Carol PACE, Appellant, v. STATE of Tennessee, Appellee.
Supreme Court of Tennessee.
May 29, 1978.
566 S.W.2d 861
Even more frivolous is the argument of the employer that he is not liable for the costs of the proposed surgery because it was not performed within three years following the original injury. The statute,
“For not exceeding three (3) years after notice of injury, the employer or his agent shall furnish free of charge to the employee such medical and surgical treatment (etc.) . . . as may be reasonably required; . . .”
Obviously, however, the three year period of limitations is tolled by the election of the employer to deny responsibility for such treatment. It was so held by this Court in Paristyle Beauty Salon, Inc. v. Chandler, 207 Tenn. 587, 341 S.W.2d 731 (1960).
Neither do we find any merit in the contention of the employer that the trial court, upon remand, was without authority to reopen his original decree and award benefits for temporary total disability. The necessary effect of the remand was to reopen the adjudication of permanent partial disability which the trial court had awarded in its original decree. Since permanent partial disability does not begin until temporary total disability ends, the two issues were so inextricably entwined that to reopen one necessarily amounted to reopening of the other. See Floyd v. Tennessee Dickel Distilling Co., 225 Tenn. 65, 463 S.W.2d 684 (1971).
The Court concludes that this appeal is frivolous within the meaning of
All assignments of error made by the appellant are overruled, the decree of the Chancellor is affirmed and this cause is remanded to the trial court for such further proceedings as are necessary and proper in the premises. Costs incurred upon this appeal are adjudged against the appellant.
HENRY, C. J., COOPER, HARBISON, JJ., and DAUGHTREY, Special Judge, concur.
Tennessee Ass‘n of Criminal Defense Lawyers, Robert E. Burch, Dickson, amicus curiae.
Brooks McLemore, Jr., Atty. Gen., Robert L. Tucker, Asst. Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, for appellee.
COOPER, Justice.
OPINION
This case arose in the Criminal Court of Hamilton County. The appellant, Carol Pace, protests a ruling by the trial judge of that court, holding certain portions of the pretrial diversion statute,
The appellant was indicted for fraudulent breach of trust. She asked that the district attorney place her on pretrial diversion. Upon his refusal, she petitioned the court to review his decision, pursuant to the provisions of
At the time of the appellant‘s petition,
(a) Memorandum of Understanding Permitted. In cases where the defendant does not have a previous felony conviction, the parties may by a memorandum of understanding agree that the prosecution will be suspended for a specified period, not to exceed two (2) years from the filing of memorandum of understanding, for any offense the maximum punishment for which is confinement for ten (10) years or less and/or a fine, on one or more of the following conditions to be observed by the defendant during the period:
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(b) Filing of Memorandum of Understanding and Notice. Promptly after the memorandum of understanding is made, the prosecuting attorney shall file it with the court together with a notice stating that pursuant to memorandum of understanding of the parties . . . the prosecution is suspended for a period specified in the notice. . . . Said memorandum of understanding must be approved by the trial court before it shall be of any force and effect.
The trial court shall approve said memorandum of understanding unless:
(1) Prosecution has acted arbitrarily and capriciously.
(2) Said memorandum of understanding was obtained by fraud.
(3) The diversion of the case is unlawful.
The defendant shall have a right to petition for a writ of certiorari to the trial court for an abuse of prosecutorial discretion. If the trial court finds that the prosecuting attorney has abused his discretion in failing to divert, the trial court may order the prosecuting attorney to place the defendant in a diversion status on such terms and conditions as the trial court may order. . . .
(b) * * *
(c) * * *
(d) * * *
(e) Dismissal with prejudice. The trial court shall dismiss with prejudice any warrant or charge against the defendant upon the expiration of ninety (90) days after the expiration of the period of suspension specified in the memorandum of understanding is filed [sic], provided no termination of the memorandum of understanding has been filed under the provisions of subsection (d). If the prosecution is dismissed with prejudice, jeopardy shall attach, and the court shall make a minute entry to that effect.
The last two paragraphs of subsection (b) were added by amendment in 1976, and in the same amendment, in subsection (e) the word “shall” was substituted for the phrase “may in its discretion” preceding “dismiss.”
