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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE
May 2000 Session STATE OF TENNESSEE v. RICHARD ALLAN FRYE
Appeal from the Criminal Court for Sullivan County No. S42,445 Phyllis H. Miller, Judge

No. E1999-01564-CCA-R9-RL September 29, 2000 This appeal arises from the order of the Sullivan County Criminal Court upholding the district attorney general's refusal to accept the application of the defendant for pretrial diversion. The defendant asserts that the trial court erred in failing to determine that the district attorney general abused his discretion by relying on facts not supported by the evidence and by failing to consider all relevant factors. We conclude that substantial evidence was before the district attorney general to support the validity of each of the four factors relied on in denying pretrial diversion and that the district attorney general considered all relevant factors. Accordingly, the judgment of the trial court is affirmed. Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Criminal Court Affirmed ALAN E. GLENN , J., delivered the opinion of the court, in which THOMAS T. WOODALL and JOHN EVERETT WILLIAMS, JJ., joined. Nat H. Thomas, Kingsport, Tennessee (on appeal) and Gilbert E. Torbett, Bristol, Tennessee (at trial) for the appellant, Richard Allan Frye. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Robert H. Montgomery, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. OPINION The defendant, Richard Allen Frye, appeals by permission the order of the Sullivan County Criminal Court upholding the district attorney general's refusal to accept the defendant's application for pretrial diversion. The defendant alleges that the trial court erred in failing to determine that the district attorney general abused his discretion by relying on factors not supported by any substantial evidence and by failing to fully consider all relevant factors. We conclude that the trial court properly determined that the district attorney general acted within his discretion in denying the defendant's application for pretrial diversion. Accordingly, the judgment of the trial court is affirmed.

FACTS The record establishes that the defendant drove James Wyant on December 5, 1998, at approximately 5:30 a.m. to a business location on Volunteer Parkway in Bristol, Tennessee. Wyant, a twenty-three-year-old, got out of the defendant's car, putting on a black, full-faced toboggan and gloves and taking a claw hammer with him. Wyant proceeded to break into a business called "Wayne's." An alarm sounded when the front door of the business was broken, and the defendant drove away. Inside "Wayne's," Wyant broke a glass display case and stole a number of Beanie Babies valued at less than $500. The owner of the building heard the alarm and, upon investigating, saw Wyant standing close to a tree on the lawn of the Bristol Tennessee Electric Company, which was next door. The owner and his son wrestled Wyant to the ground and held him until the police arrived. Wyant's first version of the events was that a man named "Greg" had picked him up in Glade Springs, Virginia. According to Wyant, it was Greg who had the gloves, hammer, and toboggan and told him that they were going to commit a burglary. Greg was supposed to wait for him in front of the electric company and drive them both away after the burglary. Once the alarm sounded, Greg left. Wyant later admitted that the person who drove him to the scene of the burglary was the defendant. Wyant claimed that the defendant threatened to perform a sexual act on him if he did not commit the burglary and that he was afraid the defendant would harm him. He also claimed that the defendant had given him Valium and alcohol. Wyant stated that he left a change of clothes, keys, and an electronic organizer in the defendant's car. Still later, in a telephone conversation with Detective Jim Breuer, Wyant claimed that the defendant had not been involved at all. After Detective Breuer warned Wyant of the seriousness of committing perjury, Wyant admitted that the defendant had asked him to lie and corroborate the defendant's story. The defendant claimed that he let Wyant out of the car in front of the electric company on Volunteer Parkway so that Wyant could urinate and that he had no idea Wyant planned a burglary until he heard the alarm. At that point, the defendant panicked and drove off. The defendant also disposed of all Wyant's belongings left in his car. The defendant was indicted on March 17, 1999, for conspiracy to commit burglary, a Class E felony, and tampering with evidence, a Class C felony. The defendant, through counsel, applied for pretrial diversion, which was formally denied by letter from the Office of the District Attorney General dated June 14, 1999. The defendant filed a writ of certiorari with the Sullivan County Criminal Court in conformity with Tennessee Code Annotated Section 40-15-105(b)(3) (Supp. 1999), for review of the denial of his application, claiming that the district attorney general abused his discretion in refusing to grant the diversion request, and requesting an evidentiary hearing on the matter.1
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Evidentiary hearings on the petition for certiorari must be used "only to resolve any factual disputes raised by the prosecutor or the defendant . . ., but [trial courts are] not to hear additional evidence. . . ." State v. Curry, 988 S.W.2d 153, 15 7-58 (T enn. 19 99). Here, the petition for certiorari failed to identify any "disputed fact." Although at (continu ed...)

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Pursuant to the petition for certiorari, a hearing was held by the trial court on October 7, 1999. The hearing consisted solely of the arguments of counsel, defense counsel being the first to argue, and the comments and rulings of the court. No additional proof was presented. Following the hearing, the trial court determined that the district attorney general had not abused his discretion in denying the defendant's application and set the matter back on the docket. The defendant applied to the trial court for permission to appeal its order to this court, and the trial court granted permission to appeal. This interlocutory appeal is now before us for disposition. ANALYSIS Our legislature has provided that the decision to grant pretrial diversion should rest within the discretion of the district attorney general. See Tenn. Code Ann.

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