The Associated Press

FRANKFORT - A circuit court judge cannot grant "pretrial diversion" to a criminal defendant over the prosecutor's objection, the Kentucky Supreme Court said in a ruling Thursday.

The opinion was issued in two consolidated appeals from Kenton County, where one defendant's application for diversion was denied but that of a second defendant was granted. The commonwealth's attorney objected in both cases.

In the first case, involving a drug defendant, Kenton Circuit Judge Gregory M. Bartlett concluded that, absent the prosecutor's agreement, he had no authority to approve diversion.

In the second case, Kenton Circuit Judge Douglas M. Stephens approved diversion for a theft defendant despite the prosecutor's opposition.

In circuit courts, defendants charged with certain low-level felonies can be diverted - avoid jail - provided they plead guilty or enter an Alford plea, which is not an admission of guilt but an acknowledgment that enough evidence exists for conviction.

If the defendant later strays, the trial court can revoke the diversion and enter a judgment on the plea.

In approving diversion for defendant Jimmy Elliott, Stephens reasoned that pretrial diversion was simply an additional sentencing option. But the Supreme Court disagreed.

Writing for the court, Justice James Keller said diversion, unlike a sentence of imprisonment, probation or conditional discharge, "permits a defendant who successfully completes diversion to avoid a felony conviction entirely. And we conclude that this interruption of prosecution prior to final disposition requires the commonwealth's agreement."

The Supreme Court reversed the diversion order for Elliott and sent his case back for further action.