The trial judge held the statute unconstitutional on three grounds: First, that the provision in
A statute is invalid for vagueness only when “men of common intelligence must necessarily guess at its meaning and differ as to its application.” Underwood v. State, 529 S.W.2d 45, 47-48 (Tenn.1975). We do not believe that this statute presents
As to the holding that the caption of the amending act was defective under the requirements of Article II, Section 17 of the Constitution of Tennessee, it is fundamental that defects in the caption of the amendatory act, if any, were cured through subsequent action of the legislature codifying the amendment. International Harvester Co. v. Carr, 225 Tenn. 244, 466 S.W.2d 207 (1971).
The trial judge interpreted the amendment to
The pretrial diversion act being constitutional, it follows that the trial judge was in error in dismissing appellant‘s petition for review of the prosecuting attorney‘s decision not to place appellant on pretrial diversion and in requiring appellant to stand trial on the indictment charging her with fraudulent breach of trust. Accordingly, the appellant‘s conviction and the suspension of her sentence is set aside. The case is remanded to the trial court for a review of the prosecuting attorney‘s refusal to place appellant on pretrial diversion and for
FONES, BROCK, and HARBISON, JJ., concur.
HENRY, C. J., filed concurring opinion in which FONES, J., concurred.
HENRY, Chief Justice, concurring.
This Court is called upon, for the first time, to determine the constitutionality of our pretrial diversion statutes,
While I concur generally in the conclusion reached in the majority opinion, I am persuaded that it does not contain a sufficient articulation of the significant issues involved in this controversy.
I.
Respective Insistences of the Parties
Appellant insists that the trial judge erred in holding that the pretrial diversion statutes were an unconstitutional invasion of the function of the judiciary, and that the provisions were so vague, ambiguous and uncertain as to be incapable of coherent application.
The Tennessee Criminal Defense Lawyers Association in amicus curiae brief agrees, in substance, with appellant. It insists that the Attorney General is a judicial officer and, therefore, our statutory scheme does not collide with the doctrine of separation of powers because the District Attorney General and the trial court “are of the same branch of government.”
The State Attorney General, who normally appears in litigation as a proponent of the constitutionality of state statutes, takes the position that this scheme of pretrial diversion constitutes an unconstitutional infringement upon the role of the judiciary. Simultaneously, he takes the position that
II.
The Nature of the Office of District Attorney General
It is necessary first to determine the nature of the office of District Attorney General, for if this is a judicial office, there is no substantial separation of powers problem.
The District Attorney General is a constitutional officer. Art. VI, Sec. 5, a part of the Judicial Article of our constitution, provides for an “Attorney for the State for any circuit or district, for which a Judge having criminal jurisdiction shall be provided by law.”2
This Court has not heretofore addressed the nature of the office of District Attorney General; however, in Manning v. State, 195 Tenn. 94, 100, 257 S.W.2d 6, 9 (1953), the Court, without citing any authority, stated:
The District Attorney General is a quasi judicial officer, representing the State of Tennessee. (Emphasis supplied.)
An examination of Manning, however, will reveal that this statement was made in the context of a case where the trial court was reversed because of improper argument
In the introduction to the ABA Standards Relating to the Prosecution Function, at page 18, it is stated:
The American prosecutor, representing the executive branch under a system of divided powers defined in a written constitution, is an officer of the court only in the same sense as any other lawyer.
As this Court, speaking through then Chief Justice Lansden, declared in State v. Costen, 141 Tenn. 539, 545, 213 S.W. 910, 911 (1919), “[h]e has no judicial power, and his ministerial power must be responsive to the direction of the state, which is his client.”
In People v. District Court in and for County of Larimer, 186 Colo. 335, 527 P.2d 50 (1974), the Supreme Court of Colorado declared:
While he is an officer of the court as any other attorney, a district attorney is not a judicial officer not (sic) a part of the judicial branch of the government. A district attorney belongs to the executive branch. (Emphasis supplied). 527 P.2d at 52.
