tncode

Chapter 1
Jurisdiction and Venue

40-1-101 — 40-1-103. [Reserved.]

Where cotton, tobacco, produce or other personal property is sold or pledged in violation of § 39-14-116, the courts in the county where the office or place of business of the person or persons having made advances on the produce or property is situated shall have jurisdiction of the cases arising under § 39-14-116, and of the person violating it.

Acts 1879, ch. 131, § 2; Shan., § 6587; Code 1932, § 10971; modified; T.C.A. (orig. ed.), § 40-111.

Cross-References. Circuit court jurisdiction, § 16-10-102.

Jurisdiction of Mississippi River, §§ 4-1-103, 4-1-104.

Venue, Tenn. R. Crim. P. 18, 21.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 16.52, 16.53, 26.44.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241.

The Tennessee Court System — Criminal Court (Frederic S. Le Clerq), 8 Mem. St. U.L. Rev. 319.

40-1-105. False affidavit to obtain parole or pardon.

The venue in case of a violation of § 39-16-703 in making a misstatement of fact in an affidavit used or intended to be used in securing a parole or pardon for any misdemeanant or felon in this state shall be in the county where the affidavit was made, if it was made in any county in Tennessee, and also in the county of this state where the officer or board has its place of business. In case the affidavit is made before some officer outside the limits of this state, then the venue shall be the county in this state where the officer or board with whom the affidavit is filed has its regular place of business.

Acts 1919, ch. 73, § 2; Shan. Supp., § 6700a2; Code 1932, § 11079; modified; T.C.A. (orig. ed.), § 40-113.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 26.44.

40-1-106. Officials defined as magistrates.

The judges of the supreme, appellate, chancery, circuit, general sessions and juvenile courts throughout the state, judicial commissioners and county mayors in those officers' respective counties, and the presiding officer of any municipal or city court within the limit of their respective corporations, are magistrates within the meaning of this title. The judges of chancery and circuit courts have statewide jurisdiction to issue search warrants pursuant to chapter 6, part 1 of this title in any district.

Code 1858, § 4943; Shan., § 6904; Code 1932, § 11428; Acts 1973, ch. 48, § 1; 1978, ch. 933, § 2; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 40-114; Acts 1993, ch. 115, § 3; 1993, ch. 241, § 55; 2003, ch. 90, § 2; 2019, ch. 486, § 14.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

Amendments. The 2019 amendment added the second sentence.

Effective Dates. Acts 2019, ch. 486, § 15. July 1, 2019.

Cross-References. Magistrates defined, §§ 40-5-101, 40-5-102.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 3.2, 18.81, 18.82.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 19; 17 Tenn. Juris., Justices of Peace and General Sessions Courts, §§ 21, 23.

Attorney General Opinions. Judicial commissioners acting as magistrates, OAG 97-093 (6/26/97).

County judicial commissioners are vested with the authority to make a probable cause determination on a warrantless arrest, OAG 01-038 (3/19/01).

40-1-107. Courts vested with original jurisdiction.

Original jurisdiction of criminal actions is committed to the courts of general sessions, city judges of certain towns and cities, the circuit courts, the criminal courts and the court for the trial of impeachments.

Code 1858, § 4965; Shan., § 6926; Code 1932, § 11466; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 40-115; Acts 1993, ch. 115, § 4.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Courts, § 19; 17 Tenn. Juris., Jurisdiction, § 22.

Attorney General Opinions. After a finding of “not guilty by reason of insanity” in a trial in general sessions court, the court has jurisdiction to order the 60 to 90 day (now 30 to 60 days) evaluation required by T.C.A. § 33-7-303, but only in misdemeanor cases where the defendant waives in writing an indictment, presentment, grand jury investigation, and jury trial and the district attorney general does not object, OAG 01-041 (3/19/01).

The district attorney general is the only person with authority to prosecute a State of Tennessee criminal offense in a municipal court. OAG 13-85, 2013 Tenn. AG LEXIS 86 (11/6/13).

NOTES TO DECISIONS

1. Municipal Courts.

While ordinarily the jurisdiction of municipal courts is limited to cases involving violations of municipal ordinances, it may be extended by the legislature to cases arising under state law. Moore v. State, 159 Tenn. 468, 19 S.W.2d 233, 1928 Tenn. LEXIS 109 (1929).

2. Subject Matter Jurisdiction.

Because defendant was found guilty of violating a municipal ordinance, the court of criminal appeals was without subject matter jurisdiction to consider the case, and thus, it had to transfer the case to the court of appeals for further adjudication; a circuit court order found defendant guilty of violating a city ordinance for failure to adhere to a stop sign. City of McMinnville v. Hubbard, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 104 (Tenn. Crim. App. Feb. 20, 2019).

40-1-108. Original jurisdiction of circuit and criminal courts.

The circuit and criminal courts have original jurisdiction of all criminal matters not exclusively conferred by law on some other tribunal.

Code 1858, § 4967; Shan., § 6928; Code 1932, § 11467; T.C.A. (orig. ed.), § 40-116.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 16.55, 24.10.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 18; 8 Tenn. Juris., Criminal Procedure, § 20; 17 Tenn. Juris., Jurisdiction, § 22.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

NOTES TO DECISIONS

1. Soldiers — Civil War.

Officers and soldiers of the United States army in Tennessee during the Civil War were not subject to the laws or amenable to the tribunals of the hostile country. Coleman v. Tennessee, 97 U.S. 509, 24 L. Ed. 1118, 1878 U.S. LEXIS 1480 (1879).

2. Jurisdiction.

Construed together, T.C.A. §§ 39-13-203 and 40-1-108 limited the chancery court's exercise of subject matter jurisdiction over defendant's declaratory judgment action seeking to enjoin his execution on the ground he met the criteria for intellectual disability because the grant of subject matter jurisdiction to the chancery court had to be express, and there was no such express grant in the intellectual disability statute. Payne v. Carpenter, — S.W.3d —, 2016 Tenn. App. LEXIS 556 (Tenn. Ct. App. Aug. 2, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 877 (Tenn. Nov. 16, 2016).

Chancery court properly dismissed, for lack of subject-matter jurisdiction, defendant's complaint seeking a declaration that he was ineligible to be sentenced to death because the claims were barred by sovereign immunity where, in the absence of a claim that the intellectual disability statute was unconstitutional, defendant failed to state a claim against the warden and state attorney general in their individual capacity, the determination of whether defendant had an intellectual disability at the time of the offense was a part of the prosecution and sentencing processes, and there was no express grant of subject matter jurisdiction to the chancery court in intellectual disability statute. Sims v. Carpenter, — S.W.3d —, 2016 Tenn. App. LEXIS 560 (Tenn. Ct. App. Aug. 4, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 874 (Tenn. Nov. 16, 2016).

40-1-109. Jurisdiction of general sessions courts.

In addition to the jurisdiction in criminal cases as conferred in §§ 16-15-401 and 16-15-501, the court of general sessions is vested with jurisdiction to try and determine and render final judgment in all misdemeanor cases brought before the court by warrant or information where the person charged with the misdemeanor enters a plea of guilty in writing or requests a trial upon the merits and expressly waives an indictment, presentment, grand jury investigation and jury trial. The waiver shall be in writing as provided in Rule 5 of the Tennessee Rules of Criminal Procedure. In such cases, the trial shall proceed before the court without the intervention of a jury, and the court shall enter judgment, and, as an incident thereto, may inflict punishment within the limits provided by law for the particular offense as the court may determine proper under the peculiar circumstances of the case.

Code 1858, § 4969; Shan., § 6930; mod. Code 1932, § 11469; Acts 1959, ch. 109, § 5; 1967, ch. 360, § 1; 1969, ch. 214, § 1; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), §§ 40-117, 40-118; Acts 1983, ch. 334, § 1; 1993, ch. 241, § 56.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 7.7, 22.2.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 20; 17 Tenn. Juris., Justices of Peace and General Sessions Courts, §§ 21, 22, 39; 25 Tenn. Juris., Weapons, § 7.

Law Reviews.

Selected Tennessee Legislation of 1983 (N. L. Resener, J. A. Whitson, K. J. Miller), 50 Tenn. L. Rev. 785 (1983).

Attorney General Opinions. Transfer upon demand for jury trial in criminal contempt proceeding, OAG 98-048 (2/23/98).

Procedure where failure to appear in municipal court with general sessions jurisdiction charged, OAG 99-096 (4/27/99).

After a finding of “not guilty by reason of insanity” in a trial in general sessions court, the court has jurisdiction to order the 60 to 90 day (now 30 to 60 days) evaluation required by T.C.A. § 33-7-303, but only in misdemeanor cases where the defendant waives in writing an indictment, presentment, grand jury investigation, and jury trial and the district attorney general does not object, OAG 01-041 (3/19/01).

NOTES TO DECISIONS

1. Reducing Charge.

Where a defendant charged with a felony is before the general sessions court for a probable cause hearing, the court does not have jurisdiction to reduce the charge to a misdemeanor and try the defendant, the court is limited to determining whether or not there is probable cause to believe the defendant is guilty of the crime charged, and, if, so, bind him over to the grand jury for appropriate action. Solomon v. State, 529 S.W.2d 743, 1975 Tenn. Crim. App. LEXIS 290 (Tenn. Crim. App. 1975).

2. Waiver of Constitutional Rights.

In all criminal offenses, the rights to be proceeded against only by indictment or presentment and to a trial by jury are grounded upon provisions of Tenn. Const., art. I, §§ 6 and 14. These constitutional rights may be relinquished only by a valid written waiver. State v. Morgan, 598 S.W.2d 796, 1979 Tenn. Crim. App. LEXIS 321 (Tenn. Crim. App. 1979).

The express waivers of a criminal defendant's rights to grand jury review, to indictment or presentment, and to trial by jury confer jurisdiction upon a court to dispose of a defendant's misdemeanor case under T.C.A. § 40-1-109. State v. Tansil, 72 S.W.3d 665, 2001 Tenn. Crim. App. LEXIS 740 (Tenn. Crim. App. 2001).

3. Facially Valid Judgments.

The fact that the general sessions court is not generally considered a court of record does not mean that its facially valid judgments will not be afforded finality for all legitimate purposes until those judgments are reversed or vacated by the proper authority. State v. McClintock, 732 S.W.2d 268, 1987 Tenn. LEXIS 1063 (Tenn. 1987), superseded by statute as stated in, State v. Alonso, — S.W.2d —, 1991 Tenn. Crim. App. LEXIS 784 (Tenn. Crim. App. Sept. 24, 1991).

Decisions Under Prior Law

1. Constitutionality.

Mere fact that all counties did not have general sessions courts did not render Acts 1955, ch. 267 invalid under Tenn. Const., art. I, § 8, as not being the law of the land, or under Tenn. Const., art. XI, § 8, providing against statutes enacted for the benefit of individuals, as such statute was applicable to violations of law within the territorial limits of the county by citizens of all counties brought before such courts and charged with a criminal offense. State v. Simmons, 199 Tenn. 479, 287 S.W.2d 71, 1956 Tenn. LEXIS 346 (1956).

The provisions of Acts 1955, ch. 267 were not violative of the provisions of the constitution providing for trial by jury as contained in Tenn. Const., art. I, § 6, the provisions that no person be put to answer any criminal charge except by presentment, indictment or impeachment contained in Tenn. Const., art. I, § 14, nor of the law of the land provisions contained in Tenn. Const., art. I, § 8. State v. Simmons, 199 Tenn. 479, 287 S.W.2d 71, 1956 Tenn. LEXIS 346 (1956).

2. Waiver of Right to Jury — Extent.

There was no constitutional objection under Tenn. Const., art. I, §§ 6 and 8 to a person waiving his right to a jury trial in a misdemeanor case although under Tenn. Const., art. VI, § 14 he could not by consent confer jurisdiction on any court to levy a fine exceeding $50.00. State v. Simmons, 199 Tenn. 479, 287 S.W.2d 71, 1956 Tenn. LEXIS 346 (1956).

3. Waiver of Presentment, Indictment or Impeachment.

A defendant brought to a trial for a misdemeanor under Acts 1955, ch. 267 could constitutionally waive his right to presentment, indictment or impeachment under Tenn. Const., art. I, § 14. State v. Simmons, 199 Tenn. 479, 287 S.W.2d 71, 1956 Tenn. LEXIS 346 (1956).

40-1-110. Judicial acts of general sessions judges.

The judges of the courts of general sessions and other similar courts created by statute throughout the state are authorized to issue any and all process in connection with criminal cases disposed of by them and to do all other judicial acts necessary to effectuate the judgments rendered by them in such cases.

Acts 1955, ch. 267, § 2; T.C.A., § 40-119.

Cross-References. Persons whose compensation is contingent upon issuance or nonissuance are prohibited from issuing a search warrant, an arrest warrant or mittimus, § 40-5-106.

NOTES TO DECISIONS

1. Facially Valid Judgments.

40-1-111. Appointment of judicial commissioners or magistrates — Duties — Terms — Compensation — Continuing education.

1. 1. The chief legislative body of any county having a population of less than two hundred thousand (200,000) or a population of not less than two hundred seventy-six thousand (276,000) nor more than two hundred seventy-seven thousand (277,000), according to the 1970 federal census or any subsequent federal census may appoint, and the chief legislative body of any county having a population of over seven hundred thousand (700,000), according to the 1970 federal census or any subsequent federal census, may initially appoint one (1) or more judicial commissioners whose duty or duties shall include, but not be limited to, the following:
    1. Issuance of search warrants and felony arrest warrants upon a finding of probable cause and pursuant to requests from on-duty law enforcement officers and in accordance with the procedures outlined in chapters 5 and 6 of this title;
    2. Issuance of mittimus following compliance with the procedures prescribed by § 40-5-103;
    3. The appointing of attorneys for indigent defendants in accordance with applicable law and guidelines established by the presiding general sessions judge of the county;
    4. The setting and approving of bonds and the release on recognizance of defendants in accordance with applicable law and guidelines established by the presiding general sessions judge of the county; and
    5. Issuance of injunctions and other appropriate orders as designated by the general sessions judges in cases of alleged domestic violence.
  2. 1. This subdivision (a)(1)(B)(i) applies to any county having a population of less than two hundred thousand (200,000) or a population of not less than two hundred seventy-six thousand (276,000) nor more than two hundred seventy-seven thousand (277,000), according to the 1970 federal census or any subsequent federal census. The term or terms of the officers shall be established by the chief legislative body of the county to which this subdivision (a)(1)(B)(i) applies but shall not exceed a four-year term. No member of the county legislative body of any county to which this subdivision (a)(1)(B)(i) applies shall be eligible for appointment as a judicial commissioner. Notwithstanding the provisions of this subdivision (a)(1)(B)(i) to the contrary, the presiding general sessions criminal judge of a county to which this subdivision (a)(1)(B)(i) applies may appoint a temporary or part-time judicial commissioner to serve at the pleasure of the presiding judge in case of absence, emergency or other need. The legislative body of any county to which this subdivision (a)(1)(B)(i) applies, in appointing, evaluating and making decisions relative to retention and reappointment, shall take into consideration views, comments and suggestions of the judges of the courts in which the judicial commissioners are appointed to serve.
    2. Any subsequent term of a judicial commissioner initially appointed by the chief legislative body of any county having a population of over seven hundred thousand (700,000), according to the 1970 federal census or any subsequent federal census, shall be by the general sessions judges of that county. The term or terms of the officers shall be established by the general sessions criminal court judges of the county but shall not exceed a four-year term. No member of the county legislative body of the county shall be eligible for appointment as a judicial commissioner. Notwithstanding the provisions of this subdivision (a)(1)(B)(ii) to the contrary, the presiding general sessions criminal court judge of the county may appoint a temporary, or part-time, judicial commissioner to serve at the pleasure of the presiding judge in case of absence, emergency or other need. The general sessions judges of the county in appointing, evaluating and making decisions relative to retention and reappointment shall take into consideration views, comments and suggestions of the judges of the courts in which the judicial commissioners are appointed to serve.
    3. Any subsequent term of a judicial commissioner initially appointed by the chief legislative body of any county having a population of not less than one hundred eighty-three thousand one hundred (183,100) nor more than one hundred eighty-three thousand two hundred (183,200), according to the 2010 federal census or any subsequent federal census, shall be by the general sessions judges of that county. In the event that the general sessions judges are unable to agree on the appointment of a judicial commissioner, the appointment shall be made by the chief legislative body of the county; provided, that any appointment made by the chief legislative body of the county shall not be construed to divest the general sessions judges of the supervisory authority over the judicial commissioner.
  3. In any county having a population greater than seven hundred thousand (700,000), according to the 1970 federal census or any subsequent federal census, to be eligible for appointment and service as a judicial commissioner a person must be licensed to practice law in this state.
  4. 1. Any county, having a population greater than seven hundred thousand (700,000), according to the 1970 federal census or any subsequent federal census, which appoints and makes use of judicial commissioners shall maintain records sufficient to allow an annual determination of whether the use of judicial commissioners is accomplishing the purposes intended.
    2. On an annual basis the county legislative body shall conduct a public hearing to examine and evaluate the program of judicial commissioners and to determine if the program is being conducted in accordance with law and is contributing to the orderly, effective and fair administration of justice. As a part of the public hearing the county legislative body shall examine the effectiveness of the system of judicial commissioners and hear the opinions of the public concerning the system. The county legislative body shall give notice of the public hearing at least thirty (30) days prior to the meeting.
    3. Following the hearing and not later than April 1 of each year, the county legislative body shall cause to be submitted to the judges of the general sessions criminal court of the county, the chair of the judiciary committee of the senate and the chair of the judiciary committee of the house of representatives a written report setting forth findings and the overall evaluation of the use of judicial commissioners.
2. The judicial commissioner or commissioners shall be compensated from the general fund of the county in an amount to be determined by the chief legislative body. Fees established and authorized by § 8-21-401 shall be paid to the county general fund upon the services detailed in § 8-21-401 being performed by a judicial commissioner.
1. Notwithstanding any provision of this section to the contrary, a judge of a court of general sessions in a county having a population of not less than fourteen thousand seven hundred (14,700) nor more than fourteen thousand eight hundred (14,800), according to the 1970 federal census or any subsequent federal census, may appoint one (1) or more judicial commissioners whose duties shall be the same as those prescribed for judicial commissioners in subsection (a). The judge may appoint a commissioner if the county legislative body of the counties noted in subsection (a) does not appoint a judicial commissioner before May 1, 1980. The term of the judicial officer shall be for one (1) year or until the county legislative body appoints a judicial commissioner as provided by subsection (a).
2. A judicial commissioner who is appointed by a general sessions judge as outlined in subdivision (b)(1) shall serve without compensation unless an amount of compensation is specifically established by the county legislative body.
Notwithstanding any provision of this section to the contrary, in any county having a population of not less than two hundred seventy-six thousand (276,000) nor more than two hundred seventy-seven thousand (277,000), according to the 1970 federal census or any subsequent federal census, any appointment of a judicial commissioner pursuant to subsection (a) shall be subject to the approval of a majority of the general sessions judges in the county.
1. Notwithstanding subsections (a)-(c), the legislative body of any county having a population of not less than forty-one thousand four hundred (41,400) nor more than forty-one thousand six hundred (41,600), according to the 1990 federal census or any subsequent federal census, may, by resolution, create the position of one (1) or more judicial commissioners.
2. The duties of a commissioner shall include, but are not limited to, the following:
  1. The issuance of arrest warrants upon a finding of probable cause;
  2. The setting of bonds and recognizance in accordance with the procedures outlined in chapters 5 and 6 of this title;
  3. The issuance of search warrants where authorized by the general sessions judge or a judge of a court of record; and
  4. The issuance of mittimus following compliance with the procedures prescribed by § 40-5-103.
3. The term of a judicial commissioner shall be established by the general sessions judge of the county, but in no event shall the term exceed four (4) years.
4. A judicial commissioner shall be compensated from the general fund of the county in an amount to be determined by the general sessions judge of the county and subject to the approval of the county legislative body. Fees established and authorized by § 8-21-401 shall be paid to the general fund upon the services detailed in § 8-21-401 being performed by a judicial commissioner.
5. A judicial commissioner shall be selected and appointed by the general sessions judge in the county, and shall serve at the pleasure of such general sessions judge, but not longer than the term specified in subdivision (d)(3).
1. Notwithstanding subsections (a)-(d), any county having a population of not less than three hundred seven thousand (307,000) nor more than three hundred eight thousand (308,000), according to the 2000 federal census or any subsequent federal census, may elect to establish judicial commissioners to assist the general sessions court in accordance with this subdivision (e)(1). The county legislative body may appoint one (1) or more attorneys to serve as judicial commissioners. The duties of a judicial commissioner shall include, but not be limited to the following:
  1. Issuance of arrest and search warrants upon a finding of probable cause in accordance with the procedures outlined in chapters 5 and 6 of this title;
  2. Issuance of mittimus following compliance with the procedures prescribed by § 40-5-103;
  3. Appointing attorneys for indigent defendants in accordance with applicable law and guidelines established by the presiding general sessions judge of the county;
  4. Setting and approving bonds and the release on recognizance of defendants in accordance with chapter 11 of this title; and
  5. Setting bond for the circuit court judges and chancellors in cases involving violations of orders of protection between the hours of nine o'clock p.m. (9:00 p.m.) and seven o'clock a.m. (7:00 a.m.) on weekdays, and on weekends, holidays and at any other time when the judge or chancellor is unavailable to set bond.
2. The term of office for a judicial commissioner shall be established by the county legislative body, but such term shall not exceed four (4) years. A member of the county legislative body is not eligible for appointment as a judicial commissioner.
3. A judicial commissioner shall be compensated from the general fund of the county in an amount to be determined by the county legislative body. Fees established and authorized by § 8-21-401 shall be paid to the county general fund upon the services detailed therein being performed by a judicial commissioner.
1. Beginning January 1, 2010, each judicial commissioner who is appointed to serve pursuant to this section must complete twelve (12) hours of continuing education each calendar year, ten (10) hours of which must be completed by attendance at conferences or courses sponsored or approved by the Judicial Commissioners Association of Tennessee. The remaining two (2) hours may be completed by attendance at classes sponsored by either the Judicial Commissioners Association of Tennessee or the Tennessee Court Clerks Association, or by local in-service education. At least six (6) hours of the total twelve (12) hours must be taught by a person who is licensed to practice law in this state.
2. Any judicial commissioner who is licensed to practice law in this state is authorized to use continuing legal education credits toward completion of the ten (10) hours, which otherwise must be completed by attendance at conferences or courses sponsored or approved by the Judicial Commissioners Association of Tennessee.
3. All judicial commissioners must complete, as part of the twelve (12) required hours, the following classes:
  1. At least two (2) hours concerning domestic violence or child abuse;
  2. At least one (1) hour concerning bail and bonds; and
  3. At least one (1) hour concerning ethics.
4. All counties for which judicial commissioners are appointed to serve pursuant to this section shall provide all necessary funding for their respective judicial commissioners to complete the continuing education required by this subsection (f).
5. All records indicating satisfaction of the continuing education requirements for judicial commissioners shall be maintained by each county and kept on the file for at least seven (7) years.
6. Notwithstanding this subsection (f), in any county in which the judicial commissioner is selected by the general sessions judge or judges, the county legislative body of such county may elect, by a two-thirds (2/3) majority, to allow each judicial commissioner to receive twelve (12) hours of appropriate continuing education each calendar year under the supervision of the appointing general sessions judge or judges rather than the Judicial Commissioners Association of Tennessee or the Tennessee Court Clerks Association. Further, in any county that has previously made this election, that county may later rescind that action by a subsequent two-thirds (2/3) majority vote of its county legislative body as to allow the judicial commissioners to receive the required training through the Judicial Commissioners Association of Tennessee or the Tennessee Court Clerks Association.
7. Subject to appropriation, funds from the judicial commissioner continuing education account, created in § 67-4-602(k), shall be used by the Judicial Commissioners Association of Tennessee for the development and presentation of continuing education programs, courses and conferences for judicial commissioners in this state.
Judicial commissioners duly appointed pursuant to this section in any county with a population not less than two hundred seventy-six thousand (276,000) nor more than two hundred seventy-seven thousand (277,000), according to the 1970 federal census or any subsequent federal census, shall be known as “magistrates.”
1. In any county having a population of not less than four hundred thirty-two thousand two hundred (432,200) nor more than four hundred thirty-two thousand three hundred (432,300), according to the 2010 federal census or any subsequent federal census, there is created the position of domestic abuse magistrate.
2. Notwithstanding any other law to the contrary, the domestic abuse magistrate created by this subsection (h) shall be appointed by the judge of the fourth circuit court of any such county and shall hold office for a term of eight (8) years from the date of appointment. The magistrate shall be eligible for reappointment to successive eight-year terms and shall be compensated from the general fund of the county in an amount to be determined by the county legislative body. Upon making a selection, the judge shall reduce the appointment to writing and file it with the fourth circuit court clerk of any county to which this subsection (h) applies. The domestic abuse magistrate, once appointed, shall regularly perform the duties set out in this subsection (h) within the approximate time period that the fourth circuit court begins and ends its daily docket, and the magistrate shall be styled as magistrate judge.
3. To qualify for the position of domestic abuse magistrate, the applicant must:
  1. Be at least thirty (30) years of age;
  2. Be a resident of the county funding the position;
  3. Be an attorney, licensed to practice law in the courts of this state; and
  4. Have served as a judicial commissioner or magistrate pursuant to subsection (a) for at least a full four-year term prior to application.
4. No person who is a judicial commissioner under subsection (a) or a magistrate under subsection (g) prior to the appointment of the domestic abuse magistrate may simultaneously hold that position and the position of domestic abuse magistrate under this subsection (h).
5. For purposes of:
  1. Title 36, chapter 3, part 6, the domestic abuse magistrate shall be considered a “court” as defined in § 36-3-601(3)(A) and (D), and shall have all jurisdiction and authority necessary to serve in that function for the employing county; and
  2. Chapter 5, part 1 of this title, the domestic abuse magistrate shall be considered a “magistrate” as defined in § 40-5-102, and shall have all of the jurisdiction and authority necessary to serve in that function for the employing county, and the domestic abuse magistrate shall complete the judicial continuing education requirements of subsection (f) in the same manner as a judicial commissioner.
6. The domestic abuse magistrate shall have, regardless of whether the case involves alleged domestic abuse, the following duties pursuant to this chapter, the Tennessee Rules of Civil Procedure, the Tennessee Rules of Criminal Procedure, and applicable statutes:
  1. Those conferred upon a court by title 36, chapter 3, part 6;
  2. Issuing or denying temporary or ex-parte orders of protection;
  3. Setting and approving bond in cases of civil and criminal contempt for alleged violations of orders of protection;
  4. Issuing injunctions and other appropriate orders in cases of alleged domestic violence;
  5. Setting and approving of bonds and release on recognizance of defendants in accordance with applicable law;
  6. Issuing mittimus in compliance with § 40-5-103;
  7. Issuing criminal arrest warrants, criminal summons, and search warrants upon a finding of probable cause;
  8. Appointing attorneys for indigent defendants and respondents in accordance with applicable law;
  9. Conducting initial appearances in accordance with Rule 5 of the Tennessee Rules of Criminal Procedure;
  10. Setting and approving bond for probation violation warrants;
  11. Issuing attachments, capias, or conditional bond forfeitures;
  12. Conducting compliance review dockets to examine and report to the appropriate judge any findings and conclusions regarding compliance with court orders;
  13. Conducting initial appearances for any defendant following arrest for a crime involving domestic abuse when conducted pursuant to the requirements imposed by § 36-3-602(c) [repealed]; and
  14. Any other judicial duty not prohibited by the constitution, statute, or applicable rules, when requested by a judge.
7. If the domestic abuse magistrate is carrying out one (1) of the duties of the office under this subsection (h), the failure to appear before the magistrate constitutes failure to appear and shall subject the defendant or respondent to arrest and forfeiture of bond.
8. If the appointed domestic abuse magistrate is absent or unavailable for any reason, the magistrate has the authority to appoint special, substitute, or temporary magistrates to carry out the duties of this section. A substitute magistrate shall be an attorney, licensed to practice law in the courts of this state, a resident of the county of the appointing domestic abuse magistrate, and not less than thirty (30) years of age. An order of appointment for a special, substitute, or temporary magistrate shall be for a fixed period of time and shall be reduced to writing and filed with the fourth circuit court clerk.
9. The domestic abuse magistrate may also accept appointment by the judge of the fourth circuit court to serve as a special master to the fourth circuit court for any purpose established by the judge. The appointment may be made by the judge at the same time as the appointment to the position of domestic abuse magistrate, or at any time during the magistrate's term.

Acts 1978, ch. 933, § 4; 1979, ch. 15, § 1; 1980, ch. 781, § 1; 1981, ch. 209, §§ 1, 2; T.C.A., § 40-120; Acts 1991, ch. 444, § 1; 1993, ch. 241, § 57; 1998, ch. 984, § 1; 2001, ch. 316, §§ 1, 2; 2004, ch. 685, § 1; 2009, ch. 503, § 1; 2010, ch. 989, §§ 1, 2; 2012, ch. 890, § 1; 2012, ch. 1052, §§ 1, 3; 2013, ch. 236, § 33; 2016, ch. 531, §§ 2, 3; 2017, ch. 222, § 1; 2019, ch. 345, § 55.

Code Commission Notes.

Former subdivisions (a)(1)(D), (a)(2)(A), (a)(2)(B), and (a)(3) were redesignated by the code commission as subdivisions (a)(1)(D)(i), (a)(1)(D)(ii), (a)(1)(D)(iii), and (a)(2), respectively, in 2011.

Compiler's Notes. For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

§ 36-3-602(c ), which is referred to in subsection (h) of this section, was repealed by Acts 2018, ch. 586, § 1.

Amendments. The 2019 amendment substituted “judiciary” for “criminal justice” preceding “committee of the house” in (a)(1)(D)(iii).

Effective Dates. Acts 2019, ch. 345, § 148. May 10, 2019.

Cross-References. Judicial commissioners, metropolitan government, title 40, ch. 5, part 2.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 3.2, 18.81.

Attorney General Opinions. A judicial commissioner appointed by a county commission can be removed from office by ouster for knowing or willful misconduct in office, knowing or willful neglect of duty, public intoxication, gambling, or any act constituting a violation of a penal statute involving moral turpitude, OAG 00-126 (8/7/00).

A judicial commissioner may perform the functions of that office for a city court when that court exercises its concurrent general sessions jurisdiction over criminal cases, but the city is not authorized to provide additional compensation to the judicial commissioners for performing this function, OAG 00-126 (8/7/00).

A judge may exercise supervisory authority over judicial commissioners who perform functions for the judge's court where such supervision is reasonably necessary to maintain order within that judge's court and to promote the administration of justice, but that authority does not include the authority to remove a judicial commissioner from office, OAG 00-126 (8/7/00).

A judicial commissioner can be removed from office only by an ouster action governed by T.C.A. § 8-47-101 et seq., OAG 00-126 (8/7/00).

The method used to appoint and retain judicial commissioners in Shelby County is constitutional, OAG 01-081 (5/17/01).

Judicial commissioners in Shelby County may issue search warrants or arrest warrants in cases where the defendant is being charged with a Class A or Class B felony, OAG 01-081 (5/17/01).

A constable with law enforcement powers is not a “neutral and detached” magistrate qualified to issue criminal arrest and search warrants, therefore, serving as constable, directly interferes with an individual's ability to carry out the duties of the office of judicial commissioner, OAG 02-109 (10/02/02).

Where a judicial commissioner performs his or her official duties on behalf of a city court with concurrent general sessions jurisdiction, he or she is not required to be a resident of that city, absent some private act to the contrary, OAG 03-110 (9/8/03).

Salary raise for Hamilton County judicial commissioners, OAG 03-150 (11/17/03).

A part-time judicial commissioner serving the Shelby County General Sessions Criminal Court may not practice law in the same court, OAG 03-155 (12/01/03).

Judicial commissioners in Hamilton County may set bonds for the appearance of individuals who are arrested and charged with state law or municipal ordinance violations, OAG 07-102 (7/10/07).

No statute prohibits a person whose close relative is a law enforcement officer in the same county from serving as a judicial commissioner; however, a judicial commissioner should recuse himself or herself when presented with a request for a search warrant by the commissioner's relative or in connection with an investigation in which the relative is an investigating officer, OAG 07-123 (8/16/07).

NOTES TO DECISIONS

1. In General.

This section creates neither an inferior court nor a corporation court, but a magistrate, to which office the requirements of Tenn. Const., art. VI, § 4 are not applicable. State v. Bush, 626 S.W.2d 470, 1981 Tenn. Crim. App. LEXIS 394 (Tenn. Crim. App. 1981).

2. Constitutionality.

This section is constitutional. State v. Bush, 626 S.W.2d 470, 1981 Tenn. Crim. App. LEXIS 394 (Tenn. Crim. App. 1981).

It was not necessary to determine the constitutionality of T.C.A. § 40-1-111 because the good faith exception to the exclusionary rule applied where the officer objectively and reasonably believed the judicial commissioner had the authority to issue a warrant and the officer engaged in no misconduct; in addition, the deterrent purpose of the exclusionary rule would not be advanced by punishing the officer for reasonably relying on the authority of the commissioner to issue a search warrant. United States v. Pennington, 115 F. Supp. 2d 910, 2000 U.S. Dist. LEXIS 14862 (W.D. Tenn. 2000).

Judicial commissioner appointed by a legislative body of a county who is not a judge or even an attorney may lawfully issue a search warrant or act as a neutral magistrate for purposes of the fourth amendment. United States v. Pennington, 2003 U.S. App. LEXIS 5832, 2003 FED App. 92P (6th Cir. Tenn. 2003).

3. Duties.

A judicial commissioner's duties under this section are characteristic of a magistrate's and not a court's. State v. Bush, 626 S.W.2d 470, 1981 Tenn. Crim. App. LEXIS 394 (Tenn. Crim. App. 1981).

Defendant's constitutional challenge to the authority of a county judicial commissioner to issue a valid search warrant under T.C.A. § 40-1-111(a)(1)(A) was without merit because the record was insufficient to draw any conclusions as to the lack of the commissioner's neutrality. Even though an officer testified that the commissioner had never rejected a warrant sought, there was no evidence of how many warrants the officer had sought and it was just as logical to conclude that the officer presented affidavits in support of those warrants justifying their issuance. United States v. Pennington, 324 F.3d 438, 2003 FED App. 129A, 2003 U.S. App. LEXIS 8373 (6th Cir. Tenn. 2003)

4. —Jurisdiction.

Appointing someone to be a judicial commissioner, in order to issue warrants in a particular town, did not restrict the commissioner's activity to that town, absent evidence of contrary intent. State v. Bush, 626 S.W.2d 470, 1981 Tenn. Crim. App. LEXIS 394 (Tenn. Crim. App. 1981).

40-1-104. Fraudulent sale of pledged property.

Chapter 2
Limitation of Prosecutions

40-2-101. Felonies.

A person may be prosecuted, tried and punished for an offense punishable with death or by imprisonment in the penitentiary during life, at any time after the offense is committed.
Prosecution for a felony offense shall begin within:
1. Fifteen (15) years for a Class A felony;
2. Eight (8) years for a Class B felony;
3. Four (4) years for a Class C or Class D felony; and
4. Two (2) years for a Class E felony.
Notwithstanding subsections (a) and (b), offenses arising under the revenue laws of the state shall be commenced within the three (3) years following the commission of the offense, except that the period of limitation of prosecution shall be six (6) years in the following instances:
1. Offenses involving the defrauding or attempting to defraud the state of Tennessee or any agency of the state, whether by conspiracy or not, and in any manner;
2. The offense of willfully attempting in any manner to evade or defeat any tax or the payment of a tax;
3. The offense of willfully aiding or abetting, or procuring, counseling or advising, the preparation or presentation under, or in connection with, any matter arising under the revenue laws of the state, or a false or fraudulent return, affidavit, claim or document, whether or not the falsity or fraud is with the knowledge or consent of the person authorized or required to present the return, affidavit, claim or document; and
4. The offense of willfully failing to pay any tax, or make any return at the time or times required by law or regulation.
Notwithstanding the provisions of subdivision (b)(3) to the contrary, prosecution for the offense of arson as prohibited by § 39-14-301 shall commence within eight (8) years from the date the offense occurs.
Prosecutions for any offense committed against a child prior to July 1, 1997, that constitutes a criminal offense under § 39-2-601 [repealed], § 39-2-603 [repealed], § 39-2-604 [repealed], § 39-2-606 [repealed], § 39-2-607 [repealed], § 39-2-608 [repealed], § 39-2-612 [repealed], § 39-4-306 [repealed], § 39-4-307 [repealed], § 39-6-1137 [repealed], or § 39-6-1138 [repealed], or under §§ 39-13-502 — 39-13-505, § 39-15-302 or § 39-17-902 shall commence no later than the date the child attains the age of majority or within four (4) years after the commission of the offense, whichever occurs later; provided, that pursuant to subsection (a), an offense punishable by life imprisonment may be prosecuted at any time after the offense has been committed.
For offenses committed prior to November 1, 1989, the limitation of prosecution in effect at that time shall govern.
1. Prosecutions for any offense committed against a child on or after July 1, 1997, that constitutes a criminal offense under § 39-17-902 shall commence no later than the date the child reaches twenty-one (21) years of age; provided, that if subsection (a) or (b) provides a longer period of time within which prosecution may be brought than this subsection (g), the applicable provision of subsection (a) or (b) shall prevail.
2. Prosecutions for any offense committed against a child on or after July 1, 1997, but prior to June 20, 2006, that constitutes a criminal offense under §§ 39-13-502 — 39-13-505, § 39-13-522 or § 39-15-302 shall commence no later than the date the child reaches twenty-one (21) years of age; provided, that if subsection (a) or (b) provides a longer period of time within which prosecution may be brought than this subsection (g), the applicable provision of subsection (a) or (b) shall prevail.
1. A person may be prosecuted, tried and punished for any offense committed against a child on or after June 20, 2006, that constitutes a criminal offense under § 39-13-504, § 39-13-505, § 39-13-527 or § 39-15-302, no later than twenty-five (25) years from the date the child becomes eighteen (18) years of age.
2. A person may be prosecuted, tried and punished for any offense committed against a child on or after June 20, 2006, that constitutes a criminal offense under § 39-13-502, § 39-13-503 or § 39-13-522 no later than twenty-five (25) years from the date the child becomes eighteen (18) years of age.
1. A person may be prosecuted, tried and punished for any offense committed against a child on or after July 1, 2007, that constitutes a criminal offense under § 39-13-532, no later than twenty-five (25) years from the date the child becomes eighteen (18) years of age.
2. A person may be prosecuted, tried and punished for any offense committed against a child on or after July 1, 2007, that constitutes a criminal offense under § 39-13-531, no later than twenty-five (25) years from the date the child becomes eighteen (18) years of age.
A person may be prosecuted, tried and punished for any offense committed against a child on or after July 1, 2012, that constitutes a criminal offense under § 39-17-902, § 39-17-1003, § 39-17-1004, or § 39-17-1005, no later than twenty-five (25) years from the date the child becomes eighteen (18) years of age.
1. A person may be prosecuted, tried and punished for any offense committed against a child on or after July 1, 2013, that constitutes a criminal offense under § 39-13-309 or § 39-13-529, no later than fifteen (15) years from the date the child becomes eighteen (18) years of age.
2. A person may be prosecuted, tried, and punished for any offense committed against a child on or after July 1, 2013, that constitutes a criminal offense under § 39-13-514 no later than ten (10) years from the date the child becomes eighteen (18) years of age.
3. 1. A person may be prosecuted, tried, and punished for any offense committed against a child on or after July 1, 2013, but prior to July 1, 2015, that constitutes a criminal offense under § 39-13-515 no later than ten (10) years from the date the child becomes eighteen (18) years of age.
  2. A person may be prosecuted, tried, and punished for any offense committed against a child on or after July 1, 2015, that constitutes a criminal offense under § 39-13-515 no later than twenty-five (25) years from the date the child becomes eighteen (18) years of age.
1. Notwithstanding subsections (b), (g), (h), and (i) to the contrary, a person may be prosecuted, tried, and punished at any time after the commission of an offense if:
  1. The offense was one (1) of the following:
    1. Aggravated rape, as prohibited by § 39-13-502; or
    2. Rape, as prohibited by § 39-13-503;
  2. The victim was an adult at the time of the offense;
  3. The victim notifies law enforcement or the office of the district attorney general of the offense within three (3) years of the offense; and
  4. The offense is committed:
    1. On or after July 1, 2014; or
    2. Prior to July 1, 2014, unless prosecution for the offense is barred because the applicable time limitation set out in this section for prosecution of the offense expired prior to July 1, 2014.
2. If subdivision (l )(1) does not apply to the specified offenses, prosecution shall be commenced within the times otherwise provided by this section.
A person may be prosecuted, tried, and punished for any offense committed against a child on or after July 1, 2016, that constitutes the offense of aggravated statutory rape under § 39-13-506(c), no later than fifteen (15) years from the date the child becomes eighteen (18) years of age.
Notwithstanding subsection (b), prosecutions for any offense committed on or after July 1, 2016, that constitutes the offense of aggravated child abuse, or aggravated child neglect or endangerment, under § 39-15-402, shall commence by the later of:
1. Ten (10) years after the child reaches eighteen (18) years of age; or
2. The time within which prosecution must be commenced pursuant to subsection (b).
A person may be prosecuted, tried and punished for any offense committed against a child on or after July 1, 2019, that constitutes the offense of female genital mutilation, under § 39-13-110, no later than twenty-five (25) years from the date the child becomes eighteen (18) years of age.
Notwithstanding subsection (b), a person may be prosecuted, tried, and punished for second degree murder, as prohibited by § 39-13-210, that is committed on or after July 1, 2019, at any time after the offense is committed.
1. Notwithstanding subsections (b), (g), (h), (i), (j), (k), or (m), prosecution for the following offenses, when committed against a minor under eighteen (18) years of age shall commence as provided by this subsection (q):
  1. Trafficking for a commercial sex act, as prohibited by § 39-13-309;
  2. Aggravated rape, as prohibited by § 39-13-502;
  3. Rape, as prohibited by § 39-13-503;
  4. Aggravated sexual battery, as prohibited by § 39-13-504;
  5. Sexual battery, as prohibited by § 39-13-505;
  6. Mitigated statutory rape, as prohibited by § 39-13-506;
  7. Statutory rape, as prohibited by § 39-13-506;
  8. Aggravated statutory rape, as prohibited by § 39-13-506(c);
  9. Indecent exposure, as prohibited by § 39-13-511, when the offense is classified as a felony offense;
  10. Patronizing prostitution, as prohibited by § 39-13-514;
  11. Promotion of prostitution, as prohibited by § 39-13-515;
  12. Continuous sexual abuse of a child, as prohibited by § 39-13-518;
  13. Rape of a child, as prohibited by § 39-13-522;
  14. Sexual battery by an authority figure, as prohibited by § 39-13-527;
  15. Solicitation of a minor, as prohibited by § 39-13-528, when the offense is classified as a felony offense;
  16. Soliciting sexual exploitation of a minor - exploitation of a minor by electronic means, as prohibited by § 39-13-529;
  17. Aggravated rape of a child, as prohibited by § 39-13-531;
  18. Statutory rape by an authority figure, as prohibited by § 39-13-532;
  19. Unlawful photographing, as prohibited by § 39-13-605, when the offense is classified as a felony offense;
  20. Observation without consent, as prohibited by § 39-13-607, when the offense is classified as a felony offense;
  21. Incest, as prohibited by § 39-15-302;
  22. Sexual exploitation of a minor, as prohibited by § 39-17-1003;
  23. Aggravated sexual exploitation of a minor, as prohibited by § 39-17-1004; or
  24. Especially aggravated sexual exploitation of a minor, as prohibited by § 39-17-1005.
2. A person may be prosecuted, tried, and punished for an offense listed in subdivision (q)(1) at any time after the commission of an offense if:
  1. The victim was under thirteen (13) years of age at the time of the offense; or
  2. 1. The victim was at least thirteen (13) years of age but no more than seventeen (17) years of age at the time of the offense; and
    2. The victim reported the offense to another person prior to the victim attaining twenty-three (23) years of age.
3. 1. Except as provided in subdivision (q)(3)(B), a person may be prosecuted, tried, and punished for an offense listed in subdivision (q)(1) at any time after the commission of an offense if:
    1. The victim was at least thirteen (13) years of age but no more than seventeen (17) years of age at the time of the offense; and
    2. The victim did not meet the reporting requirements of subdivision (q)(2)(B)(ii).
  2. In order to commence prosecution for an offense listed in subdivision (q)(1) under the circumstances described in subdivision (q)(3)(A), at a date that is more than twenty-five (25) years from the date the victim becomes eighteen (18) years of age, the prosecution is required to offer admissible and credible evidence corroborating the allegations or similar acts by the defendant.
4. This subsection (q) applies to offenses:
  1. Committed on or after July 1, 2019; or
  2. Committed prior to July 1, 2019, unless prosecution for the offense is barred because the applicable time limitation set out in this section for prosecution of the offense expired prior to July 1, 2019.

Code 1932, §§ 11481-11483; Acts 1977, ch. 62, § 1; T.C.A. (orig. ed.), §§ 40-201 — 40-203; Acts 1985, ch. 478, § 21; 1990, ch. 980, § 17; 1997, ch. 214, §§ 1, 2; 1998, ch. 962, § 1; 2006, ch. 927, § 1; 2007, ch. 594, § 5; 2012, ch. 1027, § 1; 2013, ch. 416, § 1; 2014, ch. 836, §§ 1, 2; 2015, ch. 310, § 1; 2016, ch. 958, § 1; 2016, ch. 1032, § 1; 2019, ch. 268, § 4; 2019, ch. 410, § 1; 2019, ch. 499, §§ 5-8.

Compiler's Notes. Sections under title 39, chs. 2, 4 and 6, referred to in this section, were repealed by Acts 1989, ch. 591, effective November 1, 1989.

For the Preamble to the act regarding criminal penalties, procedure and sentencing, please refer to Acts 2007, ch. 594.

Pursuant to Article III, Section 18 of the Constitution of Tennessee, Acts 2014, ch. 836 took effect on April 28, 2014.

Acts 2019, ch. 410, § 2 provided that the act, which added subsection (p), applies to acts occurring on or after July 1, 2019.

Amendments. The 2019 amendment by ch. 268 added (o).

The 2019 amendment by ch. 410 added (p).

The 2019 amendment by ch. 499 deleted “but prior to July 1, 2014” following “June 20, 2006” in (h)(2) and following “July 1, 2007” (i)(2); rewrote (l )(1) which read, “(1) Notwithstanding subsections (b), (g), (h) and (i) to the contrary, a person may be prosecuted, tried and punished for an act that constitutes the offense of aggravated rape, as prohibited by § 39-13-502, rape, as prohibited by § 39-13-503, rape of a child as prohibited by § 39-13-522 or aggravated rape of a child as prohibited by § 39-13-531 at any time after the commission of the offense if: “(A) The victim notifies law enforcement or the office of the district attorney general of the offense within three (3) years of the offense; and “(B) The offense is committed: “(i) On or after July 1, 2014; or “(ii) Prior to July 1, 2014, unless prosecution for the offense is barred because the applicable time limitation set out in this section for prosecution of the offense expired prior to July 1, 2014.”; and added (q).

Effective Dates. Acts 2019, ch. 268, § 5. July 1, 2019.

Acts 2019, ch. 410, § 2. July 1, 2019.

Acts 2019, ch. 499, § 10. July 1, 2019.

Cross-References. Penalties for Class A, B, C, D, and E felonies, § 40-35-111.

Transfer from juvenile court, sentence of death prohibited, § 37-1-134.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 16.82.

Tennessee Jurisprudence, 18 Tenn. Juris., Limitations of Actions, § 18.

Law Reviews.

Defending Life in Tennessee Death Penalty Cases (Roy B. Herron), 51 Tenn. L. Rev. 681 (1984).

Attorney General Opinions. Statute of limitations of aggravated gambling promotion, OAG 99-127 (6/29/99).

A prosecution for the sale of beer to minors must commence within 12 months if a Class A misdemeanor and within two years if a Class E felony, OAG 01-062 (4/20/01).

NOTES TO DECISIONS

1. Construction.

The applicable punishment for determining the appropriate statute of limitations is the maximum punishment available for an offense. State v. Ricci, 914 S.W.2d 475, 1996 Tenn. LEXIS 63 (Tenn. 1996).

Application of the pre-1989 statute of limitations and prosecution of defendants for securities law violations committed in 1988 did not violate constitutional ex post facto provisions or due process since the applicable limitations were not changed by the 1990 amendment which established limitation periods consistent with the Criminal Sentencing Reform Act of 1989, § 40-35-101 et seq. State v. Ricci, 914 S.W.2d 475, 1996 Tenn. LEXIS 63 (Tenn. 1996).

2. Pleading Limitations.

The failure on the part of trial counsel to raise the statute of limitations on behalf of the defendant represented a deficiency in performance of a constitutional nature; and because prejudice resulted, the defendant's post-conviction motion based upon a claim of ineffective assistance of counsel was granted. Morgan v. State, 847 S.W.2d 538, 1992 Tenn. Crim. App. LEXIS 731 (Tenn. Crim. App. 1992).

3. Allegations of Indictment.

Where an indictment or presentment shows upon its face, or by stipulation, that the applicable statute of limitations has expired, the instrument must allege facts which demonstrate that the statute was tolled for a sufficient period of time to avoid the bar of the statute of limitations. State v. Davidson, 816 S.W.2d 316, 1991 Tenn. LEXIS 320 (Tenn. 1991), rehearing denied, 1991 Tenn. LEXIS 424 .

Where there is a statute of limitations that bars prosecution of the offenses charged, there should be a sufficiently definite averment of time in the indictment to show that the offense was committed within the statute of limitations. State v. Kennedy, 10 S.W.3d 280, 1999 Tenn. Crim. App. LEXIS 569 (Tenn. Crim. App. 1999).

It was no error to let the State amend an indictment to allege a new ground for tolling the statute of limitations applicable to second-degree murder because (1) defendant consented to the amendment, and, (2) if defendant did not consent, jeopardy had not attached, no new crime was charged, and defendant's substantial right was not prejudiced, as the State could have obtained a superseding indictment. State v. Hollingsworth, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 17 (Tenn. Crim. App. Jan. 11, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 352 (Tenn. May 24, 2017).

4. Return of Indictment.

Because an amendment of the date did not charge an additional crime, the court looked to the date the indictment was returned in order to determine whether the amended date fell within the statute of limitations. State v. Kennedy, 10 S.W.3d 280, 1999 Tenn. Crim. App. LEXIS 569 (Tenn. Crim. App. 1999).

5. Concealment of Crime.

If coercion against a minor victim of sexual abuse could amount to concealment of the crime so as to toll the running of the statute of limitations, the time frame for the coercion constituting the concealment would need to be alleged. State v. Davidson, 816 S.W.2d 316, 1991 Tenn. LEXIS 320 (Tenn. 1991), rehearing denied, 1991 Tenn. LEXIS 424 .

If the tolling is triggered by concealment, the statute would begin to run when the concealment ceased. State v. Davidson, 816 S.W.2d 316, 1991 Tenn. LEXIS 320 (Tenn. 1991), rehearing denied, 1991 Tenn. LEXIS 424 .

6. Prosecution Untimely.

Institution of incest charges was not timely. State v. Henry, 834 S.W.2d 273, 1992 Tenn. LEXIS 361 (Tenn. 1992).

Defendant's 1988 indictments on three counts of aggravated rape, aggravated sexual battery, and use of a minor for obscene purposes all occurred more than four years after the offenses; as there was no evidence of concealment, including threats to the victims on the part of defendant, the proof was inadequate to support a tolling of the statutes of limitation, depriving the trial court of subject-matter jurisdiction. Morgan v. State, 847 S.W.2d 538, 1992 Tenn. Crim. App. LEXIS 731 (Tenn. Crim. App. 1992).

A conviction for a time-barred crime clearly violates the constitutional rights of an accused. Morgan v. State, 847 S.W.2d 538, 1992 Tenn. Crim. App. LEXIS 731 (Tenn. Crim. App. 1992).

7. Waiver of Defense.

Although the statute of limitations is waivable, rather than jurisidictional, a waiver by the defendant must be knowingly and voluntarily entered. While the protection against prosecution provided by a statute of limitations may not rise to the level of a fundamental right, the right is sufficiently substantial to justify application of the same standard used in determining whether there has been an effective waiver as to fundamental rights. State v. Pearson, 858 S.W.2d 879, 1993 Tenn. LEXIS 240 (Tenn. 1993).

8. Competence of Counsel.

Defense counsel's failure to object to the jury instructions regarding the law of aggravated rape did not constitute ineffective assistance of counsel; at the time defendant committed the offense (August 1978 — May 1979), the offense of aggravated rape did not exist, and this instruction was an accurate statement of the law as it existed at the time the indictment was returned. Overton v. State, 874 S.W.2d 6, 1994 Tenn. LEXIS 94 (Tenn. 1994).

9. Purpose.

The statute of limitations serves two primary purposes: to avoid the use of stale evidence and to provide an incentive for swift governmental action in criminal cases. State v. Pearson, 858 S.W.2d 879, 1993 Tenn. LEXIS 240 (Tenn. 1993).

10. Statute of Limitations.

Defendant's prosecution for sexual battery, in violation of T.C.A. §§ 39-13-504, 39-13-505, was commenced within the applicable statute of limitations under T.C.A. § 40-2-101(g) where the state established by a preponderance of the evidence, as required under T.C.A. § 39-11-201(f), that the victim was a minor at the time of the offense and that the prosecution was commenced before she turned 21. State v. Doane, 393 S.W.3d 721, 2011 Tenn. Crim. App. LEXIS 503 (Tenn. Crim. App. July 6, 2011), overruled in part, State v. Turner, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 337 (Tenn. Crim. App. May 5, 2017).

Defendant's conviction for attempted aggravated rape was not barred by the statute of limitations, T.C.A. § 40-2-101(b)(1)-(2), because the John Doe arrest warrant and DNA profile commenced the prosecution against defendant in a timely fashion and tolled the statute of limitations until he was identified and apprehended; a John Doe warrant coupled with a DNA profile of an unknown suspected offender obtained before the expiration of the applicable statute of limitations may validly commence a criminal prosecution and toll the statute of limitations. State v. Burdick, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 886 (Tenn. Crim. App. Dec. 2, 2011), aff'd, 395 S.W.3d 120, 2012 Tenn. LEXIS 903 (Tenn. Dec. 18, 2012).

Prosecution for attempted aggravated rape was properly and timely commenced with in the eight-year statute of limitations for attempted aggravated rape, T.C.A. § 40-2-101(b)(1)-(2), by the filing of the “John Doe” arrest warrant because The “John Doe” designation in the warrant, coupled with the detailed DNA profile of the assailant, identified defendant with “reasonable certainty” as required by the Fourth Amendment, Tenn. Const. art. I, § 7, T.C.A. § 40-6-208, and Tenn. R. Crim. P. 4(c)(1)(B). State v. Burdick, 395 S.W.3d 120, 2012 Tenn. LEXIS 903 (Tenn. Dec. 18, 2012).

Trial court erred in dismissing defendant's re-indictment for rape of a child and aggravated sexual battery based on a violation of defendant's due process and speedy trial rights, because defendant's constitutional right to a speedy trial was not implicated, the prosecution commenced within the applicable statutory periods, the length of the delay, between 7 and 12 years, was not excessive, the bulk of the delay was attributable to the victim's reluctance to come forward and changing memory, factors not within the control of either the State or defendant, and defendant's inability to call certain witnesses due to death or failure to locate did not demonstrate actual prejudice. State v. Beaty, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 606 (Tenn. Crim. App. Aug. 16, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 937 (Tenn. Dec. 15, 2016).

40-2-102. Misdemeanors.

Except as provided in § 62-18-120(g) and subsection (b) of this section, all prosecutions for misdemeanors shall be commenced within the twelve (12) months after the offense has been committed, except gaming, which shall be commenced within six (6) months.
Prosecutions under § 39-16-301 for criminal impersonation accomplished through the use of a fraudulently obtained driver license shall be commenced within one (1) year of the date the driver license expires or within three (3) years of the date the nonexpired driver license was last used to falsely impersonate the person in whose name the driver license was issued, whichever is longer.

Code 1858, § 4983 (deriv. Acts 1831, ch. 82); Shan., § 6942; mod. Code 1932, § 11484; T.C.A. (orig. ed.), § 40-204; Acts 1985, ch. 146, § 1; 1999, ch. 374, § 1.

Cross-References. Penalties for land surveyor violations, § 62-18-120.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 16.82.

Tennessee Jurisprudence, 13 Tenn. Juris., Gaming, Gambling and Gambling Contracts, §§ 9, 10; 18 Tenn. Juris., Limitations of Actions, § 18.

Attorney General Opinions. “Gambling device” construed to include gambling software, OAG 98-0173 (8/28/98).

Gaming includes gambling and activities involving gambling, OAG 99-127 (6/29/99).

Statute of limitations for gambling promotion, OAG 99-127 (6/29/99).

A prosecution for the sale of beer to minors must commence within 12 months if a Class A misdemeanor and within two years if a Class E felony, OAG 01-062 (4/20/01).

Retired misdemeanor cases. OAG 11-4, 2011 Tenn. AG LEXIS 4 (1/7/11).

NOTES TO DECISIONS

1. Indictment.

2. —Sufficiency.

An indictment for a misdemeanor will be quashed where the prosecution is not commenced within 12 months, or within the time prescribed for commencing a prosecution for the particular offense, after the commission of the offense. State v. House, 2 Shan. 610 (1877).

Indictment should aver time of offense within the statutory limitation, and if it does not appear that the offense was committed within that time, a motion to quash the indictment will be sustained. State v. Shaw, 113 Tenn. 536, 82 S.W. 480, 1904 Tenn. LEXIS 47 (1904).

Where the indictment is brought after the period of limitations has expired, it must be pleaded and proved that certain specific facts toll the statute. State v. Comstock, 205 Tenn. 389, 326 S.W.2d 669, 1959 Tenn. LEXIS 377 (1959).

An indictment issued beyond the statutory limitation period need not allege commencing facts to establish that the prosecution was timely initiated within the applicable limitations period by another method. State v. Messamore, 937 S.W.2d 916, 1996 Tenn. LEXIS 728 (Tenn. 1996).

A superseding indictment issued after the statute of limitations has elapsed need not allege facts showing that the prosecution was timely commenced with a prior presentment or indictment. State v. Nielsen, 44 S.W.3d 496, 2001 Tenn. LEXIS 383 (Tenn. 2001).

Where defendant was arrested on a warrant for D.U.I. and more than one year later was charged by indictment for driving while under the influence of an intoxicant in violation of T.C.A. § 55-10-401(a)(1) (now 55-10-401(1)) and for driving with an alcohol concentration of .10 percent or more in violation of T.C.A. § 55-10-401(a)(2) (now 55-10-401(2)), the latter charge was not untimely filed because it could have been inferred from the warrant charge for D.U.I. State v. Tait, 114 S.W.3d 518, 2003 Tenn. LEXIS 826 (Tenn. 2003).

3. —Defective.

Where prosecution is commenced by indictment within the 12-month period but the indictment is quashed, state is not barred from getting a second indictment after the 12-month period if the second indictment is obtained without unreasonable delay and the second prosecution is so related to the first as to be a continuation of the first proceeding. Hickey v. State, 131 Tenn. 112, 174 S.W. 269, 1914 Tenn. LEXIS 91 (1915).

4. Misdemeanors Included in Felonies.

Where a defendant was indicted for a felony that included a misdemeanor, and was acquitted of the felony and found guilty of the misdemeanor, he is entitled to a discharge, if the offense was committed more than 12 months before the finding of the indictment. Turley v. State, 50 Tenn. 11, 1870 Tenn. LEXIS 225 (1870); Hickey v. State, 131 Tenn. 112, 174 S.W. 269, 1914 Tenn. LEXIS 91 (1915).

Trial court did not err in refusing to instruct jury on lesser included offenses embraced in the offense charged by the indictment where the lesser offenses would have been barred by limitation. Smith v. State, 205 Tenn. 502, 327 S.W.2d 308, 1959 Tenn. LEXIS 390 (1959).

5. —Bribery of Peace Officer.

The offense of conspiring to bribe a peace officer is a misdemeanor and is subject to the limitation of this section. Rose v. State, 177 Tenn. 586, 151 S.W.2d 1088, 1940 Tenn. LEXIS 58 (1941).

6. —Gambling Device Possession.

An indictment under § 39-6-615 (repealed; see § 39-17-505) for possession of a gambling device is within the term “gaming” as provided by this section so that the six-month statute of limitation is applicable. Vann v. State, 176 Tenn. 433, 143 S.W.2d 306, 1940 Tenn. LEXIS 82 (1940).

7. Violation of Injunction.

Defendants could not be held in contempt for acts in violation of an injunction alleged to have been committed more than one year next preceding the citation to “show cause,” for such acts are misdemeanors and are barred by the statute of limitations of one year. Church of God v. Tomlinson Church of God, 193 Tenn. 583, 247 S.W.2d 63, 1952 Tenn. LEXIS 328 (1952).

8. Civil Actions by State.

In view of § 28-1-113, the statute of limitations embraced in this section is not applicable to the state in civil actions. State ex rel. Cates v. Standard Oil Co., 120 Tenn. 86, 110 S.W. 565, 1907 Tenn. LEXIS 41 (1907), aff'd, Standard Oil Co. v. Tennessee, 217 U.S. 413, 30 S. Ct. 543, 54 L. Ed. 817, 1910 U.S. LEXIS 1967 (1910).

Because T.C.A. § 40-2-102 pertains to criminal misdemeanors, it did not apply to a case involving violation of a city ordinance, which was a civil matter. City of Johnson City v. Paduch, 224 S.W.3d 686, 2006 Tenn. App. LEXIS 732 (Tenn. Ct. App. Nov. 16, 2006), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 300 (Tenn. Mar. 12, 2007).

9. Tolling Statute.

While it is true that the statute of limitations may be tolled when an offense is of a continuing nature, the specific facts which toll the limitation period must be pleaded and proved. State v. Thorpe, 614 S.W.2d 60, 1980 Tenn. Crim. App. LEXIS 350 (Tenn. Crim. App. 1980).

Where no allegation had been made by the state that any affirmative act by the defendant had taken place within the limitations period, the presentment was properly dismissed. State v. Thorpe, 614 S.W.2d 60, 1980 Tenn. Crim. App. LEXIS 350 (Tenn. Crim. App. 1980).

Where defendant was arrested on a warrant for D.U.I. and more than one year later was charged by indictment for driving while under the influence of an intoxicant and for driving with an alcohol concentration of .10 percent or more, his prosecution was commenced upon the execution of the arrest warrant for purposes of determining the running of the statute of limitations. State v. Tait, 114 S.W.3d 518, 2003 Tenn. LEXIS 826 (Tenn. 2003).

Trial court properly took judicial notice of its own prior proceedings; because defendant's first indictment was timely and pending at the time the grand jury returned the second indictment, the one-year statute of limitations applicable to misdemeanors under T.C.A. § 40-2-102(a) was tolled. The order of expunction should not have been entered and was of no effect and thus, defendant's conviction for driving under the influence, third offense, was proper. State v. Lawson, 291 S.W.3d 864, 2009 Tenn. LEXIS 514 (Tenn. Aug. 24, 2009).

10. Pleading Limitations.

Defense of statute of limitations in a criminal trial must be raised prior to trial or it is untimely. State v. Hill, 623 S.W.2d 293, 1981 Tenn. Crim. App. LEXIS 398 (Tenn. Crim. App. 1981).

11. Case Timely Commenced.

Trial court properly denied defendant's motion to dismiss the indictment, because the timely issuance of the arrest warrant commenced the prosecution of defendant's DUI and was will within the one-year statute of limitations. State v. Hughes, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 32 (Tenn. Crim. App. Jan. 15, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 511 (Tenn. June 29, 2016).

State timely commenced prosecution and therefore defendant's motion to dismiss was properly denied because defendant was bound over to the grand jury on the DUI charges within one year of the offense. State v. Parton, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 395 (Tenn. Crim. App. July 8, 2019).

12. Case Not Timely Commenced.

Because no arrest warrant was issued and the affidavit of complaint which purported to be the charging instrument was void, the State failed to commence any prosecution against defendant within the applicable statute of limitations and the trial court properly granted defendant's motion to dismiss. State v. Jones, 512 S.W.3d 258, 2016 Tenn. Crim. App. LEXIS 463 (Tenn. Crim. App. June 29, 2016).

Trial court properly granted defendant's motion to dismiss an indictment charging her with the misdemeanor offenses of driving under the influence and simple possession of marijuana because no document in the record qualified as a valid arrest warrant, the State failed to establish that defendant's first appearance in general sessions court was within the applicable statute of limitations, and more than one year had elapsed between date of the offenses and date defendant's case was bound over to the grand jury. State v. Hayes, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 466 (Tenn. Crim. App. June 29, 2016).

Record supported the trial court's dismissal of the charges against defendant because, despite the parties' and the trial court's apparent belief, the affidavit of complaint document, regardless of the validity of the procedure utilized to create it, did not evolve into an arrest warrant and was insufficient to commence the prosecution and thus, the case was not commenced before the expiration of the statute of limitations. State v. Gonzalez, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 530 (Tenn. Crim. App. July 21, 2016).

State failed to commence prosecution against defendant within the statute of limitations because no arrest warrant was issued, and the affidavit of complaint that purported to be the charging instrument was void and did not serve to charge defendant with any offense; accordingly, defendant's appearances did not serve to commence prosecution against him even though he did not raise the issue of the lack of any charging instrument because he had not been charged with any offenses at that time. State v. Jackson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 566 (Tenn. Crim. App. Aug. 4, 2016).

Circuit court properly granted defendant's motion to dismiss the misdemeanor charges of driving under the influence and following too closely because the prosecution was not commenced within the one-year statute of limitations, and the affidavit of complaint was invalid where it was signed before a notary public rather than a qualified judicial officer, and there was no evidence in the record to indicate that defendant did, in fact, make any court appearance prior to the time she waived her right to a preliminary hearing, more than one year after the commission of the offenses. State v. Helbert, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 183 (Tenn. Crim. App. Mar. 10, 2017).

Jury was properly instructed in defendant's trial because no lesser-included offense instructions were required as (1) the statute of limitations had expired as to the offenses and nothing showed defendant waived the statute of limitations, and (2) the jury's verdict showed the jury rejected any basis for the lesser-included offenses instead of the charged offenses. State v. Gossett, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 232 (Tenn. Crim. App. Mar. 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 482 (Tenn. Aug. 18, 2017).

40-2-103. Period of concealment of crime or absence from state.

No period during which the party charged conceals the fact of the crime, or during which the party charged was not usually and publicly resident within the state, is included in the period of limitation.

Code 1858, § 4988; Shan., § 6947; mod. Code 1932, § 11488; T.C.A. (orig. ed.), § 40-205.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 16.17, 16.85.

Tennessee Jurisprudence, 18 Tenn. Juris., Limitations of Actions, §§ 18, 42.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

NOTES TO DECISIONS

1. Facts Avoiding Bar — Necessity in Indictment.

Where the offense was not committed within the statutory period before suit, the indictment must aver the facts necessary to obviate the statutory bar, as that the defendant, for a certain specified period, was not usually and publicly resident within the state. State v. House, 2 Shan. 610 (1877).

2. Concealment.

Where victims were aware of the offenses for which defendant was convicted, but failed to tell the authorities, defendant's request to the victims that they not tell anyone about the offenses was not concealment, and did not toll the statute of limitations in a child abuse case. State v. Tidwell, 775 S.W.2d 379, 1989 Tenn. Crim. App. LEXIS 211 (Tenn. Crim. App. 1989).

Parental control alone is insufficient to constitute concealment under T.C.A. § 40-2-103. State v. Henry, 834 S.W.2d 273, 1992 Tenn. LEXIS 361 (Tenn. 1992).

Parental control, when coupled with positive acts of intimidation, sufficiently constitutes concealment so as to toll the statute. State v. Henry, 834 S.W.2d 273, 1992 Tenn. LEXIS 361 (Tenn. 1992).

In a prosecution for embezzlement, forgery, breach of trust and related offenses, where defendant went to great lengths to conceal her misappropriations, there was sufficient proof of concealment which tolled the applicable statutes of limitations. State v. White, 939 S.W.2d 113, 1996 Tenn. Crim. App. LEXIS 375 (Tenn. Crim. App. 1996).

3. Prosecution Untimely.

Institution of incest charges was not timely. State v. Henry, 834 S.W.2d 273, 1992 Tenn. LEXIS 361 (Tenn. 1992).

Defendant's 1988 indictments on three counts of aggravated rape, aggravated sexual battery, and use of a minor for obscene purposes all occurred more than four years after the offenses; therefore, since there was no evidence of concealment, including threats to the victims on the part of defendant, the proof was inadequate to support a tolling of the statutes of limitation, depriving the trial court of subject-matter jurisdiction. Morgan v. State, 847 S.W.2d 538, 1992 Tenn. Crim. App. LEXIS 731 (Tenn. Crim. App. 1992).

40-2-104. Commencement of prosecution.

A prosecution is commenced, within the meaning of this chapter, by finding an indictment or presentment, the issuing of a warrant, the issuing of a juvenile petition alleging a delinquent act, binding over the offender, by the filing of an information as provided for in chapter 3 of this title, or by making an appearance in person or through counsel in general sessions or any municipal court for the purpose of continuing the matter or any other appearance in either court for any purpose involving the offense. A prosecution is also commenced, within the meaning of this chapter, by finding an indictment or presentment or the issuing of a warrant identifying the offender by a deoxyribonucleic acid (DNA) profile.

Code 1858, § 4987; Shan., § 6946; mod. Code 1932, § 11485; Acts 1975, ch. 258, § 4; 1977, ch. 179, §§ 1, 2; T.C.A. (orig. ed.), § 40-206; Acts 2007, ch. 4, § 1; 2013, ch. 205, § 1.

Compiler's Note. Acts 2013, ch. 205, § 2 provided that the act, which added the last sentence of this section, shall apply to commencement of prosecution for any offense, regardless of when committed, except those offenses for which prosecution is barred on July 1, 2013, because the applicable time limitation set out in § 40-2-101 has expired.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 16.56, 16.84.

Tennessee Jurisprudence, 18 Tenn. Juris., Limitations of Actions, § 18.

Law Reviews.

The Right to a Preliminary Hearing and Effective Assistance of Counsel at a Preliminary Hearing in Tennessee, 43 Tenn. L. Rev. 635 (1976).

Attorney General Opinions. Retired misdemeanor cases. OAG 11-4, 2011 Tenn. AG LEXIS 4 (1/7/11).

Multiple crimes in single warrant. OAG 15-20, 2015 Tenn. AG LEXIS 20 (3/13/15).

NOTES TO DECISIONS

1. Running of Statute.

The statute of limitations applies to the period elapsing between the commission of the offense and the date that the prosecution is begun. State ex rel. Lewis v. State, 1 Tenn. Crim. App. 535, 447 S.W.2d 42, 1969 Tenn. Crim. App. LEXIS 289 (Tenn. Crim. App. 1969).

Tennessee courts have permitted the state to amend the indictment to allege facts which would toll the statute of limitations in cases in which the prosecution began after the limitations period had expired; however, amending the indictment to bring the offense within the statute of limitations does not deem the defendant to be prejudiced simply because the amendment affects the calculation of the limitations period, nor is the amendment viewed as charging a new offense, i.e., one that is not time-barred. State v. Kennedy, 10 S.W.3d 280, 1999 Tenn. Crim. App. LEXIS 569 (Tenn. Crim. App. 1999).

Plain language of T.C.A. § 40-2-104 provides five specific ways by which a prosecution may be commenced, and an affidavit of complaint is not listed among the alternatives; an affidavit of complaint is merely a statement alleging that a person has committed an offense pursuant to Tenn. R. Crim. P. 3 and is not, standing alone, sufficient to provide formal notice of the offense charged. Because an arrest warrant may or may not issue upon the affidavit of complaint, the affidavit of complaint will not necessarily provide a defendant with notice that he is being charged with an offense, and an affidavit of complaint, with nothing more to provide a defendant with notice, is not a charging instrument. State v. McCloud, 310 S.W.3d 851, 2009 Tenn. Crim. App. LEXIS 437 (Tenn. Crim. App. June 12, 2009).

Citation issued by an officer in lieu of a custodial arrest is not a formal accusation. Just as a warrantless custodial arrest does not, alone, commence a prosecution, a citation issued in lieu of an arrest is not the result of an independent probable cause determination and, therefore, does not mark the beginning of the prosecution. State v. McCloud, 310 S.W.3d 851, 2009 Tenn. Crim. App. LEXIS 437 (Tenn. Crim. App. June 12, 2009).

2. Timeliness.

Circuit court properly granted defendant's motion to dismiss an indictment charging him with driving under the influence because the prosecution was not commenced within the one-year statute of limitations, the affidavit of complaint was signed before a notary public rather than a qualified judicial officer, and there was no evidence in the record to indicate that defendant did, in fact, make any court appearance prior to the time he waived his right to a preliminary hearing, more than one year after the commission of the offenses. State v. Grieco, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 182 (Tenn. Crim. App. Mar. 10, 2017).

3. Case Timely Commenced.

Trial court properly denied defendant's motion to dismiss the indictment, because the timely issuance of the arrest warrant commenced the prosecution of defendant's DUI and was will within the one-year statute of limitations State v. Hughes, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 32 (Tenn. Crim. App. Jan. 15, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 511 (Tenn. June 29, 2016).

4. Case Not Properly Commenced.

Record supported the trial court's dismissal of the charges against defendant because the affidavit of complaint document, regardless of the validity of the procedure utilized to create it, did not evolve into an arrest warrant and was insufficient to commence the prosecution. State v. Shell, 512 S.W.3d 267, 2016 Tenn. Crim. App. LEXIS 474 (Tenn. Crim. App. June 29, 2016).

40-2-105. Suspension of statute because of irregularities in prosecution.

When the judgment is arrested, or the indictment or presentment quashed for any defect in the indictment or presentment, or for the reason that it was not found by a grand jury regularly organized, or because it charged no offense, or for any other cause, or when the prosecution is dismissed because of a variance between the allegations of the indictment or presentment and the evidence, and a new indictment or presentment is ordered to be preferred, the time elapsing between the preferring of the first charge, indictment or presentment and the next subsequent term of court must be deducted from the time limited for the prosecution of the offense last charged.

Code 1932, § 11486; T.C.A. (orig. ed.), § 40-207.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 1.2, 12.36, 16.1, 16.85.

Law Reviews.

Criminal Law and Procedure — 1960 Tennessee Survey (Robert E. Kendrick), 13 Vand. L. Rev. 1059 (1960).

NOTES TO DECISIONS

1. Application and Scope.

This section was inapplicable where first indictment had not been quashed before another indictment was brought and second indictment was not ordered by court but apparently was brought on the initiative of the district attorney general. State v. Comstock, 205 Tenn. 389, 326 S.W.2d 669, 1959 Tenn. LEXIS 377 (1959).

40-2-106. Suspension on reversal.

When an indictment or presentment is quashed, or the proceedings on the indictment or presentment are set aside, or reversed on writ of error, the time during the pendency of the indictment or presentment so quashed, set aside or reversed shall not be reckoned within the time limited by this chapter, so as to bar any new indictment or presentment for the same offense.

Code 1932, § 11487; T.C.A. (orig. ed.), § 40-208.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 16.85.

Tennessee Jurisprudence, 18 Tenn. Juris., Limitations of Actions, § 18.

NOTES TO DECISIONS

1. Application and Scope.

Where first indictment for misdemeanor was brought within the period of one year from the commission of the offense and second indictment was brought on initiative of district attorney general, this section would have been applicable and the time during which the first indictment was pending would have tolled the statute if the specific facts necessary for the tolling of the statute had been pleaded and proved, but where this was not done the second indictment was barred when brought after a lapse of more than 12 months. State v. Comstock, 205 Tenn. 389, 326 S.W.2d 669, 1959 Tenn. LEXIS 377 (1959).

Chapter 3
Methods of Prosecution

Part 1
General Provisions

40-3-101. Methods enumerated.

No person shall be put to answer any criminal charge, but by presentment, indictment or impeachment; provided, that, in accordance with this chapter, an accused represented by an attorney may waive the right to be tried upon presentment or indictment and consent to prosecution by information.

Code 1858, § 4989; Shan., § 6948; mod. Code 1932, § 11489; Acts 1975, ch. 258, § 1; T.C.A. (orig. ed.), § 40-301.

Cross-References. Indictment or presentment, title 40, ch. 13.

Indictments, presentments and information, Tenn. R. Crim. P. 7.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 22.50, 22.52.

NOTES TO DECISIONS

1. Form of Presentment.

There are no specifications or requirements in the constitution or code as to the form or manner or method in which a presentment must be made. Stoots v. State, 205 Tenn. 59, 325 S.W.2d 532, 1959 Tenn. LEXIS 341 (1959).

2. Private Act — Constitutionality.

An act which conferred power upon a particular city court to determine its jurisdiction by making its own classification of misdemeanors, and to arraign without presentment or indictment and try without a jury, was contrary to the law of the land. Spurgeon v. Worley, 169 Tenn. 697, 90 S.W.2d 948, 1935 Tenn. LEXIS 98 (1936).

3. Validity of Judgment.

Where there was no charging document in the municipal court records, the city judge had no jurisdiction to entertain the defendant's guilty plea and the resulting judgment was void. Myers v. State, 577 S.W.2d 679, 1978 Tenn. Crim. App. LEXIS 279 (Tenn. Crim. App. 1978).

4. Trial in Absentia.

Inmate filed a claim against the state alleging that the trial judge deprived him of his statutory rights because the indictments against him were void and because he was tried, convicted, and sentenced in absentia; he based his claim on T.C.A. §§ 40-3-101, 40-14-101, 40-14-102, 40-17-105, and 40-18-118, and Tenn. R. Crim. P. 43, but none of those statutes and rules expressly conferred a private right of action against the state to him; thus, the Tennessee claims commission for the eastern grand district did not err when it held that it lacked subject matter jurisdiction over the inmate's claim pursuant to T.C.A. § 9-8-307(a)(1)(N) and that the inmate failed to state a claim upon which relief can be granted. Therefore, pursuant to Tenn. Const. art. I, § 17, the commission did not err when it granted the state's motion to dismiss, Tenn. R. Civ. P. 12.02(1). Williams v. State, 139 S.W.3d 308, 2004 Tenn. App. LEXIS 43 (Tenn. Ct. App. 2004), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 530 (Tenn. June 1, 2004), appeal denied, Williams v. Parker, — S.W.3d —, 2006 Tenn. LEXIS 9 (Tenn. 2006).

40-3-102. Indictment or presentment.

All violations of the criminal laws may be prosecuted by indictment or presentment of a grand jury, and a presentment may be made upon the information of any one (1) of the grand jury.

Code 1858, § 4990 (deriv. Acts 1841-1842, ch. 141, § 4); Shan., § 6949; Code 1932, § 11490; T.C.A. (orig. ed.), § 40-302.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

NOTES TO DECISIONS

1. Purpose.

This section was intended to make offenses which were indictable also presentable and vice versa, and to make the knowledge and information of one grand juror sufficient for a presentment, but it was not intended to create new misdemeanors. State v. Maze, 25 Tenn. 17, 1845 Tenn. LEXIS 1 (1845).

2. Source of Jury's Information.

Presentment need not show that it was found upon information or knowledge of the grand jury, or any one of them. State v. Lewis, 87 Tenn. 119, 9 S.W. 427, 1888 Tenn. LEXIS 42 (1888).

Presentment did not show that it was found upon the testimony of witnesses, because of the endorsed designation of witnesses to be summoned by the state. State v. Lewis, 87 Tenn. 119, 9 S.W. 427, 1888 Tenn. LEXIS 42 (1888); Sadler v. State, 124 Tenn. 50, 136 S.W. 430, 1910 Tenn. LEXIS 40 (1911).

The question as to the basis on which the grand jury has made the presentment can be raised only by plea in abatement, not by motion to quash. State v. Lewis, 87 Tenn. 119, 9 S.W. 427, 1888 Tenn. LEXIS 42 (1888); Bowman v. State, 160 Tenn. 305, 23 S.W.2d 658, 1929 Tenn. LEXIS 106 (1930).

A presentment may be returned, either upon the personal information or knowledge of the grand jurors, or one of them, or upon the testimony of witnesses heard by them. Sadler v. State, 124 Tenn. 50, 136 S.W. 430, 1910 Tenn. LEXIS 40 (1911).

3. Endorsement.

Although an indictment must be endorsed “a true bill” since it is signed only by the foreman of the grand jury, a presentment, which is signed by all of the grand jurors, need not be endorsed “a true bill,” the section being significantly silent as to such endorsements being required. Martin v. State, 127 Tenn. 324, 155 S.W. 129, 1912 Tenn. LEXIS 30 (1913).

The requirements for the authentication of indictments by endorsement and minute entry are not, by statute, made applicable to presentments, which are required to be authenticated by the signatures of all the grand jurors, and hence need not be evidenced by such endorsement and minute entry required as to indictments. Martin v. State, 127 Tenn. 324, 155 S.W. 129, 1912 Tenn. LEXIS 30 (1913).

There is no requirement that a presentment be signed by all of the grand jurors. Stoots v. State, 205 Tenn. 59, 325 S.W.2d 532, 1959 Tenn. LEXIS 341 (1959).

Presentment was not invalid because a member of the grand jury who was selected as secretary endorsed the names of other grand jury members with their authorization and in their presence. Stoots v. State, 205 Tenn. 59, 325 S.W.2d 532, 1959 Tenn. LEXIS 341 (1959).

4. Form of Making Presentments.

There are no specifications or requirements in the constitution or code as to the form, manner or method in which a presentment must be made. Stoots v. State, 205 Tenn. 59, 325 S.W.2d 532, 1959 Tenn. LEXIS 341 (1959).

40-3-103. Information.

All violations of the criminal laws may, with the consent of the accused and the accused's attorney and of the court, be prosecuted upon the filing of an information.
“Information” means a written statement by a district attorney general charging a person with the commission of a criminal offense.
1. It is the mandatory duty of the court, before consenting to a prosecution by information, to advise the accused in the presence of the accused's attorney of the accused's constitutional right to be tried only upon presentment or indictment of the grand jury of the accused's peers.
2. Upon the accused's agreeing in writing in the presence of the accused's attorney to waive such right, the court may proceed in all respects as in cases prosecuted by indictment or presentment.
3. The written waiver required in subdivision (c)(2) shall be attached to and become a part of the information.

Acts 1975, ch. 258, §§ 2, 3; T.C.A., §§ 40-306, 40-307.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 9.2, 22.50, 24.11, 22.52.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

40-3-104. Actions in name of state.

All criminal actions are prosecuted in the name of the state of Tennessee against the party charged with the offense.

Code 1858, § 4991; Shan., § 6950; Code 1932, § 11491; T.C.A. (orig. ed.), § 40-303.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 12.4.

Attorney General Opinions. Standing of bonding company to commence failure to appear action. OAG 12-83, 2012 Tenn. AG LEXIS 82 (8/23/12).

40-3-105. Prosecution for same offense in both state and municipal court prohibited.

Whenever the commission of any act or the omission to act under certain circumstances constitutes both a violation of state law and a violation of municipal law, notwithstanding the fact that different penalties are provided, no person shall be prosecuted in both a state court and a municipal court for the same offense.
A dismissal on the merits, acquittal or conviction of the offense in one (1) court, pleaded and shown, shall be a bar to prosecution for the offense in the other court.

Acts 1971, ch. 183, § 1; 1972, ch. 659, § 1; T.C.A., § 40-305.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 16.109.

Part 2
Fraud and Economic Crimes Prosecution Act

40-3-201. Short title.

This part shall be known and may be cited as the “Fraud and Economic Crimes Prosecution Act.”

Acts 1984, ch. 998, § 1.

Cross-References. Worthless checks provisions, not repealing or amending Fraud and Economic Crimes Prosecution Act, § 39-14-121.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 28.97.

Attorney General Opinions. A district attorney general is not authorized to contract with a private company to run a pretrial restitution/diversion program for worthless checks, OAG 07-031 (3/22/07).

40-3-202. Legislative intent.

The intent of this part is to provide district attorneys general of this state the resources necessary to deal effectively with fraud, economic, and other crimes, and to provide a means for obtaining restitution in bad check cases prior to the institution of formal criminal charges. Subject to the limitations of § 40-3-209(b), the use of any moneys collected under this part shall be directly related to fulfilling the prosecutorial duties of the district attorney general of the district and shall include, but not be limited to, the following:

The enhancement of those resources as may already be available in each district for the prosecution of bad check cases, fraud and other economic crimes and to increase assistance to the victims of those crimes by aiding in the collection of restitution;
The hiring of expert witnesses including, but not limited to, computer specialists, as the need arises;
The expenses of specialized training for staff members to enhance their knowledge of methods of combating fraud and economic crimes and general criminal law enforcement when funds for training are not available; provided, that payment for training shall be limited to in-state programs unless the district attorney general determines that training is essential and not reasonably available within this state;
Matching federal grants directly related to prosecutorial duties of the district attorney general;
Salaries and salary supplements, which may only be paid through the district attorneys general conference for support staff (subject to the limitation of § 40-3-209(b) on the use of any funds to supplement the salary of any assistant district attorneys); provided, however, that not later than January 1, 2004, the district attorneys general conference shall perform, or cause to be performed, a classification/compensation study of support staff reasonably required for the effective operation of district attorneys general offices;
The purchase of equipment and supplies necessary to carry out the purposes of this part; and
The expenses of travel in the performance of official duties of the office that are directly related to prosecution of fraud and economic crimes and general criminal law enforcement when funds for travel are not available, subject to the limitations of the state of Tennessee comprehensive travel regulations. No moneys collected under this part shall be used to pay travel expenses in excess of the rates authorized under state travel regulations.

Acts 1984, ch. 998, § 2; 2003, ch. 291, § 1.

40-3-203. Bad check restitution program — Application — Fees and charges — Failure to pay bad check.

Before commencing a criminal prosecution in a bad check case, any victim, including any municipal, county or state officer that has received a bad check, may apply to the clerk who serves the court of general criminal jurisdiction in the county where the alleged offense occurred for participation in the bad check restitution program. Upon completion of an application form and the payment of a ten-dollar fee by the victim, the clerk shall forward the form to the district attorney general, who shall then send a letter to the last known address of the alleged violator stating that unless the amount of the check plus the application fee and a handling charge of ten dollars ($10.00) is paid to the holder of the check within fifteen (15) days, a criminal prosecution may be commenced.
The application form shall contain the name and address of the victim, the name and the address of the alleged violator, and shall have attached thereto a photocopy of the bad check. Except in those cases enumerated in § 39-14-121(e), the application shall also contain a sworn statement that the alleged violator has failed to pay the check within ten (10) days of receiving notice of the drawee's refusal to pay.
The application fee shall be forwarded by the clerk to the county trustee as provided in § 40-3-207, with the clerk retaining five dollars ($5.00) as a fee for handling.
In the event the alleged violator does not pay the check and is ultimately convicted of a criminal charge with respect to the check, any order directing the defendant to pay to the holder the amount due on the check shall also direct the defendant to reimburse the application fee paid under this section as well as to pay to the holder a handling fee of ten dollars ($10.00).

Acts 1984, ch. 998, § 3; 1985, ch. 175, §§ 1, 2; 1992, ch. 962, § 4.

40-3-204. Fees in criminal prosecutions.

In criminal prosecutions, judges shall order that fees, in accordance with the schedule listed in subdivisions (b)(1)-(3), be paid by the person or corporations against whom the costs are taxed, and the clerk of the court shall collect those fees when the costs are paid. The state of Tennessee, and any county or political subdivision, shall be exempt from such costs.
1. Worthless Check Prosecutions. The amount of the fee shall be determined as follows:
  1. If the face amount of the check or sight order is under ten dollars ($10.00), the fee shall be five dollars ($5.00);
  2. If the face amount of the check or sight order is ten dollars ($10.00) or more but less than one hundred dollars ($100), the fee shall be ten dollars ($10.00);
  3. If the face amount of the check or sight order is one hundred dollars ($100) or more but less than three hundred dollars ($300), the fee shall be thirty dollars ($30.00);
  4. If the face amount of the check or sight order is three hundred dollars ($300) or more but less than five hundred dollars ($500), the fee shall be fifty dollars ($50.00); and
  5. If the face amount of the check or sight order is five hundred dollars ($500) or more, the fee shall be seventy-five dollars ($75.00).
2. Forgery Prosecutions. The face amount of the check or money order shall be the determining factor in arriving at the proper fee, and the same schedule that is established for worthless check prosecutions shall be applicable to forgery cases.
3. Other Prosecutions. In all offenses specified in title 39, chapter 14, parts 1 and 6, the fee shall be seventy-five dollars ($75.00), regardless of the amount alleged to have been stolen or taken.

Acts 1984, ch. 998, § 4; 1994, ch. 902, § 1.

Cross-References. Computer offenses, title 39, ch. 14, part 6.

Forgery, § 39-14-114.

Theft, title 39, ch. 14, part 1.

Worthless checks, § 39-14-121.

40-3-205. Payment of fees.

The fees set out in § 40-3-204 shall be paid under the following circumstances:

In all cases where costs are paid by the defendant as a condition for dismissal of charges pursuant to a plea negotiation;
In all cases where the defendant agrees to pay the costs in exchange for a dismissal of charges; and
In all cases where the defendant is convicted before a judge or jury.

Acts 1984, ch. 998, § 5.

40-3-206. Collection of fees — Clerk's fee.

Any fees collected pursuant to this part shall be collected by the clerk of the court in the same manner in which other costs are collected. The clerk shall be entitled to a reasonable handling fee not to exceed five percent (5%) of the amount collected; provided, that in counties having a population of more than seven hundred thousand (700,000), according to the 1990 federal census or any subsequent federal census, the fee shall not exceed ten percent (10%) of the amount collected.

Acts 1984, ch. 998, § 6; 1995, ch. 456, § 9.

Compiler's Notes. For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

40-3-207. Deposit of fees — Records — Reports — Audits.

The clerk in each county shall deposit all fees collected in accordance with this part in an account with the county trustee in the county of the district attorney general's residence, and expenditures from this fund shall be made by the district attorney general only for the purposes provided in § 40-3-202.
The district attorney general shall keep strict records as to the use of the funds, and shall annually submit to the comptroller of the treasury, for audit and comment, a detailed report of expenditures.
In addition, the account maintained in the trustee's office shall be subject to audit by the comptroller of the treasury as a part of the comptroller of the treasury's regular post audit of county governmental agencies.

Acts 1984, ch. 998, § 7; 2003, ch. 291, § 2.

40-3-208. Immunity of officials and employees.

The district attorney general and assistant district attorneys general, district attorney general's investigators, district attorney general's secretaries and any other employee of the district attorney general shall not be civilly or criminally liable for acts performed pursuant to this part or in furtherance of the purposes of this part except as those acts relate to expenditure of and accounting for moneys collected under this part.

Acts 1984, ch. 998, § 9; 2003, ch. 291, § 3.

Cross-References. Sovereign immunity, § 20-13-102.

Tennessee Governmental Tort Liability Act, § 29-20-101 et seq.

40-3-209. Prosecuting attorney's office — Compensation not decreased — Authorized and unauthorized use of funds.

Nothing in this part shall be construed to decrease the total salaries, expense funds and allowances that the prosecuting attorney's office is receiving on July 1, 1984.
The district attorney general shall not use any of the funds collected pursuant to this part to supplement the district attorney general's salary, or to supplement the salary of any assistant district attorney general or other employee of a district attorney general, except as provided in § 40-3-202(5); provided, that should the state of Tennessee not have funds available to pay the salary and benefits of any district attorney general, assistant district attorney general or other employee of a district attorney general's office authorized by law to receive pay and benefits from the state of Tennessee, then in that event each district attorney general shall have the authority to transfer an amount from funds collected pursuant to this part sufficient to meet the district attorney general's office payroll to the state general fund, earmarked for payment of the salaries and benefits of the employees of the transferring district attorney general, so long as such funds exist. In no case shall any salaries and benefits so paid be greater than those otherwise authorized by state law. Funds collected pursuant to this part shall be expended only in furtherance of the purposes of this part.

Acts 1984, ch. 998, §§ 8, 10; 1992, ch. 785, § 1; 2003, ch. 291, § 4.

40-3-210. Existing laws not repealed — Fees additional.

This part does not repeal any existing statute and the fees described in this part shall be in addition to those already provided by law.

Acts 1984, ch. 998, § 11.

Chapter 4
Proceedings Before General Sessions Courts

40-4-101. Preliminary proceedings.

Judges of the courts of general sessions are authorized and empowered to:

Make the preliminary examination and bind over the reputed father in bastardy cases;
Summon a jury of inquest in cases of death by accident, as provided in § 38-5-103;
Issue a warrant for a prisoner escaped from jail;
Examine persons arrested for a crime;
Bind a defendant over to court if probable cause be found; and
Take bail in bailable offenses brought before the judges.

Code 1858, § 4970 (deriv. Acts 1715, ch. 16, § 1; 1741, ch. 14, § 10; 1777, ch. 8, § 9; 1817, ch. 100, § 1; 1825, ch. 36, § 4; 1831, ch. 4, § 1); Shan., § 6931; Code 1932, § 11470; T.C.A. (orig. ed.), § 40-401; Acts 1993, ch. 241, § 58.

Cross-References. Arrest for intoxication, §§ 33-10-202 and 33-10-203.

Initial appearance and preliminary examination, Tenn. R. Crim. P. 5, 5.1.

Jurisdiction of general sessions courts, §§ 16-15-401, 16-15-501, 40-1-109.

Law Reviews.

The Right to a Preliminary Hearing and Effective Assistance of Counsel at a Preliminary Hearing in Tennessee, 43 Tenn. L. Rev. 635 (1976).

40-4-102. Investigation by grand jury.

The grand jury shall make an investigation as to the offense charged in a warrant to have been committed, to the end that it may return an indictment or presentment, as prescribed and required by law for the charged offense.
If an indictment or presentment is found against the defendant, the defendant shall then be proceeded with as now required by law in those cases.
If no indictment or presentment is found, the defendant shall be discharged.
The grand jury shall, immediately upon the receipt of the papers in the case, proceed to an investigation, and those cases shall have preference in the order presented over all other cases to be investigated by the grand jury.

Acts 1899, ch. 16, § 2; Shan., § 7034a2; Code 1932, § 11576; T.C.A. (orig. ed.), § 40-403.

Cross-References. Grand jury, Tenn. R. Crim. P. 6.

40-4-103. Plea of guilty.

If the defendant pleads guilty to the charges in the warrant, the proceedings in the case shall then be the same in all respects as now prescribed by law.

Acts 1899, ch. 16, § 3; Shan., § 7034a3; Code 1932, § 11577; T.C.A. (orig. ed.), § 40-405.

Law Reviews.

Pleading Guilty: Indigent Defendant Perceptions Of The Plea Process, 13 Tenn. J. L. & Pol'y 459 (Winter 2019).

NOTES TO DECISIONS

1. In General.

Before accepting a plea of guilty, the court must address the defendant personally in open court and inform him of, and determine that he understands, among other things, the following: (1) The nature of the charge and the penalty; (2) That a different or additional punishment may result by reason of prior convictions or other factors; (3) That he has a right to be represented by an attorney and that an attorney will be appointed if necessary; and (4) That he has the right to plead not guilty. The court must furthermore determine that the plea is voluntary and that there is a factual basis for the plea; a verbatim record of the proceedings must be made. State v. Mackey, 553 S.W.2d 337, 1977 Tenn. LEXIS 579 (Tenn. 1977), superseded by statute as stated in, State v. Chastain, 871 S.W.2d 661, 1994 Tenn. LEXIS 26 (Tenn. 1994), superseded by statute as stated in, State v. Wilson, 31 S.W.3d 189, 2000 Tenn. LEXIS 519 (Tenn. 2000).

40-4-104. [Reserved.]

If the charge is of violence to the person of another, the person on whom the violence has been committed shall be notified of the time and place of trial, so that such person may attend and be heard as a witness. Should the person conceal such person's location so as to avoid the service of notice, or fail to attend after due notice, the trial may be proceeded with as in other cases.

Code 1858, §§ 4995, 4996 (deriv. Acts 1849-1850, ch. 247, § 1; 1851-1852, ch. 15, § 2); Shan., §§ 6954, 6955; Code 1932, §§ 11495, 11496; T.C.A. (orig. ed.), § 40-409.

Cross-References. Domestic abuse, title 36, ch. 3, part 6.

Offenses against the person, title 39, ch. 13.

NOTES TO DECISIONS

1. Averment in Plea of Former Conviction.

The defendant's plea of former conviction must aver that the party against whose person the alleged violence was done was notified of the time and place of trial, or that he was present at the same. Fulkner v. State, 50 Tenn. 33, 1870 Tenn. LEXIS 231 (1870); Mikels v. State, 50 Tenn. 321, 1871 Tenn. LEXIS 104 (1871).

40-4-106. Payment of fine and costs.

On conviction, the offender shall immediately pay the fine and costs, or give security to pay them, or be imprisoned until they are paid. The fine and costs, if paid before execution, shall be paid to the clerk; if paid after execution, to the officer having the execution.

Code 1858, §§ 4997, 5002 (deriv. Acts 1847-1848, ch. 55, §§ 2, 7); Shan., §§ 6956, 6961; Code 1932, §§ 11497, 11501; T.C.A. (orig. ed.), § 40-410.

Cross-References. Costs of malicious or frivolous prosecutions, § 40-25-126.

Law Reviews.

The Tennessee Court System — General Sessions Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 375.

NOTES TO DECISIONS

1. Judge's Failure to Collect as Default.

A judge, who ignorantly or carelessly fails to collect money required to be paid by an offender under this section, does not thereby become a defaulter in such a sense as to render him ineligible to office. Zirkle v. Stegall, 163 Tenn. 323, 43 S.W.2d 192, 1931 Tenn. LEXIS 120 (1931).

40-4-107. Security for fine and costs.

One (1) or more persons may become security for the fine and costs by oral undertaking before the judge of the court of general sessions, or by written direction to the judge, and an entry of judgment based thereon.

Code 1858, §§ 4998, 5003 (deriv. Acts 1847-1848, ch. 55, §§ 3, 6); Shan., §§ 6957, 6962; Code 1932, §§ 11498, 11502; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 40-411; Acts 1993, ch. 241, § 59.

40-4-108. Execution for fine and costs.

If the offender gives security for fines and costs, the judge shall immediately issue execution against the offender and the offender's surety for the fine and costs, returnable as other executions.

Code 1858, § 4999 (deriv. Acts 1847-1848, ch. 55, § 4); Shan., § 6958; Code 1932, § 11499; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 40-412.

Cross-References. Collection of fees through circuit or criminal court, § 40-25-126 et seq.

40-4-109. [Reserved.]

The proceedings under this chapter may be superseded and removed, by certiorari, to the circuit court of the county, upon good cause shown by petition of any person aggrieved, verified by affidavit, upon the order of any district or criminal judge to whom the petition is presented.

Code 1858, § 5012 (deriv. Acts 1847-1848, ch. 55, § 22); Shan., § 6971; Code 1932, § 11510; T.C.A. (orig. ed.), § 40-414.

40-4-111. Bail pending appeal.

The defendant obtaining writs of certiorari and supersedeas may be discharged from custody upon giving bond and security for the defendant's appearance before the district or criminal court as in other misdemeanor cases.

Code 1858, § 5013 (deriv. Acts 1847-1848, ch. 55, § 23); Shan., § 6972; Code 1932, § 11511; T.C.A. (orig. ed.), § 40-415.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, §§ 4, 5.

40-4-112. Appeal from sentence imposed.

Notwithstanding any other provision of the law to the contrary, any person convicted of a criminal offense in a court of general sessions has the right to appeal the sentence imposed, without regard to whether the person was convicted upon a plea of guilty or upon a plea of not guilty.

Acts 1979, ch. 322, § 1; T.C.A., § 40-417.

Rule Reference. This section is referred to in the Advisory Commission Comments under Rule 5 of the Tennessee Rules of Criminal Procedure.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 7.6, 7.9, 7.13, 16.109.

40-4-113 — 40-4-115. [Reserved.]

Any failure to comply with the requirements of this chapter by the officers named is a misdemeanor in office, and those officers are liable to judgments on their bonds, by motion, as in other cases of official bonds.

Code 1858, § 5010 (deriv. Acts 1851-1852, ch. 159, § 2); Shan., § 6969; Code 1932, § 11509; T.C.A. (orig. ed.), § 40-422.

Compiler's Notes. The misdemeanor offense provided in this section may be affected by the Criminal Sentencing Reform Act of 1989. See §§ 39-11-114, 40-35-110, 40-35-111.

40-4-117. Bail — Forfeiture.

In all misdemeanor cases where bond is made for appearance before the court of general sessions, the judge is authorized and empowered to prescribe the amount of bail, either cash or otherwise, within the same discretionary powers as are granted to judges of the circuit and criminal courts by § 40-11-204.
Upon default in appearance of the defendant, the judge before whom the default occurs is authorized to grant relief, lessen or remit liability upon the recognizance in such cases as provided for other courts in §§ 40-11-203 and 40-11-204; and, in the case of cash bonds, the judge may hear proof and order a fine and costs paid out of the cash bond.
The unused surplus of cash bonds and other funds in excess of costs paid for exoneration of sureties shall be disbursed by the clerk as provided by law for forfeitures.

Acts 1959, ch. 109, § 10; T.C.A., § 40-424; Acts 1993, ch. 382, § 2.

Code Commission Notes.

Former subsection (d), concerning a judge's authorization to follow the procedure in misdemeanor cases, was deemed obsolete by the Code Commission in 2006.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.45.

40-4-118 — 40-4-120. [Reserved.]

In all counties of this state having a population of not less than three hundred seventy thousand (370,000) nor more than four hundred thousand (400,000), according to the federal census of 2000 or any subsequent federal census, legal process in all cases wherein a violation of the laws of the state of Tennessee is charged shall be returnable to the general sessions courts of the various counties coming within §§ 40-4-121 — 40-4-124.
The judges of those courts shall have sole and exclusive jurisdiction, pursuant to the Small Offense Law [repealed], to hear and make final determination of all cases.
Appeals to the rulings of the general sessions courts may be filed as is presently provided by law.
Any preliminary hearing in the general sessions courts shall be conducted in accordance with existing state law.

Acts 1970, ch. 464, § 1; 1972, ch. 611, § 1; 1980, ch. 581, § 1; T.C.A., § 40-427; Acts 2002, ch. 515, § 1.

Compiler's Notes. The Small Offense Law (Acts 1943, ch. 40, § 1; mod. C. Supp. 1950, § 11494.1 (Williams, § 11575); T.C.A. (orig. ed.), § 40-408), referred to in this section, was repealed by Acts 1979, ch. 339, § 1. For new law, see Tenn. R. Crim. P. 5.

For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

NOTES TO DECISIONS

1. Constitutionality.

T.C.A. § 40-4-121 is not in contravention of the home rule amendment in Tenn. Const., art. XI, § 9. Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193, 1984 Tenn. LEXIS 804 (Tenn. 1984).

2. Construction.

The provisions of T.C.A. §§ 40-4-121 — 40-4-124 are not private or local in nature, but constitute a general act. Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193, 1984 Tenn. LEXIS 804 (Tenn. 1984).

3. Legislative Intent.

T.C.A. §§ 16-17-101 — 16-17-105 are not intended to repeal T.C.A. §§ 40-4-121 — 40-4-124. Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193, 1984 Tenn. LEXIS 804 (Tenn. 1984).

4. State Criminal Jurisdiction.

T.C.A. §§ 16-17-101 and 16-17-103 (now repealed) do not confer state criminal jurisdiction upon corporation courts in those municipalities within counties whose jurisdiction was removed by T.C.A. §§ 40-4-121 — 40-4-124. Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193, 1984 Tenn. LEXIS 804 (Tenn. 1984).

40-4-122. Municipal courts divested of jurisdiction.

It is expressly provided that the municipal courts which are located in counties of this state coming within §§ 40-4-121 — 40-4-124 shall not have any jurisdiction of cases wherein a violation of the laws of the state of Tennessee is charged and alleged, it being the legislative intent of §§ 40-4-121 — 40-4-124 to vest jurisdiction of those cases in the various general sessions courts of the counties coming within §§ 40-4-121 — 40-4-124. The offenses enumerated in subsection (b) are declared to be state offenses, and any person charged for violation of those offenses shall be tried only in state courts, as provided in § 40-4-121, in which jurisdiction shall be exclusive. Any ordinance presently enacted to regulate any of the enumerated offenses, or to be later enacted, is declared to be void, repealed and of no effect.
The enumerated offenses are as follows:
1. Driving while intoxicated or drugged, as forbidden by § 55-10-401;
2. Failing to stop after a traffic accident, as forbidden by title 55, chapter 10, part 1;
3. Driving while license suspended or revoked, as forbidden by § 55-50-504; and
4. Drag racing, as defined and forbidden by § 55-10-501.

Acts 1970, ch. 464, § 2; T.C.A., § 40-428.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 18.81.

NOTES TO DECISIONS

1. Constitutionality.

T.C.A. § 40-4-122 is not in contravention of the home rule amendment in Tenn. Const., art. XI, § 9. Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193, 1984 Tenn. LEXIS 804 (Tenn. 1984).

2. Construction.

3. Legislative Intent.

T.C.A. § 16-17-101 et seq. are not intended to repeal T.C.A. § 40-4-121 et seq. Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193, 1984 Tenn. LEXIS 804 (Tenn. 1984).

4. State Criminal Jurisdiction.

Municipal courts of the City of Knoxville do not have jurisdiction over state criminal offenses committed within the municipal boundaries. Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193, 1984 Tenn. LEXIS 804 (Tenn. 1984).

If the general assembly could validly confer state criminal jurisdiction upon the municipal courts of Knoxville as it did years ago in the early charter provisions, it could also remove that jurisdiction without violating the Home Rule Amendment or any other provisions of the state constitution; it has plenary power in conferring jurisdiction of criminal offenses against the state, and may add this to corporation courts or withdraw it, in its discretion, under Tenn. Const., art. VI, § 1. Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193, 1984 Tenn. LEXIS 804 (Tenn. 1984).

5. Preliminary Hearing.

Fact that preliminary hearing was before municipal court which bound defendant over to grand jury did not affect validity of indictment properly found by grand jury. Farr v. State, 506 S.W.2d 811, 1974 Tenn. Crim. App. LEXIS 297 (Tenn. Crim. App. 1974).

40-4-123. Distribution of fines, forfeitures and penalties.

In all counties coming within the provisions of §§ 40-4-121 — 40-4-124, the clerk of the general sessions court, on or before the tenth day of each month, shall pay over to the proper official of any municipality located within the county, fifty percent (50%) of all fines, forfeitures or penalties arising out of those cases disposed of in the general sessions courts during the preceding month where the arrests and prosecution of those cases were made by police officers of any municipality located within any county affected by the provisions of §§ 40-4-121 — 40-4-124. The remainder and all other fines shall be paid and accounted for as provided by law.

Acts 1970, ch. 464, § 4; T.C.A., § 40-429.

NOTES TO DECISIONS

1. Constitutionality.

T.C.A. § 40-4-123 is not in contravention of the home rule amendment in Tenn. Const., art. XI, § 9. Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193, 1984 Tenn. LEXIS 804 (Tenn. 1984).

2. Construction.

3. Legislative Intent.

T.C.A. § 16-17-101 et seq. are not intended to repeal T.C.A. § 40-4-121 et seq. Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193, 1984 Tenn. LEXIS 804 (Tenn. 1984).

4. State Criminal Jurisdiction.

40-4-124. Effect on private acts and city charters.

Sections 40-4-121 — 40-4-124 shall govern the structure and operation of the general sessions courts in counties falling within the provisions of those sections, notwithstanding any private act or city charter to the contrary, and the operation of any private act or city charter in conflict with these sections is repealed and suspended.

Acts 1970, ch. 464, § 6; T.C.A., § 40-430.

NOTES TO DECISIONS

1. Constitutionality.

T.C.A. § 40-4-124 is not in contravention of the home rule amendment in Tenn. Const., art. XI, § 9. Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193, 1984 Tenn. LEXIS 804 (Tenn. 1984).

2. Construction.

3. Legislative Intent.

T.C.A. § 16-17-101 et seq. are not intended to repeal T.C.A. § 40-4-121 et seq. Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193, 1984 Tenn. LEXIS 804 (Tenn. 1984).

4. State Criminal Jurisdiction.

40-4-105. Notice of trial to victim of personal violence.

40-4-110. Appeal of proceedings.

40-4-116. Liability for neglect of duty.

40-4-121. Jurisdiction of general sessions courts in certain counties.

Chapter 5
Magistrates and Judicial Commissioners

Part 1
Examination Before Magistrates

40-5-101. “Magistrate” defined.

A magistrate is an officer having power to issue a warrant for the arrest of a person charged with a public offense.

Code 1858, § 5015; Shan., § 6974; Code 1932, § 11513; T.C.A. (orig. ed.), § 40-602.

Cross-References. Officials designated as magistrates, § 40-1-106.

Power to issue warrants of arrest, § 40-6-202.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 1.6.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

NOTES TO DECISIONS

1. Issuance of Search Warrants.

Because a retired judge was neither a magistrate as defined in T.C.A. § 40-5-101, nor did the judge have authority as a special general sessions judge under T.C.A. § 16-15-209, the judge did not have legal authority to issue a search warrant; therefore, the warrant was void ab initio and the evidence had to be suppressed. United States v. Scott, 260 F.3d 512, 2001 FED App. 235P, 2001 U.S. App. LEXIS 16516 (6th Cir. Tenn. 2001).

40-5-102. Officials who are magistrates.

The following are magistrates within the meaning of this part:

The judges of the supreme court;
The judges of the circuit and criminal courts;
Judicial commissioners;
Judges of the courts of general sessions;
City judges in cities and towns; and
Judges of juvenile courts.

Code 1858, § 5016; Shan., § 6975; Code 1932, § 11514; Acts 1978, ch. 933, § 3; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 40-603; Acts 1993, ch. 115, § 5; 1993, ch. 241, § 65.

Cross-References. Officials designated as magistrates, § 40-1-106.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 1.6, 3.2.

Attorney General Opinions. Judicial commissioners acting as magistrates, OAG 97-093 (6/26/97).

County judicial commissioners are vested with the authority to make a probable cause determination on a warrantless arrest, OAG 01-038 (3/19/01).

NOTES TO DECISIONS

1. Judicial Commissioners.

The express designation by this section of a judicial commissioner as a magistrate indicates legislative intent that such commissioners be deemed “magistrates” rather than “courts.” State v. Bush, 626 S.W.2d 470, 1981 Tenn. Crim. App. LEXIS 394 (Tenn. Crim. App. 1981).

Even if the judicial commissioner enabling statute were unconstitutional, the good faith exception to the exclusionary rule applied where the officer objectively and reasonably believed the judicial commissioner had the authority to issue a warrant and the officer engaged in no misconduct; in addition, the deterrent purpose of the exclusionary rule would not be advanced by punishing the officer for reasonably relying on the authority of the commissioner to issue a search warrant. United States v. Pennington, 115 F. Supp. 2d 910, 2000 U.S. Dist. LEXIS 14862 (W.D. Tenn. 2000).

2. Warrant Issued by Any Criminal Court.

A warrant may be issued by any court upon which criminal jurisdiction is conferred by law. McCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79, 1906 Tenn. LEXIS 21 (1906).

Search of defendant's residence pursuant to a search warrant violated defendant's Fourth Amendment rights because the authorizing judge had no authority to issue a warrant for the county in which defendant's residence was located, pursuant to state law; remand was necessary to determine the applicability of the exclusionary rule. United States v. Master, 614 F.3d 236, 2010 FED App. 276P, 2010 U.S. App. LEXIS 18133 (6th Cir. Aug. 31, 2010).

40-5-103. Examination required before commitment.

No person can be committed to prison for any criminal matter until examination thereof is first had before some magistrate.

Code 1858, § 5017 (deriv. Acts 1715, ch. 16, § 1); Shan., § 6976; Code 1932, § 11515; T.C.A. (orig. ed.), § 40-604.

Cross-References. Preliminary examination, title 40, ch. 10.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 19.63.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, §§ 3, 6; 8 Tenn. Juris., Criminal Procedure, § 19.

Law Reviews.

The Right to a Preliminary Hearing and Effective Assistance of Counsel at a Preliminary Hearing in Tennessee, 43 Tenn. L. Rev. 635 (1976).

NOTES TO DECISIONS

1. In General.

While this is not a “preliminary hearing” in the sense contemplated by title 40, ch. 10, it is a statutorily mandated preliminary type examination before a committing magistrate. State v. Mitchell, 593 S.W.2d 280, 1980 Tenn. LEXIS 395 (Tenn. 1980), cert. denied, Mitchell v. Tennessee, 449 U.S. 845, 101 S. Ct. 128, 66 L. Ed. 2d 53, 1980 U.S. LEXIS 2905 (1980).

2. Strict Observance.

The courts of Tennessee exact scrupulous observance of this prohibition by its law officers. State ex rel. Morris v. National Surety Co., 162 Tenn. 547, 39 S.W.2d 581, 1930 Tenn. LEXIS 122 (1931); Polk v. State, 170 Tenn. 270, 94 S.W.2d 394, 1936 Tenn. LEXIS 12 (1936); Anderson v. United States, 318 U.S. 350, 63 S. Ct. 599, 87 L. Ed. 829, 1943 U.S. LEXIS 915 (1943).

3. Construction with Other Acts.

Former statute providing that a husband pleading not guilty before a juvenile court judge on a charge of nonsupport was to be bound over under bond for the action of the grand jury was constitutional when read in the light of this section. Moye v. State, 139 Tenn. 680, 202 S.W. 919, 1917 Tenn. LEXIS 137 (1917).

4. Temporary Holding.

A temporary holding or arrest for examination purposes is not a committal to prison within the spirit of this section. Wynn v. State, 181 Tenn. 325, 181 S.W.2d 332, 1944 Tenn. LEXIS 395 (1944).

Failure of officers to take defendant accused of larceny immediately before a magistrate, delaying approximately one day, where no confession or mistreatment was involved, was not unconstitutional and would not justify reversal of conviction since no provision expressly requires officers to so act. East v. State, 197 Tenn. 644, 277 S.W.2d 361, 1955 Tenn. LEXIS 330 (1955).

A suspect may be temporarily held by police officers before he is taken before a magistrate. Hardin v. State, 1962 Tenn. 399, 210 Tenn. 116, 355 S.W.2d 105, 1962 Tenn. LEXIS 399 (1962), rehearing denied, 210 Tenn. 116, 356 S.W.2d 595, 1962 Tenn. LEXIS 416 (1962); Van Zandt v. State, 218 Tenn. 187, 402 S.W.2d 130, 1966 Tenn. LEXIS 637 (1966).

Holding a prisoner two days prior to taking him before a committing magistrate or prior to arraignment did not violate this section or constitutional due process. State ex rel. Reed v. Heer, 218 Tenn. 338, 403 S.W.2d 310, 1966 Tenn. LEXIS 640 (1966).

The holding of a person in custody by state officers for 48 hours or more without preliminary examination by a magistrate did not violate either this section or constitutional due process. Ramsey v. Haun, 296 F. Supp. 307, 1969 U.S. Dist. LEXIS 10433 (E.D. Tenn. 1969).

This statute does not prevent a temporary holding without a mittimus. State v. Mitchell, 593 S.W.2d 280, 1980 Tenn. LEXIS 395 (Tenn. 1980), cert. denied, Mitchell v. Tennessee, 449 U.S. 845, 101 S. Ct. 128, 66 L. Ed. 2d 53, 1980 U.S. LEXIS 2905 (1980).

T.C.A. § 40-5-103 does not create an expectation of release for someone who has been arrested and therefore cannot create a protected liberty interest in being released on bail. Fields v. Henry County, 701 F.3d 180, 2012 U.S. App. LEXIS 25159, 2012 FED App. 403P (6th Cir. 2012).

5. —Questioning.

It was a violation of this section for state officers to hold defendants for six days of questioning, during which defendants saw neither friends, relatives, nor counsel, in hostile atmosphere of a small, company dominated mining town. Anderson v. United States, 318 U.S. 350, 63 S. Ct. 599, 87 L. Ed. 829, 1943 U.S. LEXIS 915 (1943).

This section does not prohibit the holding of an accused for questioning before taking him before a committing magistrate or before arraignment. State ex rel. Reed v. Heer, 218 Tenn. 338, 403 S.W.2d 310, 1966 Tenn. LEXIS 640 (1966); State ex rel. Leighton v. Henderson, 1 Tenn. Crim. App. 598, 448 S.W.2d 82, 1969 Tenn. Crim. App. LEXIS 343 (Tenn. Crim. App. 1969).

6. —Admissibility of Confession.

The bare detention for investigation of a defendant for 72 hours before taking him into the magistrate's court was not sufficient to render his confession inadmissible. Wynn v. State, 181 Tenn. 325, 181 S.W.2d 332, 1944 Tenn. LEXIS 395 (1944).

Detention of defendant for three days before he confessed telephone thefts to telephone company employee did not render such confession inadmissible where defendant had been advised of his right to counsel and there was no evidence of mistreatment. Van Zandt v. State, 218 Tenn. 187, 402 S.W.2d 130, 1966 Tenn. LEXIS 637 (1966).

“Unreasonable delay” is one factor to be taken into account in evaluating the voluntariness of a confession; and if the totality of the surrounding circumstances indicates that a confession was voluntarily given, it shall not be excluded from evidence solely because of delay in carrying the confessor before a magistrate. State v. Readus, 764 S.W.2d 770, 1988 Tenn. Crim. App. LEXIS 694 (Tenn. Crim. App. 1988).

7. —Magistrate Not Immediately Available.

If because of the hour of night when an arrest is made, or other cause, a magistrate is not available, an officer may lawfully place his prisoner in jail until he can be carried before a magistrate for examination. State ex rel. Morris v. National Surety Co., 162 Tenn. 547, 39 S.W.2d 581, 1930 Tenn. LEXIS 122 (1931).

8. Offense in Magistrate's Presence.

A magistrate may order the arrest of anyone for an offense committed in his presence, but he has no power to commit him to prison without an examination or hearing. Touhey v. King, 77 Tenn. 422, 1882 Tenn. LEXIS 78 (1882).

9. Bond.

The arresting officer has no power to take a bail bond before trial or examination and commitment and if he takes such bond, it is a nullity, and the sureties thereon are not bound. State v. McCoy, 60 Tenn. 111, 1873 Tenn. LEXIS 422 (1873).

If the hearing be continued for good cause, the offender may give bail in a bailable case, but if the case is not bailable or if he fails or refuses to give bail he may be committed to prison. Touhey v. King, 77 Tenn. 422, 1882 Tenn. LEXIS 78 (1882).

Neither sheriff nor his purported agent had authority to take bail before commitment of prisoner and taking of bail under these circumstances was irregular and void. Columbia Bonding Co. v. State, 225 Tenn. 719, 476 S.W.2d 633, 1972 Tenn. LEXIS 306 (1972).

40-5-104. Subpoena of witnesses.

The magistrate before whom an information is made may issue subpoenas to any part of the state for witnesses on behalf of either the defendant or the state.

Code 1858, § 5380 (deriv. Acts 1822, ch. 40, § 1); Shan., § 7358; Code 1932, § 11963; T.C.A. (orig. ed.), § 40-605.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 23.10.

NOTES TO DECISIONS

1. Insurance Commissioner Calling Witnesses.

The power to summon witnesses under this section extends to witnesses in any part of the state. Rhinehart v. State, 121 Tenn. 420, 117 S.W. 508, 1908 Tenn. LEXIS 28 (1908).

40-5-105. Disposition by magistrate.

The magistrate is required to reduce the examination of the accused to writing, if the accused submits to an examination, and also all the evidence adduced on both sides, and is authorized to discharge, bail, or commit the accused and to take all necessary recognizances to enforce the appearance of the defendant, the prosecutor or witnesses at the proper court.

Code 1858, § 5018 (deriv. Acts 1715, ch. 16, § 1); Shan., § 6977; Code 1932, § 11516; T.C.A. (orig. ed.), § 40-606.

Cross-References. Admission to bail, title 40, ch. 11, part 1.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 20.

Law Reviews.

The Right to a Preliminary Hearing and Effective Assistance of Counsel at a Preliminary Hearing in Tennessee, 43 Tenn. L. Rev. 635 (1976).

NOTES TO DECISIONS

1. Waiver of Examination.

A party charged with murder has the right to waive an examination before a committing court, and it is not, by law, made the duty of the magistrate in such case to examine the witnesses and reduce their testimony to writing, because this is waived by the waiver of the examination. State v. Miller, 69 Tenn. 596, 1878 Tenn. LEXIS 143 (1878).

2. Burden at Hearing.

At the examination in a case, prior to indictment, the burden to show right of custody of accused is on the state, aided by no presumption. Shaw v. State, 164 Tenn. 192, 47 S.W.2d 92, 1932 Tenn. LEXIS 2 (1932).

3. Confession Before Magistrate — Admissibility.

If a prisoner is cautioned by the examining magistrate and warned that the evidence may be used against him, a confession made and reduced to writing by the magistrate may be read in evidence against the prisoner upon his trial, subject to being impeached, however, as is other evidence. Alfred v. State, 32 Tenn. 581, 1853 Tenn. LEXIS 86 (1853).

4. Record as Evidence in Defendant's Favor.

The examination of a prisoner by the magistrate before whom he is brought for commitment, being a privilege extended to the prisoner so that he is thus “allowed to speak for himself,” the record of such examination cannot afterwards be used by him at the trial as evidence in his defense. Nelson v. State, 32 Tenn. 237, 1852 Tenn. LEXIS 58 (1852); Alfred v. State, 32 Tenn. 581, 1853 Tenn. LEXIS 86 (1853).

5. Testimony of Witnesses — Use for Impeachment.

The record of the evidence of witnesses before an examining magistrate can only be used upon the trial for the purpose of discrediting witnesses, and then only when the witness is questioned as to what he stated before the magistrate. Nelson v. State, 32 Tenn. 237, 1852 Tenn. LEXIS 58 (1852).

6. Mandamus to Compel Examination.

Mandamus is not the proper remedy for refusal of the magistrate to examine the witnesses and reduce their testimony to writing, even if by law he was required to do so. State v. Miller, 69 Tenn. 596, 1878 Tenn. LEXIS 143 (1878); North British & Mercantile Co. v. Craig, 106 Tenn. 621, 62 S.W. 155, 1900 Tenn. LEXIS 197 (1901); State ex rel. Lyle v. Willett, 117 Tenn. 334, 97 S.W. 299, 1906 Tenn. LEXIS 51 (1906); State ex rel. Spratlin v. Thompson, 118 Tenn. 571, 102 S.W. 349, 1907 Tenn. LEXIS 65, 20 L.R.A. (n.s.) 1 (1907).

40-5-106. Officials prohibited from issuing warrants.

No search warrant, arrest warrant or mittimus shall be issued by any state, city or county officer whose compensation is contingent in any manner upon the issuance or nonissuance of a search warrant, arrest warrant or mittimus.

Acts 1978, ch. 933, § 5; T.C.A., § 40-607.

Cross-References. Issuance of warrants, title 40, ch. 6.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 1.6, 18.81.

Part 2
Judicial Commissioners

40-5-201. Creation of position — Duties.

The legislative body of any county having a metropolitan form of government may, by ordinance, create the position of one (1) or more judicial commissioners.
The duties of the commissioner or commissioners include, but are not limited to, the following:
1. The issuance of arrest warrants upon a finding of probable cause;
2. The setting of bonds and recognizances in accordance with the procedures outlined in this chapter and chapter 6 of this title; and
3. The issuance of mittimus following compliance with the procedures prescribed by § 40-5-103.
The legislative body of any county having a population of not less than twenty-one thousand five hundred (21,500) nor more than twenty-one thousand seven hundred (21,700), according to the 1980 federal census or any subsequent federal census, may, by resolution, create the position of one (1) or more judicial commissioners pursuant to this part.

Acts 1983, ch. 86, § 1; 1986, ch. 901, § 1.

Compiler's Notes. For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Cross-References. Judicial commissioners, general provisions, § 40-1-111.

40-5-202. Term of office — Eligibility for appointment.

The term or terms of the judicial commissioner or commissioners shall be established by the majority of general sessions judges of the county and in no event shall the term or terms exceed four (4) years. No employee, officer or official of the metropolitan government shall be eligible for appointment or serve as a judicial commissioner.

Acts 1983, ch. 86, § 1.

40-5-203. Compensation and fees.

The judicial commissioner or commissioners shall be compensated from the general fund of the county in an amount to be determined by the majority of general sessions judges of the county and subject to the approval of the legislative body. Fees established and authorized by § 8-21-401 shall be paid to the general fund upon the services detailed in § 8-21-401 being performed by a judicial commissioner.

Acts 1983, ch. 86, § 1.

40-5-204. Appointment.

The judicial commissioner or commissioners shall be appointed by a majority of the general sessions judges in the county and serve at the pleasure of the majority of the general sessions judges.

Acts 1983, ch. 86, § 1.

Chapter 6
Warrants

Part 1
Search Warrants

40-6-101. “Search warrant” defined.

A search warrant is an order in writing in the name of the state, signed by a magistrate, directed to the sheriff, any constable, or any peace officer of the county, commanding the sheriff, constable or peace officer to search for personal property, and bring it before the magistrate.

Code 1932, § 11897; T.C.A. (orig. ed.), § 40-501.

Cross-References. Definition of magistrate, §§ 40-1-106, 40-5-101.

Persons whose compensation is contingent upon issuance or nonissuance are prohibited from issuing a search warrant, an arrest warrant or mittimus, § 40-5-106.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 18.80, 18.89, 18.108.

Tennessee Jurisprudence, 16 Tenn. Juris., Intoxicating Liquors, § 28; 22 Tenn. Juris., Searches and Seizures, §§ 2, 3.

Law Reviews.

Search and Seizure — Tennessee Concepts, 22 Tenn. L. Rev. 527.

NOTES TO DECISIONS

1. Issuance to Peace Officer.

Section 40-6-105 authorizes the magistrate to issue the warrant to any “peace officer” without the restriction “of the county” contained in this section. Vickers v. State, 176 Tenn. 415, 142 S.W.2d 188, 1939 Tenn. LEXIS 132 (1940).

The class of persons to whom a warrant must be physically issued is not restricted. State v. Pigford, 572 S.W.2d 921, 1978 Tenn. LEXIS 664 (Tenn. 1978).

2. Security Guards.

A state's regulation of security guards through licensing does not convert their every action into that of the state. State v. Hutson, 649 S.W.2d 6, 1982 Tenn. Crim. App. LEXIS 485 (Tenn. Crim. App. 1982).

3. Magistrate.

Under T.C.A. § 40-5-102, magistrates are defined to include judicial commissioners. United States v. Pennington, 115 F. Supp. 2d 910, 2000 U.S. Dist. LEXIS 14862 (W.D. Tenn. 2000).

Magistrate did not have authority to issue search warrants for defendants' homes because the magistrate issued the warrants for property located outside his judicial district; because the magistrate, who was a circuit court judge, did not have the authority to issue the search warrants for defendants' homes located outside of his district, the search warrants were void ab initio, and the searches of defendants' homes were unconstitutional. State v. Frazier, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 861 (Tenn. Crim. App. Sept. 25, 2017), aff'd, — S.W.3d —, 2018 Tenn. LEXIS 537 (Tenn. Sept. 26, 2018).

40-6-102. Grounds for issuance.

A search warrant may be issued on any one (1) of the following grounds:

Where the property was stolen or embezzled;
Where the property was used as the means of committing a felony;
Where the property is in the possession of any person with the intent to use it as a means of committing a public offense, or in the possession of another to whom the person may have delivered it, for the purpose of concealing it, or preventing its discovery; and
Any other ground provided by law.

Code 1858, § 5318; Shan.,§ 7296; mod. Code 1932, § 11898; T.C.A. (orig. ed.), § 40-502.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 18.80.

Law Reviews.

Search and Seizure Problems (E. C. Arnold), 16 Tenn. L. Rev. 291.

NOTES TO DECISIONS

1. Sufficiency of Affidavit.

An affidavit made by a police officer and based on information of a “a reliable citizen,” wherein the only fact, according to the affidavit, which informant disclosed was that he saw “a quantity of intoxicating liquor” on defendant's premises was held insufficient, under subdivision (3), to justify issuance of a warrant. King v. State, 174 S.W.2d 463, 1943 Tenn. LEXIS 52 (Tenn. 1943).

Where affidavit was based upon information given by a reliable informer stating that marijuana was being stored in defendant's residence, it was sufficient to justify a search warrant. Woods v. State, 552 S.W.2d 782, 1977 Tenn. Crim. App. LEXIS 246 (Tenn. Crim. App. 1977), superseded by statute as stated in, State v. Little, 560 S.W.2d 403, 1978 Tenn. LEXIS 568 (Tenn. 1978).

2. Neutral Magistrate to Issue Warrant.

Search warrant met standard that it be issued by a neutral and detached magistrate. United States v. Finch, 998 F.2d 349, 1993 U.S. App. LEXIS 16174 (6th Cir. Tenn. 1993).

Even if the judicial commissioner enabling statute were unconstitutional, when an officer acting with objective good faith, has obtained a search warrant from a detached and neutral magistrate and has acted within its scope, the results of the search are normally not suppressed even if the affidavit is later found to be insufficient to establish probable cause, unless the magistrate abandoned the detached and neutral role of that office, or the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause. United States v. Pennington, 115 F. Supp. 2d 910, 2000 U.S. Dist. LEXIS 14862 (W.D. Tenn. 2000).

40-6-103. Probable cause and affidavit.

A search warrant can only be issued on probable cause, supported by affidavit, naming or describing the person, and particularly describing the property, and the place to be searched.

Code 1858, § 5319; Shan., § 7297; Code 1932, § 11899; T.C.A. (orig. ed.), § 40-503.

Textbooks. Tennessee Jurisprudence, 16 Tenn. Juris., Intoxicating Liquors, §§ 22, 27, 28; 22 Tenn. Juris., Searches and Seizures, § 5.

Law Reviews.

Search and Seizure — Sufficiency of Description in Warrant for Search of Automobile, 34 Tenn. L. Rev. 525.

NOTES TO DECISIONS

1. In General.

For a search warrant to issue, evidence of the fact committed, or probable cause for believing its existence, must be presented to a magistrate, reduced to writing, and subscribed by the person who conveys the information, and the magistrate, in the exercise of his judicial discretion, must determine that such evidence is sufficient. Hampton v. State, 148 Tenn. 155, 252 S.W. 1007, 1923 Tenn. LEXIS 3 (1923).

An affidavit is an indispensable prerequisite to the issuance of a search warrant. State v. Johnson, 854 S.W.2d 897, 1993 Tenn. Crim. App. LEXIS 16 (Tenn. Crim. App. 1993), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 119 (Tenn. Mar. 22, 1993).

Reference in the affidavit to a confidential informant as an agent, alone, was insufficient to establish that the informant was a law enforcement officer whose information was considered reliable; the information in the affidavit otherwise failed to establish probable cause for issuance of the search warrant; the corroboration involved only one element of non-suspect behavior and offered little support to the credibility of the informant or the reliability of the informant's information regarding the occurrence of drug transactions at defendant's residence. State v. Smotherman, 201 S.W.3d 657, 2006 Tenn. LEXIS 691 (Tenn. 2006).

2. Probable Cause.

Probable cause is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the accused is guilty of the offense charged. Lea v. State, 181 Tenn. 378, 181 S.W.2d 351, 1944 Tenn. LEXIS 383 (1944).

Information on affidavit about defendant selling drugs two months earlier was too stale, standing alone, to establish probable cause; however, it may be considered in conjunction with current information contained in the affidavit. State v. Starks, 658 S.W.2d 544, 1983 Tenn. Crim. App. LEXIS 410 (Tenn. Crim. App. 1983).

Probable cause to support the issuance of a search warrant must appear in an affidavit, and judicial review of the existence of probable cause will not include looking to other evidence provided to or known by the issuing magistrate or possessed by the affiant. State v. Moon, 841 S.W.2d 336, 1992 Tenn. Crim. App. LEXIS 630 (Tenn. Crim. App. 1992).

Trial court did not err by denying defendant's motion to suppress the evidence obtained via the search warrant because the affidavit contained sufficient information to conclude that there was a fair probability that contraband or evidence of a crime would be found in defendant's residence, as the affidavit stated that officers were looking for a .30-06 rifle with a scope and the ammunition for such a rifle, that the defendant's grandfather reported having given the defendant such a gun approximately one week before the victim's murder. State v. Parker, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 127 (Tenn. Crim. App. Feb. 25, 2019).

3. —False Statement.

Although one statement of probable cause in affidavit was false and it could be stated that the affiant was reckless in making it, where there were other statements of probable cause in affidavit which were valid, motion to suppress was properly overruled. State v. Tidmore, 604 S.W.2d 879, 1980 Tenn. Crim. App. LEXIS 292 (Tenn. Crim. App. 1980).

False statement recklessly made rendered search warrant affidavit insufficient. State v. Longstreet, 619 S.W.2d 97, 1981 Tenn. LEXIS 454 (Tenn. 1981), overruled in part, State v. Leveye, 796 S.W.2d 948, 1990 Tenn. LEXIS 325 (Tenn. 1990).

Although the statement in the affidavit that defendant fled to his residence was incorrect, no evidence showed that the statement was intended to deceive the judicial magistrate or that the statement was a basis for probable cause; the probable cause to support the warrant was based upon the deputies' observing contraband in plain view, not whether defendant was seen running to his home after the shooting, and thus the warrant was valid and the evidence properly seized. State v. Johnson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 338 (Tenn. Crim. App. May 4, 2016).

4. Affidavit — Sufficiency.

Affidavit of policeman for warrant was sufficient where he swore that he had seen empty whiskey bottles and smelled whiskey when he was in the house to be searched, that whiskey had been found at the same house on a prior occasion, that the house was a known bootlegging joint, and that he had seen one of the occupants of the house with whiskey earlier in the day. Armstrong v. State, 150 Tenn. 416, 265 S.W. 672, 1924 Tenn. LEXIS 16 (1924).

If the affidavit for a search warrant is regular on its face showing that there was material evidence before the magistrate supporting his action, then such action is not subject to review except for fraud or collusion. Solomon v. State, 203 Tenn. 583, 315 S.W.2d 99, 1958 Tenn. LEXIS 335 (1958), superseded by statute as stated in, State v. Little, 560 S.W.2d 403, 1978 Tenn. LEXIS 568 (Tenn. 1978); Woods v. State, 552 S.W.2d 782, 1977 Tenn. Crim. App. LEXIS 246 (Tenn. Crim. App. 1977), superseded by statute as stated in, State v. Little, 560 S.W.2d 403, 1978 Tenn. LEXIS 568 (Tenn. 1978).

The nearer the time of gaining of the information to the time of application for the search warrant, the more effective it is to justify the conclusion of probable cause. Franklin v. State, 1 Tenn. Crim. App. 248, 437 S.W.2d 260, 1968 Tenn. Crim. App. LEXIS 121 (Tenn. Crim. App. 1968).

For probable cause to be established and the supporting affidavit to be sufficient it is not necessary to link up particular facts with particular sources of information, or with any source of information, as long as it is stated that the facts are from a reliable source or from personal knowledge of the affiant. Anderson v. State, 512 S.W.2d 665, 1974 Tenn. Crim. App. LEXIS 293 (Tenn. Crim. App. 1974), superseded by statute as stated in, State v. Little, 560 S.W.2d 403, 1978 Tenn. LEXIS 568 (Tenn. 1978).

The affidavit in a search warrant may not be impeached since the magistrate determined the verity of facts before he issued the warrant, and such judicial act is not subject to review unless there were no material facts upon which the magistrate based his discretion. Ellis v. State, 544 S.W.2d 908, 1976 Tenn. Crim. App. LEXIS 338 (Tenn. Crim. App. 1976).

Where the affidavit to the search warrant recounts the personal observations of a reliable informant stating that he had been in defendants' residence within three days and had seen the defendants selling and storing marihuana, the affidavit is sufficient. Armstrong v. State, 548 S.W.2d 334, 1976 Tenn. Crim. App. LEXIS 330 (Tenn. Crim. App. 1976).

Use of information from confidential informant on search warrant affidavit was permissible where credibility and reliability of informant were established by prior history of information leading to several arrests and convictions, and information had never been false. State v. Starks, 658 S.W.2d 544, 1983 Tenn. Crim. App. LEXIS 410 (Tenn. Crim. App. 1983).

Before a search warrant may be issued based upon an informant's information, an affiant must make sufficient disclosure of the events, activities, or allegations which have been corroborated in order that a magistrate may make a neutral and detached determination that an informant is credible or that his information is reliable. State v. Moon, 841 S.W.2d 336, 1992 Tenn. Crim. App. LEXIS 630 (Tenn. Crim. App. 1992).

Affidavit failed to reflect that informant was credible or that his information was reliable; therefore, search warrant was not issued upon probable cause and any evidence obtained as a result of the search pursuant to the warrant should have been suppressed. State v. Moon, 841 S.W.2d 336, 1992 Tenn. Crim. App. LEXIS 630 (Tenn. Crim. App. 1992).

The Tennessee supreme court has adopted the two-pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723, 1964 U.S. LEXIS 994 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637, 1969 U.S. LEXIS 2701 (1969), to determine the adequacy of the affidavit upon which a search warrant is based. State v. Johnson, 854 S.W.2d 897, 1993 Tenn. Crim. App. LEXIS 16 (Tenn. Crim. App. 1993), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 119 (Tenn. Mar. 22, 1993).

It is incumbent upon whoever seeks a search warrant to include in the affidavit whether the informational source, named or confidential, qualifies as a citizen or professional informant in order to allow the issuing magistrate to apply the proper constitutional common-law standard, and where the affidavit did not more adequately set out informant's professional status, it was insufficient. State v. Smith, 867 S.W.2d 343, 1993 Tenn. Crim. App. LEXIS 254 (Tenn. Crim. App. 1993).

In determining the sufficiency of the description of the items to be seized, the description given in the warrant is not the only one to be considered: by the express reference to and incorporation of the affidavit, the warrant may be validated by the description of the items to be seized contained in the affidavit. State v. Meeks, 867 S.W.2d 361, 1993 Tenn. Crim. App. LEXIS 503 (Tenn. Crim. App. 1993), cert. denied, Meeks v. Tennessee, 510 U.S. 1168, 114 S. Ct. 1200, 127 L. Ed. 2d 548, 1994 U.S. LEXIS 1998 (1994).

Exigent circumstances existed which justified the issuance of a “no knock” warrant because defendant had drugs inside his house, the residence was equipped with a surveillance system, and any evidence could be destroyed quickly due to defendant's ability to monitor the activity outside the residence. State v. Perry, 178 S.W.3d 739, 2005 Tenn. Crim. App. LEXIS 270 (Tenn. Crim. App. 2005), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 717 (Tenn. Aug. 22, 2005).

Suppression motion was properly denied under Tenn. Const. art. I, § 7 where: (1) the search warrant affidavit under T.C.A. § 40-6-103 and Tenn. R. Crim. P. 41(c) met the Aguilar-Spinelli/Jacumin test by stating that a confidential informant (CI) had given information on narcotics trafficking resulting in several seizures of cocaine and marijuana and several felony narcotics arrests for cocaine and marijuana; (2) a specific number of seizures and arrests was not required; and (3) a specific number requirement for establishing the CI's credibility would have constituted a hyper-technical application of the Aguilar-Spinelli test. State v. Sales, 393 S.W.3d 236, 2012 Tenn. Crim. App. LEXIS 845 (Tenn. Crim. App. Oct. 17, 2012).

Trial court erred by granting defendant's motion to suppress the blood test results because a clerical error in the search warrant affidavit did not invalidate the warrant, as the one instance of an inconsistent name in the affidavit when there were five other correct references to defendant by name did not void the warrant. State v. Szabo, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 759 (Tenn. Crim. App. Oct. 6, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 141 (Tenn. Feb. 21, 2017).

Trial court did not err in denying defendant's motion to suppress the evidence obtained from the search of his house, because the officer intended to obtain a valid search warrant, reasonably believed that the warrant, based on probable cause and issued by a neutral and detached magistrate, was valid, and immediately stopped the search and obtained a second warrant supported by a properly signed affidavit, as required by statute and the criminal rules, once he learned of the problem. State v. Davidson, 509 S.W.3d 156, 2016 Tenn. LEXIS 913 (Tenn. Dec. 19, 2016), cert. denied, Davidson v. Tennessee, 199 L. Ed. 2d 66, 138 S. Ct. 105, 2017 U.S. LEXIS 5551 (U.S. Oct. 2, 2017).

5. —Information and Belief.

It is not necessary that affiant should have personal knowledge of the existence of grounds calling for a search warrant, but such warrant may be based on an affidavit made on information if it discloses the nature and source of the information so that the magistrate himself can determine whether probable cause exists. Elliott v. State, 148 Tenn. 414, 256 S.W. 431, 1923 Tenn. LEXIS 29 (1923); Jackson v. State, 153 Tenn. 431, 284 S.W. 356, 1925 Tenn. LEXIS 40 (1926); Smith v. State, 169 Tenn. 633, 90 S.W.2d 523, 1935 Tenn. LEXIS 90 (1936).

A search warrant based on a sheriff's affidavit, made on information and belief, that probable cause exists to justify the writ, without setting out the character of the information, is void, under Tenn. Const., art. I, § 7. Cravens v. State, 148 Tenn. 517, 256 S.W. 431, 1923 Tenn. LEXIS 41 (1923).

Affidavit for search warrant based on knowledge was insufficient where it failed to set forth facts. Jackson v. State, 153 Tenn. 431, 284 S.W. 356, 1925 Tenn. LEXIS 40 (1926).

Affidavit made on information and belief need not set out name of affiant's informant, though it must state the nature of the information given to affiant. Jackson v. State, 153 Tenn. 431, 284 S.W. 356, 1925 Tenn. LEXIS 40 (1926).

Affidavit, although containing some conclusions of the informer, which made direct observations of large numbers of people entering and leaving house together with the personal knowledge of the informer of defendant's reputation as a professional gambler, was sufficient. Owens v. State, 217 Tenn. 544, 399 S.W.2d 507, 1965 Tenn. LEXIS 652 (1965).

Where a police officer made out an affidavit on the basis of information supplied by a reliable informant who claimed to have purchased drugs from defendant, the fact that other officers were working on the case as undercover agents and had also purchased drugs from defendant was not evidence of fraud or collusion among the officers to obtain the search warrant. Moore v. State, 568 S.W.2d 632, 1978 Tenn. Crim. App. LEXIS 309 (Tenn. Crim. App. 1978).

The police officer affiant established the reliability of information by reference to three prior, successful investigations. State v. Johnson, 854 S.W.2d 897, 1993 Tenn. Crim. App. LEXIS 16 (Tenn. Crim. App. 1993), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 119 (Tenn. Mar. 22, 1993).

6. —Date.

A search warrant issued on affidavit bearing later date than the warrant is void, rendering inadmissible evidence obtained as result of the search made. Harvey v. State, 166 Tenn. 227, 60 S.W.2d 420, 1933 Tenn. LEXIS 86 (1933).

A search warrant for unlawful possession of intoxicating liquor, issued upon an affidavit which did not set out date of defendant's unlawful possession, was fatally defective, and the admission of evidence obtained thereunder was reversible error. Welchance v. State, 173 Tenn. 26, 114 S.W.2d 781, 1937 Tenn. LEXIS 8 (1938).

Where police captain testified that he received information on September 20 as to violation of injunction against liquor sales and on same day signed affidavit before municipal judge who attested the execution of the affidavit by his jurat but failed to insert the date of it in the blank spaces and where the form that contained the affidavit also contained the search warrant which was dated September 20 and the return thereof was also dated September 20, the evidence conclusively established that the entire transaction took place on September 20 and the failure to fill in the date on the affidavit did not invalidate the warrant. State ex rel. Blackburn v. Fox, 200 Tenn. 227, 292 S.W.2d 21, 1956 Tenn. LEXIS 399 (1956).

It is from the contents of the affidavit that the magistrate determines the existence of probable cause and not the date on which the affiant made his oath. State ex rel. Blackburn v. Fox, 200 Tenn. 227, 292 S.W.2d 21, 1956 Tenn. LEXIS 399 (1956).

The interval of 17 days between the giving of information to the officer in his investigation and the issuance of the warrant did not preclude a finding of probable cause by the general sessions judge. Franklin v. State, 1 Tenn. Crim. App. 248, 437 S.W.2d 260, 1968 Tenn. Crim. App. LEXIS 121 (Tenn. Crim. App. 1968).

Absence of a specific date in the warrant as to when the crimes occurred did not make the warrant invalid, as the affidavit accompanying the search warrant contained information that alleged illegal activity that was of a continuing nature, such that a specific date as to when the illegal activity was observed was not necessary. State v. McCary, 119 S.W.3d 226, 2003 Tenn. Crim. App. LEXIS 17 (Tenn. Crim. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 674 (Tenn. July 7, 2003).

Trial court did not err by determining that the information in the search warrant affidavit was not stale and that probable cause existed for the issuance of the warrant, even though seven months passed between the officer's receipt of the relevant information and the issuance of the search warrant, because the specified IP address was used for downloading and sharing child pornography, and the IP address was assigned to defendant, who was the internet service subscriber at the location to be searched. State v. Owens, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 176 (Tenn. Crim. App. Mar. 9, 2020).

7. —John Doe Alias Warrants.

An alias warrant was sufficient although the affiant knew the defendant's name, where the warrant authorized the search of only the premises and not the person of the defendant. Seals v. State, 157 Tenn. 538, 11 S.W.2d 879, 1928 Tenn. LEXIS 218 (1928).

8. —Collateral Attack.

Whether or not probable cause exists is a matter of judicial discretion, and when a warrant is issued, on an affidavit regular on its face, it may not be attacked collaterally by objection to the admission of evidence obtained thereby. Gallimore v. State, 173 Tenn. 178, 116 S.W.2d 1001, 1938 Tenn. LEXIS 5 (1938), superseded by statute as stated in, State v. Little, 560 S.W.2d 403, 1978 Tenn. LEXIS 568 (Tenn. 1978).

In order to attack the veracity of a facially sufficient affidavit, the defendant must initially show by affidavit of persons having personal knowledge of the facts, or other evidence, that the search warrant was procured by the officers either through perjury or collusion. Woods v. State, 552 S.W.2d 782, 1977 Tenn. Crim. App. LEXIS 246 (Tenn. Crim. App. 1977), superseded by statute as stated in, State v. Little, 560 S.W.2d 403, 1978 Tenn. LEXIS 568 (Tenn. 1978).

Where a hearing was held in the trial court on defendant's motion to suppress evidence obtained pursuant to a search warrant issued on the basis of allegedly false statements, and where the state made no objection at such time, but contended on appeal that defendant's motion should have been dismissed without a hearing for the reason that a facially sufficient affidavit cannot be attacked, absent a preliminary showing by affidavit that the search warrant was fraudulently obtained, the court held that once it had come to its attention through the record of the hearing that the entire substance of the probable cause elements of the affidavit were false and that the false statements were knowingly made it was required to affirm the judgment granting defendant's motion. State v. Little, 560 S.W.2d 403, 1978 Tenn. LEXIS 568 (Tenn. 1978).

9. Description of Place.

Search warrant issued by a city judge, giving the name and street number of defendant, but omitting in its body the name of the city, county, or state, was sufficient, where such omissions were covered by the heading. Armstrong v. State, 150 Tenn. 416, 265 S.W. 672, 1924 Tenn. LEXIS 16 (1924).

Definite reference to a street number in a given city and state meets the requirement for particular description of the place to be searched, but where there are two streets in the same city with identical names and numbers, or a number of occupants in possession of different rooms or different apartments at the particular street number, reference to the street number is not a sufficient description. State v. Bass, 153 Tenn. 162, 281 S.W. 936, 1925 Tenn. LEXIS 15 (1926).

The requirement of particular description of the place to be searched is met by a description which particularly points to a definitely ascertainable place so as to exclude all others, and enable the officer to locate the place to be searched with reasonable certainty without leaving it to his discretion. State v. Bass, 153 Tenn. 162, 281 S.W. 936, 1925 Tenn. LEXIS 15 (1926); Hatchett v. State, 208 Tenn. 399, 346 S.W.2d 258, 1961 Tenn. LEXIS 298 (1961).

A warrant authorizing search of a “frame building” located at the premises known as 2706 Cowart Street authorized search of a coalhouse located within three feet of the main building, and which was also marked with the number “2706,” the outhouse being appurtenant to and a part of the premises described. Seals v. State, 157 Tenn. 538, 11 S.W.2d 879, 1928 Tenn. LEXIS 218 (1928).

A search warrant properly describing the premises to be searched was not defective as to the search of such premises merely for failure to name the owner of the premises, though it would be defective as to search of his person. Seals v. State, 157 Tenn. 538, 11 S.W.2d 879, 1928 Tenn. LEXIS 218 (1928).

Warrant describing premises to be searched as 2706 “Coward” Street instead of 2706 “Cowart” Street was sufficient where there was no street in the city named “Coward” and the affidavit attached to the warrant gave the correct name of the street, the two names being idem sonans. Seals v. State, 157 Tenn. 538, 11 S.W.2d 879, 1928 Tenn. LEXIS 218 (1928).

The place to be searched should “be designated with sufficient accuracy to prevent the officer from searching the premises of one person under a warrant directed against those of another.” Lea v. State, 181 Tenn. 378, 181 S.W.2d 351, 1944 Tenn. LEXIS 383 (1944).

The search warrant must be clear of ambiguity as to the place to be searched. Dolen v. State, 187 Tenn. 663, 216 S.W.2d 351, 1948 Tenn. LEXIS 481 (1948).

If warrant does not describe the premises in a sufficient manner it cannot be corrected by description appearing in affidavit though both warrant and affidavit are on one printed instrument. Minton v. State, 186 Tenn. 541, 212 S.W.2d 373, 1948 Tenn. LEXIS 577 (1948).

Search warrant adjudging that offenses of unlawful possession of gambling devices and gambling were being committed by “John Doe, alias” on premises described as “1476½ Market Street” which was the upstairs over the Paris Cafe validly authorized search of rooms occupied by defendant at that address though there were other rooms at the same address occupied by another person. Renner v. State, 187 Tenn. 647, 216 S.W.2d 345, 1948 Tenn. LEXIS 479 (1948).

Search warrant was defective which failed to set forth any facts from which a reasonable conclusion might have been drawn that the evidence was in the place to be searched. State v. Longstreet, 619 S.W.2d 97, 1981 Tenn. LEXIS 454 (Tenn. 1981), overruled in part, State v. Leveye, 796 S.W.2d 948, 1990 Tenn. LEXIS 325 (Tenn. 1990).

A search warrant directed against a multiunit dwelling is invalid unless it describes the subunit intended to be searched with sufficient definiteness to exclude the search of an unintended subunit. State v. Stinnett, 629 S.W.2d 1, 1982 Tenn. LEXIS 386 (Tenn. 1982).

In cases where the police are understandably misled into believing that a house was a single dwelling unit, the courts have recognized an exception to the rule that evidence must be suppressed if the search warrant did not specifically signify the subunit to be searched. State v. Stinnett, 629 S.W.2d 1, 1982 Tenn. LEXIS 386 (Tenn. 1982).

In determining the validity of a search warrant when an attack is made upon the description of the place to be searched, the court must determine whether or not it will enable an officer to locate the place to be searched with reasonable certainty. State v. Nunley, 675 S.W.2d 197, 1984 Tenn. Crim. App. LEXIS 2365 (Tenn. Crim. App. 1984).

Where directions stated in a warrant were essentially accurate, defendant was named therein and the affidavit stated that defendant resided in, occupied, or possessed property to be searched, the possibility of any ambiguity in the location of defendant's residence which might have arisen in the execution of the warrant was negated by officer's actual knowledge that the property was located, in fact, as described in the warrant. State v. Bostic, 898 S.W.2d 242, 1994 Tenn. Crim. App. LEXIS 627 (Tenn. Crim. App. 1994), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 93 (Tenn. Mar. 6, 1995); State v. Conatser, 958 S.W.2d 357, 1997 Tenn. Crim. App. LEXIS 313 (Tenn. Crim. App. 1997).

The search warrant provided an adequate description of the residence where the warrant stated the address of the premises and described the color of the bricks, the color of the trim, the color of the mailbox and the presence of swimming pool behind a wooden fence in the back yard. State v. Vanderford, 980 S.W.2d 390, 1997 Tenn. Crim. App. LEXIS 1249 (Tenn. Crim. App. 1997).

Search warrant that identified the church's address in the warrant, along with defendant's office at the church as the area to be searched, met the particularity requirement, as while several buildings were located at the street address contained in the search warrant, all of the buildings comprised the church and did not qualify as premises “occupied by strangers.” State v. McCary, 119 S.W.3d 226, 2003 Tenn. Crim. App. LEXIS 17 (Tenn. Crim. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 674 (Tenn. July 7, 2003).

10. —Vehicles on or Near Premises.

A warrant directing the search of a certain described parcel of real estate did not authorize the search of an automobile parked in front of that real estate, but outside its boundaries, on an adjoining road. Dolen v. State, 187 Tenn. 663, 216 S.W.2d 351, 1948 Tenn. LEXIS 481 (1948).

Although the affidavit did not state that whiskey was being possessed in vehicles on the premises described, nevertheless the command of the warrant that the premises described be searched did, as a matter of law, authorize a search of vehicles on those premises. Dolen v. State, 187 Tenn. 663, 216 S.W.2d 351, 1948 Tenn. LEXIS 481 (1948).

The general sessions judge did not exceed his authority in expressly inserting in the warrant a direction to search the vehicles on the premises, notwithstanding the fact that vehicles were not mentioned in the affidavit. Dolen v. State, 187 Tenn. 663, 216 S.W.2d 351, 1948 Tenn. LEXIS 481 (1948).

Search warrant authorizing search of premises of named individuals at specified address, including outbuildings and automobiles on the premises, did not include automobile of another person found on the premises, as such third person was a stranger to the process. State v. Sircy, 215 Tenn. 1, 383 S.W.2d 37, 1964 Tenn. LEXIS 534 (1964).

11. Description of Property.

A warrant must tell the officer what to search for, as well as where to search. Hampton v. State, 148 Tenn. 155, 252 S.W. 1007, 1923 Tenn. LEXIS 3 (1923).

Where an affidavit charged defendant with “handling, making, or selling whiskey,” and the warrant directed officers to search defendant's premises for “said articles,” the warrant was insufficient. Hampton v. State, 148 Tenn. 155, 252 S.W. 1007, 1923 Tenn. LEXIS 3 (1923).

Where intoxicating liquor is the object of search, a general description “intoxicating liquor” is a sufficient description of the thing for which search is to be made. Hampton v. State, 148 Tenn. 155, 252 S.W. 1007, 1923 Tenn. LEXIS 3 (1923); Armstrong v. State, 150 Tenn. 416, 265 S.W. 672, 1924 Tenn. LEXIS 16 (1924).

A search warrant commanding search for “liquors” contains a sufficient description, for the word “liquor” is commonly used as meaning intoxicating liquor. Armstrong v. State, 150 Tenn. 416, 265 S.W. 672, 1924 Tenn. LEXIS 16 (1924).

If the purpose of search is to seize not specified property, but any property of a specified character, which by reason of its character, and of the place where and the circumstances under which it may be found, if found at all would be illicit, a description as to such character, place and circumstances, would be unnecessary. Lea v. State, 181 Tenn. 378, 181 S.W.2d 351, 1944 Tenn. LEXIS 383 (1944); Hackerman v. State, 189 Tenn. 130, 223 S.W.2d 194, 1949 Tenn. LEXIS 408 (1949).

Where the purpose of the search is to find specific property, it should be so particularly described as to preclude the possibility of seizing any other. Lea v. State, 181 Tenn. 378, 181 S.W.2d 351, 1944 Tenn. LEXIS 383 (1944); Hackerman v. State, 189 Tenn. 130, 223 S.W.2d 194, 1949 Tenn. LEXIS 408 (1949).

Where gaming tickets were obtained under search warrants issued on May 13, such search warrants were not converted into unconstitutional general warrants by reason of the fact that warrants were served on May 14 and tickets seized were dated May 14 as evidence showed that a comprehensive plan or scheme of a continuous nature was involved making it unnecessary for the exact property specified in the warrant to be seized. Solomon v. State, 203 Tenn. 583, 315 S.W.2d 99, 1958 Tenn. LEXIS 335 (1958), superseded by statute as stated in, State v. Little, 560 S.W.2d 403, 1978 Tenn. LEXIS 568 (Tenn. 1978).

Property to be seized must not only be described as “stolen” but referred to with specificity, e.g., “stereo tapes or players;” similarly, a search warrant must describe those items as contraband when they are illegal by virtue of the nature of the use. State v. Johnson, 854 S.W.2d 897, 1993 Tenn. Crim. App. LEXIS 16 (Tenn. Crim. App. 1993), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 119 (Tenn. Mar. 22, 1993).

Use of the term “drugs,” instead of more specific description such as “marijuana,” was an insufficient basis for the issuance of a search warrant. State v. Johnson, 854 S.W.2d 897, 1993 Tenn. Crim. App. LEXIS 16 (Tenn. Crim. App. 1993), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 119 (Tenn. Mar. 22, 1993).

Search warrant for defendant's home was not unconstitutionally broad where the items introduced into evidence at trial were described with sufficient particularity in the warrant as it provided a long list of items including and relating to the use and sale of controlled substances State v. Lockhart, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 726 (Tenn. Crim. App. Sept. 8, 2015), cert. denied, Lockhart v. Tennessee, 136 S. Ct. 2471, 195 L. Ed. 2d 809, 2016 U.S. LEXIS 3909 (U.S. 2016).

Trial court did not err by concluding that the warrant contained a sufficiently particular description of the place to be searched because the directions stated in the warrant were essentially accurate apart from the misnaming of a single cross street, both the detective and the investigator were familiar with the location of the mobile home park and the investigator knew specifically where defendant lived, and the warrant also contained the correct street address for defendant as confirmed by the booking record from his arrest shortly before the murder. State v. Parker, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 127 (Tenn. Crim. App. Feb. 25, 2019).

12. —Liquor.

The description in an affidavit as a “quantity of intoxicating liquors in possession in violation of law,” afforded the magistrate probable cause, or reasonable grounds, for believing that the intoxicating liquor referred to was not beer or wine, legally possessed, but whiskey, rum, brandy or gin illegal to possess. Lea v. State, 181 Tenn. 378, 181 S.W.2d 351, 1944 Tenn. LEXIS 383 (1944).

13. Incorporation of Affidavit in Warrant.

The information presented to the magistrate in the affidavit is not a part of the warrant; it is the evidence upon which he must determine whether or not the warrant should be issued. Hampton v. State, 148 Tenn. 155, 252 S.W. 1007, 1923 Tenn. LEXIS 3 (1923).

Where definite reference to information in the affidavit is made in the warrant, the person executing the warrant may look to that part of the affidavit to strengthen the inadequacies of the warrant itself, although the warrant does not expressly incorporate the affidavit. Hackerman v. State, 189 Tenn. 130, 223 S.W.2d 194, 1949 Tenn. LEXIS 408 (1949).

An exact copy of the original affidavit was not required to be served on defendant, since, because there was no reference to the affidavit in the warrant, it was not part of the warrant, and there was no reason to hold it to the requirements of Tenn. R. Crim. P. 41(c). State v. Lowe, 949 S.W.2d 300, 1996 Tenn. Crim. App. LEXIS 575 (Tenn. Crim. App. 1996).

14. —Review.

Even though no statute exists to require the affidavits to be attached to the search warrant, if a previous affidavit is not referred to or incorporated in a search warrant or in its underlying affidavit, the previous affidavit is subject to being disregarded in the review process. State v. Smith, 836 S.W.2d 137, 1992 Tenn. Crim. App. LEXIS 304 (Tenn. Crim. App. 1992).

40-6-104. Examination of complainant.

The magistrate, before issuing the warrant, shall examine on oath the complainant and any witness the complainant may produce, and take their affidavits in writing, and cause them to be subscribed by the persons making the affidavits. The affidavits must set forth facts tending to establish the grounds of the application, or probable cause for believing the grounds exist.

Code 1932, § 11900; T.C.A. (orig. ed.), § 40-504.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 18.84.

Tennessee Jurisprudence, 16 Tenn. Juris., Intoxicating Liquors, § 27.

NOTES TO DECISIONS

1. Name of Informant.

It is a matter of judicial discretion whether or not an affidavit on information and belief shall state the name of affiant's informant, and such affidavit is sufficient if it shows that there was material evidence before the magistrate. Gallimore v. State, 173 Tenn. 178, 116 S.W.2d 1001, 1938 Tenn. LEXIS 5 (1938), superseded by statute as stated in, State v. Little, 560 S.W.2d 403, 1978 Tenn. LEXIS 568 (Tenn. 1978).

2. Sufficient Disclosure.

3. Affidavit Required.

Where affidavit of complainant was dated the day after the warrant was dated, the warrant was void because the magistrate lacked authority to issue it without the affidavit. State ex rel. Blackburn v. Fox, 200 Tenn. 227, 292 S.W.2d 21, 1956 Tenn. LEXIS 399 (1956).

Although it is preferable that every affidavit contain a completed jurat, an incomplete or defective jurat does not invalidate a warrant issued upon probable cause if it is proven by extrinsic evidence that the supporting affidavit was properly sworn by the affiant. State v. Keith, 978 S.W.2d 861, 1998 Tenn. LEXIS 521 (Tenn. 1998), rehearing denied, State v. Collins, — S.W.2d —, 1998 Tenn. LEXIS 701 (Tenn. Nov. 23, 1998).

4. Source of Information.

For probable cause to be established and the supporting affidavit to be sufficient it is not necessary to link up particular facts with particular sources of information, or with any source of information, as long as it is stated that the facts are from a reliable source or from the personal knowledge of the affiant. Anderson v. State, 512 S.W.2d 665, 1974 Tenn. Crim. App. LEXIS 293 (Tenn. Crim. App. 1974), superseded by statute as stated in, State v. Little, 560 S.W.2d 403, 1978 Tenn. LEXIS 568 (Tenn. 1978).

5. Probable Cause.

Central to all the requirements of Tenn. R. Crim. P. 41(c) and this section is the notion that probable cause must be supported by evidence submitted to the issuing magistrate and that evidence must be sufficient to support an independent and neutral judgment that probable cause exists. State v. Berry, 592 S.W.2d 553, 1980 Tenn. LEXIS 393 (Tenn. 1980), cert. denied, Tennessee v. Berry, 449 U.S. 887, 101 S. Ct. 241, 66 L. Ed. 2d 112, 1980 U.S. LEXIS 3403 (1980).

Generally, probable cause is a reasonable ground for suspicion, supported by circumstances indicative of an illegal act. State v. Johnson, 854 S.W.2d 897, 1993 Tenn. Crim. App. LEXIS 16 (Tenn. Crim. App. 1993), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 119 (Tenn. Mar. 22, 1993).

6. Review.

40-6-105. Issuance of warrant.

The magistrate, if satisfied of the existence of the grounds of the application, or that there is probable ground to believe their existence, shall issue a search warrant signed by the magistrate, directed to the sheriff, any constable or any peace officer, commanding the sheriff, constable or peace officer immediately to search the person or place named for the property specified, and to bring it before the magistrate.

Code 1858, § 5322; Shan., § 7300; mod. Code 1932, § 11901; T.C.A. (orig. ed.), § 40-505.

Cross-References. Persons whose compensation is contingent upon issuance or nonissuance are prohibited from issuing a search warrant, an arrest warrant or mittimus, § 40-5-106.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 18.84.

Tennessee Jurisprudence, 16 Tenn. Juris., Intoxicating Liquors, §§ 27, 28; 17 Tenn. Juris., Justices of Peace and General Sessions Courts, § 21; 22 Tenn. Juris., Searches and Seizures, § 6.

Attorney General Opinions. Magistrate may identify deficiencies in a warrant application or affidavit and inform a requesting officer what is needed to cure such deficiencies without abandoning his or her judicial role as a neutral and detached magistrate. OAG 14-10, 2014 Tenn. AG LEXIS 11 (1/16/14).

NOTES TO DECISIONS

1. In General.

The search warrant must conform to Tenn. Const., art. I, § 7, and the statutory provisions directing procedure under the constitution. Hampton v. State, 148 Tenn. 155, 252 S.W. 1007, 1923 Tenn. LEXIS 3 (1923).

2. “Peace Officer” Defined.

The term “peace officer” as used in this section is a very comprehensive term embracing public officials of practically every class and position including judges of all degrees, policemen, mayors, aldermen, etc., whether county, municipal or state representatives. Vickers v. State, 176 Tenn. 415, 142 S.W.2d 188, 1939 Tenn. LEXIS 132 (1940).

Members of the state highway patrol are “peace officers” within the meaning of this section. Vickers v. State, 176 Tenn. 415, 142 S.W.2d 188, 1939 Tenn. LEXIS 132 (1940); Mullins v. State, 202 Tenn. 354, 304 S.W.2d 333, 1957 Tenn. LEXIS 398 (1957).

The class of persons to whom a warrant must be physically issued is not restricted. State v. Pigford, 572 S.W.2d 921, 1978 Tenn. LEXIS 664 (Tenn. 1978).

3. Authority to Issue Warrant.

Where person signing search warrant as “acting judge” of the general sessions court was not properly appointed under the law applicable to such court, such acting judge had no jurisdiction to issue the search warrant. Steadman v. State, 217 Tenn. 598, 399 S.W.2d 756, 1966 Tenn. LEXIS 614 (1966).

Where a federal law enforcement officer, accompanied by a county deputy sheriff, executed an affidavit for a search warrant; the warrant was addressed to the sheriff, any constable or any peace officer of the county; the federal officer later accompanied the deputy sheriff and two other deputy sheriffs when they executed the warrant; and the first deputy sheriff executed the return on the warrant, the search warrant was valid under this section. State v. Pigford, 572 S.W.2d 921, 1978 Tenn. LEXIS 664 (Tenn. 1978).

4. Issuance on Sunday.

A search warrant is criminal process, issuable on Sunday. Seals v. State, 157 Tenn. 538, 11 S.W.2d 879, 1928 Tenn. LEXIS 218 (1928).

5. Improper Return.

An improper return of the search warrant cannot negate the validity of an otherwise legal search. State v. Robinson, 622 S.W.2d 62, 1981 Tenn. Crim. App. LEXIS 371 (Tenn. Crim. App. 1980), dismissed, LeMay v. Tennessee, 454 U.S. 1096, 102 S. Ct. 667, 70 L. Ed. 2d 636, 1981 U.S. LEXIS 2831 (1981).

6. Collateral Attack.

In a prosecution for the illegal possession of intoxicating liquors, the objection that the affidavit in the city court was not authenticated by that court as being the one upon which the search warrant issued is not reviewable in the supreme court, where it was admitted as genuine in the criminal court, and objection was not raised in motion for a new trial. Armstrong v. State, 150 Tenn. 416, 265 S.W. 672, 1924 Tenn. LEXIS 16 (1924).

7. Review of Issuance.

The issuing magistrate determines the verity of the facts in the supporting affidavit before he issues the warrant and in so doing he performs a judicial act which is not subject to review unless his exercise of judicial discretion is based on no material facts. Anderson v. State, 512 S.W.2d 665, 1974 Tenn. Crim. App. LEXIS 293 (Tenn. Crim. App. 1974), superseded by statute as stated in, State v. Little, 560 S.W.2d 403, 1978 Tenn. LEXIS 568 (Tenn. 1978).

40-6-106. Form of warrant.

The warrant may be substantially in the following form:

State of Tennessee,

County of .

To the sheriff or any constable of the county:

Proof by affidavit having been made before me by A. B., that (stating the particular grounds of the application; or, if the affidavits are not positive, “that there is probable cause for believing that,” stating the particular grounds of the application): You are therefore hereby commanded to make immediate search on the person of C. D. (or “in the house of E. F.,” or “in the house situated,” describing it, or any other place to be searched, with reasonable particularity, as the case may be), for the following property (describing it with reasonable particularity); and if you find the same, or any part thereof, to bring it forthwith before me at (stating the place).

This day of , 20 . L. M., Magistrate

Code 1858, § 5323; Shan., § 7301; Code 1932, § 11902; T.C.A. (orig. ed.), § 40-506.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 18.8, 18.89.

Tennessee Jurisprudence, 16 Tenn. Juris., Intoxicating Liquors, § 27; 22 Tenn. Juris., Searches and Seizures, § 5.

NOTES TO DECISIONS

1. Conformity with Constitution and Statutes.

A search warrant must conform to the constitutional requirements of Tenn. Const., art. I, § 7, and also the statutory requirements. Hampton v. State, 148 Tenn. 155, 252 S.W. 1007, 1923 Tenn. LEXIS 3 (1923).

2. Description of Place.

The search warrant must be clear of ambiguity as to the place to be searched. Dolen v. State, 187 Tenn. 663, 216 S.W.2d 351, 1948 Tenn. LEXIS 481 (1948).

The search warrant provided an adequate description of the residence where the warrant stated the address of the premises and described the color of the bricks, the color of the trim, the color of the mailbox and the presence of a swimming pool behind a wooden fence in the back yard. State v. Vanderford, 980 S.W.2d 390, 1997 Tenn. Crim. App. LEXIS 1249 (Tenn. Crim. App. 1997).

3. —Owner of Place.

4. —Warrant and Affidavit — Variance.

5. —Reference to Affidavit.

The information presented to the magistrate in the affidavit for the issuance of a search warrant is not a part of the warrant, but evidence upon which the magistrate must determine whether or not the warrant should be issued. Hampton v. State, 148 Tenn. 155, 252 S.W. 1007, 1923 Tenn. LEXIS 3 (1923); Armstrong v. State, 150 Tenn. 416, 265 S.W. 672, 1924 Tenn. LEXIS 16 (1924); Jackson v. State, 153 Tenn. 431, 284 S.W. 356, 1925 Tenn. LEXIS 40 (1926).

6. Description of Person.

Warrant describing the offender as “John Doe, alias,” though the officer procuring the warrant knew the name of the offender, would be insufficient to warrant a search of the offender's person, in view of this section, but is sufficient basis for a search of the premises occupied by him. Seals v. State, 157 Tenn. 538, 11 S.W.2d 879, 1928 Tenn. LEXIS 218 (1928).

Where warrant commanded the search of the specified truck under the control of the defendant but did not command the search of the defendant, no authority existed under the warrant for the search of the defendant. Parker v. State, 177 Tenn. 380, 150 S.W.2d 725, 1941 Tenn. LEXIS 14 (1941).

7. Description of Property.

A warrant must tell the officer what to search for, as well as where to search. Hampton v. State, 148 Tenn. 155, 252 S.W. 1007, 1923 Tenn. LEXIS 3 (1923).

8. —Intoxicating Liquor.

40-6-107. Return date.

A search warrant shall be executed and returned to the magistrate by whom it was issued within five (5) days after its date, after which time, unless executed, it is void.
All search warrants in this state may be executed either in the daytime or in the nighttime.

Code 1858, § 5326; Shan., § 7304; mod. Code 1932, § 11907; Acts 1969, ch. 252, § 1; T.C.A. (orig. ed.), § 40-507.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 18.122.

Tennessee Jurisprudence, 16 Tenn. Juris., Intoxicating Liquors, § 28; 22 Tenn. Juris., Searches and Seizures, §§ 6, 7.

NOTES TO DECISIONS

1. Rebuttable Presumption.

There is a rebuttable presumption that a warrant served within the five-day period as provided in T.C.A. § 40-6-107 retains the probable cause validity attributed to it by the issuing magistrate, subject to a proper evidentiary showing to the contrary. The burden of proof is on the challenger to show not just that probable cause no longer exists, but that something objective occurred in the interval to reasonably put the police on notice of that fact. State v. Evans, 815 S.W.2d 503, 1991 Tenn. LEXIS 289 (Tenn. 1991).

2. Return on Day Executed.

Where search warrants directed that the officer make the return within 10 days but warrants were executed and returned on the day issued, the direction was mere surplusage and no injury arose to the defendant therefrom. Zimmerman v. State, 173 Tenn. 673, 122 S.W.2d 436, 1938 Tenn. LEXIS 53 (1938).

3. Second Search on Same Warrant.

Second search of defendant's premises for whiskey on the basis of search warrant used on first search was illegal and constituted unreasonable search and seizure even though second search was made within five days after date of warrant. McDonald v. State, 195 Tenn. 282, 259 S.W.2d 524, 1953 Tenn. LEXIS 335 (1953).

4. Civil Action for Malicious Prosecution.

In action for malicious prosecution because of a search warrant, plaintiff sufficiently showed a termination of the litigation by his allegation and proof that no property had been found by the officer when his premises were searched and that the warrant had been returned to the court issuing the same with the official statement to such effect. Townsell v. Louisville & N.R.R., 4 Tenn. Civ. App. (Higgins) 211 (1912).

5. Failure to Return.

Where warrant is duly executed within five days, the failure of the officer to make the return within five days does not affect its validity, the return being a mere ministerial duty. Bowman v. State, 211 Tenn. 38, 362 S.W.2d 255, 1962 Tenn. LEXIS 338 (1962).

Failure to return an executed search warrant to the issuing magistrate did not render the warrant invalid since the return of an officer upon a search warrant is a ministerial function and does not affect the validity of the warrant and its execution by the officer. State v. Hilliard, 906 S.W.2d 466, 1995 Tenn. Crim. App. LEXIS 246 (Tenn. Crim. App. 1995).

6. Improper Return.

7. Improper Execution.

Execution of a warrant beyond the five-day period fixed by T.C.A. § 40-6-107 renders the warrant impermissibly void and in violation of the U.S. Const., amend. 4 prohibition against unreasonable searches and seizures. State v. Evans, 815 S.W.2d 503, 1991 Tenn. LEXIS 289 (Tenn. 1991).

8. Choice of Law.

Whether state or federal law should be applied to determine the validity of a warrant issued by a federal magistrate that was executed one day too late under T.C.A. § 40-6-107 and Tenn. R. Crim. P. 41(d), but within the 10-day limit set by federal law, did not turn, as a matter of law, on the forum in which the evidence was proffered; instead, the matter was one which turned, as a factual matter, on the relationship between the federal and state officers involved in the case and on whether those officers were acting under color of state law. State v. Hudson, 849 S.W.2d 309, 1993 Tenn. LEXIS 51 (Tenn. 1993).

9. Timely Execution.

Search warrant was executed when the agent transferred the cell phones to the Tennessee Bureau of Investigation technical services unit, within the five-day time period. State v. Patel, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 767 (Tenn. Crim. App. Aug. 25, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 12 (Tenn. Jan. 17, 2018).

40-6-108. Exclusionary Rule Reform Act.

Notwithstanding any law to the contrary, any evidence that is seized as a result of executing a search warrant issued pursuant to this part or pursuant to Tennessee Rules of Criminal Procedure Rule 41 that is otherwise admissible in a criminal proceeding and not in violation of the constitution of the United States or Tennessee shall not be suppressed as a result of any violation of this part or any violation of Tennessee Rules of Criminal Procedure Rule 41 if the court determines that such violation was a result of a good faith mistake or technical violation made by a law enforcement officer, court official, or the issuing magistrate as defined in subsection (c).
This section does not limit or prohibit the enforcement of any appropriate civil remedy in actions pursuant to other provisions of law against any individual or government entity found to have conducted an unreasonable search or seizure; provided, however, that unless otherwise provided by federal law or the constitution of Tennessee, if any evidence is seized as a result of a good faith mistake or technical violation, as defined in subsection (c), the individual or government entity shall not be civilly liable.
As used in this section, unless the context otherwise requires, “good faith mistake or technical violation” means:
1. An unintentional clerical error or clerical omission made by a law enforcement officer, court official or issuing magistrate in the form, preparation, issuance, filing and handling of copies, or return and inventory of a search warrant;
2. When the officer to whom the warrant is delivered for execution is not present during the execution but an officer with law enforcement authority over the premises does otherwise execute the search warrant;
3. A reasonable reliance on a statute that is subsequently ruled unconstitutional; or controlling court precedent that is overruled after the issuance of a search warrant, unless the court overruling the precedent orders the new precedent to be applied retroactively.

Acts 2011, ch. 252, § 1.

Attorney General Opinions. Constitutionality of “Exclusionary Rule Reform Act”. OAG 11-32, 2011 Tenn. AG LEXIS 34 (4/11/11).

NOTES TO DECISIONS

1. Applicability.

Trial court did not err in granting defendant's motion to suppress because the Exclusionary Rule Reform Act could not be applied to defendant's case; the Act did not contain any indication by the Legislature that it could be applied retroactively, and the retroactive application of the Act violated defendant's constitutional protection against ex post facto laws because it altered defendant's situation to his disadvantage. State v. Hayes, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 576 (Tenn. Crim. App. July 1, 2013), overruled, State v. Pruitt, 510 S.W.3d 398, 2016 Tenn. LEXIS 980 (Tenn. Dec. 30, 2016).

Trial court did not err by granting defendant's motion to suppress evidence on the ground that a police officer's failure to deliver a copy of a search warrant to defendant was not a “clerical error” under the Exclusionary Rule Reform Act where the legislature carefully worded the definition of “good faith mistake or technical violation” to include only those errors and omissions that were “clerical” and the legal definition of “clerical error” referred to a mistake in writing such as an unintentional typographical error or an omission in the writing. Nothing indicated that the legislature intended for the ERRA to permit the admission of evidence that was obtained when the State completely failed to deliver a copy of the search warrant to a defendant in violation of Tenn. R. Crim. P. 41. State v. Daniel, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 220 (Tenn. Crim. App. Mar. 29, 2016), rev'd, — S.W.3d —, 2018 Tenn. LEXIS 383 (Tenn. July 20, 2018).

Trial court did not err by refusing to suppress evidence seized from the search of defendant's home on the ground that the search warrant did not comply with Tenn. R. Crim. P. 41 where the court determined that T.C.A. § 40-6-108 was constitutional and therefore the evidence admitted was not in error. State v. Lowe, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 497 (Tenn. Crim. App. July 12, 2016), aff'd, 552 S.W.3d 842, 2017 Tenn. LEXIS 904 (Tenn. Sept. 6, 2017).

Tennessee Exclusionary Rule Reform Act, T.C.A. § 40-6-108, was not an ex post facto statute as applied in defendant's case. As a result, defendant's motion to suppress the evidence against defendant was not well-taken because the error in the date written on the search warrant was a good faith or technical mistake and the trial court properly ruled that, pursuant to the Act, the evidence was not to be suppressed. State v. Pruitt, 510 S.W.3d 398, 2016 Tenn. LEXIS 980 (Tenn. Dec. 30, 2016).

Because the holding that the execution of search warrants was unconstitutional was based on a violation of the United States and Tennessee Constitutions, the statute did not apply. State v. Frazier, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 861 (Tenn. Crim. App. Sept. 25, 2017), aff'd, — S.W.3d —, 2018 Tenn. LEXIS 537 (Tenn. Sept. 26, 2018).

2. Good Faith Mistakes Or Technical Violations.

Trial court erred when it denied defendant's motion to suppress in reliance on the Exclusionary Rule Reform Act; while the three copies of the search warrant were not exact replicas because two said the warrant was issued in the morning, and one said it was issued in the evening, as the search was conducted immediately after the warrant was issued, it was obvious that the mistake was a good-faith clerical error that was inconsequential, and the exclusionary rule was not to be applied. State v. Lowe, 552 S.W.3d 842, 2017 Tenn. LEXIS 904 (Tenn. Sept. 6, 2017).

Defendant's motion to suppress the evidence of defendant's blood alcohol concentration level obtained pursuant to a search warrant was properly granted because, based upon the court's discrediting the testimony from the magistrate and the officer, the inconsistent testimony of each witness, and the absence of a definitive explanation for the time of issuance discrepancies during the suppression hearing, the record did not preponderate against the trial court's determination that the discrepancies were not mere technical violations or good faith mistakes. State v. Collier, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1036 (Tenn. Crim. App. Dec. 15, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 221 (Tenn. Apr. 18, 2018).

3. Constitutionality.

Exclusionary Rule Reform Act (ERRA), is an attempt by the General Assembly to abrogate both the express terms of the rule and the Tennessee Supreme Court's prior holdings regarding the rule; the Court has the authority and responsibility to decide whether a good-faith exception, or any other exception to the exclusionary rule, should be adopted, and by passing the ERRA, the General Assembly usurped that authority and responsibility; the ERRA represents a violation of the Tennessee Constitution's Separation of Powers Clause. State v. Lowe, 552 S.W.3d 842, 2017 Tenn. LEXIS 904 (Tenn. Sept. 6, 2017).

40-6-109. [Expired.]

Acts 2014, ch. 769, § 1; expired pursuant to Acts 2014, ch. 769, § 2, effective July 1, 2015.

Compiler's Notes. Former section § 40-6-109, concerning application for and issuance of warrant by electronic means, expired pursuant to Acts 2014, ch. 769, § 2, which provided that this section shall cease to be effective on July 1, 2015.

40-6-110. Searches of cellular telephones and cellular telephone data.

As used in this section:
1. “Cellular telephone” means a wireless telephone authorized by the federal communications commission to operate in the frequency bandwidth reserved for cellular radio telephones;
2. “Cellular telephone data” means any data that is stored in a cellular telephone including telephone numbers, addresses, pictures, documents, texts, videos, music and any other information that is stored in a cellular telephone; and
3. “Law enforcement officer” means any person authorized to effectuate an arrest who is employed by the state, or a county, municipality or metropolitan form of government.
No law enforcement officer shall search, examine, extract or duplicate any cellular telephone data, even if incident to a lawful arrest, unless:
1. The officer has obtained a search warrant issued pursuant to this part or Rule 41 of the Tennessee Rules of Criminal Procedure;
2. The owner of the cellular telephone or the person in possession of the cellular telephone at the time it is seized gives the officer informed consent for the officer to search the cellular telephone; or
3. Exigent circumstances exist at the time of the seizure requiring the officer to search the cellular telephone.
No cellular telephone data that is obtained in violation of this section may be used in any court of law or administrative board as evidence, nor may other evidence that is derived from the illegally obtained data be used as evidence in any such proceeding.
This section shall not apply to any cellular telephone that, at the time of its seizure or discovery, has been abandoned by the owner or person responsible for its abandonment.

Acts 2014, ch. 785, § 1.

Code Commission Notes.

Acts 2014, ch. 785, § 1 purported to enact § 40-6-109. Section 40-6-109 was previously enacted by Acts 2014, ch. 769, § 1; therefore, the enactment by Acts 2014, ch. 785, § 1 was designated as § 40-6-110 by the authority of the code commission.

Part 2
Arrest Warrants

40-6-201. “Warrant of arrest” defined.

A warrant of arrest is an order, in writing, stating the substance of the complaint, directed to a proper officer, signed by a magistrate, and commanding the arrest of the defendant.

Code 1858, § 5023; Shan., § 6982; Code 1932, § 11521; T.C.A. (orig. ed.), § 40-706.

Compiler's Notes. This part may be affected by Tenn R. Crim. P. 4.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. L. Rev. 319.

Attorney General Opinions. Issuance of citations and arrest warrants by general sessions court clerks, OAG 00-044 (3/13/00).

Multiple crimes in single warrant. OAG 15-20, 2015 Tenn. AG LEXIS 20 (3/13/15).

NOTES TO DECISIONS

1. Valid Arrest Warrant.

2. No Arrest Warrant Issued.

Trial court properly granted defendant's motion to dismiss because an arrest warrant was never issued, and the form affidavit of complaint did not substitute for a valid arrest warrant since it did not contain an order that defendant be arrested and brought before the nearest appropriate magistrate in the county of arrest; the affidavit of complaint was initially signed by a notary public rather than a qualified judicial officer and contained no order commanding the arrest of defendant. State v. Jackson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 566 (Tenn. Crim. App. Aug. 4, 2016).

40-6-202. Power of magistrates.

For the apprehension of persons charged with public offenses, magistrates are authorized within their jurisdiction, to issue warrants of arrest, under the rules and regulations prescribed in this part.

Code 1858, § 5019; Shan., § 6978; Code 1932, § 11517; T.C.A. (orig. ed.), § 40-701.

Cross-References. Condemned inmate, warrant for, § 40-23-118.

Magistrate defined, § 40-5-101.

Extradition, governor's warrant of arrest, § 40-9-116.

Officials designated as magistrates, § 40-1-106.

Person withholding books and property appertaining to public office, warrant of commitment, § 8-49-105.

Persons whose compensation is contingent upon issuance or nonissuance are prohibited from issuing a search warrant, an arrest warrant or mittimus, § 40-5-106.

Textbooks. Tennessee Forms (Robinson, Ramsey and Harwell), No. 3-12-5.

Tennessee Jurisprudence, 25 Tenn. Juris., Warrants, § 3.

Law Reviews.

The Tennessee Law of Arrest (Rollin M. Perkins), 2 Vand. L. Rev. 509.

Attorney General Opinions. Authority of magistrate to prohibit the making and signing of an affidavit of complaint, OAG 99-188 (9/22/99).

NOTES TO DECISIONS

1. Constitutionality.

The issuance of a state's warrant by a nonsalaried justice of the peace (now judge of the court of general sessions) does not satisfy the requirements of a neutral and detached magistrate and is violative of U.S. Const., amend. 14 and Tenn. Const., art. I, § 8. In re Dender, 571 S.W.2d 491, 1978 Tenn. LEXIS 647 (Tenn. 1978).

2. Issuance in County Where Found.

Warrants of arrest may be issued not only in the county in which the offense was committed, but also in any county in which the person sought to be arrested is found. McCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79, 1906 Tenn. LEXIS 21 (1906).

40-6-203. Examination of affiant.

Upon information made to any magistrate of the commission of a public offense, the magistrate shall examine, on oath, the affiant or affiants, reduce the examination to writing, and cause the examination to be signed by the person making it.
1. The examination of the affiant or affiants by the magistrate or lawfully authorized court clerk does not have to take place in a face-to-face meeting of the parties but may be conducted through the use of electronic audio-visual equipment which allows the affiant and the examining official to both view and hear each other simultaneously.
2. Prior to the examination, an affiant shall prepare an affidavit of complaint in conformance with Rule 3 of the Tennessee Rules of Criminal Procedure and shall electronically transmit a facsimile copy of that affidavit to the examining official. After the receipt of a legible facsimile copy of the affidavit of complaint, the examining official shall proceed with the examination upon taking the oath of the affiant. Upon the determination by the examining official that the transmitted facsimile copy is a true copy of the affidavit of complaint of an affiant, the copy shall have the same legal effect as the original affidavit of complaint executed by an affiant.

Code 1858, § 5020; Shan., § 6979; Code 1932, § 11518; T.C.A. (orig. ed.), § 40-702; Acts 1999, ch. 51, § 1; 2003, ch. 366, § 1.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 1.8.

Law Reviews.

Effective Minor Courts: Key to Court Modernization (James G. France), 40 Tenn. L. Rev. 29 (1972).

Attorney General Opinions. An arrest warrant issued following the steps outlined in a detailed proposal would constitute a valid charging instrument, OAG 00-124 (8/7/00).

Multiple crimes in single warrant. OAG 15-20, 2015 Tenn. AG LEXIS 20 (3/13/15).

NOTES TO DECISIONS

1. Purpose.

Sections 40-6-203 — 40-6-205 are calculated to reduce the probability of malicious prosecution cases. Cohen v. Cook, 62 Tenn. App. 292, 462 S.W.2d 502, 1969 Tenn. App. LEXIS 278 (Tenn. Ct. App. 1969), aff'd, 224 Tenn. 729, 462 S.W.2d 499, 1970 Tenn. LEXIS 374 (1970).

2. Unsigned Affidavit.

Where the affidavit supporting a warrant was not signed before issuance of the warrant, the warrant at issue was never valid, as there was no sworn statement to support issuance of the warrant. State v. Wilson, 6 S.W.3d 504, 1998 Tenn. Crim. App. LEXIS 1176 (Tenn. Crim. App. 1998).

