show probable cause.  This means that there must be enough evidence to create a reasonable belief that a crime has been committed and that the defendant committed the crime.   (This is a much lower amount

of evidence than is required to convict a defendant at trial.  At trial, the state must prove a defendant’s guilt beyond a reasonable doubt.)

Generally, the District Attorney must present some evidence in the preliminary hearing that connects the defendant to the crime and establishes the basic elements of the crime alleged.  The evidence presented may include witness testimony and physical evidence.  Often the only evidence presented is the testimony of the arresting officer.

The judge considers the evidence and makes a probable cause determination. If the judge finds probable cause, the case will be bound over to the Grand Jury.  If the judge does not find probable cause, the case will be dismissed. However, this is very rare due to the small amount of evidence required to show probable cause.

For a printable resource to help you understand the General Sessions Court process, please see my guide: Your Criminal Case in General Sessions Court in Tennessee.

 

 

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What is a preliminary hearing?

What is a preliminary hearing?

Criminal & DUI

What is a preliminary hearing?

The bottom line:   In a preliminary hearing in Tennessee’s General Sessions Court, the judge determines whether there is probable cause to continue to the next phase of criminal prosecution.

If you are charged with any crime in Tennessee, the first court you will appear in is the General Sessions Court.  Many cases are resolved in General Sessions Court.  In Tennessee you are entitled to a preliminary hearing if your case cannot be resolved in General Sessions.

During the hearing, the prosecution will offer evidence of the alleged crime.   Often, this evidence is the witness testimony of a police officer involved in the arrest or investigation.

Your lawyer will have the opportunity to ask the witness questions under oath.  You lawyer may also present witnesses to the court.

A preliminary hearing is not a trial to determine a defendant’s guilt.  Instead, the focus is on whether there is enough evidence to bind over to the Grand Jury.  After hearing the testimony, the judge will determine whether there is probable cause to bind over the charge to the grand jury.

  • There is “probable cause” if there is evidence that makes it reasonable to believe that you committed a crime.
  • “Bind over” means that the case will be sent to the grand jury.
  • The grand jury is a group of 13 people who review the evidence and decide if there is probable cause (again!) to continue the prosecution in Circuit/Criminal Court.

If the judge finds that there is not probable cause, then the charge is dismissed.

Because very little proof is required to show probable cause, the reality is that most charges are bound over to the grand jury.  Even so, the preliminary hearing is an important part of your criminal defense.  In a future blog post, I will explain more about how a preliminary hearing can help you.

For a printable resource to help you understand the General Sessions Court process, please see my guide: Your Criminal Case in General Sessions Court in Tennessee.

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Can I write my own will or use a form I found online?

Can I write my own will or use a form I found online?

Wills & Estate Planning

Can I write my own will or use a form I found online?

The bottom line:  Tennessee law does not prohibit you from a DIY will; however, you risk writing a will that is incomplete or that does not comply with the law.

You have the legal right to write your own will.  And many forms are available online that promise to save you money.  You can, indeed, save money in the short term.  However, a do-it-yourself will or a will form may end up costing your loved ones money, time, and frustration after your death.

When you consult an estate planning lawyer, she will evaluate your specific needs and circumstances.  The will or trust that she writes for you will reflect that.  A form cannot respond to your unique circumstances.  As a result, your DIY will may not completely dispose of your estate; in that case, the probate court judge has to make some decisions on your behalf.

If your will does not comply with Tennessee legal requirements for a will, the judge may attempt to interpret your wishes or may reject your will entirety.  If your will is not accepted for probate, then your estate will pass according to the law of intestacy.  That means that Tennessee law—not you—determines who inherits from you and in what proportion.

If you are determined to write your own will, watch for an upcoming post on “holographic” wills.

Sometimes, it is just better to get a professional.  As the saying goes, “You don’t know what you don’t know.”   Don’t take out your own tonsils, and don’t write your own will.  A small investment now can save your family money, time, and frustration when they are grieving.

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When should I update my will or estate plan?

When should I update my will or estate plan?

Wills & Estate Planning

When should I update my will or estate plan?

The bottom line:  Meet with your estate planning attorney after any significant life change or every five years, whichever comes first.

A change in your family or financial circumstances could mean a change in your estate plan.  Failing to update your will after the birth or death of family members or failing to account for assets in your estate plan makes your estate more vulnerable to legal challenges after you are gone.

You should consult with your estate planning attorney when any of the following occur:

  • your marriage or divorce
  • birth of a child
  • marriage or divorce of one of your children
  • death of your executor, trustee, or a beneficiary of your will/trust
  • significant changes in your net worth
  • you change your mind about how you want your estate to pass after your death
  • you change your mind about who you want to make decisions for you when you are incapacitated
  • you cannot locate your will

Even if you do not experience significant life changes, it is a good idea to review your estate plan every five years to keep up with changes in the law that might affect your estate.  Your attention to your estate plan today can make a difficult time easier for your loved ones.

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Do I have to go to court on a criminal charge if the other party does not want to press charges?

Do I have to go to court on a criminal charge if the other party does not want to press charges?

Criminal & DUI

Do I have to go to court on a criminal charge if the other party does not want to press charges?

The bottom line:  Yes.  The District Attorney’s office decides whether to prosecute someone for a crime; it is not up to a private individual to “press charges.”  If you do not show up for court, the judge will issue a bench warrant for your arrest. This means you will have an additional criminal charge of “failure to appear.”

The concept of “pressing charges” is popular on TV police shows, but in real life, it is not up to an individual to decide whether to pursue a criminal charge after an arrest has been made.  The D.A.’s office decides that.

Let’s look at a domestic violence allegation as an example.   Sometimes a person who calls the police and alleges domestic violence later has a change of heart and tells the police that she does not want to press charges.  In Tennessee, the police will almost always make an arrest if there is probable cause that a domestic assault law has been broken.  (In a future post, I will explain what “probable cause” means and the arrest process.)  

An Assistant District Attorney (ADA) will review the police report and the arrest warrant and speak with the alleged victim to determine whether to proceed with prosecution.  Based on the available information, if the ADA believes a crime has been committed and that there is enough evidence, the ADA will proceed with prosecution.

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Do I need a will if I am single and have no children?

Do I need a will if I am single and have no children?

Wills & Estate Planning

Do I need a will if I am single and have no children?

The bottom line:  Yes.  Without a will, Tennessee law decides who gets your dog, your car, and everything else you leave behind.

When you die without a will, the state of Tennessee, using the law of intestacy, will determine who inherits your property.  If you have no spouse or children, your property will be divided equally between your parents.  If your parents die before you, then your property passes to your brothers and sisters.

The law of intestacy will not benefit your fiancée, friend, long-time partner, church, or anyone that is not legally related to you.  If you want your property to pass to someone other than what the law provides, then you need a will.

A will is just one part of a good estate plan; your estate planning should include documents that determine who will take care of your financial affairs (such as bill paying) if you are incapacitated and who will make medical decisions for you if you are unable to do so yourself.

There are also ways other than a will that your property can pass after your death.  For example, insurance policies and retirement accounts have beneficiaries that you name on the policy or account.   A trust is a good option in some circumstances.  When you review your assets with your estate planning attorney, she can advise you as to the best way to benefit the people or organizations you care about.

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