The American Bar Association Standards Relating to the Prosecution Function, Sec. 1.1(a), declare:
The office of prosecutor, as the chief law enforcement official of his jurisdiction, is an agency of the executive branch of government which is charged with the duty to see that the laws are faithfully executed and enforced in order to maintain the rule of law. (Second emphasis supplied).
I have no hesitancy in holding that the District Attorney General is an officer of the executive department.3
Thus, the apparent problem of separation of powers stems from the fact that the District Attorney General and the trial judge are members of different branches of government. I regard this issue to be more apparent than real. This necessarily follows from the fact that the precise preservation of the demarcation between the three branches of government is not always possible and the boundary lines frequently tend to be fuzzy and blurred. Bank of Commerce and Trust Company v. Senter, 149 Tenn. 569, 260 S.W. 144 (1924). See also Underwood v. State, 529 S.W.2d 45 (Tenn.1975).
Appropos this discussion we quote with approval from State v. Leonardis, 73 N.J. 360, 375 A.2d 607 (1977):
The aim of the constitutional provision is not to prevent cooperative action among the three branches of government, but to guarantee a system of checks and balances. This notion of a blending of powers is expressed in various opinions by both this Court and the United States Supreme Court, interpreting the State and Federal Constitutions. In Brown v. Heymann, 62 N.J. 1, 297 A.2d 572 (1972), Chief Justice Weintraub explained:
It is well to repeat that while the doctrine of separation of powers is designed to prevent a single branch from claiming or receiving inordinate power, . . . there is no bar to cooperative action among the branches of government. On the contrary, the doctrine necessarily assumes the branches will coordinate to the end that government will fulfill its mission. [62 N.J. at 11, 297 A.2d at 578]
This same theme—approving cooperative effort among the three branches of government—was expressed by Justice
In my judgment, nothing in our pretrial diversion statutes runs counter to the doctrine of separation of powers.
III.
Prosecutorial Discretion
As a further predicate for the conclusions I ultimately reach, and after holding that the District Attorney General is not a judicial officer, I now turn to the critical question of prosecutorial discretion.
While our Constitution (Art. VI, Sec. 5) creates the office and various statutes define and assign duties to the District Attorney General (see particularly
He or she is answerable to no superior and has virtually unbridled discretion in determining whether to prosecute and for what offense. No court may interfere with his discretion to prosecute or not to prosecute, and in the formulation of this decision he or she is answerable to no one. In a very real sense this is the most powerful office in Tennessee today. Its responsibilities are awesome; the potential for abuse is frightening. Indeed, as an incident of separation of powers, the courts may not interfere with the discretion of the District Attorney in their control over criminal prosecutions. See United States v. Cox, 342 F.2d 167, at 171 (5th Cir. 1965).
This prosecutorial discretion is deeply rooted in the common law and is a vital part of our common-law tradition. But this discretion has its outer limits. When the charging process—in this state the indictment—has been completed, the disposition of the charge becomes a judicial function.
Under Tennessee law prior to the adoption of the pre-trial diversion statutes, there were two basic methods for the termination of a criminal prosecution, viz:
a) by verdict or judgment
b) by the entry of a nolle prosequi.4
Pre-trial diversion is a third method of termination; but it is obvious that it is not a termination pursuant to a finding of guilt or innocence. It does, however, partake of the nature of a nolle prosequi. Therefore, it is appropriate that we examine the nature of the District Attorney General‘s involvement in cases wherein a criminal case is nolled.
As is pointed out in Commonwealth v. Kindness, 247 Pa.Super. 99, 371 A.2d 1346 (1977):
The authorities are virtually unanimous that the historical power to “nol pros” belonged at common law solely to the Attorney General and remains an exclusive prosecutorial power in the absence of a state constitutional or statutory provision to the contrary. 371 A.2d at 1349.5
This firmly entrenched common-law rule has been abrogated in Tennessee.
After indictment found, no criminal prosecution can be dismissed, discontinued, or abandoned without leave of the court.
In State v. Costen, supra, this Court, citing 12 Cyc., 374, defined a nolle prosequi as being
a formal entry of record by the attorney-general by which he declares that he will no longer prosecute the case. 141 Tenn. at 545, 213 S.W. at 911.