3. Affidavit Insufficient.

Because the affidavit of complaint contemplated further action, it was not a valid arrest warrant, it was insufficient to commence prosecution. State v. Shell, 512 S.W.3d 267, 2016 Tenn. Crim. App. LEXIS 474 (Tenn. Crim. App. June 29, 2016).

4. Valid Arrest Warrant.

5. Affidavit of Complaint.

Affidavit of complaint was void because the officer's signing of the affidavit of complaint before a notary public rather than a qualified judicial officer did not meet the requirements of the statute. State v. Jackson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 566 (Tenn. Crim. App. Aug. 4, 2016).

40-6-204. Contents of examination.

The written examination shall set forth the facts stated by the affiant or affiants that establish that there is probable cause to believe an offense has been committed and that the defendant committed it.

Code 1858, § 5021; Shan., § 6980; Code 1932, § 11519; T.C.A. (orig. ed.), § 40-703; Acts 2003, ch. 366, § 2.

Attorney General Opinions. Multiple crimes in single warrant. OAG 15-20, 2015 Tenn. AG LEXIS 20 (3/13/15).

NOTES TO DECISIONS

1. Purpose.

Sections 40-6-203 — 40-6-205 are intended to reduce the probability of malicious prosecution. Cohen v. Cook, 62 Tenn. App. 292, 462 S.W.2d 502, 1969 Tenn. App. LEXIS 278 (Tenn. Ct. App. 1969), aff'd, 224 Tenn. 729, 462 S.W.2d 499, 1970 Tenn. LEXIS 374 (1970).

2. Affidavit of Complaint.

40-6-205. Issuance of warrant.

If the magistrate is satisfied from the written examination that there is probable cause to believe the offense complained of has been committed and that there is probable cause to believe the defendant has committed it, then the magistrate shall issue an arrest warrant. The finding of probable cause shall be based on evidence, which may be hearsay in whole or in part; provided, however, that there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished.
In determining whether to issue an arrest warrant pursuant to subsection (a), or a criminal summons pursuant to § 40-6-215, the following shall apply:
1. If a single or multiple affiants are seeking a warrant of arrest for a felony or misdemeanor offense, and at least one (1) or more of the affiants is a law enforcement officer, as defined by § 39-11-106, the magistrate shall issue an arrest warrant unless the law enforcement officer requests a summons be issued instead;
2. If a single or multiple affiants are seeking a warrant of arrest for a misdemeanor offense, as defined in § 39-11-110, and none of the affiants is a law enforcement officer, as defined by § 39-11-106, there is a presumption that the magistrate shall issue a criminal summons. The presumption is overcome if:
  1. The affiant or affiants request a warrant, submit sufficient information demonstrating the need for a warrant, and the magistrate agrees that an arrest warrant should be issued instead of a summons; or
  2. The magistrate finds an arrest warrant is necessary to prevent immediate danger to a victim of domestic abuse, sexual assault or stalking as defined in § 36-3-601;
3. If a single or multiple affiants are seeking a warrant of arrest for a felony offense as defined in § 39-11-110, and none of the affiants is a law enforcement officer, as defined by § 39-11-106, there is a presumption that the magistrate shall not issue either a criminal summons as provided in § 40-6-215, or an arrest warrant. This presumption is overcome if the magistrate finds an arrest warrant is necessary to prevent immediate danger to a victim of domestic abuse, sexual assault or stalking as defined in § 36-3-601.
Notwithstanding this section, if the affiant to an affidavit of complaint for an arrest warrant is the parent or legal guardian of a child who is the victim of alleged criminal conduct, no arrest warrant shall issue to the affiant without the written approval of the district attorney general in the district in which the conduct occurred if:
1. The person the affiant seeks to have arrested was an employee of a local education agency (LEA) at the time of the alleged offense; and
2. The affiant alleges that the LEA employee engaged in conduct that harmed the child of the affiant parent or legal guardian and, at the time of the conduct, the LEA employee had supervisory or disciplinary power over the child.

Code 1858, § 5022; Shan., § 6981; Code 1932, § 11520; T.C.A. (orig. ed.), § 40-704; Acts 2003, ch. 366, § 3; 2004, ch. 889, § 1; 2005, ch. 482, § 3; 2009, ch. 390, § 1; 2014, ch. 531, § 1.

Compiler's Notes. Acts 2014, ch. 531, § 3, provided that the act, which amended subsections (a) and (b), shall apply to all warrants of arrest and criminal summons issued before or after July 1, 2014.

Cross-References. Persons whose compensation is contingent upon issuance or nonissuance prohibited from issuing warrant or mittimus, § 40-5-106.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 1.8.

Law Reviews.

Pressing Charges: Arrest Warrants Severely Restricted Under New Law (David Raybin), 40 No. 3 Tenn. B.J. 30 (2004).

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

Effect of Acts 2014, ch. 531 on arrests by private citizens, security officers; warrant requirements where affiant not a law enforcement officer. OAG 14-93, 2014 Tenn. AG LEXIS 96 (10/24/14).

Multiple crimes in single warrant. OAG 15-20, 2015 Tenn. AG LEXIS 20 (3/13/15).

NOTES TO DECISIONS

1. Purpose.

2. Costs on Issuance Without Reasonable Cause.

A warrant of arrest issued upon the affidavit of one who did not know the facts of his own knowledge, but had been told by a third party that the offense had been committed, was issued without sufficient legal grounds. State v. Good, 77 Tenn. 240, 1882 Tenn. LEXIS 45 (1882).

3. City Ordinance Violation — Necessity.

Prosecution for violation of city ordinance is a civil proceeding, hence warrant does not have to be issued on oath of a person even though offense is prohibited by both city ordinance and state law. Nashville v. Baker, 167 Tenn. 661, 73 S.W.2d 169, 1933 Tenn. LEXIS 75 (1934).

4. Reasonable Grounds.

A reasonable ground is one that would justify a reasonable man to believe that a particular person was guilty of a felony. State v. Haynes, 720 S.W.2d 76, 1986 Tenn. Crim. App. LEXIS 2699 (Tenn. Crim. App. 1986).

5. Unsigned Affidavit.

6. Affidavit of Complaint.

40-6-206. Time of issuance and return — Misdemeanor cases.

Any process, warrant, precept or summons authorized to be issued by any of the judges or clerks of the court, in any criminal prosecution on behalf of the state, may be issued at any time and made returnable to any day of the term. In a misdemeanor case, if a process, warrant, precept or summons has not been served, returned or quashed within five (5) years from the date of its issuance, the process, warrant, precept or summons shall be automatically terminated and removed from the records.

Code 1858, § 5031 (deriv. Acts 1794, ch. 1, § 10); Shan., § 6991; Code 1932, § 11530; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 40-705; Acts 1993, ch. 387, § 1.

Attorney General Opinions. T.C.A. § 40-6-206 has no application to probation violation warrants, OAG 02-126 (11/25/02).

Applicability of T.C.A. § 40-6-206 to felony cases, OAG 06-001 (1/3/06).

T.C.A. § 40-6-206 does not apply to probation violation warrants, OAG 06-001 (1/3/06).

NOTES TO DECISIONS

1. Search Warrant.

A search warrant is a warrant issued in a “criminal prosecution on behalf of the state” as the phrase is used in this section. Seals v. State, 157 Tenn. 538, 11 S.W.2d 879, 1928 Tenn. LEXIS 218 (1928).

2. Issuance on Sunday.

The broad language of this section authorizing issuance of process in criminal cases “at any time” authorizes the issuance of such process on Sunday, and the performance on Sunday of any judicial act necessary as a prerequisite to the issuance of such process. Seals v. State, 157 Tenn. 538, 11 S.W.2d 879, 1928 Tenn. LEXIS 218 (1928).

40-6-207. Form of warrant.

The warrant of arrest may be substantially as follows:

State of Tennessee,

County of .

To any lawful officer of the state:

Information on oath having been made to me that the offense of (designating or describing it) has been committed, and accusing C. D. thereof: You are, therefore, commanded, in the name of the state, forthwith to arrest C. D., and bring C. D. before me, or some other magistrate of the county, to answer the charge. E. F., Magistrate for County.

Code 1858, § 5025; Shan., § 6984; Code 1932, § 11523; T.C.A. (orig. ed.), § 40-707.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 1.10.

Attorney General Opinions. Multiple crimes in single warrant. OAG 15-20, 2015 Tenn. AG LEXIS 20 (3/13/15).

NOTES TO DECISIONS

1. False Imprisonment — Void Warrant.

A warrant for arrest which is not fair and regular on its face, but void, affords the officer attempting to serve it no protection as against an action for false imprisonment. Reichman v. Harris, 252 F. 371, 1918 U.S. App. LEXIS 2071 (6th Cir. Tenn. 1918).

40-6-208. Contents of warrant.

The warrant should specify the name of the defendant, but if it is unknown to the magistrate, the defendant may be designated in the warrant by any name.
It should also state the offense either by name, or so that it can be clearly inferred.
It should also show, in some part, the county in which issued, the name and initials of the magistrate in office.
The warrant shall include a copy of the affidavit of complaint.

Code 1858, §§ 5026, 5027; Shan., §§ 6985, 6986; Code 1932, §§ 11524, 11525; T.C.A. (orig. ed.), §§ 40-708, 40-709; Acts 2003, ch. 366, § 4.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 1.10.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

Attorney General Opinions. Multiple crimes in single warrant. OAG 15-20, 2015 Tenn. AG LEXIS 20 (3/13/15).

NOTES TO DECISIONS

1. Sufficiency of Warrant.

All questions as to the sufficiency of the warrant are foreclosed by the finding of an indictment. Jones v. Tenn., 206 Tenn. 245, 332 S.W.2d 662, 1960 Tenn. LEXIS 512 (1960).

Where warrant, when read in its entirety, clearly inferred that defendant was charged with fourth successive offense of driving a motor vehicle on a public highway while under the influence of an intoxicant, warrant was not fatally defective. Murff v. State, 221 Tenn. 111, 425 S.W.2d 286, 1967 Tenn. LEXIS 359 (1967).

Where defendant was arrested on a warrant for D.U.I., his indictment issued more than one year later, which charged him with driving while under the influence of an intoxicant and for driving with an alcohol concentration of .10 percent or more, was not untimely as to the second charge because the warrant need not have specified the facts of the charge and properly apprised defendant of the potential charges against which he would have to defend. State v. Tait, 114 S.W.3d 518, 2003 Tenn. LEXIS 826 (Tenn. 2003).

Criminal prosecution is commenced if, within the statute of limitations for a particular offense, a warrant is issued identifying the defendant by gender and his or her unique DNA profile; a DNA profile exclusively identifies an accused with nearly irrefutable precision and, as a general rule, satisfies the particularity requirements of the Fourth Amendment to the United States Constitution and Tenn. Const. art. I, § 7. State v. Burdick, 395 S.W.3d 120, 2012 Tenn. LEXIS 903 (Tenn. Dec. 18, 2012).

40-6-209. Officer to whom directed.

The warrant should be directed to any lawful officer of the state, but if executed by any officer having authority, it is valid without regard to its direction.

Code 1858, § 5024; Shan., § 6983; Code 1932, § 11522; T.C.A. (orig. ed.), § 40-710.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 1.21.

40-6-210. Person by whom executed. [Amendments made by Acts 1996, ch. 753, § 2 contingent on county approval. See the Compiler's Notes.]

A warrant may be executed by any sheriff, or officer acting as sheriff, or the sheriff's deputy, or marshal, or police officer of any city or town, acting within the sheriff's county, or by any person otherwise authorized by law. The reference to “sheriff” or “deputy sheriff” in this section also includes constables in counties of this state having a population of:

not less than nor more than

3,700 4,700

6,000 7,800

8,400 8,500

8,535 8,540

9,200 9,570

10,770 10,780

11,512 11,550

11,700 11,900

12,000 13,000

14,500 14,600

15,300 15,500

15,750 16,000

17,000 17,350

18,000 18,200

18,300 18,900

19,000 19,100

21,000 21,500

21,600 22,300

23,200 23,350

23,355 23,391

23,391 23,450

23,500 23,750

24,000 24,255

25,600 27,500

27,900 28,000

28,555 28,600

29,250 31,250

31,260 33,000

33,700 34,000

35,480 41,800

41,900 50,000

57,550 59,400

59,500 60,050

60,600 62,000

64,000 65,000

100,000 118,400

118,700 200,000

according to the 1960 federal census or any subsequent federal census, and Fentress and Hamblen counties.

Code 1858, § 5028; Shan., § 6987; Code 1932, § 11526; Acts 1969, ch. 160, § 3; 1969, ch. 319, §§ 3, 4; 1970, ch. 456, § 1; 1970, ch. 496, § 1; 1970, ch. 588, §§ 1, 2; 1971, ch. 53, §§ 1-3; 1971, ch. 231, § 1; 1972, ch. 584, § 1; 1973, ch. 389, § 1; 1974, ch. 631, §§ 1, 2; Private Acts 1976, ch. 242, § 1; Private Acts 1976, ch. 293, § 1; Acts 1977, ch. 239, § 3; 1982, ch. 881, § 1; T.C.A. (orig. ed.), § 40-711; Acts 1991, ch. 9, § 4; 1992, ch. 973, § 3; Private Acts 1994, ch. 191 § 2; Acts 1996, ch. 753, § 2.

Compiler's Notes. For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Acts 1996, ch. 753, § 6 abolished the office of constable, effective in any county having a population of not less than thirty-one thousand one hundred (31,100) nor more than thirty-one thousand four hundred (31,400) according to the 1990 federal census or any subsequent federal census, upon adoption of a resolution by July 15, 1996, by a two-thirds (2/3) vote of the county legislative body of such county.

Acts 1996, ch. 753, § 7 provided that the provisions of the act apply to and shall become effective in any county having a population of not less than thirty-one thousand one hundred (31,100) nor more than thirty-one thousand four hundred (31,400), according to the 1990 federal census or any subsequent federal census upon adoption of a resolution by July 15, 1996, by a two-thirds (2/3) vote of the county legislative body of such county. Acts 1996, ch. 753, § 2, which amended this section, provided that, in accordance with Acts 1996, ch. 753, § 7, upon adoption of a resolution by the county legislative body of any county to which this act applies, § 40-6-210, is amended by deleting the figure “24,300” under the heading “nor more than” and by substituting instead the figure “24,255”; by deleting the figure “28,500” under the heading “not less than” and by substituting instead the figure “28,555”; by deleting the figure “33,000” under the heading “nor more than” and by substituting instead the figure “31,250”; and by adding a new population category by inserting the figure “31,260” under the heading “not less than” and the figure “33,000” under the heading “nor more than.” The section as set out above reflects the amendment by ch. 753.

Cross-References. Counties in which office of constable has been abolished, § 8-10-101.

Refusal to perform duty, § 39-16-402.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 1.21, 18.153.

Attorney General Opinions. Municipal police officers' authority to execute state arrest warrants, OAG 98-0153 (8/17/98).

Extent of municipal police authority beyond municipal limits. OAG 10-48, 2010 Tenn. AG LEXIS 48 (4/12/10).

40-6-211. Accuseds outside county — Persons to whom warrant issued — Accused brought before magistrate.

When the person accused has fled, or resides out of the county where the offense was committed, the warrant may issue to any lawful officer of any county in the state, and the accused may be brought before the magistrate issuing the warrant, or any other magistrate.

Code 1858, § 5029 (deriv. Acts 1822, ch. 40, § 2); Shan., § 6988; Code 1932, § 11527; T.C.A. (orig. ed.), § 40-712.

Cross-References. Persons whose compensation is contingent upon issuance or nonissuance are prohibited from issuing a search warrant, an arrest warrant or mittimus, § 40-5-106.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 3.3, 1.21, 1.23.

Tennessee Jurisprudence, 25 Tenn. Juris., Warrants, § 3.

NOTES TO DECISIONS

1. Execution in “Any County.”

A warrant may be executed by any lawful officer of the state into whose hands such warrant may come, in any county of the state. McCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79, 1906 Tenn. LEXIS 21 (1906).

40-6-212. Execution outside county.

When the sheriff, deputy sheriff, coroner or any other officer of any county in this state has possession of a warrant or capias for the arrest of any person charged with the commission of a crime, it is lawful for the sheriff, deputy sheriff, coroner or any other officer to execute that process, and arrest the person so charged in any county in this state. “Sheriff” also includes “constable” in those counties enumerated in § 40-6-210.

Acts 1871, ch. 50, § 1; Shan., § 6989; Code 1932, § 11528; Acts 1969, ch. 160, § 3; 1969, ch. 319, §§ 3, 4; T.C.A. (orig. ed.), § 40-713.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 3.3, 1.23, 18.164.

40-6-213. Execution anywhere in state.

The magistrate issuing the warrant may empower any law enforcement officer to execute the warrant anywhere in the state.

Code 1858, § 5030; Shan., § 6990; Code 1932, § 11529; T.C.A. (orig. ed.), § 40-714; Acts 1993, ch. 241, § 66.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 1.21, 18.164.

40-6-214. Authority of clerks and deputies of general sessions courts.

Clerks of courts of general sessions and their duly sworn deputies have jurisdiction and authority, concurrent with that of the judges of the general sessions court, to issue warrants for the arrest of persons.

Acts 1955, ch. 150, § 1; T.C.A., § 40-715; Acts 1993, ch. 241, § 67.

Cross-References. Authority of court clerks to issue arrest warrants, Tenn. R. Crim. P. 4.

Persons whose compensation is contingent upon issuance or nonissuance are prohibited from issuing a search warrant, an arrest warrant or mittimus, § 40-5-106.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 1.6.

40-6-215. Summons instead of arrest warrant.

As an alternative to an arrest warrant as provided in § 40-6-205, the magistrate or clerk may issue a criminal summons instead of an arrest warrant. In determining whether to issue a criminal summons or an arrest warrant as provided in § 40-6-205, this subsection (a) shall apply:
1. If a single or multiple affiants are seeking a warrant of arrest for a felony or misdemeanor offense, and at least one (1) or more of the affiants is a law enforcement officer, as defined by § 39-11-106, the magistrate shall issue an arrest warrant unless the law enforcement officer requests a summons be issued instead;
2. If a single or multiple affiants are seeking a warrant of arrest for a misdemeanor offense, as defined in § 39-11-110, and none of the affiants is a law enforcement officer, as defined by § 39-11-106, there is a presumption that the magistrate shall issue a criminal summons. The presumption is overcome if:
  1. The affiant or affiants request a warrant, submit sufficient information demonstrating the need for a warrant, and the magistrate agrees that an arrest warrant should be issued instead of a summons; or
  2. The magistrate finds an arrest warrant is necessary to prevent immediate danger to a victim of domestic abuse, sexual assault or stalking as defined in § 36-3-601;
3. If a single or multiple affiants are seeking a warrant of arrest for a felony offense as defined in § 39-11-110, and none of the affiants is a law enforcement officer, as defined by § 39-11-106, there is a presumption that the magistrate shall not issue either a criminal summons as provided in this section, or an arrest warrant. This presumption is overcome if the magistrate finds an arrest warrant is necessary to prevent immediate danger to a victim of domestic abuse, sexual assault or stalking as defined in § 36-3-601.
The criminal summons shall be in substantially the same form as an arrest warrant except that it shall summon the defendant to appear before the magistrate or court at a stated time and place. It shall give notice to the person summoned that:
1. The defendant is being charged with a state criminal offense;
2. The summons is being issued in lieu of an arrest warrant;
3. The failure to appear in court on the date and time specified is a separate criminal offense regardless of the disposition of the charge for which the person is originally summoned;
4. Failure to appear for booking and processing is a separate criminal offense;
5. An arrest warrant will issue for failure to appear for court or failure to appear for booking and processing;
6. The failure to appear for court or failure to appear for booking and processing shall be punished as provided in § 39-16-609; and
7. The defendant is encouraged to consult with an attorney about the summons.
The summons shall be executed in triplicate and shall include a copy of the affidavit of complaint. When the summons is served, the original is to be returned to the court specified in the summons, one (1) copy, including a copy of the affidavit of complaint, given to the person summoned, and one (1) copy to be sent to the sheriff or other law enforcement agency in the county responsible for booking procedures.
By accepting the summons, the defendant agrees to appear at the sheriff's department, or other law enforcement agency in the county responsible for booking procedures, to be booked and processed as directed by the sheriff's department or other responsible law enforcement agency. If the defendant fails to appear for booking and processing as directed, the court shall issue a bench warrant for that person's arrest. Failure to appear for booking and processing is a separate criminal offense and shall be punished as provided in § 39-16-609.
The sheriff or other law enforcement agency in the county responsible for serving the summons shall provide the defendant with notice of a court time and date the defendant is to appear. The notice shall be given either at the time the summons is served or at the time the defendant is booked and processed, if booking and processing is ordered to occur prior to the first court date. The court date so assigned shall be not less than ten (10) calendar days nor more than forty-five (45) days from service of the summons or booking and processing, if booking and processing is ordered to occur prior to the first court date. The notice shall be explicit as to where and when the court is to convene and shall advise the defendant that the defendant is encouraged to consult with an attorney about the summons. The court clerk, sheriff, or other law enforcement agency shall provide notice to the affiant, or affiants in the case of multiple-affiants, of the date and time when the defendant is required to appear before the court.
If the person summoned fails to appear in court on the date and time specified, the court shall issue a bench warrant for the person's arrest. Failure to appear for court is a separate criminal offense and shall be punished as provided in § 39-16-609.
The summons shall have printed on it in conspicuous block letters the following:
NOTICE: YOU ARE CHARGED WITH A STATE CRIMINAL OFFENSE. THIS SUMMONS HAS BEEN ISSUED IN LIEU OF AN ARREST WARRANT. YOUR FAILURE TO APPEAR IN COURT ON THE DAY AND TIME ASSIGNED BY THIS SUMMONS OR THE FAILURE TO APPEAR FOR BOOKING AND PROCESSING WILL RESULT IN YOUR ARREST FOR A SEPARATE CRIMINAL OFFENSE PUNISHABLE AS PROVIDED IN T.C.A.§ 39-16-609 REGARDLESS OF THE DISPOSITION OF THE CHARGE FOR WHICH YOU WERE ORIGINALLY SUMMONED. YOU ARE ENCOURAGED TO CONSULT WITH AN ATTORNEY ABOUT THIS SUMMONS. THE SIGNING AND ACCEPTANCE OF THIS SUMMONS IS NOT AN ADMISSION OF GUILT OF THE CRIMINAL OFFENSE.
Each person receiving a summons under this section shall sign the summons indicating knowledge of the notice in subsection (g). The signing of the summons is not an admission of guilt of the criminal offense charged. The signature of each person creates the presumption of knowledge of the notice and a presumption to violate this section if the person should not appear in court as directed or for booking and processing. If the person to receive the summons refuses to sign and accept the summons, the person shall be taken immediately before a magistrate. The magistrate shall order the terms and conditions of the defendant's release to include the posting of bail as provided by chapter 11 of this title.
At the initial or any subsequent appearance of a defendant before the court, the judge may order the posting of bail as provided by chapter 11 of this title, as a condition of the continued or further release of the defendant pending the disposition of the summons.
The criminal summons shall be directed and served as provided by §§ 40-6-209 and 40-6-210 and shall be returned as provided by subsection (c).
This section shall govern all aspects of the issuance of criminal summons, notwithstanding any provision of Rule 4 of the Tennessee Rules of Criminal Procedure to the contrary.
If any subsection, paragraph, sentence, clause or phrase of this section is for any reason held or declared to be invalid, void, unlawful or unconstitutional, that decision shall not affect the validity of the remaining portions of this section.
Notwithstanding this section, if the affiant to an affidavit of complaint for a criminal summons is the parent or legal guardian of a child who is the victim of alleged criminal conduct, no criminal summons shall issue to the affiant without the written approval of the district attorney general in the district in which the conduct occurred if:
1. The person the affiant seeks to have issued a criminal summons was an employee of an local education agency (LEA) at the time of the alleged offense; and
2. The affiant alleges that the LEA employee engaged in conduct that harmed the child of the affiant parent or legal guardian and, at the time of the conduct, the LEA employee had supervisory or disciplinary power over the child.

Acts 1977, ch. 225, § 1; T.C.A., § 40-716; Acts 2003, ch. 366, § 5; 2004, ch. 889, § 2; 2005, ch. 482, § 4; 2009, ch. 390, § 2; 2014, ch. 531, § 2.

Compiler's Notes. Acts 2014, ch. 531, § 3, provided that the act, which amended subsection (a), shall apply to all warrants of arrest and criminal summons issued before or after July 1, 2014.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 1.12.

Attorney General Opinions. Issuance of citations and arrest warrants by general sessions court clerks, OAG 00-044 (3/13/00).

If an individual is arrested by a private citizen for a public offense such as shoplifting, and if that individual is delivered to a law enforcement officer who takes the individual before a magistrate and becomes the affiant, the magistrate may issue a warrant of arrest instead of a criminal summons, OAG 03-153 (12/01/03).

Amendments to this section effective January 1, 2004, have no bearing on a citizen's statutory authority to make a warrantless arrest or on the existing authority of a law enforcement officer to sign an affidavit for an arrest warrant concerning an offense that occurred outside of the officer's presence, OAG 04-036 (3/12/04).

T.C.A § 40-6-215 does not apply to the issuance of probation violation warrants; the issuance of such warrants is governed by T.C.A. § 40-35-311(a), OAG 04-054 (3/26/04).

T.C.A. § 40-6-215 limits the authority of a clerk to issue warrants under Tenn. R. Crim P. Rule 4, OAG 04-085 (5/04/04).

Security guards issuing criminal summons or citations, OAG 07-002 (1/4/07).

Effect of Acts 2014, ch. 531 on arrests by private citizens, security officers; warrant requirements where affiant not a law enforcement officer. OAG 14-93, 2014 Tenn. AG LEXIS 96 (10/24/14).

40-6-216. Copies of warrants.

A criminal defendant or such defendant's attorney shall have the right to request and receive at a reasonable time a copy of any warrant or summons issued pursuant to this part that is served upon the defendant.
Any agency, department or employee or agent of an agency or department who knowingly refuses to provide a copy of the warrant of arrest or summons to a defendant or the defendant's attorney within a reasonable time upon being requested to do so may be in contempt of the court issuing the warrant or summons. In addition to the punishment for contempt, the agency or department shall be required to pay all attorney fees and court costs reasonably incurred by the defendant or the defendant's attorney in obtaining a copy of the warrant or summons.

Acts 1996, ch. 870, § 1; 1999, ch. 90, § 1; 2003, ch. 366, §§ 6, 7.

Cross-References. Contempt of court, title 29, ch. 9.

40-6-217. Issuance of arrest warrant in lieu of criminal summons.

Notwithstanding any other provision of this part or § 40-5-102, to the contrary, a judge who is licensed to practice law in this state and elected for an eight-year term of office may, upon a finding of probable cause, issue an arrest warrant in lieu of a criminal summons under any circumstances and regardless of whether any of the exceptions set out in §§ 40-6-205 and 40-6-215 are applicable.

Acts 2004, ch. 889, § 3.

Attorney General Opinions. Effect of Acts 2014, ch. 531 on arrests by private citizens, security officers; warrant requirements where affiant not a law enforcement officer. OAG 14-93, 2014 Tenn. AG LEXIS 96 (10/24/14).

Part 3
Wiretapping and Electronic Surveillance

40-6-301. Short title.

This part and §§ 39-13-601 — 39-13-603 shall be known and may be cited as the “Wiretapping and Electronic Surveillance Act of 1994.”

Acts 1994, ch. 964, § 2.

Cross-References. Prohibited acts, § 39-13-601.

40-6-302. Legislative purpose.

In order to protect the privacy of wire, oral, and electronic communications, to protect the integrity of court and administrative proceedings, to define, on a uniform basis, the circumstances under which a district attorney general may apply to a court of competent jurisdiction for the interception and use of wire, oral, and electronic communications, to define the circumstances under which a judge in a court of competent jurisdiction may authorize the interception and use of wire, oral and electronic communications, and to prohibit any unauthorized interception or use of those communications, it is necessary for the general assembly to define the circumstances and conditions under which the interception of wire, oral and electronic communications may be lawful. In defining these circumstances, the general assembly seeks to strike a balance between an individual's right to privacy and society's legitimate concern in being protected from criminal activity.
In carrying out illegal activities, criminals often make extensive use of wire, oral and electronic communications. The lawful interception of these communications is an indispensable aid to investigative and law enforcement officials in obtaining evidence of illegal activities. Likewise, it is necessary for the general assembly to safeguard the privacy of innocent persons. Through this part and §§ 39-13-601 — 39-13-603, the general assembly seeks to prohibit the unauthorized interception of wire, oral and electronic communications and to prohibit the use of illegally obtained wire, oral and electronic communications as evidence in courts and administrative proceedings. The interception of wire, oral or electronic communications, therefore, when no party to the communications has consented to the interception, should be allowed only under compelling circumstances when authorized and supervised by a court of competent jurisdiction and upon a finding of probable cause. Court authorization and supervision ensures that the interception is made only in narrowly defined circumstances and that the information obtained will not be misused. The privacy rights of Tennessee citizens are further protected by limiting the interception of wire, oral, and electronic communications to certain major types of felonies under this code.

Acts 1994, ch. 964, § 1.

NOTES TO DECISIONS

1. Construction.

Court in a wiretapping damages suit erred by awarding less than $10,000 in statutory damages where the statute mandated that if the court found liability it did not have discretion to refuse an award of damages. Robinson v. Fulliton, 140 S.W.3d 312, 2003 Tenn. App. LEXIS 122 (Tenn. Ct. App. Feb. 14, 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 790 (Tenn. Sept. 2, 2003).

2. Expectation of Privacy.

Secretly videotaped conversations between a suspect and parents made while alone in a police interrogation room were inadmissible since the suspect had a reasonable expectation of privacy; however, the trial court's denial of a motion to suppress the videotapes was harmless error at the guilt phase of trial, but not at the sentencing phase of trial. State v. Munn, 56 S.W.3d 486, 2001 Tenn. LEXIS 630 (Tenn. 2001).

40-6-303. Definitions.

As used in this part and §§ 39-13-601 — 39-13-603, unless the context otherwise requires:

“Actual damages” means damages given as compensation; damages given as an equivalent for the injury done; damages in satisfaction of, or in recompense for, loss or injury sustained; those damages awarded to a person as compensation, indemnity, or restitution for harm sustained by the person;
“Aggrieved person” means a person who was a party to an intercepted wire, oral or electronic communication, or a person against whom the interception was directed;
“Attorney general and reporter” means the attorney general and reporter of Tennessee;
“Contents,” when used with respect to any wire, oral or electronic communication, includes any information concerning the substance, purport or meaning of that communication;
“Court of record” means any circuit or criminal court in the state of Tennessee;
“District attorney general” means the district attorney general of any judicial district where jurisdiction exists to prosecute an offense that is grounds for an intercept order under § 40-6-305, or the judicial district where the interception of communications is to occur;
“Electronic communication” means any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by the aid of wire, radio, electromagnetic, photooptical or photoelectronic facilities, but does not include:
1. Any wire or oral communication;
2. Any communication made through a tone-only paging device; or
3. Any communication from a “tracking device” as defined in 18 U.S.C. § 3117;
“Electronic communications service” means any service which provides to users of the service the ability to send or receive wire or electronic communications;
“Electronic, mechanical, or other device” means any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than:
1. Any telephone or telegraph instrument, equipment or facility or any component thereof:
  1. Furnished to the subscriber or user by a provider of wire or electronic service in the ordinary course of business and being used by the subscriber or user in the ordinary course of its business or furnished by the subscriber or user for connection to the facilities of the service and used in the ordinary course of its business;
  2. Being used by a provider of wire or electronic communication service in the ordinary course of its business; or
  3. Being used by an investigative or law enforcement officer in the ordinary course of that officer's duties;
2. A hearing aid or similar device being used to correct sub-normal hearing to not better than normal;
“Electronic storage” means:
1. Any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission of the communication; and
2. Any storage of communication by an electronic communication service for purposes of backup protection of that communication;
“Intercept” means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device;
“Investigative or law enforcement officer” means:
1. In all counties having a population in excess of two hundred fifty thousand (250,000), according to the 1990 federal census or any subsequent federal census:
  1. Any officer of the state or a political subdivision of the state, who:

Is empowered by law to conduct investigations of or to make arrests for offenses enumerated in § 40-6-305; and
Has successfully completed a training course on the interception and use of wire, oral and electronic communications approved by the Tennessee peace officer standards and training commission or the Tennessee bureau of investigation; or

Any attorney authorized by law to prosecute those offenses; and

In all other counties:

An agent of the Tennessee bureau of investigation, who:

Is empowered by law to conduct investigations of or to make arrests for offenses enumerated in § 40-6-305; and

Has successfully completed a training course on the interception and use of wire, oral and electronic communications approved by the bureau; or

Any attorney authorized by law to prosecute those offenses;

“Judge of competent jurisdiction” means a judge presiding over any court of record as defined in this part and §§ 39-13-601 — 39-13-603 in the state of Tennessee;

“Oral communication” means any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation, but “oral communication” does not include any electronic communication;

“Pen register” means a device which records or decodes electronic or other impulses which identify the numbers dialed or otherwise transmitted on the telephone line to which the device is attached, but “pen register” does not include any device used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communication services provided by the provider or any device used by a provider or customer of a wire communication service for cost accounting or other like purposes in the ordinary course of its business;

“Provider of wire or electronic communications service” means an entity which holds itself out to the public as engaged in the business of transmitting messages through the use of wire communication or electronic communication, as both terms are defined in this section;

“Readily accessible to the general public” means, with respect to a radio communication, that the communication is not:

Scrambled or encrypted;

Transmitted using modulation techniques whose essential parameters have been withheld from the public with the intention of preserving the privacy of the communications;

Carried on a subcarrier or other signal subsidiary to a radio transmission; or

Transmitted over a communication system provided by a common carrier, unless the communication is a tone-only paging system communication;

“Recorded device” means the tangible medium upon which sounds and/or images are recorded or otherwise stored, which includes any original phonograph record, disk, tape, audio or video cassette, wire, film, or other medium now known or later developed on which sounds and/or images are or can be recorded or otherwise stored, or any copy or reproduction which duplicates, in whole or in part, the original; and

“Wire communication” means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception, including the use of such connection in a switching station, furnished or operated by any person engaged as a provider of wire or electronic communications service in providing or operating those facilities for the transmission of communications.

Acts 1994, ch. 964, § 3; 1996, ch. 903, § 1; 2006, ch. 777, § 1; 2009, ch. 440, §§ 1, 2.

Compiler's Notes. 18 U.S.C. § 3117, referred to in this section, concerns mobile tracking devices.

For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

NOTES TO DECISIONS

1. “Intercept.”

Unless an e-mail is actually acquired in its split second transmission over a computer network, it cannot be “intercepted” as that term is reasonably understood. Cardinal Health 414, Inc. v. Adams, 582 F. Supp. 2d 967, 2008 U.S. Dist. LEXIS 84713 (M.D. Tenn. Oct. 10, 2008).

Company's allegations that defendants intercepted emails in violation of the Tennessee Wiretap Act (TWA), T.C.A. § 39-13-601 et seq., and the Federal Wiretap Act (FWA), 18 U.S.C. § 2510 et seq., were dismissed because the company had not pled sufficient factual allegations that the emails at issue were obtained contemporaneously with their transmission. Expert Janitorial, LLC v. Williams, — F. Supp. 2d —, 2010 U.S. Dist. LEXIS 23080 (E.D. Tenn. Mar. 12, 2010).

2. Communication In Public Area.

While recovery for interception of an oral communication is limited to those who possess an expectation that the communication is not subject to interception, the legislature did not exclude liability for those who intercept a communication in an area open to the public; while community events were routinely held at the fire hall, it remained locked and only permitted access via keypad or physical key in the absence of such events, and plaintiffs' communications were not recorded during any such event. Ledford v. Sneed, — S.W.3d —, 2020 Tenn. App. LEXIS 208 (Tenn. Ct. App. May 8, 2020).

40-6-304. Order for electronic surveillance — Application — Required findings — Expiration of order — Recordings — Evidence — Motions to suppress.

Each application for an order authorizing the interception of a wire, oral or electronic communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction in the district where the interception of a wire, oral or electronic communication is to occur, or in any district where jurisdiction exists to prosecute the underlying offense to support an intercept order under § 40-6-305. The application shall state the investigative or law enforcement officer's authority to make the application and shall include the following information:
1. Identity of the investigative or law enforcement officer making the application, and the district attorney general authorizing the application;
2. A full and complete statement of the facts and circumstances relied upon by the applicant to justify the applicant's belief that an order should be issued, including:
  1. Details as to the particular offense that has been, is being, or is about to be committed;
  2. A particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted;
  3. A particular description of the type of communications sought to be intercepted; and
  4. The identity of all persons, if known, committing the offense and whose communications are to be or may be intercepted;
3. A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;
4. A statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particular description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter;
5. A full and complete statement of the facts concerning all previous applications known to the individuals authorizing and making the application, made to any judge for authorization to intercept wire, oral or electronic communications involving any of the same persons, facilities, or places specified in the application, and the action taken by the judge on each application; and
6. Where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain results.
The judge may require the applicant to furnish additional testimony or documentary evidence in support of the application.
Upon an application the judge may enter an ex parte order, as requested or as modified, authorizing interception of wire, oral or electronic communications within the district in which the judge is sitting, and outside that district but within this state in the case of a mobile interception device, if the judge determines on the basis of the facts submitted by the applicant that:
1. There is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in § 40-6-305;
2. There is probable cause for belief that particular communications concerning that offense will be obtained through the interception;
3. Normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous; and
4. There is probable cause for belief that the facilities from which, or the place where, the wire, oral or electronic communications are to be intercepted are being used, or about to be used, in connection with the commission of the offense, or are leased to, listed in the name of, or commonly used by the person.
1. Each order authorizing the interception of any wire, oral or electronic communication under this part or §§ 39-13-601 — 39-13-603 shall specify:
  1. The identity of all persons, if known, whose communications are to be or may be intercepted;
  2. The nature and location of the communications facilities as to which, or the place where, authority to intercept is granted;
  3. A particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates;
  4. The identity of the agency authorized to intercept the communications, and the identity of the person authorizing the application; and
  5. The period of time during which the interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.
2. An order authorizing the interception of a wire, oral or electronic communication under this part or §§ 39-13-601 — 39-13-603 shall, upon the request of the applicant, direct that a provider of wire or electronic communication service, landlord, custodian, or other person shall furnish the applicant with all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that the service provider, landlord, custodian, or person is according the person whose communications are to be intercepted. Any provider of wire or electronic communication service, landlord, custodian, or other person furnishing facilities or technical assistance shall be compensated by the applicant for reasonable expenses incurred in providing the facilities or assistance.
No order entered under this section may authorize or approve the interception of any wire, oral or electronic communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty (30) days. The thirty-day period begins on the earlier of the day on which the investigative or law enforcement officer first begins to conduct an interception under the order or ten (10) days after the order is entered. Extensions of an order may be granted, but only upon application for an extension made in accordance with subsection (a) and the court making the findings required by subsection (c). The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for longer than thirty (30) days. Every order and extension of an order shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in a way as to minimize the interception of communications not otherwise subject to interception under this part or §§ 39-13-601 — 39-13-603, and must terminate upon attainment of the authorized objective, or in any event in thirty (30) days. In the event the intercepted communication is in a code or foreign language, and an expert in that code or foreign language is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after interception. An interception under this part or §§ 39-13-601 — 39-13-603 may be conducted in whole or in part by state personnel, or by an individual operating under a contract with the state, acting under the supervision of an investigative or law enforcement officer authorized to conduct the interception.
1. The contents of any wire, oral or electronic communication intercepted by any means authorized by this part or §§ 39-13-601 — 39-13-603 shall, if possible, be recorded on tape or wire or other comparable device. The recording of the contents of any wire, oral or electronic communication under this subsection (f) shall be done in a way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions of the order, the recordings shall be made available to the judge issuing the order and sealed under the judge's direction. All recordings of wire, oral or electronic communications shall be treated as confidential and shall not be open for inspection by members of the public. Custody of the recordings shall be wherever the judge orders. The recordings shall not be destroyed except upon an order of the issuing judge and in any event shall be kept for ten (10) years; provided, that upon the agreement of the person whose communications were intercepted, or that person's counsel, and the appropriate district attorney general, the issuing judge may order the destruction of all recordings at any time. Duplicate recordings may be made for use or disclosure, pursuant to § 40-6-306(a) and (b) for investigations, upon an order of the issuing judge. All duplicate recordings or written transcripts shall be treated as confidential and shall not be open for inspection by members of the public. Upon an order of the issuing judge, the contents of any wire, oral or electronic communication may be unsealed and used while giving testimony, pursuant to § 40-6-306(c). The presence of the seal provided for by this subsection (f), or a satisfactory explanation for the absence of the seal, shall be a prerequisite for the use or disclosure of the contents of any wire, oral or electronic communication or evidence derived therefrom under § 40-6-306(c). All wire, oral or electronic communications that are not disclosed while giving testimony retain their confidential character and shall not be open for inspection by members of the public. Immediately following duplication or use while giving testimony, the recordings shall be returned to the judge issuing the order and resealed under the judge's direction.
2. Applications made and orders granted under this section shall be treated as confidential and shall not be open for inspection by members of the public. Applications and orders shall be sealed by the judge and custody shall be wherever the judge directs. The applications and orders shall be disclosed only upon a showing of good cause before a judge of competent jurisdiction and shall not be destroyed except on order of the issuing or denying judge and in any event shall be kept for ten (10) years. Upon the agreement of the person named in the order or application, or that person's counsel, and the appropriate district attorney general, the issuing judge may order the destruction of such applications and orders at any time.
3. Any violation of this subsection (f) may be punished as contempt of the issuing or denying judge.
4. Within a reasonable time, but not later than ninety (90) days after the termination of an order of approval under subsections (c) and (d), or an order authorizing an extension under subsection (e), or the denial of an order under subsection (c), the issuing or denying judge shall cause an inventory to be served on the persons named in the order or application and any other parties to intercepted communications as determined by the judge exercising judicial discretion in the interest of justice. The inventory shall include notice of:
  1. The fact of entry of the order or the application;
  2. The date of the entry and the period of authorized interception, or the denial of the application; and
  3. The fact that during the period wire, oral or electronic communications were or were not intercepted.
5. The judge, upon the filing of a motion, may, in the judge's discretion, make available to the person or the person's counsel for inspection any portions of the intercepted communications, applications and orders as the judge determines to be in the interest of justice. On an ex parte showing of good cause to a judge of competent jurisdiction, the serving of the inventory required by this subsection (f) may be postponed for ninety (90) days. At the end of this period, the judge may allow additional ninety-day extensions, but only on further showing of good cause.
The contents of any intercepted wire, oral or electronic communication or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in a state court unless each party, not less than ten (10) days before the trial, hearing, or proceeding, has been furnished with a copy of the court order, and accompanying application, under which the interception was authorized. This ten-day period may be waived by the judge if the judge finds that it was not possible to furnish the party with the information ten (10) days before the trial, hearing, or proceeding and that the party will not be prejudiced by the delay in receiving the information.
1. Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the state of Tennessee or a political subdivision of the state may move to suppress the contents of any intercepted wire, oral or electronic communication, or evidence derived therefrom, on the grounds that:
  1. The communication was unlawfully intercepted;
  2. The order of authorization under which it was intercepted is insufficient on its face; or
  3. The interception was not made in conformity with the order of authorization. The motion shall be made before the trial, hearing or proceeding, unless there was no opportunity to make the motion or the person was not aware of the grounds of the motion. If the motion is granted, the contents of the intercepted wire, oral or electronic communication, or evidence derived therefrom, shall be treated as having been obtained in violation of this part or §§ 39-13-601 — 39-13-603. The judge, upon the filing of a motion by the aggrieved person, may, in the judge's discretion, make available portions of the intercepted communication, or evidence derived therefrom, as the judge determines to be in the interest of justice.
2. In addition to any other right to appeal, the state has the right to appeal from an order granting a motion to suppress made under subdivision (h)(1), or the denial of an application for an order of approval, if the district attorney general certifies to the judge or other official granting the motion or denying the application that the appeal is not taken for purposes of delay. The appeal shall be taken within thirty (30) days after the date the order was entered and shall be diligently prosecuted.

Acts 1994, ch. 964, § 5; 2005, ch. 87, § 1.

Cross-References. Confidentiality of public records, § 10-7-504.

NOTES TO DECISIONS

1. Relationship With Federal Law.

Courts interpret T.C.A. § 40-6-304(a)(3) in light of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2518(1)(c) precedents. State v. Moore, 309 S.W.3d 512, 2009 Tenn. Crim. App. LEXIS 645 (Tenn. Crim. App. Aug. 10, 2009), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 191 (Tenn. Feb. 22, 2010), cert. denied, Moore v. Tennessee, 562 U.S. 919, 131 S. Ct. 290, 178 L. Ed. 2d 190, 2010 U.S. LEXIS 7450 (U.S. 2010).

2. Requirements.

Electronic wiretap application contained a sufficient statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous; it set out, in detail, both general information about the difficulties involved in investigating a large drug trafficking organization and particular facts of the case which would indicate that wiretaps were not being routinely employed as the initial step in criminal investigation. State v. Moore, 309 S.W.3d 512, 2009 Tenn. Crim. App. LEXIS 645 (Tenn. Crim. App. Aug. 10, 2009), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 191 (Tenn. Feb. 22, 2010), cert. denied, Moore v. Tennessee, 562 U.S. 919, 131 S. Ct. 290, 178 L. Ed. 2d 190, 2010 U.S. LEXIS 7450 (U.S. 2010).

Wiretapping and Electronic Surveillance Act, T.C.A. § 40-6-301 et seq., does not contain a per se requirement that an issuing judge be advised of call waiting or call forwarding features for minimization purposes; absent such a requirement, a party challenging police minimization procedures must address the specific procedures and calls at issue and demonstrate that monitoring was not conducted in a way as to minimize the interception of communications not otherwise subject to interception. State v. Moore, 309 S.W.3d 512, 2009 Tenn. Crim. App. LEXIS 645 (Tenn. Crim. App. Aug. 10, 2009), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 191 (Tenn. Feb. 22, 2010), cert. denied, Moore v. Tennessee, 562 U.S. 919, 131 S. Ct. 290, 178 L. Ed. 2d 190, 2010 U.S. LEXIS 7450 (U.S. 2010).

Wiretap applications satisfied the requisite necessity requirement, as an officer explained the shortcomings of traditional investigative techniques if applied to the investigation of a major drug-trafficking organization, including specific facts and specific examples. State v. King, 437 S.W.3d 856, 2013 Tenn. Crim. App. LEXIS 821 (Tenn. Crim. App. Sept. 24, 2013), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 151 (Tenn. Feb. 12, 2014).

Because the evidence did not preponderate against the trial court finding that the wiretap application properly complied with the requirements for a wiretap application, defendant was not entitled to relief on his claim that the trial court erred in denying his motion to suppress evidence obtained pursuant to the application. State v. Bowley, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 405 (Tenn. Crim. App. July 12, 2019).

3. “Commonly Used.”

Wiretap application set forth a substantial basis from which the issuing court could find probable cause to believe that an individual was the person making telephone calls, based on information about the individual's drug-dealing activities, and pen register statistics; accordingly, the application established probable cause to believe that the individual commonly used the intercepted telephone. State v. King, 437 S.W.3d 856, 2013 Tenn. Crim. App. LEXIS 821 (Tenn. Crim. App. Sept. 24, 2013), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 151 (Tenn. Feb. 12, 2014).

4. Substantial Basis.

There was a substantial basis for the issuing court to find probable cause that defendant was involved in a conspiracy to possess 700 pounds or more of marijuana and that communications about the offense would be obtained by the interception of his cell phone records where the wiretap application contained information that six reliable confidential informants linked defendant to the conspiracy, 1,800 pounds of marijuana intended for a co-conspirator was seized, defendant was stopped by customs at an Arizona checkpoint near the Mexican border, and defendant had temporary housing near the Mexican border that was believed to be a stash house. State v. Lockhart, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 726 (Tenn. Crim. App. Sept. 8, 2015), cert. denied, Lockhart v. Tennessee, 136 S. Ct. 2471, 195 L. Ed. 2d 809, 2016 U.S. LEXIS 3909 (U.S. 2016).

Information in the wiretap application provided a substantial basis for the issuing court to issue the order for an alleged co-conspirator's cell phone where during the intercepted call the unknown male tried to conceal that he and defendant were talking about another cell phone left for defendant by another co-conspirator and was speaking cryptically so as not to reveal his name and the officer stated that he believed that the target cell phone was a bat-phone being used by a co-conspirator. State v. Lockhart, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 726 (Tenn. Crim. App. Sept. 8, 2015), cert. denied, Lockhart v. Tennessee, 136 S. Ct. 2471, 195 L. Ed. 2d 809, 2016 U.S. LEXIS 3909 (U.S. 2016).

Wiretap application established probable cause to believe that a co-conspirator was using the target phone where the co-conspirator told another person to call him back, the person made a call three minutes later to the target phone, and nothing showed that the co-conspirator received a call on his wiretapped phone from the other person's phone. Based on the particularly secretive nature of the drug operation and the conspirators' established use of bat-phones to communicate about the operation, the application demonstrated probable cause to believe that the co-conspirator was using the target phone to commit the drug conspiracy. State v. Lockhart, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 726 (Tenn. Crim. App. Sept. 8, 2015), cert. denied, Lockhart v. Tennessee, 136 S. Ct. 2471, 195 L. Ed. 2d 809, 2016 U.S. LEXIS 3909 (U.S. 2016).

Wiretap application set forth a substantial basis for the issuing court to conclude that defendant commonly used the target phone where he telephoned a co-conspirator from the target number and nothing in their conversation indicated that the co-conspirator had been trying to contact anyone other than defendant or that it was normally used by anyone other than defendant. The application also set forth a substantial basis to conclude that that communications related to the drug offense would be obtained through the wiretap. State v. Lockhart, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 726 (Tenn. Crim. App. Sept. 8, 2015), cert. denied, Lockhart v. Tennessee, 136 S. Ct. 2471, 195 L. Ed. 2d 809, 2016 U.S. LEXIS 3909 (U.S. 2016).

5. Standing.

This section did not give defendant standing to challenge the GPS tracking of a co-conspirator's phone where the order at issue was obtained pursuant to an application for a search warrant under Tenn. R. Crim. P. 41. State v. Lockhart, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 726 (Tenn. Crim. App. Sept. 8, 2015), cert. denied, Lockhart v. Tennessee, 136 S. Ct. 2471, 195 L. Ed. 2d 809, 2016 U.S. LEXIS 3909 (U.S. 2016).

6. Review.

After reviewing the briefs from the direct appeal, the evidence did not preponderate against the post-conviction court's finding that counsel fully briefed defendant's argument related to the probable cause requirement in the wiretapping statute, and that she addressed the subsections of that statute in her brief that she felt most strongly aided her argument that the wiretaps were unlawful; and, while the appellate court's decision limited defendant's argument, defendant did not show that counsel was ineffective in that regard as she made a strategic decision to focus her argument in the reply brief, which the appellate court would not second guess. King v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 571 (Tenn. Crim. App. June 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 671 (Tenn. Oct. 4, 2017).

40-6-305. Interception of communications for evidence of certain crimes.

A district attorney general may apply to a judge of competent jurisdiction for, and the judge may grant, in conformity with § 40-6-304, an order authorizing the interception of wire, oral, or electronic communications by investigative or law enforcement officers having responsibility for the investigation of the offense as to which the application is made when interception may provide evidence of:

The commission of criminal homicide, as defined in § 39-13-201;
Criminal conspiracy, as defined in § 39-12-103, to commit criminal homicide;
The commission of a violation of § 39-17-417(j);
The commission of, or conspiracy to commit, a criminal gang offense by a criminal gang member, as defined in § 40-35-121; or
The commission of trafficking a person for a commercial sex act, as defined in § 39-13-309.

Acts 1994, ch. 964, § 6; 1996, ch. 680, § 1; 2011, ch. 493, § 1; 2015, ch. 435, § 1.

40-6-306. Disclosure of communications to law enforcement officers.

Any investigative or law enforcement officer who, by any means authorized by this part or §§ 39-13-601 — 39-13-603, has obtained knowledge of the contents of any wire, oral or electronic communication, or evidence derived therefrom, may disclose such contents to another investigative or law enforcement officer to the extent that disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.
Any investigative or law enforcement officer who, by any means authorized by this part or §§ 39-13-601 — 39-13-603, has obtained knowledge of the contents of any wire, oral or electronic communication or evidence derived therefrom may use the contents to the extent the use is appropriate to the proper performance of the officer's official duties.
Any person who has received, by any means authorized by this part or §§ 39-13-601 — 39-13-603, any information concerning a wire, oral or electronic communication, or evidence derived therefrom, intercepted in accordance with this part or §§ 39-13-601 — 39-13-603 may disclose the contents of that communication or derivative evidence while giving testimony under oath or affirmation in any proceeding held under the authority of the state of Tennessee, or a political subdivision of the state, or of the United States, or a political subdivision of the United States.
Nothing in this part or §§ 39-13-601 — 39-13-603 shall be construed as permitting the interception of a wire, oral or electronic communication that is made privileged by law unless the judge issuing the order for the interception finds probable cause to believe that all parties to the privileged communication are criminally responsible for the commission of a homicide offense, conspiracy to commit a homicide offense or commission of a violation of § 39-17-417(j).
When an investigative or law enforcement officer, while engaged in intercepting wire, oral or electronic communications in the manner authorized in this part, intercepts wire, oral or electronic communications relating to offenses other than those specified in the order of authorization, the contents thereof and evidence derived therefrom, may be disclosed or used as provided in subsections (a) and (b). The contents and any evidence derived therefrom may be used under subsection (c) when authorized by a judge of competent jurisdiction where the judge finds on subsequent application that the contents were otherwise intercepted in accordance with this part or §§ 39-13-601 — 39-13-603. The application shall be made as soon as practicable after the interception.

Acts 1994, ch. 964, § 7; 1996, ch. 680, § 2.

40-6-307. Use of contents in evidence.

Whenever a wire, oral or electronic communication has been intercepted, no part of the contents of the communication and no evidence derived therefrom may be received in evidence in a trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the state of Tennessee, or a political subdivision of the state if the disclosure of that information would be in violation of this part or §§ 39-13-601 — 39-13-603.

Acts 1994, ch. 964, § 8.

40-6-308. Reports.

Within thirty (30) days after the expiration of an order or each extension of an order entered under § 40-6-304(c) and (e), or the denial of an order approving an interception, the issuing or denying judge shall report to the attorney general and reporter:
1. The fact that an order or extension was applied for;
2. The kind of order or extension applied for;
3. The fact that the order or extension was granted as applied for, was modified, or was denied;
4. The period of interceptions authorized by the order and the number and duration of any extensions of the order;
5. The offense specified in the order or application, or the extension of an order;
6. The identity of the applying investigative or law enforcement officer or agency making the application and the person authorizing the application; and
7. The nature of the facilities from which, or the place where, communications were to be intercepted.
In January of each year the attorney general and reporter shall report to the administrative office of the United States courts, the speaker of the senate and the speaker of the house of representatives:
1. The information required by subdivisions (a)(1)-(7) with respect to each application for an order or extension made during the preceding calendar year;
2. A general description of the interceptions made under the order or extension, including:
  1. The approximate nature and frequency of incriminating communications intercepted;
  2. The approximate nature and frequency of other communications intercepted;
  3. The approximate number of persons whose communications were intercepted; and
  4. The approximate nature, amount, and cost of the manpower and other resources used in the interceptions;
3. The number of arrests resulting from interceptions made under the order or extension, and the offenses for which arrests were made;
4. The number of trials resulting from the interceptions;
5. The number of motions to suppress made with respect to the interceptions, and the number granted or denied;
6. The number of convictions resulting from the interceptions and the offenses for which the convictions were obtained and the general assessment of the importance of the interceptions; and
7. The information required by subdivisions (b)(2)-(6) with respect to orders or extensions obtained in a preceding calendar year.
Whenever an order authorizing interception is entered pursuant to § 40-6-304(c), the order shall require that reports be made to the judge who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. Reports shall be made at ten-day intervals, with the first report required on the tenth day after the interception begins or is extended. However, in cases where orders for multiple telephones have been issued by a single judge and pertain to the same investigation, the issuing judge may direct that all progress reports be consolidated into a single report and filed at such times as directed by the judge.

Acts 1994, ch. 964, § 9; 2014, ch. 984, § 2.

NOTES TO DECISIONS

1. Motion to Suppress.

In a case in which two defendants appealed their convictions on various federal offenses for their part in a multi-defendant drug conspiracy in Tennessee, they unsuccessfully argued that the government violated the express terms of the state wiretap orders when they failed to present oral reports to the issuing state judge at the time that the written reports were submitted. They offered no factual or legal support for their argument that the appear and report language in the order required an oral presentation of the report. United States v. Smith, — F.3d —, 395 Fed. Appx. 223, 2010 FED App. 579N, 2010 U.S. App. LEXIS 18532 (6th Cir. Aug. 31, 2010).

40-6-309. Application of law.

Notwithstanding any other provision of law to the contrary, this part and §§ 39-13-601 — 39-13-603 shall govern the interception and use of wire, oral and electronic communications in this state.

Acts 1994, ch. 964, § 12.

40-6-310. Construction of ambiguous provisions.

Any ambiguity in this part or §§ 39-13-601 — 39-13-603 shall be resolved in favor of the aggrieved party and against the state.

Acts 1994, ch. 964, § 13.

40-6-311. Pen register or trap and trace order.

Any circuit or criminal court judge may issue a pen register or trap and trace order pursuant to the provisions and requirements of 18 U.S.C. § 3123 et seq.

Acts 1996, ch. 903, § 2.

Compiler's Notes. 18 U.S.C. § 3123, referred to in this section, concerns issuance of an order for a pen register or a trap and trace device.

Chapter 7
Arrest

Part 1
General Provisions

40-7-101. Persons by whom arrests made.

An arrest may be made either by:

An officer under a warrant;
An officer without a warrant; or
A private person.

Code 1858, § 5032; Shan., § 6992; Code 1932, § 11531; T.C.A. (orig. ed.), § 40-801.

Cross-References. Authority of a police officer to arrest without a warrant, § 40-7-103.

Child, taking into custody, § 37-1-113.

Coroner's inquest, arrest after, §§ 38-5-115, 38-5-116.

Exemptions from arrest, national guardsmen, § 58-1-226.

Parole violator, arrest of, § 40-28-121.

Refusal of official to perform duties, § 39-16-402.

Society for prevention of cruelty to animals, authority of agents to make arrests, § 39-14-210.

Warrant, arrest on, title 40, ch. 6, part 2.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 1.8, 18.153, 18.161.

Law Reviews.

At the Intersection of Sovereignty and Contract: Traffic Cameras and the Privatization of Law Enforcement Power (William D. Mercer), 43 U. Mem. L. Rev. 379 (2012).

The Right to a Preliminary Hearing and Effective Assistance of Counsel at a Preliminary Hearing in Tennessee, 43 Tenn. L. Rev. 635 (1976).

Attorney General Opinions. A law enforcement officer working off-duty retains full arrest powers, OAG 02-002 (1/2/02).

Security officers have the same power of arrest as that afforded to private citizens, OAG 03-018 (2/19/03).

Licensed security officers may make an arrest as private citizens as authorized under Tennessee law, OAG 03-148 (11/17/03); OAG 03-149 (11/17/03).

A search incident to an improper arrest may subject a private person, and possibly his or her employer, to liability, OAG 03-148 (11/17/03).

NOTES TO DECISIONS

1. Police Officer — Arrest Without Warrant.

A police officer cannot make an arrest, without a warrant, except for a felony, or for a violation of a city ordinance committed in his presence. Pesterfield v. Vickers, 43 Tenn. 205, 1866 Tenn. LEXIS 38 (1866); Hurd v. State, 119 Tenn. 583, 108 S.W. 1064, 1907 Tenn. LEXIS 24 (1907), questioned, State v. Ash, 12 S.W.3d 800, 1999 Tenn. Crim. App. LEXIS 764 (Tenn. Crim. App. 1999).

2. Duties in Making Arrest.

An officer must act prudently, reasonably and use ordinary care in making arrests including the ascertainment that the right person is being arrested. State ex rel. Anderson v. Evatt, 63 Tenn. App. 322, 471 S.W.2d 949, 1971 Tenn. App. LEXIS 223 (Tenn. Ct. App. 1971).

40-7-102. Offense in presence of magistrate.

When a public offense is committed in the presence of a magistrate, the magistrate may, by verbal or written order, command any person to arrest the offender, and then proceed as if the offender had been brought before the magistrate on a warrant of arrest.

Code 1858, § 5036; Shan., § 6996; Code 1932, § 11535; T.C.A. (orig. ed.), § 40-802.

Cross-References. Officials designated as magistrates, § 40-1-106.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 1.8, 18.153.

Tennessee Jurisprudence, 17 Tenn. Juris., Justices of Peace and General Sessions Courts, § 23.

Law Reviews.

The Tennessee Court System — Municipal Courts, 8 Mem. St. U.L. Rev. 431.

40-7-103. Grounds for arrest by officer without warrant.

An officer may, without a warrant, arrest a person:
1. For a public offense committed or a breach of the peace threatened in the officer's presence;
2. When the person has committed a felony, though not in the officer's presence;
3. When a felony has in fact been committed, and the officer has reasonable cause for believing the person arrested has committed the felony;
4. On a charge made, upon reasonable cause, of the commission of a felony by the person arrested;
5. Who is attempting to commit suicide;
6. At the scene of a traffic accident who is the driver of a vehicle involved in the accident when, based on personal investigation, the officer has probable cause to believe that the person has committed an offense under title 55, chapters 8 and 10. This subdivision (a)(6) shall not apply to traffic accidents in which no personal injury occurs or property damage is less than one thousand dollars ($1,000), unless the officer has probable cause to believe that the driver of the vehicle has committed an offense under § 55-10-401;
7. Pursuant to § 36-3-619;
8. Who is the driver of a vehicle involved in a traffic accident either at the scene of the accident or up to four (4) hours after the driver has been transported to a health care facility, if emergency medical treatment for the driver is required and the officer has probable cause to believe that the driver has violated § 55-10-401;
9. When an officer has probable cause to believe a person has committed the offense of stalking, as prohibited by § 39-17-315;
10. Who is the driver of a motor vehicle involved in a traffic accident, who leaves the scene of the accident, who is apprehended within four (4) hours of the accident, and the officer has probable cause to believe the driver has violated § 55-10-401; or
11. Pursuant to § 55-10-119.
If a law enforcement officer has probable cause to believe that a person has violated one (1) or more of the conditions of release imposed pursuant to § 40-11-150, and verifies that the alleged violator received notice of the conditions, the officer shall, without a warrant, arrest the alleged violator regardless of whether the violation was committed in or outside the presence of the officer.
Unless a law enforcement officer has probable cause to believe that an offense has been committed, no officer, except members of the Tennessee highway patrol acting pursuant to § 4-7-104, shall have the authority to stop a motor vehicle for the sole purpose of examining or checking the license of the driver of the vehicle.

Code 1858, § 5037; Shan., § 6997; Code 1932, § 11536; Acts 1957, ch. 82, § 1; 1981, ch. 401, § 1; T.C.A. (orig. ed.), § 40-803; Acts 1986, ch. 754, § 1; 1990, ch. 980, § 18; 1993, ch. 484, § 1; 1994, ch. 1002, § 1; 1995, ch. 507, § 7; 1999, ch. 138, § 4; 2005, ch. 296, § 1; 2005, ch. 482, § 2; 2012, ch. 737, § 2.

Compiler's Notes. Acts 2012, ch. 737, § 5 provided that the act, which added subdivision (a)(11), shall be known and may be cited as the “Ricky Otts Act.”

Acts 2012, ch. 737, § 6 provided that the act, which added subdivision (a)(11), shall apply to prohibited conduct occurring on or after July 1, 2012.

Cross-References. Arrest for felony committed in another state, § 40-9-104.

Citation in lieu of arrest, Tenn. R. Crim. P. 3.5, § 40-7-118.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 1.8, 18.154, 18.155, 18.156, 18.157, 18.182.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 3-12-6.

Tennessee Jurisprudence, 10 Tenn. Juris., Arrest, §§ 4, 5; 13 Tenn. Juris., False Imprisonment, § 4.

Law Reviews.

Criminal Procedure — State v. Williams: Pretextual Vehicle Stops and the Fourth Amendment, 23 Mem. St. U.L. Rev. 421 (1993).

Selected Tennessee Legislation of 1986, 54 Tenn. L. Rev. 457 (1987).

The Troubling Influence of Equality in Constitutional Criminal Procedure: From Brown to Miranda, Furman and Beyond, 54 Vand. L. Rev. 359 (2001).

Torts — Hurd v. Woolfork: The Public Duty Doctrine in Tennessee, 28 U. Mem. L. Rev. 1279 (1998).

Attorney General Opinions. Authority of law enforcement officers to make misdemeanor arrests, OAG 00-048 (3/16/00).

A law enforcement officer, having observed the commission of a felony, may choose not to arrest or charge the offending party, except when the officer has probable cause to believe that a suspect has violated an order of protection, OAG 01-119 (7/27/01).

Constitutionality of proposed amendment that would permit an officer to make arrest “for a misdemeanor, if the officer has probable cause and the person accused does not offer satisfactory evidence of identification,” OAG 03-052 (4/24/03).

Police officer who receives specific information about unlawful conduct from another officer can make a warrantless arrest and issue a citation to a misdemeanant even though the misdemeanor was not committed in the presence of the arresting officer, OAG 08-181 (12/1/08).

NOTES TO DECISIONS

1. In General.

This section is an embodiment of the common law. Galvin v. State, 46 Tenn. 283, 1869 Tenn. LEXIS 56 (1869); Tenpenny v. State, 151 Tenn. 669, 270 S.W. 989, 1924 Tenn. LEXIS 94 (1925), overruled in part, State v. Parker, 525 S.W.2d 128, 1975 Tenn. LEXIS 651 (Tenn. 1975).

The test for a lawful warrantless arrest is whether the facts and circumstances present are sufficient to enable the court to see that some offense has been committed that would have justified a legal arrest. State v. Duer, 616 S.W.2d 614, 1981 Tenn. Crim. App. LEXIS 336 (Tenn. Crim. App. 1981).

The limitation on warrantless arrests for misdemeanors in T.C.A § 40-7-103 is not constitutionally required. State v. Bryant, 678 S.W.2d 480, 1984 Tenn. Crim. App. LEXIS 2528 (Tenn. Crim. App. 1984).

2. Officer's Presence.

Where defendant was guilty of committing a misdemeanor of the nature of a public offense and a threatened breach of the peace in the presence of an officer at the time validly issued search warrants were served on him, no warrant was necessary for his arrest. Solomon v. State, 203 Tenn. 583, 315 S.W.2d 99, 1958 Tenn. LEXIS 335 (1958), superseded by statute as stated in, State v. Little, 560 S.W.2d 403, 1978 Tenn. LEXIS 568 (Tenn. 1978).

The use of the “police team” approach, which provides that an act taking place within the view of one officer is in legal effect within the presence and view of other cooperating officers, is a viable doctrine in Tennessee. State v. Ash, 12 S.W.3d 800, 1999 Tenn. Crim. App. LEXIS 764 (Tenn. Crim. App. 1999).

3. —Offense Committed.

Public drunkenness and driving while drunk are public offenses for which an officer may arrest without a warrant if committed in his presence, but such officer does not have the right to shoot the offender or to endanger his life by shooting into the automobile to stop it and effect the arrest. State ex rel. Harbin v. Dunn, 39 Tenn. App. 190, 282 S.W.2d 203, 1943 Tenn. App. LEXIS 157 (Tenn. Ct. App. 1943).

Officer had probable cause to arrest defendant for the felony offense of possessing with intent to deliver or sell heroin where at the moment that the officer put defendant in handcuffs, he knew the driver had stated that defendant put heroin in her pants, defendant was acting nervously, defendant's actions were inconsistent with his statement that he did not have identification, and defendant had a large amount of cash in his pocket. United States v. Jackson, — F. Supp. 2d —, 2014 U.S. Dist. LEXIS 165010 (E.D. Tenn. Nov. 24, 2014), aff'd, — F.3d — , 663 Fed. Appx. 426, 2016 FED App. 569N, 2016 U.S. App. LEXIS 18545 (6th Cir. Tenn. 2016).

4. — —Criminal Trespass.

The “police team” approach may be applied where arresting officers witness defendant's presence on the property, but learn of the fact that the defendant had been previously warned to stay off the property from a list generated by the police for officers patrolling the area. State v. Ash, 12 S.W.3d 800, 1999 Tenn. Crim. App. LEXIS 764 (Tenn. Crim. App. 1999).

Despite list indicating that defendant was served with a letter barring him from entering property, evidence did not show that defendant knew that he did not have the owner's effective consent to be on the property and, therefore, did not show that criminal trespass was being committed in the presence of police officers. State v. Ash, 12 S.W.3d 800, 1999 Tenn. Crim. App. LEXIS 764 (Tenn. Crim. App. 1999).

5. — —Public Intoxication.

One who so conducts himself in public as to justify the impression that he is drunk, whether he does so purposely or otherwise, subjects himself to lawful arrest without warrant, even though he is in fact sober. Goodwin v. State, 148 Tenn. 682, 257 S.W. 79, 1923 Tenn. LEXIS 55 (1924).

Defendant, a duly elected constable, did not have reasonable cause to believe plaintiff was publicly intoxicated where he observed plaintiff staggering, smelled of alcohol and knew plaintiff had been arrested before for public intoxication, when eight witnesses testified plaintiff was not intoxicated. Ford v. Wells, 347 F. Supp. 1026, 1972 U.S. Dist. LEXIS 13699 (E.D. Tenn. 1972).

6. — —Sale of Intoxicants.

Where officer was sold pint of unstamped whiskey it was proper for officer to arrest woman making sale and also her husband who was asleep in house at time. Atkins v. Harris, 202 Tenn. 489, 304 S.W.2d 650, 1957 Tenn. LEXIS 414 (1957).

7. — —Speeding.

Officer, determining speed of vehicle by radar, could arrest motorist for speeding. Hardaway v. State, 202 Tenn. 94, 302 S.W.2d 351, 1957 Tenn. LEXIS 366 (1957).

T.C.A. § 40-7-103 does not deprive a pursuing officer, who has grounds upon which to arrest a fleeing offender, of the assistance of a fellow officer when that assistance is requested in a reliable manner. The rule creates no right to escape. State v. Bryant, 678 S.W.2d 480, 1984 Tenn. Crim. App. LEXIS 2528 (Tenn. Crim. App. 1984).

8. — —Transportation of Intoxicants.

A sheriff and his deputy had the right, without a warrant, to halt one violating the law by transporting 60 gallons of whiskey over the public roads of the state, in the presence of the officers. Love v. Bass, 145 Tenn. 522, 238 S.W. 94, 1921 Tenn. LEXIS 92 (1922).

A person who was engaged in transporting liquor did not commit the offense in the presence of an officer, so as to authorize the officer to arrest him without warrant, where the liquor was concealed from the officer's sight prior to the arrest and the officer did not know that the law was being violated. Hughes v. State, 145 Tenn. 544, 238 S.W. 588, 1921 Tenn. LEXIS 94, 20 A.L.R. 639 (1922).

Where arresting officers received information of proposed shipment of whiskey and placed themselves in position to witness loading of truck and transporting of whiskey to point near state line, search of truck pursuant to arrest was not illegal although made without warrant. Evans v. Pearson, 193 Tenn. 528, 246 S.W.2d 964, 1952 Tenn. LEXIS 321 (1952).

Possibility that defendant, a known liquor law violator, might be carrying tax-unpaid whiskey, since there was a bulge in the loose jacket worn by the defendant, was not sufficient, and arrest of defendant without a warrant was invalid. United States v. Sipes, 132 F. Supp. 537, 1955 U.S. Dist. LEXIS 3059 (D. Tenn. 1955).

Officer who observed defendant speeding recklessly was justified in arresting defendant for felony of transporting more than one gallon of liquor, where liquor was plainly visible when automobile was stopped. Batchelor v. State, 213 Tenn. 649, 378 S.W.2d 751, 1964 Tenn. LEXIS 433 (1964).

9. — —Suspected Violation.

Where an officer sees the accused enter a house of questionable reputation, with a package partially concealed by a raincoat, and, on the approach of the officer, the accused jumps into an automobile and flees, and, on being overtaken, whiskey in broken jars is discovered in his possession, the officer is justified in arresting the accused, under this section, and the evidence thus obtained is admissible against the accused. Farmer v. State, 148 Tenn. 216, 254 S.W. 552, 1923 Tenn. LEXIS 9 (1923).

Where officers observed liquor bottle partly hidden under defendant's belt and searched him, discovering whiskey and vodka, and thereupon arrested him, search and arrest were part of the same transaction and search was proper as arrest was valid for a breach of the peace committed in the presence of the officers. Warden v. State, 214 Tenn. 314, 379 S.W.2d 788, 1964 Tenn. LEXIS 479 (1964).

10. —Threatened Breach of Peace.

If a private policeman, on reasonable grounds, believed that a person was about to commit a breach of peace by making an attack on a home which the policeman was hired to guard, he had the lawful right to arrest the person. Terry v. Burford, 131 Tenn. 451, 175 S.W. 538, 1914 Tenn. LEXIS 121, L.R.A. (n.s.) 1915F714 (1915).

The right of the sheriff to arrest, without warrant, for the threatened unlawful sale of intoxicating liquors, and to close the place of business, is not unlawful as an arbitrary invasion of property rights, which are not more sacred than the person which may be seized to prevent a breach of the peace. State ex rel. Thompson v. Reichman, 135 Tenn. 653, 188 S.W. 225, 1916 Tenn. LEXIS 46 (1916), rehearing denied, 135 Tenn. 685, 188 S.W. 597, 1916 Tenn. LEXIS 47 (1916).

There is a very clear distinction between the act of an officer entering a man's home to discover evidence as a means of penalizing him, or the act of an officer apprehending a citizen on the highway for the purpose of discovering evidence to penalize him, and the act of arresting one who is threatening a breach of the peace, or is at the time engaged in a violation of the law. Farmer v. State, 148 Tenn. 216, 254 S.W. 552, 1923 Tenn. LEXIS 9 (1923).

11. — —“Breach of Peace” Construed.

“Breach of the peace” is a generic term including all violations of public peace or order, and includes unlawful sale, actual or threatened, of intoxicating liquors. State ex rel. Thompson v. Reichman, 135 Tenn. 653, 188 S.W. 225, 1916 Tenn. LEXIS 46 (1916), rehearing denied, 135 Tenn. 685, 188 S.W. 597, 1916 Tenn. LEXIS 47 (1916); Gray v. State, 207 Tenn. 39, 336 S.W.2d 22, 1960 Tenn. LEXIS 405 (1960); Warden v. State, 214 Tenn. 314, 379 S.W.2d 788, 1964 Tenn. LEXIS 479 (1964).

It is a breach of the peace for one having liquors to prepare for the sale thereof, because that is a threat to violate the law against sales thereof. State ex rel. Thompson v. Reichman, 135 Tenn. 653, 188 S.W. 225, 1916 Tenn. LEXIS 46 (1916), rehearing denied, 135 Tenn. 685, 188 S.W. 597, 1916 Tenn. LEXIS 47 (1916).

Loud talking in the kitchen of one's home, heard by officers in passing, not a word of which they understood, was no commission or threatened commission of a breach of peace in their presence or hearing, there being no showing that the inmates were intoxicated or disorderly. Lucarini v. State, 159 Tenn. 373, 19 S.W.2d 239, 1928 Tenn. LEXIS 93 (1929).

12. Misdemeanor Not in Officer's Presence.

A city ordinance authorizing police officers to arrest persons for misdemeanors not committed in their presence was void as inconsistent with the general law of the land. Pesterfield v. Vickers, 43 Tenn. 205, 1866 Tenn. LEXIS 38 (1866).

Officer has no authority to arrest one for the misdemeanor of unlawfully carrying a pistol or for other misdemeanors, not committed in his presence, but the commission of which is communicated to him by others, unless he has a warrant of arrest. Pesterfield v. Vickers, 43 Tenn. 205, 1866 Tenn. LEXIS 38 (1866); Hurd v. State, 119 Tenn. 583, 108 S.W. 1064, 1907 Tenn. LEXIS 24 (1907), questioned, State v. Ash, 12 S.W.3d 800, 1999 Tenn. Crim. App. LEXIS 764 (Tenn. Crim. App. 1999).

An officer cannot arrest a person for a misdemeanor not committed in his presence without a proper warrant for such arrest. Shelton v. State, 3 Tenn. Crim. App. 310, 460 S.W.2d 869, 1970 Tenn. Crim. App. LEXIS 458 (Tenn. Crim. App. 1970); State v. Duer, 616 S.W.2d 614, 1981 Tenn. Crim. App. LEXIS 336 (Tenn. Crim. App. 1981).

13. Reasonable Cause.

An arrest by an officer without warrant is not justified by the fact that the officer had information leading him to believe that an offense was being committed. Hughes v. State, 145 Tenn. 544, 238 S.W. 588, 1921 Tenn. LEXIS 94, 20 A.L.R. 639 (1922).

Finding an unattended automobile parked in a dark alley, when it might have been left in the street under the protection of street lights, and discovery of several tin cans of one gallon capacity and a disarranged condition of the rear seat cushion upon throwing a flash light on the car were sufficient to create a reasonable belief that the automobile was being used for an unlawful purpose, most probably the transportation of whiskey. Smith v. State, 155 Tenn. 40, 290 S.W. 4, 1926 Tenn. LEXIS 17 (1927).

An officer may lawfully proceed to arrest without a warrant any person when the officer has, with reasonable cause, been led to believe that the person has committed, is committing, or is about to commit, a felony. Dittberner v. State, 155 Tenn. 102, 291 S.W. 839, 1926 Tenn. LEXIS 24 (1927); Davis v. State, 2 Tenn. Crim. App. 297, 453 S.W.2d 438, 1970 Tenn. Crim. App. LEXIS 480 (1970).

Where a policeman saw defendant take a fruit jar from an automobile and conceal it beneath his coat while carrying it into a building in the vicinity of which there had been numerous complaints with respect to the transportation of whiskey, he had probable cause for believing that a felony was being committed. Suggs v. State, 156 Tenn. 303, 300 S.W. 4, 1927 Tenn. LEXIS 118 (1927).

Where officers, while standing on the sidewalk, detected a very strong odor of mash and corn whiskey which seemed to come from a certain building, there was ground for reasonable belief that a felony was being committed. Massa v. State, 159 Tenn. 428, 19 S.W.2d 248, 1928 Tenn. LEXIS 101 (1929).

Where defendant was chased and arrested without a warrant by police officers on suspicion that defendant was bringing whiskey into town, it was error for trial court to deny crossexamination of officer by defendant's counsel as to where officer had secured information that defendant intended to bring whiskey into town. Smith v. State, 169 Tenn. 633, 90 S.W.2d 523, 1935 Tenn. LEXIS 90 (1936).

Where informant informed sheriff that defendants had gone after liquor and the sheriff immediately went in pursuit of defendants, and where sheriff testified that the informant was a rival bootlegger of defendants and further that he had known informant for a long time and that informant had always told him the truth, the sheriff had “reasonable cause” to believe that defendants were committing a felony and was justified in making an arrest for felonious transportation of intoxicating liquors without a warrant. Vaughn v. State, 178 Tenn. 384, 158 S.W.2d 715, 1941 Tenn. LEXIS 69 (1942).

An arrest by officers without a warrant was valid where the person arrested was in the company of a known car thief, and was driving a car which was thought to be stolen and where on arrest he denied knowing the car thief and denied that he was associated with the stolen car. Brubaker v. United States, 183 F.2d 894, 1950 U.S. App. LEXIS 3024 (6th Cir. Tenn. 1950).

Arrest of truck driver without a warrant was justified where officers had information that defendant was going to drive a truck to Illinois to pick up cargo of whiskey, that truck by observation of officers had a false bottom, that truck approached Tennessee by a circuitous route, and that it proceeded up a slight incline in low gear on entrance into Tennessee. Barnett v. State, 191 Tenn. 420, 234 S.W.2d 833, 1950 Tenn. LEXIS 453 (1950).

Where highway patrolmen proceeded to house to investigate complaint and upon arrival within proximity of house observed man with sack in his hand and such individual dropped the sack and ran with a jug and officers observed a number of people coming and going and one person in front of house was observed taking a drink from a bottle or jug, action of officers who searched house and found illegal whiskey, homebrew and wine and made arrests was justified. Gray v. State, 207 Tenn. 39, 336 S.W.2d 22, 1960 Tenn. LEXIS 405 (1960).

Information that automobile “had whiskey in it” did not authorize warrantless arrest of driver for felony of transporting more than one gallon of liquor. Batchelor v. State, 213 Tenn. 649, 378 S.W.2d 751, 1964 Tenn. LEXIS 433 (1964).

Where arresting officer had information regarding possible thefts from telephone booths in the area, that one of the persons arrested was suspected, and had license number of such person's automobile, arrest without warrant was lawful. Fox v. State, 214 Tenn. 694, 383 S.W.2d 25, 1964 Tenn. LEXIS 523 (1964), cert. denied, Thomerson v. Tennessee, 380 U.S. 933, 85 S. Ct. 938, 13 L. Ed. 2d 820, 1965 U.S. LEXIS 1692 (1965).

Arrest of defendants and search of their persons and automobile was proper where police officers received description corresponding to defendants of persons who allegedly robbed telephone booth a short distance away and were observed by officers near another telephone booth under suspicious circumstances. Graham v. State, 218 Tenn. 453, 404 S.W.2d 475, 1966 Tenn. LEXIS 643 (1966).

Arrest and search was legal where officers observed dice game in process through windows of premises after being on scene because of complaints of disorderly conduct and the facts were such as to indicate that one of the participants was engaged in the felony of professional gambling. Alley v. State, 218 Tenn. 497, 404 S.W.2d 493, 1966 Tenn. LEXIS 583 (1966).

An officer may arrest without a warrant where a person has committed a felony and there is reasonable cause for believing the person arrested to have committed it. State ex rel. Carlson v. State, 219 Tenn. 80, 407 S.W.2d 165, 1966 Tenn. LEXIS 625 (1966); State ex rel. Smith v. Henderson, 1 Tenn. Crim. App. 593, 447 S.W.2d 880, 1969 Tenn. Crim. App. LEXIS 342 (1969).

Where police officers stopped vehicle on suspicion of having an illegal city inspection sticker, and then recognized driver as having been involved before in illicit liquor and then smelling moonshine whiskey, such facts represented reasonable grounds to suspect that car was being used to transport illegal whiskey and to search the car trunk and to arrest driver for violation of state and federal liquor laws. United States v. Thompson, 409 F.2d 113, 1969 U.S. App. LEXIS 12969 (6th Cir. Tenn. 1969).

Where reliable informant gave police officers information to effect that old model green automobile of specified make would pass specified intersection between 7:00 and 8:00 a.m., driven by man with physical defect carrying unstamped liquor, and officers saw man whom they knew had such a physical defect pass intersection at 8:45 a.m. driving green automobile with white top of the specified make, probable cause existed for arrest of defendant for felony even though description of automobile was general and automobile arrived 45 minutes later than specified. State v. Tolden, 224 Tenn. 119, 451 S.W.2d 432, 1969 Tenn. LEXIS 476 (1969).

Where shortly after robbery was committed defendants entered service station to buy gasoline and officers who heard description of robbers and automobile on radio observed that the passengers and the automobile fitted such description and further observed paper sack inside automobile filled with money, officers were warranted in making arrest without warrant on probable cause and in searching automobile. Raynor v. State, 1 Tenn. Crim. App. 556, 447 S.W.2d 391, 1969 Tenn. Crim. App. LEXIS 340 (Tenn. Crim. App. 1969).

Where informant upon whom officer had previously relied told officer that specifically described van would be traveling in a certain direction and that the three occupants would be transporting heroin for sale officer had probable cause to search such vehicle without a warrant. Peters v. State, 521 S.W.2d 233, 1974 Tenn. Crim. App. LEXIS 252 (Tenn. Crim. App. 1974).

Police officers who knew that a felony had been committed and that defendant fitted the detailed description of the person who committed that felony had reasonable cause to arrest defendant, and things found on his person at that time were not products of an illegal search. State v. Jefferson, 529 S.W.2d 674, 1975 Tenn. LEXIS 582 (Tenn. 1975), rehearing denied, , 529 S.W.2d 674, 1975 Tenn. LEXIS 583 (Tenn. 1975), overruled in part, State v. Mitchell, 593 S.W.2d 280, 1980 Tenn. LEXIS 395 (Tenn. 1980).

Where initial apprehension of defendant was with his own consent and for his own protection, and where subsequent information gathered by police led them to believe defendant was the prime suspect, police had reasonable cause to place defendant in “arrest status” and statement rendered by defendant thereafter was product of legal arrest. Scharff v. State, 551 S.W.2d 671, 1977 Tenn. LEXIS 525 (Tenn. 1977).

Officers who had positive information that a felony had been committed and a description of the suspect and his vehicle had reasonable cause to arrest the occupants and search a vehicle matching those descriptions. Schultz v. State, 584 S.W.2d 223, 1979 Tenn. Crim. App. LEXIS 257 (Tenn. Crim. App. 1979).

In action for false arrest and imprisonment, a charge that the only question for the jury's determination was whether the officer had reasonable cause to believe that a felony may have been committed or probably had been committed and that plaintiff “may” have committed such felony was improper since “may” connotes a possibility as opposed to a probability that plaintiff committed the felony. Woods v. Harrell, 596 S.W.2d 92, 1979 Tenn. App. LEXIS 393 (Tenn. Ct. App. 1979).

Where photographs of defendant's car were shown to some of the witnesses of a murder who identified them as pictures of the car they saw leaving the scene of the crime and the defendant's own physical appearance agreed with the description of the murderer given by the witnesses, under these facts the officers, acting as reasonably prudent persons, had reasonable cause for believing defendant committed the crime of murder and to arrest him. State v. Donald, 614 S.W.2d 66, 1980 Tenn. Crim. App. LEXIS 351 (Tenn. Crim. App. 1980).

Police had probable cause to arrest when, acting on information that defendants had killed the deceased and left his body in a truck, they found the body, immediately went to defendants' trailer, discovered that they were not there, and went to a motel where they arrested the defendants. State v. Wright, 618 S.W.2d 310, 1981 Tenn. Crim. App. LEXIS 346 (Tenn. Crim. App. 1981).

Where the officers were present in a helicopter at 1,800 feet above the terrain, within the navigable air space of the United States, a place they had a perfect legal right to be and from their vantage point they observed unharvested marijuana in the field, and as they approached, they saw defendants tending their crop, having observed a felony being committed in their presence, the officers clearly were justified in descending to the ground to arrest the defendants. State v. Layne, 623 S.W.2d 629, 1981 Tenn. Crim. App. LEXIS 381 (Tenn. Crim. App. 1981), overruled, State v. Holt, 691 S.W.2d 520, 1984 Tenn. LEXIS 865 (Tenn. 1984).

Facts and circumstances were sufficient to show probable cause. Wadley v. State, 634 S.W.2d 658, 1982 Tenn. Crim. App. LEXIS 435 (Tenn. Crim. App. 1982); State v. Melson, 638 S.W.2d 342, 1982 Tenn. LEXIS 431 (Tenn. 1982), cert. denied, Melson v. Tennessee, 459 U.S. 1137, 103 S. Ct. 770, 74 L. Ed. 2d 983 (1983); State v. Evetts, 670 S.W.2d 640, 1984 Tenn. Crim. App. LEXIS 2333 (Tenn. Crim. App. 1984); State v. Kyger, 787 S.W.2d 13, 1989 Tenn. Crim. App. LEXIS 690 (Tenn. Crim. App. 1989), rehearing denied, — S.W.2d —, 1989 Tenn. Crim. App. LEXIS 757 (Tenn. Crim. App. Oct. 24, 1989).

Merely stopping a vehicle on reasonable suspicion to investigate a crime does not necessarily constitute an arrest. State v. Blankenship, 757 S.W.2d 354, 1988 Tenn. Crim. App. LEXIS 304 (Tenn. Crim. App. 1988).

Although officer testified he was motivated to pull behind the vehicle because of a prior radio report of a misdemeanor, if his actions were reasonable on other grounds, even if the reasons were not articulated by the officer, the stop, and arrest resulting therefrom, would be legal. State v. Smith, 787 S.W.2d 34, 1989 Tenn. Crim. App. LEXIS 883 (Tenn. Crim. App. 1989), appeal denied, 1990 Tenn. LEXIS 143 (Tenn. Apr. 2, 1990).

Police officers had the required reasonable suspicion, supported by specific and articulable facts, that the defendant was in possession of an illegal substance; therefore, the stop and arrest of the defendant was warranted. State v. Little, 854 S.W.2d 643, 1992 Tenn. Crim. App. LEXIS 404 (Tenn. Crim. App. 1992).

It was unreasonable for an officer, not a member of the highway patrol, to make an investigative stop of a vehicle belonging to the officer's brother, even though he did not recognize the driver. State v. Norword, 938 S.W.2d 23, 1996 Tenn. Crim. App. LEXIS 511 (Tenn. Crim. App. 1996).

Police did not have probable cause for defendant's warrantless arrest where officers had been told by defendant's wife that she suspected him of forgery and that there had been “inappropriate conduct” between the defendant and his daughter but the wife did not give the officers any details concerning either charge. State v. Johnson, 980 S.W.2d 414, 1998 Tenn. Crim. App. LEXIS 872 (Tenn. Crim. App. 1998).

Police officers had reasonable cause to believe that defendant had murdered the victim because the officers knew that defendant was the only employee who did not return from lunch when defendant's manager was shot and killed, defendant did not respond to colleagues' attempts to make contact with defendant following the shooting, defendant was facing discipline at work, and surveillance footage showed defendant inside the building where defendant worked and defendant's vehicle driving away from the building shortly after the 911 call was placed. State v. Taylor, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 147 (Tenn. Crim. App. Feb. 26, 2020).

14. —Construed.

It is impossible to define “reasonable cause” in terms to fit all cases arising and each case must stand on its own facts. State v. Tolden, 224 Tenn. 119, 451 S.W.2d 432, 1969 Tenn. LEXIS 476 (1969).

Although information received from anonymous informants is not alone sufficient to constitute probable cause for an arrest, it may be considered along with other facts and circumstances known to the officer and may be added to the mix which will later be viewed for a determination of the existence of probable cause. Greer v. State, 1 Tenn. Crim. App. 407, 443 S.W.2d 681, 1969 Tenn. Crim. App. LEXIS 331 (Tenn. Crim. App. 1969).

In determining probable cause for making an arrest, all information in the officer's presence, fair inferences therefrom, and observations including past experience are generally pertinent. Greer v. State, 1 Tenn. Crim. App. 407, 443 S.W.2d 681, 1969 Tenn. Crim. App. LEXIS 331 (Tenn. Crim. App. 1969).

Reasonable cause or probable cause is such as would justify a reasonable man in believing that the person arrested was guilty of a felony. Campbell v. State, 1 Tenn. Crim. App. 586, 447 S.W.2d 877, 1969 Tenn. Crim. App. LEXIS 341 (Tenn. Crim. App. 1969); Davis v. State, 2 Tenn. Crim. App. 297, 453 S.W.2d 438, 1970 Tenn. Crim. App. LEXIS 480 (1970).

The test to determine probable cause to make an arrest should be equally as stringent as the test to determine whether probable cause exists to issue a search warrant. State v. Tays, 836 S.W.2d 596, 1992 Tenn. Crim. App. LEXIS 342 (Tenn. Crim. App. 1992).

Probable cause exists if the facts and circumstances within the officer's knowledge at the time of the arrest, and of which the officer had reasonably trustworthy information, were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. State v. Henning, 975 S.W.2d 290, 1998 Tenn. LEXIS 370 (Tenn. 1998).

15. —Reasonable Cause and Improper Cause Both Present.

When an officer makes an arrest which is supported by probable cause, then neither his subjective reliance on an offense for which probable cause does not exist nor his statement of the wrong offense to the person arrested will transform the arrest into an illegal arrest. State v. Duer, 616 S.W.2d 614, 1981 Tenn. Crim. App. LEXIS 336 (Tenn. Crim. App. 1981).

16. Exigent Circumstances.

Tennessee law authorizes the warrantless arrest of a suspect when a felony has in fact been committed and the officer has reasonable cause for believing the person arrested to have committed it; there is no recognized requirement that the probable cause necessary for a valid warrantless arrest be accompanied by “exigent circumstances.” Howard v. State, 599 S.W.2d 280, 1980 Tenn. Crim. App. LEXIS 318 (Tenn. Crim. App. 1980).

17. Charge Made.

By the common law, a peace officer may make an arrest on a charge of felony, upon a reasonable cause of suspicion, without a warrant, although it should afterwards turn out that no felony had, in fact, been committed, and this principle of the common law is distinctly incorporated in this section. Lewis v. State, 40 Tenn. 127, 1859 Tenn. LEXIS 38 (1859).

An officer may justify an arrest made by him for a felony not committed in his presence, by showing that a charge had been made of the commission of a felony, and that he had reasonable cause to believe that such felony had been committed, and that the person arrested had committed it. McCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79, 1906 Tenn. LEXIS 21 (1906).

An officer is not required to wait for assurance of evidence which would convict, but whenever circumstances fairly point to a felony it is his duty to act and act promptly. Vaughn v. State, 178 Tenn. 384, 158 S.W.2d 715, 1941 Tenn. LEXIS 69 (1942).

The information must be such as would justify a reasonable man in believing that the particular person arrested was guilty of a felony. Thompson v. State, 185 Tenn. 73, 203 S.W.2d 361, 1947 Tenn. LEXIS 301 (1947).

Trial court was justified in not requiring officer to reveal name of informer, where the officer outside the presence of the jury testified that prior information revealed by informer had been accurate, and that the information leading to the particular arrest without a warrant was correct as to amount of liquor, route, and description of automobile. Simmons v. State, 198 Tenn. 587, 281 S.W.2d 487, 1955 Tenn. LEXIS 410 (1955), overruled in part, Kersey v. State, 525 S.W.2d 139, 1975 Tenn. LEXIS 654 (Tenn. 1975), overruled in part, Waters v. Coker, — S.W.3d —, 2006 Tenn. App. LEXIS 443 (Tenn. Ct. App. June 29, 2006).

There was probable cause for the arrest of one who was pointed out to the officer by one who charged that he had passed a counterfeit federal reserve note to him a few minutes before. United States v. Masini, 358 F.2d 100, 1966 U.S. App. LEXIS 6764 (6th Cir. Tenn. 1966).

Information received by the officer that the defendants were suspicious persons, and that there was a possibility that they might have committed a felony, and there had been no information received that a felony had been committed, was not sufficient to sustain the legality of an arrest without a warrant. Harris v. State, 219 Tenn. 459, 410 S.W.2d 876, 1967 Tenn. LEXIS 365 (1967).

Information from petitioner's victim and his codefendant that a felony had been committed and that petitioner committed it was sufficient to allow officers to arrest on probable cause without an arrest warrant. Gentry v. Neil, 310 F. Supp. 791, 1970 U.S. Dist. LEXIS 12186 (E.D. Tenn. 1970).

Where prisoner under investigation for robberies told officers that defendants were involved in such robberies and other robberies, arrests of defendants without warrants were lawful. Garner v. State, 4 Tenn. Crim. App. 189, 469 S.W.2d 542, 1971 Tenn. Crim. App. LEXIS 494 (Tenn. Crim. App. 1971).

Officers who were stopped by a man who told them he had been robbed and threatened and pointed out the men who did it had adequate reason for arresting the men, and evidence obtained from a search of their truck was admissible against them. Cole v. State, 4 Tenn. Crim. App. 645, 475 S.W.2d 196, 1971 Tenn. Crim. App. LEXIS 436 (Tenn. Crim. App. 1971).

The Aguilar-Spinelli (Aguilar v. Texas, 12 L. Ed. 2d 723, 84 S. Ct. 1509, 378 U.S. 108, 1964 U.S. LEXIS 994 (1974); Spinelli v. United States, 21 L. Ed. 2d 637, 89 S. Ct. 584, 393 U.S. 410, 1969 U.S. LEXIS 2701 (1969)) two-pronged test requires that an officer seeking a search warrant based upon information provided by an informant swear out an affidavit stating to the magistrate that the informant is not only credible but has a basis of knowledge of the underlying circumstances. The test to determine probable cause to make an arrest should be equally as stringent as the test to determine whether probable cause exists to issue a search warrant. State v. Tays, 836 S.W.2d 596, 1992 Tenn. Crim. App. LEXIS 342 (Tenn. Crim. App. 1992).

If the arresting officers rely in part on information from an informant in the criminal milieu, they must be able to demonstrate that the informant: (1) Has a basis of knowledge; and (2) Is credible. On the other hand, if the information contributing to the existence of probable cause has been gathered from an ordinary citizen, no showing of the informant's basis of knowledge and veracity is required. State v. Lewis, 36 S.W.3d 88, 2000 Tenn. Crim. App. LEXIS 253 (Tenn. Crim. App. 2000).

18. Search Incident to Arrest.

State officer cannot search vehicles on probable cause for belief that they bear contraband liquor. Tenpenny v. State, 151 Tenn. 669, 270 S.W. 989, 1924 Tenn. LEXIS 94 (1925), overruled in part, State v. Parker, 525 S.W.2d 128, 1975 Tenn. LEXIS 651 (Tenn. 1975).

Arrest of defendant and search of defendant's car for whiskey without a warrant was illegal though officers had information that he was transporting whiskey where they had no knowledge as to amount of whiskey being transported. Epps v. State, 185 Tenn. 226, 205 S.W.2d 4, 1947 Tenn. LEXIS 324 (1947).

Where defendants were arrested by officers during flight after commission of grand larceny and one of defendants attempted to dispose of claim check for automobile in parking lot, search of the automobile without search warrant was not an unreasonable search. Liakas v. State, 199 Tenn. 298, 286 S.W.2d 856, 1956 Tenn. LEXIS 326 (1956).

Where sheriff arrived on scene while one of defendants in assault and battery prosecution was still making an assault on the victim within 200 yards of building where assault commenced and condition of victim was such as to indicate that weapons or blunt instruments had been used on the victim's head, sheriff was justified in searching the building without a warrant after having arrested such defendant. Pierce v. State, 204 Tenn. 14, 315 S.W.2d 271, 1958 Tenn. LEXIS 240 (1958).

One who is lawfully arrested may be searched on his person or the premises where he is arrested and may be searched without a warrant provided such search is incidental to such arrest. White v. State, 210 Tenn. 78, 356 S.W.2d 411, 1962 Tenn. LEXIS 413 (1962); Warden v. State, 214 Tenn. 314, 379 S.W.2d 788, 1964 Tenn. LEXIS 479 (1964); Patten v. State, 221 Tenn. 337, 426 S.W.2d 503, 1968 Tenn. LEXIS 521 (1968); Greer v. State, 1 Tenn. Crim. App. 407, 443 S.W.2d 681, 1969 Tenn. Crim. App. LEXIS 331 (Tenn. Crim. App. 1969); Nix v. State, 1 Tenn. Crim. App. 517, 446 S.W.2d 266, 1969 Tenn. Crim. App. LEXIS 338 (Tenn. Crim. App. 1969); Raynor v. State, 1 Tenn. Crim. App. 556, 447 S.W.2d 391, 1969 Tenn. Crim. App. LEXIS 340 (Tenn. Crim. App. 1969); Campbell v. State, 1 Tenn. Crim. App. 586, 447 S.W.2d 877, 1969 Tenn. Crim. App. LEXIS 341 (Tenn. Crim. App. 1969).

Where officers properly made arrest of persons suspected of burglary of telephone booths without warrant, upon reasonable cause of belief of the commission of a felony by persons arrested, but search of automobile was not made until two hours later, such search was not incident to the arrest. Fox v. State, 214 Tenn. 694, 383 S.W.2d 25, 1964 Tenn. LEXIS 523 (1964), cert. denied, Thomerson v. Tennessee, 380 U.S. 933, 85 S. Ct. 938, 13 L. Ed. 2d 820, 1965 U.S. LEXIS 1692 (1965).

An officer making a lawful arrest has authority to search the person of the prisoner and things under his immediate control, even against his will, and such authority to search is not dependent on whether the arrest is for a felony or misdemeanor. Liming v. State, 220 Tenn. 371, 417 S.W.2d 769, 1967 Tenn. LEXIS 465 (1967).

When a person under arrest voluntarily consents to a search, he cannot be heard to complain. Houser v. State, 4 Tenn. Crim. App. 422, 472 S.W.2d 747, 1971 Tenn. Crim. App. LEXIS 408 (Tenn. Crim. App. 1971).

19. —Admissibility of Evidence.

Where officers watching defendant's house for suspected violation of liquor laws arrested a party leaving house who told officers he had just purchased liquor from defendant, and officers entered house without a warrant and seized unstamped bottle of whiskey, the bottle was admissible in evidence, since officers entered house for purpose of arresting defendant on charge of violating liquor law and seizure of bottle was merely incidental to a valid arrest. United States v. Burchfield, 87 F. Supp. 805, 1949 U.S. Dist. LEXIS 2126 (D. Tenn. 1949).

A person lawfully arrested may be searched at common law to obtain evidence of the offense for which he was arrested. State ex rel. Carlson v. State, 219 Tenn. 80, 407 S.W.2d 165, 1966 Tenn. LEXIS 625 (1966).

When the search of an automobile was not incident to a lawful arrest under this section, the evidence obtained by the search was not admissible. Harris v. State, 219 Tenn. 459, 410 S.W.2d 876, 1967 Tenn. LEXIS 365 (1967).

Where an officer makes an arrest without a warrant on the basis of alleged reliable information possessed by him that a felony had been committed, it is the duty of the trial judge upon objection to the evidence gained by a search made in connection with such an arrest to conduct an inquiry for the purpose of satisfying himself as a judge that a felony had been committed and that the information came from a reliable source. Wallis v. State, 220 Tenn. 400, 417 S.W.2d 781, 1967 Tenn. LEXIS 467 (1967).

Where officers pursued defendant and his companion from place of robbery to motel room and had reasonable cause to make arrest without warrant, evidence obtained as result of search of motel room as incident to arrest was admissible in prosecution for armed robbery. Patten v. State, 221 Tenn. 337, 426 S.W.2d 503, 1968 Tenn. LEXIS 521 (1968).

A pistol which officers saw in defendant's car after they arrested him illegally and without a warrant was not admissible in evidence. St. John v. State, 491 S.W.2d 629, 1972 Tenn. Crim. App. LEXIS 272 (Tenn. Crim. App. 1972).

Trial court erred in suppressing the evidence from defendant's arrest because the evidence was sufficient to establish probable cause that defendant committed driving under the influence of an intoxicant, by physical control, in the presence of a state trooper as defendant had driven a truck to a paper mill, was located next to the truck, had the ability—but for intoxication—to direct the use or non-use of the truck, and smelled of alcohol and gave indications of intoxication in field sobriety tests. State v. Brewer, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 239 (Tenn. Crim. App. Apr. 15, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 412 (Tenn. Aug. 16, 2019).

20. Effect of Conviction.

Defendant's arrest without a warrant on a charge of rape did not violate any constitutional right of defendant entitling him to relief under a writ of habeas corpus, where defendant was subsequently convicted on a valid indictment returned by the grand jury. In re Johnson, 277 F. Supp. 267, 1967 U.S. Dist. LEXIS 7463 (E.D. Tenn. 1967).

21. Validity of Warrant.

Where arrest would have been proper without a warrant, it is immaterial whether or not the warrant was good or bad. Harris v. State, 206 Tenn. 276, 332 S.W.2d 675, 1960 Tenn. LEXIS 514 (1960).

22. Liability of Officers.

The officer acts at his peril, and, if he has no right to make the arrest without a warrant, or if his warrant is not valid, he is a trespasser. McQueen v. Heck, 41 Tenn. 212, 1860 Tenn. LEXIS 49 (1860); Galvin v. State, 46 Tenn. 283, 1869 Tenn. LEXIS 56 (1869); Poteete v. State, 68 Tenn. 261, 1878 Tenn. LEXIS 4 (1878), superseded by statute as stated in, State v. Bertram, — S.W.2d —, 1993 Tenn. Crim. App. LEXIS 15 (Tenn. Crim. App. Jan. 14, 1993); Shelton v. State, 3 Tenn. Crim. App. 310, 460 S.W.2d 869, 1970 Tenn. Crim. App. LEXIS 458 (Tenn. Crim. App. 1970).

Constable was liable to plaintiff for money damages where constable arrested plaintiff with neither probable cause nor a warrant in violation of plaintiff's civil rights. Ford v. Wells, 347 F. Supp. 1026, 1972 U.S. Dist. LEXIS 13699 (E.D. Tenn. 1972).

23. Force in Effecting Arrest.

Shooting into automobile by officers to effect arrest of misdemeanants constitutes a felony under § 39-2-115 (repealed). State ex rel. Harbin v. Dunn, 39 Tenn. App. 190, 282 S.W.2d 203, 1943 Tenn. App. LEXIS 157 (Tenn. Ct. App. 1943).

It is both a civil wrong and a crime for a peace officer to use firearms so as to imperil life or limb of a nonresisting, fleeing misdemeanant in an attempt to arrest him or prevent his escape. State ex rel. Harbin v. Dunn, 39 Tenn. App. 190, 282 S.W.2d 203, 1943 Tenn. App. LEXIS 157 (Tenn. Ct. App. 1943).

24. Force to Resist Unlawful Arrest.

Every person has a right to resist an unlawful arrest and in preventing such illegal restraint of his liberty he may use such force as may be necessary, but force cannot be resorted to or means of resistance adopted which is disproportionate to the effort to take him into custody. Shelton v. State, 3 Tenn. Crim. App. 310, 460 S.W.2d 869, 1970 Tenn. Crim. App. LEXIS 458 (Tenn. Crim. App. 1970).

25. Duty to Make Arrest.

Statutes pertaining to drunk driving and public intoxication, do not, in conjunction with statutes authorizing warrantless arrests, give rise to a “special-duty” of care where a plaintiff alleges that a police officer failed to arrest or detain an alleged drunk driver. Ezell v. Cockrell, 902 S.W.2d 394, 1995 Tenn. LEXIS 315 (Tenn. 1995).

26. Probable Cause.

Defendant's conviction for first-degree felony murder committed during the perpetration of robbery was proper because, although the trial court should have suppressed defendant's confession to an investigator and police officers did not have probable cause to arrest defendant for killing the victim under T.C.A. § 40-7-103(a)(3) and Tenn. R. Crim. P. 4(b), the trial court's error was harmless since it was cumulative to an inmate's testimony and did not change the outcome of the trial. Additionally, the evidence showed that defendant voluntarily waived his Miranda rights. State v. Echols, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 442 (Tenn. Crim. App. June 14, 2011), aff'd, 382 S.W.3d 266, 2012 Tenn. LEXIS 738 (Tenn. Oct. 10, 2012).

Law enforcement officers had probable cause to arrest petitioner for the shooting because the information obtained from petitioner's grand-uncle, identifying petitioner as “Taurus,” and the victim's statement about the shooting sufficiently corroborated one co-defendant's statements and a second co-defendant's second statement of the shooting. Stout v. State, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 657 (Tenn. Crim. App. Aug. 23, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 36 (Tenn. Jan. 8, 2013), cert. denied, Stout v. Tennessee, 186 L. Ed. 2d 226, 133 S. Ct. 2776, 569 U.S. 1022, 2013 U.S. LEXIS 4183 (U.S. 2013).

Citizen informant's description of defendant and of his statement that he shot someone at the parking lot where the victim was killed was sufficient to provide probable cause to arrest him; therefore, the post-arrest statements he made after waiving his Miranda rights were properly admitted at trial. State v. Echols, 382 S.W.3d 266, 2012 Tenn. LEXIS 738 (Tenn. Oct. 10, 2012).

Evidence presented at trial establishes that the officers had probable cause when they arrested defendant because before defendant was arrested, one of the victim's identified him to the police as the perpetrator and, as a victim in the case, the victim was a citizen informant whose statement was presumed to be reliable. State v. Dotson, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 584 (Tenn. Crim. App. June 25, 2013), aff'd, 450 S.W.3d 1, 2014 Tenn. LEXIS 694 (Tenn. Sept. 30, 2014).

Even considering a motorist's successful performance on a battery of field sobriety tests, a police officer had probable cause to arrest the motorist, without a warrant, for driving under the influence of an intoxicant because the motorist was driving on the wrong side of a divided highway late at night, smelled of alcohol, and admitted to having imbibed more than he should have. State v. Bell, 429 S.W.3d 524, 2014 Tenn. LEXIS 121 (Tenn. Feb. 20, 2014).

Police officers had probable cause to arrest defendant because the officers had sufficient independent information to corroborate codefendant's statement implicating codefendant and defendant in the shooting of the victim. The testimony at the suppression hearing of the case coordinator for the police department confirmed that the police knew all the facts, except the identity of the accomplice, when codefendant gave a statement and codefendant's identification of defendant as the accomplice was suitably credible to endow the police with probable cause to arrest defendant. State v. Bishop, 431 S.W.3d 22, 2014 Tenn. LEXIS 189 (Tenn. Mar. 6, 2014), cert. denied, Bishop v. Tennessee, 190 L. Ed. 2d 92, 135 S. Ct. 120, — U.S. —, 2014 U.S. LEXIS 6666 (U.S. 2014).

Defendant's warrantless arrest was supported by probable cause because at the time of defendant's arrest, the police knew that a citizen informant, who was also an eyewitness to and victim of the crime, as well as a nephew of defendant, had identified defendant as the perpetrator of the homicides and assaults; the murders and assaults were accomplished with weapons found inside the home; and defendant, a close relative of three of the six murder victims and three of the assault victims, had spent time in the home and was familiar with it. State v. Dotson, 450 S.W.3d 1, 2014 Tenn. LEXIS 694 (Tenn. Sept. 30, 2014), cert. denied, Dotson v. Tennessee, 191 L. Ed. 2d 565, 135 S. Ct. 1535, — U.S. —, 2015 U.S. LEXIS 1830 (U.S. 2015).

Law enforcement officers had probable cause to arrest defendant where, at the time of the arrest, the facts and circumstances within the knowledge of the officers, and of which they had reasonably trustworthy information, were sufficient to warrant a prudent person in believing that defendant was involved in the carjacking, kidnapping, rape, and murder of the victims. State v. Thomas, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 82 (Tenn. Crim. App. Feb. 5, 2015), rehearing denied, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 152 (Tenn. Crim. App. Feb. 25, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 675 (Tenn. Aug. 12, 2015), cert. denied, Thomas v. Tennessee, 194 L. Ed. 2d 559, 136 S. Ct. 1458, — U.S. —, 2016 U.S. LEXIS 1999 (U.S. 2016).

Record supported the determination that the sergeant had probable cause to arrest defendant without a warrant and that delays in the interview process were insufficient to overcome the defendant's will; there was no evidence that the defendant's statement was the fruit of an illegal arrest or was not voluntarily and knowingly made, defendant's claim of a violation of his constitutional rights was rejected, and the trial court properly denied defendant's motion to suppress his statement to police. State v. Thomas, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 605 (Tenn. Crim. App. Aug. 16, 2016).

Because probable cause existed for defendant's arrest, the trial court's grant of the motion to suppress was reversed; the confidential informant (CI) had a basis of knowledge, and the independent observations of the investigator, coupled with the information supplied by the CI, gave probable cause for the arrest. State v. Smith, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 190 (Tenn. Crim. App. Mar. 14, 2017).

Officer had probable cause to arrest defendant without a warrant, and the stolen televisions were lawfully recovered in a search incident to arrest, because the officer was aware of the burglary of the victim's vehicle in which the victim saw defendant retrieve his stolen property from nearby bushes, the victim saw defendant's vehicle and noted its license plate, prior to pulling defendant over the officer confirmed that the vehicle defendant was driving was the same as the one observed by the victim, and the officer saw defendant covering up what appeared to be televisions in the backseat of the vehicle. State v. Rembert, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 283 (Tenn. Crim. App. Apr. 16, 2018).

40-7-104. Time of arrest by officer.

Arrests by officers for public offenses may be made on any day and at any time.

Code 1858, § 5033; Shan., § 6993; Code 1932, § 11532; T.C.A. (orig. ed.), § 40-804.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 18.170.

40-7-105. Assistance to officer acting on warrant.

Every person shall aid an officer in the execution of a warrant if the officer requires the person's aid and is present and acting in its execution.

Code 1858, § 5035; Shan., § 6995; Code 1932, § 11534; T.C.A. (orig ed.), § 40-805.

40-7-106. Notice of authority and grounds for arrest — Telephone call.

When arresting a person, the officer shall inform the person of the officer's authority and the cause of the arrest, and exhibit the warrant if the officer has one, except when the person is in the actual commission of the offense or is pursued immediately after an escape.
No person under arrest by any officer or private citizen shall be named in any book, ledger or any other record until after the person has successfully completed a telephone call to an attorney, relative, minister or any other person that the person shall choose, without undue delay. One (1) hour shall constitute a reasonable time without undue delay. However, if the arrested person does not choose to make a telephone call, then the person shall be booked or docketed immediately.

Code 1858, § 5038; Shan., § 6998; Code 1932, § 11537; Acts 1965, ch. 298, § 1; T.C.A. (orig. ed.), § 40-806.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 3.11, 18.169.

Tennessee Jurisprudence, 4 Tenn. Juris., Automobiles, § 33.

Law Reviews.

Criminal Law in Tennessee in 1968 — A Critical Survey (Joseph G. Cook), 36 Tenn. L. Rev. 221.

Attorney General Opinions. Statute requiring police officers to provide notice of their authority or grounds for arrest does not apply to security officers; however, a security officer must provide notice of the grounds of an arrest, OAG 03-018 (2/19/03).

NOTES TO DECISIONS

1. Notice Unnecessary.

When a party is taken in the commission of an offense, or upon fresh pursuit, or when the officer is violently assaulted upon coming up with the accused, the officer is not required to make known his authority or the cause of the arrest, because the arrested party must be supposed to know the cause of his arrest. Lewis v. State, 40 Tenn. 127, 1859 Tenn. LEXIS 38 (1859); Galvin v. State, 46 Tenn. 283, 1869 Tenn. LEXIS 56 (1869).

Notice not required for arrest of one transporting liquor by automobile who refused to stop on order, so that there was no opportunity to give notice. Love v. Bass, 145 Tenn. 522, 238 S.W. 94, 1921 Tenn. LEXIS 92 (1922).

Arrests of defendants on probable cause by police officer shortly after they had attempted to cash stolen money order at grocery store were not rendered invalid under this section requiring officer to inform person arrested of the cause of the arrest where officer told defendants they were being arrested for investigation and the time of the arrest was closely proximate to that of offense. United States v. Clemmons, 390 F.2d 407, 1968 U.S. App. LEXIS 8042 (6th Cir. Tenn. 1968).

Strict adherence to this section is not required where the defendant knows or has notice of the cause of his arrest. State v. Hill, 638 S.W.2d 827, 1982 Tenn. Crim. App. LEXIS 451 (Tenn. Crim. App. 1982).

2. Meaning of “Escape.”

The principle of the common law is not changed by the force of the word “escape” used in this section, for it is not here used in its technical, but in its popular sense, which is “to flee from, to avoid, to get out of the way,” and may apply to a person who has not been previously arrested. Lewis v. State, 40 Tenn. 127, 1859 Tenn. LEXIS 38 (1859).

3. Arrest by Bail or Agents.

For the arrest of principal by bail or his agents to be legal, the bond or a certified copy thereof must be exhibited to the principal at the time of the arrest, and, if the arrest is made by agents of the bail, the bond or copy thereof must contain a proper endorsement by the bail to them authorizing them to make the arrest. Poteete v. Olive, 527 S.W.2d 84, 1975 Tenn. LEXIS 636 (Tenn. 1975).

4. Money Damages.

The court found it difficult to accept the idea that the mere violation of the guidelines imposed by this section would amount to a cognizable claim for money damages. Campbell v. Buckles, 448 F. Supp. 288, 1977 U.S. Dist. LEXIS 15623 (E.D. Tenn. 1976).

5. Grounds.

6. —Misstatements.

An arrest is not rendered unlawful by the fact that an officer who has authority to make an arrest for a particular offense erroneously states he is making an arrest for some other offense, or even for a cause which is not in fact an offense, or states the offense inaccurately. State v. Robinson, 622 S.W.2d 62, 1981 Tenn. Crim. App. LEXIS 371 (Tenn. Crim. App. 1980), dismissed, LeMay v. Tennessee, 454 U.S. 1096, 102 S. Ct. 667, 70 L. Ed. 2d 636, 1981 U.S. LEXIS 2831 (1981).

7. Right to Telephone Call.

T.C.A. § 40-7-106 does not create a due process right since the right to make a phone call immediately upon arrest is not a recognized property right, nor is it a traditional liberty interest recognized by federal law. Harrill v. Blount County, 55 F.3d 1123, 1995 FED App. 160P, 1995 U.S. App. LEXIS 13233 (6th Cir. Tenn. 1995).

T.C.A. § 40-7-106 does not set forth a federal right actionable under 42 U.S.C. § 1983; thus, a violation of the section by police officers could not be used to destroy their claim of qualified immunity in an action partially based on the officers' refusal to allow plaintiff an immediate telephone call after arrest. Harrill v. Blount County, 55 F.3d 1123, 1995 FED App. 160P, 1995 U.S. App. LEXIS 13233 (6th Cir. Tenn. 1995).

Defendant's written statement was not rendered involuntary by actions of investigating officers because while investigating officers did not comply with requirements of T.C.A. § 40-7-106, the statutory violation did not warrant suppression of the statement when defendant's request to make a phone call came after he had already made his verbal confession to the investigating officers, and their denial of his request until after he provided a statement in writing, given the totality of the circumstances, did not render that written statement the product of police coercion. State v. Downey, 259 S.W.3d 723, 2008 Tenn. LEXIS 536 (Tenn. Aug. 15, 2008).

40-7-107. Authority of officer to break in.

To make an arrest, either with or without a warrant, the officer may break open any outer or inner door or window of a dwelling house if, after notice of the officer's office, authority and purpose, the officer is refused admittance.

Code 1858, § 5039; Shan., § 6999; Code 1932, § 11538; T.C.A. (orig. ed.), § 40-807.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 1.23, 18.201, 18.203.

Law Reviews.

The Tennessee Bail System — What's the Best Cure? (Michael D. Brent), 8 Mem. St. U.L. Rev. 121.

NOTES TO DECISIONS

1. Constitutionality.

There is no merit in the alleged invalidity of this statute as violating U.S. Const., amend. 4, prohibiting unreasonable searches and seizures. Smith v. Tate, 143 Tenn. 268, 227 S.W. 1026, 1920 Tenn. LEXIS 17 (1921).

In attempting to execute a valid arrest warrant, defendant police officers and those assisting them were constitutionally authorized to enter any place they had reason to believe one or both of the persons named in the warrant might be found, and, if necessary, to break any outer or inner door of any building, if after notice of their offices, authority, and purpose, they had been refused admittance. McCloud v. Tester, 391 F. Supp. 1271, 1975 U.S. Dist. LEXIS 14552 (E.D. Tenn. 1975).

2. Search of House for Felon.

A sheriff, in seeking to arrest one who has committed a felony, though he has no warrant for the arrest, has the right, under this statute, after giving notice of his authority and purpose, to enter a house and search the same, breaking it open, if necessary, where he believes, on reasonable grounds, that the felon is therein. Smith v. Tate, 143 Tenn. 268, 227 S.W. 1026, 1920 Tenn. LEXIS 17 (1921).

3. Money Damages.

40-7-108. Resistance to officer.

A law enforcement officer, after giving notice of the officer's identity as an officer, may use or threaten to use force that is reasonably necessary to accomplish the arrest of an individual suspected of a criminal act who resists or flees from the arrest.
Notwithstanding subsection (a), the officer may use deadly force to effect an arrest only if all other reasonable means of apprehension have been exhausted or are unavailable, and where feasible, the officer has given notice of the officer's identity as an officer and given a warning that deadly force may be used unless resistance or flight ceases, and:
1. The officer has probable cause to believe the individual to be arrested has committed a felony involving the infliction or threatened infliction of serious bodily injury; or
2. The officer has probable cause to believe that the individual to be arrested poses a threat of serious bodily injury, either to the officer or to others unless immediately apprehended.
All law enforcement officers, both state and local, shall be bound by this section and shall receive instruction regarding implementation of this section in law enforcement training programs.

Code 1858, § 5040; Shan., § 7000; Code 1932, § 11539; T.C.A. (orig. ed.), § 40-808; Acts 1985, ch. 359, § 1; 1990, ch. 980, § 19.

Compiler's Notes. Some versions of this section have been held unconstitutional in certain circumstances in Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1984) and other cases. See Notes to Decisions, Decisions Under Prior Law, 1. Constitutionality.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 1.23, 18.168, 28.121.

Law Reviews.

1985 Tennessee Survey: Selected Developments in Tennessee Law, 53 Tenn. L. Rev. 351 (1986).

In Pursuit of the Elusive Fourth Amendment: The Police Chase Cases (Ronald J. Bacigal), 58 Tenn. L. Rev. 73 (1990).

My Fellow Americans, We Are Going to Kill You: The Legality of Targeting and Killing U.S. Citizens Abroad (Mike Dreyfuss), 65 Vand. L. Rev. 249 (2012).

Attorney General Opinions. Extent of municipal police authority beyond municipal limits. OAG 10-48, 2010 Tenn. AG LEXIS 48 (4/12/10).

NOTES TO DECISIONS

1. Constitutionality.

Deadly force may not be used to prevent the escape of an apparently unarmed suspected felon unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1, 1985 U.S. LEXIS 195 (1985), overruled, Smith v. City of Killeen, — F. Supp. 2d —, 2018 U.S. Dist. LEXIS 37748 (W.D. Tex. Mar. 8, 2018).

United States supreme court decision holding fleeing felon statutes unconstitutional not to be retroactively applied. Carter v. Chattanooga, 850 F.2d 1119, 1988 U.S. App. LEXIS 8862 (6th Cir. Tenn. 1988), cert. denied, 488 U.S. 1010, 109 S. Ct. 795, 102 L. Ed. 2d 786, 1989 U.S. LEXIS 78 (1989).

2. Deadly Force.

Where an automobile driver had committed the felony of assault with intent to kill, by attempting to run down the sheriff when the latter sought to make a lawful arrest, the sheriff was justified in killing such driver, if necessary to prevent his escape. Love v. Bass, 145 Tenn. 522, 238 S.W. 94, 1921 Tenn. LEXIS 92 (1922).

An officer cannot be justified in killing a felon, either to capture him or to prevent his escape, if with diligence and caution he might otherwise be taken or held. Love v. Bass, 145 Tenn. 522, 238 S.W. 94, 1921 Tenn. LEXIS 92 (1922).

The trial court was not guilty of error in concluding that the defendant-policemen were justified in the use of deadly force to apprehend the plaintiff who continued flight from the scene of a burglary after the officers identified themselves and ordered him to halt. Beech v. Melancon, 465 F.2d 425, 1972 U.S. App. LEXIS 8153 (6th Cir. Tenn. 1972), cert. denied, 409 U.S. 1114, 93 S. Ct. 927, 34 L. Ed. 2d 696, 34 L. Ed. 696, 1973 U.S. LEXIS 3854 (1973).

Where deceased was seen prowling in sporting goods store at night, fled when surprised by police and ignored commands to halt, the jury could properly find that the officers' use of deadly force was reasonable, especially as guns and ammunition were found near deceased's body. Wiley v. Memphis Police Dep't, 548 F.2d 1247, 1977 U.S. App. LEXIS 10104 (6th Cir. Tenn. 1977), cert. denied, 434 U.S. 822, 98 S. Ct. 65, 54 L. Ed. 2d 78, 1977 U.S. LEXIS 2819 (1977).

Defendant municipal police department's decision to authorize use of deadly force to apprehend a non-dangerous fleeing burglary suspect was a deliberate choice from among various alternatives under Pembaur and constituted official policy under the Monell line of cases. Garner v. Memphis Police Dep't, 8 F.3d 358, 1993 U.S. App. LEXIS 27296 (6th Cir. Tenn. 1993), cert. denied, 510 U.S. 1177, 114 S. Ct. 1219, 127 L. Ed. 2d 565, 1994 U.S. LEXIS 2074 (1994).

3. Excessive Force.

Where defendant, a duly elected constable, knocked plaintiff down three times with a blackjack and dragged him with a “dog-choker” chain, the court found that the officer used more force than was necessary to effect the arrest. Ford v. Wells, 347 F. Supp. 1026, 1972 U.S. Dist. LEXIS 13699 (E.D. Tenn. 1972).

Where police officers shot and killed driver of stolen police car after he attempted to run police officer down, it was held that there was no exercise of excessive force and that the decedent was not deprived of his civil rights without due process of law under U.S. Const., amend. 14. Smith v. Jones, 379 F. Supp. 201, 1973 U.S. Dist. LEXIS 11631 (M.D. Tenn. 1973), aff'd without opinion, 497 F.2d 924 (6th Cir. 1974).

Deputy sheriff, who initially stopped a citizen for traffic violations and later found him to be a military deserter, was not justified in shooting the fleeing citizen as there were other means available to prevent the escape and the deputy had at no time given the citizen notice of his intention to arrest him for desertion. Fults v. Pearsall, 408 F. Supp. 1164, 1975 U.S. Dist. LEXIS 13568 (E.D. Tenn. 1975).

4. Arrest for Misdemeanor.

This section did not authorize the use of firearms to prevent the escape of a person sought to be arrested for a misdemeanor under the game and fish laws. Johnson v. State, 173 Tenn. 134, 114 S.W.2d 819, 1937 Tenn. LEXIS 18 (1938).

5. Question for Jury.

Whether the escape of an automobile driver, who had committed a felony in the sheriff's presence and whose way was almost completely blocked by the sheriff's automobile, could have been prevented without killing the driver, is a question for the jury under the evidence. Love v. Bass, 145 Tenn. 522, 238 S.W. 94, 1921 Tenn. LEXIS 92 (1922).

The reasonableness of force used under this statute is a jury question. Wiley v. Memphis Police Dep't, 548 F.2d 1247, 1977 U.S. App. LEXIS 10104 (6th Cir. Tenn. 1977), cert. denied, 434 U.S. 822, 98 S. Ct. 65, 54 L. Ed. 2d 78, 1977 U.S. LEXIS 2819 (1977).

In an action arising from a deputy sheriff's fatal wounding of a mentally disturbed person, issue as to whether deputy's use of deadly force was objectively reasonable under the fourth amendment precluded summary judgment. Thompson v. Williamson County, 965 F. Supp. 1026, 1997 U.S. Dist. LEXIS 7491 (M.D. Tenn. 1997), aff'd, 219 F.3d 555, 2000 FED App. 233P, 2000 U.S. App. LEXIS 16679 (6th Cir. Tenn. 2000).

6. Probable Cause.

Before taking the drastic measure of using deadly force as a last resort against a fleeing suspect, officers should have probable cause to believe not simply that the suspect has committed some felony; they should have probable cause also to believe that the suspect poses a threat to the safety of the officers or a danger to the community if left at large. The officers may be justified in using deadly force if the suspect has committed a violent crime or if they have probable cause to believe that he is armed or that he will endanger the physical safety of others if not captured. Garner v. Memphis Police Dep't, 710 F.2d 240, 1983 U.S. App. LEXIS 26683 (6th Cir. Tenn. 1983), aff'd, Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1, 1985 U.S. LEXIS 195 (1985).

Decisions Under Prior Law

1. Constitutionality.

The use of force in the arrest of a fleeing felon does not constitute “punishment” nor is the (former) statute vague in its terms so as to violate due process requirements nor is its distinction between misdemeanants and felons violative of the equal protection clause. Cunningham v. Ellington, 323 F. Supp. 1072, 1971 U.S. Dist. LEXIS 14335 (W.D. Tenn. 1971).

This section merely embodies the universally recognized common law and is a reasonable measure for the protection of police while performing their duty of apprehending fleeing felons; it does not violate U.S. Const., amend. 4-6, 8, 13 or 14. Wiley v. Memphis Police Dep't, 548 F.2d 1247, 1977 U.S. App. LEXIS 10104 (6th Cir. Tenn. 1977), cert. denied, 434 U.S. 822, 98 S. Ct. 65, 54 L. Ed. 2d 78, 1977 U.S. LEXIS 2819 (1977).

This section does not violate the equal protection clause of U.S. Const., amend. 14, since no racial animus or bias has been shown to animate the section's policy; nor is it unconstitutional solely because it has a racially disproportionate impact. Wiley v. Memphis Police Dep't, 548 F.2d 1247, 1977 U.S. App. LEXIS 10104 (6th Cir. Tenn. 1977), cert. denied, 434 U.S. 822, 98 S. Ct. 65, 54 L. Ed. 2d 78, 1977 U.S. LEXIS 2819 (1977).

This section authorizing the killing of an unarmed, nonviolent fleeing felon by police, in order to prevent escape, constitutes an unreasonable seizure of the person under the U.S. Const., amend. 4. Garner v. Memphis Police Dep't, 710 F.2d 240, 1983 U.S. App. LEXIS 26683 (6th Cir. Tenn. 1983), aff'd, Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1, 1985 U.S. LEXIS 195 (1985).

This section is invalid because it does not put sufficient limits on the use of deadly force; it is too disproportionate, and it does not make distinctions based on gravity and need nor on the magnitude of the offense. Garner v. Memphis Police Dep't, 710 F.2d 240, 1983 U.S. App. LEXIS 26683 (6th Cir. Tenn. 1983), aff'd, Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1, 1985 U.S. LEXIS 195 (1985).

While certainly there are state interests in law enforcement served by this section which allows police to shoot all fleeing felons, those interests are compelling only when the fleeing felon poses a danger to the safety of others; those interests are not sufficiently compelling to justify the use of deadly force to protect only property rights. Garner v. Memphis Police Dep't, 710 F.2d 240, 1983 U.S. App. LEXIS 26683 (6th Cir. Tenn. 1983), aff'd, Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1, 1985 U.S. LEXIS 195 (1985); Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1, 1985 U.S. LEXIS 195 (1985), overruled, Smith v. City of Killeen, — F. Supp. 2d —, 2018 U.S. Dist. LEXIS 37748 (W.D. Tex. Mar. 8, 2018).

This section is unconstitutional insofar as it authorizes the use of deadly force against apparently unarmed fleeing suspected felons; it is not, however, unconstitutional on its face. Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1, 1985 U.S. LEXIS 195 (1985), overruled, Smith v. City of Killeen, — F. Supp. 2d —, 2018 U.S. Dist. LEXIS 37748 (W.D. Tex. Mar. 8, 2018).

40-7-109. Arrest by private person — Grounds.

A private person may arrest another:
1. For a public offense committed in the arresting person's presence;
2. When the person arrested has committed a felony, although not in the arresting person's presence; or
3. When a felony has been committed, and the arresting person has reasonable cause to believe that the person arrested committed the felony.
A private person who makes an arrest of another pursuant to §§ 40-7-109 — 40-7-115 shall receive no arrest fee or compensation for the arrest.

Code 1858, § 5042; Shan., § 7002; Code 1932, § 11541; Acts 1965, ch. 279, § 1; T.C.A. (orig. ed.), § 40-816.

Cross-References. Extension of police authority beyond corporate limits, § 6-54-301.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 18.162.

Law Reviews.

At the Intersection of Sovereignty and Contract: Traffic Cameras and the Privatization of Law Enforcement Power (William D. Mercer), 43 U. Mem. L. Rev. 379 (2012).

Torts (John W. Wade), 6 Vand. L. Rev. 990.

A security guard may enter a room to prevent and detect the use of illegal drugs, OAG 03-148 (11/17/03).

Effect of Acts 2014, ch. 531 on arrests by private citizens, security officers; warrant requirements where affiant not a law enforcement officer. OAG 14-93, 2014 Tenn. AG LEXIS 96 (10/24/14).

NOTES TO DECISIONS

1. Common Law Superseded.

The general assembly intended to cover the whole subject of arrests without warrants by private persons, and the common law on that subject is not in force in this state. McCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79, 1906 Tenn. LEXIS 21 (1906).

2. Limitation to Crimes in State.

This section applies only to crimes committed in this state, and a citizen of this state cannot be arrested by citizens of another state, without warrant, for an offense committed in another state. Tarver v. State, 90 Tenn. 485, 16 S.W. 1041, 1891 Tenn. LEXIS 31 (1891), superseded by statute as stated in, State v. Maupin, — S.W.2d —, 1991 Tenn. Crim. App. LEXIS 818 (Tenn. Crim. App. Oct. 7, 1991).

3. Offense Committed in Presence.

The transportation of whiskey over the public roads of this state was a public offense, so that the person guilty thereof could be arrested without a warrant by the sheriff, or by a private person, in whose presence the offense was committed. Love v. Bass, 145 Tenn. 522, 238 S.W. 94, 1921 Tenn. LEXIS 92 (1922).

4. Offense Not Committed in Presence.

A private person making an arrest for an offense not committed in his presence must, in order to justify his act, show that a felony had been committed, and that he had reasonable cause to believe that the person arrested committed it. McCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79, 1906 Tenn. LEXIS 21 (1906).

This section authorizes arrest when a felony has been committed and there is reasonable cause to believe the person arrested committed it. Reed v. Hutton, 1 Tenn. App. 36, — S.W. —, 1925 Tenn. App. LEXIS 7 (Tenn. Ct. App. 1925); Krueger v. Miller, 489 F. Supp. 321, 1977 U.S. Dist. LEXIS 13982 (E.D. Tenn. 1977).

Under the federal constitution, fourth amendment, a person's suspicion that another person might be about to commit a felony was not enough reasonable cause for his seizing her. Krueger v. Miller, 489 F. Supp. 321, 1977 U.S. Dist. LEXIS 13982 (E.D. Tenn. 1977).

5. —Reasonable Cause.

Reasonable grounds will justify the arrest by a private person, whether the facts, when developed, would be sufficient or not. Wilson v. State, 79 Tenn. 310, 1883 Tenn. LEXIS 66 (1883).

6. —When No Offense Committed.

Probable cause to believe that the offense was committed will not justify an arrest by a private person when, in fact, no offense was committed. Martin v. Castner-Knott Dry Goods Co., 27 Tenn. App. 421, 181 S.W.2d 638, 1944 Tenn. App. LEXIS 89 (Tenn. Ct. App. 1944).

7. Police Officer Outside Jurisdiction.

Where city policeman pursued defendant beyond the city limits in an attempted arrest for an offense committed within his sight, the arrest of the defendant by the policeman for a later offense committed within his sight was valid as an arrest by a private person under this section. Francis v. State, 498 S.W.2d 107, 1973 Tenn. Crim. App. LEXIS 263 (Tenn. Crim. App. 1973).

Local law enforcement officials have the right to make arrests as private citizens beyond the one-mile limitation of § 6-54-301 which provides in part that police authority of incorporated towns and cities extends one mile from the corporate limits. State v. Johnson, 661 S.W.2d 854, 1983 Tenn. LEXIS 791 (Tenn. 1983); State v. Flynn, 675 S.W.2d 494, 1984 Tenn. Crim. App. LEXIS 2784 (Tenn. Crim. App. 1984).

Defendant's arrest effected by officers acting outside their geographical jurisdiction was valid under T.C.A. § 40-7-109 and the Tennessee Supreme Court's decision in State v. Johnson, 661 S.W.2d 854, 1983 Tenn. LEXIS 791 (Tenn. 1983), as the officers knew a felony had been committed and had reasonable cause to believe defendant had committed it. United States v. Layne, 6 F.3d 396, 1993 U.S. App. LEXIS 25689 (6th Cir. Tenn. 1993), cert. denied, 511 U.S. 1006, 114 S. Ct. 1374, 128 L. Ed. 2d 51, 1994 U.S. LEXIS 2534 (1994).

8. Construction under Federal Civil Rights Law.

An arrest under this section is not an act “under color of law” within the meaning of 42 U.S.C. § 1983, authorizing a civil action for any person deprived of constitutional rights “under color of any statute, ordinance, regulation, custom, or usage of any State or Territory.” Bryant v. Donnell, 239 F. Supp. 681, 1965 U.S. Dist. LEXIS 7091 (W.D. Tenn. 1965).

40-7-110. Arrest by private person — Time.

A private person may make an arrest for a felony at any time.

Code 1858, § 5034; Shan., § 6994; Code 1932, § 11533; T.C.A. (orig. ed.), § 40-817.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 18.162.

40-7-111. Arrest by private person — Notice of grounds.

A private person making an arrest shall, at the time of the arrest, inform the person arrested of the cause of the arrest, except when the person is in the actual commission of the offense, or when arrested on pursuit.

Code 1858, § 5043; Shan., § 7003; Code 1932, § 11542; T.C.A. (orig. ed.), § 40-818.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 18.162.

NOTES TO DECISIONS

1. Arrest on Pursuit.

When the arrest is made on pursuit, and the facts show that the fleeing person was fully advised of the cause for which he was arrested, the officer or private citizen attempting to make the arrest need not give notice of the cause of the arrest. Wilson v. State, 79 Tenn. 310, 1883 Tenn. LEXIS 66 (1883); Love v. Bass, 145 Tenn. 522, 238 S.W. 94, 1921 Tenn. LEXIS 92 (1922).

2. Arrest for Escape.

The provisions of §§ 40-7-109 — 40-7-112 do not authorize any private person to make an arrest for an escape, except in those instances in which the escape itself is by law a felony. McCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79, 1906 Tenn. LEXIS 21 (1906).

3. Failure to Give Notice.

40-7-112. Arrest by private person — Notice of intention to make arrest — Use of force to enter dwelling house.

If the person to be arrested has committed a felony, and a private person, after notice of the person's intention to make the arrest, is refused admittance, the arresting person may break open an outer or inner door or window of a dwelling house to make the arrest.

Code 1858, § 5044; Shan., § 7004; Code 1932, § 11543; T.C.A. (orig. ed.), § 40-819.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 18.162.

NOTES TO DECISIONS

1. Limitation of Section to Felon's House.

A private person seeking to make an arrest for a felony may, after notice of his intention and refusal of admittance, break open an outer or inner door or window of the dwelling house of the person sought to be arrested, but not that of a stranger. McCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79, 1906 Tenn. LEXIS 21 (1906).

40-7-113. Disposition of person arrested by private person.

A private person who has arrested another for a public offense shall, without unnecessary delay, take the arrested person before a magistrate or deliver the arrested person to an officer.
An officer may take before a magistrate, without a warrant, any person who, being engaged in the commission of a public offense, is arrested by a bystander and delivered to the officer, and anyone arrested by a private person as provided in §§ 40-7-109 — 40-7-112, and delivered to the officer.

Code 1858, §§ 5041, 5045; Shan., §§ 7001, 7005; Code 1932, §§ 11540, 11544; T.C.A. (orig. ed.), §§ 40-820, 40-821.

Cross-References. Examination by magistrate, title 40, ch. 10.

Officials designated as magistrates, § 40-1-106.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 18.162.

Tennessee Jurisprudence, 13 Tenn. Juris., False Imprisonment, § 2.

Law Reviews.

At the Intersection of Sovereignty and Contract: Traffic Cameras and the Privatization of Law Enforcement Power (William D. Mercer), 43 U. Mem. L. Rev. 379 (2012).

The Right to a Preliminary Hearing and Effective Assistance of Counsel at a Preliminary Hearing in Tennessee, 43 Tenn. L. Rev. 635 (1976).

Attorney General Opinions. A private person/security guard may transport an arrested individual before the magistrate if a law enforcement official declines to do so, OAG 03-018 (2/19/03).

A security guard who arrests an individual may transport that person in a personal or company vehicle, OAG 03-018 (2/19/03).

A private citizen or security officer could be liable for any injuries incurred by an arrested person during transport, OAG 03-018 (2/19/03).

A law enforcement official has the option to refuse to take a person arrested by a private person/security officer before a magistrate, OAG 03-018 (2/19/03).

Security guards issuing criminal summons or citations, OAG 07-002 (1/4/07).

NOTES TO DECISIONS

1. Arrest by Officer.

This section is inapplicable to an officer making an arrest. Wynn v. State, 181 Tenn. 325, 181 S.W.2d 332, 1944 Tenn. LEXIS 395 (1944); East v. State, 197 Tenn. 644, 277 S.W.2d 361, 1955 Tenn. LEXIS 330 (1955).

2. Tortious Conduct.

The grant of authority under T.C.A. § 40-7-113 may make certain conduct lawful that would otherwise be a tort; however, it does not make all conduct, no matter how unreasonable, lawful. Alexander v. Beale St. Blues Co., 108 F. Supp. 2d 934, 1999 U.S. Dist. LEXIS 22251 (W.D. Tenn. 1999).

Although officers may have taken custody of arrestee pursuant to T.C.A. § 40-7-113, this grant of authority did not absolve them of their responsibility not to commit a tort on the citizen in their custody. Alexander v. Beale St. Blues Co., 108 F. Supp. 2d 934, 1999 U.S. Dist. LEXIS 22251 (W.D. Tenn. 1999).

40-7-114. Pursuit after escape.

If a person arrested escapes or is rescued, the person from whose custody the arrested person escaped or was rescued may immediately pursue and retake the arrested person at any time and in any place within the state.

Code 1858, § 5046; Shan., § 7006; Code 1932, § 11545; T.C.A. (orig. ed.), § 40-822.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 18.163.

NOTES TO DECISIONS

1. Limited Statutory Authority for Arrest for Escape.

Except where the escape itself is a felony, and the further exception of immediate pursuit for recapture, there is no authority conferred by our statutes upon a private person, or an officer without a warrant, to make an arrest for an escape. McCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79, 1906 Tenn. LEXIS 21 (1906).

2. Necessity of Immediate Pursuit.

A private person may immediately pursue and recapture one charged with crime where he had been lawfully arrested by him and, an officer may make such immediate pursuit and recapture, without a warrant, where a person charged with crime has escaped, and whether from jail or the personal custody of the officer. McCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79, 1906 Tenn. LEXIS 21 (1906).

Neither a private person, nor an officer without a warrant, may lawfully arrest a person who has escaped from jail or from custody, when the pursuit is not immediate or fresh. McCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79, 1906 Tenn. LEXIS 21 (1906); State ex rel. Estill v. Endsley, 122 Tenn. 647, 126 S.W. 103, 1909 Tenn. LEXIS 37, 135 Am. St. Rep. 886 (1910).

3. Private Citizens — Pursuit in Other Counties.

It is not within the contemplation of our statutes that private citizens of one county should take it upon themselves to go into other counties, without a warrant, in search of criminals, except in cases of fresh pursuit of a fleeing felon endeavoring to avoid immediate capture, in an original arrest or on immediate pursuit after arrest and escape. McCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79, 1906 Tenn. LEXIS 21 (1906).

40-7-115. Breaking in to retake escaped prisoner.

To retake the party escaping or rescued, the person pursuing may, after notice of that person's intention and refusal of admittance, break open any outer or inner door or window of a dwelling house.

Code 1858, § 5047; Shan., § 7007; Code 1932, § 11546; T.C.A. (orig. ed.), § 40-823.

NOTES TO DECISIONS

1. Application of Section to Any Dwelling.

After arrest of a person for a felony, a private person may, upon an attempted escape from his custody and upon immediate and fresh pursuit, after notice of his intention and refusal of admittance, break open the outer or inner door or window of any dwelling house in which the fleeing felon has sought refuge. McCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79, 1906 Tenn. LEXIS 21 (1906).

2. Private Citizens — Attempting Arrest in Another County.

A sheriff and his assistants acting as private citizens had no right to break open the inner or outer door of the dwelling house of a stranger, where they were outside county of their jurisdiction, had no warrant, were not in hot pursuit and defendant had not escaped from them. McCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79, 1906 Tenn. LEXIS 21 (1906).

40-7-116. Theft — Detention of suspect by merchant or peace officer.

A merchant, a merchant's employee, or agent or a peace officer who has probable cause to believe that a person has committed or is attempting to commit the offense of theft, as defined in § 39-14-103, may detain that person on or off the premises of the mercantile establishment if the detention is done for any or all of the following purposes:
1. To question the person, investigate the surrounding circumstances, obtain a statement, or any combination thereof;
2. To request or verify identification, or both;
3. To inform a peace officer of the detention of that person, or surrender that person to the custody of a peace officer, or both;
4. To inform a peace officer, the parent or parents, guardian or other private person interested in the welfare of a minor of the detention and to surrender the minor to the custody of that person; or
5. To institute criminal proceedings against the person.
Probable cause to suspect that a person has committed or is attempting to commit the offense of theft may be based on, but not limited to:
1. Personal observation, including observation via closed circuit television or other visual device;
2. Report of personal observation from another merchant;
3. Activation of an electronic or other type of mechanical device designed to detect theft; or
4. Personal observation of dressing rooms, including observation via closed circuit television, two-way mirrors, or other visual devices, shall be limited to observation by a person of the same sex as the person being observed. No observation shall be lawful unless notices are posted in the dressing rooms that monitoring may occur.
A merchant, a merchant's employee or agent, or a peace officer who detains, questions or causes the arrest of any person suspected of theft shall not be criminally or civilly liable for any legal action relating to the detention, questioning or arrest if the merchant, merchant's employee or agent, or peace officer:
1. Has reasonable grounds to suspect that the person has committed or is attempting to commit theft;
2. Acts in a reasonable manner under the circumstances; and
3. Detains the suspected person for a reasonable period of time.
The merchant may use a reasonable amount of force necessary to protect the merchant, to prevent escape of the person detained, or to prevent the loss or destruction of property.
A “reasonable period of time”, for the purposes of this section, is a period of time long enough to accomplish the purpose set forth in this section, and shall include any time spent awaiting the arrival of a law enforcement officer or the parents or guardian of a juvenile suspect, if the merchant or the merchant's employee or agent has summoned a law enforcement officer, the parents or a guardian.

Acts 1957, ch. 164, §§ 1, 3; T.C.A., §§ 40-824, 40-826; Acts 1983, ch. 326, § 2; 1990, ch. 1030, § 17.

Cross-References. Civil penalty in lieu of criminal penalty for theft of retail merchandise, §§ 39-14-144, 39-14-145.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 18.33, 18.50, 28.121.

Law Reviews.

Selected Tennessee Legislation of 1983 (N. L. Resener, J. A. Whitson, K. J. Miller), 50 Tenn. L. Rev. 785 (1983).

Attorney General Opinions. A security officer may detain a person pending further investigation into a theft or attempted theft from a merchant, OAG 03-149 (11/17/03).

40-7-117. Theft of property valued at more than $500 in retail or wholesale establishments — Arrest by peace officer without warrant.

Any peace officer may arrest without warrant any person the officer has probable cause for believing has committed theft of property with a value of more than five hundred dollars ($500) in retail or wholesale establishments. “Probable cause,” as used in this section, includes, but is not limited to, the statement of a merchant containing facts and circumstances demonstrating that the officer relied on the elements enumerated in § 40-7-116(b).

Acts 1957, ch. 164, § 2; T.C.A., § 40-825; Acts 1983, ch. 326, § 3; 1990, ch. 1030, § 18.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 18.158.

Law Reviews.

Selected Tennessee Legislation of 1983 (N. L. Resener, J. A. Whitson, K. J. Miller), 50 Tenn. L. Rev. 785 (1983).

40-7-118. Use of citations in lieu of continued custody of an arrested person.

As used in this section, unless the context otherwise requires:
1. “Citation” means an order prepared as a written or electronic citation and issued by a peace officer on paper or on an electronic data device requiring a person accused of violating the law to appear in a designated court or government office at a specified date and time. The signature of the person to whom the order is issued is required, and the order must be filed, electronically or otherwise, with a court having jurisdiction over the alleged offense;
2. “Magistrate” means any state judicial officer, including the judge of a municipal court, having original trial jurisdiction over misdemeanors or felonies; and
3. 1. “Peace officer” means an officer, employee or agent of government who has a duty imposed by law to:
    1. Maintain public order;
    2. Make arrests for offenses, whether that duty extends to all offenses or is limited to specific offenses; and
    3. Investigate the commission or suspected commission of offenses; and
  2. “Peace officer” also includes an officer, employee or agent of government who has the duty or responsibility to enforce laws and regulations pertaining to forests in this state.
1. A peace officer who has arrested a person for the commission of a misdemeanor committed in the peace officer's presence, or who has taken custody of a person arrested by a private person for the commission of a misdemeanor, shall issue a citation to the arrested person to appear in court in lieu of the continued custody and the taking of the arrested person before a magistrate. If the peace officer is serving an arrest warrant or capias issued by a magistrate for the commission of a misdemeanor, it is in the discretion of the issuing magistrate whether the person is to be arrested and taken into custody or arrested and issued a citation in accordance with this section in lieu of continued custody. The warrant or capias shall specify the action to be taken by the serving peace officer who shall act accordingly.
2. 1. This subsection (b) does not apply to an arrest for the offense of driving under the influence of an intoxicant as prohibited by § 55-10-401, unless the offender was admitted to a hospital, or detained for medical treatment for a period of at least three (3) hours, for injuries received in a driving under the influence incident.
  2. This subsection (b) does not apply to any misdemeanor offense for which § 55-10-207 or § 55-12-139 authorizes a traffic citation in lieu of arrest, continued custody and the taking of the arrested person before a magistrate.
3. A peace officer may issue a citation to the arrested person to appear in court in lieu of the continued custody and the taking of the arrested person before a magistrate if a person is arrested for:
  1. The offense of theft which formerly constituted shoplifting, in violation of § 39-14-103;
  2. Issuance of bad checks, in violation of § 39-14-121;
  3. Use of a revoked or suspended driver license in violation of § 55-50-504, § 55-50-601 or § 55-50-602;
  4. Assault or battery as those offenses are defined by common law, if the officer believes there is a reasonable likelihood that persons would be endangered by the arrested person if a citation were issued in lieu of continued physical custody of the defendant; or
  5. Prostitution, in violation of § 39-13-513, if the arresting party has knowledge of past conduct of the defendant in prostitution or has reasonable cause to believe that the defendant will attempt to engage in prostitution activities within a reasonable period of time if not arrested.
A peace officer may arrest and take a person into custody if:
1. A reasonable likelihood exists that the arrested person will fail to appear in court; or
2. The prosecution of the offense for which the person was arrested, or of another offense, would thereby be jeopardized.
No citation shall be issued under this section if:
1. The person arrested requires medical examination or medical care, or if the person is unable to care for the person's own safety;
2. There is a reasonable likelihood that the offense would continue or resume, or that persons or property would be endangered by the arrested person;
3. The person arrested cannot or will not offer satisfactory evidence of identification, including the providing of a field-administered fingerprint or thumbprint which a peace officer may require to be affixed to any citation;
4. [Deleted by 2019 amendment.]
5. [Deleted by 2019 amendment.]
6. The person demands to be taken immediately before a magistrate or refuses to sign the citation;
7. The person arrested is so intoxicated that the person could be a danger to the person's own self or to others;
8. There are one (1) or more outstanding arrest warrants for the person; or
9. The person is subject to arrest pursuant to § 55-10-119.
1. In issuing a citation, the officer shall:
  1. Prepare a citation that includes the name and address of the cited person, the offense charged, and the time and place of appearance;
  2. Have the offender sign the citation. The officer shall deliver one (1) copy to the offender and retain the other; and
  3. Release the cited person from custody.
2. 1. An electronic signature may be used to sign a citation issued electronically and has the same force and effect as a written signature.
  2. Whenever a citation is issued electronically, the officer shall provide the cited person with a paper copy of the citation.
  3. Replicas of citation data sent by electronic transmission must be sent within three (3) days of the issuance of the citation to the court having jurisdiction over the alleged offense.
By accepting the citation, the defendant agrees to appear at the arresting law enforcement agency prior to trial to be booked and processed. Failure to so appear is a Class A misdemeanor.
If the person cited fails to appear in court on the date and time specified or fails to appear for booking and processing prior to the person's court date, the court shall issue a bench warrant for the person's arrest.
Whenever a citation has been prepared, delivered and filed with a court as provided in this section, a duplicate copy of the citation constitutes a complaint to which the defendant shall answer. The duplicate copy shall be sworn to by the issuing officer before any person authorized by law to administer oaths.
Nothing in this section shall be construed to affect a peace officer's authority to conduct a lawful search even though the citation is issued after arrest.
Any person who intentionally, knowingly or willfully fails to appear in court on the date and time specified on the citation or who knowingly gives a false or assumed name or address commits a Class A misdemeanor, regardless of the disposition of the charge for which the person was originally arrested. Proof that the defendant failed to appear when required constitutes prima facie evidence that the failure to appear is willful.
Whenever an officer makes a physical arrest for a misdemeanor and the officer determines that a citation cannot be issued because of one (1) of the seven (7) reasons enumerated in subsection (d), the officer shall note the reason for not issuing a citation on the arrest ticket. An officer who, on the basis of facts reasonably known or reasonably believed to exist, determines that a citation cannot be issued because of one (1) of the seven (7) reasons enumerated in subsection (d) shall not be subject to civil or criminal liability for false arrest, false imprisonment or unlawful detention.
1. Each citation issued pursuant to this section shall have printed on it in large, conspicuous block letters the following:
  NOTICE: FAILURE TO APPEAR IN COURT ON THE DATE ASSIGNED BY THIS CITATION OR AT THE APPROPRIATE POLICE STATION FOR BOOKING AND PROCESSING WILL RESULT IN YOUR ARREST FOR A SEPARATE CRIMINAL OFFENSE WHICH IS PUNISHABLE BY A JAIL SENTENCE OF ELEVEN (11) MONTHS AND TWENTY-NINE (29) DAYS AND/OR A FINE OF UP TO TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500).
2. Each person receiving a citation under this section shall sign this citation indicating the knowledge of the notice listed in subdivision (l )(1). The signature of each person creates a presumption of knowledge of the notice and a presumption of intent to violate this section if the person should not appear as required by the citation.
3. Whenever there are changes in the citation form notice required by this subsection (l ), a law enforcement agency may exhaust its existing supply of citation forms before implementing the new citation forms.
This section shall govern all aspects of the issuance of citations in lieu of the continued custody of an arrested person, notwithstanding any provision of Rule 3.5 of the Tennessee Rules of Criminal Procedure to the contrary.
In cases in which:
1. The public will not be endangered by the continued freedom of the suspected misdemeanant; and
2. The law enforcement officer has reasonable proof of the identity of the suspected misdemeanant.
3. [Deleted by 2019 amendment.]
  the general assembly finds that the issuance of a citation in lieu of arrest of the suspected misdemeanant will result in cost savings and increased public safety by allowing the use of jail space for dangerous individuals and/or felons and by keeping officers on patrol. Accordingly, the general assembly encourages all law enforcement agencies to so utilize misdemeanor citations and to encourage their personnel to use those citations when reasonable and according to law.

Acts 1981, ch. 500, §§ 1, 2; T.C.A., § 40-827; Acts 1983, ch. 200, § 1; 1984, ch. 553, §§ 1, 2; 1985, ch. 320, §§ 1-8, 10, 11; 1988, ch. 932, § 1; 1989, ch. 591, § 113; 1991, ch. 16, § 1; 1993, ch. 241, §§ 68-70; 1996, ch. 644, § 1; 2002, ch. 619, § 1; 2012, ch. 737, § 3; 2019, ch. 316, §§ 1-4; 2020, ch. 781, §§ 1, 2.

Compiler's Notes. Acts 2012, ch. 737, § 5 provided that the act, which added subdivision (c)(9), shall be known and may be cited as the “Ricky Otts Act.”

Acts 2012, ch. 737, § 6 provided that the act, which added subdivision (c)(9), shall apply to prohibited conduct occurring on or after July 1, 2012.

Amendments. The 2019 amendment added (c) and redesignated former (c)-(m) as present (d)-(n); deleted former (c)(4) and (5), which read: “(4) The prosecution of the offense for which the person was arrested, or of another offense, would thereby be jeopardized; (5) A reasonable likelihood exists that the arrested person will fail to appear in court;”; in former (j), substituted “eight (8)” for “seven (7)” preceding “reasons” twice; and deleted former (m)(3), which read: “There is no reason to believe the suspected misdemeanant will not appear as required by law,”.

The 2020 amendment, in (a)(1), inserted “an order prepared as”, substituted “or electronic citation and” for “order”, inserted “on paper or on an electronic data device”, substituted “government” for “governmental”, deleted “The order shall require” preceding “The signature”, substituted “whom the order” for “whom it” and inserted “is required, and the order must be filed, electronically or otherwise, with a court having jurisdiction over the alleged offense;”; redesignated former (e) as present (e)(1) and former (e)(1) – (e)(3) as present (e)(1)(A) – (e)(1)(C); in (e)(1)(A), substituted “citation that includes” for “written order which shall include”; in (e)(1)(B), deleted “original and duplicate copy of the” preceding “citation”; and added (e)(2).

Effective Dates. Acts 2019, ch. 316, § 5. May 9, 2019.

Acts 2020, ch. 781, § 4. July 15, 2020.

Cross-References. Authority of a police officer to arrest without a warrant, § 40-7-103.

Citation in lieu of arrest, Tenn. R. Crim. P. 3.5.

Penalty for Class A misdemeanor, § 40-35-111.

Persons issued citations, failure to appear, § 39-16-609.

Release citations for misdemeanants, § 40-7-120.

Rule Reference. This section is referred to in the Advisory Commission Comments under Rule 3.5 of the Tennessee Rules of Criminal Procedure.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 1.14.

Law Reviews.

Criminal Procedure — State v. Williams: Pretextual Vehicle Stops and the Fourth Amendment, 23 Mem. St. U.L. Rev. 421 (1993).

Attorney General Opinions. Police sergeant appointed deputy court clerk to attest to citations, OAG 98-0138 (8/7/98).

Constables as peace officers, OAG 99-025 (2/16/99).

T.C.A. § 40-7-118(h) authorizes a peace officer to make a search incident to arrest before issuing a citation in “lieu of continued custody” when an officer has reasonable suspicion that a subject is armed and dangerous or when there is a need to preserve evidence, OAG 02-116 (10/18/02).

A municipal officer may arrest a person for violation of a city code or ordinance when that person fails to provide the officer with proper identification, OAG 06-167 (11/9/06).

Security guards issuing criminal summons or citations, OAG 07-002 (1/4/07).

Exceptions for citations under T.C.A. § 40-7-118. OAG 10-31, 2010 Tenn. AG LEXIS 31 (3/11/10).

T.C.A. § 55-10-207 requires the person cited to sign a traffic citation, whether the citation is written on paper or on an electronic device. But a stand-alone blank screen is not a citation, and the officer may not require the person cited to sign a blank screen that is not part of a citation. An officer has authority to physically arrest a person who refuses to sign an electronic traffic citation. OAG 16-26, 2016 Tenn. AG LEXIS 26 (7/22/2016).

NOTES TO DECISIONS

1. Purpose.

Under T.C.A. § 40-7-118, individuals who have committed relatively minor offenses are released, but only on the “promise” that they will appear in court, thereby allowing the use of jail space for dangerous individuals and/or felons. State v. Walker, 12 S.W.3d 460, 2000 Tenn. LEXIS 67 (Tenn. 2000).

2. Identification Exception.

In essence, this “cite and release” statute works on an honor system, operating under the assumption that the misdemeanant will act in good faith by furnishing accurate identification so that an officer can be assured that the misdemeanant is actually the person he claims to be. State v. Walker, 12 S.W.3d 460, 2000 Tenn. LEXIS 67 (Tenn. 2000).

An objective standard of reasonableness should be used to determine whether evidence of identification offered to an officer by a misdemeanant is satisfactory evidence of identification within the meaning of T.C.A. § 40-7-118. State v. Walker, 12 S.W.3d 460, 2000 Tenn. LEXIS 67 (Tenn. 2000).

In rejecting evidence of identification, the officer should have a specific articulable reason to doubt that the cited person has accurately identified himself before taking him into custody. State v. Walker, 12 S.W.3d 460, 2000 Tenn. LEXIS 67 (Tenn. 2000).

Arrest for driving without a license and running a red light was authorized because: (1) If defendant had merely received a citation, he would have continued driving without a license; and (2) When asked for identification, defendant told the arresting officer that he did not have proper identification. State v. Jackson, 313 S.W.3d 270, 2008 Tenn. Crim. App. LEXIS 231 (Tenn. Crim. App. Mar. 25, 2008).

3. Custodial Arrest Held Unlawful.

Officer lacked objective reason for rejecting evidence of identification where despite that misdemeanant did not have driver's license in possession, gave misdemeanant name, driver's license number, and birth date which the officer verified with the dispatcher; therefore, because the custodial arrest was unlawful, the search incident to the arrest was also unlawful, and the seized evidence had to be suppressed. State v. Walker, 12 S.W.3d 460, 2000 Tenn. LEXIS 67 (Tenn. 2000).

Because defendant was driving eight miles over the speed limit, the officer had probable cause to initiate a traffic stop, and therefore he was authorized pursuant to T.C.A. § 55-10-207 to issue a traffic citation; however, the officer was precluded from arresting defendant under T.C.A. § 40-7-118, as no statutory exceptions were present. State v. Berrios, 235 S.W.3d 99, 2007 Tenn. LEXIS 745 (Tenn. Aug. 17, 2007).

4. Equal Protection Claim.

There was no basis in federal law for arguing that the arrestee's equal protection rights were violated by not following T.C.A. § 40-7-118(b)(1) without some showing that it was discriminatorily enforced. Henderson v. Reyda, 2006 FED App. 557N, 192 Fed. Appx. 392, 2006 U.S. App. LEXIS 20058 (6th Cir. Tenn. 2006).

5. Suppression of Evidence.

Where crack cocaine was found hidden in defendant's rectum when officers took defendant to an emergency room and a doctor performed a digital rectal examination, suppression was warranted because the doctor had to be treated as a government agent, and the unconsented paralysis, intubation, and rectal examination amounted to an unreasonable search. United States v. Booker, 728 F.3d 535, 2013 U.S. App. LEXIS 17716, 2013 FED App. 251P (6th Cir. Aug. 26, 2013).

Trial court did not err by denying defendant's motion to suppress evidence found on defendant because the initial stop of defendant's vehicle for a traffic violation was justified and, when the police officer asked for defendant's license, defendant gave the officer an identification card, which led to the officer finding that defendant did not have a valid driver's license as it had been suspended. The officer then could have immediately arrested defendant based on defendant's driving on a suspended license. State v. Carero, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 63 (Tenn. Crim. App. Feb. 3, 2020).

6. Entry Based on Attachment.

Service of an attachment issued following defendant's failure to appear on a misdemeanor citation did not justify entry into his residence because the State failed to establish that the police had reason to believe that defendant was inside the residence when they knocked on the door; an officer drove by the residence and indicated that there appeared to be no activity inside the house. State v. Davidson, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 164 (Tenn. Crim. App. Mar. 10, 2015), aff'd, 509 S.W.3d 156, 2016 Tenn. LEXIS 913 (Tenn. Dec. 19, 2016).

40-7-119. Strip searches restricted.

As used in this section, “strip search” means having an arrested person remove or arrange some or all of the person's clothing so as to permit a visual inspection of the genitals, buttocks, anus, female breasts or undergarments of the arrested person.
No person arrested for a traffic, regulatory or misdemeanor offense, except in cases involving weapons, a controlled substance or controlled substance analogue, shall be strip searched unless there is reasonable belief that the individual is concealing a weapon, a controlled substance, a controlled substance analogue or other contraband.

Acts 1982, ch. 759, § 1; T.C.A., § 40-828; Acts 2012, ch. 848, § 28.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 18.179.

40-7-120. Release citations for misdemeanants.

As used in this section, except as otherwise specifically indicated:
1. “Citation” means a written order issued by a sheriff requiring a person accused of violating the law to appear in a designated court at a specified date and time. The order shall require the signature of the person to whom it is issued; and
2. “Magistrate” means any state judicial officer, including the judge of a municipal court, having original trial jurisdiction over misdemeanors or felonies.
A sheriff or sheriff's designee may, at a county jail, issue a release citation to any person who has been arrested for a violation of law which is punishable as a misdemeanor and who has been booked and processed for that violation.
The citation shall demand the person cited to appear in court at a stated time and place, and it shall state the name and address of the person cited, the name of the issuing sheriff and the offense charged. The time specified on the citation to appear shall be as fixed by the sheriff issuing the citation.
The citation shall be executed in triplicate, the original to be delivered to the court specified in the citation, one (1) copy to be given to the person cited, and one (1) copy to be retained by the sheriff issuing the citation. The original citation delivered to the court shall be sworn to by the issuing sheriff before a magistrate or official lawfully assigned that duty by a magistrate. The person cited shall signify the person's acceptance of the citation and the person's agreement to appear in court as directed by signing the original citation.
Whenever a release citation has been prepared, accepted and the original citation delivered to the court as provided in this section, the original citation delivered to the court shall constitute a complaint to which the person cited must answer, and neither the arresting officer nor the sheriff issuing the citation shall be required to file any other affidavit of complaint with the court.
The signature of the person cited shall create a presumption of knowledge of notice to appear and a presumption of intent to violate this section if the person should not appear as required by the citation.
The citation must give notice to the person cited that the person's failure to appear as ordered is punishable as a separate misdemeanor offense. Each citation issued pursuant to this section must have printed on it in large, conspicuous block letters, the following:
NOTICE: FAILURE TO APPEAR IN COURT ON THE DATE ASSIGNED BY THIS CITATION WILL RESULT IN YOUR ARREST FOR A SEPARATE CRIMINAL OFFENSE WHICH IS PUNISHABLE BY A JAIL SENTENCE OF UP TO ELEVEN (11) MONTHS, TWENTY-NINE (29) DAYS AND/OR A FINE OF UP TO TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500).
Any person who intentionally, knowingly or willfully fails to appear in court on the date and time specified on the citation commits a separate misdemeanor offense, regardless of the disposition of the charge for which the person was originally arrested, and upon conviction shall be punished by imprisonment in the county jail or workhouse for not more than eleven (11) months, twenty-nine (29) days, or by a fine of not more than two thousand five hundred dollars ($2,500) or, in the discretion of the court, by both imprisonment and fine. Proof that the defendant failed to appear when required constitutes prima facie evidence that the failure to appear is willful.
If the person cited fails to appear in court on the date and time specified, the court may issue a bench warrant for the person's arrest.
Nothing in this section shall be construed to affect a sheriff's authority to conduct a lawful search even though the citation is issued after arrest.
No citation shall be issued under this section if:
1. The person arrested requires medical examination or medical care, or if the person is unable to care for the person's own safety;
2. A reasonable likelihood exists that the arrested person will fail to appear in court;
3. The person demands to be taken immediately before a magistrate or refuses to sign the citation;
4. The person arrested is so intoxicated that the person could pose a danger to the person's own self or to others;
5. There are one (1) or more outstanding arrest warrants for the person;
6. There is a reasonable likelihood that the offense would continue or resume, or that persons or property would be endangered by the arrested person;
7. The person arrested cannot or will not offer satisfactory evidence of identification, including the providing of a field-administered fingerprint or thumbprint which a peace officer may require to be affixed to any citation; and
8. The prosecution of the offense for which the person was arrested, or of another offense, would thereby be jeopardized.
This section governs all aspects of the issuance of release citations to an arrested person, notwithstanding any provision of Rule 3.5 of the Tennessee Rules of Criminal Procedure to the contrary.
No sheriff may issue a release citation as authorized in this section after the issuance of a mittimus.
This section is intended to be in addition and supplemental to § 40-7-118, and shall not be construed to supersede that section as it existed on July 1, 1989.
This section does not apply to any county having a metropolitan form of government with a population of more than four hundred seventy thousand (470,000), according to the 1980 federal census or any subsequent federal census.

Acts 1989, ch. 556, §§ 1-3; 2019, ch. 486, §§ 5, 6.

Compiler's Notes. The misdemeanor offense in this section may be affected by the Criminal Sentencing Reform Act of 1989. See §§ 39-11-114, 40-35-110, 40-35-111.

For tables of U.S. decennial populations of counties, see volume 13 and its supplement.

Amendments. The 2019 amendment, in (g), substituted “must” for “shall” twice, and substituted “UP TO ELEVEN (11) MONTHS, TWENTY-NINE (29) DAYS AND/OR A FINE OF UP TO TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500).” for “UP TO SIX (6) MONTHS AND/OR A TWO HUNDRED FIFTY DOLLAR ($250) FINE.”; and in (h), substituted “eleven (11) months, twenty-nine (29) days, or by a fine of not more than two thousand five hundred dollars ($2,500)” for “six (6) months, or by a fine of not more than two hundred fifty dollars ($250)”.

Effective Dates. Acts 2019, ch. 486, § 15. July 1, 2019.

40-7-121. Body cavity searches — Warrant requirement — Waiver — Liability.

As used in this section, unless the context otherwise requires, “body cavity search” means an inspection, probing or examination of the inside of a person's anus, vagina or genitals for the purpose of determining whether the person is concealing evidence of a criminal offense, a weapon, a controlled substance, a controlled substance analogue or other contraband.
No person shall be subjected to a body cavity search by a law enforcement officer or by another person acting under the direction, supervision or authority of a law enforcement officer unless the search is conducted pursuant to a search warrant issued in accordance with Rule 41 of the Tennessee Rules of Criminal Procedure.
The issue of whether a person subjected to a body cavity search consented to the search is irrelevant and shall not be considered in determining whether the search was a valid one under this section, unless the consent is in writing on a preprinted form and contains the following language:
Waiver of Warrant Requirement and Consent to Search Body Cavities

I knowingly and voluntarily consent to have my body cavities searched immediately by law enforcement personnel in the manner provided by the laws of Tennessee. By signing this consent form, I knowingly and voluntarily waive my right to require that a warrant be obtained from an appropriate judge or magistrate before my body cavities are searched.

I understand that a body cavity search may involve both visual and physical probing into my genitals and anus.

I understand that I would not be prejudiced or penalized by declining to give my consent to be searched in this manner.
Nothing in this section shall be construed as amending or altering the relevant statutory and common law with regard to strip searches that do not meet the definition of a “body cavity search.”
This section shall not apply to a body cavity search conducted pursuant to a written jail or prison security procedures policy if the policy requires such a search at the time it was conducted.
A law enforcement officer who conducts or causes to be conducted a body cavity search in violation of this section, and the governmental entity employing that officer, shall be subject to a civil cause of action as now provided by law.
Body cavity searches conducted pursuant to this section must be performed by a licensed physician or a licensed nurse.
No physician, registered nurse, or licensed practical nurse, acting at the written request of a law enforcement officer with a search warrant, written waiver or consent to perform a body cavity search, shall incur any civil or criminal liability as a result of the search or examination, except for any damages or criminal liability that may result from the negligence, gross negligence, willful misconduct or unlawful conduct of the person conducting the examination or search. Neither the hospital nor other employer of health care professionals, acting at the written request of a law enforcement officer with a search warrant, written waiver or consent to perform a body cavity search, shall incur any civil or criminal liability, except for negligence, gross negligence, willful misconduct or unlawful conduct, as a result of the act of examination or search.

Acts 1993, ch. 490, § 1; 2002, ch. 569, § 1; 2012, ch. 848, § 29.

40-7-122. Fee for booking and processing of persons subject to arrest or summons.

In addition to any other fees the sheriff is entitled to demand and receive in accordance with § 8-21-901, a county legislative body may vote to impose an additional fee of not more than ten dollars ($10.00) for the booking and processing of each person subject to arrest or summons. The fee shall be collected at the same time and in the same manner as other fees are collected by a sheriff in accordance with title 8, chapter 21, part 9. The fee shall not be charged to any person determined by the court to be indigent.

Acts 2007, ch. 586, § 2.

40-7-123. Development of standardized written procedure of verifying citizenship status.

The Tennessee peace officer standards and training commission shall develop a standardized written procedure for verifying the citizenship status of individuals who are arrested, booked, or confined for any period in a county or municipal jail or detention facility and reporting to the appropriate immigration and customs enforcement detention and removal operations field office those individuals who may be in violation of the Immigration and Naturalization Act (8 U.S.C § 1101 et seq.).
When a person is arrested, booked or confined for any period in the jail of the county or any municipality, the keeper of the jail shall utilize the above-referenced procedure to verify the citizenship status of each arrested, booked, or otherwise confined individual and report those individuals to the appropriate immigration and customs enforcement detention and removal operations field office if the keeper of the jail determines that the individual is in violation of the Immigration and Naturalization Act, or if such status cannot be determined.
This section shall not apply to any county or municipality that has entered into and is operating under a memorandum of understanding with the United States department of homeland security concerning enforcement of federal immigration laws.
This section shall not apply to any county or municipality while it participates in the United States immigration and customs enforcement criminal alien program (CAP).

Acts 2010, ch. 1112, § 1.

40-7-124. Immunity from prosecution for possession of drug paraphernalia when officers alerted of presence of hypodermic needle or other sharp objects prior to search.

Before searching a person, a person's premises, or a person's vehicle, a law enforcement officer may ask the person whether the person is in possession of a hypodermic needle or other sharp object that may cut or puncture the officer, or whether a hypodermic needle or other sharp object is on the premises or in the vehicle to be searched. If there is a hypodermic needle or other sharp object on the person, on the person's premises, or in the person's vehicle, and the person alerts the law enforcement officer of such before the search, the person shall not be charged with or prosecuted for possession of drug paraphernalia for the hypodermic needle or other sharp object.
Subsection (a) does not apply to any other drug paraphernalia that may be present and found during the search.

Acts 2015, ch. 77, § 1.

Part 2
Uniform Law on Fresh Pursuit

40-7-201. Short title.

This part shall be known and may be cited as the “Uniform Law on Fresh Pursuit.”

Acts 1939, ch. 146, § 8; C. Supp. 1950, § 11546.1 (Williams, § 11546.8); T.C.A. (orig. ed.), § 40-809.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 18.164.

Law Reviews.

The Rights of the Criminal Defendant: Arrest to Preliminary Hearing (Edward M. Ellis), 34 Tenn. L. Rev. 482.

NOTES TO DECISIONS

1. Arrest Found Valid.

Evidence established that officer had reasonable cause to believe defendants were engaged in the felony of stealing livestock at the time they were initially stopped, that there was probable cause to effect their arrest, and that the arrest was legal under the reciprocal fresh pursuit laws enacted by the state of Tennessee and the state of North Carolina. State v. Foulks, 653 S.W.2d 430, 1983 Tenn. Crim. App. LEXIS 387 (Tenn. Crim. App. 1983).

40-7-202. Part definitions.

As used in this part, unless the context otherwise requires:

“Fresh pursuit” includes fresh pursuit as defined by the common law, and also the pursuit of a person who has committed a felony or who is reasonably suspected of having committed a felony;
1. It also includes the pursuit of a person suspected of having committed a supposed felony, though no felony has actually been committed, if there is reasonable ground for believing that a felony has been committed;
2. “Fresh pursuit” does not necessarily imply instant pursuit, but pursuit without unreasonable delay; and
“State” includes the District of Columbia.

Acts 1939, ch. 146, §§ 4, 5; C. Supp. 1950, §§ 11546.5, 11546.6 (Williams, §§ 11546.4, 11546.5); T.C.A. (orig. ed.), §§ 40-810, 40-811.

40-7-203. Power of officers from other states to arrest.

Any member of a duly organized state, county or municipal peace unit of another state, who enters this state in fresh pursuit, and continues within this state in that fresh pursuit, of a person in order to arrest the person on grounds that the person is believed to have committed a felony in that other state, shall have the same authority to arrest and hold the person in custody as has any member of any duly organized state, county or municipal peace unit of this state to arrest and hold in custody a person on the ground that the person is believed to have committed a felony in this state.
This section shall not be construed so as to make unlawful any arrest in this state which would otherwise be lawful.

Acts 1939, ch. 146, §§ 1, 3; C. Supp. 1950, §§ 11546.2, 11546.4 (Williams, §§ 11546.1, 11546.3); T.C.A. (orig. ed.), §§ 40-812, 40-813.

Law Reviews.

The Tennessee Law of Arrest (Rollin M. Perkins and Frank C. Rand), 2 Vand. L. Rev. 509.

40-7-204. Examination by magistrate.

If an arrest is made in this state by an officer of another state in accordance with § 40-7-203, the officer shall, without unnecessary delay, take the person arrested before a magistrate who shall conduct a hearing for the purpose of determining the lawfulness of the arrest.
If the magistrate determines that the arrest was lawful, the magistrate shall commit the person arrested to await for a reasonable time the issuance of an extradition warrant by the governor of this state, or admit the person to bail for that purpose.
If the magistrate determines that the arrest was unlawful, the magistrate shall discharge the person arrested.

Acts 1939, ch. 146, § 2; C. Supp. 1950, § 11546.3 (Williams, § 11546.2); T.C.A. (orig. ed.), § 40-814.

Cross-References. Admission to bail, title 40, ch. 11, part 1.

Extradition, title 40, ch. 9.

Officials designated as magistrates, § 40-1-106.

Secretary of state, § 4-3-2101 et seq.

Law Reviews.

The Right to a Preliminary Hearing and Effective Assistance of Counsel at a Preliminary Hearing in Tennessee, 43 Tenn. L. Rev. 635 (1976).

40-7-205. Certification of law to other states.

It is the duty of the secretary of state to certify a copy of this part to the executive department of each of the states of the United States.

Acts 1939, ch. 146, § 6; C. Supp. 1950, § 11546.7 (Williams, § 11546.6); T.C.A. (orig. ed.), § 40-815.

Chapter 8
Rewards for Apprehension

40-8-101. Offer of reward by governor.

The governor is authorized to offer a reward for information leading to the apprehension, arrest and conviction of a person or persons who have committed, attempted to commit or conspired to commit a criminal offense in this state. Any reward offered shall not exceed the following amounts for the following classification of offenses:
1. Fifty thousand dollars ($50,000) for an offense that is classified as a Class A or B felony; and
2. Five thousand dollars ($5,000) for an offense that is classified as a Class C, D or E felony.
The fifty-thousand-dollar and five-thousand-dollar reward maximums imposed by subsection (a) shall apply only to state appropriated funds. The governor may increase the amount of any reward offered by use of funds from the reward pool fund created in this part.
When the governor offers a reward pursuant to this section, the governor may place any reasonable conditions upon collection of the reward as the governor deems advisable or necessary.

Code 1858, §§ 183, 5335 (deriv. Acts 1805, ch. 44, § 1; 1837-1838, ch. 170, § 1); Acts 1881, ch. 157, §§ 1, 2; Shan., §§ 233, 7313; Code 1932, §§ 175, 11915; Acts 1971, ch. 40, § 1; 1971, ch. 284, § 1; modified; 1980, ch. 636, § 8; T.C.A. (orig. ed.), § 40-901; Acts 1997, ch. 284, § 4.

Cross-References. Penalties for Class A, B, C, D and E felonies, § 40-35-111.

NOTES TO DECISIONS

1. Collusive Surrender.

No reward will be paid to accessory after the fact who procures the surrender of the fugitive by collusion in agreeing to allow a portion of the reward to the fugitive. Kerr v. Hambright, 2 Shan. 63 (1876).

Where a reward has been offered for the apprehension of an alleged criminal, who voluntarily surrenders himself to a woman for the purpose of enabling her to obtain the reward, and remained with her until an officer, sent for by her, under his direction, comes and receives him into custody, she, in no just sense, arrested the culprit, and is not entitled to the reward. Kerr v. Hambright, 2 Shan. 63 (1876).

40-8-102. Reward for persons obstructing railroad tracks.

The governor shall, when officially informed that an obstruction has been placed upon any railroad track by any person, for the purpose of derailing the locomotive, tender or cars, offer a reward for the offender's apprehension and conviction.

Code 1858, §§ 184, 5336 (deriv. Acts 1855-1856, ch. 94, § 11); Shan., §§ 234, 7314; Code 1932, §§ 176, 11916; T.C.A. (orig. ed.), § 40-902.

Cross-References. Obstructing highway or other passageway, § 39-17-307.

Railroads, title 65, ch. 6.

40-8-103. Conditions for reward.

No person is entitled to the reward offered under §§ 40-8-101 and 40-8-102 until the offender is delivered to the civil authority, and confined in jail or admitted to bail.
No person is entitled to the reward unless the offender is apprehended within five (5) years from the date of the governor's proclamation, and before the prosecution of the offense is barred by lapse of time.

Code 1858, §§ 5337, 5338; Shan., §§ 7315, 7316; Code 1932, § 11918; T.C.A. (orig. ed.), §§ 40-903, 40-904.

40-8-104. Payment of reward.

The reward will be paid by the state treasurer, upon the warrant of the commissioner of finance and administration, by order of the governor, drawn in favor of the person who may, in the opinion of the governor, be entitled to the reward.

Code 1858, § 5339 (deriv. Acts 1805, ch. 44, § 2; 1837-1838, ch. 170, § 1); Acts 1881, ch. 157, § 2; Shan., § 7317; Code 1932, § 11919; modified; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1961, ch. 97, § 3; T.C.A. (orig. ed.), § 40-905.

40-8-105. Reward pool fund.

The governor is authorized to establish and administer a “reward pool fund” which shall be a special account in the state general fund. All monetary donations or gifts made by private citizens and corporations for the purpose of offering a reward or enhancing a state-funded reward offered pursuant § 40-8-101, for information leading to the apprehension, arrest and conviction of a person or persons who have committed, attempted to commit or conspired to commit a criminal offense in this state shall be deposited in the reward pool fund and invested for the benefit of the fund by the state treasurer pursuant to § 9-4-603. Amounts in the fund shall not revert to the general fund of the state but shall, together with interest income credited to the fund, remain available for expenditure in subsequent fiscal years. Except as provided in § 40-8-106, the governor shall have the sole discretion to determine if and how much of the fund shall be offered in a particular criminal case. However, if the donor places any lawful restrictions or instructions on use of the donation at the time it is given, those restrictions or instructions shall be honored.

Acts 1997, ch. 284, § 5; 2017, ch. 246, § 3.

Amendments. The 2017 amendment added “Except as provided in § 40-8-106,” at the beginning of the next to last sentence.

Effective Dates. Acts 2017, ch. 246, § 4. July 1, 2017.

40-8-106. Reward.

A reward of one thousand dollars ($1,000) shall be awarded to any person whose report of voter fraud through the state election coordinator's voter fraud hotline leads to a conviction. If more than one (1) person reports the same incident of voter fraud, the reward shall be divided and equally distributed to each person.
The reward awarded pursuant to subsection (a) shall be paid from the reward pool fund, created by § 40-8-105.

Acts 2017, ch. 246, § 2.

Effective Dates. Acts 2017, ch. 246, § 4. July 1, 2017.

Chapter 9
Uniform Criminal Extradition Act

40-9-101. Short title.

This chapter shall be known and may be cited as the “Uniform Criminal Extradition Act.”

Acts 1951, ch. 240, § 28 (Williams, § 11935.26); T.C.A. (orig. ed.), § 40-1001.

Cross-References. Appeal as of right by state in criminal actions, T.R.A.P. 3.

Extradition of persons taken in fresh pursuit by officers from other states, § 40-7-204.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 2.2.

Law Reviews.

International Extradition (M. Cherif Bassiouni), 36 Tenn. L. Rev. 1.

NOTES TO DECISIONS

1. Validity.

Extradition does not rest on state statutes but originates in the United States Constitution as implemented by congressional enactment, and state legislation on the subject is valid only insofar as it is ancillary to and in aid of federal requirements. State ex rel. Wiley v. Waggoner, 508 S.W.2d 535, 1973 Tenn. LEXIS 407 (Tenn. 1973).

2. Judicial Review.

Judicial review in the asylum state of a governor's extradition action is limited to the following issues: (1) Whether the extradition documents are in order on their face; (2) Whether the petitioner has been charged with a crime in the demanding state; (3) Whether the petitioner is the person named in the request for extradition; and (4) Whether the petitioner is a fugitive. Yates v. Gilless, 841 S.W.2d 332, 1992 Tenn. Crim. App. LEXIS 446 (Tenn. Crim. App. 1992).

3. Time Limit.

Tennessee extradition laws contain no time limit relating to when a governor's warrant may be executed. Yates v. Gilless, 841 S.W.2d 332, 1992 Tenn. Crim. App. LEXIS 446 (Tenn. Crim. App. 1992).

4. Construction With Other Acts.

The chief difference between the Extradition Act and the Compact on Detainers is that the Compact procedures result in only a temporary transfer to the receiving state. State ex rel. Young v. Rose, 670 S.W.2d 238, 1984 Tenn. Crim. App. LEXIS 3001 (Tenn. Crim. App. 1984).

40-9-102. Chapter definitions.

As used in this chapter, unless the context otherwise requires:

“Executive authority” includes the governor, and any person performing the functions of governor in a state other than this state;
“Governor” includes any person performing the functions of governor by authority of the law of this state; and
“State,” referring to a state other than this state, refers to any other state or territory organized or unorganized of the United States.

Acts 1951, ch. 240, § 1 (Williams, § 11935.1); T.C.A. (orig. ed.), § 40-1002.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

40-9-103. Warrant of arrest for crime in another state.

Whenever any person within this state is charged on the oath of any credible person before any judge or other magistrate of this state with the commission of a crime in any other state, and, except in cases arising under § 40-9-113, with having fled from justice; or whenever a complaint has been made before any judge or other magistrate in this state setting forth on the affidavit of any credible person in another state that a crime has been committed in that other state and that the accused has been charged in that other state with the commission of the crime, and, except in cases arising under § 40-9-113, has fled therefrom and is believed to have been found in this state, the judge or magistrate shall issue a warrant directed to the sheriff of the county in which the oath or complaint is filed directing the sheriff to apprehend the person charged, wherever the person may be found in this state, and bring the person before the issuing judge or magistrate or any other judge, court or magistrate who may be conveniently accessible to the place where the arrest may be made, to answer the charge or complaint and affidavit. A certified copy of the sworn charge or complaint and affidavit upon which the warrant is issued shall be attached to the warrant.

Acts 1951, ch. 240, § 13 (Williams, § 11935.13); T.C.A. (orig. ed.), § 40-1003.

Cross-References. Officials designated as magistrates, § 40-1-106.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 2.7, 2.37, 2.38, 2.40.

NOTES TO DECISIONS

1. Construction.

Once a petitioner is brought within the boundaries of this state, absent outrageous or illegal conduct by the arresting authorities so extreme as to shock the conscience, he may be placed upon trial for any charges pending. Elliott v. Johnson, 816 S.W.2d 332, 1991 Tenn. Crim. App. LEXIS 191 (Tenn. Crim. App. 1991), appeal denied, — S.W.2d —, 1991 Tenn. LEXIS 285 (Tenn. July 1, 1991).

Because petitioner was a Tennessee state prisoner and subject to temporary transfer to the Commonwealth of Kentucky pursuant to the Interstate Compact on Detainers, T.C.A. § 40-31-101 et seq.; T.C.A. § 40-9-103 of the Uniform Criminal Extradition Act did not apply. Accordingly, the trial court did not err by denying petitioner's petition for a writ of habeas corpus to contest the transfer. Heard v. Lee, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 57 (Tenn. Crim. App. Jan. 29, 2019).

Decisions Under Prior Law

1. Purpose.

Former law on detaining fugitives from other states had no bearing on habeas corpus proceeding of prisoner contesting extradition under governor's warrant, since these sections merely contemplated holding the prisoner until warrant of arrest by the governor might arrive and on the arrival of such warrant prior proceedings were immaterial. State ex rel. Van Scoyoc v. State, 171 Tenn. 357, 103 S.W.2d 26, 1936 Tenn. LEXIS 97 (1937).

2. Fugitive.

One was a fugitive from justice where, after being charged with a crime in the demanding state, he fled therefrom. State ex rel. Lea v. Brown, 166 Tenn. 669, 64 S.W.2d 841, 1933 Tenn. LEXIS 135, 91 A.L.R. 1246 (1933), cert. denied, Tennessee ex rel. Lea v. Brown, 292 U.S. 638, 54 S. Ct. 717, 78 L. Ed. 1491, 1934 U.S. LEXIS 881 (1934).

3. —Factual Question.

