Rule 38. Appeal of Denial of Pretrial Diversion.

A defendant who seeks and is denied pretrial diversion pursuant to T.C.A. § 40-15-105 shall have the right to petition for a writ of certiorari to the trial court for an abuse of prosecutorial discretion. If the trial court finds that the prosecuting attorney has not committed an abuse of discretion in failing to grant pretrial diversion, the defendant may pursue an interlocutory appeal pursuant to either Rule 9 or Rule 10 of the Tennessee Rules of Appellate Procedure. In the event that the defendant does not pursue an interlocutory appeal, the defendant shall have the right to appeal the decision of the trial court denying the petition for writ of certiorari pursuant to Tennessee Rule of Appellate Procedure 3(b) following the entry of the final judgment in the trial court.

[Adopted effective July 1, 1997.]

Committee Comment:
This rule changes prior case law and practice regarding appeal of the denial of pre-trial diversion from the trial court.  The new rule provides the methods by which denials of pre-trial diversion can be appealed.  A failure to pursue an interlocutory appeal would not result in a waiver of the issue on direct appeal.