Misdemeanor with cruel and unusual consequences

[Edward1962]

What is the name of your state? TN

I am a 44 year old father of three who was charged 2 years ago with simple assault and resisting arrest. The judge cleared me of the first charged, but convicted me with resisting arrest, a misdemeanor in the stat of TN. Since I had a clean record and met state criteria, my lawyer filed to expunge the charge, but something went sour between him, the judge and the DA, and instead I had to serve time in jail, pay a fine, complete community service, and was placed on probation for 6 months. I met all of the conditions and hoped the worst part was over, it was not.

The company I work for is closing next March, we have all been advised to look for work. I have interviewed successfully at 3 companies but was rejected because of this misdemeanor. I have a daughter in college and a second starting soon, with mortgage payments and other responsibilities …. What do I need to do to put this matter behind me?
I have been a law obeying person all my life. The law allows for the expungement which I was denined. What should I do? Please, please advise.

 

[moburkes]

Ask for an expungement.

 

[Edward1962]

I was denied expungement because of somehting went sour between my attorney, the DA and the judge. The law states that the judge has discreation in granting expungement. I met all criteria for expungement, but the judge, the DA had an argument over it. Apparently the DA felt that the attorney surprised the court with the request after all witnesses were summoned and court was in session -- I think there is more to it, but that is all the info I have.

 

[moburkes]

Your post is confusing. In order to ask for expungement, you had to have met the requirements already, for the misdemeanor. Its not go to jail VS expungement. Its:
1. satisfy the requirements of the court, then
2. apply for expungement

So, you skipped a part. You made it seem as if INSTEAD of expungement, you were told to go directly to jail. It doesn't work that way.

 

[Edward1962]

I think the process is to request Judicial Diversion, and when conditions are met, then the record can be expunged. My understanding is that Judicial Diversion is done instead of sentencing, subject to the discreation of the judge (for meeting the criteria).

Tenn. Code Ann. § 40-35-313. Probation; conditions; discharge and expungement
http://www.nashville-criminal-lawyer.org/judicial-diversion.html

 

[RedemptionMan]

It is basically up to the judge if you are granted an expungement or not. Most if not all companies that hire third party investigative report companies will deny an applicant if any criminal activity is reported. I.e. dribbling a basketball down the street while jay walking... it does not matter any criminal record can be a denial for employment especially in the post 911 world we live in. It sounds if something political went on between the people involved. You have options and if the law is on your side then you can and will win... good luck....

 

[Edward1962]

I guess the real question is: can I challange the courts lack of descretion in denying me judicial diversion?

 

[divgradcurl]

I guess the real question is: can I challange the courts lack of descretion in denying me judicial diversion?

Yes, you can. But, unless you can prove that the denial was an "abuse of discretion," the appellate courts will defer to the trial judge's "discretion." The appellate courts will not rehear you case -- all they will do is determine whether or not the judge "abused" his discretion in denying you expungement, and since "discretion" is just that -- discretionary -- its pretty unlikely without some significant compelling evidence of abuse.

 

[Edward1962]

I think you are wrong, there is much more to it, I found the following:

I agree that the failure by the prosecutor to consider and articulate all of the relevant factors in denying the pretrial diversion application constitutes an abuse of discretion. Therefore, I agree with the majority’s conclusion that the trial court erred when it found no abuse of prosecutorial discretion in denying the Defendant’s request for pretrial diversion. Because the prosecutor abused his discretion in denying the Defendant’s application for pretrial diversion, I would reverse the order of the trial court denying pretrial diversion and remand the case for an order directing the prosecuting attorney to place the Defendant on pretrial diversion.

Comes from:

STATE OF TENNESSEE v. JOHNNIE BELL, JR.
Appeal from the Criminal Court for Sullivan County
No. S41906 Phyllis H. Miller, Judge
No. E1999-00819-CCA-R9-CD
November 27, 2000
DAVID H. WELLES, J., concurring and dissenting.
CONCURRING AND DISSENTING OPINION

 

[divgradcurl]

I think you are wrong, there is much more to it, I found the following:

I agree that the failure by the prosecutor to consider and articulate all of the relevant factors in denying the pretrial diversion application constitutes an abuse of discretion. Therefore, I agree with the majority’s conclusion that the trial court erred when it found no abuse of prosecutorial discretion in denying the Defendant’s request for pretrial diversion. Because the prosecutor abused his discretion in denying the Defendant’s application for pretrial diversion, I would reverse the order of the trial court denying pretrial diversion and remand the case for an order directing the prosecuting attorney to place the Defendant on pretrial diversion.

Comes from:

STATE OF TENNESSEE v. JOHNNIE BELL, JR.
Appeal from the Criminal Court for Sullivan County
No. S41906 Phyllis H. Miller, Judge
No. E1999-00819-CCA-R9-CD
November 27, 2000
DAVID H. WELLES, J., concurring and dissenting.
CONCURRING AND DISSENTING OPINION

Great. Now, how is that relevant to your case? How do the facts of this case match up or distinguish from your case?

Just because there was a finding of abuse of discretion in this case doesn't necessarily mean that there is abuse in every case. You need to compare the facts of the case, and analyze the holding in light of the facts, to see if your case is abuse of discretion or not.

Also, you might want to try Shepardizing the case to make sure that it is still good law.

 

[Edward1962]

The judge in this case did not ask a single question to find if I am qualified for Judicial Diversion. I brought record to court that I have no criminal history, and letter of good character form my employer, but the judge said he does not offer judicial diversion for Resisting Arrest. The law is clear about which crimes are not elegiable (DUI, sexual, etc), but does not include my offense. The judge apparently has a policy of his own, which is different from the law.

 

[RedemptionMan]

The judge in this case did not ask a single question to find if I am qualified for Judicial Diversion. I brought record to court that I have no criminal history, and letter of good character form my employer, but the judge said he does not offer judicial diversion for Resisting Arrest. The law is clear about which crimes are not elegiable (DUI, sexual, etc), but does not include my offense. The judge apparently has a policy of his own, which is different from the law.

Isn't it great. That is right the laws are written for different interpretations of the law and that is the job of the judge. Resisting arrest can have a violent component to it and that is probably why they did not offer you the diversion program.... If it is not in the specific code; I would challenge it --- good luck....