Diversion and Persistent Felony Offender (PFO)

The Kentucky Supreme Court decided in Commonwealth v. Richard Derringer, 386.S.W.3d 123 (2012), that a diversion conviction cannot be used to form the basis of a PFO charge because the defendant has not been sentenced.  The Supreme court held that Pretrial Diversion is an ‘interruption of prosecution.’  A prior felony cannot be the basis of a PFO charge unless the sentence for the conviction had been imposed at the time the Defendant commits the present crime.