In State v. Winsett, 882 S.W.2D 806 (Tenn. Crim. App. 1993), Now Justice

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
MARCH 1996 SESSION
July 9, 1996
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
)
Appellee, ) No. 03C01-9509-CC-00285
)
) Sevier County
v. )
) Hon. Rex Henry Ogle, Judge
)
CHRIS RAMEY, ) (Pretrial Diversion Denial)
)
Appellant. )
CONCURRING OPINION
I concur in affirming the trial court. However, I believe that the record on
appeal is adequate for full appellate review on the merits.
In State v. Winsett, 882 S.W.2d 806 (Tenn. Crim. App. 1993), now Justice
A.A. Birch discussed appropriate procedures for pretrial diversion. The opinion
indicates that all of the materials considered by the prosecutor are to be filed with the
trial court by a defendant with the defendant’s petition for writ of certiorari. Id. at 810.
In this respect, Winsett indicates that the trial court may decide the cause upon receipt
of the petition and the attached record, if an evidentiary hearing is unnecessary. I
believe the Winsett procedure1 was basically followed in this case.
The appellant’s petition is marked filed on April 17, 1995, and states that
his “petition to enter into a memorandum of understanding with accompanying materials
in support thereof have been filed with the court and are incorporated herein by
reference,” and that the prosecutor’s denial letter was incorporated by reference and
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The record reflects that the parties and the trial court were fully aware of W insett and its
teachings, although its case style is misnamed in the record.
attached to the petition. The trial court clerk certified that the record on appeal
contained all the papers filed in the trial court in this case. The transcript of the
arguments of counsel and comments by the trial court reflect that the trial court was
considering the trial court record before it.
Although the record before us could be more specific in terms of showing
that it is the same record that was presented to the prosecutor and the trial court, I
believe it is sufficient under Winsett to allow us to review all of the materials with
adequate confidence that it is the correct record. In any event, it shows that the denial
was justified as explained in the majority opinion.
_____________________________
Joseph M. Tipton, Judge
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