After so defining it the Court stated:
The judge has no participation in it, except to give his consent to such order, and permit its entry upon the record. We are not unmindful of the fact that this power has been exercised by the attorneys-general in this State for many years, but the right to so exercise it is not conferred by the Constitution. The legislature, therefore, has the power to take it away, and when it does so it is not an interference, in a constitutional sense, either with the judicial power of the State, or the ministerial duties of the attorneys-general. With the policy of the statute neither we nor the attorneys-general have anything to do. It is a plain mandate of the legislature to which we must all bow. (Emphasis supplied). 141 Tenn. at 545, 213 S.W. at 911.
It is obvious under
These considerations necessitate a discussion of the purpose and nature of pre-trial diversion and require an analysis of this procedure in the light of the respective responsibilities of the District Attorney General and the Trial Judge.
IV.
The Purpose and Nature of Pre-trial Diversion
The self-evident purpose of pre-trial diversion is to spare appropriately selected first offenders the stigma, embarrassment and expense of trial and the collateral consequences of a criminal conviction. The result contemplated is the restoration of successful divertees to useful and productive citizenship. This is a legitimate and praiseworthy objective and one that has now become the public policy of the State.
While pre-trial diversion is relatively new,6 various courts have discussed the nature of the concept. We examine some of these decisions.
In People v. Superior Court of San Mateo County, 11 Cal.3d 59, 113 Cal.Rptr. 21, 520 P.2d 405 (1974), the California Supreme Court held that the decision to divert is “an exercise of judicial power [and] cannot constitutionally be subordinated to a veto of the prosecutor.”7 11 Cal.3d at 65, 113 Cal.Rptr. at 25, 520 P.2d at 409.
The Court made this pertinent observation:
The judicial power is compromised when a judge, who believes that a charge should be dismissed in the interests of justice, wishes to exercise the power to dismiss but finds that before he may do so he must bargain with the prosecutor. The judicial power must be independent, and a judge should never be required to pay for its exercise. 11 Cal.3d at 64, 113 Cal.Rptr. at 25, 520 P.2d at 409.
In a companion case, Sledge v. Superior Court of San Diego County, 11 Cal.3d 70, 113 Cal.Rptr. 28, 520 P.2d 412 (1974), the California Court held that the “preliminary screening for eligibility conducted by the district attorney . . . [under] standards prescribed by the statute” is not judicial in character and does not violate the constitutional requirement of separation of powers. This holding is in the context of a suggested invasion upon the power of the judiciary. Further it is in the context of a statutory scheme which, unlike ours, gave “no indication [that] the Legislature intended the prosecution to be interrupted for interlocutory review of this issue.” 11 Cal.3d at 76, 113 Cal.Rptr. at 32, 520 P.2d at 416.
I agree that the action of the District Attorney under Tennessee law is not judicial, strictly speaking, and that conferring upon him the right to make a tentative determination of eligibility does not, in any sense, infringe upon the prerogatives of the judicial branch.
Perhaps the most comprehensive treatment of the concept of pre-trial diversion and of the underlying issues is State v. Leonardis, 73 N.J. 360, 375 A.2d 607 (1977). The principal issue there addressed was “whether, in light of the doctrine of separation of powers, the Court had the power, either before or after indictment, to divert a defendant over the prosecutor‘s objection.” 375 A.2d at 610-611.
The Court held that (1) “great deference should be given to the prosecutor‘s determination not to consent to diversion,” 375 A.2d at 618; (2) the scope of review was narrow and limited; (3) the decision lies first with the program director and prosecutor; and (4) there is a heavy burden upon the defendant to overcome a prosecutorial veto.8
In reaching these conclusions the Court considered a number of issues. First, it disposed correctly, in my view of the separation of powers issue by holding that the decision to divert a criminal defendant is a “quasi-judicial” function. After so doing, the Court said:
Our recognition that the decision to admit or reject an applicant for pretrial intervention is an exercise of quasi-judicial power obviates our need to discuss the analogies that the parties draw between [pretrial diversion] programs and administrative agencies. Within a wholly judicial sphere we are not confronted by potential conflicts with either the executive or the legislative branches of our government; similarly, we are not faced with the need to defer to the expertise of an administrative body. (N.J. Court‘s emphasis). 375 A.2d at 615.9
I regard this as a valid distinction. Even if pre-trial diversion be classified as wholly executive and nonjudicial in character, it is a procedure operating wholly within the milieu of the judicial department and the conventional separation of powers dichotomy would have no relevance.
