Tennessee Criminal Defense

Drug Free School Zone Not a Bar to Judicial Diversion

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, childcare 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 such violation.

. . .

(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.

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