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State v. Hurt

Court of Criminal Appeals of Tennessee, Knoxville

December 18, 2017

STATE OF TENNESSEE
v.
MICHAEL NELSON HURT

          Session September 20, 2017

          Appeal from the Criminal Court for Hamblen County Nos. 15-CR-476, 15-CR-477, 15-CR-478, 15-CR-479, 16-CR-073 Alex E. Pearson, Judge

         Defendant, Michael Nelson Hurt, pled guilty to official misconduct and theft of property valued over $1000 and accepted an out-of-range sentence of six years' probation. Defendant applied to the trial court for judicial diversion, which the trial court denied. On appeal, Defendant argues that the trial court erred in failing to consider all of the common law factors in determining Defendant's suitability for diversion, resulting in a sentence that is disproportionately punitive. Upon our review of the record, we affirm the judgments of the trial court but remand the case for the entry of judgment forms on each charge that was disposed of by way of the plea agreement.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed and Remanded

          Troy L. Bowlin II, Morristown, Tennessee, for the appellant, Michael Nelson Hurt.

          Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney General; Dan E. Armstrong, District Attorney General; and Richie Collins, Assistant District Attorney General, for the appellee, State of Tennessee.

          Timothy L. Easter, J., delivered the opinion of the court, in which Robert W. Wedemeyer, J., joined. Norma McGee Ogle, J., concurring in results only.

          OPINION

          TIMOTHY L. EASTER, JUDGE

         Factual and Procedural Background

          The Hamblen County Grand Jury issued a presentment charging Defendant with one count of official misconduct in case number 15-CR-476 and one count of theft of property valued over $1000 but less than $10, 000 in case number 15-CR-478.[1]Defendant pled guilty as charged in those two cases in exchange for a negotiated out-of-range sentence of six years on each count to be served concurrently and restitution in the amount of $4829.50.[2] The parties agreed that Defendant would serve his sentence on probation and that he could seek judicial diversion at the trial court's discretion.

         On November 18, 2016, the trial court held a hearing to accept Defendant's guilty plea and to determine the issue of judicial diversion. In lieu of a formal presentation of the facts, Defendant agreed that the State could submit a written statement of the evidence. While that written statement is not included in the record on appeal, the State provided the following summary of the facts during the trial court's consideration of judicial diversion:

Judge, as the Court is aware, [Defendant] was an employee of the Morristown Police Department for many years. He was actually a detective sergeant. As part of his duties, judge, he was in charge of the impound lots. Specifically, as it relates to this case, he was in charge of vehicles that had been subjected to civil seizures.
And for those vehicles whose owners had negotiated their return with the Department of Safety, he would collect those monies from those individuals and return those vehicles to their respective owners and then deposit that money into the City of Morristown's treasury, into their account.
Had this case gone to trial, the [S]tate would have put on proof that there were three instances involving automobiles. One count involved the negotiated return was [sic] five thousand. That was paid to [Defendant]. One thousand of that was deposited. Four thousand was not. There was four thousand dollars ...

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