Whether one was a fugitive subject to rendition was question of fact. State ex rel. Lea v. Brown, 166 Tenn. 669, 64 S.W.2d 841, 1933 Tenn. LEXIS 135, 91 A.L.R. 1246 (1933), cert. denied, Tennessee ex rel. Lea v. Brown, 292 U.S. 638, 54 S. Ct. 717, 78 L. Ed. 1491, 1934 U.S. LEXIS 881 (1934).

4. —Pending an Appeal.

Where petitioners voluntarily appeared in the court of the demanding state and were convicted and released on bond pending their appeal, and thereafter left that state and failed to appear on affirmance by court of appeals, they were fugitives. State ex rel. Lea v. Brown, 166 Tenn. 669, 64 S.W.2d 841, 1933 Tenn. LEXIS 135, 91 A.L.R. 1246 (1933), cert. denied, Tennessee ex rel. Lea v. Brown, 292 U.S. 638, 54 S. Ct. 717, 78 L. Ed. 1491, 1934 U.S. LEXIS 881 (1934).

5. Warrant of Magistrate.

6. —Temporary Detention.

A magistrate of the peace had power to issue a warrant for the temporary detention of a fugitive, while the governor was absent. State ex rel. Redwine v. Selman, 157 Tenn. 641, 12 S.W.2d 368, 1928 Tenn. LEXIS 232 (1928).

7. —Sufficiency.

A warrant for the arrest of a named person, charging him with the offense of fugitive from justice, is insufficient. Reichman v. Harris, 252 F. 371, 1918 U.S. App. LEXIS 2071 (6th Cir. Tenn. 1918).

Notwithstanding alleged irregularities in the warrant and mittimus, if petitioner for habeas corpus was subject to extradition, the trial judge committed no error in disregarding the irregularities claimed and remanding petitioner to custody. State ex rel. Knowles v. Taylor, 160 Tenn. 44, 22 S.W.2d 222, 1929 Tenn. LEXIS 73 (1929).

8. Effect of Governor's Warrant.

Prisoner was not entitled to release on writ of habeas corpus on the ground that he had been denied a preliminary hearing and that fugitive from justice warrant did not charge a crime if warrant of arrest by governor had arrived. State ex rel. Zahnd v. Head, 185 Tenn. 462, 206 S.W.2d 426, 1947 Tenn. LEXIS 352 (1947).

9. Presence of Accused in State of Crime.

It was not necessary that the evidence show absolutely that the party charged with the crime was present in the demanding state at the exact moment at which the crime was shown to have been committed, but it was sufficient that the evidence show such party was in the demanding state on or about the time alleged. State ex rel. Brown v. Grosch, 177 Tenn. 619, 152 S.W.2d 239, 1940 Tenn. LEXIS 61 (1941).

10. Waiver.

Where a person voluntarily appeared in trial court, he waived question of court's jurisdiction; and, after he subsequently fled the state, he could not resist extradition. State ex rel. Lea v. Brown, 166 Tenn. 669, 64 S.W.2d 841, 1933 Tenn. LEXIS 135, 91 A.L.R. 1246 (1933), cert. denied, Tennessee ex rel. Lea v. Brown, 292 U.S. 638, 54 S. Ct. 717, 78 L. Ed. 1491, 1934 U.S. LEXIS 881 (1934).

40-9-104. Arrest without warrant for felony in another state.

The arrest of a person may be lawfully made by an officer or a private citizen without a warrant upon reasonable information that the accused stands charged in the courts of another state with a crime punishable by death or imprisonment for a term exceeding one (1) year; but when so arrested, the accused must be taken before a judge or magistrate with all practicable speed and complaint must be made against the person under oath setting forth the ground for the arrest as in § 40-9-103. Thereafter, the person's answer shall be heard as if the person had been arrested on a warrant.

Acts 1951, ch. 240, § 14 (Williams, § 11935.14); T.C.A. (orig. ed.), § 40-1004.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 2.7, 2.37, 2.38.

Tennessee Jurisprudence, 13 Tenn. Juris., False Imprisonment, § 4.

NOTES TO DECISIONS

Decisions Under Prior Law

1. Arrest Without Warrant.

A citizen of this state could not be arrested here by citizens of another state, without warrant, for an offense committed in another state. Tarver v. State, 90 Tenn. 485, 16 S.W. 1041, 1891 Tenn. LEXIS 31 (1891), superseded by statute as stated in, State v. Maupin, — S.W.2d —, 1991 Tenn. Crim. App. LEXIS 818 (Tenn. Crim. App. Oct. 7, 1991).

40-9-105. Commitment awaiting extradition.

If, from the examination before the judge or magistrate, it appears that the person held is the person charged with having committed the crime alleged and that the person probably committed the crime, and, except in cases arising under § 40-9-113, that the person has fled from justice, the judge or magistrate must commit the person to jail by a warrant reciting the accusation for a time specified in the warrant as will enable the arrest of the accused to be made under a warrant of the governor on a requisition of the executive authority of the state having jurisdiction of the offense, unless the accused gives bail as provided in § 40-9-106, or until the accused is legally discharged.

Acts 1951, ch. 240, § 15 (Williams, § 11935.15); T.C.A. (orig. ed.), § 40-1005.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 2.7.

Tennessee Jurisprudence, 13 Tenn. Juris., Extradition, § 3.

40-9-106. Admission to bail.

Unless the offense with which the prisoner is charged is shown to be an offense punishable by death or life imprisonment under the laws of the state in which it was committed, the judge or magistrate must admit the person arrested to bail by bond or undertaking, with sufficient sureties, and in any sum that the judge or magistrate deems proper, for the person's appearance before the judge or magistrate at a time specified in the bond or undertaking, and for the person's surrender, to be arrested upon the warrant of the governor of this state.

Acts 1951, ch. 240, § 16 (Williams, § 11935.16); T.C.A. (orig. ed.), § 40-1006.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 2.7, 2.38.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 3; 13 Tenn. Juris., Extradition, § 1.

Law Reviews.

The Tennessee Bail System — What's the Best Cure? (Michael D. Brent), 8 Mem. St. U.L. Rev. 121.

NOTES TO DECISIONS

1. In General.

Tennessee does not authorize bail for prisoners after their arrest upon the rendition warrant of the governor of Tennessee: once a fugitive is served with a rendition warrant of the governor of the asylum state, he is not entitled to bail and no constitutional abridgement is involved. Tennessee statutes authorize bail in such extradition cases only for the prisoner's surrender for arrest upon the warrant of the governor of this state. Mandina v. State, 749 S.W.2d 472, 1985 Tenn. Crim. App. LEXIS 3289 (Tenn. Crim. App. 1985).

40-9-107. Forfeiture of bail.

If the prisoner is admitted to bail, and fails to appear and surrender according to the condition of the person's bond, the court, by proper order, shall declare the bond forfeited. Recovery may be had on the bond in the name of the state as in the case of other bonds or undertakings given by the accused in criminal proceedings within this state.

Acts 1951, ch. 240, § 18 (Williams, § 11935.18); T.C.A. (orig. ed.), § 40-1007.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 2.7.

Law Reviews.

The Tennessee Bail System — What's the Best Cure? (Michael D. Brent), 8 Mem. St. U.L. Rev. 121.

40-9-108. Disposition of prisoner on expiration of time specified in warrant of commitment — No discharge pending proceedings before governor.

If the accused is not arrested under warrant of the governor by the expiration of the time specified in the warrant, bond or undertaking, the judge or magistrate may discharge the accused or recommit the accused to a further day, or may again take bail for the accused's appearance and surrender, as provided in § 40-9-106; and at the expiration of the second period of commitment, or if the accused has been bailed and appeared, according to the terms of the bond or undertaking, the judge or magistrate may either discharge the accused, or require the accused to enter into a new bond or undertaking, to appear and surrender at another day.
Whenever any fugitive from justice awaiting extradition to another state files a protest or requests a hearing before the governor of this state, prior to the returning of the fugitive to the other state, no judge or court in this state shall have the authority to order the release or discharge of the fugitive, pending the final disposition of the extradition proceeding before the governor. Likewise, the surety on any bail or appearance bond shall not be released from liability until final disposition of the matter by the governor of this state.

Acts 1951, ch. 240, § 17 (Williams, § 11935.17); 1965, ch. 238, § 1; T.C.A. (orig. ed.), § 40-1008.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 2.7, 2.18, 2.38, 2.43.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 3.

NOTES TO DECISIONS

1. Discharge by Courts.

When the governor has granted a hearing, no judge or court of Tennessee may release or discharge a prisoner pending final resolution of the extradition proceeding before the governor. Horne v. Wilson, 316 F. Supp. 247, 1970 U.S. Dist. LEXIS 10513 (E.D. Tenn. 1970).

2. Bail.

Tennessee does not authorize bail for prisoners after their arrest upon the rendition warrant of the governor of Tennessee: once a fugitive is served with a rendition warrant of the governor of the asylum state, he is not entitled to bail and no constitutional abridgement is involved. Tennessee statutes authorize bail in such extradition cases only before the prisoner's surrender for arrest upon the warrant of the governor of this state. Mandina v. State, 749 S.W.2d 472, 1985 Tenn. Crim. App. LEXIS 3289 (Tenn. Crim. App. 1985).

40-9-109. Governor's duty to cause arrest and extradition of fugitives.

Subject to the qualifications of this chapter and the provisions of the Constitution of the United States controlling, and acts of congress in pursuance of the United States Constitution, it is the duty of the governor of this state to have arrested and delivered up to the executive authority of any other state any person charged in that state with treason, a felony or another crime, who has fled from justice and is found in this state.

Acts 1951, ch. 240, § 2 (Williams, § 11935.2); T.C.A. (orig. ed.), § 40-1009.

Textbooks. Tennessee Jurisprudence, 13 Tenn. Juris., Extradition, §§ 1, 3.

40-9-110. Contents of demands from other states.

No demand for the extradition of a person charged with a crime in another state shall be recognized by the governor unless in writing and accompanied by a copy of an indictment found or by information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereon. The indictment, information or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy must be authenticated by the executive authority making the demand, which shall be prima facie evidence of its truth.

Acts 1951, ch. 240, § 3 (Williams, § 11935.3); T.C.A. (orig. ed.), § 40-1010.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 2.50.

Tennessee Jurisprudence, 13 Tenn. Juris., Extradition, § 3.

NOTES TO DECISIONS

1. Indictment.

Allegation of three indictments with only one indictment documented in the supporting papers does not amount to a “defect on the face” of the extradition request. State ex rel. Jones v. Gann, 584 S.W.2d 235, 1979 Tenn. Crim. App. LEXIS 260 (Tenn. Crim. App. 1979).

2. Copy of Warrant.

A capias of the demanding state which authorized any peace officer of the demanding state to arrest relator upon the affidavit of the crime duly filed against him satisfies the requirement that a copy of the warrant accompany the application, which is to show governor of asylum state that there is a valid charge against relator in demanding state. State ex rel. Trigg v. Thompson, 196 Tenn. 147, 270 S.W.2d 332, 1954 Tenn. LEXIS 442 (1954).

3. Copy of Foreign Indictment.

In the absence of evidence in the record, the supreme court would presume that certified copies of indictment in foreign state were before the governor. State ex rel. Hourigan v. Robinson, 195 Tenn. 101, 257 S.W.2d 9, 1953 Tenn. LEXIS 306 (1953).

4. Rendition Warrant.

5. —Effect.

The issuance of a rendition warrant by the executive of the asylum state creates a prima facie case that the person sought to be extradited was lawfully charged with crime in the demanding state and has fled therefrom. State ex rel. Sandford v. Cate, 199 Tenn. 195, 285 S.W.2d 343, 1955 Tenn. LEXIS 445 (1955); Reeves v. State, 199 Tenn. 598, 288 S.W.2d 451, 1955 Tenn. LEXIS 310 (1956).

6. —Sufficiency.

Rendition warrant based on indictment which merely averred that offense upon which extradition was based was committed “in the fall of 1949” was adequate. Reeves v. State, 199 Tenn. 598, 288 S.W.2d 451, 1955 Tenn. LEXIS 310 (1956).

7. Proceedings in Asylum State.

The courts of the asylum state will not entertain technical objections in the demanding state but to the contrary will leave the petitioner to his rights in the courts of such demanding state to test the validity of the accusation there against him. State ex rel. Sandford v. Cate, 199 Tenn. 195, 285 S.W.2d 343, 1955 Tenn. LEXIS 445 (1955).

Contention that indictment was prematurely brought in demanding state could not be raised in habeas corpus proceeding to secure discharge from arrest under governor's executive warrant. State ex rel. Sandford v. Cate, 199 Tenn. 195, 285 S.W.2d 343, 1955 Tenn. LEXIS 445 (1955).

The court cannot consider alleged defects in the indictment upon habeas corpus to avoid extradition. State ex rel. Sandford v. Cate, 199 Tenn. 195, 285 S.W.2d 343, 1955 Tenn. LEXIS 445 (1955); Reeves v. State, 199 Tenn. 598, 288 S.W.2d 451, 1955 Tenn. LEXIS 310 (1956).

Person sought to be extradited may show that he was not in the demanding state at the time of the commission of the crime and procure his release by habeas corpus, but such absence must be shown beyond a reasonable doubt and the court will not discharge such person on habeas corpus where there is merely contradictory evidence as to his presence in the other state. Reeves v. State, 199 Tenn. 598, 288 S.W.2d 451, 1955 Tenn. LEXIS 310 (1956); State ex rel. Johnson v. Turner, 207 Tenn. 93, 338 S.W.2d 558, 1960 Tenn. LEXIS 430 (1960).

8. —Appeal and Review.

On appeal, the supreme court, in absence of evidence to the contrary, must presume that proper extradition requests were made and the requirements of the statute were complied with. State ex rel. Johnson v. Turner, 207 Tenn. 93, 338 S.W.2d 558, 1960 Tenn. LEXIS 430 (1960).

40-9-111. Investigation by prosecuting officer.

When a demand is made upon the governor of this state by the executive authority of another state for the surrender of a person so charged with a crime, the governor may call upon the attorney general and reporter or any prosecuting officer in this state to investigate or assist in investigating the demand, and to report to the governor the situation and circumstances of the person so demanded, and whether the person ought to be surrendered.

Acts 1951, ch. 240, § 4 (Williams, § 11935.4); T.C.A. (orig. ed.), § 40-1011.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 2.43.

NOTES TO DECISIONS

1. Provision Discretionary.

The key word in the statute, “may,” means that the code provision is discretionary and not mandatory. State ex rel. Lingerfelt v. Gardner, 591 S.W.2d 777, 1979 Tenn. Crim. App. LEXIS 294 (Tenn. Crim. App. 1979).

2. Foreign Law Status.

The right of the governor of Tennessee to surrender one to the authorities of a sister state depends upon the status of the law on the date of demand by such sister state rather than at the date alleged as that of the commission of the crime. State ex rel. Bryant v. Fleming, 195 Tenn. 419, 260 S.W.2d 161, 1953 Tenn. LEXIS 358 (1953).

40-9-112. Allegations required in demand for extradition.

A warrant of extradition must not be issued unless the documents presented by the executive authority making the demand show that:

Except in cases arising under § 40-9-113, the accused was present in the demanding state at the time of the commission of the alleged crime, and thereafter fled from the state;
The accused is now in this state; and
The accused is lawfully charged by indictment found or by information filed by a prosecuting officer and supported by affidavit to the facts, or by affidavit made before a magistrate in that state, with having committed a crime under the laws of that state, or that the accused has been convicted of a crime in that state and has escaped from confinement or broken parole.

Acts 1951, ch. 240, § 5 (Williams, § 11935.5); T.C.A. (orig. ed.), § 40-1012.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 2.3, 2.43, 2.54.

Tennessee Jurisprudence, 13 Tenn. Juris., Extradition, § 3.

NOTES TO DECISIONS

1. Habeas Corpus Attack of Indictment.

Contention that indictment was prematurely brought in demanding state could not be raised in habeas corpus proceeding to secure discharge from arrest under governor's warrant. State ex rel. Sandford v. Cate, 199 Tenn. 195, 285 S.W.2d 343, 1955 Tenn. LEXIS 445 (1955).

2. Presence in Demanding State.

Person sought to be extradited may show that he was not in demanding state at the time of the commission of the crime and procure his release by habeas corpus, but such absence must be shown beyond a reasonable doubt and court will not discharge such person where evidence is merely contradictory as to his presence in other state. Reeves v. State, 199 Tenn. 598, 288 S.W.2d 451, 1955 Tenn. LEXIS 310 (1956); State ex rel. Johnson v. Turner, 207 Tenn. 93, 338 S.W.2d 558, 1960 Tenn. LEXIS 430 (1960).

3. Effect of Rendition Warrant.

The issuance of a rendition warrant by the executive of the asylum state creates a prima facie case that the person sought to be extradited was lawfully charged with crime in demanding state and had fled therefrom. State ex rel. Sandford v. Cate, 199 Tenn. 195, 285 S.W.2d 343, 1955 Tenn. LEXIS 445 (1955); Reeves v. State, 199 Tenn. 598, 288 S.W.2d 451, 1955 Tenn. LEXIS 310 (1956).

4. Sufficiency of Warrant.

Requisition warrant specifically stating that appellants committed acts in Tennessee which resulted in the showing of obscene films in Georgia was sufficient to bring the warrant within the bounds of T.C.A. § 40-9-113. State ex rel. Bradford v. Thomas, 653 S.W.2d 755, 1983 Tenn. Crim. App. LEXIS 389 (Tenn. Crim. App. 1983).

40-9-113. Acts resulting in crime in state in which accused is not present.

The governor of this state may surrender, on demand of the executive authority of any other state, any person in this state charged in that other state in the manner provided in § 40-9-112 with committing an act in this state, or in a third state, intentionally resulting in crime in the state whose executive authority is making the demand. The provisions of this chapter not otherwise inconsistent shall apply to such cases, notwithstanding that the accused was not in that state at the time of the commission of the crime, and has not fled therefrom.

Acts 1951, ch. 240, § 6 (Williams, § 11935.6); T.C.A. (orig. ed.), § 40-1013.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 2.3, 2.9, 2.54.

NOTES TO DECISIONS

1. Act Committed in Tennessee.

In habeas corpus proceeding for discharge from arrest under executive warrant of governor, contention of executor, who qualified in North Carolina and who was indicted in that state for embezzlement of funds, that after qualifying he returned to his home in Tennessee and that any conversion must have necessarily occurred in Tennessee was without merit as he was under duty to account to the North Carolina court and he could be extradited for an act committed in Tennessee resulting in a crime in North Carolina. State ex rel. Sandford v. Cate, 199 Tenn. 195, 285 S.W.2d 343, 1955 Tenn. LEXIS 445 (1955).

2. Sufficiency of Warrant.

Mere fact criminal charge involved conspiracy was insufficient to relieve demanding state of duty of complying with T.C.A. § 40-9-113. Earhart v. Hicks, 656 S.W.2d 873, 1983 Tenn. Crim. App. LEXIS 404 (Tenn. Crim. App. 1983).

Extradition documents, as well as the proof, must show that the accused committed acts in the asylum state or a third state that resulted in a crime in the demanding state. Earhart v. Hicks, 656 S.W.2d 873, 1983 Tenn. Crim. App. LEXIS 404 (Tenn. Crim. App. 1983).

3. Defendant Not Present in Foreign State.

Where Alabama governor's request for extradition specified that defendant was not physically present in the state of Alabama when the crime was committed, T.C.A. § 40-9-113 was applicable, and the fact that defendant was not in Alabama when he allegedly violated the Alabama Securities Act would afford him no defense in an extradition proceeding. Ratliff v. Thomas, 652 S.W.2d 919, 1983 Tenn. Crim. App. LEXIS 342 (Tenn. Crim. App. 1983).

40-9-114. Guilt or innocence not inquired into.

The guilt or innocence of the accused as to the crime of which the accused is charged may not be inquired into by the governor or in any proceeding after the demand for extradition accompanied by a charge of crime in legal form as provided in this chapter shall have been presented to the governor, except as it may be involved in identifying the person held as the person charged with the crime.

Acts 1951, ch. 240, § 20 (Williams, § 11935.20); T.C.A. (orig. ed.), § 40-1014.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 2.43.

NOTES TO DECISIONS

1. Habeas Corpus Relief.

Statements by petitioner seeking habeas corpus writ that he had been kidnapped and that his extradition was merely for collection of private debts did not warrant conclusion that extradition act had not been complied with. State ex rel. Hourigan v. Robinson, 195 Tenn. 101, 257 S.W.2d 9, 1953 Tenn. LEXIS 306 (1953).

Under this section which implements U.S. Const., art. 4, § 2, where a defendant filed a habeas corpus petition contesting extradition to another state, the issuance of this rendition warrant created a prima facie case that the petitioner was lawfully charged with crime in the demanding state and fled therefrom, and, although he may show that he was not in the demanding state at the time of the alleged crime, to procure his release under habeas corpus he must show such absence beyond a reasonable doubt; and the court of the asylum state cannot consider technical objections to the charge in the demanding state, but must leave the petitioner to his rights to raise such objections in the proceedings in the demanding state. McLaughlin v. State, 512 S.W.2d 657, 1974 Tenn. Crim. App. LEXIS 291 (Tenn. Crim. App. 1974); State ex rel. Ezell v. Evatt, 512 S.W.2d 673, 1974 Tenn. Crim. App. LEXIS 294 (Tenn. Crim. App. 1974).

Trial court's finding that petitioners should be discharged and not extradited because the proof showed they did not commit acts intentionally resulting in crime in the demanding state converted the habeas corpus proceedings into a mini-trial on the substantive issues and is in conflict with the statutory proscription in T.C.A. § 40-9-114. Earhart v. Hicks, 656 S.W.2d 873, 1983 Tenn. Crim. App. LEXIS 404 (Tenn. Crim. App. 1983).

In habeas corpus proceedings instituted to determine the validity of the petitioner's custody where petitioner is held in connection with an extradition proceeding, the asylum state is limited to consideration of: (1) Whether the extradition documents are in order on their face; (2) Whether the demanding state has charged the petitioner with a crime; (3) Whether the person named in the request for extradition is the petitioner before the court; and (4) Whether the petitioner was in the demanding state at the time the criminal offense was committed. Guilt or innocence of the fugitive is not an issue in these proceedings. Elliott v. Johnson, 816 S.W.2d 332, 1991 Tenn. Crim. App. LEXIS 191 (Tenn. Crim. App. 1991), appeal denied, — S.W.2d —, 1991 Tenn. LEXIS 285 (Tenn. July 1, 1991).

Decisions Under Prior Law

1. In General.

In order to defeat extradition proceedings upon the ground that the party charged was not a fugitive from justice, his absence at or about the time of the crime must be shown beyond a reasonable doubt. State ex rel. Brown v. Grosch, 177 Tenn. 619, 152 S.W.2d 239, 1940 Tenn. LEXIS 61 (1941).

2. Habeas Corpus.

In habeas corpus proceeding to test validity of an extradition warrant, the only questions open to consideration are whether petitioners are fugitives and whether they are charged with crime in demanding state, but the sufficiency of the indictment, as technical pleading, in demanding state will not be inquired into, nor validity of the foreign judgment. State ex rel. Lea v. Brown, 166 Tenn. 669, 64 S.W.2d 841, 1933 Tenn. LEXIS 135, 91 A.L.R. 1246 (1933), cert. denied, Tennessee ex rel. Lea v. Brown, 292 U.S. 638, 54 S. Ct. 717, 78 L. Ed. 1491, 1934 U.S. LEXIS 881 (1934).

3. New Charges After Warrant Issued.

The filing of new and additional charges and the substitution of new indictments for those to which nonresident defendants had entered their voluntary appearances violated no constitutional right of relators testing validity of warrant issued by the governor of this state. State ex rel. Lea v. Brown, 166 Tenn. 669, 64 S.W.2d 841, 1933 Tenn. LEXIS 135, 91 A.L.R. 1246 (1933), cert. denied, Tennessee ex rel. Lea v. Brown, 292 U.S. 638, 54 S. Ct. 717, 78 L. Ed. 1491, 1934 U.S. LEXIS 881 (1934).

40-9-115. Demand for person held on charge of crime in Tennessee.

If a criminal prosecution has been instituted against the person under the laws of this state and is still pending, the governor, at the governor's discretion, either may surrender the person on the demand of the executive authority of another state, or may hold the person until the person has been tried and discharged, or convicted and punished in this state.

Acts 1951, ch. 240, § 19 (Williams, § 11935.19); T.C.A. (orig. ed.), § 40-1015.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 2.18.

NOTES TO DECISIONS

1. Failure to Comply.

County sheriff's deputy's failure to comply with Tennessee governor's warrant requirements by not serving upon defendant until after defendant was paroled from a Tennessee sentence, did not justify dismissal of governor's warrant and defendant's release from custody without extradition to the other state. Yates v. Gilless, 841 S.W.2d 332, 1992 Tenn. Crim. App. LEXIS 446 (Tenn. Crim. App. 1992).

Decisions Under Prior Law

1. Review of Governor's Action.

The determination of whether a person charged with a crime in this state as well as in demanding state shall be tried here or sent to the sister state for trial rests with the executive branch of the government and not with the judicial branch, and the action of the governor in waiving the jurisdiction of this state is binding upon the courts and may not be reviewed. State ex rel. Brown v. Grosch, 177 Tenn. 619, 152 S.W.2d 239, 1940 Tenn. LEXIS 61 (1941).

Collateral References.

Extradition of fugitive in custody under charge in asylum state. 42 A.L.R. 585.

40-9-116. Issuance of warrant of arrest.

If the governor decides that the demand should be complied with, the governor shall sign a warrant of arrest, which shall be sealed with the state seal, and be directed to a sheriff, marshal, coroner or other person whom the governor may think fit to entrust with the execution of the arrest warrant. The warrant must substantially recite the facts necessary to the validity of its issuance.

Acts 1951, ch. 240, § 7 (Williams, § 11935.7); T.C.A. (orig. ed.), § 40-1016.

Cross-References. Persons whose compensation is contingent upon issuance or nonissuance are prohibited from issuing a search warrant, an arrest warrant or mittimus, § 40-5-106.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 2.19.

Tennessee Jurisprudence, 13 Tenn. Juris., Extradition, § 3.

NOTES TO DECISIONS

1. Constitutionality.

Provision for issuance of warrant of arrest by governor pursuant to extradition request of a sister state was consistent with the United States Constitution and statutes, was an executive function and did not violate Tennessee constitutional provisions relative to separation of powers. State ex rel. Wiley v. Waggoner, 508 S.W.2d 535, 1973 Tenn. LEXIS 407 (Tenn. 1973).

2. Origin of Authority.

Extradition does not rest on state statutes but originates in the United States Constitution as implemented by congressional enactment and state legislation on the subject is valid only insofar as it is ancillary to and in aid of federal requirements. State ex rel. Wiley v. Waggoner, 508 S.W.2d 535, 1973 Tenn. LEXIS 407 (Tenn. 1973).

3. Immaterial Defect.

A warrant of rendition authorizing Kentucky's agent to arrest the fugitive, although directing Tennessee authorities in general to apprehend him and deliver him to the Kentucky agent, was not materially defective. State ex rel. Jones v. Gann, 584 S.W.2d 235, 1979 Tenn. Crim. App. LEXIS 260 (Tenn. Crim. App. 1979).

4. Effect of Defective Warrant.

Even though warrant of governor of Tennessee was defective in authorizing a Kentucky sheriff to apprehend petitioner, it had no bearing on determinative question in habeas corpus proceeding as to whether petitioner was under indictment in Kentucky and was a fugitive from justice. State ex rel. Hourigan v. Robinson, 195 Tenn. 101, 257 S.W.2d 9, 1953 Tenn. LEXIS 306 (1953).

Decisions Under Prior Law

1. Authority of Governor.

Personal discretion of governor is required in the issuance of a warrant, so that a fugitive was entitled to a discharge where the warrant under which he was held was issued by governor's secretary, in governor's name, while governor was absent from the state. State ex rel. Redwine v. Selman, 157 Tenn. 641, 12 S.W.2d 368, 1928 Tenn. LEXIS 232 (1928).

2. Presumptions from Issuance of Warrant.

The issuance of the warrant by the governor of this state creates a prima facie case that the alleged fugitive was lawfully charged with a crime in the demanding state and that he is a fugitive from justice of that state. State ex rel. Brown v. Grosch, 177 Tenn. 619, 152 S.W.2d 239, 1940 Tenn. LEXIS 61 (1941).

3. Insufficiency of Warrant.

Prisoner held under extradition proceedings was discharged, on appeal in habeas corpus proceedings, for insufficiency of governor's warrant. State ex rel. Sivley v. Hackett, 161 Tenn. 602, 33 S.W.2d 422, 1930 Tenn. LEXIS 45 (1930).

If persons, held in custody under a warrant of the governor of Tennessee issued pursuant to a demand of the governor of North Carolina for their return to that state as fugitives from justice, were not fugitives within the meaning of this section and the United States Constitution and statutes, they were entitled to be discharged in a habeas corpus proceeding by them to test the validity of the governor's warrant. State ex rel. Lea v. Brown, 166 Tenn. 669, 64 S.W.2d 841, 1933 Tenn. LEXIS 135, 91 A.L.R. 1246 (1933), cert. denied, Tennessee ex rel. Lea v. Brown, 292 U.S. 638, 54 S. Ct. 717, 78 L. Ed. 1491, 1934 U.S. LEXIS 881 (1934).

40-9-117. Recall or reissuance of warrant.

The governor may recall the governor's warrant of arrest, or may issue another warrant whenever the governor deems proper.

Acts 1951, ch. 240, § 21 (Williams, § 11935.21); T.C.A. (orig. ed.), § 40-1017.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 2.19, 2.45.

40-9-118. Authority given by governor's warrant.

The warrant shall authorize the officer or other person to whom directed to arrest the accused at any place where the accused may be found within the state and to command the aid of all sheriffs and other peace officers in the execution of the warrant, and to deliver the accused, subject to this chapter, to the duly authorized agent of the demanding state.
Whether the prisoner or fugitive so charged is bound to appear before any court, committed to jail or discharged, any person authorized by the warrant of the governor of this state may at any time take the accused person or fugitive into custody, and the apprehension shall immediately be a discharge of the bond or other proceeding, if there is one pending in any court of this state.
Every officer or other person empowered to make the arrest shall have the same authority in arresting the accused to command assistance in the arrest, as sheriffs and other officers have by law in the execution of any criminal process directed to them, with the same penalties against those who refuse their assistance.

Acts 1951, ch. 240, §§ 8, 9 (Williams, §§ 11935.8, 11935.9); 1965, ch. 238, § 2; T.C.A. (orig. ed.), §§ 40-1018, 40-1019.

Cross-References. Authority in executing warrants generally, §§ 40-6-210, 40-6-211, 40-6-212, 40-6-213.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 2.45.

Tennessee Jurisprudence, 13 Tenn. Juris., Extradition, § 3.

NOTES TO DECISIONS

1. Immaterial Defect.

40-9-119. Information to person arrested — Habeas corpus.

No person arrested upon a warrant shall be delivered over to the agent whom the executive authority demanding the person has appointed to receive the person, unless the person has been informed of the demand made for surrender and of the crime with which the person is charged, and that the person has the right to demand legal counsel. If the prisoner, the prisoner's friends or counsel shall state that the person or they desire to test the legality of the arrest, the prisoner shall be taken forthwith before a judge of a court of record in this state, who shall fix a reasonable time to be allowed the prisoner within which to apply for a writ of habeas corpus. When the writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the public prosecuting officer of the county in which the arrest is made and in which the accused is in custody, and to the agent of the demanding state.

Acts 1951, ch. 240, § 10 (Williams, § 11935.10); T.C.A. (orig. ed.), § 40-1020.

Cross-References. Habeas corpus proceedings, title 29, ch. 21.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 2.19, 2.39, 2.40, 2.41, 2.45, 2.83, 2.84.

Tennessee Jurisprudence, 14 Tenn. Juris., Habeas Corpus, § 7.

NOTES TO DECISIONS

1. Nature of Proceedings.

Extradition proceedings are summary proceedings of a civil nature designed to test whether a rendition warrant, legal process issued by the governor of the asylum state which mandates that the defendant be arrested and turned over to agents of demanding state, is valid. State ex rel. Sneed v. Long, 871 S.W.2d 148, 1994 Tenn. LEXIS 12 (Tenn. 1994).

2. Information to Person Arrested.

Extradition warrant was not defective in that it recited that defendant was charged with embezzlement in Arkansas while indictment allegedly recited facts showing that the offense was more closely related to fraudulent breach of trust where indictment as contained in record was sufficient to fully inform accused of nature of charges against him. State ex rel. Nunn v. Bradshaw, 207 Tenn. 384, 340 S.W.2d 884, 1960 Tenn. LEXIS 468 (1960).

3. Exhaustion.

Exhaustion of state remedies requirement for applying to a federal court applies to extradition proceedings. Horne v. Wilson, 306 F. Supp. 753, 1969 U.S. Dist. LEXIS 8825 (E.D. Tenn. 1969).

4. Failure to Return to Extraditing State.

Where defendant was wanted in Alabama on a felony conviction, but he returned instead to Tennessee, whereupon governors of Alabama and Tennessee signed warrants for defendant's detention and extradition to Alabama, defendant's failure to return to Alabama after court had upheld validity of warrants in a habeas corpus hearing pursuant to this section made him a fugitive from justice. Burnette v. State, 536 S.W.2d 353, 1976 Tenn. Crim. App. LEXIS 403 (Tenn. Crim. App. 1976), cert. denied, Burnette v. Tennessee, 429 U.S. 858, 97 S. Ct. 157, 50 L. Ed. 2d 135, 1976 U.S. LEXIS 2879 (1976).

5. Scope of Review.

Once extradition is granted, judicial review by habeas corpus is limited to consideration of: (1) Whether the extradition documents are in order on their face; (2) Whether the demanding state has charged the petitioner with a crime; (3) Whether the person named in the request for extradition is the petitioner before the court; and (4) Whether the petitioner is a fugitive. State ex rel. Jones v. Gann, 584 S.W.2d 235, 1979 Tenn. Crim. App. LEXIS 260 (Tenn. Crim. App. 1979), citing Michigan v. Doran, 439 U.S. 282, 99 S. Ct. 530, 58 L. Ed. 2d 521, 1978 U.S. LEXIS 147 (1978); State ex rel. Sneed v. Long, 871 S.W.2d 148, 1994 Tenn. LEXIS 12 (Tenn. 1994).

Petitioner contesting extradition through habeas corpus could not raise issues involving possible constitutional violations committed by asylum state. State ex rel. Sneed v. Long, 871 S.W.2d 148, 1994 Tenn. LEXIS 12 (Tenn. 1994).

6. Waiver.

When a person accused in one state of being a fugitive from another state waives by agreement his right to resist extradition and the accused person voluntarily accompanies an officer into the demanding state without requiring the use of extradition papers, that person may not object to the regularity of the extradition process or claim it was not carried forward in good faith; after surrendering himself to the receiving state, he cannot attack, in the receiving state, the method of surrender. Whittaker v. Ramsey, 513 F. Supp. 423, 1980 U.S. Dist. LEXIS 16616 (E.D. Tenn. 1980), aff'd without opinion, 657 F.2d 270, 1981 U.S. App. LEXIS 13718 (6th Cir. 1981).

7. Evidence.

A person may show that he was not in the requesting state at the time of the crime, but this showing must be beyond a reasonable doubt. Where evidence is merely contradicting as to his presence, he has not sustained the burden. State v. Whitt, 753 S.W.2d 369, 1988 Tenn. Crim. App. LEXIS 314 (Tenn. Crim. App. 1988).

40-9-120. Confinement of prisoner en route.

The officer or person executing the governor's warrant of arrest or the agent of the demanding state to whom the prisoner may have been delivered may, when necessary, confine the prisoner in the jail of any county or city through which the prisoner may pass. The keeper of the county or city jail must receive and safely keep the prisoner until the person having charge of the prisoner is ready to proceed on the person's route, that person being chargeable with the expense of keeping.

Acts 1951, ch. 240, § 12 (Williams, § 11935.12); T.C.A. (orig. ed.), § 40-1022.

40-9-121. Demand for fugitive from Tennessee.

The governor of this state may demand of the executive authority of any other state or territory, any fugitive from justice, or other person charged with treason, felony or other crime in this state and may appoint an agent to demand and receive the person and return the person to this state.
When it is desired to have returned to this state a person charged in this state with a crime, and the person is imprisoned or is held under criminal proceedings then pending against the person in another state or territory, or the District of Columbia, the governor of this state may agree with the executive authority of the other state or territory for the extradition of the person before the conclusion of the proceedings or the person's term of sentence in the other state or territory, or the District of Columbia, upon condition that the person be returned to the other state or territory at the expense of this state as soon as the prosecution in this state is terminated.
The governor of this state may also surrender on demand of the executive authority of any other state or territory, any person in this state who is charged in the manner provided in this chapter with having violated the laws of the state or territory whose executive authority is making the demand, even though the person left the demanding state involuntarily.

Code 1858, §§ 185, 5340 (deriv. Acts 1847-1848, ch. 121); Shan., §§ 235, 7318; Code 1932, §§ 177, 11920; mod. C. Supp. 1950, § 11924.1; Acts 1967, ch. 270, § 1; 1968, ch. 618, § 1; T.C.A. (orig. ed.), § 40-1023.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 2.3, 2.86.

Law Reviews.

Recent Developments in Tennessee and Federal Procedure (Donald F. Paine), 36 Tenn. L. Rev. 276 (1969).

NOTES TO DECISIONS

1. Speedy Trial.

Where state prisoner was indicted in Tennessee in 1968 for a crime on which he was arrested in 1960 and was in another state's prison from 1960 to 1968, fact that two alibi witnesses died during eight years between arrest and indictment was sufficient to constitute prejudice so as to make eight years between arrest and indictment a denial of defendant's right to a speedy trial. Edmaiston v. Neil, 452 F.2d 494, 1971 U.S. App. LEXIS 6775 (6th Cir. Tenn. 1971).

2. Forcible Removal to State — Defense.

A defendant indicted for a crime committed in this state cannot escape trial and punishment upon a plea that he was a citizen of another state, where he had his residence and domicile, and where he was forcibly arrested by an armed body of men of this state, and brought here by force, and without authority from his state; that the governor of his state has demanded of the governor of this state his release, which has been refused, and praying that he be discharged. Tartar v. State, 2 Shan. 418 (1877).

The court cannot inquire into the manner and place of defendant's arrest, nor how, or when, or in what manner the presence of the accused, within the jurisdiction of the court, was brought about. Tartar v. State, 2 Shan. 418 (1877).

3. Effect of Return to Another State.

Defendant's return to Kentucky by Tennessee authorities following his conviction in Tennessee did not by itself operate as an implied pardon or commutation of this Tennessee sentence. Carter v. State, 600 S.W.2d 750, 1980 Tenn. Crim. App. LEXIS 278 (Tenn. Crim. App. 1980).

40-9-122. Warrant to agent to return prisoner.

Whenever the governor of this state demands a person charged with a crime in this state from the chief executive of any other state, or from the chief justice or an associate justice of the supreme court of the District of Columbia authorized to receive such demand under the laws of the United States, the governor shall issue a warrant under the seal of this state, to some agent, commanding the agent to receive the person so charged if delivered to the agent and convey the person to the proper officer of the county in this state in which the offense was committed.

Acts 1951, ch. 240, § 22 (Williams, § 11935.22); T.C.A. (orig. ed.), § 40-1024.

40-9-123. Application for requisition of person charged with crime.

When the return to this state of a person charged with a crime in this state is required, the district attorney general, for the county in which the offense is committed, shall present to the governor written application for a requisition for the return of the person charged. The application shall state the name of the person so charged; the crime charged against the person; the approximate time, place and circumstances of its committal; and the state in which the accused is believed to be, including the location of the accused therein at the time the application is made. The application shall also certify that in the opinion of the district attorney general the ends of justice require the arrest and return of the accused to this state for trial and that the proceeding is not instituted to enforce a private claim.

Acts 1951, ch. 240, § 23 (Williams, § 11935.23); modified; T.C.A. (orig. ed.), § 40-1025.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 2.8, 2.9, 2.10, 2.86.

40-9-124. Application for requisition of escapee, bail jumper, parole violator, probationer, or community corrections violator.

When the return to this state is required for a person who has been convicted of a felony in this state and has escaped from confinement, broken the terms of the person's bail, court-ordered probation, probation pursuant to § 40-35-501(a)(3), or has escaped from or broken the terms of a sentence to any community based alternative to incarceration pursuant to chapter 36 of this title, the district attorney general for the county in which the offense was committed, the director of probation and parole, or the warden of the institution or sheriff of the county from which the escape was made, shall present to the governor a written application for a requisition for the return of the escaped person, in which application shall be stated the name of the person, the crime of which the person was convicted, the circumstances of the person's escape from confinement or placement in the community-based alternative to incarceration, or of the breach of the terms of the person's bail, any form of probation, or parole, and the state in which the person is believed to be, including the location of the person therein at the time application is made. In the case of an application for requisition for escape from, or a breach in the terms of a sentence to, a community based alternative to incarceration, only the district attorney general for the county in which the original offense was committed or the county in which the escape occurred shall have the authority to file the application with the governor.

C. Supp. 1950, § 11924.2; modified; T.C.A. (orig. ed.), § 40-1026; Acts 1991, ch. 241, § 1; 2012, ch. 727, § 9.

Compiler's Notes. For the preamble to the act concerning transfers of certain functions relating to probation and parole services and the community correction grant program from the board of probation and parole to the department of correction, please refer to Acts 2012, ch. 727.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended this section, shall be fully accomplished on or before January 1, 2013.

Cross-References. Supervision of adult offenders, title 40, ch. 28, part 4.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 2.3, 2.9.

40-9-125. Form and contents of application.

The application shall be verified by affidavit, shall be executed in triplicate and shall be accompanied by three (3) certified copies of the indictment returned, or information and affidavit filed, or of the complaint made to the magistrate, stating the offense with which the accused is charged.
The prosecuting officer may also attach any other affidavits and other documents in triplicate as the officer deems proper to be submitted with the application.
One (1) copy of the application with the action of the governor indicated by endorsement thereof, and one (1) of the certified copies of the indictment or complaint or information and affidavit, shall be filed in the office of the secretary of state to remain of record in that office.
The other two (2) copies of all papers shall be forwarded with the governor's requisition.

Acts 1951, ch. 240, § 23 (Williams, § 11935.23); 1968, ch. 618, § 2; T.C.A. (orig. ed.), § 40-1027.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 2.11, 2.15.

40-9-126. Expenses paid by state.

1. The demanding agent appointed by the governor under § 40-9-121 to return any fugitive from justice under this chapter to this state for trial in the proper county in which the offense is alleged to have been committed or to other proper official or prison, as the case may be, is authorized to employ a guard or escort sufficient to so return the fugitive from justice to this state and contract the other expenses as are absolutely required in performing the duties of the agent.
2. In no event shall more than one (1) person be named or designated as demanding agent in any extradition proceeding and only one (1) person shall be paid expenses in returning any fugitive to this state.
3. An alternate agent may be named and designated, who shall be authorized to go and return the fugitive only when the original demanding agent named or designated is unable to make the trip and return the fugitive.
4. No guard or escort shall be authorized, and no expenses for a guard or escort shall be paid, unless a request for a guard or escort is set forth and certified to by the district attorney general in the written application for the issuance of requisition papers as now authorized under §§ 40-9-123 — 40-9-125.
1. Except as provided in § 40-9-127, all of the costs and expenses incurred in the return of any fugitive from justice to this state under this chapter shall be paid out of the treasury of the state of Tennessee on the certificate of the governor by the warrant of the commissioner of finance and administration.
2. The costs and expenses incurred, subsequent to the issuance of the warrant or requisition by the governor of Tennessee when the demanding agent is unable to return the fugitive from justice to this state under this chapter, after making a bona fide effort to do so, shall be paid in the manner provided for in subdivision (b)(1).
1. The mileage reimbursement for the demanding agent who returns the fugitive shall be the same as the reimbursement received by a state employee using a personal vehicle for the convenience of the state, in accordance with the comprehensive travel regulations promulgated by the commissioner of finance and administration and approved by the attorney general and reporter and all other actual and necessary expenses.
2. “All other actual and necessary expenses” means and includes the actual expenses for meals and lodging for the demanding agent, alternate agent, guard, escort and the fugitive, plus any other actual expense that the demanding agent might be required to pay in the responding state as a prerequisite to the release of custody of the fugitive to the demanding agent. It also means and includes other items and the costs of those items as now allowed or which may be allowed regular employees of the state of Tennessee under current or subsequent state travel regulations.
3. The mileage travel allowance shall include all miles traveled both inside or outside this state. No separate travel allowance shall be allowed any guard, escort or fugitive unless the travel is made by public transportation and in that event the actual cost of the public transportation will be reimbursed to the agent, guard or escort.
4. No mileage travel allowance will be paid unless the personal automobile of the agent is actually used in travel.
5. Any municipality or other governmental agency in this state which may own, lease or contract for the use of an airplane for the purpose of air travel facilities, and the airplane facilities are used in going after and returning any fugitive from another state, shall be reimbursed the cost of the plane fare for the demanding agent, alternate agent, guard and fugitive in the amount as may be charged by any regular commercial airline, plus other expenses as may be necessary for meals, lodging and the actual expenses incurred in going to and from the airport.
1. The demanding agent shall make out an itemized statement of the agent's actual and necessary expenses as to the number of miles traveled, including the compensation to be paid any guard and swear to those expenses.
2. The itemized statement in subdivision (d)(1) shall be submitted to the governor of this state as a condition precedent to the certificate by the governor directing the payment of the account.
3. Payment to the guard shall be by separate warrant based on the certificate of the governor.

Code 1858, §§ 5341, 5342 (deriv. Acts 1847-1848, ch. 121); Acts 1901, ch. 96, §§ 1, 2; 1905, ch. 447, § 1; Shan., §§ 7319-7320 a1, a2; Code 1932, §§ 11921-11924; Acts 1939, ch. 70, § 1; mod. C. Supp. 1950, § 11924.3; Acts 1951, ch. 34, § 1; modified; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1961, ch. 97, § 3; Acts 1961, ch. 119, §§ 1, 2; 1963, ch. 121, § 1; 1971, ch. 244, § 1; T.C.A. (orig. ed.), §§ 40-1028—40-1031; Acts 1991, ch. 107, § 1.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 2.20.

NOTES TO DECISIONS

1. Averment of Time.

Indictment which charged that violation of Alabama Securities Act was committed within five years before the finding of the indictment satisfied the requirements that there should be a sufficiently definite averment of time in the indictment to show that the offense was committed within the statutory limit where the applicable statute of limitations was five years. Ratliff v. Thomas, 652 S.W.2d 919, 1983 Tenn. Crim. App. LEXIS 342 (Tenn. Crim. App. 1983).

40-9-127. Expenses paid by county.

When a warrant is sworn before any general sessions judge or any indictment returned by a grand jury, charging any person with a felonious crime and the person has absconded beyond the borders of this state, and on authority of the district attorney general, then the county mayor of the county in which the crime has been committed shall pay to the sheriff or to one (1) officer named by the district attorney general of the county who has gone for the person the same mileage allowance received by a state employee using a personal vehicle for the convenience of the state in accordance with the comprehensive travel regulations promulgated by the commissioner of finance and administration and approved by the attorney general and reporter for each mile necessarily traveled in going and coming, both inside and outside the state of Tennessee, and reasonable expenses for meals and lodging. The person so designated shall be known as the “demanding agent,” and shall be empowered to contract with another person to accompany the demanding agent on the trip and to serve as guard, the person having been first approved in writing by the authorities who appointed the demanding agent. Only the demanding agent shall be paid the mileage allowance, as provided in this subsection (a), with only the actual expenses of the guard being paid. When the guard travels with the demanding agent in the personal automobile of the demanding agent, or in any automobile belonging to any political subdivision or agency, no allowance will be granted the guard for transportation expense, and when commercial transportation is used, then only the actual cost of fare.
The demanding agent shall be reimbursed the actual money expended by the demanding agent for transportation costs of the fugitive with no reimbursement being allowed when the fugitive is returned in the personal automobile of the demanding agent and only actual cost of fare for the fugitive when a commercial carrier is used. The demanding agent shall further be reimbursed reasonable expenses of meals and lodging for the fugitive, plus any and all costs, paid by the agent, that are imposed by the responding state as a prerequisite to release of custody of the fugitive to the demanding agent.
Upon the sheriff's or named officer's return, the sheriff or officer shall give to each official named in this section an itemized statement supported with receipts for each item of expense and make a sworn affidavit covering all expenditures. The receipt of the sheriff or named officer so returning the fugitive charged with a felonious crime shall be a voucher for the amount thereof of the chair of the board of county commissioners in the sheriff's settlement with the county; provided, that no designation by the county mayor shall be necessary to authorize the sheriff or named officer to act and draw pay under this section, and that the county mayor shall have no power to designate any person. The officers named by the district attorney general of the county shall not exceed two (2); one (1) to be designated as demanding agent and one (1) to be designated as guard, for each fugitive returned under this section.
In this section, “reasonable expenses” are determined to be in close cost proximity as allowed state employees in the pamphlet, “State of Tennessee — Comprehensive Travel Regulations.”
This section shall apply only when the case is actually tried by a jury, or the defendant pleads guilty.
All sums paid by any county or the county mayor, to the sheriff or named officer for returning an absconding felon shall be certified to the clerk of the criminal court of the county and all sums then to be assessed as part of the costs of the court in the case.

Acts 1953, ch. 176, § 1 (Williams, § 11923.1); 1957, ch. 271, § 1; 1961, ch. 119, § 3; 1963, ch. 359, § 1; 1971, ch. 244, § 2; 1977, ch. 307, § 1; impl. am. Acts 1978, ch. 934, §§ 16, 36; T.C.A. (orig. ed.), § 40-1032; Acts 1991, ch. 107, § 2; 2003, ch. 90, § 2.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 2.20.

40-9-128. Trial for crimes not specified in requisition.

After a person has been brought back to this state upon extradition proceedings, the person may be tried in this state for other crimes which the person may be charged with having committed here, as well as that specified in the requisition for the person's extradition.

Acts 1951, ch. 240, § 24 (Williams, § 11935.24); T.C.A. (orig. ed.), § 40-1033.

Textbooks. Tennessee Jurisprudence, 13 Tenn. Juris., Extradition, § 3.

40-9-129. Construction of chapter.

This chapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.

Acts 1951, ch. 240, § 25 (Williams, § 11935.25); T.C.A. (orig. ed.), § 40-1034.

40-9-130. Waiver.

Nothing in this chapter shall be deemed to constitute a waiver by this state of its right, power or privilege to try a demanded person for a crime committed within this state, or of its right, power or privilege to regain custody of a person by extradition proceedings or otherwise for the purpose of trial, sentence or punishment for any crime committed within this state, nor shall any proceedings had under this chapter which result in, or fail to result in, extradition be deemed a waiver by this state of any of its rights, privileges or jurisdiction in any way whatsoever.
In the event that the return of a person imprisoned or held under criminal proceedings pending against the person in this state, is requested by another state or territory, by a demand made upon the governor of this state by the executive authority of the other state or territory in the manner provided in this chapter, the governor of this state may, without waiving the rights, power, privileges or jurisdiction of this state in any way, enter into an agreement with the executive authority of the other state or territory for the extradition of the person to the other state or territory, before the conclusion of such proceedings or the person's term of sentence in this state, with or without the condition that at a time agreed upon by the governor of this state and the executive authority of the other state or territory, the person returned to the other state or territory shall be returned to this state. This agreement shall provide that the expense of returning a person to the other state or territory and of returning a person from the other state or territory to this state, if applicable, shall be paid by the other state or territory.
Any waiver of extradition from this state to another state or territory for the purposes of trial, sentence or punishment in the other state or territory, made by a person imprisoned or held under criminal proceedings pending against the person in this state, shall include a waiver of extradition for the return of a person to this state from the other state or territory for trial, sentence or punishment in this state on the charges against the person at the time of the execution of this waiver, at any time agreed upon by the governor of this state and executive authority of the other state or territory, at the time of this waiver or any later time.

Acts 1968, ch. 618, § 3; T.C.A., § 40-1035.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 2.41.

NOTES TO DECISIONS

1. Construction.

2. Waiver Not Found.

The governor's signing of a rendition warrant ordering defendant's return to a state seeking extradition did not waive the state's right to exercise jurisdiction over the defendant and place him on trial for charges pending in the state. Johns v. Bowlen, 942 S.W.2d 544, 1996 Tenn. Crim. App. LEXIS 352 (Tenn. Crim. App. 1996).

3. Disapproval of Implied Waivers.

This section indicates the state's disapproval of implied waivers and pardons. Carter v. State, 600 S.W.2d 750, 1980 Tenn. Crim. App. LEXIS 278 (Tenn. Crim. App. 1980).

Chapter 10
Preliminary Examination

40-10-101. Notice of charge and right to counsel.

When the defendant is brought before a magistrate upon arrest, either with or without a warrant, on a charge of having committed a public offense, the magistrate shall immediately inform the defendant of the offense with which the defendant is charged, and of the defendant's right to aid of counsel in every stage of the proceedings.

Code 1858, § 5048; Shan., § 7008; Code 1932, § 11547; T.C.A. (orig. ed.), § 40-1101.

Cross-References. Examination of defendant arrested by private person, § 40-7-113.

Examination of persons taken in fresh pursuit by officers from other states, § 40-7-204.

Officials designated as magistrates, § 40-1-106.

Right to counsel, Tenn. Const., art. 1, § 9; U.S. Const., Amend 6.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, §§ 19, 20; 11 Tenn. Juris., Evidence, § 180.

Law Reviews.

A Noble Ideal Whose Time Has Come (Penny J. White), 18 Mem. St. U.L. Rev. 223 (1989).

NOTES TO DECISIONS

1. Purpose.

This section does not require that a prisoner be taken immediately before a committing magistrate but merely prescribes what shall take place at the time the prisoner is taken before the magistrate. State ex rel. Reed v. Heer, 218 Tenn. 338, 403 S.W.2d 310, 1966 Tenn. LEXIS 640 (1966); State ex rel. Leighton v. Henderson, 1 Tenn. Crim. App. 598, 448 S.W.2d 82, 1969 Tenn. Crim. App. LEXIS 343 (Tenn. Crim. App. 1969).

2. Duty of Magistrate.

The obligations imposed by this section are placed on the magistrate and not upon law enforcement officials. Van Zandt v. State, 218 Tenn. 187, 402 S.W.2d 130, 1966 Tenn. LEXIS 637 (1966).

3. Right of Counsel.

Preliminary hearing before magistrate was not a critical stage in proceeding and fact that defendant was not represented by counsel at that time did not deny defendant's constitutional rights particularly in view of fact that no indictment was entered at that time, defendant entered plea of not guilty and testimony was to the effect that defendant was advised of his right to counsel and to remain silent. State ex rel. Reed v. Heer, 218 Tenn. 338, 403 S.W.2d 310, 1966 Tenn. LEXIS 640 (1966).

Where after defendant was advised of right of counsel at preliminary hearing he entered plea of guilty without conferring with an attorney, defendant's rights were not prejudiced thereby, especially in view of fact that he entered similar plea of guilty at main hearing after having had court appointed attorneys assigned to his defense. State ex rel. Callahan v. Henderson, 220 Tenn. 417, 417 S.W.2d 789, 1967 Tenn. LEXIS 423 (1967).

4. Noncompliance Affecting Admissibility.

5. —Plea of Guilty.

Where a magistrate did not follow the mandate of this section, his testimony that he read the warrant to the defendant when the committing trial was called and asked him whether he was guilty or not guilty, and that defendant had stated that he pleaded guilty, was held incompetent. Cross v. State, 142 Tenn. 510, 221 S.W. 489, 1919 Tenn. LEXIS 78, 9 A.L.R. 1354 (1920).

6. —Statements and Confessions.

Where the justice of the peace failed to advise prisoners arraigned before him on charge of murder of their right to counsel, or of their right to make a statement in reference to the charges against them, or of their right to waive the making of such a statement and where such justice of the peace did not warn such prisoners that any statements they made could be used against them, statements and confessions by the prisoners at such preliminary hearing were inadmissible before the trial court as was the fact that the prisoners failed to deny incriminating testimony given against them at such preliminary hearing. Polk v. State, 170 Tenn. 270, 94 S.W.2d 394, 1936 Tenn. LEXIS 12 (1936).

Statement of defendant, an uneducated man, to squire concerning killing where squire had not advised defendant of his constitutional rights was inadmissible in trial of defendant charged with voluntary manslaughter. Giles v. State, 185 Tenn. 429, 206 S.W.2d 412, 1947 Tenn. LEXIS 348 (1947).

40-10-102. Time allowed to procure counsel.

The magistrate shall allow the defendant a reasonable time to send for counsel, and, if necessary, shall adjourn the examination for that purpose.

Code 1858, § 5049; Shan., § 7009; Code 1932, § 11548; T.C.A. (orig. ed.), § 40-1102.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 7.29, 24.84.

Tennessee Jurisprudence, 11 Tenn. Juris., Evidence, § 180.

Law Reviews.

The Right to Counsel in Criminal Prosecutions (Stephen M. Worsham), 30 Tenn. L. Rev. 420.

NOTES TO DECISIONS

1. Duty of Magistrate.

The obligations imposed by this section are placed on the magistrate and not upon law enforcement officials. Van Zandt v. State, 218 Tenn. 187, 402 S.W.2d 130, 1966 Tenn. LEXIS 637 (1966).

40-10-103. Separation and exclusion of witnesses.

The magistrate may make any orders on the examination, in reference to keeping the witnesses separate and apart, or excluding the witnesses during the examination of other witnesses or of the defendant, that the magistrate may think best for the attainment of justice, and shall, on demand of either party, put all witnesses under the rule.

Code 1858, § 5061; Shan., § 7020; Code 1932, § 11559; T.C.A. (orig. ed.), § 40-1114.

NOTES TO DECISIONS

1. Demand by Party — Effect.

The parties as a matter of right can request that witnesses be put under the rule and it is error for court to refuse. Rainwater v. Elmore, 48 Tenn. 363, 1870 Tenn. LEXIS 70 (1870).

2. Newly Discovered Witness.

Where all witnesses have been put under the rule, it is within discretion of judge to allow or not the testimony of a newly discovered witness who has heard other witnesses testify. Smith v. State, 72 Tenn. 428, 1880 Tenn. LEXIS 38 (1880).

Decisions Under Prior Law

1. Demand by Party — Effect.

Witnesses must be put under the rule upon demand of a party, and the refusal of the rule would be the denial of a right to the party demanding it, that might be very fatal to his cause, entitling him to a new trial. Nelson v. State, 32 Tenn. 237, 1852 Tenn. LEXIS 58 (1852).

2. Dispersal of Witnesses During Recess.

Witnesses “under the rule” may be allowed to disperse during the recess of court, with proper instructions, and put back “under the rule” when the court reconvenes. Nelson v. State, 32 Tenn. 237, 1852 Tenn. LEXIS 58 (1852).

40-10-104. Bail.

If the defendant is committed to jail for a bailable offense, the magistrate shall endorse on the commitment the amount of the bail required, and sign the endorsement. The sheriff of the county to which the defendant is committed may discharge the defendant, upon the defendant giving sufficient bail in the sum required, and make immediate return to the court to which the defendant is bound to appear of the bail bond or undertaking.

Code 1858, § 5066; Shan., § 7025; Code 1932, § 11565; T.C.A. (orig. ed.), § 40-1119.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 3.7.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 6.

Law Reviews.

The Justice of the Peace System in Tennessee (T. L. Howard), 13 Tenn. L. Rev. 19.

NOTES TO DECISIONS

1. Sheriff's Powers.

2. Preliminary Hearing.

The only purpose of a preliminary hearing upon a criminal warrant is to determine whether there is probable cause to believe the accused committed the offense charged and to fix the amount of bail in bailable offenses. State v. D'Anna, 506 S.W.2d 200, 1973 Tenn. Crim. App. LEXIS 235 (Tenn. Crim. App. 1973).

40-10-105. Election by prisoner to perform hard labor.

The defendant, if charged with a misdemeanor and ordered to be committed to the county jail, may elect to perform hard labor for the county pending trial.
It is the duty of the magistrate committing the defendant to inform the defendant of the right to make an election for hard labor, and of the advantages accruing by that election; and if the defendant so elects, the magistrate shall make an order allowing the defendant to do so and shall certify that election to the court at which the defendant is required to appear.
It is the duty of the sheriff to carry every person in the sheriff's custody charged with a misdemeanor before the judge of the court of general sessions within twenty-four (24) hours after receiving the person into custody. It is the duty of the judge to inform the prisoner of the prisoner's right to make an election for hard labor and of the advantages accruing to the prisoner by that election; and if the prisoner elects to perform hard labor, the judge shall make an order allowing the prisoner to do so and shall certify that election to the court at which the prisoner is required to appear. If the prisoner is convicted when tried, it is the duty of the court in determining punishment to take into consideration the amount of labor performed by the defendant; and if the defendant is acquitted, the net amount so earned by the defendant under the election to perform hard labor shall be delivered to the defendant by the county trustee, who shall take the defendant's receipt therefor, which shall be the defendant's voucher.
This section shall apply only to counties as may, by a majority vote of the county legislative bodies at a regular or special session, elect to avail themselves of the right to the labor of a defendant.
The earnings of a defendant under this section shall be the same as that of a misdemeanant inmate and shall be paid to the county trustee and held by the trustee until the final disposition of the prosecution. If the defendant is convicted, it shall be applied by the trustee as the hire of convicts is applied.

Code 1932, § 11564; impl. am. Acts 1978, ch. 934, §§ 7, 36; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 40-1120.

40-10-106. Reports on elections to perform hard labor.

It is the duty of such magistrate to render to the grand jury of the county on the first day of each jury session of the court, a statement in writing and under oath, of the name of each defendant charged with a misdemeanor committed to the county jail by the magistrate, the date of conviction, and whether or not the magistrate gave the defendant the information required by § 40-10-105.
It is the duty of the sheriff to render to the grand jury of the sheriff's county, on the first day of each jury session of the court, a statement in writing and under oath, of the name of every person charged with a misdemeanor coming into the sheriff's custody since the sheriff's last preceding statement, when the sheriff received the defendant, and when the sheriff carried the defendant before the judge of the court of general sessions, as provided in § 40-10-105.
It is the duty of the judge of the court of general sessions to render to the grand jury of the county on the first day of each jury session of the circuit or criminal court, a statement in writing and under oath, of the name of each defendant brought before the judge by the sheriff under § 40-10-105, of the date when the defendant was so brought before the judge, and whether or not the judge gave the defendant the information required by § 40-10-105.

Code 1932, § 11564; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 40-1121.

40-10-107. Bond of witnesses.

On holding the defendant to answer, the magistrate shall take from each material witness examined by the magistrate on the part of the state a written undertaking, in the sum of two hundred fifty dollars ($250), to appear and testify, at the court at which the defendant is required to answer, on the second day of the term.

Code 1858, § 5067; Shan., § 7026; Code 1932, § 11566; T.C.A. (orig. ed.), § 40-1122.

Textbooks. Tennessee Jurisprudence, 25 Tenn. Juris., Witnesses, § 3.

Law Reviews.

Recent Developments in Tennessee and Federal Procedure (Donald F. Paine), 36 Tenn. L. Rev. 276 (1969).

40-10-108. Form of bond.

The undertaking entered into pursuant to § 40-10-107 may be in substance as follows:

State of Tennessee,

County of

We, A. B., C. D., and E. F., witnesses against G. H., charged with a public offense, do each bind ourselves to appear at the next term of the (circuit) court of County, on the second day of the term, to give evidence against G. H., and, in case of failure, to pay the state of Tennessee two hundred fifty dollars ($250).

This day of , 20 .

A. B.,

C.D.,

E.F.

Code 1858, § 5068; Shan., § 7027; Code 1932, § 11567; T.C.A. (orig. ed.), § 40-1123.

40-10-109. Increase of bond — Surety.

Whenever the magistrate has good cause to believe that a witness for the prosecution will not appear to testify, the magistrate may require the witness to enter into a similar undertaking in a larger sum and with sufficient security.

Code 1858, § 5069; Shan., § 7028; Code 1932, § 11568; T.C.A. (orig. ed.), § 40-1124.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 23.16.

Tennessee Jurisprudence, 25 Tenn. Juris., Witnesses, § 3.

40-10-110. Minors as witnesses.

Minors, being material witnesses for the prosecution, may also be required, in the discretion of the magistrate, to procure sureties who will undertake for their appearance to testify, or the magistrate may issue subpoenas and have those minors instantly summoned to appear and testify.

Code 1858, § 5070; Shan., § 7029; Code 1932, § 11569; T.C.A. (orig. ed.), § 40-1125; Acts 1984, ch. 515, § 1.

NOTES TO DECISIONS

1. Ineffective Assistance of Counsel.

In an aggravated rape case, defendant's petition for post-conviction relief was properly denied because trial counsel was not ineffective for failing to call witnesses to testify that the victim and defendant had a relationship prior to the attack as the victim consistently testified that she did not know defendant; without viewing a photo of defendant, the victim worked with a sketch artist to construct an image of her attacker, which resembled defendant; he confessed to choking and raping the victim; the victim's statement to police and her testimony at the preliminary hearing and trial were congruous with defendant's confession; defendant's fingerprints were found on the victim's kitchen window; and his semen was found in her underwear. Bledsoe v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 276 (Tenn. Crim. App. Apr. 13, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 485 (Tenn. Aug. 18, 2017).

40-10-111. Commitment of witnesses.

Any witness required to enter into an undertaking, with or without security, shall, on failure or refusal, be committed to jail.

Code 1858, § 5071; Shan., § 7030; Code 1932, § 11570; T.C.A. (orig. ed.), § 40-1126.

NOTES TO DECISIONS

1. Inability to Give Bond.

Where a party is unable to give bond for his appearance he must be discharged upon his own personal undertaking to appear, having committed no contempt warranting his imprisonment. Arrowood v. State, 2 Shan. 347 (1877).

40-10-112. Bail of witnesses.

In case of commitment pursuant to § 40-10-111, the magistrate shall state in the commitment the amount of the undertaking and whether security is required. The witness shall be discharged by the sheriff on entering into the undertaking as required.

Code 1858, § 5072; Shan., § 7031; Code 1932, § 11571; T.C.A. (orig. ed.), § 40-1127.

40-10-113. Magistrates acting in association.

Any magistrate to whom information is made, or before whom any defendant is brought, may associate with the magistrate one (1) or more magistrates of the same grade, and the powers and duties in this chapter prescribed may be executed and performed by them.

Code 1858, § 5075; Shan., § 7034; Code 1932, § 11574; T.C.A. (orig. ed.), § 40-1130.

40-10-114. Waiver of preliminary hearing — Objection by state.

The preliminary hearing may not be waived by the defendant if the state makes a timely objection, for good cause shown, to the defendant's request for waiver.

Acts 2015, ch. 329, § 1.

Chapter 11
Bail

Part 1
Admission to Bail

40-11-101. Short title.

Sections 40-11-101 — 40-11-144 shall be known as and may be cited as the “Release from Custody and Bail Reform Act of 1978.”

Acts 1978, ch. 506, § 1; T.C.A., § 40-1201.

Cross-References. Bail after indictment, § 40-13-302.

Bail of persons held for extradition, § 40-9-106.

Bail of persons taken in fresh pursuit by officers from other states, § 40-7-204.

Bail of workhouse prisoners, § 41-2-126.

Bail pending appeal, §§ 40-26-102, 40-26-103, 40-26-104.

Right of bail, Tenn. Const., art. I, § 15.

Taking recognizances on recommitment by supreme court, § 16-3-203.

Undertaking on continuance from term to term, § 40-18-103.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.3.

Law Reviews.

A Noble Ideal Whose Time Has Come (Penny J. White), 18 Mem. St. U.L. Rev. 223 (1989).

An Analysis of the Bail Reform Act of 1984, 53 Tenn. L. Rev. 145 (1985).

Bail Bonds Under the Tennessee Bail Reform Act of 1978 (Judge David D. Creekmore), 21 No. 1, Tenn. B.J. 23 (1985).

40-11-102. Bailable offenses.

Before trial, all defendants shall be bailable by sufficient sureties, except for capital offenses where the proof is evident or the presumption great. After conviction, defendants are bailable as provided by § 40-11-113, § 40-11-143 or both.

Acts 1978, ch. 506, § 2; T.C.A., § 40-1202.

Cross-References. Admission to bail for motor vehicle violations, § 55-10-203.

Bailable offenses, Tenn. Const., art. I, § 15.

Bail for defendant charged with commission of crime while free on bail, § 40-11-148.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 4.1, 4.2, 4.5.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 3.

Law Reviews.

The Tennessee Bail System — What's the Best Cure? (Michael D. Brent), 8 Mem. St. U.L. Rev. 121.

NOTES TO DECISIONS

7. Right to Bail.

Conclusion that a police officer violated Metropolitan Nashville Police Department policy was not arbitrary or capricious and was supported by substantial and material evidence because the officer knowingly deprived a bonding agent of his right to conduct lawful business without improper interference from the police; the officer's telephone call to the agent caused him to not bond out an arrestee, and it was the officer's intention to deprive the arrestee of his right to bail. Davis v. Civil Serv. Comm'n of the Metro. Gov't, — S.W.3d —, 2019 Tenn. App. LEXIS 250 (Tenn. Ct. App. May 21, 2019).

Decisions Under Prior Law

1. Identical with Constitution.

The former section merely repeated the language of Tenn. Const., art. I, § 15 dealing with bail. Butt v. State, 131 Tenn. 415, 175 S.W. 529, 1914 Tenn. LEXIS 116 (1915).

2. Effect of Conviction.

Constitutional guaranty of bail is lost after conviction. Butt v. State, 131 Tenn. 415, 175 S.W. 529, 1914 Tenn. LEXIS 116 (1915); State ex rel. Brown v. Newell, 216 Tenn. 284, 391 S.W.2d 667, 1965 Tenn. LEXIS 577 (1965).

3. Capital Offenses.

On a hearing in a capital case for application to bail after indictment, the burden of proof is on applicant to show facts warranting allowance of bail. Shaw v. State, 164 Tenn. 192, 47 S.W.2d 92, 1932 Tenn. LEXIS 2 (1932).

On application for bail by defendant who was charged with capital offense but not yet indicted, state was required to carry burden of proof and offer evidence to sustain right of state to retain prisoner in custody. State ex rel. Jefferson v. State, 222 Tenn. 413, 436 S.W.2d 437, 1969 Tenn. LEXIS 449 (1969).

4. Murder.

One convicted of first degree murder and sentenced to life imprisonment where the jury found mitigating circumstances is not entitled to bail as a matter of right pending appeal, Tenn. Const., art. I, § 15 not applying after conviction, especially since the finding of mitigating circumstances may be disregarded on appeal and infliction of death penalty ordered. Butt v. State, 131 Tenn. 415, 175 S.W. 529, 1914 Tenn. LEXIS 116 (1915).

5. Rape.

The former section did not except the crime of rape and the courts are without power to read such an exception into it. State ex rel. Holloway v. Joyner, 173 Tenn. 298, 117 S.W.2d 1, 1937 Tenn. LEXIS 28, 118 A.L.R. 1113 (1938).

6. Habeas Corpus.

Prisoner was not entitled to bail pending appeal from dismissal of petition for writ of habeas corpus attacking validity of conviction. State ex rel. Brown v. Newell, 216 Tenn. 284, 391 S.W.2d 667, 1965 Tenn. LEXIS 577 (1965).

The former section was inapplicable to habeas corpus cases since they are civil and not criminal proceedings, but trial court may in its discretion grant bail to petitioner in habeas corpus proceeding where petitioner is discharged and state appeals from action of trial court. Leighton v. Henderson, 219 Tenn. 108, 407 S.W.2d 177, 1966 Tenn. LEXIS 509 (1966).

40-11-103. Methods of release.

Sections 40-11-101 — 40-11-144 shall be supplemental to the laws providing for and regulating professional bail bondsmen, who may continue to secure the bail bonds provided for in §§ 40-11-101 — 40-11-144, but only as provided for in § 40-11-122, and consistently with all other laws and regulations pertaining to those laws.
Nothing in §§ 40-11-101 — 40-11-144 shall prevent the release of a person charged with a traffic violation under the terms and conditions of §§ 40-11-145 and 40-11-146.

Acts 1978, ch. 506, § 3; T.C.A., § 40-1203.

40-11-104. Authority to release defendants.

Any magistrate may release the defendant on the defendant's own recognizance pursuant to § 40-11-115 or § 40-11-116 or admit the defendant to bail pursuant to § 40-11-117 or § 40-11-122 at any time prior to or at the time the defendant is bound over to the grand jury. The trial court may release the defendant on the defendant's own recognizance pursuant to § 40-11-115, admit the defendant to bail under § 40-11-116, § 40-11-117 or § 40-11-122, or alter bail or other conditions of release pursuant to § 40-11-144 at any time prior to conviction or thereafter, except where contrary to law.
When a defendant has been released to appear as directed by the officer setting bail, and such defendant fails to appear as ordered, any new bail set shall be posted only pursuant to § 40-11-118 or § 40-11-122.

Acts 1978, ch. 506, § 4; T.C.A., § 40-1204; Acts 2012, ch. 994, § 1.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 3.7, 4.2.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 5.

Attorney General Opinions. Review of revocation of probationary sentence — Reconsideration of Opinion No. 99-080, OAG 99-199 (9/29/99).

40-11-105. Right to bail — Bail by clerk — Maximum amounts.

1. When the defendant has been arrested or held to answer for any bailable offense, the defendant is entitled to be admitted to bail by the committing magistrate, by any judge of the circuit or criminal court, or by the clerk of any circuit or criminal court; provided, that if admitted to bail by the clerk of any circuit or criminal court, the defendant has a right to petition the judge of the circuit or criminal court if the defendant feels that the bail set is excessive, and shall be given notice of this fact by the clerk.
2. The clerk of any circuit or criminal court may only admit the defendant to bail when the judge is not present in the court and the clerk reasonably believes that the judge will not be present within three (3) hours after the defendant has been committed to the county or city jail, following arrest.
Except as provided in subsection (c), in no event may a clerk set the amount of bail in excess of:
1. One thousand dollars ($1,000) if the defendant is charged with a misdemeanor;
2. Ten thousand dollars ($10,000) if the defendant is charged with a felony that does not involve a crime committed against a person;
3. Fifty thousand dollars ($50,000) if the defendant is charged with a felony that involves a crime committed against a person; or
4. One hundred thousand dollars ($100,000) if the defendant is charged with some form of homicide.
A clerk may set the amount of bail in excess of the listed amounts in subsection (b) if the defendant is deemed a risk of flight pursuant to § 40-11-118.

Acts 1978, ch. 506, § 5; T.C.A., § 40-1205; Acts 2012, ch. 1011, §§ 2, 3.

Cross-References. Bail for defendant charged with commission of crime while free on bail, § 40-11-148.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 3.6, 4.2, 4.4, 4.6.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 3.

NOTES TO DECISIONS

Decisions Under Prior Law

1. Authority to Take Bail.

Under the former section, where a defendant was held to answer a bailable offense, the committing magistrate, or any judge of the circuit or criminal courts of this state could take the bail, before conviction. Holcomb v. State, 74 Tenn. 668, 1881 Tenn. LEXIS 195 (1881).

2. Form of Bail by Magistrate.

Under the former section, the committing magistrate could take the bail, and inasmuch as the statute was silent as to the form in which the bail could be taken, the justice could take either bond or recognizance. Pugh v. State, 39 Tenn. 227, 1858 Tenn. LEXIS 285 (1858).

3. Status of Recognizance as Record.

When a recognizance taken before the committing magistrate is filed in the proper court of record, it becomes a part of the record in that court, and it is entitled to the verity which, by law, appertains to records. Barkley v. State, 19 Tenn. 93, 1838 Tenn. LEXIS 22 (1838); Pugh v. State, 39 Tenn. 227, 1858 Tenn. LEXIS 285 (1858).

4. Habeas Corpus.

Petitioner was not entitled to bail pending appeal from dismissal of petition for writ of habeas corpus attacking validity of conviction. State ex rel. Brown v. Newell, 216 Tenn. 284, 391 S.W.2d 667, 1965 Tenn. LEXIS 577 (1965).

40-11-106. Authority to take bail — Appeal.

If bail has been set, any sheriff, any magistrate or other officer having authority to admit to bail in the county where the defendant is arrested, confined or legally surrendered may take bail in accordance with the provisions of §§ 40-11-101 — 40-11-144 and release the defendant to appear as directed by the officer setting bail. The sheriff or peace officer shall give a numbered receipt to the defendant to mandate an accounting for the bail so taken and within a reasonable time deposit the bail with the clerk of the court having jurisdiction of the offense.
1. Under this part, it is the responsibility of the sheriff or judicial commissioner to determine the sufficiency of the surety and validity of any bond, and once a sheriff or judicial commissioner has taken bail under this subsection (b), that action shall be presumed to be valid. Once a sheriff or judicial commissioner has taken bail or refused to take bail, the jurisdiction of the court having jurisdiction of the offense shall be limited to the issue of whether the sheriff or judicial commissioner has abused discretion. A surety which meets the requirements of § 40-11-122(1) or (2) shall be deemed sufficient if it is certified by the circuit court clerk of the county where the defendant resides to the sheriff, magistrate, or other appropriate officer in the county where the defendant was arrested, confined or legally surrendered.
2. However, any defendant, claiming that a sheriff or judicial commissioner has acted arbitrarily or capriciously, may, by motion, file an appeal to the court having jurisdiction of the offense. Upon appeal, it is the court's duty to determine whether the sheriff or judicial commissioner has acted arbitrarily or capriciously.
3. This subsection (b) shall not be used to prevent a commercial bonding agency from posting bond for any individual when the commercial bondsman has previously been approved and authorized to make bonds and the bondsman has been so authorized by the presiding judge.
Before the sheriff, magistrate or other officer admits to bail and releases a defendant who is arrested for any kidnapping offense involving a hostage or victim, the releasing authority shall make all reasonable and diligent efforts to notify the hostage or victim of the alleged offense that the defendant has been admitted to bail and is being released. If the hostage or victim is under the age of eighteen (18) or otherwise unavailable, the releasing authority shall make all reasonable and diligent efforts to notify the family, if any, of the hostage or victim that the defendant is being released.

Acts 1978, ch. 506, § 6; 1981, ch. 237, § 1; T.C.A., § 40-1206; Acts 1984, ch. 911, § 1; 1988, ch. 648, § 1.

Cross-References. Admission to bail pending appeal, § 40-11-113.

Arrest in another county, § 40-11-147.

Notice to officials of convict's release, § 41-21-224.

Notification to kidnapping hostages or victims, of convict's release on parole or probation, §§ 40-11-113, 40-28-107.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.21.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 3.

40-11-107. Taking bail before commitment.

The committing magistrate or the city court clerk of any incorporated municipality or city or that person's deputies, before whom a defendant is brought for examination on a warrant of arrest, are authorized to take bail, either for the defendant's appearance for examination or for the defendant's appearance at court to answer the charge.

Acts 1978, ch. 506, § 7; T.C.A., § 40-1207.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

NOTES TO DECISIONS

Decisions Under Prior Law

1. Unauthorized Taking of Bail.

Where an officer takes bail before the prisoner has been examined or committed, it is a nullity and the sureties are discharged. State v. McCoy, 60 Tenn. 111, 1873 Tenn. LEXIS 422 (1873).

2. Procedure upon Application.

Upon application for bail, the procedure and the examination of witnesses are left to the discretion of the trial court; however, all material evidence offered by either state or accused should be considered. Shaw v. State, 164 Tenn. 192, 47 S.W.2d 92, 1932 Tenn. LEXIS 2 (1932).

40-11-108. Taking bail after commitment.

If the defendant is committed to jail in default of bail, the committing magistrate or sheriff or the city court clerk of any incorporated municipality or city or the person's deputies may take bail at any time thereafter, for defendant's appearance at the court having cognizance of the offense.

Acts 1978, ch. 506, § 8; T.C.A., § 40-1208.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.21.

NOTES TO DECISIONS

Decisions Under Prior Law

1. Sheriff's Right to Take Bail.

Where the sheriff takes bail of a prisoner before he has been examined or committed, such is a nullity and the sureties are discharged. State v. McCoy, 60 Tenn. 111, 1873 Tenn. LEXIS 422 (1873).

40-11-109. Taking bail after indictment.

After indictment, the sheriff, upon executing the capias or writ of arrest, may take bail from the defendant for the defendant's appearance to answer the charge.

Acts 1978, ch. 506, § 9; T.C.A., § 40-1209.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.21.

NOTES TO DECISIONS

Decisions Under Prior Law

1. Limits on Sheriff's Power.

Where the magistrate does not adjudge the offense to be bailable, the sheriff cannot take bail. State v. Horn, 19 Tenn. 473, 1838 Tenn. LEXIS 76 (1838).

A sheriff has no power to take bail for the appearance of prisoners committed for offenses, except such as is given by statute. State v. Horn, 19 Tenn. 473, 1838 Tenn. LEXIS 76 (1838); State v. McCoy, 60 Tenn. 111, 1873 Tenn. LEXIS 422 (1873).

2. Bond to Show Reasons.

The bond must show the reason for taking the bail. State v. Austin, 23 Tenn. 213, 1843 Tenn. LEXIS 56 (1843); State v. Quinby, 37 Tenn. 419, 1858 Tenn. LEXIS 27 (1858).

40-11-110. Bail for material witness.

If it appears by affidavit that the testimony of a person is material in any criminal proceeding and if it is shown that the witness has refused or will refuse to respond to process, the court may require the witness to give bail under § 40-11-117 or § 40-11-122 for appearance as a witness, in an amount fixed by the court.
If the person fails to give bail, the court may commit the person to the custody of the sheriff, pending final disposition of the proceeding in which the testimony is needed, may order the person's release if the person has been detained for an unreasonable length of time, and may modify at any time the requirement as to bail.
If the person does not comply with the conditions of the bail bond, the court having jurisdiction shall enter an order declaring the bail to be forfeited as provided in § 40-11-120 or § 40-11-139.

Acts 1978, ch. 506, § 10; T.C.A., § 40-1210.

Cross-References. Guardianship, title 34.

Infants and guardians, § 16-11-109.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 23.16.

NOTES TO DECISIONS

1. Arrest and Detention.

Where plaintiff was a material witness to murder, was unable to make bond, and indicated that he was unwilling to testify, it was reasonably unlikely that he would appear at suspect's trial, and there was probable cause to arrest and detain plaintiff under T.C.A. § 40-11-110. White v. Gerbitz, 892 F.2d 457, 1989 U.S. App. LEXIS 19177 (6th Cir. Tenn. 1989).

40-11-111. Bail for persons under disability.

Individuals who are unable to perform activities of daily living as the result of a severe and persistent mental illness, or individuals who have been adjudicated mentally incompetent, or infants, need not personally make the deposit or execute the bail bond as may be required under §§ 40-11-101 — 40-11-144, but the deposit and execution may be made for such individuals by anyone found by the sheriff or clerk taking the bond to be a responsible substitute.
For the purposes of this section, an individual shall be considered to have a severe and persistent mental illness if:
1. Such individual has a psychiatric diagnosis or symptoms consistent with a psychiatric diagnosis as specified in the latest edition of the American Psychiatric Association Diagnostic and Statistical Manual ; and
2. Such individual has delusions, hallucinations, extremely disorganized thinking or other significant disruptions of consciousness, memory, and perception that are not attributable solely to the acute effects of alcohol or other drugs; and
3. Such individual has a documented medical history of the items listed in subdivisions (b)(1) and (2).
For purposes of this section, unless the context otherwise requires:
1. “Delusions” means fixed, clearly false beliefs; and
2. “Hallucinations” means clearly erroneous perceptions of reality.

Acts 1978, ch. 506, § 11; T.C.A., § 40-1211; Acts 2010, ch. 937, § 1.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.21.

40-11-112. Arrest warrant issued for failure to comply with conditions.

Upon an increase in the amount of bail required or the defendant's failure to comply with any condition of a bail bond or recognizance release, the court having jurisdiction at the time of the increase or failure shall declare a forfeiture and may issue a warrant for the arrest of the defendant.

Acts 1978, ch. 506, § 12; T.C.A., § 40-1212.

Cross-References. Arrest of defendant by bail bondsman, § 40-11-133.

Sheriff assisting bail bondsman in arrest, § 40-11-134.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.45.

40-11-113. Admission to bail pending appeal.

1. In the cases in which the defendant may be admitted to bail upon appeal, the order admitting the defendant to bail may be made either by the court wherein the judgment was rendered, or the judge of the rendering court, by the court of criminal appeals, or any judge of the court of criminal appeals, or by the supreme court, or any supreme court justice.
2. In any case in which any person has been admitted to bail following the person's arrest or indictment, the bail bond, security or cash deposit shall continue and be valid and binding pending any trial proceeding and appellate review, and no additional or new bail shall be required unless ordered by the court wherein the judgment of the conviction was rendered, or the judge of the rendering court, or by the court of criminal appeals, or any judge of the court of criminal appeals, or by the supreme court, or any supreme court judge.
3. Nothing in this section shall prevent any of the rendering courts, the court of criminal appeals or the supreme court or any judge or justice of those courts from reducing or increasing the amount of bail required pending appellate review.
4. If any person admitted to bail pending appeal is indicted for or convicted of a separate felony offense while released on bail, the bail shall be revoked and the defendant committed immediately.
If a defendant is convicted of first degree murder, a Class A felony or a violation of §§ 39-11-117, 39-12-205, 39-13-304, 39-13-402, 39-13-503, 39-13-504, 39-14-404, 39-15-402, 39-17-107, 39-17-417(b), 39-17-417(c)(1), 39-17-417(i), 39-17-1004(b) or 39-17-1005, the judge shall revoke bail immediately, notwithstanding sentencing hearings, motions for a new trial, or related post-guilt determination hearings.
If the defendant is convicted of any other felony offense, the judge may revoke bail immediately, notwithstanding sentencing hearings, motions for a new trial and related post-guilt determination hearings.
Before a judge admits to bail pending appeal and releases a defendant who is convicted of any kidnapping offense, for which bail is authorized, involving a hostage or victim, the judge shall make all reasonable and diligent efforts to notify the hostage or victim of the offense that the defendant has been admitted to bail pending appeal and is being released. If the hostage or victim is under eighteen (18) years of age or is otherwise unavailable, the judge shall make all reasonable and diligent efforts to so notify the family, if any, of the hostage or victim.

Acts 1978, ch. 506, § 13; 1979, ch. 224, § 1; 1979, ch. 318, § 16; 1979, ch. 397, § 1; 1981, ch. 449, § 2; 1982, ch. 567, §§ 1, 2; T.C.A., § 40-1213; Acts 1988, ch. 648, § 2; 1991, ch. 347, §§ 1, 3; 1995, ch. 498, § 1.

Compiler's Notes. Acts 1995, ch. 498, § 2 provided that the amendment by that act applies to all applicable convictions occurring on or after July 1, 1995.

Cross-References. Appeal as of right, T.R.A.P. 3.

Authority to take bail, § 40-11-106.

Penalty for Class A felony, § 40-35-111.

Notice to officials of convict's release, § 41-21-224.

Notification to kidnapping hostages or victims, of convict's release on parole or probation, §§ 40-11-106, 40-28-107.

Parole, § 40-28-505.

Revocation of bail, § 40-35-116.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 4.1, 4.41, 31.51, 33.104, 33.105.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 4.

NOTES TO DECISIONS

1. Constitutionality.

There is no U.S. or Tennessee constitutional guarantee of bail after conviction and the law prohibiting a judge granting or continuing bail pending appeal from a conviction under § 39-6-417(a)(1) (repealed) does not violate due process or equal protection of law under U.S. Const., amends. 5 and 14, or Tenn. Const., art. I, § 8. Swain v. State, 527 S.W.2d 119, 1975 Tenn. LEXIS 642 (Tenn. 1975), appeal dismissed, Swain v. Tennessee, 423 U.S. 1041, 96 S. Ct. 764, 46 L. Ed. 2d 631, 1976 U.S. LEXIS 926 (1976).

2. Subsequent Indictment.

Request for appeal bond was moot issue where defendant was indicted for other offenses subsequent to his conviction in the instant case and therefore his bond would have been revoked as a matter of law, and also because with the affirmation of the convictions in the instant case any bonds that defendant could have been out on would have been immediately revoked. State v. Wright, 836 S.W.2d 130, 1992 Tenn. Crim. App. LEXIS 143 (Tenn. Crim. App. 1992), appeal denied, 1992 Tenn. LEXIS 378 (Tenn. May 26, 1992).

40-11-114. Contents of written undertaking.

Bail, when not given in open court, is given by a written undertaking, containing the conditions of release, the agreement of the defendant to appear in the court having jurisdiction of the offense as directed by the court and/or an amount to be paid for nonappearance, signed by the defendant, and if made under § 40-11-122(2), signed also by court-approved and sufficient surety or sureties. The written undertaking must be approved by the officer taking it.
An electronically transmitted facsimile copy of a written undertaking shall have the same legal effect as the original written undertaking. An electronically transmitted facsimile copy of a written undertaking signed by the defendant shall have the same legal effect as the written undertaking signed by the defendant.

Acts 1978, ch. 506, § 14; T.C.A., § 40-1214; Acts 1999, ch. 52, § 1.

Textbooks. Pritchard on Wills and Administration of Estates (5th ed., Phillips and Robinson), § 858.

Tennessee Criminal Practice and Procedure (Raybin), § 4.12.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 6.

Law Reviews.

The Tennessee Bail System — What's the Best Cure? (Michael D. Brent), 8 Mem. St. U.L. Rev. 121.

40-11-115. Release on recognizance or unsecured bond — Factors considered.

Any person charged with a bailable offense may, before a magistrate authorized to admit the person to bail, be ordered released pending trial on the person's personal recognizance or upon the execution of an unsecured appearance bond in an amount specified by the magistrate.
In determining whether or not a person shall be released as provided in this section and that a release will reasonably assure the appearance of the person as required, the magistrate shall take into account:
1. The defendant's length of residence in the community;
2. The defendant's employment status and history, and financial condition;
3. The defendant's family ties and relationships;
4. The defendant's reputation, character and mental condition;
5. The defendant's prior criminal record, including prior releases on recognizance or bail;
6. The identity of responsible members of the community who will vouch for defendant's reliability;
7. The nature of the offense and the apparent probability of conviction and the likely sentence, insofar as these factors are relevant to the risk of nonappearance; and
8. Any other factors indicating the defendant's ties to the community or bearing on the risk of willful failure to appear.

Acts 1978, ch. 506, § 15; T.C.A., § 40-1215.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 4.1, 4.6, 4.22, 4.24.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, §§ 6, 10.

Attorney General Opinions. Authority of judicial commissioners and judges regarding the setting and alteration of bail. OAG 12-82, 2012 Tenn. AG LEXIS 83 (8/23/12).

40-11-116. Conditions on release.

If a defendant does not qualify for a release upon recognizance under § 40-11-115, then the magistrate shall impose the least onerous conditions reasonably likely to assure the defendant's appearance in court.
If conditions on release are found necessary, the magistrate may impose one (1) or more of the following conditions:
1. Release the defendant into the care of some qualified person or organization responsible for supervising the defendant and assisting the defendant in appearing in court. This supervisor shall maintain close contact with the defendant, assist the defendant in making arrangements to appear in court, and, where appropriate, accompany the defendant to court. The supervisor shall not be required to be financially responsible for the defendant, nor to forfeit money in the event the defendant fails to appear in court. The department of correction and its officers are not to be considered an appropriate qualified organization or person under this section;
2. Impose reasonable restrictions on the activities, movements, associations and residences of the defendant; and/or
3. Impose any other reasonable restriction designed to assure the defendant's appearance, including, but not limited to, the deposit of bail pursuant to § 40-11-117.

Acts 1978, ch. 506, § 16; T.C.A., § 40-1216; Acts 2001, ch. 443, §§ 1, 2; 2012, ch. 727, § 10.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended subdivision (b)(1), shall be fully accomplished on or before January 1, 2013.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 4.1, 4.6, 4.22, 4.26.

Attorney General Opinions. Authority of judicial commissioners and judges regarding the setting and alteration of bail. OAG 12-82, 2012 Tenn. AG LEXIS 83 (8/23/12).

40-11-117. Bail security required.

Absent a showing that conditions on a release on recognizance will reasonably assure the appearance of the defendant as required, the magistrate shall, in lieu of the conditions of release set out in § 40-11-115 or § 40-11-116, require bail to be given.

Acts 1978, ch. 506, § 17; T.C.A., § 40-1217.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.1.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 3.

40-11-118. Execution and deposit — Bail set no higher than necessary — Factors considered — Bonds and sureties.

Any defendant for whom bail has been set may execute the bail bond and deposit with the clerk of the court before which the proceeding is pending a sum of money in cash equal to the amount of the bail. Upon depositing this sum, the defendant shall be released from custody subject to the conditions of the bail bond. Bail shall be set as low as the court determines is necessary to reasonably assure the appearance of the defendant as required.
In determining the amount of bail necessary to reasonably assure the appearance of the defendant while at the same time protecting the safety of the public, the magistrate shall consider the following:
1. The defendant's length of residence in the community;
2. The defendant's employment status and history and financial condition;
3. The defendant's family ties and relationships;
4. The defendant's reputation, character and mental condition;
5. The defendant's prior criminal record, record of appearance at court proceedings, record of flight to avoid prosecution or failure to appear at court proceedings;
6. The nature of the offense and the apparent probability of conviction and the likely sentence;
7. The defendant's prior criminal record and the likelihood that because of that record the defendant will pose a risk of danger to the community;
8. The identity of responsible members of the community who will vouch for the defendant's reliability; however, no member of the community may vouch for more than two (2) defendants at any time while charges are still pending or a forfeiture is outstanding; and
9. Any other factors indicating the defendant's ties to the community or bearing on the risk of the defendant's willful failure to appear.
1. Whenever a court's judgment includes the requirement that the defendant pay a fine or cost, the court may require that the payment of the fine or cost be secured by surety bond or other appropriate undertaking if such defendant has a history of past due fines and costs. A parent, guardian or other responsible party may be permitted to act as surety in order to guarantee the payment of the fine or cost.
2. Notwithstanding any other provision of law to the contrary, unless the surety executes a bond or agreement which specifically makes the surety liable for the fine, cost, or restitution, no surety shall be held liable for the fine, cost or restitution without the surety's consent.
1. When the court is determining the amount and conditions of bail to be imposed upon a defendant, if the defendant is charged with a violation of § 55-10-401, and has one (1) or more prior convictions for the offense of driving under the influence of an intoxicant under § 55-10-401, vehicular assault under § 39-13-106, aggravated vehicular assault under § 39-13-115, vehicular homicide under § 39-13-213(a)(2), aggravated vehicular homicide under § 39-13-218, or a prior conviction in another state that qualifies under § 55-10-405(b), the court shall consider the use of special conditions for the defendant, including, but not limited to, the conditions set out in subdivision (d)(2).
2. The special conditions the court shall consider pursuant to subdivision (d)(1) are:
  1. The use of ignition interlock devices;
  2. The use of transdermal monitoring devices or other alternative alcohol monitoring devices. However, if the court orders the use of a monitoring device on or after July 1, 2016, and determines the defendant is indigent, the court shall order the portion of the costs of the device that the defendant is unable to pay be paid by the electronic monitoring indigency fund, established in § 55-10-419;
  3. The use of electronic monitoring with random alcohol or drug testing; or
  4. Pretrial residency in an in-patient alcohol or drug rehabilitation center.
3. As used in this subsection (d), “court” includes any person authorized by § 40-11-106 to take bail.
After an inquiry pursuant to § 40-7-123 into the citizenship status of a defendant who is arrested for causing a traffic accident resulting in either the death or serious bodily injury, as defined in § 55-50-502, of another while driving without a valid driver license and evidence of financial responsibility as required by § 55-12-139, if it is determined that the defendant is not lawfully present in the United States, when determining the amount of bail, the defendant may be deemed a risk of flight.
1. If the judge or magistrate determines that a person charged with vehicular assault under § 39-13-106, vehicular homicide under § 39-13-213(a)(2), or aggravated vehicular homicide under § 39-13-218 on or after July 1, 2015, has a prior alcohol-related conviction, the use of a transdermal monitoring device shall be a condition of the person's bail agreement.
2. All expenses associated with a person being subject to a transdermal monitoring device as a condition of bail shall be paid by that person. If the person believes there are legitimate medical reasons why the person is unable to be subject to the order, those reasons may be presented at the person's first appearance before a general sessions court judge or judge of a court of record. After hearing from the person subject to monitoring, the judge may waive, modify, or affirm an order requiring that person to be subject to transdermal monitoring.
3. The offender shall choose an entity from a list approved by the court to provide, administer, and monitor the transdermal device ordered as a condition of bail. However, any entity placed on the approved list must have the ability to monitor the person's device on a daily basis and report any violation to the court having jurisdiction over the person's case by no later than the business day next following the violation. The person on bail shall remain subject to transdermal monitoring for the duration of the time the person is released on bail, unless the judge or magistrate specifically provides otherwise.
4. If the report from the transdermal monitoring entity to the judge indicates that the person being monitored violated the conditions of release, the judge may issue a capias for the person's arrest for violation of bond conditions.
5. As used in this subsection (f):
  1. “Alcohol-related conviction” means the person has been convicted prior to the instant conviction of a violation of § 39-13-213(a)(2), § 39-13-106, § 39-13-218, or § 55-10-401; and
  2. “Transdermal monitoring device” means any device or instrument that is attached to the person, designed to automatically test the alcohol or drug content in a person by contact with the person's skin at least once per one-half (1/2) hour regardless of the person's location, and which detects the presence of alcohol or drugs and tampering, obstructing, or removing the device.
1. If a person is required as a special bond condition to submit to monitoring pursuant to subdivisions (d)(2)(A) - (C), subsection (f), § 40-11-150, or § 40-11-152, it is a Class B misdemeanor:
  1. For that person to knowingly tamper with, remove, or vandalize the monitoring device; or
  2. For any person to knowingly aid, abet, or assist a person in tampering with, removing, or vandalizing a monitoring device.
2. If an entity monitoring the device becomes aware that there has been an attempt to either tamper with, disable, remove, or otherwise make the device ineffective, or if the bonding agent becomes aware the person has violated any bond condition ordered by the court, then the entity monitoring the device shall promptly give notice of the violation to the court with jurisdiction over the person and the surety of the person's bail bond.
3. The court shall take such action as the case may require, including, but not limited to, the revocation of bail. Additionally, the violation also constitutes a grounds for surrender under § 40-11-132.

Acts 1978, ch. 506, § 18; 1982, ch. 620, § 1; T.C.A., § 40-1218; Acts 1992, ch. 946, § 1; 1996, ch. 851, § 1; 2010, ch. 867, § 1; 2011, ch. 487, §§ 1, 2; 2012, ch. 1011, § 1; 2015, ch. 490, §§ 1, 2; 2016, ch. 876, § 4; 2016, ch. 993, § 10; 2018, ch. 1046, § 3.

Compiler's Notes. Acts 2015, ch. 490, § 3 provided that the act, which added subsections (f) and (g), shall apply to all applicable bond orders issued on or after July 1, 2015.

Acts 2018, ch. 1046, § 12 provided that the act, which amended this section, shall apply to offenses committed on or after July 1, 2018.

Amendments. The 2018 amendment substituted “electronic monitoring indigency” for “DUI monitoring” preceding “fund” in (d)(2)(B).

Effective Dates. Acts 2018, ch. 1046, § 12. July 1, 2018.

Cross-References. Bail for defendant charged with commission of crime while free on bail, § 40-11-148.

Excessive bail, Tenn. Const., art. I, § 16.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 4.1, 4.6, 4.15, 4.27.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, §§ 3, 7.

Attorney General Opinions. Proposed amendment to bail statutes granting judges authority to require a defendant to post a cash deposit bond, as opposed to other types of bonds, for all bailable offenses involving a worthless check, a child custody or support violation, or a probation violation deemed unconstitutional, OAG 03-054 (4/30/03).

A court may not offer defendant the option of executing a bail bond secured by paying ten percent of the bail amount in cash, OAG 04-008 (1/21/04).

A court cannot require a defendant to secure a bail bond with a cash deposit rather than with real estate or sureties, but the court can apply the cash deposit to any fines or court costs rendered against the defendant, OAG 04-008 (1/21/04).

Authority of judicial commissioners and judges regarding the setting and alteration of bail. OAG 12-82, 2012 Tenn. AG LEXIS 83 (8/23/12).

NOTES TO DECISIONS

1. Security for Payment of Fines.

Where defendant had “a history of past due fines and costs” within the meaning of T.C.A. § 40-11-118, the trial court did not abuse its discretion in requiring him to guarantee the payment of fines with sufficient securities. State v. Hart, 898 S.W.2d 748, 1994 Tenn. Crim. App. LEXIS 774 (Tenn. Crim. App. 1994).

A cash bond deposited by defendant's father to ensure defendant's appearance in court could not be attached to cover fines and costs incurred by defendant in connection with the prosecution. State v. Clements, 925 S.W.2d 224, 1996 Tenn. LEXIS 423 (Tenn. 1996).

Trial court erred in denying pretrial bail after defendant garnered additional charges while on bail because holding her without bail pending trial violated the constitutional guarantee to pretrial bail and the trial court had to address the statutory factors as to additional conditions or bail that might be required to reasonably assure the appearance of defendant while at the same time protecting the safety of the public. State v. Burgins, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1089 (Tenn. Crim. App. Dec. 3, 2014), rev'd, 464 S.W.3d 298, 2015 Tenn. LEXIS 285 (Tenn. Apr. 7, 2015).

2. Consideration of Factors.

Trial court erred in raising defendant's bond after he filed a motion to reduce bond because, while the trial court properly considered the statutory factors, the judge's actions — setting an excessively high bond ($10,000,000) and then instructing defendant that his bond would be revoked if he made it — amounted to a complete denial of pretrial bond in violation of the state constitution. Pretrial bond was to ensure a defendant's appearance in court — NOT to ensure that punishment was meted out to a person who was not yet convicted, and, while the trial judge disagreed with defendant's constitutional right to be bailable, he was nevertheless duty bound to follow the law. State v. Kizzie, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1077 (Tenn. Crim. App. Dec. 3, 2015).

3. Child Support Enforcement.

In order to comport with the Equal Protection guarantees of both the United States and Tennessee Constitutions in a child support enforcement action, the court must follow the applicable bail statutes set forth in the Release from Custody and Bail Reform Act of 1978 unless the bail statute or statutes conflict with T.C.A. § 36-5-101(f)(2), in which case § 36-5-101(f)(2) controls; this mandate includes T.C.A. §§ 40-11-122 and 40-11-118. State ex rel. Haynes v. Daugherty, — S.W.3d —, 2019 Tenn. App. LEXIS 449 (Tenn. Ct. App. Sept. 10, 2019).

40-11-119. Return of deposit to defendant.

If the conditions of the bail bond have been performed and the defendant has been discharged from all obligations in the cause, the clerk of the court shall return to the defendant, unless the court orders otherwise, the entire sum which had been deposited.

Acts 1978, ch. 506, § 19; T.C.A., § 40-1219.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 4.27, 4.45.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 10.

40-11-120. Forfeiture of defendant's bail deposit.

If the defendant released upon recognizance under § 40-11-115 or posting bail bond under § 40-11-118 does not comply with the conditions of the bail bond, the court having jurisdiction shall enter an order declaring the bail to be forfeited. Notice of the order or forfeiture shall be mailed forthwith by the clerk to the defendant at the defendant's last known address. If the defendant does not appear and surrender to the court having jurisdiction within thirty (30) days from the date of the forfeiture or, within that period, satisfy the court that appearance and surrender by the defendant are impossible and not the defendant's fault, the court shall enter judgment for the state against the defendant for the amount of the bail and costs of the court proceedings. The deposit made in accordance with § 40-11-118 shall be applied to payment of the judgment and costs. Any balance of the judgment and costs may be enforced and collected in the same manner as a judgment entered in a civil action.

Acts 1978, ch. 506, § 20; T.C.A., § 40-1220.

Cross-References. Forfeiture of bail, title 40, ch. 11, part 2.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.45.

Attorney General Opinions. The “costs of the court proceedings” in T.C.A. § 40-11-120 include the costs of all the proceedings in the case against a defendant and are not limited to the costs of the bail forfeiture proceeding alone. OAG 17-38, 2017 Tenn. AG LEXIS 38 (9/1/2017).

40-11-121. Judgment for fine and costs — Deposit applied to payment.

If a judgment for fine and court costs, or either, is entered in the prosecution of a cause in which a deposit had been made by defendant, the deposit shall be applied to the payment of the judgment.

Acts 1978, ch. 506, § 21; T.C.A., § 40-1221.

40-11-122. Bail bond secured by real estate or sureties.

In lieu of the bail deposit provided for in § 40-11-118, any defendant for whom bail has been set may execute a bail bond which may be secured as provided in this section. The bail bond may be secured by:

Real estate situated in this state with nonexempt unencumbered equity owned by the defendant or the defendant's surety worth one and one-half (1½) times the amount of bail set. If the bail bond is secured by real estate, the defendant or the defendant's surety shall execute a deed of trust conveying the real estate in trust to the clerk who shall immediately file the deed of trust in the office of the register of the county in which the real estate is situated. The costs of preparation of the deed of trust and recordation shall be paid by the defendant;
A written undertaking signed by the defendant and at least two (2) sufficient sureties, and approved by the magistrate or officer. Sureties under this section shall not be professional bondsmen or attorneys; or
A solvent corporate surety or sureties or a professional bail bondsman as approved, qualified or regulated by §§ 40-11-101 — 40-11-144 and part 3 of this chapter. No bond shall be approved unless the surety on the bond appears to be qualified.

Acts 1978, ch. 506, § 22; T.C.A., § 40-1222.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 4.28, 4.31, 4.45.

Attorney General Opinions. Property bond must be rejected if it is for real estate valued at less than one and one-half times the amount of bail set, OAG 03-050 (4/22/03).

Constitutionality of proposed amendment to bail statutes granting judges authority to require a defendant to post a cash deposit bond, as opposed to other types of bonds, for all bailable offenses involving a worthless check, a child custody or support violation, or a probation violation, OAG 03-054 (4/30/03).

A court may not offer defendant the option of executing a bail bond secured by paying ten percent of the bail amount in cash, OAG 04-008 (1/21/04).

40-11-123. Sufficiency of sureties — Evidence.

Each of the sureties shall be worth the amount expressed in the undertaking, subject to the execution; but the court, magistrate or officer in taking bail may allow more than two (2) sureties to justify severally in amounts less than that expressed in the undertaking, if the whole qualification is equivalent to two (2) sufficient sureties.
The district attorney general, or the court, magistrate or officer, may examine the sureties on oath touching their sufficiency, in any manner that the district attorney general, or the court, magistrate or officer may deem proper. The court or magistrate may also receive other testimony, either for or against the sufficiency of sureties.

Acts 1978, ch. 506, §§ 23, 24; T.C.A., § 40-1223.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.31.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, §§ 4, 10.

NOTES TO DECISIONS

Decisions Under Prior Law

1. More Than Two Sureties.

Where the trial court ruled that an appeal bond would be in order and set it at $50,000, more than two sureties may execute the bond in accordance with the statute, absent any objection. Hull v. State, 543 S.W.2d 611, 1976 Tenn. Crim. App. LEXIS 319 (Tenn. Crim. App. 1976).

40-11-124. List of approved and qualified professional bondsmen — Certification required — Rules concerning qualifications.

The clerk, sheriff, municipal courts and other inferior courts shall have available a list of professional bondsmen or other sureties approved and qualified as solvent by the courts of record with criminal jurisdiction within the county. These approved lists shall be provided by the judges of those courts. No undertaking shall be accepted unless the professional bondsman or other surety is so certified as approved.
In counties having a population of seven hundred seventy thousand (770,000) or more, according to the 1980 federal census or any subsequent federal census, the rules concerning the qualifications of bail bond companies as established by the criminal court of record shall be applicable in any inferior court in the county. The clerk of any such inferior court shall have the duty and the responsibility to enforce the rules.

Acts 1978, ch. 506, § 37; T.C.A., § 40-1224; Acts 1987, ch. 423, § 2.

Compiler's Notes. For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Cross-References. Professional bondsmen, title 40, ch. 11, part 3.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, §§ 3, 6.

NOTES TO DECISIONS

1. Subject Matter Jurisdiction.

Chancery court erred in exercising subject matter jurisdiction over a bail bond company's action for injunctive relief and declaratory judgment declaring proposed Local Rules of Practice and Procedure for Bail Bond Companies unenforceable, unconstitutional, and in violation of the law because it did not have subject matter jurisdiction to entertain an action for declaratory or injunctive relief regarding the validity of local rules of the criminal court. Memphis Bonding Co. v. Crim. Court of Tenn. 30th Dist., 490 S.W.3d 458, 2015 Tenn. App. LEXIS 930 (Tenn. Ct. App. Nov. 25, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 247 (Tenn. Mar. 22, 2016).

Because a bail bond company's underlying claim for injunctive relief regarding Local Rules of Practice and Procedure for Bail Bond Companies could not be brought in chancery court, the chancery court could not exercise subject matter jurisdiction over the declaratory judgment aspect of the case either; the courts should not assume that subject matter jurisdiction existed based on the fact that the issue was not addressed. Memphis Bonding Co. v. Crim. Court of Tenn. 30th Dist., 490 S.W.3d 458, 2015 Tenn. App. LEXIS 930 (Tenn. Ct. App. Nov. 25, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 247 (Tenn. Mar. 22, 2016).

To allow the chancery court to review the validity or enjoin the enforcement of the local rules of the criminal court would interfere with the inherent power of the criminal court to administer its affairs and impose reasonable regulations regarding the making of bonds; the statutes and rules do not authorize chancery court review of the local rules of the criminal court. Memphis Bonding Co. v. Crim. Court of Tenn. 30th Dist., 490 S.W.3d 458, 2015 Tenn. App. LEXIS 930 (Tenn. Ct. App. Nov. 25, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 247 (Tenn. Mar. 22, 2016).

40-11-125. Approval of bondsmen withheld, withdrawn or suspended.

In addition to the requirements of part 3 of this chapter regulating professional bondsmen, approval of a professional bondsman or other surety may be withheld, withdrawn or suspended by any court if, after investigation, it appears that a bondsman:
1. Has been guilty of violating any of the laws of this state relating to bail bonds;
2. Has a final judgment of forfeiture entered against the bondsman which remains unsatisfied;
3. Is guilty of professional misconduct as described in § 40-11-126; or
4. If applying for approval as a professional bondsman, has been convicted in any state of the United States of two (2) or more misdemeanors which are equivalent to Tennessee Class A or Class B misdemeanors; provided, however, that the misdemeanor convictions shall have occurred within five (5) years of the date the application for approval is filed.
Any court withholding, withdrawing or suspending a bondsman or other surety under this section shall notify the bondsman in writing of the action taken, accompanied by a copy of the charges resulting in the court's action. If, within twenty (20) days after notice, the bail bondsman or surety files a written answer denying the charges or setting forth extenuating circumstances, the court shall call a hearing within a reasonable time for the purpose of taking testimony and evidence on any issues of fact made by the charges and answer. The court shall give notice to the bail bondsman, or to the insurer represented by the bondsman, of the time and place of the hearing. The parties shall have the right to produce witnesses, and to appear personally with or without representation by counsel. If, upon a hearing, the court determines that the bail bondsman is guilty as alleged in the charges, the court shall thereupon withhold, withdraw or suspend the bondsman from the approved list, or suspend the bondsman for a definite period of time to be fixed in the order of suspension.
The clerk of the court and the sheriff of the county shall be notified of the action of the court and the offending bondsman stricken from the approved list.
Any applicant for approval whose application has been denied, withheld, suspended or revoked shall have the right of appeal to the next highest court having criminal jurisdiction, and the appeal shall be heard de novo.

Acts 1978, ch. 506, § 38; T.C.A., § 40-1225; Acts 2013, ch. 169, § 1.

Compiler's Note. For the Preamble to the act concerning the requirement that bail bondsmen be law abiding citizens, please refer to Acts 2013, ch. 169.

Cross-References. Penalties for Class A and B misdemeanors, § 40-35-111.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 6.

NOTES TO DECISIONS

1. Suspension.

Evidence failed to show that the superior court clerk and a bonding company's owner commingled funds so that the clerk received an indirect benefit from the company's writing of bail bonds. Thus, the trial court erred by suspending the company's privileges to write bail bonds pursuant to T.C.A. § 40-11-125. In re AAAA Bonding Co., LLC, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 342 (Tenn. Crim. App. May 5, 2016).

Suspending a bondsman's protected right to write bail bonds did not violate due process because (1) the bondsman was sufficiently apprised of the reasons, as the bondsman's motion to set the suspension aside correctly stated the reason, which the court's conversation with counsel confirmed, and (2) the bondsman had a sufficient opportunity to be heard as between the suspension and the bondsman's hearing and between the hearing and an order denying the motion to set the suspension aside, the bondsman did not remedy the known reason for the suspension, so these delays were not unreasonable. In re A-River City Bail Bond, Inc., — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 925 (Tenn. Crim. App. Dec. 12, 2016).

In an appeal in which three bail bonding companies that were owned by the same proprietor challenged a trial court's decision to suspend their bonding privileges for six months after law enforcement determined that a bondsman for one of the companies was trading bonds for sex, the court of criminal appeals found the trial court did not cite any legal authority to support its decision to require one of the companies to revise its employee manual. The trial court acted arbitrarily and capriciously in imposing the requirement only on the companies owned by the proprietor. In re Cumberland Bail Bonding, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 554 (Tenn. Crim. App. July 24, 2018).

In an appeal in which three bail bonding companies challenged a trial court's decision to suspend their bonding privileges for six months after law enforcement determined that a bondsman for one of the companies was trading bonds for sex, the court of criminal appeals concluded that the suspension of the company that employed the bondsman, based on an alleged flaw in its employee manual, was unwarranted, as T.C.A. § 40-11-125 does not authorize suspension for flaws in an employee manual. In re Cumberland Bail Bonding, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 554 (Tenn. Crim. App. July 24, 2018).

Second part of Tenn. 31st Jud. Dist. R. 26.05(B) is arbitrary, capricious, and illegal, and because the first part of the rule requires that the bonding company give notice to the defendant of an upcoming court appearance, the second part places an additional burden on the company as it would have presumably notified the defendant of his court appearance and it is not apparent why the company's presence should also be required. Suspension of the company for violation of the local rule was reversed. In re Cumberland Bail Bonding, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 143 (Tenn. Crim. App. Mar. 7, 2019).

Suspension of a bonding company for violating a local rule of court requiring an agent of the bonding company to be present at court appearances of defendants for whom the bonding company served as surety was appropriate because the local rule did not conflict with any statute and was not arbitrary, capricious, or unreasonable. The Tennessee statute pertaining to bonding companies was supplemental to other laws providing for and regulating professional bail bondsmen and did not establish exclusive grounds for suspension. In re Cumberland Bail Bonding, 599 S.W.3d 17, 2020 Tenn. LEXIS 143 (Tenn. Apr. 6, 2020).

40-11-126. “Unprofessional conduct” defined for bondsmen and surety agents.

In addition to the criminal sanctions elsewhere provided by law, the following is deemed unprofessional conduct and no bondsman or surety agent shall:

Suggest or advise the employment of or name for employment any particular attorney to represent the bondsman's principal;
Pay a fee or rebate or give or promise anything of value to any clerk of court, jailer, police officer, peace officer, committing magistrate or any other person who has power to arrest or hold in custody, or to any public official or public employee in order to secure a settlement, compromise, remission or reduction of the amount of any bail bond or the forfeiture of the bail bond;
Pay a fee or rebate or give anything of value to an attorney in bail bond matters except in defense of any action on a bond;
Pay a fee or rebate or give or promise anything of value to the principal or anyone in the principal's behalf;
Participate in the capacity of an attorney at a trial or hearing of one on whose bond the person is a surety;
Solicit business directly or indirectly, by active or passive means, or engage in any other conduct which may reasonably be construed as intended for the purpose of solicitation of business in any place where prisoners are confined or in any place immediately surrounding where prisoners are confined;
Surrender a principal or ask any court to be relieved from a bail bond arbitrarily or without good cause;
Accept anything of value from a principal except the premium; provided, that the bondsman shall be permitted to accept collateral security or other indemnity from the principal which shall be returned upon final termination of liability on the bond. The collateral security or other indemnity required by the bondsman must be reasonable in relation to the amount of the bond. When a bail bondsman accepts collateral, the bondsman shall give a written receipt for the collateral, and this receipt shall give in detail a full description of the collateral received and the terms of redemption; or
Engage in the business of a professional bondsman or surety without maintaining a permanent business office, business telephone and appropriate signage indicating that the office is a professional bail bond business.

Acts 1978, ch. 506, § 39; T.C.A., § 40-1226; Acts 2001, ch. 281, § 1; 2008, ch. 1030, §§ 1, 2; 2009, ch. 239, § 1.

Attorney General Opinions. Limited restrictions on bondsmen's activities at jail, OAG 98-0147 (8/12/98).

40-11-127. Charges preferred against bondsman.

Upon motion, any district attorney general may prefer charges to have a bail bondsman stricken from the approved list pursuant to § 40-11-125 with the same provisions for notice, answer and hearing before the court, and the same right of appeal.

Acts 1978, ch. 506, § 40; T.C.A., § 40-1227.

40-11-128. Certain persons disqualified as bondsmen.

The following persons or classes shall not be bail bondsmen or agents of bail bondsmen or surety companies and shall not directly or indirectly receive any benefits from the execution of any bail bond: jailers, attorneys, police officers, convicted felons, committing magistrates, municipal or magistrate court judges, clerks or deputy clerks, sheriffs, deputy sheriffs and constables, and any person having the power to arrest or having anything to do with the control of federal, state, county or municipal prisoners.

Acts 1978, ch. 506, § 41; T.C.A., § 40-1228.

Attorney General Opinions. Section not in conflict with § 40-11-313, OAG 98-0176 (8/28/98) (Opinion decided under prior law).

Deputy sheriffs are prohibited from serving as bail bondsmen in any district or county in Tennessee, OAG 06-092 (5/16/06).

Section 40-11-128 prohibits the spouse of a deputy sheriff from serving as a bail bondsperson if the spouses commingle funds. OAG 14-80, 2014 Tenn. AG LEXIS 83 (9/4/14).

NOTES TO DECISIONS

1. Restoration of Rights.

Trial court properly denied a petitioner's application to qualify as a bondsman's agent and revoked a bondsman's authorization to write bonds because T.C.A. § 40-11-128 clearly prohibited convicted felons from serving as bond agents and failed to provide an exception for convicted felons whose citizenship rights had been restored. State v. Gray (In re Cox), 389 S.W.3d 794, 2012 Tenn. Crim. App. LEXIS 635 (Tenn. Crim. App. Aug. 20, 2012), appeal denied, Cox v. Gray, — S.W.3d —, 2012 Tenn. LEXIS 836 (Tenn. Nov. 21, 2012).

Evidence failed to show that the superior court clerk and a bonding company's owner commingled funds so that the clerk received an indirect benefit from the company's writing of bail bonds. Thus, the trial court erred by suspending the company's privileges to write bail bonds, and its judgment was vacated. In re AAAA Bonding Co., LLC, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 342 (Tenn. Crim. App. May 5, 2016).

40-11-129. Sureties not discharged by irregularities.

No sureties are discharged by reason of:

The want of any of the qualifications required in this part;
There not being the requisite number of sureties;
Any other agreement than is expressed in the undertaking;
Infancy, lunacy or any other incapacity of any of the other parties thereto; or
The defendant not having joined in the same.

Acts 1978, ch. 506, § 25; T.C.A., § 40-1229.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.46.

40-11-130. Duration of bond or recognizance.

1. If a defendant in a criminal case executes a bond or recognizance before any court or other person authorized by law to take a bond or recognizance for the defendant's personal appearance before a court to answer a criminal charge and there has not been a disposition pursuant to § 40-11-138(b), the bond or recognizance shall be valid and binding upon the defendant and the defendant's sureties, until the time allowed by law for the defendant to appeal a finding of guilt to the court of criminal appeals. If the defendant timely appeals, the defendant shall be required to make a new bond to the court of criminal appeals, unless there has not been a disposition pursuant to § 40-11-138(b) and the trial judge, after examination of the original bond, sets out in a written order that the original bond is sufficient. The court shall use its discretion in determining whether the bond at issue should be changed. No presumption is otherwise intended to be raised in this section. If the time for appealing to the court of criminal appeals expires and the defendant has not filed an appeal, the bondsman, if there has not been a disposition pursuant to § 40-11-138(b), may be required to surrender the defendant to the court for service of the sentence.
2. If the defendant files a timely appeal and the trial court judge orders that a new bond be made, the new bond or recognizance shall be made to the court of criminal appeals and shall not terminate until the final state court to which the defendant may appeal has rendered a decision on the appeal. Upon the conclusion of the appellate process, the bondsman shall be required to surrender the defendant.
1. If the defendant is placed on pretrial, post-plea or judicial diversion, community correction, fined or if the defendant's sentence is suspended and probation granted, any such action shall constitute a disposition pursuant to § 40-11-138(b), the bond or recognizance is terminated, and the bondsman or other surety shall be released from the bondsman's or surety's obligations.
2. If the court orders that the defendant is required to make a new bond or recognizance while on any of the programs set out in subdivision (b)(1), the new bond or recognizance shall be made to the court granting the placement. The new bond or recognizance shall not terminate until the defendant has completed the period of court-ordered supervision or until the defendant's diversion, community correction or probation is revoked. If the defendant's diversion, community correction or probation is revoked, the bondsman may be required to surrender the defendant.
1. A defendant is not required to make any bond or recognizance other than that which is required by subsection (a) or (b), unless ordered to do so by the appropriate court, because the:
  1. Bond is insufficient in amount;
  2. Defendant's sureties are insolvent;
  3. Bail is forfeited; or
  4. Court finds other good and sufficient cause for doing so.
2. If the defendant is required to make another bond or recognizance for any reason set out in subdivision (c)(1), the sureties on the original bond may surrender the defendant and be released on the bond, as is provided by law.

Acts 1978, ch. 506, § 26; T.C.A., § 40-1230; Acts 1991, ch. 347, § 2; 1997, ch. 504, § 1; 2005, ch. 378, § 1; 2007, ch. 239, §§ 1-3.

Compiler's Notes. Acts 1997, ch. 504, which rewrote this section, provided in § 4 that the services performed by the clerks of court under that act with respect to any new bond on appeal, during pretrial diversion, community correction or during probation shall not be included under § 8-21-401(a)(7)(L) (now § 8-21-409(a)(7)(L)), and shall be compensated as otherwise provided by law.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 4.41, 9.42.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, §§ 10, 15.

NOTES TO DECISIONS

4. Construction.

Bail is set on the criminal offense for which a defendant is charged and not criminal offenses for which the defendant may be charged in the future as a result of a criminal episode; the language of both T.C.A. §§ 40-11-130(a)(1) and 40-11-138(b) focus upon the “charge” against the defendant upon which the bond is based, and when read together, the statutes require that a surety remain obligated on a bond set for a criminal charge until that charge is disposed under T.C.A. § 40-11-138(b). State v. Aldaba-Arriaga, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 904 (Tenn. Crim. App. Dec. 14, 2018).

Trial court properly entered a final judgment of forfeiture against a bail bond surety for the total amount of the bond and declined to grant its motion to alter or amend because the charges for driving on a revoked license and DUI remained the same and were not resolved by a statutory disposition that would have relieved the surety of liability on the bond, the surety was not without a remedy, and could have surrendered the defendant at any time after the indictment was issued and before he failed to appear. In re Rader Bonding Co., — S.W.3d —, 2019 Tenn. LEXIS 529 (Tenn. Dec. 23, 2019).

Decisions Under Prior Law

1. Transfer to Another Court.

The action of the juvenile judge in transferring murder case to the criminal court and remanding the accused to the custody of the sheriff did not terminate the bail bond contract between accused and the bonding company, and the bonding company was required to furnish the bond stated in the contract when accused was allowed release on an increased bond six months later or to give accused a partial refund. Carver v. Rader, 531 S.W.2d 114, 1975 Tenn. App. LEXIS 168 (Tenn. Ct. App. 1975).

2. Failure to Appear for Sentence.

A bail bond is a continuing obligation until sentence, and where accused failed to appear for sentence after conviction, the condition of the bond was broken and his surety became liable. Ewing v. United States, 240 F. 241, 1917 U.S. App. LEXIS 2346 (6th Cir. 1917).

3. Failure to Appear for Probation Proceedings.

Reading former T.C.A. § 40-11-130 and T.C.A. § 40-11-138(b) together, and applying the rules of statutory construction, the Tennessee supreme court held that the specific language of § 40-11-138(b) will prevail; thus, a surety is released from his obligation on a bond upon disposition of the case, including sentencing. State v. Davis (In re Driver), 173 S.W.3d 411, 2005 Tenn. LEXIS 787 (Tenn. 2005).

40-11-131. Defects in bond no defense.

Where a bail bond or recognizance is executed by the accused, it shall be valid and binding on the accused and the accused's sureties for the accused's personal appearance before the court as prescribed by law or, if not payable or conditioned as prescribed by law for the appearance of the accused before the court from term to term of the court, it shall be held as if the bond or recognizance had expressly so stipulated and conditioned on its face, and no defect in the bond or recognizance shall avail the defendant and the accused's sureties upon default to appear.

Acts 1978, ch. 506, § 27; T.C.A., § 40-1231.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.46.

40-11-132. Exoneration of bail bondsman or surety by surrender of defendant.

At any time, the bail bondsman or surety may surrender the defendant in their exoneration or the defendant may personally surrender to the officer. Surrender by a bail bondsman or surety shall be for good cause including, but not limited to, the following:

The defendant has violated the contractual provisions between the defendant and the bondsman;
The bondsman or surety has good cause to believe the defendant will not appear as ordered by the court having jurisdiction;
A forfeit, conditional or final, has been rendered against the defendant;
The defendant has failed to appear in court either as ordered by the court or as commanded by any legal process; or
The defendant has been arrested while on bond.

Acts 1978, ch. 506, § 28; T.C.A., § 40-1232; Acts 2001, ch. 426, §§ 3, 4.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.46.

Attorney General Opinions. Sheriff's duty to receive inmate surrendered by bondman, OAG 98-0174 (8/28/98).

NOTES TO DECISIONS

1. Surety Denied Exoneration.

Surety on bail bonds was properly denied exoneration where defendant had been arrested in Louisiana but was released when an extradition request did not issue from Tennessee, and the surety had failed to notify the Tennessee trial judge in the manner required by § 40-11-201. De Graw v. State, 608 S.W.2d 155, 1980 Tenn. Crim. App. LEXIS 328 (Tenn. Crim. App. 1980).

Regardless of whether a capias should have been issued upon the return of the indictment, the absence of a capias did not affect appellant's remedy to surrender defendant and be exonerated from the bond in accordance with the statute; because appellant failed to establish an extreme case justifying exoneration, the trial court did not abuse its discretion in denying appellant's request. State v. Aldaba-Arriaga, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 904 (Tenn. Crim. App. Dec. 14, 2018).

2. Remedies.

Decisions Under Prior Law

1. Power After Forfeiture.

A bail retains the power to arrest and surrender a principal until payment of a forfeiture even though forfeiture has been ordered either conditionally or finally. Poteete v. Olive, 527 S.W.2d 84, 1975 Tenn. LEXIS 636 (Tenn. 1975).

40-11-133. Arrest of defendant by bail bondsman or other authorized person.

For the purposes of §§ 40-11-132, 40-11-203, and 40-11-204, the bail bondsman or surety may arrest the defendant on a certified copy of the undertaking, at any place either in or out of the state, or may, by written authority endorsed on the certified copy, authorize another person to make the arrest. In the event that circumstances prevent the obtaining of a certified copy of the undertaking or capias from the clerk's office at the time of the arrest or surrender, a duplicate copy of the same shall suffice until such time that a certified copy can be obtained from the clerk's office.
After the payment of the forfeiture, the bail bondsman or surety may arrest the defendant on a certified copy of the capias, or may, by a written authority endorsed on the certified copy, authorize another person to make the arrest.
Any capias issued pursuant to a forfeit, whether the forfeit is conditional or final, shall remain in full force and effect until the defendant is apprehended and returned to the criminal justice system, and a disposition is entered in the defendant's case.
Any approved bail bondsman in good standing is authorized to return the defendant to the jurisdiction for which the bail bond is obligated for the defendant's appearance; provided, the bail bondsman is liable for the expenses of returning the defendant and the defendant is located within this state.

Acts 1978, ch. 506, § 31; T.C.A., § 40-1233; Acts 1987, ch. 423, § 4; 1991, ch. 347, § 4; 2001, ch. 426, § 1; 2003, ch. 303, § 1; 2010, ch. 799, § 1; 2011, ch. 367, § 2.

Cross-References. Arrest warrant issued for failure to comply with conditions, § 40-11-112.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, §§ 8, 10.

Attorney General Opinions. Sheriff's duty to receive inmate surrendered by bondsman, OAG 98-0174 (8/28/98).

A bounty hunter can legally break and enter into a residence to make an arrest if it is the suspect's residence only, OAG 01-20 (2/7/01).

T.C.A. § 40-11-133 applies to bounty hunters arresting a suspect wanted by another state, OAG 01-20 (2/7/01).

Decisions Under Prior Law

1. Legality of Arrest.

For arrest of principal by bail or his agents to be legal, the bond or a certified copy thereof must be exhibited to the principal at the time of the arrest, and, if the arrest is made by agents of the bail, the bond or copy thereof must contain a proper endorsement to them by the bail authorizing them to make the arrest. Poteete v. Olive, 527 S.W.2d 84, 1975 Tenn. LEXIS 636 (Tenn. 1975).

40-11-134. Sheriff assisting bail bondsman or surety in arrest.

The bail bondsman or surety is also entitled to the aid of the sheriff of any county in this state in making the arrest, within the bounds of the sheriff's county, by producing a certified copy of the bail bond, and, in person or by agent, accompanying the officer to receive the person arrested.

Acts 1978, ch. 506, § 32; T.C.A., § 40-1234.

Cross-References. Arrest warrant issued for failure to comply with conditions, § 40-11-112.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 8.

40-11-135. Return of bail bond after arrest.

The sheriff making the arrest under § 40-11-134 shall return the copy of the bail bond, with an endorsement of the sheriff's action, in the same manner as the sheriff is required to return a capias.

Acts 1978, ch. 506, § 33; T.C.A., § 40-1235.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 10.

40-11-136. Surrender to sheriff.

The surrender shall be made to the sheriff of the county in which the defendant is bound to answer for the offense, whether by change of venue or otherwise, and the sheriff is not bound to accept the surrender unless made at the place of holding the court in that county, or at the county jail.

Acts 1978, ch. 506, § 30; T.C.A., § 40-1236; 2006, ch. 745, § 1.

Attorney General Opinions. Sheriff's duty to receive inmate surrendered by bondsman, OAG 98-0174 (8/28/98).

NOTES TO DECISIONS

1. Surety Denied Exoneration.

40-11-137. Duty of bail bondsman or surety upon surrendering defendant — Hearing.

Upon surrendering the defendant, the bail bondsman or surety shall, as soon as is reasonably practicable, go before any court having jurisdiction authorized to admit to bail, and notify the officer of the surrender.
1. Any court having jurisdiction so notified shall have the defendant brought before it as soon as practicable, and within seventy-two (72) hours, and determine whether or not the surrender was for good cause.
2. 1. If the court having jurisdiction finds that the surrender was arbitrary or not for good cause, it may order the defendant rereleased upon the same undertaking or impose other conditions as provided by law.
  2. If the surrender is found to be for good cause, the court having jurisdiction shall approve the surrender by endorsement upon the bail bond or by other writing, and it shall be the duty of the surrendering bail bondsman to deliver the written approval or copy of the approval to the sheriff.
3. This subsection (b) shall not apply where a surrender is based on a conditional or final judgment of forfeiture issued by the court having jurisdiction over the defendant.
The court shall fix the amount of premium to be refunded, if any.

Acts 1978, ch. 506, § 29; T.C.A., § 40-1237; Acts 2012, ch. 685, § 1.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.46.

40-11-138. Release of bail bondsmen or sureties from obligations.

If the conditions of the bail bond have been performed and the defendant has been discharged from the defendant's obligations in the cause, the clerk of the court shall return to the bondsman the deposit of any cash. If the bail has been secured by real estate, the clerk of the court shall immediately prepare and forward to the register a written release of the deed of trust on the real estate. The costs of the release shall be paid by the defendant.
1. A bail bondsman or surety shall be released from an obligation under a bail bond if the charge against the surety's principal is disposed of by acquittal, agreement with the state, whether diversion or otherwise, or retirement.
2. 1. If the charge is disposed of by conviction or a plea of guilty, the bond shall remain in effect until the court renders the defendant's sentence.
  2. After conviction or a plea of guilty, and before the court renders the defendant's sentence, the bond shall not be forfeited against a surety, shall not be included in the calculation of a professional bondsman's capacity or solvency, or otherwise negatively impact the surety.
If after the bond has been active and in effect for three (3) years and the state has failed to seek an original indictment before a grand jury against the defendant covered by the bond, the bond shall not be forfeited against the surety and shall not be included in the calculation of a professional bondsman's capacity, solvency, or otherwise negatively impact the surety involved.

Acts 1978, ch. 506, § 34; T.C.A., § 40-1238; Acts 1988, ch. 877, § 1; 1989, ch. 109, § 1; 2013, ch. 388, § 2; 2014, ch. 922, § 1; 2017, ch. 262, § 1.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.45.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 10.

NOTES TO DECISIONS

1. Construction With Other Sections.

2. Release of Obligation.

Trial court erred in issuing a judgment of final forfeiture because a surety's obligation to secure defendant's appearance was discharged upon the dismissal of the first indictment, the second indictment was not a superseding indictment where it was issued more than four weeks after the trial court dismissed the first indictment, and although the surety stated an incorrect dismissal date of the first indictment in its motion to the trial court, the theory for relief was the same theory that the surety asserted on appeal. In re Jenkins Bonding Co., — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 390 (Tenn. Crim. App. May 27, 2016).

Requiring appellant to remain obligated for defendant's appearance for a driving under the influence (DUI) charge under the bonding agreement when the State increased the charge to a felony offense resulted in a unilateral alteration of the agreement; as there was no statutory authority providing for such, once the State increased defendant's charge of DUI second offense to DUI fourth offense, appellant was discharged from its obligations as surety as it related to the $7,500 bond for the DUI second offense charge. State v. Aldaba-Arriaga, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 904 (Tenn. Crim. App. Dec. 14, 2018).

General sessions court did not dismiss the charges against defendant but bound the cases over to the grand jury; thus, the general sessions court's decision did not result in a disposition of the charges that would have relieved appellant of liability. State v. Aldaba-Arriaga, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 904 (Tenn. Crim. App. Dec. 14, 2018).

State did not abandon defendant's charges in the general sessions court but based the counts in the indictment for driving under the influence and driving on a revoked license upon defendant's charges in the general sessions court; thus, the return of the indictment by the grand jury did not constitute the beginning of new criminal proceedings but was a continuation of the proceedings that initiated in the general sessions court. State v. Aldaba-Arriaga, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 904 (Tenn. Crim. App. Dec. 14, 2018).

40-11-139. Forfeiture of bail security — Notice to defendant and sureties.

If the defendant whose release is secured under § 40-11-122 does not comply with the conditions of the bail bond, the court having jurisdiction shall enter an order declaring the bail to be forfeited. Notice of the order of forfeiture shall be immediately sent by regular mail by the clerk of the court to the defendant at the defendant's last known address. The defendant's surety will be served with scire facias upon the forfeiture entered and a capias shall be issued for the defendant. When the defendant, who failed to appear pursuant to conditions of a bail bond, is arrested on a capias, the surety on the defendant's forfeited bond is released.
After the expiration of one hundred eighty (180) days from the date surety is served with scire facias or scire facias is returned to the clerk unserved or undelivered, the court may enter judgment for the state against the defendant and the defendant's sureties for the amount of the bail and costs of the proceedings.
No execution shall issue upon a final forfeit, nor shall proceedings be taken for its enforcement until the expiration of thirty (30) days after its entry.

Acts 1978, ch. 506, § 35; 1979, ch. 160, § 1; T.C.A., § 40-1239; Acts 1997, ch. 504, § 2; 2011, ch. 367, § 1; 2013, ch. 388, § 1; 2016, ch. 963, § 1; 2019, ch. 105, § 1.

Amendments. The 2019 amendment substituted “sent by regular mail” for “sent by certified mail, restricted delivery, return receipt requested,” in the second sentence of (a).

Effective Dates. Acts 2019, ch. 105, § 2. April 11, 2019.

Cross-References. Forfeiture of bail, title 40, ch. 11, part 2.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.45.

NOTES TO DECISIONS

1. Exoneration.

A surety may seek exoneration at the final hearing and after the final hearing until a final judgment against it is actually paid. Indemnity Ins. Co. v. Blackwell, 653 S.W.2d 262, 1983 Tenn. App. LEXIS 546 (Tenn. Ct. App. 1983).

Trial court, which found a bonding company was at fault for knowing that the defendant was in Australia but waiting until after the final forfeiture to apprehend him, did not abuse its discretion by granting only partial exoneration from a final forfeiture of a $200,000 bond. The record did not preponderate against the findings of the trial court, which discredited the bonding company's claim that it did not attempt to obtain the defendant sooner based upon law enforcement's request. In re Am. Bonding Co., — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 409 (Tenn. Crim. App. June 2, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 682 (Tenn. Sept. 23, 2016).

2. Grace Period.

Additional 30 days is not provided after a final forfeiture is entered to surrender defendant before a final forfeiture can be executed; therefore, relief was not warranted simply because defendant surrendered to law enforcement after the final forfeiture, but before payment of such. The time period between the final forfeiture and payment of costs was already addressed by a statute, which left it to the sound discretion of the trial court whether the bail bondsman or surety was relieved of liability of bail. Danny Blankenship Bonding Co. v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 75 (Tenn. Crim. App. Feb. 3, 2016).

40-11-140. Execution on judgment.

1. If judgment is entered in favor of the state on any bail bond, the district attorney general shall have execution issued on the judgment and delivered immediately to the sheriff to be executed by levy on the cash deposited with the clerk of the court or on the real estate described in the deed of trust.
2. The cash shall be used to satisfy the judgment and costs.
3. The real estate shall be sold in the same manner as in execution sales in civil actions and the proceeds of the sale shall be used to satisfy the judgment, all court costs and prior encumbrances, if any.
4. The balance shall be returned to the grantor of the deed of trust.
The real estate so sold may be redeemed in the same manner as real estate may be redeemed after judicial or execution sales in civil actions.
A bond forfeiture shall be collected within the earlier of either five (5) years from the date the defendant failed to appear or the date of last activity in the case, after which time collection from the surety shall be forever barred.

Acts 1978, ch. 506, § 36; T.C.A., § 40-1240; Acts 2004, ch. 753, § 1; 2015, ch. 517, § 2.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 15.

NOTES TO DECISIONS

1. Construction.

T.C.A. § 40-11-140 does not mandate that forfeiture judgments on cash bonds for which a bondsman has undertaken a surety obligation must be satisfied first and only from the general funds that have been deposited by the bondsman for the purpose of being allowed to make bonds, generally, in a particular court. In re Hitt, 910 S.W.2d 900, 1995 Tenn. Crim. App. LEXIS 706 (Tenn. Crim. App. 1995).

2. Court Authority Over Forfeitures.

Criminal court could refuse to grant a bail bondsman's petition to pay certain forfeiture judgments from his cash deposit based on its authority to take reasonable steps to insure that assets were available to cover his potential forfeiture liability. In re Hitt, 910 S.W.2d 900, 1995 Tenn. Crim. App. LEXIS 706 (Tenn. Crim. App. 1995).

40-11-141. Release during trial — Revocation.

A defendant released before trial shall continue on release during trial or release pending trial under the same terms and conditions as were previously imposed, unless the court determines pursuant to § 40-11-137 or § 40-11-144 that other terms and conditions or termination of release are necessary to assure the defendant's presence during trial, or to assure that the defendant's conduct will not obstruct the orderly and expeditious progress of the trial.
If after the defendant is released upon personal recognizance, an unsecured personal appearance bond, or any other bond approved by the court, the defendant violates a condition of release, is charged with an offense committed during the defendant's release, or engages in conduct which results in the obstruction of the orderly and expeditious progress of the trial or other proceedings, then the court may revoke and terminate the defendant's bond and order the defendant held without bail pending trial or without release during trial.

Acts 1978, ch. 506, § 42; T.C.A., § 40-1241; Acts 2011, ch. 57, § 1.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.41.

NOTES TO DECISIONS

1. Constitutional Right to Bail.

2. Revocation of Bail.

When defendant engaged in criminal conduct while released on bond, the Tennessee trial court was required to conduct a bail revocation hearing to determine whether defendant forfeited the constitutional right to pretrial bail in compliance with the procedure established to meet the constitutional due process requirements. State v. Burgins, 464 S.W.3d 298, 2015 Tenn. LEXIS 285 (Tenn. Apr. 7, 2015).

Trial court correctly revoked defendant's bail based upon the need to protect public safety after finding that defendant threatened others, including members of the district attorney's office, inquired about purchasing guns from a pawn shop, and was described as being vulgar and angry. State v. Mason, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 965 (Tenn. Crim. App. Jan. 6, 2016).

40-11-142. Due diligence to determine person’s criminal history.

After an officer arrests a person for one (1) of the offenses listed in this subsection (a), but prior to the determination of bail for the arrest offense by the judge or magistrate, the arresting officer or the officer's agency shall exercise due diligence in determining the existence of prior arrests for, and violations of, § 39-13-106, § 39-13-115, § 39-13-213(a)(2), § 39-13-218, or § 55-10-401.
Using due diligence to determine a person's criminal history means the officer makes use of all available databases, including the Tennessee bureau of investigation interstate identification index (III), the Tennessee criminal history database, driver license history, relevant information related to those prior convictions provided pursuant to § 40-6-203, and other official records regarding the person's prior criminal and arrest history to which the officer or officer's agency has access.

Acts 2016, ch. 1075, § 1.

Code Commission Notes.

Acts 2016, ch. 1075, § 1 enacted a new section § 40-11-153, but the section has been redesignated as § 40-11-142 by authority of the Code Commission.

Compiler's Notes. Former § 40-11-142 (Acts 1978, ch. 506, § 43; T.C.A., § 40-1242), concerning release pending sentence and notice of appeal, was repealed by Acts 1997, ch. 504, § 3, effective July 1, 1997.

NOTES TO DECISIONS

1. Construction.

Statute reduces the risk of a recurrence of a situation in which the defendant is initially charged with and a bond is set on a driving under the influence (DUI) but the State later increases the charge to a felony offense upon learning of the extent of the defendant's prior DUI convictions. State v. Aldaba-Arriaga, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 904 (Tenn. Crim. App. Dec. 14, 2018).

40-11-143. Change in bail or conditions of release.

A motion for a change in bail or other conditions of release shall be by written motion, served upon opposing counsel or upon the defendant personally if the defendant is not represented by counsel, within a time reasonable under the circumstances before the hearing on the motion. In granting or denying a motion for a change in bail or other conditions of release, the court shall set forth in writing the reasons for its action.

Acts 1978, ch. 506, § 44; T.C.A., § 40-1243.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 4.7, 4.10.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 3-5-4.

40-11-144. Review of release decision.

The actions by a trial court from which an appeal lies to the supreme court or court of criminal appeals in granting, denying, setting or altering conditions of the defendant's release shall be reviewable in the manner provided in the Tennessee Rules of Appellate Procedure.
If the action to be reviewed is that of a court from which an appeal lies to a court inferior to the supreme court or court of criminal appeals, review shall be sought in the next higher court upon writ of certiorari.

Acts 1978, ch. 506, § 45; 1981, ch. 449, § 2; T.C.A., § 40-1244.

Cross-References. Release in criminal cases, T.R.A.P. 8.

Attorney General Opinions. Authority of judicial commissioners and judges regarding the setting and alteration of bail. OAG 12-82, 2012 Tenn. AG LEXIS 83 (8/23/12).

40-11-145. “Guaranteed arrest or bail bond certificate” defined.

As used in this section and § 40-11-146, “guaranteed arrest or bail bond certificate” means a printed card or other certificate issued by an association to any of its members, which is signed by the member and contains a printed statement that the association and the surety company are both licensed to do business in this state and that the guaranteed arrest or bail bond certificate is issued pursuant to the terms of this section and § 40-11-146, and:

The bond guarantees the appearance of the person whose signature appears on the card or certificate; and
That the surety company will, in the event of the failure of the person to appear in court at the time set for appearance, pay any fine or forfeiture imposed upon the person in an amount not to exceed one thousand dollars ($1,000).

Acts 1967, ch. 292, § 1; T.C.A., §§ 40-1241, 40-1245; Acts 1984, ch. 620, § 1; 1992, ch. 688, § 1.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.35.

40-11-146. Guaranteed arrest or bail bond certificate in lieu of cash bail.

A guaranteed arrest or bail bond certificate presented by the person whose signature appears thereon shall be accepted in lieu of cash bail in an amount not to exceed five thousand dollars ($5,000) as an arrest or bail bond to guarantee the appearance of the person in any court in this state, at the time required by the court, when the person is arrested for violation of any traffic law of the state or traffic ordinance of any municipality therein relating to the operation of a motor vehicle. The guaranteed arrest or bail bond certificate shall be subject to all of the limitations appearing on its face; but, when accepted, shall be subject to the same forfeiture and enforcement provision as a bail bond or cash bond. However, the violation must have been committed prior to the expiration date shown on the guaranteed arrest or bail bond certificate.

Acts 1967, ch. 292, § 2; T.C.A., §§ 40-1242, 40-1246; Acts 1984, ch. 620, § 2; 1992, ch. 688, § 2; 1995, ch. 270, § 1.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.35.

40-11-147. Admission to bail after arrest in one county upon a warrant issued in another county.

A defendant arrested in one county on a warrant issued in another county for the commission of an offense for which the maximum punishment is imprisonment for ten (10) years or less is entitled to be admitted to bail in the county of arrest by the same officials and in the same manner as if arrested in the county issuing the warrant, subject to the following provisions:

The appropriate clerk or magistrate shall fix the amount of bail to be required and shall set the amount forth on the face of the warrant; and
The sheriff of the county in which the arrest is made, or the sheriff's deputy, shall transmit the undertaking of bail to the sheriff of the county from which the warrant issued, who shall return it to the court as provided in § 40-11-106.

Acts 1978, ch. 866, § 1; T.C.A., § 40-1247.

Compiler's Notes. This section may be affected by Tenn. R. Crim. P. 4.

Cross-References. Bail for defendant charged with commission of crime while free on bail, § 40-11-148.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 3.3.

40-11-148. Bail for defendant charged with commission of crime while free on bail.

When a defendant has been admitted to and released on bail for a criminal offense, whether prior to or during trial or pending appeal, and the defendant is charged with the commission of one (1) or more bailable offenses while released on bail, the judge shall set the defendant's bail on each new offense in an amount not less than twice that which is customarily set for the offense charged.
1. When the court is determining the amount and conditions of bail to be imposed upon a defendant who is charged with driving under the influence of an intoxicant under § 55-10-401, vehicular assault under § 39-13-106, aggravated vehicular assault under § 39-13-115, vehicular homicide under § 39-13-213(a)(2), or aggravated vehicular homicide under § 39-13-218, the court shall consider the use of special conditions for such defendant, including, but not limited to, the conditions set out in subdivision (b)(2), if the offense for which bail is being set was committed while the defendant was released on bail for a prior charge of violating any offense listed in this subdivision (b)(1).
2. The special conditions the court shall consider pursuant to subdivision (b)(1) are:
  1. The use of an ignition interlock device;
  2. The use of a transdermal monitoring device or other alternative alcohol monitoring devices. However, if the court orders the use of a monitoring device on or after July 1, 2016, and the court determines the defendant to be indigent, the court shall order that the portion of the costs of the device that the defendant is unable to pay be paid by the electronic monitoring indigency fund, established in § 55-10-419;
  3. The use of electronic monitoring with random alcohol or drug testing; or
  4. Pretrial residency in an in-patient alcohol or drug rehabilitation center.
3. As used in this subsection (b), “court” includes any person authorized by § 40-11-106 to take bail.

Acts 1981, ch. 351, § 1; T.C.A., § 40-1248; Acts 2010, ch. 867, § 2; 2011, ch. 487, § 3; 2016, ch. 876, § 5; 2016, ch. 993, § 11; 2018, ch. 1046, § 3.

Compiler's Notes. Acts 2018, ch. 1046, § 12 provided that the act, which amended this section, shall apply to offenses committed on or after July 1, 2018.

Amendments. The 2018 amendment substituted “electronic monitoring indigency” for “DUI monitoring” preceding “fund” in (b)(2)(B).

Effective Dates. Acts 2018, ch. 1046, § 12. July 1, 2018.

Cross-References. Bail to be set no higher than necessary, Tenn. Const., art I, § 16, § 40-11-118.

Bailable offenses, Tenn. Const., art. I, § 15, § 40-11-102.

Right to bail, maximum amounts, § 40-11-105.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 4.9, 33.104.

40-11-149. Attorney not permitted to sign bond in criminal case.

It is an offense for an attorney practicing in any of the courts of this state to sign any bond, or enter into any recognizance, as surety for the appearance of any person, other than a member of the attorney's immediate family, in any criminal case pending against the person in any of the courts in this state.
A violation of subsection (a) is a Class C misdemeanor with no incarceration permitted.

Acts 1989, ch. 591, § 2.

Sentencing Commission Comments.

This section allows an attorney to sign on the bond of a person in the attorney's immediate family.

Compiler's Notes. This section is the successor to former § 39-6-1201.

Cross-References. Liability of professional societies, title 62, ch. 50, part 1.

Penalty for Class C misdemeanor, § 40-35-111.

NOTES TO DECISIONS

Decisions Under Prior Law

1. Application.

Former statute did not apply to judgments for fines and costs, but only to bonds and recognizances for the appearance of defendants for trial in pending criminal cases, and did not prohibit attorneys from becoming sureties for such judgments for fines and costs. Halfacre v. State, 112 Tenn. 609, 79 S.W. 132, 1903 Tenn. LEXIS 130 (1903).

40-11-150. Determination of risk to victim prior to release — Conditional release — Discharge of conditions — Notification to law enforcement.

In addition to the factors set out in § 40-11-118, in making a decision concerning the amount of bail required for the release of a defendant who is arrested for the offense of child abuse, child neglect, or child endangerment, as defined in § 39-15-401, the offense of aggravated child abuse, aggravated child neglect, or aggravated child endangerment, as defined in § 39-15-402, the offense of stalking, aggravated stalking or especially aggravated stalking, as defined in § 39-17-315, any criminal offense defined in title 39, chapter 13, in which the alleged victim of the offense is a victim as defined in § 36-3-601(5), (10) or (11), or is in violation of an order of protection as authorized by title 36, chapter 3, part 6, the magistrate shall review the facts of the arrest and detention of the defendant and determine whether the defendant is:
1. A threat to the alleged victim;
2. A threat to public safety; and
3. Reasonably likely to appear in court.
Before releasing a person arrested for or charged with an offense specified in subsection (a), or a violation of an order of protection, the magistrate shall make findings on the record, if possible, concerning the determination made in accordance with subsection (a), and shall impose one (1) or more conditions of release or bail on the defendant to protect the alleged victim of any such offense and to ensure the appearance of the defendant at a subsequent court proceeding. The conditions may include:
1. An order enjoining the defendant from threatening to commit or committing specified offenses against the alleged victim;
2. An order prohibiting the defendant from harassing, annoying, telephoning, contacting or otherwise communicating with the alleged victim, either directly or indirectly;
3. An order directing the defendant to vacate or stay away from the home of the alleged victim and to stay away from any other location where the victim is likely to be;
4. An order prohibiting the defendant from using or possessing a firearm or other weapon specified by the magistrate;
5. An order prohibiting the defendant from possession or consumption of alcohol, controlled substances or controlled substance analogues;
6. An order requiring the defendant to carry or wear a global positioning monitoring system device and, if able, pay the costs associated with operating that device and electronic receptor device provided to the victim, pursuant to § 40-11-152; and
7. Any other order required to protect the safety of the alleged victim and to ensure the appearance of the defendant in court.
Concurrent with the imposition of one (1) or more conditions of release, the magistrate shall:
1. Issue a written order for conditional release containing the conditions of the release on a form prepared by the administrative office of the courts, in consultation with the Tennessee task force against domestic violence, and distributed to judges and magistrates by the administrative office of the courts;
2. Immediately distribute a copy of the order to the law enforcement agency having custody of the defendant, which agency shall file and maintain the order in the same manner as is done for orders of protection; and
3. Provide the law enforcement agency with any available information concerning the location of the victim in a manner that protects the safety of the victim.
The law enforcement agency having custody of the defendant shall provide a copy of the conditions to the defendant upon the defendant's release. Failure to provide the defendant with a copy of the conditions of release does not invalidate the conditions if the defendant has notice of such conditions.
If conditions of release are imposed without a hearing, the defendant may request a prompt hearing before the court having jurisdiction of the offense for which the defendant was arrested or is charged to review the conditions. Upon such a request, the court shall hold a prompt hearing to review the conditions.
When a defendant who is arrested for or charged with an offense specified in subsection (a) or with a violation of an order of protection is released from custody, the law enforcement agency having custody of the defendant shall:
1. Use all reasonable means to immediately notify the victim of the alleged offense of the release and of the address and telephone number of the nearest source of assistance to victims of domestic violence, including, but not limited to, shelters, counseling centers or other appropriate community resources; and
2. Send the victim at the victim's last known address a copy of any conditions of release. If the victim is present at the time the conditions are imposed, a copy of the conditions may be given to the victim at that time; provided, that failure to furnish the victim a copy of any conditions of release shall not constitute negligence per se by the law enforcement agency.
Release of a defendant who is arrested for or charged with a crime specified in subsection (a) or with a violation of an order of protection shall not be delayed because of the requirements of subsection (f).
1. Any offender arrested for the offense of stalking, aggravated stalking, or especially aggravated stalking, as defined in § 39-17-315, or any criminal offense defined in title 39, chapter 13, in which the alleged victim is a victim as defined in § 36-3-601, shall not be released within twelve (12) hours of the time of arrest. The magistrate or other official duly authorized to release the offender may, however, release the offender in less than twelve (12) hours if the official finds that the offender is not a threat to the alleged victim.
2. The findings shall be reduced to writing. The written findings must be attached to the warrant and shall be preserved as a permanent part of the record. The arresting officer shall make official note of the time of the arrest in order to establish the beginning of the twelve-hour period required by this subsection (h).
3. If the offender is released prior to the conclusion of the twelve-hour period, the official shall make all reasonable efforts to directly contact the victim and inform the victim that the person charged with the offense will be released prior to the conclusion of the twelve-hour period mandated in subdivision (h)(1).
4. If an order of protection or restraining order has been issued against an offender arrested for an offense listed in subdivision (h)(1), but the offender has not been served with the order prior to incarceration, the offender shall be served whenever possible with the order prior to the offender's release from incarceration. If an order has not been served on the offender at the conclusion of the offender's twelve-hour holding period, the offender may be released, but the order shall be served as soon as possible after the release. Service remains valid on an offender if it is made after the offender is released from incarceration rather than while incarcerated for the twelve-hour hold period.
1. A person who violates a condition of release imposed pursuant to this section shall be subject to immediate arrest with or without a warrant as provided in § 40-7-103(b). If the violation of the condition of release also constitutes the offense of violation of a protective order as prohibited by § 39-13-113, the person shall be charged with the offense, and the bail of the person violating the condition of release may be revoked by the court having jurisdiction of the offense.
2. If the violation of the condition or release does not also constitute a violation of § 39-13-113, the release condition violation shall be punished as contempt of the court imposing the conditions, and the bail of the person violating the condition of release may be revoked.
1. If a defendant upon whom conditions of release have been imposed pursuant to this section is for any reason discharged or released from those conditions, the discharging or releasing court shall notify all law enforcement agencies within its jurisdiction that the defendant is no longer subject to the conditions originally imposed.
2. The administrative office of the courts, in consultation with the domestic violence state coordinating council, shall prepare a discharge from conditions of release notification form to send to law enforcement agencies as required by subdivision (j)(1) and shall distribute the form to all courts with the authority to discharge or release a defendant from conditions of release.
1. Any offender arrested for a violation of § 71-6-119, involving physical harm or abuse in which the alleged victim is an adult of advanced age as those terms are defined in § 71-6-102, or for a violation of § 39-15-507 or § 39-15-508 involving neglect or aggravated neglect shall not be released within twelve (12) hours of the time of arrest. The magistrate or other official duly authorized to release the offender may, however, release the offender in less than twelve (12) hours if the official finds that the offender is not a threat to the alleged victim.
2. The findings shall be reduced to writing. The written findings must be attached to the warrant and shall be preserved as a permanent part of the record. The arresting officer shall make official note of the time of arrest in order to establish the beginning of the twelve-hour period required by this subsection (k).
3. If the offender is released prior to the conclusion of the twelve-hour period, the official shall make all reasonable efforts to directly contact the victim and inform the victim that the person charged with the offense will be released prior to the conclusion of the twelve-hour period mandated in subdivision (k)(1).
4. 1. A person who violates a condition of release imposed pursuant to this section shall be subject to immediate arrest with or without a warrant as provided in § 40-7-103(b). If the violation of the condition of release also constitutes the offense of violation of a protective order as prohibited by § 39-13-113, the person shall be charged with the offense, and the bail of the person violating the condition of release may be revoked by the court having jurisdiction of the offense.
  2. If the violation of the condition of release does not also constitute a violation of § 39-13-113, the release condition violation shall be punished as contempt of the court imposing the conditions, and the bail of the person violating the condition of release may be revoked.
1. 1. Any officer who has reason to believe that a defendant under arrest may pose a substantial likelihood of serious harm to the defendant or to others may make a recommendation to the community mental health crisis response service that the defendant be evaluated by a member of such service to determine if the defendant is subject to admission to a hospital or treatment resource pursuant to § 33-6-403.
  2. The assessment of the defendant by a member of a community mental health crisis response service shall be completed within twelve (12) hours from the time the defendant is in custody or the magistrate or other official with the authority to determine bail shall set bail and admit the defendant to bail, when appropriate. However, if the assessment is being conducted at the end of the twelve-hour period, the member of the community mental health crisis response service may complete the assessment. The magistrate or other official duly authorized to release the defendant may, however, release the accused in less than twelve (12) hours if the official determines that sufficient time has or will have elapsed for the victim to be protected.
  3. If the assessment of the defendant by the member of the community mental health crisis response service indicates that the defendant does not meet the standards of § 33-6-403, the officer who has reasonable cause to believe that the defendant may pose a substantial likelihood of serious harm shall so report to the magistrate or other official with the authority to determine bail and such magistrate or official shall set bail and admit the defendant to bail, when appropriate.
2. The officer who has reasonable cause to believe that the defendant may pose a substantial likelihood of serious harm shall note the time the defendant was taken into custody for purposes of beginning the twelve-hour assessment period provided in subdivision (l )(1)(B).
1. Following the arrest of a person for any criminal offense defined in title 39, chapter 13, in which the alleged victim of the offense is a domestic abuse victim as defined in § 36-3-601, the court or magistrate shall make a finding whether there is probable cause to believe the respondent either:
  1. Caused serious bodily injury, as defined in § 39-11-106, to the alleged domestic abuse victim; or
  2. Used or displayed a deadly weapon, as defined in § 39-11-106.
2. If the court or magistrate finds probable cause to believe that one (1) or both of the circumstances in subdivision (m)(1) did occur, unless the court or magistrate finds that the offender no longer poses a threat to the alleged victim or public safety, the court or magistrate shall impose the twelve-hour hold period and victim notification requirements in accordance with subsection (h).
3. Prior to the offender's release on bond, the court or magistrate shall issue a no contact order containing all of the bond conditions set out in this section that are applicable to the protection of a domestic abuse victim.

Acts 1995, ch. 410, § 1; 1996, ch. 710, § 1; 1997, ch. 487, § 1; 1999, ch. 128, §§ 1, 2; 1999, ch. 138, §§ 1-3; 2000, ch. 633, § 1; 2001, ch. 309, §§ 1-5; 2004, ch. 780, § 1; 2005, ch. 482, §§ 5, 6; 2006, ch. 920, §§ 5, 6; 2008, ch. 868, § 4; 2010, ch. 937, § 2; 2010, ch. 981, § 5; 2011, ch. 406, § 1; 2012, ch. 848, § 30; 2015, ch. 245, § 1; 2015, ch. 375, §§ 1, 2; 2016, ch. 720, § 1; 2018, ch. 586, § 2; 2018, ch. 1050, § 7.

Compiler's Notes. Acts 2011, ch. 406, § 3 provided that the act, which added subdivision (b)(6), shall apply to all arrests on or after July 1, 2011.

Acts 2018, ch. 1050, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Elderly and Vulnerable Adult Protection Act of 2018.”

Acts 2018, ch. 1050, § 17 provided that the act, which amended this section, shall apply to acts committed on or after January 1, 2019.

Amendments. The 2018 amendment by ch. 586 added (m).

The 2018 amendment by ch. 1050, effective January 1, 2019, in (k)(1), inserted “or for a violation of § 39-15-507 or § 39-15-508 involving neglect or aggravated neglect”.

Effective Dates. Acts 2018, ch. 586, § 4. July 1, 2018.

Acts 2018, ch. 1050, § 17. January 1, 2019; provided, that for the purpose of promulgating rules, the act took effect on May 21, 2018.

Cross-References. Contempt, title 29, ch. 9.

Probation and eligibility, § 40-35-303.

Adult protection act, title 71, ch. 6, part 1.

Law Reviews.

GPS Monitoring of Domestic Violence Offenders in Tennessee: Generating Problems Surreptitiously (Natalie Fox Malone), 43 U. Mem. L. Rev. 171 (2012).

Twelve Angry Hours: Improving Domestic Violence Holds in Tennessee Without Risk of Violating the Constitution, 10 Tenn. J. L. & Pol'y 215 (2015).

Attorney General Opinions. Constitutionality of conditions of release or bail, OAG 95-057 (5/24/95).

Constitutionality of Public Chapter 128, OAG 00-021 (2/15/00).

The 2005 revision of T.C.A. § 36-3-612 in no way modifies the authority of a trial court to punish the violation of a bail condition under the language of T.C.A. § 40-11-150(i), OAG 05-183 (12/22/05).

NOTES TO DECISIONS

1. Violation Found.

Defendants violated T.C.A. § 40-11-150 by holding a domestic violence arrestee for 12 hours before allowing him to post bond when a magistrate had not found him to be a threat to a victim, public safety, or a bail risk. However, the arrestee's constitutional rights to due process were not violated by defendants' mistake as to the meaning of § 40-11-150(h); the fact that defendant was held for 12 hours before being released on bail did not automatically constitute a constitutional violation. Hopkins v. Bradley County, 338 S.W.3d 529, 2010 Tenn. App. LEXIS 724 (Tenn. Ct. App. Nov. 19, 2010), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 369 (Tenn. Apr. 13, 2011).

40-11-151. Notice to person employing bail bondsman.

Any person utilizing the services of a professional bail bondsman or bonding agent shall receive a copy of the following notice with the person's bail bond. No changes may be made in the substance of the notice; but minor printing adjustments may be made. The notice may be printed on the face, back or as a separate attachment to the bond.

NOTICE IF YOU USE A PROFESSIONAL BONDSMAN:

Amount of Charges to You. The premium fee for your bond should not be more than ten percent (10%) of the face amount of your bond. For example, if your bond is $2,500, the premium on the bond should not be more than $250. In addition to this amount, the law also permits a one-time $25 initiation fee, (T.C.A. § 40-11-316).

Insist on a Receipt. The law, (T.C.A. § 40-11-304), requires a bail bondsman to keep a duplicate receipt. The receipt must show the name of the person paying money or pledging property, the name of the person for whom it was paid, the account or purpose for which it is received, and the suit, action or matter in which the money is paid.

Collateral That Can Be Required. If a bondsman insists on collateral in addition to the ten percent (10%) premium fee, you may wish to talk to another bondsman. However, a bondsman may accept collateral, and if the bondsman accepts collateral, the bondsman must give you a written receipt for the collateral, and the receipt shall give in detail a full description of the collateral received and the terms of redemption as required by T.C.A. § 40-11-126(8).

A BONDSMAN MAY NOT LOCK YOU BACK UP OR SURRENDER YOU ARBITRARILY OR WITHOUT GOOD CAUSE. GOOD CAUSE MAY INCLUDE YOUR FAILURE TO PERFORM YOUR OBLIGATIONS UNDER THE CONTRACT YOU HAVE WITH YOUR BONDSMAN (T.C.A. § 40-11-126(7) & § 40-11-132).

Acts 1997, ch. 245, § 1.

40-11-152. Global positioning monitoring system as a condition of bail.

1. For the purposes of this part, “global positioning monitoring system” means a system that electronically determines and reports the location of an individual through the use of a transmitter or similar device carried or worn by the individual that transmits latitude and longitude data to a monitoring entity through global positioning satellite technology.
2. “Global positioning monitoring system” does not include a system that contains or operates global positioning system technology, radio frequency identification technology or any other similar technology that is implanted in or otherwise invades or violates the individual's body.
Pursuant to § 40-11-150, the magistrate may order any defendant who is arrested for the offense of stalking, aggravated stalking or especially aggravated stalking, as defined in § 39-17-315, any criminal offense defined in title 39, chapter 13, in which the alleged victim of the offense is a victim as defined in § 36-3-601(5), (10) or (11), or is in violation of an order of protection as authorized by title 36, chapter 3, part 6, to do the following as a condition of bail:
1. Carry or wear a global positioning monitoring system device and, except as provided by subsection (h), pay the costs associated with operating that system in relation to the defendant; or
2. If the alleged victim of the offense consents after receiving the information described by subsection (d) and, except as provided by subsection (h), pay the costs associated with providing the victim with an electronic receptor device that:
  1. Is capable of receiving the global positioning monitoring system information from the device carried or worn by the defendant; and
  2. Notifies the victim if the defendant is at or near a location that the defendant has been ordered to refrain from going to or near under § 40-11-150.
Before imposing a condition described by subsection (b), the magistrate must afford an alleged victim an opportunity to provide the magistrate with a list of areas from which the victim would like the defendant excluded and shall consider the victim's request, if any, in determining the locations the defendant will be ordered to refrain from going to or near. If the magistrate imposes a condition described by subsection (b), the magistrate shall specifically describe the locations that the defendant has been ordered to refrain from going to or near and the minimum distances, if any, that the defendant must maintain from those locations.
Before imposing a condition described by subdivision (b)(2), the magistrate must provide to an alleged victim information regarding:
1. The victim's right to participate in a global positioning monitoring system or to refuse to participate in that system and the procedure for requesting that the magistrate terminate the victim's participation;
2. The manner in which the global positioning monitoring system technology functions and the risks and limitations of that technology, and the extent to which the system will track and record the victim's location and movements;
3. Any locations that the defendant is ordered to refrain from going to or near and the minimum distances, if any, that the defendant must maintain from those locations;
4. Any sanctions that the magistrate may impose on the defendant for violating a condition of bond imposed under this section;
5. The procedure that the victim is to follow, and support services available to assist the victim, if the defendant violates a condition of bond or if the global positioning monitoring system equipment fails;
6. Community services available to assist the victim in obtaining shelter, counseling, education, child care, legal representation, and other assistance available to address the consequences of domestic violence; and
7. The fact that the victim's communications with the magistrate concerning the global positioning monitoring system and any restrictions to be imposed on the defendant's movements are not confidential.
In addition to the information described by subsection (d), the magistrate shall provide to an alleged victim who participates in a global positioning monitoring system under this section the name and telephone number of an appropriate person employed by a local law enforcement agency who the victim may call to request immediate assistance if the defendant violates a condition of bond imposed under this section.
In determining whether to order a defendant's participation in a global positioning monitoring system under this section, the magistrate shall consider the likelihood that the defendant's participation will deter the defendant from seeking to kill, physically injure, stalk, or otherwise threaten the alleged victim before trial.
An alleged victim may request that the magistrate terminate the victim's participation in a global positioning monitoring system at any time. The magistrate may not impose sanctions on the victim for requesting termination of the victim's participation in or refusing to participate in a global positioning monitoring system under this section.
If the magistrate determines that the defendant is indigent, the magistrate shall order the defendant to pay any portion of the costs required by subsection (b) for which the defendant has the ability to pay, as determined by the magistrate. Any portion of the costs required by subsection (b) that the defendant is unable to pay shall come from the electronic monitoring indigency fund established pursuant to § 55-10-419, subject to the availability of funds.
The magistrate that imposes a condition described by subsection (b) shall order the entity that operates the global positioning monitoring system to notify the magistrate and the appropriate local law enforcement agency if a defendant violates a condition of bond imposed under this section.
This section shall not limit the authority of the magistrate to impose any other reasonable conditions of bond or enter any orders of protection under other applicable statutes.
The global positioning monitoring of any defendant ordered pursuant to this section shall be provided by the county or municipality in which the court ordering the monitoring is located and shall not be provided by the board of parole.

Acts 2011, ch. 406, § 2; 2019, ch. 505, § 9.

Compiler's Notes. Acts 2011, ch. 406, § 3 provided that the act, which enacted this section, shall apply to all arrests on or after July 1, 2011.

Acts 2012, ch. 727, § 1 amended § 4-3-104, which concerns name changes of departments and divisions, to provide that references to the board of probation and parole, formerly referred to in this section, are deemed references to the board of parole.

Acts 2019, ch. 505, § 10 provided that notwithstanding any law to the contrary, the state treasurer may use any funds in the electronic monitoring indigency fund to pay for the use of global positioning monitoring devices by indigent persons for eligible offenses as a condition of bail or sentencing ordered by a court between July 1, 2016, and August 16, 2018, that were previously submitted to the state treasurer for approval on or before August 16, 2018.

Amendments. The 2019 amendment rewrote (h), which read: “The magistrate may allow a defendant to perform community service in lieu of paying the costs required by subsection (b) if the magistrate determines that the defendant is indigent.”

Effective Dates. Acts 2019, ch. 505, § 11. July 1, 2019.

Cross-References. Confidentiality of public records, § 10-7-504.

Law Reviews.

GPS Monitoring of Domestic Violence Offenders in Tennessee: Generating Problems Surreptitiously (Natalie Fox Malone), 43 U. Mem. L. Rev. 171 (2012).

Part 2
Forfeiture of Bail

40-11-201. Conditional judgment on failure to appear.

If the defendant who gives bail or makes a cash deposit as provided in part 1 of this chapter does not appear according to the undertaking, a conditional judgment may be entered against the defendant and the defendant's sureties, or against the defendant alone, in case of a deposit, or the court may grant an extension.
No forfeiture or conditional forfeiture of any appearance or bail bond shall be rendered in any case where a statement of a licensed physician is furnished to the court showing that the principal in the bond is prevented from attending by some mental or physical disability, or where evidence of the defendant's incarceration is furnished to the court.
The appearance or bail bond shall remain in full force and effect until the principal is physically or mentally able to appear, or until a detainer against the principal is filed with the detaining authority. On the filing of a detainer, the bondsman and sureties shall remain liable for the expenses of returning the principal to this jurisdiction for trial when the principal is released by the detaining authority. If the detainer request is refused or if the detaining authority releases the principal notwithstanding the filing of the detainer, the surety shall not be liable in the undertaking. It shall be the duty of the bondsman or surety to present to the presiding court, in a timely manner, all appropriate documentation evidencing that the detainer was properly filed or refused, or that the detaining authority released the principal notwithstanding the filing of the detainer. The liability of any bondsman or surety shall not exceed the amount of the bail bond. After trial, however, if it is necessary to return the principal to the detaining authority in another jurisdiction, all expenses incurred in the return shall be paid by the state of Tennessee. As used in this subsection (c), “detainer” includes any means of requesting a defendant be returned to this jurisdiction, including, but not limited to, a detainer, habeas corpus, or extradition.

Code 1858, § 5177; Shan., § 7141; Code 1932, § 11688; modified; Acts 1967, ch. 333, § 1; 1977, ch. 370, § 1; T.C.A. (orig. ed.), § 40-1301; Acts 1988, ch. 579, § 1; 2007, ch. 255, §§ 1, 2; 2008, ch. 1131, § 1; 2010, ch. 866, § 1; 2015, ch. 517, § 1; 2017, ch. 100, § 1.

Cross-References. Forfeiture of bail of person awaiting extradition, § 40-9-107.

Forfeiture of bail security, § 40-11-139.

Forfeiture of defendant's bail deposit, § 40-11-120.

Forfeiture of recognizance given by witness, § 40-17-111.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 4.45, 4.46.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, §§ 1, 11, 12, 15.

Law Reviews.

Bail Bonds Under the Tennessee Bail Reform Act of 1978 (Judge David D. Creekmore), 21 No. 1, Tenn. B.J. 23 (1985).

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

The Tennessee Court Systems — Prosecution, 8 Mem. St. U.L. Rev. 477.

Attorney General Opinions. A bail bondsman is relieved from the amount of bond after following the requirements of T.C.A. § 40-11-201(c), and is only liable for the cost of transporting the defendant to the trial court, OAG 07-150 (11/13/07).

NOTES TO DECISIONS

1. Deposit Made — Judgment by Default.

In case money is deposited with the clerk of the court instead of bail, no bond or recognizance is necessary, and a judgment by default may be taken on failure of the defendant to appear. Wash v. State, 43 Tenn. 91, 1866 Tenn. LEXIS 19 (1866).

2. Exclusiveness of Remedy.

In enforcement of forfeiture and for the exoneration of bail, there is no distinction between a recognizance and a bail bond. State v. Gann, 164 Tenn. 601, 51 S.W.2d 490, 1931 Tenn. LEXIS 56 (1932).

3. Filing of Recognizance — Recital in Judgment.

Judgment must show that the recognizance was returned into court, but where it is not expressly stated in the judgment that the recognizance was filed, and the judgment recited that it appeared to the court that a recognizance had been entered into before the committing magistrate, this was a sufficient recital that the recognizance was filed in the court. Pugh v. State, 39 Tenn. 227, 1858 Tenn. LEXIS 285 (1858).

4. Filing of Detainer.

Provision that upon filing of the detainer the court “shall exonerate” the bondsmen and sureties is mandatory. Blankenship v. State, 223 Tenn. 158, 443 S.W.2d 442, 1969 Tenn. LEXIS 398 (1969).

5. Surety Denied Exoneration.

Surety on bail bonds was properly denied exoneration where defendant had been arrested in Louisiana but was released when an extradition request did not issue from Tennessee, and the surety had failed to notify the Tennessee trial judge in the manner required by this section. De Graw v. State, 608 S.W.2d 155, 1980 Tenn. Crim. App. LEXIS 328 (Tenn. Crim. App. 1980).

Trial court, which found a bonding company was at fault for knowing that the defendant was in Australia but waiting until after the final forfeiture to apprehend him, did not abuse its discretion by ordering the bonding company to forfeit $75,000 of a $200,000 bond pursuant to T.C.A. § 40-11-201. The record did not preponderate against the findings of the trial court, which discredited the bonding company's claim that it did not attempt to obtain the defendant sooner based upon law enforcement's request. In re Am. Bonding Co., — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 409 (Tenn. Crim. App. June 2, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 682 (Tenn. Sept. 23, 2016).

6. Review.

Because there was the absence of an adequate record on appeal, the court of criminal appeals had to presume that the order denying a bail bonding company's request to be exonerated was accurate. In re Stoney's Bail Bonding, Inc., — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 559 (Tenn. Crim. App. June 29, 2017).

40-11-202. Scire facias.

A scire facias shall issue to notify the defendant and the defendant's sureties to show cause why the judgment shall not be made final.

Code 1858, § 5178; Shan., § 7142; Code 1932, § 11689; T.C.A. (orig. ed.), § 40-1302.

Cross-References. Form of scire facias, §§ 29-32-108, 29-32-109.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 15.

NOTES TO DECISIONS

1. Scire Facias Not Filed — Remedy.

Sureties on whom scire facias was not served had a right to enjoin executions upon judgments entered in criminal court on the bail bond. Diehl v. Knight, 158 Tenn. 246, 12 S.W.2d 717, 1928 Tenn. LEXIS 145 (1929).

2. Writ of Error by Sureties — Errors Available.

Where no defense was made by the sureties to the scire facias sued out on the judgment nisi and served upon them, any mere irregularity in the proceedings will be of no avail upon a writ of error, and the only errors which can be relied on are those going to the merits, such as want of jurisdiction in the court, or a fatal defect in the scire facias. Brewer v. State, 74 Tenn. 198, 1880 Tenn. LEXIS 232 (1880).

40-11-203. Exoneration by surrender of defendant.

After the liability of the bail bondsman or surety has become fixed by forfeiture, and before payment, the bail bondsman or surety may be exonerated from the liability by the surrender of the defendant and the payment of all costs; but may be exonerated from costs also if, in the opinion of the court, the bail bondsman or surety has been in no fault.
It is left to the sound discretion of the court whether the bail bondsman or surety shall be relieved from the liability of bail to any and to what extent.

Code 1858, §§ 5180, 5181 (deriv. Acts 1811, ch. 2); Shan., §§ 7144, 7145; Code 1932, §§ 11693, 11694; T.C.A. (orig. ed.), § 40-1303.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, §§ 10, 11, 15.

NOTES TO DECISIONS

0.5 Construction.

Statutory language in the current forfeiture statute is permissive rather than mandatory. In re Bonds, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 222 (Tenn. Crim. App. Mar. 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 501 (Tenn. June 23, 2016).

1. Exclusiveness of Statutory Mode.

Statutory procedure upon forfeiture of bail is exclusive and must be followed. State v. Gann, 164 Tenn. 601, 51 S.W.2d 490, 1931 Tenn. LEXIS 56 (1932).

2. Discretionary Nature of Power.

Application is not mandatory but discretionary or permissive. Black v. State, 154 Tenn. 88, 290 S.W. 20, 1926 Tenn. LEXIS 107 (1927); Diehl v. Knight, 158 Tenn. 246, 12 S.W.2d 717, 1928 Tenn. LEXIS 145 (1929).

The discretion conferred is broad and comprehensive, empowering the court to decide each case according to its conception of justice. Black v. State, 154 Tenn. 88, 290 S.W. 20, 1926 Tenn. LEXIS 107 (1927).

3. Court with Authority to Exonerate.

The statutes clothe the judge of the court to which a party is held by bail with a discretion in the exoneration of bail which cannot be exercised by another court assuming jurisdiction in a separate action to enforce the bond as a common-law obligation. State v. Gann, 164 Tenn. 601, 51 S.W.2d 490, 1931 Tenn. LEXIS 56 (1932).

4. Surrender as Prerequisite to Relief.

In order to entitle the sureties on a forfeited bail bond to relief, it is required that the body of their principal be produced in court, and under this section no relief can be had without the surrender of the defendant. State v. Frankgos, 114 Tenn. 76, 85 S.W. 79, 1904 Tenn. LEXIS 72 (1904); Goldsby v. State, 159 Tenn. 396, 19 S.W.2d 241, 1928 Tenn. LEXIS 96 (1929).

5. Entry of Surrender — Necessity.

Where the officer taking surrender and granting the discharge fails to make proper entry on the bailpiece there can be no defense by surety to a scire facias upon forfeiture. United States v. Stevens, 16 F. 101, 1883 U.S. App. LEXIS 2114 (C.C.D. Tenn. 1883).

Even though the court granted the defendant a continuance in order to attend his mother's funeral, where the defendant subsequently failed to appear and apparently fled to avoid prosecution, and where the defendant had not been surrendered by the surety, the failure to appear could not be described as being without fault; since the surety was not present in the courtroom at the time the continuance was granted, although she was aware of the defendant's scheduled appearance, exoneration of the surety was properly denied. State v. Parham, 854 S.W.2d 902, 1993 Tenn. Crim. App. LEXIS 100 (Tenn. Crim. App. 1993).

6. Failure to Notify Judge.

7. Grace Period.

8. No Abuse of Discretion.

In a bail bond case, due to a failure to include a transcript and the fact that the trial court's order did not enumerate reasons for denying an exoneration motion, an appellate court presumed that no abuse of discretion occurred in the trial court's decision. Danny Blankenship Bonding Co. v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 75 (Tenn. Crim. App. Feb. 3, 2016).

9. Hearing.

In a bail bond case, an argument that a bail bondsman was entitled to a hearing prior to a forfeiture was rejected because an opportunity was given to be heard on the matter, pursuant to the scire facias issued by the general sessions court. Danny Blankenship Bonding Co. v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 75 (Tenn. Crim. App. Feb. 3, 2016).

40-11-204. Relief on forfeited recognizances.

1. Except as provided in subsection (b), the judges of the general sessions, circuit, criminal and supreme courts may receive, hear and determine the petition of any person who claims relief is merited on any recognizances forfeited, and so lessen or absolutely remit the same, less a clerk's commission of five percent (5%) of the original paid final forfeiture or one thousand dollars ($1,000), whichever is less, and do all and everything therein as they shall deem just and right, and consistent with the welfare of the state, as well as the person praying for relief. This power shall extend to the relief of those against whom final judgment has been entered whether or not the judgment has been paid, as well as to the relief of those against whom proceedings are in progress.
2. Cities, which have adopted home rule, may elect to authorize their city court judges to lessen or remit forfeitures in accordance with this section if those judges have jurisdiction to hear state misdemeanor cases.
In counties having a population of more than seven hundred thousand (700,000), according to the 1990 federal census or any subsequent federal census, the clerk's commission authorized by this section shall be ten percent (10%) of the forfeiture or one thousand dollars ($1,000), whichever is less.

Code 1858, §§ 5182, 5183 (deriv. Acts 1788, ch. 32, § 2); Acts 1915, ch. 29, § 1; Shan., §§ 7146, 7147; Code 1932, §§ 11695, 11696; Acts 1974, ch. 599, § 1; T.C.A. (orig. ed.), § 40-1304; Acts 1987, ch. 423, § 5; 1993, ch. 96, § 1; 1995, ch. 456, § 7; 1997, ch. 386, § 1.

Compiler's Notes. For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, §§ 10, 11, 15.

NOTES TO DECISIONS

1. Construction with Other Sections.

The sections relating to exoneration of bail must be construed together, and to interpret § 40-11-203 to be mandatory would make it conflict with this section. Black v. State, 154 Tenn. 88, 290 S.W. 20, 1926 Tenn. LEXIS 107 (1927).

2. Discretion.

Where bond for appearance was forfeited, and conditional judgment entered against sureties, but before final judgment defendant appeared, held that it was within discretion of court to refuse to release sureties on their paying costs. Black v. State, 154 Tenn. 88, 290 S.W. 20, 1926 Tenn. LEXIS 107 (1927).

This statute is discretionary or permissive, and confers no legal rights upon sureties. Diehl v. Knight, 158 Tenn. 246, 12 S.W.2d 717, 1928 Tenn. LEXIS 145 (1929).

Trial courts have the discretion to relieve bail bondsmen or other sureties from the liability of a bond; trial court did not abuse its discretion in granting only partial exoneration on a bond where the bonding company had taken prompt action to return a defendant to custody after being notified that the defendant had failed to appear as required but which admitted that it exercised no supervision over agents with whom the bonding company contracted to write bail bonds. State v. Scarbrough, 72 S.W.3d 667, 2001 Tenn. Crim. App. LEXIS 817 (Tenn. Crim. App. 2001).

3. Fixed Liability Required.

This section has reference to fixed liability and not to cases where there is a denial of liability. Diehl v. Knight, 158 Tenn. 246, 12 S.W.2d 717, 1928 Tenn. LEXIS 145 (1929).

4. Extent to Which Exoneration Authorized.

The power vested in the court, to relieve against a forfeited recognizance, is to be exercised only in extreme cases, such as the death of the defendant or some other condition making it equally impossible for them to surrender him, and was not intended to authorize courts to relieve sureties upon bail bonds and recognizances of parties charged with crime, who have made default and are still at large, merely because the sureties have, in good faith and at much expense, made unavailing efforts to recapture their principal. State v. Frankgos, 114 Tenn. 76, 85 S.W. 79, 1904 Tenn. LEXIS 72 (1904).

5. Pending Cases Covered.

The discretion is not confined to cases where final judgments have been rendered but extends to cases yet in progress. Black v. State, 154 Tenn. 88, 290 S.W. 20, 1926 Tenn. LEXIS 107 (1927).

6. Relief After Judgment.

Relief may be granted under this section, after final judgment, and thus until payment, the sureties have an inducement to continue their efforts to apprehend the fugitive. State v. Frankgos, 114 Tenn. 76, 85 S.W. 79, 1904 Tenn. LEXIS 72 (1904).

While the supreme court has the discretion to exonerate a bondsman in toto or lessen the amount of forfeiture when a petition for such action is timely filed showing merit, it does not have that authority after final judgment, execution and collection of the forfeiture. Wallace v. State, 223 Tenn. 255, 443 S.W.2d 656, 1969 Tenn. LEXIS 409 (1969).

A petition for remission of forfeited bond was only to be granted in the most extreme cases, such as where the sureties cannot produce the principal on account of his death or some other condition of affairs which make it equally impossible for them to surrender him, and a petition based solely on good faith diligent efforts to recapture was denied. State v. Le Quire, 672 S.W.2d 221, 1984 Tenn. Crim. App. LEXIS 2327 (Tenn. Crim. App. 1984); State v. Shredeh, 909 S.W.2d 833, 1995 Tenn. Crim. App. LEXIS 263 (Tenn. Crim. App. 1995), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 515 (Tenn. Sept. 5, 1995).

7. Arrest and Imprisonment of Defendant in Foreign State.

Subsequent arrest and imprisonment in a foreign state of one at liberty on bond does not excuse the carrying out of the obligations of the bail bond or recognizance. Wallace v. State, 196 Tenn. 577, 269 S.W.2d 780, 1954 Tenn. LEXIS 423 (1954).

Failure of district attorney to request foreign state to surrender, before expiration of sentence, person imprisoned by foreign state for crime committed therein while free on bond in home state, does not deprive Tennessee of right to declare bond forfeited. Wallace v. State, 196 Tenn. 577, 269 S.W.2d 780, 1954 Tenn. LEXIS 423 (1954).

8. Review on Appeal.

The Tennessee supreme court will not review the trial judge's discretion in determining whether a petitioner merits relief on recognizances forfeited. Wallace v. State, 196 Tenn. 577, 269 S.W.2d 780, 1954 Tenn. LEXIS 423 (1954).

9. Hearing on Petition for Exoneration.

Whether deportation of a defendant afforded a bail bond company relief depended upon the facts of the case, and thus a hearing on the company's petition for exoneration was necessary. In re Sanford & Sons Bail Bonds, 96 S.W.3d 199, 2002 Tenn. Crim. App. LEXIS 473 (Tenn. Crim. App. 2002).

10. Relief Denied.

Amount of the bond, which was $ 1 million, did not make it impossible for defendant to appear, and in writing the bond, appellants assumed a calculated risk in the ordinary course of business and entered into an agreement to assure the presence of defendant; it could not be said that the trial court has abused its discretion by enforcing the terms when there has been a breach of the contract, there were no extreme circumstances, comparable to death, which made it impossible to surrender defendant before final forfeiture was entered, and appellants were not entitled to relief from forfeiture. In re Bonds, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 222 (Tenn. Crim. App. Mar. 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 501 (Tenn. June 23, 2016).

40-11-205. Refund of forfeiture payments on reversal.

Money paid into the treasury by virtue of a judgment of the circuit or criminal court upon a forfeited recognizance shall be refunded to the party paying the same, upon the reversal of the judgment by the supreme court, on appeal or writ of error duly prosecuted. The commissioner of finance and administration shall give the party a warrant for the money upon the production of a certified copy of the judgment of reversal.

