The Tennessee Supreme Court in
State v. Dycus, 456 S.W.3d 918 (Tenn. 2015) has addressed a common issue I've seen
numerous times in criminal court. Shanice Dycus plead guilty to one count
of possession of marijuana in excess of .5 ounces with intent to sell
or deliver within 1,000 feet of a school zone, four counts of simple possession
of marijuana, two counts of evading arrest, two counts of possession of
drug paraphernalia, and three counts of criminal trespass. At the sentencing
hearing the defendant sought judicial diversion and the State argued that
the mandatory minimum service requirement of the Drug-Free School Zones
Act rendered offenses committed under that act ineligible for judicial
diversion, a position that has been raised dozens of times in cases I've handled.
The common thought has been among prosecutors that any sentence that is
a "to serve" sentence cannot be eligible for judicial diversion.
However, the Tennessee Supreme Court examined both the Drug-Free School
Zones Act and the judicial diversion statute and found otherwise. The
relevant provisions of the Drug-Free School Zones Act provides as follows:
(b)(1) A violation of 39-17-417, or a conspiracy to violate the section,
that occurs on the grounds or facilities of any school or within one thousand
feet (1,000') of the real property that comprises a public or private
elementary school, middle school, secondary school, preschool, child care
agency, or public library, recreational center or park shall be punished
one (1) classification higher than is provided in 39-17-417(b)-(i) for
. . .
(c) Notwithstanding any other provision of law or the sentence imposed
by the court to the contrary,
a defendant sentenced for a violation of subsection (b) shall be required
to serve at least the minimum sentence for the defendant's appropriate
range of sentence. Any sentence reduction credits the defendant may be eligible for or earn
shall not operate to permit or allow the release of the defendant prior
to full service of the minimum sentence.
The Tennessee Supreme Court held that the mandatory minimum service requirement
of the Drug-Free School Zones Act applies only to "a defendant sentenced"
under the Act. The Court went on to explain that the decision of a trial
court to grant judicial diversion does not constitute a sentence, but
is rather a deferral of sentencing. Further, in cases where judicial diversion
is granted, no judgment of conviction is entered, and a sentence is imposed
only if the defendant fails to successfully complete the diversionary term.
The end result is plain. Just because your client is charged with a violation
of the Drug-Free School Zones Act does not automatically disqualify them
for judicial diversion.