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What do you mean it’s a conviction? I received Judicial Diversion!

by | Sep 25, 2015 | Criminal Defense |


Judicial Diversion is a part of Tennessee criminal law that tends to help people out the first time they get into trouble with the law. It can essentially be a second chance at keeping a clean record.

The gist of it is that it allows certain people who have never had a criminal conviction to plead guilty, successfully complete probation, and then at the end have their entire case dismissed and expunged. With an expunged case, the record in the clerk’s office is literally destroyed and it is not a conviction (under Tennessee law) on your record. It is as if it never existed in the first place.

You only get one shot at diversion, but it can be a great help. The big problem here is if you are not a U.S. citizen, there is absolutely no difference in pleading guilty under Judicial Diversion or pleading guilty in the normal sense (or even being found guilty after a trial). Due to the Federal definition of “conviction,” as opposed to the Tennessee definition, a plea under Judicial Diversion will follow you as a permanent conviction for all immigration purposes. Remember, we live in a dual federal/state world. And if you are not a U.S. citizen, there are important considerations to make when facing this dilemma.

If you are a permanent resident and you plead guilty under Judicial Diversion to an offense, you’re still going to have to report it to DHS when you apply to renew your permanent resident card or apply for naturalization. This can be a problem when the entire case has been destroyed. Typically DHS will have only the initial charge against you, and it will be your burden to prove what actually happened. So if you plead to a lesser offense, but have no documentation because the file has been destroyed, you can be in a mess. Moreover, you may have plead guilty to an offense that now permanently bars you from becoming a U.S. citizen.

Defense attorneys are required under the U.S. Supreme Court case Padilla v. Kentucky, to advise their clients as to the immigration consequences of their conviction. The problem we have run into is that defense attorneys with little or no experience with immigration law will tell their clients that “since Judicial Diversion is not a conviction, it will have no impact on their immigration status.” This is completely false.

The problem gets worse when you realize your attorney gave you bad advice. If the case has already been dismissed and expunged, you have no recourse under Tennessee law because the Tennessee Supreme Court has determined that because there was no “conviction” (under Tennessee law), they do not have any jurisdiction to hear a petition for post-conviction relief on the grounds of ineffective assistance of counsel.

Therefore, you need to think twice about applying for or accepting Judicial Diversion, and you need to make sure you hire a defense attorney who fully understands all of the immigration implications. Part of your defense may include looking for acceptable alternatives, such as Pretrial Diversion (similar name) which is not a conviction under Tennessee or federal law. These minefields can be tough to navigate, so hire an attorney experienced with these issues who can give you up-to-date and proper advice.