Code 1858, § 5184 (deriv. Acts 1835-1836, ch. 70); Shan., § 7148; Code 1932, § 11697; impl. am. Acts 1937, ch. 33, §§ 24, 29; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1961, ch. 97, § 3; T.C.A. (orig. ed.), § 40-1305.

40-11-206. State purchase of land sold to collect on forfeiture.

In all cases where land or lands shall be sold at sheriff's sale for the purpose of collecting the amount due on forfeited appearance bonds in criminal cases, the state shall be authorized to purchase any of the lands. The amount paid by the state for the purchase of the lands shall in no case be greater than the amount of the bond upon which forfeiture has been taken and upon which the forfeiture the execution was issued.

Acts 1921, ch. 140, § 1; Shan. Supp., § 7148a1; Code 1932, § 11698; T.C.A. (orig. ed.), § 40-1306.

40-11-207. Notice to district attorney general of sale of land.

In all cases of sales under execution issued to collect the amount of forfeiture taken upon appearance bonds in criminal cases, it is the duty of the sheriff to send to the district attorney general for the district in which the sale is to be made a copy of the advertisement of the sale.

Acts 1921, ch. 140, § 2; Shan. Supp., § 7148a2; Code 1932, § 11699; modified; T.C.A. (orig. ed.), § 40-1307.

40-11-208. Bid by district attorney general.

The district attorney general for the district in which the sale is to be made shall then determine the amount or amounts which the property should bring at a fair sale, and, if the district attorney general thinks it expedient to do so, shall, in person or by agent, bid the property in for the state of Tennessee at a sum that the district attorney general thinks the property is reasonably worth. The amount at which the property is purchased shall in no event exceed the amount of the forfeiture for the satisfaction of which execution has been issued and the sale held.

Acts 1921, ch. 140, § 2; 1925, ch. 63, § 1; Shan. Supp., § 7148a3; Code 1932, § 11700; modified; T.C.A. (orig. ed.), § 40-1308.

40-11-209. Certificate of district attorney general.

The district attorney general for the district in which the sale is to be made shall thereupon issue and deliver a certificate to the sheriff of the county conducting the sale, where the land or lands are situated. The certificate shall be in the following words and figures:

State of Tennessee, County of

day of (year)

I, , district attorney general for the judicial district do hereby certify that I have purchased on the day of (year) on behalf of and in the name of the State of Tennessee at a sale under execution at the courthouse, in County, Tennessee from the sheriff of County, said execution having been issued to collect the sum of dollars, the amount of the forfeiture taken upon the appearance bond of indicted day of (year) by the grand jury of County, upon a charge of the following described real estate for the sum of $ .

DESCRIBED REAL ESTATE

The above described real estate having been levied upon as the property of , surety upon the appearance bond of the aforementioned defendant, viz.,

This land having been purchased and bid in by me on behalf of and in the name of the State of Tennessee, under and by virtue of the authority vested in me by Tennessee Code Annotated §§ 40-11-206 — 40-11-208, and acts amendatory thereto.

This certificate is issued by me and delivered to the sheriff of County aforesaid in lieu of the sum of $ bid by me.

District Attorney General for the Judicial District

Acts 1925, ch. 63, § 1; Shan. Supp., § 7148a4; Code 1932, § 11701; modified; T.C.A. (orig. ed.), § 40-1309.

40-11-210. Disposition of copies of certificate.

The district attorney general shall issue a separate certificate in duplicate, for each separate plot of land offered for sale by the sheriff under §§ 40-11-206 — 40-11-208 and so purchased by the district attorney general, one (1) copy of the certificate to be delivered to the sheriff and one (1) copy to the clerk of the court having jurisdiction of the cause to be retained by the clerk in the records of the court.

Acts 1925, ch. 63, § 1; Shan. Supp., § 7148a5; Code 1932, § 11702; modified; T.C.A. (orig. ed.), § 40-1310.

40-11-211. Certificate received and delivered to state or county.

The sheriff shall receive the certificate in lieu of money, as now provided by law, which certificate the sheriff shall in lieu of money turn over and deliver to the state of Tennessee, or to the county, whichever may be the one entitled to the proceeds of the sale under the execution.

Acts 1925, ch. 63, § 1; Shan. Supp., § 7148a6; Code 1932, § 11703; T.C.A. (orig. ed.), § 40-1311.

40-11-212. Sheriff's deed delivered to district attorney general.

Upon delivery of the certificate by the district attorney general to the sheriff, the sheriff shall issue a deed to the state for the lands so purchased by the state and deliver it to the district attorney general in whose district the purchase is made.

Acts 1925, ch. 63, § 1; Shan. Supp., § 7148a7; Code 1932, § 11704; modified; T.C.A. (orig. ed.), § 40-1312.

40-11-213. Delivery of deed to county.

In all cases where the county is entitled to the proceeds of the sale under execution, under sales as provided in §§ 40-11-206 — 40-11-212 after the expiration of the period of redemption provided in § 40-11-215, the commissioner of finance and administration shall issue a deed for lands purchased under execution to the county so entitled to the deed upon the demand of the county mayor of that county.

Acts 1925, ch. 63, § 1; Shan. Supp., § 7148a8; Code 1932, § 11705; impl. am. Acts 1937, ch. 33, § 24; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1961, ch. 97, § 3; impl. am. Acts 1978, ch. 934, §§ 16, 36; T.C.A. (orig. ed.), § 40-1313; Acts 2003, ch. 90, § 2.

40-11-214. Payment of costs — Notice to clerk of court.

Whenever property has been purchased by the state, under §§ 40-11-206 — 40-11-215, it is the duty of the district attorney general to certify to the commissioner of finance and administration the amount of costs incurred by the sheriff in making the sale, including the fees and commissions of the sheriff for making the sale, and forward same, together with the sheriff's deed, to the commissioner. Upon receipt of the certification, the amount of costs so certified shall be paid by the commissioner to the sheriff, as other criminal costs are paid.
The commissioner shall notify the clerk of the court wherein the forfeiture was taken of the amount of the purchase price and of the costs so paid.

Acts 1921, ch. 140, § 3; Shan. Supp., § 7148a9; Code 1932, § 11706; impl. am. Acts 1937, ch. 33, §§ 24, 29; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1961, ch. 97, § 3; modified; T.C.A. (orig. ed.), § 40-1314.

40-11-215. Redemption of property.

The owner or owners of the property sold and bought by the state under §§ 40-11-206 — 40-11-215 shall be entitled to redeem the property within two (2) years from the date of the sale by paying the amount for which the property was purchased by the state, together with all costs of the sale, and six percent (6%) interest on the purchase price and costs.
The redemption shall be made by paying the funds to the clerk of the court in the county in which the forfeiture was originally taken. The clerk shall thereupon issue to the party a certificate of redemption, which certificate shall divest all title of the state in and to the lands.
A report of all lands so redeemed shall be made monthly to the commissioner of finance and administration, accompanied by the sums paid for the redemption.
If the lands are not redeemed within the period of two (2) years, title thereto shall vest absolutely in the state, and the state shall have the right to convey the title to any purchaser who shall pay the amount of the purchase price and costs, and interest thereon from the date of sale. Any deeds, however, after the redemption period has expired, shall be made by the commissioner of finance and administration.

Acts 1921, ch. 140, § 4; Shan. Supp., §§ 7148a10-7148a13; Code 1932, §§ 11707-11710; impl. am. Acts 1937, ch. 33, § 24; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1961, ch. 97, § 3; T.C.A. (orig. ed.), §§ 40-1315 — 40-1318; Acts 2005, ch. 429, § 11.

Part 3
Professional Bondsmen

40-11-301. Part definitions.

As used in this part, unless the context otherwise requires:

“Available capacity” is a professional bondsman's capacity reduced by the total amount of bail, expressed in dollars, which the professional bondsman has outstanding and from which the professional bondsman has not been released;
“Capacity” is the total amount of bail, expressed in dollars, on which a professional bondsman may act as surety;
“Equity in real estate” is determined by taking the fair market value of the real estate and subtracting from that value all outstanding liens and encumbrances. For purposes of establishing fair market value, either the county property assessor's appraisal or an opinion of value from a licensed real estate broker may be used; and
1. “Professional bondsman” means any person, firm, partnership or corporation, engaged for profit in the business of furnishing bail, making bonds or entering into undertakings, as surety, in criminal proceedings, or for the appearance of persons charged with any criminal offense or violation of law or ordinance punishable by fine, imprisonment or death, before any of the courts of this state, including municipal courts or securing the payment of fines, judgments or damages imposed and of costs assessed by those courts upon preliminary or final disposition thereof;
2. “Professional bondsman” or “bondsman” extends to and includes the agents, representatives or employees of a professional bondsman, or those acting for the bondsman, whether with or without compensation or salary. The business of a professional bondsman shall be limited to the acts, transactions and undertakings enumerated in subdivision (4)(A) and to no others.

Acts 1939, ch. 199, § 1; C. Supp. 1950, § 11715.1; T.C.A. (orig. ed.), § 40-1401; Acts 1983, ch. 16, §§ 1-3; 1984, ch. 760, § 1; 1985, ch. 394, § 1; 2003, ch. 303, § 3.

Cross-References. Bondsman, qualifications and criminal penalties, §§ 40-11-124, 40-11-125, 40-11-126, 40-11-127, 40-11-128.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 1.

Law Reviews.

Bail Bonds Under the Tennessee Bail Reform Act of 1978 (Judge David D. Creekmore), 21 No. 1, Tenn. B.J. 23 (1985).

Attorney General Opinions. Bounty hunters may carry firearms in Tennessee, but only to the same extent as may private citizens, OAG 03-018 (2/19/03).

40-11-302. Applicability of part — Exclusion from insurance company laws — Acting as sureties — Bonding capacity.

This part shall apply to all professional bondsmen, but shall not apply to or affect those persons, firms, partnerships or corporations engaged exclusively in the business of making judicial or other bonds, or providing or furnishing indemnity, as surety, in suits or actions of a purely civil nature; and shall not apply to persons, firms, partnerships or corporations, which become bondsmen without receiving consideration from, or as an accommodation to, an accused in a single transaction; provided, that if those persons, firms, partnerships or corporations shall undertake to furnish bail, make appearance bonds or enter into similar undertakings, as surety, for a consideration in a criminal case, then this part shall apply to them in respect of such transactions, as well as to those engaged exclusively in the business of a professional bondsman. All provisions of this part will apply to agents of insurance companies making appearance bonds in the criminal trial or lower courts and in the court of criminal appeals and supreme court of Tennessee.
A professional bondsman, as defined in § 40-11-301, is specifically excluded from the laws governing insurance companies and any regulatory authority exercised by the department of commerce and insurance except as provided in subsections (c) and (d).
A professional bondsman may act as surety on the following civil bonds, to a maximum of ten thousand dollars ($10,000), without qualifying with the department as an insurance company or agent being subject to the laws governing insurance companies or agents, so long as the court regulating the professional bondsman's criminal bonding activities has established regulations for the civil bonding activities of the professional bondsman which, at a minimum, shall require a ten percent (10%) security. These bonds are: appeal, attachment, certiorari, cost, detainer, injunction, lis pendens, possession and restraining order. A professional bondsman may act as surety on appearance and contempt bonds without qualifying with the department as an insurance company or agent.
Any professional bondsman acting as surety under subsection (c) shall also be subject to the following:
1. The commissioner of commerce and insurance may investigate the civil bonding activities of any professional bondsman;
2. After investigation, if the commissioner has reasonable grounds to believe that the civil bonding activities are not in the best interest of the general public, the commissioner shall make a report of the investigation and any recommendations, and forward a copy to the court regulating the professional bondsman; and
3. The court, after receipt of the commissioner's report, shall hold a hearing and enter any orders that the court deems appropriate.
A professional bondsman's capacity, in those judicial districts where a professional bondsman uses collateral pledged with the court to underwrite bonds written by the professional bondsman, shall be determined as follows:
1. Where the collateral pledged is cash, or an item readily converted to cash such as a certificate of deposit, the professional bondsman's capacity shall be not less than ten (10) times the amount of the collateral pledged;
2. Where the collateral pledged is equity in real estate, the professional bondsman's capacity shall be not less than ten (10) times the value of the equity pledged as collateral.
An individual sole proprietor professional bondsman, or the bondsman's agent, as an officer of the court, shall be permitted to answer court, surrender a defendant based upon one (1) or more of the grounds set forth in § 40-11-132, obtain an extension of time, or respond to a court's request for information without the necessity of obtaining legal counsel.
Any documents relating to the assignment of collateral shall be delivered to the presiding judge of the judicial district where the professional bondsman is approved. The presiding judge shall enter an order designating which clerk shall maintain the collateral documents.
Subject to the procedure set forth in this subsection (h), a surety may deliver to the court an investment certificate, including a certificate of deposit, in order to establish or increase the surety's capacity. So long as the procedure set forth is followed, a court shall not refuse to accept the investment certificate. When taking an investment certificate, including a certificate of deposit, the following procedure shall be followed:
1. The surety shall purchase the investment certificate in the surety's name from a financial institution regulated by the state or federal government. The investment certificate shall be insured by the federal deposit insurance corporation (FDIC);
2. The surety shall then execute an assignment of the investment certificate to the clerk of the court with criminal jurisdiction using the following form:
  ASSIGNMENT OF SECURITY INTEREST TO THE STATE OF TENNESSEEASSIGNOR, SECURITY AND FINANCIAL INSTITUTION:
  
  Please print
  
  Assignor's name and name of person executing this assignment: Social Security or FEN/EIN:
  
  Title(s) of person executing this assignment (i.e., owner, partner, president, secretary, etc.):
  
  Assignor's mailing address (Number and Street or P.O. Box, City, State, ZIP Code):
  
  Name of Professional Bondsman in whose behalf the assignment is executed (name as it is used on approved list):
  
  Description of Security: ID Number of CD or other security:
  
  Name of account or payee of Security (as it reads on the CD or other security): First maturity date, if any:
  
  Dollar Amount of Security (in words): Dollar Amount of Security (in numbers):
  
  Name of Financial Institution:
  
  Mailing address of Financial Institution (Number and Street or P.O. Box, City, State, ZIP Code) & telephone number:
  
  In order to provide security to the State of Tennessee (including all future liability), the Assignor specified above, for and on the behalf of the professional bondsman named above, assigns and sets over irrevocably to the State of Tennessee a security interest in and to the Security described above.
  
  Assignor agrees that this assignment gives to the State of Tennessee separately the exclusive right to redeem, collect and withdraw any part of or the full amount of the Security to be applied as a payment to satisfy a final forfeit judgment after the judgment becomes final against the Assignor and/or the professional bondsman named above in accordance with Tenn. Code Ann. § 40-11-101, et seq. The right of the State of Tennessee to apply the Security shall not be affected by a subsequent change in the trade name or business location of the person or entity on whose behalf this assignment is executed.
  
  Assignor understands and agrees that by this assignment, all use of and control over the disposition of the Security is relinquished. The Security is to be held by the financial institution identified above for the sole use and subject to the exclusive control of the State of Tennessee. Interest on the Security shall be paid to the Assignor.
  
  Assignor's Signature: Assignor's name in print: Date:
  
  Sworn to or affirmed before me on this day of 20
  
  Notary stamp or seal:
  
  Signature of Notary Public in and for the State of Tennessee:
  
  My Commission Expires:
  
  This is notification by the assessor to the financial institution of the terms of this assignment.
3. At the same time the surety shall also deliver to the clerk of the court with criminal jurisdiction an acknowledgment signed by the institution issuing the investment certificate using the following form:
  CONTROL AGREEMENT WITH FINANCIAL INSTITUTION AND NOTICE OF EXCLUSIVE CONTROL:
  
  The Financial Institution acknowledges the assignment of the Security for payment of final judgments of forfeiture to the State of Tennessee. We certify that we have recorded the assignment and have retained a copy. We certify that we do not have, nor do we have knowledge of, anyone else having any lien, encumbrance, right, hold, claim to or obligation of the Security. We accept the Security with knowledge that it has been irrevocably posted as collateral, and we agree to act as the sole agent for the purpose of holding the Security for the State of Tennessee. We agree to comply with the instructions of the Court (on behalf of the State of Tennessee) directing disposition of the Security without further notice to or consent by the Assignor. We further agree not to exercise any set of rights we may have with respect to the Security or to otherwise impede, hinder, delay, prevent, obstruct or interfere with the Court's right to direct payment of, redeem, or collect any part (or the full amount) of the Security promptly.
  
  Name of Financial Institution and Officer Executing this Document
  
  (Type or print): Assignor's name in print:
  
  Officer's Signature Date:
  
  Sworn to or affirmed before me on this day of 20
  
  Notary stamp or seal:
  
  Signature of Notary Public in and for the State of Tennessee:
  
  My Commission Expires:

Acts 1939, ch. 199, § 2; C. Supp. 1950, § 11715.2; impl. am. Acts 1971, ch. 137, § 2; Acts 1976, ch. 550, § 1; T.C.A. (orig. ed.), § 40-1402; Acts 1985, ch. 394, § 2; 2001, ch. 426, § 2; 2003, ch. 303, § 4; 2015, ch. 416, § 1.

Compiler's Notes. Acts 2015, ch. 416, § 2 provided that if there is no loss of interest or the imposition of a financial penalty, existing investment certificates shall be reissued to comply with the procedure set forth in the act. In any other case, the investment certificate shall be brought into compliance upon maturity.

Law Reviews.

The Tennessee Bail System — What's the Best Cure? (Michael D. Brent), 8 Mem. St. U.L. Rev. 121.

NOTES TO DECISIONS

1. Authority of Court.

This statute is not exclusive but courts may discipline bondsmen or prohibit their giving of bonds in such court even though they have complied with this law. Taylor v. Waddey, 206 Tenn. 497, 334 S.W.2d 733, 1960 Tenn. LEXIS 388 (1960).

2. Cash Collateral.

Trial court properly denied appellant's petition to allow appellant to pledge real property to underwrite bonds in lieu of a cash deposit with the clerk of court. The trial court's judicial district had elected to accept only cash collateral from bail bondsmen, and it was properly within its authority to do so. In re Lewis Bonding Co., — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 418 (Tenn. Crim. App. May 19, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 551 (Tenn. Aug. 21, 2017).

40-11-303. Semiannual report of bondsmen.

Every professional bondsman licensed to do business in this state shall, not later than January 31 and July 31 of each year, file with the clerk of the circuit or criminal court of each county in which the bondsman is furnishing bail or bonds securing costs and fines, etc., a report of the bondsman's assets and liabilities as of the preceding December 31 and June 30, respectively. This report shall show in detail:
1. The separate parcels of real estate owned, the value thereof, and the amount of mortgages, liens, taxes and all other encumbrances and by whom held;
2. All personal property of every character owned, including chattels, cash, accounts, notes and bills receivable; contracts; stocks, bonds and other securities; and other security or collateral, and the character and value thereof, held to secure payment of any debt owing to the bondsman;
3. The full amount of the bondsman's liability as surety on bonds, bail, secured costs and fines, and the names and addresses of the bondsman's principals, and the case or suit in which filed, in all incompleted transactions or undertakings;
4. The full amount of the bondsman's liabilities on forfeitures of bonds or bail, in which either conditional or final judgments have been entered against the bondsman in any court and which remain unsatisfied;
5. All bills, notes and accounts payable; endorsements and other debts, obligations and liabilities;
6. The name and address of each agent, representative or employee of the bondsman authorized to bind the bondsman on bonds, bail and other contracts or undertakings of suretyship; and
7. The name and address of each person having an interest in the bondsman's business, either as an individual or partner; or, in case the bondsman is a corporation, the name and address of each officer and the office held, director and stockholder thereof and the capital paid in and the capital stock issued and outstanding.
Any professional bondsman who willfully refuses to file such report or withholds any of the information called for thereby shall be dealt with as provided in §§ 40-11-305 and 40-11-306.

Acts 1939, ch. 199, § 3; C. Supp. 1950, § 11715.3; T.C.A. (orig. ed.), § 40-1403; Acts 2016, ch. 689, § 1.

40-11-304. Receipts furnished by bondsmen.

It is the duty of a professional bondsman in all transactions with any persons, whether an accused, or those representing or purporting to represent an accused, whenever money or other consideration or thing of value is collected or received by the bondsman as surety, to furnish a receipt showing the name of the person paying the money or other thing of value, the name of the person for whom paid, the suit, action or matter in which the money is paid and the account or purpose for which it is received or is to be applied, and to keep a duplicate copy of every receipt.
Any failure, refusal or neglect to furnish receipts or keep duplicates of receipts is declared to be unlawful.

Acts 1939, ch. 199, § 10; C. Supp. 1950, § 11715.10; T.C.A. (orig. ed.), § 40-1404.

Cross-References. Penalty for violation of part, § 40-11-312.

40-11-305. Investigation of solvency.

The judge of any court of this state in which any professional bondsman executes criminal bonds, furnishes bail or secures costs and fines as surety, is empowered to inquire at any time into the solvency of any bondsman and to investigate and determine the value of the bondsman's assets and extent of the bondsman's liabilities, and to this end may, in the judge's discretion, appoint as many as three (3) investigators and/or appraisers to assist the court and who shall be empowered, when appointed, to investigate, appraise and report upon the value and extent of the bondsman's assets and liabilities. Each investigator and/or appraiser so appointed shall be entitled to receive reasonable compensation, not to exceed ten dollars ($10.00) a day, out of the general funds of the county, whenever their accounts for services are approved for payment by the judge ordering the investigation.

Acts 1939, ch. 199, § 4; C. Supp. 1950, § 11715.4; T.C.A. (orig. ed.), § 40-1405.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 1.

NOTES TO DECISIONS

1. Posting of Additional Assets.

There can be no question of the legal authority of local courts to require the posting of additional assets to secure bail bond obligations of any professional bondsman, insurance carrier or otherwise. In re Indemnity Ins. Co., 594 S.W.2d 705, 1980 Tenn. LEXIS 420 (Tenn. 1980).

40-11-306. Prohibition of execution of bonds.

If, after its investigation, the court finds that the bondsman:

Is insolvent;
Is not financially able to discharge the obligations of the bondsman's liabilities as surety;
Has failed, refused or neglected to make the semiannual reports of assets and liabilities as required in § 40-11-303;
Has made and filed false semiannual reports; or
Has failed to furnish the court with information touching upon solvency, when called for;
then the court may order that the bondsman be prohibited from executing bonds, bail or other undertakings as surety in the court until the court becomes satisfied that the bondsman has complied with this part or the orders of the court, or that the bondsman is again financially solvent, and the court shall impose any other reasonable limitation on the total liability of the bondsman's undertakings in the court.

Acts 1939, ch. 199, § 4; C. Supp. 1950, § 11715.4; T.C.A. (orig. ed.), § 40-1406.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 1.

NOTES TO DECISIONS

1. Posting of Additional Assets.

40-11-307. Charges for fixing case prohibited.

It is unlawful for any professional bondsman, while acting on the bondsman's own behalf, or for any third person or persons, or in concert with them, in any negotiation, transaction or dealing with a person charged with a criminal offense or other violation of law, or with any person or persons purporting to represent or act for the one so charged, to charge, demand, contract for, accept, collect or receive any sum of money, fee, compensation, premium or other consideration, return, or favor of any character, directly or indirectly, upon any promise, offer, representation or holding out the inducement that the professional bondsman:

Can or will attempt to effect, procure, bring about, arrange or “fix” the disposition, dismissal or compromise of any criminal action or prosecution;
Can or will attempt to arrange, bargain for or “fix” the amount of fine or costs, and/or term of imprisonment to be imposed, or any particular action of a court, in any criminal case, contempt proceeding or other penal action in any court; or
Can or will attempt to stop, prevent, obstruct, impede, interfere with, retard or delay the prosecution of any criminal charge against an accused, or the process of the law in respect thereof, or that the bondsman will cause to be done any of the things enumerated in this subdivision (3).

Acts 1939, ch. 199, § 5; C. Supp. 1950, § 11715.5; T.C.A. (orig. ed.), § 40-1407.

NOTES TO DECISIONS

1. Statute of Limitations.

Contracting to fix a criminal case is a misdemeanor, and as such is subject to the one-year statute of limitations set forth in § 40-2-102. State v. Thorpe, 614 S.W.2d 60, 1980 Tenn. Crim. App. LEXIS 350 (Tenn. Crim. App. 1980).

40-11-308. Guarantees of immunity prohibited.

It is unlawful for any professional bondsman, while acting on the bondsman's own behalf, or while acting for or through any third person or persons, or in concert with them, to solicit, demand, procure, exact, receive or collect any money or other thing of value or any other consideration, promise, favor or return of any character, directly or indirectly, from any person or persons, upon the agreement, promise, offer, representation, pretense or holding out the inducement, that the bondsman can or will:

Provide, furnish or guarantee to the person or persons, or to any person, persons or group of persons, immunity or protection from prosecution, arrest, investigation or indictment for any criminal offense or violation of law; or
Influence, persuade, “fix,” order or direct any public official defined under §§ 38-3-102 and 38-3-103 as a “conservator of the peace,” or any member of a grand or petit jury, or district attorney general or prosecuting officer, to provide or furnish any immunity or protection referred to in this section, or to fail, neglect or omit to do or perform any act or official duty whatsoever toward the prosecution, suppression or prevention of criminal offenses or violations of law, and it is also unlawful for any professional bondsman to cause or procure any of these acts or things to be done.

Acts 1939, ch. 199, § 8; C. Supp. 1950, § 11715.8; modified; T.C.A. (orig. ed.), § 40-1408.

40-11-309. Fixing of cases prohibited.

It is unlawful for any professional bondsman to do or perform any act, engage in any negotiations, enter into any agreement or transaction, pay or give any money or other thing of value or offer or attempt to do so directly or indirectly, whether alone, or by or through others acting for the bondsman, or in the bondsman's behalf or in concert with others, or at the bondsman's instance or request, or whether with or without consideration, as surety or otherwise, with the intent, purpose or design of:
1. Effecting, procuring, bringing about, arranging for or “fixing” the disposition, dismissal or compromise of any criminal action or prosecution or of arranging, bargaining for, or “fixing” the amount of fine or costs, and/or term of imprisonment or for any particular action of a court, judge, grand or petit jury or prosecuting attorney, in any criminal case, contempt proceeding or other penal action or offense before any court;
2. Stopping, preventing, obstructing, impeding, interfering with, retarding or delaying the prosecution of any criminal charge against an accused, or the processes of law in respect thereof;
3. Procuring sheriffs or their deputies, constables, police officers or other peace officers or any prosecutor of criminal offenses or violations to abandon or withdraw from the prosecution of the offenses or violations;
4. Procuring witnesses to disappear or be concealed;
5. Arranging for the loss or disappearance of bonds, court papers, exhibits or other evidence in criminal cases; or
6. Doing or performing any other act to accomplish the disposition and dismissal of any charge against an accused person by any other means whatever than through the processes and agencies established by law.
Nothing in this section shall deny to any professional bondsman or deprive the bondsman of the right and privilege of presenting to the court any matters affecting the legal liability of the bondsman as surety for an accused in any case where the question of liability is before the court for consideration or disposition.
Nothing in this section shall be construed as conferring upon any professional bondsman the right to appear for or on behalf of an accused as an attorney at law in any action, suit, transaction or dealing with or before the court, whether in open court or at chambers.

Acts 1939, ch. 199, § 6; C. Supp. 1950, § 11715.6; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 40-1409.

NOTES TO DECISIONS

1. Statute of Limitations.

Fixing a criminal case is a misdemeanor, and as such is subject to the one-year statute of limitations set forth in § 40-2-102. State v. Thorpe, 614 S.W.2d 60, 1980 Tenn. Crim. App. LEXIS 350 (Tenn. Crim. App. 1980).

40-11-310. Giving or procuring legal assistance unlawful.

It is unlawful for any professional bondsman to aid, counsel or advise any person accused of a criminal offense or violation of law, or those purporting to act for or represent the accused in respect of any matter relating or pertaining to the charge pending against the accused or to the disposition or dismissal thereof, except as to matters relating to the contract of suretyship on the bond, bail or similar undertaking, or to the contract relating to the securing and payment of any fine or costs, being negotiated for or posted in the pending case; nor shall any professional bondsman, directly or indirectly, retain, hire or employ, or pay for the services of an attorney at law to aid, counsel, advise or represent any person accused of criminal offense or violation of law, or those purporting to act for or represent the accused, in any case, suit or matter, in which the professional bondsman is surety for those persons, nor divide with or pay to any attorney any part of the compensation received by the bondsman for services as surety of an accused.

Acts 1939, ch. 199, § 7; C. Supp. 1950, § 11715.7; T.C.A. (orig. ed.), § 40-1410.

40-11-311. Illegal contracts void — Recovery of payments and penalty.

Any contract, agreement, promise, transaction or other similar undertaking, entered into between a professional bondsman and any other person or persons, wherein the bondsman charges, demands, contracts for, accepts, collects or receives any sum of money, fee, compensation, premium, gratuity or other consideration, return or favor of any character, in consideration of the bondsman's performance of, or the bondsman's promise, offer or attempt to do or perform, directly or indirectly, any of the acts or things declared to be unlawful by §§ 40-11-307 — 40-11-310, are declared to be against public policy, illegal and void.
Any person or persons, who pay out money or part with any other thing of value under the contract, agreement, promise, transaction or undertaking may file suit, for that person or for the use of that person or persons for whom the person paid the money or delivered the other thing of value to the bondsman, in any court having jurisdiction thereof and recover the consideration so paid or parted with and, in addition, a forfeiture in an amount equal to twice the sum of money paid or twice the value of any other consideration parted with or both, as the case may be.

Acts 1939, ch. 199, § 9; C. Supp. 1950, § 11715.9; T.C.A. (orig. ed.), § 40-1411.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 1.

NOTES TO DECISIONS

1. Constitutionality.

Where caption of Acts 1939, ch. 199, stated it was “an act to regulate professional bondsmen in criminal cases and prescribe punishment for violation” the latter phrase “and to prescribe punishment for violation” was notice to the legislature of provision in § 9 of the act providing for forfeiture, since forfeiture was germane to general purpose of the act expressed in caption. Haynes v. Sanford, 185 Tenn. 576, 206 S.W.2d 796, 1947 Tenn. LEXIS 359 (1947).

Where the validity of this part was assailed on the ground that the forfeiture provided for in this section redounds to the benefit of the “partner in crime,” it was held that such argument addressed itself to the legislature and its policy and motive in enacting the law and that it was not a matter in which the judiciary was concerned and for which the act could be invalidated. Haynes v. Sanford, 185 Tenn. 576, 206 S.W.2d 796, 1947 Tenn. LEXIS 359 (1947).

2. Recovery of Payment and Penalty.

Plaintiff who paid bondsman to fix charge was entitled, following conviction, to recover amount paid plus penalty as a forfeiture. Haynes v. Sanford, 185 Tenn. 576, 206 S.W.2d 796, 1947 Tenn. LEXIS 359 (1947).

40-11-312. Penalty.

A violation of this part is a Class B misdemeanor.

Acts 1939, ch. 199, § 12; C. Supp. 1950, § 11715.12; T.C.A. (orig. ed.), § 40-1412; Acts 1989, ch. 591, § 112.

Cross-References. Penalty for Class B misdemeanor, § 40-35-111.

40-11-313. Peace officers, their deputies, and certain county officials prohibited from acting as professional bondsmen.

It is unlawful for any person while serving as a constitutionally elected peace officer, or as such officer's deputy, or any duly elected or appointed county official to act as a professional bondsman, directly or indirectly.
This section shall not apply to any duly elected member of the county legislative body.

Acts 1999, ch. 13, § 2.

Compiler's Notes. Former § 40-11-313 (Acts 1959, ch. 197, § 1; T.C.A., § 40-1413), concerning persons prohibited from acting as professional bondsman, was repealed by Acts 1999, ch. 13, § 1.

Attorney General Opinions. “County official” construed to include member of county legislative body, OAG 98-0176 (8/28/98) (Opinion decided under prior law).

Section not in conflict with § 40-11-128, OAG 98-0176 (8/28/98) (Opinion decided under prior law).

40-11-314. [Reserved.]

Whenever any professional bondsman, as defined in § 40-11-301, furnishes bail, makes bond or furnishes surety for the appearance, before any court in this state, of any person charged with a criminal offense or a violation of any law, by means of a contract for a specified period of time, in which the bondsman acts as surety for appearance, the premium on the contract shall be reduced or refunded upon surrender of the person charged with the criminal offense or violation of a law in an amount in direct proportion of the percentage of the unexpired term of the contract to the total amount of the premium, unless that person is arrested on an additional criminal charge while released on bail or if the bond or surety is forfeited or revoked by the court having jurisdiction of that person or if the court accepts the surrender of the defendant based upon one (1) or more of the grounds set forth in § 40-11-132.
If the premium is payable in equal installments, no further payment shall be due or payable upon surrender of the bonded person to the court. This section applies only to those contracts made on or after July 1, 1972.

Acts 1972, ch. 827, §§ 1, 2; T.C.A., § 40-1415; Acts 2003, ch. 303, § 2.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 10.

NOTES TO DECISIONS

1. Transfer to Another Court.

2. Court Lacked Authority.

Trial court did not have the authority to order a refund of the bond premium to defendant or his sureties when defendant was arrested on another charge and the bond of the accused was forfeited by a court having jurisdiction of the defendant's person. State v. Jones, 743 S.W.2d 942, 1987 Tenn. Crim. App. LEXIS 2415 (Tenn. Crim. App. 1987).

40-11-316. Maximum premium — Initiation fee.

Professional bondsmen and agents of insurance companies making appearance bonds of a criminal nature shall not assess more than ten percent (10%) of the amount of the face value of the bond for premium fee and related charge or charges, and the premium fee and related charge or charges shall not be assessed but one (1) time during the first twelve (12) months of the pendency of the charge or charges and indictment or indictments in either the trial court or any lower court. If a premium renewal fee and any related charge or charges are assessed after the first twelve (12) months of the bond, the renewal fee and charge shall not exceed twenty percent (20%) of the original fee and charges. In the event the case is appealed to the court of criminal appeals or the supreme court of Tennessee, there may be charged only one (1) additional premium fee which also shall not exceed ten percent (10%) of the face value of the appearance bond for that court or courts.
In addition to the charge authorized in subsection (a), professional bondsmen and agents of insurance companies making appearance bonds of a criminal nature may assess a one-time bond initiation fee of not more than twenty-five dollars ($25.00).
Notwithstanding subsection (a), if a professional bondsman, or agent of an insurance company, is making a criminal appearance bond for a defendant who is not a resident of Tennessee, the bondsman or agent may assess up to fifteen percent (15%) of the amount of the face value of the bond for premium fee and related charges but only one (1) time during the first twelve (12) months of the bond. If a premium renewal fee and any related charges are assessed after the first twelve (12) months of the bond, the premium renewal fee and charges shall not exceed twenty percent (20%) of the original premium fee and charges. If the case is appealed to the court of criminal appeals or the supreme court of Tennessee, there may be charged only one (1) additional premium fee, which shall not exceed ten percent (10%) of the face value of the appearance bond for that court or courts.
A professional bondsman or an agent of an insurance company making appearance bonds of a criminal nature may agree to accept the premiums and initiation fees, set forth in subsections (a), (b), and (c), in equal installments; provided, that no interest or other fees, with the exception of transaction fees paid to third parties as costs for processing payments, are charged for the installment payments, and the full amount of the premium is to be paid during the first twelve (12) months of the bond.
If the professional bondsman or an agent of an insurance company making appearance bonds of a criminal nature charges a premium renewal fee as authorized under subsection (a) or (c), the professional bondsman or agent may agree to accept the premium renewal fee and any associated charges in equal installments; provided, that no interest or other fees, with the exception of transaction fees paid to third parties as costs for processing payments, are charged for the installment payments and the full amount of the premium renewal fee and any associated charges are to be paid within twelve (12) months of the initial assessment of the premium renewal fees.
A professional bondsman or an agent of an insurance company making appearance bonds of a criminal nature may seek indemnification for any actual costs incurred by the professional bondsman in collecting any payment due under subsections (d) and (e), including attorney's fees and court costs; provided, that those costs are paid to third parties and that no portion of those fees is shared with, or retained by, the professional bondsman, with the exception of post-judgment interest as provided for under § 47-14-121.
Nothing in this section shall limit the rights of the professional bondsman or an agent of an insurance company making appearance bonds of a criminal nature to seek indemnification for the costs, including reasonable attorney's fees and court costs, associated with attempting to apprehend, return, or surrender a forfeiting defendant.

Acts 1976, ch. 549, § 1; T.C.A., § 40-1416; Acts 1985, ch. 279, § 1; 1987, ch. 423, §§ 1, 3; 2015, ch. 334, § 1; 2016, ch. 658, §§ 1, 2.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 4.33, 4.41, 33.104.

Attorney General Opinions. Constitutionality of proposed amendment to T.C.A. § 40-11-316(a) allowing professional bondsmen to charge an additional five percent premium on bonds written for nonresident defendants. OAG 15-17, 2015 Tenn. AG LEXIS 17 (3/10/2015).

40-11-317. Criminal background check — Experience — Bankruptcy.

In addition to any other qualifications required by law, the petition or license application for a person seeking to become a professional bondsman shall have attached to it an affidavit setting forth the criminal history, if any, of the petitioner or applicant. If the affidavit is found to be inaccurate, the petitioner or applicant shall be immediately disqualified as a professional bonding person. In addition, the applicant or petitioner shall submit to a criminal history background check by the Tennessee bureau of investigation as provided for under § 38-6-109 and shall be responsible for any fees for the criminal history background check. The results of the criminal background check shall be submitted by the Tennessee bureau of investigation to the clerks of the court responsible for regulating the activities of the professional bondsman.
Any applicant for approval as a bonding company owner shall have had two (2) years' experience writing bail in this state as a full-time qualified agent for a Tennessee professional bonding company in good standing.
If a court finds that a bondsman has individually or as a corporation owner been discharged in a bankruptcy proceeding leaving unsatisfied outstanding forfeitures with any court, then the court may order that the bondsman be prohibited from executing bonds, bail or other undertakings as surety in the court.

Acts 1998, ch. 663, § 1; 2006, ch. 816, § 1; 2012, ch. 841, § 1.

Compiler's Notes. Acts 1998, ch. 663, § 2 provided that this section shall apply to any petition or application filed on or after July 1, 1998.

40-11-318. Bounty hunting.

“Bounty hunting” means a person who acts as an agent of a professional bondsman who attempts to or takes into custody a person who has failed to appear in court and whose bond has been forfeited, for a fee, the payment of which is contingent upon the taking of a person into custody and returning the person to the custody of the professional bondsman for whom the bounty hunter works; provided, that “bounty hunting” does not include the taking into custody of a person by a professional bondsman.
No person who has been convicted of a felony shall serve as a bounty hunter in this state. Persons having been convicted of a felony who perform the services of a bounty hunter as defined in this section commit a criminal offense, punishable as a Class A misdemeanor.
Before a bounty hunter takes into custody any person who has failed to appear in court, the bounty hunter shall comply with § 40-11-401, make a good faith effort to verify the person's address, and present to the office of the appropriate law enforcement officer of the political subdivision where the taking will occur:
1. A certified copy of the underlying criminal process against the defendant;
2. A certified copy of the bond or capias;
3. Proper credentials from a professional bondsman in Tennessee verifying that the bounty hunter is an agent of a professional bondsman; and
4. A pocket card, with identifying photo, certifying that the bounty hunter has completed the training required by § 40-11-401.
Failure to present all of the proper credentials as specified in this section to the office of the appropriate law enforcement officer prior to taking any person into custody shall be punishable as a Class A misdemeanor.
A professional bondsman, who knowingly employs a convicted felon to act as an agent of the bondsman for purposes of taking into custody a person who failed to appear in court, commits a Class A misdemeanor.
Any resident of this state who is a United States citizen and who intends to perform the functions of a bounty hunter as defined in subsection (a), shall submit to a criminal history background check as provided by § 38-6-109 at the sheriff's office at the county of the person's permanent residence. The person requesting the criminal history background check shall be responsible for any fees associated with the background check. The criminal background check shall include fingerprint checks against state and federal criminal records maintained by the Tennessee bureau of investigation (TBI) and the federal bureau of investigation (FBI). The sheriff's office shall maintain files in their respective counties on bounty hunters requesting a criminal history background check. A sheriff may charge a fee of not more than two hundred dollars ($200) for each background check performed pursuant to this subsection (f) and in addition to the background check fees payable to the TBI, the FBI and any designated vendor.
No bounty hunter shall wear, carry, or display any uniform, badge, shield, card, or other item with any printing, insignia, or emblem that purports to indicate or copies or resembles an item that indicates that such bounty hunter is an employee, officer, or agent of any local, state, or federal government or any political subdivision of any local, state, or federal government. Any time a bounty hunter is engaged in the functions of bounty hunting, the bounty hunter shall wear clothing that clearly identifies the person as a bounty hunter and prominently displays the words “bounty hunter”.
Nothing in this section gives a bounty hunter legal defense or privilege to violate any traffic laws or criminal statutes.

Acts 1998, ch. 1019, § 1; 2001, ch. 430, § 1; 2011, ch. 456, § 1; 2014, ch. 759, § 1; 2018, ch. 826, §§ 1-5; 2018, ch. 885, § 1.

Amendments. The 2018 amendment by ch. 826 deleted “or another state” following “Tennessee” in (c)(3); in (c)(4), inserted “, with identifying photo,” and substituted “§ 40-11-401” for “ this section or, if the bounty hunter is from a state other than Tennessee, proof that the bounty hunter successfully completed an equivalent amount of training in the bounty hunter's home state within the last year” at the end; deleted the former last sentence in (f) which read: “If the bounty hunter is from a state other than Tennessee, proof that the bounty hunter has completed an equivalent criminal history background check in the person's home state within the last year shall be provided to the appropriate law enforcement agency of the political subdivision where the taking will occur.”; inserted “or copies or resembles an item that indicates” in (g); and added (h).

The 2018 amendment by ch. 885 added the second sentence in (g).

Effective Dates. Acts 2018, ch. 826, § 6. July 1, 2018.

Acts 2018, ch. 885, § 2. July 1, 2018 at 12:01 a.m.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

Attorney General Opinions. Freelance bounty hunters must have a pocket card attesting to their training before they may take an individual into custody, OAG 03-018 (2/19/03).

40-11-319. Notice of arrest of bondsman.

A professional bondsman who is arrested in this state for a felony, or is arrested in another state or by the federal government for the equivalent of a felony in this state, shall notify, in writing, within seventy-two (72) hours of the arrest, the court or courts in which the professional bondsman is qualified.
The written notice shall contain the following information:
1. Date of the arrest;
2. Location of the arrest;
3. Offense for which the bondsman was arrested;
4. The name and address of the law enforcement agency making the arrest;
5. The court before which the professional bondsman is to appear;
6. The date of the initial court appearance; and
7. Any other information the professional bondsman may want to include.
Upon receipt of the notice, if the court believes it is warranted, the court shall proceed under § 40-11-125.
Failure to comply with this section shall result in an automatic suspension of the professional bondsman until the court conducts a hearing pursuant to § 40-11-125(b), or until the criminal charges against the professional bondsman are resolved.

Acts 1999, ch. 104, § 1.

40-11-320. Prerequisite to employing bounty hunter.

Before employing a bounty hunter to apprehend a defendant, a professional bail bondsman shall make a reasonable effort to verify the defendant's address.

Acts 2001, ch. 430, § 2.

Part 4
Continuing Education for Professional Bail Bonding Agents

40-11-401. Continuing education required.

Each professional bail bondsman or bonding agent individually, including partners, officers and directors of a corporation engaged for profit who are qualified as professional bail bondsmen or bonding agents, making bonds or entering into undertakings as surety in criminal proceedings as defined in § 40-11-301, shall obtain eight (8) hours of continuing education credits during each twelve-month period beginning on January 1, 1997. For the purpose of this part, “agent” means a professional bail bondsman or professional bail bonding agent, including those who are licensed as limited insurance representatives by the department of commerce and insurance pursuant to title 56, chapter 6, part 1 and the regulations of that department.

Acts 1996, ch. 856, § 1; 1997, ch. 265, §§ 1, 2.

Code Commission Notes.

The former last sentence of this section, concerning the exclusion from this part of agents holding limited insurance representative licenses until July 15, 1998, was deemed obsolete by the code commission in 2006.

Compiler's Notes. Title 56, chapter 6, part 1, referred to in this section, was repealed by Acts 2002, ch. 798, § 1, which deleted former part 1 and replaced it with current part 1, effective January 1, 2003.

40-11-402. Certificate of compliance.

Each agent shall file annually, along with the first semiannual report as described in § 40-11-303, a certificate of compliance of continuing education with the clerk of the criminal or civil court of each county in which the agent is furnishing bail or bonds securing costs and fines. This certificate shall show in detail the names, locations, dates and hours of each course attended, along with the signature of the agent attesting that all continuing educational requirements have been completed.

Acts 1996, ch. 856, § 1.

40-11-403. Noncompliance.

If an agent does not obtain the required eight (8) continuing education hour credits within each twelve-month period as described in § 40-11-401, and have the necessary certificate of compliance filed with the clerk of the court by January 15 of each year, the clerk shall, by certified mail, notify the agent that the agent is not in compliance with the continuing education requirements of this part and the number of hours the agent lacks to be in compliance. If the agent has not furnished the clerk with a certificate of compliance with continuing education requirements within sixty (60) days of receiving the notice of noncompliance, the clerk shall notify the judge of the court who shall then suspend the agent from furnishing bail or bonds securing costs and fines, and remove the agent's name from the list of qualified and approved professional bondsmen, as described in § 40-11-124, until the agent completes the continuing education credits and properly files the required certificate with the court.

Acts 1996, ch. 856, § 1.

40-11-404. Courses — Certificate of compliance — Fees.

The Tennessee Association of Professional Bail Agents shall provide all continuing education courses, and shall issue certificates of compliance to certify attendance of the agents to the clerks of the courts. The certificates shall be prepared and delivered to all agents who have completed the requirements by December 15 of the year before filing is required. In no event shall a certificate be issued to an agent who has not completed the attendance requirements for that calendar year.
The Tennessee Association of Professional Bail Agents shall either provide or contract for a minimum of eight (8) hours of continuing education classes to be held on a regular basis in each of the grand divisions and may provide additional classes as necessary. The association is authorized to subcontract with any of its subassociations for classes. A schedule of these classes shall be provided to all agents. The association may not charge more than two hundred forty dollars ($240) annually for the eight (8) hours of continuing education, and the cost of any course with less than eight (8) hours shall be prorated.
The fee charged for attending continuing education classes shall not be increased or decreased based upon a person's membership or lack of membership in the Tennessee Association of Professional Bail Agents.

Acts 1996, ch. 856, § 1; 2000, ch. 749, § 1.

Code Commission Notes.

Acts 2000, ch. 749, § 1, provided for the amendment of § 40-11-405(b); however, the amendment was implemented in (b) of this section to reflect apparent legislative intent.

Cross-References. Grand divisions, title 4, ch. 1, part 2.

40-11-405. Rights of trial judges — Appeal from nonapproval of bondsman.

Nothing in this part shall be construed as altering or infringing upon the right of the trial judge to approve bondsmen who are licensed under this part. An appeal from a trial judge's failure to approve a licensed bondsman shall be taken as provided by law.

Acts 1996, ch. 856, § 1.

Code Commission Notes.

Acts 2000, ch. 749, § 1, purported to amend subsection (b) of this section; however, the amendment was implemented in 40-11-404(b) to reflect apparent legislative intent.

40-11-315. Reduction or refund of premium on bail, bond or surety.

Chapter 12
Grand Jury Proceedings

Part 1
General Provisions

40-12-101. Impaneling bystanders.

Whenever a sufficient number of the jurors of the original panel fail to attend before the grand jury is formed, the court may impanel the grand jury of so many of the original panel as may attend, and the rest of bystanders. If none of the original panel attend or no jurors have been appointed, the grand jury may consist entirely of bystanders.

Code 1858, §§ 4016, 4017 (deriv. Acts 1817, ch. 130 (131 in Scott's Revisal), § 2); Shan., §§ 5828, 5829; Code 1932, §§ 10022, 10023; T.C.A. (orig. ed.), § 40-1502.

Cross-References. Juries and jurors, title 22.

The grand jury, Tenn. R. Crim. P. 6.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 9.13.

Tennessee Jurisprudence, 13 Tenn. Juris., Gaming, Gambling and Gambling Contracts, § 10; 14 Tenn. Juris., Grand Jury, § 5.

Law Reviews.

Essential Elements, 54 Vand. L. Rev. 1467 (2001).

NOTES TO DECISIONS

1. Panel.

A panel of jurors containing less than the number required is not void; but if it were, the court could select the grand jury from bystanders, and thus organize a valid grand jury. Lowrance v. State, 12 Tenn. 144, 12 Tenn. 145, 1833 Tenn. LEXIS 27 (1833).

2. Selected from Bystanders.

Where less than the required number of the panel appear, the form is dispensed with, and the grand jury is completed from bystanders. Workman v. State, 36 Tenn. 425, 1857 Tenn. LEXIS 25 (1857).

The fact that a grand juror, otherwise qualified, was selected from the bystanders instead of from the regular venire, is no ground of abatement of an indictment found by him and other grand jurors taken from the venire. Epperson v. State, 73 Tenn. 291, 1880 Tenn. LEXIS 127 (1880); Chairs v. State, 124 Tenn. 630, 139 S.W. 711, 1911 Tenn. LEXIS 68 (Tenn. Apr. 1911).

That the court summoned three bystanders to make a full venire before proceeding to impanel the grand jury is no ground of abatement of the indictment. Madden v. State, 67 S.W. 74, 1901 Tenn. LEXIS 133 (Tenn. 1901).

40-12-102. Persons guilty of conspiracy ineligible.

No person who has been guilty of any offense declared in § 39-12-103, relating to conspiracy to take human life or to injure persons or destroy property, shall be competent to sit or serve on any grand or traverse jury and it is the duty of the court to carefully exclude all such persons from the juries, both grand and petit.
When the court is informed, or has reason to suspect, that any person presented as a juror is guilty of any of the offenses listed in subsection (a), it shall call witnesses, if necessary, and examine fully into the truth of the charge.
The court shall dismiss from the grand jury any person who has been selected and afterwards shown to be implicated in any offense listed in subsection (a).

Acts 1897, ch. 52, § 3; Shan., § 6696a3; Code 1932, § 11070; modified; T.C.A. (orig. ed.), § 40-1504; Acts 1996, ch. 675, § 22.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 9.13, 25.45.

Tennessee Jurisprudence, 6 Tenn. Juris., Conspiracy, § 3.

Law Reviews.

Tennessee Civil Disabilities: A Systemic Approach (Neil P. Cohen), 41 Tenn. L. Rev. 253 (1974).

NOTES TO DECISIONS

1. Constitutionality.

This section is constitutional, because it simply adds another statutory disqualification for jury service, and no provision of the organic law supposed to be violated is pointed out. Jenkins v. State, 99 Tenn. 569, 42 S.W. 263, 1897 Tenn. LEXIS 67 (1897).

2. Dismissal on Proof of General Rumor.

The court's discharge of an accepted juror, before the jury had been sworn, upon the charge that he was a “whitecap,” is justified by proof of a general rumor that the juror was a “whitecap,” which he did not offer to contradict or disprove. Jenkins v. State, 99 Tenn. 569, 42 S.W. 263, 1897 Tenn. LEXIS 67 (1897).

40-12-103. Reconvening to consider felony.

The judges of the circuit and criminal courts are authorized at any time during the same term of court to reconvene the grand jurors when, during the same term of court and after the jurors have been discharged, a criminal offense which is a felony has been committed in the jurisdiction.

Acts 1899, ch. 324, § 1; Shan., § 5836a1; Code 1932, § 10035; T.C.A. (orig. ed.), § 40-1515.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 9.17.

40-12-104. Application to testify by person having knowledge of commission of offense.

Any person having knowledge or proof of the commission of a public offense triable or indictable in the county may testify before the grand jury.
The person having knowledge or proof shall appear before the foreman. The person may also submit the sworn affidavits of others whose testimony the person wishes to have considered.
The person shall designate two (2) grand jurors who shall, with the foreman, comprise a panel to determine whether the knowledge warrants investigation by the grand jury. The panel may consult the district attorney general or the court for guidance in making its determination. The majority decision of the panel shall be final and shall be promptly communicated to the person along with reasons for the action taken.
Submission of an affidavit which the person knows to be false in any material regard shall be punishable as perjury. An affiant who permits submission of a false affidavit, knowing it to be false in any material regard, is guilty of perjury. Any person subsequently testifying before the grand jury as to any material fact known by the person to be false is guilty of perjury.

Acts 1978, ch. 727, § 1; modified; T.C.A., § 40-1626; Acts 1995, ch. 213, §§ 1-4.

Cross-References. Perjury, title 39, ch. 16, part 7.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 9.23.

NOTES TO DECISIONS

1. Appearance by Police Officer in Violation of Orders.

Although no one may prevent a person from appearing before a grand jury, and indeed it is his duty to do so if he has evidence of a crime, court held that police officer's appearance before a grand jury in violation of orders was not the reason that he was suspended indefinitely. Watts v. Civil Service Board, 606 S.W.2d 274, 1980 Tenn. LEXIS 501 (Tenn. 1980), cert. denied, Watts v. Civil Service Bd., 450 U.S. 983, 101 S. Ct. 1519, 67 L. Ed. 2d 818, 1981 U.S. LEXIS 1234 (1981).

2. Petition for Writ of Mandamus Dismissed.

Petition for writ of mandamus was properly dismissed as petitioner's constitutional rights to due process and state court access were not violated because the statute regarding application to testify before the grand jury did not establish a clear and specific duty on the part of the grand jury foreperson to meet with petitioner in prison or to cause him to be transported to testify before a grand jury panel; much of the manner in which the foreperson, in collaboration with the grand jury panel, was to determine whether the potential witness's knowledge warranted investigation by the grand jury was discretionary; and a writ of mandamus would not be a proper remedy as issuance of the writ would manifestly prejudice public interest. Willis v. Johnson, — S.W.3d —, 2018 Tenn. App. LEXIS 563 (Tenn. Ct. App. Sept. 27, 2018).

3. Testimony Before Grand Jury Panel Discretionary.

This statute establishes a person's discretionary opportunity to testify before a grand jury panel, using the discretionary auxiliary verb, “may;” once it has been established that such a person is going to testify, this statute then mandates, using the mandatory auxiliary verb, “shall,” much of the manner in which the testimony shall be presented, including the witness's appearance before the grand jury foreperson, the composition of the grand jury panel, and the finality of the grand jury panel's decision regarding whether an investigation is warranted. The unambiguous language of this statute provides that testimony before a grand jury panel under this statute is discretionary, not mandatory. Willis v. Johnson, — S.W.3d —, 2018 Tenn. App. LEXIS 563 (Tenn. Ct. App. Sept. 27, 2018).

40-12-105. Notice of grand jury meeting to be posted by court clerk.

The clerk of the court having trial level criminal jurisdiction in each county of this state shall cause to be published, not less than thirty (30) days nor more than forty (40) days before the grand jury meets, the following notice in a newspaper of general circulation in the county:
“It is the duty of your grand jurors to investigate any public offense which they know or have reason to believe has been committed and which is triable or indictable in this county. Any person having knowledge or proof that an offense has been committed may apply to testify before the grand jury subject to the provisions of Tennessee Code Annotated, § . The foreman in this county is presently: [Here list foreman and the foreman's address]

“The grand jury will next meet on , the day of , 20 , at . You may be prosecuted for perjury for any oral or written statement which you make under oath to the grand jury, when you know the statement to be false, and when the statement touches on a matter material to the point in question.”
In addition to the other duties required by this section, the clerk shall post a written notice in the form set forth in subsection (a) in a place convenient to the public at the county courthouse.
Failure by the clerk to perform the duties required by this section is a misdemeanor and grounds for removal from office.

Acts 1978, ch. 727, § 2; 1982, ch. 805, § 1; T.C.A., § 40-1627.

Compiler's Notes. The misdemeanor offense in this section may be affected by the Criminal Sentencing Reform Act of 1989. See §§ 39-11-114, 40-35-110, 40-35-111.

Cross-References. Penalty for misdemeanors, §§ 39-11-114, 40-35-111.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 9.23.

NOTES TO DECISIONS

1. Purpose.

The purpose of T.C.A. § 40-12-105 is to give notice to those who may have business before the grand jury that the grand jury is going to meet; it was not enacted for the benefit of defendants whose cases may be under consideration. State v. Crane, 780 S.W.2d 375, 1989 Tenn. Crim. App. LEXIS 475 (Tenn. Crim. App. 1989), rehearing denied, 780 S.W.2d 375, 1989 Tenn. Crim. App. LEXIS 529 (Tenn. Crim. App. 1989), appeal denied, 1989 Tenn. LEXIS 503 (Tenn. Nov. 6, 1989).

2. Effect of Noncompliance.

The validity of indictments returned by a grand jury's meeting in violation of T.C.A. § 40-12-105 is not affected by lack of public notice. State v. Crane, 780 S.W.2d 375, 1989 Tenn. Crim. App. LEXIS 475 (Tenn. Crim. App. 1989), rehearing denied, 780 S.W.2d 375, 1989 Tenn. Crim. App. LEXIS 529 (Tenn. Crim. App. 1989), appeal denied, 1989 Tenn. LEXIS 503 (Tenn. Nov. 6, 1989).

40-12-106. Prosecution of persons applying to testify not barred — Express immunity.

Notwithstanding any contrary provisions of law, no person applying to testify before the grand jury shall be immune from prosecution based upon testimony subsequently given pursuant to the application, except under express grant of immunity by the grand jury.

Acts 1978, ch. 727, § 3; impl. am. Acts 1979, ch. 399, § 1; T.C.A., § 40-1628.

Cross-References. Immunity from prosecution, title 40, ch. 16.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 9.23.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 11.

40-12-107. Supplemental to present law.

Sections 40-12-104 — 40-12-106 are intended to supplement existing law relative to the rights, powers and duties involved in the grand jury process. Nothing in this part shall be construed in derogation of existing law, absent plain and irreconcilable conflict with §§ 40-12-104 — 40-12-106.

Acts 1978, ch. 727, § 4; T.C.A., § 40-1629.

Part 2
Investigative Grand Juries

40-12-201. Use of investigative grand jury.

Notwithstanding any other provision of law to the contrary, whenever a district attorney general, within the district attorney general's respective jurisdiction, or the attorney general and reporter has reason to believe that criminal activity involving a violation of or a conspiracy to violate:
1. Section 39-14-903, relating to money laundering;
2. Sections 39-17-902(b), 39-17-911 and 39-17-1005, relating to the distribution of certain materials to minors or the use of a minor for obscene purposes;
3. Section 39-17-417, relating to controlled substances or § 39-17-454, relating to controlled substance analogues;
4. Sections 39-16-401 — 39-16-405, relating to misconduct involving public officials and employees;
5. Sections 39-16-101 — 39-16-108, relating to bribery;
6. Section 39-12-204, relating to racketeer influenced and corrupt organizations;
7. Sections 39-17-501 — 39-17-507, relating to gambling; or
8. Sections 39-16-501 — 39-16-507, relating to interference with government operations;
  has occurred, the district attorney general or the attorney general and reporter may apply to a committee comprised of two (2) members of the district attorneys general conference and the attorney general and reporter for consent to file a petition to have an investigative grand jury convened to consider the matters specified in the application.
The attorney general and reporter shall appoint a district attorney general from each grand division to serve as potential members of the committee and shall notify the executive director of the district attorneys general conference of the appointments.
The attorney general and reporter shall reappoint the district attorneys general as from time to time may be necessary.
1. When an application for an investigative grand jury is made by the attorney general and reporter pursuant to this part, the executive director shall designate one (1) or more of the district attorneys general appointed by the attorney general and reporter to serve on the committee.
2. If the application is made by a district attorney general, the executive director shall designate either two (2) of the district attorneys general appointed by the attorney general and reporter to serve on the committee or shall designate one (1) of the district attorneys general and the district attorney general making the application.
1. The district attorney general or district attorneys general so designated to serve on the committee shall not reside in the same grand division as the county where the grand jury would be seated.
2. In the case where an application is filed by the attorney general and reporter, the district attorney general for the district where the criminal activity is alleged to have occurred shall be one (1) of the two (2) members of the district attorneys general conference serving on the committee.
The application shall be in writing, shall specify the crimes to be investigated, any persons believed to have knowledge of the crimes to be investigated and the basis of the district attorney general's or attorney general and reporter's knowledge of the matters set forth in the application.
The application shall be filed at the office of the attorney general and reporter in Nashville.

Acts 1990, ch. 1051, § 1; 1996, ch. 1012, § 8; 2012, ch. 848, § 31.

Cross-References. Dissolution of investigative grand jury, extension of time, § 40-12-217.

Grand divisions, title 4, ch. 1, part 2.

40-12-202. Committee review of application.

Upon receipt or the making of an application for an investigative grand jury, the attorney general and reporter shall immediately notify the other members of the committee described in § 40-12-201.
The committee shall meet in person as soon as is reasonably possible to consider the application.
Consent to file the petition must be by unanimous vote of the committee.
The district attorney general shall be notified in writing of the committee's action on the application.

Acts 1990, ch. 1051, § 1.

40-12-203. Filing of petition.

Upon the receipt of written approval of the committee, the district attorney general may file a written petition with the clerk of the circuit court, or criminal court in counties where the court has been established, for the county where the criminal activity allegedly occurred to convene an investigative grand jury to consider the matters set forth in the petition.
The petition shall be made upon oath or affirmation and shall contain:
1. An allegation that one (1) or more of the offenses described in § 40-12-201 has occurred;
2. The basis of the district attorney general's knowledge of the commission of the offenses; and
3. Sufficient facts to establish probable cause to believe the crimes specified in the petition have been committed.
The petition shall also have appended to it the written consent of the committee which approved the filing of the petition.

Acts 1990, ch. 1051, § 1.

40-12-204. Record of filing.

Upon the filing of a petition to convene an investigative grand jury, the clerk shall mark the petition as filed, note the date and time of filing on the petition, and shall record the filing of the petition in records kept for proceedings under this part.
The clerk shall then immediately forward the petition to the presiding judge of the judicial district.

Acts 1990, ch. 1051, § 1.

40-12-205. Grant or denial of petition.

Upon receipt of a petition to convene an investigative grand jury, the presiding judge shall consider the petition in camera.
Any oral argument before the judge by the district attorney general shall be in the sole discretion of the presiding judge.
The judge shall grant the petition if the judge finds that:
1. The crimes alleged to have taken place are among those set forth in § 40-12-201; and
2. There is probable cause to believe the criminal activity set forth in the petition has taken place.
1. The judge shall enter an order in writing respecting whether an investigative grand jury shall be convened.
2. The order will be filed by the clerk of the court and entered in records described in § 40-12-204.
3. The clerk shall forward a copy to the district attorney general.

Acts 1990, ch. 1051, § 1.

40-12-206. Members — Powers.

The grand jury convened pursuant to this part shall consist of thirteen (13) members and up to five (5) alternates.
The alternates shall be present at all times during grand jury proceedings, but shall not take part in the deliberations or vote of the grand jury unless the alternate has been made a regular member of the grand jury upon motion of the district attorney general made to the court and alleging that a regular member is no longer able to serve.
Any grand jury ordered convened pursuant to this part shall be:
1. Impaneled by the presiding judge in the same manner as the regular grand jury;
2. Directed by the presiding judge to investigate the crimes specified in the petition; however, nothing in this subsection (c) shall be construed as preventing indictment for any offense found by the grand jury to have occurred in the course of its investigation; and
3. Retain all powers, duties and responsibilities of the regular grand jury.

Acts 1990, ch. 1051, § 1.

40-12-207. Persons present during proceedings.

The district attorney general, the witness under examination, an interpreter when needed and, for the purpose of taking the evidence, a stenographer may be present while the investigative grand jury is in session, but no person other than jurors and alternates may be present while the grand jury is deliberating or voting.

Acts 1990, ch. 1051, § 1.

40-12-208. Record of proceedings.

All proceedings, except when the investigative grand jury is deliberating or voting, shall be recorded stenographically.
Any unintentional failure of any recording to reproduce all or any portion of a proceeding shall not affect the validity of the prosecution.
The recording, the reporter's notes or any transcript prepared from the recording or notes shall remain in the custody or control of the district attorney general unless otherwise ordered by the court in a particular case.

Acts 1990, ch. 1051, § 1.

40-12-209. Confidentiality of proceedings and documents.

1. No person who by virtue of the person's official position has knowledge of the filing of an application for consent, the action of the committee on the application, the filing of a petition to convene an investigative grand jury, or any action on the petition, shall disclose that knowledge except in accordance with this section.
2. All written records of applications, committee action, petitions and orders are declared to be confidential and subject to disclosure only in accordance with this section.
3. A grand juror, an interpreter, a stenographer, a typist who transcribes recorded testimony, a district attorney general or any person to whom disclosure is made pursuant to this section, § 40-12-210 or § 40-12-212 shall not disclose matters occurring before the grand jury except in accordance with those sections. No obligation of secrecy may be imposed on any person except in accordance with this section.
Disclosure otherwise prohibited by this part of documents and proceedings before a grand jury convened under this part may be made to:
1. The district attorney general for use in the performance of the district attorney general's duty; and
2. Government personnel, including personnel of the federal government or a subdivision of the state, as those personnel are deemed necessary by the district attorney general to assist the district attorney general in the performance of the district attorney general's duties.
1. Any person to whom documents and proceedings before a grand jury convened under this part are disclosed under subdivision (b)(2) shall not utilize those documents or proceedings for any purpose other than assisting the district attorney general in the performance of the district attorney general's duties.
2. The district attorney general shall promptly notify the judge convening the grand jury pursuant to this part of the names of all persons to whom disclosure of grand jury documents or proceedings is made and shall certify that the district attorney general has advised the person of the person's obligation of secrecy under this part.

Acts 1990, ch. 1051, § 1.

Cross-References. Conditions for disclosure of grand jury proceedings and documents, § 40-12-210.

Confidentiality of public records, § 10-7-504.

40-12-210. Conditions for disclosure of proceedings and documents.

Disclosure of grand jury documents and proceedings may also be made under this part when:

Directed by a court preliminarily to or in connection with a judicial proceeding;
Disclosure is made by the district attorney general to another grand jury; or
Permitted by a court upon motion of the defendant showing grounds exist for a motion to dismiss the indictment because of matters occurring before the grand jury.

Acts 1990, ch. 1051, § 1.

Cross-References. Confidentiality of public records, § 10-7-504.

40-12-211. Breach of confidentiality — Penalty.

A violation of § 40-12-209 shall be punished as criminal contempt.

Acts 1990, ch. 1051, § 1.

Cross-References. Confidentiality of public records, § 10-7-504.

Criminal contempt, Tenn. R. Crim. P. 42.

40-12-212. Indictments.

The finding and return of indictments as well as the form of any indictment returned by a grand jury convened pursuant to this part shall be in the same manner and form as indictments returned by the regular grand jury.

Acts 1990, ch. 1051, § 1.

40-12-213. Subpoena power — Examination of witnesses.

Notwithstanding any other provision of law to the contrary, when a grand jury is convened pursuant to this part, the district attorney general shall:

Have the authority to compel by subpoena the testimony of witnesses before the grand jury; and
Be present to examine witnesses coming before the grand jury, as well as to give legal advice to the grand jury as to matters cognizable by it.

Acts 1990, ch. 1051, § 1.

40-12-214. Subpoenas to banks exempt from notice requirement.

Subpoenas issued pursuant to § 40-12-213(1) shall not be subject to the provisions of §§ 45-10-106 and 45-10-107 requiring notice to a bank customer of a subpoena issued to a bank for the records of a customer.

Acts 1990, ch. 1051, § 1.

40-12-215. Grant of immunity.

The district attorney general shall have the authority to grant transactional or use immunity to a witness if the district attorney general determines that immunity is necessary to compel testimony from the witness.
The immunity shall be given to the witness in writing and shall be signed by the district attorney general.
The immunity granted witnesses pursuant to Tennessee Rules of Criminal Procedure, Rule 6(j)(6) shall have no application to a grand jury convened pursuant to this part.

Acts 1990, ch. 1051, § 1.

40-12-216. Witness' right to consult counsel.

A witness before a grand jury convened pursuant to this part shall have the right to leave the grand jury room to consult the witness's counsel at reasonable intervals and for a reasonable period of time upon the request of the witness.

Acts 1990, ch. 1051, § 1.

40-12-217. Dissolution — Extension of time to complete investigation.

When a grand jury convened pursuant to this part has completed its investigation, the district attorney general shall promptly file a notice of dissolution with the clerk of the court where the petition seeking the grand jury's empanelling was filed.
1. Upon the filing of the notice required by subsection (a), the functions of the grand jury shall cease and it shall be considered dissolved.
2. In no event, except as provided in this section, shall a grand jury convened pursuant to this part remain impaneled for a period of time to exceed six (6) months from the day it is sworn.
1. Should a period of time exceeding six (6) months be necessary for the grand jury to complete its work, the district attorney general may file an application with the committee described in § 40-12-201 requesting permission to petition the empanelling judge for an extension of the grand jury for a period of time not to exceed six (6) months from the date the petition is granted.
2. The application shall specify why additional time is necessary for the completion of the investigation.
3. If the committee unanimously agrees that an extension of time is necessary, it shall grant written consent to petition the empanelling judge for an extension of the grand jury for the period requested.
4. This written consent shall accompany the petition to the empanelling judge who shall grant the petition if the judge finds an extension of time to be necessary for the grand jury to complete its investigation.
5. No more than two (2) six-month extensions may be obtained pursuant to this section.

Acts 1990, ch. 1051, § 1.

40-12-218. Construction of part.

Unless explicitly provided for in this part, nothing in this part shall be construed as repealing or amending any law dealing with the formation, function, duties and responsibilities of the regular grand jury.

Acts 1990, ch. 1051, § 1.

Chapter 13
Indictments

Part 1
General Provisions

40-13-101. “Indictment” defined.

An indictment is an accusation in writing presented by the grand jury of the county charging a person with an indictable offense.
Wherever in this code “indictment” is used, it shall be taken to include presentment whenever the context so requires or will permit.

Code 1932, §§ 10750, 11622; T.C.A. (orig. ed.), §§ 40-1701, 40-1702.

Cross-References. Assistance to grand juries by district attorney general, title 8, ch. 7, part 5.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 9.2, 16.10, 16.13, 16.16.

Law Reviews.

The New Tennessee Code (Charles C. Trabue), 10 Tenn. L. Rev. 155.

NOTES TO DECISIONS

1. Identification as Indictment.

There is no requirement that an indictment must, within its four corners, state that it is an indictment. State v. Mingledorff, 713 S.W.2d 88, 1986 Tenn. Crim. App. LEXIS 2225 (Tenn. Crim. App. 1986).

2. Distinguished from Presentment.

The form of an indictment alone distinguishes it from a presentment. State v. Mingledorff, 713 S.W.2d 88, 1986 Tenn. Crim. App. LEXIS 2225 (Tenn. Crim. App. 1986).

Decisions Under Prior Law

1. “Indictment” — Meaning.

An indictment is a written accusation of an offense preferred to and presented upon oath by a grand jury at the suit of the government. Alexander v. State, 50 Tenn. 475, 1872 Tenn. LEXIS 18 (1872).

40-13-102. Offenses indictable.

All felonies and all misdemeanors are indictable offenses.

Code 1932, § 11621; T.C.A. (orig. ed.), § 40-1703.

Cross-References. Prosecution by indictment or presentment provided for, Tenn. Const., art. I, §§ 9, 14.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 16.10.

Law Reviews.

Adjudicating Claims of Innocence for the Capitally Condemned in Tennessee: Embracing a Truth Forum (Dwight Aarons), 76 Tenn. L. Rev. 511 (2009).

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

40-13-103. Prosecutor required.

No district attorney general shall prefer a bill of indictment to the grand jury without a prosecutor marked on the bill or indictment, unless otherwise expressly provided by law.

Code 1858, § 5096 (deriv. Acts 1801, ch. 30, § 1); Shan., § 7058; Code 1932, § 11602; modified; T.C.A. (orig. ed.), § 40-1704.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 9.20.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 3-12-1.

NOTES TO DECISIONS

1. Purpose.

The true purpose of the requirement that a prosecutor be named on the indictment is for the protection of defendant. Brooks v. State, 156 Tenn. 451, 2 S.W.2d 705, 1927 Tenn. LEXIS 139 (1928).

2. Presentments.

This section and § 40-13-104 relate to indictments, and not to presentments. State v. Davidson, 171 Tenn. 347, 103 S.W.2d 22, 1936 Tenn. LEXIS 96 (1937); Blackwood v. State, 204 Tenn. 682, 325 S.W.2d 262, 1959 Tenn. LEXIS 327 (1959).

This section is not applicable when the grand jury returns a presentment rather than an indictment. Poag v. State, 567 S.W.2d 775, 1978 Tenn. Crim. App. LEXIS 307 (Tenn. Crim. App. 1978).

3. Designation on Indictment.

Merely endorsing a name on the indictment, in the place where the name of the prosecutor is usually marked, without showing its purpose or that it was intended as the name of the prosecutor, is not sufficient. Medaris v. State, 18 Tenn. 239, 1837 Tenn. LEXIS 8 (1837).

Abbreviation “pros.,” marked after the name of the person intended for prosecutor, is good for “prosecutor.” McGuire v. State, 65 Tenn. 621, 1872 Tenn. LEXIS 463 (1872).

Where the prosecutrix's name appeared in the indictment, the requirements of this section are met though prosecutrix did not appear before the grand jury. State v. Marks, 3 Tenn. Crim. App. 539, 464 S.W.2d 326, 1970 Tenn. Crim. App. LEXIS 406 (Tenn. Crim. App. 1970).

4. Signature of District Attorney.

The indictment must be signed by the district attorney before it is sent to the grand jury. Foute v. State, 4 Tenn. 98, 1816 Tenn. LEXIS 29 (1816); Bennett v. State, 8 Tenn. 133, 8 Tenn. 146, 1827 Tenn. LEXIS 23 (1827); Hite v. State, 17 Tenn. 198, 1836 Tenn. LEXIS 30 (1836); Teas v. State, 26 Tenn. 174, 1846 Tenn. LEXIS 94 (1846), questioned, State v. Myers, 85 Tenn. 203, 5 S.W. 377, 1886 Tenn. LEXIS 30 (1886); State v. Lockett, 50 Tenn. 274, 1871 Tenn. LEXIS 96 (1871); State v. Myers, 85 Tenn. 203, 5 S.W. 377, 1886 Tenn. LEXIS 30 (1886).

5. Prosecutor.

6. —Husband Against Wife.

Husband cannot be prosecutor on an indictment against his wife, because she cannot sue him for malicious prosecution or false imprisonment. State v. Tankersly, 74 Tenn. 582, 1880 Tenn. LEXIS 296 (1880).

7. —Incompetency.

Incompetent prosecutor marked on an indictment is, in legal effect, the same as if no prosecutor at all was marked thereon. State v. Tankersly, 74 Tenn. 582, 1880 Tenn. LEXIS 296 (1880).

8. —Infant.

An infant may be a prosecutor, because he is not prohibited by statute, nor by public policy from becoming a prosecutor. State v. Dillon, 38 Tenn. 389, 1858 Tenn. LEXIS 198 (1858).

9. —Control Over Case.

Prosecutor has no control over the case, and he cannot have counsel to appear in the case without the consent of the attorney general and the court. Ex parte Gillespie, 11 Tenn. 324, 11 Tenn. 325, 1832 Tenn. LEXIS 53 (1832); Chambers v. State, 22 Tenn. 237, 1842 Tenn. LEXIS 79 (1842).

10. —Death.

Prosecutor's death does not affect the indictment and the prosecution goes on as though the death had not occurred. State v. Loftis, 40 Tenn. 500, 1859 Tenn. LEXIS 143 (1859).

11. Objections.

12. —Procedure.

Objection to the indictment for the incompetency of the prosecutor, or for the want of a prosecutor, may be made by motion to quash, or by plea in abatement. State v. Travis, 1 Shan. 593 (1876); State v. Tankersly, 74 Tenn. 582, 1880 Tenn. LEXIS 296 (1880); Rodes v. State, 78 Tenn. 414, 1882 Tenn. LEXIS 197 (1882).

13. —Waiver.

The objection to absence of name of prosecutor being endorsed on indictment is waived unless made by proper motion or plea before the entry of the plea to the merits. Brooks v. State, 156 Tenn. 451, 2 S.W.2d 705, 1927 Tenn. LEXIS 139 (1928).

14. —When Made.

Defendant can attack indictment after plea for failure of district attorney to endorse name of prosecutor. State v. Vance, 1 Tenn. 481, 1809 Tenn. LEXIS 37 (1809).

15. Curing Error After Verdict.

Objection to the indictment for want of a prosecutor, attempted to be cured by order of the court directing the district attorney general to prosecute officially, comes too late after verdict. Rodes v. State, 78 Tenn. 414, 1882 Tenn. LEXIS 197 (1882); Palmer v. State, 121 Tenn. 465, 118 S.W. 1022, 1908 Tenn. LEXIS 30 (1908).

40-13-104. Prosecutor not required.

A prosecutor is dispensed with and the district attorney general may file bills of indictment, officially, and without a prosecutor marked on the bill of indictment, in the following cases:

Upon a presentment;
Upon an inquest of willful homicide or murder;
Upon a recognizance to answer for a breach of the peace, or other inferior offense, committed in the presence of and taken notice of by any judge from the judge's own view;
Upon a charge of gaming;
Upon a charge of drawing a lottery or vending lottery tickets;
Upon a charge of keeping a billiard table without a license;
Upon a charge of violation of graves;
Upon a charge against a county legislative body or a county mayor for failing to provide safe prisons;
Upon an order of the circuit or criminal court to file an indictment, officially, which may be made when it appears to the court that an indictable offense has been committed, and that no one will be prosecutor;
Upon information made to the district attorney general by a judge of the court of general sessions, upon the judge's own knowledge, of an indictable offense, committed during the sitting of the court;
Upon a report of the clerk of the chancery court that an executor, administrator or guardian has neglected or refused for thirty (30) days after a subpoena has been served to appear before the clerk and settle the accounts;
Upon a charge of violating the laws to suppress the use, importation or sale of prohibited weapons;
Upon a charge of violating the laws against illegal voting, and to preserve the purity of elections;
Against the clerk of any court who knowingly and willfully, with intent and purpose to affect the result of a case depending or decided in the clerk's court, makes a false entry, fails to make an entry directed by law or makes an imperfect transcript of the proceedings had in the clerk's court, and being in the clerk's office;
Upon a charge of violating the laws pertaining to intoxicating liquors;
Upon a charge of violating the laws to suppress private banking;
Upon a charge of cutting, writing upon, defacing, disfiguring or damaging public buildings;
Upon a charge against a clerk of converting to the clerk's own use, investing, using or lending money, property or effects in the clerk's custody, to be paid or delivered, according to law or order of court, to any party, witness, officer or other person;
Upon an indictment for sedition, conspiracies and riots;
Upon an indictment for disturbing or obstructing a public officer in the discharge of the officer's official duties;
Upon a charge for violating the game and fish laws;
Upon an indictment against a sheriff for permitting a prisoner in the sheriff's custody to be put to death by violence;
Upon a charge of trespass upon lands or injury to or removal of property in violation of § 39-14-408;
Upon a charge of child abuse in violation of § 39-15-401 or any other offense against the person in which a child is the victim; and
Any other cases provided by law.

Code 1858, § 5097 (deriv. Acts 1803, ch. 59; 1817, ch. 61, § 4; 1820, ch. 4, § 2; 1820, ch. 13, § 2; 1822, ch. 40, § 13; 1824, ch. 5, § 5; 1827, ch. 85, § 3; 1829, ch. 101, § 5; 1831, ch. 81, § 2; 1835-1836, ch. 47, § 5; 1837-1838, ch. 26, § 1; 1837-1838, ch. 125, § 3; 1837-1838, ch. 137, § 5; 1841-1842, ch. 31, § 14; 1841-1842, ch. 65; 1841-1842, ch. 129, § 4; 1847-1848, ch. 45, § 4; 1847-1848, ch. 124, §§ 1, 2; 1851-1852, ch. 167, § 2); Acts 1865, ch. 15, § 2; 1873, ch. 104, § 2; 1881, ch. 45, § 2; 1883, ch. 251, § 4; 1903, ch. 444, § 2; Shan., §§ 3169, 6503a4, 7059; mod. Code 1932, §§ 7822, 10837, 11603; modified; Acts 1968, ch. 563, §§ 1, 2; impl. am. Acts 1973, ch. 81, §§ 2, 6; 1977, ch. 482, § 13; impl. am. Acts 1978, ch. 846, § 3; impl. am. Acts 1978, ch. 934, §§ 7, 36; impl. am. Acts 1979, ch. 68, § 3; impl. am. Acts 1980, ch. 875, § 2; T.C.A. (orig. ed.), § 40-1705; Acts 1996, ch. 675, §§ 23-25; 2003, ch. 90, § 2.

Cross-References. Duties of district attorney general, § 8-7-103.

Vandalism, § 39-14-408.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 9.20.

NOTES TO DECISIONS

1. Prosecutor Required Unless Statutory Exception.

There must be a prosecutor marked on all indictments, except where there is some statute changing the law as to a particular offense or class of offenses. State v. Gossage, 32 Tenn. 263, 1852 Tenn. LEXIS 59 (1852).

By this section various exceptions are made to the requirement that no indictment shall be presented to the grand jury without a prosecutor, but in all cases not falling within one of the exceptions made, a prosecutor is still required. State v. Dillon, 38 Tenn. 389, 1858 Tenn. LEXIS 198 (1858).

2. Order to File Officially.

3. —Discretion of Court.

The power conferred upon the trial judges is, in its very nature, discretionary, and the exercise thereof is not subject, ordinarily, to revision. Rodes v. State, 78 Tenn. 414, 1882 Tenn. LEXIS 197 (1882).

4. —Presumption of Regularity.

The record need not show that the witnesses were examined by the judge in open court, for this will be presumed. Simpson v. State, 23 Tenn. 456, 1844 Tenn. LEXIS 137 (1844); Bennett v. State, 27 Tenn. 118, 1847 Tenn. LEXIS 56 (1847), overruled in part, Keith v. State, 127 Tenn. 40, 152 S.W. 1029, 1912 Tenn. LEXIS 5 (1912); State v. Kittrell, 66 Tenn. 167, 1874 Tenn. LEXIS 101 (1874); Lawless v. State, 72 Tenn. 173, 1879 Tenn. LEXIS 14 (1879).

The order need not show on its face that it was made because no one would prosecute, for this will be presumed. Bennett v. State, 27 Tenn. 118, 1847 Tenn. LEXIS 56 (1847), overruled in part, Keith v. State, 127 Tenn. 40, 152 S.W. 1029, 1912 Tenn. LEXIS 5 (1912); State v. Kittrell, 66 Tenn. 167, 1874 Tenn. LEXIS 101 (1874).

It is presumed that the court performed its duty, and that the facts warranted the order to file an indictment officially. Bennett v. State, 27 Tenn. 118, 1847 Tenn. LEXIS 56 (1847), overruled in part, Keith v. State, 127 Tenn. 40, 152 S.W. 1029, 1912 Tenn. LEXIS 5 (1912); Lawless v. State, 72 Tenn. 173, 1879 Tenn. LEXIS 14 (1879); Boyd v. State, 82 Tenn. 161, 1884 Tenn. LEXIS 117 (1884).

If the order fails to state that no one would prosecute, the court on appeal will presume that such fact so appeared. Boyd v. State, 82 Tenn. 161, 1884 Tenn. LEXIS 117 (1884).

5. —Continued Beyond Term.

The order of the court for indictment, ex officio, is not limited to the term at which it is made, but continues until complied with. State v. Cross, 21 Tenn. 301, 1841 Tenn. LEXIS 3 (1841).

6. —Abbreviations in Order.

Abbreviation “A. & B.” in order is a legitimate abbreviation for assault and battery, constantly recognized in legal proceedings. State v. Kittrell, 66 Tenn. 167, 1874 Tenn. LEXIS 101 (1874).

7. —Description of Victim.

The order directing an indictment, ex officio, wholly omitting the name of the person on whom the offense was committed, is not objectionable, and its validity is not thereby affected. State v. Kittrell, 66 Tenn. 167, 1874 Tenn. LEXIS 101 (1874); Boyd v. State, 82 Tenn. 161, 1884 Tenn. LEXIS 117 (1884).

Differences between the order to prosecute and the indictment in describing the victim did not invalidate the indictment where the descriptions showed the same person was being described. Boyd v. State, 82 Tenn. 161, 1884 Tenn. LEXIS 117 (1884).

8. —Order Correcting Name.

If, in the entry of the order directing the district attorney general to prosecute, ex officio, the clerk, by oversight, entered a different name, the court, upon affidavit of the clerk and the personal recollection of the judge, may, at a subsequent term of the court, have a nunc pro tunc order entered. Boyd v. State, 82 Tenn. 161, 1884 Tenn. LEXIS 117 (1884).

9. Presentment.

The record need not show, by any order or memorandum, that the indictment is founded upon a presentment, in order to dispense with a prosecutor, where the presentment itself appears in the record. State v. McCann, 19 Tenn. 91, 1838 Tenn. LEXIS 21 (1838).

This section is not applicable when the grand jury returns a presentment rather than an indictment. Poag v. State, 567 S.W.2d 775, 1978 Tenn. Crim. App. LEXIS 307 (Tenn. Crim. App. 1978).

A presentment need not bear the name of a prosecutor. Holt v. State, 591 S.W.2d 785, 1979 Tenn. Crim. App. LEXIS 296 (Tenn. Crim. App. 1979).

10. Betting on Election.

Prosecution of indictment for betting on an election without endorsement of prosecutor was invalid since betting on an election did not constitute gaming. State v. Smith, 19 Tenn. 99, 1838 Tenn. LEXIS 24 (1838).

11. Charge Against Clerk.

Indictment against county clerk for embezzlement of public funds does not require a prosecutor. Blackwood v. State, 204 Tenn. 682, 325 S.W.2d 262, 1959 Tenn. LEXIS 327 (1959).

40-13-105. Concurrence in true bill.

An indictment cannot be found without the concurrence of at least twelve (12) grand jurors and, when so found, shall be endorsed a “true bill,” and the endorsement signed by the foreman.

Code 1858, § 5093; Shan., § 7055; Code 1932, § 11600; T.C.A. (orig. ed.), § 40-1706.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 9.14, 9.33, 9.34, 16.15.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 3-6-2.

Law Reviews.

Criminal Procedure — Grand Jury Indictments — Failure of Jurors to Hear All the Evidence as Grounds for Setting Aside Indictment, 6 Vand. L. Rev. 714.

NOTES TO DECISIONS

1. Number of Jurors Required.

Twelve competent grand jurors may find an indictment, though a thirteenth man be present, who is not, of record, a member of the grand jury, or who is disqualified to act as such. State v. Deason, 65 Tenn. 511, 1873 Tenn. LEXIS 395 (1873); State v. Martin, 3 Shan. 478 (1875); Epperson v. State, 73 Tenn. 291, 1880 Tenn. LEXIS 127 (1880).

A presentment signed by 12 grand jurors and returned by them is not bad because signed only by those 12, where there are no objections to any members of the grand jury. McCampbell v. State, 116 Tenn. 98, 93 S.W. 100, 1905 Tenn. LEXIS 8 (1905).

Where 11 of the 12 grand jurors plus the foreman voted for a true bill, the indictment thus returned was valid since all this section requires is 12 affirmative votes and under § 40-1506 (since repealed) the foreman or forewoman has the same voting power as any other grand juror. Bolen v. State, 544 S.W.2d 918, 1976 Tenn. Crim. App. LEXIS 340 (Tenn. Crim. App. 1976).

2. Endorsement as True Bill.

There must always be a foreman of the grand jury, and his signature must attest its action, whether he agrees to the finding or not. State v. Collins, 65 Tenn. 151, 1873 Tenn. LEXIS 326 (1873).

Where foreman of grand jury signed bill as required by this section, fact that words “a true bill” were printed on indictment rather than written in hand of foreman was not grounds for quashing indictment. Wheeler v. State, 220 Tenn. 155, 415 S.W.2d 121, 1967 Tenn. LEXIS 462 (1967).

Where the foreman of the grand jury endorses the second count of the indictment to indicate that the entire document is the action of the grand jury in returning a true bill, as the provision of this section requiring the endorsement of the grand jury foreman is fulfilled. Janow v. State, 567 S.W.2d 483, 1978 Tenn. Crim. App. LEXIS 304 (Tenn. Crim. App. 1978).

While in some jurisdictions a statutory requirement similar to that of this section has been held to be directory only, it appears under long-standing Tennessee law that the endorsement and signature of the grand jury foreman must be considered mandatory, citing Gunkle v. State, 65 Tenn. 625, 1872 Tenn. LEXIS 464 (1872); State v. Herron, 86 Tenn. 442, 7 S.W. 37, 1887 Tenn. LEXIS 60 (1888); Canuff v. State, 97 Tenn. 635, 37 S.W. 547, 1896 Tenn. LEXIS 190 (1896); Bird v. State, 103 Tenn. 343, 52 S.W. 1076, 1899 Tenn. LEXIS 114 (1899); Applewhite v. State, 597 S.W.2d 328, 1979 Tenn. Crim. App. LEXIS 320 (Tenn. Crim. App. 1979).

There is no authority for the proposition that the foreman of the grand jury must endorse each count of a multicount indictment. When the foreman endorses the entire document as the action of the grand jury in returning a true bill, the endorsement requirement of T.C.A. § 40-13-105 is fulfilled. State v. Arnold, 719 S.W.2d 543, 1986 Tenn. Crim. App. LEXIS 2683 (Tenn. Crim. App. 1986).

3. —Presentment.

Authentication of presentment by signatures of all the grand jurors is sufficient and it need not be endorsed “a true bill.” Martin v. State, 127 Tenn. 324, 155 S.W. 129, 1912 Tenn. LEXIS 30 (1913).

Presentment signed by the members of the grand jury does not require the endorsement of the foreman that it is a true bill, there being nothing to show that it was not based upon knowledge of the members of the grand jury. Bowman v. State, 160 Tenn. 305, 23 S.W.2d 658, 1929 Tenn. LEXIS 106 (1930).

4. —Spreading of Record.

The indictment itself or the minutes must show it to have been found a true bill, by the grand jury, or it will be void. Gunkle v. State, 65 Tenn. 625, 1872 Tenn. LEXIS 464 (1872); State v. Herron, 86 Tenn. 442, 7 S.W. 37, 1887 Tenn. LEXIS 60 (1888); Canuff v. State, 97 Tenn. 635, 37 S.W. 547, 1896 Tenn. LEXIS 190 (1896); Bird v. State, 103 Tenn. 343, 52 S.W. 1076, 1899 Tenn. LEXIS 114 (1899); Martin v. State, 127 Tenn. 324, 155 S.W. 129, 1912 Tenn. LEXIS 30 (1913).

An indictment otherwise valid, was not bad because clerk failed to copy the endorsement, “a true bill,” and the foreman's signature upon minutes of the court where the indictment was returned in open court and entered upon the minutes by the clerk. State v. Herron, 86 Tenn. 442, 7 S.W. 37, 1887 Tenn. LEXIS 60 (1888); Bird v. State, 103 Tenn. 343, 52 S.W. 1076, 1899 Tenn. LEXIS 114 (1899).

It is a fatal objection in the supreme court to a conviction for a felony that the record fails to show that the indictment was endorsed “a true bill,” and the endorsement signed by the foreman, but it is not cause for reversal that the record fails to show that the indictment was returned into open court by the grand jury, if such endorsement appears thereon. Canuff v. State, 97 Tenn. 635, 37 S.W. 547, 1896 Tenn. LEXIS 190 (1896).

It is a fatal defect if indictment, as copied into the transcript, fails to show the endorsement a “true bill,” signed by the foreman of the grand jury. Bird v. State, 103 Tenn. 343, 52 S.W. 1076, 1899 Tenn. LEXIS 114 (1899).

5. —Failure to Sign.

Failure to endorse or sign the indictment does not deprive the trial court of jurisdiction over the person of the defendant or the offense, so as to make any resulting conviction void. Applewhite v. State, 597 S.W.2d 328, 1979 Tenn. Crim. App. LEXIS 320 (Tenn. Crim. App. 1979).

In order to provide a basis for a finding of error on appeal, the omission of the foreman's signature should have been brought to the trial court's attention prior to the defendant's plea to the merits. Defendant's failure to make a timely motion to dismiss, thereby depriving the court of the opportunity to allow the correction of the alleged deformity in the indictment, constituted a waiver of a later objection to the omission of the foreman's signature, where it appears on the record that an otherwise valid indictment, endorsed “a true bill,” was properly returned into court. Applewhite v. State, 597 S.W.2d 328, 1979 Tenn. Crim. App. LEXIS 320 (Tenn. Crim. App. 1979).

6. Special Foreman.

7. —Oath.

A special foreman may sign the endorsement without taking the foreman's oath, if he has already taken the oath given to the other grand jurors. State v. Collins, 65 Tenn. 151, 1873 Tenn. LEXIS 326 (1873).

8. —Authority Presumed.

It is no objection to an indictment that it is endorsed “a true bill” followed by the signature of one of the grand jury “as special foreman of the grand jury,” when his appointment as such foreman pro tem. appears of record, though the record fails to show the absence of the regular foreman. State v. Collins, 65 Tenn. 151, 1873 Tenn. LEXIS 326 (1873).

40-13-106. Endorsement when indictment not found.

If twelve (12) grand jurors do not concur in finding an indictment, the fact may be made known by endorsing the words “Not found” or other words of the same purport on the papers signed by the foreman.

Code 1858, § 5094; Shan., § 7056; Code 1932, § 11601; T.C.A. (orig. ed.), § 40-1707.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 9.3, 9.35.

Attorney General Opinions. Local education agency may not modify statutory criteria for Type 1 charter school enrollment, OAG 03-090 (7/24/03).

40-13-107. Endorsement of names of witnesses.

It is the duty of the foreman of the grand jury to endorse on the indictment or, if it is a presentment, on the subpoena the names of the witnesses so sworn by the foreman and sign same officially, but the omission to endorse the names of those witnesses on the indictment or subpoena shall in no case invalidate the finding of the indictment or presentment, if the witnesses were, in point of fact, sworn by the foreman according to law.

Acts 1875, ch. 30, § 2; Shan., § 7054; Code 1932, § 11599; T.C.A. (orig. ed.), § 40-1708.

Compiler's Notes. This section may be affected by Tenn. R. Crim. P. 16.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 9.2, 9.20, 9.28, 13.16, 13.17, 16.15.

Law Reviews.

The Tennessee Court Systems — The Jury System, 8 Mem. St. U.L. Rev. 489.

NOTES TO DECISIONS

1. Provisions Directory.

The provisions of this section are directory rather than mandatory. Mendolia v. State, 192 Tenn. 656, 241 S.W.2d 606, 1951 Tenn. LEXIS 313 (1951); State v. Youngblood, 199 Tenn. 519, 287 S.W.2d 89, 1956 Tenn. LEXIS 348 (1956); Smith v. State, 212 Tenn. 209, 369 S.W.2d 537, 1963 Tenn. LEXIS 415 (1963); Aldridge v. State, 4 Tenn. Crim. App. 254, 470 S.W.2d 42, 1971 Tenn. Crim. App. LEXIS 501 (Tenn. Crim. App. 1971).

2. Form.

3. —Indictments.

The endorsement of the names of 12 state witnesses on the indictment, and their addresses, is a sufficient compliance with this section. Stanley v. State, 171 Tenn. 406, 104 S.W.2d 819, 1937 Tenn. LEXIS 120 (1937).

The endorsement of the names and addresses of the witnesses on the indictment is a sufficient compliance with this section. State v. Youngblood, 199 Tenn. 519, 287 S.W.2d 89, 1956 Tenn. LEXIS 348 (1956); Smith v. State, 212 Tenn. 209, 369 S.W.2d 537, 1963 Tenn. LEXIS 415 (1963).

Where indictment recited order for certain witnesses to be subpoenaed for the state and at the conclusion of indictment notation signed by foreman of grand jury appeared to the effect that all witnesses endorsed on indictment were sworn in open court and examined before the grand jury, such indictment sufficiently complied with the statute. State v. Youngblood, 199 Tenn. 519, 287 S.W.2d 89, 1956 Tenn. LEXIS 348 (1956).

Where names and addresses of witnesses appeared on the opposite side of the indictment, failure to list such names and addresses on the back of indictment in blank space under the heading “Witnesses” was not prejudicial to defendant. Smith v. State, 212 Tenn. 209, 369 S.W.2d 537, 1963 Tenn. LEXIS 415 (1963).

4. —Presentments.

Endorsement of names of witnesses, in case of indictment, should be made upon the indictment; but in case of presentment, the names of the witnesses for the state should be endorsed on the subpoena, and the endorsement in either case should be signed by the foreman of the grand jury. State v. Lewis, 87 Tenn. 119, 9 S.W. 427, 1888 Tenn. LEXIS 42 (1888).

A presentment does not show that it was found upon the testimony of witnesses examined before the grand jury, because their names were endorsed thereon. Sadler v. State, 124 Tenn. 50, 136 S.W. 430, 1910 Tenn. LEXIS 40 (1911).

5. Prosecutor Not Witness.

Indictment was not defective on the ground that party named as “prosecutor” on the indictment did not testify before the grand jury. Mendolia v. State, 192 Tenn. 656, 241 S.W.2d 606, 1951 Tenn. LEXIS 313 (1951).

40-13-108. Presentation of indictment.

An indictment, when found by the grand jury and endorsed as prescribed by this part, shall be presented by the foreman to the clerk of the court who shall file the indictment as provided by law.

Code 1858, § 5098; Shan., § 7060; Code 1932, § 11604; T.C.A. (orig. ed.), § 40-1709; Acts 2003, ch. 64, § 1.

Law Reviews.

Discrimination in the Selection of the Grand Jury Foreman Requires Reversal, 9 Mem. St. U.L. Rev. 156.

NOTES TO DECISIONS

1. Record of Return — Necessity and Sufficiency.

Record should show return of indictment for misdemeanor into court, but the omission is not fatal, and may be corrected before trial, and is not objectionable after verdict of conviction. State v. Willis, 40 Tenn. 157, 1859 Tenn. LEXIS 40 (1859).

Word “open” need not be used in describing the court and the entry of the return of the indictment into court is sufficient. Maples v. State, 50 Tenn. 408, 1872 Tenn. LEXIS 7 (1872); State v. Herron, 86 Tenn. 442, 7 S.W. 37, 1887 Tenn. LEXIS 60 (1888).

The record must show that the indictment was found and returned into court by the grand jury in felony cases. State v. Herron, 86 Tenn. 442, 7 S.W. 37, 1887 Tenn. LEXIS 60 (1888).

2. Waiver of Objections.

Objection for insufficiency of such entries must be made before a verdict of conviction, or the same is waived. State v. Willis, 40 Tenn. 157, 1859 Tenn. LEXIS 40 (1859).

40-13-109. Entry in minutes of felony indictments.

All indictments for public offenses of the grade of felony, returned into court by the grand jury with the endorsement a “true bill” shall be entered by the clerk with the return in full on the minutes of the court and the originals compared with the entry by the judge before the judge signs the proceedings of the day.

Code 1858, § 5138 (deriv. Acts 1839-1840, ch. 105, §§ 1, 2); Shan., § 7101; Code 1932, § 11647; T.C.A. (orig. ed.), § 40-1710.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 9.40.

NOTES TO DECISIONS

1. Purpose.

The statute requiring indictments in felony cases to be spread upon the minutes proceeds upon cautionary and conservative grounds, for use in case of loss. Brown v. State, 26 Tenn. 155, 1846 Tenn. LEXIS 87 (1846); State v. Herron, 86 Tenn. 442, 7 S.W. 37, 1887 Tenn. LEXIS 60 (1888); Bird v. State, 103 Tenn. 343, 52 S.W. 1076, 1899 Tenn. LEXIS 114 (1899).

2. Sufficiency.

Failure of record to show that the grand jury returned into open court, with a bill of indictment for a felony endorsed “a true bill,” is a fatal defect. Henry v. State, 23 Tenn. 270, 1843 Tenn. LEXIS 78 (1842).

The records of the proceedings of the transferor court need not be spread upon the records of the transferee court at the first term after the transferee court acquired jurisdiction on a change of venue, but can be so placed in record at a subsequent term. Calhoun v. State, 23 Tenn. 477, 1844 Tenn. LEXIS 143 (1844).

It is not a fatal defect that the minutes fail to show that indictment for a felony was returned into court properly endorsed, if there is entry of record that indictment was so returned and endorsed. Brown v. State, 26 Tenn. 155, 1846 Tenn. LEXIS 87 (1846); State v. Herron, 86 Tenn. 442, 7 S.W. 37, 1887 Tenn. LEXIS 60 (1888).

Record should show return of indictment for misdemeanor into court, but failure to do so is not a fatal defect. State v. Willis, 40 Tenn. 157, 1859 Tenn. LEXIS 40 (1859).

3. Spreading on Minutes.

The clerk's failure to copy the endorsement “a true bill,” and signature of the foreman of the grand jury thereto, in spreading the indictment upon the minutes of the court, is immaterial, where the original indictment is so endorsed and is of record. Brown v. State, 26 Tenn. 155, 1846 Tenn. LEXIS 87 (1846); State v. Herron, 86 Tenn. 442, 7 S.W. 37, 1887 Tenn. LEXIS 60 (1888).

The failure to spread an indictment for a felony upon the minutes of the court neither enlarges nor diminishes the rights of the accused, since the object of such proceeding is simply to provide against the consequences of the loss, abstraction, or destruction of the original, and does not invalidate the indictment. Glasgow v. State, 68 Tenn. 485, 1876 Tenn. LEXIS 33 (1876).

There is no requirement in the statute that misdemeanor indictments or presentments be entered on the minutes. Davidson v. State, 223 Tenn. 193, 443 S.W.2d 457, 1969 Tenn. LEXIS 403 (1969).

4. Habeas Corpus.

Habeas court properly denied petitioner a writ of habeas corpus because petitioner's claims went to the form of the indictment, rather than the substance, and thus, petitioner was required to raise any objections prior to trial; even if petitioner could show the indictment was defective because it was not endorsed by the foreperson or endorsed as “a true bill,” which would be contrary to the habeas court's findings, such a claim did not present a proper ground for habeas corpus relief. Grooms v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 198 (Tenn. Crim. App. Mar. 25, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 606 (Tenn. July 21, 2015), cert. denied, Grooms v. Tennessee, 194 L. Ed. 2d 218, 136 S. Ct. 1216, — U.S. —, 2016 U.S. LEXIS 1524 (U.S. 2016).

40-13-110. Copies of minutes — New indictment.

A copy of the minutes shall be as good and valid as the originals if, at any time, the latter are lost, destroyed, misplaced or purloined.
In the absence of the entry provided for in § 40-13-109, the court may, in any of the contingencies mentioned in subsection (a), on proof of the fact, direct a new indictment to be preferred at the term at which the proof is made or at a subsequent term.

Code 1858, §§ 5139, 5140 (deriv. Acts 1839-1840, ch. 105, § 1); Shan., §§ 7102, 7103; Code 1932, §§ 11648, 11649; T.C.A. (orig. ed.), §§ 40-1711, 40-1712.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 9.40.

NOTES TO DECISIONS

1. In General.

Copy of indictment from the minutes may be used when the original is lost. Currey v. State, 66 Tenn. 154, 1874 Tenn. LEXIS 97 (1874); Epperson v. State, 73 Tenn. 291, 1880 Tenn. LEXIS 127 (1880).

2. Waiver of Right to Demand Original.

Where, upon the suggestion of the loss of the original indictment made by the district attorney general with an inquiry whether the indictment might be read from the minutes or should be copied, the defendant objected to reading it from the minutes and required a copy under the statute, such action on the part of the defendant waived his right to demand the original. Currey v. State, 66 Tenn. 154, 1874 Tenn. LEXIS 97 (1874).

3. Knowledge of Others as to Contents.

The lost indictment may be supplied upon the affidavits of loss and of the contents by the clerk and the district attorney general though the judge has never read the lost indictment, and knows, of his own knowledge, nothing of its contents. State v. Gardner, 81 Tenn. 134, 1884 Tenn. LEXIS 13, 49 Am. Rep. 660 (1884).

4. Record That Original Lost.

Trial of defendant on copy of indictment transmitted by clerk of circuit court to criminal court was erroneous where there was nothing in the record to show that original indictment had been lost. Boyd v. State, 46 Tenn. 1, 1868 Tenn. LEXIS 60 (1868).

40-13-111. Inspection of indictment before arrest.

When an indictment is found against any person not in actual custody or who has not given bail to answer to the indictment, that indictment shall not be inspected by any person except the judge and clerk of the court and the district attorney general until the defendant has been arrested.

Code 1858, § 5099; Shan., § 7061; Code 1932, § 11605; T.C.A. (orig. ed.), § 40-1714.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 9.41.

40-13-112. Disclosure of indictment before arrest.

No judge, attorney, clerk, other officer of the court or grand juror shall disclose the fact of any indictment found until the defendant has been arrested or given bail for appearance to answer the indictment; however, nothing in this section shall preclude law enforcement from releasing information contained within the indictment or the fact of the indictment for the purpose of apprehending the subject of the indictment.
A violation of subsection (a) is a Class A misdemeanor punishable, on conviction, as a Class A misdemeanor.
This section does not apply to any disclosure by the issuance of process.

Code 1858, §§ 5100, 5101; Shan., §§ 7062, 7063; Code 1932, §§ 11606, 11607; T.C.A. (orig. ed.), § 40-1715; Acts 1989, ch. 591, §§ 1, 6; 2008, ch. 643, § 1.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 9.24, 9.41.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

Part 2
Form and Sufficiency

40-13-201. Form generally.

An indictment must contain in the caption or body of the indictment, the name of the state, county and court; the term in and at which the indictment is preferred; and must conclude “against the peace and dignity of the state of Tennessee.”

Code 1932, § 11623; T.C.A. (orig. ed.), § 40-1801.

Cross-References. Similar provision in Tenn. Const., art. VI, § 12.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 16.11, 16.12.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

NOTES TO DECISIONS

1. Identification as Indictment.

2. Distinguished from Presentment.

The form of an indictment alone distinguishes it from a presentment. State v. Mingledorff, 713 S.W.2d 88, 1986 Tenn. Crim. App. LEXIS 2225 (Tenn. Crim. App. 1986).

3. Conclusion.

Indictment which concluded “against the peace and dignity of the state” was sufficient to meet the requirements of Tenn. Const., art. VI, § 12 and the additional words “of Tennessee” as provided by this section are directory and not mandatory. Haskins v. State, 179 Tenn. 441, 167 S.W.2d 331, 1942 Tenn. LEXIS 40 (1943).

Addition, in each count of indictment, of words which would prevent prosecution from being barred by limitation of § 40-2-101, following the words “against the peace and dignity of the State of Tennessee,” did not invalidate indictment. Burton v. State, 214 Tenn. 9, 377 S.W.2d 900, 1964 Tenn. LEXIS 441 (1964).

Substantial compliance with requirement that indictment conclude with words “against the peace and dignity of the State” is sufficient. Burton v. State, 214 Tenn. 9, 377 S.W.2d 900, 1964 Tenn. LEXIS 441 (1964).

4. Erroneous Statements.

The erroneous statement of an incorrect term of court at the top of the indictment is immaterial and does not invalidate an indictment where the caption shows the term at which the indictment is preferred. Janow v. State, 567 S.W.2d 483, 1978 Tenn. Crim. App. LEXIS 304 (Tenn. Crim. App. 1978).

40-13-202. Statement of offense.

The indictment must state the facts constituting the offense in ordinary and concise language, without prolixity or repetition, in a manner so as to enable a person of common understanding to know what is intended and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment. In no case are the words “force and arms” or “contrary to the form of the statute” necessary.

Code 1858, §§ 5114, 5115; Shan., §§ 7077, 7078; mod. Code 1932, § 11624; T.C.A. (orig. ed.), § 40-1802.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 16.19.

Law Reviews.

Amending the Indictment: Substance Over Form (David L. Raybin), 39 No. 11 Tenn. B.J. 14 (2003).

The Language of Mens Rea, 67 Vand. L. Rev. 1327 (2014).

NOTES TO DECISIONS

1. Qualification of Grand Jurors.

Where record shows that the members of the grand jury were “duly elected, impaneled, sworn, and charged” it sufficiently shows that they were “good and lawful men.” Galvin v. State, 46 Tenn. 283, 1869 Tenn. LEXIS 56 (1869).

If the facts showing proper organization of a grand jury appear in the caption, they need not be recited in the body of the indictment. McBean v. State, 50 Tenn. 20, 1870 Tenn. LEXIS 227 (1870).

Indictment, showing that grand jurors were sworn and averring that the grand jurors “do present and say,” is sufficient without the words “upon their oaths aforesaid.” McBean v. State, 50 Tenn. 20, 1870 Tenn. LEXIS 227 (1870).

The usual recital that the grand jurors are “good and lawful men” is rather the statement of a conclusion than of a fact, and the qualification of the jurors is not in reality tried. Dyer v. State, 79 Tenn. 509, 1883 Tenn. LEXIS 96 (1883).

2. Counts.

3. —Charge of Separate Offense.

Indictment for passing or offering to pass forged paper does not charge two distinct and separate offenses. State v. Haynes, 46 Tenn. 550, 1869 Tenn. LEXIS 97 (1869).

Indictment for forgery in making the instrument, or causing it to be made, does not charge two offenses. Lee v. State, 2 Shan. 484 (1877).

Indictment charging a judge with willfully and unlawfully drawing and issuing warrants for costs against the county was bad because it charged two or more offenses in the same count, the illegal drawing of each warrant being a separate transaction for which a criminal prosecution would lie. State v. Ferriss, 71 Tenn. 700, 1879 Tenn. LEXIS 133 (1879).

A count in an indictment charging that the defendant sold whiskey, without having first taken an oath not to mix or adulterate, and without giving bond, does not charge two offenses in the same count. Webb v. State, 79 Tenn. 662, 1883 Tenn. LEXIS 122 (1883).

Each count in an indictment is a separate indictment and regarded as charging a separate offense. Usary v. State, 172 Tenn. 305, 112 S.W.2d 7, 1937 Tenn. LEXIS 80, 114 A.L.R. 1401 (1938).

Where indictment was in two counts, one charging driving an automobile while drunk, the other charging driving carelessly, heedlessly and wantonly, and there was an acquittal on the first and jury disagreement on the second, in later trial under second a plea of former jeopardy was not sustainable. Usary v. State, 172 Tenn. 305, 112 S.W.2d 7, 1937 Tenn. LEXIS 80, 114 A.L.R. 1401 (1938).

Trial court erred by granting defendant's motion to dismiss the charges on the ground that the indictment was duplicitous since it charged a single count of each offense by listing two Schedule II drugs because the offense comprised the single homicide of the victim and the allegations regarding the particular drugs that led to the victim's death did not render the charge duplicitous. State v. Lewis, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 437 (Tenn. Crim. App. June 23, 2020).

4. —Election of Offense by State.

Where different offenses are charged in the same indictment or presentment, in one count or in different counts thereof, it is within the discretion of the trial judge, upon application of the defendant, to compel the attorney general to elect which count or offense he will prosecute. Ayrs v. State, 45 Tenn. 26, 1867 Tenn. LEXIS 88 (1867); Boyd v. State, 47 Tenn. 69, 1869 Tenn. LEXIS 9 (1869); Lawless v. State, 72 Tenn. 173, 1879 Tenn. LEXIS 14 (1879); Murphy v. State, 77 Tenn. 373, 1882 Tenn. LEXIS 68 (1882); Tillery v. State, 78 Tenn. 35, 1882 Tenn. LEXIS 137 (1882); Foute v. State, 83 Tenn. 712, 1885 Tenn. LEXIS 100 (1885).

Under an indictment for the murder of two persons, where it appears in the proof that the killing of each was by distinct and separate acts, or that the killing was unintentional as to one, the state will be required to elect which offense will be prosecuted, at any time before the jury is charged, for the defendant is entitled to separate trials in such cases. Womack v. State, 47 Tenn. 508, 1870 Tenn. LEXIS 166 (1870); Kannon v. State, 78 Tenn. 386, 1882 Tenn. LEXIS 193 (1882), questioned, Millen v. State, 988 S.W.2d 164, 1999 Tenn. LEXIS 76 (Tenn. 1999); Forrest v. State, 81 Tenn. 103, 1884 Tenn. LEXIS 8 (1884).

Where an indictment in several counts charged the defendant with statutory larceny, embezzlement, and fraudulent breach of trust, but all of the counts were based upon the same transaction, the state could not be required to elect. Raine v. State, 143 Tenn. 168, 226 S.W. 189, 1920 Tenn. LEXIS 6 (1920).

5. —Joinder.

Separate offenses belonging to the same class, differing only in degrees of severity of punishment, and committed at the same time, may be united, by different counts, in the same indictment or presentment, and often must be so united, in order to attain the ends of justice, especially where the several counts are inserted to meet the uncertainty of the evidence. Boyd v. State, 47 Tenn. 69, 1869 Tenn. LEXIS 9 (1869); McTigue v. State, 63 Tenn. 313, 1874 Tenn. LEXIS 252 (1874); Cornell v. State, 66 Tenn. 520, 1874 Tenn. LEXIS 173 (1874); Smith v. State, 70 Tenn. 614, 1879 Tenn. LEXIS 206 (1879); Hall v. State, 71 Tenn. 552, 1879 Tenn. LEXIS 115 (1879); Lawless v. State, 72 Tenn. 173, 1879 Tenn. LEXIS 14 (1879); Smith v. State, 76 Tenn. 386, 1881 Tenn. LEXIS 22 (1881); Tucker v. State, 76 Tenn. 633, 1881 Tenn. LEXIS 53 (1881); Tillery v. State, 78 Tenn. 35, 1882 Tenn. LEXIS 137 (1882); Kannon v. State, 78 Tenn. 386, 1882 Tenn. LEXIS 193 (1882), questioned, Millen v. State, 988 S.W.2d 164, 1999 Tenn. LEXIS 76 (Tenn. 1999); Foute v. State, 83 Tenn. 712, 1885 Tenn. LEXIS 100 (1885); Davis v. State, 85 Tenn. 522, 3 S.W. 348, 1886 Tenn. LEXIS 80 (1886); State v. Fry, 98 Tenn. 323, 39 S.W. 231, 1896 Tenn. LEXIS 226 (Tenn. Dec. 1896); Holt v. State, 107 Tenn. 539, 64 S.W. 473, 1901 Tenn. LEXIS 104 (1901); Chapple v. State, 124 Tenn. 105, 135 S.W. 321, 1910 Tenn. LEXIS 45 (1911), overruled in part, State v. Moss, 662 S.W.2d 590, 1984 Tenn. LEXIS 720 (Tenn. 1984).

Although distinct and different offenses cannot be charged in the alternative in one count, if of the same nature and visited by like punishment, such offenses may be contained in separate counts in one indictment or presentment. State v. Ailey, 50 Tenn. 8, 1870 Tenn. LEXIS 224 (1870); State v. Irvine, 50 Tenn. 155, 1871 Tenn. LEXIS 81 (1871); State v. Box, 1 Shan. 461 (1875), overruled in part, State v. Bryant, 585 S.W.2d 586, 1979 Tenn. LEXIS 480 (Tenn. 1979); Griffin v. State, 109 Tenn. 17, 70 S.W. 61, 1902 Tenn. LEXIS 54 (1902).

Count for felony of transporting more than a gallon of liquor may be joined with count charging misdemeanor of transporting less than a gallon. Tenpenny v. State, 151 Tenn. 669, 270 S.W. 989, 1924 Tenn. LEXIS 94 (1925), overruled in part, State v. Parker, 525 S.W.2d 128, 1975 Tenn. LEXIS 651 (Tenn. 1975).

There are seven sets of circumstances under which consolidation of indictments at trial is proper: (1) Where the offenses charged are similar, related, or connected; or (2) Are of the same or similar character or class; or (3) Involve or arose out of the same or related or connected acts, occurrences, transactions, series of events, or chain of circumstances; or (4) Are based on acts or transactions constituting part of a common scheme or plan; or (5) Are of the same pattern and committed in the same manner; or (6) Where there is a common element of substantial importance in their commission; or (7) Where the same, or much the same, evidence will be competent and admissible in their prosecution, and if not joined for trial the repetition or reproduction of substantially the same testimony will be required at each trial. Bruce v. State, 213 Tenn. 666, 378 S.W.2d 758, 1964 Tenn. LEXIS 435 (1964), superseded by statute as stated in, State v. Shirley, 6 S.W.3d 243, 1999 Tenn. LEXIS 575 (Tenn. 1999); Jett v. State, 556 S.W.2d 236, 1977 Tenn. Crim. App. LEXIS 289 (Tenn. Crim. App. 1977), superseded by statute as stated in, State v. Shirley, 6 S.W.3d 243, 1999 Tenn. LEXIS 575 (Tenn. 1999).

Consolidation of separate indictments for trial is a procedural matter which is discretionary with the trial court. Bruce v. State, 213 Tenn. 666, 378 S.W.2d 758, 1964 Tenn. LEXIS 435 (1964), superseded by statute as stated in, State v. Shirley, 6 S.W.3d 243, 1999 Tenn. LEXIS 575 (Tenn. 1999); Withers v. State, 523 S.W.2d 364, 1975 Tenn. Crim. App. LEXIS 294 (Tenn. Crim. App. 1975); McCook v. State, 555 S.W.2d 411, 1977 Tenn. Crim. App. LEXIS 297 (Tenn. Crim. App. 1977), cert. denied, Richardson v. Tennessee, 434 U.S. 942, 98 S. Ct. 436, 54 L. Ed. 2d 302, 1977 U.S. LEXIS 3932 (1977); Jett v. State, 556 S.W.2d 236, 1977 Tenn. Crim. App. LEXIS 289 (Tenn. Crim. App. 1977), superseded by statute as stated in, State v. Shirley, 6 S.W.3d 243, 1999 Tenn. LEXIS 575 (Tenn. 1999).

Where three offenses were committed at the same time on the same individual and showed a logical connection, an indictment charging all three counts is not void for duplicity. Evans v. State, 557 S.W.2d 927, 1977 Tenn. Crim. App. LEXIS 318 (Tenn. Crim. App. 1977).

6. —Offenses in Same Count.

Offenses of the same character, created by the same statute, and punishable in the same manner, may be joined in the same count of an indictment or presentment. State v. Ailey, 50 Tenn. 8, 1870 Tenn. LEXIS 224 (1870); State v. Irvine, 50 Tenn. 155, 1871 Tenn. LEXIS 81 (1871); State v. Lindsey, 2 Shan. 501 (1877); State v. Callicutt, 69 Tenn. 714, 1878 Tenn. LEXIS 165 (1878); Griffin v. State, 109 Tenn. 17, 70 S.W. 61, 1902 Tenn. LEXIS 54 (1902).

An indictment or presentment charging two separate and distinct offenses in the same count, or offenses the punishment of each of which is different, is bad for duplicity. State v. Box, 1 Shan. 461 (1875), overruled in part, State v. Bryant, 585 S.W.2d 586, 1979 Tenn. LEXIS 480 (Tenn. 1979); State v. Lindsey, 2 Shan. 501 (1877); Morton v. State, 69 Tenn. 498, 1878 Tenn. LEXIS 125 (1878), criticized, 216 Tenn. 89, 390 S.W.2d 234, 1965 Tenn. LEXIS 560 (1965); State v. Ferriss, 71 Tenn. 700, 1879 Tenn. LEXIS 133 (1879); Kannon v. State, 78 Tenn. 386, 1882 Tenn. LEXIS 193 (1882), questioned, Millen v. State, 988 S.W.2d 164, 1999 Tenn. LEXIS 76 (Tenn. 1999); Forrest v. State, 81 Tenn. 103, 1884 Tenn. LEXIS 8 (1884); Griffin v. State, 109 Tenn. 17, 70 S.W. 61, 1902 Tenn. LEXIS 54 (1902).

7. —Counts Aiding Each Other.

One count in an indictment can derive no aid from another, without express reference to the material matter in the other, and without such reference, each count must stand or fall upon its own averment. State v. Lea, 41 Tenn. 175, 1860 Tenn. LEXIS 41 (1860); Rice v. State, 50 Tenn. 215, 1871 Tenn. LEXIS 85 (1871).

8. Offenses of Separate Class.

Distinct and separate offenses, or offenses of a different class, cannot be joined in the same indictment or presentment, either in the same count or by separate counts. Womack v. State, 47 Tenn. 508, 1870 Tenn. LEXIS 166 (1870); Kannon v. State, 78 Tenn. 386, 1882 Tenn. LEXIS 193 (1882), questioned, Millen v. State, 988 S.W.2d 164, 1999 Tenn. LEXIS 76 (Tenn. 1999).

9. Offenders Joined.

Several offenders may be joined in the same indictment, charged in separate counts with distinct offenses, but the offenses must be of the same nature, and such as will admit the same plea and the same judgment. State v. Lea, 41 Tenn. 175, 1860 Tenn. LEXIS 41 (1860); State v. Irvine, 50 Tenn. 155, 1871 Tenn. LEXIS 81 (1871); State v. Atchison, 71 Tenn. 729, 1879 Tenn. LEXIS 138, 31 Am. Rep. 663 (1879).

An indictment of two persons for an assault and battery upon three persons is good upon its face. Fowler v. State, 50 Tenn. 154, 1871 Tenn. LEXIS 80 (1871).

Two offenders cannot be joined in one count for uttering of obscene language or for perjury, and such charge is bad for duplicity, because the act which constitutes the offense must, in its nature, be several and personal. State v. Wilson, 115 Tenn. 725, 91 S.W. 195, 1905 Tenn. LEXIS 103 (1906).

10. —Generally.

The description of the offense charged in an indictment ought to be competent to three purposes: (1) To the information of the defendant, that he may know what offense he is called upon to answer; (2) To the information of the court, that it may see a definite offense on record to apply the judgment and the punishment prescribed by law; and (3) To the protection of the defendant against a future prosecution for the same offense. Hall v. State, 43 Tenn. 125, 1866 Tenn. LEXIS 27 (1866); State v. Ferriss, 71 Tenn. 700, 1879 Tenn. LEXIS 133 (1879); Givens v. State, 103 Tenn. 648, 55 S.W. 1107, 1899 Tenn. LEXIS 143 (1899); State v. Witherspoon, 115 Tenn. 138, 90 S.W. 852, 1905 Tenn. LEXIS 50 (1905); Pope v. State, 149 Tenn. 176, 258 S.W. 775, 1923 Tenn. LEXIS 90 (1924).

The general assembly has the power to prescribe what shall constitute the accusation, in what form the crime shall be charged. State v. Stephens, 127 Tenn. 282, 154 S.W. 1149, 1912 Tenn. LEXIS 27 (1913); Tipton v. State, 160 Tenn. 664, 28 S.W.2d 635, 1930 Tenn. LEXIS 152 (1930).

Indictment against father for failure to have children immunized against polio under rules of county board of health operating under private act was sufficient. Gamble v. State, 206 Tenn. 376, 333 S.W.2d 816, 1960 Tenn. LEXIS 373 (1960).

The indictment must state such facts and circumstances as will constitute the crime and not merely a legal result or conclusion. Warden v. State, 214 Tenn. 391, 381 S.W.2d 244, 1964 Tenn. LEXIS 488 (1964); Warden v. State, 214 Tenn. 398, 381 S.W.2d 247, 1964 Tenn. LEXIS 489, 6 A.L.R.3d 513 (1964), overruled in part, State v. Jones, 598 S.W.2d 209, 1980 Tenn. LEXIS 437 (Tenn. 1980).

The true test is not whether an indictment could be more definite and certain, but whether it contains the elements of the offense to be charged and sufficiently apprises a defendant of what he must be prepared to meet, and whether the record shows accurately to what extent he may plead formal acquittal or conviction in case any other proceedings are taken against him for the offense. Morris v. State, 608 S.W.2d 154, 1980 Tenn. Crim. App. LEXIS 327 (Tenn. Crim. App. 1980); State v. Smith, 612 S.W.2d 493, 1980 Tenn. Crim. App. LEXIS 346 (Tenn. Crim. App. 1980).

The purpose of an indictment is threefold: (1) It must inform the defendant of the precise charges; (2) It must enable the trial court upon conviction to enter an appropriate judgment and sentence; and (3) It must protect the defendant against double jeopardy. State v. Clark, 2 S.W.3d 233, 1998 Tenn. Crim. App. LEXIS 1153 (Tenn. Crim. App. 1998).

Because the inmate affirmatively requested a jury instruction on the offense of aggravated assault, even though he was in error in believing that it was a lesser-included offense of attempted first-degree murder, he effectively agreed to amend the indictment to include aggravated assault; therefore, the trial court had jurisdiction to convict the inmate of aggravated assault, his conviction was not void, and he was not entitled to habeas corpus relief. Demonbreun v. Bell, 226 S.W.3d 321, 2007 Tenn. LEXIS 452 (Tenn. May 8, 2007), rehearing denied, — S.W.3d —, 2007 Tenn. LEXIS 529 (Tenn. May 25, 2007).

11. —Notice to Defendant.

The indictment or presentment is intended to give the defendant notice of the facts sought to be proved against him. Daniel v. State, 50 Tenn. 257, 1871 Tenn. LEXIS 90 (1871).

An indictment which follows and is in the language of the act, may, nevertheless, be insufficient if it fails to give defendant notice of the nature of the charge brought against him or if the crime charged is not so identified that the record in the case could be relied upon in another trial for the same offense upon plea of former jeopardy. State v. Witherspoon, 115 Tenn. 138, 90 S.W. 852, 1905 Tenn. LEXIS 50 (1905).

An indictment which stated the facts constituting the offense in such a manner as to enable defendants to understand the charge and to make defense and also to enable the court upon conviction to pronounce judgment is sufficient. Fox v. State, 171 Tenn. 226, 101 S.W.2d 1110, 1936 Tenn. LEXIS 83 (1937).

The fundamental test of the sufficiency of an indictment is the adequacy of the notice to the defendant conveyed by its terms. Green v. State, 176 Tenn. 449, 143 S.W.2d 713, 1940 Tenn. LEXIS 85 (1940); State v. Estes, 199 Tenn. 406, 287 S.W.2d 40, 1956 Tenn. LEXIS 338 (1956).

Under statute relating to sufficiency of indictments, true test is not whether indictment could have been more definite and certain, but whether it contains elements of offense to be charged and sufficiently apprises defendant of what he must be prepared to meet, and whether record shows accurately to what extent he may plead former acquittal or conviction in case any other proceedings are taken against him for similar offense. State v. Overton, 193 Tenn. 171, 245 S.W.2d 188, 1951 Tenn. LEXIS 343 (1951).

Indictment must convey to defendant adequate notice of that with which he is charged and the elements thereof. Wheeler v. State, 220 Tenn. 155, 415 S.W.2d 121, 1967 Tenn. LEXIS 462 (1967).

Although in indictment for soliciting another to commit an aggravated assault it was undoubtedly possible to set out the nature of the assaults which defendant was charged with soliciting, such specificity was not necessary or required in order to provide notice of the offense. Morris v. State, 608 S.W.2d 154, 1980 Tenn. Crim. App. LEXIS 327 (Tenn. Crim. App. 1980).

There is no requirement that a joint indictment set forth the specific acts committed by each appellant. State v. Smith, 612 S.W.2d 493, 1980 Tenn. Crim. App. LEXIS 346 (Tenn. Crim. App. 1980).

Defendant was provided with specific notice of the manner in which defendant had committed the offense for which defendant was charged, despite that indictment contained the term “carnal knowledge” instead of the proper statutory term “sexual penetration.” Hart v. State, 21 S.W.3d 901, 2000 Tenn. LEXIS 356 (Tenn. 2000).

An indictment is sufficient to satisfy the constitutional guarantees of notice to the accused if the indictment contains allegations that: (1) Enable the accused to know the accusation to which answer is required; (2) Furnish the trial court an adequate basis for entry of a proper judgment; and (3) Protect the accused from a subsequent prosecution of the same offense. State v. Hammonds, 30 S.W.3d 294, 2000 Tenn. LEXIS 547 (Tenn. 2000).

Defendant's convictions for animal cruelty were appropriate in part because the presentment was not insufficient since each count of the presentment identified the individual animal by species, breed, and cage or tag number, provided the date and location of the offense, referenced the applicable statute, and set out the particular subsection of the statute under which defendant was being charged; that was sufficient to achieve the overriding purpose of providing notice to defendant of the charges against her. State v. Siliski, 238 S.W.3d 338, 2007 Tenn. Crim. App. LEXIS 390 (Tenn. Crim. App. May 15, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 878 (Tenn. Sept. 17, 2007).

Count of the indictment charging defendant with employment of a firearm during the attempt to commit a dangerous felony was not void for failing to name the underlying predicate felony where the record made it clear that the attempted second degree murder offense, which was the only dangerous felony with which defendant was charged, served as the predicate felony. State v. Perrier, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 666 (Tenn. Crim. App. Sept. 6, 2016), aff'd, 536 S.W.3d 388, 2017 Tenn. LEXIS 724 (Tenn. Nov. 21, 2017).

12. —Equivalent Averments Proper.

If the name charged is idem sonans with the one proved, the variance in the spelling is immaterial. Timms v. State, 44 Tenn. 138, 1867 Tenn. LEXIS 23 (1867); Scott v. State, 75 Tenn. 232, 1881 Tenn. LEXIS 101 (1881).

If the statement of the offense is made in ordinary and concise language, embodying all the requisites that go to constitute the offense, it is sufficient. Witt v. State, 46 Tenn. 5, 1868 Tenn. LEXIS 61 (1868), overruled, Campbell v. State, 491 S.W.2d 359, 1973 Tenn. LEXIS 421 (Tenn. 1973), overruled in part, Campbell v. State, 491 S.W.2d 359, 1973 Tenn. LEXIS 421 (Tenn. 1973); Taylor v. State, 50 Tenn. 460, 1872 Tenn. LEXIS 15 (1872); Alexander v. State, 50 Tenn. 475, 1872 Tenn. LEXIS 18 (1872); Cornell v. State, 66 Tenn. 520, 1874 Tenn. LEXIS 173 (1874); State v. Bellville, 66 Tenn. 548, 1874 Tenn. LEXIS 180 (1874); Logan v. State, 70 Tenn. 222, 1879 Tenn. LEXIS 160 (1879); Foster v. State, 74 Tenn. 213, 1880 Tenn. LEXIS 235 (1880); Millner v. State, 83 Tenn. 179, 1885 Tenn. LEXIS 39 (1885); Palmer v. State, 121 Tenn. 465, 118 S.W. 1022, 1908 Tenn. LEXIS 30 (1908); Bishop v. State, 122 Tenn. 729, 127 S.W. 698, 1909 Tenn. LEXIS 44 (1910).

Indictment for a statutory offense is sufficient though a word is substituted which is equivalent to the word used in the statute or of more extensive signification. Riddle v. State, 50 Tenn. 401, 1872 Tenn. LEXIS 6 (1872); State v. Smith, 119 Tenn. 521, 105 S.W. 68, 1907 Tenn. LEXIS 19 (1907).

The indictment for murder need only describe the crime in the words of the statute or in words of equivalent or more comprehensive import. Riddle v. State, 50 Tenn. 401, 1872 Tenn. LEXIS 6 (1872).

An indictment charging robbery, using the word “violently” instead of “forcibly” as used in the code provision defining the offense is not defective, the former word being equally as significant of force as the latter. McTigue v. State, 63 Tenn. 313, 1874 Tenn. LEXIS 252 (1874).

13. —Unessential Averments.

An indictment which alleges all the requisites that constitute the offense of an assault with intent to commit murder in the first degree under the statute is good though it omit the words “in the first degree.” Logan v. State, 70 Tenn. 222, 1879 Tenn. LEXIS 160 (1879).

A clerical mistake in the date of the passage of a statute in the recitals of an indictment for a misdemeanor is no ground for arrest of judgment after conviction, the offense being otherwise sufficiently described and the recital of the act being unnecessary. Harris v. State, 71 Tenn. 324, 1879 Tenn. LEXIS 84 (1879).

An indictment is good which charges that the defendant did “publicly use profane and blasphemous and obscene language in the hearing of divers citizens so as to become a nuisance, to wit,” setting out the words, it being unnecessary to set out the tone and manner of utterance or the variety of circumstances which would go to make a single oath a nuisance. Young v. State, 78 Tenn. 165, 1882 Tenn. LEXIS 158 (1882).

Where an indictment charges an offense in the language of the statute, other and additional averments not required by the statute should be disregarded as surplusage. Harris v. State, 82 Tenn. 485, 1884 Tenn. LEXIS 150 (1884).

An indictment charging that accused willfully, unlawfully, feloniously, maliciously, deliberately and premeditatedly assaulted a named person with a gun, with the felonious intent to kill her and commit murder in the first degree held sufficient though it did not describe the weapon, how it was used, or charge that the gun was loaded. McCommon v. State, 130 Tenn. 1, 168 S.W. 581, 1914 Tenn. LEXIS 1 (1914).

Provision of a statute, making a second offense a felony, that a second indictment need not charge former conviction is not violative of accused's constitutional right to be charged by presentment, indictment or impeachment stating the nature and cause of the accusation against him. Tipton v. State, 160 Tenn. 664, 28 S.W.2d 635, 1930 Tenn. LEXIS 152 (1930).

An indictment charging aggravated rape in violation of T.C.A. § 39-13-502 met constitutional requirements of notice and form and was valid, even though it failed to allege a culpable mental state. State v. Hill, 954 S.W.2d 725, 1997 Tenn. LEXIS 524 (Tenn. 1997).

Indictment against defendant was not constitutionally defective due to the fact that it failed to charge the aggravating circumstances relied on by the state to sentence him to death, because the Tennessee supreme court has consistently rejected the argument that aggravating circumstances have to be pled in the indictment. State v. Berry, 141 S.W.3d 549, 2004 Tenn. LEXIS 659 (Tenn. 2004), writ denied, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 214 (Tenn. Crim. App. Mar. 23, 2016).

14. —Prima Facie Crime Averment.

The statement of facts in the indictment should conform to the substantive requirements of the science of pleading which is part of the common law. Lewis v. State, 50 Tenn. 333, 1871 Tenn. LEXIS 105 (1871).

If the statute does not set forth all the ingredients of the offense or enough to constitute the crime, the indictment must add them. Cornell v. State, 66 Tenn. 520, 1874 Tenn. LEXIS 173 (1874).

Where the act in itself is not necessarily unlawful but becomes so by its peculiar circumstances and relations, the matters must be set forth in which its illegality consists. State v. Tarver, 79 Tenn. 658, 1883 Tenn. LEXIS 121 (1883).

In drawing an indictment under the statute against rape, it is only necessary to add, after setting out the elements as specified in the statute, the circumstances of time and person. Palmer v. State, 121 Tenn. 465, 118 S.W. 1022, 1908 Tenn. LEXIS 30 (1908).

Where the language of a statute is so general that the necessary circumstances to make out a prima facie crime do not appear, these must be averred in addition to the language of the statute. State v. Crockett, 137 Tenn. 679, 195 S.W. 583, 1917 Tenn. LEXIS 179 (1917).

15. —Statutory Language Use.

When a statute creates a new offense, the indictment must charge the facts and circumstances as mentioned in the statute, and it is better to pursue strictly the words of the statute so as to preclude all questions as to the meaning of the expressions used. Harrison v. State, 42 Tenn. 232, 1865 Tenn. LEXIS 47 (1865), overruled, Bass v. State, 65 Tenn. 579, 1872 Tenn. LEXIS 457 (1873), overruled in part, Bass v. State, 65 Tenn. 579, 1872 Tenn. LEXIS 457 (1873); Hall v. State, 43 Tenn. 125, 1866 Tenn. LEXIS 27 (1866); Villines v. State, 96 Tenn. 141, 33 S.W. 922, 1895 Tenn. LEXIS 19 (1896).

Since the code nowhere declares the assault and battery on a female with intent to ravish a felony, it is not necessary that indictment for such offense charge that the assault was feloniously made. Jones v. State, 50 Tenn. 445, 1872 Tenn. LEXIS 12 (1872).

A presentment charging defendant, in the language of the statute, with selling an intoxicating beverage within four miles of an incorporated institution of learning is good without designating the institution or the beverage. State v. Odam, 70 Tenn. 220, 1879 Tenn. LEXIS 159 (1879).

Indictment for robbery under the code is good where it charges the offense in the words of the statute defining the offense. State v. Swafford, 71 Tenn. 162, 1879 Tenn. LEXIS 50 (1879).

Indictment charging the (former) county court judge with willfully and unlawfully drawing and issuing warrants for costs against the county of Davidson was bad because the warrants, by statute, were required to be drawn on the county trustee rather than upon the county. State v. Ferriss, 71 Tenn. 700, 1879 Tenn. LEXIS 133 (1879).

Indictment which, using the words of the statute, charges that the defendant unlawfully and feloniously stole, took and carried away certain goods with intent to deprive the owner thereof is good, without alleging in addition that the goods were taken without permission of the owner. Wedge v. State, 75 Tenn. 687, 1881 Tenn. LEXIS 170 (1881).

Indictment for robbery which contains all the words of the statute or their full equivalent and more besides, is good though it contains no averment of ownership of the property taken. Clemons v. State, 92 Tenn. 282, 21 S.W. 525, 1892 Tenn. LEXIS 74 (1893).

If a battery is required by the statute to constitute the offense it must be averred, since an indictment for a statutory offense must charge every act made essential by the statutory definition of the offense. Wilson v. State, 103 Tenn. 87, 52 S.W. 869, 1899 Tenn. LEXIS 89 (1899).

An indictment for larceny framed in the language of the statute, and which definitely describes the property taken and gives the name of the owner thereof is good. State v. Morgan, 109 Tenn. 157, 69 S.W. 970, 1902 Tenn. LEXIS 66 (1902), overruled in part, State v. McDonald, 534 S.W.2d 650, 1976 Tenn. LEXIS 599 (Tenn. 1976).

In an indictment for the abduction of a female, it is sufficient if the offense is charged in the language of the statute without averring the chastity of the female alleged to have been abducted. Griffin v. State, 109 Tenn. 17, 70 S.W. 61, 1902 Tenn. LEXIS 54 (1902).

If the language of the statute upon which the indictment is based is insufficient to give the defendant notice of the offense or the nature of the charge, an indictment which merely follows the language of the statute may be dismissed on motion to quash. State v. Estes, 199 Tenn. 406, 287 S.W.2d 40, 1956 Tenn. LEXIS 338 (1956).

Omission of word “feloniously” from indictment for assault to commit murder did not make indictment insufficient even though such term was contained in statute since it was used to describe manner of assault rather than substance of offense. Bivens v. State, 477 S.W.2d 231, 1971 Tenn. Crim. App. LEXIS 459 (Tenn. Crim. App. 1971).

Indictment that alleged the unlawful delivery of cocaine and provided the statute that directed the defendant to the subsection containing the requisite mens rea was sufficient. State v. Smith, 996 S.W.2d 845, 1999 Tenn. Crim. App. LEXIS 142 (Tenn. Crim. App. 1999).

16. —Negativing Statutory Exceptions.

When a statute contains provisos and exceptions in distinct clauses, it is not necessary to state in the indictment that defendant does not come within the exceptions, or to negative the provisos it contains, but if the exceptions themselves are stated in the enacting clause, it will be necessary to negative them in order that the description of the crime may in all respects correspond with the statute. Lambeth v. State, 3 Shan. 754 (1877); State v. Jackson, 69 Tenn. 680, 1878 Tenn. LEXIS 157 (1878).

A presentment for unlawfully carrying a belt or pocket pistol or revolver is sufficient without negativing the exceptions in the statutes. State v. Jackson, 69 Tenn. 680, 1878 Tenn. LEXIS 157 (1878).

That the proviso is in the same section that defines the offense does not require it to be negatived but if the proviso is so expressed in the statute as to be incorporated in the definition of the offense, the indictment must negative the proviso. Villines v. State, 96 Tenn. 141, 33 S.W. 922, 1895 Tenn. LEXIS 19 (1896).

An indictment charging that a retail druggist unlawfully compounded and dispensed medicines, filled prescriptions of physicians, and sold for medical purposes drugs, chemicals, poisons and other like preparations, in violation of the requirements of the statute named is good, though it fails to negative the proviso of the statute excepting physicians from its operation, the ingredients constituting the offense being defined in a clause distinctly separable from the proviso or exception. Villines v. State, 96 Tenn. 141, 33 S.W. 922, 1895 Tenn. LEXIS 19 (1896).

17. —Negativing Judicial Qualifications.

A qualification introduced into the statute by judicial construction at most could only be in the nature of an exception which did not need to be negatived in the indictment. Griffin v. State, 109 Tenn. 17, 70 S.W. 61, 1902 Tenn. LEXIS 54 (1902).

18. —Surplusage.

Though the code requires that the statement of facts constituting the offense in the indictment be in ordinary and concise language without prolixity or repetition, the indictment is not bad if it is unnecessarily prolix, or contains surplus words, provided, by rejecting the surplusage, the offense is sufficiently charged. State v. Bellville, 66 Tenn. 548, 1874 Tenn. LEXIS 180 (1874).

The judge properly treated as surplusage a clerical error which charged a violation of § 39-2-302 (now repealed), but which read § 39-2-303 (now repealed). McCracken v. State, 489 S.W.2d 48, 1972 Tenn. Crim. App. LEXIS 290 (Tenn. Crim. App. 1972).

A grand jury indictment which, as originally drawn contained the names of the defendants and a later reference to “they, the said” without renaming the defendants, was sufficient under this section and a later amendment striking the words “they, the said” and adding the word “them” was surplusage and not prejudicial. Shaw v. State, 540 S.W.2d 272, 1976 Tenn. Crim. App. LEXIS 366 (Tenn. Crim. App. 1976).

For a variance in specificity between the indictment and the proof to be fatal to a conviction, the variance must pertain to a material aspect of the offense, but if the indictment's surplusage is with respect to a matter legally essential to the charge, then it must be proven in the degree of detail alleged. Ray v. State, 577 S.W.2d 681, 1978 Tenn. Crim. App. LEXIS 280 (Tenn. Crim. App. 1978).

19. —Certainty of Description.

The nature and cause of the accusation of murder was sufficiently charged without specifying the weapon used or describing the wound inflicted. Alexander v. State, 50 Tenn. 475, 1872 Tenn. LEXIS 18 (1872), cited in Ray v. State, 108 Tenn. 282, 67 S.W. 553, 1901 Tenn. LEXIS 30 (1901).

Allegation in an indictment that “a more particular description is to the jurors unknown” cannot have the effect of dispensing with such description of the offense as will protect the defendant from a second prosecution for the same offense, but if a particular fact which is matter of description and not vital to the accusation cannot be ascertained, the indictment may charge that such fact is unknown to the jurors. State v. Ferriss, 71 Tenn. 700, 1879 Tenn. LEXIS 133 (1879).

That degree of precision in the description of an offense cannot be given in the indictment so as to distinguish it per se from all other cases of a similar nature. Millner v. State, 83 Tenn. 179, 1885 Tenn. LEXIS 39 (1885).

Although the Tennessee supreme court has recently said that where constitutional and statutory requirements are met, an indictment which cites the pertinent statute and uses its language will be sufficient to support a conviction, there is no indication that such relaxation of the strict pleading requirements of common law go so far as to overturn the mandate that the indictment state facts and not mere results or conclusions. State v. Clark, 2 S.W.3d 233, 1998 Tenn. Crim. App. LEXIS 1153 (Tenn. Crim. App. 1998).

20. —Legal Effect of Facts.

In the statement of the offense, the indictment must recite explicitly the facts which constitute the alleged crime, and not merely their supposed legal bearing. Alexander v. State, 50 Tenn. 475, 1872 Tenn. LEXIS 18 (1872).

Indictment charging that defendants “feloniously and with malice aforethought did assault W. M. Smith with intent to commit murder in the first degree upon him, the said W. M. Smith, contrary to the form of the statute” is bad for failure to set out the manner of the assault as that it was committed with a named instrument capable of producing death, deliberately on premeditation to commit murder in the first degree. Bass v. State, 65 Tenn. 579, 1872 Tenn. LEXIS 457 (1873).

21. —Malice Averment.

An indictment alleging that defendant unlawfully, knowingly, willfully, and “feloniously” cut and removed timber from the lands of M. without the owner's consent was fatally defective for failure to allege, in the words of the statute, that the timber was “maliciously” removed. State v. Smith, 119 Tenn. 521, 105 S.W. 68, 1907 Tenn. LEXIS 19 (1907).

In an indictment the terms “with malice aforethought” and “maliciously” were terms of equivalent import which could be used interchangeably. Campbell v. State, 491 S.W.2d 359, 1973 Tenn. LEXIS 421 (Tenn. 1973).

22. —Intent Averment.

Indictment under statute against breaking and entering with intent to commit a larceny is sufficient where it charges the commission of larceny in appropriate language, though it fails to aver the intent to commit larceny, the charge of the actual commission of larceny being equivalent to a charge of the intent to commit larceny. Pardue v. State, 63 Tenn. 10, 1874 Tenn. LEXIS 192 (1874).

Recklessness, knowledge or intent may be inferred from the conduct alleged in the indictment. State v. Sledge, 15 S.W.3d 93, 2000 Tenn. LEXIS 131 (Tenn. 2000), cert. denied, Sledge v. Tennessee, 531 U.S. 889, 121 S. Ct. 211, 148 L. Ed. 2d 149, 2000 U.S. LEXIS 6093 (2000).

Indictment against defendant was not void, because it did not allege a culpable mental state, as the intentional nature of aggravated sexual battery could be inferred from the conduct alleged in the indictment, unlawful sexual contact. State v. McCary, 119 S.W.3d 226, 2003 Tenn. Crim. App. LEXIS 17 (Tenn. Crim. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 674 (Tenn. July 7, 2003).

23. —Recklessness Averment.

Indictment under felony murder statute requiring a reckless killing of another in the perpetration of a robbery was sufficient where it provided the court with ample information upon which to base a proper judgment and to protect the defendant from reprosecution for the same offense, despite the indictment's failure to aver “recklessness.” State v. Sledge, 15 S.W.3d 93, 2000 Tenn. LEXIS 131 (Tenn. 2000), cert. denied, Sledge v. Tennessee, 531 U.S. 889, 121 S. Ct. 211, 148 L. Ed. 2d 149, 2000 U.S. LEXIS 6093 (2000).

24. —Misdemeanors.

In the case of a misdemeanor, a substantial description of the offense is all that is required in the indictment. State v. Pennington, 40 Tenn. 119, 1859 Tenn. LEXIS 36 (1859); State v. Odam, 70 Tenn. 220, 1879 Tenn. LEXIS 159 (1879); Harris v. State, 71 Tenn. 324, 1879 Tenn. LEXIS 84 (1879).

In indictments for misdemeanors a substantial description of the offense is required to reasonably identify the offense for which the defendant is being prosecuted in order that he may know whereof he is accused and may prepare his defense and in the event of a subsequent prosecution it may be made to appear whether he is being prosecuted twice for the same offense. Rugg v. State, 141 Tenn. 362, 210 S.W. 630, 1918 Tenn. LEXIS 97 (1919); McLemore v. State, 215 Tenn. 332, 385 S.W.2d 756, 1965 Tenn. LEXIS 621 (1965).

Indictment which charged that defendant had engaged in the business of a real estate salesman without first obtaining a license to do so which did not allege how he engaged in such business or what he did in connection therewith or for whom he worked, to whom or what he sold or the date or dates upon which he did one or more of such things was void on its face for indefiniteness. McLemore v. State, 215 Tenn. 332, 385 S.W.2d 756, 1965 Tenn. LEXIS 621 (1965).

25. —Sufficient Statement of Offense.

Indictment describing the deceased as “William, a man of color,” without giving any surname, is sufficient, because the court cannot judicially know that a man has two names, especially when applied to persons so recently emancipated, many of whom had not acquired any surname. Boyd v. State, 47 Tenn. 69, 1869 Tenn. LEXIS 9 (1869).

Indictment for murder of two persons is good on its face, because the murder might have been committed on both in the same degree, by one and the same act. Womack v. State, 47 Tenn. 508, 1870 Tenn. LEXIS 166 (1870); Kannon v. State, 78 Tenn. 386, 1882 Tenn. LEXIS 193 (1882), questioned, Millen v. State, 988 S.W.2d 164, 1999 Tenn. LEXIS 76 (Tenn. 1999); Forrest v. State, 81 Tenn. 103, 1884 Tenn. LEXIS 8 (1884); Phillips v. State, 85 Tenn. 551, 3 S.W. 434, 1886 Tenn. LEXIS 82 (1886).

In an indictment for larceny the description of the property stolen as “one five and one two dollar greenback bill United States currency, national bank bills and money” is insufficient. Lewis v. State, 50 Tenn. 333, 1871 Tenn. LEXIS 105 (1871).

Indictment for larceny charging stealing of two hams, two shoulders and eight jowls, weighing 100 pounds, of the value of $15.00 was sufficient without more specific description of each article or statement of separate value of each. Taylor v. State, 50 Tenn. 460, 1872 Tenn. LEXIS 15 (1872).

Indictment for robbery is sufficient without stating the circumstances which constitute the assault or forcible taking from the person by violence. State v. Swafford, 71 Tenn. 162, 1879 Tenn. LEXIS 50 (1879).

Indictment for assault and battery with intent to commit rape is not bad because the person assaulted is not, in so many words, stated to be a female, the use of the feminine pronoun being sufficient to designate the sex. Hardwick v. State, 74 Tenn. 103, 1880 Tenn. LEXIS 214 (1880).

Indictment charging defendant with stealing “one railroad ticket from Knoxville, Tennessee, to Washington, D.C., of the value of $17.00,” property of the prosecutor, sufficiently described the ticket stolen. Millner v. State, 83 Tenn. 179, 1885 Tenn. LEXIS 39 (1885).

Indictment for forgery is sufficient where it charges the offense with such degree of certainty as to enable the court to pronounce a proper judgment in case of conviction. Luttrell v. State, 85 Tenn. 232, 1 S.W. 886, 1886 Tenn. LEXIS 36, 4 Am. St. Rep. 760 (1886).

An indictment charging defendant with having hired and induced another to kill deceased by shooting with certain weapons “whereby, of the wounds and effects thereof” she instantly died was sufficient, though it failed to allege that the killing did in fact occur in consequence of such hiring. Givens v. State, 103 Tenn. 648, 55 S.W. 1107, 1899 Tenn. LEXIS 143 (1899).

Indictment for violating the Antitrust Act need not charge the means by which the unlawful agreement and conspiracy was intended to be effected or the evidence tending to prove the unlawful agreement. State v. Witherspoon, 115 Tenn. 138, 90 S.W. 852, 1905 Tenn. LEXIS 50 (1905).

An indictment alleging that accused on a designated date had carnal knowledge of a designated female forcibly and against her will, charges rape, though it fails to charge that accused ravished the female, the word “ravish” merely implying that the act was done forcibly and against the will of the female. Palmer v. State, 121 Tenn. 465, 118 S.W. 1022, 1908 Tenn. LEXIS 30 (1908).

Indictment charging violation of quarantine rules adopted, established, and promulgated by the commissioner of agriculture and state livestock inspector under the authority of the statute, by allowing two cows owned by him to run at large in the public streets without permission sufficiently alleges what the rules and regulations violated were. Bishop v. State, 122 Tenn. 729, 127 S.W. 698, 1909 Tenn. LEXIS 44 (1910).

Indictment charging that defendant did “unlawfully and feloniously take, steal, and carry away $400, good and lawful money of the United States, personal property of B. H.,” is sufficient, though it is claimed to be defective as not describing the money alleged to have been stolen by denomination or otherwise. State v. Stephens, 127 Tenn. 282, 154 S.W. 1149, 1912 Tenn. LEXIS 27 (1913).

An indictment for receiving a deposit knowing the bank to be insolvent, alleging that the defendant as cashier of the Knoxville Banking & Trust Company, permitted reception of a stated amount “on deposit in said bank and corporation” is not open to the criticism that it fails to allege that the corporation was a banking institution. State v. Willis, 130 Tenn. 403, 170 S.W. 1030, 1914 Tenn. LEXIS 39 (1914).

In an indictment, no value of the property need be alleged unless value measures the degree of the crime or the determination of punishment. State v. Cornellison, 166 Tenn. 106, 59 S.W.2d 514, 1932 Tenn. LEXIS 120 (1933).

Where total value of several articles is alleged, that suffices without a specification of the value of each. State v. Cornellison, 166 Tenn. 106, 59 S.W.2d 514, 1932 Tenn. LEXIS 120 (1933).

The word “maliciously” is of equal import with the term “with malice aforethought” and description of murder in indictment as being “maliciously” performed is sufficient. Campbell v. State, 491 S.W.2d 359, 1973 Tenn. LEXIS 421 (Tenn. 1973).

A presentment sufficiently alleged necessary facts to constitute the common-law offense of interfering with a police officer in performance of his duties where it charged defendant with opposing police officers who were arresting persons for breaking into a bank by holding the arm of one officer, by causing confusion by shouting and by otherwise attempting to hinder the officers. Pope v. State, 528 S.W.2d 54, 1975 Tenn. Crim. App. LEXIS 321 (Tenn. Crim. App. 1975).

Indictment satisfied minimum statutory requirements, placing defendant on notice that defendant was charged with attempted murder, despite that it made no reference to the numbered subsections contained in the attempt statute nor did it specify a specific act or course of conduct constituting the attempt to kill. Wyatt v. State, 24 S.W.3d 319, 2000 Tenn. LEXIS 431 (Tenn. 2000).

Informing defendant in counts one through three of a four-count indictment of the victim's death, remedied the failure to allege in count four, which charged attempted especially aggravated robbery, that the victim suffered “serious bodily injury” as the result of that offense. State v. Cureton, 38 S.W.3d 64, 2000 Tenn. Crim. App. LEXIS 29 (Tenn. Crim. App. 2000), review or rehearing denied, — S.W.3d —, 2000 Tenn. LEXIS 631 (Tenn. Nov. 6, 2000).

Although defendant contended that the corporate owner of a building was improperly identified in the indictment for vandalism and burglary of a building, the indictment listed the statute of the offenses for which defendant was indicted, giving defendant sufficient notice of the charges against defendant. The evidence introduced at trial did not substantially vary from the information on the indictment, and there was no evidence that defendant's efforts at defending against the charges were hampered by the notice given by the indictment. Walton v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 363 (Tenn. Crim. App. May 10, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 601 (Tenn. Sept. 22, 2017).

26. —Insufficient Statement of Offense.

Indictment charging enticement of named female to leave the house of her parents is bad as not averring everything necessary to constitute the offense where it failed to state who her parents were or that the act was against their will and consent. Jones v. State, 84 Tenn. 466, 1886 Tenn. LEXIS 127 (1886).

Indictment charging that defendant made a felonious assault upon a female, and did “ill-treat” her, with intent to have carnal knowledge of her forcibly and against her will, is insufficient, in failing to aver a battery, to charge the statutory offense of assault and battery with intent to commit rape. Wilson v. State, 103 Tenn. 87, 52 S.W. 869, 1899 Tenn. LEXIS 89 (1899).

Indictment for violating the Antitrust Law by carrying out agreement made to lessen competition in sale of foreign and domestic articles so as to advance the cost of the articles to the consumer was fatally defective for failure to state the terms of the agreement or the articles imported or of domestic manufacture or growth, the price of which was controlled. State v. Witherspoon, 115 Tenn. 138, 90 S.W. 852, 1905 Tenn. LEXIS 50 (1905).

Averment in indictment for possession of intoxicating liquors in violation of § 39-6-921 (repealed) plus an averment that possessor had been indicted for prior possessions without averring a conviction under such indictments was insufficient to charge a felony under § 39-6-921 (repealed) making second conviction felony. Warden v. State, 214 Tenn. 398, 381 S.W.2d 247, 1964 Tenn. LEXIS 489, 6 A.L.R.3d 513 (1964), overruled in part, State v. Jones, 598 S.W.2d 209, 1980 Tenn. LEXIS 437 (Tenn. 1980).

27. Proof.

28. —Variance.

Variance in indictment for murder of H. G. Trobuck, and the proof that Gilbert Trobuck was killed, is fatal, and the conviction cannot stand. Timms v. State, 44 Tenn. 138, 1867 Tenn. LEXIS 23 (1867).

Where an indictment referred to the deceased by his full name and the witnesses merely referred to him as “the deceased” or by his surname, there was no variance where there was no contest as to the given name. Stuart v. State, 60 Tenn. 178, 1873 Tenn. LEXIS 432 (1873); Boyd v. State, 82 Tenn. 161, 1884 Tenn. LEXIS 117 (1884).

Omission to prove the given name of the deceased, where there is no contest or dispute over the identity of the person killed, is immaterial, as where the witnesses spoke of the deceased as “Mrs. Stuart” and the indictment read “Agnes Stuart.” Stuart v. State, 60 Tenn. 178, 1873 Tenn. LEXIS 432 (1873); Rutherford v. State, 79 Tenn. 31, 1883 Tenn. LEXIS 9 (1883); Boyd v. State, 82 Tenn. 161, 1884 Tenn. LEXIS 117 (1884).

Where the witnesses merely spoke of the deceased as “John” (the given name) or as “the deceased,” without giving the surname stated in the indictment giving the name as “John Bledsoe,” there is no variance, there being no contest over the name or identity of the person killed, who was a person in menial service usually called by his given name only. Rutherford v. State, 79 Tenn. 31, 1883 Tenn. LEXIS 9 (1883).

Where an indictment did not indicate a specific felony, the state was not obliged to prove the type of felony for which appellant was incarcerated and in custody. Rather, all it needed to prove was that, in fact, he was in custody under some felony. State v. Culp, 891 S.W.2d 232, 1994 Tenn. Crim. App. LEXIS 391 (Tenn. Crim. App. 1994).

In a prosecution of defendant for driving under the influence, there was no constructive amendment of the indictment and no fatal variance between the indictment and the proof adduced at trial. State v. Santelli, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 445 (Tenn. Crim. App. June 22, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 765 (Tenn. Oct. 20, 2016).

29. —Offense Composed of Different Acts.

Where, under an indictment charging in one count an assault with a gun with intent to kill, the court admitted evidence of an assault by shooting and that, the assaulted party having fled, the accused pursued her and struck her with the barrels of the gun used as a club, this evidence did not show two offenses, but one offense composed of different acts done pursuant to one intent, and as a part of one assault, and the admission of such evidence did not violate Tenn. Const., art. I, §§ 8, 9 or this section. McCommon v. State, 130 Tenn. 1, 168 S.W. 581, 1914 Tenn. LEXIS 1 (1914).

30. Waiver.

31. —Plea to Merits.

Where the defendant pleads to an indictment and goes to trial upon the merits, a defect in the indictment is cured by the verdict. Pope v. State, 149 Tenn. 176, 258 S.W. 775, 1923 Tenn. LEXIS 90 (1924).

32. —Failure to Object.

Variance between indictment and proof as to deceased's given name was waived where not raised before verdict. Scott v. State, 75 Tenn. 232, 1881 Tenn. LEXIS 101 (1881); Rutherford v. State, 79 Tenn. 31, 1883 Tenn. LEXIS 9 (1883).

The objection to an indictment for duplicity comes too late after verdict and judgment of conviction, and a motion in arrest of judgment will be of no avail. Forrest v. State, 81 Tenn. 103, 1884 Tenn. LEXIS 8 (1884); Palmer v. State, 121 Tenn. 465, 118 S.W. 1022, 1908 Tenn. LEXIS 30 (1908).

Objections to the form of the indictment are generally waived by going to trial without calling the attention of the trial judge to them. Palmer v. State, 121 Tenn. 465, 118 S.W. 1022, 1908 Tenn. LEXIS 30 (1908).

An alleged defect in the manner in which an offense is charged should be objected to in the trial court. Palmer v. State, 121 Tenn. 465, 118 S.W. 1022, 1908 Tenn. LEXIS 30 (1908).

Where defendant was charged with burglary and rape, and rape was unnecessarily charged in two counts of the indictment, but defendant failed to object to the language prior to trial, the repetition was harmless surplusage. Greer v. State, 539 S.W.2d 855, 1976 Tenn. Crim. App. LEXIS 390 (Tenn. Crim. App. 1976).

33. Motion to Quash.

34. —Face of Indictment.

Only the infirmities appearing on the face of an indictment can be reached by a motion to quash, and evidence cannot be resorted to for the purpose of establishing such infirmities. Raine v. State, 143 Tenn. 168, 226 S.W. 189, 1920 Tenn. LEXIS 6 (1920).

A motion to quash an indictment goes solely to whether the indictment is regular on its face. State v. Davis, 204 Tenn. 553, 322 S.W.2d 232, 1959 Tenn. LEXIS 309 (1959).

Where indictment was regular on its face, motion to quash would not be entertained on ground of defect in search warrant or on ground that search and arrest was made by state highway patrolmen who were not assisting local officers. State v. Davis, 204 Tenn. 553, 322 S.W.2d 232, 1959 Tenn. LEXIS 309 (1959).

35. —Court's Own Motion.

The trial judge may perhaps quash an indictment for defects therein on his own motion, but he is not bound to quash even on motion of the prisoner. Palmer v. State, 121 Tenn. 465, 118 S.W. 1022, 1908 Tenn. LEXIS 30 (1908).

36. Former Jeopardy.

Where defendant had been convicted of public drunkenness, a plea of former jeopardy was good to a later indictment charging defendant with driving an automobile on the public highway while intoxicated where both offenses came from the same transaction and witnesses were the same. Dowdy v. State, 158 Tenn. 364, 13 S.W.2d 794, 1928 Tenn. LEXIS 163 (1929).

An acquittal of driving while drunk did not bar subsequent indictment for driving carelessly and heedlessly and in wanton disregard of rights and safety of others when offenses came from same transaction, since facts necessary to convict for second charge would not necessarily have convicted for the first prosecution. Usary v. State, 172 Tenn. 305, 112 S.W.2d 7, 1937 Tenn. LEXIS 80, 114 A.L.R. 1401 (1938).

37. Legislative Power.

The general assembly has the power to prescribe what shall constitute the accusation in an indictment and in what form the crime shall be charged. State v. Estes, 199 Tenn. 406, 287 S.W.2d 40, 1956 Tenn. LEXIS 338 (1956).

38. Validity of Warrant.

All questions as to the sufficiency of the warrant are foreclosed by the finding of an indictment. Jones v. Tenn., 206 Tenn. 245, 332 S.W.2d 662, 1960 Tenn. LEXIS 512 (1960).

39. Indictment Sufficient.

Habeas court properly denied petitioner a writ of habeas corpus because the indictments were sufficient to allow the petitioner to know which charges he must answer for, to provide the trial court with adequate jurisdiction to enter a judgment, and to protect petitioner from double jeopardy. Grooms v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 198 (Tenn. Crim. App. Mar. 25, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 606 (Tenn. July 21, 2015), cert. denied, Grooms v. Tennessee, 194 L. Ed. 2d 218, 136 S. Ct. 1216, — U.S. —, 2016 U.S. LEXIS 1524 (U.S. 2016).

Indictment was not void for lack of notice; because aggravated burglary was the only qualifying predicate felony charged in the indictment, it was reasonably clear that the firearm charge was related to the aggravated burglary charge, and petitioner was not entitled to relief. Smith v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 400 (Tenn. Crim. App. May 27, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 776 (Tenn. Oct. 17, 2016).

Indictment did not reference a statutory list of offenses for which defendant had not been charged, and the official misconduct charge could have been based on evidence tampering or official oppression, both of which were charged in the indictment and were violations of law relating to defendant's employment as a police officer; he was provided adequate notice relative to the possible theories of prosecution against which he had to prepare a defense. State v. Butler, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 415 (Tenn. Crim. App. June 6, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 786 (Tenn. Oct. 21, 2016).

While two counts of defendant's indictment for attempted introduction of contraband into a penal facility did not reference the attempt statute, the indictment satisfied the requirements of the United States Constitution, the Tennessee Constitution, and the attempt statute because the indictment charged a violation covered by the criminal attempt statute and was sufficient to place defendant on notice of the accused crime, to confer jurisdiction on the trial court, and to protect defendant against double jeopardy. State v. Matthews, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 49 (Tenn. Crim. App. Jan. 24, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 252 (Tenn. Apr. 13, 2017).

Felony murder indictment stated the facts of the offense and provided sufficient information of the accusations against petitioner because it alleged he unlawfully and feloniously killed and murdered the victim during the attempt to perpetrate a robbery, thereby committing the crime of murder in the first degree; though petitioner was also charged with and acquitted of aggravated robbery and was not separately charged with attempted robbery, that did not render his felony murder indictment void. Bigbee v. Lebo, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 158 (Tenn. Crim. App. Mar. 3, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 338 (Tenn. May 24, 2017), cert. denied, — L. Ed. 2d —, — S. Ct. —, — U.S. —, 2018 U.S. LEXIS 359 (U.S. Jan. 8, 2018).

Defendant's indictment was sufficient because the indictment (1) stated a criminal offense, (2) gave defendant sufficient notice to prepare for trial, and (3) was not constructively amended, as the State did not rely on any theories at trial that were not embraced by the indictment. State v. Greer, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 406 (Tenn. Crim. App. May 17, 2017).

Omission of co-defendant's name when the prosecutor read the indictment to the jury was not an amendment of the indictment as argued by defendant because the indictment provided the accused with the nature and cause of the accusation being made against him; enabled the accused to know the accusation to which an answer was required; furnished the court with an adequate basis for the entry of a proper judgment; and protected the accused from double jeopardy; additionally, during the trial, the jury was told on more than one occasion that co-defendant was also charged in the case and that the charges against him were dismissed. State v. Sexton, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 730 (Tenn. Crim. App. Aug. 17, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 47 (Tenn. Jan. 18, 2018).

For purposes of T.C.A. § 40-13-202, the indictment for attempted first degree murder under T.C.A. §§ 39-12-101, 39-13-202 was legally sufficient, as the indictment referenced the murder statute, named the victim, and provided a time period during which the State alleged the offense occurred; although the indictment did not state the means by which the State alleged defendant committed the offense, such was not required in order to provide him with notice. State v. Fisher, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 847 (Tenn. Crim. App. Sept. 15, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 96 (Tenn. Feb. 14, 2018).

Presentment was not defective because it clearly referenced the correct code section for the offense of aggravated sexual battery, contained sufficient facts to provide defendant with notice of the subsection of the statute under which he was being charged, and furnished the trial court with an adequate basis for entry of a proper judgment and to protect defendant from a subsequent prosecution for the same offense; it was obvious that he was well aware of the statutory elements of the crime with which he was charged based on his defense at trial and his own testimony, in which defendant emphasized that any touching that might have occurred was not intentional. State v. Collins, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 981 (Tenn. Crim. App. Nov. 27, 2017).

Indictments charging defendant with first degree premeditated murder, first degree felony murder, and aggravated robbery were sufficient because the elements of the crimes were clearly set forth in the indictment, along with the statutes for each. State v. Rimmer, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 322 (Tenn. Crim. App. May 21, 2019).

40-13-203. Certainty as to person charged.

The indictment must be certain as to the person charged; but when the person's name is unknown to the grand jury, it may be so alleged without further identification or the person may be indicted under any name by which the person is generally known.

Code 1858, § 5116; Shan., § 7079; mod. Code 1932, § 11625; T.C.A. (orig. ed.), § 40-1803.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 16.16.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

NOTES TO DECISIONS

1. Spelling.

Defendant's name need not be correctly spelled in the indictment, for variant orthography in his name is immaterial, when substantially the same sound is preserved. Goodwin v. State, 148 Tenn. 682, 257 S.W. 79, 1923 Tenn. LEXIS 55 (1924).

The names “Gooden” and “Goodwin” are idem sonans, and a plea of misnomer was properly overruled when the name of the accused was spelled in the indictment as “Goodwin” instead of “Gooden.” Goodwin v. State, 148 Tenn. 682, 257 S.W. 79, 1923 Tenn. LEXIS 55 (1924).

2. Statutory Description.

Where the statute affects persons as connected with specified offices, they should be so described in the indictment. State v. McElroy, 50 Tenn. 69, 1871 Tenn. LEXIS 65 (1871).

3. Sufficient Designation.

An indictment, after charging the several defendants by name, with an assault and battery on the prosecutor, proceeding “they, the said” (omitting to repeat their names), “then and there having in their possession certain pistols,” is good, because these words so evidently refer to the persons previously named that the meaning cannot be considered as doubtful. State v. Brown, 50 Tenn. 1, 1870 Tenn. LEXIS 222 (1870).

The trial judge refused to sustain defendant's plea of misnomer for the grand jury's failure to include the suffix “Sr.” to defendant's name. Hamilton v. State, 555 S.W.2d 724, 1977 Tenn. Crim. App. LEXIS 299 (Tenn. Crim. App. 1977).

The trial court did not err in overruling defendant's plea of misnomer in the caption of the fifth count of the indictment, charging him with being an habitual criminal, where the caption incorrectly alleged his name to be “James E. Mullins,” rather than “James Junior Mullins,” but the first four counts alleged defendant's name to be “James Mullins” and the habitual criminal count alleged five prior convictions and made five allegations that “the defendant, James Junior Mullins” was the name of the person who had been so previously convicted. Mullins v. State, 571 S.W.2d 852, 1978 Tenn. Crim. App. LEXIS 325 (Tenn. Crim. App. 1978), cert. denied, Mullins v. Tennessee, 440 U.S. 963, 99 S. Ct. 1508, 59 L. Ed. 2d 777, 1979 U.S. LEXIS 1239 (1979).

Where the defendants were named on the cover sheet, it was clear that they were the persons referred to in the body of the indictment. State v. Nixon, 977 S.W.2d 119, 1997 Tenn. Crim. App. LEXIS 1202 (Tenn. Crim. App. 1997).

4. Misnomer.

If the defendant is otherwise adequately identified, a mistake in or omission of his middle name or initial does not render an indictment or information insufficient. Mullins v. State, 571 S.W.2d 852, 1978 Tenn. Crim. App. LEXIS 325 (Tenn. Crim. App. 1978), cert. denied, Mullins v. Tennessee, 440 U.S. 963, 99 S. Ct. 1508, 59 L. Ed. 2d 777, 1979 U.S. LEXIS 1239 (1979).

5. —Aliases.

Although the rule is that where there is no proof of the use of an alias by the accused no alias should be set out upon the indictment, where the state made a good-faith effort to prove the use of an alias but failed, the error in setting out the alias upon the indictment was harmless. Banks v. State, 556 S.W.2d 88, 1977 Tenn. Crim. App. LEXIS 286 (Tenn. Crim. App. 1977).

Where there is no evidence to show a purpose for using aliases on an indictment, they should be stricken. Young v. State, 566 S.W.2d 895, 1978 Tenn. Crim. App. LEXIS 300 (Tenn. Crim. App. 1978).

Where the defendant gave the arresting police officers an alias rather than his true name, he had no legitimate complaint to the inclusion of that alias on the indictment. Young v. State, 566 S.W.2d 895, 1978 Tenn. Crim. App. LEXIS 300 (Tenn. Crim. App. 1978).

6. Insufficient Designation.

The nature of the charge is not pointed out with specific certainty where an overseer, charged with failing to keep roads in repair, is described as “overseer of roads” instead of as overseer of a particular road. State v. McElroy, 50 Tenn. 69, 1871 Tenn. LEXIS 65 (1871).

Where defendant, Edwin Vernon Hamilton, Sr., was indicted as Edward Hamilton, Sr., the trial judge sustained defendant's plea of misnomer and referred the presentment back to the grand jury for correction. Hamilton v. State, 555 S.W.2d 724, 1977 Tenn. Crim. App. LEXIS 299 (Tenn. Crim. App. 1977).

Defendant's conviction for employing a firearm during the commission of a dangerous felony had to be vacated because (1) the indictment did not charge defendant with that offense, (2) defendant could not waive the error, and (3) the indictment did not meet constitutional requirements to give defendant proper notice of charges and to give the court an adequate basis for a proper judgment. Romero v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 321 (Tenn. Crim. App. May 20, 2019).

7. Abatement.

Where no plea in abatement for misnomer was filed by defendant who was indicted as “Bobby Edward Bolin, alias Bobby Bowlin” and record indicated that defendant was sometimes known by the name indicated as the alias any possible error was waived by defendant. Bolin v. State, 219 Tenn. 4, 405 S.W.2d 768, 1966 Tenn. LEXIS 497 (1966), overruled in part, Christian v. State, 555 S.W.2d 863, 1977 Tenn. LEXIS 636 (Tenn. 1977).

Where the fact that one part of the indictment referred to defendant as Bernie and another part referred to him as Benny was not raised by defendant before he entered a plea of not guilty, the case need not be dismissed. Reece v. State, 555 S.W.2d 733, 1977 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. 1977).

8. Partners Indicted.

Indictment of A and B, partners, will be treated as against them individually. State v. Powell, 71 Tenn. 164, 1879 Tenn. LEXIS 51 (1879).

9. Multi-Count Indictments.

In a multi-count indictment, references in one count may be used in aid of identification to allegations made in another count. Mullins v. State, 571 S.W.2d 852, 1978 Tenn. Crim. App. LEXIS 325 (Tenn. Crim. App. 1978), cert. denied, Mullins v. Tennessee, 440 U.S. 963, 99 S. Ct. 1508, 59 L. Ed. 2d 777, 1979 U.S. LEXIS 1239 (1979).

10. When Objection Raised.

When an objection to a defect in an indictment must be raised is controlled by Rule 12(b) of the Tenn. R. Crim. P. which establishes two categories of defects, i.e., those which may be challenged at any time and those which must be challenged prior to trial. State v. Nixon, 977 S.W.2d 119, 1997 Tenn. Crim. App. LEXIS 1202 (Tenn. Crim. App. 1997).

The omission of the defendants' names in the body of the indictment, neither relates to subject matter jurisdiction nor failure to allege an offense, and therefore, by failing to object to the defect prior to trial, the defendants have waived the issue. State v. Nixon, 977 S.W.2d 119, 1997 Tenn. Crim. App. LEXIS 1202 (Tenn. Crim. App. 1997).

11. Prejudice.

Notwithstanding the applicability of the waiver provision in Tenn. R. Crim. P. 12(f), the court may grant relief from the waiver if the defendant has shown actual prejudice resulting from a defect in an indictment. State v. Nixon, 977 S.W.2d 119, 1997 Tenn. Crim. App. LEXIS 1202 (Tenn. Crim. App. 1997).

40-13-204. Presumptions and matters of judicial notice.

Presumptions of law and matters of which judicial notice is taken need not be stated.

Code 1858, § 5118; Shan., § 7081; mod. Code 1932, § 11626; T.C.A. (orig. ed.), § 40-1804.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 16.19.

Tennessee Jurisprudence, 11 Tenn. Juris., Evidence, §§ 14, 17.

NOTES TO DECISIONS

1. General Laws.

Judicial notice of all general laws will be taken by the courts and it is, therefore, unnecessary for an indictment to recite the substance or dates of statutes violated. Harris v. State, 71 Tenn. 324, 1879 Tenn. LEXIS 84 (1879).

40-13-205. Description of common law crimes.

In an indictment for an offense which was indictable at common law, the offense may be charged or described substantially as at common law; or it will be sufficient to describe the offense according to the general rules laid down in this chapter.

Code 1858, §§ 5119, 5120 (deriv. Acts 1829, ch. 23, § 72); Shan., §§ 7082, 7083; mod. Code 1932, § 11627; T.C.A. (orig. ed.), § 40-1805.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 16.19.

Tennessee Jurisprudence, 13 Tenn. Juris., Forgery and Counterfeiting, § 10; 14 Tenn. Juris., Homicide, § 32.

NOTES TO DECISIONS

1. Ordinary and Concise Language Sufficient.

The indictment must be in ordinary and concise language, embodying all the requisites that go to constitute the offense. Foster v. State, 74 Tenn. 213, 1880 Tenn. LEXIS 235 (1880).

The indictment will be good if it contains a statement of facts constituting the offense, in ordinary and concise language, without prolixity or repetition, even where the common law prescribes particular and technical language to describe the offense. Millner v. State, 83 Tenn. 179, 1885 Tenn. LEXIS 39 (1885).

Indictment for larceny, in the common-law form, sufficiently describing the instrument or writing stolen, is good. Millner v. State, 83 Tenn. 179, 1885 Tenn. LEXIS 39 (1885).

Under the practice in this state many of the formalities and technical requirements of the common law in respect of indictments have been discarded. Bishop v. State, 122 Tenn. 729, 127 S.W. 698, 1909 Tenn. LEXIS 44 (1910).

In an indictment, “with malice aforethought” and “maliciously” were terms of equivalent import which could be used interchangeably. Campbell v. State, 491 S.W.2d 359, 1973 Tenn. LEXIS 421 (Tenn. 1973).

2. Words Sufficient to Describe Offense Requisite.

This section does not authorize the omission from the indictment of any words essential to the description of the offense. Witt v. State, 46 Tenn. 5, 1868 Tenn. LEXIS 61 (1868), overruled, Campbell v. State, 491 S.W.2d 359, 1973 Tenn. LEXIS 421 (Tenn. 1973), overruled in part, Campbell v. State, 491 S.W.2d 359, 1973 Tenn. LEXIS 421 (Tenn. 1973).

3. Common-Law Form — Sufficiency.

Indictment for murder, in common-law form, is sufficient, and will sustain a conviction for murder in the first degree. Mitchell v. State, 13 Tenn. 340, 1833 Tenn. LEXIS 185 (1833); Mitchell v. State, 16 Tenn. 514, 1835 Tenn. LEXIS 118 (1835); Hines v. State, 27 Tenn. 597, 1848 Tenn. LEXIS 3 (1848), overruled, State v. McKay, 680 S.W.2d 447, 1984 Tenn. LEXIS 942 (Tenn. 1984), overruled in part, State v. McKay, 680 S.W.2d 447, 1984 Tenn. LEXIS 951 (Tenn. 1984); Poole v. State, 61 Tenn. 288, 1872 Tenn. LEXIS 374 (1872).

Indictment for counterfeiting coin, according to the common-law form, is sufficient, though it omits the word “feloniously,” notwithstanding the statute makes the offense a felony. Peek v. State, 21 Tenn. 78, 1840 Tenn. LEXIS 34 (1840).

4. Common-Law Form — When Insufficient.

Indictment for an assault with intent to commit murder is not aided by this section, and must pursue the statute creating the offense. Bass v. State, 65 Tenn. 579, 1872 Tenn. LEXIS 457 (1873); Logan v. State, 70 Tenn. 222, 1879 Tenn. LEXIS 160 (1879).

5. Criminal Informations.

The use of criminal informations, except for small offenses within the exclusive jurisdiction of (former) justices of the peace or petty offenses in the nature of violations of municipal ordinances, was not a part of the common law of North Carolina, at the time of the cession by that state of the territory subsequently embraced in the state of Tennessee, but, on the contrary, its use as a method of criminal procedure was prohibited in North Carolina, so that it is not now permissible in Tennessee, for want of constitutional or statutory authorization. Howard v. State, 143 Tenn. 539, 227 S.W. 36, 1920 Tenn. LEXIS 39 (1920).

40-13-206. Alternative allegations.

When the offense may be committed by different forms, by different means or with different intents, the forms, means or intents may be alleged in the same count in the alternative.
When an act is criminal, if producing different results, the differing results may be charged in the same count in the alternative.

Code 1858, § 5121; Shan., § 7084; mod. Code 1932, §§ 11628, 11629; T.C.A. (orig. ed.), §§ 40-1806, 40-1807.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 16.19, 16.21.

NOTES TO DECISIONS

1. Alternate Means.

Indictment for mayhem may, under this section, charge in the same count that the defendant did “slit, cut off, and bite off the ear.” State v. Ailey, 50 Tenn. 8, 1870 Tenn. LEXIS 224 (1870); Cornell v. State, 66 Tenn. 520, 1874 Tenn. LEXIS 173 (1874); State v. Callicutt, 69 Tenn. 714, 1878 Tenn. LEXIS 165 (1878); State v. Ferriss, 71 Tenn. 700, 1879 Tenn. LEXIS 133 (1879).

Description of crime in an indictment under the statute against employing any instrument or other means with intent to procure the miscarriage of a woman as use of “certain instrument or instruments suitable for the purpose of producing abortion” was sufficient under this provision. Smartt v. State, 112 Tenn. 539, 80 S.W. 586, 1903 Tenn. LEXIS 122 (1903), superseded by statute as stated in, State v. Beaty, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 931 (Tenn. Crim. App. Nov. 20, 2015), superseded by statute as stated in, State v. Beaty, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 491 (Tenn. Crim. App. July 8, 2016), superseded by statute as stated in, State v. Beaty, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 842 (Tenn. Crim. App. Nov. 8, 2016).

Indictment for manslaughter which charged that defendant “did unlawfully drive a certain motor vehicle to wit: an automobile, along and over the public roads and highways of said county and state, recklessly, or at a speed or in a manner so as to endanger or be likely to endanger life, limb, or property of other persons” was sufficient. Davis v. State, 194 Tenn. 282, 250 S.W.2d 534, 1952 Tenn. LEXIS 380 (1952).

The terms “sell,” “barter,” and “trade” were alternative forms and means by which the illegal sale of the proscribed drugs could be accomplished. Halquist v. State, 489 S.W.2d 88, 1972 Tenn. Crim. App. LEXIS 299 (Tenn. Crim. App. 1972).

Indictment which in one count charged defendant with only one offense, first degree murder, although it charged different means or intents with which the crime was committed was valid. State v. Jefferson, 529 S.W.2d 674, 1975 Tenn. LEXIS 582 (Tenn. 1975), rehearing denied, , 529 S.W.2d 674, 1975 Tenn. LEXIS 583 (Tenn. 1975), overruled in part, State v. Mitchell, 593 S.W.2d 280, 1980 Tenn. LEXIS 395 (Tenn. 1980).

Indictment charging defendant with violating the aggravated kidnapping statute and removing and confining the victim only required proof that he confined or removed the victim, and the proof at trial established beyond a reasonable doubt that he used a gun to confine the victim. State v. Zonge, 973 S.W.2d 250, 1997 Tenn. Crim. App. LEXIS 1017 (Tenn. Crim. App. 1997), rehearing denied, — S.W.3d —, 1997 Tenn. Crim. App. LEXIS 1079 (Tenn. Crim. App. 1997).

2. Alternate Intents.

On a prosecution for taking a female from her father without his consent for the purpose of prostitution or concubinage, indictment alleging in one count that accused “did take” for the “purpose of prostitution and concubinage” was not objectionable for duplicity as charging two offenses in the same count, the two intents being character elements, one or both of which might be present. Griffin v. State, 109 Tenn. 17, 70 S.W. 61, 1902 Tenn. LEXIS 54 (1902).

Law allows for alternative intents to be alleged in same count. State v. Alvarado, 961 S.W.2d 136, 1996 Tenn. Crim. App. LEXIS 736 (Tenn. Crim. App. 1996).

3. Alternative Charges Bad for Uncertainty.

Indictment charging in the disjunctive that the defendant “did carry a belt, or pocket pistol, or revolver” was bad for uncertainty. State v. Green, 50 Tenn. 131, 1871 Tenn. LEXIS 75 (1871).

4. Several Counts.

An indictment may contain several counts for an assault with intent to commit murder in the first degree, in the second degree and manslaughter, for there may be a joinder of offenses, by separate counts, especially where the offense is the same and the several counts are inserted to meet the uncertainty of the evidence. Lawless v. State, 72 Tenn. 173, 1879 Tenn. LEXIS 14 (1879); Tillery v. State, 78 Tenn. 35, 1882 Tenn. LEXIS 137 (1882); Foute v. State, 83 Tenn. 712, 1885 Tenn. LEXIS 100 (1885); Holt v. State, 107 Tenn. 539, 64 S.W. 473, 1901 Tenn. LEXIS 104 (1901); State v. Fry, 98 Tenn. 323, 39 S.W. 231, 1896 Tenn. LEXIS 226 (Tenn. Dec. 1896).

Defendant's claim that his sentence was illegal on the ground that the indictment was multiplicitous and invalid was not cognizable because defendant was convicted of one count of first-degree murder under the indictment and only one judgment on that count was entered. State v. Harbison, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 73 (Tenn. Crim. App. Feb. 1, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 296 (Tenn. May 15, 2018).

5. Murder in Perpetration of a Felony.

A defendant may properly be charged with first degree murder in the words of the common law without charging that the homicide was committed in the perpetration of one of the felonies enumerated in § 39-2-202 (repealed; see 39-13-202) and proof may be introduced of the enumerated felony, upon which malice, deliberation and premeditation are implied. Tosh v. State, 527 S.W.2d 146, 1975 Tenn. Crim. App. LEXIS 327 (Tenn. Crim. App. 1975).

40-13-207. Time of offense.

The time at which the offense was committed need not be stated in the indictment, but the offense may be alleged to have been committed on any day before the finding of the indictment, or generally before the finding of the indictment, unless the time is a material ingredient in the offense.

Code 1858, § 5124; Shan., § 7087; Code 1932, § 11632; T.C.A. (orig. ed.), § 40-1808.

Cross-References. Right to know nature and cause of accusation, Tenn. Const., art. I, § 9, U.S. Const., amend. 6, Tenn. R. Crim. P. 7(c).

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 16.17, 16.54.

Tennessee Jurisprudence, 5 Tenn. Juris., Burglary and Housebreaking, § 7; 14 Tenn. Juris., Indictments, Informations, and Presentments, § 29.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

NOTES TO DECISIONS

1. In General.

Since time is not an essence of the offense of aggravated rape and does not bar the commencement of prosecution, the time of the commission of the offense averred in the indictment is not material and proof is not confined to the time charged. State v. West, 737 S.W.2d 790, 1987 Tenn. Crim. App. LEXIS 2591 (Tenn. Crim. App. 1987).

Offense must be proved to have been committed prior to the finding of the indictment and within the time specified by any applicable statute of limitations; except where a special date is essential or time is of the essence of the offense, the time of the commission of the offense averred in the indictment is not material and proof is not confined to the time charged. State v. West, 737 S.W.2d 790, 1987 Tenn. Crim. App. LEXIS 2591 (Tenn. Crim. App. 1987).

The indictment need not be specific regarding the time or place of the offense, nor need it demonstrate facts conferring jurisdiction as long as such facts are introduced at the trial. State v. Sowder, 826 S.W.2d 924, 1991 Tenn. Crim. App. LEXIS 798 (Tenn. Crim. App. 1991), cert. denied, Sowder v. Tennessee, 510 U.S. 883, 114 S. Ct. 229, 126 L. Ed. 2d 184, 1993 U.S. LEXIS 5939 (1993).

A defendant is not charged with a new crime when the date in the indictment is merely corrected in order for the original charge to stand. State v. Kennedy, 10 S.W.3d 280, 1999 Tenn. Crim. App. LEXIS 569 (Tenn. Crim. App. 1999).

The rule requiring the state to prove that the offense occurred prior to the return of the indictment was a result of the rule that the exact time of the offense is not material. State v. Brown, 53 S.W.3d 264, 2000 Tenn. Crim. App. LEXIS 962 (Tenn. Crim. App. 2000), appeal denied, — S.W.3d —, 2001 Tenn. LEXIS 434 (Tenn. May 14, 2001), review denied, — S.W.3d —, 2002 Tenn. LEXIS 415 (Tenn. Sept. 23, 2002).

The indictment is not to be considered evidence of a defendant's guilt, but the indictment itself can establish the date upon which it was returned; thus, the reading of the indictment to the jury, coupled with evidence of when the offense was committed, would establish that the offense was committed prior to the return of the indictment. State v. Brown, 53 S.W.3d 264, 2000 Tenn. Crim. App. LEXIS 962 (Tenn. Crim. App. 2000), appeal denied, — S.W.3d —, 2001 Tenn. LEXIS 434 (Tenn. May 14, 2001), review denied, — S.W.3d —, 2002 Tenn. LEXIS 415 (Tenn. Sept. 23, 2002).

