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Rule 38 – Appeal of Denial of Pretrial Diversion

May 14, 2021 | Criminal Procedure, Tennessee

(a) Certiorari to Trial Court. A defendant who seeks and is denied pre-trial diversion pursuant to T.C.A. ยง 40-15-105 may petition for a writ of certiorari to the trial court for an abuse of prosecutorial discretion.
(b) Appeal.

(1)Interlocutory Appeal. If the trial court denies the writ of certiorari and finds that the prosecuting attorney has not committed an abuse of discretion in failing to grant pre-trial diversion, the defendant may pursue an interlocutory appeal of this decision pursuant to either Rule 9 or Rule 10 of the Tennessee Rules of Appellate Procedure.
(2)Direct Appeal. If the defendant does not pursue an interlocutory appeal of the denial of a writ of certiorari, the defendant may appeal the denial pursuant to Rule 3(b), Tennessee Rule of Appellate Procedure, following the entry of the final judgment in the trial court.

Tenn. R. Crim. P. 38

Advisory Commission Comment.

This rule provides the methods by which denials of pre-trial diversion can be appealed. A failure to pursue an interlocutory appeal would not result in a waiver of the issue on direct appeal.