State of Tennessee v. Marcus J. Turco

This is an appeal by the State of Tennessee from an order granting the defendant judicial diversion for the offense of sexual battery. This order was the result of a Tenn. R. Crim. P. 35 motion to reduce a previously ordered sentence of one year in the county jail with all time suspended and supervised probation for one year. Although the Tenn. R. Crim. P. 35 motion was timely filed, the trial court did not act upon the motion until after the original probated sentence had been fully served and expired. Two issues of first impression are presented in this appeal. We conclude that (1) judicial diversion is not a “sentence” and, therefore, may not be granted as Rule 35 relief; and (2) a trial court may not modify a sentence under Rule 35 after the sentence has been fully served and expired. Accordingly, we reverse the judgment of the trial court.