In order to satisfy the requirements of T.C.A. § 40-13-207, the state could merely ask an appropriate witness whether the actions of the defendant constituting the offense occurred before the defendant was charged with that offense. State v. Brown, 53 S.W.3d 264, 2000 Tenn. Crim. App. LEXIS 962 (Tenn. Crim. App. 2000), appeal denied, — S.W.3d —, 2001 Tenn. LEXIS 434 (Tenn. May 14, 2001), review denied, — S.W.3d —, 2002 Tenn. LEXIS 415 (Tenn. Sept. 23, 2002).

2. General Statement Sufficient.

This section does not dispense with the statement of time in an indictment, and only allows a more general statement, and the indictment must aver that the offense was committed on a day before the finding of the indictment. King v. State, 50 Tenn. 148, 1871 Tenn. LEXIS 79 (1871); State v. Davis, 65 Tenn. 605, 1872 Tenn. LEXIS 459 (1872); State v. Wade, 66 Tenn. 22, 1872 Tenn. LEXIS 443 (1872); State v. Gibbs, 65 Tenn. 238, 1873 Tenn. LEXIS 341 (1873); Stevenson v. State, 64 Tenn. 681, 1875 Tenn. LEXIS 156 (1875); Perkins v. State, 67 Tenn. 559, 1876 Tenn. LEXIS 4 (1876); State v. Parker, 73 Tenn. 568, 1880 Tenn. LEXIS 184 (1880); State v. Shaw, 113 Tenn. 536, 82 S.W. 480, 1904 Tenn. LEXIS 47 (1904).

An indictment must be more than just a mere statement of a legal result or conclusion, and it must state the facts in ordinary and concise language in a manner that would enable a person of common understanding to know what is intended, and with a degree of certainty which would enable the court upon conviction, to pronounce the proper judgment. State v. Sowder, 826 S.W.2d 924, 1991 Tenn. Crim. App. LEXIS 798 (Tenn. Crim. App. 1991), cert. denied, Sowder v. Tennessee, 510 U.S. 883, 114 S. Ct. 229, 126 L. Ed. 2d 184, 1993 U.S. LEXIS 5939 (1993).

3. Date Not Specified.

This section is not in conflict with the common law rule, and the day and year need not be stated correctly in the indictment, for any time before the finding thereof is sufficient. Bolton v. State, 45 Tenn. 650, 1868 Tenn. LEXIS 59 (1868); State v. Shaw, 113 Tenn. 536, 82 S.W. 480, 1904 Tenn. LEXIS 47 (1904).

When time is material indictment must contain exact date of occurrence of offense. Bolton v. State, 45 Tenn. 650, 1868 Tenn. LEXIS 59 (1868); State v. Shaw, 113 Tenn. 536, 82 S.W. 480, 1904 Tenn. LEXIS 47 (1904).

Where the date was not a material ingredient of the offense, the indictment was valid although it did not specify the date. Shadden v. State, 488 S.W.2d 54, 1972 Tenn. Crim. App. LEXIS 313 (Tenn. Crim. App. 1972), cert. denied, Shadden v. Tennessee, 411 U.S. 909, 93 S. Ct. 1538, 36 L. Ed. 2d 199, 1973 U.S. LEXIS 2958 (1973).

Where the indictment for selling LSD and marijuana failed to state the time of the offenses, defendant was not prejudiced because the sale of each drug constituted a separate offense regardless of when the transaction occurred. Halquist v. State, 489 S.W.2d 88, 1972 Tenn. Crim. App. LEXIS 299 (Tenn. Crim. App. 1972).

Indictment which did not state the month and day in 1971 when the offense was committed was not defective, where indictment was returned April 4, 1972, well before the expiration of the two-year statute of limitations. Prince v. State, 529 S.W.2d 729, 1975 Tenn. Crim. App. LEXIS 287 (Tenn. Crim. App. 1975).

The exact date, or even the year, of an offense need not be stated in an indictment or presentment unless the date or time is a material ingredient in the offense. State v. Byrd, 820 S.W.2d 739, 1991 Tenn. LEXIS 455 (Tenn. 1991).

In cases of child sexual abuse where the state is unable to provide even an approximate time or date of the offense, a conviction may be affirmed if the defendant fails to show he was prejudiced by the state's inability to pin down the dates of the offenses. State v. Ealey, 959 S.W.2d 605, 1997 Tenn. Crim. App. LEXIS 563 (Tenn. Crim. App. 1997).

Even when the date in an indictment is immaterial, the state may not amend the date back to time indefinitely; the state is still bound by the time frame set by the applicable statute of limitations. State v. Kennedy, 10 S.W.3d 280, 1999 Tenn. Crim. App. LEXIS 569 (Tenn. Crim. App. 1999).

Presentment was not insufficient because it failed to allege a date beyond “the__day of January, 2007.” State v. Davidson, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 164 (Tenn. Crim. App. Mar. 10, 2015), aff'd, 509 S.W.3d 156, 2016 Tenn. LEXIS 913 (Tenn. Dec. 19, 2016).

4. Impossible Date.

An indictment charging the offense to have been committed previous to the finding of the indictment, but, by mistake of the draftsman, charging an impossible date, is good, because such date may be rejected, especially where no objection was made until after verdict of conviction. Stevenson v. State, 64 Tenn. 681, 1875 Tenn. LEXIS 156 (1875); State v. Parker, 73 Tenn. 568, 1880 Tenn. LEXIS 184 (1880); State v. Shaw, 113 Tenn. 536, 82 S.W. 480, 1904 Tenn. LEXIS 47 (1904).

5. Sufficient Allegations.

An indictment charging the offense to have been committed “on the — day of —, 1879,” is good, if there be no statute of limitation against the offense, or if the date of the finding of the indictment shows the offense to have been committed within the statute of limitation applicable thereto, unless the day is the essence of the offense, as the violation of Sunday. State v. Parker, 73 Tenn. 568, 1880 Tenn. LEXIS 184 (1880).

The indictment charged the defendant with trespass committed in March, 1904, was found in January, 1904, and, on motion to quash, the indictment was held to be bad because, although the date be disregarded as an impossible one, it would not appear that the offense was committed within the statutory limitation of one year barring the same. State v. Shaw, 113 Tenn. 536, 82 S.W. 480, 1904 Tenn. LEXIS 47 (1904).

An indictment, charging that the defendant on the — day of July, 1919, before the finding of the indictment, did willfully receive usury is sufficiently specific as to matter of time, and will support a conviction of usury. McWhite v. State, 143 Tenn. 222, 226 S.W. 542, 1920 Tenn. LEXIS 10 (1921).

Indictment for larceny setting out month and year of alleged offense is sufficient charge of time, though the day of the month was left blank. State v. Cornellison, 166 Tenn. 106, 59 S.W.2d 514, 1932 Tenn. LEXIS 120 (1933).

Averment in indictment for violation of Age of Consent Statute that the crime was committed “on or before April 11th, 1932,” suffices. Nash v. State, 167 Tenn. 288, 69 S.W.2d 235, 1933 Tenn. LEXIS 39 (1934).

Where indictment under § 39-2-607 (repealed; see § 39-13-505) averred that the offense was committed on “the — day of November, 1938,” it was sufficient. Green v. State, 176 Tenn. 449, 143 S.W.2d 713, 1940 Tenn. LEXIS 85 (1940).

Vagrancy, as defined by statutes, is a continuing offense with no application to single instances of conduct, and, since it is not absolutely necessary that a vagrancy indictment contained a continuando in express terms, it is permissible under this section to leave out the day of the indictment, thereby charging the defendant with vagrancy for the whole month. Fonte v. State, 213 Tenn. 204, 373 S.W.2d 445, 1963 Tenn. LEXIS 481 (1963).

The requirement that the state elect the particular offense for which to indict the defendant, where there are multiple incidents of sexual misconduct, does not require the state to identify the particular date of the chosen offense. State v. Shelton, 851 S.W.2d 134, 1993 Tenn. LEXIS 144 (Tenn. 1993).

Defendant did not show that any variance between the indictment and the evidence presented at trial was material and prejudicial because there was no question that the victim was under the age of 13, the indictment alleged that the offenses were committed between September 2012 and January 10, 2014, the date of the offense was not a material ingredient of rape of a child and incest, and during his forensic interview the victim said that the offenses occurred over Christmas break. State v. Strange, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 228 (Tenn. Crim. App. Apr. 9, 2020).

6. Verdict Curing Indefiniteness of Time.

Where no objection for indefiniteness of time was made, it was too late to object after verdict of conviction, even where the statute of limitation might bar the prosecution. Perkins v. State, 67 Tenn. 559, 1876 Tenn. LEXIS 4 (1876); State v. Shaw, 113 Tenn. 536, 82 S.W. 480, 1904 Tenn. LEXIS 47 (1904).

7. Proof of Time of Offense.

Where the trial court instructed the jury regarding the indictment but there was no evidence that the jury was given the indictment, and the state did not otherwise offer proof of the date of the indictment or proof that offense was committed before the return of the indictment, the defendant's convictions were reversed for lack of proof; although it was obvious that the murder was committed prior to the return of the indictment, the state did not prove this fact at all. State v. Brown, 53 S.W.3d 264, 2000 Tenn. Crim. App. LEXIS 962 (Tenn. Crim. App. 2000), appeal denied, — S.W.3d —, 2001 Tenn. LEXIS 434 (Tenn. May 14, 2001), review denied, — S.W.3d —, 2002 Tenn. LEXIS 415 (Tenn. Sept. 23, 2002).

Time of the offense is not an essential element of rape of a child, nor is it a required component of an indictment generally; because the amended indictments covered the time frame of the offenses elected by the State, there was no fatal variance. State v. Hawkins, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 42 (Tenn. Crim. App. Jan. 20, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 427 (Tenn. June 23, 2016).

40-13-208. Place of offense.

It is not necessary for the indictment to allege where the offense was committed, but the proof shall show a state of facts bringing the offense within the jurisdiction of the county in which the indictment was preferred.

Code 1858, § 5125; Shan., § 7088; Code 1932, § 11633; T.C.A. (orig. ed.), § 40-1809.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 16.18, 16.19.

Tennessee Jurisprudence, 14 Tenn. Juris., Indictments, Informations, and Presentments, § 29; 16 Tenn. Juris., Intoxicating Liquors, § 17.

NOTES TO DECISIONS

1. Constitutionality.

This section is constitutional, and is not in conflict with Tenn. Const., art. I, § 9. State v. Quartemus, 50 Tenn. 65, 1870 Tenn. LEXIS 235 (1870); Norris v. State, 127 Tenn. 437, 155 S.W. 165, 1912 Tenn. LEXIS 42 (1912).

2. In General.

3. Venue — Averment Unnecessary.

Venue need not be averred in the indictment, but must be proved, on the trial, to be in the county, or within the territorial jurisdiction of the court. Armstrong v. State, 41 Tenn. 338, 1860 Tenn. LEXIS 72 (1860); Wickham v. State, 47 Tenn. 525, 1870 Tenn. LEXIS 168 (1870); Williams v. State, 50 Tenn. 37, 1870 Tenn. LEXIS 232 (1870); State v. Donaldson, 50 Tenn. 48, 1870 Tenn. LEXIS 233 (1870); State v. Quartemus, 50 Tenn. 65, 1870 Tenn. LEXIS 235 (1870); Mayes v. State, 50 Tenn. 430, 1872 Tenn. LEXIS 10 (1872); State v. Davis, 65 Tenn. 605, 1872 Tenn. LEXIS 459 (1872); Franklin v. State, 64 Tenn. 613, 1875 Tenn. LEXIS 141 (1875); Norris v. State, 127 Tenn. 437, 155 S.W. 165, 1912 Tenn. LEXIS 42 (1912).

Indictment need not allege the venue, though trial court has jurisdiction over part only of the county. State v. Sisson, 157 Tenn. 535, 11 S.W.2d 860, 1928 Tenn. LEXIS 217 (1928).

4. Presentments Included.

Presentments are included in this section, by proper construction thereof, though not embraced in its terms. State v. Shull, 40 Tenn. 42, 1859 Tenn. LEXIS 13 (1859).

5. Sufficient Averment of Place.

An indictment for an affray, charging a fighting in a public place, is good without further description of the place. Wilson v. State, 50 Tenn. 278, 1871 Tenn. LEXIS 98 (1871).

In prosecution for transporting liquor, indictment need not allege from or to what point it was transported. Sanders v. State, 153 Tenn. 139, 281 S.W. 924, 1925 Tenn. LEXIS 12 (1926).

6. Variance Between Indictment and Proof.

Indictment for larceny of whiskey belonging to a named firm and proof of stealing from a United States bonded warehouse are not at variance, the government having no interest in it except to secure payment of taxes. Lowry v. State, 113 Tenn. 220, 81 S.W. 373, 1904 Tenn. LEXIS 18 (1904).

40-13-209. Allegation of ownership of property.

When any property, upon or in relation to which the offense was committed:
1. Belongs to several partners or owners, it is sufficient to allege the ownership to be in any one (1) or more of those partners or owners; or
2. When the property is quasi public property, or belongs to an association, society or collection of individuals, such as churches, schoolhouses, lodges, etc., it is sufficient for the indictment to allege ownership in that association, society or collection of individuals by the name by which it is commonly known.
It is sufficient to describe property in any manner which may sufficiently identify the property, upon or in relation to which the offense charged was committed.

Code 1858, § 5127; Shan., § 7090; mod. Code 1932, § 11635; T.C.A. (orig. ed.), § 40-1810.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 16.19.

Tennessee Jurisprudence, 5 Tenn. Juris., Burglary and Housebreaking, § 7; 17 Tenn. Juris., Larceny and Theft, § 9.

NOTES TO DECISIONS

1. Description of Property in General.

So far as the indictment is concerned, a general or class description of the property involved is sufficient, but when it comes to proof, individual or specific identification is required to convict. State v. Cornellison, 166 Tenn. 106, 59 S.W.2d 514, 1932 Tenn. LEXIS 120 (1933).

2. Ownership Averred in One or More Joint Owners.

Property belonging to several partners or owners may, under this section, be charged as belonging to one or more of them, in indictment for larceny. State v. Connor, 45 Tenn. 311, 1868 Tenn. LEXIS 13 (1868).

Indictment need not aver name of owner of deposit as it is sufficient to aver from whom received, if he be part owner thereof. Moore v. State, 159 Tenn. 112, 17 S.W.2d 30, 1928 Tenn. LEXIS 68 (1929).

It is sufficient to charge, in indictment for larceny, that the property belonged to any one or more of several joint owners. Jones v. State, 166 Tenn. 102, 59 S.W.2d 501, 1932 Tenn. LEXIS 119 (1933).

Indictment in third degree burglary prosecution was sufficient where it named one of copartners having right of occupancy of building even though it did not name other copartner or owner. Anderson v. State, 2 Tenn. Crim. App. 593, 455 S.W.2d 630, 1970 Tenn. Crim. App. LEXIS 434 (Tenn. Crim. App. 1970).

3. Variance Between Allegations and Proof.

There is no material variance where an indictment for larceny charges the ownership of the stolen property to be in two partners, and the proof shows the ownership to be in three. Lowry v. State, 113 Tenn. 220, 81 S.W. 373, 1904 Tenn. LEXIS 18 (1904); Chapple v. State, 124 Tenn. 105, 135 S.W. 321, 1910 Tenn. LEXIS 45 (1911), overruled in part, State v. Moss, 662 S.W.2d 590, 1984 Tenn. LEXIS 720 (Tenn. 1984).

Whiskey in a bonded warehouse is in the joint custody of the storekeeper thereof and the owner, and there is no material variance between an indictment for the larceny of the whiskey averred to be the property of a firm and the proof showing it was stolen from a bonded warehouse. Lowry v. State, 113 Tenn. 220, 81 S.W. 373, 1904 Tenn. LEXIS 18 (1904).

Where an indictment charges the larceny of property from the owner, proof of the taking from the agent of the owner is sufficient to sustain the indictment. Lowry v. State, 113 Tenn. 220, 81 S.W. 373, 1904 Tenn. LEXIS 18 (1904).

There is no fatal variance in the indictment charging the stolen property to be that of a certain person and the proof showing that it belonged to him and others as partners. Chapple v. State, 124 Tenn. 105, 135 S.W. 321, 1910 Tenn. LEXIS 45 (1911), overruled in part, State v. Moss, 662 S.W.2d 590, 1984 Tenn. LEXIS 720 (Tenn. 1984).

Requirement of averment of ownership of stolen chickens in indictment for larceny is met where property is laid in husband, though proof should show joint ownership of his wife and another, the fowls being held for the spouses' joint use. Jones v. State, 166 Tenn. 102, 59 S.W.2d 501, 1932 Tenn. LEXIS 119 (1933).

40-13-210. Jurisdiction to support alleged judgment.

In pleading a judgment or other determination or proceeding before a court or officer, it is not necessary to state the facts conferring jurisdiction, but the judgment, determination or proceeding may be stated to have been duly given or made, but the facts required to give the jurisdiction shall appear on the trial.

Code 1858, § 5128; Shan., § 7091; Code 1932, § 11636; T.C.A. (orig. ed.), § 40-1811.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 16.19.

40-13-211. Description of instrument destroyed or withheld.

When an instrument which is the subject of an indictment has been destroyed or withheld by the act or procurement of the defendant, and the fact of the destruction or withholding is alleged in the indictment, and established on the trial, the misdescription of the instrument is immaterial.

Code 1858, § 5132; Shan., § 7095; Code 1932, § 11640; T.C.A. (orig. ed.), § 40-1812.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 16.19.

40-13-212. Alleging fraud.

In all prosecutions for offenses where the fraudulent possession or concealment of the thing constitutes the offense, it shall be sufficient to allege in the indictment that the party charged did fraudulently keep in possession or conceal the thing, without averring the particular species of fraud the party intended to commit or that any particular person was intended to be defrauded.
In indictments, when an intent to injure or defraud the public, and not a particular individual, is required to constitute the offense, it is sufficient to allege an intent to injure or defraud generally, without naming the particular person, state, government or body corporate intended to be defrauded.

Code 1858, §§ 5126, 5134 (deriv. Acts 1829, ch. 23, §§ 73, 74; 1841-1842, ch. 48, §§ 5, 6); Shan., §§ 7089, 7097; Code 1932, §§ 11634, 11643; T.C.A. (orig. ed.), §§ 40-1813, 40-1814.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 16.19.

Tennessee Jurisprudence, 13 Tenn. Juris., Forgery and Counterfeiting, § 10.

NOTES TO DECISIONS

1. Counterfeiting Machine Possessed.

Indictment charging defendant with keeping in his possession a machine intended for counterfeiting the coin current by law and usage in the state and United States sufficiently describes the nature of the machine and the coin which the machine was intended to counterfeit. Bradford v. State, 22 Tenn. 370, 1842 Tenn. LEXIS 102 (1842).

40-13-213. Alleging perjury.

In an indictment for perjury or subornation of perjury, it is not necessary to set forth in the pleadings either:
1. Records or proceedings with which the oath is connected; or
2. The commission or authority of the court or person before whom the perjury was committed.
It is sufficient in a perjury case to give the substance of the controversy or matter in respect to which the offense was committed, in what court or before whom the oath alleged to be false was taken, and that the court or person before whom it was taken had authority to administer it, with proper allegations of the falsity of the matter on which the perjury is assigned.

Code 1858, §§ 5129, 5130 (deriv. 23 George II, ch. 11); Shan., §§ 7092, 7093; Code 1932, §§ 11637, 11638; T.C.A. (orig. ed.), § 40-1815.

Cross-References. Perjury, title 39, ch. 16, part 7.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 16.19.

Tennessee Jurisprudence, 20 Tenn. Juris., Perjury, §§ 5, 6.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

NOTES TO DECISIONS

1. Indictment Essentials.

The averment that the court or person, before whom the oath was taken, had authority to administer it, comes in lieu of the commission or other evidence of authority mentioned in this section, and which was required under the common law. State v. Stillman, 47 Tenn. 341, 1870 Tenn. LEXIS 153 (1870).

An indictment for perjury must set forth the substance of the controversy, in respect of which it is alleged that the offense was committed, in order that the court may determine whether the matter alleged to have been sworn to was material. State v. Argo, 118 Tenn. 377, 100 S.W. 106, 1906 Tenn. LEXIS 105 (1907).

An indictment must contain a proper allegation of the falsity of the matter on which the perjury is assigned. State v. Myers, 634 S.W.2d 620, 1982 Tenn. Crim. App. LEXIS 427 (Tenn. Crim. App. 1982).

2. Sufficient Indictments.

It is not necessary for an indictment for perjury to set forth the pleadings, records, or proceedings with which the oath is connected, or the commission or authority of the person or court before whom the alleged perjury was committed, but it is sufficient to give the substance of the controversy or matter in respect to which the offense was committed and in what court, or before whom the oath alleged to be false was taken, and that the court or person before whom it was taken had authority to administer it, with proper allegations of the falsity of the matter on which the perjury is assigned. State v. Stillman, 47 Tenn. 341, 1870 Tenn. LEXIS 153 (1870); State v. Wise, 71 Tenn. 38, 1879 Tenn. LEXIS 26 (1879); Woods v. State, 82 Tenn. 460, 1884 Tenn. LEXIS 148 (1884).

Where the averments in an indictment for perjury show the jurisdiction of the court before which, and the inquiry in which, the perjury was committed, and the materiality and falsity of the testimony, the indictment is sufficient. Ross v. State, 1 Shan. 466 (1875).

Indictment for perjury in a criminal case need not state whether the case was by indictment or presentment, and it is sufficient if it avers that the court had jurisdiction of the issue. State v. Wise, 71 Tenn. 38, 1879 Tenn. LEXIS 26 (1879); Woods v. State, 82 Tenn. 460, 1884 Tenn. LEXIS 148 (1884); State v. Argo, 118 Tenn. 377, 100 S.W. 106, 1906 Tenn. LEXIS 105 (1907).

An indictment for perjury is sufficient where it sets out the court in which, or before the grand jury of which, the alleged false oath was taken and that the oath was administered by a person authorized, and where it describes the judicial proceedings in which the oath was taken and testimony given, and states that the matter alleged to be false was material. Lawson v. State, 71 Tenn. 309, 1879 Tenn. LEXIS 82 (1879); Woods v. State, 82 Tenn. 460, 1884 Tenn. LEXIS 148 (1884); State v. Argo, 118 Tenn. 377, 100 S.W. 106, 1906 Tenn. LEXIS 105 (1907).

3. Insufficient Indictments.

A presentment charging the defendant with aggravated perjury was defective in that it merely tracked the statutory language and failed to state which of the defendant's actions brought him within the statute so as to give him sufficient notice of the facts sought to be proved against him and of what offense he was called to answer. State v. Cutshaw, 967 S.W.2d 332, 1997 Tenn. Crim. App. LEXIS 1237 (Tenn. Crim. App. 1997).

40-13-214. Alleging libel.

An indictment for libel need not set forth any extrinsic facts for the purpose of showing the application to the party libeled of the defamatory matter upon which the indictment is founded, but it is sufficient to state generally that defamatory matter was published concerning the person and the fact that it was so published shall be established on trial.

Code 1858, § 5131; Shan., § 7094; Code 1932, § 11639; T.C.A. (orig. ed.), § 40-1816.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 16.19.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

NOTES TO DECISIONS

1. Requisites of Indictment.

Where the indictment clearly and definitely averred that the charges were intended to be and were applied to the parties mentioned, the averments are in compliance with the requirements of this section. State v. Atchison, 71 Tenn. 729, 1879 Tenn. LEXIS 138, 31 Am. Rep. 663 (1879).

2. Joinder of Parties Defendant.

An individual and a corporation may be joined in the same indictment for libel, in different counts, the subject matter being of the same nature and admitting of the same plea. State v. Atchison, 71 Tenn. 729, 1879 Tenn. LEXIS 138, 31 Am. Rep. 663 (1879).

Decisions Under Prior Law

1. “Libel” Defined.

Any malicious publication expressed in printing or writing or by pictures or signs tending to injure the character of an individual or diminish his reputation is a libel. Melton v. State, 22 Tenn. 389, 1842 Tenn. LEXIS 106 (1842).

2. Requisites of Indictment.

In an indictment for libel it is not necessary that the charge in the indictment should be more specific than the libelous publication. Melton v. State, 22 Tenn. 389, 1842 Tenn. LEXIS 106 (1842).

40-13-215. Alleging possession of counterfeit money.

In indictments for fraudulently keeping in possession or concealing counterfeit money or bank notes, it is not necessary to aver in the indictment that the party charged intended to pass or impose the counterfeit money or bank notes on the community as good money, but it shall appear in proof that the counterfeit money or bank notes were possessed or concealed with the fraudulent intent that they should get into circulation and with a knowledge that they were counterfeit.

Code 1858, § 5135 (deriv. Acts 1841-1842, ch. 48, § 5); Shan., § 7098; Code 1932, § 11644; T.C.A. (orig. ed.), § 40-1817.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 16.19.

Tennessee Jurisprudence, 13 Tenn. Juris., Forgery and Counterfeiting, §§ 9, 10.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

NOTES TO DECISIONS

1. Constitutionality.

This section is constitutional, because the constitution leaves it to the legislature to prescribe what shall constitute the accusation and the form of the charge. Sizemore v. State, 40 Tenn. 26, 1859 Tenn. LEXIS 9 (1859); State v. Stephens, 127 Tenn. 282, 154 S.W. 1149, 1912 Tenn. LEXIS 27 (1913).

2. Intent to Pass — Averment Unnecessary.

Indictment for fraudulently keeping in possession, or concealing counterfeit money or bank notes, need not aver intention to pass the same. Sizemore v. State, 40 Tenn. 26, 1859 Tenn. LEXIS 9 (1859).

40-13-216. Alleging conspiracy.

Indictments for conspiracy framed under any of the provisions of title 39, chapter 12, part 1 shall not be held insufficient by reason of the general nature of the charges preferred or for embracing more than one (1) of the offenses in the same indictment.

Acts 1897, ch. 52, § 2; Shan., § 6696a5; mod. Code 1932, § 11071; T.C.A. (orig. ed.), § 40-1818; Acts 1996, ch. 675, § 26.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 16.19.

40-13-217. Alleging gaming.

All laws made for the prevention, discouraging or suppression of gaming shall be construed as remedial and not penal statutes and no presentment or indictment in such case shall be quashed for want of form.
In presentments and indictments for gaming, it is sufficient to charge the general name of the game at which the defendant or defendants played, without setting forth and describing with or against whom they may have bet or played.
In prosecutions for keeping any gaming table or device under § 39-17-505, it is sufficient to charge that the defendant kept or exhibited, or was interested or concerned in keeping or exhibiting, a gaming table or device for gaming, without describing the table or device more particularly, or alleging in what manner the defendant was concerned in the keeping or exhibiting, or alleging or proving that any money was bet at the gaming table or device.

Code 1858, §§ 4883, 4885, 5136 (deriv. Acts 1824, ch. 5, § 5); Shan., §§ 6819, 6821, 7099; Code 1932, §§ 11292, 11293, 11645; T.C.A. (orig. ed.), §§ 40-1819 — 40-1821; Acts 1996, ch. 675, § 27.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 16.19.

Tennessee Jurisprudence, 13 Tenn. Juris., Gaming, Gambling and Gambling Contracts, § 10.

Attorney General Opinions. “Gambling device” construed to include gambling software, OAG 98-0173 (8/28/98).

NOTES TO DECISIONS

1. Purpose and Policy.

In view of this section, it is the duty of the courts to suppress the mischief, and punish all concerned in gambling transactions. State v. Smith, 10 Tenn. 272, 1829 Tenn. LEXIS 8 (1829).

Laws made for the prevention, discouraging and suppression of gaming must be construed remedially so as to accomplish as much as possible the object of the general assembly. State v. Smith, 10 Tenn. 272, 1829 Tenn. LEXIS 8 (1829); Howlett v. State, 13 Tenn. 144, 1833 Tenn. LEXIS 124 (1833); State v. Trotter, 13 Tenn. 184, 1833 Tenn. LEXIS 129 (1833); State v. McBride, 27 Tenn. 66, 1847 Tenn. LEXIS 44 (1847); State v. Blackburn, 42 Tenn. 235, 1865 Tenn. LEXIS 48 (1865); McGrew v. City Produce Exchange, 85 Tenn. 572, 4 S.W. 38, 1886 Tenn. LEXIS 84, 4 Am. St. Rep. 771 (1887); Dunn v. Bell, 85 Tenn. 581, 4 S.W. 41, 1886 Tenn. LEXIS 85 (1887).

Gaming is punished by law more on the ground of public policy on account of its effect upon the actors and society than the extrinsic wickedness of the thing itself. Walker v. State, 32 Tenn. 287, 1852 Tenn. LEXIS 66 (1852); Johnson v. State, 36 Tenn. 614, 1857 Tenn. LEXIS 66 (1857).

2. Application.

Provisions of this section that all statutes made for the suppression of gaming should be construed remedially, passed when every species of gaming then punished by law was treated as a misdemeanor, will not be applied to statutes subsequently passed, making certain kinds of gaming felonies and infamous. McGowan v. State, 17 Tenn. 184, 1836 Tenn. LEXIS 29 (1836).

3. Gambling Devices.

A mint vending machine, which, in addition to delivering a package of mints for the customer's coin, may emit checks or chips, varying from two to 20, of use only in playing a game which is a part of the vending machine, is a gaming device, prohibited by statute. Painter v. State, 163 Tenn. 627, 45 S.W.2d 46, 1931 Tenn. LEXIS 159, 81 A.L.R. 173 (1932).

Policy slips are among the common forms of gambling devices. Van Pelt v. State, 193 Tenn. 463, 246 S.W.2d 87, 1952 Tenn. LEXIS 312 (1952).

The term “gambling table” in statute referring also to “gambling device” did not restrict application of latter term under doctrine of ejusdem generis to devices similar to gambling tables, the latter term being construed as it is generally used and accepted in every day usage. Van Pelt v. State, 193 Tenn. 463, 246 S.W.2d 87, 1952 Tenn. LEXIS 312 (1952).

This section does not deprive defendant of constitutional right to have indictment specify the manner in which the defendant is concerned in the keeping or exhibiting of a gambling device. Burks v. State, 194 Tenn. 675, 254 S.W.2d 970, 1953 Tenn. LEXIS 289 (1953).

4. Betting on Elections Not Covered.

Betting on elections is not technically gaming, and, therefore, is not within requirement of this section that statutes for the suppression of gaming be construed remedially. Deshazo v. State, 23 Tenn. 275, 1843 Tenn. LEXIS 81 (1843).

5. Voluntary Payments.

The fact that the loser was not compelled to pay, but that payment was to be voluntary or that the participants agreed that the transaction should not be considered gaming would not affect the result. Walker v. State, 32 Tenn. 287, 1852 Tenn. LEXIS 66 (1852).

40-13-218. Alleging dealing in futures.

In all prosecutions for dealing in futures, no prosecutor shall be required and it is sufficient to charge that the defendant did game, wager or deal in futures, without setting forth with whom the defendant dealt, but the indictment or presentment shall charge a violation of some of the provisions of the section, either in terms or substance.

Acts 1883, ch. 251, § 4; Shan., § 3169; Code 1932, § 7822; modified; T.C.A. (orig. ed.), § 40-1822; Acts 1996, ch. 675, § 28.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 16.19.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

40-13-219. Allegations concerning intoxicating liquor.

In the prosecution for the purchase of intoxicating liquor in violation of title 39, chapter 17, part 7, it shall not be necessary to allege in the indictment or presentment or to prove the name of the person from whom the intoxicating liquors were bought.
It shall not be necessary for the second or subsequent indictment or presentment for selling or tippling intoxicating liquors, bitters or other compounds in violation of title 39, chapter 17, part 7, to allege or charge a former indictment or presentment and conviction thereon for the violation. The original indictment or presentment and record of conviction or certified copies of the same from any circuit or criminal court shall be prima facie evidence of a former indictment or presentment and conviction on the indictment or presentment upon the trial for any second or subsequent violation of title 39, chapter 17, part 7.
In any indictment or presentment for receiving, possessing or transporting intoxicants in violation of §§ 39-17-703 — 39-17-706, it shall not be necessary to negate the exceptions contained in those sections, or that the intoxicating liquor was received, possessed, shipped or transported for any of the purposes set out in § 39-17-705, but those exceptions may be relied upon as a defense and the burden of establishing the exception shall be upon the person claiming the benefit of the exception.

Acts 1905, ch. 422, § 2; 1917, ch. 5, § 2; 1917, ch. 12, § 8; Shan., §§ 6795a5, 6795a8, 6798a15; Code 1932, §§ 11211, 11213, 11222; modified; T.C.A. (orig. ed.), §§ 40-1823 — 40-1825; Acts 1996, ch. 675, §§ 29-31.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 16.19.

Tennessee Jurisprudence, 16 Tenn. Juris., Intoxicating Liquors, § 20.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

40-13-220. Alleging grave-robbing.

The indictment for the offense of unlawfully and willfully digging open a grave, or unlawfully and willfully taking up or carrying away the dead body, or any part of the body, need not specify what grave or whose dead body has been violated or disturbed.

Code 1858, § 5137 (deriv. Acts 1831, ch. 81, § 2); Shan., § 7100; Code 1932, § 11646; T.C.A. (orig. ed.), § 40-1826.

Cross-References. Abuse of corpse, § 39-17-312.

Desecration of venerated object, § 39-17-311.

Vandalism, § 39-14-408.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 16.19.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

40-13-221. Alleging embezzlement and breach of trust.

Any indictment charging a felonious taking or appropriation of the personal property of another, of any value, with intent to convert the property to the use of the defendant and to deprive the true owner of the property, shall be deemed a good and sufficient indictment for embezzlement or fraudulent breach of trust.

Code 1932, § 11642; T.C.A. (orig. ed.), § 40-1828.

Compiler's Notes. Pursuant to the Criminal Sentencing Reform Act of 1989, the former offense of embezzlement has been replaced by the new generic offense of theft. See § 39-14-101.

Cross-References. Theft, title 39, ch. 14, part 1.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 16.19.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

NOTES TO DECISIONS

1. “Another,” Meaning.

The word “another” in this section includes governmental agency, since intention of legislature by enactment of this section intended to protect property of the private individual, corporation and the state. Mays v. State, 182 Tenn. 316, 186 S.W.2d 334, 1945 Tenn. LEXIS 224 (1945).

Part 3
Capias

40-13-301. Capias for more than one offense.

When a defendant is indicted for more than one (1) offense of the same class or grade, at the same term of the court, the clerk shall issue but one (1) capias to the same county, which shall specify on its face the number of cases for which the defendant or defendants are indicted, at that term of the court, of the same grade or class.
The sheriff or other officer arresting the defendant or defendants shall, if bail is given, take bond in a sum sufficient to cover all the cases mentioned in the capias.
1. If the county has the costs to pay, there shall be no fees taxed against the county for the several officers and clerks, but as of one (1) cost.
2. However, if the defendant pays the costs, the court may order full costs to the several officers as if separate process had been issued and served throughout.

Acts 1859-1860, ch. 96, § 2; Shan., § 7066; Code 1932, § 11610; T.C.A. (orig. ed.), § 40-1903.

Cross-References. Capias or summons, Tenn. R. Crim. P. 9.

NOTES TO DECISIONS

1. Costs in Each Case.

The clerk was entitled to full costs in each case, where the defendant was adjudged to pay the costs, as though a capias issued in each case, where the defendant was indicted in six cases for gaming, at the same term of the court, though but one capias was issued. Lord v. State, 65 Tenn. 627, 1872 Tenn. LEXIS 465 (1872).

40-13-302. Bail.

Upon arrest made on a capias, if the offense is bailable, bail may be taken in the manner prescribed in chapter 11, part 1 of this title.
After a defendant is committed to jail under a capias, if the offense is bailable, the defendant may be discharged upon giving bail as prescribed by chapter 11, part 1 of this title.

Code 1858, §§ 5105, 5106 (deriv. Acts 1805, ch. 37); Shan., §§ 7068, 7069; Code 1932, §§ 11612, 11613; T.C.A. (orig. ed.), §§ 40-1905, 40-1906.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 9.42.

Law Reviews.

The Right to a Preliminary Hearing and Effective Assistance of Counsel at a Preliminary Hearing in Tennessee, 43 Tenn. L. Rev. 635 (1976).

40-13-303. Mailing and filing of return.

If served by an officer not of the county to which it is returnable, the return may be made by depositing the capias in any post office, sealed up, directed to the clerk of the court at the courthouse of the originating county with the title of the case endorsed on the envelope and the postage paid.
The undertaking of bail, if any, shall also be returned with each capias.
The postage paid upon process sent by mail shall constitute a part of the bill of costs.
The clerk of the court to whom packages are addressed according to this section shall take them from the post office and file them without delay.

Code 1858, §§ 5108-5111; Shan., §§ 7071-7074; Code 1932, §§ 11615-11618; T.C.A. (orig. ed.), §§ 40-1908 — 40-1911.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 9.42.

40-13-304. Failure to execute capias.

Any sheriff failing to execute the capias, from want of due diligence, commits a Class C misdemeanor.

Code 1858, § 5112; Shan., § 7075; Code 1932, § 11619; T.C.A. (orig. ed.), § 40-1912; Acts 1989, ch. 591, § 113.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

Chapter 14
Rights of Defendants

Part 1
General Provisions

40-14-101. Speedy trial — Right to be heard.

In all criminal prosecutions, the accused is entitled to a speedy trial and to be heard in person and by counsel.

Code 1858, § 4992 (deriv. Const. 1834, art. 1, § 9); Shan., § 6951; Code 1932, § 11492; T.C.A. (orig. ed.), § 40-2001.

Cross-References. Privilege against self-incrimination, § 40-17-103.

Right to meet face to face, § 40-17-105.

Speedy public trial required when defendant is prosecuted by indictment or presentment, Tenn. Const., art. I, § 9.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 16.91, 16.92.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 3-12-9, 3-12-10.

Law Reviews.

Constitutional Law — Right to Counsel — Preliminary Hearing, 30 Tenn. L. Rev. 648.

Criminal Procedure — Defendant's Right to Be Present at Trial — Prosecutor's Comments During Summation Regarding Defendant's Opportunity to Tailor Testimony to That of Preceding Witnesses, 68 Tenn. L. Rev. 409 (2001).

NOTES TO DECISIONS

1. Speedy Trial.

In all criminal cases, the state is under an affirmative duty to speedily try the accused. Cunningham v. State, 565 S.W.2d 890, 1977 Tenn. Crim. App. LEXIS 272 (Tenn. Crim. App. 1977).

The oppression of being detained in jail or under bond for a prolonged period of time cannot arise when the accused is dismissed at the preliminary hearing and hence this section is not applicable. State v. Northcutt, 568 S.W.2d 636, 1978 Tenn. Crim. App. LEXIS 310 (Tenn. Crim. App. 1978).

This section is applicable only when a defendant “has been bound” to the action of the grand jury and is not applicable when he is not so bound. State v. Northcutt, 568 S.W.2d 636, 1978 Tenn. Crim. App. LEXIS 310 (Tenn. Crim. App. 1978).

Defendant's right to a speedy trial was triggered when he was served with an arrest warrant and arrested, not when the warrant was issued, five years earlier. State v. Utley, 956 S.W.2d 489, 1997 Tenn. LEXIS 571 (Tenn. 1997).

While the State conceded that its delay in having evidence tested was an oversight, nothing indicated that the defense was impaired, and defendant's incarceration during the pendency of the proceedings appeared to have been due to a sentence he was serving in another case; the 26-month delay was not egregious, given that defendant was charged with two counts of first degree murder and he did not assert his right to a speedy trial for over 19 months, and thus defendant was not denied a speedy trial and the trial court did not abuse its discretion in denying his motion to sever defendants on that basis. State v. Crockett, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 150 (Tenn. Crim. App. Feb. 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 486 (Tenn. June 23, 2016).

Defendant did not show a speedy trial violation required an indictment's dismissal because (1) the delay was not significant when considering the seriousness of the charges, (2) a portion of the delay was attributable to defendant, (3) defendant's assertion of the right to a speedy trial was not timely, and (4) defendant showed no prejudice. State v. Gossett, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 232 (Tenn. Crim. App. Mar. 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 482 (Tenn. Aug. 18, 2017).

Considering defendant two's extensive criminal history and experience with the criminal justice system, and his four additional sets of charges that were pending while he was incarcerated for the instant case any anxiety suffered was not so great as to have outweighed the other factors in the speedy trial analysis. State v. Sherrod, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 361 (Tenn. Crim. App. May 9, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 607 (Tenn. Sept. 22, 2017).

Trial began four years and eight months after defendant two was first arrested, and while this delay triggered a speedy trial inquiry, the delay was not per se unreasonable; the case involved a 12-count indictment for 27 felony charges against three defendants and involved numerous pre-trial motions, hearings, and continuances requested by the State and defendants, such that the length of the delay did not weigh heavily against the State. State v. Sherrod, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 361 (Tenn. Crim. App. May 9, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 607 (Tenn. Sept. 22, 2017).

Defendant two's right to a speedy trial was not violated; it could not be ignored that he never asserted his right to a speedy trial, he acquiesced in delaying trial at least once and requested another delay, and he failed to establish any prejudice to his defense as a result of the delay. State v. Sherrod, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 361 (Tenn. Crim. App. May 9, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 607 (Tenn. Sept. 22, 2017).

First trial delay was requested by defendant one and counsel for defendant two acquiesced, and the second continuance was requested by defendant two, and based on his acquiescence to the first trial delay and his request of the second delay, this factor weighed against defendant two. State v. Sherrod, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 361 (Tenn. Crim. App. May 9, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 607 (Tenn. Sept. 22, 2017).

No speedy trial violation existed where the reason for the delay was due to the numerous requests of defendants and co-defendants seeking to reset the trial as each attempted to investigate, prepare, or resolve their cases and they were tried less than one year after the severance of a co-defendant. State v. Denton, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 743 (Tenn. Crim. App. Aug. 21, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 856 (Tenn. Dec. 8, 2017).

Trial court properly found that defendant's speedy trial rights were not violated because, while the State conceded that it took “over two years” for the case to go to trial, defendant conceded that he did not assert his right to a speedy trial, and the issuance of a superseding indictment did constitute prejudice to him. State v. Pearsons, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 648 (Tenn. Crim. App. Aug. 22, 2018).

Defendant's right to a speedy trial was not violated despite the 20-month long delay because defendant was already in custody on a separate matter and was released prior to trial, there was no evidence that the delay was meant to gain a tactical advantage of defendant, and defendant was not prejudiced by the delay. State v. Jordan, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 27 (Tenn. Crim. App. Jan. 21, 2020).

2. —Four Factors.

Four factors are to be weighed in considering whether a defendant's right to a speedy trial has been violated: (1) The length of the delay; (2) The defendant's assertion of his right; (3) The reason for the delay; and (4) Prejudice to the defendant, which is the most crucial inquiry. Cunningham v. State, 565 S.W.2d 890, 1977 Tenn. Crim. App. LEXIS 272 (Tenn. Crim. App. 1977); Tillery v. State, 565 S.W.2d 509, 1978 Tenn. Crim. App. LEXIS 293 (Tenn. Crim. App. 1978); State v. Kolb, 755 S.W.2d 472, 1988 Tenn. Crim. App. LEXIS 409 (Tenn. Crim. App. 1988).

3. —Postponement until Expiration of Imprisonment.

An order postponing the trial of one under indictment for forgery until the expiration of two years' sentence on conviction of a like charge operated to deny the accused the speedy trial guaranteed by this section and Tenn. Const., art. I, § 9. Arrowsmith v. State, 131 Tenn. 480, 175 S.W. 545, 1914 Tenn. LEXIS 122, L.R.A. (n.s.) 1915E363 (1915).

4. —Presumptions.

Period of delay of four and one-half months was not presumptively prejudicial. State v. Baker, 614 S.W.2d 352, 1981 Tenn. LEXIS 423 (Tenn. 1981).

5. —Charges Must Be Filed.

Prior to formal accusation, the defendant's rights against prosecutorial delay are protected by the statute of limitations. State v. Baker, 614 S.W.2d 352, 1981 Tenn. LEXIS 423 (Tenn. 1981).

6. —Permissible Delay.

Delay of slightly more than six months between return of presentments and arrest of defendant did not deny defendant right to speedy trial in absence of showing of prejudice. State v. McCullough, 4 Tenn. Crim. App. 272, 470 S.W.2d 50, 1971 Tenn. Crim. App. LEXIS 502 (Tenn. Crim. App. 1971).

There was no error in delay of defendant's trial, where the delay was not extensive or unwarranted and was brought about, in part at least, by the defendant himself. Beard v. State, 485 S.W.2d 882, 1972 Tenn. Crim. App. LEXIS 341 (Tenn. Crim. App. 1972).

Two-year delay in bringing federal prisoner to trial in state court on state charges was not denial of right to speedy trial where defendant lost services of first counsel and had previously made request for trial but none of defendant's witnesses had died or become unavailable and nothing in the record indicated that defendant's new counsel was in any way hindered in trial of the case. State v. Bishop, 493 S.W.2d 81, 1973 Tenn. LEXIS 498 (Tenn. 1973).

Defendant's right to a speedy trial was not violated by 10-month delay between bind order and return of indictment where he was out on bond during the period, his defense was not impaired, he did not assert the right to speedy trial until seven months after indictment and the delay was occasioned by a case backlog which led to the creation of a new criminal court division. Tillery v. State, 565 S.W.2d 509, 1978 Tenn. Crim. App. LEXIS 293 (Tenn. Crim. App. 1978).

Delay of approximately eight months between defendant's arrest and the date his motion for speedy trial was argued was not presumptively prejudicial. State v. Utley, 956 S.W.2d 489, 1997 Tenn. LEXIS 571 (Tenn. 1997).

In a case where defendant was charged with aggravated vehicular homicide and vehicular homicide arising from an accident that occurred on October 16, 2004, and defendant was arrested three days later and was indicted on December 7, 2004, trial was originally set to begin on April 18, 2005, but the court granted the state a continuance until August 11, 2005 with the hopes of identifying a potential witness; in this case, defendant was not prejudiced by the delay and therefore his right to a speedy trial was not violated under T.C.A. § 40-14-101. State v. Bowman, 327 S.W.3d 69, 2009 Tenn. Crim. App. LEXIS 35 (Tenn. Crim. App. Jan. 14, 2009), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 395 (Tenn. June 15, 2009), cert. denied, Bowman v. Tennessee, 175 L. Ed. 2d 388, 130 S. Ct. 559, 2009 U.S. LEXIS 8080 (U.S. 2009).

Defendant's right to a speedy trial was not violated because part of the delay was caused by the defense; defendant did not file a motion to suppress his statements until October 9, 2009, and did not file a response to the state's March 9, 2009 request for discovery until March 5, 2010, just eighteen days before trial. Additionally, defendant asserted his right to a speedy trial almost eighteen months after his arrest. State v. Climer, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 914 (Tenn. Crim. App. Dec. 14, 2011), modified, 400 S.W.3d 537, 2013 Tenn. LEXIS 354 (Tenn. Apr. 19, 2013).

Although the delay of over two years between defendant's initial indictment and his trial was enough to require inquiry into all of the speedy trial factors, defendant's motion to dismiss for lack of a speedy trial was properly denied because the length of the delay was not egregious, given the fact that defendant was charged with three felonies ranging from Class C to Class A; the delays were caused or acquiesced to by defendant; he waited until almost two years had elapsed before he asserted his right to a speedy trial; and he failed to establish that he was prejudiced by the delay as no evidence was presented regarding when his mother had died or that her testimony that the jewelry belonged to her was unable to preserved. State v. Morris, 469 S.W.3d 577, 2014 Tenn. Crim. App. LEXIS 425 (Tenn. Crim. App. May 6, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 838 (Tenn. Oct. 15, 2014).

Defendant was not denied his right to a speedy trial because the delay of just over two years was not unreasonable; there was no evidence that the delay was intentionally caused by the State, defendant failed to present any evidence that he was prejudiced by the delay, and the case was extremely complex. State v. Carter, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 647 (Tenn. Crim. App. Aug. 22, 2018).

7. —Prejudicial Delay.

Where the state inexplicably delayed bringing defendant to trial for over two years during which time two defense witnesses became unavailable, and the case was a closed one so that the testimony of each individual witness took on added significance, the delay was prejudicial to the defendants and violated their right to a speedy trial. Cunningham v. State, 565 S.W.2d 890, 1977 Tenn. Crim. App. LEXIS 272 (Tenn. Crim. App. 1977).

The most crucial inquiry in deciding whether a defendant has been denied a speedy trial is whether the delay has prejudiced him. Tillery v. State, 565 S.W.2d 509, 1978 Tenn. Crim. App. LEXIS 293 (Tenn. Crim. App. 1978).

The balancing test set forth in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101, 1972 U.S. LEXIS 34 (1972), is the method to determine whether a defendant's right to a speedy trial under U.S. Const., amend. 6, as made applicable to the state by U.S. Const., amend. 14, and under Tenn. Const., art. I, § 9, as well as this section, was violated. State v. Baker, 614 S.W.2d 352, 1981 Tenn. LEXIS 423 (Tenn. 1981).

The trial court did not abuse its discretion in finding that defendant's right to a speedy trial was violated by a delay of almost 25 years from the date defendant was indicted for rape to the day the charge was dismissed. State v. Jefferson, 938 S.W.2d 1, 1996 Tenn. Crim. App. LEXIS 317 (Tenn. Crim. App. 1996).

Trial court did not abuse its discretion by finding that the state's delayed prosecution of defendant violated his right to a speedy trial on the DUI charge where defendant's testimony regarding his memory of the incident weighed heavily in support of finding that he was prejudiced by the delay; the delay that could be tolerated for an ordinary street crime was considerably less than for a serious, complex charge, and the factors relevant to a speedy trial inquiry were interrelated and depended upon the particular circumstances of each case. State v. Hudgins, 188 S.W.3d 663, 2005 Tenn. Crim. App. LEXIS 959 (Tenn. Crim. App. 2005).

No unequivocal rule of law was breached, and plain error relief was not warranted, because defense counsel cross-examined witnesses regarding the reasons for the delay between the burglary and defendant's arrest, but he did not establish that defendant suffered any resulting prejudice; defendant did not file a pretrial motion objecting to the pre-indictment delay or include the issue in his motion for a new trial. State v. Coleman, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 444 (Tenn. Crim. App. June 15, 2016).

8. —Waiver.

Where 23 months elapsed between the return of an indictment against the defendants and their subsequent arrest on capiases, that delay was sufficient to require a close consideration of their claim of denial of a speedy trial, and their failure to assert that right before trial did not constitute a waiver of the right. Cunningham v. State, 565 S.W.2d 890, 1977 Tenn. Crim. App. LEXIS 272 (Tenn. Crim. App. 1977).

Failure to assert the speedy trial right does not operate as a waiver of the right, but it is a crucial factor. State v. Baker, 614 S.W.2d 352, 1981 Tenn. LEXIS 423 (Tenn. 1981).

Two-year delay between defendant's indictment and the state's filing of notice of intent to seek the death penalty, and the four-year delay between his indictment and his trial, did not violate defendant's right to a speedy trial. While the length of the delay was presumptively prejudicial, defendant's failure to assert his right to a speedy trial and the lack of prejudice supported a finding of no error. State v. Berry, 141 S.W.3d 549, 2004 Tenn. LEXIS 659 (Tenn. 2004), writ denied, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 214 (Tenn. Crim. App. Mar. 23, 2016).

Defendant was not deprived of his right to a speedy trial and any delay was a result of his own misconduct; the State could not obtain jurisdiction upon defendant until he was released from North Carolina and he was not available for the probation revocation hearing until that time, defendant fled Tennessee for North Carolina while out on bond, and even if his 2004 letter to the trial court was interpreted as a demand for a speedy trial, his repeated and wrongful departures from the trial court's jurisdiction constituted waiver of the demand. State v. Moody, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 689 (Tenn. Crim. App. Sept. 15, 2016).

9. —After Prior Sentence Vacated.

Defendant who served 10 years of sentences before his convictions for armed robbery were set aside upon his petition for habeas corpus was not denied a speedy trial when thereafter convicted again for the same offenses. Rivera v. State, 1 Tenn. Crim. App. 395, 443 S.W.2d 675, 1969 Tenn. Crim. App. LEXIS 330 (Tenn. Crim. App. 1969).

10. —Revocation of Suspended Sentence.

In a proceeding for revocation of a suspended sentence, a delay of two years and eight months was prejudicial to defendant. Allen v. State, 505 S.W.2d 715, 1974 Tenn. LEXIS 532 (Tenn. 1974).

11. Right to Testify.

While no person accused of a crime may be compelled to testify he has the right to do so if he chooses. Campbell v. State, 4 Tenn. Crim. App. 100, 469 S.W.2d 506, 1971 Tenn. Crim. App. LEXIS 488 (Tenn. Crim. App. 1971).

The right of a criminal defendant to testify is fundamental and constitutionally guaranteed by Tenn. Const., art. I, § 9, and the fifth and fourteenth Amendments to the United States Constitution. Momon v. State, 18 S.W.3d 152, 1999 Tenn. LEXIS 581 (Tenn. 1999), review or rehearing denied, 18 S.W.3d 152, 2000 Tenn. LEXIS 153 (Tenn. 2000).

The right to testify must be personally waived by the criminal defendant. Momon v. State, 18 S.W.3d 152, 1999 Tenn. LEXIS 581 (Tenn. 1999), review or rehearing denied, 18 S.W.3d 152, 2000 Tenn. LEXIS 153 (Tenn. 2000).

Trial courts should employ the procedural guidelines set forth by the Tennessee Supreme Court to ensure that a criminal defendant personally waives the right to testify. Momon v. State, 18 S.W.3d 152, 1999 Tenn. LEXIS 581 (Tenn. 1999), review or rehearing denied, 18 S.W.3d 152, 2000 Tenn. LEXIS 153 (Tenn. 2000).

By unilaterally deciding not to call the defendant as a witness, counsel deprived the defendant of his right to testify. Momon v. State, 18 S.W.3d 152, 1999 Tenn. LEXIS 581 (Tenn. 1999), review or rehearing denied, 18 S.W.3d 152, 2000 Tenn. LEXIS 153 (Tenn. 2000).

12. Right to Counsel.

13. —Preliminary Hearing.

14. —Preparation for Trial.

Each case must stand on its own in determining what is a reasonable time for preparation of a defense. Johnson v. State, 213 Tenn. 55, 372 S.W.2d 192, 1963 Tenn. LEXIS 468 (1963).

The general rule is that a reasonable time for preparation of defendant's case must be allowed between the time of assignment of counsel and the time of trial. Johnson v. State, 213 Tenn. 55, 372 S.W.2d 192, 1963 Tenn. LEXIS 468 (1963).

Where after granting defense counsel's motion to withdraw from case, court appointed another attorney and ordered case to trial on the same day after denying counsel's motion for continuance to prepare case, counsel was not afforded a reasonable time to confer with defendant and prepare his defense. Johnson v. State, 213 Tenn. 55, 372 S.W.2d 192, 1963 Tenn. LEXIS 468 (1963).

Petitioner in habeas corpus proceeding was not entitled to relief on ground that he was not adequately represented by counsel because attorneys were only appointed 15 minutes before trial where it appeared that petitioner did in fact commit the crimes with which he was charged and petitioner had no witnesses or defense and elected to plead guilty after counsel advised that they had been able to obtain agreement by attorney general to accept minimum sentence. State ex rel. Callahan v. Henderson, 220 Tenn. 417, 417 S.W.2d 789, 1967 Tenn. LEXIS 423 (1967).

15. —Conflicting Interests Between Defendants.

Where there is a conflict in interest between two or more defendants this should be borne in mind by the trial judge and separate counsel appointed, but in order to take advantage of the conflict in interest rule the fact should be brought to the attention of the trial judge. State ex rel. Melton v. Bomar, 201 Tenn. 453, 300 S.W.2d 875, 1957 Tenn. LEXIS 323 (1957), cert. denied, Tennessee ex rel. Melton v. Bomar, 355 U.S. 851, 78 S. Ct. 65, 2 L. Ed. 2d 52, 1957 U.S. LEXIS 564 (1957).

16. —Appeal.

Neither the constitution nor the statutes require that the trial judge appoint an attorney to prepare a bill of exceptions and prosecute an appeal to the supreme court after an accused has been convicted of a crime. State ex rel. Fisher v. Bomar, 201 Tenn. 579, 300 S.W.2d 927, 1957 Tenn. LEXIS 337 (1957).

40-14-102. Right to counsel.

Every person accused of any crime or misdemeanor whatsoever is entitled to counsel in all matters necessary for the person's defense, as well to facts as to law.

Code 1858, § 5205 (deriv. Acts 1794, ch. 1, § 71); Shan., § 7169; Code 1932, § 11733; T.C.A. (orig. ed.), § 40-2002.

Cross-References. Right to counsel on preliminary examination, §§ 40-10-101, 40-10-102.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 5.1.

Law Reviews.

A Noble Ideal Whose Time Has Come (Penny J. White), 18 Mem. St. U.L. Rev. 223 (1989).

NOTES TO DECISIONS

1. In General.

Unless the right is waived, every indigent defendant is entitled to have counsel assigned to represent him in all matters necessary for his defense and at every stage of the proceedings. State v. Gardner, 626 S.W.2d 721, 1981 Tenn. Crim. App. LEXIS 402 (Tenn. Crim. App. 1981).

2. Constitutionality.

This statute is in keeping with the spirit of Tenn. Const., art. I, § 9 guaranteeing a fair and impartial trial of the accused. Cogdell v. State, 193 Tenn. 261, 246 S.W.2d 5, 1951 Tenn. LEXIS 353 (1951), cert. denied, Cogdell v. Tennessee, 343 U.S. 951, 72 S. Ct. 1044, 96 L. Ed. 1352, 1952 U.S. LEXIS 2117 (1952), overruled, State v. Northington, 667 S.W.2d 57, 1984 Tenn. LEXIS 923 (Tenn. 1984), overruled in part, State v. Northington, 667 S.W.2d 57, 1984 Tenn. LEXIS 923 (Tenn. 1984).

3. Preliminary Hearing.

Preliminary hearing before magistrate was not a critical stage in proceeding and fact that defendant was not represented by counsel at that time did not deny defendant's constitutional rights, particularly in view of fact that no indictment was entered at that time, defendant entered plea of not guilty and testimony was to the effect that defendant was advised of his right to counsel and to remain silent. State ex rel. Reed v. Heer, 218 Tenn. 338, 403 S.W.2d 310, 1966 Tenn. LEXIS 640 (1966).

4. Preparation for Trial.

Each case must stand on its own in determining what is a reasonable time for preparation of a defense. Johnson v. State, 213 Tenn. 55, 372 S.W.2d 192, 1963 Tenn. LEXIS 468 (1963).

Petitioner in habeas corpus proceeding was not entitled to relief on ground that he was not adequately represented by counsel because attorneys were only appointed 15 minutes before trial where it appeared that petitioner did in fact commit the crimes with which he was charged and, petitioner had no witnesses or defense and elected to plead guilty after counsel advised that they had been able to obtain agreement by attorney general to accept minimum sentence. State ex rel. Callahan v. Henderson, 220 Tenn. 417, 417 S.W.2d 789, 1967 Tenn. LEXIS 423 (1967).

5. Conflict of Interest Between Defendants.

Where there is a conflict of interest between two or more defendants this should be borne in mind by the trial judge and separate counsel appointed, but in order to take advantage of the conflict of interest rule the fact should be brought to the attention of the trial judge. State ex rel. Melton v. Bomar, 201 Tenn. 453, 300 S.W.2d 875, 1957 Tenn. LEXIS 323 (1957), cert. denied, Tennessee ex rel. Melton v. Bomar, 355 U.S. 851, 78 S. Ct. 65, 2 L. Ed. 2d 52, 1957 U.S. LEXIS 564 (1957).

6. Appeal.

7. Waiver.

Constitutional right to counsel was intentionally and competently waived by indigent defendant who, having full knowledge of right, rejected services of four attorneys appointed by court for his defense. Cogdell v. State, 193 Tenn. 261, 246 S.W.2d 5, 1951 Tenn. LEXIS 353 (1951), cert. denied, Cogdell v. Tennessee, 343 U.S. 951, 72 S. Ct. 1044, 96 L. Ed. 1352, 1952 U.S. LEXIS 2117 (1952), overruled, State v. Northington, 667 S.W.2d 57, 1984 Tenn. LEXIS 923 (Tenn. 1984), overruled in part, State v. Northington, 667 S.W.2d 57, 1984 Tenn. LEXIS 923 (Tenn. 1984).

Where indigent defendant rejected counsel appointed by court, because they would not conduct case as he directed, and personally prepared motion for new trial in which right to aid of legal counsel was asserted, his waiver of constitutional right to counsel was intelligently as well as intentionally waived. Cogdell v. State, 193 Tenn. 261, 246 S.W.2d 5, 1951 Tenn. LEXIS 353 (1951), cert. denied, Cogdell v. Tennessee, 343 U.S. 951, 72 S. Ct. 1044, 96 L. Ed. 1352, 1952 U.S. LEXIS 2117 (1952), overruled, State v. Northington, 667 S.W.2d 57, 1984 Tenn. LEXIS 923 (Tenn. 1984), overruled in part, State v. Northington, 667 S.W.2d 57, 1984 Tenn. LEXIS 923 (Tenn. 1984).

8. Admissions Without Advice as to Rights.

Statement by defendant following his arrest after a homicide prior to swearing out of warrant and filing of charges was not admissible in trial of defendant on homicide where defendant was not advised of his constitutional rights and statement was made as result of examination. Giles v. State, 185 Tenn. 429, 206 S.W.2d 412, 1947 Tenn. LEXIS 348 (1947).

9. Disqualifying Conflict of Interest.

Law partner of county attorney was held in contempt of court for refusing to represent indigent defendant in case in which a police officer was a prospective witness in spite of an ethics opinion holding to the contrary because there was no evidence of a disqualifying conflict of interest. State v. Jones, 726 S.W.2d 515, 1987 Tenn. LEXIS 882 (Tenn. 1987).

10. Trial in Absentia.

Inmate filed a claim against the state that the trial judge deprived him of his statutory rights because the indictments against him were void and because he was tried, convicted, and sentenced in absentia; he based his claim on T.C.A. §§ 40-3-101, 40-14-101, 40-14-102, 40-17-105, and 40-18-118, and Tenn. R. Crim. P. 43, but none of those statutes and rules expressly conferred a private right of action against the state to him; thus, the Tennessee claims commission for the eastern grand division did not err when it held that it lacked subject matter jurisdiction over the inmate's claim pursuant to T.C.A. § 9-8-307(a)(1)(N) and that the inmate failed to state a claim upon which relief could be granted. Therefore, pursuant to Tenn. Const. art. I, § 17, the commission did not err when it granted the state's motion to dismiss, pursuant to Tenn. R. Civ. P. 12.02(1). Williams v. State, 139 S.W.3d 308, 2004 Tenn. App. LEXIS 43 (Tenn. Ct. App. 2004), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 530 (Tenn. June 1, 2004), appeal denied, Williams v. Parker, — S.W.3d —, 2006 Tenn. LEXIS 9 (Tenn. 2006).

40-14-103. Right to appointed counsel — Administrative fees.

If unable to employ counsel, the defendant is entitled to have counsel appointed by the court.
1. A defendant, who is provided with court-appointed counsel, including a defendant in a termination of parental rights case, shall be assessed by the court at the time of appointment a nonrefundable administrative fee in the amount of fifty dollars ($50.00). The administrative fee shall be assessed only one time per case and shall be waived or reduced by the court upon a finding that the defendant lacks financial resources sufficient to pay the fifty-dollar fee. The fee may be increased by the court to an amount not in excess of two hundred dollars ($200) upon a finding that the defendant possesses sufficient financial resources to pay the fee in the increased amount. The administrative fee shall be payable, at the court's discretion, in a lump sum or in installments; provided, however, that the fee shall be paid prior to disposition of the case or within two (2) weeks following appointment of counsel, whichever occurs first. Prior to disposition of the case, the clerk of the court shall inform the judge whether the administrative fee assessed by the court has been collected. Failure to pay the administrative fee assessed by the court shall not reduce or in any way affect the rendering of services by court-appointed counsel; provided, however, that the defendant's willful failure to pay the fee may be considered by the court as an enhancement factor when imposing sentence if the defendant is found guilty of criminal conduct, and may also be considered by the court as evidence of the defendant's financial responsibility, or lack thereof, in a determination of the best interest of the child.
2. The administrative fee shall be separate from and in addition to any other contribution or recoupment assessed pursuant to law for defrayal of costs associated with the provision of court-appointed counsel. The clerk of the court shall retain a commission of five percent (5%) of each dollar of administrative fees collected and shall transmit the remaining ninety-five percent (95%) of each dollar to the state treasurer for deposit in the state's general fund.
3. If the administrative fee is not paid prior to disposition of the case, then the fee shall be collected in the same manner as costs are collected; provided, however, that upon disposition of the case, moneys paid to the clerk, including any cash bond posted by the defendant, shall be allocated to taxes, costs and fines and then to the administrative fee and any recoupment ordered. The administrative fee and any recoupment or contribution ordered for the services of court-appointed counsel shall apply and shall be collected even if the charges against the defendant are dismissed.
4. As part of the clerk's regular monthly report, each clerk of court, who is responsible for collecting administrative fees pursuant to this section, shall file a report with the court and with the administrative director of the courts. The report shall indicate the following:
  1. Number of defendants for whom the court appointed counsel;
  2. Number of defendants for whom the court waived the administrative fee;
  3. Number of defendants from whom the clerk collected administrative fees;
  4. Total amount of commissions retained by the clerk from the administrative fees; and
  5. Total amount of administrative fees forwarded by the clerk to the state treasurer.

Code 1858, § 5206; Shan., § 7170; Code 1932, § 11734; T.C.A. (orig. ed.), § 40-2003; Acts 1997, ch. 547, § 1; 2010, ch. 1003, §§ 1, 2.

Cross-References. Counsel for indigents, title 40, ch. 14, part 2.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 5.5, 5.16.

Law Reviews.

The Right to Counsel in Criminal Prosecutions (Stephen M. Worsham), 30 Tenn. L. Rev. 420.

Attorney General Opinions. Constitutionality of fee assessment against defendant with court-appointed counsel, OAG 98-0167 (8/28/98).

NOTES TO DECISIONS

1. In General.

2. Conflict of Interest Between Defendants.

Where there is a conflict in interest between codefendants, separate counsel should be appointed, but in order to take advantage of the conflict in interest rule the fact should be brought to the attention of the trial judge.State ex rel. Melton v. Bomar, 201 Tenn. 453, 300 S.W.2d 875, 1957 Tenn. LEXIS 323 (1957).

3. Preparation for Trial.

Where new counsel was appointed for defendant on the day of trial and defendant's motion for a continuance was overruled, adequate time for counsel to prepare the case was not granted. Johnson v. State, 213 Tenn. 55, 372 S.W.2d 192, 1963 Tenn. LEXIS 468 (1963).

Where it appeared that defendant was guilty of the crimes with which he was charged, that he had no witnesses or defense, and that he was satisfied to plead guilty on assurance of receiving the minimum sentences, preparation for trial by attorneys appointed 15 minutes before trial was not inadequate. State ex rel. Callahan v. Henderson, 220 Tenn. 417, 417 S.W.2d 789, 1967 Tenn. LEXIS 423 (1967).

4. Effectiveness of Counsel.

Contention of indigent defendant that his court appointed counsel was ineffective because he had no say in who would represent him and because they were paid by the state was without merit. Johnson v. Russell, 4 Tenn. Crim. App. 113, 469 S.W.2d 511, 1971 Tenn. Crim. App. LEXIS 489 (Tenn. Crim. App. 1971).

5. Appeal.

Neither the constitution nor the statutes of this state require that the trial judge appoint an attorney to prepare a bill of exceptions and prosecute an appeal. State ex rel. Fisher v. Bomar, 201 Tenn. 579, 300 S.W.2d 927, 1957 Tenn. LEXIS 337 (1957).

40-14-104. Access of spouse and counsel.

The defendant's spouse and counsel, whether the counsel is employed by the defendant or appointed by the court, shall be allowed access to the defendant at all reasonable hours.

Code 1858, § 5207; Shan., § 7171; Code 1932, § 11735; T.C.A. (orig. ed.), § 40-2004.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 5.35, 19.41.

Law Reviews.

Rights of the Criminal Defendant: Arrest to Preliminary Hearing (Edward M. Ellis), 34 Tenn. L. Rev. 482.

40-14-105. Time before trial — Noncapital offenses.

Every person accused of any crime or misdemeanor whatsoever shall be entitled to fourteen (14) full days, Sundays and legal holidays excluded, after arrest and the return of the indictment or presentment before being tried for the offense.

Acts 1949, ch. 189, § 1; mod. C. Supp. 1950, § 11736.1 (Williams, § 11760.2); Acts 1976, ch. 482, § 1; T.C.A. (orig. ed.), § 40-2005.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 10.4, 24.85.

Tennessee Jurisprudence 28; 14 Tenn. Juris., Indictments, Informations, and Presentments, § 36. 8 Tenn. Juris., Criminal Procedure, §§ 21, 28.

NOTES TO DECISIONS

1. Waiver.

Provisions of this section were waived when defendant announced he was “ready for trial.” Leek v. State, 216 Tenn. 337, 392 S.W.2d 456, 1965 Tenn. LEXIS 580 (1965); Oden v. State, 2 Tenn. Crim. App. 304, 453 S.W.2d 441, 1970 Tenn. Crim. App. LEXIS 419 (Tenn. Crim. App. 1970).

Provisions of this section may be waived by defendant. Leek v. State, 216 Tenn. 337, 392 S.W.2d 456, 1965 Tenn. LEXIS 580 (1965); Oden v. State, 2 Tenn. Crim. App. 304, 453 S.W.2d 441, 1970 Tenn. Crim. App. LEXIS 419 (Tenn. Crim. App. 1970).

2. Time Insufficient.

Where defendant was arrested four days before trial but the indictment was found less than two days before trial, the provisions of this section were not complied with. Neal v. State, 206 Tenn. 492, 334 S.W.2d 731, 1960 Tenn. LEXIS 387 (1960).

Where defendants were brought into court from prison on October 9 and learned for the first time that they had been indicted on October 7 for participation in a prison riot on July 1, the commencement of trial after not more than an hour or two for court appointed counsel to confer with the defendants was a violation of this section. Townsend v. Bomar, 351 F.2d 499, 1965 U.S. App. LEXIS 4276 (6th Cir. Tenn. 1965).

When a new indictment, issued due to infirmities in the grand jury venire which had returned the original indictment, is identical to the first, defendant's receipt of the second indictment two days before trial did not violate the statute when there was no showing of prejudice accruing, there was adequate representation by counsel and defendant understood the charges against him. Moultrie v. State, 584 S.W.2d 217, 1978 Tenn. Crim. App. LEXIS 363 (Tenn. Crim. App. 1978).

3. Time Sufficient.

When counsel was appointed a month before trial and had the benefit of conferring with defendants' prior counsel on a related charge, defendants had sufficient time to prepare for trial. Brady v. State, 584 S.W.2d 245, 1979 Tenn. Crim. App. LEXIS 264 (Tenn. Crim. App. 1979).

4. Effect of Noncompliance.

Where no prejudice was shown by failure to comply with this section, case would not be reversed on that ground. Neal v. State, 206 Tenn. 492, 334 S.W.2d 731, 1960 Tenn. LEXIS 387 (1960).

The general assembly intended that the delay between indictment and trial only be applied where the indictment or presentment and arrest occurred substantially at the same time; where no prejudice has been shown by failure to comply with this section, a reversal is not warranted. Dukes v. State, 578 S.W.2d 659, 1978 Tenn. Crim. App. LEXIS 345 (Tenn. Crim. App. 1978).

40-14-106. Time before trial — Capital offenses.

Every person accused of any offense for which the punishment may be death shall be entitled to twenty-one (21) full days, Sundays and legal holidays excluded, after arrest and the return of the indictment or presentment before being tried for the offense.

Acts 1949, ch. 189, § 2; mod. C. Supp. 1950, § 11736.1 (Williams, § 11760.2); Acts 1976, ch. 482, § 2; T.C.A. (orig. ed.), § 40-2006.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 10.4.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 21.

Law Reviews.

Tennessee Criminal Law: An Overview of the Courts and a Compendium of Tennessee Criminal Procedure (Michael R. Tilley), 5 Mem. St. U.L. Rev. 90.

NOTES TO DECISIONS

1. Time for Preparation.

Where defendant indicted for murder on May 23 filed a motion for a continuance on the ground that date of trial fixed by court for May 25 did not give him sufficient time to prepare for trial and trial court reset case for May 30 to which defendant excepted but did not file any additional motion for a continuance, defendant was not prejudiced by short time in which to prepare for trial. Bass v. State, 191 Tenn. 259, 231 S.W.2d 707, 1950 Tenn. LEXIS 552 (1950).

A defendant's claim that his right to due process was violated by denial of the statutory time to prepare for trial does not reach constitutional dimensions unless the defendant was denied adequate assistance of counsel at his trial. Malone v. State, 707 S.W.2d 541, 1985 Tenn. Crim. App. LEXIS 3258 (Tenn. Crim. App. 1985).

40-14-107. Applicability of time allowance — Waiver.

This section and §§ 40-14-105 and 40-14-106 only apply to criminal cases in a court of record.
Nothing in this section, § 40-14-105 or § 40-14-106 shall prevent any person so indicted or presented from waiving the provisions of this section, § 40-14-105 or § 40-14-106.
This section and §§ 40-14-105 and 40-14-106 do not apply to persons entering a plea of guilty.

Acts 1949, ch. 189, § 3; C. Supp. 1950, § 11736.1 (Williams, § 11760.2); T.C.A. (orig. ed.), § 40-2007.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 22.3.

40-14-108. Continuance because of prejudicial excitement.

A continuance because of too great excitement to the prejudice of the defendant shall be in the sound discretion of the court.

Acts 1875, ch. 6, § 1; Shan., § 7172; Code 1932, § 11736; T.C.A. (orig. ed.), § 40-2009.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 24.83.

Law Reviews.

Tennessee Criminal Law: An Overview of the Courts and a Compendium of Tennessee Criminal Procedure (Michael R. Tilley), 5 Mem. St. U.L. Rev. 90.

NOTES TO DECISIONS

1. Discretion.

Continuances are in discretion of trial courts, and will not be revised except for great abuse. King v. State, 91 Tenn. 617, 20 S.W. 169, 1892 Tenn. LEXIS 33 (1892); Caldwell v. State, 164 Tenn. 325, 48 S.W.2d 1087, 1931 Tenn. LEXIS 37 (1932).

2. Proof by Affidavits.

Affidavits are adducible to affect the court's exercise of discretion, which is a judicial discretion. State v. Poe, 76 Tenn. 647, 1881 Tenn. LEXIS 57 (1881); King v. State, 91 Tenn. 617, 20 S.W. 169, 1892 Tenn. LEXIS 33 (1892).

3. Insufficient Grounds.

Popular excitement or prejudice, in the absence of unusual or extraordinary circumstances, is not cause for continuance. Caldwell v. State, 164 Tenn. 325, 48 S.W.2d 1087, 1931 Tenn. LEXIS 37 (1932).

40-14-109. Domestic violence offenses — Notice to defendant.

As used in this section, “domestic violence offense” means an offense that:
1. Is classified as a misdemeanor in this state;
2. Has as an element of the offense the use or attempted use of physical force or the threatened use of a deadly weapon; and
3. Is committed by a:
  1. Current or former spouse, parent, or guardian of the victim;
  2. Person with whom the victim shares a child in common;
  3. Person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian; or
  4. Person similarly situated to a spouse, parent, or guardian of the victim.
Before the court accepts the guilty plea of a defendant charged with a domestic violence offense, it shall notify the defendant of the following:
1. Pursuant to § 39-17-1307(f)(1), and 18 U.S.C. § 922(g), it is a state and federal offense for a person convicted of a domestic violence offense, and who is still subject to the disabilities of such a conviction, to possess or purchase a firearm. This means that from the moment of conviction for a domestic violence offense, the defendant will never again be able to lawfully possess or buy a firearm of any kind;
2. A defendant convicted of a domestic violence offense also must lawfully dispose of all firearms in the defendant's possession at the time of the conviction;
3. If the defendant possesses firearms as business inventory or that are registered under the National Firearms Act (26 U.S.C. §§ 5801 et seq.), there are additional statutory provisions that may apply and these additional provisions will be included in the court's order; and
4. A firearm subject to dispossession as the result of a domestic violence conviction will not be forfeited as provided in § 39-17-1317, unless the possession of the firearm prior to committing the domestic violence offense constituted an independent offense for which the defendant has been convicted, or the firearms are abandoned by the defendant.
After informing the defendant of the firearm consequences of a conviction for a domestic violence offense pursuant to subsection (b), the court may accept the plea of guilty if the defendant clearly states on the record that the defendant is aware of the consequences of a conviction for a domestic violence offense and still wishes to enter a plea of guilty.
1. If a defendant is not represented by an attorney but wishes to proceed to trial on a charge of committing a domestic violence offense, the court shall also inform the defendant of the consequences of a conviction for a domestic violence offense as provided in subsection (b).
2. If a defendant is represented by an attorney and the defendant intends to proceed to trial on a charge of committing a domestic violence offense, prior to commencement of the trial, the judge shall inquire of the defendant's attorney if the attorney has advised the defendant of the consequences of a conviction for a domestic violence offense. If not, the judge shall instruct the attorney to so advise the defendant.
If a defendant is found guilty by a jury or the court of a domestic violence offense, the court, immediately upon conviction, shall notify the defendant of the consequences of such a conviction as set out in subsection (b).

Acts 1997, ch. 176, § 1; 2017, ch. 127, § 1.

Cross-References. Domestic abuse, title 36, ch. 3, part 6.

Part 2
Counsel for Indigents

40-14-201. Part definitions.

As used in this part, unless the context otherwise requires:

“Indigent person” means any person who does not possess sufficient means to pay reasonable compensation for the services of a competent attorney; and
“Public defender” means any attorney appointed or elected under any act of the general assembly or any provision of a metropolitan charter to represent indigent persons accused of crime.

Acts 1965, ch. 217, § 1; T.C.A., § 40-2014.

Cross-References. Appointment of counsel, § 40-14-103.

Rule Reference. This section is referred to in Appendix F of Rule 28 of the Rules of the Supreme Court of Tennessee.

Law Reviews.

A Noble Ideal Whose Time Has Come (Penny J. White), 18 Mem. St. U.L. Rev. 223 (1989).

NOTES TO DECISIONS

1. Indigency.

It is not necessary that one be a “pauper” in order to be “indigent” for purposes of having appointed counsel in a criminal case. Rather, when one lacks the financial resources which would allow him to retain a competent criminal lawyer at the particular time he needs one, he is entitled to appointed counsel. State v. Gardner, 626 S.W.2d 721, 1981 Tenn. Crim. App. LEXIS 402 (Tenn. Crim. App. 1981).

The fact that an accused has succeeded in obtaining his release on bail does not conclusively determine his nonindigency for the purpose of eligibility for appointed counsel. State v. Gardner, 626 S.W.2d 721, 1981 Tenn. Crim. App. LEXIS 402 (Tenn. Crim. App. 1981).

The financial condition of a defendant's relatives has no bearing on the question of the defendant's solvency. State v. Gardner, 626 S.W.2d 721, 1981 Tenn. Crim. App. LEXIS 402 (Tenn. Crim. App. 1981).

For the purpose of determining whether counsel will be appointed, an indigent person is one who does not possess compensation for the services of a competent attorney. It is not necessary that appellant be a pauper or destitute. It is irrelevant that appellant's family may be financially capable of retaining counsel on his behalf. It is also irrelevant that the appellant does not stand accused of a felony. State v. Henry, 733 S.W.2d 127, 1987 Tenn. Crim. App. LEXIS 2527 (Tenn. Crim. App. 1987).

Court erred in finding that the parents, in a complex, extended dependency and neglect case, were not indigent and finding their seven children dependent and neglected and that the parents had committed severe child abuse; that finding could have led to termination of parental rights and the parents clearly had a right to appointed counsel if they were indigent. The parents were entitled to a thorough hearing in compliance with T.C.A. § 40-14-202 to determine if they were indigent and thus, entitled to appointed counsel under Tenn. Sup. Ct. R. 13(d)(2)(B). Tenn. Dep't of Children's Servs. v. David H., 247 S.W.3d 651, 2006 Tenn. App. LEXIS 193 (Tenn. Ct. App. Mar. 21, 2006).

2. Compensation of Attorneys Representing Indigents.

Counsel representing indigent persons by appointment in either civil or criminal cases have no right at common law to receive compensation from the state or to have their services billed as costs. Huskey v. State, 743 S.W.2d 609, 1988 Tenn. LEXIS 4 (Tenn. 1988).

The court rejected the contention that the limitations on fees paid to appointed counsel contained in the applicable statutes and court rules are unconstitutional insofar as they do not allow just compensation or fair market value for services rendered by attorneys appointed to represent indigent persons accused in criminal cases. Huskey v. State, 743 S.W.2d 609, 1988 Tenn. LEXIS 4 (Tenn. 1988).

40-14-202. Appointment by court.

In all felony cases, if the accused is not represented by counsel and the court determines by the manner provided in subsection (b) that the accused is an indigent person who has not competently waived the right to counsel, the court shall appoint to represent the accused either the public defender, if there is one for the county, or, in the absence of a public defender, a competent attorney licensed in this state. The court may call upon any legal aid agency operating in conjunction with an accredited college of law to recommend attorneys for appointment under this part. The court may, upon its own motion or upon application of counsel appointed under this section, name additional attorneys to aid and assist in the defense. Each appointment of counsel shall be denoted by an appropriate entry upon the minutes of the court, which shall state the name of counsel and the date of counsel's appointment, but failure of the court to make such a minute entry shall not in any way invalidate the proceeding if an attorney was in fact appointed. Upon the appointment of an attorney under this section, no further proceeding shall be had until the attorney so appointed has had sufficient opportunity to prepare the case. If the court should determine that the accused is not an indigent person, the court shall then advise the accused with respect to the accused's right to counsel and afford the accused an opportunity to acquire counsel.
Whenever an accused informs the court that the accused is financially unable to obtain the assistance of counsel, it is the duty of the court to conduct a full and complete hearing as to the financial ability of the accused to obtain the assistance of counsel and, thereafter, make a finding as to the indigency of the accused. All statements made by the accused seeking the appointment of counsel shall be by sworn testimony in open court or written affidavit sworn to before the judge.
When making a finding as to the indigency of an accused, the court shall take into consideration:
1. The nature of the services to be rendered;
2. The usual and customary charges of an attorney in the community for rendering like or similar services;
3. The income of the accused regardless of source;
4. The poverty level income guidelines compiled and published by the United States department of labor;
5. The ownership or equity in any real or personal property;
6. The amount of the appearance or appeal bond, whether the party has been able to obtain release by making bond, and, if the party obtained release by making bond, the amount of money paid and the source of the money; and
7. Any other circumstances presented to the court which are relevant to the issue of indigency.
If a social service agency services the criminal justice system of the judicial district, and the court has reasonable cause to believe the accused has the financial resources to employ counsel, the court shall order the agency to conduct an investigation into the financial affairs of the accused and report its findings directly to the court. The court shall consider the contents of the agency's report in making its determination and the report shall be made a part of the record in the cause.
If the court appoints counsel to represent an accused in a felony case under this section or in a misdemeanor case as required by law, but finds the accused is financially able to defray a portion or all of the cost of the accused's representation, the court shall enter an order directing the party to pay into the registry of the clerk of the court any sum that the court determines the accused is able to pay. The sum shall be subject to execution as any other judgment and may also be made a condition of a discharge from probation. The court may provide for payments to be made at intervals, which the court shall establish, and upon terms and conditions as are fair and just. The court may also modify its order when there has been a change in circumstances of the accused.
The clerk of the court shall collect all moneys paid by an accused pursuant to this section. When the accused fails to comply with the orders of the court, the clerk shall notify the court of the accused's failure to comply. At the conclusion of the proceedings in the trial court, the court shall order the clerk to pay to the administrative office of the courts any funds that the clerk collected from the accused. The clerk of the court shall receive a commission of five percent (5%) of the moneys collected for the clerk's services in collecting, handling and making payment pursuant to the order of the court; provided, that in counties having a population of more than seven hundred thousand (700,000), according to the 1990 federal census or any subsequent federal census, the commission shall be ten percent (10%).
If a defendant has been ordered to pay all or a portion of the accused's representation pursuant to subsection (d), and if the administrative office of the courts receives funds paid pursuant to subsection (f) that are greater than the total amount which appointed counsel has claimed and has been reimbursed pursuant to Supreme Court Rule 13, then any such excess funds shall be paid to the appointed attorney.
No court shall appoint a member of the general assembly as counsel for an indigent defendant unless the judge of the court certifies that no other equally competent attorney is available to represent the defendant. If the judge so certifies, it shall not be considered a conflict of interest for the member to represent the defendant or to be compensated for the representation in the same manner and amount as other court appointed attorneys.
1. Every accused who informs the court that the accused is financially unable to obtain the assistance of counsel shall be required to complete the uniform affidavit of indigency.
2. It is a Class A misdemeanor for any person to intentionally or knowingly misrepresent, falsify or withhold any information required by an affidavit of indigency.
Before and during the trial of a criminal matter, the cover sheets that reflect the total fees and expenses paid to defense counsel and that reflect the total amount paid for expert services from public funds for the use in representing an indigent criminal defendant or prosecuting a criminal defendant are a public record. In addition, a record of the total amount paid to an expert from public funds is a public record if the expert has offered evidence and is known to the public because of testimony on the record. Before and during the trial of a criminal matter, detailed attorney fees and expense claims, motions and orders dealing with the authorization of expert services and detailed time sheets of undisclosed experts shall be sealed and unavailable for public inspection.

Acts 1965, ch. 217, § 4; 1979, ch. 354, §§ 1, 2; T.C.A., § 40-2017; Acts 1986, ch. 878, §§ 1, 7; 1992, ch. 892, § 1; 1995, ch. 456, § 8; 1996, ch. 865, § 1; 1998, ch. 876, § 1; 2010, ch. 754, §§ 1, 2.

Compiler's Notes. For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Cross-References. Appointment and compensation of counsel for indigent defendants, Tenn. R. Sup. Ct. 13.

Mandatory minimum fines, § 39-17-428.

Penalty for Class A misdemeanor, § 40-35-111.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 5.16, 5.18.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, §§ 22, 28.

Law Reviews.

Adjudicating Claims of Innocence for the Capitally Condemned in Tennessee: Embracing a Truth Forum (Dwight Aarons), 76 Tenn. L. Rev. 511 (2009).

Criminal Law — Right to Counsel Extended to Any Imprisonable Offense — Reverberations of Gideon's Trumpet, 3 Mem. St. U.L. Rev. 156.

The Crisis in Representation of Tennessee Capital Cases (William P. Redick Jr.), 29 No. 2 Tenn. B.J. 22 (1993).

NOTES TO DECISIONS

1. Due Process.

It is the responsibility not only of court-appointed counsel, but of the trial judge and of the district attorney general as well to see that the rights of an indigent to an effective appellate review are protected. Nelms v. State, 219 Tenn. 727, 413 S.W.2d 378, 1967 Tenn. LEXIS 384 (1967).

2. Indigency Hearing.

An indigency hearing is required at any point that the defendant claims indigency; simply because a criminal defendant was financially able to hire a lawyer at one point in the proceedings against him, he is not forever precluded from participating in a court-ordered indigency hearing and receiving the services of a court-appointed attorney if he should be found indigent. State v. Dubrock, 649 S.W.2d 602, 1983 Tenn. Crim. App. LEXIS 383 (Tenn. Crim. App. 1983).

3. Authority of Attorney.

Counsel for an indigent defendant who desires to appeal is without authority to make a judgment on the merits of the appeal to the point where his judgment controls as to whether there will in fact be an appeal. State ex rel. Green v. Henderson, 220 Tenn. 551, 421 S.W.2d 86, 1967 Tenn. LEXIS 437 (1967).

4. Opportunity to Prepare Case.

“Sufficient opportunity to prepare the case” means a reasonable time under the facts and circumstances of the case. Brown v. State, 553 S.W.2d 94, 1977 Tenn. Crim. App. LEXIS 279 (Tenn. Ct. App. 1977).

5. —Murder.

Where defendant was charged with first-degree murder, additional time for preparation should have been granted to appointed counsel who had been engaged in the trial of other cases and had actually been in the trial of another case an hour before jury selection. Brown v. State, 553 S.W.2d 94, 1977 Tenn. Crim. App. LEXIS 279 (Tenn. Ct. App. 1977).

6. Contempt.

Trial court erred in summarily holding defendant in civil contempt because it did not have authority to hold him in contempt of court for failure to pay attorney fees or administrative costs assessed pursuant to the statute. State v. Abernathy, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 305 (Tenn. Crim. App. Apr. 26, 2016).

If the trial court did have authority to use its contempt power to punish defendant for non-payment of fees assessed pursuant to the statute, the holding of contempt would have to reversed for lack of notice to defendant. State v. Abernathy, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 305 (Tenn. Crim. App. Apr. 26, 2016).

7. Attorney Fees.

Order for a criminal defendant to pay a portion of his or her legal fees when he/she is found to be “partially” indigent is not a form of punishment; the legislature provided that the dollar amount to be paid is subject to execution as any other judgment and may also be made a condition of a discharge from probation, and it did not also provide that payment of the attorney fees could also be made a condition of probation, with failure to pay resulting in revocation of probation. State v. Abernathy, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 305 (Tenn. Crim. App. Apr. 26, 2016).

40-14-203. Scope of representation.

Any attorney appointed to represent any person under this part shall proceed to counsel with and represent the person at all stages of the proceedings before the court which appointed the attorney and also upon any appeal from the judgment of the court which imposes a prison sentence. Appointed counsel is required to represent the defendant only through the initial appellate review and is not required to pursue the matter through a second tier discretionary appeal by applying to the supreme court for writ of certiorari.

Acts 1965, ch. 217, § 5; 1976, ch. 645, § 1; T.C.A., § 40-2018.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 5.18, 33.101, 33.103.

Tennessee Jurisprudence, 6A Tenn. Juris., Constitutional Law, § 45.

Law Reviews.

Duty to Advise Indigent of Right to Appointed Counsel on Appeal, 38 Tenn. L. Rev. 117 (1970).

Pleading Guilty: Indigent Defendant Perceptions of the Plea Process, 13 Tenn. J. L. & Pol'y 459 (Winter 2019).

NOTES TO DECISIONS

1. Purpose.

This section intends to prevent a gap in representation of defendant since to make the right to counsel meaningful it must be continuous. Parton v. State, 2 Tenn. Crim. App. 626, 455 S.W.2d 645, 1970 Tenn. Crim. App. LEXIS 493 (Tenn. Crim. App. 1970).

2. Reappointment of Counsel.

Action of the trial court in relieving counsel after argument for motion for a new trial and not appointing counsel was harmless, as counsel was later reappointed, and bill of exceptions was timely filed. Pernell v. State, 4 Tenn. Crim. App. 665, 475 S.W.2d 204, 1971 Tenn. Crim. App. LEXIS 438 (Tenn. Crim. App. 1971).

3. Appeal.

The court-appointed defense counsel, district attorney general, and trial judge all had a responsibility to have the bill of exceptions filed in a timely manner to preserve defendant's right of appeal, and, where this was not done, the case was reversed in order for a proper record to be made. Nelms v. State, 219 Tenn. 727, 413 S.W.2d 378, 1967 Tenn. LEXIS 384 (1967).

A defendant has a right to file a pro se petition for writ of certiorari, and failure of his counsel to so advise him of this right may result in a finding that his counsel ineffectively represented him. Tolliver v. State, 629 S.W.2d 913, 1981 Tenn. Crim. App. LEXIS 417 (Tenn. Crim. App. 1981).

There is no constitutional right of appeal; yet where appellate review is provided by statute, the proceedings must comport with constitutional standards. State v. Gillespie, 898 S.W.2d 738, 1994 Tenn. Crim. App. LEXIS 602 (Tenn. Crim. App. 1994).

The right to counsel on a first tier appeal, derives from notions of equal protection and due process under the fourteenth amendment. State v. Gillespie, 898 S.W.2d 738, 1994 Tenn. Crim. App. LEXIS 602 (Tenn. Crim. App. 1994).

Defendant's petition for post-conviction relief was properly denied because he did not show ineffective assistance of counsel as he failed to prove by clear and convincing evidence that he did not know of his right to appeal, and he failed to prove by clear and convincing evidence that he did not waive his right to appeal; and trial counsel's failure to file a written waiver of appeal was a fact that the trial court properly considered in the ineffective assistance of counsel claim, but that fact, in and of itself, was insufficient to show deficient performance. Arroyo v. State, 434 S.W.3d 555, 2014 Tenn. LEXIS 370 (Tenn. May 21, 2014).

4. —Authority of Attorney.

5. —Discretionary.

This section, prior to the 1976 amendment, required that indigent defendants be furnished court appointed attorneys to prepare certiorari petitions at the second tier discretionary level, although federal law did not require publicly paid attorneys at that stage. State v. Williams, 529 S.W.2d 714, 1975 Tenn. LEXIS 588 (Tenn. 1975).

Where defendant, who was convicted of burglary in the second degree, was declared indigent after entry of judgment of conviction but prior to perfecting his appeal, and where the record failed to reflect that any attorney was ever appointed to represent defendant, this section was inapplicable to defendant's retained counsel who failed to file a petition for certiorari despite a clear understanding with defendant that the action would be taken. Moultrie v. State, 542 S.W.2d 835, 1976 Tenn. Crim. App. LEXIS 359 (Tenn. Crim. App. 1976).

Although court-appointed counsel is required to represent a defendant only through the initial appellate review, where counsel assured the convicted defendant that he would file for writ of certiorari to the supreme court but permitted the time to expire without notice to defendant, defendant was deprived of his constitutional right to file a pro se petition and was entitled to relief. State v. Hopson, 589 S.W.2d 952, 1979 Tenn. Crim. App. LEXIS 291 (Tenn. Crim. App. 1979).

An indigent has no constitutional right to have counsel appointed for the purpose of pursuing a second tier discretionary appeal. Tolliver v. State, 629 S.W.2d 913, 1981 Tenn. Crim. App. LEXIS 417 (Tenn. Crim. App. 1981).

In order to assure that a defendant is not left ignorant of his procedural rights to pursue a discretionary appeal from a final judgment of the supreme court, court has superimposed on this section, among the rules promulgated to govern practice before that tribunal, rules setting out prescribed procedures to accomplish that purpose, including Tenn. R. Sup. Ct. 14, providing for the withdrawal of counsel for indigent defendants after an adverse decision in the court of criminal appeals. State v. Brown, 653 S.W.2d 765, 1983 Tenn. Crim. App. LEXIS 392 (Tenn. Crim. App. 1983).

6. Waiver of Right to Counsel.

The law did not require an appeal of a conviction in a criminal case in the event the defendant, for reasons satisfactory to himself, desired not to have such an appeal, and a voluntary and knowing waiver of the right to appeal waived the right to counsel to handle such an appeal. Collins v. State, 670 S.W.2d 219, 1984 Tenn. LEXIS 929 (Tenn. 1984).

7. Writ of Error Coram Nobis.

Because counsel was appointed to represent defendant in a direct appeal, defendant was not precluded from filing a pro se petition for writ of error coram nobis more than one year after an order was entered terminating counsel's obligation to represent defendant on direct appeal. Willis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 488 (Tenn. Crim. App. July 7, 2016).

Decisions Under Prior Law

1. Failure to File Writ of Certiorari.

Failure of appellate counsel to file a writ of certiorari to the supreme court was a statutory violation as opposed to a constitutional right under the pre-1976 law. Moultrie v. State, 584 S.W.2d 217, 1978 Tenn. Crim. App. LEXIS 363 (Tenn. Crim. App. 1978).

40-14-204. Proceedings for writs.

In all proceedings for the writ of habeas corpus or the writ of error coram nobis, the court having jurisdiction of those matters shall determine the question of indigency and appoint counsel, if necessary, in the manner set out in this part.

Acts 1965, ch. 217, § 6; T.C.A., § 40-2019.

Textbooks. Tennessee Jurisprudence, 14 Tenn. Juris., Habeas Corpus, § 10.

Law Reviews.

Post-Conviction Relief in Tennessee — Fourteen Years of Judicial Administration Under the Post-Conviction Procedure Act (Gary L. Anderson), 48 Tenn. L. Rev. 605 (1981).

NOTES TO DECISIONS

1. Right to Counsel.

McLaney v. Bell, 59 S.W.3d 90, 2001 Tenn. LEXIS 764 (Tenn. 2001) is overruled to the extent that it can be interpreted to require the appointment of counsel and a hearing whenever a pro se habeas corpus petition alleges that an agreed sentence is illegal based on facts not apparent from the face of the judgment; summary dismissal may be proper when the defendant fails to attach to the habeas corpus petition pertinent documents from the record of the underlying proceedings to support his factual assertions. Summers v. State, 212 S.W.3d 251, 2007 Tenn. LEXIS 15 (Tenn. 2007).

2. Compensation of Attorneys.

There was no provision for counsel appointed for indigent persons in habeas corpus or coram nobis proceedings to be compensated by the state since such proceedings by their nature were civil rather than criminal. State ex rel. Austin v. Johnson, 218 Tenn. 433, 404 S.W.2d 244, 1966 Tenn. LEXIS 642 (1966).

40-14-205. Withdrawal of counsel — Replacement by court.

The court may, upon good cause shown, permit an attorney appointed under this part to withdraw as counsel of record for the accused. If any attorney is permitted to withdraw, the court shall, in the manner contained in § 40-14-202, immediately appoint another attorney in the former attorney's place.
The court may, upon its own motion, replace any attorney appointed under this part if the court deems replacement of the attorney necessary to preserve the rights of the accused.

Acts 1965, ch. 217, §§ 7, 8; T.C.A., §§ 40-2020, 40-2021.

Cross-References. District public defenders, title 8, ch. 14, part 1.

Disciplinary Board Opinions.

Duties of defense counsel where capital defendant instructs counsel not to investigate or present mitigating evidence. Formal Ethics Opinion 84-F-73(a) (3/16/99).

NOTES TO DECISIONS

1. Application.

This section applies to post-conviction proceedings. Goodner v. State, 484 S.W.2d 364, 1972 Tenn. Crim. App. LEXIS 337 (Tenn. Crim. App. 1972).

2. Appointment of Successor Counsel.

If the trial court finds that good cause has been shown for withdrawal of counsel, the court should appoint successor counsel immediately. Parton v. State, 2 Tenn. Crim. App. 626, 455 S.W.2d 645, 1970 Tenn. Crim. App. LEXIS 493 (Tenn. Crim. App. 1970).

Where after motion for new trial was overruled and appointed counsel had prayed and been granted appeal to court of criminal appeals, appointed counsel moved for and was granted leave to withdraw as attorney of record but successor counsel was not immediately appointed, this statute was not complied with but error was harmless where defendant was not prejudiced and had excellent representation both at the trial level and on appeal. Parton v. State, 2 Tenn. Crim. App. 626, 455 S.W.2d 645, 1970 Tenn. Crim. App. LEXIS 493 (Tenn. Crim. App. 1970).

3. Leave to Withdraw — By Counsel.

Once appointed, counsel should not ask leave to withdraw unless compelled to do so and he can show good cause. Parton v. State, 2 Tenn. Crim. App. 626, 455 S.W.2d 645, 1970 Tenn. Crim. App. LEXIS 493 (Tenn. Crim. App. 1970).

Where there was nothing in the record that would require mandatory withdrawal of counsel, or even permit the permissive withdrawal of counsel, there was no reversible error in connection with the trial court's denial of counsel's motion to withdraw. State v. Branam, 855 S.W.2d 563, 1993 Tenn. LEXIS 197 (Tenn. 1993).

The trial court did not abuse its discretion in denying counsel's motion to withdraw where counsel was familiar with the case and witnesses, the matter had been reset numerous times, and well over a year had passed between the defendant's initial conviction and the date of the trial in criminal court. State v. Russell, 10 S.W.3d 270, 1999 Tenn. Crim. App. LEXIS 321 (Tenn. Crim. App. 1999), review or rehearing denied, — S.W.3d —, 1999 Tenn. LEXIS 480 (Tenn. Oct. 4, 1999).

4. Appellate Review.

The decision whether to allow counsel to withdraw in a pending criminal matter is vested in the sound discretion of the trial court, and the decision will not be reversed on appeal unless an abuse of discretion is shown. State v. Russell, 10 S.W.3d 270, 1999 Tenn. Crim. App. LEXIS 321 (Tenn. Crim. App. 1999), review or rehearing denied, — S.W.3d —, 1999 Tenn. LEXIS 480 (Tenn. Oct. 4, 1999).

40-14-206. Rules to be prescribed by supreme court.

The supreme court shall prescribe by rule the nature of the expenses for which reimbursement may be allowed under this part, and the limitations on and conditions for reimbursement as it deems appropriate and in the public interest, subject to this part. The rules shall also specify the form and content of applications for reimbursement or compensation to be filed under this part. The court may adopt other rules with regard to the accomplishment of the purposes of this part as it deems appropriate in the public interest. The rules shall provide for compensation for appointed counsel, not otherwise compensated, in all cases where appointment of counsel is required by law.

Acts 1965, ch. 217, § 9; T.C.A., § 40-2022; Acts 1986, ch. 878, § 2.

Law Reviews.

The Right to a Preliminary Hearing and Effective Assistance of Counsel at a Preliminary Hearing in Tennessee, 43 Tenn. L. Rev. 635 (1976).

40-14-207. Compensation — Necessary services for indigent defendants.

Other than public defenders and post-conviction defenders, attorneys appointed under this part shall be entitled to reasonable compensation for their services prior to trial, at trial, and during the appeal of the cause and shall be entitled to reimbursement for their reasonable and necessary expenses in accordance with the rules of the supreme court.
In capital cases where the defendant has been found to be indigent by the court of record having jurisdiction of the case, the court in an ex parte hearing may, in its discretion, determine that investigative or expert services or other similar services are necessary to ensure that the constitutional rights of the defendant are properly protected. If that determination is made, the court may grant prior authorization for these necessary services in a reasonable amount to be determined by the court. The authorization shall be evidenced by a signed order of the court. The order shall provide for the reimbursement of reasonable and necessary expenses by the administrative director of the courts as authorized by this part and rules promulgated thereunder by the supreme court.

Acts 1965, ch. 217, § 10; 1973, ch. 248, § 1; T.C.A., § 40-2023; Acts 1984, ch. 925, § 1; 1986, ch. 878, §§ 3, 4; 1988, ch. 996, §§ 1-3; 1992, ch. 965, § 2; 1993, ch. 66, §§ 51, 52; 2005, ch. 104, § 1.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

Cross-References. Compensation of counsel for indigent defendants, Tenn. R. Sup. Ct. 13.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 23.15.

Law Reviews.

Criminal Procedure — Narrowing the Rights of Future Indigent Criminal Defendants in the Name of Due Process, 16 Mem. St. U.L. Rev. 417 (1986).

Pretend Justice — Defense Representation in Tennessee Death Penalty Cases (William P. Redick, Jr., Bradley A. MacLean, and M. Shane Truett), 38 U. Mem. L. Rev. 303 (2008).

The Crisis in Representation of Tennessee Capital Cases (William P. Redick Jr.), 29 No. 2 Tenn. B.J. 22 (1993).

NOTES TO DECISIONS

1. Scope of Compensation.

The general assembly intended compensation for counsel for indigents at all stages of felony proceedings, including those before local committing magistrates such as general sessions or municipal courts; further, the right to compensation of counsel for indigents has been extended to misdemeanor cases as well as to felonies. The supreme court also has been directed to provide rules for compensation in all cases where appointment of counsel is required by law. Allen v. McWilliams, 715 S.W.2d 28, 1986 Tenn. LEXIS 840 (Tenn. 1986) (See Tenn. R. Sup. Ct. 13).

Court did not abuse its discretion in denying authorization for all of the requested expert funding by defendant because the trial court offered insightful and reasonable explanations for its actions on each of the ex parte motions, it did not deny outright all additional funding for expert services, but only that which it found unnecessary, and as the trial court stated, the continual granting of repeated evaluations would have merely created an unnecessary “endless cycle.” Reid v. State, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 605 (Tenn. Crim. App. Aug. 8, 2011), aff'd, Reid ex rel. Martiniano v. State, 396 S.W.3d 478, 2013 Tenn. LEXIS 84 (Tenn. Jan. 24, 2013).

2. Determination of Compensation.

Nothing in Tenn. R. Sup. Ct. 13 or T.C.A. § 40-14-207 provides the trial court with the authority to determine that the established rate of compensation is unreasonable and replace it with its own. In re Gant, 937 S.W.2d 842, 1996 Tenn. LEXIS 580 (Tenn. 1996).

3. Investigator.

The defendant made no showing that without the assistance of an investigator he was, in fact, unable to adequately interview potential witnesses. State v. Evans, 838 S.W.2d 185, 1992 Tenn. LEXIS 554 (Tenn. 1992), cert. denied, Tennessee v. Middlebrooks, 510 U.S. 1064, 114 S. Ct. 740, 126 L. Ed. 2d 702, 1994 U.S. LEXIS 402 (1994).

A showing of defendant's general desire to have an expert assist in some vague manner was not sufficient to overturn the trial court's denial of his motion for investigative services. State v. Shepherd, 902 S.W.2d 895, 1995 Tenn. LEXIS 269 (Tenn. 1995).

4. Capital Cases.

Defendant's request for a psychologist to testify as to duress defense did not fall within category of services necessary to protect defendant's constitutional rights under T.C.A. § 40-14-207(b) since duress was a pure fact issue on which no expert testimony would be admissible. State v. West, 767 S.W.2d 387, 1989 Tenn. LEXIS 28 (Tenn. 1989), cert. denied, West v. Tennessee, 111 L. Ed. 2d 764, 110 S. Ct. 3254, 497 U.S. 1010, 1990 U.S. LEXIS 3432 (1990).

When a defendant demonstrates that his sanity at the time of the offense is an issue, the state must, at a minimum, assure him access to a competent psychiatrist who will conduct an appropriate examination and assist in the presentation of the defense. That does not, however, include the selection of a psychiatrist of his choosing. State v. Oody, 823 S.W.2d 554, 1991 Tenn. Crim. App. LEXIS 405 (Tenn. Crim. App. 1991).

T.C.A. § 40-14-207(b) does not require that a defendant have an expert of his choice appointed. State v. Smith, 857 S.W.2d 1, 1993 Tenn. LEXIS 149 (Tenn. 1993), rehearing denied, — S.W.2d —, 1993 Tenn. LEXIS 248 (Tenn. June 28, 1993), cert. denied, Smith v. Tennessee, 510 U.S. 996, 114 S. Ct. 561, 126 L. Ed. 2d 461, 1993 U.S. LEXIS 7408 (1993), cert. denied, Tennessee v. Bane, 510 U.S. 1040, 114 S. Ct. 682, 126 L. Ed. 2d 650, 1994 U.S. LEXIS 63 (1994).

T.C.A. § 40-14-207(b) does not require any particular form for an ex parte hearing. State v. Smith, 857 S.W.2d 1, 1993 Tenn. LEXIS 149 (Tenn. 1993), rehearing denied, — S.W.2d —, 1993 Tenn. LEXIS 248 (Tenn. June 28, 1993), cert. denied, Smith v. Tennessee, 510 U.S. 996, 114 S. Ct. 561, 126 L. Ed. 2d 461, 1993 U.S. LEXIS 7408 (1993), cert. denied, Tennessee v. Bane, 510 U.S. 1040, 114 S. Ct. 682, 126 L. Ed. 2d 650, 1994 U.S. LEXIS 63 (1994).

Where the trial judge stated in chambers that he would not entertain any motions regarding expert services for the defense without the district attorney present, there was no prejudice to the defendant in the process employed by the judge to provide the defendant with such expert assistance as was needed. State v. Smith, 857 S.W.2d 1, 1993 Tenn. LEXIS 149 (Tenn. 1993), rehearing denied, — S.W.2d —, 1993 Tenn. LEXIS 248 (Tenn. June 28, 1993), cert. denied, Smith v. Tennessee, 510 U.S. 996, 114 S. Ct. 561, 126 L. Ed. 2d 461, 1993 U.S. LEXIS 7408 (1993), cert. denied, Tennessee v. Bane, 510 U.S. 1040, 114 S. Ct. 682, 126 L. Ed. 2d 650, 1994 U.S. LEXIS 63 (1994).

T.C.A. § 40-14-207(b) applies to capital post-conviction cases and, therefore, under appropriate circumstances, an indigent petitioner in such a case is entitled to an ex parte hearing on a motion for expert or investigative services and Tenn. R. Sup. Ct. 13, § 3, delineates the procedure that both the movant and the trial court are to follow when requesting, or ruling upon a request, for such services. Owens v. State, 908 S.W.2d 923, 1995 Tenn. LEXIS 614 (Tenn. 1995), superseded by statute as stated in, Medlock v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 792 (Tenn. Crim. App. Oct. 21, 2016).

The application of T.C.A. § 40-14-207(b) is limited to the original capital trial and post-conviction proceedings arising therefrom. Coe v. State, 17 S.W.3d 193, 2000 Tenn. LEXIS 116 (Tenn. 2000), cert. denied, Bell v. Coe, 529 U.S. 1034, 120 S. Ct. 1460, 146 L. Ed. 2d 344, 2000 U.S. LEXIS 2200 (2000), cert. denied, Coe v. Tennessee, 146 L. Ed. 2d 344, 120 S. Ct. 1460, 529 U.S. 1034, 2000 U.S. LEXIS 2199 (2000).

Defendants' conclusory statement that a jury selection expert is necessary for an effective defense in every capital case was insufficient to establish a particularized need; appointment of a jury selection expert is not necessary when the record fails to show that the expert would have materially assisted the defense or that the defendant was deprived of a fair trial. State v. Dellinger, 79 S.W.3d 458, 2002 Tenn. LEXIS 207 (Tenn. 2002), rehearing denied, — S.W.3d —, 2002 Tenn. LEXIS 273 (Tenn. 2002), cert. denied, Dellinger v. Tennessee, 537 U.S. 1090, 123 S. Ct. 695, 154 L. Ed. 2d 635, 2002 U.S. LEXIS 9295 (2002).

Petitioner inmate, who had been convicted of first-degree murder in 1982 and sentenced to death, met the qualifications to request expert services pursuant to T.C.A. § 40-14-207(b), as it authorized expert services if necessary for the protection of the constitutional rights of indigent defendants. Miller v. Bell, 655 F. Supp. 2d 838, 2009 U.S. Dist. LEXIS 82557 (E.D. Tenn. Sept. 10, 2009), aff'd, Miller v. Colson, 694 F.3d 691, 2012 FED App. 333P (6th Cir.), 2012 U.S. App. LEXIS 19213 (6th Cir. Tenn. 2012).

Defendant's convictions for first-degree murder, attempted first-degree murder, and aggravated arson were proper because, in light of the relatively small size of the minority communities in the country, the variances were simply insufficient to warrant a finding that the trial court abused its discretion by declining to permit defendant to retain a statistician, T.C.A. § 40-14-207(b). That conclusion was bolstered by the demonstrated familiarity and skill of defendant's lead counsel in presenting legal arguments based on statistical analysis. State v. Hester, 324 S.W.3d 1, 2010 Tenn. LEXIS 897 (Tenn. Oct. 5, 2010), cert. denied, Hester v. Tennessee, 179 L. Ed. 2d 896, 563 U.S. 939, 131 S. Ct. 2096, 2011 U.S. LEXIS 3140 (U.S. 2011), superseded by statute as stated in, State v. Wilson, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 126 (Tenn. Crim. App. Feb. 13, 2013).

Based on the record defendant failed to show a particularized need for a mitigation expert because the record contained only trial court's order denying funding, which justified its decision on the basis that it had already appointed two lawyers and a fact investigator, any one of whom was capable of conducting an investigation into mitigation evidence, and that the appointment of a mitigation expert would not assist defendant in any way. State v. Jones, — S.W.3d —, 2019 Tenn. LEXIS 19 (Tenn. Jan. 30, 2019).

5. Non-Capital Cases.

The legislature has provided statutory authority for the compensation of defendant's experts in capital cases only. Accordingly, indigent defendant was not entitled to funds for the employment of deoxyribonucleic acid (DNA) expert witness in aggravated rape prosecution. State v. Harris, 866 S.W.2d 583, 1992 Tenn. Crim. App. LEXIS 492 (Tenn. Crim. App. 1992).

Even though general assembly has not authorized funds for experts in non-capital cases, constitutional due process applies whether death penalty is sought or not. The test is whether indigent defendant demonstrated before trial the necessity of expert assistance upon an issue likely to be significant at trial, and burden is on defendant to establish that expert would be of material assistance in establishment of his defense theory. State v. Edwards, 868 S.W.2d 682, 1993 Tenn. Crim. App. LEXIS 228 (Tenn. Crim. App. 1993).

Defendant failed to make required showing for authorization of funds to employ deoxyribonucleic acid (DNA) expert as his request for “assistance in his defense” or for “information regarding the DNA evidence the state would seek to introduce” was too general in nature and the circumstances did not adequately establish “particularized necessity” for a DNA expert. State v. Edwards, 868 S.W.2d 682, 1993 Tenn. Crim. App. LEXIS 228 (Tenn. Crim. App. 1993).

There is no rule or statute that entitles a non-capital post-conviction petitioner to a state funded expert. Davis v. State, 912 S.W.2d 689, 1995 Tenn. LEXIS 691 (Tenn. 1995), superseded by statute as stated in, Medlock v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 792 (Tenn. Crim. App. Oct. 21, 2016).

Postconviction court did not err by denying petitioner's request for a mental health evaluation under T.C.A. § 40-14-207 because it did not apply to non-capital cases, and when petitioner filed his petition for relief, he was no longer at risk of receiving the death penalty as he had pleaded guilty and received four concurrent and two consecutive life sentences. Burrell v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 176 (Tenn. Crim. App. Mar. 9, 2017).

6. Support Services.

The trial court did not abuse its discretion in denying counsel's request for a treatise on Tennessee death penalty litigation. State v. Cameron, 909 S.W.2d 836, 1995 Tenn. Crim. App. LEXIS 288 (Tenn. Crim. App. 1995).

In a prosecution for forgery, defense counsel's failure to request funds for a handwriting expert was not prejudicial where defendant did not establish that the expert would be of material assistance in the establishment of his defense theory. State v. Williams, 929 S.W.2d 385, 1996 Tenn. Crim. App. LEXIS 120 (Tenn. Crim. App. 1996).

7. Jury Selection Expert.

There was no showing of any special need for a jury selection expert or that the court had abused its discretion in denying a motion for funds for a jury selection expert. Black v. Bell, 181 F. Supp. 2d 832, 2001 U.S. Dist. LEXIS 22680 (M.D. Tenn. 2001), aff'd, 664 F.3d 81, 2011 FED App. 313P, 2011 U.S. App. LEXIS 24798 (6th Cir. Dec. 15, 2011).

Because defendant failed to establish that the jury venire, drawn from rolls of licensed drivers, was systematically and unconstitutionally structured to exclude potential jurors on the basis of race and because defendant failed to show a particularized need for an expert statistician, the trial court did not abuse its discretion in denying defendant's request for the services of an expert in demographics and statistics. State v. Hester, — S.W.3d —, 2009 Tenn. Crim. App. LEXIS 363 (Tenn. Crim. App. Feb. 5, 2009), aff'd, 324 S.W.3d 1, 2010 Tenn. LEXIS 897 (Tenn. Oct. 5, 2010).

Denial of a jury selection expert did not result in a fundamentally unfair trial as the denial of such an expert did not prevent the inmate from raising doubts about the strength of the state's evidence against him, did not prevent him from gaining potentially conclusive exculpatory evidence in support of his defense, and did not deny him a fair and impartial jury. Sutton v. Bell, 683 F. Supp. 2d 640, 2010 U.S. Dist. LEXIS 5292 (E.D. Tenn. Jan. 22, 2010).

Decisions Under Prior Law

1. Defense of Indigent Without Compensation.

Requiring counsel to defend indigents without compensation did not amount to taking of property of counsel without just compensation. Scott v. State, 216 Tenn. 375, 392 S.W.2d 681, 1965 Tenn. LEXIS 661 (1965).

40-14-208. Applications for reimbursement or compensation.

Each attorney seeking reimbursement or compensation under this part shall file an application with the trial court stating in detail the nature and amount of the expenses claimed, supporting the claim with receipts showing payment of the expenses and stating the nature and extent of services performed including those in connection with any preliminary hearing.
Any attorney rendering services or incurring expenses incident to any appeal and seeking compensation or reimbursement therefor shall file an application with the appellate court stating in detail the matters required in applications to trial courts and any other information as the rules of the court require.
All applications for compensation or reimbursement shall also state any payments made or to be made to the applicant by or on behalf of the accused, and the court, in fixing compensation, shall take those payments into account.
A certified copy of the court order fixing any compensation or approving any expenses under this part, along with a true copy of the attorney's application, shall be forwarded to the administrative director of the courts, who shall audit and review the order and application, and upon finding payment to be in order, process the payment of compensation and expenses out of money appropriated for that purpose.

Acts 1965, ch. 217, §§ 11-14; T.C.A., §§ 40-2024 — 40-2027; Acts 1993, ch. 66, § 53.

NOTES TO DECISIONS

1. Jurisdiction.

The statutes governing appointment and compensation of counsel for judgment defendants in the trial courts of Tennessee vest exclusive jurisdiction of all claims for compensation for such services in the trial court where the appointment was made and the services rendered, regardless of whether the claim is asserted as a contractual claim against the state of Tennessee, a statutory claim, a constitutional claim or otherwise based. Huskey v. State, 688 S.W.2d 417, 1985 Tenn. LEXIS 475 (Tenn. 1985), appeal dismissed, Huskey v. Tennessee, 474 U.S. 936, 106 S. Ct. 299, 88 L. Ed. 2d 277, 1985 U.S. LEXIS 4168 (1985).

2. Scope of Compensation.

3. Review of Fee Award.

Review of a fee award of the court of criminal appeals should be sought pursuant to T.R.A.P. 11. Huskey v. State, 688 S.W.2d 417, 1985 Tenn. LEXIS 475 (Tenn. 1985), appeal dismissed, Huskey v. Tennessee, 474 U.S. 936, 106 S. Ct. 299, 88 L. Ed. 2d 277, 1985 U.S. LEXIS 4168 (1985).

4. —No Independent Cause of Action.

With respect to services rendered in the trial court, no independent cause of action against the state of Tennessee can be pursued by a lawyer dissatisfied with the award of a fee for representing indigent defendants in the appellate courts; such a claim must be timely filed in the criminal cases wherein the services were rendered. Huskey v. State, 688 S.W.2d 417, 1985 Tenn. LEXIS 475 (Tenn. 1985), appeal dismissed, Huskey v. Tennessee, 474 U.S. 936, 106 S. Ct. 299, 88 L. Ed. 2d 277, 1985 U.S. LEXIS 4168 (1985).

5. Audit.

The audit is for the sole purpose of determining whether the statutory maximum hourly, daily and per case limitations have been observed. Huskey v. State, 688 S.W.2d 417, 1985 Tenn. LEXIS 475 (Tenn. 1985), appeal dismissed, Huskey v. Tennessee, 474 U.S. 936, 106 S. Ct. 299, 88 L. Ed. 2d 277, 1985 U.S. LEXIS 4168 (1985).

40-14-209. Reimbursement for public defenders.

The state shall reimburse counties, metropolitan governments and municipalities having public defenders for the operation of the public defenders offices in accordance with procedures and subject to the limitations provided in § 8-14-110.

Acts 1965, ch. 217, § 15; 1978, ch. 859, § 1; T.C.A., § 40-2028; Acts 1992, ch. 965, § 3.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

Section 8-14-310 referenced in this section was renumbered as 8-14-110 by the authority of the code commission in 2016.

NOTES TO DECISIONS

1. Scope of Compensation.

40-14-210. Charges for defraying costs of representing indigent defendants.

1. In every misdemeanor and felony prosecution instituted in counties having a population in excess of four hundred fifty thousand (450,000), according to the 1980 federal census or any subsequent federal census, there shall be collected a twelve-dollar-and-fifty-cent cost for the purpose of defraying the costs of legal representation and support services provided indigent defendants in criminal proceedings.
2. This section shall take effect in counties with a population of not more than seven hundred fifty thousand (750,000) and not less than four hundred fifty thousand (450,000), according to the 1980 federal census, or any subsequent federal census upon approval by two-thirds (2/3) vote of the metropolitan council of Nashville-Davidson County.
3. This section shall take effect in any county with approval by two-thirds (2/3) vote of the county legislative body.
It is the duty of the clerk of every court having jurisdiction of state misdemeanors and felonies to include in every misdemeanor and felony cost bill the twelve-dollar-and-fifty-cent charge which shall be remitted to the county government, except in counties that are part of a multiple county judicial district as defined in § 16-2-506, in which case this charge shall be remitted to the office of the executive director of the district public defenders conference for the purpose of providing supplemental funding for the office of the district public defender within that judicial district. It is the legislative intent of this subsection (b) that these funds shall not revert to the state general fund but shall instead be carried forward for the purpose for which they were originally intended.
All costs collected by county government pursuant to this section shall be used for providing representation and support services to indigent defendants in criminal proceedings.
Any county may supplement the funds of the district public defender system to represent indigent defendants in criminal prosecution. The costs collected by the county under this section shall be supplemental and in addition to any funds received under this chapter or under title 8, chapter 14, relative to public defenders, for services rendered by the public defender and assistants to the indigent.
This section does not apply to nonmoving traffic violations.
In every misdemeanor and felony prosecution in which the privilege tax for the criminal injuries compensation fund established by § 40-24-107 is also levied, the cost imposed by this section shall not be construed as having priority over collection of that privilege tax.

Acts 1982, ch. 726, § 1; T.C.A., § 40-2045; Acts 1983, ch. 343, §§ 1-3; 1988, ch. 957, §§ 1, 2; 1992, ch. 965, §§ 5, 6; 2002, ch. 691, § 1.

Compiler's Notes. For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Attorney General Opinions. State ownership of equipment purchased for public defender's office, OAG 99-033 (2/18/99).

Office of public defender a state agency, OAG 99-033 (2/18/99).

A county legislative body may not impose a cost for indigent defense purposes in an amount greater or less than $12.50 in every misdemeanor and felony prosecution, OAG 02-081 (7/19/02).

The duty to collect the cost imposed by T.C.A. § 40-14-210 applies to clerks of all courts exercising misdemeanor and felony jurisdiction, including municipal courts within the county, OAG 02-081 (7/19/02).

Part 3
Transcripts and Court Reporters

40-14-301. Part definitions.

As used in this part, unless the context otherwise requires:

“Administrative director” means the administrative director of the courts;
“Court” means any court of this state exercising jurisdiction over any criminal action which is punishable by confinement in the state penitentiary;
“Criminal case” means the trial of any criminal offense which is punishable by confinement in the state penitentiary and any proceeding for the writ of habeas corpus wherein the unlawful confinement is alleged to be in a state, county or municipal institution; and
“Judge” means the judge of any court of this state exercising jurisdiction over any criminal action which is punishable by confinement in the state penitentiary.

Acts 1965, ch. 221, § 1; T.C.A., § 40-2029; Acts 1993, ch. 66, § 54.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 7.15, 24.33, 33.101.

Law Reviews.

A Noble Idea Whose Time Has Come (Penny J. White), 18 Mem. St. U. L. Rev. 223 (1989).

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

The Theoretical Foundations of the Proposed Tennessee Rules of Appellate Procedure, III. Some Noteworthy Features of the Rules (John L. Sobieski, Jr.), 45 Tenn. L. Rev. 180 (1978).

Attorney General Opinions. Contracts between court reporters and insurance companies, OAG 99-161 (8/26/99).

NOTES TO DECISIONS

1. Purpose of Statute.

This part which provides for transcripts to be furnished indigents in felony cases is a statutory implementation of the holding of the supreme court of the United States in Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891, 1956 U.S. LEXIS 1059, 55 A.L.R.2d 1055 (1956), that destitute defendants must be afforded as adequate an appellate review as defendants who have money to buy transcripts, which means the state furnishes transcripts for indigents. Elliott v. State, 222 Tenn. 294, 435 S.W.2d 812, 1968 Tenn. LEXIS 510 (1968).

2. Denial of Motion for Court Reporter.

The denial by the trial court of a motion for a court reporter in order to have a verbatim transcript does not create automatic reversible error. State v. Hammond, 638 S.W.2d 433, 1982 Tenn. Crim. App. LEXIS 449 (Tenn. Crim. App. 1982).

40-14-302. Designation of reporters.

The judge of each court of this state shall designate one (1) or more persons to act as court reporters to serve at the pleasure of the judge. The number of reporters who may be so designated by each judge shall be determined by the administrative director.

Acts 1965, ch. 221, § 2; T.C.A., § 40-2030; Acts 1993, ch. 66, § 55.

40-14-303. Qualifications of reporters — Seminars.

The qualifications of court reporters shall be determined in accordance with standards formulated by the administrative director.
The administrative director is authorized to conduct training or educational seminars for persons designated as court reporters pursuant to § 40-14-302 and to require their attendance at training or educational seminars.

Acts 1965, ch. 221, § 3; T.C.A., § 40-2031; Acts 1985, ch. 14, § 1; 1993, ch. 66, §§ 56, 57.

40-14-304. Auxiliary reporters.

Each judge, with the approval of the administrative director, may designate auxiliary reporters who may serve when there is more reporting work than can be performed promptly by the regularly designated reporters or when the regularly designated reporters are unable to attend court. The auxiliary reporters shall be paid on a per diem basis under scales to be fixed by the administrative director.

Acts 1965, ch. 221, § 4; T.C.A., § 40-2032; Acts 1993, ch. 66, § 58.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

40-14-305. Combination of duties.

If any judge and the administrative director find that it is in the public interest that the duties of the court reporter be combined with those of any other employee of the court or of the judge of the court, the administrative director may authorize the combination of duties and fix additional compensation for the performance of the added duties of acting as court reporter.

Acts 1965, ch. 221, § 5; T.C.A., § 40-2033; Acts 1993, ch. 66, § 59.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

40-14-306. Approved reporting methods to be prescribed.

The administrative director shall prescribe or approve methods for the taking of verbatim records of proceedings under this part. Any such method shall be of a nature that an accurate written transcript can be prepared from that method.

Acts 1965, ch. 221, § 6; T.C.A., § 40-2034; Acts 1993, ch. 66, § 60.

40-14-307. Duties of designated reporter — Party permitted private reporter.

A designated reporter shall attend every stage of each criminal case before the court and shall record verbatim, by a method prescribed or approved by the administrative director, all proceedings had in open court and other proceedings as the judge may direct. The reporter shall attach the reporter's official certificate to the records so taken and promptly file them with the clerk of the court, who shall preserve them as a part of the records of the trial.
A party at the party's own expense may retain a reporter other than the reporter provided under this part to record and transcribe the proceedings and a transcript so prepared may be used for purpose of appeal, as provided by law.

Acts 1965, ch. 221, § 7; T.C.A., § 40-2035; Acts 1993, ch. 66, § 61.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 24.33.

Law Reviews.

Guidelines for Juvenile Court Practice (Andrew J. Shookhoff), 19 No. 2 Tenn. B.J. 5 (1983).

Attorney General Opinions. Audio recordings and stenographic notes of a criminal proceeding utilized by a reporter for preparing the transcript are part of the record that the reporter must file with the court clerk and the clerk is required to retain and store these recordings and notes, OAG 08-190 (12/29/08).

Pursuant to T.C.A. § 18-1-202, the clerk may dispose of audio recordings and stenographic notes of a criminal proceeding if the final disposition of the case took place more than ten years previously, OAG 08-190 (12/29/08).

NOTES TO DECISIONS

1. Official Reporter.

Under this section the official reporter shall record all proceedings in open court even where defendant employs another reporter. Layman v. State, 3 Tenn. Crim. App. 550, 464 S.W.2d 331, 1970 Tenn. Crim. App. LEXIS 407 (Tenn. Crim. App. 1970).

Obligation to provide misdemeanor defendant means to have verbatim report of trial proceedings does not fall on state unless defendant is indigent. State v. Nail, 963 S.W.2d 761, 1997 Tenn. Crim. App. LEXIS 474 (Tenn. Crim. App. 1997).

2. Denial of Motion for Court Reporter.

3. No Prejudice.

By submitting his own statement of the evidence, defendant waived any claim about the adequacy of the appellate record, and there was no objection to his statement of the evidence and thus it was deemed to have been approved under T.R.A.P. 24; furthermore, defendant did not state how he was prejudiced by the unavailable transcript under T.C.A. § 40-14-307, and he was not entitled to relief. State v. Long, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 368 (Tenn. Crim. App. May 11, 2017).

Defendant was not entitled to relief on defendant's claim that defendant was denied an audio recording of defendants' trial because the appellate court could not conclude that defendant was denied a record of sufficient completeness for purposes of appeal or that the denial of access of the recording of the trial otherwise resulted in prejudice. While defendant made a general allegation that the trial transcript omitted certain material, defendant failed to specify what that material might have been or how it related to the issues on appeal. State v. Waggoner, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 595 (Tenn. Crim. App. Sept. 24, 2019).

40-14-308. Habeas corpus proceedings.

In the event a proceeding for the writ of habeas corpus is commenced in any court which has not authorized a court reporter under this part, the judge of that court shall immediately notify the administrative director of the commencement of the proceedings and the administrative director shall immediately arrange for a court reporter to record the proceedings. In courts where habeas corpus proceedings are filed on a recurring basis, the administrative director may make arrangements for reporters without the necessity of case-by-case notification by the judge.

Acts 1965, ch. 221, § 8; T.C.A., § 40-2036; Acts 1993, ch. 66, § 62.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

40-14-309. Partial transcript of record.

Upon the direction of the court in the case of an indigent defendant or at the request of any party who has agreed to pay the fee for a transcript, a court reporter designated by the court shall transcribe from the original records the parts of the proceedings as are requested in the manner prescribed in the Tennessee Rules of Appellate Procedure.

Acts 1965, ch. 221, § 9; 1981, ch. 449, § 2; T.C.A., § 40-2037.

Compiler's Notes. This section may be affected by T.R.A.P. 24.

Cross-References. Content and preparation of record, T.R.A.P. 24.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 21.5.

Law Reviews.

The Theoretical Foundations of the Proposed Tennessee Rules of Appellate Procedure, III. Some Noteworthy Features of the Rules (John L. Sobieski, Jr.), 45 Tenn. L. Rev. 180 (1978).

NOTES TO DECISIONS

1. Application.

This section does not apply to transcripts of proceedings other than those on which the defendant is basing his appeal. Brown v. State, 1 Tenn. Crim. App. 739, 450 S.W.2d 35, 1969 Tenn. Crim. App. LEXIS 298 (Tenn. Crim. App. 1970).

While this section and § 40-14-312 expressly apply only to transcripts for the purpose of appeal, the trial judge has the authority to require a transcript of prior proceedings in indigent's own case to be furnished him if it appears necessary in the interest of justice. State v. Elliott, 524 S.W.2d 473, 1975 Tenn. LEXIS 665 (Tenn. 1975).

The free transcript doctrine would not be extended to make available to an indigent defendant the transcript of the testimony in a third party's trial of witnesses who were expected to testify against the indigent defendant. State v. Elliott, 524 S.W.2d 473, 1975 Tenn. LEXIS 665 (Tenn. 1975).

There is no Tennessee authority giving sanction to requests for a copy of the trial transcript at state expense for use in preparing a motion for a new trial, absent a showing of prejudice or citation of authority. Seelbach v. State, 572 S.W.2d 267, 1978 Tenn. Crim. App. LEXIS 326 (Tenn. Crim. App. 1978).

2. Indigency — Determination.

While this section does not in so many words provide for a hearing to determine indigency where a transcript is asked for by a defendant, the statute in providing that a reporter shall be furnished an indigent defendant “upon the direction of the court” necessarily contemplates it to be the duty of the trial judge to make a determination of the indigency upon motion or application and to act as the facts developed may require. Elliott v. State, 222 Tenn. 294, 435 S.W.2d 812, 1968 Tenn. LEXIS 510 (1968).

This section, when read in pari materia with the other sections of this chapter, by necessary implication requires the trial judge to consider and determine as in any other case of judicial discretion whether a defendant is indigent and unable to pay for a transcript of the record and to order the transcript of the record furnished on a prima facie case of poverty or if the motion is denied to state the basis of the denial in the order. Elliott v. State, 222 Tenn. 294, 435 S.W.2d 812, 1968 Tenn. LEXIS 510 (1968).

Defendant was not indigent and was not entitled to a free transcript because defendant was not indigent at the start of the proceedings, but he filed a motion to be declared indigent a year before trial. However, defendant withdrew the motion when it was challenged by the State, and when defendant requested a transcript, he did not file a new motion to be declared indigent with updated financial information. State v. Colvett, 481 S.W.3d 172, 2014 Tenn. Crim. App. LEXIS 1142 (Tenn. Crim. App. Dec. 19, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 302 (Tenn. Apr. 10, 2015).

3. Failure to Perfect Appeal.

Where a court appointed attorney failed to perfect the appeal of an indigent defendant by timely filing of the bill of exceptions such failure is due to a state agency and is a deprivation of the defendant's right to review. Nelms v. State, 219 Tenn. 727, 413 S.W.2d 378, 1967 Tenn. LEXIS 384 (1967).

4. Failure to Provide Transcript.

Where trial court no longer had jurisdiction or authority to do so, supreme court could not order trial court to certify missing parts of transcript on motion of indigent defendant charged with rape. Elliott v. State, 222 Tenn. 294, 435 S.W.2d 812, 1968 Tenn. LEXIS 510 (1968).

Where prima facie case of indigency made out by defendant in rape case was not contradicted by the record, conviction would be reversed and case remanded for new trial for failure to provide defendant with complete record including missing parts of transcript. Elliott v. State, 222 Tenn. 294, 435 S.W.2d 812, 1968 Tenn. LEXIS 510 (1968).

Where defendant was represented by able retained counsel and record did not show request for transcription of prosecution jury arguments other than that of the attorney general and record showed no impropriety in that argument, there was no error in failing to transcribe the other arguments. Fox v. State, 1 Tenn. Crim. App. 308, 441 S.W.2d 491, 1968 Tenn. Crim. App. LEXIS 124 (Tenn. Crim. App. 1969).

5. Waiver of Right.

Where motion for new trial was on grounds that evidence did not support verdict but preponderated against it and defendant's counsel approved bill of exceptions and no request was made for transcript or any part of proceedings not included in bill of exceptions, assignment of error to effect that defendant was denied constitutional rights by failure of reporter to fully prepare transcript was without merit. Green v. State, 1 Tenn. Crim. App. 719, 450 S.W.2d 27, 1969 Tenn. Crim. App. LEXIS 350 (Tenn. Crim. App. 1970).

6. Interests in Records.

The transcript of the evidence when it is filed with the clerk of the trial court becomes a record of that court and when transmitted to the clerk of the criminal court of appeals becomes a record of the criminal court of appeals, the property of the state of Tennessee, and a defendant, even though he has paid for the transcript, has no proprietary interest in the records filed in a court. State v. Watts, 670 S.W.2d 246, 1984 Tenn. Crim. App. LEXIS 2332 (Tenn. Crim. App. 1984).

40-14-310. Supervision of reporters.

The court reporters shall be subject to the supervision of the appointing judge in the performance of their duties, including dealings with the parties requesting transcripts. The administrative director may by rule prescribe reports to be filed by reporters.

Acts 1965, ch. 221, § 10; T.C.A., § 40-2038; Acts 1993, ch. 66, § 63.

40-14-311. Minimum compensation payable to court reporters.

The minimum compensation payable to court reporters with at least ten (10) years of experience or court reporters holding the designation licensed court reporter (LCR), as defined in § 20-9-602, issued by the Tennessee board of court reporting is set at the following rates:

For a full-day appearance, three hundred fifty dollars ($350); and
For a half-day appearance, one hundred seventy-five dollars ($175).

Acts 1965, ch. 221, § 11; T.C.A., § 40-2039; Acts 1993, ch. 66, § 64; 2019, ch. 467, § 1.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

Amendments. The 2019 amendment rewrote the section which read: “Each court reporter shall be compensated in accordance with schedules fixed by the administrative director within budgetary limits as provided by law.”

Effective Dates. Acts 2019, ch. 467, § 3. July 1, 2019.

40-14-312. Fees for transcripts — Transcripts for indigent defendants.

The fee rate that may be charged and collected by a court reporter for transcripts is four dollars ($4.00) per page. If the defendant prays and is granted an appeal and is determined by the trial judge to be without sufficient funds to pay for the preparation of the transcript of the proceedings, the trial judge shall direct the court reporter to furnish the defendant a complete transcript of the proceedings, the fee for which shall be paid by this state out of money appropriated for that purpose. The reporter may require any party requesting a transcript to pay the estimated fee in advance except as to transcripts which are to be paid for by this state.

Acts 1965, ch. 221, § 12; T.C.A., § 40-2040; Acts 1993, ch. 66, § 65; 2019, ch. 467, § 2.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

Amendments. The 2019 amendment rewrote the first sentence which read: “Each court reporter may charge and collect fees for transcripts at rates prescribed by the administrative director.”

Effective Dates. Acts 2019, ch. 467, § 3. July 1, 2019.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 12.47, 24.33.

Law Reviews.

Special Project: Criminal Procedure as Defined by the Tennessee Supreme Court (Julian L. Bibb and Walter Sillers Weems), 30 Vand. L. Rev. (4) 691.

NOTES TO DECISIONS

1. Application.

While this section and § 40-14-309 expressly apply only to transcripts for the purposes of appeal, the trial judge has the authority to require a transcript of prior proceedings in indigent's own case to be furnished him if it appears necessary in the interest of justice. State v. Elliott, 524 S.W.2d 473, 1975 Tenn. LEXIS 665 (Tenn. 1975).

2. Bill of Exceptions.

An indigent defendant is entitled under this section and the equal protection of laws clause of U.S. Const., amend. 14 to have a timely bill of exceptions prepared free of charge to him for purposes of appeal. State v. Wilson, 530 S.W.2d 766, 1975 Tenn. LEXIS 569 (Tenn. 1975).

3. Interests in Records.

40-14-313. Rules — Application for fees and expenses.

The administrative director shall adopt rules to implement this part, which rules shall, among other things, prescribe the form and content of applications for the payment of all court reporter fees and other expenses charged to the state under this part. All applications shall be submitted to, audited and reviewed by the administrative director and shall be paid upon the administrative director's approval of the fees and expenses.

Acts 1965, ch. 221, § 13; T.C.A., § 40-2041; Acts 1993, ch. 66, § 66.

40-14-314. Recording equipment.

The administrative director is authorized, upon a determination of a need therefor and upon certification of a judge that no qualified court reporter is available to record the proceedings in any court in the judge's district, to purchase, out of money appropriated for that purpose, the recording equipment as may be necessary to carry out the purpose of this part and to formulate all necessary rules and regulations for its use, maintenance and replacement. Any certification by a judge and determination of need by the administrative director shall be reviewed not less than annually. If a qualified court reporter should become available to attend the court, it is the duty of the judge so to certify to the administrative director. Any recording equipment purchased under this section shall remain the property of the state of Tennessee and be under the direct control and supervision of the administrative director.

Acts 1965, ch. 221, § 14; T.C.A., § 40-2042; Acts 1993, ch. 66, § 67.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

NOTES TO DECISIONS

1. Record Typed from Recording.

Utilization of recording equipment with records being later typed by a clerk who was not present during the trial was not improper where provision was made for such method in accordance with the statute. Hunter v. State, 222 Tenn. 672, 440 S.W.2d 1, 1969 Tenn. LEXIS 471 (1969).

40-14-315. Contracts authorized for verbatim transcripts without using court reporters.

Whenever the administrative director and the judge or judges in a particular area determine that accurate verbatim transcripts could be more economically, expeditiously and efficiently provided in the particular area by entering into contracts for that purpose rather than by utilizing the designation of court reporters as provided in this part, then, in those instances, the administrative director is authorized to enter into those contracts for and on behalf of the state of Tennessee on the terms and conditions as the administrative director deems appropriate for the accomplishment of the purposes of this part.

Acts 1965, ch. 221, § 15; T.C.A., § 40-2043; Acts 1993, ch. 66, § 68.

NOTES TO DECISIONS

1. Record Typed from Recording.

40-14-316. Use of videotape equipment during preliminary stages preceding trial.

In addition to the use of videotape equipment to record court proceedings as set forth within Supreme Court Rule 26, the supreme court is authorized and encouraged to permit, in appropriate situations, the use of video equipment and recordings during the preliminary stages preceding trial for any criminal offense including, but not necessarily limited to, bail hearings, arraignments, hearings wherein a defendant's guilty plea is entered and accepted by the court without trial, and other proceedings before the criminal court preliminary to trial.

Acts 1997, ch. 314, § 1.

40-14-317. Defendant in criminal case entitled to court reporter.

Notwithstanding the Tennessee Supreme Court Rules, Rule 26 or any other law to the contrary, a defendant in a criminal case, as defined by § 40-14-301, is entitled to have a court reporter pursuant to § 40-14-302, or a licensed court reporter pursuant to title 20, chapter 9, part 6 to record verbatim all proceedings that occur in open court and such other proceedings as the judge may direct.

Acts 2011, ch. 188, § 1.

Compiler's Notes. Acts 2011, ch. 188, § 2 provided that the act, which enacted this section, shall apply to all criminal trials occurring on or after July 1, 2011.

Chapter 15
Pretrial Diversion

40-15-101. Default of defendant.

When a capias has been returned not to be found, and in felony cases when, before or after conviction, the defendant breaks jail or forfeits the bond for appearance, the court may strike the cause from the docket, and give judgment against the state for the costs as the state is bound to pay in case of nolle prosequi or acquittal of the defendant.
The cause shall not be discontinued by such judgment. If the defendant is afterwards taken or comes into the state, a capias or other process shall run against the defendant and the case be proceeded with as if it had not been stricken from the docket.

Code 1858, §§ 5193, 5194; Shan., §§ 7157, 7158; Code 1932, §§ 11719, 11720; T.C.A. (orig. ed.), §§ 40-2103, 40-2104.

Compiler's Notes. Acts 2011, ch. 484, § 3 provided that the act, which amended § 40-15-105(a)(1)(B) and § 40-35-313(a)(1)(B)(i), shall not apply to the eligibility of a person for suspension of prosecution pursuant to title 40, chapter 15, part 1 if the offense for which such person is charged was committed prior to July 1, 2011. The law in effect at the time shall govern such person.

Acts 2011, ch. 484, § 4 provided that the act, which amended § 40-15-105(a)(1)(B) and § 40-35-313(a)(1)(B)(i), shall govern the eligibility of a person for suspension of prosecution pursuant to title 40, chapter 15 for any person charged with an offense that was committed on or after July 1, 2011.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 22.36.

Law Reviews.

1985 Tennessee Survey: Selected Developments in Tennessee Law, 53 Tenn. L. Rev. 351 (1986).

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

Attorney General Opinions. Authority of board of probation and parole to supervise individuals on pretrial diversion. OAG 10-07, 2010 Tenn. AG LEXIS 7 (1/22/10).

NOTES TO DECISIONS

1. Fees.

Where a misdemeanor case is stricken from the docket, the district attorney general, sheriff, clerk and state's witnesses are entitled to their fees as in case of nolle prosequi or acquittal, to be taxed against the county. State v. Farris, 72 Tenn. 183, 1879 Tenn. LEXIS 15 (1879). But see State ex rel. Donaldson v. Walker, 101 Tenn. 236, 47 S.W. 417, 1898 Tenn. LEXIS 56 (1898).

District attorney is not entitled to any fee where a nolle prosequi is entered in misdemeanor case and the county is taxed with the costs. State ex rel. Donaldson v. Walker, 101 Tenn. 236, 47 S.W. 417, 1898 Tenn. LEXIS 56 (1898).

2. Recapture.

If after an escape the prisoner is returned into custody, the case may be proceeded with as if not stricken, and judgment may be rendered against him for costs. Johnson v. State, 157 Tenn. 528, 12 S.W.2d 388, 1928 Tenn. LEXIS 215 (1928).

40-15-102. Pretrial diversion meetings.

The parties to any possible criminal trial may meet to discuss the possibility of pretrial diversion as contained in this part.

Acts 1975, ch. 352, § 1; T.C.A., § 40-2105.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 11.5, 11.6, 11.42.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 3-11-6 — 3-11-8.

NOTES TO DECISIONS

1. Judicial Function.

The statutory scheme of pretrial diversion is judicial in character in that it involves a procedural alternative to prosecution and a disposition by normal methods. Dearborne v. State, 575 S.W.2d 259, 1978 Tenn. LEXIS 687 (Tenn. 1978).

2. Time for Pretrial Diversion.

Pretrial diversion is not a mere extension of the charging process. The statutory scheme may not be invoked until after indictment. Dearborne v. State, 575 S.W.2d 259, 1978 Tenn. LEXIS 687 (Tenn. 1978).

The plan of diversion, or the denial of diversion, follows indictment and comes after the prosecutor has fully discharged all discretionary functions and after the prosecutorial die has been cast. Dearborne v. State, 575 S.W.2d 259, 1978 Tenn. LEXIS 687 (Tenn. 1978).

3. Abuse of Discretion.

Refusal of district attorney general to consider personal eligibility of defendant for pretrial diversion, and denial of pretrial diversion based solely on the incidence of larcenies in the county in the recent past constituted an abuse of prosecutorial discretion. State v. Hammersley, 650 S.W.2d 352, 1983 Tenn. LEXIS 646 (Tenn. 1983).

4. Factors for Consideration.

Categories of information that are to be considered when deciding whether probation or diversion is warranted are: attitude, behavior since arrest, prior record, home environment, current drug usage, current alcohol usage, emotional stability, past employment, general reputation, marital stability, family responsibility and attitude of law enforcement. State v. Hammersley, 650 S.W.2d 352, 1983 Tenn. LEXIS 646 (Tenn. 1983).

Any factors which tend to accurately reflect whether a particular defendant will or will not become a repeat offender should be considered in determining whether to enter into a memorandum of understanding under the pretrial diversion statute. Such factors must, of course, be clearly articulable and stated in the record in order that meaningful appellate review may be had. State v. Hammersley, 650 S.W.2d 352, 1983 Tenn. LEXIS 646 (Tenn. 1983); State v. Herron, 767 S.W.2d 151, 1989 Tenn. LEXIS 45 (Tenn. 1989), overruled in part, State v. Yancey, 69 S.W.3d 553, 2002 Tenn. LEXIS 45 (Tenn. 2002).

Deterrence should be considered in pretrial diversion cases in the same manner as has been approved for consideration in probation cases. State v. Hammersley, 650 S.W.2d 352, 1983 Tenn. LEXIS 646 (Tenn. 1983); State v. Perry, 882 S.W.2d 357, 1994 Tenn. Crim. App. LEXIS 80 (Tenn. Crim. App. 1994).

Evidence supported prosecutor's denial of applications for pretrial diversion where one applicant provided no information and the other application simply listed defendant's birth date, place of last employment, prior criminal record, the fact he was married with two children, and that he had a drinking problem. State v. Baxter, 868 S.W.2d 679, 1993 Tenn. Crim. App. LEXIS 201 (Tenn. Crim. App. 1993).

Where defendant was indicted for falsely representing himself as a lawyer, impersonating a licensed professional, and aggravated perjury, the district attorney general properly considered circumstances surrounding the surrender of defendant's law license in another state and uncharged offenses in evaluating his application for pretrial diversion. State v. Pinkham, 955 S.W.2d 956, 1997 Tenn. LEXIS 570 (Tenn. 1997).

Denial of defendant's pretrial diversion was appropriate under T.C.A. §§ 40-15-102 — 40-15-107, because, as an attorney, defendant committed at least sixteen acts of theft or fraudulent use of credit cards, he abused a position of trust, and he did not make restitution until immediately before his writ of certiorari hearing; it was possible to have concluded that those negative factors weighed against the positive issues in considering the possibility of pretrial diversion. State v. Brooks, 228 S.W.3d 640, 2006 Tenn. Crim. App. LEXIS 960 (Tenn. Crim. App. Dec. 6, 2006), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 386 (Tenn. Apr. 23, 2007).

40-15-103. Deferring pending proceedings.

Upon stipulation of the parties, the court shall defer for a reasonable time any pending proceedings in the prosecution so that the procedures under §§ 40-15-102 — 40-15-105 may be pursued.

Acts 1975, ch. 352, § 2; T.C.A., § 40-2106.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 11.5, 24.90.

40-15-104. Pretrial investigation.

Upon stipulation of the parties, the trial court by order may direct any county, municipal or authorized private agency, available for this purpose, or the department of correction if no local agency is available, to conduct an investigation of the defendant's background. In counties having a metropolitan form of government and in counties having a population of over six hundred thousand (600,000), according to the 1970 federal census or any subsequent federal census, the county, municipal or authorized private agency shall conduct any investigation of the defendant's background, but, this sentence shall be implemented within the existing level of funding to the department of correction. The order shall specify the purpose and scope of the procedure and the matters to be covered, and shall direct that the results of any investigation be embodied in a written report, copies of which shall be made available to the parties.
In counties where there is a pretrial release program in operation, the agency responsible for the operation of that program shall be the agency to conduct the background investigation ordered by the court, and the order shall so stipulate. In counties which have a local county probation officer paid for by local funds, the county probation officer shall be the agency responsible for conducting the background investigation as ordered by the trial court.

Acts 1975, ch. 352, § 3; 1979, ch. 396, §§ 1-3; T.C.A., § 40-2107; Acts 1998, ch. 1049, §§ 17, 18; 2012, ch. 727, § 11.

For the preamble to the act concerning transfers of certain functions relating to probation and parole services and the community correction grant program from the board of probation and parole to the department of correction, please refer to Acts 2012, ch. 727.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended subsection (a), shall be fully accomplished on or before January 1, 2013.

For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 11.5, 11.6.

NOTES TO DECISIONS

1. Construction.

T.C.A. § 40-15-104 does not contemplate that the state agencies be burdened to investigate every case to determine if there are grounds for diversion. State v. Lovvorn, 691 S.W.2d 574, 1985 Tenn. Crim. App. LEXIS 2561 (Tenn. Crim. App. 1985).

2. Authority to Order Investigations.

The district attorney alone has no authority to order any of the specified agencies to conduct the investigation authorized by T.C.A. § 40-15-104. State v. Lovvorn, 691 S.W.2d 574, 1985 Tenn. Crim. App. LEXIS 2561 (Tenn. Crim. App. 1985).

40-15-105. Memorandum of understanding — Suspended prosecution.

1. 1. A qualified defendant may, by a memorandum of understanding with the prosecution, agree that the prosecution will be suspended for a specified period, not to exceed two (2) years from the filing of the memorandum of understanding. As a condition of this suspension, the qualified defendant shall agree to pay ten dollars ($10.00) per month as part payment of expenses incurred by the agency, department, program, group or association in supervising the defendant. The payments shall be made to the agency, department, program, group or association responsible for the supervision of defendant.
  2. For purposes of this section, “qualified defendant” means a defendant who meets each of the following requirements:
    1. The defendant has not previously been granted pretrial diversion under this chapter or judicial diversion under § 40-35-313;
    2. The defendant does not have a prior conviction for a Class A or B misdemeanor or for any class of felony; and
    3. The charged offense for which the prosecution is being suspended is not a felony or any of the following offenses:
      1. Driving under the influence of an intoxicant as prohibited by § 55-10-401;
      2. Any misdemeanor sexual offense prohibited by title 39, chapter 13, part 5;
      3. Conspiracy, under § 39-12-103, to commit any Class E felony sexual offense prohibited by title 39, chapter 13, part 5;
      4. Criminal attempt, under § 39-12-101, to commit any Class E felony sexual offense prohibited by title 39, chapter 13, part 5;
      5. Solicitation, under § 39-12-102 to commit any Class D or Class E felony sexual offense prohibited by title 39, chapter 13, part 5;
      6. Child abuse or child neglect or endangerment as prohibited by § 39-15-401;
      7. Domestic assault as prohibited by § 39-13-111; or
      8. Any misdemeanor offense committed by any elected or appointed person or employee in the executive, legislative, or judicial branch of the state or any political subdivision of the state, which offense was committed in the person's official capacity or involved the duties of the person's office.
  3. Notwithstanding the provisions of subdivision (a)(1)(A) to the contrary, in any county having a population in excess of eight hundred thousand (800,000), according to the 1990 federal census or any subsequent federal census, the defendant shall pay a fee of not less than ten dollars ($10.00) nor more than thirty-five dollars ($35.00) per month, as determined by the court.
2. Prosecution of the defendant shall not be suspended unless the parties in the memorandum of understanding also agree that the defendant observe one (1) or more of the following conditions during the period in which the prosecution is suspended:
  1. That the defendant not commit any offense;
  2. That the defendant not engage in specified activities, conduct and associations bearing a relationship to the conduct upon which the charge against the defendant is based;
  3. That the defendant participate in a supervised rehabilitation program which may include treatment, counseling, training and education;
  4. That in the proper case the defendant make restitution in a specified manner for harm or loss caused by the offense, if restitution is within the defendant's capabilities;
  5. That the defendant pay court costs in a specified manner;
  6. That the defendant pay, in addition to the payment of ten dollars ($10.00) per month required by this section, any or all additional costs of the defendant's supervision, counseling or treatment in a specified manner based upon the defendant's ability to pay;
  7. That the defendant reside in a designated place including, but not limited to, a residential facility for persons participating in a particular program of rehabilitation if residence there is necessary in order to participate fully in the program;
  8. That the defendant behave in any specified manner consistent with good citizenship or other terms and conditions as may be agreed upon by the parties; and
  9. 1. That for any memorandum entered into on or after July 1, 2014, the defendant use a transdermal monitoring device or other alternative monitoring device if, in the opinion of the district attorney general, the defendant's use of alcohol or drugs was a contributing factor in the defendant's unlawful conduct. If a memorandum entered into on or after July 1, 2016, requires the use of a transdermal monitoring device or other alternative monitoring device, before approving the memorandum, the judge shall determine if the defendant is indigent. If the court determines the defendant is indigent, the court shall order that the portion of the costs of the device that the person is unable to pay be paid by the electronic monitoring indigency fund, established in § 55-10-419;
    2. As used in this subdivision (a)(2)(I), “transdermal monitoring device” means any device or instrument that is attached to the person, designed to automatically test the alcohol or drug content in a person by contact with the person's skin at least once per one-half (½) hour regardless of the person's location, and which detects the presence of alcohol or drugs and tampering, obstructing, or removing the device.
3. The memorandum of understanding may include stipulations concerning the admissibility in evidence of specified testimony, evidence or depositions if the suspension of the prosecution is terminated and there is a trial on the charge. The memorandum of understanding shall also include a statement of the defendant's version of the facts of the alleged offenses. The defendant's statement of the facts relative to the charged offenses shall not be admissible as substantive evidence in any civil or criminal proceeding against the defendant who made the statement. However, evidence of the statement is admissible as impeachment evidence against the defendant who made the statement in any criminal proceeding resulting from the termination of the memorandum of understanding pursuant to subsection (d). No other confession or admission of the defendant obtained during the pendency of and relative to the charges contained in the memorandum of understanding shall be admissible in evidence for any purpose, other than cross-examination of the defendant. The memorandum of understanding shall be in writing signed by the parties and shall state that the defendant waives the right to a speedy trial, and the right to be indicted at any particular term of court and after July 1, 2004, if the individual is charged with a violation of a criminal statute the elements of which constitute abuse, neglect or misappropriation of the property of a vulnerable person as defined in § 68-11-1002, the memorandum of understanding or diversion order contains a provision that the individual agrees without contest or any further notice or hearing that the individual's name shall be permanently placed on the registry governed by § 68-11-1003, a copy of which shall be forwarded to the department of health. This filing shall toll any applicable statute of limitations during the pendency of the diversionary period.
4. The pretrial diversion procedures are authorized and a memorandum of understanding may be permitted in the municipal courts of home rule municipalities where the defendant is charged with a misdemeanor and does not have a previous misdemeanor or felony conviction within the five-year period after completing the sentence or probationary program for the prior conviction. The procedures in those municipal courts shall be subject to the same terms and conditions, including those related to expenses and costs, as set forth in this subsection (a), and any expenses and costs paid by the defendants shall be paid to the clerk of the municipal court in which the proceedings were held.
1. Promptly after the memorandum of understanding is made, the prosecuting attorney shall file it with the court, together with a notice stating that pursuant to the memorandum of understanding of the parties under this section and §§ 40-15-102 — 40-15-104, the prosecution is suspended for a period specified in the notice. Upon this filing, if the defendant is in custody, the defendant may be released on bond or on the defendant's promise to appear if the suspension of prosecution is terminated and there is a trial on the charge. The memorandum of understanding must be approved by the trial court before it is of any force and effect.
2. The trial court shall approve the memorandum of understanding unless the:
  1. Prosecution has acted arbitrarily and capriciously;
  2. Memorandum of understanding was obtained by fraud;
  3. Diversion of the case is unlawful; or
  4. Certificate from the Tennessee bureau of investigation required by § 40-15-106 is not attached.
3. The defendant shall have a 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 committed an abuse of discretion in failing to divert, the trial court may order the prosecuting attorney to place the defendant in a diversion status on the terms and conditions as the trial court may order. A defendant's diversion under such terms and circumstances may be terminated as provided by subsection (d) and shall be subject to all other provisions of this section.
The parties by mutual consent may modify the terms of the memorandum of understanding at any time before its termination. Nothing in this section shall prohibit a behavioral contract or agreement setting out behavior or goals expected of and to be achieved by the defendant made between a counselor and defendant, but that agreement need not be filed with the court.
The memorandum of understanding shall be terminated and the prosecution may resume as if there had been no memorandum of understanding if either the defendant or prosecuting attorney files a notice that the memorandum of understanding is terminated. If the memorandum of understanding is terminated by the prosecution, the defendant may petition the court to review the action of the prosecution to determine whether the prosecution acted arbitrarily, capriciously or abused its discretion to terminate. If the court so finds, it may order the defendant reinstated under the defendant's memorandum of understanding or order the pending charges dismissed with or without jeopardy attaching.
The trial court shall dismiss with prejudice any warrant or charge against the defendant upon the expiration of ninety (90) days after the expiration of the period of suspension specified in the memorandum of understanding is filed; provided, that no termination of the memorandum of understanding has been filed under subsection (d). If the prosecution is dismissed with prejudice, jeopardy shall attach and the court shall make a minute entry to that effect. Upon dismissing any warrant or charge against the defendant pursuant to this section, the judge shall send or cause to be sent a copy of the order of dismissal to the Tennessee bureau of investigation for entry into its expunged criminal offender and pretrial diversion database; provided, however, that the court shall not be required to send to the bureau a copy of any dismissal order dated on or after July 1, 1999, if the charge dismissed is classified as a Class B or C misdemeanor. The order of dismissal shall include the name of the defendant, the defendant's date of birth and social security number, the offense for which diversion was granted, the date diversion was granted and the date the charge or warrant was dismissed.

Acts 1975, ch. 352, § 4; 1976, ch. 643, §§ 1-4; 1979, ch. 376, §§ 1-3; 1980, ch. 746, §§ 1-4; 1981, ch. 439, §§ 1-3; T.C.A. § 40-2108; Acts 1983, ch. 193, §§ 1-3; 1984, ch. 576, § 1; 1990, ch. 980, § 20; 1993, ch. 281, § 1; 1995, ch. 508, § 1; 1997, ch. 456, § 1; 1998, ch. 1099, §§ 1-5; 2000, ch. 645, § 1; 2000, ch. 813, §§ 2-6; 2003, ch. 323, § 1; 2004, ch. 780, § 8; 2007, ch. 471, §§ 1-3; 2011, ch. 484, § 1; 2012, ch. 766, § 1; 2014, ch. 567, § 1; 2016, ch. 586, § 1; 2016, ch. 993, § 12; 2017, ch. 93, § 1; 2018, ch. 1046, § 3.

Compiler's Notes. Acts 2000, ch. 813, § 8, provided that the amendments to this section apply to applicable offenses committed on or after July 1, 2000.

Acts 2011, ch. 484, § 3 provided that the act, which amended § 40-15-105(a)(1)(B) and § 40-35-313(a)(1)(B)(i), shall not apply to the eligibility of a person for suspension of prosecution pursuant to title 40, chapter 15, part 1 if the offense for which such person is charged was committed prior to July 1, 2011. The law in effect at the time shall govern such person.

Acts 2014, ch. 567, § 6 provided that the act, which added subdivision (a)(2)(I), shall be known and may be cited as “Amelia's Law”.

Acts 2018, ch. 1046, § 12 provided that the act, which amended this section, shall apply to offenses committed on or after July 1, 2018.

For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Amendments. The 2017 amendment inserted “or employee” in (a)(1)(B)(iii)(h).

The 2018 amendment substituted “electronic monitoring indigency” for “DUI monitoring” preceding “fund” in (a)(2)(I)(i).

Effective Dates. Acts 2017, ch. 93, § 2. July 1, 2017.

Acts 2018, ch. 1046, § 12. July 1, 2018.

Cross-References. Penalties for Class A, B or C misdemeanors, § 40-35-111.

Penalties for Class D or E felonies, § 40-35-111.

Rule Reference. This section is referred to in Rule 38 of the Tennessee Rules of Criminal Procedure.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 11.2, 11.3, 11.20, 11.21, 11.23, 11.24, 11.25, 11.41, 11.42, 11.45.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, §§ 23, 24, 43.

Attorney General Opinions. Defendant's liability for court costs in pretrial diversion program, OAG 04-099 (6/24/04).

DUI conviction cannot be expunged through a pretrial diversion program or through judicial diversion, OAG 05-041 (4/5/05).

Pretrial diversion and judicial diversion are available to defendants only as prejudgment procedures, OAG 06-008 (1/10/06).

Authority of board of probation and parole to supervise individuals on pretrial diversion. OAG 10-07, 2010 Tenn. AG LEXIS 7 (1/22/10).

Constitutionality of amendments by Acts 2012, ch. 766 regarding exclusion of public officials from pretrial or judicial diversion. OAG 12-76, 2012 Tenn. AG LEXIS 72 (7/25/12).

“Elected or appointed person” as used in T.C.A. § 40-15-105(a)(1)(B)(iii)(h) includes only public employees who have been elected or appointed to their respective positions in the executive, legislative, or judicial branch of state government. OAG 17-05, 2017 Tenn. AG LEXIS 5 (1/19/2017).

NOTES TO DECISIONS

1. Constitutionality.

The provisions in subsection (b) relating to approval of the memorandum of understanding by the trial judge do not violate the separation of powers provisions of Tenn. Const., art. II, §§ 1 and 2 because the grant of authority to the judge confirms in him the power and responsibility to review a memorandum to determine if there has been an abuse of prosecutorial discretion. Pace v. State, 566 S.W.2d 861, 1978 Tenn. LEXIS 563 (Tenn. 1978).

The provisions in subsection (b) providing for review by the trial judge of a refusal by the prosecutor to divert is not invalid for vagueness, because the prosecutor's discretion must be exercised so as to serve the interests of justice and that is a sufficient standard for the judge to apply on review. Pace v. State, 566 S.W.2d 861, 1978 Tenn. LEXIS 563 (Tenn. 1978).

Any defects, under Tenn. Const., art. II, § 17, in the caption of the 1976 act amending this section were cured through subsequent action of the legislature codifying the amendment. Pace v. State, 566 S.W.2d 861, 1978 Tenn. LEXIS 563 (Tenn. 1978).

The diversion statute is constitutional. Blackwell v. State, 605 S.W.2d 832, 1980 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. 1980).

2. Legislative Intent.

Exception of driving under the influence of an intoxicant (DUI) cases from eligibility for pretrial diversion clearly manifests a legislative policy treating DUI offenses more seriously than other misdemeanors. Daniels v. Alcoa, 732 F. Supp. 1467, 1989 U.S. Dist. LEXIS 16951 (E.D. Tenn. 1990).

3. Effect of Diversion.

By deliberate design, invocation of the diversion statute avoids the consequences of a public prosecution and conviction, and thus any “deterrent effect” on others in the community is intentionally minimized or eliminated; on the other hand, a “deterrent value” to the individual defendant comes as the result of the program itself, which should be devised to encourage the defendant's rehabilitation, where necessary, and to ensure that he or she will not be the subject of criminal charges in the future. Blackwell v. State, 605 S.W.2d 832, 1980 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. 1980).

4. Availability of Relief.

It was not intended that this extraordinary relief be granted routinely to first offenders but only to those who can show that they were above-the-average citizens before impulsively committing an offense and that they can be relied upon to practice good citizenship in the future without the deterrent effects of trial and punishment. State v. Poplar, 612 S.W.2d 498, 1980 Tenn. Crim. App. LEXIS 347 (Tenn. Crim. App. 1980).

The true intention in Poplar, 612 S.W.2d 498, 1980 Tenn. Crim. App. LEXIS 347, (Tenn. Crim. App. 1980), was to describe a person whose criminal conduct is uncharacteristic of his prior social history, who has demonstrated in some manner an ability to undertake and carry through on the ordinary obligations of the society, and who has a present ability and incentive to act within the law without the deterrent effect of a public trial. State v. Nease, 713 S.W.2d 90, 1986 Tenn. Crim. App. LEXIS 2294 (Tenn. Crim. App. 1986).

The court has never required that a candidate have achieved some elevated status to be eligible for pretrial diversion; and the phrase “above-the-average citizens” in Poplar, 612 S.W.2d 498, 1980 Tenn. Crim. App. LEXIS 347, (Tenn. Crim. App. 1980), because it lends itself to an unintended construction, should be abandoned. State v. Nease, 713 S.W.2d 90, 1986 Tenn. Crim. App. LEXIS 2294 (Tenn. Crim. App. 1986).

Pretrial diversion is not permitted for offenses carrying a potential of more than 10 years in prison; for a trial court to allow a district attorney to do indirectly (dismiss or retire a charge which has the potential of carrying more than 10 years imprisonment so as to allow diversion on a second charge) what the statute will not allow him to do directly would be erroneous. State v. Landers, 723 S.W.2d 950, 1987 Tenn. LEXIS 819 (Tenn. 1987), superseded by statute as stated in, State v. Layman, 214 S.W.3d 442, 2007 Tenn. LEXIS 35 (Tenn. 2007), overruled in part, State v. Layman, 214 S.W.3d 442, 2007 Tenn. LEXIS 35 (Tenn. 2007).

Where the record did not reflect any manifest public interest sufficient to merit the trial court's restraint of the state's discretion, but rather the trial court seemed to have merely substituted its judgment for the state's regarding which of two indictments should be pursued, the trial court abused its discretion in denying the state's motion to nolle prosequi the original indictment; such a unilateral check of prosecutorial discretion without apparent or articulated justification was beyond the trial court's authority. State v. Harris, 33 S.W.3d 767, 2000 Tenn. LEXIS 690 (Tenn. 2000).

5. —Mistrial.

Where a mistrial has been declared there is no reason why the defendant cannot again seek pretrial diversion. State v. Spears, 780 S.W.2d 776, 1989 Tenn. Crim. App. LEXIS 344 (Tenn. Crim. App. 1989).

6. —Burden of Proof.

The burden of proof is upon the defendant to show that he is entitled to this extraordinary relief. State v. Poplar, 612 S.W.2d 498, 1980 Tenn. Crim. App. LEXIS 347 (Tenn. Crim. App. 1980).

The burden is upon the defendant who desires to be considered for diversion to provide the prosecuting attorney with sufficient background information and data to enable that officer to make a reasoned decision to grant or deny the relief sought. This information may be supplemented by the pretrial investigation authorized by T.C.A. § 40-15-104, but the investigation does not lessen the obligation of an applicant to endeavor to show beforehand that he is an appropriate subject for diversion. State v. Herron, 767 S.W.2d 151, 1989 Tenn. LEXIS 45 (Tenn. 1989), overruled in part, State v. Yancey, 69 S.W.3d 553, 2002 Tenn. LEXIS 45 (Tenn. 2002).

7. Standards for Determining Eligibility.

The standards to be applied in diversion cases are substantially similar to those used in deciding whether to grant a suspended sentence. Blackwell v. State, 605 S.W.2d 832, 1980 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. 1980).

The same criteria fixed by law for determining eligibility for a probated or suspended sentence should also be used by the district attorney general in determining eligibility for pretrial diversion. State v. Poplar, 612 S.W.2d 498, 1980 Tenn. Crim. App. LEXIS 347 (Tenn. Crim. App. 1980).

Since the Pretrial Diversion Act, title 40, ch. 15, relieves the defendant of the burden of being tried or convicted of a crime, though guilty of violating the criminal law, the criteria should be more stringently applied to diversion applicants than probation applicants. State v. Poplar, 612 S.W.2d 498, 1980 Tenn. Crim. App. LEXIS 347 (Tenn. Crim. App. 1980).

To require a plea of guilty prior to placement of a defendant on pretrial diversion would amount to supplanting this program with probation, and would totally defeat the legislative purpose of the pretrial diversion statutes. State v. King, 640 S.W.2d 30, 1982 Tenn. Crim. App. LEXIS 389 (Tenn. Crim. App. 1982).

A requirement by the district attorney general that a defendant enter a plea of guilty as a prerequisite to pretrial diversion constitutes an abuse of discretion in violation of the provisions of this section. State v. Anderson, 645 S.W.2d 251, 1982 Tenn. Crim. App. LEXIS 479 (Tenn. Crim. App. 1982).

Because statutory rape was not an enumerated sexual offense at the time of the offense, defendant was not disqualified from seeking pretrial diversion. State v. Stephens, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 541 (Tenn. Crim. App. July 7, 2015), rev'd, 497 S.W.3d 408, 2016 Tenn. LEXIS 533 (Tenn. Aug. 23, 2016).

8. Factors for Consideration.

Restitution to an aggrieved party is manifestly a legitimate consideration in the prosecutor's evaluation of a defendant's eligibility for pretrial diversion. The fact that a bankrupt contractor's eligibility for pretrial diversion was at one time apparently contingent upon his restitution for an obligation from which he had been discharged in bankruptcy does not establish a prima facie case of bad faith on the part of the prosecution in attempting to prosecute the contractor under § 66-11-138 for misapplication of contract payments. In re Wilson, 30 B.R. 91, 1983 Bankr. LEXIS 6395 (Bankr. E.D. Tenn. 1983).

If the decision is made to grant the application for pretrial diversion, the factors upon which that determination is made should be included in the memorandum of understanding for the benefit of the trial judge who must approve it, to provide a basis for his decision. State v. Herron, 767 S.W.2d 151, 1989 Tenn. LEXIS 45 (Tenn. 1989), overruled in part, State v. Yancey, 69 S.W.3d 553, 2002 Tenn. LEXIS 45 (Tenn. 2002).

When deciding whether to grant pretrial diversion, the district attorney should consider the following factors: (1) The circumstances of the offense; (2) The defendant's criminal record, social history and present condition including mental and physical conditions if appropriate; (3) The deterrent effect of punishment on other criminal activity; (4) The defendant's amenability to correction; and (5) The likelihood that pretrial diversion will serve the ends of justice and the best interests of both the public and the defendant. State v. Skidmore, 15 S.W.3d 502, 1999 Tenn. Crim. App. LEXIS 771 (Tenn. Crim. App. 1999).

Defendant's unwillingness to admit wrongdoing and assume responsibility for his or her actions is relevant in assessing a defendant's amenability to correction and whether pretrial diversion will satisfy the need for deterrence and serve the ends of justice. Stanton v. State, 395 S.W.3d 676, 2013 Tenn. LEXIS 83 (Tenn. Jan. 23, 2013).

Assistant district attorney general did not abuse his discretion in denying defendant's application for pretrial diversion; while defendant was not required to admit he violated the animal cruelty law, T.C.A. § 39-14-202, his failure to admit wrongdoing or to accept responsibility for his actions was a relevant consideration in determining his qualification for pretrial diversion. Stanton v. State, 395 S.W.3d 676, 2013 Tenn. LEXIS 83 (Tenn. Jan. 23, 2013).

Assistant district attorney general, in denying defendant's application for pretrial diversion, properly considered a civil judgment against defendant's corporation and his regulatory violations, as they were relevant to show a lack of respect for rules, regulations, and laws and reflected negatively on defendant's amenability to correction. Stanton v. State, 395 S.W.3d 676, 2013 Tenn. LEXIS 83 (Tenn. Jan. 23, 2013).

9. Maximum Punishment.

For T.C.A. § 40-15-105(a)(1) diversion purposes, which provides that crimes carrying a possible maximum sentence of 10 years or more shall not be subject to diversion, in burglary in the second degree cases the maximum punishment of 15 years as provided in T.C.A. § 39-3-403 (repealed) was applicable, and not the maximum possible punishment of nine years as provided in T.C.A. § 40-35-109(a) (repealed). State v. Nease, 713 S.W.2d 90, 1986 Tenn. Crim. App. LEXIS 2294 (Tenn. Crim. App. 1986).

A Class B felony is not eligible for pretrial diversion. State v. Brooks, 943 S.W.2d 411, 1997 Tenn. Crim. App. LEXIS 31 (Tenn. Crim. App. 1997).

10. Admissibility in Evidence.

The restriction in T.C.A. § 40-15-105 against the later use of an accused's confessions or admissions against interest applies only to criminal trials involving the same charge contained in the memorandum of understanding; it does not apply to later civil proceedings. Pizzillo v. Pizzillo, 884 S.W.2d 749, 1994 Tenn. App. LEXIS 302 (Tenn. Ct. App. 1994).

Admissions against interest contained in a memorandum of understanding that was part of a criminal record expunged following defendant's successful completion of a pretrial diversion program were inadmissible in a subsequent civil action. Pizzillo v. Pizzillo, 884 S.W.2d 749, 1994 Tenn. App. LEXIS 302 (Tenn. Ct. App. 1994).

11. Cases Not Exempted.

Court refused to conclude that the legislature intended to exempt driving under the influence of an intoxicant (DUI) cases from the operation of the pretrial diversion statute merely because there is a recidivist provision applicable to subsequent DUI convictions. Blackwell v. State, 605 S.W.2d 832, 1980 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. 1980).

The diversion statute creates a potential for rehabilitation far greater than the rehabilitative potential of the minimal incarceration usually imposed for first offense for driving under the influence (DUI). Blackwell v. State, 605 S.W.2d 832, 1980 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. 1980).

The general assembly in enacting T.C.A. § 40-35-109(a) (repealed) did not intend to create an exception to T.C.A. § 40-15-105(a)(1) when the status of an offender would, after conviction, result in an effective maximum punishment of 10 years or less. State v. Hurlburt, 713 S.W.2d 89, 1986 Tenn. Crim. App. LEXIS 2251 (Tenn. Crim. App. 1986).

12. Nondivertible Offenses.

In a prosecution for vehicular assault, holding that the charge was a nondivertible offense was proper because driving under the influence (DUI) (at the time nondivertible pursuant to T.C.A. § 40-15-105) was a lesser included offense of vehicular assault and the prohibition of pretrial diversion for DUI applied to vehicular assault as well. State v. Burdine, 888 S.W.2d 463, 1994 Tenn. Crim. App. LEXIS 377 (Tenn. Crim. App. 1994), appeal denied, — S.W.2d —, 1994 Tenn. LEXIS 280 (Tenn. Oct. 3, 1994).

13. Rehabilitation Program.

The statute contemplates a rehabilitation program for a period not to exceed two years in accordance with a memorandum of understanding between the defendant and the district attorney general which must be approved by the trial judge. State v. Poplar, 612 S.W.2d 498, 1980 Tenn. Crim. App. LEXIS 347 (Tenn. Crim. App. 1980).

14. Denial of Diversion.

The diversion statute creates a state-wide statutory scheme for the diversion of certain classes of offenders from the normal criminal process; thus, a district attorney general may not decline to enter a memorandum of understanding for “lack of facilities.” Blackwell v. State, 605 S.W.2d 832, 1980 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. 1980).

Denial of diversion based upon an individual prosecutor's philosophical disagreement with the value of the program constitutes a clear abuse of discretion. Blackwell v. State, 605 S.W.2d 832, 1980 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. 1980).

The nature of and the circumstances surrounding an offense could not and would not of itself be sufficient to deny diversion. Blackwell v. State, 605 S.W.2d 832, 1980 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. 1980); State v. King, 640 S.W.2d 30, 1982 Tenn. Crim. App. LEXIS 389 (Tenn. Crim. App. 1982).

A district attorney general's refusal to enter into a pretrial diversion agreement because he was opposed to the diversion program as a matter of policy was misdirected for district attorneys general are bound to carry out the law they deem unwise as well as the law they deem wise. State v. Watkins, 607 S.W.2d 486, 1980 Tenn. Crim. App. LEXIS 321 (Tenn. Crim. App. 1980).

Where defendant was convicted for cultivating 3,710 marijuana plants with intent to sell, evidence supported the judgment of the trial court in finding there was no abuse of the attorney general's discretion in refusing to enter a memorandum of understanding for pretrial diversion. State v. Collier, 627 S.W.2d 143, 1981 Tenn. Crim. App. LEXIS 404 (Tenn. Crim. App. 1981).

Where defendants were charged with false pretense, conspiracy to commit false pretense and defrauding county highway department by presenting false weight tickets, district attorney did not abuse discretion in denying pretrial diversion to defendant, who had no prior criminal record and was a reputable person, because the criminal activity was extensive, was not impulsive but required considerable effort and planning, was a serious problem in the circuit and was in need of deterrence. State v. Holland, 661 S.W.2d 91, 1983 Tenn. Crim. App. LEXIS 363 (Tenn. Crim. App. 1983).

If the application for pretrial diversion is denied, the factors upon which the denial is based must be clearly articulable and stated in the record in order that meaningful appellate review may be had. This requirement entails more than an abstract statement in the record that the district attorney general has considered these factors. He must articulate why he believes a defendant in a particular case does not meet the test. If the attorney general bases his decision on less than the full complement of factors, he must, for the record, state why he considers that those he relies on outweigh the others submitted for his consideration. State v. Herron, 767 S.W.2d 151, 1989 Tenn. LEXIS 45 (Tenn. 1989), overruled in part, State v. Yancey, 69 S.W.3d 553, 2002 Tenn. LEXIS 45 (Tenn. 2002).

An appeal may be taken after entry of judgment when the trial court denies judicial diversion. State v. George, 830 S.W.2d 79, 1992 Tenn. Crim. App. LEXIS 215 (Tenn. Crim. App. 1992).

The record showed defendant lacked a prior criminal record and did not indicate that state analyzed his stable marital and family history, his employment record, his status in the community, his educational background, and his general reputation for being a responsible, contributing member of society; thus, denial of diversion was based on less than all appropriate factors. State v. Kirk, 868 S.W.2d 739, 1993 Tenn. Crim. App. LEXIS 648 (Tenn. Crim. App. 1993).

Where defendants were convicted of aggravated perjury, consideration of the seriousness of the offense and the need for deterrence, along with other factors, supported the district attorney general's decision to refuse to enter into a memorandum of understanding. State v. Perry, 882 S.W.2d 357, 1994 Tenn. Crim. App. LEXIS 80 (Tenn. Crim. App. 1994).

Where defendant, a police captain, assaulted a court administrator who was performing official duties at the time, and inflicted serious injuries, denial of diversion was not an abuse of discretion; defendant's amenability to rehabilitation did not outweigh the circumstances of the offense and the need to serve the ends of justice and the public interest. State v. Houston, 900 S.W.2d 712, 1995 Tenn. Crim. App. LEXIS 60 (Tenn. Crim. App. 1995), appeal denied, 1995 Tenn. LEXIS 211 (Tenn. May 1, 1995).

The district attorney did not abuse his discretion in denying pretrial diversion to a 19-year-old defendant who was charged with forgery, and who was subsequently arrested for assault. State v. Lutry, 938 S.W.2d 431, 1996 Tenn. Crim. App. LEXIS 254 (Tenn. Crim. App. 1996), overruled, State v. Hooper, 29 S.W.3d 1, 2000 Tenn. LEXIS 535 (Tenn. 2000).

Where defendant was indicted for stalking his former wife, the district attorney general abused his discretion by denying defendant's request for pretrial diversion without according any positive weight to the defendant's lack of a criminal history; the district attorney general also abused his discretion by weighing defendant's failure to complete high school as a factor against him. State v. Thompson, 189 S.W.3d 260, 2005 Tenn. Crim. App. LEXIS 1031 (Tenn. Crim. App. 2005).

When defendant was indicted for criminally negligent homicide after leaving his infant daughter in a car on a hot day, assistant district general attorney abused his discretion by denying pretrial diversion under T.C.A. § 40-15-105(a)(1) when the assistant district attorney improperly focused on the nature and circumstances, and the nonrelevant factor of the assistant district attorney's opinion that the offense should not have been divertible; the assistant district attorney did not focus on defendant's amenability to correction. State v. McKim, 215 S.W.3d 781, 2007 Tenn. LEXIS 27 (Tenn. 2007).

Defendant did not qualify for pretrial diversion under former T.C.A. § 40-15-105(a)(1)(B)(i)-(iii) because: (1) She spent at least one night in jail after being arrested pursuant to a warrant; (2) She was not released until she paid a bond; (3) After she pled guilty she was sentenced to time served; and (4) Her time served sentence was a period of confinement imposed by the municipal court for her misdemeanor conviction. State v. McKinnis, 256 S.W.3d 252, 2008 Tenn. Crim. App. LEXIS 33 (Tenn. Crim. App. Jan. 22, 2008), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 429 (Tenn. June 2, 2008).

In denying pretrial diversion, the prosecutor did not abuse his discretion in concluding that the circumstances of the offense, defendant's lack of amenability to correction, the need for deterrence, and the public interests and the ends of justice favored prosecution. The Court of Criminal Appeals erroneously reweighed the evidence and substituted its judgment, rather than determining if the record lacked substantial evidence to support the prosecutor's findings. State v. Hamilton, 498 S.W.3d 7, 2016 Tenn. LEXIS 532 (Tenn. Aug. 23, 2016).

Prosecutor did not abuse his discretion in denying pretrial diversion, stating that the pretrial diversion in this case, in which defendant allegedly committed statutory rape, would place other children at a higher risk by diminishing the seriousness of such a crime and that defendant's amenability to correction, the ends of justice, the best interests of the public and defendant, and the need for deterrence militated in favor of prosecution and against pretrial diversion. State v. Stephens, 497 S.W.3d 408, 2016 Tenn. LEXIS 533 (Tenn. Aug. 23, 2016).

Prosecutor did not abuse the prosecutor's discretion by denying defendant's application for pretrial diversion because the prosecutor considered all of the available evidence and reviewed and weighed all of the relevant factors before denying pretrial diversion. State v. Woodard, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 346 (Tenn. Crim. App. June 10, 2019).

15. Prosecutorial Discretion.

The discretion vested in the prosecutor with regard to pretrial diversion is not unbridled and it must be exercised in the interests of justice. State v. Carr, 861 S.W.2d 850, 1993 Tenn. Crim. App. LEXIS 230 (Tenn. Crim. App. 1993).

It is incumbent upon a prosecutor who is denying an application for pretrial diversion to articulate the factors and particularize the reasons upon which the denial is based. State v. Carr, 861 S.W.2d 850, 1993 Tenn. Crim. App. LEXIS 230 (Tenn. Crim. App. 1993).

Where the district attorney relied on a second alleged incident involving forcible rape in denying diversion following defendant's conviction of statutory rape, but did not consider a later retraction made by the second victim, remand was required to determine whether an abuse of discretion may have occurred. State v. Morgan, 934 S.W.2d 77, 1996 Tenn. Crim. App. LEXIS 411 (Tenn. Crim. App. 1996).

If the district attorney general denies pretrial diversion, the denial must be in writing and must include an enumeration of the evidence that was considered and a discussion of the factors considered and weight accorded each. State v. Curry, 988 S.W.2d 153, 1999 Tenn. LEXIS 128 (Tenn. 1999).

The subjective motivations of the prosecution in denying pretrial diversion are irrelevant if there is probable cause to believe that the defendant committed the criminal acts as charged. State v. Skidmore, 15 S.W.3d 502, 1999 Tenn. Crim. App. LEXIS 771 (Tenn. Crim. App. 1999).

T.C.A. § 40-15-105(a) focuses not upon the charges set forth in the indictment, but upon the offense for which pretrial diversion is sought, and a defendant's eligibility for pretrial diversion is determined not by the indictment, but rather by the charges existing against the defendant at the time the court rules on the memorandum of understanding seeking pretrial diversion. State v. Layman, 214 S.W.3d 442, 2007 Tenn. LEXIS 35 (Tenn. 2007).

16. Review.

On review of the refusal of a district attorney general to enter into a memorandum of understanding, the trial court must view the decision of the district attorney general to be presumptively correct and should set it aside only on the basis of patent or gross abuse of prosecutorial discretion. State v. Watkins, 607 S.W.2d 486, 1980 Tenn. Crim. App. LEXIS 321 (Tenn. Crim. App. 1980).

Before the trial judge can find that a district attorney general has abused the discretion granted in the Pretrial Diversion Act, the record must show an absence of any substantial evidence to support the refusal of the district attorney general to enter into a memorandum of understanding. State v. Watkins, 607 S.W.2d 486, 1980 Tenn. Crim. App. LEXIS 321 (Tenn. Crim. App. 1980); State v. Hammersley, 650 S.W.2d 352, 1983 Tenn. LEXIS 646 (Tenn. 1983).

If the defendant presents evidence which shows entitlement to pretrial diversion and the evidence is unrefuted by the state, the trial judge would have no recourse but to find the district attorney general had abused his discretion and order pretrial diversion for the defendant, unless the diversion would be prohibited because it would be unlawful, in such a case the district attorney general may not merely rely upon his answer to the defendant's petition. State v. Watkins, 607 S.W.2d 486, 1980 Tenn. Crim. App. LEXIS 321 (Tenn. Crim. App. 1980).

Although the need to deter traffic in drugs, which was a problem of serious proportion and a factor in other crimes, would have been a valid reason for refusing to enter into a memorandum of understanding, the state nonetheless had to offer proof of that allegation. State v. Watkins, 607 S.W.2d 486, 1980 Tenn. Crim. App. LEXIS 321 (Tenn. Crim. App. 1980).

Where the trial court could properly find from the record that the defendant was in possession of three pounds of marijuana which was indicative of more than a casual flirtation with marijuana, that was a sufficient basis for the refusal of the district attorney general to enter into a memorandum of understanding. State v. Watkins, 607 S.W.2d 486, 1980 Tenn. Crim. App. LEXIS 321 (Tenn. Crim. App. 1980).

On appeal from the action of a trial judge in determining whether a district attorney general had abused his discretion in refusing to enter into a pretrial diversion memorandum of understanding, the appellate court reviews the case not to determine if the trial judge has abused his discretion but to determine if the evidence preponderates against the finding of the trial judge. State v. Watkins, 607 S.W.2d 486, 1980 Tenn. Crim. App. LEXIS 321 (Tenn. Crim. App. 1980).

The statute vests discretion only with the district attorney general and not with the trial judge; for this reason, a determination of whether the district attorney general abused his discretion could only be determined by considering what evidence was before the district attorney general when he considered the application for diversion. State v. Poplar, 612 S.W.2d 498, 1980 Tenn. Crim. App. LEXIS 347 (Tenn. Crim. App. 1980).

By necessity, a de novo hearing is not appropriate under subsection (b); the trial judge should bring before him only the evidence made available to and considered by the district attorney general in determining whether to grant a diversion of prosecution. State v. Poplar, 612 S.W.2d 498, 1980 Tenn. Crim. App. LEXIS 347 (Tenn. Crim. App. 1980).

Not only is the trial judge to confine his consideration to the evidence considered by the district attorney general at the time he considered the application, he must also confine his review to the reason or reasons given by the district attorney general at that time. State v. Brown, 700 S.W.2d 568, 1985 Tenn. Crim. App. LEXIS 2602 (Tenn. Crim. App. 1985).