Next, the Leonardis Court asserted the authority of the courts to review prosecutorial decisions upon a “showing of patent and gross abuse.” But, said the Court, even absent the quasi-judicial nature of diversion, the review “would be consistent with the traditional role which courts have exercised in safeguarding individuals from abusive governmental action“; and the Court noted that “[t]he judiciary is commonly called upon to review the rationality of
Finally, the Court noted that “diversion entails more than merely the charging function, and hence, cannot be said to fall solely within the discretion of the prosecutor.” 375 A.2d at 617.
V.
Conclusion
Pre-trial diversion, a procedural alternative to traditional system of prosecution followed, in appropriate instances, by post-trial probation, is essentially judicial in character. As a minimum it is quasi-judicial.
It represents a declaration of public policy by the legislature that diversion of certain classes of offenders from the normal criminal process, in an effort to rehabilitate and restore them to useful and productive citizenship and simultaneously to conserve judicial manpower and reduce court congestion, is in the public interest. This is a legitimate end of government.
Diversion may not be regarded as a mere extension of the charging process. It does not come into play until after indictment.10 The plan of diversion, or the denial thereof, follows indictment and comes after the prosecutor has fully discharged all discretionary functions and after the prosecutorial die has been cast. Once committed to prosecution, the case is before the court for disposition. The process, at this stage, becomes fundamentally judicial and must end in a verdict, a nolle or pre-trial diversion.
Diversion may be viewed as a specialized and conditional nolle prosequi or as a pre-trial probation system or as a wholly new, novel and innovative idea. The result in either event is the same: the jurisdiction of the court has been invoked by indictment and disposition becomes a judicial responsibility.
I do not view the statute as constituting any significant infringement upon the function of the prosecutor. In point of fact, it imposes no restraint upon his right to prosecute or to decline to prosecute. The Court only reviews his action after the matter is pending before the Court. The Court‘s traditional role of presiding over the disposition of pending litigation is accomplished independent of the inclination and insistences of counsel.
Nor do I regard it as an invasion upon the prerogatives of the trial judge. It is true that his review is limited—and properly so. The action of the prosecutor is presumptively correct and it should only be set aside on the basis of patent or gross abuse of prosecutorial discretion.
The memorandum of understanding is only effective when it has been approved by the trial judge. It is true that his approval is mandatory except when the District Attorney General has acted arbitrarily and capriciously [“patent or gross abuse of discretion“] or the memorandum was procured by fraud or the diversion is unlawful. See
But these exceptions are applicable only when an agreement has been reached and a memorandum of understanding has been filed. Clearly, it is within the province of the legislature to require the approval of an agreement made by the parties. This is the procedure by which the public policy directive is enforced.
In those cases where the parties are unable to agree and do not enter into a memorandum of understanding, the trial judge is given the right to review the case for an abuse of prosecutorial discretion.
Because pre-trial diversion is, in effect, pre-trial probation, I consider it a fair approach to read into the statute the provisions of
These are among the considerations involved in determining whether there was an abuse of prosecutorial discretion.
As we observed in Stiller v. State, 516 S.W.2d 617, 622 (Tenn.1974):
“The whole horizon of criminal justice is dotted with discretion—from whether to arrest; whether to allow bail and how much; whether to prosecute and for what; whether to plea bargain and what to accept or to reject . . .”
All these functions rest within the unbridled and undefined discretion of the District Attorney. I cannot say that trial judges are unable to review a prosecutorial decision to withhold diversion merely because the statute contains no glossary of terms.
I find Tennessee‘s pretrial diversion statutes to be constitutional in all respects.
I would vacate the judgment of the trial court, direct that the record of conviction be expunged and remand for an evidentiary hearing on the question of whether the action of the District Attorney in failing to agree to pre-trial diversion, was arbitrary or capricious.
Justice FONES concurs in this opinion.