Delinquent/Unruly Proceedings

215

Rule 202: Pretrial Diversion.

(a)  Pretrial Diversion Agreement.  If the designated court officer determines that the matter is appropriate for pretrial diversion, the pretrial diversion agreement shall be in writing and signed by the child, the child’s parent, guardian or other legal custodian and the designated court office. The agreement must be approved by the court before it is of any force and effect.

(b) Consent.  The pretrial diversion shall not occur without consent of the child and the child’s parent, guardian or other legal custodian.

(c) Time Limits.  The pretrial diversion process may continue for a period up to 6 months, unless the child is discharged sooner by the court. Upon application of any party made prior to the expiration of the initial time period, and after notice and a hearing, the diversion may be extended for a period not to exceed an additional 6 months.

(d)  Modification. The parties, by mutual consent and with court approval, may modify the requirements of the agreement at any time before its termination.

(e)  Violation of Pretrial Diversion.  If failure to comply with the agreement is alleged, the child shall be given written notice of the alleged violation and an opportunity to be heard on that issue prior to the reinstatement of proceedings pursuant to the original charge. Notice of the failure to comply must be filed prior to the expiration of the pretrial diversion. The filing of the notice extends the period of pretrial diversion pending a prompt hearing on the merits of the alleged violation.

(f)  Statements of Child.  Any statements made by the child during the preliminary inquiry or pretrial diversion are not admissible in any proceeding prior to the dispositional hearing. 

Advisory Commission Comments.

The procedures set forth in this rule essentially allow for a process similar to informal adjustment, with no official finding as to guilt; however, because conditions of a pretrial diversion may be more demanding than those allowed in an informal adjustment there must be court approval of any agreement. Prior to determining whether a case is appropriate for pretrial diversion, the designated court officer should follow the procedures in Rule 201(a)–(c), regarding the preliminary inquiry.

Courts should develop written local procedures and criteria for initiating pretrial diversion. Such criteria might include a listing of the types of cases, or charges, which might be handled by pretrial diversion. Pretrial diversion might be initiated by the parties or by the court itself, through motion or through whatever other procedure the court determines is appropriate. Local rules and procedures should ensure the district attorney general is notified of cases in which pretrial diversion is being considered, in light of the legitimate public interest in the disposition of more serious cases.

Pursuant to T.C.A. § 37-1-110, if the child completes the pretrial diversion agreement, the case is dismissed. If the court, or the designated court officer, determines that the case is serious enough that such dismissal should not occur, the case should proceed to court as in any other case warranting official court action, and,

if the child readily admits guilt and wishes to negotiate a settlement based upon a plea of guilty, such negotiated settlement should be handled in accordance with Rule 209.

[As amended by order filed December 21, 2016, effective July 1, 2017.]

Advisory Commission Comments [2017].

The rule is amended by deleting the first sentence of subdivision 202(d) and changing the title to "Modification." That sentence (which provided, "In addition to any counsel and advice authorized for an informal adjustment, sanctions, including, but not limited to community service work and monetary restitution may be made a part of the agreement") was intended to have been deleted in the comprehensive revision of the Rules of Juvenile Procedure effective July 1, 2016, but was inadvertently included in the revision.

Additionally, the last sentence of the first paragraph of the original Advisory Commission Comment is deleted, because it also should have been removed in the  comprehensive revision of the Rules of Juvenile Procedure.

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