Although there was no question that the record would have amply supported a grant of pretrial diversion if the prosecutor had so elected, the deference is to the prosecutor's decision and not the trial court's, and the trial court's ruling that the prosecutor abused his discretion in denying pretrial diversion was reversible error. State v. Carr, 861 S.W.2d 850, 1993 Tenn. Crim. App. LEXIS 230 (Tenn. Crim. App. 1993).

Review of prosecutor's decision to deny diversion is limited to examining the record to determine whether material evidence supported the decision the hearing court must consider only evidence made available to and considered by prosecutor. State v. Baxter, 868 S.W.2d 679, 1993 Tenn. Crim. App. LEXIS 201 (Tenn. Crim. App. 1993).

The only evidence the trial court may consider at the certiorari hearing is that evidence considered by the prosecutor in the decision denying pretrial diversion. In view of this evidentiary restriction, an evidentiary hearing would seem unneeded in the usual case. However, a hearing may be useful to clarify matters already in the record about which there may be some dispute. State v. Winsett, 882 S.W.2d 806, 1993 Tenn. Crim. App. LEXIS 861 (Tenn. Crim. App. 1993).

Upon a petition for writ of certiorari, the trial court may conduct a hearing only to resolve any factual disputes raised by the prosecutor or the defendant concerning the application, but may not hear additional evidence that was not considered by the prosecutor. State v. Curry, 988 S.W.2d 153, 1999 Tenn. LEXIS 128 (Tenn. 1999).

The failure of the record to reflect that the district attorney considered all of the applicable factors would allow a reviewing court to find an abuse of discretion. State v. Skidmore, 15 S.W.3d 502, 1999 Tenn. Crim. App. LEXIS 771 (Tenn. Crim. App. 1999).

The trial court's review under T.C.A. § 40-15-105(b)(3) is limited to the question of abuse of discretion concerning the pretrial diversion decision, not the subjective motives concerning the institution of the prosecution. State v. Skidmore, 15 S.W.3d 502, 1999 Tenn. Crim. App. LEXIS 771 (Tenn. Crim. App. 1999).

When reviewing the denial of a grant of pretrial diversion, the court of criminal appeals was limited to considering only the evidence that was considered by the district attorney general; furthermore, trial court had to determine whether the district attorney general had considered and weighed the evidence relevant to each factor and whether there was substantial evidence to support the district attorney general's decision to deny pretrial diversion. State v. Yancey, 69 S.W.3d 553, 2002 Tenn. LEXIS 45 (Tenn. 2002).

Denial of pretrial diversion was affirmed because while the assistant district attorney general did not assign specific weight to all of the factors he considered, it was clear from reading the entirety of the response that he carefully weighed and considered the factors. He clearly discussed the factors weighing against defendant and why those factors outweighed factors in favor of diversion. State v. Stanton, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 17 (Tenn. Crim. App. Jan. 10, 2012), aff'd, 395 S.W.3d 676, 2013 Tenn. LEXIS 83 (Tenn. Jan. 23, 2013).

17. Appellate Procedure.

An appeal by either side questioning diversion decisions, either granted or denied, must be brought under T.R.A.P. 9 or 10 and cannot come by T.R.A.P. 3. State v. McDuff, 691 S.W.2d 569, 1984 Tenn. Crim. App. LEXIS 2687 (Tenn. Crim. App. 1984).

Tennessee court of criminal appeals should not deny a T.R.A.P. 9 or T.R.A.P. 10 application from a denial of pretrial diversion under T.C.A. § 40-15-105(a)(1) simply on the basis that defendant may pursue a direct appeal upon conviction pursuant to Tenn. R. Crim. P. 38, as nothing in the amended text of Tenn. R. Crim. P. 38 or in the text of the Advisory Commission Comments thereto indicates that the amendment to Tenn. R. Crim. P. 38 was adopted in order to limit or discourage interlocutory appeals from pretrial diversion decisions; as amended, Tenn. R. Crim. P. 38 simply gives an unsuccessful defendant another avenue to pursue after trial if, for whatever reason, he or she chooses to forego the interlocutory route. State v. McKim, 215 S.W.3d 781, 2007 Tenn. LEXIS 27 (Tenn. 2007).

When defendant who was indicted for criminally negligent homicide after leaving his infant daughter in a car on a hot day was denied pretrial diversion under T.C.A. § 40-15-105(a)(1), a trial court and the criminal appellate court erred in denying defendant's applications for interlocutory appeals pursuant to T.R.A.P. 9 or 10, because: (1) An assistant district attorney general disregarded the guidelines concerning the proper factors to consider in evaluating applications for pretrial diversion; (2) Pretrial diversion would avoid the necessity of a trial; (3) An interlocutory appeal would not have created piecemeal litigation; and (4) The court of criminal appeals should not have denied defendant's application from the denial of pretrial diversion simply on the basis that defendant could pursue a direct appeal upon conviction pursuant to Tenn. R. Crim. P. 38. State v. McKim, 215 S.W.3d 781, 2007 Tenn. LEXIS 27 (Tenn. 2007).

Defendant waived her right to appeal the denial of her request for pretrial diversion under T.C.A. § 40-15-105 by failing to seek review of the trial court's decision pursuant to T.R.A.P. 9 or 10 prior to pleading guilty to some of the charges. An appeal pursuant to Tenn. R. Crim. P. 38(b) was required to be made under T.R.A.P. 3(b), which had no provision for appeal of the denial of pretrial diversion following a guilty plea. State v. Robinson, 328 S.W.3d 513, 2010 Tenn. Crim. App. LEXIS 268 (Tenn. Crim. App. Mar. 30, 2010).

18. Imposition of Fines Not Authorized.

T.C.A. § 40-15-105 does not contemplate the imposition of fines and, thus, payment of a mandatory minimum fine could not be required as a condition to a memorandum of understanding for pretrial diversion. State v. Alberd, 908 S.W.2d 414, 1995 Tenn. Crim. App. LEXIS 516 (Tenn. Crim. App. 1995).

19. Abuse of Discretion.

Two cases were remanded to the district attorney generals to consider and weigh all of the relevant pretrial diversion factors because the prosecutors abused their discretion, under T.C.A. § 40-15-105(a)(1)(A), by failing to consider and weigh all the relevant pretrial diversion factors or by considering and relying upon an irrelevant factor. State v. Richardson, 357 S.W.3d 620, 2012 Tenn. LEXIS 4 (Tenn. Jan. 20, 2012).

Assistant district attorney general's (ADAG's) consideration of proposed legislation to amend the companion animal cruelty statute, T.C.A. § 39-14-212, to make it applicable to horses, was irrelevant in assessing whether the public would favor granting pretrial diversion to defendant, who was accused of cruelty to his horses; however, because the ADAG did not give undue consideration to this evidence, he did not abuse his discretion in considering it. Stanton v. State, 395 S.W.3d 676, 2013 Tenn. LEXIS 83 (Tenn. Jan. 23, 2013).

State did not abuse its discretion in denying defendant pretrial diversion because it considered and articulated all relevant facts, including defendant's positive social history, in its denial letter. State v. Finch, 465 S.W.3d 584, 2013 Tenn. Crim. App. LEXIS 1016 (Tenn. Crim. App. Nov. 22, 2013), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 548 (Tenn. June 24, 2014).

Prosecutor considered and weighed all relevant factors, but the decision to deny pretrial diversion was not supported by substantial evidence, and the prosecutor abused his discretion when he concluded that defendant's amenability to correction weighed against granting pretrial diversion because she had not shown sufficient remorse, and the prosecutor did not point to any evidence to support his conclusion that the ends of justice favored denying pretrial diversion; the case was remanded with an instruction that pretrial diversion be granted. State v. Stephens, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 541 (Tenn. Crim. App. July 7, 2015), rev'd, 497 S.W.3d 408, 2016 Tenn. LEXIS 533 (Tenn. Aug. 23, 2016).

In a case in which a grand jury charged defendant with two counts of child abuse, the district attorney did not abuse her discretion by denying defendant's application for pretrial diversion. The record indicated that the district attorney considered all the available evidence and reviewed all of the relevant factors before denying pretrial diversion to defendant. State v. Edwards, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 449 (Tenn. Crim. App. June 19, 2018).

20. Nunc Pro Tunc Order.

Prosecutor had consistently denied pretrial diversion, and thus a nunc pro tunc order was not appropriate in this case; additionally, because defendant had not been required to comply with any of the restrictions, she had not yet successfully completed pretrial diversion, and equity did not require granting pretrial diversion nunc pro tunc. State v. Stephens, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 541 (Tenn. Crim. App. July 7, 2015), rev'd, 497 S.W.3d 408, 2016 Tenn. LEXIS 533 (Tenn. Aug. 23, 2016).

40-15-106. Certification that defendant not disqualified by prior conviction, pretrial diversion or expunged offense.

No memorandum of understanding may be approved by the court on or after July 1, 1998, unless there is attached to it a certificate from the Tennessee bureau of investigation stating that according to its expunged criminal offender and pretrial diversion database the defendant has not:
1. Had a prior disqualifying felony or misdemeanor conviction;
2. Previously been granted pretrial diversion under this chapter; and
3. Had the public records of a disqualifying criminal offense that was dismissed expunged pursuant to chapter 32 of this title or § 40-35-313.
The certificate provided by the bureau pursuant to this section is only a certification that according to its expunged criminal offender and pretrial diversion database the defendant is not disqualified under the criteria set out in subsection (a). The certificate is not a certification that the defendant is eligible for diversion pursuant to this chapter and it shall continue to be the duty of the district attorney general and judge to make sufficient inquiry into the defendant's background to determine diversion eligibility.

Acts 1998, ch. 1099, § 6.

Attorney General Opinions. Effective date of this section, OAG 98-0166 (8/28/98).

40-15-107. Uniform application for pretrial diversion.

The administrative office of the courts, in consultation with the Tennessee district attorneys general conference and the Tennessee association of criminal defense lawyers, shall create a statewide uniform application for use in pretrial diversion.

Acts 2000, ch. 813, § 1.

Cross-References. District Attorneys General Conference, title 8, ch. 7, part 3.

Chapter 16
Immunity From Prosecution

40-16-101. Trial by court-martial as bar.

All members of the armed forces of the United States who have been tried and convicted or acquitted by a military court-martial for any offense constituting a misdemeanor under the laws of this state shall be immune from any criminal prosecution in any court of this state for the same offense for which they have been so tried. “Members of the armed forces of the United States” includes all officers and enlisted personnel of the army, navy, air force, marine corps and coast guard while on active duty and also includes any and all persons subject to trial by court-martial under the Uniform Code of Military Justice, whether a civilian, reservist, or member of any other federal agency.

Acts 1953, ch. 108, §§ 1, 2 (Williams, § 11744.1); T.C.A. (orig. ed.), § 40-2305.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 16.112.

Law Reviews.

Criminal Law and Procedure (William D. Warren), 6 Vand. L. Rev. 1179.

40-16-102. Conviction not barring prosecution for previous offenses.

A conviction, judgment and execution for any one (1) offense is no bar to a prosecution for any other public offense committed previously, not necessarily included in the offense for which the defendant was convicted.

Code 1858, § 5274; Shan., § 7250; Code 1932, § 11856; T.C.A. (orig. ed.), § 40-2306.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 17.38, 16.119.

Chapter 17
Evidence and Witnesses

Part 1
General Provisions

40-17-101. Voice stress analysis inadmissible in criminal proceedings.

As used in this section, “voice stress analysis” means the use of a device that has the ability to electronically analyze the responses of an individual to a specific set of questions and to record the analysis, both digitally and on a graph.
Voice stress analysis and testimony regarding voice stress analysis shall not be admissible as evidence in any criminal proceeding.

Acts 2014, ch. 928, § 2.

40-17-102. [Reserved.]

The failure of the party defendant to make a request to testify and to testify in the defendant's own behalf shall not create any presumption against the defendant.

Acts 1887, ch. 79, § 2; Shan., § 5601; Code 1932, § 9783; T.C.A. (orig. ed.), § 40-2403.

Cross-References. Self incrimination, Tenn. Const., art. I, § 9.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 17.39, 29.38, 30.68.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, §§ 33, 34; 24 Tenn. Juris., Trial, § 5; 25 Tenn. Juris., Witnesses, §§ 16, 54.

Law Reviews.

A Comparative Study of the Witness Rules in the Proposed Federal Rules of Evidence and in Tennessee Law (Jerry J. Phillips), 39 Tenn. L. Rev. 379 (1972).

NOTES TO DECISIONS

1. Application.

This statute does not apply to defendants in civil cases. Hunt v. Hunt, 56 Tenn. App. 683, 412 S.W.2d 7, 1965 Tenn. App. LEXIS 235 (Tenn. Ct. App. 1965).

2. Presumptions.

Failure to charge that no presumption should arise as a result of failure of defendant to take the stand in her own behalf was not error where court instructed that defendant was presumed innocent until proved guilty beyond a reasonable doubt and defendant did not request a special charge in reference to her failure to testify. Rowan v. State, 212 Tenn. 224, 369 S.W.2d 543, 1963 Tenn. LEXIS 417 (1963).

3. —Failure of Defendant to Produce Witnesses.

Provision that no presumption of guilt arises as result of failure of defendant to testify does not apply to failure of defendant to call available testimony of others. Ford v. State, 184 Tenn. 443, 201 S.W.2d 539, 1945 Tenn. LEXIS 288 (1945).

4. —Burden of Explanation.

This section relates only to the personal testimony of the defendant and this presumption does not relieve him of the burden of producing evidence in explanation or rebuttal after incriminating circumstances have been made to appear. Hutchins v. State, 172 Tenn. 108, 110 S.W.2d 319, 1937 Tenn. LEXIS 58 (1937).

5. —Personal Right of Defendant.

The language must be limited in application to the right of defendant to testify personally. Hays v. State, 159 Tenn. 388, 19 S.W.2d 313, 1928 Tenn. LEXIS 95 (1929).

6. Comment on Failure to Testify.

Adverse comment or argument based upon defendant's failure to testify is reversible error, where the judge's attention was called to it, and he failed to interfere and fully instruct the jury, and the action was properly excepted to. Staples v. State, 89 Tenn. 231, 14 S.W. 603, 1890 Tenn. LEXIS 40 (1890); King v. State, 91 Tenn. 617, 20 S.W. 169, 1892 Tenn. LEXIS 33 (1892); Smithson v. State, 127 Tenn. 357, 155 S.W. 133, 1912 Tenn. LEXIS 34 (1913); State v. Hale, 672 S.W.2d 201, 1984 Tenn. LEXIS 931 (Tenn. 1984).

Where one of the state's counsel stated in his argument before the jury that the proof showed that the accused was afraid to testify in his former trials, that his counsel had no faith in his defense, and were ashamed to put him on the stand, the argument is reversible error where objection was made to the same, and a motion was made to exclude it from consideration by the jury, and the exclusion was made in an improper manner. Smithson v. State, 127 Tenn. 357, 155 S.W. 133, 1912 Tenn. LEXIS 34 (1913).

The error of improper argument is not cured by the trial judge's exclusion of the same from the consideration of the jury, where his ruling was accompanied with the expression of his opinion that the argument was legitimate. Smithson v. State, 127 Tenn. 357, 155 S.W. 133, 1912 Tenn. LEXIS 34 (1913).

Failure of one to testify in his own behalf in court is not to be considered by the jury in determining his guilt or innocence and may not be commented on by counsel. Turner v. State, 216 Tenn. 714, 394 S.W.2d 635, 1965 Tenn. LEXIS 616 (1965).

Argument by the counsel for the state of the fact that the evidence of the state is uncontradicted is not improper as drawing attention of the jury to the failure of the defendant to testify. Schweizer v. State, 217 Tenn. 569, 399 S.W.2d 743, 1966 Tenn. LEXIS 610 (1966).

Argument of district attorney general in burglary prosecution constituted reversible error where its import was that failure of defendant, who did not take witness stand, to testify how he obtained check allegedly taken in burglary would justify jury in drawing unfavorable conclusion therefrom. Huckaby v. State, 3 Tenn. Crim. App. 84, 457 S.W.2d 872, 1970 Tenn. Crim. App. LEXIS 446 (Tenn. Crim. App. 1970).

It was not a comment on defendant's failure to testify where the attorney general argued that there was no denial in the record of the state's evidence. Holder v. State, 490 S.W.2d 170, 1972 Tenn. Crim. App. LEXIS 285 (Tenn. Crim. App. 1972).

Where a defendant on trial for first degree murder did not testify, comment in the closing argument by the state to the effect that the fact that the defendant had a gun on the night of the homicide was uncontradicted did not violate this section or defendant's constitutional rights against self-incrimination under U.S. Const., amend. 5, or Tenn. Const., art. I, § 9. Wright v. State, 512 S.W.2d 650, 1974 Tenn. Crim. App. LEXIS 290 (Tenn. Crim. App. 1974).

Comments in the closing argument and in the complaint by the prosecution did not violate defendant's rights under the statute. Squires v. State, 525 S.W.2d 686, 1975 Tenn. Crim. App. LEXIS 336 (Tenn. Crim. App. 1975), superseded by statute as stated in, State v. Little, 560 S.W.2d 403, 1978 Tenn. LEXIS 568 (Tenn. 1978).

Where there was no justification for the prosecution's reference to defendant's decision not to testify, and where the potentially prejudicial effect of the reference was increased by the fact that it was couched in terms of the defendant's failure to testify rather than his right not to take the stand and the cautionary instruction given to the jury at that time reemphasized this approach, as did the final charge to the jury, wherein the trial judge again spoke of the defendant's “failure” to testify, there was reversible error. Ledford v. State, 568 S.W.2d 113, 1978 Tenn. Crim. App. LEXIS 308 (Tenn. Crim. App. 1978).

A statement by prosecutor in his closing argument that only three people knew what happened and the victim told what happened did not amount to a comment on defendant's failure to testify especially where court instructed jury that defendant was not required to take the witness stand in his behalf and no inference could be drawn from his failure to do so. Taylor v. State, 582 S.W.2d 98, 1979 Tenn. Crim. App. LEXIS 255 (Tenn. Crim. App. 1979).

7. —Failure to Call Other Witnesses.

While no argument of guilt shall be based on the failure of the defendant himself to take the stand, this immunity does not extend to his failure to offer other witnesses in his defense, in explanation and rebuttal of incriminating facts and circumstances adduced. Hays v. State, 159 Tenn. 388, 19 S.W.2d 313, 1928 Tenn. LEXIS 95 (1929); Gamble v. State, 215 Tenn. 26, 383 S.W.2d 48, 1964 Tenn. LEXIS 537 (1964).

Argument which was restricted to defendant's failure to offer witnesses did not impinge upon his constitutional rights. McCracken v. State, 489 S.W.2d 48, 1972 Tenn. Crim. App. LEXIS 290 (Tenn. Crim. App. 1972).

8. —Failure to Testify at Former Trial.

This statute applies to a former trial, as well as to the pending trial, so as to make it improper for the state's counsel to comment on the failure of the accused to testify in his former trial or trials. Smithson v. State, 127 Tenn. 357, 155 S.W. 133, 1912 Tenn. LEXIS 34 (1913).

40-17-104. [Reserved.]

As provided by the Constitution of Tennessee, the accused, in all criminal prosecutions, has a right to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in the accused's favor.

Code 1858, § 5377; Shan., § 7355; Code 1932, § 11959; T.C.A. (orig. ed.), § 40-2405.

Cross-References. Rights of defendant in criminal prosecution, Tenn. Const., art. I, § 9.

Separation or exclusion of witnesses at preliminary hearing, § 40-10-103.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 23.15.

NOTES TO DECISIONS

1. State Not Required to Use Its Summoned Witnesses.

The state cannot be compelled to examine witnesses summoned by it, and, if the defendant wishes the testimony of witnesses summoned by the state, he must subpoena them or call them himself, as his own witnesses. Eason v. State, 65 Tenn. 431, 1873 Tenn. LEXIS 381 (1873); Cantrell v. State, 2 Shan. 249 (1877).

2. State Not Obligated to Call Witness Having Knowledge.

Failure of state to call witness having knowledge of facts relating to alleged crime does not violate constitutional right of accused to meet witness face to face. State ex rel. Dickens v. Bomar, 214 Tenn. 493, 381 S.W.2d 287, 1964 Tenn. LEXIS 498 (1964).

The state is under no obligation to produce every possible witness. Hicks v. State, 539 S.W.2d 58, 1976 Tenn. Crim. App. LEXIS 377 (Tenn. Crim. App. 1976).

State is under no compulsion to locate alibi witness named by defendant. Beasley v. State, 539 S.W.2d 820, 1976 Tenn. Crim. App. LEXIS 384 (Tenn. Crim. App. 1976).

3. Proof of Witness Not Called.

Where the state introduced proof of a material witness who was an informant, but refused to identify the witness, defendant was deprived of his right to obtain the witness. Roberts v. State, 489 S.W.2d 263, 1972 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. 1972).

4. City Ordinance Violation — Civil.

Introduction into evidence of sworn photostats of defendant's application for federal wagering stamps in a proceeding against defendant for violation of city ordinance making it a misdemeanor to possess such stamps did not violate right of defendant to meet witness face to face, since proceeding was not criminal but civil. Deitch v. Chattanooga, 195 Tenn. 245, 258 S.W.2d 776, 1953 Tenn. LEXIS 330 (1953).

5. Defendant Refusing to Attend Trial.

Where defendant complained of illness and refused to leave his jail cell to attend his trial, it was harmless error beyond a reasonable doubt for the trial court to conduct any of defendant's trial in his absence where the total evidence of defendant's guilt was completely convincing, where no evidence damaging to defendant was introduced in his absence, and where defendant's counsel was present and found no need for cross-examination of witnesses. Stone v. State, 521 S.W.2d 597, 1974 Tenn. Crim. App. LEXIS 255 (Tenn. Ct. App. 1974).

There was no waiver by a defendant of the right to be present at his trial where he had complained of illness and refused to voluntarily leave his jail cell to attend trial. Stone v. State, 521 S.W.2d 597, 1974 Tenn. Crim. App. LEXIS 255 (Tenn. Ct. App. 1974).

A defendant has a constitutional right to be present at all times during the course of his trial. Stone v. State, 521 S.W.2d 597, 1974 Tenn. Crim. App. LEXIS 255 (Tenn. Ct. App. 1974).

Inmate filed a claim against the state that the trial judge deprived him of his statutory rights because the indictments against him were void and because he was tried, convicted, and sentenced in absentia; he based his claim on T.C.A. §§ 40-3-101, 40-14-101, 40-14-102, 40-17-105, and 40-18-118, and Tenn. R. Crim. P. 43, but none of those statutes and rules expressly conferred a private right of action against the state to him; thus, the Tennessee claims commission for the eastern grand division did not err when it held that it lacked subject matter jurisdiction over the inmate's claim pursuant to T.C.A. § 9-8-307(a)(1)(N) and that the inmate failed to state a claim upon which relief can be granted. Therefore, pursuant to Tenn. Const. art. I, § 17, the commission did not err when it granted the state's motion to dismiss pursuant to, Tenn. R. Civ. P. 12.02(1). Williams v. State, 139 S.W.3d 308, 2004 Tenn. App. LEXIS 43 (Tenn. Ct. App. 2004), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 530 (Tenn. June 1, 2004), appeal denied, Williams v. Parker, — S.W.3d —, 2006 Tenn. LEXIS 9 (Tenn. 2006).

6. Meeting Prior to Trial Not Guaranteed.

Trial courts cannot order reluctant police witnesses to speak to defense counsel. State v. Singleton, 853 S.W.2d 490, 1993 Tenn. LEXIS 161 (Tenn. 1993).

7. Physician Subject to Subpeona by Deposition.

Postconviction court erred by failing to grant petitioner's physician's motion to quash a judicial subpoena compelling him to testify at a hearing on behalf of petitioner because he was statutorily exempt from subpoena to the hearing but was subject to subpoena to a deposition. The court further held that it saw no reason why petitioner could not participate in the physician's deposition via telephone, video, or some other media, and therefore petitioner's inability to leave prison to attend a deposition was not sufficient justification for denying the physician's motion to quash. Sexton v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 876 (Tenn. Crim. App. Nov. 30, 2018).

40-17-106. Endorsement of names of witnesses.

It is the duty of the district attorney general to endorse on each indictment or presentment, at the term at which the indictment or presentment is found, the names of the witnesses as the district attorney general intends shall be summoned in the cause, and sign each indictment or presentment name thereto.

Code 1858, § 5596; Shan., § 7637; Code 1932, § 12266; modified; T.C.A. (orig. ed.), § 40-2047.

Compiler's Notes. This section may be affected by Tenn. R. Crim. P. 16 and 17.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 9.21, 12.23, 13.1, 13.2, 13.16, 13.17.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 3-16-2.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, §§ 21, 26.

Law Reviews.

Pretrial Discovery Under the Proposed Tennessee Rules of Criminal Procedure (William L. Gibbons), 7 Mem. St. U.L. Rev. 1.

NOTES TO DECISIONS

1. Purpose.

The purpose of this section is to make known to the defendant the names of witnesses who will be called to testify so that the defendant will not be surprised and handicapped in the preparation of his case. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173, 1963 Tenn. LEXIS 463 (1963), rehearing denied, 213 Tenn. 15, 372 S.W.2d 173, 1963 Tenn. LEXIS 494 (1963), cert. denied, McBee v. Tennessee, 377 U.S. 955, 84 S. Ct. 1633, 12 L. Ed. 2d 499, 1964 U.S. LEXIS 1171 (1964); Harris v. State, 3 Tenn. Crim. App. 64, 457 S.W.2d 370, 1970 Tenn. Crim. App. LEXIS 378 (Tenn. Crim. App. 1970), cert. denied, Harris v. Tennessee, 401 U.S. 978, 91 S. Ct. 1206, 28 L. Ed. 2d 328, 1971 U.S. LEXIS 2719 (1971); Cook v. State, 3 Tenn. Crim. App. 685, 466 S.W.2d 530, 1971 Tenn. Crim. App. LEXIS 427 (Tenn. Crim. App. 1971); State v. McCray, 614 S.W.2d 90, 1981 Tenn. Crim. App. LEXIS 328 (Tenn. Crim. App. 1981); State v. Craft, 743 S.W.2d 203, 1987 Tenn. Crim. App. LEXIS 2314 (Tenn. Crim. App. 1987); State v. Morris, 750 S.W.2d 746, 1987 Tenn. Crim. App. LEXIS 2754 (Tenn. Crim. App. 1987).

The purpose of T.C.A. § 40-17-106 is to prevent surprise to the defendant at trial and to permit the defendant to prepare his or her defense to the indictment. State v. Allen, 976 S.W.2d 661, 1997 Tenn. Crim. App. LEXIS 793 (Tenn. Crim. App. 1997).

The purpose of furnishing names on an indictment or presentment is to prevent surprise to the defense; furthermore, evidence should not be excluded except when the defendant is actually prejudiced by the failure to comply with the rule and when the prejudice cannot otherwise be eradicated. State v. Kilpatrick, 52 S.W.3d 81, 2000 Tenn. Crim. App. LEXIS 497 (Tenn. Crim. App. 2000).

2. Compliance.

Where state witnesses were listed on front of indictments and the typed name of the attorney general pro tem was on the front of the indictment and his signature appeared on the second page, there was compliance with this section. Bishop v. State, 582 S.W.2d 86, 1979 Tenn. Crim. App. LEXIS 252 (Tenn. Crim. App. 1979).

Because the state did not act in bad faith when it failed to list the officers' names on the defendant's indictment, the state did not violate T.C.A. § 40-17-106. State v. King, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 296 (Tenn. Crim. App. Apr. 9, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 830 (Tenn. Aug. 26, 2010).

Trial court did not abuse its discretion by allowing a witness for the State to testify, even though the State did not comply with this section, because defendant failed to show prejudice, bad faith, or undue advantage, as the trial court allowed defense counsel to speak to the witness for as long as counsel wished to, the scope of the witness's testimony was limited, and at the hearing on his motion for new trial defendant offered no evidence of any impeachment material he could have used against the witness if he had had additional time to investigate. State v. Waire, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 257 (Tenn. Crim. App. Mar. 30, 2016).

State complied with this section because “CI” appeared on the face of the indictment, providing notice to defendant that a confidential informant could testify against him at the sentencing hearing. State v. Hartwell, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 307 (Tenn. Crim. App. Apr. 24, 2018).

Trial court did not abuse its discretion when it determined that the State had not failed to disclose a witness and allowed the witness to testify because the State had not learned of the witness's involvement in the case until the day of trial; and the State disclosed the witness's name as soon as it was made aware that she would be willing and able to testify. State v. Burnette, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 682 (Tenn. Crim. App. Sept. 6, 2018).

3. Directory Nature.

T.C.A. § 40-17-106 is directory only and a witness is not disqualified to testify because his name does not appear on the indictment. Aldridge v. State, 4 Tenn. Crim. App. 254, 470 S.W.2d 42, 1971 Tenn. Crim. App. LEXIS 501 (Tenn. Crim. App. 1971); State v. Underwood, 669 S.W.2d 700, 1984 Tenn. Crim. App. LEXIS 2709 (Tenn. Crim. App. 1984); State v. Morris, 750 S.W.2d 746, 1987 Tenn. Crim. App. LEXIS 2754 (Tenn. Crim. App. 1987); State v. Baker, 751 S.W.2d 154, 1987 Tenn. Crim. App. LEXIS 2667 (Tenn. Crim. App. 1987); State v. Hutchison, 898 S.W.2d 161, 1994 Tenn. LEXIS 157 (Tenn. 1994), rehearing denied, 898 S.W.2d 161, 1995 Tenn. LEXIS 198 (1995), cert. denied, Hutchinson v. Tennessee, 516 U.S. 846, 116 S. Ct. 137, 133 L. Ed. 2d 84, 1995 U.S. LEXIS 5846 (1995), dismissed, Hutchison v. Bell, — F. Supp. 2d —, 2010 U.S. Dist. LEXIS 31736 (E.D. Tenn. Mar. 30, 2010).

This section is directory only and where defendants were aware of the police broadcasts, the fact that the name of the witness who related the broadcasts was not on the indictments, there was no prejudice to defendants. Arrington v. State, 548 S.W.2d 319, 1976 Tenn. Crim. App. LEXIS 327 (Tenn. Crim. App. 1976).

Since this section is directory only, a witness is not disqualified from testifying even when his name is entirely omitted from an indictment. Houston v. State, 567 S.W.2d 485, 1978 Tenn. Crim. App. LEXIS 305 (Tenn. Crim. App. 1978); State v. Gilbert, 612 S.W.2d 188, 1980 Tenn. Crim. App. LEXIS 341 (Tenn. Crim. App. 1980).

This section is directory only. State v. Martin, 634 S.W.2d 639, 1982 Tenn. Crim. App. LEXIS 431 (Tenn. Crim. App. 1982).

T.C.A. § 40-17-106, directory in nature, does not necessarily disqualify a witness whose name does not appear on the indictment from testifying, and does not mandate the state to call all witnesses actually endorsed on the indictment. State v. Street, 768 S.W.2d 703, 1988 Tenn. Crim. App. LEXIS 615 (Tenn. Crim. App. 1988).

Failure of a party to give the name of a witness as part of discovery does not necessarily disqualify a witness whose name does not appear on the indictment from testifying, as T.C.A. § 40-17-106 is directory only. State v. Harris, 839 S.W.2d 54, 1992 Tenn. LEXIS 348 (Tenn. 1992), rehearing denied, — S.W.2d —, 1992 Tenn. LEXIS 557 (Tenn. Sept. 8, 1992), cert. denied, Harris v. Tennessee, 507 U.S. 954, 113 S. Ct. 1368, 122 L. Ed. 2d 746, 1993 U.S. LEXIS 1703 (1993); State v. Kendricks, 947 S.W.2d 875, 1996 Tenn. Crim. App. LEXIS 582 (Tenn. Crim. App. 1996), appeal denied, — S.W.2d —, 1997 Tenn. LEXIS 248 (Tenn. May 5, 1997).

Since the duty imposed by T.C.A. § 40-17-106 is merely directory and not mandatory, the state's failure to include the name of a witness on the indictment will not automatically disqualify the witness from testifying. State v. Allen, 976 S.W.2d 661, 1997 Tenn. Crim. App. LEXIS 793 (Tenn. Crim. App. 1997).

4. Limitation of Witnesses to Those Endorsed.

This section does not mean that the state is limited to those witnesses whose names appear on the indictment. Douglass v. State, 213 Tenn. 643, 378 S.W.2d 749, 1964 Tenn. LEXIS 432 (1964).

Action of trial judge in murder prosecution in permitting technician who made x-rays of deceased to testify without his name having been endorsed on indictment was not error where person who supervised making of x-rays was permitted to testify without objection and defendants were not shown to be prejudiced by testimony of technician. Phillips v. State, 2 Tenn. Crim. App. 609, 455 S.W.2d 637, 1970 Tenn. Crim. App. LEXIS 492 (Tenn. Crim. App. 1970).

Where all of witnesses used by the state were subpoenaed and there was ample time for defendants to ascertain their identities and talk to them and there was no showing of prejudice from a technical noncompliance with this section, the state was not limited to those names which were endorsed on the indictment. Canady v. State, 3 Tenn. Crim. App. 337, 461 S.W.2d 53, 1970 Tenn. Crim. App. LEXIS 393 (Tenn. Crim. App. 1970).

This section does not limit the state to witnesses whose names appear on the indictment. Goodner v. State, 3 Tenn. Crim. App. 569, 464 S.W.2d 339, 1970 Tenn. Crim. App. LEXIS 471 (Tenn. Crim. App. 1970).

Where there was no contention that defendants were surprised or handicapped in preparation of their defense, permitting testimony of witnesses whose names were not endorsed on the indictment did not constitute reversible error. Cook v. State, 3 Tenn. Crim. App. 685, 466 S.W.2d 530, 1971 Tenn. Crim. App. LEXIS 427 (Tenn. Crim. App. 1971).

Where the record contained nothing so much as intimating that the testimony of witnesses would have been different if defense counsel had been permitted to interview and interrogate them before trial, permitting such witnesses to testify even though their names were not endorsed on indictment did not constitute reversible error. Aldridge v. State, 4 Tenn. Crim. App. 254, 470 S.W.2d 42, 1971 Tenn. Crim. App. LEXIS 501 (Tenn. Crim. App. 1971).

In a prosecution for grand larceny, where the record disclosed that defendant had examined eye witnesses before the trial but refused an opportunity to examine the same witnesses at trial, the admission of the witnesses' testimony was not error even though their names were not on the indictment. Boaz v. State, 537 S.W.2d 716, 1975 Tenn. Crim. App. LEXIS 263 (Tenn. Crim. App. 1975).

Although the names of certain state witnesses were not endorsed on the indictment, their testimony was allowed where it appeared that defendant had notice pretrial that they would testify, and defendant failed to show any prejudice. State v. Craft, 743 S.W.2d 203, 1987 Tenn. Crim. App. LEXIS 2314 (Tenn. Crim. App. 1987).

5. Accomplice — Testimony.

Where defendant was given ample opportunity to know that an accomplice would testify, what his testimony might be and had an opportunity to cross examine him, it was not error to allow the testimony of the accomplice though he was not listed on the indictment as a witness. Thomas v. State, 3 Tenn. Crim. App. 589, 465 S.W.2d 887, 1970 Tenn. Crim. App. LEXIS 410 (Tenn. Crim. App. 1970).

6. Time of Endorsement.

The court may in its discretion allow the endorsement of the name of a witness on the indictment at any time if good cause for the delay is shown or if the accused is not prejudiced by such action. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173, 1963 Tenn. LEXIS 463 (1963), rehearing denied, 213 Tenn. 15, 372 S.W.2d 173, 1963 Tenn. LEXIS 494 (1963), cert. denied, McBee v. Tennessee, 377 U.S. 955, 84 S. Ct. 1633, 12 L. Ed. 2d 499, 1964 U.S. LEXIS 1171 (1964).

7. Waiver.

Where at the time the witness testified defendant made no objection to fact that witness' name was not endorsed on the indictment and circumstances were such that the appearance of the witness could not have been a surprise to the defendant, permitting such testimony was not reversible error. Harris v. State, 3 Tenn. Crim. App. 64, 457 S.W.2d 370, 1970 Tenn. Crim. App. LEXIS 378 (Tenn. Crim. App. 1970), cert. denied, Harris v. Tennessee, 401 U.S. 978, 91 S. Ct. 1206, 28 L. Ed. 2d 328, 1971 U.S. LEXIS 2719 (1971).

8. Endorsement as Signature of Indictment.

The district attorney general's endorsement of the names of the state witnesses, with his name signed thereto, does not cure the want of his signature of the indictment itself. State v. Lockett, 50 Tenn. 274, 1871 Tenn. LEXIS 96 (1871).

9. Prejudice.

The failure to list or provide names of witnesses in accordance with T.C.A. in § 40-17-106, neither disqualifies the witness nor entitles defendant to relief unless prejudice can be shown. Such prejudice is usually established in a proceeding subsequent to trial. State v. Morris, 750 S.W.2d 746, 1987 Tenn. Crim. App. LEXIS 2754 (Tenn. Crim. App. 1987).

Defendants must show prejudice or a disadvantage resulting from the delay of furnishing the names of such witnesses. State v. Baker, 751 S.W.2d 154, 1987 Tenn. Crim. App. LEXIS 2667 (Tenn. Crim. App. 1987).

A defendant will be entitled to relief for nondisclosure only if he or she can demonstrate prejudice, bad faith, or undue advantage. State v. Allen, 976 S.W.2d 661, 1997 Tenn. Crim. App. LEXIS 793 (Tenn. Crim. App. 1997).

Defendant was not entitled to a mistrial or a continuance when the trial court permitted a witness whose identity had not been disclosed to testify that the victim had informed the witness of the victim's desire to live; the defendant had asked for disqualification of the witness, rather than a continuance, and the testimony was cumulative in rebutting the defendant's claim that the victim had committed suicide. State v. Wilson, 164 S.W.3d 355, 2003 Tenn. Crim. App. LEXIS 841 (Tenn. Crim. App. 2003), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 226 (Tenn. Mar. 8, 2004).

Trial court did not err by permitting the State to introduce the testimony of a witness as a “surprise witness” on the second day of trial because the State did not learn about the witness until the second of trial and immediately disclosed the witness to defendant, and defendant did not establish prejudice by the State's failure to list the witness on the pretrial witness list, as defendant was able to call his testimony into question during cross-examination by establishing his relationship to the victim and the victim's family. State v. Sherlin, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 555 (Tenn. Crim. App. July 24, 2018).

10. Amendment.

Trial court did not err when it allowed the State to amend its indictment to include a special agent as an expert in historical cell site data analysis, 12 days before trial, because defendant had access to his cell phone records and, despite the late disclosure, defendant conducted extensive cross and re-cross examinations of the agent and thus, was not prejudiced. State v. Smoot, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 739 (Tenn. Crim. App. Oct. 1, 2018).

40-17-107. Issuance of subpoenas by clerk.

The clerk of the court in which a criminal cause is pending shall issue subpoenas, at any time, to any part of the state, for witnesses as either the district attorney general or the defendant may require.
The clerk shall also issue a subpoena, without any application, for witnesses whose names are marked as witnesses by the district attorney general upon the indictment.
The clerk shall issue no subpoena for a witness, on behalf of the state, except witnesses as are so marked or subsequently directed by the district attorney general, in writing, to be summoned.
This section shall govern when a clerk is required to issue a subpoena in a criminal case in general sessions court. If any local rule of court conflicts with this section, this section shall prevail and the clerk shall issue subpoenas in accordance with this section.

Code 1858, §§ 5381, 5382, 5597 (deriv. Acts 1822, ch. 40, § 1); Shan., §§ 7359, 7360, 7641; Code 1932, §§ 11964, 11965, 12270; modified; T.C.A. (orig. ed.), §§ 40-2408 — 40-2410; Acts 1997, ch. 377, § 3.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 23.15, 23.11.

NOTES TO DECISIONS

1. Failure to Issue Subpoena.

Because the State was not required to call any particular witness in a criminal prosecution, and defendant could have issued a subpoena to secure the testimony of the confidential informant's wife, but did not, he accepted the risk that the State would not call her as a witness, and defendant was not entitled to plain error relief based upon a Confrontation Clause violation. State v. Webster, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 310 (Tenn. Crim. App. Apr. 25, 2018).

40-17-108. Date of attendance of witnesses.

It is the duty of the clerks of the circuit and criminal courts to designate on the dockets of their several courts the days on which the criminal cases in those courts will be called for trial, subject to the direction and control of the judges of those courts, and subpoenas for witnesses shall require their attendance only upon the day designated for the trial of the particular case in which they are summoned.
It is the duty of the clerks of the circuit or criminal court to subpoena witnesses in causes set for trial, to appear on the day fixed for trial, at the first term that the causes are placed upon the docket. It shall not be necessary to resubpoena the witnesses to subsequent terms, but they shall be required to attend at subsequent terms, upon the day fixed for the trial of the causes, and from day to day of the terms as required by the court, until the causes are disposed of.
It is the duty of the district attorney general and the clerk, in summoning witnesses in state cases, to specify the day on which they are required to attend, and to use all proper precautions to diminish the cost as much as possible.
If for any reason the case or cases so set for trial shall not be tried on the day fixed, it is the duty of the court, by special order, to designate some other day on which the case will be tried; and, in the absence of a special order, it shall not be necessary for witnesses to attend the court, and if they shall attend without a special order, it shall be at their own option. It is the duty of the district attorney general and the clerk to ensure that every reasonable effort has been made to notify witnesses of any change in the date set for trial. Notice shall be given at least ten (10) days in advance of the new date set for trial.

Code 1858, § 5600 (deriv. Acts 1843, 1844, ch. 215, § 5); Acts 1879, ch. 157, §§ 1, 2; Shan., §§ 7638, 7639, 7644; Code 1932, §§ 11966, 12267, 12268, 12273; modified; T.C.A. (orig. ed.), §§ 40-2411 — 40-2414; Acts 1983, ch. 333, § 1.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 23.14.

Law Reviews.

Selected Tennessee Legislation of 1983 (N. L. Resener, J. A. Whitson, K. J. Miller), 50 Tenn. L. Rev. 785 (1983).

40-17-109. Service of subpoena.

The subpoena is served by the same officers as the subpoena in civil cases.

Code 1858, § 5384; Shan., § 7362; mod. Code 1932, § 11969; T.C.A. (orig. ed.), § 40-2415.

40-17-110. Duration of attendance.

Witnesses subpoenaed are bound to attend from term to term until the case is disposed of; but if a judgment is rendered in the case, which is reversed by the supreme court, or in the case of a mistrial, new subpoenas must be issued for the state witnesses, and also for the defendant's witnesses on the defendant's application.
Witnesses shall so attend until discharged by law, by the court, or by the party by whom they are summoned.

Code 1932, §§ 11967, 11968; T.C.A. (orig. ed.), §§ 40-2417, 40-2418.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 23.14.

40-17-111. Forfeiture of recognizance on default.

The undertaking or recognizance of witnesses is forfeited and enforced like the undertaking and recognizance of bail as provided in §§ 29-32-107 — 29-32-109, 40-11-201, and 40-11-202.

Code 1858, § 5387; Shan., § 7365; Code 1932, § 11972; T.C.A. (orig. ed.), § 40-2420.

40-17-112. Fees for state witnesses.

All witnesses entitled to compensation under §§ 40-25-106 and 40-25-129 appearing for the state under subpoena, either before a magistrate or the grand jury, or on an indictment found, are to have the same compensation for their attendance as in civil cases, unless otherwise provided.

Code 1858, § 5391 (deriv. Acts 1855-1856, ch. 63, § 2); Shan., § 7366; mod. Code 1932, § 11973; T.C.A. (orig. ed.), § 40-2421.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

Cross-References. Compensation in civil cases, title 24, ch. 4.

Liability of state or county, § 40-25-129.

Prosecutor in misdemeanor not entitled to fees, § 40-25-105.

Witnesses living near place of trial not entitled to fees, § 40-25-106.

Textbooks. Tennessee Jurisprudence, 25 Tenn. Juris., Witnesses, §§ 7, 8.

Attorney General Opinions. Travel reimbursement for out-of-state witnesses in misdemeanor cases, OAG 99-057 (3/9/99).

NOTES TO DECISIONS

1. Proper Payment.

Payment of amount provided by law to witness in criminal prosecution was entirely proper and would not discredit his testimony in any way. Freshwater v. State, 2 Tenn. Crim. App. 314, 453 S.W.2d 446, 1969 Tenn. Crim. App. LEXIS 363 (Tenn. Crim. App. 1969), cert. denied, Freshwater v. Tennessee, 400 U.S. 840, 91 S. Ct. 80, 27 L. Ed. 2d 74, 1970 U.S. LEXIS 1083 (1970).

40-17-113. Fees allowed for days fixed by court — Maximum number of days.

No fees shall be allowed witnesses for attendance on any other day or days than those fixed in the subpoena or in orders of the court. Not more than three (3) days' attendance shall be taxed in any one (1) week in favor of any one (1) witness in one (1) case, except witnesses attending from other counties, unless required to remain more than three (3) days by order of the court.

Acts 1879, ch. 157, § 2; Shan., § 7640; Code 1932, § 12269; T.C.A. (orig. ed.), § 40-2422.

Attorney General Opinions. Searches and arrests on school property. OAG 14-21, 2014 Tenn. AG LEXIS 22 (2/24/14).

40-17-114. Proof of attendance.

The witness shall prove attendance, in open court, by oath before the clerk that the witness has not, directly or indirectly, personally procured summons as a witness, that the witness was legally summoned on behalf of the state and has verily attended the court, as a witness, the number of days claimed.

Code 1858, § 5394; Shan., § 7369; Code 1932, § 11975; T.C.A. (orig. ed.), § 40-2424.

Textbooks. Tennessee Jurisprudence, 25 Tenn. Juris., Witnesses, § 8.

NOTES TO DECISIONS

1. Strict Enforcement of Section.

If this section is not complied with, the taxed fees, mileage and tolls of the witnesses may be stricken out on motion. Lancaster v. State, 71 Tenn. 652, 1879 Tenn. LEXIS 128 (1879).

2. Legality of Summons.

Unless legally summoned, the witness is not allowed attendance. Lancaster v. State, 71 Tenn. 652, 1879 Tenn. LEXIS 128 (1879).

3. Time of Proof.

Where probate of attendance of witnesses was not taken until after final decision of case and after the filing of defendant's motion to retax the costs for failure to so probate attendance of witnesses, the circuit court erred in overruling defendant's motion to retax the costs, as the clerk is without authority to probate attendance of witnesses after the final decision of the case. King v. State, 170 Tenn. 236, 94 S.W.2d 383, 1936 Tenn. LEXIS 7 (1936).

40-17-115. Certification of fees to designated witnesses.

The district attorney general and judge shall not certify any witness fees against the state, except for those witnesses as shall be so endorsed or subsequently directed by the district attorney general, in writing, to be summoned, nor without actual inspection of the orders.

Code 1858, § 5598; Shan., § 7642; Code 1932, § 12271; modified; T.C.A. (orig. ed.), § 40-2425.

40-17-116. Certificate required for payment of witness fees.

The commissioner of finance and administration shall issue no warrant for the payment of costs of witnesses, unless the certificate of the judge and district attorney general show that the inspection took place.

Code 1858, § 5599; Shan., § 7643; Code 1932, § 12272; impl. am. Acts 1937, ch. 33, §§ 24, 29; C. Supp. 1950, § 12272; modified; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1961, ch. 97, § 3; T.C.A. (orig. ed.), § 40-2426.

40-17-117. Proof of incorporation.

In the trial of criminal cases, it shall not be necessary for the state to prove the incorporation of any corporation mentioned in the indictment or presentment, unless the defendant within thirty (30) days after indictment or presentment, if defendant be under bond, or within thirty (30) days after arrest on capias, denies the existence of the corporation by a sworn plea.
On all trials for offenses where the existence of a corporation must be shown, a legally authenticated copy of the charter of the corporation, or a book purporting to be the public statute book of the United States, or of the particular state in which the charter is printed, shall be prima facie evidence of the existence of the corporation.

Code 1858, § 5379 (deriv. Acts 1829, ch. 23, § 70); Shan., § 7357; Code 1932, §§ 11961, 11962; T.C.A. (orig. ed.), §§ 40-2439, 40-2440.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 16.19.

NOTES TO DECISIONS

1. Proof of De Facto Corporate Activity — Sufficiency.

Proof of the existence of a foreign corporation, in which ownership of property is laid in an indictment for receiving stolen goods, may be made without production of a copy of its charter by showing that it was engaged, under a corporate name, in carrying on the business of a common carrier through its agents and employees. State v. Missio, 105 Tenn. 218, 58 S.W. 216, 1900 Tenn. LEXIS 66 (1900); Bond v. State, 129 Tenn. 75, 165 S.W. 229, 1913 Tenn. LEXIS 95 (1913).

40-17-118. Confiscated stolen property.

Personal property confiscated as stolen property by a lawful officer of the state, a county or a municipality of the state to be held as evidence of a crime shall be promptly appraised, catalogued and photographed by the law enforcement agency retaining custody of the property.
The lawful officer of the state, county or municipality, in order to detain the property from the lawful owner, for whatever reason, more than thirty (30) days, shall show cause to the judge having jurisdiction over the property by petition filed by the district attorney general upon five (5) days' notice to the property owner why the property should be further detained. The court may grant or refuse the requested impounding order upon the terms and conditions as are adjudged to be proper.
The state, county or municipal authority holding the property shall be responsible for the return of the property to the lawful owner and shall be liable in damages to the owner of the property in the event of damage or destruction occasioned by the delay in the return of the property.

Acts 1973, ch. 317, §§ 1-3; T.C.A. §§ 40-2442 — 40-2444.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 18.5.

Law Reviews.

“To Return the Funds at All”: Global Anticorruption, Forfeiture, and Legal Frameworks for Asset Return, 47 U. Mem. L. Rev. 291 (2016).

NOTES TO DECISIONS

1. Applicability.

Neither T.C.A. § 40-17-118 nor Cruse v. City of Columbia, 922 S.W.2d 492 (Tenn. 1996), applied where petitioner's property was not seized or confiscated as suspected stolen property, but was seized based on an allegation that the property was procured in exchange for a controlled substance or with proceeds traceable to such an exchange under T.C.A. § 53-11-451. Watson v. Tenn. Dep't of Safety, 361 S.W.3d 549, 2011 Tenn. App. LEXIS 535 (Tenn. Ct. App. Sept. 30, 2011), appeal denied, Watson v. State Dep't of Safety, — S.W.3d —, 2012 Tenn. LEXIS 80 (Tenn. Feb. 15, 2012).

2. Return of Property.

An action for the return of confiscated property brought under T.C.A. § 40-17-118 was subject to the three-year statute of limitations contained in § 28-3-105, not the 12-month limitation period in § 29-20-305 of the Government Tort Liability Act. Cruse v. City of Columbia, 922 S.W.2d 492, 1996 Tenn. LEXIS 305 (Tenn. 1996).

40-17-119. [Reserved.]

After a witness called by either the state or the defendant in a criminal case has testified on direct examination, the court shall, on motion, order the state or the defense to produce any statement of the witness in the state's or the defense's possession which relates to the subject matter as to which the witness has testified. Upon request by the state or the defense made upon calling a witness and in advance of direct testimony, the court shall first inspect the statement in camera to determine if it contains matter relating to the subject matter of the testimony. The court shall excise those portions which do not relate to the subject matter of the testimony; however, in the event of conviction and appeal, on motion by either party, the entire statement shall be made available to the reviewing courts. If the party calling a witness elects not to comply with this subsection (a), the court shall have the witness withdraw and shall not allow any direct testimony.
“Statement,” as used in this section, means:
1. A written statement made by a witness and signed, or otherwise adopted or approved by the witness; or
2. A stenographic, mechanical, electrical or other recording of a statement, or a transcript or summary of the statement, which is an essentially verbatim recital of an oral statement made by the witness.

Acts 1976, ch. 628, §§ 1, 2; 1978, ch. 711, § 1; T.C.A. § 40-2446.

Compiler's Notes. This section may be affected by Tenn. R. Crim. P. 16.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 27.225.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 3-26.2-1.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 26; 25 Tenn. Juris., Witnesses, § 33.

Law Reviews.

The Tennessee Jencks Act — An Effective Impeachment Tool for Criminal Law (Stephen P. Parish), 7 Mem. St. U.L. Rev. 655.

NOTES TO DECISIONS

1. Application.

By its terms, this section has application only to statements of witnesses called for direct examination, whether called by the state or by the defendant. McCullough v. State, 578 S.W.2d 368, 1979 Tenn. LEXIS 408 (Tenn. 1979).

2. Cross-Examination.

This section has nothing to do with statements in the possession of the moving party who proposes to cross-examine the witness. McCullough v. State, 578 S.W.2d 368, 1979 Tenn. LEXIS 408 (Tenn. 1979).

40-17-121. Sexual penetration or contact — Victim under 13 years of age.

If the alleged victim of a sexual penetration or sexual contact within the meaning of § 39-13-501 is less than thirteen (13) years of age, the victim shall, regardless of consent, not be considered to be an accomplice to sexual penetration or sexual contact, and no corroboration of the alleged victim's testimony shall be required to secure a conviction if corroboration is necessary solely because the alleged victim consented.

Acts 1991, ch. 253, § 1.

40-17-122. Subpoenas — Rules of Criminal Procedure.

Rule 17 of the Rules of Criminal Procedure shall govern when a clerk or other authorized officer of the court is required to issue a subpoena in a criminal case in criminal court and the consequences of a person's refusal to appear, testify or produce evidence when subpoenaed shall be governed pursuant to that rule. If any local rule of court conflicts with Rule 17, Rule 17 shall prevail and the clerk or other authorized officer of the court shall issue subpoenas and the judge shall punish the refusal to respond to subpoenas in accordance with the rule.

Acts 1997, ch. 377, § 4.

40-17-123. Obtaining subpoena for production of documents or information — Required findings and duties — Self incrimination — Contempt.

The following procedure shall be employed when a law enforcement officer, as defined in § 39-11-106, seeks to obtain a subpoena for the production of books, papers, records, documents, tangible things, or information and data electronically stored for the purpose of establishing, investigating or gathering evidence for the prosecution of a criminal offense.
If the officer has reason to believe that a criminal offense has been committed or is being committed and that requiring the production of documents or information is necessary to establish who committed or is committing the offense or to aid in the investigation and prosecution of the person or persons believed to have committed or believed to be committing the offense, the officer shall prepare an affidavit in accordance with subsection (c).
An affidavit in support of a request to compel the production of books, papers, records, documents, tangible things, or information and data electronically stored shall state with particularity the following:
1. A statement that a specific criminal offense has been committed or is being committed and the nature of the criminal offense;
2. The articulable reasons why the law enforcement officer believes the production of the documents requested will materially assist in the investigation of the specific offense committed or being committed;
3. The custodian of the documents requested and the person, persons or corporation about whom the documents pertain;
4. The specific documents requested to be included in the subpoena; and
5. The nexus between the documents requested and the criminal offense committed or being committed.
1. Upon preparing the affidavit, the law enforcement officer shall submit it to either a judge of a court of record or a general sessions judge who serves the officer's county of jurisdiction. The judge shall examine the affidavit and may examine the affiants under oath. The judge shall grant the request for a subpoena to produce the documents requested if the judge finds that the affiants have presented a reasonable basis for believing that:
  1. A specific criminal offense has been committed or is being committed;
  2. Production of the requested documents will materially assist law enforcement in the establishment or investigation of the offense;
  3. There exists a clear and logical nexus between the documents requested and the offense committed or being committed; and
  4. The scope of the request is not unreasonably broad or the documents unduly burdensome to produce.
2. If the judge finds that all of the criteria set out in subdivision (d)(1) exist as to some of the documents requested but not all of them, the judge may grant the subpoena as to the documents that do, but deny it as to the ones that do not.
3. If the judge finds that all of the criteria set out in subdivision (d)(1) do not exist as to any of the documents requested, the judge shall deny the request for subpoena.
The affidavit filed in support of any request for the issuance of a subpoena pursuant to this section shall be filed with and maintained by the court. If a subpoena is issued as the result of an affidavit, the affidavit shall be kept under seal by the judge until a copy is requested by the district attorney general, criminal charges are filed in the case, or the affidavit is ordered released by a court of record for good cause.
A subpoena granted pursuant to this section by a judge of a court of record shall issue to any part of the state and shall command the person, or designated agent for service of process, to whom it is directed to produce any books, papers, records, documents, tangible things, or information and data electronically stored that is specified in the subpoena, to the law enforcement officer and at any reasonable time and place that is designated in the subpoena. A subpoena granted pursuant to this section by a judge of a court of general sessions shall in all respects be like a subpoena granted by the judge of a court of record but shall issue only within the county in which the sessions judge has jurisdiction. The court shall prepare or cause to be prepared the subpoena and it shall describe the specific materials requested and set forth the date and manner the materials are to be delivered to the officer.
If the subpoena is issued by a judge of a court of record, it may be served by the officer in any county of the state by personal service, registered mail, or by any other means with the consent of the person named in the subpoena. If the subpoena is issued by a judge of a general sessions court it shall be served by an officer with jurisdiction in the county of the issuing judge, but may be served by personal service, registered mail, or by any other means with the consent of the person named in the subpoena. The officer shall maintain a copy of the subpoena and endorse on the subpoena the date and manner of service as proof of service.
No person shall be excused from complying with a subpoena for the production of documentary evidence issued pursuant to this section on the ground that production of the requested materials may tend to incriminate the person. Any person claiming a privilege against self incrimination must assert the claim before the court issuing the subpoena and before the time designated for compliance therewith. If the district attorney general thereafter certifies to the court that the interests of justice demands the production of the requested materials for which the claim of privilege is asserted, then the court shall order the production of the materials and no individual shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning the requested materials the person was compelled to produce. If the person fails to assert the privilege against self-incrimination, the person may raise this issue later but will not be entitled to immunity from prosecution.
No subpoena for the production of documentary evidence authorized by this section shall be directed to, or served upon, any defendant, or that defendant's counsel, to a criminal action in this state.
If any person without cause refuses to produce the requested materials within the time and manner designated for compliance by the issuing judge, the district attorney may file a motion for civil contempt with the court with the motion and show cause order being served upon the person. The order shall designate a time and place for a hearing on the merits. If at the hearing the court finds that the person has willfully refused to produce the requested materials, the court may find that the person is in civil contempt and may assess sanctions accordingly including incarcerating the person with or without bond being set until compliance with the subpoena is satisfied. If the person fails to appear for the hearing, the court may issue a writ of attachment for the person.
A person to whom a subpoena is directed may file a motion to quash or modify the subpoena upon a showing that compliance would be unreasonable or oppressive. The person shall file any such motion stating an objection to the subpoena with the clerk of the court for the issuing judge within seven (7) days of service of the subpoena. The filing of the motion shall stay all proceedings pending the outcome of a hearing before the issuing judge. The judge shall conduct the hearing within seven (7) days of the filing of the motion.
Notwithstanding subsections (a)-(k), a subpoena shall also comply with the Financial Records Privacy Act, compiled in title 45, chapter 10, as to any records or persons covered by that Act.

Acts 2002, ch. 849, § 11.

Cross-References. Certified mail in lieu of registered mail, § 1-3-111.

Contempt of court, title 29, ch. 9.

Attorney General Opinions. District attorney general's subpoena authority under T.C.A. § 40-17-123, OAG 05-153 (10/10/05).

NOTES TO DECISIONS

1. Requirements for Issuance.

Judicial subpoena issued pursuant to T.C.A. § 40-17-123 is an invalid mechanism for discovery of mental health records made confidential under T.C.A. § 33-3-103. Going forward, involuntary disclosure of such records in criminal investigations must proceed in accordance with T.C.A. § 33-3-105. In re Centerstone, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 21 (Tenn. Crim. App. Jan. 17, 2017).

Trial court's denial of a motion to quash a judicial subpoena issued to a mental health services provider pursuant to T.C.A. § 40-17-123 for the mental health records of the victim in an underlying criminal case was subject to vacation, where the trial court did not make a determination under T.C.A. § 33-3-105(3) and did not give the victim an opportunity to be heard on this matter. In re Centerstone, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 21 (Tenn. Crim. App. Jan. 17, 2017).

Trial court did not err in denying defendant's motion to suppress his cell phone's call data records obtained pursuant to a judicial subpoena because the information in the affidavit was sufficient, as it provided that defendant was a suspect in a murder, that evidence indicated that defendant had planned the murder in advance, and that the records were needed to gain additional information relating to his involvement in the murder. It was reasonable to believe that defendant would have utilized his cell phone in planning the murder. State v. Brown, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 220 (Tenn. Crim. App. Apr. 8, 2019).

1.5. Timely Challenge.

Defendant's motion to suppress his cell phone's call data records obtained pursuant to a judicial subpoena, filed more than two years prior to trial, was not untimely because defendant's cell phone carrier, and not defendant, was the “person to whom a subpoena was directed,” and defendant could not have challenged the subpoena within seven days of its service because he was not given notice of its issuance. State v. Brown, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 220 (Tenn. Crim. App. Apr. 8, 2019).

40-17-124. Sex offenses where victim is less than thirteen (13) years of age.

Notwithstanding any rule or statute to the contrary, in a criminal case:
1. If the defendant is charged with any sex offense specified in §§ 39-13-502 — 39-13-506; 39-13-511, provided that the offense of public indecency or indecent exposure constitutes a Class A misdemeanor or Class E felony violation; 39-13-513 — 39-13-516; 39-13-522; 39-13-527; 39-13-528; or 39-15-302; or is charged with the offense of attempting, soliciting or conspiring to commit any sex offense;
2. If the victim is less than thirteen (13) years of age;
3. If the defendant possesses a prior conviction for any sex offense described in §§ 39-13-502 — 39-13-506 and 39-13-511; provided, that the offense of public indecency or indecent exposure constitutes a Class A misdemeanor or Class E felony violation, 39-13-513 — 39-13-516; 39-13-522; 39-13-527; 39-13-528; or 39-15-302, or a prior conviction for attempting, soliciting or conspiring to commit any sex offense; and
4. If the victim of the prior offense was also less than thirteen (13) years of age;
  then evidence of the defendant's prior conviction is admissible and may be considered for its bearing on any matter to which it is relevant, subject to Rule 403 of the Tennessee Rules of Evidence.
Notwithstanding any rule or statute to the contrary, in a case in which the state intends to offer evidence under this section, the state shall disclose the evidence to the defendant including a summary of the substance of any testimony that is expected to be offered, at least fifteen (15) days before the scheduled date of trial or at a later time as the court may allow for good cause.
Nothing in this section shall be construed to limit the admissibility or consideration of evidence under any other rule or statute.

Acts 2004, ch. 817, § 1.

Cross-References. Penalty for Class A misdemeanor, § 40-35-110.

Penalty for Class E felony § 40-35-110.

Law Reviews.

The Constitutional Prohibition Against Sausage-Making (Donald F. Paine), 40 No. 8 Tenn. B.J. 35 (2004).

40-17-125. Subpoena requiring production of documentation and testimony in investigations of offenses of sexual exploitation of a minor.

In any investigation relating to the offenses of sexual exploitation of a minor, as defined in § 39-17-1003, aggravated sexual exploitation of a minor, as defined in § 39-17-1004, or especially aggravated sexual exploitation of a minor, as defined in § 39-17-1005, and upon reasonable cause to believe that an internet service account has been used in the exploitation or attempted exploitation of a minor, the district attorney general or an assistant district attorney general may issue in writing and cause to be served a subpoena requiring the production and testimony described in subsection (b).
Except as provided in subsection (c), a subpoena issued under this section is authorized to require the production of any records or other documentation relevant to the investigation including:
1. Name;
2. Address;
3. Local and long distance telephone connection records, or records of session times and durations;
4. Length of service, including start date, and types of service utilized;
5. Telephone or instrument number or other subscriber number of identity, including any temporarily assigned network address; and
6. Means and source of payment for such service, including any credit card or bank account number.
The provider of electronic communication service or remote computing service shall not disclose the following pursuant to a subpoena but may only do so pursuant to a warrant issued by a court of competent jurisdiction:
1. In-transit electronic communications;
2. Account memberships related to internet groups, newsgroups, mailing lists or specific areas of interest;
3. Account passwords; and
4. Account content to include:
  1. Electronic mail in any form;
  2. Address books, contact lists, or buddy lists;
  3. Financial records;
  4. Internet proxy content or internet history; and
  5. Files or other digital documents stored within the account or pursuant to use of the account.
At any time before the return date specified on the subpoena, the person summoned may, in the general sessions court of the county in which the person resides or does business, petition for an order modifying or quashing the subpoena, or a prohibition of disclosure by a court.
A subpoena under this section shall describe the objects required to be produced and shall prescribe a return date within a reasonable period of time within which the objects can be assembled and made available.
If no case or proceeding arises from the production of records or other documentation pursuant to this section within a reasonable time after those records or documentation are produced, the district attorney general shall either destroy the records and documentation or return them to the person who produced them.
A subpoena issued under this section may be served by any person who is authorized to serve process under the Tennessee Rules of Civil Procedure and such subpoena shall be served in accordance with such rules.
Each district attorney general shall annually report the following information to the judiciary committee of the senate and the judiciary committee of the house of representatives no later than February 1 for the preceding calendar year:
1. The number of requests for administrative subpoenas made under this section;
2. The number of administrative subpoenas issued under this section;
3. The number of administrative subpoenas issued under this section that were contested;
4. The number of administrative subpoenas issued under this section that were quashed or modified;
5. The number of search warrants that were issued as a consequence of the issuance of an administrative subpoena under this section; and
6. The number of individuals who were prosecuted under §§ 39-17-1003, 39-17-1004, and 39-17-1005 following the issuance of an administrative subpoena under this section.
Except as provided in subsection (h), any information, records or data reported or obtained pursuant to a subpoena issued pursuant to this section shall remain confidential and shall not be further disclosed unless in connection with a criminal case related to the subpoenaed materials.

Acts 2010, ch. 613, § 1; 2013, ch. 236, § 35; 2019, ch. 345, § 56.

Amendments. The 2019 amendment substituted “judiciary” for “criminal justice” preceding “committee of the house” in (h).

Effective Dates. Acts 2019, ch. 345, § 148. May 10, 2019.

Cross-References. Confidentiality of public records, § 10-7-504.

Part 2
Uniform Law to Secure Attendance of Witnesses

40-17-201. Short title.

This part shall be known and may be cited as the “Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings.”

Acts 1939, ch. 148, § 1; C. Supp. 1950, § 11979.1; T.C.A. (orig. ed.), § 40-2429.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 23.30, 23.35.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 3-17-4.

Tennessee Jurisprudence, 25 Tenn. Juris., Witnesses, §§ 3, 7.

Tennessee Law of Evidence (2nd ed., Cohen, Paine and Sheppeard), § 804(a).5.

Law Reviews.

Confrontation: Prior Testimony, Confessions and the Sixth Amendment (George Merton Derryberry), 36 Tenn. L. Rev. 382.

NOTES TO DECISIONS

1. Application and Scope.

The uniform law applies only to states and territories of the United States and the District of Columbia and has no effect with respect to foreign countries. Stubbs v. State, 216 Tenn. 567, 393 S.W.2d 150, 1965 Tenn. LEXIS 600 (1965), rehearing denied, 216 Tenn. 567, 393 S.W.2d 150, 1965 Tenn. LEXIS 601 (1965).

2. Witness Outside Country.

Testimony of living witness residing out of jurisdiction of United States which was taken at former trial of defendant for same offense and the witness subjected to cross-examination could be introduced at second trial after first conviction was held void. Stubbs v. State, 216 Tenn. 567, 393 S.W.2d 150, 1965 Tenn. LEXIS 600 (1965), rehearing denied, 216 Tenn. 567, 393 S.W.2d 150, 1965 Tenn. LEXIS 601 (1965).

40-17-202. Part definitions.

As used in this part, unless the context otherwise requires:

“State” includes any territory of the United States and the District of Columbia;
“Summons” includes a subpoena, order or other notice requiring the appearance of a witness; and
“Witness” includes a person whose testimony is desired in any proceeding or investigation by a grand jury or in a criminal action, prosecution or proceeding.

Acts 1939, ch. 148, § 2; C. Supp. 1950, § 11979.2; T.C.A. (orig. ed.), § 40-2430.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 23.30.

40-17-203. Hearing on summons of witness to testify in another state.

If a judge of a court of record in any state, which by its laws has made provision for commanding persons within that state to attend and testify in this state, certifies under the seal of the court that there is a criminal prosecution pending in the court, or that a grand jury investigation has commenced or is about to commence, and that a person being within this state is a material witness in the prosecution or grand jury investigation, and that the witness's presence will be required for a specified number of days, upon presentation of the certificate to any judge of a court of record in the county in which the person is found, the judge shall fix a time and place for a hearing, and shall make an order directing the witness to appear at a time and place certain for the hearing.

Acts 1939, ch. 148, § 3; C. Supp. 1950, § 11979.3; T.C.A. (orig. ed.), § 40-2431.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 23.32.

40-17-204. Issuance of summons.

If, at a hearing, the judge determines that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in the prosecution or a grand jury investigation in the other state, and that the laws of the state in which the prosecution is pending or grand jury investigation has commenced or is about to commence, and of any other state through which the witness may be required to pass by ordinary course of travel, will give to the witness protection from arrest and the service of civil and criminal process, the judge shall issue a summons, with a copy of the certificate attached, directing the witness to attend and testify in the court where the prosecution is pending or where a grand jury investigation has commenced or is about to commence, at a time and place specified in the summons. In any such hearing, the certificate shall be prima facie evidence of all the facts stated in the certificate.

Acts 1939, ch. 148, § 3; C. Supp. 1950, § 11979.3; T.C.A. (orig. ed.), § 40-2432.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 23.32.

NOTES TO DECISIONS

1. Judge's Discretion.

Trial judge's refusal to grant a defense motion that the testimony of a fugitive witness be secured was not error where motion was not argued until shortly before the trial, arrest of fugitive witness was apparently not possible, and there was no showing that the testimony of the fugitive would have been beneficial to the defendant. Lee v. State, 498 S.W.2d 909, 1973 Tenn. Crim. App. LEXIS 265 (Tenn. Crim. App. 1973).

40-17-205. Ordering witness into custody.

If the certificate recommends that the witness be taken into immediate custody and delivered to an officer of the requesting state to assure the witness's attendance in the requesting state, the judge may, in lieu of notification of the hearing, direct that the witness be immediately brought before the judge for the hearing. The judge at the hearing, being satisfied of the desirability of the custody and delivery, for which determination the certificate shall be prima facie proof, may, in lieu of issuing a subpoena or summons, order that the witness be taken into custody immediately and delivered to an officer of the requesting state.

Acts 1939, ch. 148, § 3; C. Supp. 1950, § 11979.3; T.C.A. (orig. ed.), § 40-2433.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 23.32.

Tennessee Law of Evidence (2nd ed., Cohen, Paine and Sheppeard), § 804(a).5.

40-17-206. Penalty for failure to obey summons.

If the witness who is summoned as provided in §§ 40-17-203 — 40-17-205, after being paid or tendered, by some properly authorized person, compensation in accordance with title 24, chapter 4 for expenses incurred for each day the witness is required to travel and attend as a witness, fails without good cause to attend and testify as directed in the summons, the witness shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this state.

Acts 1939, ch. 148, § 3; C. Supp. 1950, § 11979.3; Acts 1971, ch. 119, § 1; 1979, ch. 392, § 3; T.C.A. (orig. ed.), § 40-2434.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 23.32.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

40-17-207. Certificate recommending summons of witness from another state.

If a person in any state, which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions, or grand jury investigations commenced or about to commence in this state, is a material witness in a prosecution pending in a court of record in this state, or in a grand jury investigation which has commenced or is about to commence, a judge of the court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required. The certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this state to assure the witness' attendance in this state. This certificate shall be presented to a judge of a court of record in the county in which the witness is found.

Acts 1939, ch. 148, § 4; C. Supp. 1950, § 11979.4; T.C.A. (orig. ed.), § 40-2435.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 23.31, 23.32.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 3-17-4, 3-17-5.

NOTES TO DECISIONS

1. Presence not Required.

Trial court did not err in refusing to require the presence of laboratory technician who tested samples of hair found at the scene of a murder, since the necessary material and competent proof sought to be established by the witness was established by stipulation. State v. Harris, 839 S.W.2d 54, 1992 Tenn. LEXIS 348 (Tenn. 1992), rehearing denied, — S.W.2d —, 1992 Tenn. LEXIS 557 (Tenn. Sept. 8, 1992), cert. denied, Harris v. Tennessee, 507 U.S. 954, 113 S. Ct. 1368, 122 L. Ed. 2d 746, 1993 U.S. LEXIS 1703 (1993)

2. Requirements.

A defendant seeking to secure the presence of an out-of-state witness must demonstrate that the witness will offer material testimony. State v. Harris, 839 S.W.2d 54, 1992 Tenn. LEXIS 348 (Tenn. 1992), rehearing denied, — S.W.2d —, 1992 Tenn. LEXIS 557 (Tenn. Sept. 8, 1992), cert. denied, Harris v. Tennessee, 507 U.S. 954, 113 S. Ct. 1368, 122 L. Ed. 2d 746, 1993 U.S. LEXIS 1703 (1993)

40-17-208. Witness fees — Failure to testify after coming into state.

If the witness is summoned to attend and testify in this state, the witness shall be tendered compensation for expenses so incurred in accordance with title 24, chapter 4. A witness who has appeared in accordance with the provisions of the summons shall not be required to remain within this state a longer period of time than the period mentioned in the certificate, unless otherwise ordered by the court. If the witness, after coming into this state, fails without good cause to attend and testify, as directed in the summons, the witness shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this state.

Acts 1939, ch. 148, § 4; C. Supp. 1950, § 11979.4; Acts 1971, ch. 119, § 1; 1979, ch. 392, § 4; T.C.A. (orig. ed.), § 40-2436.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 23.15, 23.32, 23.33.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

Attorney General Opinions. Travel reimbursement for out-of-state witnesses in misdemeanor cases, OAG 99-057 (3/9/99).

40-17-209. Immunities of witnesses entering or passing through state on summons.

If a person comes into this state in obedience to a summons directing the witness to attend and testify in this state, the witness shall not, while in this state pursuant to the summons, be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before the witness's entrance into this state under the summons.
If a person passes through this state while going to another state in obedience to a summons to attend and testify in that state, or while returning from that other state, the witness shall not, while so passing through this state, be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before the witness's entrance into this state under the summons.

Acts 1939, ch. 148, § 5; C. Supp. 1950, § 11979.5; T.C.A. (orig. ed.), § 40-2437.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 18.153, 23.33, 23.13.

40-17-210. Uniformity of construction.

This part shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of the states which enact it.

Acts 1939, ch. 148, § 6; C. Supp. 1950, § 11979.6; T.C.A. (orig. ed.), § 40-2438.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 23.30.

Tennessee Law of Evidence (2nd ed., Cohen, Paine and Sheppeard), § 804(a).5.

40-17-211. Prisoners as witnesses in criminal proceedings in a state other than that in which they are confined.

If a judge of a court of record in any other state, which by its laws has made provision for commanding a prisoner within that state to attend and testify in this state, certifies under the seal of the court that:
1. There is a criminal prosecution pending in that court or that a grand jury investigation has commenced;
2. A person convicted, sentenced and confined in a state or local custodial facility, other than a person awaiting execution of a sentence of death, is a material witness in the prosecution or investigation; and
3. The person's presence is required for a specific number of days;
  a judge of a court with jurisdiction to try felony cases in the county where the person is confined, after notice to the district attorney general, shall fix a time and place for a hearing and shall order the person having custody of the prisoner to produce the prisoner at the hearing.
If, at that hearing, the judge determines that the prisoner is a material and necessary witness in the requesting state, the judge shall issue an order directing that the prisoner attend the court where the prosecution or investigation is pending, upon the terms and conditions as the judge prescribes, including:
1. Provision for the return of the prisoner at the conclusion of the prisoner's testimony;
2. Proper safeguards on the prisoner's custody; and
3. Proper financial reimbursement or other payment by the demanding jurisdiction for all expenses incurred in the production and return of the prisoner.
The district attorney general is authorized to enter into agreements with authorities of the demanding jurisdiction to ensure proper compliance with the order of the court.
When a criminal action is pending in a court of record of this state by reason of the filing of an indictment or presentment or by reason of the commencement of a grand jury proceeding or investigation, if:
1. There is reasonable cause to believe that a person convicted, sentenced and confined in a state or local custodial facility of another state, other than a person awaiting execution of a sentence of death or one confined as mentally ill, possesses information material to the criminal action;
2. The attendance of the person as a witness in the action is desired by a party; and
3. The state in which the person is confined possesses a statute equivalent to this section;
  a judge of the court in which the action is pending may issue a certificate certifying all the facts and that the attendance of the person as a witness in the court is required for a specific number of days. The certificate may be issued upon application of either the state or defendant demonstrating all the facts specified in this section.
Upon issuing a certificate, the court shall deliver it, or cause or authorize it to be delivered, to a court of the other state which, pursuant to the laws of that state, is authorized to undertake legal action for the delivery of the prisoner to this state as a witness.

Acts 1990, ch. 697, § 1.

40-17-212. Request for attendance of federal prisoner as witness in state criminal proceedings.

When a criminal action is pending in a court of record of this state by reason of the filing of an indictment or presentment or by reason of the commencement of a grand jury proceeding or investigation, if:
1. There is reasonable cause to believe that a person confined in a federal prison or other federal custody, either within or outside this state, possesses information material to criminal action; and
2. The attendance of the person as a witness in the action is desired by a party;
  the court may issue a certificate, known as a writ of habeas corpus ad testificandum, addressed to the attorney general of the United States certifying all such facts and requesting the attorney general to cause the attendance of the person as a witness in that court for a specified number of days.
The certificate may be issued upon application of either the state or defendant demonstrating all the facts specified in this section.
Upon issuing the certificate, the court shall deliver it, or cause or authorize it to be delivered, to the attorney general or to the attorney general's representative authorized to entertain the request.

Acts 1990, ch. 697, § 1.

40-17-103. Failure of defendant to testify.

40-17-105. Meeting witnesses face to face — Compulsory process.

40-17-120. Prior statements of witnesses — Requiring production.

Chapter 18
Trial and Verdict

40-18-101. Designation of state's day.

It is the duty of the judge of each circuit court to designate a day or days of the term, to be known as the state's day, on which to take up the criminal docket, and to dispose of criminal cases.

Code 1858, § 5594 (deriv. Acts 1843-1844, ch. 215, § 5); Shan., § 7635; mod. Code 1932, § 12264; T.C.A. (orig. ed.), § 40-2501.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 24.17.

40-18-102. Rules of practice.

It is the duty of the judge of each circuit court to adopt such rules of practice in the trial of criminal cases, from time to time, as may tend to diminish the costs of criminal cases.

Code 1858, § 5595 (deriv. Acts 1843-1844, ch. 215, § 5); Shan., § 7636; Code 1932, § 12265; T.C.A. (orig. ed.), § 40-2502.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 24.18.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

NOTES TO DECISIONS

1. In General.

A trial judge acted properly in continuing from Thursday until Monday a trial expected to last four days in order to avoid the need to select a jury from the panel on Thursday and sequester them over the weekend, for to do so otherwise would have violated this section. Bouchard v. State, 554 S.W.2d 654, 1977 Tenn. Crim. App. LEXIS 305 (Tenn. Crim. App. 1977).

40-18-103. Time for trial — Continuance. [Obsolete except for persons previously convicted of Class X felonies.]

Except as otherwise provided by this section, any charge of a Class X felony shall be tried within one hundred fifty (150) days following arraignment unless delay is occasioned by the defendant, by an examination for competency ordered pursuant to § 33-7-301, by a competency hearing, by an adjudication of incompetency for trial, by a continuance allowed after a court's determination of the defendant's physical incapacity for trial, or by an interlocutory appeal.
Where the indictment charges a Class X felony, the trial court, in its discretion, may continue the action only upon the filing of an affidavit by the party seeking the continuance demonstrating that a manifest injustice will result if the action is not continued. Whenever the trial of a Class X felony is continued, it shall within thirty (30) days be set for trial unless the court will not be in session or unless another trial date has been agreed to by the parties and approved by the court. This continuance may be from term to term. The trial court may continue a trial pursuant to this subsection (b) on its own motion if the trial of another Class X felony is in progress at the time set for trial or has been set to conflict with the time needed to try a criminal case where both parties agree.
Upon good cause shown, either before or after the indictment on a charge other than a Class X felony, the trial court may order the action to be continued from term to term and, in the meantime, may discharge the defendant from custody on the defendant's own undertaking, or on the undertaking of bail for appearance to answer the charge at the time to which the action is continued.
Upon the motion of a member of the general assembly qualified to make a motion under this section, or the member's attorney or representative, a continuance shall be granted by the trial court at any stage of any action, if it is shown to the satisfaction of the court that an attorney, party or material witness in a criminal prosecution is a member of the general assembly and that:
1. The general assembly is in annual regular session or special session; or
2. The attorney, party or material witness would be required to be absent from any meeting of a legislative committee while the general assembly is not in session if a continuance is not granted.
Failure to comply with subsections (a)-(d) shall not act to require release of a defendant from custody or a dismissal or withdrawal of charges.
Any hearing on a motion for a new trial or on any subsequent appeal, the hearing or trial shall be set, and shall be subject to continuance, substantially in conformity with this section in order to provide for an expedited hearing.

Code 1858, § 5192; Shan., § 7156; Code 1932, § 11718; Acts 1971, ch. 121, § 1; 1979, ch. 318, § 19; 1981, ch. 62, § 1; T.C.A. (orig. ed.), § 40-2503.

Code Commission Notes.

The Sentencing Reform Act of 1989 in effect repealed the Class X Felonies Act of 1979. See ch. 35 of this title.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 12.11, 16.91, 24.80, 24.88, 24.90.

Tennessee Jurisprudence, 6A Tenn. Juris., Constitutional Law, § 44.

NOTES TO DECISIONS

1. Absence of Material Witness.

Postponement of trial due to the absence of a material witness for the prosecution does not violate defendant's constitutional rights. Peppers v. Daniel, 306 F. Supp. 1225, 1969 U.S. Dist. LEXIS 8869 (E.D. Tenn. 1969).

2. Availability of Victim.

The continuance of a trial to the next term of the court complies with the requirement of good cause where the prosecuting attorney had shown that the alleged victim of the crime was unavailable to testify at the time originally scheduled for trial. Peppers v. Daniel, 306 F. Supp. 1225, 1969 U.S. Dist. LEXIS 8869 (E.D. Tenn. 1969).

3. Right to Speedy Trial.

Although a violation of this section is certainly some indicia to be considered in determining whether an individual has been denied his constitutional right to a speedy trial, the criteria in this section is not to be confused with the right reserved to a criminal defendant under the constitution. State v. Wilcoxson, 772 S.W.2d 33, 1989 Tenn. LEXIS 143 (Tenn. 1989), rehearing denied, 772 S.W.2d 33, 1989 Tenn. LEXIS 316 (Tenn. 1989), cert. denied, Wilcoxson v. Tennessee, 494 U.S. 1074, 110 S. Ct. 1798, 108 L. Ed. 2d 799, 1990 U.S. LEXIS 1695 (1990).

The state's admitted failure to comply with this section, due to an overcrowded docket, did not require release of the defendant or dismissal of the charges. State v. Brooks, 880 S.W.2d 390, 1993 Tenn. Crim. App. LEXIS 616 (Tenn. Crim. App. 1993), rehearing denied, — S.W.2d —, 1993 Tenn. Crim. App. LEXIS 761 (Tenn. Crim. App. Nov. 18, 1993).

40-18-104. Drawing of jurors' names.

The names of the jurors are written on separate scrolls, placed in a box or other receptacle, and drawn out by a child under ten (10) years of age, by the judge, or some person agreed upon by the district attorney general and the defendant.

Code 1858, § 5213; Shan., § 7182; Code 1932, § 11746; modified; T.C.A. (orig. ed.), § 40-2506.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 25.26, 25.41.

NOTES TO DECISIONS

1. Refusing Random Selection.

There being no proof that the venire was not selected at random, it was not error for the court to refuse to grant random selection for jurors. Wade v. State, 529 S.W.2d 739, 1975 Tenn. Crim. App. LEXIS 289 (Tenn. Crim. App. 1975).

2. Failure to Object.

An attack upon the composition of the venire, made for the first time after a trial which might have resulted in an acquittal, is untimely. Lillard v. State, 528 S.W.2d 207, 1975 Tenn. Crim. App. LEXIS 324, 81 A.L.R.3d 1217 (Tenn. Crim. App. 1975).

40-18-105. Challenge of juror acting as bail.

A challenge to an individual juror, grand or petit, may be made by the state because the juror is surety on the bail undertaking of any person whose case will come before the jury on which service is required.

Code 1932, § 10013; T.C.A. (orig. ed.), § 40-2508.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 25.45.

40-18-106. Jurors sworn together.

In impaneling a jury for the trial of any felony, the court shall not swear any of the jurors until the whole number is selected for a jury.

Code 1858, § 5215 (deriv. Acts 1817, ch. 171 (172 in Scott's Revisal), § 6); Shan., § 7184; Code 1932, § 11748; T.C.A. (orig. ed.), § 40-2511.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 25.64.

NOTES TO DECISIONS

1. Presumption of Swearing.

There is a presumption that the jury were sworn, in the absence of any contrary showing, especially where the objection was made for the first time on appeal; because, in such case, it will be presumed that the jury were sworn, and by clerical omission the fact was not made a part of the minute entry. Clark v. State, 67 Tenn. 591, 1876 Tenn. LEXIS 13 (1876); Robertson v. State, 72 Tenn. 425, 1880 Tenn. LEXIS 37 (1880); Hobbs v. State, 121 Tenn. 413, 118 S.W. 262, 1908 Tenn. LEXIS 27 (1908).

2. Swearing Together.

Where eight jurors after selection in murder trial were taken from courtroom with a sworn officer, and each juror selected thereafter was taken by sworn officer to place where the rest of the jury were waiting, and all were thereafter sworn in together there was no violation of rights of defendant. Kennon v. State, 181 Tenn. 415, 181 S.W.2d 364, 1944 Tenn. LEXIS 386 (1944).

3. Waiver of Objection.

Objection for failure to swear jury is waived by going to trial without objection. Hobbs v. State, 121 Tenn. 413, 118 S.W. 262, 1908 Tenn. LEXIS 27 (1908).

40-18-107. Boarding jurors.

When, in the judgment of the court trying criminal cases, wholesome food and proper lodging cannot be provided for the petit jurors for a lesser sum, the court shall have the power to make arrangements to provide the jurors with proper board and lodging while serving on the jury, and to pay for board and lodging daily a sum not to exceed one thousand dollars ($1,000) per jury per day of service.
Notwithstanding subsection (a), if a judicial proceeding is transferred from one jurisdiction to another for trial on a defendant's motion for change of venue, then the limitation of one thousand dollars ($1,000) for the board and lodging of the jury shall not apply; provided, that the comptroller of the treasury, on the advice of the attorney general and reporter, determines that additional funds for boarding and lodging of the jury are necessary.

Acts 1919, ch. 27; Shan. Supp., § 5844; Code 1932, § 10044; mod. C. Supp. 1950, § 10044; Acts 1963, ch. 164, § 1; 1971, ch. 325, § 1; 1982, ch. 926, § 1; T.C.A. (orig. ed.), § 40-2512; Acts 1983, ch. 455, § 1; 1984, ch. 981, §§ 1, 2; 2006, ch. 898, § 1; 2013, ch. 454, § 23.

Cross-References. Certification and payment of jury expenses, §§ 40-25-115, 40-25-116, 40-25-117, 40-25-118, 40-25-119.

40-18-108. Discharge of jury.

A final adjournment of the court discharges the jury.

Code 1858, §§ 5218, 5219; Shan., §§ 7191, 7192; Code 1932, §§ 11754, 11755; T.C.A. (orig. ed.), §§ 40-2513, 40-2514; Acts 2008, ch. 1159, § 4.

Textbooks. Tennessee Jurisprudence, 17 Tenn. Juris., Jury, § 44.

40-18-109. Retrial after discharge of jury.

In all cases where a jury is legally discharged, the case may be again tried at the same or another term of the court.

Code 1858, § 5221; Shan., § 7194; Code 1932, § 11757; T.C.A. (orig. ed.), § 40-2515.

Textbooks. Tennessee Jurisprudence, 17 Tenn. Juris., Jury, § 44.

Law Reviews.

Tennessee Criminal Law: An Overview of the Courts and a Compendium of Tennessee Criminal Procedure (Michael R. Tilley), 5 Mem. St. U.L. Rev. 90.

NOTES TO DECISIONS

1. In General.

A subsequent trial may be held where the public interest in a fair trial outweighs the right of the accused to have an end to the litigation. Arnold v. State, 563 S.W.2d 792, 1977 Tenn. Crim. App. LEXIS 266 (Tenn. Crim. App. 1977).

2. Number of Retrials.

There is no authority that holds that an accused may be discharged merely on the basis of a numerical mistrial formula. Arnold v. State, 563 S.W.2d 792, 1977 Tenn. Crim. App. LEXIS 266 (Tenn. Crim. App. 1977).

Where the first trial ended in a mistrial because of an improper remark and the second and third trials ended in mistrials because the juries were unable to reach a verdict it was proper under the manifest necessity doctrine to allow a fourth trial. Arnold v. State, 563 S.W.2d 792, 1977 Tenn. Crim. App. LEXIS 266 (Tenn. Crim. App. 1977).

40-18-110. Charge as to lesser included offenses — Written request.

When requested by a party in writing prior to the trial judge's instructions to the jury in a criminal case, the trial judge shall instruct the jury as to the law of each offense specifically identified in the request that is a lesser included offense of the offense charged in the indictment or presentment. However, the trial judge shall not instruct the jury as to any lesser included offense unless the judge determines that the record contains any evidence which reasonable minds could accept as to the lesser included offense. In making this determination, the trial judge shall view the evidence liberally in the light most favorable to the existence of the lesser included offense without making any judgment on the credibility of evidence. The trial judge shall also determine whether the evidence, viewed in this light, is legally sufficient to support a conviction for the lesser included offense.
In the absence of a written request from a party specifically identifying the particular lesser included offense or offenses on which a jury instruction is sought, the trial judge may charge the jury on any lesser included offense or offenses, but no party shall be entitled to any lesser included offense charge.
Notwithstanding any other provision of law to the contrary, when the defendant fails to request the instruction of a lesser included offense as required by this section, the lesser included offense instruction is waived. Absent a written request, the failure of a trial judge to instruct the jury on any lesser included offense may not be presented as a ground for relief either in a motion for a new trial or on appeal.
Prior to instructing the jury on the law, the trial judge shall give the parties an opportunity to object to the proposed lesser included offense instructions. If the defendant fails to object to a lesser included offense instruction, the inclusion of that lesser included offense instruction may not be presented as a ground for relief either in a motion for a new trial or on appeal. Where the defendant objects to an instruction on a lesser included offense and the judge does not instruct the jury on that offense, the objection shall constitute a waiver of any objection in the motion for a new trial or on appeal concerning the failure to instruct on that lesser included offense. The defendant's objection shall not prevent the district attorney general from requesting lesser included offense instructions or prevent the judge from instructing on lesser included offenses.
When the defendant requests an instruction on a lesser included offense, the judge may condition the instruction on the defendant's consent to an amendment to the indictment or presentment, with the consent of the district attorney general, so that if there is a conviction for the requested lesser offense the request shall constitute a waiver of any objection in the motion for new trial and on appeal. The defendant may be required to execute a written document actually consenting to the amendment so that there may be a lawful conviction for the lesser offense. If the district attorney general does not consent to the amendment, the defendant may raise the issue of failure to give the requested charge on appeal. This subsection (e) shall not be construed as requiring an instruction on a lesser offense.
An offense is a lesser included offense if:
1. All of its statutory elements are included within the statutory elements of the offense charged;
2. The offense is facilitation of the offense charged or of an offense that otherwise meets the definition of lesser included offense in subdivision (f)(1);
3. The offense is an attempt to commit the offense charged or an offense that otherwise meets the definition of lesser included offense in subdivision (f)(1); or
4. The offense is solicitation to commit the offense charged or an offense that otherwise meets the definition of lesser included offense in subdivision (f)(1).
1. Second degree murder is a lesser included offense of first degree murder as defined in § 39-13-202.
2. Voluntary manslaughter is a lesser included offense of premeditated first degree murder and second degree murder.
3. Aggravated sexual battery is a lesser included offense of aggravated rape, aggravated rape of a child, and rape of a child.
4. Sexual battery and sexual battery by an authority figure are lesser included offenses of rape and aggravated rape.

Acts 1877, ch. 85, § 1; Shan., § 7188; Code 1932, § 11751; Acts 1979, ch. 318, § 25; T.C.A. (orig. ed.), § 40-2518; Acts 2001, ch. 338, § 1; 2009, ch. 439, § 1; 2016, ch. 671, § 1.

Compiler's Notes. Acts 2001, ch. 338, § 2, provided that the amendment by the act shall govern all trials conducted on or after January 1, 2002.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 25.48, 30.70, 30.73.

Tennessee Jurisprudence, 10 Tenn. Juris., Drugs and Druggists, § 5; 14 Tenn. Juris., Homicide, §§ 50, 51; 15 Tenn. Juris., Instructions, §§ 3, 5; 21 Tenn. Juris., Rape, § 7.

Law Reviews.

Criminal Law in Tennessee in 1979 — A Critical Survey, III. Procedure (Joseph G. Cook), 48 Tenn. L. Rev. 19 (1980).

New Rules Regarding Lesser Included Offense Instructions (David L. Raybin), 37 No. 11 Tenn. B.J. 32 (2001).

NOTES TO DECISIONS

1. Application.

Possession of a firearm during the commission of a dangerous felony qualifies as a lesser included offense of employment of a firearm during the commission of a dangerous felony. State v. Fayne, 451 S.W.3d 362, 2014 Tenn. LEXIS 872 (Tenn. Oct. 27, 2014).

Court of criminal appeals erred in holding that a trial counsel's failure to request a jury instruction on a lesser-included offense is never prejudicial to a defendant found guilty of a greater offense; under certain facts and circumstances, a trial counsel's failure to request a jury instruction on a lesser-included offense could be prejudicial to a defendant and entitle him or her to post-conviction relief based on ineffective assistance of counsel. Bryant v. State, 460 S.W.3d 513, 2015 Tenn. LEXIS 182 (Tenn. Mar. 13, 2015), overruled in part, Moore v. State, 485 S.W.3d 411, 2016 Tenn. LEXIS 176 (Tenn. Mar. 16, 2016).

Trial court instructed the jury on aggravated sexual battery as a lesser-included offense of rape of a child pursuant to case law, and the amendment to the statute that held that aggravated sexual battery was no longer a lesser included offense of rape of a child did not take effect until 2009, after the offenses in this case; thus, the appellant has failed to show that a clear and unequivocal rule of law was breached, and no plain error was found. State v. Whitehair, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 171 (Tenn. Crim. App. Mar. 8, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 741 (Tenn. Oct. 20, 2016).

Regardless of whether part (b) of the test for lesser included offenses is abrogated by the statute, voluntary manslaughter is a lesser included offense of second degree murder and contains a statutory element establishing a different mental state indicating a lesser degree of culpability. State v. Moore, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 356 (Tenn. Crim. App. May 12, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 692 (Tenn. Sept. 22, 2016), cert. denied, Moore v. Tennessee, 197 L. Ed. 2d 711, 137 S. Ct. 1580, — U.S. —, 2017 U.S. LEXIS 2514 (U.S. Apr. 17, 2017).

Aggravated sexual battery is a lesser-included offense of rape of a child for offenses occurring prior to a July 1, 2016 amendment to T.C.A. § 40-18-110. State v. Howard, 504 S.W.3d 260, 2016 Tenn. LEXIS 725 (Tenn. Oct. 12, 2016).

Legislature did not intend to alter or abrogate part (b) of the common law Burns test for determining whether an offense is a lesser-included offense. State v. Howard, 504 S.W.3d 260, 2016 Tenn. LEXIS 725 (Tenn. Oct. 12, 2016).

All of the statutory elements of promoting prostitution are included within the statutory elements of trafficking a person for a commercial sex act; thus, the trial court erred in determining promoting prostitution was not a lesser-included offense of trafficking a person for a commercial sex act, and defendant's convictions were to be merged. State v. Ward, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 152 (Tenn. Crim. App. Feb. 27, 2020).

2. Instruction Required.

Where defendant failed to request an instruction on a lesser included offense of attempt in writing as required by T.C.A. § 40-18-110(c), the court reviewed for plain error under former Tenn. R. Crim. P. 52(b) and found that while the instruction was warranted, the failure not to so instruct did not result in plain error. State v. Biggs, 218 S.W.3d 643, 2006 Tenn. Crim. App. LEXIS 654 (Tenn. Crim. App. 2006), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 1167 (Tenn. 2006).

In a felony reckless endangerment case, failure to charge the jury with the lesser included offense of misdemeanor reckless endangerment was reversible error because evidence at trial would have supported a jury instruction on the lesser included offense. State v. Nelson, 275 S.W.3d 851, 2008 Tenn. Crim. App. LEXIS 346 (Tenn. Crim. App. Apr. 24, 2008).

3. —Homicide.

Where defendant was convicted of felony murder, T.C.A. § 39-13-202(a)(2), and based on the evidence the jury could have found that defendant committed second degree murder, reckless homicide, or criminally negligent homicide, the trial court committed a non-structural constitutional error by failing to instruct the jury on the lesser-included offenses, and it was not established that such error was harmless beyond a reasonable doubt. State v. Brown, 311 S.W.3d 422, 2010 Tenn. LEXIS 530 (Tenn. May 27, 2010).

4. Instruction Not Required.

Trial court's failure to give lesser-included instructions on robbery and theft was not plain error, because robbery and theft were not lesser-included offenses of carjacking; the definition of theft contained a statutory element that was not included within the statutory elements of carjacking, namely an intent to deprive another of his or her motor vehicle, and because robbery included all of the elements of theft within its statutory elements, robbery was also not a lesser-included offense of carjacking. State v. Wilson, 211 S.W.3d 714, 2007 Tenn. LEXIS 22 (Tenn. 2007).

Defendant was not entitled to a jury instruction on attempted especially aggravated kidnapping as a lesser-included offense of especially aggravated kidnapping, because the evidence showed defendant placed the victim in a chokehold while pointing a gun to her head, forced her into the kitchen, and shot her during a struggle; thus, the kidnapping was completed and there was no attempt. State v. Fusco, 404 S.W.3d 504, 2012 Tenn. Crim. App. LEXIS 994 (Tenn. Crim. App. Dec. 6, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 360 (Tenn. Apr. 11, 2013).

Defendant failed to prove by clear and convincing evidence that trial counsel was deficient for failing to request a jury instruction on facilitation as a lesser-included offense of sale and delivery of a Schedule I controlled substance within 1,000 feet of a school; there was no evidence from which a reasonable jury could conclude that defendant merely facilitated the drug sales because he set the price for the drugs, acquired the drugs, accepted payment for the drugs, and delivered the drugs. Bryant v. State, 460 S.W.3d 513, 2015 Tenn. LEXIS 182 (Tenn. Mar. 13, 2015), overruled in part, Moore v. State, 485 S.W.3d 411, 2016 Tenn. LEXIS 176 (Tenn. Mar. 16, 2016).

Because voluntarily manslaughter was not a lesser included offense of felony murder, the trial court was not required to provide an instruction on voluntarily manslaughter. State v. Arnold, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 308 (Tenn. Crim. App. Apr. 26, 2016), review denied and ordered not published, — S.W.3d —, 2016 Tenn. LEXIS 817 (Tenn. Oct. 24, 2016).

Victim of an especially aggravated robbery testified that he handed over his cell phone to one of the defendants and that it was never returned to him. Since the evidence clearly established that there was a completed taking from the victim, the trial court did not err when it declined to instructed the jury on the lesser included offenses of attempted especially aggravated robbery and attempted aggravated robbery. State v. Henderson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 432 (Tenn. Crim. App. June 10, 2016).

Defendant was not entitled at defendant's trial for first degree premeditated murder to a jury instruction on the lesser-included offense of voluntary manslaughter because the unarmed victim did nothing to provoke defendant before defendant shot the victim. There was no evidence that defendant killed the victim while in a state of passion produced by adequate provocation sufficient to lead a reasonable person to act in an irrational manner, and there was no proof that the victim was involved in the earlier shooting of defendant's sibling. State v. Mason, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 54 (Tenn. Crim. App. Jan. 28, 2019).

5. Waiver by Failure to Object.

In a criminal prosecution, the record showed no written request for an instruction on reckless aggravated assault as a lesser included offense of aggravated assault; therefore, the issue was waived for purposes of appeal in accordance with T.C.A. § 40-18-110. State v. Morgan, 271 S.W.3d 217, 2008 Tenn. Crim. App. LEXIS 3 (Tenn. Crim. App. Jan. 7, 2008).

There was nothing in the record to show that defendant objected to the trial court's proposed jury instructions as required by T.C.A. § 40-18-110(d). Therefore, he waived consideration of the issue by his failure to object to the inclusion of the instruction at trial. State v. Scribner, — S.W.3d —, 2009 Tenn. Crim. App. LEXIS 186 (Tenn. Crim. App. Mar. 12, 2009), dismissed, Scribner v. Donahue, — F. Supp. 2d —, 2017 U.S. Dist. LEXIS 75942 (M.D. Tenn. May 18, 2017).

Because defendants failed to submit a written request for an instruction for attempted robbery, their argument about the failure to charge that offense was waived on appeal. State v. Henderson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 432 (Tenn. Crim. App. June 10, 2016).

In a case involving two defendants, neither of the defendants submitted a written request that the trial court charge reckless aggravated assault as a lesser included offense of aggravated assault. Because defendants failed to submit a written request, they waived appellate consideration of whether the trial court should have charged reckless aggravated assault as a lesser included offense of assault. State v. Henderson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 432 (Tenn. Crim. App. June 10, 2016).

6. Effectiveness of Counsel.

Court of Criminal Appeals erred in concluding that defendant was prejudiced by trial counsel's failure to request a jury instruction on lesser-included offenses because, while trial counsel was deficient for not knowing that a written request for lesser-included offense instructions was statutorily required, defendant was not prejudiced where failing to request lesser-included offense instructions was consistent with the all or nothing defense based on defendant's alibi, facilitation and attempt were not theories of the defense even though defendant shared an accomplice's intent in committing the charged offenses, and the jury would not have convicted defendant of any of the asserted lesser-included offenses instead of the charged offenses. Moore v. State, 485 S.W.3d 411, 2016 Tenn. LEXIS 176 (Tenn. Mar. 16, 2016).

Because the jury was charged with and rejected the intervening lesser-included offense of rape, petitioner could not show any prejudice from the failure to charge sexual battery or aggravated sexual battery as a lesser-included offense of aggravated rape; given that the proof established that the victim was sexually penetrated and sustained injuries, there was no reasonable probability that the jury would have convicted petitioner on any lesser-included offenses, and thus he was not entitled to post-conviction relief on the grounds of ineffective assistance. Medlock v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 792 (Tenn. Crim. App. Oct. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 127 (Tenn. Feb. 21, 2017).

Because aggravated sexual battery was a lesser included offense of the crime for which defendant was charged of rape of a child, defendant's trial counsel did not perform deficiently by requesting a lesser included offense instruction on the offense of aggravated sexual battery. Austin v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 627 (Tenn. Crim. App. Aug. 15, 2018).

7. Failure to Request In Writing.

Defendant waived his right to an instruction on any lesser included offenses, including possession of a firearm during the commission of a dangerous felony, because he failed to specifically request such an instruction at trial as required by this section, and it did not amount to plain error. State v. Fayne, 451 S.W.3d 362, 2014 Tenn. LEXIS 872 (Tenn. Oct. 27, 2014).

Contrary to T.C.A. § 40-18-110, defendant failed to make a written request for a jury instruction on the lesser-included offense of voluntary manslaughter at trial, plus he failed to set forth in his brief under T.R.A.P. 27 any facts whatsoever that would support such a jury charge, and thus the issue was waived under T.R.A.P. 36. State v. Reed, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 367 (Tenn. Crim. App. May 11, 2017).

8. Sufficient.

Despite defendant's desire to have an all or nothing charge in his dogfighting case, the trial court did not err in charging the jury on facilitation because the evidence supported the instruction. State v. Trent, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 233 (Tenn. Crim. App. Mar. 30, 2017).

9. Sufficiency of Lesser Included Offense.

To sustain a conviction of a lesser-included offense, the proof must be sufficient to support each and every element of the conviction offense. To the extent that State v. Mellons, 557 S.W.2d 497, 1977 Tenn. LEXIS 675 (Tenn. 1997) and its progeny hold to the contrary, they are overruled. State v. Parker, 350 S.W.3d 883, 2011 Tenn. LEXIS 881 (Tenn. Sept. 23, 2011).

Evidence was insufficient to sustain defendant's conviction for attempted aggravated sexual battery because defendant was prosecuted for the completed offense of aggravated sexual battery and not attempt, which was an improperly charged lesser-included offense. The only defense presented at trial was that no crime ever occurred. The evidence presented at trial led to only two possible factual scenarios - that defendant either completed the offense or he did not. State v. Edwards, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 332 (Tenn. Crim. App. May 18, 2012), overruled in part, State v. Thorpe, 463 S.W.3d 851, 2015 Tenn. LEXIS 283 (Tenn. Apr. 6, 2015).

Defendant was improperly found guilty of aggravated sexual battery as a lesser included offense of the indicted offense of rape of a child because the evidence was insufficient to support a conviction for child abuse and neither assault, nor attempted assault was a lesser included offense of rape of a child. State v. Howard, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 627 (Tenn. Crim. App. Aug. 4, 2015), aff'd in part, rev'd in part, 504 S.W.3d 260, 2016 Tenn. LEXIS 725 (Tenn. Oct. 12, 2016).

Supreme Court concluded, based on the proof in the record on appeal, that defendant's conviction for aggravated sexual battery as a lesser-included offense of rape of a child was supported by the evidence should be reinstated. State v. Howard, 504 S.W.3d 260, 2016 Tenn. LEXIS 725 (Tenn. Oct. 12, 2016).

Evidence did not warrant an instruction on the lesser-included offense of attempted voluntary manslaughter because there was no evidence that defendant acted in a state of passion produced by adequate provocation as the victim and eyewitnesses testified that defendant's shooting of the victim was unprovoked in that the victim was standing on a sidewalk when defendant approached the victim from behind, called out to the victim, and shot the victim as the victim was turning around. Neither the victim, nor the victim's family members were armed. State v. Floyd, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 233 (Tenn. Crim. App. Mar. 29, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 452 (Tenn. July 18, 2018).

10. Elements of Offenses.

Trial court erred in convicting defendant of evading arrest while operating a motor vehicle because the trial court's jury instructions, inter alia, misled the jury as to the applicable law inasmuch as the statute at issue required that the flight occur while defendant was operating a vehicle, the jury instructions did not require a finding that the flight occurred while defendant was operating a motor vehicle, and there was no basis for the claim that the indictment encompassed misdemeanor evading arrest as a separate crime where defendant conceded that misdemeanor evading arrest was not a lesser-included offense of felony evading arrest. State v. Mayo, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 720 (Tenn. Crim. App. Sept. 26, 2016).

11. Harmless Error.

Trial court's jury instructions were proper because defendant did not object to the court's decision not to charge attempt as a lesser-included offense, the evidence established only a completed crime, the jury was properly charged on flight and criminal responsibility, and any error in not charging facilitation was harmless beyond a reasonable doubt. State v. Daniels, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 198 (Tenn. Crim. App. Mar. 16, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 445 (Tenn. July 20, 2017).

Although the trial court erred by refusing to instruct the jury on attempted rape of a child, as a lesser-included offense of rape of a child, the error was harmless beyond a reasonable doubt given the evidence at trial. State v. Gonzales, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 783 (Tenn. Crim. App. Oct. 18, 2018).

Denying defendant's request for a lesser-included-offense instruction on voluntary manslaughter was harmless error because the jury convicted defendant of felony murder despite being instructed on other lesser-included offenses. State v. Toles, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 315 (Tenn. Crim. App. May 17, 2019).

12. Plain Error.

Because there was nothing in the record to indicate that defendant filed a written request for an instruction on attempt, defendant waived the issue for appeal, and the court of criminal appeals reviewed his claim for plain error. State v. Morrison, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 165 (Tenn. Crim. App. Mar. 4, 2016).

Defendant failed to show that a clear and unequivocal rule of law was breached or that one of his substantial rights was adversely affected when the trial court failed to instruct the jury on attempt, and he was not entitled to plain error relief, because the evidence at trial showed that all three episodes of theft were completed and did not support an inference of guilt on the lesser included offense of attempted theft. State v. Morrison, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 165 (Tenn. Crim. App. Mar. 4, 2016).

Defendant waived an issue regarding a lesser included offense jury instruction because he failed to put it in writing; moreover, plain error review was not warranted in this case because there was nothing in the record to show that a clear and unequivocal rule of law was breached or that consideration of the alleged error was necessary to do substantial justice. State v. Blount, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 386 (Tenn. Crim. App. May 26, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 709 (Tenn. Sept. 26, 2016).

Trial court plainly erred by instructing the jury on aggravated sexual battery as a lesser included offense of rape of a child because it was not a lesser included offense as a result of the amendment to this section, defendant had not agreed to an amended indictment, and because the evidence was insufficient to prove the lesser-included offense of child abuse, as there was no proof that the victim suffered actual injury from defendant touching his penis to her vagina, and therefore defendant's conviction of aggravated sexual battery was vacated. State v. Corbitt, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 517 (Tenn. Crim. App. July 19, 2016).

Defendant's aggravated assault conviction was modified to reckless endangerment because (1) the jury found serious injury but did not find an adverse effect on the victim's welfare, and (2) reckless endangerment was the next properly-charged lesser-included offense the evidence supported. State v. Hodges, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 288 (Tenn. Crim. App. Apr. 19, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 507 (Tenn. Aug. 16, 2017).

Trial court did not err in failing to instruct the jury on the lesser-included offenses of criminally negligent homicide and facilitation of criminally negligent homicide because defendant did not submit a written request to the trial court for those instructions; and he was not entitled to plain error relief as the jury received a sequential instruction as well as an instruction on immediate lesser-included offenses as the record showed that the trial court instructed the jury on second degree murder, facilitation of second degree murder, reckless homicide, and facilitation of reckless homicide as lesser-included offenses of first degree felony murder. State v. Lester, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 889 (Tenn. Crim. App. Dec. 10, 2018).

Trial court did not plainly err by instructing the jury on the lesser-included offense of voluntary manslaughter during his trial for attempted premediated murder because this section provided that it was a lesser-included offense and the court had determined that the evidence was sufficient to support defendant's conviction for attempted voluntary manslaughter. State v. Hall, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. July 8, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 534 (Tenn. Dec. 4, 2019).

13. Criminal Attempt As Lesser Included Offense.

Because criminal attempt is available as a lesser-included offense of any charged offense in every case in which the charged offense has a requisite intent element, and in which the proof has fairly raised the completed offense, the trial court did not err by including the attempt charge in its jury instruction in defendant's case charging him with sexual battery by an authority figure as the offense had a requisite intent element, and the proof fairly raised the issue of the charged offense. State v. Thorpe, 463 S.W.3d 851, 2015 Tenn. LEXIS 283 (Tenn. Apr. 6, 2015).

Defendant failed to demonstrate any error by the trial court failing to instruct the jury on attempted aggravated rape as a lesser-included offense of the counts against defendant of aggravated rape because the only evidence presented at trial was proof of a completed crime. State v. Bowles, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 727 (Tenn. Crim. App. Aug. 15, 2017).

Attempted theft was a lesser included offense of burglary indicted under T.C.A. § 39-14-402(a)(3) because it would have been impossible for the State to have proven defendant guilty of burglary without proving defendant attempted to commit theft, and for the same reason, criminal trespass was also a lesser included offense. State v. Hefner, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 381 (Tenn. Crim. App. July 2, 2019).

14. Double Jeopardy.

It had previously been held that the 2009 amendment of the statute abrogated part (b) of the State v. Burns double jeopardy test; thus, reckless aggravated assault is not a lesser included offense of reckless homicide under the statute and dual convictions are proper, and defendant was not entitled to relief. State v. Beaty, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 491 (Tenn. Crim. App. July 8, 2016).

Although the offenses arose from the same act or transaction of defendant's act of putting a knife to the victim's throat and then dragging her 20-30 feet down a dark driveway toward a scrap yard, aggravated assault was not a lesser included offense of attempted aggravated kidnapping and the offenses were not the same for the purposes of double jeopardy as each crime contained an element that the other did not because attempted aggravated kidnapping required a specific intent to commit the crime of aggravated kidnapping, including a removal or confinement of the victim; and aggravated assault contained an element of fear and required the State to show that defendant caused the victim to reasonably fear imminent bodily injury. State v. Tittle, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 925 (Tenn. Crim. App. Oct. 23, 2017).

15. Lesser Included Offense Instructions.

Because defendant failed to make a written request for a jury instruction on attempted theft as a lesser included offense of burglary and failed to raise the issue in his motion for new trial, defendant waived the issue. State v. Hefner, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 381 (Tenn. Crim. App. July 2, 2019).

Defendant waived for tactical reasons his argument that the trial court committed plain error by failing to instruct the jury on the lesser included offense of attempted theft because defendant's cross-examination of the State's witnesses and arguments to the jury focused on the criminal trespass element of burglary, not the attempt to commit theft element for which there was overwhelming evidence; as such, there were advantages to an “all or nothing” instruction where only burglary was charged. State v. Hefner, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 381 (Tenn. Crim. App. July 2, 2019).

Decisions Under Prior Law

1. In General.

The court should not be excused from defining the offenses averred or embraced in the charge in the indictment. Poole v. State, 61 Tenn. 288, 1872 Tenn. LEXIS 374 (1872).

The rule that only requires a charge as to such questions as are made by the facts means simply that if legal questions present themselves by the facts, and which are claimed either to sustain or refute the charges in the indictment, it is the duty of the court to charge upon such questions, but if questions not so raised are urged, it is not the duty of the court to charge touching them. Poole v. State, 61 Tenn. 288, 1872 Tenn. LEXIS 374 (1872).

It is proper to charge the law upon all points raised by the evidence, though slight, if sufficient to sustain a verdict. Dobson v. State, 73 Tenn. 271, 1880 Tenn. LEXIS 124 (1880).

Trial judges are required to make affirmative instructions on every issue raised by the proof, “issue” meaning facts put in controversy by the pleadings. Taylor v. State, 212 Tenn. 187, 369 S.W.2d 385, 1963 Tenn. LEXIS 411 (1963).

The former section was not applicable where there is no factual evidence to sustain a requested charge. Levasseur v. State, 3 Tenn. Crim. App. 513, 464 S.W.2d 315, 1970 Tenn. Crim. App. LEXIS 469 (Tenn. Crim. App. 1970), superseded by statute as stated in, State v. Thorpe, 463 S.W.3d 851, 2015 Tenn. LEXIS 283 (Tenn. Apr. 6, 2015).

An offense is necessarily included in another if the elements of the greater offense, as those elements are set forth in the indictment, include, but are not congruent with, all the elements of the lesser. Howard v. State, 578 S.W.2d 83, 1979 Tenn. LEXIS 407 (Tenn. 1979), superseded by statute as stated in, State v. Boyce, 920 S.W.2d 224, 1995 Tenn. Crim. App. LEXIS 58 (Tenn. Crim. App. 1995).

The failure by the trial court to give a complete charge of the law of the offense as required under former subsection (a), deprives the defendant of the right to a jury trial. State v. Walker, 29 S.W.3d 885, 1999 Tenn. Crim. App. LEXIS 1059 (Tenn. Crim. App. 1999).

2. Lesser Included Offense Instructions.

On indictment for second degree murder and a conviction for second degree murder, it was not error to fail to charge jury upon the law of involuntary manslaughter unless facts showed such a charge to be pertinent. Williams v. State, 50 Tenn. 376, 1872 Tenn. LEXIS 5 (1872).

Under the former section it was the duty of the trial judge to charge the lesser included offenses without request of the accused. Strader v. State, 210 Tenn. 669, 362 S.W.2d 224, 1962 Tenn. LEXIS 328 (1962).

Right to charge on lesser included offense is part of constitutional right to trial by jury whereby the accused is entitled to have every issue made by the evidence determined by a jury under a correct and complete charge of the law given by the judge. Strader v. State, 210 Tenn. 669, 362 S.W.2d 224, 1962 Tenn. LEXIS 328 (1962).

The former section did not require the court to charge the jury as to additional offenses where the evidence presented did not warrant an inference of guilt for any offense other than the one charged in the indictment. Carmon v. State, 512 S.W.2d 595, 1974 Tenn. Crim. App. LEXIS 280 (Tenn. Crim. App. 1974).

Court did not err by failing to instruct jury on penalties for sale and delivery of schedules II and III drugs, where the jury was instructed on schedule I penalties, where the evidence showed that defendant sold and delivered the three classes of drugs simultaneously, and where the jury convicted defendant of selling and delivering schedule I drugs. Loveday v. State, 546 S.W.2d 822, 1976 Tenn. Crim. App. LEXIS 315 (Tenn. Crim. App. 1976).

Trial judge's failure to charge lesser included offenses of first degree murder where his stated intention was to charge lesser included offenses only if the jury returned a “not guilty” verdict on the offense of first degree murder was reversible error. State v. Wright, 618 S.W.2d 310, 1981 Tenn. Crim. App. LEXIS 346 (Tenn. Crim. App. 1981).

In a prosecution for aggravated burglary, failure to instruct on the lesser included offense of criminal trespass denied defendant's constitutional right to trial by jury. State v. Vance, 888 S.W.2d 776, 1994 Tenn. Crim. App. LEXIS 411 (Tenn. Crim. App. 1994).

In a prosecution for attempted aggravated sexual battery, where the facts presented were susceptible to a determination that defendant's conduct was merely the type that a reasonable person would regard as extremely offensive or provocative, rather than an attempt to make unlawful sexual contact, the trial court should have charged the jury on simple assault as a lesser included offense. State v. McKnight, 900 S.W.2d 36, 1994 Tenn. Crim. App. LEXIS 759 (Tenn. Crim. App. 1994), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 58 (Tenn. 1995), overruled, State v. Collier, 411 S.W.3d 886, 2013 Tenn. LEXIS 636 (Tenn. Aug. 12, 2013).

In a prosecution for burglary, where there was a question as to defendant's intent at the time he entered the premises, he was entitled to have the jury instructed on the lesser included offense of criminal trespass. State v. Boyce, 920 S.W.2d 224, 1995 Tenn. Crim. App. LEXIS 58 (Tenn. Crim. App. 1995).

The offenses of facilitation and solicitation were found to be lesser-included offenses of criminal responsibility for first-degree murder as charged in the defendant's indictment. State v. Burns, 6 S.W.3d 453, 1999 Tenn. LEXIS 572 (Tenn. 1999), superseded by statute as stated in, State v. Campbell, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 860 (Tenn. Crim. App. Oct. 20, 2015), superseded by statute as stated in, State v. Whitehair, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 171 (Tenn. Crim. App. Mar. 8, 2016), superseded by statute as stated in, State v. Harris, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 331 (Tenn. Crim. App. May 3, 2016), superseded by statute as stated in, State v. Beaty, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 842 (Tenn. Crim. App. Nov. 8, 2016).

An instruction is not required if there is no evidence in the record to support a conviction for the lesser offense. State v. Carter, 15 S.W.3d 509, 1999 Tenn. Crim. App. LEXIS 876 (Tenn. Crim. App. 1999).

The obligation imposed by former subsection (a) means that the trial court must instruct the jury on all lesser-included offenses if the evidence introduced at trial is legally sufficient to support a conviction for the lesser-included offenses. State v. Swindle, 30 S.W.3d 289, 2000 Tenn. LEXIS 455 (Tenn. 2000), overruled in part, State v. Locke, 90 S.W.3d 663, 2002 Tenn. LEXIS 474 (Tenn. 2002).

In a first-degree murder trial, court erred in failing to instruct the jury on the lesser-included offenses of reckless homicide and criminally negligent homicide where defendant testified that he only fired a warning shot at his victim, who had threatened defendant with a knife; the failure to instruct did not constitute harmless error because it did not appear beyond a reasonable doubt that the error did not affect the outcome of the trial. State v. Wilson, 92 S.W.3d 391, 2002 Tenn. LEXIS 707 (Tenn. 2002).

3. —Instruction Required.

The former statute was not intended to call from the court a charge upon hypothetical cases not suggested by the proof, and a failure to charge as to all grades of offenses included in the offense charged in the indictment is not error, where the facts proved clearly do not require it. Good v. State, 69 Tenn. 293, 1878 Tenn. LEXIS 88 (1878); State v. Parker, 81 Tenn. 221, 1884 Tenn. LEXIS 28 (1884); Powers v. State, 117 Tenn. 363, 97 S.W. 815, 1906 Tenn. LEXIS 52 (1906); Frazier v. State, 117 Tenn. 430, 100 S.W. 94, 1906 Tenn. LEXIS 56 (1906).

Neglect to charge on all grades of offense included in indictment is not reversible error, where the omission is as to matters not pertinent. State v. Parker, 81 Tenn. 221, 1884 Tenn. LEXIS 28 (1884).

Where there is no evidence to support a lesser included offense so that the accused can be guilty only of the greater offense or no offense at all, it is not error to refuse to instruct on the lesser included offenses. Baker v. State, 203 Tenn. 574, 315 S.W.2d 5, 1958 Tenn. LEXIS 333 (1958); James v. State, 215 Tenn. 221, 385 S.W.2d 86, 1964 Tenn. LEXIS 555 (1964), cert. denied, James v. Tennessee, 381 U.S. 941, 85 S. Ct. 1777, 14 L. Ed. 2d 705, 1965 U.S. LEXIS 1101 (1965); Patterson v. State, 218 Tenn. 80, 400 S.W.2d 743, 1966 Tenn. LEXIS 635 (1966), cert. denied, Patterson v. Tennessee, 385 U.S. 870, 87 S. Ct. 139, 17 L. Ed. 2d 98, 1966 U.S. LEXIS 933 (1966); Black v. State, 1 Tenn. Crim. App. 373, 443 S.W.2d 523, 1969 Tenn. Crim. App. LEXIS 283 (Tenn. Crim. App. 1969); Conboy v. State, 2 Tenn. Crim. App. 535, 455 S.W.2d 605, 1970 Tenn. Crim. App. LEXIS 489 (Tenn. Crim. App. 1970); Crumsey v. State, 3 Tenn. Crim. App. 285, 460 S.W.2d 858, 1970 Tenn. Crim. App. LEXIS 391 (1970); Moorman v. State, 577 S.W.2d 473, 1978 Tenn. Crim. App. LEXIS 352 (Tenn. Crim. App. 1978).

Where the evidence, upon any view the jury may take of it, permits an inference of guilt as to a lesser included offense, it is the mandatory duty of the trial judge to charge all the law as to each of such offenses and a failure to do so requires a reversal and new trial. Strader v. State, 210 Tenn. 669, 362 S.W.2d 224, 1962 Tenn. LEXIS 328 (1962); Howard v. State, 578 S.W.2d 83, 1979 Tenn. LEXIS 407 (Tenn. 1979), superseded by statute as stated in, State v. Boyce, 920 S.W.2d 224, 1995 Tenn. Crim. App. LEXIS 58 (Tenn. Crim. App. 1995).

Charge upon lesser included offense need not be given where there is no evidence of such lesser offense and the charge would be a mere abstraction upon hypothetical questions not suggested by proof. Strader v. State, 210 Tenn. 669, 362 S.W.2d 224, 1962 Tenn. LEXIS 328 (1962); Patterson v. State, 218 Tenn. 80, 400 S.W.2d 743, 1966 Tenn. LEXIS 635 (1966), cert. denied, Patterson v. Tennessee, 385 U.S. 870, 87 S. Ct. 139, 17 L. Ed. 2d 98, 1966 U.S. LEXIS 933 (1966).

When on the evidence the accused might be convicted of a lesser degree of the offense charged or an included offense it is the duty of the court to charge all the degrees of the particular offense but if it is clear from the evidence that a lesser degree of guilt is not involved it is not error for the court to refuse the request for or fail to give such instructions. Patterson v. State, 218 Tenn. 80, 400 S.W.2d 743, 1966 Tenn. LEXIS 635 (1966), cert. denied, Patterson v. Tennessee, 385 U.S. 870, 87 S. Ct. 139, 17 L. Ed. 2d 98, 1966 U.S. LEXIS 933 (1966).

A charge of lesser included offense is mandatory even without a request therefor if and only if the proof raises such an issue. Black v. State, 1 Tenn. Crim. App. 373, 443 S.W.2d 523, 1969 Tenn. Crim. App. LEXIS 283 (Tenn. Crim. App. 1969).

Defendant who was found with narcotic in his possession and admitted that it was his and who was charged with possessing a narcotic drug was not entitled to have the jury charged on the lesser offense of attempt to commit a felony. Murphy v. State, 4 Tenn. Crim. App. 610, 475 S.W.2d 182, 1971 Tenn. Crim. App. LEXIS 432 (Tenn. Crim. App. 1971).

The supreme court does not approve the practice of charging a lesser included offense where there is no evidence to support it. Whitwell v. State, 520 S.W.2d 338, 1975 Tenn. LEXIS 701 (Tenn. 1975); State v. Mellons, 557 S.W.2d 497, 1977 Tenn. LEXIS 675 (Tenn. 1977), superseded by statute as stated in, State v. Parker, 350 S.W.3d 883, 2011 Tenn. LEXIS 881 (Tenn. Sept. 23, 2011), overruled in part, State v. Parker, 350 S.W.3d 883, 2011 Tenn. LEXIS 881 (Tenn. Sept. 23, 2011), overruled, State v. Edwards, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 332 (Tenn. Crim. App. May 18, 2012), overruled, State v. Driver, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 682 (Tenn. Crim. App. Aug. 31, 2012), overruled, Dickerson v. State, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 171 (Tenn. Crim. App. Feb. 27, 2013), overruled in part, State v. Thorpe, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 833 (Tenn. Crim. App. Sept. 27, 2013), overruled in part, State v. Graham, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 841 (Tenn. Crim. App. Sept. 27, 2013), overruled, State v. Waller, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 255 (Tenn. Crim. App. Mar. 21, 2014), overruled, State v. Benesch, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 766 (Tenn. Crim. App. Aug. 25, 2017).

The fact that defendant indicted for the offense of robbery with a deadly weapon stated in his confession that he snatched purse from the hands of prosecutrix and that the purse contained less than $100 constituted evidence of a credible nature that the offense was really larceny from the person or petit larceny, and the court should have given instructions on those two lesser included offenses. Johnson v. State, 531 S.W.2d 558, 1975 Tenn. LEXIS 552 (Tenn. 1975).

Where state attempted to show that defendant had committed burglary, and defendant presented alibi which would exonerate him of any crime, trial court did not err in failing to instruct jury as to a lesser included offense as no evidence of such lesser offense was presented. Judge v. State, 539 S.W.2d 340, 1976 Tenn. Crim. App. LEXIS 381 (Tenn. Crim. App. 1976).

It is not necessarily reversible error for the trial judge to give an instruction on a lesser included offense which is not supported by the evidence, even though it results in conviction of that lesser included offense, for if the evidence demands a conviction of a higher degree of offense than that found by the verdict and there is no evidence in support of acquittal of the greater crime, or if the jury indicates that any such evidence in support of acquittal was disbelieved, the defendant is not prejudiced by the charge and the resulting verdict. State v. Mellons, 557 S.W.2d 497, 1977 Tenn. LEXIS 675 (Tenn. 1977), superseded by statute as stated in, State v. Parker, 350 S.W.3d 883, 2011 Tenn. LEXIS 881 (Tenn. Sept. 23, 2011), overruled in part, State v. Parker, 350 S.W.3d 883, 2011 Tenn. LEXIS 881 (Tenn. Sept. 23, 2011), overruled, State v. Edwards, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 332 (Tenn. Crim. App. May 18, 2012), overruled, State v. Driver, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 682 (Tenn. Crim. App. Aug. 31, 2012), overruled, Dickerson v. State, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 171 (Tenn. Crim. App. Feb. 27, 2013), overruled in part, State v. Thorpe, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 833 (Tenn. Crim. App. Sept. 27, 2013), overruled in part, State v. Graham, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 841 (Tenn. Crim. App. Sept. 27, 2013), overruled, State v. Waller, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 255 (Tenn. Crim. App. Mar. 21, 2014), overruled, State v. Benesch, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 766 (Tenn. Crim. App. Aug. 25, 2017).

The trial judge is not required to instruct on lesser included offenses where there is no evidence to support a lesser included offense. Walden v. State, 576 S.W.2d 596, 1978 Tenn. Crim. App. LEXIS 340 (Tenn. Crim. App. 1978).

The practice of charging lesser included offenses where there is no evidence to support them is not favored. State v. Atkins, 681 S.W.2d 571, 1984 Tenn. Crim. App. LEXIS 2906 (Tenn. Crim. App. 1984), cert. denied, Atkins v. Tennessee, 470 U.S. 1028, 105 S. Ct. 1395, 84 L. Ed. 2d 784, 1985 U.S. LEXIS 1261 (1985).

In a prosecution for first-degree murder, although the evidence of provocation was slight, voluntary manslaughter should have been charged to the jury as a lesser included offense and the issue of causation would also have required an instruction on the issue of attempted voluntary manslaughter. State v. Belser, 945 S.W.2d 776, 1996 Tenn. Crim. App. LEXIS 568 (Tenn. Crim. App. 1996).

In a prosecution for first-degree murder, in which defendant was convicted for second-degree murder, it was reversible error not to charge the jury on voluntary manslaughter, a lesser included offense, in light of the evidence of provocation by the victim. State v. Summerall, 926 S.W.2d 272, 1995 Tenn. Crim. App. LEXIS 1009 (Tenn. Crim. App. 1995).

In a prosecution for first degree murder, even though the evidence of provocation may have lacked credibility, voluntary manslaughter should have been charged as a lesser grade of offense. State v. Belser, 945 S.W.2d 776, 1996 Tenn. Crim. App. LEXIS 568 (Tenn. Crim. App. 1996).

Where there is sufficient evidence to support a conviction of a lesser included offense, the trial court must comply with its mandatory statutory obligation to instruct the jury on the offense despite the objections of the defense. State v. Bolden, 979 S.W.2d 587, 1998 Tenn. LEXIS 680 (Tenn. 1998).

The trial court must consider the evidence in the light most favorable to the existence of the lesser included offense and if the evidence so considered permits an inference of guilt of a lesser offense, the trial court must give instructions as to that lesser offense. State v. Carter, 15 S.W.3d 509, 1999 Tenn. Crim. App. LEXIS 876 (Tenn. Crim. App. 1999).

The offense of a Class B misdemeanor assault was found to be lesser-included offense of sexual battery and it was error for the trial court not to instruct the jury accordingly. State v. Swindle, 30 S.W.3d 289, 2000 Tenn. LEXIS 455 (Tenn. 2000), overruled in part, State v. Locke, 90 S.W.3d 663, 2002 Tenn. LEXIS 474 (Tenn. 2002).

Because the evidence supported a finding of a knowing killing, the trial court properly instructed the jury on the lesser-included offense for second degree murder. State v. Ely, 48 S.W.3d 710, 2001 Tenn. LEXIS 583 (Tenn. 2001).

4. — —Homicide.

Failure to charge as to offenses included in indictment for murder where there is no evidence applicable to them is not reversible error. Powers v. State, 117 Tenn. 363, 97 S.W. 815, 1906 Tenn. LEXIS 52 (1906).

Where defendant was charged with murder in the first degree for driving truck off highway and killing two pedestrians the trial court did not commit error in failure to instruct jury on voluntary manslaughter though it did instruct jury on second degree murder and involuntary manslaughter, since voluntary manslaughter was not an issue, as killing was not in hot blood. Owen v. State, 188 Tenn. 459, 221 S.W.2d 515, 1949 Tenn. LEXIS 360 (1949).

5. — —Rape.

In rape prosecution, there was no error in the court's failure to instruct as to assault with intent to commit rape, where there was no evidence to support such charge. Palmer v. State, 121 Tenn. 465, 118 S.W. 1022, 1908 Tenn. LEXIS 30 (1908).

In prosecution for assault and battery with intent to commit rape where, under the facts, the only question involved was the identity of the defendant as the assailant, and no issue was raised as to the nature of the crime, refusal to charge lesser offenses of assault with intent to commit a felony or assault and battery was not error. Patterson v. State, 218 Tenn. 80, 400 S.W.2d 743, 1966 Tenn. LEXIS 635 (1966), cert. denied, Patterson v. Tennessee, 385 U.S. 870, 87 S. Ct. 139, 17 L. Ed. 2d 98, 1966 U.S. LEXIS 933 (1966).

Where evidence showed that penetration was attempted, there was no error in refusing to charge on lesser offenses of assault with intent to commit a felony and simple assault, in prosecution for assault and battery with intent to commit rape. Conboy v. State, 2 Tenn. Crim. App. 535, 455 S.W.2d 605, 1970 Tenn. Crim. App. LEXIS 489 (Tenn. Crim. App. 1970).

6. —State Requesting Charge.

Trial court did not err in instructing jury on offense of petit larceny under indictment charging defendant with robbery even though instruction was requested by the state. Laury v. State, 187 Tenn. 391, 215 S.W.2d 797, 1948 Tenn. LEXIS 442 (1948).

7. —Instructions Absent Defendant's Request.

The fact that defendants did not place assault as a lesser included offense of rape before the jury did not make it error for the trial court to instruct the jury on the lesser included offense. State v. Buckmeir, 902 S.W.2d 418, 1995 Tenn. Crim. App. LEXIS 6 (Tenn. Crim. App. 1995).

The trial court's duty to instruct the jury on all lesser included offenses if the evidence is legally sufficient to support a conviction for the lesser offense, applies whether or not a defendant requests such an instruction. State v. Rush, 50 S.W.3d 424, 2001 Tenn. LEXIS 587 (Tenn. 2001).

8. —Harmless Error.

While it is the duty of the trial judges, and proper for them, when requested, to charge as to all grades of offenses included in the charge in the indictment, and the practice of refusing such charges is reprehended, yet where the supreme court can see that no injury was thereby done to the defendant, it is not reversible error. State v. Hargrove, 81 Tenn. 178, 1884 Tenn. LEXIS 21 (1884); Powers v. State, 117 Tenn. 363, 97 S.W. 815, 1906 Tenn. LEXIS 52 (1906); Frazier v. State, 117 Tenn. 430, 100 S.W. 94, 1906 Tenn. LEXIS 56 (1906); Jones v. State, 128 Tenn. 493, 161 S.W. 1016, 1913 Tenn. LEXIS 63 (1913), questioned, State v. Wright, 618 S.W.2d 310, 1981 Tenn. Crim. App. LEXIS 346 (Tenn. Crim. App. 1981).

Where jury found the killing intentional, an error by the court on instructions to the jury on grade of offense committed upon theory of unintentional killing was harmless. Tarver v. State, 90 Tenn. 485, 16 S.W. 1041, 1891 Tenn. LEXIS 31 (1891), superseded by statute as stated in, State v. Maupin, — S.W.2d —, 1991 Tenn. Crim. App. LEXIS 818 (Tenn. Crim. App. Oct. 7, 1991).

Where defendant charged with assault with intent to commit second degree murder was convicted of assault with intent to commit voluntary manslaughter, it was immaterial that the trial court's charge on simple assault was erroneous, since jury found him guilty of higher grade of offense. Morton v. State, 91 Tenn. 437, 19 S.W. 225, 1892 Tenn. LEXIS 11 (1892).

There will be no reversal for omission to charge upon lower offenses embraced under the charge of murder in the first degree, if not prejudicial. Frazier v. State, 117 Tenn. 430, 100 S.W. 94, 1906 Tenn. LEXIS 56 (1906); Cooper v. State, 123 Tenn. 37, 138 S.W. 826, 1909 Tenn. LEXIS 2 (1911); Jones v. State, 128 Tenn. 493, 161 S.W. 1016, 1913 Tenn. LEXIS 63 (1913), questioned, State v. Wright, 618 S.W.2d 310, 1981 Tenn. Crim. App. LEXIS 346 (Tenn. Crim. App. 1981).

A trial court's erroneous failure to instruct on voluntary manslaughter is subject to harmless error analysis. State v. Williams, 977 S.W.2d 101, 1998 Tenn. LEXIS 512 (Tenn. 1998), rehearing denied, — S.W.3d —, 1998 Tenn. LEXIS 579 (Tenn. 1998).

9. —Instruction Not Required.

Where evidence was sufficient to show that crime had been committed and only question in issue was whether defendant was the one who committed the crime, no instructions on lesser included offenses were required. Price v. State, 589 S.W.2d 929, 1979 Tenn. Crim. App. LEXIS 284 (Tenn. Crim. App. 1979), superseded by statute as stated in, State v. Garvin, — S.W.2d —, 1994 Tenn. Crim. App. LEXIS 668 (Tenn. Crim. App. Oct. 12, 1994).

In deciding that instruction on assault with intent to commit murder was not required in first degree murder case, court rejected defendant's argument that the jury could have found that his act in shooting the deceased was justified by reason of self-defense, but that his subsequent stabbing of the victim was merely an assault with intent to commit murder. State v. Story, 608 S.W.2d 599, 1980 Tenn. Crim. App. LEXIS 333 (Tenn. Crim. App. 1980).

Where record clearly shows that defendant is guilty of the greater offense and is devoid of any evidence permitting an inference of guilt of lesser offense, it is not error to fail to charge on a lesser offense. State v. Boyd, 797 S.W.2d 589, 1990 Tenn. LEXIS 324 (Tenn. 1990), cert. denied, Boyd v. Tennessee, 498 U.S. 1074, 111 S. Ct. 800, 112 L. Ed. 2d 861, 1991 U.S. LEXIS 640 (1991).

Instruction for lesser offense of voluntary manslaughter was not required where the only evidence that might tend to support such an instruction was contained in defendant's statement to the police which was not admitted into evidence for its truth, but to impeach. State v. Carter, 15 S.W.3d 509, 1999 Tenn. Crim. App. LEXIS 876 (Tenn. Crim. App. 1999).

Defendant's conviction for theft of property valued at $ 1,000 or more was inappropriate because the trial court erred in failing to instruct the jury on the lesser included offense of unauthorized use of a vehicle. Defendant was charged with a single count of theft that pertained to the vehicle and its contents, not with multiple counts of theft concerning every item taken; the difference in the theft of the vehicle offense and the unauthorized use of a vehicle offense was the mental element and the trial court committed plain error in not instructing the jury on the lesser included offense of unauthorized use of a vehicle. State v. Harrison, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 675 (Tenn. Crim. App. Aug. 17, 2010).

10. —Sequential Change.

In a prosecution for first-degree murder, it was proper to charge the jury to investigate offenses in the following order: (1) first-degree murder, (2) second-degree murder, (3) voluntary manslaughter, and (4) criminally negligent homicide. State v. Raines, 882 S.W.2d 376, 1994 Tenn. Crim. App. LEXIS 132 (Tenn. Crim. App. 1994), appeal denied, 1994 Tenn. LEXIS 223 (Tenn. July 5, 1994).

11. Separate Offenses Charged.

Charge as to offenses embraced in indictment is not excused because it may appear to the mind of the trial judge that one certain offense, and none other, has been committed; and if he confines his charge to that offense, he invades the province of the jury. Poole v. State, 61 Tenn. 288, 1872 Tenn. LEXIS 374 (1872); Little v. State, 65 Tenn. 491, 1873 Tenn. LEXIS 390 (1873).

In an indictment charging two separate offenses, a conviction on the first offense will be upheld even though court erred in instruction to jury on second offense where state offered no evidence of guilt as to the second offense charged the defendant. Parham v. State, 78 Tenn. 498, 1882 Tenn. LEXIS 214 (1882).

Trial court was required to charge on both larceny and receiving stolen property where both were charged in the indictment and so charging was not harmful to defendants. Graham v. State, 218 Tenn. 453, 404 S.W.2d 475, 1966 Tenn. LEXIS 643 (1966).

Where defendant was tried on three counts charging respectively, larceny of truck, receiving and concealing the truck, and taking the truck without consent of owner, and was convicted of larceny and where there was evidence relative to the taking of the truck and defendant testified that he took truck without intent to steal or knowledge that it was stolen, it was not possible to say that there was no evidence in record from which a finding of guilty on third count could be made and case would be reversed and remanded where there was no instruction of that count. Prince v. State, 220 Tenn. 587, 421 S.W.2d 627, 1967 Tenn. LEXIS 441 (1967).

12. Evidence Instructions.

Failure to instruct that cross-examination of character witness for defendant as to whether such character witness had prior knowledge of previous arrest of defendant and evidence elicited by such cross-examination could be considered only for the purpose of determining credibility of character witness and not for purpose of determining guilt or innocence of defendant was not reversible or fundamental error as constituting a failure to charge on issues as required by this section. Taylor v. State, 212 Tenn. 187, 369 S.W.2d 385, 1963 Tenn. LEXIS 411 (1963).

13. —Accomplice Testimony.

Upon the trial court's failure to instruct the jury regarding accomplice testimony and the requirement of corroboration, it becomes the obligation of the defendant to make a special request for the instruction. In the absence of such special request, the court does not err by failing to instruct the jury about accomplice testimony even if the circumstances of the case warrant such an instruction. State v. Anderson, 985 S.W.2d 9, 1997 Tenn. Crim. App. LEXIS 1296 (Tenn. Crim. App. 1997).

14. Defense Instructions.

The omission to give a full charge upon self-defense under an indictment for murder, where, under the facts, it is clear that such omission worked no injury, is not reversible error. Honeycutt v. State, 67 Tenn. 371, 1875 Tenn. LEXIS 59 (1875).

In a case involving the life of a citizen, or his hopeless consignment to servitude and infamy, it will not be held that a verdict negates the existence of a defense which the jury were not properly instructed to consider; or that the facts sustain a verdict, which is not the result of the deliberate judgment of the jury, after a full, fair and proper exposition of the law of the case, which the defendant is entitled to have given, without demand. Potter v. State, 85 Tenn. 88, 1 S.W. 614, 1886 Tenn. LEXIS 15 (1886).

15. Punishment Instructions.

It was not error for court to fail to instruct jury that they have the power to commute the death penalty to life imprisonment for conviction of first degree murder when not requested by the defendant to do so. Honeycutt v. State, 67 Tenn. 371, 1875 Tenn. LEXIS 59 (1875).

On a trial for involuntary manslaughter, the court, without request, should charge the law relative to assessing the punishment at imprisonment in the county jail, and it would be error to refuse a request for such instruction. State v. Chadwick, 131 Tenn. 354, 174 S.W. 1144, 1914 Tenn. LEXIS 112 (1915).

In prosecution for burning building, an offense punishable by imprisonment in penitentiary for not over 10 years, the trial court must, without request, instruct the jury that they have the right to commute the punishment to the county jail or workhouse for some less period if they deem penitentiary confinement too severe. Jenkins v. State, 163 Tenn. 635, 45 S.W.2d 531, 1931 Tenn. LEXIS 160 (1932).

16. Erroneous Charge on Immaterial Matter.

Erroneous charge on abstract or immaterial questions will not vitiate the judgment in a criminal case where the abstract question was a question not presented by the evidence, or where the result of the verdict showed the matter to be immaterial. Parham v. State, 78 Tenn. 498, 1882 Tenn. LEXIS 214 (1882); Cooper v. State, 123 Tenn. 37, 138 S.W. 826, 1909 Tenn. LEXIS 2 (1911).

Instructions relative to grand larceny was not error in trial of defendants charged with petit larceny where defendants were only found guilty of petit larceny. Graham v. State, 218 Tenn. 453, 404 S.W.2d 475, 1966 Tenn. LEXIS 643 (1966).

40-18-111. General verdict of guilty.

A general verdict of guilty will be sustained if there is any one (1) good count in the indictment sustained by proof, although the other counts may be fatally defective.

Code 1858, § 5217; Shan., § 7190; Code 1932, § 11753; T.C.A. (orig. ed.), § 40-2519.

Compiler's Notes. Many of the cases listed below were decided prior to the Criminal Sentencing Reform Act of 1989.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 17.22, 31.32.

Tennessee Jurisprudence, 24 Tenn. Juris., Verdict, § 4.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

NOTES TO DECISIONS

1. In General.

In order to invoke this section, there must be a general verdict. Briggs v. State, 573 S.W.2d 157, 1978 Tenn. LEXIS 667 (Tenn. 1978), overruled, State v. Blackburn, 694 S.W.2d 934, 1985 Tenn. LEXIS 601 (Tenn. 1985), overruled in part, State v. Blackburn, 694 S.W.2d 934, 1985 Tenn. LEXIS 601 (Tenn. 1985), overruled, McDaniel v. Sexton, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 264 (Tenn. Crim. App. Mar. 25, 2013).

2. Unconnected Offenses in Separate Counts.

Where distinct offenses having no connection are charged in separate counts, a general verdict of guilty cannot be sustained. Ayrs v. State, 45 Tenn. 26, 1867 Tenn. LEXIS 88 (1867); Kelly v. State, 66 Tenn. 84, 1872 Tenn. LEXIS 455 (1872).

3. Distinct Offenses Arising from Same Transaction.

Where the indictment charges two distinct offenses growing out of, and connected with, the same transaction, one being punished differently from the other, a general verdict is good, and will be applied to the higher offense. Ayrs v. State, 45 Tenn. 26, 1867 Tenn. LEXIS 88 (1867); Kelly v. State, 66 Tenn. 84, 1872 Tenn. LEXIS 455 (1872).

Where three offenses of equal rank were charged, and the proof made out a prima facie case on more than one count, this section does not apply and the general verdict is invalid. King v. State, 549 S.W.2d 686, 1976 Tenn. Crim. App. LEXIS 394 (Tenn. Crim. App. 1976).

Where defendant was tried on an indictment charging him with common-law premeditated murder and felony murder in one count, as well as aggravated rape and aggravated kidnapping, and the jury returned a general verdict, defendant's argument that the crime of rape was used to convict him of both felony murder and rape in violation of double jeopardy provisions was without merit. State v. Coe, 655 S.W.2d 903, 1983 Tenn. LEXIS 718 (Tenn. 1983).

There is no constitutional or statutory prohibition against a jury rendering a general verdict of guilty of first degree murder where both premeditated and felony murder are charged and submitted to the jury. Carter v. State, 958 S.W.2d 620, 1997 Tenn. LEXIS 497 (Tenn. 1997), rehearing denied, — S.W.2d —, 1997 Tenn. LEXIS 614 (Tenn. Dec. 15, 1997).

4. Part of Several Counts Sustained by Testimony.

If the several counts be good, but there is only testimony to sustain one, a general verdict, under a correct charge, will be sustained. Taylor v. State, 50 Tenn. 460, 1872 Tenn. LEXIS 15 (1872); McTigue v. State, 63 Tenn. 313, 1874 Tenn. LEXIS 252 (1874); Parham v. State, 78 Tenn. 498, 1882 Tenn. LEXIS 214 (1882); East T., V. & G. R.R. Co. v. Gurley, 80 Tenn. 46, 1883 Tenn. LEXIS 138 (1883); Foute v. State, 83 Tenn. 712, 1885 Tenn. LEXIS 100 (1885).

A general verdict will be applied to the counts sustained by the testimony, where there is no testimony to sustain the other count, if the charge is correct as to the counts sustained by the testimony, but erroneous as to the other count sustained by no testimony. Parham v. State, 78 Tenn. 498, 1882 Tenn. LEXIS 214 (1882); East T., V. & G. R.R. Co. v. Gurley, 80 Tenn. 46, 1883 Tenn. LEXIS 138 (1883); Davis v. State, 85 Tenn. 522, 3 S.W. 348, 1886 Tenn. LEXIS 80 (1886); Tarver v. State, 90 Tenn. 485, 16 S.W. 1041, 1891 Tenn. LEXIS 31 (1891), superseded by statute as stated in, State v. Maupin, — S.W.2d —, 1991 Tenn. Crim. App. LEXIS 818 (Tenn. Crim. App. Oct. 7, 1991); Cooper v. State, 123 Tenn. 37, 138 S.W. 826, 1909 Tenn. LEXIS 2 (1911); Chapple v. State, 124 Tenn. 105, 135 S.W. 321, 1910 Tenn. LEXIS 45 (1911), overruled in part, State v. Moss, 662 S.W.2d 590, 1984 Tenn. LEXIS 720 (Tenn. 1984).

A general verdict of guilty will be applied to the respective counts under which the evidence is sufficient to convict the respective defendants. Chapple v. State, 124 Tenn. 105, 135 S.W. 321, 1910 Tenn. LEXIS 45 (1911), overruled in part, State v. Moss, 662 S.W.2d 590, 1984 Tenn. LEXIS 720 (Tenn. 1984).

5. Good and Bad Counts — Presumption as to Verdict.

Where there are good and bad counts in an indictment, upon a general verdict of guilty, the court will presume that the finding is responsive to the good and not the bad counts. Rice v. State, 50 Tenn. 215, 1871 Tenn. LEXIS 85 (1871).

6. Verdict Not Responsive to Any Valid Count.

Where it is clear upon the facts that the verdict is not responsive to any valid count of the indictment, the conviction must be reversed, and the judgment arrested. Chapple v. State, 124 Tenn. 105, 135 S.W. 321, 1910 Tenn. LEXIS 45 (1911), overruled in part, State v. Moss, 662 S.W.2d 590, 1984 Tenn. LEXIS 720 (Tenn. 1984).

7. Offenses Not Charged.

Crime of shoplifting is not necessarily included in crime of larceny so that trial court did not err in failing to instruct jury as to shoplifting in larceny prosecution. Yearwood v. State, 2 Tenn. Crim. App. 552, 455 S.W.2d 612, 1970 Tenn. Crim. App. LEXIS 431 (Tenn. Crim. App. 1970).

8. Single Count Indictment.

Where a one-count presentment charged defendant with the common-law offense of interfering with a police officer in the performance of his duties and where the evidence and proof supported the charge, a general verdict of guilty was applied to the offense charged. Pope v. State, 528 S.W.2d 54, 1975 Tenn. Crim. App. LEXIS 321 (Tenn. Crim. App. 1975).

40-18-112. Uncertainty as to intent or means of offense.

Where the intent with which, the mode in, or the means by which, an act is done are essential to the commission of the offense, and the offense may be committed with different intents, in different modes, or by different means, if the jury is satisfied that the act was committed with one (1) of the intents, in one (1) of the modes, or by either of the means charged, the jury shall convict, although uncertain as to which of the intents charged existed, or which mode, or by which of the means charged, the act was committed.

Code 1858, § 5123; Shan., § 7086; Code 1932, § 11631; T.C.A. (orig. ed), § 40-2522.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 16.21.

NOTES TO DECISIONS

1. Several Intents.

This section authorizes conviction, if any of the intents that constitute the crime is certain, although other intents may be uncertain. Griffin v. State, 109 Tenn. 17, 70 S.W. 61, 1902 Tenn. LEXIS 54 (1902).

While a defendant who murders one victim may only be convicted of one offense of first degree murder, the circumstances of a particular case may support a jury finding that the offense of first degree murder was committed both with premeditation and during the course of perpetrating another felony. State v. Hall, 958 S.W.2d 679, 1997 Tenn. LEXIS 617 (Tenn. 1997), cert. denied, Hall v. Tennessee, 524 U.S. 941, 118 S. Ct. 2348, 141 L. Ed. 2d 718, 1998 U.S. LEXIS 4097 (1998).

2. Different Modes of Assault.

It is manifest that this section, among other things, was intended to embrace an assault with intent to commit murder in the first degree, where the mode of the assault is described differently in different counts, as for example, with a gun, axe, bludgeon, or by strangulation. Bass v. State, 65 Tenn. 579, 1872 Tenn. LEXIS 457 (1873); McCommon v. State, 130 Tenn. 1, 168 S.W. 581, 1914 Tenn. LEXIS 1 (1914).

40-18-113. Multiple defendants.

Upon an indictment against several defendants, any one (1) or more may be convicted or acquitted.
In an indictment against several defendants, if the jury cannot agree upon a verdict as to all, the jury may render a verdict as to those defendants in regard to whom the jury agrees, on which a judgment shall be entered.

Code 1858, §§ 5216, 5220; Shan., §§ 7189, 7193; Code 1932, §§ 11752, 11756; T.C.A. (orig. ed.), §§ 40-2523, 40-2524.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 31.33.

Tennessee Jurisprudence, 24 Tenn. Juris., Verdict, §§ 5, 7.

Law Reviews.

Criminal Law in Tennessee in 1972 — A Critical Survey — IV. Procedure (Joseph G. Cook), 40 Tenn. L. Rev. 569 (1973).

NOTES TO DECISIONS

1. Purpose.

The purpose of this section is to provide a method by which a jury considering cases of separate defendants may render an independent verdict as to each. State ex rel. Myers v. Brown, 209 Tenn. 141, 351 S.W.2d 385, 1961 Tenn. LEXIS 357 (1961).

2. Crimes Which May Be Committed by One Person.

In a multiple defendant case where consummation of the crime charged did not necessitate the concerted action of two or more, inconsistency in a verdict convicting some and acquitting some did not invalidate the convictions or mandate acquittal even though the evidence was the same. Jackson v. State, 477 S.W.2d 213, 1971 Tenn. Crim. App. LEXIS 450 (Tenn. Crim. App. 1971).

3. Change of Verdict.

Jury could not change an acquittal verdict of one joint defendant announced by jury and recorded on judge's docket while they were considering punishment for other joint defendants found guilty. State ex rel. Myers v. Brown, 209 Tenn. 141, 351 S.W.2d 385, 1961 Tenn. LEXIS 357 (1961).

40-18-114. Assessment of fine by jury.

Where an indictable offense is punished by fine, or by fine and imprisonment, the jury shall assess the fine, if, in its opinion, the offense merits a fine over fifty dollars ($50.00).

Code 1858, § 5237; Shan., § 7212; Code 1932, § 11799; T.C.A. (orig. ed.), § 40-2525.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 53; 17 Tenn. Juris., Larceny, § 16.

Law Reviews.

Tennessee Criminal Law: An Overview of the Courts and a Compendium of Tennessee Criminal Procedure (Michael R. Tilley), 5 Mem. St. U.L. Rev. 90.

NOTES TO DECISIONS

1. Derivation of Section.

The substance of Tenn. Const., art. VI, § 14 is enacted in this section. France v. State, 65 Tenn. 478, 1873 Tenn. LEXIS 389 (1873).

2. Fines Fixed by Statute — Section Inapplicable.

The provision has reference only to cases where the court has a discretion in fixing the fine, and not where it is definitely fixed by statute. France v. State, 65 Tenn. 478, 1873 Tenn. LEXIS 389 (1873); State ex rel. Astor v. Schlitz Brewing Co., 104 Tenn. 715, 59 S.W. 1033, 1900 Tenn. LEXIS 48, 78 Am. St. Rep. 941 (1900).

3. Fines Over Fifty Dollars — Jury's Power.

While it is true that the judge cannot impose a fine in a misdemeanor case exceeding $50.00, it is equally true that the jury under the constitution and law, in any misdemeanor case, may impose a higher fine. McGhee v. State, 70 Tenn. 622, 1879 Tenn. LEXIS 207 (1879).

A judge cannot lawfully fix a fine for a violation of liquor laws without a jury where the minimum fine is $100. Johnson v. State, 152 Tenn. 184, 274 S.W. 12, 1925 Tenn. LEXIS 60 (1925), superseded by statute as stated in, State v. Durso, 645 S.W.2d 753, 1983 Tenn. LEXIS 768 (Tenn. 1983).

This section grants the jury the authority to set the fine when, in its collective wisdom, the jury believes the offense merits a fine greater than $50.00, even though the defendant does not request jury sentencing. State v. Hill, 623 S.W.2d 293, 1981 Tenn. Crim. App. LEXIS 398 (Tenn. Crim. App. 1981).

4. Fine Assessed by Different Jury.

If the fine is not assessed by the same jury that finds the defendant guilty and at that time, the maximum amount of fine that can be imposed is $50.00. Huffman v. State, 200 Tenn. 487, 292 S.W.2d 738, 1956 Tenn. LEXIS 433 (1956), overruled, State v. Irvin, 603 S.W.2d 121, 1980 Tenn. LEXIS 475 (Tenn. 1980), overruled in part, State v. Irvin, 603 S.W.2d 121, 1980 Tenn. LEXIS 475 (Tenn. 1980).

Where defendant was convicted of assault with intent to commit voluntary manslaughter under an indictment charging only assault and battery but it appeared that defendant had otherwise had a fair trial and the case was remanded for assessment of appropriate fine and sentence, the amount of fine that could be assessed was limited by this section and Tenn. Const., art. VI, § 14, to $50.00. Huffman v. State, 200 Tenn. 487, 292 S.W.2d 738, 1956 Tenn. LEXIS 433 (1956), overruled, State v. Irvin, 603 S.W.2d 121, 1980 Tenn. LEXIS 475 (Tenn. 1980), overruled in part, State v. Irvin, 603 S.W.2d 121, 1980 Tenn. LEXIS 475 (Tenn. 1980).

5. Fine Assessed by Judge — Appeal.

If the trial judge fixes the fine in excess of $50.00, it is the duty of the supreme court, upon appeal, to reduce the amount and to affirm a judgment for $50.00 where there is no other reversible error. Huffman v. State, 200 Tenn. 487, 292 S.W.2d 738, 1956 Tenn. LEXIS 433 (1956), overruled, State v. Irvin, 603 S.W.2d 121, 1980 Tenn. LEXIS 475 (Tenn. 1980), overruled in part, State v. Irvin, 603 S.W.2d 121, 1980 Tenn. LEXIS 475 (Tenn. 1980).

6. Authority of Trial Court.

Defendants made no request, pursuant to § 40-20-104, at beginning of trial for jury to fix fine and imprisonment and court charged that if jury found defendants guilty and believed a fine of $50.00 or less would be sufficient punishment all they had to do was to find defendants guilty and court would fix punishment; therefore, sentence of $50.00 fine and 90 days in workhouse was within authority of trial court, where jury found defendants guilty and did not fix amount but agreed on fine of less than $50.00. McKinnie v. State, 214 Tenn. 195, 379 S.W.2d 214, 1964 Tenn. LEXIS 464 (1964).

40-18-115. Women jurors in felony cases.

In the discretion of the trial judge, in all cases where a woman is sworn as a member of the jury in a felony case, the court may appoint a woman bailiff or deputy sheriff as one (1) of the officers sworn to take charge of the jury, and the woman bailiff or deputy sheriff shall have the same powers and duties as other officers in the cases.
In all cases where a woman or women are sworn as a member or members of the jury in felony cases, it shall not be unlawful or render the verdict void for the women members of the jury to be segregated from the male members of the jury when outside the courtroom where the case is being tried, on the condition that each member of the jury remains in the custody of an officer or officers who have been duly sworn for that purpose.

Acts 1951, ch. 71, §§ 5, 6 (Williams, §§ 11748.2, 11748.3); T.C.A. (orig. ed.), §§ 40-2526, 40-2527.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 25.80, 25.81.

NOTES TO DECISIONS

1. Effect of Separation.

Separation of jury in homicide case, where male jurors went to the home of one of the male jurors accompanied by the officer in charge of them to watch television show but woman juror did not accompany them although she was never out of presence of woman officer, and where it was shown that male jurors did not come in contact with outsiders and that there was no evidence of improper communication with woman juror, did not constitute reversible error. Steadman v. State, 199 Tenn. 66, 282 S.W.2d 777, 1955 Tenn. LEXIS 429 (1955).

40-18-116. Sequestration of jurors.

In all criminal prosecutions, except those in which a death sentence may be rendered, jurors shall only be sequestered at the sound discretion of the trial judge, which shall prohibit the jurors from separating at times when they are not engaged upon actual trial or deliberation of the case.

Acts 1965, ch. 47, § 1; 1975, ch. 49, § 1; T.C.A., § 40-2528; Acts 1995, ch. 43, § 1; 2002, ch. 741, § 1.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 25.80.

Tennessee Jurisprudence, 17 Tenn. Juris., Jury, §§ 38, 42.

Law Reviews.

Criminal Procedure—Juror Misconduct and Bias—Assessing the Prejudicial Effect of Extra-Judicial Communications by Jurors in a Technologically Advanced Society, 82 Tenn. L. Rev. 253 (2014).

Recent Developments — Criminal Law and Procedure — Jury Separation — Burden of Proof of Prejudice to Defendant, 48 Tenn. L. Rev. 146 (1980).

NOTES TO DECISIONS

1. Applicability of Section.

This section is not applicable when defendants did not consent to the jury separation. Gonzales v. State, 593 S.W.2d 288, 1980 Tenn. LEXIS 396 (Tenn. 1980).

This section has applied to all criminal cases, except death penalty cases, with the result that prior distinctions that assumed misdemeanor cases involved nonsequestered juries and felony cases involved sequestered juries are no longer valid. State v. Blackwell, 664 S.W.2d 686, 1984 Tenn. LEXIS 918 (Tenn. 1984).

Trial courts, particularly those conducting trials involving sequestered juries, should consider limiting jurors' access to personal electronic devices and utilizing the pattern jury instruction regarding electronic communication. State v. Rayfield, 507 S.W.3d 682, 2015 Tenn. Crim. App. LEXIS 780 (Tenn. Crim. App. Sept. 28, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 146 (Tenn. Feb. 18, 2016).

2. Deliberation.

When the trial judge adjourns court and allows the jury to separate, deliberation within the meaning of this section ceases and does not resume until the jurors are reassembled in the proper setting and context of the trial process. Rushing v. State, 565 S.W.2d 893, 1977 Tenn. Crim. App. LEXIS 273 (Tenn. Crim. App. 1977).

3. Necessity to Show Prejudice.

Unless some prejudice is shown from the separation of the jury, any error therein is harmless. Rushing v. State, 565 S.W.2d 893, 1977 Tenn. Crim. App. LEXIS 273 (Tenn. Crim. App. 1977).

4. Directed Verdict as to Capital Felony.

Although defendant was indicted for first degree murder, where court directed a verdict as to first degree murder and submitted the case to the jury on second degree murder, which is a noncapital felony, the court could consent to the separation of the jury with the consent of defendant. State v. McKinney, 603 S.W.2d 755, 1980 Tenn. Crim. App. LEXIS 289 (Tenn. Crim. App. 1980).

5. Alternate Jurors.

Where alternate jurors were dismissed and the regular jury deliberated for several hours and then were separated for the night under an agreement between the parties pursuant to this section, that agreement was not breached by the fact that the alternate jurors could not be asked on the next morning whether anyone had attempted to influence them in the case, since the alternate jurors had completed their function and whether or not they were approached was meaningless. Rushing v. State, 565 S.W.2d 893, 1977 Tenn. Crim. App. LEXIS 273 (Tenn. Crim. App. 1977).

6. Evidence.

A trial judge should have the discretion to allow the separation of tentatively selected jurors, with appropriate admonitions, until they are sworn and required to be sequestered, in both capital and non-capital felony cases, (Hines v. State, 27 Tenn. 597, 1848 Tenn. LEXIS 3 (1848) and Wesley v. State, 30 Tenn. 502, 1851 Tenn. LEXIS 88 (1851)), espousing the rule that in a capital case upon proof that a jury separation had occurred, absent affirmative proof by the state that no tampering had in fact taken place, defendant was entitled to a new trial, and further, that the rule applied to prospective jurors before final acceptance and administration of the oath as well as after they were sworn are overruled insofar as they apply the rule stated therein to prospective and tentatively selected jurors. State v. McKay, 680 S.W.2d 447, 1984 Tenn. LEXIS 942 (Tenn. 1984).

Misconduct of a jury may be established by circumstantial evidence. State v. Perry, 740 S.W.2d 723, 1987 Tenn. Crim. App. LEXIS 2308 (Tenn. Crim. App. 1987).

In a murder case, although the rule of sequestration was violated where a deputy and some jurors drank alcoholic beverages together, defendant was not prejudiced because all of the jurors and the deputy testified that they did not discuss the trial with any non-jurors. State v. Jackson, 173 S.W.3d 401, 2005 Tenn. LEXIS 788 (Tenn. 2005).

7. Prejudicial Error Shown.

Prejudicial error was demonstrated where defendant did not waive her right to sequestration of jury, and the state could not rebut the presumption of jury tampering during separation. State v. Furlough, 797 S.W.2d 631, 1990 Tenn. Crim. App. LEXIS 293 (Tenn. Crim. App. 1990).

Where the trial court totally disregarded the statutory procedures governing selection of a special jury venire and where the sequestered jury was allowed to separate twice daily, the defendant's convictions for first degree murder and arson were reversed and the case remanded for a new trial. State v. Bondurant, 4 S.W.3d 662, 1999 Tenn. LEXIS 420 (Tenn. 1999).

8. Waiver of Sequestration.

While the trial court should sequester the jury unless the state and defendant consent to waive sequestration, by failing to raise the issue at trial when any prejudicial effect of the error could have been prevented, defendant waived the issue as a ground for relief. Jones v. State, 915 S.W.2d 1, 1995 Tenn. Crim. App. LEXIS 342 (Tenn. Crim. App. 1995), rehearing denied, — S.W.2d —, 1995 Tenn. Crim. App. LEXIS 479 (Tenn. Crim. App. June 13, 1995).

9. Illustrative Cases.

Trial court did not abuse its discretion in refusing to sequester the jury where it was unclear how many of the jurors heard the third-party communication, there was nothing in the record to indicate that the speaker had any connection whatsoever with the case, and the colloquy between the trial court and the reporting juror indicated that the juror was unaffected by the comment. State v. Larkin, 443 S.W.3d 751, 2013 Tenn. Crim. App. LEXIS 297 (Tenn. Crim. App. Mar. 28, 2013).

In a case where the sequestered jurors were allowed to keep their cell phones during the trial, defendant did not allege or offer any proof that they actually used their phones to communicate with persons outside the jury or to engage in prohibited internet research about the case, and defendant had only shown a possibility of a separation, but he had not shown an actual separation occurred. State v. Rayfield, 507 S.W.3d 682, 2015 Tenn. Crim. App. LEXIS 780 (Tenn. Crim. App. Sept. 28, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 146 (Tenn. Feb. 18, 2016).

Trial court properly denied defendant's motion for a mistrial because defendant failed to show that an actual separation of the jury occurred as defendant asserted only the possibility of separation of the jury, which was insufficient to place the burden on the State to show lack of prejudice, because defendant conceded that the court personnel remained with the jury in the courtroom during a recess, and the record was devoid of any evidence that the jurors were not supervised by the court officers during the recess. State v. Halliburton, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 907 (Tenn. Crim. App. Dec. 6, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 219 (Tenn. Apr. 13, 2017).

Sequestration order was not violated when jurors were permitted to play cards, use the hotel exercise room, call family members, or meet with family members in the presence of court officers. State v. Bargery, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 902 (Tenn. Crim. App. Oct. 6, 2017).

Trial court did not abuse its discretion by denying defendant's motion to sequester the jury because the trial court instructed the empaneled jurors initially and before each recess to refrain from conducting their own investigations, from watching, listening, and reading news media relative to the case, and from speaking with anyone about the case; the court instructed the jurors to decide the case only on the evidence presented at the trial; and defendant did not present any evidence that the jury did not follow the court's instructions or that he was denied a fair trial. State v. Simpson, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 173 (Tenn. Crim. App. Mar. 18, 2019).

40-18-117. Instructions concerning insanity.

In all criminal cases in which the trial judge charges the jury on the law relating to the defense of insanity, the judge shall also charge the jury that, if it should find the defendant to be not guilty by reason of insanity, that it shall so state in its verdict.

Acts 1977, ch. 228, § 1; T.C.A., § 40-2530.

Cross-References. Insanity, § 39-11-501.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 12.2, 22.12, 28.49, 31.30.

Tennessee Jurisprudence, 18 Tenn. Juris., Mental Illness, etc., § 21.

40-18-118. Peremptory challenges.

Notwithstanding any other provision of law or rule of court to the contrary, in any case in which a defendant is charged with an offense punishable by death, the defendant is entitled to fifteen (15) peremptory challenges and the state is entitled to fifteen (15) peremptory challenges for each such defendant. If the offense charged is punishable by imprisonment for more than one (1) year but not by death, each defendant is entitled to eight (8) peremptory challenges, and the state is entitled to eight (8) peremptory challenges for each defendant. If the offense charged is punishable by imprisonment for less than one (1) year or by fine, or both, each side is entitled to three (3) peremptory challenges for each defendant.

Acts 1995, ch. 339, § 1.

Rule Reference. This section is referred to in the Advisory Commission Comments under Rule 24 of the Tennessee Rules of Criminal Procedure.

Law Reviews.

Jury Reform in Tennessee, 34 U. Mem. L. Rev. 1 (2003).

NOTES TO DECISIONS

1. Trial in Absentia.

Inmate filed a claim against the state that the trial judge deprived him of his statutory rights because the indictments against him were void and because he was tried, convicted, and sentenced in absentia; he based his claim on T.C.A. §§ 40-3-101, 40-14-101, 40-14-102, 40-17-105, and 40-18-118, and Tenn. R. Crim. P. 43, but none of those statutes and rules expressly conferred a private right of action against the state to him; thus, the Tennessee claims commission for the eastern grand division did not err when it held that it lacked subject matter jurisdiction over the inmate's claim pursuant to T.C.A. § 9-8-307(a)(1)(N) and that the inmate failed to state a claim upon which relief can be granted. Therefore, pursuant to Tenn. Const. art. I, § 17, the commission did not err when it granted the state's motion to dismiss, pursuant to Tenn. R. Civ. P. 12.02(1). Williams v. State, 139 S.W.3d 308, 2004 Tenn. App. LEXIS 43 (Tenn. Ct. App. 2004), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 530 (Tenn. June 1, 2004), appeal denied, Williams v. Parker, — S.W.3d —, 2006 Tenn. LEXIS 9 (Tenn. 2006).

2. Denial of Right.

Denial of the right to exercise peremptory challenges did not violate the Due Process Clause of the Fourteenth Amendment. State v. Taylor, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 920 (Tenn. Crim. App. Sept. 30, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 70 (Tenn. Jan. 16, 2015), cert. denied, Taylor v. Tennessee, 192 L. Ed. 2d 158, 135 S. Ct. 2368, — U.S. —, 2015 U.S. LEXIS 3523 (U.S. 2015).

Defendant waived any failure of a trial court to grant required peremptory challenges because defendant did not object to the trial court's jury selection procedure and did not raise the issue in a new trial motion. State v. Lane, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 600 (Tenn. Crim. App. Sept. 20, 2019).

3. Use of Challenge after Juror Not Excused for Cause.

Defendant was not entitled to relief on his claim that the requirement for him to use a peremptory challenge on a juror who should have been excused for cause deprived him of a fair trial because he acknowledged that his jury was impartial and the court rejected defendant's request to overturn the standard articulated in Howell . State v. Ray, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 320 (Tenn. Crim. App. May 6, 2020).

40-18-119. Presumption that original trial judge has served as thirteenth juror and approved unanimous verdict.

When any successor judge to the original trial judge or any appellate court is determining if a new trial should be granted to a criminal defendant on the grounds that the verdict of guilty is against the weight of the evidence, immediately upon the original trial judge dismissing a jury following the return of a unanimous verdict, there is created a presumption that the original trial judge has served as the thirteenth juror and approved the jury's verdict with respect to each count on which a unanimous verdict was returned.

Acts 2014, ch. 694, § 2.

Compiler's Notes. Acts 2014, ch. 694, § 1 provided that the act, which enacted this section, shall be known and cited as the “Chris Newsom Act”.

Chapter 19
Defects in Proceedings

40-19-101. Clerical omissions not constituting reversible error.

When a person indicted or presented for a criminal offense is arraigned before a court having jurisdiction of the matter pleads not guilty, and is tried upon the merits and convicted, the person shall not be entitled to a new trial, or to an arrest of judgment, for any of the following causes:

The clerk of the court omitted to file or enter the person's plea of record;
The district attorney general, clerk or grand jury omitted to mark a prosecutor upon the indictment;
The clerk omitted to show in the record sent to the supreme court that there was a prosecutor;
A defect in making out the caption of the record;
An omission of any caption to the record sent up to the supreme court;
The clerk omitted to embody in the record the venire facias;
The clerk omitted to enter upon the minutes of the court that the grand jury returned the indictment into open court, if the indictment shows upon its back that it was found “a true bill”; or
The indictment was drawn by a district attorney general pro tempore, and the clerk omitted to enter such district attorney general's appointment upon the minutes of the court.

Code 1858, § 5242 (deriv. Acts 1851-1852, ch. 256, §§ 1-5); Shan., § 7217; Code 1932, § 11803; Acts 1981, ch. 449, § 2; T.C.A. (orig. ed.), § 40-2601.

Cross-References. Relief, effect of error, T.R.A.P. 36.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 33.42.

Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, § 10; 14 Indictments, Informations, and Presentments, §§ 10, 14; 20 Tenn. Juris., New Trials, §§ 3, 21.

Law Reviews.

Tennessee Criminal Law: An Overview of the Courts and a Compendium of Tennessee Criminal Procedure, 5 Mem. St. U.L. Rev. 90.

NOTES TO DECISIONS

1. Plea Not of Record.

If a plea of not guilty, or other sufficient plea, be in fact pleaded, although by inadvertence, or from other cause, the clerk omitted to file or enter such plea of record, a verdict and judgment upon such plea would be valid. Link v. State, 50 Tenn. 252, 1871 Tenn. LEXIS 88 (1871).

Where there is a clear implication that a plea was entered, a reversal is forbidden for failure to file or note in the record. Muse v. State, 106 Tenn. 181, 61 S.W. 80, 1900 Tenn. LEXIS 147 (1900); Stewart v. State, 164 Tenn. 202, 46 S.W.2d 811, 1931 Tenn. LEXIS 24 (1932).

2. —Appeal.

While the plea itself need not appear in the transcript on appeal from a conviction, the fact that a plea was entered must be shown in such transcript. Lynch v. State, 99 Tenn. 124, 41 S.W. 348, 1897 Tenn. LEXIS 17 (1897); Temple v. State, 127 Tenn. 429, 155 S.W. 388, 1912 Tenn. LEXIS 41 (1912).

3. Marking Prosecutor.

Omission to mark prosecutor on indictment is cured by verdict of conviction. Dove v. State, 50 Tenn. 348, 1872 Tenn. LEXIS 3 (1872); State v. Travis, 1 Shan. 593 (1876); State v. Tankersly, 74 Tenn. 582, 1880 Tenn. LEXIS 296 (1880); Rodes v. State, 78 Tenn. 414, 1882 Tenn. LEXIS 197 (1882); Parham v. State, 78 Tenn. 498, 1882 Tenn. LEXIS 214 (1882); Palmer v. State, 121 Tenn. 465, 118 S.W. 1022, 1908 Tenn. LEXIS 30 (1908); Temple v. State, 127 Tenn. 429, 155 S.W. 388, 1912 Tenn. LEXIS 41 (1912). See Brooks v. State, 156 Tenn. 451, 2 S.W.2d 705, 1927 Tenn. LEXIS 139 (1928).

Objection for want of prosecutor must be made before verdict of conviction, and it is too late to make such objection after such verdict. State v. Tankersly, 74 Tenn. 582, 1880 Tenn. LEXIS 296 (1880); Rodes v. State, 78 Tenn. 414, 1882 Tenn. LEXIS 197 (1882); Parham v. State, 78 Tenn. 498, 1882 Tenn. LEXIS 214 (1882).

4. Caption.

This statute is inapplicable where the caption appearing in the transcript is that of the circuit court of the county where the criminal jurisdiction was in a criminal court of that county, and there was no caption of the criminal court or other competent matter in the transcript showing which of the two courts tried the defendant. Boyd v. State, 46 Tenn. 1, 1868 Tenn. LEXIS 60 (1868).

The presumption is that the omitted caption shows that the court was held at the place prescribed by law. Mack v. State, 3 Shan. 566 (1875); Temple v. State, 127 Tenn. 429, 155 S.W. 388, 1912 Tenn. LEXIS 41 (1912).

5. Venire Facias Omitted.

Omission of venire facias is no ground for a new trial, arrest of judgment or reversal. Sible v. State, 50 Tenn. 137, 1871 Tenn. LEXIS 77 (1871); Lewis v. State, 50 Tenn. 333, 1871 Tenn. LEXIS 105 (1871); Temple v. State, 127 Tenn. 429, 155 S.W. 388, 1912 Tenn. LEXIS 41 (1912).

6. Minute Entry of Return Omitted.

Omission of minute entry of return of a misdemeanor indictment into court is not fatal. State v. Willis, 40 Tenn. 157, 1859 Tenn. LEXIS 40 (1859).

An indictment may be withdrawn by leave of the court, and recommitted to the grand jury, by which it was found and returned into court; but when again returned into court, the record must show the fact, and the failure to do so is such defect as will not be cured by the provision of this statute, especially if it was endorsed “A true bill,” before it was withdrawn, and at a former term of the court. State v. Davidson, 42 Tenn. 184, 1865 Tenn. LEXIS 40 (1865).

Where the record fails to show the return of an indictment into court, and there is no endorsement showing that it had been found “A true bill,” such double defect is not cured by this statute. Gunkle v. State, 65 Tenn. 625, 1872 Tenn. LEXIS 464 (1872); State v. Herron, 86 Tenn. 442, 7 S.W. 37, 1887 Tenn. LEXIS 60 (1888); Canuff v. State, 97 Tenn. 635, 37 S.W. 547, 1896 Tenn. LEXIS 190 (1896); Bird v. State, 103 Tenn. 343, 52 S.W. 1076, 1899 Tenn. LEXIS 114 (1899); Martin v. State, 127 Tenn. 324, 155 S.W. 129, 1912 Tenn. LEXIS 30 (1913).

7. Appointment of District Attorney Pro Tempore.

Where it appears of record that the indictment was preferred by the regular district attorney general and the case prosecuted by a district attorney pro tempore, as to whose appointment the record is silent, it will be presumed that he was regularly appointed. Isham v. State, 33 Tenn. 111, 1853 Tenn. LEXIS 16 (1853).

It will be presumed on appeal that the trial court would not permit anyone to discharge the duties of district attorney general without some valid reason and regular appointment. Isham v. State, 33 Tenn. 111, 1853 Tenn. LEXIS 16 (1853).

Failure of the record to show the appointment of the district attorney pro tempore is cured by this statute, where the defendant submitted to regular trial, without objection, and was convicted. Moody v. State, 46 Tenn. 299, 1869 Tenn. LEXIS 58 (1869); Vincent v. State, 50 Tenn. 120, 1871 Tenn. LEXIS 72 (1871); Woods v. State, 65 Tenn. 426, 1873 Tenn. LEXIS 379 (1873); Fisher v. State, 78 Tenn. 151, 1882 Tenn. LEXIS 156 (1882); Turner v. State, 89 Tenn. 547, 15 S.W. 838, 1890 Tenn. LEXIS 78 (1891); Temple v. State, 127 Tenn. 429, 155 S.W. 388, 1912 Tenn. LEXIS 41 (1912).

Presumption is that appointment of district attorney pro tempore was regular. Woods v. State, 65 Tenn. 426, 1873 Tenn. LEXIS 379 (1873).

8. Swearing of Entire Jury Not Shown.

Where the jury were selected on two different days, and it appears only of record that those last selected were sworn, this statement excludes the idea that the others were duly qualified, and the error is not cured by this section. Bass v. State, 65 Tenn. 579, 1872 Tenn. LEXIS 457 (1873).

9. Two or More Causes Existing.

There may be no new trial, arrest of judgment, or reversal for causes declared not to be grounds therefor, though two or more of such causes exist. King v. State, 83 Tenn. 51, 1885 Tenn. LEXIS 18 (1885); Temple v. State, 127 Tenn. 429, 155 S.W. 388, 1912 Tenn. LEXIS 41 (1912).

40-19-102. Forfeiture of fees by clerk.

Any clerk of a circuit or criminal court who is guilty of any neglect or omission as stated in § 40-19-101 shall forfeit all tax fees and costs to which the clerk would otherwise be entitled.

Code 1858, § 5243 (deriv. Acts 1851-1852, ch. 256, § 6); Shan., § 7218; Code 1932, § 11804; T.C.A. (orig. ed.), § 40-2602.

Cross-References. Forfeiture of fees for defects in transcripts, § 8-21-407.

Textbooks. Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, § 10.

NOTES TO DECISIONS

1. Application of Section.

Forfeiture of fees will be enforced, under this section, for failure to make the entries or perform the duties contemplated under § 40-19-101 though their omission is no ground of complaint after conviction. Sible v. State, 50 Tenn. 137, 1871 Tenn. LEXIS 77 (1871); Maynard v. State, 68 Tenn. 225, 1877 Tenn. LEXIS 25 (1877); Maynard v. State, 2 Shan. 279 (1877).

The entry of the respite should be in general terms “that the jury returned in charge of an officer duly sworn,” and for noncompliance with this rule the clerk forfeits his costs. Maynard v. State, 68 Tenn. 225, 1877 Tenn. LEXIS 25 (1877).

Chapter 20
Judgment and Sentence

Part 1
General Provisions

40-20-101. Judgment after verdict — Modification of verdict.

After a verdict against the defendant, if the judgment is not arrested or a new trial granted, the court shall pronounce judgment.
If, in the pronouncement of a judgment where a defendant has been retried either following an order granting a retrial by a court of this state or in obedience to a decision of a court of the United States, it becomes necessary that the jury's verdict be modified to prevent a sentence on the second trial being greater than the verdict pronounced at the first trial, then the trial court is authorized to modify the jury's verdict and pronounce judgment accordingly.

Code 1858, § 5225; Shan., § 7198; Code 1932, § 11761; Acts 1972, ch. 591, § 1; T.C.A. (orig. ed.), § 40-2701.

Cross-References. Criminal Sentencing Reform Act, title 40, ch. 35.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, §§ 40, 42.

Law Reviews.

Are Shaming Punishments Beautifully Retributive? Retributivism and the Implications for the Alternative Sanctions Debate, 54 Vand. L. Rev. 2157 (2001).

Criminal Law in Tennessee in 1975: A Critical Survey (Joseph G. Cook), 43 Tenn. L. Rev. 535 (1976).

Specific Crime vs. Criminal Ways: Criminal Conduct and Responsibility in Rule 3E1.1, 54 Vand. L. Rev. 205 (2001).

The Tennessee Court System — Criminal Court (Frederic S. LeClercq), 8 Mem. St. U.L. Rev. 319.

NOTES TO DECISIONS

1. Necessity of Entry of Judgment.

When a verdict is entered, the court should enter judgment thereon if judgment is not arrested or a motion for new trial granted, but until the judgment is entered or the cause is some way disposed of, it is still pending and stands continued with the unfinished business until the next term. Neely v. State, 210 Tenn. 52, 356 S.W.2d 401, 1962 Tenn. LEXIS 411 (1962).

2. Inquiry of Defendant Before Judgment.

Pronouncement of judgment without asking defendant whether he has anything further to say why judgment should not be passed upon him, after his motions for a new trial and in arrest of judgment had been overruled, is not reversible error. State ex rel. Latture v. Board of Inspectors, 114 Tenn. 516, 86 S.W. 319, 1904 Tenn. LEXIS 104 (1904).

3. Suspension of Judgment.

Where it is apparent that the stay of execution was granted by the trial judge solely as a reformatory measure, such stay is merely void; and this being true, the trial court has the power, at a succeeding term, to order capias to issue to take the defendant into custody, to the end that he may serve his sentence. Spencer v. State, 125 Tenn. 64, 140 S.W. 597, 1911 Tenn. LEXIS 7, 38 L.R.A. (n.s.) 680 (1911); State ex rel. Conner v. Herbert, 127 Tenn. 220, 154 S.W. 957, 1912 Tenn. LEXIS 24 (1912).

Trial judges have no power expressly to suspend judgment and punishment in criminal cases for an indefinite time. State v. Griffin, 7 Tenn. Civ. App. (7 Higgins) 230 (1917).

4. Change of Judgment.

Judgment on verdict, once rendered, cannot be changed at a subsequent term. Whitney v. State, 74 Tenn. 247, 1880 Tenn. LEXIS 242 (1880).

An order requiring sentences to run consecutively was improper after the lapse of 30 days from the entry of judgment. State v. Bouchard, 563 S.W.2d 561, 1977 Tenn. Crim. App. LEXIS 265 (Tenn. Crim. App. 1977).

Where the language used by the trial judge and quoted in the bill of exceptions leaves no doubt that the trial judge pronounced judgment in open court, the trial court was without jurisdiction to modify or supersede the judgment after the expiration of 30 days. State v. Bouchard, 563 S.W.2d 561, 1977 Tenn. Crim. App. LEXIS 265 (Tenn. Crim. App. 1977).

An attempt on the part of the trial judge to amend a judgment entered nearly two and one-half years before was a nullity and completely void. Ray v. State, 576 S.W.2d 598, 1978 Tenn. Crim. App. LEXIS 341 (Tenn. Crim. App. 1978).

5. Appeal.

6. —Final Judgment as Prerequisite.

Appeal in the nature of a writ of error does not lie until after final judgment has been rendered upon the verdict and where taken before final judgment it will be dismissed and the cause remanded for judgment. Nolin v. State, 46 Tenn. 12, 1868 Tenn. LEXIS 63 (1868); State v. Miller, 65 Tenn. 513, 1873 Tenn. LEXIS 396 (1873); Sharp v. State, 117 Tenn. 537, 97 S.W. 812, 1906 Tenn. LEXIS 63 (1906).

The absence of judgment in the lower court cannot be supplied in the supreme court, even where there is a proper verdict and in such case, the appeal must be dismissed, and the case remanded for entry of judgment in accordance with the verdict. Sharp v. State, 117 Tenn. 537, 97 S.W. 812, 1906 Tenn. LEXIS 63 (1906); Spencer v. State, 125 Tenn. 64, 140 S.W. 597, 1911 Tenn. LEXIS 7, 38 L.R.A. (n.s.) 680 (1911).

7. —Judgment Presumed.

In trial of defendant charged as an accessory after the fact it is presumed that where evidence showed a verdict of guilty against principal that the court entered judgment on the verdict. Wilson v. State, 190 Tenn. 592, 230 S.W.2d 1014, 1950 Tenn. LEXIS 527 (1950).

8. —Correction on Appeal.

Where judgment sentenced defendant for both burglary and larceny arising from the same incident, the supreme court modified the verdict to release the defendant on the larceny count. Cronin v. State, 113 Tenn. 539, 82 S.W. 477, 1904 Tenn. LEXIS 48 (1904), overruled, State v. Davis, 613 S.W.2d 218, 1981 Tenn. LEXIS 414 (Tenn. 1981), overruled in part, State v. Davis, 613 S.W.2d 218, 1981 Tenn. LEXIS 414 (Tenn. 1981), overruled, Garrett v. Lindamood, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 939 (Tenn. Crim. App. Dec. 21, 2011).

Where the trial court sentenced defendant to a fine and imprisonment on conviction of a misdemeanor which provided only a fine as punishment, the supreme court modified the judgment by striking the imprisonment. Pressly v. State, 114 Tenn. 534, 86 S.W. 378, 1904 Tenn. LEXIS 108, 108 Am. St. Rep. 921, 69 L.R.A. 291 (1905).

Where the verdict is in proper form, and the circuit court rendered an erroneous judgment on the verdict, the supreme court will on appeal by defendant, make the proper correction, and render such judgment as the circuit court should have rendered. Cowan v. State, 117 Tenn. 247, 96 S.W. 973, 1906 Tenn. LEXIS 45 (1906).

An imperfect judgment in the court below may be corrected. Sharp v. State, 117 Tenn. 537, 97 S.W. 812, 1906 Tenn. LEXIS 63 (1906).

A judgment too general and meager may be corrected in the supreme court, so as to set out the facts sufficiently. Coleman v. State, 121 Tenn. 1, 113 S.W. 1045, 1908 Tenn. LEXIS 1 (1908).

