State v. Brian Sullivan ( 2000 )


Menu:
  •             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT JACKSON
    May 2000 Session
    STATE OF TENNESSEE v. BRIAN SULLIVAN
    Appeal as of Right from the Criminal Court for Shelby County
    No. 98-14049   Chris Craft, Judge
    No. W1999-00941-CCA-R3-CD - Filed October 23, 2000
    The appellant, Brian Sullivan, entered a plea of nolo contendere in the Shelby County Criminal
    Court to one count of attempted aggravated sexual battery, a Class C felony. The trial court
    sentenced the appellant to a term of three (3) years, suspended. On appeal, the appellant argues that
    the trial court erred in denying his petition for judicial diversion. After a review of the record before
    this Court, we conclude that because the appellant was convicted of a sexual offense, he is statutorily
    ineligible for judicial diversion. Therefore, the judgment of the trial court is affirmed.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court of Shelby County
    Affirmed
    JERRY SMITH, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR., and
    ROBERT W. WEDEMEYER , JJ, joined.
    Robert M. Brannon, Jr., Memphis, Tennessee attorney for the appellant, Brian Sullivan.
    Paul G. Summers, Attorney General and Reporter, Mark E. Davidson, Assistant Attorney General,
    Nashville, Tennessee and William L. Gibbons, District Attorney General, James Wax, Assistant
    District Attorney, attorneys for the appellee, State of Tennessee.
    OPINION
    In November 1998, the appellant was charged with one (1) count of aggravated sexual battery1, and
    several months later, he entered a plea of nolo contendere to one (1) count of attempted aggravated
    sexual battery. Subsequently, the appellant filed a petition for judicial diversion pursuant to
    Tennessee Code Annotated section 40-35-313, and after an evidentiary hearing, the trial court denied
    diversion, finding that the appellant was not an appropriate candidate.
    1
    The indictment also charged two (2) additional counts; however, those counts were
    subsequently dismissed by the state.
    In his sole issue on appeal, the appellant contends that the trial court abused its discretion in
    denying judicial diversion. However, we need not reach this issue because the appellant is statutorily
    ineligible for diversion. Judicial diversion is governed by Tenn. Code Ann. § 40-35-313. Under
    Tenn. Code Ann. § 40-35-313(a)(1)(B) (1997), “no defendant, who is found guilty of or pleads guilty
    to a sexual offense, shall be eligible for deferral of further proceedings and probation as authorized
    by this section.” Attempted aggravated sexual battery is a “sexual offense” within the meaning of
    this provision. See Tenn. Code Ann. § 40-35-313(a)(1)(B)(iii) and (viii).
    The appellant entered a plea of nolo contendere to one (1) count of attempted aggravated
    sexual battery. “A plea of nolo contendere admits every essential element of the offense, . . . and it
    is tantamount to an admission of guilt for purposes of the case in which the plea is entered.” Teague
    v. State, 
    772 S.W.2d 932
    , 943 (Tenn. Crim. App. 1988); see also State v. Bilbrey, 
    816 S.W.2d 71
    ,
    75 (Tenn. Crim. App. 1991) (“[a] nolo contendere plea has the same effect as a guilty plea, . . .”).
    By accepting the appellant’s plea of nolo contendere to attempted aggravated sexual battery, the trial
    court entered a finding a guilt as to this offense. Therefore, we hold that when a defendant enters
    a plea of nolo contendere to a “sexual offense” as defined by Tenn. Code Ann. § 40-35-
    313(a)(1)(B)(i) - (viii), he is ineligible for judicial diversion under the statute.
    The appellant was convicted of a “sexual offense” as defined in the judicial diversion statute
    and, as a result, is ineligible for judicial diversion. Accordingly, the trial court’s judgment denying
    the appellant’s petition for judicial diversion is affirmed.
    ___________________________________
    JERRY SMITH, JUDGE
    -2-
    

Document Info

Docket Number: W1999-00941-CCA-R3-CD

Judges: Judge Jerry Smith

Filed Date: 10/23/2000

Precedential Status: Precedential

Modified Date: 10/30/2014