Where the trial court imposed a fine in excess of that provided by the statute, the supreme court modified the judgment by reducing the fine to the maximum provided by the statute. Diamond v. State, 123 Tenn. 348, 131 S.W. 666, 1910 Tenn. LEXIS 8 (1910).

9. Retrials.

The purpose of the 1972 amendment to this section as set out in the second paragraph is to enable courts to correct increased punishment at a second trial found to be constitutionally impermissible, without the necessity of a new trial or resubmission to a jury for sentencing only. Sommerville v. State, 521 S.W.2d 792, 1975 Tenn. LEXIS 697 (Tenn. 1975).

The statute is not mandatory, but permissive, and its use is limited to cases wherein the trial judge makes a finding on a motion for a new trial that the harsher sentence of the second jury is the result of knowledge of a former trial and the sentence imposed therein, and vindictiveness. Sommerville v. State, 521 S.W.2d 792, 1975 Tenn. LEXIS 697 (Tenn. 1975).

Where defendant had been tried only once, his contention that this statute authorizes the trial court to modify the jury verdict was without merit. Mallicoat v. State, 539 S.W.2d 54, 1976 Tenn. Crim. App. LEXIS 376 (Tenn. Crim. App. 1976).

10. Concurrent or Consecutive Sentence.

Where the trial court's judgment, as stated both in the minutes and the bill of exceptions, is silent as to whether the sentence imposed should run concurrently with or consecutively to the sentence imposed for the defendant's prior conviction, the sentences are served concurrently. State v. Bouchard, 563 S.W.2d 561, 1977 Tenn. Crim. App. LEXIS 265 (Tenn. Crim. App. 1977).

11. Validity of Conviction.

When a conviction reflects the trial judge's approval of the jury verdict and imposition of sentence upon the defendant it is valid and complete. Ray v. State, 576 S.W.2d 598, 1978 Tenn. Crim. App. LEXIS 341 (Tenn. Crim. App. 1978).

40-20-102. Discretion as to fine or imprisonment.

In all prosecutions for misdemeanors where the punishment prescribed is a fine or imprisonment, or both, the discretion as to the punishment shall be in the court unless otherwise provided.

Code 1932, § 10757; T.C.A. (orig. ed.), § 40-2702.

Cross-References. Assessment of fine by jury, § 40-18-114.

Criminal Sentencing Reform Act, title 40, ch. 35.

Fine accompanying sentence to workhouse, § 41-2-112.

NOTES TO DECISIONS

1. Fixing of Punishment.

Where no request was made, the punishment, in misdemeanor cases, was fixed by the court unless otherwise provided. Edwards v. State, 491 S.W.2d 87, 1972 Tenn. Crim. App. LEXIS 267 (Tenn. Crim. App. 1972), overruled, State v. Mixon, 983 S.W.2d 661, 1999 Tenn. LEXIS 33 (Tenn. 1999), overruled in part, State v. Mixon, 983 S.W.2d 661, 1999 Tenn. LEXIS 33 (Tenn. 1999).

40-20-103. Place of confinement.

In no case shall any person convicted of a felony be confined in the penitentiary for less than twelve (12) months. Whenever the minimum punishment is imprisonment in the penitentiary for one (1) year, but in the opinion of the jury the offense merits a lesser punishment, the jury may punish by confinement in the county jail or workhouse for any period less than twelve (12) months, except as otherwise provided.
In counties of this state having a population in excess of six hundred thousand (600,000), according to the 1970 federal census or any subsequent federal census, in all cases where a person is convicted of a felony, misdemeanor or otherwise punished by confinement, the punishment by confinement will be served by imprisonment in a state penitentiary or county workhouse; provided, however, that in cases where trusty status is desired of the prisoner and is mutually agreed upon by both the sheriff of that county and the trial judge, sentence to the county jail would be allowed to the exclusion of any other statutory law or common law now in effect.

Acts 1859-1860, ch. 63; Shan., § 7206; mod. Code 1932, § 10754; Acts 1980, ch. 694, § 1; T.C.A. (orig. ed.), § 40-2703.

Compiler's Notes. For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Cross-References. Sentence to portable or stationary workhouse, § 41-2-103.

Sentence to workhouse, § 41-2-111.

Sentence to workhouse in lieu of jail, § 41-2-113.

Youth development centers, title 37, ch. 5, part 2.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 25.62, 32.121, 32.132, 38.202.

Law Reviews.

Criminal Law and Procedure — 1960 Tennessee Survey (Robert E. Kendrick), 13 Vand. L. Rev. 1059.

NOTES TO DECISIONS

1. Indeterminate Sentence Law.

The indeterminate sentence law did not repeal this section because its proviso (§ 40-20-109) excludes the section and also because it relates to offenses punishable in the penitentiary, whereas this section relates to felonies which are not so punishable if the jury is of the opinion that they merit less than 12 months punishment. State v. Chadwick, 131 Tenn. 354, 174 S.W. 1144, 1914 Tenn. LEXIS 112 (1915).

2. Felonies Covered.

This section is limited to felonies for which the minimum punishment may be fixed at imprisonment in the penitentiary for one year. Bolton v. State, 45 Tenn. 650, 1868 Tenn. LEXIS 59 (1868); Wickham v. State, 47 Tenn. 525, 1870 Tenn. LEXIS 168 (1870); Davis v. State, 65 Tenn. 429, 1873 Tenn. LEXIS 380 (1873); Ferrell v. State, 70 Tenn. 25, 1878 Tenn. LEXIS 181 (1878); State v. Ragsdale, 78 Tenn. 671, 1882 Tenn. LEXIS 235 (1882); State v. Chadwick, 131 Tenn. 354, 174 S.W. 1144, 1914 Tenn. LEXIS 112 (1915).

3. —Assault with Intent to Commit Felony.

Section 39-1-501 (repealed) covered sentencing to county jail or workhouse for assault with intent to commit a felony and this section did not apply. Mitchell v. State, 123 Tenn. 649, 134 S.W. 306, 1910 Tenn. LEXIS 33 (1911).

4. —Fraudulent Breach of Trust.

This statute is applicable in determining sentence to be imposed for fraudulent breach of trust. Burke v. State, 157 Tenn. 105, 6 S.W.2d 556, 1927 Tenn. LEXIS 54 (1928).

5. —Larceny.

Cases of larceny were governed by § 39-3-1105 (repealed) specially applicable thereto, and not by this section, dealing with felonies generally. Corlew v. State, 181 Tenn. 220, 180 S.W.2d 900, 1944 Tenn. LEXIS 364 (1944).

Under § 39-3-1105 (repealed) giving the court power, on recommendation of the jury, to substitute fine and imprisonment in county jail for imprisonment in penitentiary and under this section giving jury power to fix sentence at the lesser confinement, the jury may assess the sentence as confinement in the county jail or in its discretion recommend that judge fix the lesser sentence. Hopper v. State, 205 Tenn. 246, 326 S.W.2d 448, 1959 Tenn. LEXIS 360 (1959), overruled in part, Kersey v. State, 525 S.W.2d 139, 1975 Tenn. LEXIS 654 (Tenn. 1975).

6. —Sale of Marijuana.

Where a defendant was convicted of selling marijuana under § 39-6-417 (repealed), which provides a minimum term of imprisonment of one year and a maximum fine of $3,000, the jury was empowered by this section to reduce the sentence of imprisonment to 11 months and 29 days in the county jail and to impose also the maximum fine of $3,000. State v. Hughes, 512 S.W.2d 552, 1974 Tenn. LEXIS 486 (Tenn. 1974).

7. Instruction Required.

In a prosecution for involuntary manslaughter, it is the duty of the trial judge to give this section in charge without any request, in view of former § 40-18-110; and it is clearly error to refuse a request embodying the section. State v. Chadwick, 131 Tenn. 354, 174 S.W. 1144, 1914 Tenn. LEXIS 112 (1915).

It is the duty of the court, without request, in all cases where punishment is as low as 12 months in the penitentiary, to charge the jury that it may punish for felony by confinement in the county jail for any period short of 12 months. Jenkins v. State, 163 Tenn. 635, 45 S.W.2d 531, 1931 Tenn. LEXIS 160 (1932).

In prosecution for escape, where the trial court instructed the jury that if defendant were found guilty the minimum sentence could not be less than one year and not more than two years but the court did not instruct the jury that defendant could be sentenced to a term in the county workhouse for any period less than 12 months, defendant was entitled to a new trial on the issue of sentencing only. Bingham v. State, 536 S.W.2d 348, 1976 Tenn. Crim. App. LEXIS 401 (Tenn. Crim. App. 1976).

8. Imprisonment for Costs.

Where the trial court rendered judgment against a defendant for the costs of the prosecution, but omitted to impose imprisonment until the costs were paid or secured, the supreme court will render the judgment that the trial court should have rendered, and order that defendant be imprisoned to work out the costs, if not otherwise secured or paid. Eaton v. State, 83 Tenn. 200, 1885 Tenn. LEXIS 42 (1885).

A convicted felon, whose punishment has been commuted to imprisonment in the county jail, may, after such term of imprisonment has expired, be required to work out, in the county workhouse, the fine and costs of the state adjudged against him, if not otherwise paid or secured. Eaton v. State, 83 Tenn. 200, 1885 Tenn. LEXIS 42 (1885); Ex parte Griffin, 88 Tenn. 547, 13 S.W. 75, 1889 Tenn. LEXIS 75 (1890).

9. —Liability of County for Costs.

The county is not liable to the state for costs which, upon a commuted sentence for felony, are worked out in the county workhouse, but is liable if such costs are paid into its treasury in cash or its equivalent. State v. Davidson County, 96 Tenn. 178, 33 S.W. 924, 1895 Tenn. LEXIS 23 (1896).

10. Nature of Conviction.

Where a defendant was charged with a felony and after pleading guilty was given a reduced sentence to the county workhouse, the conviction was held still to be of a felony. Skiles v. State, 516 S.W.2d 75, 1974 Tenn. LEXIS 441 (Tenn. 1974).

Sections 40-32-101 — 40-32-104 have no application to cases where a defendant pleads guilty and receives a reduced sentence under this section. Skiles v. State, 516 S.W.2d 75, 1974 Tenn. LEXIS 441 (Tenn. 1974).

To be disqualified from office under § 40-20-114, a person must be convicted of a felony and sentenced to the penitentiary. Implicit in the second criterion for a person convicted in state court is the further condition that he be sentenced to a term of one year or more, for under this section persons sentenced to a lesser term cannot be sentenced to the state penitentiary. Stiner v. Musick, 571 S.W.2d 149, 1978 Tenn. LEXIS 641 (Tenn. 1978).

40-20-104. Term fixed by court — By jury.

When the offense is punished by imprisonment in the county jail or workhouse, the term of imprisonment shall be fixed by the court, unless otherwise provided; provided, that when any person is indicted or presented in a court of record for the alleged commission of any misdemeanor, and pleads not guilty and is tried by a jury, upon demand of defendant timely made, the trial jury shall as a part of its verdict assess the punishment for the offense both as to fine and imprisonment within the limits now or later prescribed by law.
When a defendant has timely made a request for a jury trial, the judge shall charge the jury that as a part of its verdict in the case, if it finds the defendant guilty, it shall fix the punishment for the offense within the limits prescribed by law, which limits shall be stated in the charge, and the judge shall not comment on the fact that the defendant has made the request for a jury trial.

Code 1858, § 5229 (deriv. Acts 1829, ch. 23, § 76); Shan., § 7202; mod. Code 1932, § 11765; Acts 1947, ch. 82, § 1; C. Supp. 1950, § 11765 (Williams, §§ 11760.1, 11765); Acts 1973, ch. 67, § 1; T.C.A. (orig. ed.), § 40-2704.

Cross-References. Criminal Sentencing Reform Act, title 40, ch. 35.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 32.2.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, §§ 45, 53; 17 Tenn. Juris., Jury, § 2.

Law Reviews.

Criminal Law in Tennessee in 1973: A Critical Survey; II. Offenses (Joseph G. Cook), 41 Tenn. L. Rev. 205 (1974).

NOTES TO DECISIONS

1. Application.

This act does not apply to felonies but is restricted to indictment or presentments for misdemeanors. Senter v. State, 187 Tenn. 517, 216 S.W.2d 21, 1948 Tenn. LEXIS 460 (1948).

2. Purpose.

This section was evidently passed for the benefit of the defendant. Peters v. State, 187 Tenn. 45, 187 Tenn. 455, 215 S.W.2d 822, 1948 Tenn. LEXIS 451 (1948).

3. Demand.

4. —Necessity.

Under this section the jury shall as a part of their verdict assess the punishment both as to fine and imprisonment only when the defendant seasonably demands that they do so. Broestler v. State, 186 Tenn. 523, 212 S.W.2d 366, 1948 Tenn. LEXIS 574 (1948).

Defendants made no request, pursuant to this section, at beginning of trial for jury to fix fine and imprisonment and courts charged that if jury found defendants guilty and believed a fine of $50.00 or less would be sufficient punishment all they had to do was to find defendants guilty and court would fix punishment; therefore, sentence of $50.00 fine and 90 days in workhouse was within authority of trial court, where jury found defendants guilty and did not fix amount but agreed on fine of less than $50.00. McKinnie v. State, 214 Tenn. 195, 379 S.W.2d 214, 1964 Tenn. LEXIS 464 (1964).

The power of the trial court to set a jail sentence upon a jury finding of guilt of a misdemeanor was independent of any action or recommendation of the jury where no request was made under this section to have the jury fix the whole punishment. Jones v. State, 477 S.W.2d 227, 1971 Tenn. Crim. App. LEXIS 457 (Tenn. Crim. App. 1971).

5. —To Trial Court.

Request for jury to fix sentence must be made to trial court. James v. State, 196 Tenn. 435, 268 S.W.2d 341, 1954 Tenn. LEXIS 402 (1954).

6. —When Demand Seasonably Made.

A demand of defendant that the jury fix the punishment is “seasonably” made if made at any time before the court charges the jury. Brewer v. State, 187 Tenn. 396, 215 S.W.2d 798, 1948 Tenn. LEXIS 444 (1948); Peters v. State, 187 Tenn. 45, 187 Tenn. 455, 215 S.W.2d 822, 1948 Tenn. LEXIS 451 (1948).

Request by defendant's counsel that jury fix term of imprisonment as well as amount of fine was seasonable where it was made after instructions by court but before case was submitted to the jury. Cotten v. State, 188 Tenn. 525, 221 S.W.2d 700, 1949 Tenn. LEXIS 370 (1949).

Motion in writing of defendant's counsel during direct examination by state of its first witness that jury fix the punishment in the case was timely, hence circuit court erred in adding workhouse sentence to a $100 fine assessed by jury even though circuit court might have a rule requiring motion to be made before the jury is sworn, since Acts 1947, ch. 82, did not require motion to be made before jury was sworn but only that it be made seasonably. Brewer v. State, 187 Tenn. 396, 215 S.W.2d 798, 1948 Tenn. LEXIS 444 (1948).

Defendant's motion for the jury to fix his punishment, made after the jury was sworn and before any evidence was introduced, was seasonable, although the trial judge had promulgated a rule in such cases requiring such motions to be made in writing and filed with the clerk of the court before the jury was sworn to try the issues. Peters v. State, 187 Tenn. 45, 187 Tenn. 455, 215 S.W.2d 822, 1948 Tenn. LEXIS 451 (1948).

A demand made before the court charges the jury is “seasonably” made, there being no rule of court on the minutes requiring the demand to be made prior to that time. Cotten v. State, 188 Tenn. 525, 221 S.W.2d 700, 1949 Tenn. LEXIS 370 (1949).

7. Effect of Demand on Power of Court.

Where demand that the jury fix the punishment as provided in this section was timely made, the action of the court in adding a workhouse sentence to the fine assessed by the jury was a nullity. Brewer v. State, 187 Tenn. 396, 215 S.W.2d 798, 1948 Tenn. LEXIS 444 (1948); Peters v. State, 187 Tenn. 45, 187 Tenn. 455, 215 S.W.2d 822, 1948 Tenn. LEXIS 451 (1948).

8. Verdict — Suspension of Sentence.

Trial court erred in sentencing defendant convicted of driving while intoxicated where verdict in addition to imposing fine suspended sentence of 30 days since verdict was a nullity as only the judge can suspend a sentence. Alexander v. State, 189 Tenn. 340, 225 S.W.2d 254, 1949 Tenn. LEXIS 435 (1949).

In prosecution for unlawful possession of intoxicating liquors, attorney general's reference in his argument to the power of the trial judge to suspend the sentence fixed by the jury if he felt it should be suspended did not constitute prejudicial error where the jury fixed the jail sentence at only one third of the maximum. Hall v. State, 200 Tenn. 436, 292 S.W.2d 716, 1956 Tenn. LEXIS 427 (1956).

9. Appeal — Reduction of Sentence.

Verdict of jury assessing punishment of defendant charged with misdemeanor for possession of intoxicating liquor at fine of $500 and six months' imprisonment could not be reduced by supreme court. Thompson v. State, 192 Tenn. 298, 241 S.W.2d 404, 1951 Tenn. LEXIS 404 (1951).

Where defendant requested that jury fix punishment for offense of promoting gaming, supreme court, upon review, has no authority to reduce punishment. Thompson v. State, 197 Tenn. 112, 270 S.W.2d 379, 1954 Tenn. LEXIS 461 (1954).

10. Credit for Time in Jail.

A judge is not liable in damages to a defendant for failure to render judgment of the court so as to allow the defendant credit on his sentence for the time the defendant was held in jail pending his arraignment and trial. Gilland v. Hyder, 278 F. Supp. 189, 1967 U.S. Dist. LEXIS 7410 (E.D. Tenn. 1967).

11. Fines.

Section 40-18-114 grants the jury the authority to set the fine when, in its collective wisdom, the jury believes the offense merits a fine greater than $50.00, even though the defendant does not request jury sentencing. State v. Hill, 623 S.W.2d 293, 1981 Tenn. Crim. App. LEXIS 398 (Tenn. Crim. App. 1981).

40-20-105. Plea of guilty — Waiver of jury.

Nothing in § 40-20-104 shall prevent any person indicted or presented in a court of record for the alleged commission of any misdemeanor as set out in that section from pleading guilty and submitting the case to the trial judge for assessment of punishment; nor shall anything in § 40-20-104 prevent a person, upon a plea of not guilty, from waiving the right to a trial by jury and submitting the case to the trial judge for decision both as to guilt and punishment.

Acts 1947, ch. 82, § 1; C. Supp. 1950, § 11765 (Williams, § 11760.1); T.C.A. (orig. ed.), § 40-2705; Acts 1996, ch. 675, § 32.

Textbooks. Tennessee Jurisprudence, 17 Tenn. Juris., Jury, § 2.

Law Reviews.

Criminal Law in Tennessee in 1970 — A Critical Survey (Joseph G. Cook), 38 Tenn. L. Rev. 182 (1971).

NOTES TO DECISIONS

1. Waiver of Jury.

Where defendant's attorney knew that Friday was the day of week for nonjury trials and defendant and his attorney went to trial on a not guilty plea on that date without jury and without objection or request for jury, the facts of the case indicated that defendant knowingly and intentionally waived his right to a jury trial. State v. Dunn, 224 Tenn. 255, 453 S.W.2d 777, 1970 Tenn. LEXIS 322 (1970).

While it is better practice for the record to show when a defendant has waived his right to a jury trial the failure to do so will not preclude court from examining the facts to determine if defendant has in fact waived that right. State v. Dunn, 224 Tenn. 255, 453 S.W.2d 777, 1970 Tenn. LEXIS 322 (1970).

40-20-106. Assessment of punishment for misdemeanor when felony charged.

Whenever any person is indicted or presented in a court of record for the alleged commission of any felony, the elements of which include the commission of a misdemeanor, and the defendant pleads not guilty and is tried by a jury, in such case, upon demand of the defendant timely made, the trial jury shall as a part of its verdict, should it find the defendant not guilty of the felony but guilty of a misdemeanor included within the felony, assess the punishment for the misdemeanor offense both as to fine and imprisonment within the limits now or later prescribed by law.

Acts 1947, ch. 82, § 1a, as added by Acts 1949, ch. 202, § 1; C. Supp. 1950, § 11765.1 (Williams, § 11760.1a); T.C.A. (orig. ed.), § 40-2706.

Law Reviews.

Criminal Law and Procedure — 1955 Tennessee Survey (Austin W. Scott, Jr.), 8 Vand. L. Rev. 992.

40-20-107. Verdict and sentence on felony conviction.

Whenever any person over eighteen (18) years of age is convicted of any felony or other crime punishable by imprisonment in the penitentiary, with the punishment for the offense within minimum and maximum terms provided for by law, the jury, in addition to finding the defendant guilty, shall fix the minimum and maximum term of the convicted defendant; provided, that the minimum sentence so fixed shall not be increased to exceed more than twice the minimum sentence as provided by law or the minimum sentence provided by law plus one half (½) the difference between the minimum and maximum sentence as provided by law, whichever is less. Its form of verdict shall be: “We find the defendant guilty as charged in the indictment” or “We find the defendant guilty of (whatever may be the offense charged), and fix punishment at imprisonment in the penitentiary for not less than years nor more than years,” and the court imposing judgment upon the verdict shall not fix a definite term of imprisonment, but shall sentence the person to the penitentiary for a period of not less than nor more than the term fixed by the jury, making allowance for good time as now provided by law.
This section shall have no application in the case of persons convicted of second degree murder, rape of a female over the age of twelve (12) years, carnal knowledge and abuse of a female under the age of twelve (12) years, assault and battery upon a female under the age of twelve (12) years with the intent to unlawfully carnally know her, robbery by the use of a deadly weapon, kidnapping for ransom, or any Class X felony. Persons convicted of the offenses of this subsection (b) shall be given a determinate, and not an indeterminate sentence.

Acts 1913, ch. 8, § 1; Shan., § 7202a1; Acts 1923, ch. 52, § 1; Code 1932, § 11766; Acts 1973, ch. 163, §§ 1, 2; 1974, ch. 768, § 1; 1979, ch. 318, § 15; T.C.A. (orig. ed.), § 40-2707.

Code Commission Notes.

The Sentencing Reform Act of 1989 in effect repealed the Class X Felonies Act of 1979.

Cross-References. Criminal Sentencing Reform Act, title 40, ch. 35.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 31.34, 32.2.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, §§ 45, 48, 49; 10 Tenn. Juris., Drugs and Druggists, § 5; 20 Tenn. Juris., Pardon and Parole, § 7; 24 Tenn. Juris., Verdict, § 12.

Law Reviews.

The Indeterminate Sentence Law in Tennessee, 25 Tenn. L. Rev. 366.

NOTES TO DECISIONS

1. Constitutionality.

This section does not deprive defendant of due process of law or right of a jury trial. Woods v. State, 130 Tenn. 100, 169 S.W. 558, 1914 Tenn. LEXIS 7, L.R.A. (n.s.) 1915F531 (1914).

Since it is a valid function of the general assembly to prescribe the various punishments juries are authorized to impose for the commission of crimes, this section is not unconstitutional under Tenn. Const., art. II, § 1 as an illegal invasion of the powers of the judiciary. Sharp v. State, 513 S.W.2d 189, 1974 Tenn. Crim. App. LEXIS 276 (Tenn. Crim. App. 1974); Jackson v. State, 539 S.W.2d 337, 1976 Tenn. Crim. App. LEXIS 379 (Tenn. Crim. App. 1976).

Where defendants were convicted of third degree burglary under § 39-3-404 (repealed), after the jury was instructed by the trial judge regarding increasing the minimum sentence under this section as amended in 1973, but the jury fixed the punishment at only three to 10 years, the court held that, since the defendants had not been adversely affected by the statute, they had no standing in court to attack it on the constitutional ground that it could have doubled their sentence, thus changing the statutory prescribed penalty for the offense. Halpin v. State, 515 S.W.2d 658, 1974 Tenn. Crim. App. LEXIS 233 (Tenn. Crim. App. 1974).

The caption of the 1973 amendment (Acts 1973, ch. 163) to the section disclosed its purpose and conformed to Tenn. Const., art. II, § 17. Halpin v. State, 515 S.W.2d 658, 1974 Tenn. Crim. App. LEXIS 233 (Tenn. Crim. App. 1974).

2. Construction with Other Laws.

Notwithstanding the passage of this section, § 40-20-103 is still in force, and should be given in charge to jury where punishment is as low as 12 months in the penitentiary. Jenkins v. State, 163 Tenn. 635, 45 S.W.2d 531, 1931 Tenn. LEXIS 160 (1932).

3. Prospective Operation.

The section is not retroactive, and, when it is treated as retroactive, there is reversible error, resulting in remand for a new trial. Gass v. State, 130 Tenn. 581, 172 S.W. 305, 1914 Tenn. LEXIS 61 (1914).

4. Age Limit.

This statute by its express terms not applying to persons under 18 years of age, one under that age, convicted of manslaughter, was subject to have an assessment of punishment only under the law as it stood independent of or before this act was passed. Martin v. State, 130 Tenn. 508, 172 S.W. 311, 1914 Tenn. LEXIS 51 (1914).

The statute has no application to accused under 18, where the crime is punishable by penitentiary confinement. Haynes v. State, 144 Tenn. 178, 231 S.W. 543, 1920 Tenn. LEXIS 70 (1921).

5. Felonies Covered.

6. —Capital Offenses.

This statute is inapplicable to capital offenses. State ex rel. Crumpler v. Henderson, 1 Tenn. Crim. App. 47, 428 S.W.2d 800, 1968 Tenn. Crim. App. LEXIS 95 (Tenn. Crim. App. 1968); State ex rel. Quinn v. State, 2 Tenn. Crim. App. 82, 451 S.W.2d 701, 1969 Tenn. Crim. App. LEXIS 308 (Tenn. Crim. App. 1969).

Where an offense such as robbery with a deadly weapon is punishable by death the statute prescribes no maximum term of imprisonment and the indeterminate sentence law does not apply. State ex rel. Crumpler v. Henderson, 1 Tenn. Crim. App. 47, 428 S.W.2d 800, 1968 Tenn. Crim. App. LEXIS 95 (Tenn. Crim. App. 1968); State ex rel. Quinn v. State, 2 Tenn. Crim. App. 82, 451 S.W.2d 701, 1969 Tenn. Crim. App. LEXIS 308 (Tenn. Crim. App. 1969).

7. —Murder.

The indeterminate sentence law does not apply to crime of murder in the first degree. Franks v. State, 187 Tenn. 174, 213 S.W.2d 105, 1948 Tenn. LEXIS 423 (1948).

Where a defendant pleads guilty to an indictment charging murder the jury by its verdict must determine the degree of unlawful homicide of which he is guilty and, may in absence of statutory prohibition fix the maximum term of his sentence at the same number of years as the minimum term for that offense. State ex rel. Brinkley v. Wright, 193 Tenn. 26, 241 S.W.2d 859, 1951 Tenn. LEXIS 322 (1951).

Habeas corpus will not lie to declare an indeterminate sentence, by a court with full jurisdiction, for first degree murder void where defendant did not appeal, even though the supreme court later in another case for the first time held the indeterminate sentence law did not apply to first degree murder cases, without indicating the decision was to be applied retroactively. State ex rel. Gosnell v. Edwards, 198 Tenn. 83, 277 S.W.2d 444, 1955 Tenn. LEXIS 347 (1955).

When a jury verdict in a prosecution for second degree murder provides for minimum and maximums, it is not proper under the determinate sentence law. State v. Williams, 575 S.W.2d 948, 1978 Tenn. LEXIS 694 (Tenn. 1978).

Second degree murder is punishable by a determinate sentence of life or any number of years not less than 10, and the precise sentence, without qualification, and without upper and lower limits, is fixed by the jury. State v. Williams, 575 S.W.2d 948, 1978 Tenn. LEXIS 694 (Tenn. 1978).

8. —Fraudulent Breach of Trust.

The statute is applicable in determining sentence to be imposed for fraudulent breach of trust. Burke v. State, 157 Tenn. 105, 6 S.W.2d 556, 1927 Tenn. LEXIS 54 (1928).

9. Assault to Commit Sexual Battery.

Assault to commit sexual battery is not one of the crimes excepted from the provisions of this section. State v. Lindsay, 637 S.W.2d 886, 1982 Tenn. Crim. App. LEXIS 448 (Tenn. Crim. App. 1982).

10. Instructions.

Charge which in substance incorporated the form of verdict provided by this section, which advise jury that if defendant were guilty of verdict should fix his punishment at imprisonment in penitentiary “for not more than — years,” was not erroneous as implying that the sentence could only be for whole years. Switzer v. State, 213 Tenn. 671, 378 S.W.2d 760, 1964 Tenn. LEXIS 436 (1964).

Even where the jury is to impose the sentence, it is not inconsistent with this requirement that the judge instruct the jury that no greater sentence may be imposed on a defendant than that imposed at an earlier trial for the same offense where no evidence of supervening conduct is offered at the second trial. Pinkard v. Neil, 311 F. Supp. 711, 1970 U.S. Dist. LEXIS 12088 (M.D. Tenn. 1970).

Failure of the judge to instruct under this section and failure of the jury to fix the minimum sentence upon a conviction of involuntary manslaughter constituted harmless error, since under a correct charge the jury could not have fixed a lesser period of confinement than that imposed, and under this section as amended a substantially longer minimum sentence could have been imposed. Cole v. State, 512 S.W.2d 598, 1974 Tenn. Crim. App. LEXIS 281 (Tenn. Crim. App. 1974), superseded by statute as stated in, State v. Rogers, — S.W.2d —, 1997 Tenn. Crim. App. LEXIS 1044 (Tenn. Crim. App. Oct. 17, 1997).

In resentencing a defendant, the manner in which the jury is informed that their only duty is to fix the punishment is not material. Harris v. State, 576 S.W.2d 588, 1978 Tenn. Crim. App. LEXIS 337 (Tenn. Crim. App. 1978).

11. Verdict.

Verdict of jury which found defendant guilty of transfer of forged papers with intent to defraud and imposed “minimum” sentence was not void since such sentence could be determined by reference to the statute and such sentenced was in effect both the minimum and maximum. Smith v. State, 212 Tenn. 209, 369 S.W.2d 537, 1963 Tenn. LEXIS 415 (1963).

Where, under this section, a defendant convicted of receiving stolen goods of the value of less than $100 under § 39-3-1113 (repealed) was sentenced to 18 months to five years in the penitentiary, the sentence was not so excessive as to be arbitrary, capricious or motivated by passion or prejudice on the part of the jury. Meade v. State, 530 S.W.2d 784, 1975 Tenn. Crim. App. LEXIS 282 (Tenn. Crim. App. 1975).

Where an offense is punishable by an indeterminate sentence, the prerogative of setting both maximum and minimum terms of the sentence is vested exclusively in jury. Hudson v. State, 534 S.W.2d 322, 1975 Tenn. Crim. App. LEXIS 303 (Tenn. Crim. App. 1975).

Where the defendant was found guilty of “assault with intent to commit rape” an offense for which he was subject to be punished by confinement in the penitentiary for not less than one year nor more than five years or in the discretion of the jury, by jail or workhouse sentence of not more than one year and a fine not exceeding $500, the verdict affixing the defendant's punishment at 15 years imprisonment in the penitentiary and judgment thereon assessing his punishment at the penitentiary sentence of not less than six years nor more than 15 years were not authorized by the statute. Hudson v. State, 534 S.W.2d 322, 1975 Tenn. Crim. App. LEXIS 303 (Tenn. Crim. App. 1975).

Where three offenses of equal rank were charged and the proof made out a prima facie case on more than one count, since there is no way to determine to which count or counts the general verdict of guilty applied, this section does not apply and the general verdict is invalid. King v. State, 549 S.W.2d 686, 1976 Tenn. Crim. App. LEXIS 394 (Tenn. Crim. App. 1976).

Verdict in prosecution for second degree murder which fixed the period of confinement at “not less ten years but not more than fifteen” was cast in the form of an intermediate sentence, in no way complied with the requirement of certainty of time required by the determinate sentence law, and was facially void. State v. Williams, 575 S.W.2d 948, 1978 Tenn. LEXIS 694 (Tenn. 1978).

The decision in Farris v. State, 535 S.W.2d 608 (Tenn. 1976), that Acts 1973, ch. 163, § 2, was void did not hold that a parole charge rendered a conviction reversible, void, or voidable. State v. Garrard, 693 S.W.2d 921, 1985 Tenn. Crim. App. LEXIS 3032 (Tenn. Crim. App. 1985).

12. —Minimum Fixed as Surplusage.

Since the jury is required to fix maximum punishments in a verdict fixing confinement at from one to two years, the minimum was surplusage, and verdict and judgment valid. Hensley v. State, 166 Tenn. 551, 64 S.W.2d 13, 1933 Tenn. LEXIS 115 (1933).

Where jury fixed minimum and maximum sentence, portion of verdict fixing minimum would be disregarded as surplusage where below the statutory minimum. Taylor v. State, 212 Tenn. 187, 369 S.W.2d 385, 1963 Tenn. LEXIS 411 (1963).

13. —Omission of Minimum Term.

Where verdict fixed only the maximum term of imprisonment, the court on appeal added the minimum term. Pope v. State, 149 Tenn. 176, 258 S.W. 775, 1923 Tenn. LEXIS 90 (1924).

The minimum term fixed by law becomes in effect a part of the judgment whether the judgment so recites or not. Leek v. State, 216 Tenn. 337, 392 S.W.2d 456, 1965 Tenn. LEXIS 580 (1965).

14. —Maximum Term.

Where jury returned general verdict of guilty without fixing maximum term under indictment consisting of three counts charging breaking and entering, larceny and receiving stolen goods, the trial court erred in sentencing defendants to serve from three to five years under larceny count, since it was duty of jury under indeterminate sentence act to fix maximum period of sentence. Oliver v. State, 169 Tenn. 320, 87 S.W.2d 566, 1935 Tenn. LEXIS 47 (1935).

This section confided to the jury the power to fix maximum sentences. Gilliam v. State, 174 Tenn. 388, 126 S.W.2d 305, 1938 Tenn. LEXIS 103 (1939).

Where sentence for a crime comes under the indeterminate sentence law, the jury is required to fix the maximum punishment, and when it fails to do so the verdict is invalid. Nicholas v. State, 211 Tenn. 264, 364 S.W.2d 895, 1963 Tenn. LEXIS 349 (1963).

Defendant was not denied due process where jury at second trial for same offense imposed a greater sentence than was imposed at the first trial, as it is within the province of the jury in Tennessee to fix the maximum sentence of convicted felons. Britt v. Tollett, 315 F. Supp. 401, 1970 U.S. Dist. LEXIS 11577 (E.D. Tenn. 1970).

Jury verdict finding defendant guilty of second degree murder and fixing his punishment at not less than 10 years in the state penitentiary was not a proper sentence under the determinate sentence law, as it was facially vague and ambiguous, and did not reflect a definite or certain period but partook instead of the nature of the first half of an indeterminate sentence. Such a sentence could not be treated as a determinate 10-year sentence. State v. Williams, 575 S.W.2d 948, 1978 Tenn. LEXIS 694 (Tenn. 1978).

15. Judgment.

The minimum punishment for the offense becomes part of the judgment whether the judgment recites it or not, but on appeal the judgment is corrected to show the minimum and maximum. McBee v. State, 526 S.W.2d 124, 1974 Tenn. Crim. App. LEXIS 237 (Tenn. Crim. App. 1974).

16. Increase of Sentence.

A person may be resentenced; and even a more severe sentence imposed at a second trial does not invalidate the conviction. Harris v. State, 576 S.W.2d 588, 1978 Tenn. Crim. App. LEXIS 337 (Tenn. Crim. App. 1978).

17. Reduction of Sentence.

The sentence, though indeterminate, not less than the minimum nor more than the maximum, is subject to be reduced after minimum shall have been served. Woods v. State, 130 Tenn. 100, 169 S.W. 558, 1914 Tenn. LEXIS 7, L.R.A. (n.s.) 1915F531 (1914).

18. Appeal — Correction of Verdict.

Where, on a trial for assault with intent to commit murder in the first degree, the proof showed that the offense was committed on the 31st day of March, 1913, the convict should have been sentenced under this indeterminate law for not less than three nor more than 21 years, and the verdict assessing the punishment at seven years in the penitentiary, and the judgment sentencing the convict for that period are both erroneous, but the supreme court will modify the judgment and enter a judgment under this law for confinement in the penitentiary for a term of not less than three nor more than 21 years. McCommon v. State, 130 Tenn. 1, 168 S.W. 581, 1914 Tenn. LEXIS 1 (1914).

Modification of judgment of lower court wherein jury found defendant guilty of grand larceny though evidence did not show that value of goods taken were in excess of $60.00 so that sentence would read for one-year imprisonment did not violate indeterminate sentence law, since if case was sent back to the jury it could not fix a sentence less than one year. Corlew v. State, 181 Tenn. 220, 180 S.W.2d 900, 1944 Tenn. LEXIS 364 (1944).

State has the right the same as defendant under this section for jury to fix maximum term, hence, where evidence showed that maximum value of goods taken in grand larceny conviction did not exceed $60.00, the supreme court would modify sentence if state would agree to accept remittitur of sentence of three years for grand larceny to sentence of one year for petit larceny. Corlew v. State, 181 Tenn. 220, 180 S.W.2d 900, 1944 Tenn. LEXIS 364 (1944).

Where a jury fixed defendant's sentence at not more than 20 years nor less than 10 years and the trial court entered judgment for a period of not more than 20 years, the court of criminal appeals had the authority and duty to modify the sentence to specify both the minimum and maximum term of not less than 10 nor more than 20 years, the statutory penalty. Rocket v. State, 480 S.W.2d 920, 1972 Tenn. Crim. App. LEXIS 327 (Tenn. Crim. App. 1972).

19. Double Jeopardy.

Motion by defendant on second trial for voluntary manslaughter that he could not be placed on trial for any offense higher than involuntary manslaughter where foreman of jury at first trial reported that jury had agreed on verdict of involuntary manslaughter but could not agree upon punishment was properly denied since there was no verdict on first trial as verdict was not completed until amount of sentence was determined by jury. Gang v. State, 191 Tenn. 468, 234 S.W.2d 997, 1950 Tenn. LEXIS 460 (1950).

20. Prior Law.

Prior to the passage of this section the discretion was vested in juries and trial courts to fix the punishment of persons convicted of penitentiary offenses at imprisonment for a definite period between the minimum and maximum terms defined as a penalty for the offense committed. West v. State, 140 Tenn. 358, 204 S.W. 994, 1918 Tenn. LEXIS 48 (1918), overruled, Thomas v. State, 201 Tenn. 645, 301 S.W.2d 358, 1957 Tenn. LEXIS 345 (1957), overruled in part, Thomas v. State, 201 Tenn. 645, 301 S.W.2d 358, 1957 Tenn. LEXIS 345 (1957).

40-20-108. Sentence for definite period construed as indeterminate.

If, through mistake or otherwise, any person is sentenced for a definite period of time for any offense, the sentence shall not be void, but the person shall be deemed to be sentenced nevertheless as provided by the terms of §§ 40-20-107 — 40-20-110, and shall be entitled to all the benefits and subject to the liabilities under §§ 40-20-107 — 40-20-110 in the same manner and to the same extent as if sentence had been pronounced in the terms and manner required thereby.
This section shall have no application in the case of persons convicted of second degree murder, rape of a female over the age of twelve (12) years, carnal knowledge and abuse of a female under the age of twelve (12) years, assault and battery upon a female under the age of twelve (12) years with the intent to unlawfully carnally know her, robbery by the use of a deadly weapon, or kidnapping for ransom. Persons convicted of the offenses of this subsection (b) shall be given a determinate, and not an indeterminate sentence.

Acts 1913, ch. 8, § 2; Shan., § 7202a5; Code 1932, § 11770; Acts 1974, ch. 768, § 2; T.C.A. (orig. ed.), § 40-2708.

Cross-References. Criminal Sentencing Reform Act, title 40, ch. 35.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 48.

NOTES TO DECISIONS

1. Applicability.

In cases in which the jury returns a determinate sentence when they should have returned an indeterminate sentence, this section controls. State v. Smith, 627 S.W.2d 356, 1982 Tenn. LEXIS 378 (Tenn. 1982), superseded by statute as stated in, State v. Boyce, 920 S.W.2d 224, 1995 Tenn. Crim. App. LEXIS 58 (Tenn. Crim. App. 1995).

2. Erroneous Verdict — Correction on Appeal.

Where defendant was convicted of assault with intent to commit murder in the first degree and jury fixed sentence at seven years, the court on appeal modified sentence to not less than three nor more than 21 years. McCommon v. State, 130 Tenn. 1, 168 S.W. 581, 1914 Tenn. LEXIS 1 (1914).

Where a verdict fixes only the maximum term of imprisonment, a judgment following the same will be corrected on appeal to show the minimum and maximum terms. Pope v. State, 149 Tenn. 176, 258 S.W. 775, 1923 Tenn. LEXIS 90 (1924); Leek v. State, 216 Tenn. 337, 392 S.W.2d 456, 1965 Tenn. LEXIS 580 (1965); Greer v. State, 1 Tenn. Crim. App. 407, 443 S.W.2d 681, 1969 Tenn. Crim. App. LEXIS 331 (Tenn. Crim. App. 1969); Davis v. State, 1 Tenn. Crim. App. 479, 445 S.W.2d 933, 1969 Tenn. Crim. App. LEXIS 336 (Tenn. Crim. App. 1969).

Where defendant was convicted of assault with intent to commit voluntary manslaughter and jury fixed sentence at two years but did not fix a minimum sentence, supreme court modified sentence to confinement in penitentiary for not less than one year nor more than two years. Holt v. State, 210 Tenn. 188, 357 S.W.2d 57, 1962 Tenn. LEXIS 423 (1962).

Where sentence in grand larceny prosecution was fixed at 10 years which was the maximum provided by law, sentence would be modified to incorporate the minimum provided by law so as to provide that defendants would serve not more than 10 years and not less than three years. McCullough v. State, 216 Tenn. 513, 392 S.W.2d 954, 1965 Tenn. LEXIS 594 (1965).

Where the jury's verdict fixes only the maximum term of imprisonment and the judgment of the trial court does likewise in cases where imprisonment is subject to the indeterminate sentence law, the court of criminal appeals has the authority and duty to modify the sentence to specify both the minimum and maximum term of imprisonment. Davis v. State, 1 Tenn. Crim. App. 479, 445 S.W.2d 933, 1969 Tenn. Crim. App. LEXIS 336 (Tenn. Crim. App. 1969).

3. Minimum Term Becomes Part of Judgment.

Under this section the minimum term fixed by law becomes, in effect, a part of the judgment whether the judgment so recites or not. State ex rel. Brinkley v. Wright, 193 Tenn. 26, 241 S.W.2d 859, 1951 Tenn. LEXIS 322 (1951); Leek v. State, 216 Tenn. 337, 392 S.W.2d 456, 1965 Tenn. LEXIS 580 (1965).

40-20-109. Jail sentences and fines unaffected.

Sections 40-20-107 — 40-20-110 shall not interfere with the operation of statutes providing for punishment for certain offenses by fine or imprisonment in the county jail or both.

Acts 1913, ch. 8, § 1; Shan., § 7202a4; Code 1932, § 11769; T.C.A. (orig. ed.), § 40-2709.

Cross-References. Criminal Sentencing Reform Act, title 40, ch. 35.

40-20-110. Sentence for separate offenses — Parole considerations.

If a person is sentenced for two (2) or more separate offenses, sentence shall be pronounced for each offense, and imprisonment may equal, but shall not exceed, the total of the maximum terms provided by law for the offenses, which total shall, for the purpose of §§ 40-20-107 — 40-20-110, be construed as one (1) continuous term of imprisonment.
1. The department of correction shall notify the board of parole when inmates sentenced to consecutive sentences which require custodial parole consideration reach parole eligibility on their initial sentences.
2. The board shall determine when the inmate will begin service of the inmate's consecutive sentence.
3. No parole certificate shall be required, and the inmate shall be heard for parole when eligible on the inmate's consecutive sentence.
4. The board has the authority to begin custodial parole effective on any date on or after the custodial parole eligibility date.
5. A bona fide offer of employment shall not be required for custodial parole.

Acts 1913, ch. 8, § 1; Shan., § 7202a3; Code 1932, § 11768; Acts 1982, ch. 739, § 1; T.C.A. (orig. ed.), § 40-2710; Acts 1990, ch. 645, § 1; 1998, ch. 1049, § 19.

Compiler's Notes. Acts 2012, ch. 727, § 1 amended § 4-3-104, which concerns name changes of departments and divisions, to provide that references to the board of probation and parole, formerly referred to in this section, are deemed references to the board of parole.

Cross-References. Criminal Sentencing Reform Act, title 40, ch. 35.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 32.161.

Attorney General Opinions. Retroactive custodial parole hearing authorized for first of consecutive sentences, OAG 98-089 (4/15/98).

NOTES TO DECISIONS

1. In General.

This section has no application to determinate sentences. Howell v. State, 569 S.W.2d 428, 1978 Tenn. LEXIS 620 (Tenn. 1978).

2. Consecutive Sentences.

Where defendant was convicted of passing a worthless check of an amount greater than $100 and also for false pretenses, it was proper to provide for consecutive sentences where defendant had two prior misdemeanor convictions for passing bad checks, was awaiting trial on other multiple indictments and was being held for other violations in other Tennessee counties as well as in other states. Murray v. State, 586 S.W.2d 839, 1979 Tenn. Crim. App. LEXIS 327 (Tenn. Crim. App. 1979).

40-20-111. Concurrent or cumulative sentences.

When any person has been convicted of two (2) or more offenses, judgment shall be rendered on each conviction after the first conviction; provided, that the terms of imprisonment to which the convicted person is sentenced shall run concurrently or cumulatively in the discretion of the trial judge. The exercise of the discretion of the trial judge shall be reviewable by the supreme court on appeal.
In any case in which a defendant commits a felony while the defendant was released on bail in accordance with chapter 11, part 1 of this title, and the defendant is convicted of both offenses, the trial judge shall not have discretion as to whether the sentences shall run concurrently or cumulatively, but shall order that the sentences be served cumulatively.

Code 1858, § 5228; Shan., § 7201; Acts 1919, ch. 115, § 1; Code 1932, § 11764; Acts 1979, ch. 227, § 1; T.C.A. (orig. ed.), § 40-2711.

Compiler's Notes. This section may be affected by the Criminal Sentencing Reform Act of 1989. See ch. 35 of this title.

Cross-References. Criminal Sentencing Reform Act, title 40, ch. 35.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 32.174.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 47.

Law Reviews.

Special Project: Criminal Procedure as defined by the Tennessee Supreme Court (Julian L. Bibb and Walter Sillers Weems), 30 Vand. L. Rev. (4) 691.

NOTES TO DECISIONS

1. Constitutionality.

The imposition of cumulative sentences when authorized by this section constituted neither cruel and unusual punishment within the meaning of the fourteenth amendment to the United States constitution nor a violation of due process under that amendment. Wooten v. State, 477 S.W.2d 767, 1971 Tenn. Crim. App. LEXIS 476 (Tenn. Crim. App. 1971).

The supreme court declined to hold retroactive Gray v. State, 538 S.W.2d 391, 1976 Tenn. LEXIS 489 (Tenn. 1976), establishing a standard as to the imposition of consecutive sentences. Huddleston v. State, 576 S.W.2d 8, 1978 Tenn. Crim. App. LEXIS 334 (Tenn. Crim. App. 1978).

2. Purpose.

The object is to use consecutive sentencing, where appropriate, to protect society from those who are unwilling to lead a productive life and resort to criminal activity in furtherance of their antisocietal life style. Saeger v. State, 592 S.W.2d 909, 1979 Tenn. Crim. App. LEXIS 303 (Tenn. Crim. App. 1979).

3. Discretion of Trial Judge.

It is in the discretion of the trial judge as to whether sentences should run concurrently or consecutively. Wooten v. State, 477 S.W.2d 767, 1971 Tenn. Crim. App. LEXIS 476 (Tenn. Crim. App. 1971); Williams v. State, 520 S.W.2d 371, 1974 Tenn. Crim. App. LEXIS 260 (Tenn. Crim. App. 1974); Saeger v. State, 592 S.W.2d 909, 1979 Tenn. Crim. App. LEXIS 303 (Tenn. Crim. App. 1979).

Imposing consecutive sentences on three charges of assault with intent to commit murder in the first degree was not abuse of discretion. McCracken v. State, 489 S.W.2d 48, 1972 Tenn. Crim. App. LEXIS 290 (Tenn. Crim. App. 1972).

Where defendant entered a Marine Corps Reserve facility armed with a rifle, disarmed a guard by force and confiscated the guard's pistol, then drove the guard against his will to an isolated area in defendant's car and fired a shot at him when the victim tried to escape, there were three separate offenses for which separate convictions and separate punishments could be had, armed robbery, kidnapping, and assault to commit murder, and the trial judge did not abuse his discretion in ordering consecutive sentences. McBee v. State, 526 S.W.2d 124, 1974 Tenn. Crim. App. LEXIS 237 (Tenn. Crim. App. 1974).

Where defendant committed separate acts of rape against the same victim at different times and places, which acts were the product of several intents, being totally unresponsive to her pleas, the trial judge did not abuse his discretion in making the multiple rape sentences consecutive rather than concurrent. Lillard v. State, 528 S.W.2d 207, 1975 Tenn. Crim. App. LEXIS 324, 81 A.L.R.3d 1217 (Tenn. Crim. App. 1975).

In exercising his discretion as to whether multiple sentences should run consecutively, a trial judge need not consider whether the offense arose out of a single criminal episode, but should impose consecutive terms only after finding that such terms are necessary in order to protect the public. Gray v. State, 538 S.W.2d 391, 1976 Tenn. LEXIS 489 (Tenn. 1976), superseded by statute as stated in, State v. Wilkerson, — S.W.2d —, 1994 Tenn. Crim. App. LEXIS 56 (Tenn. Crim. App. Feb. 2, 1994), superseded by statute as stated in, State v. Thompson, — S.W.2d —, 1994 Tenn. Crim. App. LEXIS 366 (Tenn. Crim. App. June 15, 1994), superseded by statute as stated in, State v. Copeland, — S.W.2d —, 1995 Tenn. Crim. App. LEXIS 807 (Tenn. Crim. App. Sept. 27, 1995), superseded by statute as stated in, State v. Webb, — S.W.2d —, 1995 Tenn. Crim. App. LEXIS 820 (Tenn. Crim. App. Oct. 4, 1995), superseded by statute as stated in, State v. Kendrick, — S.W.2d —, 1995 Tenn. Crim. App. LEXIS 870 (Tenn. Crim. App. Oct. 25, 1995), superseded by statute as stated in, State v. Boshears, — S.W.2d —, 1995 Tenn. Crim. App. LEXIS 904 (Tenn. Crim. App. Nov. 15, 1995), superseded by statute as stated in, State v. Massengale, — S.W.3d —, 2002 Tenn. Crim. App. LEXIS 879 (Tenn. Crim. App. Oct. 21, 2002); McCook v. State, 555 S.W.2d 411, 1977 Tenn. Crim. App. LEXIS 297 (Tenn. Crim. App. 1977), cert. denied, Richardson v. Tennessee, 434 U.S. 942, 98 S. Ct. 436, 54 L. Ed. 2d 302, 1977 U.S. LEXIS 3932 (1977).

Where the defendant has already been sentenced in a federal court, a sentence imposed in the state court runs consecutively unless the state court determines in the exercise of its discretion that good cause exists to run the sentence concurrently and explicitly so orders. State v. Graham, 544 S.W.2d 921, 1976 Tenn. Crim. App. LEXIS 341 (Tenn. Crim. App. 1976).

Although the record did not contain the judge's reasons for the imposition of consecutive sentences as required by Gray v. State, 538 S.W.2d 391, 1976 Tenn. LEXIS 489 (Tenn. 1976), where the defendants were obviously dangerous offenders, the error was harmless. Wiley v. State, 552 S.W.2d 410, 1977 Tenn. Crim. App. LEXIS 240 (Tenn. Crim. App. 1977); Jett v. State, 556 S.W.2d 236, 1977 Tenn. Crim. App. LEXIS 289 (Tenn. Crim. App. 1977), superseded by statute as stated in, State v. Shirley, 6 S.W.3d 243, 1999 Tenn. LEXIS 575 (Tenn. 1999).

Where defendant engaged in a heinous, violent, premeditated and brutal crime without any indication of mercy for his victim, the trial judge did not abuse his discretion in ordering consecutive sentences. McCook v. State, 555 S.W.2d 411, 1977 Tenn. Crim. App. LEXIS 297 (Tenn. Crim. App. 1977), cert. denied, Richardson v. Tennessee, 434 U.S. 942, 98 S. Ct. 436, 54 L. Ed. 2d 302, 1977 U.S. LEXIS 3932 (1977).

Where the trial judge, in ordering consecutive sentences, relied solely upon the dangerous offender classification but the only aggravating circumstances alluded to had to do with the dangerous nature of the offenses and the fact that two such offenses were perpetrated, this judgment was clearly contrary to the holding in Gray v. State, 538 S.W.2d 391, 1976 Tenn. LEXIS 489 (Tenn. 1976). Peabody v. State, 556 S.W.2d 547, 1977 Tenn. Crim. App. LEXIS 291 (Tenn. Crim. App. 1977).

Where trial judge ran a portion of the defendant's sentences for crimes against nature consecutively on the ground that he was dangerous to young boys because he had formed an organization of small boys for the purpose of engaging them in homosexual activity and had purchased alcohol and tobacco for them, running the sentences consecutively complied with the broad guidelines of Gray v. State, 538 S.W.2d 391, 1976 Tenn. LEXIS 489 (Tenn. 1976), and was not an abuse of discretion. Bethany v. State, 565 S.W.2d 900, 1978 Tenn. Crim. App. LEXIS 294 (Tenn. Crim. App. 1978).

The trial court did not abuse its discretion in fixing consecutive sentences on conviction of defendant on two counts of rape and one count of first-degree burglary where the violence and threats accompanying the entire episode, in which the jury found defendant a full participant, were sufficient to constitute aggravating circumstances justifying such sentences. Seelbach v. State, 572 S.W.2d 267, 1978 Tenn. Crim. App. LEXIS 326 (Tenn. Crim. App. 1978).

Trial judge did not abuse his discretion in ordering consecutive sentences where defendant was convicted on two counts of armed robbery and two counts of voluntary manslaughter; all of the crimes were inherently dangerous and were accompanied by aggravating circumstances. State v. Cannon, 661 S.W.2d 893, 1983 Tenn. Crim. App. LEXIS 366 (Tenn. Ct. App. 1983).

The trial court did not have discretion to run the sentences concurrently. State v. Greer, 697 S.W.2d 603, 1985 Tenn. Crim. App. LEXIS 2739 (Tenn. Crim. App. 1985).

4. —Informing Jury.

Trial court did not err in failing to inform jury that he intended to order sentences to run consecutively since such decision rested in discretion of court and jury had nothing to do with the matter. Hayes v. State, 4 Tenn. Crim. App. 360, 470 S.W.2d 950, 1971 Tenn. Crim. App. LEXIS 402 (Tenn. Crim. App. 1971).

5. —Reviewable by Supreme Court.

The word reviewable is used in the adjectival sense in the statute and does not impose a mandatory duty upon the supreme court to grant a hearing in every such case appealed. Saeger v. State, 711 S.W.2d 612, 1986 Tenn. Crim. App. LEXIS 2596 (Tenn. Crim. App. 1986).

6. Form of Judgment.

Where there are two convictions of separate offenses, it is proper that the judgment in one of the cases should provide that the imprisonment thereunder should commence at the expiration of the imprisonment imposed in the other case. Mitchell v. State, 92 Tenn. 668, 23 S.W. 68, 1893 Tenn. LEXIS 22 (1893).

T.C.A. § 40-20-111(a) indicates that imposition of judgments, including sentences, for existing convictions shall occur in a progressive fashion with the successive sentences being determined to be served concurrently or consecutively to those previously imposed. State v. Arnold, 824 S.W.2d 176, 1991 Tenn. Crim. App. LEXIS 811 (Tenn. Crim. App. 1991).

7. Judgment Not Stating Concurrent or Cumulative.

Where three separate sentences were imposed upon the defendant such sentences were construed as concurrent in absence of specific adjudgment by trial court that such sentences were to be cumulative. Howe v. State, 170 Tenn. 571, 98 S.W.2d 93, 1936 Tenn. LEXIS 33 (1936).

The rule laid down in Howe v. State ex rel. Pyne, 170 Tenn. 571, 98 S.W.2d 93, 1936 Tenn. LEXIS 33 (1936), is expressly limited to a conviction under this section and decides that where a person is convicted of two or more offenses on a trial under a single indictment he shall be sentenced separately for each offense, and if the trial judge fails to exercise his discretion and direct specifically whether the sentences shall run concurrently or cumulatively they shall be construed to run concurrently. State ex rel. York v. Russell, 180 Tenn. 515, 176 S.W.2d 820, 1944 Tenn. LEXIS 316 (1944).

8. Jurisdiction to Impose Cumulative Sentences.

Jurisdiction to inflict cumulative punishment is dependent, not on the accident that the offender has been convicted twice or more before the same tribunal, but on the fact that distinct violations of law have been committed by one individual whose malefactions merit separate and, therefore, cumulative penalties. Bundy v. State, 176 Tenn. 198, 140 S.W.2d 154, 1939 Tenn. LEXIS 115 (1940).

Where defendant committed burglary and rape as parts of same transaction, trial judge acted properly in imposing consecutive sentences for each crime, since the burglary was complete upon entry into the house with felonious intent, and the rape constituted a separate crime. Greer v. State, 539 S.W.2d 855, 1976 Tenn. Crim. App. LEXIS 390 (Tenn. Crim. App. 1976).

Because defendant was on parole when he committed the crimes for which he was sentenced in 1998 and again in 2004, the mandatory terms of T.C.A. § 40-20-111(b) had no application; the terms of T.C.A. § 40-28-123(a) applied. Faulkner v. State, — S.W.3d —, 2005 Tenn. Crim. App. LEXIS 1264 (Tenn. Crim. App. Dec. 12, 2005), aff'd, 226 S.W.3d 358, 2007 Tenn. LEXIS 370 (Tenn. Apr. 27, 2007).

9. —Sentences of Different Courts.

The trial court of one county could properly impose a sentence to commence upon the termination of a sentence imposed upon the defendant by the court of another county. Bundy v. State, 176 Tenn. 198, 140 S.W.2d 154, 1939 Tenn. LEXIS 115 (1940).

This statute cannot be construed as prohibiting the imposition of a sentence to commence after the expiration of a sentence imposed by another court. Bundy v. State, 176 Tenn. 198, 140 S.W.2d 154, 1939 Tenn. LEXIS 115 (1940).

A sentence may be run consecutively only to a previously imposed sentence, so that a trial court could not run the sentence imposed in the case before it consecutively to any sentence which might later be imposed as the result of charges then pending in another county. Thompson v. State, 565 S.W.2d 889, 1977 Tenn. Crim. App. LEXIS 319 (Tenn. Crim. App. 1977).

Generally, the last sentencing court should have the responsibility to determine whether or not a sentence should be served consecutively. Otherwise, the first sentencing court's action would be preemptive of the last court's function and power to impose a sentence which is based upon all that has gone before. State v. Arnold, 824 S.W.2d 176, 1991 Tenn. Crim. App. LEXIS 811 (Tenn. Crim. App. 1991).

10. Suspending Judgment Until Trial for Other Offenses.

The trial court has authority to retain a convicted prisoner within its jurisdiction, and to provide for his safe custody until he can be tried for each of several offenses of which he may stand indicted, and for this purpose, the execution of the judgment of conviction may be suspended until the other cases can be tried. Allen v. State, 77 Tenn. 651, 1882 Tenn. LEXIS 116 (1882); Spencer v. State, 125 Tenn. 64, 140 S.W. 597, 1911 Tenn. LEXIS 7, 38 L.R.A. (n.s.) 680 (1911).

11. Retrial.

Where upon second trial after reversal trial court imposed same formula in determining whether sentences in multiple convictions were to run consecutively or concurrently as was used at the first trial, there was no abuse of discretion or violation of due process even though jury imposed harsher sentences at second trial. Britt v. State, 2 Tenn. Crim. App. 581, 455 S.W.2d 625, 1969 Tenn. Crim. App. LEXIS 366 (Tenn. Crim. App. 1969), cert. denied, Britt v. Tennessee, 402 U.S. 946, 91 S. Ct. 1631, 29 L. Ed. 2d 114, 1971 U.S. LEXIS 2184 (1971). But see Britt v. Tollett, 329 F. Supp. 568, 1971 U.S. Dist. LEXIS 12826 (E.D. Tenn. 1971).

Where on retrial jury imposed harsher sentences and state trial judge exercised his discretion in running sentences imposed against petitioner in such manner that petitioner's maximum aggregate sentence was doubled over that initially imposed at his first trial, petitioner was being punished without due process for having exercised his right of appeal from judgment convicting him, absent showing in record of any aspects of petitioner's life, health, habit, conduct and mental or moral propensities which required a more severe sentence to fit the aggregate punishment to the offender. Britt v. Tollett, 329 F. Supp. 568, 1971 U.S. Dist. LEXIS 12826 (E.D. Tenn. 1971).

Where defendant pleaded guilty to three sales of marijuana and court imposed concurrent sentences and later the court withdrew acceptance of such pleas, the court's imposition of consecutive sentences, upon defendant's convictions was treated as a denial of constitutional rights where court made no record of reasons for the harsher penalty. Williams v. State, 503 S.W.2d 109, 1973 Tenn. LEXIS 436 (Tenn. 1973).

12. Habeas Corpus.

Under statute limiting review of trial court's discretion to cases where an appeal has been taken, supreme court was without jurisdiction to modify a judgment upon a writ of habeas corpus. State ex rel. Underwood v. Brown, 193 Tenn. 113, 244 S.W.2d 168, 1951 Tenn. LEXIS 334 (1951).

Trial court judge might not have had the discretion to sentence petitioner concurrently for aggravated rape, rape and burglary when one of the offenses might have been committed when petitioner was released on bail; as such, petitioner should have been allowed to withdraw the guilty pleas. McLaney v. Bell, 59 S.W.3d 90, 2001 Tenn. LEXIS 764 (Tenn. 2001), overruled in part, Summers v. State, 212 S.W.3d 251, 2007 Tenn. LEXIS 15 (Tenn. 2007), overruled in part, Brown v. Lewis, — S.W.3d —, 2007 Tenn. Crim. App. LEXIS 155 (Tenn. Crim. App. Feb. 22, 2007), overruled in part, Nevilles v. United States, — F. Supp. 2d —, 2015 U.S. Dist. LEXIS 40237 (W.D. Tenn. Mar. 30, 2015), overruled in concurring opinion at State v. Taylor, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 849 (Tenn. Crim. App. Oct. 13, 2015).

13. Defendants Meriting Consecutive Sentences.

Consecutive sentencing should be reserved for: (1) The persistent offender; (2) The professional criminal; (3) The multiple offender; (4) The dangerous mentally abnormal person; and (5) The dangerous offender. Gray v. State, 538 S.W.2d 391, 1976 Tenn. LEXIS 489 (Tenn. 1976), superseded by statute as stated in, State v. Wilkerson, — S.W.2d —, 1994 Tenn. Crim. App. LEXIS 56 (Tenn. Crim. App. Feb. 2, 1994), superseded by statute as stated in, State v. Thompson, — S.W.2d —, 1994 Tenn. Crim. App. LEXIS 366 (Tenn. Crim. App. June 15, 1994), superseded by statute as stated in, State v. Copeland, — S.W.2d —, 1995 Tenn. Crim. App. LEXIS 807 (Tenn. Crim. App. Sept. 27, 1995), superseded by statute as stated in, State v. Webb, — S.W.2d —, 1995 Tenn. Crim. App. LEXIS 820 (Tenn. Crim. App. Oct. 4, 1995), superseded by statute as stated in, State v. Kendrick, — S.W.2d —, 1995 Tenn. Crim. App. LEXIS 870 (Tenn. Crim. App. Oct. 25, 1995), superseded by statute as stated in, State v. Boshears, — S.W.2d —, 1995 Tenn. Crim. App. LEXIS 904 (Tenn. Crim. App. Nov. 15, 1995), superseded by statute as stated in, State v. Massengale, — S.W.3d —, 2002 Tenn. Crim. App. LEXIS 879 (Tenn. Crim. App. Oct. 21, 2002); State v. Chapman, 724 S.W.2d 378, 1986 Tenn. Crim. App. LEXIS 2733 (Tenn. Crim. App. 1986).

Where defendant had previously been twice convicted for armed robbery, he was a persistent offender as defined in Gray v. State, 538 S.W.2d 391, 1976 Tenn. LEXIS 489 (Tenn. 1976), and therefor the imposition of consecutive sentences by the trial judge was proper. Adams v. State, 547 S.W.2d 553, 1977 Tenn. LEXIS 560 (Tenn. 1977).

Where defendants needlessly struck each robbery victim a vicious blow on the head, they were dangerous offenders for the purpose of imposing consecutive sentences. Wiley v. State, 552 S.W.2d 410, 1977 Tenn. Crim. App. LEXIS 240 (Tenn. Crim. App. 1977).

Where defendant was convicted both of forgery and uttering a forged instrument, and he had multiple prior convictions for the same or like offenses, the setting of consecutive sentences was proper. Anderson v. State, 553 S.W.2d 85, 1977 Tenn. Crim. App. LEXIS 277 (Tenn. Crim. App. 1977).

Where defendant was convicted of kidnapping, rape, robbery and grand larceny, and the evidence plainly showed that he participated or aided and abetted in all these crimes, the trial judge did not abuse his discretion in ordering consecutive sentences. McCook v. State, 555 S.W.2d 411, 1977 Tenn. Crim. App. LEXIS 297 (Tenn. Crim. App. 1977), cert. denied, Richardson v. Tennessee, 434 U.S. 942, 98 S. Ct. 436, 54 L. Ed. 2d 302, 1977 U.S. LEXIS 3932 (1977).

Professional criminals or multiple offenders are the certain classifications for which consecutive sentencing is reserved. State v. Walker, 713 S.W.2d 332, 1986 Tenn. Crim. App. LEXIS 2579 (Tenn. Crim. App. 1986).

Under Tenn. R. Crim. P. 32(c)(3)(C) and under T.C.A. § 40-20-111(b) of this section, consecutive sentencing is mandatory when a defendant commits a felony while on bond and the defendant is subsequently convicted of both offenses. State v. Hastings, 25 S.W.3d 178, 1999 Tenn. Crim. App. LEXIS 1312 (Tenn. Crim. App. 1999).

14. —Persistent Offender.

The “persistent offender” is one who has previously been convicted of two felonies or of one felony and two misdemeanors committed at different times when he was over 18 years of age. State v. Chapman, 724 S.W.2d 378, 1986 Tenn. Crim. App. LEXIS 2733 (Tenn. Crim. App. 1986).

15. —Professional Criminal.

The “professional criminal” is one who has knowingly devoted himself to criminal acts as a major source of livelihood or who has substantial income or resources not shown to be derived from sources other than criminal activity. State v. Chapman, 724 S.W.2d 378, 1986 Tenn. Crim. App. LEXIS 2733 (Tenn. Crim. App. 1986).

16. —Multiple Offender.

The multiple offender is defined as “one whose record of criminal activity is extensive.” Saeger v. State, 592 S.W.2d 909, 1979 Tenn. Crim. App. LEXIS 303 (Tenn. Crim. App. 1979).

17. Amendment of Judgment.

Where judgment was entered on guilty pleas to simple assault that defendant serve a term of 11 months and 29 days at a county penal farm, with no suggestion that the sentences were to be consecutive, or even that two separate sentences were adjudged, the trial judge could not amend that judgment two and one-half years later to provide for consecutive sentences. Ray v. State, 576 S.W.2d 598, 1978 Tenn. Crim. App. LEXIS 341 (Tenn. Crim. App. 1978).

18. Presumption of Concurrent Sentence.

Where separate sentences are imposed upon a defendant, those sentences are construed to be concurrent in the absence of a specific adjudgment by the trial court that they were to be cumulative. Ray v. State, 576 S.W.2d 598, 1978 Tenn. Crim. App. LEXIS 341 (Tenn. Crim. App. 1978).

19. Consecutive Sentence Mandatory.

Trial court properly ordered that defendant's three-year sentence for theft be served consecutively with another sentence because defendant committed the offenses in the other case while released on bond in this case; thus, under T.C.A. § 40-20-111(b) and Tenn. R. Crim. P. 32(c)(3), consecutive sentencing was mandatory. Although defendant was not on bail when the instant offense was committed, the chronological order of convictions was irrelevant because the sentences were mandatorily consecutive in either case. State v. Zwarton, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 135 (Tenn. Crim. App. Feb. 14, 2013).

Imposition of consecutive sentences was mandated, as defendant was on bail for the instant charges when he committed other felonies. State v. Tyree, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 64 (Tenn. Crim. App. Jan. 29, 2016).

Defendant's claim that defendant should have received consecutive sentences for crimes committed while released on bail failed because defendant received such sentences. State v. Holland, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1048 (Tenn. Crim. App. Dec. 21, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 175 (Tenn. Mar. 16, 2018).

20. Not Mandatory.

Although defendant was indicted for offenses and convicted at trial, she was not released from jail on bond for those offenses at the time she committed the current offenses, theft and aggravated burglary, and thus there was no basis for mandatory consecutive sentencing in this case, nor was there a discretionary basis for ordering such. State v. Gentry, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 599 (Tenn. Crim. App. Aug. 12, 2016), aff'd, — S.W.3d —, 2017 Tenn. LEXIS 733 (Tenn. Nov. 29, 2017).

21. Cumulative Sentences.

Circuit court properly dismissed defendant's motion for failure to appear at a scheduled hearing because, while defendant filed a three-page, pro se motion alleging that consecutive, rather than concurrent, sentencing was mandated, and the trial court afforded him a hearing on the motion, counsel was unable to confer with defendant or otherwise ensure his appearance at the hearing inasmuch as defendant failed to include his address or any other contact information in his motion, and no evidence was presented during the hearing establishing that defendant received an illegal sentence that was a material component of his guilty plea. State v. Odom, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 920 (Tenn. Crim. App. Dec. 9, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 237 (Tenn. Apr. 12, 2017).

40-20-112. Judgment of infamy — Right of suffrage — Competency as a witness.

Upon conviction for any felony, it shall be the judgment of the court that the defendant be infamous and be immediately disqualified from exercising the right of suffrage. No person so convicted shall be disqualified to testify in any action, civil or criminal, by reason of having been convicted of any felony, and the fact of conviction for any felony may only be used as a reflection upon the person's credibility as a witness.

Code 1858, § 5226 (deriv. Acts 1829, ch. 23, § 71); Shan., § 7199; mod. Code 1932, § 11762; Acts 1941, ch. 64, § 1; C. Supp. 1950, § 11762; Acts 1953, ch. 194, § 1; 1972, ch. 740, § 4(70); 1981, ch. 342, § 1; T.C.A. (orig. ed.), § 40-2712; Acts 1996, ch. 675, § 33.

Code Commission Notes.

Infamous crimes designated by this section prior to May 18, 1981, were: “abusing a female child, arson and felonious burning, bigamy, burglary, felonious breaking and entering a dwelling house, felonious breaking into a business house, outhouse other than a dwelling house, bribery, buggery, counterfeiting, violating any of the laws to suppress the same, forgery, incest, larceny, horse stealing, perjury, robbery, receiving stolen property, rape, sodomy, stealing bills of exchange or other valuable papers, subornation of perjury, and destroying a will.”

Cross-References. Acts purging registration, § 2-2-106.

Criminal actions, U.S. Const., am. V.

Duties of election coordinator, § 2-11-202.

Exclusion of right to vote for infamous criminals, Tenn. Const., art. IV, § 2.

Notice of infamy, § 40-20-113.

Qualified voters, § 2-2-102.

Restoration of suffrage, §§ 2-2-139, 40-29-101.

Right of citizens to vote, U.S. Const., am. XV.

Right to suffrage, Tenn. Const., art. I, § 5.

Suffrage for persons convicted of infamous crimes, § 2-19-143.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 25.45, 27.32, 32.64, 32.223.

Tennessee Jurisprudence, 4 Tenn. Juris., Automobiles, § 15; 6 Tenn. Juris., Citizenship, § 2; 8 Tenn. Juris., Criminal Procedure, § 49; 17 Tenn. Juris., Larceny and Theft, § 2; 25 Tenn. Juris., Witnesses, § 16.

Law Reviews.

Competency of Witnesses and the Trial of Frank James (Donald F. Paine), 37 No. 11 Tenn. B.J. 14 (2001).

Infamy as Ground of Disqualification in Tennessee, 22 Tenn. L. Rev. 544.

NOTES TO DECISIONS

1. Applicability.

This statute pertains to specific disabilities, that is, the loss of the right to vote and the retention of the right to testify; it does not pertain to the right of a convicted felon to seek access to records under the Public Records Act, § 10-7-503. Cole v. Campbell, 968 S.W.2d 274, 1998 Tenn. LEXIS 208 (Tenn. 1998).

Trial court erred in marking the checkbox that rendered him infamous on the judgment form for his misdemeanor evading arrest conviction because a judgment of infamy should only be rendered upon conviction for a felony. State v. Derring, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 32 (Tenn. Crim. App. Jan. 16, 2019).

2. Judgment at Subsequent Term.

A judgment may be rendered on the verdict, at a subsequent term to that at which the verdict was rendered. Greenfield v. State, 66 Tenn. 18, 1872 Tenn. LEXIS 442 (1872); State v. Miller, 65 Tenn. 513, 1873 Tenn. LEXIS 396 (1873); Whitney v. State, 74 Tenn. 247, 1880 Tenn. LEXIS 242 (1880); Spencer v. State, 125 Tenn. 64, 140 S.W. 597, 1911 Tenn. LEXIS 7, 38 L.R.A. (n.s.) 680 (1911).

3. Competency of Witnesses.

The provision that person convicted of infamous crime is not disqualified to testify but that such conviction is to go to his credibility applies alike to a person convicted before or after such amendment. Strunk v. State, 209 Tenn. 1, 348 S.W.2d 339, 1958 Tenn. LEXIS 278 (1958).

Credibility of witness shown to have been declared infamous was for the jury. Haggard v. Jim Clayton Motors, Inc., 216 Tenn. 625, 393 S.W.2d 292, 1965 Tenn. LEXIS 608 (1965).

So much of judgment of infamy as purported to render defendant incapable of giving evidence in courts of state was erroneous and would be stricken from the judgment. Grooms v. State, 2 Tenn. Crim. App. 61, 450 S.W.2d 805, 1969 Tenn. Crim. App. LEXIS 305 (Tenn. Crim. App. 1969).

Disenfranchisement does not render a person incapable of testifying in any court but is a fact which may be considered as to his credibility. Grooms v. State, 2 Tenn. Crim. App. 61, 450 S.W.2d 805, 1969 Tenn. Crim. App. LEXIS 305 (Tenn. Crim. App. 1969).

4. Appeal.

It is not reversible error for the trial judge to include as part of the judgment a sentence of infamy, upon the conviction for a crime that does not carry with it a judgment of infamy for the sentence can be corrected on appeal. Griffin v. State, 109 Tenn. 17, 70 S.W. 61, 1902 Tenn. LEXIS 54 (1902).

5. Restoration After Pardon.

Person convicted of crime and adjudged infamous, was, after pardon and right living, entitled to restoration on his petition and showing in circuit court, and was entitled to appeal from judgment dismissing his petition, and to make affidavit for such appeal on pauper's oath. In re Curtis, 6 Tenn. Civ. App. (6 Higgins) 12 (1915).

6. Retroactive Application.

Expanded scope of infamous crimes could not be applied retroactively, and provisions of §§ 2-2-139 and 2-19-143 attempting to retroactively disenfranchise felons whose crimes were not infamous at time of conviction were unconstitutional and violated Tenn. Const., art. I, § 5. Gaskin v. Collins, 661 S.W.2d 865, 1983 Tenn. LEXIS 751 (Tenn. 1983).

Where homicide was not listed by former T.C.A. § 40-2712 (now T.C.A. § 40-20-112) as a crime of infamy at the time petitioner committed the offense of first degree murder in 1980, the trial court erred by applying a 1981 enactment to declare petitioner infamous under T.C.A. § 40-20-112 for having committed a felony; the resulting disenfranchisement of petitioner qualified as a restraint on liberty, and therefore he was entitled to limited habeas corpus relief under Tenn. Const. art. I, § 15. May v. Carlton, 245 S.W.3d 340, 2008 Tenn. LEXIS 10 (Tenn. Jan. 18, 2008).

8. Deprivation of Voting Rights.

Unlike T.C.A. § 40-20-112, which removes the right of suffrage, T.C.A. § 40-29-105 does not impose any punishment; rather, § 40-29-105 merely sets out the various procedures for pursuing restoration of one's citizenship rights after he or she has been punished (under § 40-20-112) by removal of same. Moffitt v. State, — S.W.3d —, 2018 Tenn. App. LEXIS 708 (Tenn. Ct. App. Feb. 4, 2018).

Decisions Under Prior Law

1. Construction with Other Acts — Habitual Criminal.

Where prior offenses committed were not infamous crimes at the time of their commission, but were made infamous thereafter by Acts 1941, ch. 64, they were not infamous for the purpose of subjecting defendant to punishment as an habitual criminal. Hill v. State, 182 Tenn. 313, 186 S.W.2d 333, 1945 Tenn. LEXIS 223 (1945).

2. Infamous Offenses.

Formerly horse stealing was not one of the offenses to which infamy and its disqualifications were attached. Wilcox v. State, 50 Tenn. 110, 1871 Tenn. LEXIS 71 (1871).

The offense of begetting an illegitimate child by one's sister-in-law is not an infamous crime. McCormick v. State, 135 Tenn. 218, 186 S.W. 95, 1916 Tenn. LEXIS 23, L.R.A. (n.s.) 1916F382 (1916).

Conspiring to sell, transfer and deliver false and counterfeit obligations of the United States, with the intent that the same be used, passed or published as true, knowing that the obligations were false and counterfeit is “violating the laws to suppress counterfeiting.” Pruitt v. State, 3 Tenn. Crim. App. 256, 460 S.W.2d 385, 1970 Tenn. Crim. App. LEXIS 390 (Tenn. Crim. App. 1970).

It was improper to adjudge defendant infamous upon conviction of voluntary manslaughter. Howard v. State, 506 S.W.2d 951, 1973 Tenn. Crim. App. LEXIS 243 (Tenn. Crim. App. 1973).

Homicide is not an infamous crime. Williams v. State, 520 S.W.2d 371, 1974 Tenn. Crim. App. LEXIS 260 (Tenn. Crim. App. 1974).

Sentence of defendants convicted of receiving stolen property in excess of $100 would be modified to strike improper provision that defendants were disqualified from exercising the elective franchise. Patmon v. State, 524 S.W.2d 677, 1974 Tenn. Crim. App. LEXIS 249 (Tenn. Crim. App. 1974).

Violation of age of consent is not the same or included in the phrase abusing a female child which is listed in the infamy statute; therefore, a defendant who had been previously convicted of rape and violation of age of consent could not be sentenced as a habitual criminal, since his previous convictions did not meet the requirements of that statute. State v. Townsend, 525 S.W.2d 842, 1975 Tenn. LEXIS 662 (Tenn. 1975).

Neither sodomy nor buggery is defined in this section, or elsewhere in the code, and there appears to have been no authoritative determination by the courts of this state as to their respective meanings as employed in this statute. Evans v. State, 571 S.W.2d 283, 1978 Tenn. LEXIS 643 (Tenn. 1978).

“Larceny,” as used in this section, included all of the statutory forms of that crime including larceny from the person. Evans v. State, 571 S.W.2d 283, 1978 Tenn. LEXIS 643 (Tenn. 1978).

At common law neither sodomy nor buggery included any form of oral-genital sex, but rather, taken together, referred only to anal copulation among humans and to the copulation of a human with a beast. Evans v. State, 571 S.W.2d 283, 1978 Tenn. LEXIS 643 (Tenn. 1978).

Neither sodomy nor buggery as those terms are used in this section is coextensive with the “crime against nature” prohibited by § 39-2-612 (repealed), which has been interpreted as including several oral sex acts. Evans v. State, 571 S.W.2d 283, 1978 Tenn. LEXIS 643 (Tenn. 1978).

Forgery was an included offense under this section, but passing a forged instrument was not. Williams v. State, 576 S.W.2d 766, 1978 Tenn. Crim. App. LEXIS 366 (Tenn. Crim. App. 1978).

The general assembly has specifically identified those offenses which it deems infamous in this section. Tate v. Collins, 496 F. Supp. 205, 1980 U.S. Dist. LEXIS 13354 (W.D. Tenn. 1980).

Neither a conviction of voluntary manslaughter nor assault with intent to commit voluntary manslaughter renders one infamous pursuant to this section which permits the use of convictions of infamous crimes as a reflection upon credibility. State v. Morgan, 541 S.W.2d 385, 1976 Tenn. LEXIS 544 (Tenn. 1976).

3. —Bad Checks.

Violation of § 39-3-301 (repealed) by issuing a check for more than $100 without sufficient funds was not an infamous crime. Tines v. State, 553 S.W.2d 913, 1977 Tenn. Crim. App. LEXIS 281 (Tenn. Crim. App. 1977); Jett v. State, 556 S.W.2d 236, 1977 Tenn. Crim. App. LEXIS 289 (Tenn. Crim. App. 1977), superseded by statute as stated in, State v. Shirley, 6 S.W.3d 243, 1999 Tenn. LEXIS 575 (Tenn. 1999).

4. —Concealing Stolen Property.

Prior to the separation of the offenses of receiving stolen property and concealing stolen property, concealing stolen property was an infamous crime under this section. Delay v. State, 563 S.W.2d 905, 1977 Tenn. Crim. App. LEXIS 267 (Tenn. Crim. App. 1977).

5. Rape.

“Aggravated rape” of a woman was “rape” for purposes of this section and was, therefore, a triggering offense for habitual criminality pursuant to § 39-1-801 (repealed). State v. McMiller, 614 S.W.2d 398, 1981 Tenn. Crim. App. LEXIS 329 (Tenn. Crim. App. 1981).

6. —Separate Counts.

Where, under an indictment containing two counts, there was a general verdict of guilty, assessing the punishment at five years' imprisonment in the penitentiary, and in pronouncing judgment upon the verdict, the court, as a part of the judgment, adjudged the defendant to be “infamous,” the general verdict was applicable to the infamous offense of larceny which was clearly established by the evidence, and the judgment of infamy was affirmed. Davis v. State, 85 Tenn. 522, 3 S.W. 348, 1886 Tenn. LEXIS 80 (1886).

7. —Disqualification as Witness.

Conviction for petit larceny, even though it was a misdemeanor at the time of the conviction, rendered witness incompetent to testify, even though the decree did not impose disabilities of infamy, since it was the legal consequence of the conviction and sentence which rendered person incompetent. Fair v. State, 2 Shan. 481 (1877).

An authenticated copy of the record containing a judgment declaring a witness infamous, and disqualifying him from giving evidence, was admissible to impeach him. Moore v. State, 96 Tenn. 209, 33 S.W. 1046, 1895 Tenn. LEXIS 26 (1896).

Plea of guilty to crime of larceny did not render witness incompetent, if he had not been convicted or sentenced. Zachary v. State, 144 Tenn. 623, 234 S.W. 758, 1921 Tenn. LEXIS 58 (1921).

Conviction for counterfeiting under federal law in a federal court in Kentucky did not bar plaintiff from swearing to bill in equity. Burdine v. Kennon, 186 Tenn. 200, 209 S.W.2d 9, 1948 Tenn. LEXIS 537, 2 A.L.R.2d 577 (1948).

Conviction of felony does not make evidence of witness inadmissible under this section unless felony is listed herein as an infamous crime. May v. State, 192 Tenn. 53, 237 S.W.2d 550, 1951 Tenn. LEXIS 380 (1951).

8. Deprivation of Voting Rights.

Provisions of (former version of) § 2-6-102 expressly prohibiting incarcerated persons from utilizing the absentee ballot denied those incarcerated persons who had not been convicted of an infamous crime and who were otherwise entitled to vote equal protection of the laws guaranteed by the U.S. Const., amend. 14. Tate v. Collins, 496 F. Supp. 205, 1980 U.S. Dist. LEXIS 13354 (W.D. Tenn. 1980).

There is no authorization for deprivation of voting rights of any citizen convicted of an “infamous crime” since the 1972 amendment of this section, which deleted a provision requiring disqualification from voting as part of certain judgments of conviction. Crutchfield v. Collins, 607 S.W.2d 478, 1980 Tenn. App. LEXIS 387 (Tenn. Ct. App. 1980), superseded by statute as stated in, Taylor v. Neil, — S.W.2d —, 1993 Tenn. App. LEXIS 195 (Tenn. Ct. App. Mar. 17, 1993).

9. Mandatory Application.

Under the former section, it was mandatory upon the trial court to pronounce a judgment including infamy, and the failure of such court to do so did not relieve the defendant of such disability. Cambria Coal Co. v. Teaster, 179 Tenn. 472, 167 S.W.2d 343, 1942 Tenn. LEXIS 44 (1943).

40-20-113. Judgment of infamous crime to be sent to election commission.

The clerks of the criminal and circuit courts shall notify the county election commission of each person convicted of an infamous crime on a form to be furnished by the state coordinator of elections pursuant to § 2-11-202.

Acts 1981, ch. 345, § 1; 1982, ch. 631, § 1; T.C.A., § 40-2713; Acts 1985, ch. 132, § 1; 2014, ch. 724, § 8.

Cross-References. Acts purging registration, § 2-2-106.

Duties of election coordinator, § 2-11-202.

Judgment of infamy, § 40-20-112.

Qualified voters, § 2-2-102.

Restoration of suffrage, §§ 2-2-139, 40-29-101.

Suffrage for persons convicted of infamous crimes, § 2-19-143.

40-20-114. Disqualification from public office.

A person who has been convicted in this state of an infamous crime, as defined by § 40-20-112, other than one specified in subsection (b), or convicted under the laws of the United States or another state of an offense that would constitute an infamous crime if committed in this state, shall be disqualified from qualifying for, seeking election to or holding a public office in this state, unless and until that person's citizenship rights have been restored by a court of competent jurisdiction.
Notwithstanding the provisions of subsection (a) to the contrary, a person convicted in this state of an infamous crime, as defined by § 40-20-112, or convicted under the laws of the United States or another state of an offense that would constitute an infamous crime if committed in this state, and the offense was committed while that person is holding an elected public office at the federal level, or in this or any other state or any political subdivision of this or any other state, shall be forever disqualified from qualifying for, seeking or holding any public office in this state or any political subdivision of this state, if the offense was committed in the person's official capacity or involved the duties of the person's office. This subsection (b) shall apply even if the person's citizenship rights have been restored, but shall not be construed as limiting the restoration of any other citizenship rights, including the right of suffrage provided for in § 2-2-139, § 2-19-143, or § 40-29-105.
If a person is holding an elected public office and was convicted of an infamous crime pursuant to the qualifications in subsection (b) that was committed prior to July 1, 2007, the person shall be allowed to remain in office for the remainder of the term, but shall forever be prohibited from qualifying for, seeking or holding any public office in this state or political subdivision of this state after July 1, 2007, or when the term expires or when the person vacates the office, whichever is first.
If a person is holding an elected public office and is convicted of an infamous crime pursuant to the qualifications in subsection (b) that was committed on or after July 1, 2007, the conviction shall be grounds for removal from office in the manner provided by law and the person shall forever be prohibited from qualifying for, seeking or holding any public office in this state or political subdivision of this state after July 1, 2007.
A court shall not accept any plea agreement that allows an elected public official who is charged with an infamous crime involving an offense committed in the person's official capacity or involving the duties of the person's office, to qualify for, seek, or hold public office in this state or any political subdivision of this state at some point in the future. If an elected public official accepts a plea agreement for an offense committed in the person's official capacity or involving the duties of the person's office, the person is prohibited from qualifying for, seeking, or holding public office in this state or any political subdivision of this state at some point in the future after the plea agreement has been agreed to by all parties.
If any provision of this section or the application of this section to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of the section that can be given effect without the invalid provision or application, and to that end this section is declared to be severable.

Code 1858, § 5227; Shan., § 7200; Code 1932, § 11763; Acts 1979, ch. 306, § 13; T.C.A. (orig. ed.), § 40-2714; Acts 2007, ch. 325, § 1; 2019, ch. 281, § 3.

Amendments. The 2019 amendment added present (e) and redesignated former (e) as present (f).

Effective Dates. Acts 2019, ch. 281, § 4. July 1, 2019.

Textbooks. Tennessee Jurisprudence, 6 Tenn. Juris., Citizenship, § 2; 21 Tenn. Juris., Public Officers, § 26.

Law Reviews.

Tennessee Civil Disabilities: A Systemic Approach (Neil P. Cohen), 41 Tenn. L. Rev. 253 (1974).

NOTES TO DECISIONS

1. Applicability.

The civil disability imposed by this section does not attach when a person is convicted of a crime in federal court and receives a sentence of less than one year. Stiner v. Musick, 571 S.W.2d 149, 1978 Tenn. LEXIS 641 (Tenn. 1978).

2. Holding Office Under the State.

A city policeman holds office under the state. State ex rel. Harvey v. Knoxville, 166 Tenn. 530, 64 S.W.2d 7, 1933 Tenn. LEXIS 111 (1933).

3. Murder Conviction.

A judgment convicting a policeman of murder automatically terminates his tenure of office. State ex rel. Harvey v. Knoxville, 166 Tenn. 530, 64 S.W.2d 7, 1933 Tenn. LEXIS 111 (1933).

4. Restoration to Citizenship.

Duly elected commissioner could require other commissioners to meet and transact town business with him even though he had been convicted of forgery 20 years before election, since he had been restored under § 40-29-101 to his rights of citizenship. Bryant v. Moore, 198 Tenn. 335, 279 S.W.2d 517, 1955 Tenn. LEXIS 376 (1955), superseded by statute as stated in, State v. Baltimore, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 451 (Tenn. Crim. App. May 13, 2014).

40-20-115. Disqualification from fiduciary office.

The effect of a sentence of imprisonment in the penitentiary is to put an end to the right of the inmate to execute the office of executor, administrator or guardian, fiduciary or conservator, and operates as a removal from office.

Code 1858, § 5230; Shan., § 7203; Code 1932, § 11789; T.C.A. (orig. ed.), § 40-2715; Acts 2013, ch. 435, § 33.

Compiler's Note. Acts 2013, ch. 435, § 48 provided that the act, which amended this section, shall apply to actions commenced on or after July 1, 2013.

Law Reviews.

Tennessee Civil Disabilities: A Systemic Approach (Neil P. Cohen), 41 Tenn. L. Rev. 253 (1974).

NOTES TO DECISIONS

1. Conservator Disqualified.

Trial court did not err in terminating the son's powers of attorney or in dismissing his counter-petition to be appointed conservator for the ward because the son's Nevada felony conviction and his sentence to the Nevada Department of Corrections disqualified him from being an agent or conservator for the ward; the plain language of the statute prohibits any person, who has received a sentence of imprisonment (whether the sentence is actually served), from serving as a fiduciary or conservator. In re Lemonte, — S.W.3d —, 2017 Tenn. App. LEXIS 751 (Tenn. Ct. App. Nov. 17, 2017), appeal dismissed, In re Conservatorship of LeMonte, — S.W.3d —, 2018 Tenn. LEXIS 261 (Tenn. May 9, 2018).

40-20-116. Order of restitution.

Whenever a felon is convicted of stealing or feloniously taking or receiving property, or defrauding another of property, the jury shall ascertain the value of the property, if not previously restored to the owner, and the court shall, thereupon, order the restitution of the property, and, in case this cannot be done, that the party aggrieved recover the value assessed against the prisoner, for which execution may issue as in other cases.
If the property has been feloniously destroyed, the jury shall ascertain the damages sustained, upon which judgment shall be rendered in favor of the party aggrieved against the defendant, and execution shall issue as provided in subsection (a).
This section is cumulative, and does not deprive the party injured of any other right the party may have for the recovery of property or its value.

Code 1858, §§ 5233-5235 (deriv. Acts 1829, ch. 23, § 79); Shan., §§ 7208-7210; Code 1932, §§ 11795-11797; T.C.A. (orig. ed.), §§ 40-2716 — 40-2718.

Cross-References. General sessions court empowered to issue execution, title 16, ch. 15, part 8.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 32.197.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

NOTES TO DECISIONS

1. Applicability.

T.C.A. § 40-20-116 authorizes the court to order restitution of property, or its value, to the victim only after the jury ascertains property value. State v. Bryant, 775 S.W.2d 1, 1988 Tenn. Crim. App. LEXIS 809 (Tenn. Crim. App. 1988).

2. “Convicted” Construed.

The word “convicted” refers to the jury's verdict, and is distinct from judgment of the court. State ex rel. Barnes v. Garrett, 135 Tenn. 617, 188 S.W. 58, 1915 Tenn. LEXIS 199, L.R.A. (n.s.) 1917B567 (1915).

3. Extradited Prisoners.

Statement in petition for extradition that requisition of fugitives was not for purpose of collecting a debt, or enforcing a penalty or to answer for any other private end, did not preclude order of restitution after such fugitives were convicted on burglary and larceny in Tennessee. Burton v. State, 214 Tenn. 9, 377 S.W.2d 900, 1964 Tenn. LEXIS 441 (1964).

4. Restitution.

While the trial court ordered defendant to pay $ 5,000 in restitution to the storage company, there was no proof regarding any pecuniary loss sustained by the company as a result of defendant's crime, plus the presentence report did not list the company as a victim in the restitution section, and the restitution order was reversed. State v. Firestone, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 103 (Tenn. Crim. App. Feb. 16, 2017).

Restitution order requiring defendant to pay a total restitution amount of $36,473.00 at the rate of $50 per month was error because, while the monthly payment amount was reasonable, given defendant's age, education, and work history, defendant could not reasonably be expected to pay the total amount, regardless of the length of a probationary term, and the provision that allowed restitution unpaid at the expiration of a defendant's sentence to be converted into a civil judgment did not release the court from the obligation to set an amount of restitution and payment terms that the defendant could reasonably be expected to satisfy. State v. Ballew, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 226 (Tenn. Crim. App. Mar. 24, 2017).

40-20-117. Jail or workhouse sentences of less than one (1) year.

Whenever any person is sentenced to imprisonment in a county jail or workhouse for a period not to exceed eleven (11) months and twenty-nine (29) days, the judge of the court in which the sentence is imposed may, in the judge's discretion, include in the order of judgment suitable provisions and directions to the officer to whose custody the prisoner is committed for safekeeping as will ensure that the convicted person will be allowed to serve the sentence on nonconsecutive days, which may include, but is not limited to, weekends, between hours to be specified in the judgment, which provisions or directions may be revoked, suspended or amended from time to time by the judge of the committing court until the sentence is served or until the convicted person is lawfully released prior to the expiration of the person's sentence.
The sheriff, warden, superintendent or other official having responsibility for the safekeeping of the convicted person in any jail or workhouse shall adopt procedures for the release of the convicted person at the times specified in the order of judgment and for receiving the person back into custody at the specified times. Willful failure of any official to comply with the directions of the court constitutes contempt of court, punishable as provided by law for contempt generally.
Failure of the convicted person to surrender to the custody of the sheriff, warden, superintendent or other official responsible for the convicted person's safekeeping in the jail or workhouse within the time specified in the order of judgment constitutes grounds for the suspension or revocation of the privilege granted, in the discretion of the court. The order of judgment may specify time limits beyond which a continued absence shall be considered an escape and the offender shall then be liable to punishment for escape as provided by law; provided, that the person sentenced may elect to serve the person's sentence on consecutive days.

Acts 1970, ch. 458, § 1; T.C.A., § 40-2719.

Cross-References. Contempt, title 29, chapter 9.

County workhouses, title 41, ch. 2.

Escape, § 39-16-605.

NOTES TO DECISIONS

1. In General.

This provision indicates that in the opinion of the legislature a requirement of incarceration on nonconsecutive days is not an unreasonable one. State v. Gaines, 622 S.W.2d 819, 1981 Tenn. LEXIS 497 (Tenn. 1981), superseded by statute as stated in, State v. Stone, 880 S.W.2d 746, 1994 Tenn. Crim. App. LEXIS 265 (Tenn. Crim. App. 1994).

2. Flexibility in Serving Sentence.

The sentence to the county workhouse could have been tailored to the needs of the individual prisoner allowing less isolation from the free community and a greater chance for rehabilitation. Pendergrass v. Neil, 338 F. Supp. 1198, 1971 U.S. Dist. LEXIS 13925 (M.D. Tenn. 1971), modified, 456 F.2d 469, 1972 U.S. App. LEXIS 11030 (6th Cir. Tenn. 1972).

Part 2
Special Alternative Incarceration Unit Program

40-20-201. Department of correction — Authority.

Notwithstanding any other provision of the law to the contrary, in the event that an offender is sentenced to confinement in the department of correction for six (6) years or less and is committed to the department, the department shall have the authority to place the offender in a special alternative incarceration unit in lieu of confinement in a regular state penal facility. In such a unit the offender shall, at a minimum, be required to participate for a period of ninety (90) days in an intensive regimen of work, exercise, military-type discipline and available treatment programs in accordance with policies and procedures established by the department.

Acts 1989, ch. 217, § 2.

Attorney General Opinions. Constitutionality, OAG 94-052 (4/6/94).

40-20-202. Participation in available treatment programs.

An offender's participation in any available treatment programs shall be in addition to, and shall not have the effect of reducing or otherwise diminishing, the offender's participation in the full regimen of work, exercise and military-type discipline required by the special alternative incarceration program.

Acts 1989, ch. 217, § 3.

40-20-203. Eligible offenders — Age.

In placing an offender in a special alternative incarceration unit, the department of correction shall give priority to eligible offenders between the ages of seventeen (17) and twenty-five (25). In no event shall an offender who is over the age of thirty-five (35) be placed in a special alternative incarceration unit.

Acts 1989, ch. 217, § 4; 1992, ch. 881, § 1.

40-20-204. Classification of offender — Board approval.

No offender shall be placed in a special alternative incarceration unit unless and until the offender has been classified by the department as a suitable candidate for an alternative treatment program in accordance with departmental policies and guidelines.

Acts 1989, ch. 217, § 5; 1990, ch. 720, § 1.

Cross-References. Aggravated robbery, § 39-13-402.

Offenses against the family, title 39, ch. 15.

40-20-205. Excluded offenders.

An offender convicted of any of the following offenses is ineligible to participate in the special alternative incarceration program:

Class A felony;
Aggravated robbery;
An offense involving sexual contact or sexual penetration, as defined in § 39-13-501;
An offense involving child abuse, child sexual abuse, or sexual exploitation of a minor;
An offense involving the illegal distribution or sale of a controlled substance or controlled substance analogue to a minor;
An offense involving serious bodily injury, as defined in § 39-11-106; or
An offense involving death to a victim or bystander.

Acts 1989, ch. 217, § 6; 1992, ch. 838, § 4; 2012, ch. 848, § 32.

Cross-References. Penalty for Class A felony, § 40-35-111.

40-20-206. Release to division of community services upon completion — Revocation of release.

Notwithstanding any other provision of the law to the contrary, upon successful completion of a special alternative incarceration program, an offender shall be released to the supervision of the division of community services for the department of correction under the terms and conditions imposed by the department for the balance of the original sentence imposed by the trial court. Should an offender fail to comply with the terms and conditions of supervision imposed by the department after successful completion of the program, the release on supervision may be revoked by the trial judge pursuant to § 40-35-311.

Acts 1989, ch. 217, § 7; 1990, ch. 720, § 2.

40-20-207. Eligibility of certain drug offenders.

Notwithstanding the six (6) year or less sentence limitation of this part, an especially mitigated offender, as defined by § 40-35-109, or a standard offender, as defined by § 40-35-105, who is convicted of a violation of § 39-17-417(a) with respect to a controlled substance in an amount less than that set out in § 39-17-417(i), is eligible for placement in the special alternative incarceration unit as defined and authorized by this part.

Acts 1989, ch. 591, § 117.

Part 3
Special Technical Violator Unit

40-20-301. Confinement in special technical violator unit.

Notwithstanding any other provision of law to the contrary, in the event that an offender receives a suspension of sentence, has that suspension of sentence revoked for reasons other than the commission of a new felony offense, and is committed to the department of correction, the department shall have the authority to place the offender in a special technical violator unit in lieu of confinement in a regular state penal facility unless the court specifies otherwise in the order of revocation. If the court specifically prohibits the placement of an offender in a special technical violator unit, the court shall make findings of fact and state the reasons for its decision in the order of revocation. In such unit the offender shall, at a minimum, be required to participate for a period of one hundred twenty (120) days in an intensive regimen of work and available treatment programs in accordance with policies and procedures established by the department.

Acts 1997, ch. 222, § 2.

Cross-References. Diversion centers for technical violators, § 41-1-123.

40-20-302. Classification of offenders.

No offender shall be placed in a special technical violator unit unless and until the offender has been classified by the department as a suitable candidate for such a program in accordance with departmental policies and guidelines.

Acts 1997, ch. 222, § 3.

40-20-303. Completion of program — Failure to comply.

Notwithstanding any other provision of the law to the contrary, upon successful completion of a technical violator program, an offender shall be released to the supervision of the division of community services for the department of correction under the terms and conditions imposed by the trial court. Should an offender fail to comply with the terms and conditions of supervision imposed by the department after successful completion of the program, the release on supervision may be revoked by the trial judge pursuant to § 40-35-311.

Acts 1997, ch. 222, § 4.

Chapter 21
[Reserved]

Chapter 22
Judicial Recommendation of Clemency

40-22-101. Postponement of execution of sentence pending application for clemency.

In case of the conviction and sentence of a defendant to imprisonment, the presiding judge may, in all proper cases, postpone the execution of the sentence for the amount of time as may be necessary to make application to the executive for a pardon or commutation of punishment.

Code 1858, § 5255; Shan., § 7230; Code 1932, § 11821; T.C.A. (orig. ed.), § 40-3001.

Compiler's Notes. Acts 1982, ch. 868, § 1 provided that all persons committing crimes after July 1, 1982, shall be tried and sentenced under the provisions of ch. 35 of this title.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 32.191, 33.14.

NOTES TO DECISIONS

1. Postponement Based on Belief in Clemency.

A postponement should not be made to enable the defendant to apply for a pardon unless the court believes the case to be a proper one for clemency and is willing to be understood as recommending it. Crane v. State, 94 Tenn. 98, 28 S.W. 317, 1894 Tenn. LEXIS 29 (1894).

40-22-102. Suspension of execution to permit application for pardon.

Whenever a plea of guilty is entered by the defendant to an indictment charging a felony, and it appears to the circuit or criminal court judge receiving the plea that the prisoner is only technically guilty, or that there are circumstances or conditions connected with the alleged crime or in the defendant's life and surroundings tending to mitigate the offense, or if it is the prisoner's first offense, and it is not likely that the prisoner will again engage in an offensive and criminal course of conduct if released, and in the opinion of the presiding judge the public good does not require that the defendant suffer the disgrace of imprisonment at hard labor in the penitentiary, the execution of sentence and judgment may, in the discretion of the judge, be suspended until the next term of the court, so as to enable application to be made to the governor for a pardon.

Acts 1915, ch. 135, § 1; Shan., § 7230a1; Code 1932, § 11822; T.C.A. (orig. ed.), § 40-3002.

NOTES TO DECISIONS

1. In General.

This chapter provides for the suspension of execution of a sentence, in the discretion of the trial judge, when, in his opinion, one or more of the specifically listed circumstances exist. This chapter provides a basis for a judicial recommendation of clemency. Saeger v. State, 592 S.W.2d 909, 1979 Tenn. Crim. App. LEXIS 303 (Tenn. Crim. App. 1979).

40-22-103. Transmittal of documents and recommendations to commissioner.

It is the duty of the presiding judge, where the execution of sentence and judgment has been suspended, as provided by § 40-22-102, to immediately transmit to the commissioner of correction and the board of parole a copy of the indictment or presentment, together with the judge's reasons for suspending the sentence and judgment, and any other recommendations as the judge may think proper to make.

Acts 1915, ch. 135, § 2; Shan., § 7230a2; impl. am. Acts 1923, ch. 7, § 42; Code 1932, § 11823; impl. am. Acts 1955, ch. 102, § 1; Acts 1979, ch. 359, § 27; T.C.A. (orig. ed.), § 40-3003; Acts 1998, ch. 1049, § 20.

40-22-104. Prisoner placed under commissioner.

The presiding judge shall also cause to be entered on the minutes of the trial court an order reciting the reasons for the suspension of the sentence and judgment, and providing that the prisoner whose sentence has been so suspended shall, from the date of suspension, be subject to be placed under the control of the commissioner of correction, and, when so placed, shall be subject to all laws, rules and regulations pertaining to convicts on parole. The board of parole shall consider a person so committed to the custody of the department of correction using the procedures and criteria established in chapter 28 of this title.

Acts 1915, ch. 135, § 2; Shan., § 7230a3; impl. am. Acts 1923, ch. 7, § 42; Code 1932, § 11824; impl. am. Acts 1955, ch. 102, § 1; Acts 1979, ch. 359, § 28; T.C.A. (orig. ed.), § 40-3004; Acts 1998, ch. 1049, § 20.

40-22-105. Custody or appearance bond.

It is the duty of the court to hold the defendant in custody unless bond is executed for the appearance of the prisoner at the next term of the court.

Acts 1915, ch. 135, § 2; Shan., § 7230a4; Code 1932, § 11825; T.C.A. (orig. ed.), § 40-3005.

40-22-106. Execution of sentence in absence of parole or pardon.

In case the governor does not act by pardoning the prisoner, or the board of parole by paroling the prisoner, by the first day of the next term of court, then it is the duty of the judge to put into execution the sentence and judgment of the court, by delivering, or causing to be delivered, the prisoner to the proper authorities for the execution of the sentence.

Acts 1915, ch. 135, § 3; Shan., § 7230a14; impl. am. Acts 1923, ch. 7, § 42; Code 1932, § 11834; Acts 1979, ch. 359, § 29; T.C.A. (orig. ed.), § 40-3006; Acts 1998, ch. 1049, § 20.

40-22-107. Entry of pardon or parole — Discharge of bond.

Should the prisoner be pardoned or paroled, it shall then be the duty of the court to show the facts by proper decree and discharge the bond taken for the appearance of the prisoner as provided for in § 40-22-105.

Acts 1915, ch. 135, § 2; Shan., § 7230a6; Code 1932, § 11826; T.C.A. (orig. ed.), § 40-3007.

40-22-108. Supervision pending application.

It is the duty of the department of correction, upon receipt of the pleadings in the case, together with the recommendations of the presiding judge, as provided in § 40-22-103, through the probation and parole officer, to look after the welfare of, and have charge of and keep in communication with, the prisoner, thus on parole, and also to keep in communication with the prisoner's employers.

Acts 1915, ch. 135, § 3; Shan., § 7230a7; impl. am. Acts 1923, ch. 7, § 42; Code 1932, § 11827; impl. am. Acts 1955, ch. 102, § 1; impl. am. Acts 1961, ch. 93, § 5; Acts 1979, ch. 359, § 30; T.C.A. (orig. ed.), § 40-3008; Acts 1998, ch. 1049, §§ 20, 21; 2012, ch. 727, § 12.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended this section, shall be fully accomplished on or before January 1, 2013.

40-22-109. Parole or recommendation of pardon.

When it satisfactorily appears to the board of parole that a prisoner, whose sentence has been suspended as provided in § 40-22-102, has led an exemplary life and behaved in a manner and for a period of time that leads the board to believe that the prisoner is reliable and trustworthy and that the prisoner will probably remain at liberty without violating the law, and the prisoner's final release is not incompatible with the welfare of society, the board may, in its discretion, parole the prisoner for a period of time as it deems best, or it may recommend to the governor that the governor grant the prisoner a pardon and final discharge.

Acts 1915, ch. 135, § 3; Shan., § 7230a8; impl. am. Acts 1923, ch. 7, § 42; Code 1932, § 11828; Acts 1979, ch. 359, § 31; T.C.A. (orig. ed.), § 40-3009; Acts 1998, ch. 1049, § 20.

40-22-110. Maximum term of parole — Power to pardon unaffected.

Where the prisoner is granted a parole by the board of parole, the parole shall not be in length of time beyond the minimum penalty of the prisoner, and shall not affect the power of the governor to pardon the prisoner.

Acts 1915, ch. 135, § 3; Shan., § 7230a13; impl. am. Acts 1923, ch. 7, § 42; Code 1932, § 11833; Acts 1979, ch. 359, § 32; T.C.A. (orig. ed.), § 40-3010; Acts 1998, ch. 1049, § 20.

40-22-111. Notice of grant of parole.

In case the board of parole grants the prisoner a parole, as provided in §§ 40-22-109 and 40-22-110, it shall at once communicate with and transmit to the judge of the court where the case against the prisoner is pending its action and the reasons for granting the prisoner a parole.

Acts 1915, ch. 135, § 3; Shan., § 7230a11; impl. am. Acts 1923, ch. 7, § 42; Code 1932, § 11831; Acts 1979, ch. 359, § 33; T.C.A. (orig. ed.), § 40-3011; Acts 1998, ch. 1049, § 20.

40-22-112. Duties of probation and parole officer.

It is the duty of the parole officer to perform all of the duties imposed upon the officer by law and by the rules and regulations of the board of parole.

Acts 1915, ch. 135, § 4; Shan., § 7230a17; impl. am. Acts 1923, ch. 7, § 42; Code 1932, § 11837; impl. am. Acts 1955, ch. 102, § 1; impl. am. Acts 1961, ch. 93, § 5; Acts 1979, ch. 359, § 34; T.C.A. (orig. ed.), § 40-3012; Acts 1998, ch. 1049, §§ 20, 21.

40-22-113. Supervision by state parole officer.

It is the duty of the probation and parole officer to keep in communication as far as possible with all of the prisoners who are paroled under this chapter, and with their employers.

Acts 1915, ch. 135, § 4; Shan., § 7230a15; Code 1932, § 11835; impl. am. Acts 1961, ch. 93, § 5; Acts 1979, ch. 359, § 35; T.C.A. (orig. ed.), § 40-3013; Acts 1998, ch. 1049, § 21.

40-22-114. Transmittal of papers and recommendations to governor.

In case the board of parole recommends to the governor that the prisoner be pardoned and finally discharged, it shall file the papers received from the trial judge, together with its recommendation attached thereto, with the governor, a sufficient time before the next term of court at which the prisoner is required to appear, to enable the governor to take action on the recommendation.

Acts 1915, ch. 135, § 3; Shan., § 7230a9; impl. am. Acts 1923, ch. 7, § 42; Code 1932, § 11829; Acts 1979, ch. 359, § 37; T.C.A. (orig. ed.), § 40-3015; Acts 1998, ch. 1049, § 20.

40-22-115. Notice of governor's action.

When the governor acts on the application, the governor shall communicate the governor's action to the board of parole, which shall at once transmit to the judge of the court where the case against the prisoner is pending the action of the governor.

Acts 1915, ch. 135, § 3; Shan., § 7230a10; impl. am. Acts 1923, ch. 7, § 42; Code 1932, § 11830; Acts 1979, ch. 359, § 38; T.C.A. (orig. ed.), § 40-3016; Acts 1998, ch. 1049, § 20.

40-22-116. Entry of parole or pardon.

The judge of the court, in either case, shall cause to be made a minute entry in the judge's court, reciting the facts and discharging the prisoner, if pardoned, and if paroled, reciting the conditions of the parole and the length of the parole.

Acts 1915, ch. 135, § 3; Shan., § 7230a12; Code 1932, § 11832; T.C.A. (orig. ed.), § 40-3017.

40-22-117. Construction of chapter.

This chapter shall be liberally construed, and nothing in it shall be construed as seeking to impair the pardoning power of the governor, or the duties of the board of parole in regard to the paroling of prisoners not inconsistent with the spirit of the chapter.

Acts 1915, ch. 135, § 5; Shan., § 7230a18; impl. am. Acts 1923, ch. 7, § 42; Code 1932, § 11838; Acts 1979, ch. 359, § 39; T.C.A. (orig. ed.), § 40-3018; Acts 1998, ch. 1049, § 20.

Chapter 23
Execution of Judgment

40-23-101. Commencement of sentence — Credit for pretrial detention and jail time pending appeal.

When a person is sentenced to imprisonment, the judgment of the court shall be rendered so that the sentence shall commence on the day on which the defendant legally comes into the custody of the sheriff for execution of the judgment of imprisonment.
1. This section shall not apply in a case where, after the rendition of the judgment of imprisonment, an execution of the judgment is stayed by appeal or otherwise.
2. This section shall not interfere with the operation of the statute requiring sheriffs in whose custody defendants come for execution of judgments of imprisonment to commit those defendants as soon as possible to jail or to the warden of the penitentiary.
The trial court shall, at the time the sentence is imposed and the defendant is committed to jail, the workhouse or the state penitentiary for imprisonment, render the judgment of the court so as to allow the defendant credit on the sentence for any period of time for which the defendant was committed and held in the city jail or juvenile court detention prior to waiver of juvenile court jurisdiction, or county jail or workhouse, pending arraignment and trial. The defendant shall also receive credit on the sentence for the time served in the jail, workhouse or penitentiary subsequent to any conviction arising out of the original offense for which the defendant was tried.
In the event the person sentenced appeals the cause to the supreme court and is required to spend time in jail pending the appeal, the supreme court may modify the original sentence allowing a reduction for the time spent in jail pending an appeal upon a petition being filed in the defendant's behalf setting out the time spent in jail within five (5) days after the announcement of the supreme court decision; provided, that the facts alleged in the petition are verified by the clerk of the court where the sentence was imposed. This section applies in both felony and misdemeanor cases.
A certified copy of the order modifying the original sentence in each case shall be forwarded by the clerk of the supreme court to the warden of the state penitentiary.

Acts 1919, ch. 67, § 1; Shan. Supp., § 7242a1; Code 1932, § 11849; Acts 1955, ch. 303, § 1; 1959, ch. 13, § 1; 1963, ch. 32, § 1, 1965, ch. 145, § 1; 1974, ch. 639, § 1; 1976, ch. 664, § 1; T.C.A. (orig. ed.), § 40-3102.

Cross-References. Commencement of term pending appeal, § 40-26-101.

Preservation of evidence in death penalty cases, § 40-35-322.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 2.22, 32.224.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 50; 11 Tenn. Juris., Escape, § 4; 20 Tenn. Juris., Pardon and Parole, § 7.

Law Reviews.

Against Proportional Punishment, 66 Vand. L. Rev. 1141 (2013).

Selected Tennessee Legislation of 1986, 54 Tenn. L. Rev. 457 (1987).

Attorney General Opinions. Sentence credit for criminal defendant's first day of incarceration following arrest. OAG 11-12, 2011 Tenn. AG LEXIS 12 (1/17/11).

NOTES TO DECISIONS

1. Purpose of Section.

The purpose of this section is to provide jail time credit prior and subsequent to conviction for indigents unable to make bond. State v. Abernathy, 649 S.W.2d 285, 1983 Tenn. Crim. App. LEXIS 338 (Tenn. Crim. App. 1983); State v. Silva, 680 S.W.2d 485, 1984 Tenn. Crim. App. LEXIS 2526 (Tenn. Crim. App. 1984).

2. Commencement of Sentence.

T.C.A. § 40-23-101 and § 40-23-103, providing that the sentence shall commence on the day defendant legally comes into custody of the sheriff and indicating that the sheriff shall commit a defendant to jail as soon as possible after the rendition of the judgment, are not in conflict, since the former section specifically provides that it will not interfere with the latter. State v. Walker, 905 S.W.2d 554, 1995 Tenn. LEXIS 430 (Tenn. 1995), superseded by statute as stated in, State v. McKnight, — S.W.3d —, 1999 Tenn. Crim. App. LEXIS 779 (Tenn. Crim. App. Aug. 5, 1999), superseded by statute as stated in, State v. McKnight, 51 S.W.3d 559, 2001 Tenn. LEXIS 580 (Tenn. 2001).

Where persons under a criminal sentence immediately present themselves to the appropriate authorities for incarceration and are turned away, the sentence in each case shall begin to run when the judgment of conviction becomes final or the prisoner is actually incarcerated, whichever is earlier. State v. Walker, 905 S.W.2d 554, 1995 Tenn. LEXIS 430 (Tenn. 1995), superseded by statute as stated in, State v. McKnight, — S.W.3d —, 1999 Tenn. Crim. App. LEXIS 779 (Tenn. Crim. App. Aug. 5, 1999), superseded by statute as stated in, State v. McKnight, 51 S.W.3d 559, 2001 Tenn. LEXIS 580 (Tenn. 2001).

3. Provisions Mandatory.

Provision of subsection (b), relating to credit for time spent in jail, workhouse or penitentiary either prior or subsequent to any conviction arising out of the original offense for which defendant was tried, is mandatory. Stubbs v. State, 216 Tenn. 567, 393 S.W.2d 150, 1965 Tenn. LEXIS 600 (1965), rehearing denied, 216 Tenn. 567, 393 S.W.2d 150, 1965 Tenn. LEXIS 601 (1965).

4. —Discretion of Court Prior to 1965 Amendment.

Courts have discretion in allowing credit for time spent in jail. State ex rel. Crist v. Bomar, 211 Tenn. 420, 365 S.W.2d 295, 1963 Tenn. LEXIS 362 (1963).

Supreme court, upon appeal from proceeding revoking suspension of sentence, had discretion to allow credit for time spent in county jail on prison term of defendant. Rodifer v. State, 214 Tenn. 252, 379 S.W.2d 763, 1964 Tenn. LEXIS 471 (1964).

In case arising prior to the 1965 amendment, the matter of allowing defendant credit for time served in penitentiary pending appeal of first conviction which resulted in reversal and new trial was discretionary with trial court on his second conviction and supreme court could not on petition for habeas corpus review action of trial court in refusing such credit but could only so review action of trial court on appeal or writ of error. State ex rel. Ivey v. Meadows, 216 Tenn. 678, 393 S.W.2d 744, 1965 Tenn. LEXIS 614 (1965).

5. Pretrial Detention.

6. —Liability of Judge.

7. Expiration of Sentence.

Where defendant filed a habeas corpus petition on the basis that her sentence had expired because four years elapsed between the day she was sentenced and the date she was ordered to report to jail, she was not entitled to relief since, because she had not been taken into custody, the sentence had not expired. Her sentence began to run on the date she reported to jail, and the fact that the sheriff waited four years to notify defendant because there was no room for her could not defeat the execution of valid judgment. Wilson v. State, 882 S.W.2d 361, 1994 Tenn. Crim. App. LEXIS 97 (Tenn. Crim. App. 1994).

Because a defendant's sentence begins at the time he is placed in jail, his probationary term could only be so long as his sentence of eleven months, twenty-nine days minus the five months and eight days of jail credit to which he was entitled. State v. Watkins, 972 S.W.2d 703, 1998 Tenn. Crim. App. LEXIS 12 (Tenn. Crim. App. 1998).

8. Void or Invalid Prior Sentence.

Defendant who was tried and convicted a second time for first degree murder after having been released by order of federal court which held first conviction void was entitled to credit for time spent in jail and penitentiary under prior void sentence. Stubbs v. State, 216 Tenn. 567, 393 S.W.2d 150, 1965 Tenn. LEXIS 600 (1965), rehearing denied, 216 Tenn. 567, 393 S.W.2d 150, 1965 Tenn. LEXIS 601 (1965).

The statute is mandatory and any void or invalid prior sentences which a defendant has served when he is tried a second time are and must be credited to the time he receives under the second trial. Marsh v. Henderson, 221 Tenn. 42, 424 S.W.2d 193, 1968 Tenn. LEXIS 445 (1968).

Where defendant's consecutive sentences were reversed on appeal and, apparently, amended judgments were not entered in the trial court, the trial court had jurisdiction to entertain defendant's request for pretrial jail credit. State v. Henry, 946 S.W.2d 833, 1997 Tenn. Crim. App. LEXIS 167 (Tenn. Crim. App. 1997).

9. Other Offenses.

Defendant was not entitled to credit for time he spent in jail and federal prison for other offenses as against armed robbery sentence. Trigg v. State, 523 S.W.2d 375, 1975 Tenn. Crim. App. LEXIS 295 (Tenn. Crim. App. 1975).

Defendants convicted of driving under the influence in violation of T.C.A. § 55-10-403(a)(1) (see now § 55-10-401) are entitled to receive presentence jail credit as authorized by T.C.A. § 40-23-101(c). State v. Kain, 24 S.W.3d 816, 2000 Tenn. Crim. App. LEXIS 130 (Tenn. Crim. App. 2000), review or rehearing denied, — S.W.3d —, 2000 Tenn. LEXIS 405 (Tenn. July 17, 2000).

10. Extradition.

Credit would not be allowed for time defendant spent in Pennsylvania jail after release from federal penitentiary while awaiting trial there and while resisting extradition to Tennessee after having been tried in Pennsylvania even though sentence by Tennessee court had provided that such sentence was to commence after release from federal prison. State ex rel. Crist v. Bomar, 211 Tenn. 420, 365 S.W.2d 295, 1963 Tenn. LEXIS 362 (1963).

This section does not entitle a defendant to credit on his existing sentence where he escaped and accrued jail time in a foreign jurisdiction resisting extradition. State v. Abbott, 617 S.W.2d 172, 1981 Tenn. Crim. App. LEXIS 370 (Tenn. Crim. App. 1981); State v. Silva, 680 S.W.2d 485, 1984 Tenn. Crim. App. LEXIS 2526 (Tenn. Crim. App. 1984).

11. Time Spent in Out-of-State Jail.

Where defendant's incarceration in another state was due to charges brought by that state and not for any reason arising out of or related in any manner to his Tennessee charges for burglary and escape, the trial court properly denied him credit on either of his sentences for the time spent in the other state's custody. Majeed v. State, 621 S.W.2d 153, 1981 Tenn. Crim. App. LEXIS 368 (Tenn. Crim. App. 1981).

12. Time Spent in Mental Institutions.

Defendant was entitled to credit for time spent in state mental hospital on sentence imposed for second degree murder where after being charged for murder he was adjudged insane and committed for 11 years and thereafter sentenced on plea of guilty. Marsh v. Henderson, 221 Tenn. 42, 424 S.W.2d 193, 1968 Tenn. LEXIS 445 (1968); State v. Abbott, 617 S.W.2d 172, 1981 Tenn. Crim. App. LEXIS 370 (Tenn. Crim. App. 1981).

13. No Implied Pardon.

Because a defendant's sentence commences “on the day on which the defendant legally comes into the custody of the sheriff for execution of the judgment of imprisonment,” the words that defendant's sentence “be executed immediately” was surplusage, and the mere surrender of a prisoner convicted in state court, to federal jurisdiction, did not constitute an implied pardon of his state convictions. State v. Brady, 671 S.W.2d 863, 1984 Tenn. Crim. App. LEXIS 2310 (Tenn. Crim. App. 1984).

14. Presence of Defendant.

It is not necessary for defendant to be present in court for this section to be invoked granting credit for time in jail. Layman v. State, 3 Tenn. Crim. App. 550, 464 S.W.2d 331, 1970 Tenn. Crim. App. LEXIS 407 (Tenn. Crim. App. 1970).

15. Supreme Court's Power.

Supreme court is not limited in its power to allow credit for time served in jail after trial but may also allow credit for such time spent in jail pending arraignment and trial. Douglass v. State, 205 Tenn. 646, 330 S.W.2d 8, 1959 Tenn. LEXIS 404 (1959).

Under amended statute defendant was entitled to credit on his sentence for time spent in jail and Supreme court would so modify judgment. Norton v. State, 217 Tenn. 265, 397 S.W.2d 183, 1965 Tenn. LEXIS 542 (1965).

16. Determination of Credit.

Failure of the trial court to credit the inmate with the credits mandated under T.C.A. § 40-23-101(c) contravened the requirements of that statute and resulted, therefore, in an illegal sentence, a historically cognizable claim for habeas corpus relief; moreover, in accordance with T.C.A. § 29-21-105, the judgment forms supported the inmate's claim that he was erroneously deprived of pretrial jail credits in contravention of § 40-23-101(c) and the court surmised from the forms that the inmate was incarcerated at the same time on the offenses that led to the convictions of aggravated burglary and robbery. Therefore, the inmate was entitled to full pretrial jail credit on both judgment forms, and although T.C.A. § 40-23-101(c) empowered the trial court to award pretrial jail credits, the habeas corpus court, by virtue of its power to correct sentencing illegality, had the power to order the award of pretrial jail credits under the circumstances presented. Tucker v. Morrow, 335 S.W.3d 116, 2009 Tenn. Crim. App. LEXIS 975 (Tenn. Crim. App. Dec. 1, 2009), rehearing denied, Tucker v. State, — S.W.3d —, 2009 Tenn. Crim. App. LEXIS 1081 (Tenn. Crim. App. Dec. 17, 2009), overruled, State v. Reed, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 224 (Tenn. Crim. App. Mar. 29, 2016).

T.C.A. § 40-23-101 mandates that the trial court note on the judgment of conviction the number of days a defendant has been in confinement from arraignment to sentencing for the charged offense, but the statute does not require the trial court to note post-judgment jail credit on a judgment of conviction because the last sentence of § 40-23-101(c) addresses credit earned by a defendant from the time of conviction to sentencing, allowing a defendant the benefit of additional days in confinement after a conviction but before sentencing. Yates v. Parker, 371 S.W.3d 152, 2012 Tenn. Crim. App. LEXIS 29 (Tenn. Crim. App. Jan. 13, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 242 (Tenn. Apr. 12, 2012).

Tennessee Claims Commission properly dismissed an inmate's complaint for lack of subject matter jurisdiction because the statutory scheme did not grant a private right of action for the State's negligent deprivation; the inmate's claim that the State failed to comply with statutes in calculating his sentence fell within a claim for negligent deprivation of statutory rights, and he cited no cases holding that a claim involving a duty conferred by statute fell within § 9-8-307 (a)(1)(E). Mosley v. State, 475 S.W.3d 767, 2015 Tenn. App. LEXIS 518 (Tenn. Ct. App. June 10, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 982 (Tenn. Nov. 24, 2015).

Trial court did not err in dismissing an inmate's complaint because the Tennessee Department of Correction (TDOC) properly calculated the inmate's sentence; the TDOC cannot apply sentence credits to the inmate's sentence because the statute directs the criminal court, not the TDOC, to award pretrial jail credits. Rayner v. Tenn. Dep't of Corr., — S.W.3d —, 2017 Tenn. App. LEXIS 470 (Tenn. Ct. App. July 13, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 802 (Tenn. Nov. 16, 2017).

Defendant's contention that he was entitled to the time he served in the Tennessee Department of Correction (TDOC) on a probation violation as pretrial jail credit on the instant case was rejected because defendant's sentences were not concurrent as the probation violation sentence had expired prior to defendant's plea in the instant case and therefore he had no sentences not yet fully served at the time he was sentenced in the instant case. In addition, defendant's time in TDOC did not arise out of the instant case because even if defendant had posted bond in the instant case after his transport to TDOC on the probation violation, he would not have been released from TDOC. State v. Bly, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 31 (Tenn. Crim. App. Jan. 23, 2020).

Defendant argued that the case should be remanded for entry of a corrected judgment reflecting jail credits under T.C.A. § 40-23-101 for the time he was incarcerated after the expiration of his sentences in the 2004 cases, but the court held that the probationary period in his 2004 cases remained tolled during the pendency of the November 2015 warrant. State v. Myatt, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 34 (Tenn. Crim. App. Jan. 24, 2020).

17. Miscellaneous.

Dismissal of a motion to correct sentences was proper because the movant's sentences having been fully served rendered the motion to correct any illegality in the failure to award pretrial jail credits moot. State v. Brown, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 983 (Tenn. Crim. App. Oct. 29, 2014), aff'd, 479 S.W.3d 200, 2015 Tenn. LEXIS 933 (Tenn. Dec. 2, 2015).

Because the time defendant served in Missouri did not arise out of the offenses he committed in Tennessee, the trial court acted without authority when it awarded defendant jail credit against his Tennessee sentences for his incarceration in Missouri. State v. Morgan, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 746 (Tenn. Crim. App. Sept. 29, 2016).

18. Habeas Corpus Relief Unavailable.

Habeas court properly denied petitioner habeas corpus relief due to the denial of pretrial and post-judgment jail credits because although it could affect the length of time petitioner was incarcerated, the failure to award post-judgment jail credit did not render the sentence illegal. Anderson v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 78 (Tenn. Crim. App. Feb. 5, 2016).

19. Illegal Sentence.

Former inmate was not entitled to relief from an expired illegal sentence because (1) Tenn. R. Crim. P. 36.1 did not expand the relief available for illegal sentence claims to include correcting expired illegal sentences, as such relief was traditionally available by way of habeas corpus, requiring a petitioner to be in custody, and (2) the former inmate's motion alleging a failure to award pretrial jail credit stated no colorable claim for relief from an illegal sentence, as this did not render the sentence illegal. State v. Brown, 479 S.W.3d 200, 2015 Tenn. LEXIS 933 (Tenn. Dec. 2, 2015).

20. Appellate Jurisdiction.

Defendant was not entitled to relief on appeal because, although defendant complained that the trial court did not award defendant all defendant's due jail credit, the proper method for defendant to address post-judgment jail credit was through the Tennessee Uniform Administrative Procedures Act, T.C.A. § 4-5-101 et. seq., rather than an appeal to the intermediate appellate court, because the Tennessee Department of Corrections was tasked with calculating defendant's sentence expiration date and defendant's release eligibility date. State v. Lester, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 22 (Tenn. Crim. App. Jan. 17, 2017).

21. Habeas Corpus Relief Available.

Habeas corpus relief is available when the sentence under which a petitioner is held has expired; a flat rule that habeas corpus could never be used to address a denial of pretrial jail credit would defeat a petition filed by an incarcerated petitioner whose sentence would have expired had the pretrial jail credit been properly awarded. Anderson v. Washburn, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 79 (Tenn. Crim. App. Feb. 5, 2019).

Trial court erred in denying petitioner's application for a writ of habeas corpus relief because petitioner stated entitlement to habeas corpus relief in the form of the application of pretrial jail credit, and he had no direct appeal avenue to challenge the denial of pretrial jail credit; the trial court awarded pretrial jail credit, but there was no indication on the judgment forms that petitioner was credited for the 13 days he was detained in the juvenile court detention center. Anderson v. Washburn, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 79 (Tenn. Crim. App. Feb. 5, 2019).

Properly-filed petition for writ of habeas corpus remains a viable avenue for relief on a claim that the trial court failed to award pretrial jail credit as so long as the petitioner makes the required showing from the face of the record. Anderson v. Washburn, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 79 (Tenn. Crim. App. Feb. 5, 2019).

40-23-102. Defendant in custody at time of judgment.

Where the judgment of the court is that the defendant be imprisoned, the time for confinement, if the defendant is in jail, shall begin to run from the day of final judgment.

C. Supp. 1950, § 11761.1; T.C.A. (orig. ed.), § 40-3101.

40-23-103. Sheriff to commit defendant.

It is the duty of the sheriff in whose custody the defendant is at the rendition of the judgment, or afterwards legally comes, to execute the judgment of imprisonment by committing the defendant, as soon as possible, to jail, or to the warden of the penitentiary, according to the exigency of the writ.

Code 1858, § 5275; Shan., § 7251; Code 1932, § 11857; T.C.A. (orig. ed.), § 40-3103.

Cross-References. Commitment to jail pending removal to penitentiary, § 41-4-103.

Failure to perform duties, § 39-16-402.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 33.14.

NOTES TO DECISIONS

1. Commencement of Sentence.

T.C.A. § 40-23-103 and § 40-23-101, providing that the sheriff shall commit a defendant to jail as soon as possible after the rendition of the judgment and providing that the sentence shall commence on the day defendant legally comes into custody of the sheriff, are not in conflict, since T.C.A. § 40-23-101 specifically provides that it will not interfere with the former. State v. Walker, 905 S.W.2d 554, 1995 Tenn. LEXIS 430 (Tenn. 1995), superseded by statute as stated in, State v. McKnight, — S.W.3d —, 1999 Tenn. Crim. App. LEXIS 779 (Tenn. Crim. App. Aug. 5, 1999), superseded by statute as stated in, State v. McKnight, 51 S.W.3d 559, 2001 Tenn. LEXIS 580 (Tenn. 2001).

40-23-104. Sentence to workhouse for felony term — Removal by trial judge.

In all cases where any person is convicted of a felony, and sentenced to six (6) years or less, the court, in its discretion, may order the person confined in the county workhouse for the term of the sentence. The trial judge shall have the power to order the removal of the prisoner from the county workhouse to the department of correction whenever, in the judge's opinion, the prisoner is being treated in a brutal or inhuman manner, or when it appears to the judge that the physical condition of the prisoner is such that working on the roads is deleterious to the prisoner's health.
Whenever any prisoner is confined to a county workhouse under provisions of this section, the state shall pay the costs of incarceration of the prisoner in accordance with title 41, chapter 8.

Acts 1915, ch. 107, § 1; Shan., § 7207a1; Code 1932, § 11793; C. Supp. 1950, § 11793; Acts 1973, ch. 354, § 1; 1977, ch. 404, § 3; T.C.A. (orig. ed.), § 40-3105; Acts 1986, ch. 744, §§ 1, 2.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

Cross-References. Transfer from workhouse to department of correction, § 41-2-121.

Working on roads, § 41-2-123.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 32.190, 32.200.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 43.

Law Reviews.

The Indeterminate Sentence Law in Tennessee, 25 Tenn. L. Rev. 366.

Attorney General Opinions. Applicability, OAG 90-66 (6/12/90).

NOTES TO DECISIONS

1. Sentences Covered.

Where defendant is convicted of offense, such as housebreaking and larceny, which carries maximum punishment of over five years but where jury sets punishment at five years or less the trial judge has the jurisdiction under this section to order him confined to the county workhouse rather than the penitentiary. Graham v. State, 198 Tenn. 276, 279 S.W.2d 265, 1955 Tenn. LEXIS 371 (1955).

2. No Power to Increase Sentence on Transfer.

This section does not confer on the trial judge the power of lengthening sentences by changing the place of imprisonment from the penitentiary to the county workhouse. Gilliam v. State, 174 Tenn. 388, 126 S.W.2d 305, 1938 Tenn. LEXIS 103 (1939).

3. Effect of Transfer on Parole.

Where the sentence of the defendant was assessed by the jury as confinement in the penitentiary for not more than three years and the trial judge ordered the defendant transferred to the county workhouse “for a period of three years,” the defendant was entitled to the same good time allowances and right to parole as he would have been if he had served his sentence in the penitentiary. Gilliam v. State, 174 Tenn. 388, 126 S.W.2d 305, 1938 Tenn. LEXIS 103 (1939).

Where a prisoner is sentenced to the penitentiary and transferred to the county workhouse it will be presumed that his conduct is such that he is entitled to good conduct credits if the workhouse officials do not keep records of the conduct of prisoners. Gilliam v. State, 174 Tenn. 388, 126 S.W.2d 305, 1938 Tenn. LEXIS 103 (1939).

4. Jurisdiction to Grant Request.

Application to serve sentence in local workhouse or jail must be made to the trial court while the defendant is still within the jurisdiction of such court. Grindstaff v. State, 214 Tenn. 58, 377 S.W.2d 921, 1964 Tenn. LEXIS 449 (1964).

5. —Supreme Court.

Appeal from conviction for grand larceny, driving recklessly and leaving the scene of an accident, was remanded by supreme court with direction that sentence be served in county workhouse to enable defendant to undergo examination to determine whether amnesia prevented him from knowing right from wrong. Thomas v. State, 201 Tenn. 645, 301 S.W.2d 358, 1957 Tenn. LEXIS 345 (1957).

Petition, praying that defendant, convicted of involuntary manslaughter, be permitted to serve his sentence in the county jail rather than state penitentiary would not be granted on appeal; authority to grant such request being in the trial court, which lost jurisdiction upon appeal. Grindstaff v. State, 214 Tenn. 58, 377 S.W.2d 921, 1964 Tenn. LEXIS 449 (1964).

Application to serve sentence in county workhouse or jail must be made to the trial court while that court has jurisdiction of the matter; supreme court does not have such discretion. Rodifer v. State, 214 Tenn. 252, 379 S.W.2d 763, 1964 Tenn. LEXIS 471 (1964).

6. Good Time Credits.

An inmate serving a penitentiary sentence in the workhouse is still serving a penitentiary sentence and is entitled to the same good and honor time credits and parole considerations which he would receive if confined in the state penitentiary. State v. McCammon, 623 S.W.2d 133, 1981 Tenn. Crim. App. LEXIS 380 (Tenn. Crim. App. 1981).

40-23-105. Felons sentenced to jail compelled to hard labor.

All persons convicted of a felony, whose imprisonment has been by the jury commuted to imprisonment in the county jail, shall be compelled to work out the term of imprisonment at hard labor in the county workhouse in the county where convicted.

Acts 1881, ch. 105, § 1; Shan., § 7207; Code 1932, § 11792; T.C.A. (orig. ed.), § 40-3106.

Cross-References. Working on roads, § 41-2-123.

NOTES TO DECISIONS

1. Constitutionality.

This provision does not deprive of liberty without judgment of defendant's peers. Durham v. State, 89 Tenn. 723, 18 S.W. 74, 1890 Tenn. LEXIS 94 (1891).

2. Purpose.

The intention of this section was to place a felony convict, whose imprisonment is commuted to imprisonment in the county jail, on the same footing as a misdemeanor convict, so that he may be sent to the workhouse to work out the fine and costs. Eaton v. State, 83 Tenn. 200, 1885 Tenn. LEXIS 42 (1885).

3. Labor Prior to Conviction.

A rule is void, made by the (former) county court or workhouse commissioners, which provides for crediting the prisoner for labor voluntarily done before conviction while in jail awaiting trial. In re Vanvaver, 88 Tenn. 334, 12 S.W. 786, 1889 Tenn. LEXIS 55 (1890).

40-23-106. Notice to commissioner of convicts for penitentiary.

At the adjournment of any court, or upon final disposition of a case prior to the adjournment of the court, it is the duty of the clerk of the court to notify the commissioner of correction of the number of convicts for the penitentiary, and that notification shall be made within five (5) days.

Acts 1883, ch. 171, § 28; impl. am. Acts 1895 (Ex. Sess.), ch. 7, §§ 5, 20; impl. am. Acts 1915, ch. 20, §§ 2, 9; Shan., § 7239; impl. am. Acts 1919, ch. 39, § 2; impl. am. Acts 1923, ch. 7, § 42; Code 1932, § 11845; Acts 1941, ch. 14, § 1; C. Supp. 1950, § 11845; impl. am. Acts 1955, ch. 102, § 1; T.C.A. (orig. ed.), § 40-3107.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

40-23-107. Safekeeping of inmates — Transfers to penitentiary.

In counties where, because of the insufficiency of the county jail, or for any other cause, the court may be of opinion that the safekeeping of the inmates may require it, the court may order the immediate removal of inmates to the penitentiary or to the nearest branch prison, at the cost of the state, before the expiration of the time allowed to remove the inmates.
The inmates shall, as soon as possible after conviction, be safely removed and conveyed by the person appointed by the commissioner of correction for that purpose, to the penitentiary, or to one (1) of the branch prisons.

Acts 1883, ch. 171, § 28; impl. am. Acts 1895 (Ex. Sess.), ch. 7, § 10; impl. am. Acts 1915, ch. 20, §§ 2, 9; Shan., §§ 7240, 7241; impl. am. Acts 1919, ch. 39, § 2; impl. am. Acts 1923, ch. 7, § 42; Code 1932, §§ 11846, 11847; impl. am. Acts 1955, ch. 102, § 1; T.C.A. (orig. ed.), §§ 40-3108, 40-3109.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

Cross-References. Arrest of parole violator, fees for transporting to prison, § 40-28-121.

Designation of escort by commissioner, § 41-21-101.

Failure of official to perform duties, § 39-16-402.

Payment for transporting prisoners, § 40-25-111.

Safekeeping of prisoners, sufficient jails, § 41-4-121.

Transportation appropriations by counties having no jail, § 41-4-127.

NOTES TO DECISIONS

1. Improper Transfer.

Contention raised upon petition under Post-Conviction Procedure Law after appeal from initial conviction had been disposed of to effect that defendant was improperly transferred to penitentiary before his appeal was determined was without merit and furthermore was moot. Burt v. State, 2 Tenn. Crim. App. 408, 454 S.W.2d 182, 1970 Tenn. Crim. App. LEXIS 483 (Tenn. Crim. App. 1970).

2. Proper Transfer.

Mere fact that convicted defendant was removed to penitentiary was not sufficient to establish that his right of appeal was thereby handicapped especially when his court appointed attorneys testified that their efforts in appealing the conviction were not so hampered. Johnson v. Russell, 4 Tenn. Crim. App. 113, 469 S.W.2d 511, 1971 Tenn. Crim. App. LEXIS 489 (Tenn. Crim. App. 1971).

Trial judge acted properly in ordering removal of convicted rapist, for safekeeping reasons, from county jail to state penitentiary pending appeal. Chisom v. State, 539 S.W.2d 831, 1976 Tenn. Crim. App. LEXIS 386 (Tenn. Crim. App. 1976).

40-23-108. Order specifying number of guards for removal of prisoners.

It is the duty of the criminal and circuit judges of this state, at the adjournment of their courts or earlier, if the number of persons convicted justify it, to make an order specifying the number of guards the sheriff shall have in conveying to the supreme court, or to the penitentiary, the person or persons convicted, in case the person so appointed for that purpose by the commissioner of correction fails to remove them as provided by law.

Acts 1875, ch. 29; impl. am. Acts 1883, ch. 171, § 28; impl. am. Acts 1895 (Ex. Sess.), ch. 7, § 10; impl. am. Acts 1915, ch. 20, §§ 2, 9; Shan., § 7243; impl. am. Acts 1919, ch. 39, § 2; impl. am. Acts 1923, ch. 7, § 42; Code 1932, § 11850; impl. am. Acts 1955, ch. 102, § 1; T.C.A. (orig. ed.), § 40-3111.

Cross-References. Designation of escort by commissioner, § 41-21-101.

Failure of official to perform duties, § 39-16-402.

40-23-109. Warrant to summon aid in removal of prisoners.

The judge or clerk of the court may, by warrant in writing, empower the sheriff charged with the conveyance of the convict, in all counties and places through which the sheriff may pass with the prisoner, to summon or impress such and so many persons, not exceeding two (2) for each convict, except as otherwise provided in this chapter, and the conveyances or modes of conveyance as shall be necessary for the safe conveyance of the prisoner, which warrant the sheriff is required to execute, and to the sheriff's commands in virtue thereof all persons are to pay due obedience.

Code 1858, § 5265 (deriv. Acts 1829, ch. 38, § 3); Shan., § 7244; mod. Code 1932, § 11851; T.C.A. (orig. ed.), § 40-3112.

Cross-References. Arrest of parole violator, fees for transporting to prison, § 40-28-121.

Limitation on sheriff's fees, § 40-28-112.

Payment for transporting prisoners, § 40-25-111.

Powers of warden in taking convict to and from court, § 41-21-307.

Transportation appropriations by counties having no jail, § 41-4-127.

Law Reviews.

Justice on the Tennessee Frontier: The Williamson County Circuit Court 1810-1820, 32 Vand. L. Rev. 413.

40-23-110. Summons of additional guards.

If, by any attempt to rescue a convict on the way or by any other unforeseen danger, it becomes essentially necessary for the safe conveyance of the convict to summon a stronger guard than the sheriff conducting the prisoner may have been authorized to summon, it is lawful for the sheriff to summon an additional guard or guards as shall be necessary for that purpose. The additional guard or guards shall be paid as other guards, on the oath of the sheriff that the additional guard or guards were essentially necessary, and the officer making the payment being satisfied with the truth of the oath.

Code 1858, § 5267 (deriv. Acts 1829, ch. 38, § 4); Shan., § 7245; Code 1932, § 11852; T.C.A. (orig. ed.), § 40-3113.

Cross-References. Arrest of parole violator, fees for transporting to prison, § 40-28-121.

Limitation on sheriff's fees, § 40-28-112.

Payment for transporting prisoners, § 40-25-111.

Permitting or facilitating escape, § 39-16-607.

Transportation appropriations by counties having no jail, § 41-4-127.

Law Reviews.

Justice on the Tennessee Frontier: The Williamson County Circuit Court 1810-1820, 32 Vand. L. Rev. 413.

40-23-111. Qualifications of guard.

The additional guard or guards that the sheriff and other officers are authorized to summon to assist in conveying convicts to the penitentiary, or to and from the penitentiary, and to prevent a rescue, shall consist of able bodied persons, who shall not be under eighteen (18) years of age.

Code 1858, § 5593 (deriv. Acts 1835-1836, ch. 63, § 1); Shan., § 7634; Code 1932, § 12263; T.C.A. (orig. ed.), § 40-3114.

40-23-112. Juror disqualified to act as guard.

The sheriff shall not summon any person as a guard to assist in taking the prisoner to the penitentiary, whom the person, as a juror, convicted.

Code 1858, § 5268; Shan., § 7246; Code 1932, § 11853; T.C.A. (orig. ed.), § 40-3115.

40-23-113. Report by sheriff to department of correction.

Whenever any person sentenced to the custody of the department of correction has been detained in one (1) or more local jails or workhouses pending arraignment, trial, sentencing or appeal, the sheriff shall prepare and transmit with the defendant at the time of commitment to the department a short report, furnishing the information pertaining to the defendant's behavior while in local custody as may be requested by the department. Notwithstanding any other provision of the law to the contrary, no such person sentenced to the custody of the department shall be committed or conveyed to the department unaccompanied by the completed report required by this section.

Code 1858, § 5263 (deriv. Acts 1829, ch. 38, § 1); Shan., § 7238; Code 1932, § 11844; T.C.A. (orig. ed.), § 40-3116; Acts 1985 (1st Ex. Sess.), ch. 5, § 28.

Law Reviews.

Justice on the Tennessee Frontier: The Williamson County Circuit Court 1810-1820, 32 Vand. L. Rev. 413.

NOTES TO DECISIONS

1. Release Eligibility Date.

Claims for post-judgment jail credit were not cognizable habeas corpus claims because the proper avenue to address post-judgment jail credit for prisoners was through the Tennessee Department of Correction (TDOC) administratively; under the Sentencing Act, T.C.A. § 40-35-501(c) and T.C.A. §§ 40-23-113 and 41-21-236, the TDOC had authority over its prisoners regardless of whether they were housed in a local detention facility, including the authority to compute and apply post-judgment jail credit. Yates v. Parker, 371 S.W.3d 152, 2012 Tenn. Crim. App. LEXIS 29 (Tenn. Crim. App. Jan. 13, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 242 (Tenn. Apr. 12, 2012).

2. Sheriff to Submit Report.

Because defendant was detained in the local jail prior to defendant's sentencing, the local sheriff was required to submit a report to the Tennessee Department of Corrections that included information pertaining to defendant's behavior while in local custody. State v. Lester, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 22 (Tenn. Crim. App. Jan. 17, 2017).

40-23-114. Death by lethal injection — Election of electrocution — Electrocution as alternative method.

For any person who commits an offense for which the person is sentenced to the punishment of death, the method for carrying out this sentence shall be by lethal injection.
Any person who commits an offense prior to January 1, 1999, for which the person is sentenced to the punishment of death may elect to be executed by electrocution by signing a written waiver waiving the right to be executed by lethal injection.
The department of correction is authorized to promulgate necessary rules and regulations to facilitate the implementation of this section.
If lethal injection or electrocution is held to be unconstitutional by the Tennessee supreme court under the Constitution of Tennessee, or held to be unconstitutional by the United States supreme court under the United States Constitution, or if the United States supreme court declines to review any judgment holding lethal injection or electrocution to be unconstitutional under the United States Constitution made by the Tennessee supreme court or the United States court of appeals that has jurisdiction over Tennessee, or if the Tennessee supreme court declines to review any judgment by the Tennessee court of criminal appeals holding lethal injection or electrocution to be unconstitutional under the United States or Tennessee constitutions, all persons sentenced to death for a capital crime shall be executed by any constitutional method of execution. No sentence of death shall be reduced as a result of a determination that a method of execution is declared unconstitutional under the Constitution of Tennessee or the Constitution of the United States. In any case in which an execution method is declared unconstitutional, the death sentence shall remain in force until the sentence can be lawfully executed by any valid method of execution.
For any person who commits an offense or has committed an offense for which the person is sentenced to the punishment of death, the method of carrying out the sentence shall be by lethal injection unless subdivision (e)(1) or (e)(2) is applicable. If subdivision (e)(1) or (e)(2) is applicable, the method of carrying out the sentence shall be by electrocution. The alternative method of execution shall be used if:
1. Lethal injection is held to be unconstitutional by a court of competent jurisdiction in the manner described in subsection (d); or
2. The commissioner of correction certifies to the governor that one (1) or more of the ingredients essential to carrying out a sentence of death by lethal injection is unavailable through no fault of the department.

Acts 1913 (1st Ex. Sess.), ch. 36, § 1; Shan., §§ 7204, 7204a1; mod. Code 1932, § 11790; T.C.A. (orig. ed.), § 40-3117; Acts 1998, ch. 982, §§ 1-5; 2000, ch. 614, §§ 1-5; 2014, ch. 1014, § 1.

Compiler's Notes. Acts 2014, ch. 1014, § 2 provided that the act, which added subsection (e), shall be known and may be cited as “The Capital Punishment Enforcement Act.”

Cross-References. Appeal and review of death sentence, § 39-13-206.

Notice of penalty to be sought for capital offenses, § 39-13-208.

Order of execution after arrest of condemned prisoner, § 40-23-119.

Sentencing for first degree murder, § 39-13-204.

Law Reviews.

Defending Life in Tennessee Death Penalty Cases (Roy B. Herron), 51 Tenn. L. Rev. 681 (1984).

The Electrocution of William Tines (Donald F. Paine), 49 Tenn. B.J. 23 (2013).

Theology in the Jury Room: Religious Discussion as “Extra Material” in the Course of Capital Punishment Deliberations, 55 Vand. L. Rev. 127 (2002).

Attorney General Opinions. Constitutionality of change to lethal injection as means of execution, 98-068 (3/25/98); 98-074 (3/31/98).

Electrocution may be substituted as a method of execution only in the event that lethal injection is declared unconstitutional by the United States Supreme Court, Tennessee Supreme Court, or other appellate court specified in T.C.A. § 40-23-114(d), OAG 07-151 (11/13/07).

Amendment by Senate Bill 2580 (Acts 2014, ch. 1014) permitting use of electrocution in executions if the ingredients required for execution by lethal injection are unavailable is constitutionally defensible under current authority. OAG 14-29, 2014 Tenn. AG LEXIS 30 (3/12/14).

NOTES TO DECISIONS

1. In General.

This section merely changed the method or procedure for execution. State ex rel. Dawson v. Bomar, 209 Tenn. 567, 354 S.W.2d 763, 1962 Tenn. LEXIS 388 (1962), cert. denied, Dawson v. Bomar, 370 U.S. 962, 82 S. Ct. 1620, 8 L. Ed. 2d 829, 1962 U.S. LEXIS 1058 (1962).

T.C.A. § 40-23-114 now provides for lethal injection as the default manner of execution in all cases in which a defendant has been sentenced to death. State v. Morris, 24 S.W.3d 788, 2000 Tenn. LEXIS 391 (Tenn. 2000), cert. denied, Morris v. Tennessee, 531 U.S. 1082, 121 S. Ct. 786, 148 L. Ed. 2d 682, 2001 U.S. LEXIS 301 (2001), cert. denied, Brown v. Utah, 148 L. Ed. 2d 676, 121 S. Ct. 778, 531 U.S. 1079, 2001 U.S. LEXIS 250 (2001).

Electrocution is a constitutionally permissible method of execution. Black v. Bell, 181 F. Supp. 2d 832, 2001 U.S. Dist. LEXIS 22680 (M.D. Tenn. 2001), aff'd, 664 F.3d 81, 2011 FED App. 313P, 2011 U.S. App. LEXIS 24798 (6th Cir. Dec. 15, 2011).

2. Constitutionality.

Tennessee's lethal injection protocol under T.C.A. § 40-23-114 did not amount to cruel and unusual punishment under U.S. Const. amend. 8 and Tenn. Const. art. I, § 16 because there is overwhelming evidence that lethal injection, which is commonly thought to be the most humane form of execution, is consistent with contemporary standards of decency; further, although injection of two of the drugs would alone cause extreme pain, a dosage of a third would cause nearly immediate unconsciousness and the inmate would feel no pain prior to death. Abdur'Rahman v. Bredesen, 181 S.W.3d 292, 2005 Tenn. LEXIS 828 (Tenn. 2005), cert. denied, 547 U.S. 1147, 126 S. Ct. 2288, 164 L. Ed. 2d 813, 2006 U.S. LEXIS 3970 (2006).

Inmate failed to show that Tennessee's lethal injection protocol violated due process under U.S. Const. amend. XIV, or Tenn. Const. art. I, § 1 because the inmate failed to cite authority that the adoption of the lethal injection protocol violated procedural due process and the method of lethal injection was created by the legislature and that the implementation of lethal injection was left to the Department of Correction pursuant to T.C.A. § 40-23-114(c); further, the Department was not subject to the notice and approval provisions of the Uniform Administrative Procedures Act (UAPA), T.C.A. § 4-5-101 et seq., because Department procedures were not “rules” as defined by the UAPA because they fit squarely into the exceptions under T.C.A. § 4-5-102(10)(A), (G) (now § 4-5-102(12)). Abdur'Rahman v. Bredesen, 181 S.W.3d 292, 2005 Tenn. LEXIS 828 (Tenn. 2005), cert. denied, 547 U.S. 1147, 126 S. Ct. 2288, 164 L. Ed. 2d 813, 2006 U.S. LEXIS 3970 (2006).

Tennessee officials were entitled to dismissal of a death-sentenced inmate's 42 U.S.C. § 1983 action challenging T.C.A. § 40-23-114, which permitted the inmate to choose the method of execution, because the existence of an option that the inmate might choose to exercise, or might choose not to exercise, standing alone, did not constitute cruel and unusual punishment under U.S. Const. amend. 8. Johnson v. Little, 457 F. Supp. 2d 839, 2006 U.S. Dist. LEXIS 80099 (M.D. Tenn. 2006).

Tennessee officials were entitled to dismissal of a death-sentenced inmate's 42 U.S.C. § 1983 action challenging T.C.A. § 40-23-114, which permitted the inmate to choose the method of execution, because such choice did not violate the inmate's right to freedom of religion guaranteed by U.S. Const. amend. 1; the inmate was not required to make any choice or to participate in the selection of the method of execution. Johnson v. Little, 457 F. Supp. 2d 839, 2006 U.S. Dist. LEXIS 80099 (M.D. Tenn. 2006).

Tennessee officials were entitled to dismissal of a death-sentenced inmate's 42 U.S.C. § 1983 action challenging T.C.A. § 40-23-114, which permitted the inmate to choose the method of execution, because such choice did not make the death penalty punishment more burdensome or otherwise violate the ex post facto clause of U.S. Const. art. I, § 10. Johnson v. Little, 457 F. Supp. 2d 839, 2006 U.S. Dist. LEXIS 80099 (M.D. Tenn. 2006).

Death row prisoner's § 1983 challenge to lethal injection protocol under T.C.A. § 40-23-114 as violative of the eighth amendment was time-barred under the one-year limitations period of T.C.A. § 28-3-104 because the time had expired under either the date lethal injection was established as a method of execution or the date when that method was established as the state's presumptive method of execution. West v. Ray, 401 Fed. Appx. 72, — F.3d —, 2010 FED App. 688N, 2010 U.S. App. LEXIS 23043 (6th Cir. Nov. 4, 2010).

Unless lethal injection is held to be unconstitutional by a court of competent jurisdiction or the Commissioner of the Tennessee Department of Correction certifies to the governor that an essential lethal injection ingredient is unavailable, any challenge to the constitutionality of electrocution is not ripe for review. Duncan v. Carpenter, — F. Supp. 2d —, 2014 U.S. Dist. LEXIS 110595 (M.D. Tenn. Aug. 11, 2014).

Plain language of the Capital Punishment Enforcement Act established that none of defendants would ever become subject to execution by electrocution unless one of two statutory contingencies actually occurred, and defendants did not show that either contingency had occurred; the causes of action challenging the constitutionality of electrocution were not ripe for judicial decision because they involved a method of execution that did not presently apply to defendants and would never apply to them unless one of the two statutory contingencies occurred in the future. West v. Schofield, 468 S.W.3d 482, 2015 Tenn. LEXIS 548 (Tenn. July 2, 2015).

Allowing the department of correction to establish a protocol for the implementation of lethal injection does not constitute an unconstitutional delegation of legislative authority. State v. Hawkins, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 700 (Tenn. Crim. App. Aug. 28, 2015), aff'd, 519 S.W.3d 1, 2017 Tenn. LEXIS 272 (Tenn. May 1, 2017), cert. denied, Hawkins v. Tennessee, 199 L. Ed. 2d 288, 138 S. Ct. 388, 2017 U.S. LEXIS 6432 (U.S. Oct. 30, 2017).

3. Power to Fix Sentence.

Under other sections, the power to fix punishment for first degree murder is with the trial jury, and it is prejudicial error to withhold it from such jury. Gohlston v. State, 143 Tenn. 126, 223 S.W. 839, 1920 Tenn. LEXIS 2 (1919).

4. Crimes Committed Prior to Act.

Sentence of hanging for murder committed prior to date of act changing punishment to electrocution was improper where sentence was made after date of act. Shipp v. State, 130 Tenn. 491, 172 S.W. 317, 1914 Tenn. LEXIS 49 (1914).

5. Death Sentence for Rape.

Failure of legislature to reapportion itself since 1901 had no bearing on validity of conviction of defendant tried for rape and sentenced to death by electrocution where rape had been punishable by death since 1871 and fact that this section was enacted at a time when the legislature had not reapportioned itself as required by Tenn. Const., art. II, § 4, was immaterial. State ex rel. Dawson v. Bomar, 209 Tenn. 567, 354 S.W.2d 763, 1962 Tenn. LEXIS 388 (1962), cert. denied, Dawson v. Bomar, 370 U.S. 962, 82 S. Ct. 1620, 8 L. Ed. 2d 829, 1962 U.S. LEXIS 1058 (1962).

Both the de facto doctrine and the doctrine of the avoidance of chaos and confusion apply to prevent the federal court from holding state statute authorizing death by electrocution for rape unconstitutional because of the alleged malapportionment of the legislature which passed it. Dawson v. Bomar, 322 F.2d 445, 1963 U.S. App. LEXIS 4125 (6th Cir. Tenn. 1963), cert. denied, 376 U.S. 933, 84 S. Ct. 705, 11 L. Ed. 2d 653, 1964 U.S. LEXIS 1757 (1964).

6. Electing Manner of Death.

A defendant who elects a certain means of death such as electrocution waives any constitutional challenge to the manner of executing the sentence. State v. Morris, 24 S.W.3d 788, 2000 Tenn. LEXIS 391 (Tenn. 2000), cert. denied, Morris v. Tennessee, 531 U.S. 1082, 121 S. Ct. 786, 148 L. Ed. 2d 682, 2001 U.S. LEXIS 301 (2001), cert. denied, Brown v. Utah, 148 L. Ed. 2d 676, 121 S. Ct. 778, 531 U.S. 1079, 2001 U.S. LEXIS 250 (2001).

40-23-115. Maintenance of death chamber.

The commissioner of correction shall ensure that a permanent and suitable death chamber is kept and maintained within a penitentiary of this state, as defined in § 41-1-101(b), and that an electrical apparatus, together with all necessary appliances sufficient for the infliction of punishment of death as provided in § 40-23-114, is kept and maintained in the death chamber.

Acts 1913 (1st Ex. Sess.), ch. 36, § 2; Shan., § 7204a2; mod. Code 1932, § 11791; T.C.A. (orig. ed.), § 40-3118; Acts 1985 (1st Ex. Sess.), ch. 5, § 15.

40-23-116. Manner of executing sentence of death — Witnesses.

In all cases in which the sentence of death has been passed upon any person by the courts of this state, it is the duty of the sheriff of the county in which the sentence of death has been passed to remove the person so sentenced to death from that county to the state penitentiary in which the death chamber is located, within a reasonable time before the date fixed for the execution of the death sentence in the judgment and mandate of the court pronouncing the death sentence. On the date fixed for the execution in the judgment and mandate of the court, the warden of the state penitentiary in which the death chamber is located shall cause the death sentence to be carried out within an enclosure to be prepared for that purpose in strict seclusion and privacy. The only witnesses entitled to be present at the carrying out of the death sentence are:
1. The warden of the state penitentiary or the warden's duly authorized deputy;
2. The sheriff of the county in which the crime was committed;
3. A priest or minister of the gospel who has been preparing the condemned person for death;
4. The prison physician;
5. Attendants chosen and selected by the warden of the state penitentiary as may be necessary to properly carry out the execution of the death sentence;
6. A total of seven (7) members of the print, radio and television news media selected in accordance with the rules and regulations promulgated by the department of correction. Those news media members allowed to attend any execution of a sentence of death shall make available coverage of the execution to other news media members not selected to attend;
7. 1. Immediate family members of the victim who are eighteen (18) years of age or older. Immediate family members shall include the spouse, child by birth or adoption, stepchild, stepparent, parent, grandparent or sibling of the victim; provided, that members of the family of the condemned prisoner may be present and witness the execution;
  2. Where there are no surviving immediate family members of the victim who are eighteen (18) years of age or older, the warden shall permit up to three (3) previously identified relatives or personal friends of the victim to be present and witness the execution;
8. One (1) defense counsel chosen by the condemned person; and
9. The attorney general and reporter, or the attorney general and reporter's designee.
No other person or persons than those mentioned in subsection (a) are allowed or permitted to be present at the carrying out of the death sentence. It is a Class C misdemeanor for the warden of the state penitentiary to permit any other person or persons than those provided for in subsection (a) to be present at the legal execution.
1. Photographic or recording equipment shall not be permitted at the execution site until the execution is completed, the body is removed, and the site has been restored to an orderly condition. However, the physical arrangement of the execution site shall not be disturbed.
2. A violation of subdivision (c)(1) is a Class A misdemeanor.
3. The department shall promulgate rules that establish criteria for the selection of news media representatives to attend an execution of a death sentence in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. In promulgating the rules, the department shall solicit recommendations from the Tennessee Press Association, the Tennessee Associated Press Managing Editors, and the Tennessee Association of Broadcasters. For each execution of a death sentence, applications for attendance shall be accepted by the department. When the number of applications require, lots to select news media representatives will then be drawn by the warden of the state penitentiary at which the death sentence is to be carried out. All drawings shall be conducted in open meetings and notice shall be properly given in accordance with § 4-5-203.
If the immediate family members of the victim choose to be present at the execution, they shall be allowed to witness the execution from an area that is separate from the area to which other witnesses are admitted. If facilities are not available to provide immediate family members with a direct view of the execution, the warden of the state penitentiary may broadcast the execution by means of a closed circuit television system to the area in which the immediate family members are located.

Acts 1909, ch. 500, § 1; Shan., § 7253a1; Code 1932, § 11859; T.C.A. (orig. ed.), § 40-3119; Acts 1985 (1st Ex. Sess.), ch. 5, § 16; 1989, ch. 591, § 113; 1994, ch. 675, §§ 1-3; 1997, ch. 133, §§ 1, 2; 2000, ch. 744, § 1; 2012, ch. 549, § 1.

Compiler's Notes. Acts 2012, ch. 549, § 2 provided that the act, which added subdivision (a)(7)(B), shall apply to all executions carried out on or after July 1, 2012.

Cross-References. Confidentiality of public records, § 10-7-504.

Death by lethal injection or electrocution, § 40-23-114.

Failure of official to perform duties, § 39-16-402.

Penalties for Class A and Class C misdemeanors, § 40-35-111.

Sentencing for first degree murder, § 39-13-204.

NOTES TO DECISIONS

1. Declaratory Judgment.

Chancery court properly dismissed defendant's declaratory judgment action seeking to enjoin his execution on the ground he met the criteria for intellectual disability because sovereign immunity barred the suit; defendant's allegations, in the absence of a claim that the statute being enforced was unconstitutional, were not sufficient to state a claim against the warden and Attorney General in their individual capacities for the purposes of granting relief to defendant. Payne v. Carpenter, — S.W.3d —, 2016 Tenn. App. LEXIS 556 (Tenn. Ct. App. Aug. 2, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 877 (Tenn. Nov. 16, 2016).

40-23-117. Death sentence stands if not carried out at scheduled time.

When, from any cause, an inmate sentenced to death has not been executed pursuant to the sentence, the sentence stands in full force, and shall be carried into execution by the court in which the inmate was tried.

Code 1858, § 5279; Shan., § 7259; Code 1932, § 11861; T.C.A. (orig. ed.), § 40-3121.

Cross-References. Death by lethal injection, § 40-23-114.

Grounds for relief, § 40-30-103.

Sentencing for first degree murder, § 39-13-204.

Stays of execution when petitioner is under sentence of death, § 40-30-120.

40-23-118. Warrant for apprehension of condemned inmate.

If such convict is at large, the court or any magistrate may issue a warrant for the convict's apprehension, and, if no good reason is shown for the convict's discharge, shall commit the convict to abide the order and sentence of the court.

Code 1858, § 5280; Shan., § 7260; Code 1932, § 11862; T.C.A. (orig. ed.), § 40-3122.

Cross-References. Persons whose compensation is contingent upon issuance or nonissuance are prohibited from issuing a search warrant, an arrest warrant or mittimus, § 40-5-106.

40-23-119. Order of execution after arrest of condemned prisoner.

Upon the convict being brought before the court, it shall inquire into the circumstances, and, if no legal reason exists against the execution of the sentence, shall order the warden of the state penitentiary in which the death chamber is located to execute the defendant on a day to be fixed by the court.

Code 1858, § 5281; impl. am. Acts 1909, ch. 500, § 1; Shan., § 7261; Code 1932, § 11863; T.C.A. (orig. ed.), § 40-3123; Acts 1985 (1st Ex. Sess.), ch. 5, § 17.

Chapter 24
Fines

40-24-101. Payment of fines — Manner.

When any court of this state, including municipal courts for violation of municipal ordinances, imposes a fine upon an individual, the court may direct as follows:
1. That the defendant pay the entire amount at the time sentence is pronounced;
2. That the defendant pay the entire amount at some later date;
3. That the defendant pay the fine in specified portions or installments at designated periodic intervals and that the portions be remitted to a designated official, who shall report to the court in the event of any failure to comply with the order; or
4. Where the defendant is sentenced to a period of probation as well as a fine, that payment of the fine be a condition of the sentence.
For the clerk's services in administering any court-approved plan authorizing payment of a fine by installments, the clerk of court shall be entitled to a fee of five percent (5%) of the total amount to be collected, not to exceed fifteen dollars ($15.00); provided, that in counties having a population of more than seven hundred thousand (700,000), according to the 1990 federal census or any subsequent federal census, the fee shall not exceed ten percent (10%) of the total amount to be collected, not to exceed fifteen dollars ($15.00). The clerk's fees shall be added to the defendant's bill of costs.

Acts 1972, ch. 729, § 1; T.C.A. §§ 40-3201, 40-3207; Acts 1987, ch. 135, § 1; 1995, ch. 456, § 10.

Compiler's Notes. For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Cross-References. Collection of funds on behalf of the state or local government, acceptance of checks, money orders, credit or debit cards, § 9-1-108.

Fees for installment or deferred payment plans for fines, § 8-21-401.

Municipality, general powers, § 6-2-201.

Payment of fees, fines, costs by credit card, § 8-21-107.

Power to enforce ordinances, § 6-4-302.

Property and privileges taxable, § 6-33-103.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 32.21, 32.22.

Law Reviews.

Criminal Injuries Compensation: A Primer (Richard W. Rucker), 23 No. 4 Tenn. B.J. 32 (1987).

Attorney General Opinions. Smyrna City Court: disposition of bond forfeitures, OAG 00-023 (2/15/00).

The board of probation and parole is authorized to condition parole on payment of fines but not criminal court costs, OAG 06-062 (4/5/06).

Payment of fines in installments; allocation of moneys paid into court. OAG 12-52, 2012 Tenn. AG LEXIS 52 (5/10/12).

NOTES TO DECISIONS

1. Interest.

A criminal fine does not bear interest in the absence of a statute specifically authorizing it. Owens v. State, 710 S.W.2d 518, 1986 Tenn. LEXIS 831 (Tenn. 1986).

40-24-102. Release of fines and forfeitures.

The several courts in which a cause is finally adjudged are authorized, either before or after final judgment, for good cause, to release the defendants, or any one (1) or more of them, from the whole or any part of fines or forfeitures accruing to the county or state.

Code 1858, § 5251; Shan., § 7226; Code 1932, § 11813; T.C.A. (orig. ed.), §§ 40-3201, 40-3202.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 32.21.

Tennessee Jurisprudence, 6A Tenn. Juris., Constitutional Law, § 31.

Law Reviews.

Criminal Law — Taxation of Court Costs, 17 Vand. L. Rev. 1572.

Attorney General Opinions. Discretion of judge to waive costs and fines when defendant declared indigent, OAG 99-197 (10/6/99).

NOTES TO DECISIONS

1. Time for Remission.

No remission of fines, imprisonment, and costs can be made at a subsequent term. State v. Dalton, 109 Tenn. 544, 72 S.W. 456, 1902 Tenn. LEXIS 92 (1903); Spencer v. State, 125 Tenn. 64, 140 S.W. 597, 1911 Tenn. LEXIS 7, 38 L.R.A. (n.s.) 680 (1911).

2. Expiration of Sentence.

Where the period of unauthorized suspension of the sentence of imprisonment has expired, such suspension presents no live question to be passed upon by the supreme court. State v. White, 125 Tenn. 143, 140 S.W. 1059, 1911 Tenn. LEXIS 15 (1911).

40-24-103. Confession of judgment.

In cases where a fine is assessed, the court shall allow the defendant to confess judgment for the fine and costs, with good sureties.

Code 1858, § 5239; Shan., § 7214; Code 1932, § 11800; T.C.A. (orig. ed.), §§ 40-3202, 40-3203.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Costs, § 44; § 8; 8 Tenn. Juris., Criminal Procedure, § 54.

Law Reviews.

Criminal Law in Tennessee in 1968 — A Critical Survey (Joseph G. Cook), 36 Tenn. L. Rev. 221.

NOTES TO DECISIONS

1. Provision is Mandatory.

This section is mandatory, and the prisoner, in a case to which the statute applies, has the right to bring with him proper sureties, and upon the confession of judgment by himself and sureties before the court for the fine and costs, he must be discharged. Halfacre v. State, 112 Tenn. 609, 79 S.W. 132, 1903 Tenn. LEXIS 130 (1903); McInturff v. State, 207 Tenn. 102, 338 S.W.2d 561, 1960 Tenn. LEXIS 432 (1960), superseded by statute as stated in, State v. Copeland, 647 S.W.2d 241, 1983 Tenn. Crim. App. LEXIS 333 (Tenn. Crim. App. 1983).

2. One Surety is Not Sufficient.

One surety is not sufficient, and if only one surety be tendered, the court is not in error in declining to accept him as sufficient. Halfacre v. State, 112 Tenn. 609, 79 S.W. 132, 1903 Tenn. LEXIS 130 (1903).

3. No Rearrest After Giving Surety.

Where a person has been convicted and fined and gives security he cannot be rearrested at a subsequent term of court upon the failure of the sheriff to collect the money. Hamilton v. State, 68 Tenn. 355, 1878 Tenn. LEXIS 23 (1878).

Where a defendant has confessed judgment for fine and costs with good sureties, he cannot be rearrested and the only remedy is a civil matter on the bond for fine and costs. McInturff v. State, 207 Tenn. 102, 338 S.W.2d 561, 1960 Tenn. LEXIS 432 (1960), superseded by statute as stated in, State v. Copeland, 647 S.W.2d 241, 1983 Tenn. Crim. App. LEXIS 333 (Tenn. Crim. App. 1983).

Former sections providing imprisonment for nonpayment of fines and costs were inapplicable where defendant availed himself of this section. McInturff v. State, 207 Tenn. 102, 338 S.W.2d 561, 1960 Tenn. LEXIS 432 (1960), superseded by statute as stated in, State v. Copeland, 647 S.W.2d 241, 1983 Tenn. Crim. App. LEXIS 333 (Tenn. Crim. App. 1983).

4. No Right of Appeal.

The defendant, having confessed judgment for fine and costs, has no right to appeal and the court has no right to grant such an appeal. McInturff v. State, 207 Tenn. 102, 338 S.W.2d 561, 1960 Tenn. LEXIS 432 (1960), superseded by statute as stated in, State v. Copeland, 647 S.W.2d 241, 1983 Tenn. Crim. App. LEXIS 333 (Tenn. Crim. App. 1983).

An attempted appeal from confession of judgment under this section is a nullity and can have no effect on the status of a defendant who secured his release under this section. McInturff v. State, 207 Tenn. 102, 338 S.W.2d 561, 1960 Tenn. LEXIS 432 (1960), superseded by statute as stated in, State v. Copeland, 647 S.W.2d 241, 1983 Tenn. Crim. App. LEXIS 333 (Tenn. Crim. App. 1983).

40-24-104. Nonpayment of fines.

If the defendant fails to pay the fine as directed, or is unable to pay the fine and so represents upon application to the court, the court, after inquiring into and making further investigation, if any, which it may deem necessary with regard to the defendant's financial and family situation and the reasons for nonpayment of the fine, including whether the nonpayment was contumacious or was due to indigency, may enter any order that it could have entered under § 40-24-101, or may reduce the fine to an amount that the defendant is able to pay, or may direct that the defendant be imprisoned until the fine, or any portion of it, remaining unpaid or remaining undischarged after a pro rata credit for any time that may already have been served in lieu of payments, is paid. The court shall determine and specify, in the light of defendant's situation and means and of defendant's conduct with regard to the nonpayment of the fine, the period of any imprisonment in default of payment of the fine within the limits of the penalties for a Class C misdemeanor.
Whenever a court orders a defendant to pay a fine, imposed as a result of a traffic violation, in installment payments, the court shall revoke the defendant's privilege to operate a motor vehicle in this state upon the failure of the defendant to comply with the order of the court. If the defendant's privilege to operate a motor vehicle has been revoked for the failure to comply with the court order, the privilege shall remain so revoked until the total amount of the fine imposed is paid.

Acts 1972, ch. 729, § 2; T.C.A., §§ 40-3208, 40-3204; Acts 1989, ch. 591, § 113.

Cross-References. Detention in municipal workhouse until fines and costs paid, §§ 41-3-104, 41-3-105.

Inmates confined in county jails for nonpayment of fines working public roads, § 41-22-301.

Penalty for Class C misdemeanor, § 40-35-111.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 32.22.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 54.

Law Reviews.

Imprisonment for Nonpayment of Fines and Costs: A New Look at the Law and the Constitution (Paul M. Stein), 22 Vand. L. Rev. 611.

Attorney General Opinions. Payment allocation, where defendant indigent, only as to costs or fines, OAG 98-099 (5/27/98).

Collection of fines and court costs in general sessions criminal cases, OAG 06-135 (8/21/06).

NOTES TO DECISIONS

Decisions Under Prior Law

1. Constitutionality.

Former section providing imprisonment for nonpayment of fines and costs did not apply to cases where a nolle prosequi was entered, since such application would have violated U.S. Const., amend. 13, § 1, as providing for involuntary servitude where there was no conviction of a crime. State ex rel. Hobbs v. Murrell, 170 Tenn. 152, 93 S.W.2d 628, 1935 Tenn. LEXIS 120 (1936).

2. Confession of Judgment.

Sections providing imprisonment for nonpayment of fines and costs had no application where the defendant confessed judgment. McInturff v. State, 207 Tenn. 102, 338 S.W.2d 561, 1960 Tenn. LEXIS 432 (1960), superseded by statute as stated in, State v. Copeland, 647 S.W.2d 241, 1983 Tenn. Crim. App. LEXIS 333 (Tenn. Crim. App. 1983).

3. Misdemeanors.

The circuit court had power to commit persons convicted of misdemeanors to the custody of the sheriff until the fines and costs were secured. Cagle v. State, 25 Tenn. 391, 1845 Tenn. LEXIS 109 (1845).

4. Bond for Fine and Costs.

Imprisonment until fine and costs were paid did not prevent the prisoner from giving bond and security for the fine and costs, so as to obtain his discharge. Hill v. State, 10 Tenn. 247, 1829 Tenn. LEXIS 2 (1829).

If defendant gives the required sureties, he shall not be imprisoned, and the sureties stand in the place of personal confinement as a means of enforcing the collection of the fine and costs. Poteete v. State, 68 Tenn. 261, 1878 Tenn. LEXIS 4 (1878), superseded by statute as stated in, State v. Bertram, — S.W.2d —, 1993 Tenn. Crim. App. LEXIS 15 (Tenn. Crim. App. Jan. 14, 1993); Hamilton v. State, 68 Tenn. 355, 1878 Tenn. LEXIS 23 (1878).

Where a bond has been given for the fine and costs, and the defendant has been released, he cannot be rearrested and remanded to prison, at a subsequent term, upon the failure of the sheriff to make the money out of him and the sureties, as the only remedy is on the bond. Poteete v. State, 68 Tenn. 261, 1878 Tenn. LEXIS 4 (1878), superseded by statute as stated in, State v. Bertram, — S.W.2d —, 1993 Tenn. Crim. App. LEXIS 15 (Tenn. Crim. App. Jan. 14, 1993); Hamilton v. State, 68 Tenn. 355, 1878 Tenn. LEXIS 23 (1878).

5. Release on Promise to Pay.

Where defendant entered guilty pleas to two misdemeanor charges and agreed to consecutive thirty-day jail sentences and cumulative $150 fines, defendant who was indigent and unable to pay fines in toto could have properly been released by trial judge after serving sentences upon agreement to pay fines in $20.00 weekly installments even though statutes provided for serving out fines in jail. State v. Walding, 477 S.W.2d 251, 1971 Tenn. Crim. App. LEXIS 465 (Tenn. Crim. App. 1971).

6. Discharge for Insolvency.

A judgment that a party remain in the custody of the sheriff until the fine and costs were paid or secured operated as a capias ad satisfaciendum and the defendant was entitled to the same privileges as upon that writ to discharge himself for insolvency. Barnes v. State, 13 Tenn. 186, 1833 Tenn. LEXIS 130 (1833).

7. Litigation Taxes.

Litigation taxes are not part of the fine or costs and a defendant cannot be made to work out litigation taxes in jail. Ex parte Griffin, 88 Tenn. 547, 13 S.W. 75, 1889 Tenn. LEXIS 75 (1890); Wilson v. Sloan, 1 Tenn. Crim. App. 263, 438 S.W.2d 75, 1968 Tenn. Crim. App. LEXIS 122 (Tenn. Crim. App. 1968).

40-24-105. Collection of fines, costs and litigation taxes — Installment payment plan — Suspended license — Restricted license — Conversion to civil judgment — Settlement.

Unless discharged by payment or service of imprisonment in default of a fine, a fine may be collected in the same manner as a judgment in a civil action. The trial court may also enforce all orders assessing any fine remaining in default by contempt upon a finding by the court that the defendant has the present ability to pay the fine and willfully refuses to pay. Costs and litigation taxes due may be collected in the same manner as a judgment in a civil action, but shall not be deemed part of the penalty, and no person shall be imprisoned under this section in default of payment of costs or litigation taxes. The following shall be the allocation formula for moneys paid into court: the first moneys paid in any case shall first be credited toward payment of litigation taxes and once litigation taxes have been paid, the next moneys shall be credited toward payment of costs; then additional moneys shall be credited toward payment of the fine.
1. Any person who is issued a license under title 55 and who has not paid all litigation taxes, court costs, and fines assessed as a result of disposition of any offense under the criminal laws of this state within one (1) year of the date of the completion of the sentence shall enter into an installment payment plan with the clerk of the court ordering disposition of the offense to make payments on the taxes, costs, and fines owed.
2. The clerk of the court ordering disposition of an offense shall offer a payment plan, which must be reasonable and based on a person's income and ability to pay, to any person convicted of an offense under the criminal laws of this state who requests to make payments pursuant to an installment payment plan or who is required to enter into an installment payment plan in accordance with subdivision (b)(1). A person may request, and the court clerk shall grant, modifications to the payment plan upon a change in the person's financial circumstances or upon good cause shown. If the request for modification is denied by a deputy clerk, then the person may appeal the denial to the chief clerk. If a request for modification is denied by the chief clerk, then the person may petition the court for modifications to the payment plan based upon a change in the person's financial circumstances or upon good cause shown.
3. 1. The court clerk shall inform a person who enters into a payment plan pursuant to this subsection (b) that:
    1. Failure to timely make the payments as ordered by the court results in the suspension of the person's license and the issuance of a restricted license; and
    2. Any default on the payment plan while the person is issued a restricted license results in the revocation of the restricted license and the person's driving privileges as described in subdivision (b)(5).
  2. The court clerk shall notify the department of a person's failure to comply with a payment plan established pursuant to this subsection (b).
  3. 1. Upon notice of the person's failure to comply with the payment plan established pursuant to this subsection (b), the department shall notify the person in writing of the pending suspension of the person's license and instruct the person to contact the appropriate court clerk within the time period described in this subdivision (b)(3)(C).
    2. A person has thirty (30) days from the date the department sends the notice described in subdivision (b)(3)(C)(i) to reestablish compliance with the payment plan or petition the court clerk or court and demonstrate that the person has, in fact, complied with the court clerk's payment plan.
    3. If the person reestablishes compliance with the payment plan or demonstrates to the court clerk or court that the person complied with the court clerk's payment plan, then the court clerk shall issue a receipt or other documentation to the person. If the person presents the receipt or other documentation to the department prior to the expiration of the thirty-day period described in subdivision (b)(3)(C)(ii), then the department shall not suspend the person's license.
    4. A person who fails to reestablish compliance with the payment plan or demonstrate to the court clerk or court's satisfaction that the person complied with the court clerk's payment plan and whose license is suspended in accordance with this subdivision (b)(3) may apply to the court for the issuance of a restricted license. The court shall order the issuance of a restricted license if the person is otherwise eligible for a driver license.
  4. If the person does not present the receipt or other documentation to the department prior to the expiration of the thirty-day period, then the department shall suspend the person's license. Upon the person presenting a certified copy of the court order and paying the application fee to the department in accordance with subdivision (b)(4)(B), the department shall issue a restricted license in place of the suspended license.
4. 1. A restricted license issued pursuant to this subsection (b) is valid only for travel necessary for:
    1. Employment;
    2. School;
    3. Religious worship;
    4. Participation in a recovery court, which includes drug courts under the Drug Court Treatment Act of 2003, compiled in title 16, chapter 22; DUI courts; mental health courts; and veterans treatment courts; or
    5. Serious illness of the person or an immediate family member.
  2. The order for the issuance of a restricted license must state with all practicable specificity the necessary times and places of permissible operation of a motor vehicle. The person may obtain a certified copy of the order and, within ten (10) days after the order is issued, present it, together with an application fee of sixty-five dollars ($65.00), to the department, which shall issue a restricted license embodying the limitations imposed in the order. After proper application and until the restricted license is issued, a certified copy of the order may serve in lieu of a driver license.
5. 1. If a person who is issued a restricted license fails to comply with a payment plan established pursuant to this subsection (b), the court clerk shall notify the department of the person's failure to comply with the payment plan.
  2. 1. Upon notice of the person's failure to comply with the payment plan, the department shall notify the person in writing of the pending revocation of the person's restricted license and instruct the person to contact the appropriate court clerk within the time period described in this subdivision (b)(5)(B).
    2. A person has thirty (30) days from the date the department sends the notice described in subdivision (b)(5)(B)(i) to reestablish compliance with the payment plan or petition the court clerk or court and demonstrate that the person has, in fact, complied with the court clerk's payment plan.
    3. If the person reestablishes compliance with the payment plan or demonstrates to the court clerk or court that the person complied with the court clerk's payment plan, then the court clerk shall issue a receipt or other documentation to the person. If the person presents the receipt or other documentation to the department prior to the expiration of the thirty-day period described in subdivision (b)(5)(B)(ii), then the department shall not revoke the person's restricted license.
  3. If the person does not present the receipt or other documentation to the department prior to the expiration of the thirty-day period, then the department shall revoke the person's restricted license.
  4. No sooner than six (6) months from the date of revocation, a person whose restricted license is revoked pursuant to this subdivision (b)(5) may apply with the court clerk for a certification that the person is eligible to be reissued a restricted license; provided, that the person must be actively participating in an installment payment plan in accordance with subdivision (b)(2).
  5. Upon the person's application for a certification that the person is eligible to receive a reissued restricted license pursuant to subdivision (b)(5)(D), the court clerk shall certify whether the person is actively participating in a payment plan and request the reissuance of a restricted driver license for the person if the person is otherwise eligible for a driver license. The certification must state with all practicable specificity the necessary times and places of permissible operation of a motor vehicle for purposes described in subdivision (b)(4)(A). The person may obtain a copy of the certification and, within ten (10) days after the certification is issued, present it, together with an application fee of sixty-five dollars ($65.00), to the department, which shall issue a restricted license embodying the limitations imposed in the certification. After proper application and until the restricted license is issued, a copy of the certification may serve in lieu of a driver license.
6. 1. Notwithstanding this subsection (b), if a licensee claims an inability to pay taxes, fines, or costs imposed for a disposition of any offense under the criminal laws of this state due to indigency, the court shall offer the person the opportunity to submit proof of the person's financial inability to pay, which may include a signed affidavit of indigency. For purposes of this subdivision (b)(6), the standard for a claim of indigency is the same as for an indigent person, as defined in § 40-14-201.
  2. Upon proof of a person's financial inability to pay, the court shall suspend the person's taxes, fines, and costs. No additional fines or costs accrue against the original taxes, fines, and costs as a result of or during the suspension of the person's taxes, fines, and costs. The court may order the person to reappear before the court for a reevaluation of the person's financial ability or inability to pay the taxes, fines, or costs. If, after the reevaluation, the person:
    1. Is no longer financially unable to pay or secure any portion of the taxes, fines, or costs in accordance with subdivision (b)(6)(A), the court shall reinstate the taxes, fines, and costs and apply subdivisions (b)(2)-(5); or
    2. Remains financially unable to pay any portion of the taxes, fines, or costs, the court shall extend the suspension of the person's taxes, fines, and costs and may order the person to reappear before the court for a reevaluation of the person's financial ability or inability to pay the fine or cost in accordance with this subdivision (b)(6)(B). The process described by this subdivision (b)(6)(B) applies until the person fully pays the moneys owed the court or any outstanding taxes, fines, or costs are waived by the court.
7. Notwithstanding this subsection (b), a person will be issued a restricted license or have the person's license reinstated only if the person is otherwise eligible for a driver license.
8. The process described by this subsection (b) applies until the person fully pays the moneys owed the court or any outstanding taxes, fines, or costs are waived by the court.
9. If otherwise eligible for a driver license, any person whose driver license was revoked under this section, prior to July 1, 2019, for nonpayment of litigation taxes, court costs, and fines assessed may apply to the court having original jurisdiction over the offense for an order reinstating the person's license upon entering into an installment payment plan under this subsection (b) or the submittal of proof described in subdivision (b)(6). The person may present a certified copy of the court's order to the department of safety, which shall reissue a driver license at no cost to the person if the person is otherwise eligible for a driver license.
The district attorney general or the county or municipal attorney, as applicable, may, in that person's discretion, and shall, upon order of the court, institute proceedings to collect the fine, costs and litigation taxes as a civil judgment.
1. Any fine, costs, or litigation taxes remaining in default after the entry of the order assessing the fine, costs, or litigation taxes may be collected by the district attorney general or the criminal or general sessions court clerk in the manner authorized by this section and otherwise by the trial court by contempt upon a finding by the court that the defendant has the present ability to pay the fine and willfully refuses to pay. After a fine, costs, or litigation taxes have been in default for at least six (6) months, the district attorney general or criminal or general sessions court clerk may retain an agent to collect, or institute proceedings to collect, or establish an in-house collection procedure to collect, fines, costs and litigation taxes. If an agent is used, the district attorney general or the criminal or general sessions court clerk shall request the county purchasing agent to utilize normal competitive bidding procedures applicable to the county to select and retain the agent. If the district attorney general and the criminal or general sessions court clerk cannot agree upon who collects the fines, costs and litigation taxes, the presiding judge of the judicial district or a general sessions judge shall make the decision. The district attorney general or criminal or general sessions court clerk may retain up to fifty percent (50%) of the fines, costs and litigation taxes collected pursuant to this subsection (d) in accordance with any in-house collection procedure or, if an agent is used, for the collection agent. The proceeds from any in-house collection shall be treated as other fees of the office. When moneys are paid into court, the allocation formula outlined in subsection (a) shall be followed, except up to fifty percent (50%) may be withheld for in-house collection or, if an agent is used, for the collection agent, with the remainder being allocated according to the formula.
2. On or after January 1, 2015, if an agent is used, the agent's collection fee shall be added to the total amount owed. The agent's collection fee shall not exceed forty percent (40%) of any amounts actually collected. When moneys are paid into court, the allocation formula outlined in subsection (a) shall be followed, except up to forty percent (40%) may be withheld for the collection agent, with the remainder being allocated according to the formula.
1. The governing body of any municipality may by ordinance authorize the employment of a collection agency to collect fines and costs assessed by the municipal court where the fines and costs have not been collected within sixty (60) days after they were due. The authorizing ordinance shall include the requirement that the contract between the municipality and the collection agency be in writing.
2. The collection agency may be paid an amount not exceeding forty percent (40%) of the sums collected as consideration for collecting the fines and costs.
3. The written contract between the collection agency and the municipality shall include a provision specifying whether the agency may institute an action to collect fines and costs in a judicial proceeding.
4. Nothing in this subsection (e) shall be interpreted to permit a municipality to employ a collection agency for the collection of unpaid parking tickets in violation of § 6-54-513.
If any fine, costs or litigation taxes assessed against the defendant in a criminal case remain in default when the defendant is released from the sentence imposed, the sentence expires or the criminal court otherwise loses jurisdiction over the defendant, the sentencing judge, clerk or district attorney general may have the amount remaining in default converted to a civil judgment pursuant to the Tennessee Rules of Civil Procedure. The judgment may be enforced as is provided in this section or in any other manner authorized by law for a civil judgment.
After a fine, costs, or litigation taxes have been in default for at least five (5) years, the criminal or general sessions court clerk may, subject to approval by a court of competent jurisdiction, accept a lump-sum partial payment in full settlement of the outstanding balance due on a case. The court shall not approve a settlement unless the amount accepted is equal to or greater than fifty percent (50%) of the combined outstanding balance of all fines, costs, and litigation taxes due on the case. When moneys are paid into court pursuant to this subsection (g), the allocation formula outlined in subsection (a) shall be followed, except the percentage that may be retained by the clerk pursuant to subsection (d) may be withheld, with the remainder being allocated according to the formula.
[Deleted by 2019 amendment.]
As used in this section, “costs” shall include any jail fees or other incarceration costs imposed.

Acts 1972, ch. 729, § 3; T.C.A., §§ 40-3209, 40-3205; Acts 1991, ch. 467, § 1; 1992, ch. 956, § 1; 1996, ch. 826, § 1; 1996, ch. 920, § 1; 1997, ch. 325, §§ 1, 2; 2007, ch. 167, §§ 1, 2; 2009, ch. 570, § 1; 2009, ch. 577, § 2; 2011, ch. 504, §§ 1-3; 2014, ch. 737, §§ 1, 2; 2015, ch. 257, § 1; 2017, ch. 149, § 1; 2017, ch. 412, §§ 1-4; 2018, ch. 538, § 1; 2018, ch. 579, § 1; 2019, ch. 438, §§ 5, 6.

Compiler's Notes. Acts 1991, ch. 467, § 2, provided that the amendment to this section by that act shall apply retroactively to the collection of any unpaid fines or costs assessed on or after July 1, 1980.

Acts 2011, ch. 504, § 4, provided that the act, which added subsection (b), shall apply to offenses committed on or after July 2, 2011.

Pursuant to Article III, Section 18 of the Constitution of Tennessee, Acts 2014, ch. 737 took effect on April 21, 2014.

Acts 2014, ch. 737, § 5 provided that any changes to a court clerk's computer system or software necessitated by the use of a collection agent under the act, which amended subsection (d), shall be paid for by funds collected by the clerk for computer related expenses pursuant to § 8-21-401(j) to the extent such funds are available. No state funds shall be allocated to make any changes to a court clerk's computer system or software necessitated by the act.

Acts 2014, ch. 737, § 6 provided that the act, which amended subsection (d), is remedial in nature and is intended to assist court clerks with the administrative costs and difficulties associated with the collection of delinquent fines, costs and litigation taxes.

Acts 2014, ch. 737, § 8 provided that the additional fee if a collection agent is used shall apply to all amounts that have been owed for at least six (6) months on January 1, 2015, or become owed for at least six (6) months after January 1, 2015, whether the case was adjudicated prior to, or on or after, April 21, 2014.

Acts 2018, ch. 538, § 2 provided that the act, which amended this section, shall apply to any applicable application for stay of revocation that is made on or after March 7, 2018.

Amendments. The 2018 amendment by ch. 538, in (b)(3)(B), added “For offenders identified in subdivisions (b)(3)(A)(i)-(iii), (v), and (vi),” at the beginning of the second sentence, substituted “no longer than” for “not longer than” near the end of the second sentence, and added the present third sentence.

The 2018 amendment by ch. 579 added the last sentence in (b)(1).

The 2019 amendment rewrote (b), which read: “(b)(1) A license issued under title 55 for any operator or chauffeur shall be revoked by the commissioner of safety if the licensee has not paid all litigation taxes, court costs, and fines assessed as a result of disposition of any offense under the criminal laws of this state within one (1) year of the date of disposition of the offense. The license shall remain revoked until such time as the person whose license has been revoked provides proof to the commissioner of safety that all litigation taxes, court costs, and fines have been paid. No person's license shall be revoked pursuant to this subdivision (b)(1) based upon nonpayment of county jail fees assessed to a person pursuant to the Inmate Reimbursement to the County Act of 1995, compiled in title 41, chapter 11.“(2) The clerk of the court ordering disposition of an offense shall notify the commissioner of safety when an offender has litigation taxes, court costs, and fines that remain unpaid after one (1) year from the disposition of the offense. Such notification shall take place within thirty (30) days of the expiration of the one-year period or as soon as practicable. The commissioner of safety shall not refuse to revoke a license issued under title 55 on grounds that notification was not received within the thirty-day period specified in this subdivision (b)(2).“(3)(A) A person who is unable to pay any portion of assessed litigation taxes, court costs, and fines may apply to the court having original jurisdiction over the offense for an order staying the revocation of the license issued under title 55. An order to stay the revocation of the license shall be granted if the court finds that the person would experience hardship from the revocation of the license and that other means of transportation are not readily available to the person. Grounds for finding of hardship are limited to travel necessary for:“(i) Employment;“(ii) School;“(iii) Religious worship;“(iv) Participation in a recovery court, which includes drug courts under the Drug Court Treatment Act of 2003, compiled in title 16, chapter 22; DUI courts; mental health courts; and veterans treatment courts;“(v) Serious illness of the person or an immediate family member; or“(vi) Other reasons or destinations as determined by the court.“(B) The offender seeking a hardship exception shall make application to the court in the form of a sworn affidavit stating with particularity the grounds and circumstances of hardship. For offenders identified in subdivisions (b)(3)(A)(i)-(iii), (v), and (vi), the court may enter a one-time stay for a period of no longer than one hundred eighty (180) days. For offenders identified in subdivision (b)(3)(A)(iv), the recovery court judge shall have discretion to determine the period of time the stay of revocation should remain in effect; provided, that period does not exceed the date of the offender's program completion or termination. The court clerk shall promptly notify the commissioner of safety of the issuance or termination of any stay of revocation. The commissioner of safety shall not revoke any license under this subsection (b) while the stay is in effect.“(4)(A) A person who is unable to pay all of the assessed litigation taxes, court costs, and fines but is able to pay some of them may apply to the court having original jurisdiction over the offense for an order setting up a payment plan for such taxes, costs, and fines. If the person and court agree to such a payment plan, the court shall so order and such order shall have the effect of staying the revocation of the license pursuant to this subsection (b). The order staying the revocation of license shall remain in effect for as long as the person is current and in compliance with the payment plan. If the person fails to make payments according to the plan for three (3) consecutive months without good cause, the court may revoke the order and notify the clerk. The court clerk shall promptly notify the commissioner of safety of the issuance or termination of any stay of revocation. The commissioner of safety shall not revoke pursuant to this subsection (b) while the stay is in effect.“(B) In addition to the ability to apply for the approval of a payment plan as provided in subdivision (b)(4)(A), a person who is indigent, as defined in § 40-14-201, may also apply for the waiver of any outstanding court costs and fines. A person who is indigent may apply for the waiver of outstanding court costs and fines prior to or after the revocation of license. An application for such a waiver must include:“(i) A signed affidavit of indigency; and“(ii) Payment of a fee of up to fifty dollars ($50.00), subject to the discretion of the court after consideration of the person's ability to pay.“(C) After consideration of the affidavit of indigency and the payment of any fee that may be required under this subdivision (b)(4), the court may waive any outstanding court costs and fines.“(5) The revocation provided in this subsection (b) is cumulative and does not limit or otherwise affect any license revocation pursuant to title 39, title 55, or any other law.“(6) Nothing in this subsection (b) shall be construed to apply to any license issued pursuant to title 55, chapter 17.”; and deleted (h), which read: “Notwithstanding this section to the contrary, if a person has a license revoked pursuant to this section, the person may apply to the trial court having original jurisdiction over the offense for a restricted driver license. The court is vested with the authority and discretion to order the issuance of a restricted driver license for the purposes specified in subdivision (b)(3)(A). The order shall state with all practicable specificity the necessary times and places of permissible operation of a motor vehicle. The person may obtain a certified copy of the order and within ten (10) days after issuance present the order, together with an application fee of sixty-five dollars ($65.00), to the department of safety, which shall issue a restricted license embodying the limitations imposed in the order. After proper application and until the restricted license is issued, a certified copy of the order may serve in lieu of a driver license. Any restricted license issued under this section shall be valid for a period not to exceed one (1) year. A restricted license issued under this section may be renewed; provided, that each renewal shall be valid for a period not to exceed one (1) year.”; and deleted former (h), which read: “Notwithstanding this section to the contrary, if a person has a license revoked pursuant to this section, the person may apply to the trial court having original jurisdiction over the offense for a restricted driver license. The court is vested with the authority and discretion to order the issuance of a restricted driver license for the purposes specified in subdivision (b)(3)(A). The order shall state with all practicable specificity the necessary times and places of permissible operation of a motor vehicle. The person may obtain a certified copy of the order and within ten (10) days after issuance present the order, together with an application fee of sixty-five dollars ($65.00), to the department of safety, which shall issue a restricted license embodying the limitations imposed in the order. After proper application and until the restricted license is issued, a certified copy of the order may serve in lieu of a driver license. Any restricted license issued under this section shall be valid for a period not to exceed one (1) year. A restricted license issued under this section may be renewed; provided, that each renewal shall be valid for a period not to exceed one (1) year.”

Effective Dates. Acts 2018, ch. 538 § 2. March 7, 2018.

Acts 2018, ch. 579 § 2. March 16, 2018.

Acts 2019, ch. 438, § 7. July 1, 2019.

Cross-References. Application of cash deposit to judgment and costs, § 40-11-140.

Collection from funds held by warden for prisoner, § 41-21-217.

Collection of fines or costs in default, § 20-12-144.

Collection of funds on behalf of the state or local government, acceptance of checks, money orders, credit or debit cards, § 9-1-108.

Issuance of execution in civil cases, title 26, ch. 1.

Judgment and execution for costs, § 40-25-134.

Liability of state or county when execution returned unsatisfied, § 40-25-130.

Recovery of fines imposed by ordinance, §§ 6-21-506, 6-54-303, 6-54-304.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 32.23.

Law Reviews.

The Abatement of Criminal Fines upon Death of Defendant: Punishment, Precedent, and Policy, 11 Mem. St. U.L. Rev. 67.

Attorney General Opinions. Payment allocation, where defendant indigent, only as to costs or fines, OAG 98-099 (5/27/98).

Community service or work project in lieu of payment of court costs, OAG 99-233 (12/15/99).

A criminal defendant may not have his probation revoked through a violation warrant for failing to pay costs assessed in a criminal action, OAG 00-162 (10/18/00).

Criminal defendant may not have his probation revoked through a violation warrant for failing to pay costs assessed in a criminal action, OAG 03-106 (8/22/03).

Under T.C.A.§ 40-24-105(c) (now (d)(1)), a district attorney general has the authority to enter into a contingency fee contract with a debt collection agency to recover fines and costs assessed in criminal cases, OAG 05-118 (7/27/05).

The board of probation and parole is authorized to condition parole on payment of fines but not criminal court costs, OAG 06-062 (4/5/06).

Collection of fines and court costs in general sessions criminal cases, OAG 06-135 (8/21/06).

Payment of fines in installments; allocation of moneys paid into court. OAG 12-52, 2012 Tenn. AG LEXIS 52 (5/10/12).

NOTES TO DECISIONS

1. Applicability of Civil Procedure Rules.

This section requires application of procedural rules applicable to money judgments in civil cases, though the fines were imposed in criminal cases. State v. Copeland, 647 S.W.2d 241, 1983 Tenn. Crim. App. LEXIS 333 (Tenn. Crim. App. 1983).

2. Interest.

A criminal fine does not bear interest in the absence of a statute specifically authorizing it. Owens v. State, 710 S.W.2d 518, 1986 Tenn. LEXIS 831 (Tenn. 1986).

3. Costs not Dischargeable in Bankruptcy.

Criminal court's assessment of costs against defendant, as a condition of probation, designed to compensate the state for its expenses in prosecuting the defendant rather than as a penal sanction, were not a dischargeable debt in bankruptcy proceedings. In re Hollis, 810 F.2d 106, 1987 U.S. App. LEXIS 1372 (6th Cir. Tenn. 1987).

4. Constitutional Issues.

In an action challenging the constitutional validity of revoking the driver's license of an indigent person for failing to pay court debts, the court certified a class of all people whose driver's licenses had been or would be revoked under this statute and who, at the time of the revocation, could not pay court debt due to financial circumstances. Thomas v. Haslam, — F. Supp. 2d —, 2018 U.S. Dist. LEXIS 60969 (M.D. Tenn. Mar. 26, 2018).

There was substantial reason to doubt that revoking the driver's license of an indigent person who failed to pay court debts from criminal cases was rationally related to the furtherance of debt collection; a motion to dismiss constitutional challenges was therefore denied. Under equal protection and due process principles, Tennessee cannot impose a greater sanction on a convicted person for failure to pay based solely on indigence. Thomas v. Haslam, — F. Supp. 2d —, 2018 U.S. Dist. LEXIS 60969 (M.D. Tenn. Mar. 26, 2018).

40-24-106. Fines accruing to state.

Except as otherwise provided by law, fines, amercements, forfeitures and recoveries in criminal cases constitute a part of the revenue of the state, and shall be paid into the state treasury in the following cases:
1. All fines and forfeitures that may be recovered in any case in which the defendant is indicted for a felony, whether convicted of a felony or of an offense less than felony; and
2. All fines and forfeitures, imposed for a violation of any law regulating the business of banking.
Except as otherwise provided by law, fines and forfeitures in all other state cases go to the county in which the indictment was found.

Code 1858, §§ 552, 5236 (deriv. Acts 1835-1836, ch. 55, § 2); Shan., §§ 707, 7211; Code 1932, §§ 1258, 11798; modified; T.C.A. (orig. ed.), § 40-3206.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

Cross-References. Disposition of fines for minor offenses, § 5-8-104.

Disposition of fines in school attendance law cases, § 49-6-3011.

Fines accruing to county, §§ 5-8-104, 5-8-105.

Fines for violation of laws affecting animals go to society for prevention of cruelty to animals, § 39-14-210.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 52.

Attorney General Opinions. Remittance of fines and forfeitures from state misdemeanors, OAG 99-174 (9/9/99).

NOTES TO DECISIONS

1. Construction with Other Sections.

Section 41-2-111 does not define what is state and what is county revenue and in no way modifies the provisions of this section. Nelson v. Loudon County, 176 Tenn. 632, 144 S.W.2d 791, 1940 Tenn. LEXIS 111 (1940).

2. Petit Larceny Fines.

A fine for petit larceny belongs to the state, and it may recover the same from the county when it has been paid in cash to the county. State v. Davidson County, 96 Tenn. 178, 33 S.W. 924, 1895 Tenn. LEXIS 23 (1896).

3. Intoxicating Liquor Fines.

A fine of $250 for personal transportation of liquor goes to the state. Nelson v. Loudon County, 176 Tenn. 632, 144 S.W.2d 791, 1940 Tenn. LEXIS 111 (1940).

4. Bond in Wife Desertion Case.

Where husband was indicted for wife desertion and gave bond for his appearance for trial, and he failed to appear, the proceeds of the bond did not belong to the wife, but was properly paid over to the trustee. Phillips v. Carroll County, 183 Tenn. 590, 194 S.W.2d 457, 1946 Tenn. LEXIS 241 (1946).

40-24-107. Criminal injuries compensation fund — County criminal injuries compensation reserve.

1. 1. When any person is convicted by a circuit court or a comparable court of record with jurisdiction over criminal matters of a crime of any nature after July 1, 1984, except those crimes for which the law imposes as a maximum possible punishment a fine of less than five hundred dollars ($500) and no imprisonment, there is levied a privilege tax of twenty-six dollars and fifty cents ($26.50) in addition to any other costs or fees imposed in the action. If the person is convicted of a crime against the person, the privilege tax shall be fifty dollars ($50.00) in addition to any other costs or fees.
  2. In addition to all other taxes imposed and in addition to other costs or fees, if any person is convicted of a crime against the person of a child under the age of eighteen (18) that constitutes a criminal offense under § 39-12-101, § 39-13-101, §§ 39-13-501 — 39-13-505, § 39-15-302, or § 39-17-1005, there is levied a privilege tax of five hundred dollars ($500).
2. If any person is convicted by a court of general sessions or a comparable court with jurisdiction over criminal matters of a crime of any nature after July 1, 1984, except those crimes for which the law imposes as a maximum possible punishment a fine of less than five hundred dollars ($500) and no imprisonment, there is levied a privilege tax of twenty-six dollars and fifty cents ($26.50) in addition to any other costs or fees imposed in the action. If the person is convicted of a crime against the person, the privilege tax shall be fifty dollars ($50.00) in addition to any other costs or fees.
3. Nothing in this subsection (a) shall be construed as applying to violations of the motor vehicle laws unless the violation is covered by the provisions of title 55, chapter 10, part 4, relating to driving while intoxicated, § 55-10-205, relating to reckless driving, if the reckless driving was proximately caused by the use of an intoxicant or § 55-10-101, relating to the duty to stop at the scene of an accident resulting in injury or death.
4. Whether a person convicted of a crime is exempted from payment of the tax imposed by this subsection (a) shall be determined by the maximum possible sentence imposed by law for the offense rather than the sentence the person actually receives.
5. The tax imposed by this subsection (a) shall be collected by the clerks of the various courts from each person convicted and all funds so collected, with the exception of one dollar ($1.00), which shall be retained by the clerk to defray the expenses of collecting and processing the funds, shall be paid over to the department of revenue for apportionment pursuant to § 67-4-606.
6. In addition to all other revenues set forth in this section, all revenue to which the general fund of the state is otherwise entitled from the sale of illegal contraband seized by any law enforcement agency of the state shall be deposited to the criminal injuries compensation fund.
When an offender liable to pay the tax has been convicted and sentenced to a county correctional institution or program, or to an institution or program maintained by the department, the clerk of court shall certify to the appropriate official as provided in this subsection (b) whether payment of the tax has been made. If the offender liable to pay the tax has been convicted and sentenced to an institution or program maintained by the department, the clerk of court shall certify to the commissioner of correction, in the form as the commissioner may direct, whether payment of the tax has been made. The commissioner shall then cause any amount owing to be collected from the prisoner during the offender's period of confinement by the department. If the offender liable to pay the tax has been convicted and sentenced to a correctional institution or program maintained by a county, the clerk of court shall certify to the county officer with supervisory authority over the institution or program whether payment of the tax has been made. The county officer shall then cause any amount owing to be collected from the offender during the offender's period of confinement. The commissioner, or appropriate county official, shall submit reasonable reports as may be requested by the board of claims with respect to the status of an offender's obligation under this section. The total sums collected under this subsection (b) shall be apportioned pursuant to § 67-4-606.
There is created in the state treasury a fund to be known as the “criminal injuries compensation fund.” Moneys shall be deposited to the fund as provided by law and shall be invested for the benefit of the fund pursuant to § 9-4-603. Moneys in the fund shall not revert to the general fund of the state, but shall remain available and be appropriated exclusively for providing compensation under the Criminal Injuries Compensation Act, compiled in title 29, chapter 13 and this section. The state treasurer shall annually determine the amount of awards paid to victims of drunk drivers pursuant to title 29, chapter 13, for the preceding fiscal year and shall set aside in a separate reserve within the fund an amount equal to three (3) times the awards paid during that fiscal year. The separate reserve may only be used to pay awards to victims of drunk drivers in the event current revenues to the fund are insufficient to pay awards to the victims.
In addition to all other funds that are set forth in this section to be deposited into the criminal injuries compensation fund, all forfeitures of appearance bonds in felony cases shall be paid over to the state treasurer for deposit into the criminal injuries compensation fund.

Acts 1976, ch. 736, § 16(a)-(d); 1977, ch. 427, § 3; 1978, ch. 839, § 4; 1979, ch. 331, § 1; impl. am. Acts 1979, ch. 359, §§ 5, 26; 1980, ch. 893, § 1; 1981, ch. 163, §§ 1-3; T.C.A., § 40-3207; Acts 1984, ch. 752, §§ 4, 5; 1984, ch. 997, § 1; 1985, ch. 278, § 10; 1985, ch. 335, § 1; 1985, ch. 403, § 2; 1985, ch. 478, § 25; 1986, ch. 880, § 3; 1990, ch. 755, §§ 11-13; 1992, ch. 761, §§ 5, 6, 9; 1995, ch. 490, § 2; 1996, ch. 675, § 34; 2002, ch. 835, § 1; 2003, ch. 235, §§ 2, 3; 2005, ch. 429, §§ 22, 23; 2008, ch. 1043, § 2.

Cross-References. Child sexual abuse generally, title 37, ch. 1, part 6.

Contributions by parolees, probationers and employed releasees, § 40-28-201.

Criminal injuries compensation law, title 29, ch. 13.

Exemption from contribution to criminal injuries compensation fund, § 40-28-202.

Litigation tax, title 67, ch. 4, part 6.

Victim-witness coordinator, § 8-7-206.

Law Reviews.

Tennessee's Criminal Injuries Compensation Act, 7 Mem. St. U.L. Rev. 241.

Attorney General Opinions. Payment allocation, where defendant indigent, only as to costs or fines, OAG 98-099 (5/27/98).

Violations of T.C.A. § 39-15-401, the child abuse and neglect statute, do not rise to the level of harm contemplated by subdivision (a)(1)(B) of this section, OAG 03-104 (8/19/03).

40-24-108. Sexual assault program services.

When any person is convicted of a sexual offense as defined in subdivision (b)(2) on or after July 1, 2003, in addition to any other punishment that may be imposed for the sexual offense, the court shall impose a fine of two hundred dollars ($200). The additional fine shall be paid to the clerk of the court imposing sentence, who shall transfer it to the state treasurer, who shall credit the fine to the general fund. All fines so credited to the general fund shall be subject to appropriation by the general assembly for the exclusive purpose of funding sexual assault program services pursuant to title 71, chapter 6, part 3.
1. For purposes of this section, “convicted” means an adjudication of guilt for a sexual offense as defined in subdivision (b)(2) in any of the manners described:
  1. Plea of guilty, including a plea of guilty entered pursuant to § 40-35-313;
  2. Verdict of guilty by a judge or jury;
  3. Plea of no contest; or
  4. Best interest plea.
2. “Sexual offense” means the commission of any act that constitutes the criminal offense of:
  1. Aggravated rape, under § 39-13-502;
  2. Rape, under § 39-13-503;
  3. Aggravated sexual battery, under § 39-13-504;
  4. Sexual battery, under § 39-13-505;
  5. Statutory rape, under § 39-13-506;
  6. Sexual exploitation of a minor, under § 39-17-1003;
  7. Aggravated sexual exploitation of a minor, under § 39-17-1004;
  8. Especially aggravated sexual exploitation of a minor, under § 39-17-1005;
  9. Incest, under § 39-15-302;
  10. Rape of a child, under § 39-13-522;
  11. Sexual battery by an authority figure, under § 39-13-527;
  12. Solicitation of a minor, under § 39-13-528;
  13. Criminal attempt, under § 39-12-101, solicitation, under § 39-12-102, or conspiracy, under § 39-12-103, to commit any of the offenses enumerated within this subdivision (b)(2); or
  14. Criminal responsibility under § 39-11-402(2) for facilitating the commission under § 39-11-403 of, or being an accessory after the fact under, § 39-11-411 to any of the offenses enumerated in this subdivision (b)(2).

Acts 2003, ch. 304, § 1.

Cross-References. Sexual Assault Program Services, title 71, ch. 6, part 3.

40-24-109. Services to victims of certain types of crimes.

The county legislative body of any county may elect to establish a program to assist victims of crime, their families and survivors or to provide funding or additional funding for an existing program established to assist victims. The type of programs for which this section may be utilized includes rape crisis centers, domestic violence shelters, victim of crime hotlines and information programs, individual, group and family counseling services, crisis intervention programs, support groups and other similar programs designed to assist victims of crime, their families or survivors.
1. If a county legislative body elects to establish or fund a program as authorized by this section, it shall, at the time of election, designate the program for which the assessment provided in subsection (c) will be used.
2. No assessment authorized by subsection (c) shall be collected or transmitted until the county legislative body has elected to utilize this section and has designated the victim of crime program for which it will be dedicated.
The clerks of all courts of general sessions, circuit and criminal courts, municipal courts exercising general sessions court jurisdiction and any other court exercising similar criminal jurisdiction shall collect a victims assistance assessment in the sum of forty-five dollars ($45.00) from any person who:
1. Enters a plea of guilty;
2. Is found guilty by a judge or jury;
3. Enters a plea of nolo contendere;
4. Enters a plea, pursuant to any of the diversionary sentencing statutes, to any criminal offense described in subsection (d);
5. Is found guilty, or enters a plea of guilty or nolo contendere, to the offense of attempting or conspiring to commit any offense described in subsection (d); or
6. Is found to be criminally responsible as principal for the commission of any offense described in subsection (d).
Except as provided in subsection (e), subsection (c) shall apply to any conduct made criminal by the laws of this state.
This section shall not apply to:
1. Crimes for which the law imposes, as a maximum possible punishment, a fine of less than five hundred dollars ($500) and no imprisonment; and
2. Violations of the motor vehicle laws, except driving under the influence of an intoxicant as prohibited by § 55-10-401, or reckless driving as prohibited by § 55-10-205, where the reckless driving was proximately caused by the use of an intoxicant.
Whether a person convicted of a crime is exempted from payment of the assessment imposed by this section shall be determined by the offense for which the person was convicted and the maximum possible sentence authorized by law for the offense, rather than the sentence the person actually receives.
1. The victims assistance assessment shall be subject to § 8-21-401 or § 8-21-409 and shall be in addition to all other taxes, costs, and fines. The first three dollars ($3.00) of each assessment shall be paid to the clerk of the court imposing the assessment for processing and handling. The remaining forty-two dollars ($42.00) shall be transmitted to the county in which the offense occurred, for the exclusive use of the victims assistance program previously designated by the county legislative body.
2. Upon transmittal to the victims program in the county, all funds collected pursuant to this section shall be used to defray the costs of providing the services to victims of crime designated by the program's mission statement and guidelines.
Nothing in this section shall be construed to prevent a county from funding more than one (1) program to assist victims of crime; provided, that no such program may be funded unless the provider organization offers services to victims of crime free of charge.

Acts 2006, ch. 627, § 1; 2008, ch. 880, § 1; 2011, ch. 305, § 1.

Compiler's Notes. Acts 2006, ch. 627, § 2, provides that for the purpose of a county establishing or designating a victim assistance program and approving the victims assistance assessment as authorized by this section, the act shall take effect on May 12, 2006; however, for all other purposes, this section shall take effect upon approval and program designation of each county.

Chapter 25
Fees of Officers

40-25-101. Application of general provisions as to fees.

Title 8, chapters 21-24 and 26 applies to this chapter, unless otherwise specifically provided.

Code 1858, § 5560; Shan., § 7582; Code 1932, § 12210; T.C.A. (orig. ed.), § 40-3301.

Cross-References. Mileage allowance for extradition, §§ 40-9-126, 40-9-127.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 32.23.

Law Reviews.

Tennessee Civil Disabilities: A Systemic Approach (Neil P. Cohen), 41 Tenn. L. Rev. 253 (1974).

40-25-102. Express authorization required.

Officers are entitled to no other fees in criminal cases, except those expressly provided for by law, and in no case are they entitled to payment from the state or county, unless expressly allowed.

Code 1858, § 5561; Shan., § 7583; Code 1932, § 12211; T.C.A. (orig. ed.), § 40-3302.

Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Public Officers, § 33.

Attorney General Opinions. County liability for cost of incarcerating misdemeanant before sentencing, OAG 98-0159 (8/24/98).

40-25-103. Fees to officers acting in lieu of named officers.

If any of the duties in this chapter and title 8, chapters 21-24 and 26 are performed by other officers than those therein named, whose duty it is to perform the same, those officers are entitled to the same fees, and in the same manner, as there named.
This section does not apply to any of the judges or chancellors of the state.

Code 1858, §§ 5562, 5563; Shan., §§ 7584, 7585; Code 1932, §§ 12212, 12213; T.C.A. (orig. ed.), § 40-3303.

Cross-References. Qualifications of guard, § 40-23-111.

Summons of additional guards, § 40-23-110.

Warrant to summon aid in removal of prisoners, § 40-23-109.

NOTES TO DECISIONS

1. Not Applicable to City Officers with Fixed Salaries.

Where the recorder and policemen of a city are invested with the jurisdiction and power of justices and constables, respectively, with fixed salaries, they are not entitled to receive, in addition, the fees fixed by law for justices and constables for like services. Johnson v. State, 94 Tenn. 499, 29 S.W. 963, 1894 Tenn. LEXIS 62 (1894).

40-25-104. Costs adjudged.

The costs that may be adjudged in criminal cases include all costs incident to the arrest and safekeeping of the defendant, before and after conviction, due and incident to the prosecution and conviction, and incident to the carrying of the judgment or sentence of the court into effect.

Code 1858, § 5577 (deriv. Acts 1805, ch. 49; 1813, ch. 137 (136 in Scott's Revisal), § 2); Shan., § 7606; Code 1932, § 12233; T.C.A. (orig. ed.), § 40-3304.

Cross-References. Capias for more than one offense, § 40-13-301.

Costs adjudged in habeas corpus cases, § 29-21-125.

Costs on discharge of criminal defendant, § 29-21-126.

Fee for copy of indictment furnished to warden, § 41-21-105.

Fees for state witnesses, § 40-17-112.

Fees for witnesses committed to jail, § 8-26-107.

Fees of jail guard, §§ 41-4-119, 41-4-120.

Judgment for costs, § 40-25-134.

Payment on suspension of sentence, § 40-35-303.

Postage on mailed process, § 40-13-303.

Reimbursement of expenses, civil action, § 41-11-107.

Reimbursement of jailer for keeping state prisoners, § 8-26-106.

Sheriffs and constables, specific fees authorized, § 8-21-901.

Taxing and proof of jailers' fees, §§ 41-4-131, 41-4-132, 41-4-133, 41-4-134.

Taxing of costs on proceeding to revoke suspension of sentence, § 40-35-312.

Transportation of prisoner by sheriff, § 8-26-108.

Law Reviews.

Tennessee Civil Disabilities: A Systemic Approach (Neil P. Cohen), 41 Tenn. L. Rev. 253 (1974).

Attorney General Opinions. County liability for cost of incarcerating misdemeanant before sentencing, OAG 98-0159 (8/24/98).

Jailers' fees may be imposed on a per diem basis but should only cover those actual expenses outlined in this section and T.C.A. § 40-25-133, OAG 03-106 (8/22/03).

NOTES TO DECISIONS

1. Confinement Costs.

The state is liable for costs for confining in the county jail of a person convicted of a felony, under a commutation of the sentence, which does not change the grade of the offense. Woolen v. State, 129 Tenn. 455, 166 S.W. 594, 1914 Tenn. LEXIS 132 (1914); State v. Gibson County, 134 Tenn. 526, 184 S.W. 29, 1916 Tenn. LEXIS 1 (1916).

2. Fugitive Costs.

Expenses incurred within the state by the sheriff in bringing back to the state a defendant who had absconded while under indictment for forgery were properly taxed against the state. State v. McEwen, 143 Tenn. 591, 224 S.W. 167, 1920 Tenn. LEXIS 46 (1920).

3. Jury Costs.

The cost of keeping or boarding a jury is included in this section. State ex rel. Nealis v. Nolan, 76 Tenn. 663, 1881 Tenn. LEXIS 60 (1881).

Judgment against the state for costs of boarding jury, rendered at a term subsequent to the termination of the case, is void; and mandamus against the comptroller will not lie to compel its payment. State ex rel. Nealis v. Nolan, 76 Tenn. 663, 1881 Tenn. LEXIS 60 (1881).

4. Witness Costs.

The costs of attachment for witnesses in criminal cases, if not adjudged against the witness, are taxable as costs of the cause, and, if the defendant is convicted in such case, he is liable for such costs incurred in attachments for state witnesses when they are exonerated from payment of same. State v. Reinhart, 92 Tenn. 270, 21 S.W. 524, 1892 Tenn. LEXIS 72 (1893).

40-25-105. Prosecutor not entitled to fees.

No prosecutor in a misdemeanor is entitled to any compensation for services as prosecutor, or for attendance as a witness on behalf of the state.

Code 1858, § 5573 (deriv. Acts 1829, ch. 100, § 3); Shan., § 7600; Code 1932, § 12227; T.C.A. (orig. ed.), § 40-3305.

Cross-References. Advance fees unauthorized, § 8-21-102.

Express authorization for compensation required, § 8-21-101.

Official misconduct, § 39-16-402.

Penalty for excessive fees charged, § 8-21-103.

Law Reviews.

Criminal Contempt, Jury Trial, Private Prosecutors & Child Support, (Clarke Lee Shaw), 34 No. 4 Tenn. B.J. 22 (1998).

40-25-106. Witnesses living near court.

Neither the state nor any county of the state shall pay or be liable in any criminal case or prosecution for the fees, costs or mileage that may accrue in favor of any witness who, at the time of attendance as a witness before any court, grand jury or magistrate, resides within five (5) miles of the place where the person attends as a witness.

Acts 1897, ch. 20, § 2; Shan., § 7622a2; Code 1932, § 12251; T.C.A. (orig. ed.), § 40-3306.

Cross-References. Compensation of witnesses, title 24, ch. 4.

Criminal cases, §§ 40-17-112, 40-17-116.

Criminal cases, witnesses summoned from another state, § 40-17-208.

Fees for state witnesses, § 40-17-112.

Hearings and investigations, § 40-28-106.

40-25-107. State and county expense fees for misdemeanors.

Every person indicted or presented in any court or tried on state warrants charging driving while intoxicated, or carrying a deadly weapon with the intent to be armed, tried in a court of general sessions, for a misdemeanor, except when acquitted, before the person is discharged, shall be required by the judgment of the court to pay or secure or work out in the workhouse, in addition to all other costs, a county expense fee of five dollars ($5.00) for each defendant. The county expense fee shall be included and recovered as part of the costs of the case, and collected and paid over as costs. The county expense fee shall be paid to the county.

Acts 1919, ch. 57, § 1; Shan. Supp., § 7616a1; Code 1932, § 12243; Acts 1961, ch. 307, § 1; 1978, ch. 839, § 5; 1981, ch. 488, § 3; T.C.A. (orig. ed.), § 40-3307.

Cross-References. Fees for clerks of court, § 8-21-401.

Imprisonment for nonpayment of costs prohibited, § 40-24-104.

Legislative intent on local litigation taxation, § 67-4-601.

Litigation tax, § 67-4-602.

Powers and duties of tax collectors, §§ 67-4-210, 67-4-213.

When taxes due, manner of payment, § 67-4-206.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Costs, § 22; 6A Tenn. Juris., Constitutional Law, § 82.

Law Reviews.

Criminal Law and Procedure — 1961 Tennessee Survey (Robert E. Kendrick), 14 Vand. L. Rev. 1220.

NOTES TO DECISIONS

1. Constitutionality.

This statute is not invalid as taking defendant's property without compensation or without due process of law, in violation of Tenn. Const., art. I, §§ 8, 21. McKee v. State, 142 Tenn. 173, 218 S.W. 233, 1919 Tenn. LEXIS 46 (1920).

This section does not apply to cases where a nolle prosequi is entered, as to construe these sections to be applicable to such cases would violate U.S. Const. amend. 13, § 1, as providing for involuntary servitude where there was no conviction of a crime. State ex rel. Hobbs v. Murrell, 170 Tenn. 152, 93 S.W.2d 628, 1935 Tenn. LEXIS 120 (1936).

40-25-108. Loss of fees by clerk's neglect.

No clerk is entitled to any fees in any state case, when the fees have become chargeable to the state or county, in consequence of any omission of the clerk's duty or clerical defect in the record.

Code 1858, § 5565 (deriv. Acts 1845-1846, ch. 95, § 1); Shan., § 7589; Code 1932, § 12217; T.C.A. (orig. ed.), § 40-3308.

Cross-References. Clerk's fees, § 8-21-401.

Forfeiture of fees chargeable because of neglect of duty, § 8-21-406.

Forfeiture of fees for clerical error, § 40-19-102.

Official misconduct, § 39-16-402.

40-25-109. Fees on unserved process.

No fee is allowed the sheriff or other executive officer, upon the return of any kind of criminal process or subpoena “not found,” unless the officer makes oath before the clerk that the officer has been to the residence of the person mentioned in the process, or at the place where the person last resided in that county, or that the person has not resided in the county for twelve (12) months.

Code 1858, § 5567 (deriv. Acts 1843-1844, ch. 215, §§ 10, 12); Shan., § 7591; Code 1932, § 12218; T.C.A. (orig. ed.), § 40-3309.

Cross-References. Sheriffs and constables, specific fees authorized, § 8-21-901.

Attorney General Opinions. In order to receive the fee for attempting to serve criminal process, the officer must satisfy the conditions in T.C.A. § 40-25-109; an affidavit attached to the unserved process would not be sufficient to satisfy the statutory requirement, OAG 04-088 (5/06/04).

40-25-110. Fees lost by escape of prisoner — Exception.

No sheriff, jailer or other officer charged with the custody of the prisoner is entitled to any allowance for keeping or removing the prisoner, if the prisoner escapes from the custody of the sheriff or jailer, or from the officer during removal.
1. Where prisoners make their escape from jail by means of force, stratagem or other fraudulent device, and reasonable care and diligence were used by the jailer to prevent the escape, or to secure the prisoner or prisoners in jail, the jailer shall be entitled to fees as jailer; provided, that it shall be clearly made to appear to the satisfaction of the judge of the circuit or criminal court in the county where the escape was made or the cause pending, that the escape was effected in the manner and under the circumstances aforementioned, and that the jailer had used the proper efforts on the jailer's part to recover the prisoner or prisoners.
2. In all cases falling within this subsection (b), it is the duty of the judge to certify the claim for payment as in other bills of cost, and the sheriff or other officers having custody of the prisoner or prisoners shall have all the benefits of this subsection (b).

Code 1858, § 5564; Acts 1859-1860, ch. 83, §§ 1-3; Shan., §§ 7586-7588; Code 1932, §§ 12214-12216; T.C.A. (orig. ed.), §§ 40-3310, 40-3311.

Cross-References. Bills of cost certification, § 5-9-308.

Bills of cost, correction, § 5-9-309.

Bills of cost, disallowance, § 5-9-310.

Custody, escape defined, § 39-16-601.

Liability for escape en route, § 41-21-310.

Official misconduct, § 39-16-402.

Permitting or facilitating escape, § 39-16-607.

Sheriffs and constables, specific fees authorized, § 8-21-901.

40-25-111. Payment for transporting prisoners — Limitation on charges.

The sheriff or other officer, conveying an inmate to the penitentiary, shall make out an account in writing, stating the number of miles on the usual route from the place of conviction to the penitentiary, the number of guards necessarily employed to ensure the safe conveyance of the inmate, and the distance each of the guards may have traveled, and make oath to the truth of the account before the warden of the penitentiary, or any judge, who shall certify the fact.
Upon presentation of the account thus sworn to and certified, the director of accounts shall issue a warrant for the amount, as in other cases, if satisfied of the correctness of the account.
It is the duty of the sheriff to carry to the penitentiary, at the same time, all inmates in the sheriff's custody, at that time sentenced to the penitentiary, and the sheriff shall not be entitled to charge for more than one (1) trip.

Code 1858, §§ 5589-5591 (deriv. Acts 1831, ch. 86, §§ 1, 4, 5; 1833, ch. 29); Shan., §§ 7630-7632; Code 1932, §§ 12259-12261; impl. am. Acts 1937, ch. 33, §§ 24, 29; C. Supp. 1950, § 12260; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), §§ 40-3312, 40-3314.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

Cross-References. Expenses paid by county, § 40-9-127.

Expenses paid by state, § 40-9-126.

Order specifying number of guards or removal of prisoners, § 40-23-108.

Safekeeping of convicts, tranfers to penitentiary, § 40-23-107.

Sheriffs and constables, specific fees authorized, § 8-21-901.

Summons of additional guards, § 40-23-110.

Transportation of prisoner by sheriff, § 8-26-108.

40-25-112. Limitation on sheriff's fees.

The sheriff and guard shall be entitled to no other compensation than that which is allowed by this code.

Code 1858, § 5592; Shan., § 7633; Code 1932, § 12262; T.C.A. (orig. ed.), § 40-3313.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

Cross-References. Express authorization for compensation required, § 8-21-101.

40-25-113. Certification of items in bill of costs.

It is the duty of the clerk of the court in which a criminal action has been tried, or costs accrued, to examine bills of costs. The court may also hear testimony in regard to the items, if necessary, and, if the charges are legal and duly proved, to certify the fact thereon.
In making such certificate, the clerk of the court shall certify the aggregate amount of each bill of cost, writing the aggregate amount in both words and figures, and no bill of cost shall be paid unless so certified.

Code 1858, § 5571 (deriv. Acts 1827, ch. 48, § 1; 1832, ch. 7); Acts 1897, ch. 29, § 1; Shan., § 7598; Code 1932, § 12225; modified; T.C.A. (orig. ed.), § 40-3315; Acts 1983, ch. 396, § 1.

Cross-References. Audit and payment of bills of costs, § 40-25-137.

Bills of cost, certification, § 5-9-308.

Certification of bills or costs against state or county, § 40-25-136.

Duties of circuit court clerk, § 18-4-103.

Seal not required on certificates, § 40-25-122.

NOTES TO DECISIONS

1. Jurisdiction of Chancery to Retax Costs.

Chancery has no jurisdiction as to costs illegally taxed and collected in criminal court for mistake or fraud, or to prevent multiplicity of suits where test cases may be made for retaxation of costs in criminal court. State v. Richards, 120 Tenn. 477, 113 S.W. 370, 1908 Tenn. LEXIS 38 (1908).

40-25-114. Discretion of court.

The court has also discretion in controlling the taxation of costs, and in no case shall the state or county be charged therewith, unless the court so order, specifying in the order the officers and witnesses whose costs are to be taxed, together with the amount due each.

Code 1858, § 5572 (deriv. Acts 1827, ch. 48, § 1); Shan., § 7599; Code 1932, § 12226; T.C.A. (orig. ed.), § 40-3316.

NOTES TO DECISIONS

1. Costs Against State or County.

Discretion of court in assessing costs against state or county is restricted to cases wherein state or county is liable for costs. State v. Brown, 169 Tenn. 119, 83 S.W.2d 250, 1935 Tenn. LEXIS 24 (1935).

2. Taxing of Costs Due to Insanity.

The court has authority to tax costs on suspension of prosecution because of present insanity of defendant after conviction in lower court. Johnson v. State, 157 Tenn. 528, 12 S.W.2d 388, 1928 Tenn. LEXIS 215 (1928).

40-25-115. Certification of jury expenses in misdemeanor cases.

The expenses of keeping a jury in any misdemeanor case in which the county may eventually become liable, may, in the discretion of the court, be certified, upon the adjournment of the court, to the judge of the general sessions court, who shall issue a warrant for the jury expenses to any person authorized to receive it; provided, that all persons having bills against the county shall first make oath before the clerk of the circuit or criminal court that the bills are true and correct, and the clerk shall affix the clerk's certificate thereto.
All the bills shall then be read and presented in open court to the judge and the district attorney general, for their inspection and allowance, if correct.
The clerk of the court shall be required to enter the amounts of the bills as may be so approved and allowed, upon the minutes of the court, and shall certify the amounts of the bills in writing on the face of each original bill, attach the seal of the clerk's office, and forward the bill to the proper authorities for payment, for which the clerk shall receive a fee of fifty cents (50¢), to be paid by the party to whom the bill belongs.

Acts 1859-1860, ch. 6, § 2; 1885 (Ex. Sess.), ch. 11, § 1; Shan., § 7607; mod. Code 1932, § 12234; T.C.A. (orig. ed.), § 40-3317.

Cross-References. Circumstances when state or county liable, § 40-25-130.

Costs included, § 40-25-133.

Liability of state or county, § 40-25-129.

40-25-116. Certificate required for payment.

The judge of the general sessions court shall not issue warrants for any accounts for boarding juries until the bill shows on its face that all of the requirements of § 40-25-115 have been satisfied.

Acts 1885 (Ex. Sess.), ch. 11, § 2; Shan., § 7608; Code 1932, § 12235; T.C.A. (orig. ed.), § 40-3318.

40-25-117. Refund of expenses collected from defendant.

If the costs are afterwards collected from the defendant or the defendant's sureties, they shall be turned over to the trustee of the county, by the clerk of the court, as fines are remitted.

Acts 1885 (Ex. Sess.), ch. 11, § 3; Shan., § 7609; mod. Code 1932, § 12236; T.C.A. (orig. ed.), § 40-3319.

Cross-References. Refund to county of jailers' fees collected from defendant, § 41-4-137.

Refund to state of jailers' fees collected from defendant, § 41-4-135.

40-25-118. Certification of fees for boarding juries and prisoners under indictment.

In all felony cases, after indictment is found, in which the state may eventually become liable, the clerk of the court shall certify at the adjournment of each term of the court, all fees of the sheriff for board of the prisoners; and also the fees for boarding the juries in cases in which there has been no final disposition.

Acts 1893, ch. 138, § 1; Shan., § 7623; Code 1932, § 12252; T.C.A. (orig. ed.), § 40-3320; Acts 1983, ch. 418, § 6.

Cross-References. Circumstances when state or county liable, § 40-25-130.

Costs included, § 40-25-133.

Housing state prisoner, contracting, reimbursement of costs, § 41-8-106.

Liability of state or county, § 40-25-129.

NOTES TO DECISIONS

1. Recovery of Costs.

Chancery court cannot entertain a bill to recover costs erroneously paid to a county, since the remedy of the state is by motion to have costs retaxed. State v. Davidson County, 52 S.W. 477, 1899 Tenn. Ch. App. LEXIS 13 (1899).

40-25-119. Contents of bill of fees.

All of the fees may be made out in one (1) bill, but each case shall show the date of indictment, the date of commitment, the date or dates of boarding the jury, the rate charged for boarding the jury, up to what date judgment has been given for the costs, and of all previous dispositions of any previous court in the case or cases.

Acts 1893, ch. 138, § 2; Shan., § 7624; Code 1932, § 12253; T.C.A. (orig. ed.), § 40-3321.

40-25-120. Taxation of final costs to state.

If, on the final disposition of the case, the state is held liable for the costs, the clerk shall tax only the difference between the amount previously collected and the amount due to date of final disposition.

Acts 1893, ch. 138, § 3; Shan., § 7625; mod. Code 1932, § 12254; T.C.A. (orig. ed.), § 40-3322.

Cross-References. Circumstances when state or county liable, § 40-25-130.

Costs included, § 40-25-133.

Liability of state or county, § 40-25-129.

40-25-121. Collection and refund of costs for which state not liable.

In the event the court does not hold the state liable for the costs in any cases when finally disposed of, it is the duty of the clerk to include all of the costs previously paid by the state on this account in the clerk's executions and the clerk's bill of costs, and to collect and refund the same to the state, in the same manner as the clerk is required by law to pay over state revenue.

Acts 1893, ch. 138, § 4; Shan., § 7626; Code 1932, § 12255; T.C.A. (orig. ed.), § 40-3323.

Cross-References. Circumstances when state or county liable, § 40-25-130.

Costs included, § 40-25-133.

Duties of circuit court clerk, § 18-4-103.

Liability of state or county, § 40-25-129.

40-25-122. Seal not required on certificates.

It is not necessary for a clerk to affix the seal of the clerk's court to the certificate to the bill of costs in criminal prosecutions.

Acts 1866-1867, ch. 36, § 7; Shan., § 7595; Code 1932, § 12222; T.C.A. (orig. ed.), § 40-3324.

Cross-References. Certification of items in bill of costs, § 40-25-113.

NOTES TO DECISIONS

1. Clerk Not Entitled to Fee for Seal.

No fee will be allowed a clerk for affixing the seal of his court to his certificate to the bill of costs in criminal cases. Henderson v. Walker, 101 Tenn. 229, 47 S.W. 430, 1898 Tenn. LEXIS 55 (1898).

40-25-123. Payment of costs by defendant — Suspension of costs and litigation tax for indigent defendants.

A defendant convicted of a criminal offense shall pay all the costs that have accrued in the cause.
Notwithstanding any law to the contrary, the presiding judge of a court of general sessions may suspend the court costs and the litigation tax as required by §§ 67-4-602 — 67-4-606, for any indigent criminal defendant, as in the presiding judge's opinion the equities of the case require.
1. Notwithstanding any law to the contrary, a general sessions or criminal court judge may either:
  1. Suspend the court costs and litigation tax as required by §§ 67-4-602 — 67-4-606, for any indigent criminal defendant, as in the judge's opinion the equities of the case require; or
  2. Upon the application of an indigent defendant, refer the defendant to the program described in subdivision (c)(2) if the county legislative body has voted to approve such program. Upon certification of the court clerk that the defendant has successfully completed the requirements of subdivision (c)(2), the judge may suspend the court costs and litigation tax as required by §§ 67-4-602 — 67-4-606, for any indigent criminal defendant, as in the judge's opinion the equities of the case require.
2. 1. The court clerk for a general sessions or criminal court may, in the clerk's discretion, submit a request in writing to the county legislative body to implement a program of community service for indigent criminal defendants in lieu of full payment of court costs and litigation taxes. A county legislative body receiving such request shall vote, within thirty (30) days, whether to approve the request. If a county legislative body votes to approve the request pursuant to this subdivision (c)(2)(A), then the clerk may implement the program.
  2. Upon referral pursuant to subdivision (c)(1)(B), the clerk may determine whether the defendant qualifies for the program based upon the guidelines adopted by the clerk. The guidelines may include evaluation of the defendant's ability to pay the court costs and litigation taxes. The clerk may remove the defendant from the program at any time due to failure to comply with the program guidelines. The number of applicants accepted and the duration and continuation of the program shall be at the discretion of the clerk. Participation in the community service program established by this subdivision (c)(2) shall not operate to stay a revocation of a license pursuant to § 40-24-105(b); nor shall participation in the program operate to stay collection activity pursuant to § 40-24-105(d) for any of the defendant's cases not approved for inclusion by the clerk.

Code 1858, § 5583 (deriv. Acts 1813, ch. 136, § 2); Shan., § 7617; Code 1932, § 12244; T.C.A. (orig. ed.), § 40-3325; Acts 1998, ch. 806, § 1; 2016, ch. 675, § 1; 2018, ch. 542, § 1; 2018, ch. 884, § 1.

Compiler's Notes. Acts 2016, ch. 675, § 2 provided that the act, which added subsection (c), shall take effect on March 29, 2016, and cease to be effective July 1, 2018. However, Acts 2018, ch. 542, § 1 amended subsection (c) effectively deleting the version added by Acts 2016, ch. 675, § 2.

Acts 2018, ch. 542, § 1 and 2018, ch. 884, § 1 implemented the same amendments to subsection (c). The ch. 542 amendment was effective from March 9, 2018 through July 1, 2018. The ch. 884 amendment took effect July 1, 2018 at 12:01 a.m.

Amendments. The 2018 amendments by chs. 542 and 884 rewrote (c) which read: “(c)(1) Notwithstanding any law to the contrary, in any county having a population of not less than four hundred thirty-two thousand two hundred (432,200) nor more than four hundred thirty-two thousand three hundred (432,300), according to the 2010 federal census or any subsequent federal census, a general sessions or criminal court judge may either:“(A) Suspend the court costs and litigation tax as required by §§ 67-4-602 — 67-4-606, for any indigent criminal defendant, as in the judge's opinion the equities of the case require; or“(B) Upon the application of an indigent defendant, refer the defendant to the program described in subdivision (c)(2). Upon certification of the clerk of the criminal court and the general sessions court-criminal division, that the defendant has successfully completed the requirements of subdivision (c)(2), the judge may suspend the court costs and litigation tax as required by §§ 67-4-602 — 67-4-606, for any indigent criminal defendant, as in the judge's opinion the equities of the case require.“(2) The clerk of the criminal court and the general sessions court-criminal division may, in the clerk's discretion, implement a program of community service in lieu of full payment of court costs and litigation taxes for all or some of the criminal and general sessions courts. Upon referral pursuant to subdivision (c)(1)(B), the clerk may determine whether the defendant qualifies for the program based upon the guidelines adopted by the clerk. The guidelines may include evaluation of the defendant's ability to pay the court costs and litigation taxes. The clerk may remove the defendant from the program at any time due to failure to comply with the program guidelines. The number of applicants accepted and the duration and continuation of the program shall be at the discretion of the clerk. Participation in the community service program established by this subdivision (c)(2) shall not operate to stay a revocation of a license pursuant to § 40-24-105(b); nor shall participation in the program operate to stay collection activity pursuant to § 40-24-105(d) for any of the defendant's cases not approved for inclusion by the clerk.”

Effective Dates. Acts 2018, ch. 542, § 2. March 9, 2018.

Acts 2018, ch. 884, § 2. July 1, 2018 at 12:01 a.m.

Cross-References. Circumstances when state or county liable, § 40-25-130.

Collection of fines, costs and litigation taxes, § 40-24-105.

Costs adjudged, § 40-25-104.

Costs on discharge of criminal defendant, § 29-21-126.

Prosecutor not entitled to fees, § 40-25-105.

Sheriffs and constables, specific fees authorized, § 8-21-901.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 32.23.

Law Reviews.

Jail Fees and Court Costs for the Indigent Criminal Defendant: An Examination of the Tennessee Procedure, 35 Tenn. L. Rev. 74 (1968).

Attorney General Opinions. Payment allocation, where defendant indigent, only as to costs or fines, OAG 98-099 (5/27/98).

County liability for cost of incarcerating misdemeanant before sentencing, OAG 98-0159 (8/24/98).

Community service or work project in lieu of payment of court costs, OAG 99-233 (12/15/99).

A general sessions court clerk need not make an immediate report to the department of revenue and the department, in turn, to the court of the judiciary whenever a general sessions judge suspends litigation taxes for an indigent criminal defendant in accordance with T.C.A. § 40-25-123, OAG 02-063 (5/16/02).

Criminal defendant may not have his probation revoked through a violation warrant for failing to pay costs assessed in a criminal action, OAG 03-106 (8/22/03).

NOTES TO DECISIONS

1. Acquittal.

The state and county are not liable for the defendant's costs, although he is acquitted. Tucker v. State, 39 Tenn. 555, 1859 Tenn. LEXIS 275 (1859); Avery v. State, 66 Tenn. 328, 1874 Tenn. LEXIS 137 (1874); Duff v. State, 3 Shan. 785 (1877); State v. Martin, 78 Tenn. 549, 1882 Tenn. LEXIS 222 (1882).

2. Waiver.

T.C.A. § 55-50-303(b)(1), pertaining to the certification of payment of fines and costs, provides an exception to the general rules covering court costs, therefore, general sessions courts possess the discretion to waive court costs in a case of driving under the influence upon a finding that the defendant is indigent. State v. Black, 897 S.W.2d 680, 1995 Tenn. LEXIS 181 (Tenn. 1995).

3. Infants.

Infant may be convicted of crime, fined and adjudged to pay costs. Beasley v. State, 10 Tenn. 481, 1831 Tenn. LEXIS 2 (1831).

40-25-124. Costs where several defendants.

It is the duty of the district attorney general to include in one (1) bill of indictment or presentment all persons engaged in the same offense, and the costs shall be taxed as one (1) suit, unless the defendants sever in their trial, and, in that event, the costs are taxed as two (2) or more suits, according to the nature of the case.

Code 1858, § 5568 (deriv. Acts 1843-1844, ch. 215, § 11); Shan., § 7592; Code 1932, § 12219; modified; T.C.A. (orig. ed.), § 40-3326.

Law Reviews.

Imprisonment for Nonpayment of Fines and Costs: A New Look at the Law and the Constitution (Paul M. Stein), 22 Vand. L. Rev. 611 (1969).

NOTES TO DECISIONS

1. Provision Is Directory.

This provision to include in one indictment all persons engaged in the same offense is directory to the district attorney general and should be pursued, if practicable; but if not pursued, it affords no matter in defense to one of several offenders who is indicted alone. State v. Davis, 34 Tenn. 273, 1854 Tenn. LEXIS 47 (1854).

40-25-125. Costs on peace warrant.

Upon the trial of a person who has been arrested on a warrant to keep the peace, and bound over for appearance at court to answer the charge, the court may, at its discretion, order the person, or the person at whose instance the warrant was taken out, to pay the costs.

Code 1858, § 5584 (deriv. Acts 1835-1836, ch. 59, § 1); Shan., § 7618; Code 1932, § 12245; T.C.A. (orig. ed.), § 40-3327.

Attorney General Opinions. Assessment of court costs for multiple criminal offenses, OAG 99-056 (3/9/99).

NOTES TO DECISIONS

1. Return of Nulla Bona.

Costs once taxed against the prosecutor cannot, upon return of nulla bona, be collected from state or county. State v. Wormick, 69 Tenn. 559, 1878 Tenn. LEXIS 139 (1878).

40-25-126. Taxing of costs of malicious or frivolous prosecution.

When the defendant is discharged upon the examination, or acquitted in any criminal prosecution for a public offense, and the court is of opinion that the prosecution was malicious or frivolous, the prosecutor may be taxed with all the costs.
This section extend to trials before judges of general sessions courts, by whom the prosecutor may, in like manner and under like circumstances, be taxed with all the costs.

Code 1858, §§ 5579, 5580 (deriv. Acts 1794, ch. 1, § 76; 1807, ch. 24, § 1; 1851-1852, ch. 70, §§ 1, 2); Shan., §§ 7611, 7612; Code 1932, §§ 12239, 12240; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 40-3328.

Cross-References. Taxing of costs on abandonment of prosecution, § 40-25-127.

Taxing prosecutor where defendant has made settlement, § 40-25-128.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 32.23.

Attorney General Opinions. General sessions judge's legal authority, OAG 00-001 (1/4/00).

NOTES TO DECISIONS

1. Statute Strictly Construed.

The section is strictly construed and pursued in favor of the prosecutor. Weems v. State, 3 Shan. 452 (1875).

2. Taxation of Costs Discretionary.

To authorize the court to tax the prosecutor with the costs, the prosecution should be very clearly without foundation, and that known to the prosecutor, and the power given to magistrates to tax the prosecutor with costs is a legal discretion, not arbitrary. Frazer v. State, 32 Tenn. 535, 1852 Tenn. LEXIS 111 (1852); State v. Green, 39 Tenn. 356, 1859 Tenn. LEXIS 224 (1859).

3. Liability of Prosecutor for Costs.

The prosecutor is not liable for costs, unless the prosecution was malicious or frivolous. Dillon v. State, 5 Tenn. 271, 1817 Tenn. LEXIS 114 (1817).

The prosecutor is not liable for the costs in any case except where that liability has been created by statute. Hansard v. State, 24 Tenn. 115, 1844 Tenn. LEXIS 37 (1844); Weems v. State, 3 Shan. 452 (1875); State v. Wormick, 69 Tenn. 559, 1878 Tenn. LEXIS 139 (1878).

Words imputing perjury to defendant, spoken by the prosecutor while in the legitimate discharge of his duty, are not actionable, and where the case was decided in favor of defendant, and a motion was pending to tax the prosecutor with the costs, the prosecutor stated in defense of himself that defendant had sworn falsely, and he had proved it, the prosecutor was protected against an action. Davis v. McNees, 27 Tenn. 40, 1847 Tenn. LEXIS 40 (1847).

The fact that the prosecution is frivolous or malicious should appear from the proof at the trial. Frazer v. State, 32 Tenn. 535, 1852 Tenn. LEXIS 111 (1852); State v. Green, 39 Tenn. 356, 1859 Tenn. LEXIS 224 (1859); Weems v. State, 3 Shan. 452 (1875).

4. Retaxation of Costs.

Costs taxed to a prosecutor in a proceeding to keep the peace cannot, upon the return of nulla bona, be retaxed to the state. State v. Wormick, 69 Tenn. 559, 1878 Tenn. LEXIS 139 (1878).

A judgment against the state for costs in a felony case which were first adjudged against the prosecutor is void. Morgan v. Pickard, 86 Tenn. 208, 9 S.W. 690, 1887 Tenn. LEXIS 39 (1887).

5. Appeal from Taxation of Costs.

Where the justice of the peace (now general sessions judge) erroneously taxed the prosecutor with the costs of the case, as for a frivolous or malicious prosecution, and an appeal was taken to the circuit court where the district attorney waived the question of the right to appeal, and the judgment of the justice was affirmed, an appeal will lie to the supreme court. Weems v. State, 3 Shan. 452 (1875).

Where prosecutor in criminal case before justice of the peace (now general sessions judge) was taxed with costs upon ground that the prosecution was frivolous, he may take case to circuit court by certiorari and there have a trial upon the question; and there the circuit judge should hear all the evidence, and not be limited to the evidence transcribed by the justice. McLain v. State, 6 Tenn. Civ. App. (6 Higgins) 38 (1913).

40-25-127. Taxing of costs on abandonment of prosecution.

If any person commences a criminal prosecution against any individual, either by warrant from a judge of the general sessions court, or otherwise, and shall afterwards willfully abandon the criminal prosecution, the court having jurisdiction of the cause shall have power to tax the prosecutor with the costs.

Acts 1871, ch. 19, § 1; Shan., § 7613; Code 1932, § 12241; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 40-3329.

Cross-References. Taxing of costs of malicious or frivolous prosecution, § 40-25-126.

Taxing prosecutor where defendant has made settlement, § 40-25-128.

40-25-128. Taxing prosecutor where defendant has made settlement.

In all cases of embezzlement and fraudulent breach of trust, where it appears to the court that the defendant has made settlement before the time of trial, and the prosecutor fails to attend and prosecute, the court shall tax the prosecutor with all costs of the case.

Acts 1903, ch. 300, § 1; Shan., § 7613a1; Code 1932, § 12242; T.C.A. (orig. ed.), § 40-3330.

Cross-References. Taxing of costs of malicious or frivolous prosecution, § 40-25-126.

Taxing of costs on abandonment of prosecution, § 40-25-127.

40-25-129. Cases in which state or county liable.

Neither the state nor any county of the state shall pay or be liable in any criminal prosecution for any costs or fees hereafter accruing, except in the following classes of cases:
1. All felony cases, where prosecution has proceeded to a verdict in the circuit or criminal court;
2. All cases where the defendant has been convicted in a court of record and the court has made a finding at any evidentiary hearing that the defendant is indigent and remains indigent at the time of conviction or where the execution issued upon the judgment against the defendant has been returned nulla bona. Neither the state of Tennessee nor any county of the state shall be liable for or pay any costs in any criminal case, where security has been accepted by the officer taking the security, and an execution, afterwards returned nulla bona, as to the defendant and the defendant's securities. Compensation for boarding prisoners (§§ 8-26-105, 40-25-118 — 40-25-121, and 41-4-131 — 41-4-137), expenses of keeping and boarding juries (§§ 40-25-115 — 40-25-121), compensation of jurors (§§ 22-4-101 — 22-4-107 and 40-18-107), costs of transcripts in cases taken to the supreme court by appeal or writ of error as provided by law, mileage and legal fees for removing or conveying criminals and prisoners from one (1) county to another, or from one (1) jail to another (§ 8-21-901(a)(3)(D)), and compensation and mileage of witnesses for the state duly subpoenaed and required to attend before any court, grand jury or magistrate in a county other than that of their residence and more than five (5) miles from their residence (§§ 24-4-102 and 40-17-112), and where any witness for the state shall be confined in jail to await the trial in which the witness is to testify, shall be paid in all cases as heretofore; and
3. 1. When a criminal prosecution is instituted against a state prison inmate because of conduct within a department of correction penal institution or because of conduct relative to an escape attempt from a penal institution, the expense of the prosecution imposed on the county wherein the institution is located shall be reimbursed to the county by the state. When a criminal prosecution is instituted against a juvenile committed to the department of children's services and placed in a youth center because of conduct within the youth center or because of conduct relative to an escape attempt from the youth center, the expense of the prosecution imposed on the county wherein the youth center is located shall be reimbursed to the county by the state;
  2. For the purpose of this section only, “expense imposed on the county” means the expense of keeping and boarding jurors pursuant to §§ 40-25-115 — 40-25-121 and the compensation and mileage allowance of jurors pursuant to title 22, chapter 4, and § 40-18-107.
Any bill of costs or other fees owed a county by the department of correction as the result of a criminal conviction in that county shall be paid by the department within one hundred twenty (120) days of the date the bill is submitted.

Acts 1897, ch. 20, § 1; 1899, ch. 307, § 1; Shan., § 7622a1; Code 1932, § 12246; Acts 1965, ch. 355, § 4; 1969, ch. 264, § 1; impl. am. Acts 1974, ch. 556, § 1; Acts 1980, ch. 625, § 1; 1982, ch. 785, § 1; T.C.A. (orig. ed.), § 40-3331; Acts 1989, ch. 278, § 52; 1996, ch. 1079, § 126; 2016, ch. 782, § 1.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

Cross-References. Circumstances when state or county liable, § 40-25-130.

Costs adjudged, § 40-25-104.

Costs included, § 40-25-133.

County liability, § 40-25-132.

Fees for state witnesses, § 40-17-112.

State liability, § 40-25-131.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Costs, §§ 14, 38; 21 Tenn. Juris., Prisons and Prisoners, § 3; 25 Tenn. Juris., Witnesses, § 9.

Attorney General Opinions. Payment allocation, where defendant indigent, only as to costs or fines, OAG 98-099 (5/27/98).

County liability for cost of incarcerating misdemeanant before sentencing, OAG 98-0159 (8/24/98).

Cost of interpreters for indigent defendants in general sessions court, OAG 99-211 (10/20/99).

NOTES TO DECISIONS

1. Constitutionality.

The statute compiled in this and following sections is constitutional against probably all possible assaults that might be made against it. State v. Henley, 98 Tenn. 665, 41 S.W. 352, 1897 Tenn. LEXIS 156 (1897); State ex rel. Bolt v. Drummond, 128 Tenn. 271, 160 S.W. 1082, 1913 Tenn. LEXIS 47 (1913).

2. Purpose.

The legislative purpose was to make an equitable division of costs as between the state and county. Johnson v. State, 157 Tenn. 528, 12 S.W.2d 388, 1928 Tenn. LEXIS 215 (1928).

3. Construction with Other Sections.

Sections 40-25-129 — 40-25-133 must be construed together since liability of state and county for costs is restricted to cases where state or county are required by statute to pay costs. State v. Brown, 169 Tenn. 119, 83 S.W.2d 250, 1935 Tenn. LEXIS 24 (1935).

4. Costs Taxable.

The statute applies to trial costs only, and not to costs on appeal. Working v. State, 131 Tenn. 186, 174 S.W. 256, 1914 Tenn. LEXIS 97 (1915).

The fees of the clerk of the trial court for the transcript of the record on appeal or writ of error in a criminal case are taxable under this statute. Working v. State, 131 Tenn. 186, 174 S.W. 256, 1914 Tenn. LEXIS 97 (1915).

This section applies to costs prior to verdict. Johnson v. State, 157 Tenn. 528, 12 S.W.2d 388, 1928 Tenn. LEXIS 215 (1928).

Provision of this section imposing costs upon the state in felony cases that proceed to a verdict is applicable only to costs in the trial court and not to appeals. Becton v. State, 506 S.W.2d 137, 1974 Tenn. LEXIS 517 (Tenn. 1974).

5. Liability of Defendant.

If defendant plead not guilty and is discharged, if bound over and not indicted, or if indicted and acquitted, he is not liable for costs. State v. Cooper, 120 Tenn. 549, 113 S.W. 1048, 1908 Tenn. LEXIS 42 (1908).

6. Liability of County.

Judgment for costs against county in criminal proceeding cannot be entered unless authorized by statute. Reagan v. Fentress County, 169 Tenn. 103, 83 S.W.2d 244, 1935 Tenn. LEXIS 22 (1935).

Clerk cannot sue county for costs assessed in criminal proceedings until county judge has passed upon same. Reagan v. Fentress County, 169 Tenn. 103, 83 S.W.2d 244, 1935 Tenn. LEXIS 22 (1935).

County was not liable for costs in misdemeanor suit where defendant was acquitted. State v. Brown, 169 Tenn. 119, 83 S.W.2d 250, 1935 Tenn. LEXIS 24 (1935).

7. Mandamus Proceedings.

Where the defendant gave bond for the costs and fine imposed upon him, and, upon a return of “nulla bona,” was illegally rearrested and confined in the workhouse, and thus paid the costs by his labor, a claim against the county by a state's witness, on the theory that the case should be treated as if he voluntarily paid the costs to the county, could only be made by suit against the county for money had and received for the use of the witness, and not by bill for mandamus to compel the county judge to sign a warrant. State ex rel. Scheidigger v. Cummings, 136 Tenn. 39, 188 S.W. 618, 1916 Tenn. LEXIS 97 (1916).

Clerk is entitled to bring mandamus proceedings against county judge if he refuses to pass on costs bill against county after certification by circuit or criminal court and district attorney. Reagan v. Fentress County, 169 Tenn. 103, 83 S.W.2d 244, 1935 Tenn. LEXIS 22 (1935).

8. “Shall Be Paid in All Cases as Heretofore.”

Compensation of sheriff and jurors is not dependent upon conviction, so that they are left impartial as before, because this statute provides that the compensation of the jurors and of the sheriff or other officers for summoning the jurors and attending upon the jury are still paid out of the treasury, and not taxed as costs. State v. Henley, 98 Tenn. 665, 41 S.W. 352, 1897 Tenn. LEXIS 156 (1897).

Under § 41-4-136, the sheriff is entitled to the monthly payment by the county for the jail fees accrued to him for the keeping of county prisoners, because this statute declares that such fees “shall be paid in all cases as heretofore.” Stovall v. Perry, 134 Tenn. 707, 185 S.W. 708, 1916 Tenn. LEXIS 3 (1916).

If clause that costs “shall be paid in all cases as heretofore,” at the conclusion of this section, is given its full effect, the cases falling under the last proviso must be excluded from the influence of the preceding proviso as to nonliability. State ex rel. Scheidigger v. Cummings, 136 Tenn. 39, 188 S.W. 618, 1916 Tenn. LEXIS 97 (1916).

Notwithstanding the fact that security was taken and execution afterwards returned nulla bona as to the defendant and sureties, which rendered the state and county nonliable for criminal costs, under the second sentence in (2) of this section, yet under the third sentence in (2), a state's witness residing in another county and more than five miles from the courthouse may recover his compensation and mileage from the county, because it provides that costs “shall be paid in all cases as heretofore.” State ex rel. Scheidigger v. Cummings, 136 Tenn. 39, 188 S.W. 618, 1916 Tenn. LEXIS 97 (1916).

9. Waiver of Costs.

T.C.A. § 55-50-303(b)(1), pertaining to the certification of payment of fines and costs, provides an exception to the general rules covering court costs, therefore, general sessions courts possess the discretion to waive court costs in a case of driving under the influence upon finding that the defendant is indigent. State v. Black, 897 S.W.2d 680, 1995 Tenn. LEXIS 181 (Tenn. 1995).

40-25-130. Circumstances when state or county liable.

The state, or the county in which the offense was committed or is triable, according to the nature of the offense, pays the costs accrued on behalf of the state, and for which the state or county is liable under § 40-25-129, in the following cases, when:

The defendant is acquitted by a verdict of the jury upon the merits;
The prosecution is dismissed, or a nolle prosequi entered by the state;
The action has abated by the death of the defendant;
The defendant is discharged by the court or magistrate before indictment preferred or found, or after indictment and before verdict; or
The defendant has been convicted, but the execution issued upon the judgment has been returned “nulla bona” or where the court hearing the case has made a finding at any evidentiary hearing that the defendant is indigent and remains indigent at the time of conviction.

Code 1858, § 5585 (deriv. Acts 1813, ch. 137 (136 in Scott's Revisal), §§ 2, 3, 5; 1832, ch. 8, § 2; 1837-1838, ch. 141, § 1; 1853-1854, ch. 38, § 1; 1853-1854, ch. 72, § 2); Acts 1885 (Ex. Sess.), ch. 14; 1897, ch. 20, § 1; Shan., § 7619; Code 1932, § 12247; Acts 1980, ch. 625, § 2; T.C.A. (orig. ed.), § 40-3332.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

Cross-References. Cases in which state or county liable, § 40-25-129.

Costs adjudged, § 40-25-104.

Costs included, § 40-25-133.

County liability, § 40-25-132.

State liability, § 40-25-131.

Taxing of cases on abandonment of prosecution, § 40-25-127.

Taxing of costs of malicious or frivolous prosecution, § 40-25-126.

Taxing prosecutor where defendant has made settlement, § 40-25-128.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Costs, § 13, 14, 19, 38; 17 Tenn. Juris., Justices of Peace and General Sessions Courts, § 11; 25 Tenn. Juris., Witnesses, § 9.

Attorney General Opinions. Payment allocation, where defendant indigent, only as to costs or fines, OAG 98-099 (5/27/98).

County liability for cost of incarcerating misdemeanant before sentencing, OAG 98-0159 (8/24/98).

Cost of interpreters for indigent defendants in general sessions court, OAG 99-211 (10/20/99).

NOTES TO DECISIONS

1. Constitutionality.

Acts 1897, ch. 20 is not unconstitutional as depriving one of a fair and impartial trial by offering a money inducement to officers and witnesses to convict because only upon conviction can fees and compensation be secured. State v. Henley, 98 Tenn. 665, 41 S.W. 352, 1897 Tenn. LEXIS 156 (1897).

2. Purpose.

The state or the county, according to the nature of the offense, pays only the costs accrued on behalf of the state in the cases specified in this section. Tucker v. State, 39 Tenn. 555, 1859 Tenn. LEXIS 275 (1859).

This section enumerates the usual conditions upon which the costs may be adjudged against the state or the county; but it is apparent from the language of this and the sections following that the legislative purpose expressed therein was not so much to specify the only conditions upon which costs may be adjudged, but, rather, to work an equitable division of such costs between the state and the several counties. Johnson v. State, 157 Tenn. 528, 12 S.W.2d 388, 1928 Tenn. LEXIS 215 (1928).

3. Construction with Other Sections.

Sections 40-25-129 — 40-25-133 must be construed together since liability of state and county for costs is restricted to cases where state or county is required by statute to pay costs. State v. Brown, 169 Tenn. 119, 83 S.W.2d 250, 1935 Tenn. LEXIS 24 (1935).

4. Misdemeanors.

Where a misdemeanor case has been stricken from the docket for any reason and placed upon the retired docket, the district attorney general is entitled to a fee to be taxed against the county. State v. Farris, 72 Tenn. 183, 1879 Tenn. LEXIS 15 (1879).

County is not liable for costs in misdemeanor cases where defendant is acquitted. State v. Brown, 169 Tenn. 119, 83 S.W.2d 250, 1935 Tenn. LEXIS 24 (1935).

5. Nolle Prosequi.

Incorporating in a nolle prosequi order a provision that on default in payment, defendant shall work out same in the workhouse is void and cannot support arrest and such confinement. State ex rel. Stokes v. Watts, 161 Tenn. 367, 33 S.W.2d 72, 1930 Tenn. LEXIS 13 (1930).

6. Nulla Bona.

Orders on the treasurer concerning costs in criminal cases should be founded: first, on examination of the court, judgment of approval and certificate of the clerk; second, a return of nulla bona against the property of the defendant; third, certainty in the items of the bill of costs. State v. Delap, 7 Tenn. 90, 7 Tenn. 91, 1823 Tenn. LEXIS 9 (1823).

The district attorney general's agreement that defendant was insolvent could not take the place of return of nulla bona. State v. Martin, 78 Tenn. 549, 1882 Tenn. LEXIS 222 (1882).

The certification of costs cannot take the place of a return of nulla bona. State v. Odom, 93 Tenn. 446, 25 S.W. 105, 1893 Tenn. LEXIS 71 (1894).

Costs after conviction cannot be paid on the court adjudging defendant to be insolvent, since only the return of nulla bona is recognized as showing insolvency. Riddick v. State, 99 Tenn. 655, 42 S.W. 926, 1897 Tenn. LEXIS 77 (1897); Aiken v. State, 99 Tenn. 657, 42 S.W. 927, 1897 Tenn. LEXIS 78 (1897).

7. Defendant's Witnesses.

The state and county are not chargeable with the costs of subpoenas issued for witnesses for defendants in criminal prosecutions which result in acquittal; at least not unless the court adjudges them against the state or county. Avery v. State, 66 Tenn. 328, 1874 Tenn. LEXIS 137 (1874).

8. Justice Fees.

In view of this section showing that, under certain circumstances the defendant would not be liable for costs, a justice of the peace (now general sessions judge) could not collect his fee for taking a bail bond until it has been adjudged upon some disposition of the case by final judgment that defendant was liable for it. State v. Cooper, 120 Tenn. 549, 113 S.W. 1048, 1908 Tenn. LEXIS 42 (1908).

40-25-131. State liability.

The costs that have accrued in any criminal prosecution for offenses punishable with death or by confinement in the penitentiary, in cases accruing under § 40-25-130(1), (3) and (5), shall be paid by the state.
The state shall also pay the accrued costs in all criminal prosecutions for offenses punishable with death or by confinement in the penitentiary where the accused shall have been convicted by trial or by guilty plea. In those cases where the accused receives concurrent sentences, the state shall not be liable to pay the costs in more than three (3) of the prosecutions where concurrent sentences are given.

Code 1858, § 5586; Acts 1891 (Ex. Sess.), ch. 22, § 1; Shan., § 7620; Code 1932, § 12248; Acts 1970, ch. 461, § 1; T.C.A. (orig. ed.), § 40-3333.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

Cross-References. Cases in which state or county liable, § 40-25-129.

Circumstances when state or county liable, § 40-25-130.

Costs adjudged, § 40-25-104.

Costs adjudged in habeas corpus cases, § 29-21-125.

Costs included, § 40-25-133.

Costs on discharge of criminal defendant, § 29-21-126.

County liability, § 40-25-132.

Housing state prisoners, reimbursement of costs, § 41-8-106.

Attorney General Opinions. Cost of interpreters for indigent defendants in general sessions court, OAG 99-211 (10/20/99).

NOTES TO DECISIONS

1. Construction with Other Sections.

2. Test of Liability.

The test of liability as between the state and the county is placed on the grade of the offense. Woolen v. State, 129 Tenn. 455, 166 S.W. 594, 1914 Tenn. LEXIS 132 (1914); State v. Gibson County, 134 Tenn. 526, 184 S.W. 29, 1916 Tenn. LEXIS 1 (1916).

3. County Jail Prisoners.

The state is liable for costs for confining in the county jail one convicted of a felony, whose sentence was commuted to imprisonment in jail from imprisonment in the state penitentiary. Woolen v. State, 129 Tenn. 455, 166 S.W. 594, 1914 Tenn. LEXIS 132 (1914); State v. Gibson County, 134 Tenn. 526, 184 S.W. 29, 1916 Tenn. LEXIS 1 (1916).

Where punishment for one convicted of petit larceny was commuted by the jury to imprisonment in the county jail, and the judge so sentenced the defendant, the state was liable for the costs. State v. Sellars, 143 Tenn. 31, 223 S.W. 447, 1919 Tenn. LEXIS 23 (1919).

4. Misdemeanors.

In no event can the state be called on to pay the costs allowed in a misdemeanor case. Aiken v. State, 99 Tenn. 657, 42 S.W. 927, 1897 Tenn. LEXIS 78 (1897).

5. Habeas Corpus.

When in habeas corpus cases costs are adjudged against the state or county, the county must pay in misdemeanor cases, and the state in felony cases. Henderson v. Walker, 101 Tenn. 229, 47 S.W. 430, 1898 Tenn. LEXIS 55 (1898).

6. Effect of Insanity.

Upon suspension of prosecution for felony after verdict of conviction has been returned, made necessary by the present insanity of the accused, judgment may be rendered against the state for costs; but, if the sanity of accused should be restored and the case subsequently determined upon its merits, the final liability for costs will follow the judgment on the merits. Johnson v. State, 157 Tenn. 528, 12 S.W.2d 388, 1928 Tenn. LEXIS 215 (1928).

7. Return of Nulla Bona.

Since, in cases under § 40-25-130(5), the return by the officer of nulla bona is a condition precedent to charging costs against the state under this section, it is error, on rendition of judgment against defendant, to order that, “in the event of the insolvency of the defendant, the plaintiff will pay its costs.” Riddick v. State, 99 Tenn. 655, 42 S.W. 926, 1897 Tenn. LEXIS 77 (1897).

8. Mandamus Proceedings.

Mandamus will not lie to compel the comptroller of the treasury to issue his warrant for the payment of costs in a criminal case until the costs have been taxed and certified as required by law, nor if the bill contains costs for which the state is not liable. United States ex rel. Phillips v. Gaines, 131 U.S. 169, 25 L. Ed. 733, 1880 U.S. LEXIS 1507 (1880).

40-25-132. County liability.

Similar costs in criminal prosecutions for offenses punishable in any other way than by death or confinement in the penitentiary, also similar costs in criminal prosecutions for offenses punishable with death or confinement in the penitentiary, in cases accruing under § 40-25-130(2) and (4), shall be paid by the county.
1. Notwithstanding this section or any other law to the contrary, a county shall not be liable for payment of costs that have accrued in any criminal prosecution for a misdemeanor offense or prosecution for a felony offense if the conviction offense is a misdemeanor where the conviction resulting from the prosecution is reversed on appeal. In all these cases, the state shall be liable for the accrued costs.
2. As used in this subsection (b), “misdemeanor” and “felony” have the same meanings as set out in § 39-11-110.

Code 1858, § 5587; Acts 1891 (Ex. Sess.), ch. 22, § 2; Shan., § 7621; Code 1932, § 12249; T.C.A. (orig. ed.), § 40-3334; Acts 1995, ch. 385, § 1.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

Acts 1995, ch. 385, § 2 provides that (b) shall apply to all applicable misdemeanor convictions occurring on or after July 1, 1995.

Cross-References. Cases in which state or county liable, § 40-25-129.

Circumstances when state or county liable, § 40-25-130.

Costs adjudged, § 40-25-104.

Costs included, § 40-25-133.

Housing state prisoners, reimbursement of costs, § 41-8-106.

State liability, § 40-25-131.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Costs, § 14; 25 Tenn. Juris., Witnesses, § 9.

Attorney General Opinions. County liability for cost of incarcerating misdemeanant before sentencing, OAG 98-0159 (8/24/98).

Cost of interpreters for indigent defendants in general sessions court, OAG 99-211 (10/20/99).

NOTES TO DECISIONS

1. Construction with Other Sections.

Sections 40-25-129 — 40-25-133 must be construed together since liability of state or county for costs is restricted to cases where state or county is required by statute to pay costs. State v. Brown, 169 Tenn. 119, 83 S.W.2d 250, 1935 Tenn. LEXIS 24 (1935).

2. Prosecution Prior to Change in Law.

Where an indictment was found and conviction had before a change was made in the law shifting the liability of the state for payment of costs in such cases to the county, the state was liable therefor, notwithstanding the case was reversed and a nolle entered after the change in the law. Stout v. State, 91 Tenn. 405, 19 S.W. 19, 1892 Tenn. LEXIS 5 (1892).

3. Nolle Prosequi.

Where the state entered a nolle prosequi on condition that defendant would pay or secure the costs, and he entered bond, but, when execution was issued thereon, it was returned nulla bona, a state's witness residing in another county more than five miles from the courthouse could recover his costs from the county, under this section and § 40-25-130. State ex rel. Scheidigger v. Cummings, 136 Tenn. 39, 188 S.W. 618, 1916 Tenn. LEXIS 97 (1916).

4. Return of Nulla Bona.

A judgment for costs cannot be rendered against the county until execution issued upon the judgment against defendant has been returned nulla bona, and then only for such costs as are allowable in a misdemeanor case. Aiken v. State, 99 Tenn. 657, 42 S.W. 927, 1897 Tenn. LEXIS 78 (1897).

5. Habeas Corpus.

When in habeas corpus cases costs are adjudged against the state or county, the county must pay in misdemeanor cases, and the state in cases of felony. Henderson v. Walker, 101 Tenn. 229, 47 S.W. 430, 1898 Tenn. LEXIS 55 (1898).

6. Misdemeanors.

County was not liable for costs in misdemeanor suit where defendant was acquitted. State v. Brown, 169 Tenn. 119, 83 S.W.2d 250, 1935 Tenn. LEXIS 24 (1935).

7. County Workhouse Prisoners.

Under this section and § 40-25-133 including in criminal costs the maintenance of a prisoner in jail and making county liable for all costs of the prosecution of crimes punishable otherwise than by death or confinement in the penitentiary and provisions of the Workhouse Act authorizing a workhouse sentence in felony cases, the county is liable for maintenance in its workhouse under a superintendent of state prisoners held to hard labor on commutation of sentence from confinement in penitentiary to confinement in county's workhouse. State v. Gibson County, 134 Tenn. 526, 184 S.W. 29, 1916 Tenn. LEXIS 1 (1916).

40-25-133. Costs included.

What is meant by costs in §§ 40-25-131 and 40-25-132 is all costs accruing under existing laws on behalf of the state or county, as the case may be, for the faithful prosecution and safekeeping of the defendant, including the cost of boarding juries and that of the jailer; but nothing in this or those sections shall be so construed as to require the state to pay any cost for guarding the jail to prevent mob violence, or to prevent rescue or the prisoner's escape, or for transporting to any other county for safekeeping on any account whatever, but the same shall be paid by the county in which the crime was committed or claimed to have been committed.

Acts 1891 (Ex. Sess.), ch. 22, § 3; Shan., § 7622; Code 1932, § 12250; T.C.A. (orig. ed.), § 40-3335.

Cross-References. Cases in which state or county liable, § 40-25-129.

Circumstances when state or county liable, § 40-25-130.

Costs adjudged, § 40-25-104.

County liability, § 40-25-132.

State liability, § 40-25-131.

Attorney General Opinions. Jailers' fees may be imposed on a per diem basis but should only cover those actual expenses outlined in this section and T.C.A. § 40-25-104, OAG 03-106 (8/22/03).

NOTES TO DECISIONS

1. Purpose.

This section governs the taxation of cost as between the state and county rather than as between the state and defendant. Woolen v. State, 129 Tenn. 455, 166 S.W. 594, 1914 Tenn. LEXIS 132 (1914).

2. Construction with Other Sections.

3. Costs for Guarding County Jail.

It is erroneous to hold that nothing may be considered as “costs” under this statute save such items as may be adjudged against a defendant, as arising in the cause against him, this section expressly placing on the county cost for guarding jail to prevent mob violence and the like, even though the prisoner protected is a state prisoner held for crime. State v. Gibson County, 134 Tenn. 526, 184 S.W. 29, 1916 Tenn. LEXIS 1 (1916).

40-25-134. Judgment for costs.

The judgment for costs may be rendered at the time of conviction, or, upon motion, at any time subsequent to conviction, and execution awarded accordingly.

Code 1858, § 5578; Shan., § 7610; Code 1932, § 12237; T.C.A. (orig. ed.), § 40-3336.

NOTES TO DECISIONS

1. Bill of Costs on Judgment.

This statute evidently refers to judgment against a party against whom execution is to issue, and not to a bill of costs on judgment already rendered against the state. State ex rel. Nealis v. Nolan, 76 Tenn. 663, 1881 Tenn. LEXIS 60 (1881).

40-25-135. Remission and distribution of costs collected.

In all cases where the jailer, sheriff, workhouse keeper or any person or officer, other than the clerk of the circuit or criminal court of any county, collects from a defendant or surety all or any part of the costs, fees, taxes and expense fees, shown upon the mittimus issued by any circuit, criminal or other court, the officer shall on or before the fifteenth day of the month immediately following the month during which the collections are made, report and remit the collections to the clerk of the criminal court in counties having a criminal court, and to the clerk of the circuit court in all other counties, and it is the duty of the clerk to distribute the costs, taxes and expense fees among the state, county and officers entitled to them.
All state taxes, district attorney general fees, expense fees, fines in felony cases and all costs which have been previously paid by the state to officers entitled thereto shall be reported by the clerk to the commissioner of revenue and paid to the state.
All county taxes, expense fees, fines in misdemeanor cases and costs that have been previously paid by the county shall be reported to the county mayor and paid to the county trustee.
All costs belonging to officers that have not been paid either by the state or county shall be paid to the officers entitled to the costs.
Where only a part of the whole of the fine, costs, taxes and expense fees is collected, that proportion that is collected shall be distributed to the state, county and officers in proportion to their respective interests in the whole amount originally due.

Acts 1921, ch. 116, § 1; Shan. Supp., § 7610a1; Code 1932, § 12238; impl. am. Acts 1959, ch. 9, § 14; impl. am. Acts 1978, ch. 934, §§ 16, 36; modified; T.C.A. (orig. ed.), § 40-3342; Acts 2003, ch. 90, § 2.

Cross-References. Accounting for fees, title 8, ch. 22.

Duties of circuit court clerk, § 18-4-103.

Fees charged, title 8, ch. 21.

Fees of officers, title 40, ch. 25.

Reimbursement of expenses, title 8, ch. 26.

40-25-136. Certification of bills of costs against state or county.

The costs chargeable to the state or county in criminal cases tried in criminal courts, circuit courts or general sessions courts shall be made out so as to show the specific terms, and be examined, entered of record, and certified to be correct by the clerk of the court or judge before whom the case was tried or by whom it was disposed.
The clerks of the courts are granted full power, and it is made their duty to examine into, inspect and audit all bills of costs, as above provided, accruing against the state or county, and disallow any part or all of the bills of costs that may be illegally or wrongfully taxed against the state or county.

Code 1858, § 5569 (deriv. Acts 1832, ch. 7, § 1); Acts 1891 (Ex. Sess.), ch. 22, § 4; Shan., § 7593; Code 1932, § 12220; Acts 1963, ch. 157, § 2; T.C.A. (orig. ed.), § 40-3343; Acts 1983, ch. 396, § 2.

Cross-References. Audit and payment of bills of costs, § 40-25-137.

Bills of costs, certification, § 5-9-308.

Certificate required for payment, § 40-25-116.

Certification of fees for boarding juries and prisoners under indictment, § 40-25-118.

Certification of items in bill of costs, § 40-25-113.

Certification of jury expenses in misdemeanor cases, § 40-25-115.

Duties of circuit court clerk, § 18-4-103.

Seal not required on certificates, § 40-25-122.

NOTES TO DECISIONS

1. Purpose.

This and other code provisions show that the general assembly intended to throw double safeguards around the state and county treasuries. State ex rel. Donaldson v. Walker, 101 Tenn. 236, 47 S.W. 417, 1898 Tenn. LEXIS 56 (1898).

2. Requisites of Certificate.

The costs of each cause are to be made out, examined, entered of record and certified by the court before whom the cause was tried or disposed of. Puckett v. Hyde, 53 Tenn. 194, 1871 Tenn. LEXIS 343 (1871).

If the district attorney general and the presiding judge can, under any circumstances, in one certificate certify to the correctness of the bills of costs in several cases, certainly they cannot do so without specifically setting forth in the certificate, the names of the cases in which the costs are certified. Puckett v. Hyde, 53 Tenn. 194, 1871 Tenn. LEXIS 343 (1871).

3. —Meaning of “Entered of Record.”

The bill of costs itemized, after examination, to be entered of record, is not to be made the basis of a judgment, nor is any judgment required or authorized to be rendered by this section. State ex rel. Nealis v. Nolan, 76 Tenn. 663, 1881 Tenn. LEXIS 60 (1881); Morgan v. Pickard, 86 Tenn. 208, 9 S.W. 690, 1887 Tenn. LEXIS 39 (1887).

4. Correction by Judge.

If the bill of costs is not correct in terms, then the judge should correct it, make proper entry of the true amount and certify that as required by this section. Wright v. County of Shelby, 68 Tenn. 145, 1877 Tenn. LEXIS 8 (1877).

5. Retaxation by County Judge.

Even after compliance with this section, if the (former) county judge deemed that any items are improperly taxed and embraced in the bill of costs, he could bring the matter before the trial judge and ask for a retaxation of costs, and the cutting out of all illegal and unauthorized items, compliance with this section not precluding such retaxation. State ex rel. Donaldson v. Walker, 101 Tenn. 236, 47 S.W. 417, 1898 Tenn. LEXIS 56 (1898).

6. Recovery of Illegal Costs.

The proper practice is to file a petition in the criminal court for the recovery of costs illegally collected from the state. State v. Richards, 120 Tenn. 477, 113 S.W. 370, 1908 Tenn. LEXIS 38 (1908).

7. Costs of Coroner's Inquest.

A coroner's inquest is no part of a criminal prosecution and the costs of the same are properly chargeable to the county and not to the state. Galloway v. Shelby County, 75 Tenn. 121, 1881 Tenn. LEXIS 84 (1881).

40-25-137. Audit and payment of bills of costs.

A copy of the judgment and bill of costs, certified by the clerk of the court, as provided in § 40-25-136, shall be presented to the director of accounts, or county mayor, as the case may be, who, after the bills have been examined and approved by the clerk of the court, is granted full power, and it is the director's or county mayor's duty, to examine into, inspect and audit all bills of costs accruing against the state or county; and disallow any part of the bills of costs that may be illegally or wrongfully taxed against the state or county. The commissioner of finance and administration or county mayor may disallow any and all costs taxed against the state or county on account of malicious, frivolous or unnecessary prosecution, in the event the clerk of the court should, by mistake or otherwise, approve any of the bills.
After correcting and auditing the bills of costs, the commissioner, or county mayor as the case may be, shall issue a warrant for the amount, which shall be paid to the clerk or any other person authorized by the clerk, in writing, to receive the funds.

Code 1858, § 5570 (deriv. Acts 1827, ch. 36, § 6); Acts 1891 (Ex. Sess.), ch. 22, § 5; integrated in Shan., § 7594; Code 1932, § 12221; impl. am. Acts 1937, ch. 33, §§ 24, 29; C. Supp. 1950, § 12221; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1961, ch. 97, § 3; impl. am. Acts 1978, ch. 934, §§ 16, 36; modified; T.C.A. (orig. ed.), § 33-3344; Acts 1983, ch. 396, § 3; 2003, ch. 90, § 2.

Cross-References. Bills of costs, certification, § 5-9-308.

Certificate required for payment, § 40-25-116.

Certification of fees for boarding juries and prisoners under indictment, § 40-25-118.

Certification of items in bill of costs, § 40-25-113.

Certification of jury expenses in misdemeanor cases, § 40-25-115.

Seal not required on certificates, § 40-25-122.

Taxing of costs of abandonment of prosecution, § 40-25-127.

Taxing of costs of malicious or frivolous prosecution, § 40-25-126.

Taxing prosecutor where defendant has made settlement,§ 40-25-128.

NOTES TO DECISIONS

1. Purpose.

The statutes were designed to work an equitable division of costs in criminal prosecutions, and to restrict the liability for costs according to the results of cases. Reagan v. Fentress County, 169 Tenn. 103, 83 S.W.2d 244, 1935 Tenn. LEXIS 22 (1935).

2. Validity of Section.

Any infirmity which may have existed in the governor's proclamation calling the general assembly into session with relation to Acts 1891 (Ex. Sess.), ch. 22, § 5 was cured by subsequent reenactment of such section as this section of the Code. Reagan v. Fentress County, 169 Tenn. 103, 83 S.W.2d 244, 1935 Tenn. LEXIS 22 (1935).

3. Liability of County.

In criminal prosecutions the county is only liable for costs cast upon it by statute. Reagan v. Fentress County, 169 Tenn. 103, 83 S.W.2d 244, 1935 Tenn. LEXIS 22 (1935).

4. —Validity of Bill of Costs.

Whether or not a bill of costs, or any item of cost in a criminal prosecution, certified against the county for payment, is a legal charge is determinable by a mere reference to the statutes and inspection of the bills certified. Reagan v. Fentress County, 169 Tenn. 103, 83 S.W.2d 244, 1935 Tenn. LEXIS 22 (1935).

The amount of costs legally chargeable in criminal cases is governed by law, and not by the discretion of either the county judge or of the circuit judge and the district attorney. Reagan v. Fentress County, 169 Tenn. 103, 83 S.W.2d 244, 1935 Tenn. LEXIS 22 (1935).

5. —Taxation of Costs.

The statute regulating taxation of costs against county contemplates coordination between the circuit judge, district attorney and clerk on the one hand, and the county judge (now county mayor) on the other. Reagan v. Fentress County, 169 Tenn. 103, 83 S.W.2d 244, 1935 Tenn. LEXIS 22 (1935).

A county is not subject to an action of debt for costs taxed against it until the circuit judge and district attorney general of the court and the court's clerk have acted as required by statute. Reagan v. Fentress County, 169 Tenn. 103, 83 S.W.2d 244, 1935 Tenn. LEXIS 22 (1935).

6. —Fees of Clerk.

The clerk is not entitled to a fee for copying bills of costs in criminal cases for payment by the state or county. Perkins v. State, 68 Tenn. 1 (1876); State v. Henderson, 83 Tenn. 274, 1885 Tenn. LEXIS 49 (1885); State v. Wilbur, 101 Tenn. 211, 47 S.W. 411, 1898 Tenn. LEXIS 53 (1898); Henderson v. Walker, 101 Tenn. 229, 47 S.W. 430, 1898 Tenn. LEXIS 55 (1898).

The clerk has no valid claim upon the county for costs arising in criminal prosecutions until the county judge (now county mayor) has audited the bills as the statute requires. Reagan v. Fentress County, 169 Tenn. 103, 83 S.W.2d 244, 1935 Tenn. LEXIS 22 (1935).

7. —Approval of Bill of Costs.

By this section, the county treasury is safeguarded by limiting the taxation of costs against a county and forbidding the payment of costs taxed against it until approved and certified by the trial judge and the district attorney, and audited by the county clerk. Reagan v. Fentress County, 169 Tenn. 103, 83 S.W.2d 244, 1935 Tenn. LEXIS 22 (1935).

Under this section and § 40-25-136 the county judge (now county mayor) is required to approve a sheriff's account for transporting and guarding prisoners. State ex rel. Biggs v. Barclay, 188 Tenn. 26, 216 S.W.2d 711, 1948 Tenn. LEXIS 489 (1948).

The judicial cost accountant for the state is authorized to disallow costs taxed to the state even though the criminal court previously certified the costs as proven. State v. Cox, 8 S.W.3d 268, 1999 Tenn. App. LEXIS 295 (Tenn. Ct. App. 1999).

8. —Audit Prerequisites.

No costs shall be drawn out of the county or state treasuries until after they are properly taxed, approved by the judge and district attorney and audited by the comptroller of the treasury or county judge (now county mayor), as the case may be. Musgrove v. Hamilton County, 111 Tenn. 1, 77 S.W. 779, 1903 Tenn. LEXIS 1 (1903).

The county judge or chairman (now county mayor) is the final auditor or tribunal to determine whether bills of costs in criminal cases shall or shall not be paid out of the county treasury. Musgrove v. Hamilton County, 111 Tenn. 1, 77 S.W. 779, 1903 Tenn. LEXIS 1 (1903).

The county judge (now county mayor) cannot avoid the duty imposed by statute, nor can plaintiff claiming costs in criminal prosecution avoid the county judge's audit by a premature action of debt. Reagan v. Fentress County, 169 Tenn. 103, 83 S.W.2d 244, 1935 Tenn. LEXIS 22 (1935).

9. —County Mayor's Duties.

This section imposes upon the county judge (now county mayor) the duty to audit the bills, and prescribes the particular manner and occasion in which the duty shall be performed with such certainty as to leave no room for exercise of discretion, but requires him to act within definite limitations. Reagan v. Fentress County, 169 Tenn. 103, 83 S.W.2d 244, 1935 Tenn. LEXIS 22 (1935).

The county judge's (now county mayor) duties as to taxation of costs against the county in criminal cases are ministerial and not judicial. Reagan v. Fentress County, 169 Tenn. 103, 83 S.W.2d 244, 1935 Tenn. LEXIS 22 (1935).

If items of cost in the bill are in violation of statute, the county judge (now county mayor) may strike them out of the bill. Reagan v. Fentress County, 169 Tenn. 103, 83 S.W.2d 244, 1935 Tenn. LEXIS 22 (1935).

A county judge (now county mayor) has the power and it is his duty to disallow all costs illegally taxed against the county. Reagan v. Fentress County, 169 Tenn. 103, 83 S.W.2d 244, 1935 Tenn. LEXIS 22 (1935).

If costs are certified by the circuit judge and district attorney general for payment by the county, and it appears on the face of the certified record that the judgment for costs is void because contrary to statute, the county judge (now county mayor) may, under this section, refuse to pay it. Reagan v. Fentress County, 169 Tenn. 103, 83 S.W.2d 244, 1935 Tenn. LEXIS 22 (1935).

10. Retaxation of Costs.

When costs are adjudged against prosecutor in a proceeding against a party to keep the peace, they cannot, upon a return of nulla bona, be adjudged against the state or county. State v. Wormick, 69 Tenn. 559, 1878 Tenn. LEXIS 139 (1878).

Where the costs of a felony case were adjudged in the first instance against the prosecutor, they cannot afterwards, on the return of the execution nulla bona, be legally taxed and certified against the state. Morgan v. Pickard, 86 Tenn. 208, 9 S.W. 690, 1887 Tenn. LEXIS 39 (1887); Musgrove v. Hamilton County, 111 Tenn. 1, 77 S.W. 779, 1903 Tenn. LEXIS 1 (1903).

When bills of costs have been allowed against the county and certified, the county judge or chairman of the county court (now county mayor) may bring the matter before the trial judge and ask for a retaxation. State ex rel. Donaldson v. Walker, 101 Tenn. 236, 47 S.W. 417, 1898 Tenn. LEXIS 56 (1898).

11. —Jurisdiction of Chancery.

Since this and other code provisions provide a remedy for the correction and retaxation of costs in the criminal court of a county, the chancery court should not exercise jurisdiction to correct and retax such costs. State v. Richards, 120 Tenn. 477, 113 S.W. 370, 1908 Tenn. LEXIS 38 (1908).

12. Mandamus for Warrant.

Where the county judge (now county mayor) refused to issue a warrant for any part of the costs contained in several bills of costs certified to by one certificate, and the cases were not therein specified, and a mandamus was sued out to compel him to issue the warrant, the petition must be dismissed. Puckett v. Hyde, 53 Tenn. 194, 1871 Tenn. LEXIS 343 (1871).

Where items of costs in cost bill, which the county judge (now county mayor) refuses to audit, are illegal, mandamus will not issue to compel him to issue his warrant for payment, regardless of whether or not this section is constitutional. State v. Wilbur, 101 Tenn. 211, 47 S.W. 411, 1898 Tenn. LEXIS 53 (1898).

If the county judge (now county mayor) refuses to act when properly certified bills of costs are presented for audit and approval, or if he strikes out costs legally taxable against the county, mandamus is the proper remedy. Reagan v. Fentress County, 169 Tenn. 103, 83 S.W.2d 244, 1935 Tenn. LEXIS 22 (1935).

40-25-138. Warrants payable to person entitled to fees.

The commissioner of finance and administration, in auditing bills of costs of state prosecutions, when, in the commissioner's judgment, it is expedient and proper to do so, may draw a warrant on the treasurer in favor of any of the parties interested in the bills of costs for the sum due the party, which warrant the commissioner shall send to the clerk of the court from which the bills were sent, and at the same time notify the clerk that the amount sent is all that was due the party in the bills. The clerk shall deliver the warrant to the party in whose favor it is drawn, as soon as called for, taking receipt for the same.

Acts 1867-1868, ch. 59, §§ 2, 3; Shan., §§ 7596, 7597; Code 1932, §§ 12223, 12224; impl. am. Acts 1937, ch. 33, §§ 24, 29; C. Supp. 1950, § 12223; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1961, ch. 97, § 3; T.C.A. (orig. ed.), § 40-3345.

40-25-139. Payments to correct errors on bills of costs.

The state shall pay and refund to any county of the state any moneys that have been irregularly or otherwise paid, or that shall be irregularly or otherwise paid in connection with criminal prosecutions, by any county of the state, which should have been paid by the state, if the same had been adjudged, authenticated and presented for payment as provided by law, or any moneys that have been, or shall be paid, by any county to the state, to which the state is not entitled, or shall not be entitled in connection with criminal prosecution. If bills or claims for the moneys have been filed in the office of the commissioner of finance and administration, or shall be filed in the office of the commissioner of finance and administration, sworn to by the county mayor of the county, the comptroller of the treasury shall immediately have the claim or claims audited, and when the audit has been completed, the commissioner will draw a warrant or warrants on the state treasurer, in favor of the county, for so much and the parts of the claim or claims as shall be found correct by the auditors auditing the same, which warrants shall be payable out of the miscellaneous funds of the state treasury. No claim for moneys paid by the county on behalf of the state may be allowed where the claim is filed with the comptroller of the treasury more than six (6) years after the date of the payment by the county.

Acts 1935, ch. 74, § 1; impl. am. Acts 1937, ch. 33, §§ 24, 29; Acts 1941, ch. 112, § 1; C. Supp. 1950, § 12249.1; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1961, ch. 97, § 3; impl. am. Acts 1978, ch. 934, §§ 16, 36; T.C.A. (orig. ed.), § 40-3346; Acts 2003, ch. 90, § 2.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

40-25-140. Felony cases transferred to federal court.

In cases of the grade of felony, commencing in any of the courts of this state, and afterwards removed to the United States district courts, and there disposed of adversely to the state, the costs of the prosecution shall be paid by the state, as in cases determined in the state courts.
Sheriffs or other officers delivering prisoners from state to federal courts shall be allowed the same fees, and have the same guards and pay therefor, as is allowed for like services in state courts.

Acts 1882 (2nd Ex. Sess.), ch. 2, § 1; Shan., § 7627; Code 1932, § 12256; T.C.A. (orig. ed.), § 40-3347; T.C.A., § 40-25-141(b).

Code Commission Notes.

Former § 40-25-141(b) was transferred to § 40-25-140(b) by the code commission in 2012.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

40-25-141. Misdemeanor cases transferred.

When a misdemeanor case is transferred out of the county of origin to another county where the misdemeanor is disposed of, the county where the case originated shall pay the costs.

Acts 1882 (2nd Ex. Sess.), ch. 2, § 1; Shan., § 7628; Code 1932, § 12257; T.C.A. (orig. ed.), § 40-3348.

Code Commission Notes.

Former § 40-25-141(b) was transferred to § 40-25-140(b) by the code commission in 2012.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

Cross-References. Audit and payment of bills of costs, § 40-25-137.

Bills of costs, certification, § 5-9-308.

Certificate required for payment, § 40-25-116.

Certification of bills of costs against state or county, § 40-25-136.

Certification of fees for boarding juries and prisoners under indictment, § 40-25-118.

Certification of items in bill of costs, § 40-25-113.

40-25-142. Payment to federal authorities.

The costs in §§ 40-25-140 and 40-25-141 shall be paid upon warrant of the commissioner of finance and administration, or county mayor, as the case may be, which warrant shall be issued upon properly authenticated and itemized bills of costs certified by the United States district attorney and judge holding the federal court, in the same manner as other similar costs are paid by the state or counties.

Acts 1882 (2nd Ex. Sess.), ch. 2, § 2; Shan., § 7629; Code 1932, § 12258; impl. am. Acts 1937, ch. 33, §§ 24, 29; C. Supp. 1950, § 12258; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1961, ch. 97, § 3; impl. am. Acts 1978, ch. 934, §§ 16, 36; T.C.A. (orig. ed.), § 40-3349; Acts 2003, ch. 90, § 2.

40-25-143. Collecting from inmate trust fund account.

The department of correction shall have the authority to collect from the inmate trust fund account of any defendant in its custody those moneys necessary to satisfy any unpaid costs that have been imposed upon the defendant.
When the state has paid the costs in a case accruing under § 40-25-130(5), and the defendant is in the custody of the department of correction, the department shall have the authority to collect from the inmate trust fund account of the defendant those moneys necessary to reimburse the state for the payment of the costs. Any amount so collected shall be deposited in the state general fund.

Acts 2001, ch. 108, § 1.

Cross-References. Accounting of inmate funds required as part of civil action, payment of fees, § 41-21-807.

Charges assessed against inmates for services provided them, deduction from inmate's trust fund account, § 41-21-237.

Charging inmates for issued items, deduction from inmate's trust fund account, § 41-4-142.

40-25-144. Filing deadline for claims against the state for payment of costs. [See Compiler's Notes for information regarding repeal of 2017 amendment.]

No claim against the state for payment of costs under this chapter shall be paid unless the claim is submitted to the department of correction within six (6) months from the date of entry of the judgment of conviction.
[Repealed effective June 30, 2019.] However, for good cause shown, the commissioner of correction, or the commissioner's representative, may extend this limitation period for an additional six (6) months.

Acts 2014, ch. 582, § 1; 2017, ch. 85, § 1; 2018, ch. 561, § 1.

Compiler's Notes. Acts 2017, ch. 85, § 2, as amended by Acts 2018, ch. 561, § 1, provided that the act, which added subsection (b), shall apply to all claims against the state submitted on or after July 1, 2017. The act is repealed on June 30, 2019. However, any extension of time granted pursuant to § 40-25-144(b) within six (6) months of June 30, 2019, shall remain valid until the expiration of the six-month extension.

Chapter 26
Appeal

40-26-101. Commencement of term pending appeal.

In all criminal cases appealed to the supreme court from the circuit and criminal courts, where the judgment of the court is for less penalty than death or imprisonment for life, and the defendant is in actual confinement in jail, when no transcript or other statement of the evidence is filed in the time prescribed by law, in the circuit or criminal court the appeal shall not act as a supersedeas, and the defendant shall enter upon the term of service in the penitentiary or workhouse at once after the expiration of the time for filing the transcript or other statement of evidence.

Acts 1901, ch. 102, § 1; Shan., § 7222a1; Code 1932, § 11809; Acts 1981, ch. 449, § 2; T.C.A. (orig. ed.), § 40-3405.

Compiler's Notes. This section may be affected by T.R.A.P. 26.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 33.14.

Tennessee Jurisprudence, 2 Tenn. Juris., Appeal and Error, § 83.

Law Reviews.

The Theoretical Foundations of the Proposed Tennessee Rules of Appellate Procedure, III. Some Noteworthy Features of the Rules (John L. Sobieski, Jr.), 45 Tenn. L. Rev. 161 (1978).

NOTES TO DECISIONS

1. Presence of Defendant Not Required on Appeal.

In a felony case, the accused need not be present in the supreme court when the case is heard or decided, notwithstanding the constitutional provision (Tenn. Const., art. I, § 9) that “in all criminal prosecutions” the accused shall have the right to be heard by himself and his counsel, because the phrase “in all criminal prosecutions” applies only to a trial prosecuted by the state, which does not include a review on appeal or writ of error, which is a proceeding brought by the accused himself. Vowell v. State, 132 Tenn. 349, 178 S.W. 768, 1915 Tenn. LEXIS 28 (1915).

40-26-102. Bail in felony cases.

In all felony cases where an appeal has been taken from the trial court to the appropriate appellate court, it is discretionary with the trial judge as to whether or not the trial judge will allow bail pending appeal where the sentence imposed provides for confinement in the state penitentiary.
The trial judge shall, in exercising the trial judge's discretion, consider whether or not the defendant is likely to flee or pose a danger to any other person or to the community.
Every trial judge denying bail under this section shall, as a part of the order denying bail, set forth the matters and facts impelling the trial judge to exercise the trial judge's discretion against the allowance of bail pending appeal.
The trial judge's action in the premises shall be reviewable by the proper appellate court or any appellate court judge or justice in the manner provided in the Tennessee Rules of Appellate Procedure.
The setting of bail or release upon recognizance is a matter of right for one convicted of a felony and sentenced to confinement for less than one (1) year. If another felony charge is pending when the sentencing hearing for a felony involving a sentence of less than one (1) year is completed, the decision to set bail shall be in the discretion of the court.
If a defendant is convicted of first degree murder, any Class A felony, aggravated robbery, aggravated sexual battery, aggravated kidnapping, or a violation of § 39-17-417(b) or (i), the trial court shall revoke bail immediately notwithstanding sentencing hearings, motions for a new trial, and related post-guilt determination hearings.

Acts 1951, ch. 7, § 1 (Williams, § 11651.1); 1974, ch. 734, § 1; 1976, ch. 774, § 2; 1978, ch. 578, § 1; 1981, ch. 449, § 2; T.C.A. (orig. ed.), § 40-3406; Acts 1992, ch. 851, § 1.

Compiler's Notes. This section may be affected by Tenn. R. Crim. P. 32.

Cross-References. Initiation of an appeal as of right, release in criminal cases, T.R.A.P. 3, 8.

Penalty for Class A felony, § 40-35-111

Procedure for admission to bail, title 40, ch. 11, part 1.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 4.1, 31.51, 33.104.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, §§ 4, 5.

Law Reviews.

A Survey of Civil Procedure in Tennessee — 1977, IX. Miscellaneous (John L. Sobieski, Jr.), 46 Tenn. L. Rev. 405.

NOTES TO DECISIONS

1. Constitutionality.

There is no U.S. or Tennessee constitutional guarantee of bail after conviction and this section and former § 40-11-109 prohibiting granting or continuing bail pending appeal from a conviction under § 39-6-417 (repealed) do not violate due process or equal protection of law under U.S. Const., amends. 5 and 14, or Tenn. Const., art. I, § 8. Swain v. State, 527 S.W.2d 119, 1975 Tenn. LEXIS 642 (Tenn. 1975), appeal dismissed, Swain v. Tennessee, 423 U.S. 1041, 96 S. Ct. 764, 46 L. Ed. 2d 631, 1976 U.S. LEXIS 926 (1976).

2. Denial of Bail Pending Appeal.

Trial court did not abuse discretion in denying bail to defendant pending appeal where evidence indicated that defendant was a professional “rumrunner.” Jones v. State, 195 Tenn. 390, 259 S.W.2d 864, 1953 Tenn. LEXIS 353 (1953).

Sole remedy for reviewing trial judge's denial of bail pending appeal is set out in this section. Jones v. State, 2 Tenn. Crim. App. 152, 452 S.W.2d 361, 1969 Tenn. Crim. App. LEXIS 312 (Tenn. Crim. App. 1969).

The constitutional right to bail is extinguished upon conviction and a convicted person is not entitled to bail as a matter of right pending appeal. Jones v. State, 2 Tenn. Crim. App. 152, 452 S.W.2d 361, 1969 Tenn. Crim. App. LEXIS 312 (Tenn. Crim. App. 1969).

There was no error in the trial judge denying bail on appeal in prosecution for possessing controlled substances. Wade v. State, 529 S.W.2d 739, 1975 Tenn. Crim. App. LEXIS 289 (Tenn. Crim. App. 1975).

3. Purpose of Appeal Bond.

Upon an appeal in a criminal case in the nature of a writ of error neither party is required to give any security for costs or fine and the appeal bond is solely for the appearance of the defendant. McInturff v. State, 207 Tenn. 102, 338 S.W.2d 561, 1960 Tenn. LEXIS 432 (1960), superseded by statute as stated in, State v. Copeland, 647 S.W.2d 241, 1983 Tenn. Crim. App. LEXIS 333 (Tenn. Crim. App. 1983).

4. Habeas Corpus.

This section is inapplicable to habeas corpus cases since they are civil and not criminal proceedings but trial court may in its discretion grant bail to petitioner in habeas corpus proceeding where petitioner is discharged and state appeals from action of trial court. Leighton v. Henderson, 219 Tenn. 108, 407 S.W.2d 177, 1966 Tenn. LEXIS 509 (1966).

Habeas corpus and post-conviction proceedings may not be employed to review denial of bail pending appeal. Jones v. State, 2 Tenn. Crim. App. 152, 452 S.W.2d 361, 1969 Tenn. Crim. App. LEXIS 312 (Tenn. Crim. App. 1969).

5. Release Pending Appeal.

Trial court did not err in sentencing defendant to serve time in confinement because his original sentence was not illegal and he was not entitled to any “credit” against the duration of his suspended sentence other than the three days noted on the corrected judgment form where he posted bond and was released on bail pending resolution of his appeal, aside from the representations of defense counsel, there was no evidence in the record of defendant being subjected to probation, and he was statutorily precluded from receiving probation until after having fully served day for day at least the minimum sentence provided by law. State v. Loudermilk, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 2 (Tenn. Crim. App. Jan. 6, 2016).

40-26-103. Admission to bail by appellate court.

In case the appropriate appellate court or any appellate court judge shall be of the opinion that under the circumstances stated by the trial judge the trial judge abused discretion in so denying bail, the appellate court or any appellate court judge may admit the person so convicted to bail pending the disposition of the appeal by the appellate court.

Acts 1951, ch. 7, § 1 (Williams, § 11651.1); 1976, ch. 774, § 3; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 40-3407.

Cross-References. Authority to release defendant, bail, § 40-11-104.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 33.104.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, §§ 4, 5.

Law Reviews.

A Survey of Civil Procedure in Tennessee — 1977, IX. Miscellaneous (John L. Sobieski, Jr.), 46 Tenn. L. Rev. 405.

NOTES TO DECISIONS

1. In General.

The only authority for granting bail in post-conviction cases is contained in §§ 40-11-104, 40-26-102 and this section. State ex rel. Brown v. Newell, 216 Tenn. 284, 391 S.W.2d 667, 1965 Tenn. LEXIS 577 (1965).

40-26-104. Bail in misdemeanor cases.

In all misdemeanor cases, the judge or court shall direct the clerk of the circuit or criminal court to admit the defendant to bail in a sum prescribed by the judge or court, with sufficient sureties for defendant's appearance at the circuit or criminal court in which judgment was rendered against the defendant, at the next term after the decision of the cause by the supreme court, to answer the judgment of the court.

Code 1858, § 5249 (deriv. Acts 1851-1852, ch. 159, § 3); Shan., § 7224; Code 1932, § 11811; Acts 1981, ch. 449, § 2; T.C.A. (orig. ed.), § 40-3408.

Cross-References. Appeal as of right, T.R.A.P. 3.

Authority to release defendants, bail, § 40-11-104.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 4.1, 33.104.

Law Reviews.

The Theoretical Foundations of the Proposed Tennessee Rules of Appellate Procedure, III. Some Noteworthy Features of the Rules (John L. Sobieski, Jr.), 45 Tenn. L. Rev. 161 (1978).

Attorney General Opinions. Duty to set bond on misdemeanant's appeal of probation revocation or denial, OAG 98-0142 (8/7/98); OAG 98-0170 (8/28/98).

Right to bond of misdemeanant appealing probation revocation, OAG 99-080 (4/5/99).

NOTES TO DECISIONS

1. Bonds.

In felony cases, the defendant, upon appealing, must give bond to appear before the supreme court; but in appeals in misdemeanor cases, the bond must be given to appear before the circuit court at the term next after the decision by the supreme court. Hutchinson v. State, 43 Tenn. 95, 1866 Tenn. LEXIS 20 (1866).

2. —Void.

Bond on appeal by a defendant convicted of robbery to appear in the circuit court is void, and the supreme court, on his nonappearance therein, is without jurisdiction. Hutchinson v. State, 43 Tenn. 95, 1866 Tenn. LEXIS 20 (1866).

3. —Purpose.

4. Remand by Supreme Court.

The supreme court will render final judgment upon reversal for the improper arrest of the judgment on a conviction for a misdemeanor, and will remand the cause, under this section. Wilcox v. State, 50 Tenn. 110, 1871 Tenn. LEXIS 71 (1871); State v. Steele, 50 Tenn. 135, 1871 Tenn. LEXIS 76 (1871).

40-26-105. Writ of error coram nobis.

There is made available to convicted defendants in criminal cases a proceeding in the nature of a writ of error coram nobis, to be governed by the same rules and procedure applicable to the writ of error coram nobis in civil cases, except insofar as inconsistent herewith. Notice of the suing out of the writ shall be served on the district attorney general. No judge shall have authority to order the writ to operate as a supersedeas. The court shall have authority to order the person having custody of the petitioner to produce the petitioner in court for the hearing of the proceeding.
The relief obtainable by this proceeding shall be confined to errors dehors the record and to matters that were not or could not have been litigated on the trial of the case, on a motion for a new trial, on appeal in the nature of a writ of error, on writ of error, or in a habeas corpus proceeding. Upon a showing by the defendant that the defendant was without fault in failing to present certain evidence at the proper time, a writ of error coram nobis will lie for subsequently or newly discovered evidence relating to matters which were litigated at the trial if the judge determines that such evidence may have resulted in a different judgment, had it been presented at the trial.
The issue shall be tried by the court without the intervention of a jury, and if the decision be in favor of the petitioner, the judgment complained of shall be set aside and the defendant shall be granted a new trial in that cause. In the event a new trial is granted, the court may, in its discretion, admit the petitioner to bail; provided, that the offense is bailable. If not admitted to bail, the petitioner shall be confined in the county jail to await trial.
The petitioner or the state may pray an appeal in the nature of a writ of error to the court of criminal appeals from the final judgment in this proceeding.

Acts 1955, ch. 166, § 1; 1978, ch. 738, § 1; modified; T.C.A., § 40-3411; Acts 2010, ch. 652, § 1.

Compiler's Notes. This section may be affected by Tenn. R. Crim. P. 37.

Cross-References. Writ of error coram nobis in civil cases, title 27, ch. 7.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 22.140, 33.74.

Tennessee Jurisprudence, 2 Tenn. Juris., Appeal and Error, § 9; 16 Tenn. Juris., Judgments and Decrees, §§ 52, 54; 20 Tenn. Juris., New Trials, § 6.

Law Reviews.

Criminal Law in Tennessee in 1976-1977 — A Critical Survey, IV. Procedure (Joseph G. Cook), 45 Tenn. L. Rev. 20.

NOTES TO DECISIONS

1. In General.

Title 27, ch. 7 relating to writ of error coram nobis are now available to criminal defendants except insofar as this section is inconsistent with those sections. Johnson v. Russell, 218 Tenn. 443, 404 S.W.2d 471, 1966 Tenn. LEXIS 581 (1966), superseded by statute as stated in, State v. Mixon, 983 S.W.2d 661, 1999 Tenn. LEXIS 33 (Tenn. 1999).

Because the holding in Sands v. State, 903 S.W.2d 297, 299, 1995 Tenn. LEXIS 331 (Tenn. 1995), that the statute of limitations is an affirmative defense, was based on the erroneous assumption that Tenn. R. Civ. P. 8.03 applies in coram nobis cases, that holding will not stand. Moreover, if a coram nobis petition may be dismissed as untimely based on the trial judge's initial review of the petition, prior to notice being given to the state, it stands to reason that the statute of limitations is not a defense that must be affirmatively pled by the state. Nunley v. State, 552 S.W.3d 800, 2018 Tenn. LEXIS 382 (Tenn. July 19, 2018).

As a general rule, subsequently or newly discovered evidence, which is simply cumulative to other evidence in the record or serves no other purpose than to contradict or impeach the evidence adduced during the trial, will not justify the granting of a petition for the writ of error coram nobis when the evidence, if introduced, would not have resulted in a different judgment. State v. Hart, 911 S.W.2d 371, 1995 Tenn. Crim. App. LEXIS 615 (Tenn. Crim. App. 1995).

A subsequent third party confession does not affect the voluntariness of a guilty plea. Newsome v. State, 995 S.W.2d 129, 1998 Tenn. Crim. App. LEXIS 1029 (Tenn. Crim. App. 1998).

A defendant who pled guilty is not entitled to a writ of error coram nobis on the grounds that a third party has confessed to the crime because a third party confession is not so much newly discovered evidence as it is newly disclosed to the court. Newsome v. State, 995 S.W.2d 129, 1998 Tenn. Crim. App. LEXIS 1029 (Tenn. Crim. App. 1998).

The writ of error coram nobis continues to be an available remedy in criminal actions, but the procedure governing the remedy is based upon the civil writ of error coram nobis which has been abolished for decades. State v. Mixon, 983 S.W.2d 661, 1999 Tenn. LEXIS 33 (Tenn. 1999).

“Reasonable probability” standard is the proper interpretation of the “may have resulted in a different judgment” language. State v. Workman, 111 S.W.3d 10, 2002 Tenn. Crim. App. LEXIS 1124 (Tenn. Crim. App. 2002), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 469 (Tenn. May 19, 2003).

Deliberate process privilege did not apply to an assistant district attorney general preparing for a hearing in state court involving a writ of error coram nobis proceeding under T.C.A. § 40-26-105; Tenn. R. Crim. P. 16 adequately protected his or her work product. Swift v. Campbell, 159 S.W.3d 565, 2004 Tenn. App. LEXIS 561 (Tenn. Ct. App. 2004), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 93 (Tenn. Jan. 31, 2005).

In a coram nobis proceeding, the trial judge must first consider the newly discovered evidence and be “reasonably well satisfied” with its veracity; if the defendant is “without fault” in the sense that the exercise of reasonable diligence would not have led to a timely discovery of the new information, the trial judge must then consider both the evidence at trial and that offered at the coram nobis proceeding in order to determine whether the new evidence may have led to a different result. State v. Vasques, 221 S.W.3d 514, 2007 Tenn. LEXIS 243 (Tenn. 2007), review or rehearing denied, — S.W.3d —, 2007 Tenn. LEXIS 297 (Tenn. 2007).

Rooker-Feldman doctrine did not apply to a prisoner's facial challenge to the constitutionality of the Tennessee collateral review statutes, T.C.A. § 29-21-107, T.C.A. § 40-26-105, and T.C.A. § 40-30-117; a district court thus erred in summarily dismissing his facial challenge to those Tennessee statutes. Carter v. Burns, 524 F.3d 796, 2008 FED App. 114P, 2008 U.S. App. LEXIS 5690 (6th Cir. Mar. 18, 2008).

There is nothing unclear or ambiguous about the statutory language “litigated on the trial,” “litigated at the trial,” and “the trial”; the plain and ordinary meaning of the term “litigated on or at the trial” in the context of criminal prosecutions refers to a contested proceeding involving the submission of evidence to a fact-finder who then must assess and weigh the proof in light of the applicable law and arrive at a verdict of guilt or acquittal. Frazier v. State, 495 S.W.3d 246, 2016 Tenn. LEXIS 406 (Tenn. July 7, 2016), cert. denied, Frazier v. Tennessee, 198 L. Ed. 2d 237, 137 S. Ct. 2163, — U.S. —, 2017 U.S. LEXIS 3355 (U.S. May 22, 2017).

Error coram nobis proceeding is not the appropriate procedural vehicle for obtaining relief on the ground that the petitioner suffered a constitutional due process violation under the Brady rule. Nunley v. State, 552 S.W.3d 800, 2018 Tenn. LEXIS 382 (Tenn. July 19, 2018).

Criminal error coram nobis claims are not governed by the Tennessee Rules of Civil Procedure. Writs of error coram nobis filed pursuant to T.C.A. § 40-26-105 are not governed by the Tennessee Rules of Civil Procedure but rather by T.C.A. §§ 27-7-101 through 27-7-108. Nunley v. State, 552 S.W.3d 800, 2018 Tenn. LEXIS 382 (Tenn. July 19, 2018).

If the petitioner seeks equitable tolling of the statute of limitations, the facts supporting the tolling request must appear on the face of the coram nobis petition. Nunley v. State, 552 S.W.3d 800, 2018 Tenn. LEXIS 382 (Tenn. July 19, 2018).

Timeliness under the statute of limitations is an essential element of a coram nobis claim that must be demonstrated on the face of the petition. Nunley v. State, 552 S.W.3d 800, 2018 Tenn. LEXIS 382 (Tenn. July 19, 2018).

Coram nobis petitions with insufficient allegations are susceptible to summary dismissal on the face of the petition, without discovery or an evidentiary hearing. Nunley v. State, 552 S.W.3d 800, 2018 Tenn. LEXIS 382 (Tenn. July 19, 2018).

2. Purpose.

The purpose of the writ of error coram nobis is to bring to the attention of the court some fact unknown to the court which if known would have resulted in a different judgment. State ex rel. Carlson v. State, 219 Tenn. 80, 407 S.W.2d 165, 1966 Tenn. LEXIS 625 (1966).

Holding that a writ of error coram nobis is available to challenge a guilty plea affords a petitioner a possible remedy where, otherwise, no remedy would be available because while relief under Tennessee's Post-Conviction Procedure Act, T.C.A. §§ 40-30-101 — 40-30 -124, is similar to that provided by a writ of error coram nobis, the two are not identical. Wlodarz v. State, 361 S.W.3d 490, 2012 Tenn. LEXIS 137 (Tenn. Feb. 23, 2012), overruled, Frazier v. State, 495 S.W.3d 246, 2016 Tenn. LEXIS 406 (Tenn. July 7, 2016), overruled, Hatton v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 556 (Tenn. Crim. App. Aug. 1, 2016), overruled, Brown v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 752 (Tenn. Crim. App. Sept. 30, 2016), overruled, Scott v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 397 (Tenn. Crim. App. May 16, 2017), overruled, Higgs v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 332 (Tenn. Crim. App. Apr. 30, 2018), overruled, McKennie v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 737 (Tenn. Crim. App. Sept. 28, 2018).

Writ of error coram nobis is the only potential remedy for those rare instances in which a petitioner may otherwise be wrongfully convicted of a crime because in those instances where post-conviction relief is procedurally barred or the facts do not support a post-conviction claim, erecting a barrier that would prevent writs of error coram nobis in the guilty plea context would leave courts without any means to do justice. Wlodarz v. State, 361 S.W.3d 490, 2012 Tenn. LEXIS 137 (Tenn. Feb. 23, 2012), overruled, Frazier v. State, 495 S.W.3d 246, 2016 Tenn. LEXIS 406 (Tenn. July 7, 2016), overruled, Hatton v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 556 (Tenn. Crim. App. Aug. 1, 2016), overruled, Brown v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 752 (Tenn. Crim. App. Sept. 30, 2016), overruled, Scott v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 397 (Tenn. Crim. App. May 16, 2017), overruled, Higgs v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 332 (Tenn. Crim. App. Apr. 30, 2018), overruled, McKennie v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 737 (Tenn. Crim. App. Sept. 28, 2018).

Evil that the coram nobis statute is aimed at remedying is a conviction based on materially incomplete or inaccurate information; it is not intended to provide convicted felons a second trial due to subsequent changes in the law. Payne v. State, 493 S.W.3d 478, 2016 Tenn. LEXIS 265 (Tenn. Apr. 7, 2016), cert. denied, Payne v. Tennessee, 197 L. Ed. 2d 516, 137 S. Ct. 1327, — U.S. —, 2017 U.S. LEXIS 1834 (U.S. Mar. 20, 2017).

Goal of the relief afforded under a writ of error coram nobis is a reliable determination of the petitioner's criminal liability for the offense with which he was charged based on all of the evidence that should have been made available to the fact-finder at the initial trial; the goal is not a redetermination of the petitioner's criminal liability in the face of changes in the law occurring many years after his trial. Payne v. State, 493 S.W.3d 478, 2016 Tenn. LEXIS 265 (Tenn. Apr. 7, 2016), cert. denied, Payne v. Tennessee, 197 L. Ed. 2d 516, 137 S. Ct. 1327, — U.S. —, 2017 U.S. LEXIS 1834 (U.S. Mar. 20, 2017).

3. Grounds.

Under the provisions of this section making the writ applicable to “matters which were not or could not have been litigated” petitioner was required to make the showing provided in § 27-7-102 of a lack of notice or disability or surprise, accident, mistake or fraud without fault on his part. State ex rel. Carlson v. State, 219 Tenn. 80, 407 S.W.2d 165, 1966 Tenn. LEXIS 625 (1966).

Where allegations raised in petition for writ of error coram nobis could have been litigated in trial of case or on motion for new trial or appeal and appeal was expressly waived by petitioner and there was no allegation or showing that petitioner had no notice of alleged error or was prevented from raising them other than through fault of his own, writ would not lie. State ex rel. Carlson v. State, 219 Tenn. 80, 407 S.W.2d 165, 1966 Tenn. LEXIS 625 (1966).

A post-trial statement of witness that he was mistaken when he identified defendant at the trial did not qualify as “subsequently or newly discovered evidence” where the substance of the statement was known to the defendant and fully explored at trial. Cole v. State, 589 S.W.2d 941, 1979 Tenn. Crim. App. LEXIS 288 (Tenn. Crim. App. 1979).

An alleged writ of error coram nobis which raised nothing outside the record which would warrant relief, and which was a fishing expedition for matters already litigated on direct appeal and post-conviction was properly refused. State v. Lingerfelt, 687 S.W.2d 294, 1984 Tenn. Crim. App. LEXIS 2692 (Tenn. Crim. App. 1984).

Trial court did not abuse its discretion in denying coram nobis relief based on recanted testimony or newly discovered x-ray evidence, as the evidence would not have affected the jury's verdict in petitioner's murder trial. State v. Workman, 111 S.W.3d 10, 2002 Tenn. Crim. App. LEXIS 1124 (Tenn. Crim. App. 2002), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 469 (Tenn. May 19, 2003).

Allegations of juror misconduct could have been discovered by the inmate and raised in a post-conviction petition; therefore, the allegations of juror misconduct did not amount to new evidence of innocence that would have resulted in a different judgment had it been presented at trial. Thus, the inmate's claim of juror misconduct was waived by failing to assert it in a timely petition for post-conviction relief. Freshwater v. State, 160 S.W.3d 548, 2004 Tenn. Crim. App. LEXIS 741 (Tenn. Crim. App. 2004), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 94 (Tenn. Jan. 31, 2005).

In a drug conspiracy case, a court properly granted coram nobis relief to defendants, because there was a reasonable basis upon which to conclude that knowledge by the jury of an agent's theft and illegal use of drugs was credible, relevant evidence that might have produced a different result as to the two defendants; although the agent was not involved in the arrest of any of the defendants, the agent's testimony directly implicated the two defendants in the conspiracy. State v. Vasques, 221 S.W.3d 514, 2007 Tenn. LEXIS 243 (Tenn. 2007), review or rehearing denied, — S.W.3d —, 2007 Tenn. LEXIS 297 (Tenn. 2007).

In a drug conspiracy case, a court erred by granting coram nobis relief to defendants, because, although it was discovered after trial that an agent stole and used drugs from the crime lab, the agent was not involved in the arrest or identification of those defendants; several other officers testified that defendants were in the car when the drug transaction occurred, several trash bags of marijuana were found in the car, and there was no reasonable basis to conclude under those circumstances that the evidence of the agent's improprieties may have led to different results as to those defendants. State v. Vasques, 221 S.W.3d 514, 2007 Tenn. LEXIS 243 (Tenn. 2007), review or rehearing denied, — S.W.3d —, 2007 Tenn. LEXIS 297 (Tenn. 2007).

Petitioner did not forfeit the procedural remedy of writ of error coram nobis based on newly discovered evidence by entering best interest guilty pleas because the writ, as codified in T.C.A. § 40-26-105(b), could be used to challenge a conviction based upon a guilty plea, rather than a bench trial or a trial by jury; while guilty plea proceedings may not include some of the components traditionally associated with litigation, they fall within the broad interpretations of “trial.” Wlodarz v. State, 361 S.W.3d 490, 2012 Tenn. LEXIS 137 (Tenn. Feb. 23, 2012), overruled, Frazier v. State, 495 S.W.3d 246, 2016 Tenn. LEXIS 406 (Tenn. July 7, 2016), overruled, Hatton v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 556 (Tenn. Crim. App. Aug. 1, 2016), overruled, Brown v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 752 (Tenn. Crim. App. Sept. 30, 2016), overruled, Scott v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 397 (Tenn. Crim. App. May 16, 2017), overruled, Higgs v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 332 (Tenn. Crim. App. Apr. 30, 2018), overruled, McKennie v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 737 (Tenn. Crim. App. Sept. 28, 2018).

Petitioner failed to state a claim that was cognizable under the coram nobis statute because he attempted to challenge his death sentence based on changes in the law that occurred years after his trial; a petition for writ of error coram nobis was not the appropriate procedural mechanism for pursuing petitioner's claim that he was ineligible to be executed due to his intellectual disability. Payne v. State, 493 S.W.3d 478, 2016 Tenn. LEXIS 265 (Tenn. Apr. 7, 2016), cert. denied, Payne v. Tennessee, 197 L. Ed. 2d 516, 137 S. Ct. 1327, — U.S. —, 2017 U.S. LEXIS 1834 (U.S. Mar. 20, 2017).

Supreme court overturns the majority's decision in Wlodarz v. State, 361 S.W.3d 490, 2012 Tenn. LEXIS 137 (Tenn. 2012) and holds that a guilty plea may not be collaterally attacked pursuant to the coram nobis statute; the coram nobis statute is not available as a procedural mechanism for collaterally attacking a guilty plea, and the supreme court overturns Wlodarz and any other Tennessee cases holding otherwise. Frazier v. State, 495 S.W.3d 246, 2016 Tenn. LEXIS 406 (Tenn. July 7, 2016), cert. denied, Frazier v. Tennessee, 198 L. Ed. 2d 237, 137 S. Ct. 2163, — U.S. —, 2017 U.S. LEXIS 3355 (U.S. May 22, 2017).

In addition to being non-adversarial, guilty plea hearings do not typically involve “evidence,” however, a defendant is not entitled to relief under the coram nobis statute unless he or she demonstrates that he or she was without fault in failing to present certain evidence at the proper time; this prerequisite to coram nobis relief set forth in the statute reinforces the statute's limitation to convictions that resulted from trials rather than from guilty pleas. Frazier v. State, 495 S.W.3d 246, 2016 Tenn. LEXIS 406 (Tenn. July 7, 2016), cert. denied, Frazier v. Tennessee, 198 L. Ed. 2d 237, 137 S. Ct. 2163, — U.S. —, 2017 U.S. LEXIS 3355 (U.S. May 22, 2017).

One cannot simultaneously participate in a trial and waive one's right to a trial, but rather, applying the plain and ordinary meanings to the words “trial” and “guilty plea” results in the conclusion that the two proceedings are mutually exclusive; thus, criminal defendants who plead “not guilty” are tried, and conversely, criminal defendants who plead “guilty” are not. Frazier v. State, 495 S.W.3d 246, 2016 Tenn. LEXIS 406 (Tenn. July 7, 2016), cert. denied, Frazier v. Tennessee, 198 L. Ed. 2d 237, 137 S. Ct. 2163, — U.S. —, 2017 U.S. LEXIS 3355 (U.S. May 22, 2017).

Petitioner sought to collaterally attack his guilty plea through the use of the error coram nobis statute, but he was not entitled to relief because the statute setting forth the remedy of error coram nobis in criminal matters did not encompass its application to guilty pleas. Frazier v. State, 495 S.W.3d 246, 2016 Tenn. LEXIS 406 (Tenn. July 7, 2016), cert. denied, Frazier v. Tennessee, 198 L. Ed. 2d 237, 137 S. Ct. 2163, — U.S. —, 2017 U.S. LEXIS 3355 (U.S. May 22, 2017).

In a case in which petitioner appealed the summary dismissal of his petition for a writ of error coram nobis, the court of criminal appeals concluded the revocation of the medical examiner's medical license and the findings of the medical disciplinary board did not constitute new evidence. Miles v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 667 (Tenn. Crim. App. July 31, 2017).

4. Petition for Writ.

A petition for the writ of error coram nobis in a criminal case, which seeks relief on the ground of subsequently or newly discovered evidence, should recite: (1) The grounds and the nature of the newly discovered evidence; (2) Why the admissibility of the newly discovered evidence may have resulted in a different judgment if the evidence had been admitted at the previous trial; (3) The petitioner “was without fault in failing to present” the newly discovered evidence at the appropriate time; and (4) The relief sought by the petitioner. Affidavits should be filed in support of the petition either as exhibits or attachments to the petition or at some point in time prior to the hearing. Teague v. State, 772 S.W.2d 915, 1988 Tenn. Crim. App. LEXIS 765 (Tenn. Crim. App. 1988), rehearing denied, — S.W.2d —, 1989 Tenn. Crim. App. LEXIS 45 (1989), appeal denied, — S.W.2d —, 1989 Tenn. LEXIS 292 (Tenn. June 5, 1989), overruled, Owens v. State, 908 S.W.2d 923, 1995 Tenn. LEXIS 614 (Tenn. 1995), overruled, State v. Mixon, 983 S.W.2d 661, 1999 Tenn. LEXIS 33 (Tenn. 1999).

On the same day that a petition for writ of error coram nobis is filed in the trial court, the petitioner should also file in the appellate court a motion requesting that appellate proceedings be stayed pending the trial court's decision on the writ. State v. Mixon, 983 S.W.2d 661, 1999 Tenn. LEXIS 33 (Tenn. 1999).

In a first degree murder case, the trial court properly dismissed defendant's motion to reopen his post-conviction petition as the state's alleged suppression of exculpatory evidence was not a proper ground to reopen; the appellate court erred in sua sponte treating defendant's motion to reopen as a petition for writ of error coram nobis as it could not independently examine the motion to determine whether defendant should have pursued a completely different avenue of relief in the trial court. Harris v. State, 102 S.W.3d 587, 2003 Tenn. LEXIS 313 (Tenn. 2003), overruled in part, Nunley v. State, 552 S.W.3d 800, 2018 Tenn. LEXIS 382 (Tenn. July 19, 2018).

Coram nobis petition by a pro se defendant was not premature because a final judgment in the case was entered when the trial court entered its order denying defendant's motion for new trial and a pending direct appeal did not alter the finality of the trial court's judgment in that a timely petition for writ of coram nobis will almost always be filed while an appeal is pending. Willis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 488 (Tenn. Crim. App. July 7, 2016).

5. —Denied.

Writ of coram nobis was erroneously denied, because evidence tending to impeach a witness's testimony and forge a link between the witness and a gang that petitioner alleged was responsible for the murder, when considered in conjunction with multiple pieces of evidence implicating the gang and the evidence at trial, including that the sole eyewitness identifying petitioner had his testimony impeached, may have resulted in a different judgment had it been presented. Johnson v. State, 370 S.W.3d 694, 2011 Tenn. Crim. App. LEXIS 905 (Tenn. Crim. App. Dec. 9, 2011), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 230 (Tenn. Apr. 11, 2012).

Petition for writ of error coram nobis failed to state a cognizable claim for relief, as the petition failed to present any subsequent or newly discovered evidence that could not have been raised in an earlier proceeding; furthermore, any challenge to the post-conviction court's ruling on the admissibility of the jury foreperson's testimony at the post-conviction hearing should have been raised on appeal from that court's denial of post-conviction relief. Guilfoy v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 531 (Tenn. Crim. App. July 17, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 725 (Tenn. Nov. 14, 2018).

6. —Procedural Requirements.

7. Compensation of Attorneys.

There was no provision for counsel appointed for indigent persons in habeas corpus or coram nobis proceedings to be compensated by the state since such proceedings by their nature were in their nature civil rather than criminal. State ex rel. Austin v. Johnson, 218 Tenn. 433, 404 S.W.2d 244, 1966 Tenn. LEXIS 642 (1966).

8. Statute of Limitations.

A judgment becomes final, and the one-year coram nobis statute of limitations begins to run, thirty days after entry of the judgment in the trial court if no post-trial motion is filed, or upon entry of an order disposing of a timely filed post-trial motion. State v. Mixon, 983 S.W.2d 661, 1999 Tenn. LEXIS 33 (Tenn. 1999).

Due process precluded application of T.C.A. § 40-26-105 to bar consideration of the writ of error coram nobis where defendant's interest in obtaining a hearing to present newly discovered evidence that may establish actual innocence of a capital offense far outweighed any governmental interest in preventing the litigation of stale claims. Workman v. State, 41 S.W.3d 100, 2001 Tenn. LEXIS 306 (Tenn. 2001).

Inmate's allegations of the newly discovered exculpatory evidence that was suppressed by the state that the accomplice told another person that he was the sole shooter could not have been litigated previously and raised serious questions regarding whether the inmate, in fact, murdered the victim. Thus, due process precluded summary dismissal of her claim based upon a statutory time bar and she was entitled to a hearing to evaluate the claims contained in her petition for writ of error coram nobis relating to the newly discovered evidence; at the hearing, the inmate would have the opportunity to establish that there was a “reasonable probability” that the newly discovered evidence might have resulted in a different judgment if the evidence had been admitted at the previous trial and, if she made that showing and she established that she “was without fault” in failing to present the newly discovered evidence at the appropriate time, she would be entitled to a new trial. Freshwater v. State, 160 S.W.3d 548, 2004 Tenn. Crim. App. LEXIS 741 (Tenn. Crim. App. 2004), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 94 (Tenn. Jan. 31, 2005).

Fact that the inmate escaped from jail and remained a fugitive for many years did not change the fact that the exculpatory evidence was withheld by the state and, even if the inmate had not escaped, there was no reason to believe the exculpatory evidence would have been disclosed voluntarily. Thus, due process precluded the summary dismissal of the inmate's claim based upon a statutory time bar and she was entitled to a hearing to evaluate the claims contained in her petition for writ of error coram nobis relating to the newly discovered evidence. Freshwater v. State, 160 S.W.3d 548, 2004 Tenn. Crim. App. LEXIS 741 (Tenn. Crim. App. 2004), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 94 (Tenn. Jan. 31, 2005).

Applicable statute of limitations of T.C.A. § 27-7-103 barred defendant's petition for writ of error coram nobis under T.C.A. § 40-26-105 where the actual limitations period expired almost 15 years earlier and due process did not require tolling because defendant was given a reasonable opportunity to present the claims and delayed approximately six years with regard to one claim and approximately 21 months with regard to another claim. Harris v. State, 301 S.W.3d 141, 2010 Tenn. LEXIS 8 (Tenn. Jan. 14, 2010), overruled in part, Nunley v. State, 552 S.W.3d 800, 2018 Tenn. LEXIS 382 (Tenn. July 19, 2018).

Petition for a writ of error coram nobis is subject to being summarily dismissed if it does not show on its face that it has been timely filed and that compliance with the timely filing requirement in T.C.A. § 27-7-103 is an essential element of a coram nobis claim. Accordingly, the statute of limitations set forth in § 27-7-103 is not an affirmative defense that must be specifically raised by the state in error coram nobis cases; instead, the coram nobis petition must show on its face that it is timely filed. Prior cases are overruled to the extent that they hold otherwise, including, but not limited to, Wilson v. State, 367 S.W.3d 229, 2345 (Tenn. 2012); Harris v. State, 301 S.W.3d 141, 144, 2010 Tenn. LEXIS 8 (Tenn. 2010); State V. Harris, 102 S.W.3d 587, 593, 2003 Tenn. LEXIS 313 (Tenn. 2003); Sands v. State, 903 S.W.2d 297, 299, 1995 Tenn. LEXIS 331 (Tenn. 1995). Nunley v. State, 552 S.W.3d 800, 2018 Tenn. LEXIS 382 (Tenn. July 19, 2018).

One-year limitations period for filing a petition for writ of error coram nobis under T.C.A. § 40-26-105 was not tolled on due process grounds, as petitioner's claim of newly discovered evidence had no bearing on petitioner's actual guilt or innocence; even if the relief was granted, petitioner would remain subject to a federal firearms possession charge. State v. Castleman, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 431 (Tenn. Crim. App. May 27, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 1074 (Tenn. Nov. 12, 2010), cert. denied, Castleman v. Tennessee, 180 L. Ed. 2d 252, 131 S. Ct. 2964, — U.S. —, 2011 U.S. LEXIS 4331 (U.S. 2011).

Petitioner was not entitled to coram nobis relief because the petition was untimely, petitioner did not show that the statute of limitations should be tolled, petitioner did not show that he was not at fault in not previously presenting statements from a codefendant and other witnesses, petitioner did not show how police reports of other robberies would have been relevant at his own trial, and petitioner did not demonstrate that any newly-discovered evidence might have resulted in a different judgment. Campbell v. State, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 542 (Tenn. Crim. App. June 25, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 941 (Tenn. Nov. 13, 2013), cert. denied, Campbell v. Tennessee, 189 L. Ed. 2d 188, 134 S. Ct. 2307, — U.S. —, 2014 U.S. LEXIS 3415 (U.S. 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 583 (Tenn. July 14, 2014).

Prisoner's petition for coram nobis relief was barred by a one-year statute of limitations because the prisoner's claim that the prisoner was ineligible for the death penalty, as the prisoner was intellectually disabled, could have been litigated at trial or during post-conviction proceedings. Therefore, the grounds were not later-arising, justifying the tolling of the statute of limitations. Chalmers v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 664 (Tenn. Crim. App. June 30, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 956 (Tenn. Nov. 19, 2014), cert. denied, Chalmers v. Tennessee, 193 L. Ed. 2d 50, 136 S. Ct. 39, — U.S. —, 2015 U.S. LEXIS 5599 (U.S. 2015).

In petitioner's death penalty case, the petition for writ of error coram nobis was barred by the one-year statute of limitations because, when petitioner filed his motion to reopen in April 2012, he chose not to file a petition for writ of error coram nobis alleging that he was intellectually disabled; additionally, an expert's affidavit claimed no new test results nor information that could not have been known or discovered in 1987. Payne v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1005 (Tenn. Crim. App. Oct. 30, 2014), aff'd, 493 S.W.3d 478, 2016 Tenn. LEXIS 265 (Tenn. Apr. 7, 2016).

Although the trial court concluded that the petition for writ of error coram nobis was time barred, the State did not plead the statute of limitations as an affirmative defense in the trial court, and thus, the court of criminal appeals considered the petition on its merits. Nunley v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 162 (Tenn. Crim. App. Mar. 3, 2017), aff'd, 552 S.W.3d 800, 2018 Tenn. LEXIS 382 (Tenn. July 19, 2018).

Petitioner's coram nobis claim regarding the discovery of the editing of a videotape was time-barred because the petitioner's conviction became “final,” for the purpose of computing the one-year statute of limitations, upon the judgment of conviction in the trial court for murder, not when the petitioner was resentenced to life. Furthermore, because the ground for relief was not later arising, as the videotape was available to the petitioner, the petitioner was not entitled to due process tolling on the claim. Cauthern v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 223 (Tenn. Crim. App. Mar. 24, 2017).

Reversal and remand was appropriate for a hearing on whether due process required tolling the statute of limitations as to a coram nobis petitioner's claim regarding lab bench notes because it was unclear (1) when the petitioner's counsel obtained the lab bench notes; (2) whether the State of Tennessee withheld the evidence; and (3) whether the purported failure of the State to turn over the lab bench notes prior to trial would have amounted to a Brady violation. Cauthern v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 223 (Tenn. Crim. App. Mar. 24, 2017).

Defendant's claims regarding the victim's having lied at trial and having been threatened regarding the victim's trial testimony were barred by the statute of limitations because those issues were raised at defendant's trial and motion for new trial, and the victim was cross-examined at trial about having recanted the victim's allegations against defendant. Defendant's claim of witnessing another person rape the victim was also time-barred because the victim testified at trial that the other person had also touched the victim. Cradic v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 441 (Tenn. Crim. App. May 26, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 691 (Tenn. Oct. 4, 2017).

There was no basis for tolling the statute of limitations for seeking coram nobis relief, because the inmate's claim of incompetency was not “late arising,” but simply a repackaging of his longstanding mental health problems combined with locating two expert witnesses to assert that the previous evaluations, concluding that the inmate was competent, were deficient. Hugueley v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 554 (Tenn. Crim. App. June 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 779 (Tenn. Nov. 17, 2017).

Inasmuch as evidence that the victim's mother continued to fail to properly care for her subsequently born children was not newly discovered evidence nor was it evidence of petitioner's actual innocence, the court of criminal appeals could not conclude that due process considerations required a tolling of the statute of limitations. Because the petition for writ of error coram nobis in this case was untimely, the trial court did not abuse its discretion in summarily denying the petition. Hayes v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 870 (Tenn. Crim. App. Sept. 27, 2017).

Summary dismissal of defendant's second petition for writ of error coram nobis was appropriate because the petition was time-barred as the petition was filed more than a year after defendant's conviction became final and defendant failed to show grounds for relief. Furthermore, a statement by one affiant was mere speculation, statements by a second affiant were cumulative of defendant's trial testimony, and defendant did not assert that a third affiant was to provide new or additional testimony. Pulliam v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 241 (Tenn. Crim. App. Mar. 29, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 462 (Tenn. July 19, 2018).

Lower court properly determined that a coram nobis petition was untimely where it was filed about 27 years after the judgments became final, the unedited recordings of the search of petitioner's home and arrest were contained in the court record, and since the recordings existed at the time of trial, due process did not require tolling of the statute of limitations. Patterson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 501 (Tenn. Crim. App. July 5, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 739 (Tenn. Dec. 6, 2018).

Judgments became final on April 12, 2012 and thus petitioner had until April 12, 2013 to file a petition for writ of error coram nobis; however, petitioner did not file until 2017, well outside the one-year statute of limitations, and as petitioner's grounds for relief were not later-arising and he conceded that he was aware that the jury had viewed the forensic interviews in question during its deliberations as early as 2011, due process does not require tolling of the statute of limitations. Guilfoy v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 531 (Tenn. Crim. App. July 17, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 725 (Tenn. Nov. 14, 2018).

Petition for writ of error coram nobis was not filed until more than three years after the one-year statute of limitations expired, and since the record did not implicate any due process concerns that might toll the statute of limitations, dismissal of the petition was proper. Hooten v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 757 (Tenn. Crim. App. Oct. 5, 2018).

Error coram nobis court appropriately summarily dismissed the petition because the record in this case did not implicate any due process concerns that might toll the one-year statute of limitations for a writ of error coram nobis and the petition was filed outside the one-year statute of limitations period. State v. Mallard, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 817 (Tenn. Crim. App. Nov. 2, 2018).

Because defendant's petition for writ of error coram nobis was untimely and tolling of the statute of limitations was not required, as defendant waited years after receiving letters stating that co-defendant killed the victim before filing a petition for writ of error coram nobis, dismissal of the petition as time-barred was appropriate. Hall v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 894 (Tenn. Crim. App. Dec. 12, 2018).

Trial court properly summarily dismissed defendant's petition for error coram nobis relief because the appellate court had already determined that his petition requesting relief based upon intellectual disability was barred by the one-year statute of limitations and that due process did not require tolling of the statute of limitations, and the doctrine of collateral estoppel prohibited relitigation of the issue of his claim of intellectual disability. Dellinger v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 247 (Tenn. Crim. App. Apr. 17, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 394 (Tenn. Aug. 14, 2019), cert. denied, Dellinger v. Tennessee, 206 L. Ed. 2d 947, — S. Ct. —, — U.S. —, 2020 U.S. LEXIS 2754 (U.S. May 18, 2020).

Statute of limitations was properly tolled in the interest of justice as the grounds for relief arose after the statute of limitations expired, and thus, a strict application of the limitations period would have effectively denied petitioner a reasonable opportunity to present the claim. Wilson v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 461 (Tenn. Crim. App. Aug. 1, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 577 (Tenn. Dec. 5, 2019).

Trial court did not err by summarily dismissing the petition for a writ of error coram nobis because the petition was filed 30 years after the one year statute of limitations had expired and petitioner's claims of ineffective assistance of counsel did not equitably toll the limitations period. In addition, petitioner's claim that the jurors' viewing him in shackles and handcuffs was not cognizable in a coram nobis proceeding because the evidence did not qualify as substantive admissible evidence that may have resulted in a different judgment had it been presented at trial, and petitioner was not entitled to equitable tolling to pursue a patently non-meritorious ground for relief. State v. Sutton, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 83 (Tenn. Crim. App. Feb. 11, 2020).

9. Appeal.

Any appeal from the trial court's decision on the petition for writ of error coram nobis is to be consolidated with the defendant's pending appeal as of right. State v. Mixon, 983 S.W.2d 661, 1999 Tenn. LEXIS 33 (Tenn. 1999).

Trial court did not err by denying defendant's petition for a writ of error coram nobis, because the newly discovered evidence would not have changed the outcome of defendant's murder trial if heard by the jury; during the hearing on defendant's petition, a witness who testified during defendant's trial denied telling the affiant that she was waiting to testify in defendant's trial so that she could collect her money, and another man denied telling the affiant that he had killed the victim. State v. Tolson, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 1019 (Tenn. Crim. App. Dec. 28, 2006), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 409 (Tenn. Apr. 16, 2007), dismissed, Tolson v. Howerton, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 124381 (M.D. Tenn. Sept. 8, 2016).

Because defendant failed to file an adequate record, the appellate court had to presume that the coram nobis court correctly concluded that defendant's newly discovered evidence may not have led to a different result at trial. State v. Chandler, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 280 (Tenn. Crim. App. Apr. 13, 2018).

10. Petition Denied.

Court properly denied defendant's petition for a writ of error coram nobis because the defense was aware of a report suggesting that a different gun fired the fatal shot; thus, the reports were not “new” within the meaning of the coram nobis statute, T.C.A. § 40-26-105(b). Wlodarz v. State, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 393 (Tenn. Crim. App. May 19, 2010), aff'd, 361 S.W.3d 490, 2012 Tenn. LEXIS 137 (Tenn. Feb. 23, 2012).

Court properly denied coram nobis relief because there was not a reasonable probability that had the recanted confession been introduced at trial it might have led to a different result. Rather, had the co-defendant's recantation letter been introduced at the trial the jury would have merely been presented with two conflicting statements presented by a non-testifying co-defendant. Thomas v. State, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 131 (Tenn. Crim. App. Feb. 23, 2011), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 773 (Tenn. Aug. 25, 2011), cert. denied, Thomas v. Tennessee, 565 U.S. 1245, 132 S. Ct. 1713, 182 L. Ed. 2d 252, 2012 U.S. LEXIS 1846 (U.S. 2012).

Defendant simply attempted to take advantage of another's death in order to manufacture an alternative defense which, if true, could have been presented at trial; thus, the successor judge did not abuse his discretion by denying the re-asserted petition for writ of error coram nobis because defendant was not entitled to a new trial based upon newly discovered evidence. State v. Hall, 461 S.W.3d 469, 2015 Tenn. LEXIS 241 (Tenn. Mar. 20, 2015), cert. denied, Hall v. Tennessee, 193 L. Ed. 2d 349, 136 S. Ct. 479, — U.S. —, 2015 U.S. LEXIS 7117 (U.S. 2015).

Trial court did not err by denying defendant's petition for a writ of error coram nobis because the photographs and videos from the hard drive of defendant's computer that was seized by the police did not constitute newly discovered evidence, as defendant, who took the photographs, recorded the videos, and then transferred them to the computer, did not think to have his attorney ask for the hard drive. State v. Hall, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 322 (Tenn. Crim. App. May 2, 2017).

Counsel denied participating in a conspiracy to frame petitioner with the crime, petitioner offered no testimony or other evidence that counsel influenced his written admissions to police or the substance of his trial testimony, and counsel pursued a reasonable defense strategy in light of the overwhelming evidence against petitioner; thus, the trial court did not abuse its discretion by denying coram nobis relief based on petitioner's claims. Munford v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 151 (Tenn. Crim. App. Feb. 26, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 410 (Tenn. July 18, 2018).

Petitioner was not entitled to coram nobis relief as, although the FBI's letters addressed the general possibility that the agent's testimony might have overstated the science surrounding hair analysis, excluding that testimony would not have changed the outcome of petitioner's trial on the felony murder charge. Smith v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 222 (Tenn. Crim. App. Apr. 6, 2020).

11. Petition Improperly Denied.

In an action seeking a writ of coram nobis under T.C.A. § 40-26-105, a criminal court's summary dismissal of the petition was improper, as petitioner raised a possible ground for relief based on newly discovered evidence that unnamed witnesses involved in petitioner's trial lied repeatedly; an evidentiary hearing should have been held. Wilson v. State, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 259 (Tenn. Crim. App. Apr. 6, 2011), rev'd, 367 S.W.3d 229, 2012 Tenn. LEXIS 288 (Tenn. Apr. 20, 2012).

Lower court improperly dismissed the coram nobis petition as it related to laboratory bench notes where there was no evidence of the specific contents of those notes, the record reflected that neither the prosecution nor counsel had reviewed the notes before the hearing, and there was no showing that counsel or petitioner learned of the notes' existence before the hearing on the coram nobis petition. Patterson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 501 (Tenn. Crim. App. July 5, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 739 (Tenn. Dec. 6, 2018).

12. Petition Properly Denied.

Petitioner was not entitled to relief because while the writ of error coram nobis was a viable remedy to attack the knowing and voluntary nature of guilty pleas that served as the basis for convictions, the results of ballistic tests did not constitute “newly discovered evidence” as required by T.C.A. § 40-26-105(b); petitioner was clearly aware that the ballistic evidence had been tested and that the results were inconclusive because his assertion at the coram nobis proceeding that the State had failed to inform him that the evidence had been sent for testing was inconsistent with his previous testimony in the record. Wlodarz v. State, 361 S.W.3d 490, 2012 Tenn. LEXIS 137 (Tenn. Feb. 23, 2012), overruled, Frazier v. State, 495 S.W.3d 246, 2016 Tenn. LEXIS 406 (Tenn. July 7, 2016), overruled, Hatton v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 556 (Tenn. Crim. App. Aug. 1, 2016), overruled, Brown v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 752 (Tenn. Crim. App. Sept. 30, 2016), overruled, Scott v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 397 (Tenn. Crim. App. May 16, 2017), overruled, Higgs v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 332 (Tenn. Crim. App. Apr. 30, 2018), overruled, McKennie v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 737 (Tenn. Crim. App. Sept. 28, 2018).

Dismissal of the petition for writ of error coram nobis was affirmed because petitioner had obtained a thorough review of his issues over almost thirty years; petitioner could not employ a novel strategy to overcome a procedural bar and justify review of a previously decided issue. Harbison v. State, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 358 (Tenn. Crim. App. May 31, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 952 (Tenn. Dec. 10, 2012), cert. denied, Harbison v. Tennessee, 187 L. Ed. 2d 375, 134 S. Ct. 520, — U.S. —, 2013 U.S. LEXIS 7931 (U.S. 2013).

Defendant was not entitled to coram nobis relief because the alleged newly discovered medical opinion of a doctor, that the child molestation victim's physical examination was normal, was already offered by defendant's medical expert witness at defendant's trial. Duke v. State, — S.W.3d —, 2015 Tenn. App. LEXIS 925 (Tenn. Ct. App. Nov. 23, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 292 (Tenn. Apr. 6, 2016), cert. denied, Duke v. Tennessee, 196 L. Ed. 2d 305, 137 S. Ct. 387, 2016 U.S. LEXIS 6692.

Dismissal of a petition for writ of error coram nobis was appropriate because the court correctly applied a three-prong test and did not abuse its discretion in finding that an accomplice, who recanted the accomplice's testimony against the petitioner, was not credible and therefore that the new testimony was false. Moreover, the court stated that, even if it had found the recanted testimony by the witness to have been reliable, it would not have changed the outcome of the trial. Thomas v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 230 (Tenn. Crim. App. Apr. 1, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 598 (Tenn. July 21, 2015), cert. denied, Thomas v. Tennessee, 136 S. Ct. 555, 193 L. Ed. 2d 443, 2015 U.S. LEXIS 7544 (U.S. Nov. 30, 2015).

DNA testing neither excluded nor established defendant's paternity, and such inconclusive results would not have resulted in a different outcome if presented at trial, plus the evidence presented at trial concerning the sexual abuse supported the trial court's findings that this evidence did not qualify as newly discovered; the trial court did not abuse its discretion by denying coram nobis relief. State v. Hawkins, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 700 (Tenn. Crim. App. Aug. 28, 2015), aff'd, 519 S.W.3d 1, 2017 Tenn. LEXIS 272 (Tenn. May 1, 2017), cert. denied, Hawkins v. Tennessee, 199 L. Ed. 2d 288, 138 S. Ct. 388, 2017 U.S. LEXIS 6432 (U.S. Oct. 30, 2017).

Defendant was properly denied coram nobis relief from his second-degree murder conviction based on newly discovered evidence where the record showed that defendant knew of the victim's violent tendencies before the trial and he presented ample evidence of her violence toward defendant and others. Although the testimony of the victim's son and a former school mate supported the defense that the victim was violent and had brandished weapons during confrontations, the court could not conclude that the jury would have reached a different verdict had they testified at trial. Davis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 29 (Tenn. Crim. App. Jan. 14, 2016).

Defendant was not entitled to coram nobis relief because, even if defendant's allegations of newly discovered evidence were taken as true, the facts remained that defendant approached the victim's house, told the victim's parent that defendant intended to kill the victim for stealing defendant's jewelry, and chased the victim to the back of the victim's home where the victim was shot and killed. Defendant was seen discarding the murder weapon, and defendant confessed to police officers that defendant killed the victim. Barnes v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 96 (Tenn. Crim. App. Feb. 10, 2016).

In denying coram nobis relief, the court properly concluded that admission of a previously undisclosed videotaped interview would not have led to a different result had it been disclosed prior to trial, as the interview was merely cumulative of evidence presented at trial. Berry v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 214 (Tenn. Crim. App. Mar. 23, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 624 (Tenn. Aug. 18, 2016).

Defendant's petition for writ of error coram nobis, asserting that he did not know that he would be required to register as a sexual offender when he entered his guilty pleas, was properly denied because the registration requirements imposed by the sex offender registration act were a collateral consequence of defendant's guilty plea; neither the federal nor state constitution required that an accused be apprised of every possible or contingent consequence of pleading guilty before entering a valid plea; and the failure to advise defendant of the sexual registration requirement would not have made his guilty plea, in which he waived the right to appeal the convictions that triggered the registration requirement, constitutionally invalid. Dalton v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 340 (Tenn. Crim. App. May 5, 2016).

Because the convictions that mandated defendant's compliance with the sexual offender registry were not evidence of actual innocence that would have changed the course of trial, the trial court found that the statute of limitation for the writ of error coram nobis should not be tolled. Dalton v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 340 (Tenn. Crim. App. May 5, 2016).

Because the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking Act included defendant's convictions for aggravated kidnapping and especially aggravated kidnapping as sexual offenses since 2006, the issue regarding the requirement that defendant register as a sex offender did not arise after the limitations period, and the exercise of reasonable diligence would have led to a timely discovery of the requirement that he had to register as a sex offender, the statute of limitations for the writ of error coram nobis was not be tolled. Dalton v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 340 (Tenn. Crim. App. May 5, 2016).

Coram nobis court did not abuse its discretion in summarily dismissing defendant's pro se petition because of the petition's substantive deficiencies in that (1) coram nobis could not be used to relitigate a suppression motion; (2) the evidence did not constitute newly discovered evidence; (3) defendant did not show that defendant was without fault in failing to present the evidence at the appropriate time; and (4) defendant failed to show how the evidence, had it been admitted at trial, may have resulted in a different judgment. Willis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 488 (Tenn. Crim. App. July 7, 2016).

Inmate's post-conviction relief petition was properly dismissed because it was not error to decline to treat the successive petition as a petition for writ of error coram nobis as the inmate could not use the coram nobis statute to collaterally attack the inmate's guilty plea. Skipper v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 634 (Tenn. Crim. App. Aug. 26, 2016).

Coram nobis court did not err in denying defendant's petition for writ of error coram nobis because no conflict of interests existed because trial counsel's representation of a witness ended on August 2, 2001; counsel did not obtain any information during his representation of the witness that could have been used to impeach the witness at defendant's trial; counsel testified at the post-conviction hearing that defendant knew counsel had represented the witness as defendant mentioned it to counsel; and counsel's previous representation of the witness had no impact on the outcome of defendant's trial because it had no relevance to whether defendant shot and killed the victim. Woodard v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 847 (Tenn. Crim. App. Nov. 8, 2016).

Trial court did not abuse its discretion in dismissing defendant's petition for a writ of error coram nobis because testimony by an accomplice was corroborated by eyewitness testimony, as well as the phone records for a phone number which defendant had previously used as a contact number on the bill of sale for a vehicle used in the robbery, and the testimony of defendant's girlfriend. Additionally, the police recovered robbery accouterments–masks, gloves, bandanas–in defendant's vehicle, all of which had defendant's DNA on them. Peoples v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 5 (Tenn. Crim. App. Jan. 6, 2017).

Coram nobis court did not abuse its discretion in denying defendant's petition because defendant's claims failed to meet the threshold burden of showing that the victim's trial testimony was false and that the victim's statements recanting that testimony were true. Cradic v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 441 (Tenn. Crim. App. May 26, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 691 (Tenn. Oct. 4, 2017).

Inmate's claim that he was entitled to coram nobis relief was faulty, because such relief was available only to newly discovered evidence relating to matters litigated at trial and the competency claims presented by the inmate would not have been litigated at trial but would have been made prior to trial by the trial court. Hugueley v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 554 (Tenn. Crim. App. June 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 779 (Tenn. Nov. 17, 2017).

Coram nobis' court's statement in its order was not a misstatement of the standard for denying a petition, but rather a conclusion that the proffered newly discovered evidence would not have led to a different result because the evidence would not have been credited by a jury and thus, the petition was not entitled to relief on that basis. Bough v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 626 (Tenn. Crim. App. July 17, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 692 (Tenn. Oct. 3, 2017).

Petitioner was not entitled to relief based on a claim that the coram nobis court erred by permitting the State to impeach a witness with the 9-1-1 recording of the victim's dying declaration, which he claimed was hearsay, because the 9-1-1 call was not played at the coram nobis hearing. Bough v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 626 (Tenn. Crim. App. July 17, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 692 (Tenn. Oct. 3, 2017).

Trial court did not abuse its discretion by denying defendant's petition for writ of error coram nobis because, following an evidentiary hearing, the trial court found that witnesses who recanted were not credible and that the testimony of a newly discovered witness did not meet the test that it might have changed the outcome of the trial. State v. Lowery, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 633 (Tenn. Crim. App. July 19, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 798 (Tenn. Nov. 16, 2017).

Denial of defendant's petition for writ of error coram nobis was appropriate because the testimony by an allegedly newly discovered witness would, at best, have served to impeach the credibility of a witness at trial and did not constitute newly discovered evidence establishing defendant's innocence. The witness who testified was not the key witness against defendant and there were other witnesses, in addition to that witness, who testified that defendant either admitted the crime to them or that they saw defendant running from the crime scene. State v. Brown, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 947 (Tenn. Crim. App. Nov. 9, 2017).

Inmate was not entitled to a writ of error coram nobis barring the inmate's execution due to intellectual disability because the inmate did not (1) allege newly discovered evidence or (2) show the statute of limitations which otherwise barred the petition was tolled. Ivy v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 64 (Tenn. Crim. App. Jan. 30, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 298 (Tenn. May 18, 2018).

In an action based on the inmate having lit his residence on fire with his girlfriend locked in a utility close, the inmate's claims did not rise to the level of newly discovered evidence, as the proffered expert reports were merely new opinions on already presented evidence, and thus, the inmate was not entitled to a writ of error coram nobis. Garrett v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 312 (Tenn. Crim. App. Apr. 26, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 578 (Tenn. Sept. 14, 2018).

Trial court used an incorrect standard of review when denying defendant's petition for writ of error coram nobis and stating that his newly discovered evidence must have resulted in a different judgment; however, defendant's sole proof regarding an alleged recantation was his own testimony, and such recantation, even if true, did not rise to the level of warranting a grant of the writ of error coram nobis or a new trial, given that the State provided sufficient proof to convict defendant of first degree murder. State v. Morton, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 542 (Tenn. Crim. App. July 19, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 685 (Tenn. Nov. 14, 2018).

Lower court did not err in denying defendant's petition for coram nobis relief; although defendant claimed that newly discovered evidence and recanted testimony established that someone else committed the murder, the lower court disagreed, finding that one witness had memory issues and a degree of confusion that affected her credibility, plus a great deal of time passed before the witness decided to change her testimony, and even if other testimony satisfied veracity requirements, that witness's mere suspicions did not qualify as new evidence. Kiser v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 559 (Tenn. Crim. App. July 26, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 677 (Tenn. Nov. 15, 2018).

Trial court did not err by dismissing defendant's petition for writ of error coram nobis without an evidentiary hearing or appointment of counsel because the petition was insufficient on its face, as defendant failed to provide any evidence to substantiate his claim that the grand jury foreperson signed his indictment without being sworn in, his claim against his former attorney did not qualify as newly discovered evidence, and he failed to show how he was without fault in not discovering cell phone evidence sooner. In addition, defendant filed his petition more than seven years after the expiration of the statute of limitations and the petition failed to sufficiently explain why he was entitled to equitable tolling. Reed v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 672 (Tenn. Crim. App. Aug. 31, 2018), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 56 (Tenn. Jan. 18, 2019), cert. denied, Reed v. Tennessee, 204 L. Ed. 2d 234, 139 S. Ct. 2035, — U.S. —, 2019 U.S. LEXIS 3289 (U.S. May 13, 2019).

Trial court did not err by dismissing the petition for writ of error coram nobis seeking relief from petitioner's conviction of statutory rape that was the result of a guilty plea, based on the victim's recantation of her allegations against him, because the Tennessee Supreme Court had stated that this section was not available as a procedural mechanism for collaterally attacking a guilty plea. Diallo v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 692 (Tenn. Crim. App. Sept. 12, 2018).

Because the post-conviction court was not satisfied with the veracity of petitioner's newly discovered evidence, the post-conviction court did not abuse its discretion by denying the petition on that basis, even though the petition should have been dismissed because it was untimely filed. Hooten v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 757 (Tenn. Crim. App. Oct. 5, 2018).

Coram nobis court did not abuse its discretion by denying defendant relief from an attempted murder conviction because the court was not satisfied that the trial testimony of the only witness to the shooting was false and that the new testimony of the witness was true as the witness provided inconsistent testimony regarding the motive of the witness for recanting their testimony, was concerned about the statute of limitations for aggravated perjury, and refused to identify the second perpetrator in the shooting. Braxton v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 853 (Tenn. Crim. App. Nov. 19, 2018).

Trial court did not abuse its discretion by denying a petition for a writ of error coram nobis from petitioner's murder conviction based on newly discovered evidence because petitioner did not show that the transcript of a witness's federal grand jury testimony was newly discovered evidence, as the transcript of petitioner's trial reflected that the grand jury transcript was provided to the defense after the witness's direct testimony and the record failed to establish what, if anything, in the transcript was withheld from the defense. Johnson v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 27 (Tenn. Crim. App. Jan. 15, 2019).

Dismissal of defendant's petition for writ of error coram nobis was appropriate when defendant alleged that newly discovered evidence existed in defendant's case because any alleged newly discovered evidence in an affidavit was recanted by the intended shooting victim and defendant failed to show how the intended victim's inconsistent testimony affected the outcome of defendant's trial. Furthermore, copious evidence existed to support defendant's convictions, including defendant's own confession to police and at trial. Claxton v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 174 (Tenn. Crim. App. Mar. 18, 2019).

In a case in which defendant was convicted of, inter alia, possession of more than 26 grams of cocaine with the intent to sell or deliver within a drug-free zone, even assuming that defendant was entitled to due process tolling, the trial court did not abuse its discretion in denying coram nobis relief because the trial court rejected defendant's claim that an individual's affidavit qualified as substantive admissible evidence which could have resulted in a different judgment had it been presented at trial as the individual's refusal to answer questions about the case under oath undercut the veracity and legitimacy of the information contained in the affidavit in which he admitted to owning the drugs. Shaw v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 244 (Tenn. Crim. App. Apr. 17, 2019).

Post-conviction court did not err in denying a writ of coram nobis after determining that a witness's recantation was not credible and there was no reasonable basis to conclude that the evidence might have affect the outcome of the trial. Williams v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 342 (Tenn. Crim. App. June 7, 2019).

Postconviction court did not err by denying petitioner's writ of error coram nobis because the expert testimony was not newly discovered evidence, as both the experts based their opinions on the victim's medical records that were introduced at trial and petitioner knew before his trial that bone fragility was a possible defense. Lowery v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 359 (Tenn. Crim. App. June 24, 2019).

Trial court did not abuse its discretion when it held that petitioner was not entitled to coram nobis relief on the basis of newly discovered evidence because a police officer's alleged misconduct did not exist at the time of petitioner's trial and thus, could not have been presented at trial. Turner v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 383 (Tenn. Crim. App. July 2, 2019).

Trial court properly denied defendant's petition for writ of error coram nobis because, while defendant was reasonably diligent in securing an affidavit and filing his petition for the writ within just a few months of a victim's conversation with a private investigator, the victim's recanted testimony was not likely to have changed the outcome of defendant's trial where the home invasion at issue took place over two decades ago and the majority of her hearing testimony was merely cumulative of her trial testimony. Hayes v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 439 (Tenn. Crim. App. July 19, 2019).

Denying coram nobis relief on the ground that juvenile witnesses had recanted their testimony was not error where the court credited the witnesses' trial testimony as truthful and found their coram nobis testimony not credible. Wilson v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 461 (Tenn. Crim. App. Aug. 1, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 577 (Tenn. Dec. 5, 2019).

Circuit court properly denied defendant's petition for a writ of error coram nobis without an evidentiary hearing because the petition was untimely and tolling of the statute of limitations was not required, inasmuch as the record conclusively showed that the prosecutor's marital status had no relevance as to whether defendant was guilty of the 1995 cases for which he was convicted, and an amended judgment was properly entered showing service of the 12-year sentence as a career offender where the original judgment reflected a sentence for burglary as a standard offender. State v. Gardner, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 511 (Tenn. Crim. App. Aug. 21, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 554 (Tenn. Dec. 5, 2019).

Error coram nobis court did not abuse its discretion by denying the petition because the videotaped interview of the eyewitness did not constitute newly discovered evidence that may have resulted in a different judgment had it been presented at trial, as both of petitioner's trial counsel were aware of the eyewitness from the beginning, that she was familiar with petitioner, and that she reported to the police that she could not identify the perpetrator. In addition, counsel's investigator interviewed her and counsel herself acknowledged that she probably spoke to her by telephone. Scott v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 404 (Tenn. Crim. App. June 11, 2020).

13. Ineffective Assistance.

Trial counsel could not be held constitutionally deficient for failing to raise issues relating to a detective in a petition for writ of error coram nobis under T.C.A. § 40-26-105(b), and in any event, because petitioner failed to offer proof of the allegations relating to the detective, petitioner could not establish prejudice resulting from trial counsel's failure to pursue coram nobis relief. Johnson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 87 (Tenn. Crim. App. Feb. 8, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 344 (Tenn. June 6, 2018).

Chapter 27
Executive Clemency

40-27-101. Power of governor.

The governor has power to grant reprieves, commutations and pardons in all criminal cases after conviction, except impeachment, subject to the regulations provided in this chapter.

Code 1858, § 5252; Shan., § 7227; Code 1932, § 11814; T.C.A. (orig. ed.), § 40-3501.

Cross-References. Board of paroles to advise as to pardons and commutations, § 40-28-126.

Executive pardoning power unabridged by parole laws, § 40-28-128.

Pardoning power of governor, Tenn. Const., art. III, § 6.

Textbooks. Tennessee Jurisprudence, 20 Tenn. Juris., Pardon and Parole, § 7.

Law Reviews.

Adjudicating Claims of Innocence for the Capitally Condemned in Tennessee: Embracing a Truth Forum (Dwight Aarons), 76 Tenn. L. Rev. 511 (2009).

Tennessee Civil Disabilities: A Systemic Approach (Neil P. Cohen), 41 Tenn. L. Rev. 253 (1974).

NOTES TO DECISIONS

1. Pardon Power.

2. —Commutation of Sentence.

The power to “grant reprieves and pardons” embraces the right to commute a sentence. Ricks v. State, 882 S.W.2d 387, 1994 Tenn. Crim. App. LEXIS 152 (Tenn. Crim. App. 1994).

Neither the legislative nor the judicial branch of government has the authority to regulate or control the governor's power to commute a sentence. Ricks v. State, 882 S.W.2d 387, 1994 Tenn. Crim. App. LEXIS 152 (Tenn. Crim. App. 1994).

The governor had the authority to grant a commuted sentence of 22 years to life and, because a life sentence does not expire until a defendant's death, the defendant was still serving the sentence when the commutation was revoked by the governor. Carroll v. Raney, 953 S.W.2d 657, 1997 Tenn. LEXIS 470, 88 A.L.R.5th 751 (Tenn. 1997).

The governor's power to grant reprieves, pardons and commutations is limited only by the language in the constitution; thus, while the power is also recognized by statute, no other branch of government has the authority to regulate or control the power. Carroll v. Raney, 953 S.W.2d 657, 1997 Tenn. LEXIS 470, 88 A.L.R.5th 751 (Tenn. 1997).

The governor has the authority to revoke a conditional commutation during the term of the original sentence, and not only during the term of the commuted sentence. LeMay v. State Dep't of Correction, 29 S.W.3d 483, 2000 Tenn. LEXIS 562 (Tenn. 2000).

3. —Attaches on Conviction.

Under the constitution and statutes, the governor can only pardon after a conviction. Smith v. State, 74 Tenn. 637, 1881 Tenn. LEXIS 188 (1881); Sharp v. State, 102 Tenn. 9, 49 S.W. 752, 1898 Tenn. LEXIS 2, 72 Am. St. Rep. 851, 43 L.R.A. 788 (1899).

A conviction is final in such sense that the governor's power to grant pardon attaches, where the clerk, without special direction of the court, enters formal judgment and sentence on the verdict of the jury, though defendant on the same day obtained an order releasing him on bond pending the filing of a motion for a new trial. Parker v. State, 103 Tenn. 547, 53 S.W. 1092, 1899 Tenn. LEXIS 135 (1899).

4. —Suspended Sentence.

The power to pardon covers indefinite suspension of sentence. Spencer v. State, 125 Tenn. 64, 140 S.W. 597, 1911 Tenn. LEXIS 7, 38 L.R.A. (n.s.) 680 (1911).

5. —Conditional Pardon.

The power to pardon includes a conditional pardon. State ex rel. Bedford v. McCorkle, 163 Tenn. 101, 40 S.W.2d 1015, 1930 Tenn. LEXIS 138 (1931).

6. —Effect on Costs.

The governor's pardon cannot release the defendant from the costs of the prosecution that accrued in favor of third persons, as incident to the conviction; although it in terms purports to do so. Smith v. State, 74 Tenn. 637, 1881 Tenn. LEXIS 188 (1881).

Governor's pardon of offense insofar as it related to fine and term of imprisonment unexpired did not release defendant from sentence to workhouse for payment of costs of prosecution. Spellings v. State, 99 Tenn. 201, 41 S.W. 444, 1897 Tenn. LEXIS 25 (1897).

7. —Contempt.

The governor's power to pardon includes convictions for contempt. Sharp v. State, 102 Tenn. 9, 49 S.W. 752, 1898 Tenn. LEXIS 2, 72 Am. St. Rep. 851, 43 L.R.A. 788 (1899).

8. —No Prior Recommendation.

The governor has constitutional power to commute sentences without any prior recommendation by the former board of pardons and paroles. Smith v. Thompson, 584 S.W.2d 253, 1979 Tenn. Crim. App. LEXIS 265 (Tenn. Crim. App. 1979).

9. Commutation.

10. —Effect.

The fee of the district attorney upon the conviction of an offender is not affected by the power of commutation exercised by the governor or the court or jury trying the case. State v. Hill, 43 Tenn. 98, 1866 Tenn. LEXIS 21 (1866).

A commutation does not alter, change or otherwise affect the adjudication of the prisoner's guilt or the judgment entered by the trial court predicated upon the prisoner's guilt of the crimes for which he was convicted. In addition, a commutation affirms the sentence imposed by the jury or the trial court, and simply modifies this sentence. Ricks v. State, 882 S.W.2d 387, 1994 Tenn. Crim. App. LEXIS 152 (Tenn. Crim. App. 1994).

11. No Implied Pardon.

Because a defendant's sentence commences “on the day on which the defendant legally comes into the custody of the sheriff for the execution of the judgment of imprisonment,” the words that defendant's sentence “be executed immediately” was surplusage, and the mere surrender of a prisoner convicted in state court to federal jurisdiction did not constitute an implied pardon of his state convictions. State v. Brady, 671 S.W.2d 863, 1984 Tenn. Crim. App. LEXIS 2310 (Tenn. Crim. App. 1984).

40-27-102. Conditions and restrictions — Warrants.

The governor may grant pardons upon such conditions and with such restrictions and limitations as the governor may deem proper, and may issue warrants to all proper officers to carry into effect a conditional pardon.

Code 1858, § 5261; Shan., § 7236; Code 1932, § 11842; Acts 1963, ch. 23, § 1; 1982, ch. 604, § 1; T.C.A. (orig. ed.), § 40-3502.

Textbooks. Tennessee Jurisprudence, 20 Tenn. Juris., Pardon and Parole, § 3.

Law Reviews.

Adjudicating Claims of Innocence for the Capitally Condemned in Tennessee: Embracing a Truth Forum (Dwight Aarons), 76 Tenn. L. Rev. 511 (2009).

NOTES TO DECISIONS

1. In General.

The constitutional power devolved on the governor to pardon is great, but he is under the constant observation of all of the people of the state; his term is brief, and any abuse of his powers can be quickly discovered and punished by the withdrawal of confidence and support. Spencer v. State, 125 Tenn. 64, 140 S.W. 597, 1911 Tenn. LEXIS 7, 38 L.R.A. (n.s.) 680 (1911).

The pardoning power of the governor is not derived from this law but from the constitution. State ex rel. Bedford v. McCorkle, 163 Tenn. 101, 40 S.W.2d 1015, 1930 Tenn. LEXIS 138 (1931).

2. Conditions of Pardon.

Refraining from the unlawful use or possession of intoxicating liquor is a valid condition of pardon by the governor. State ex rel. Bedford v. McCorkle, 163 Tenn. 101, 40 S.W.2d 1015, 1930 Tenn. LEXIS 138 (1931).

3. —Breach of Conditions.

Warrant of the governor for the arrest and recommitment of the relator for breach of the conditions of the pardon is authorized by this statute. State ex rel. Bedford v. McCorkle, 163 Tenn. 101, 40 S.W.2d 1015, 1930 Tenn. LEXIS 138 (1931).

4. Effect on Costs.

A convict is not released from costs of the prosecution by a pardon. State ex rel. Barnes v. Garrett, 135 Tenn. 617, 188 S.W. 58, 1915 Tenn. LEXIS 199, L.R.A. (n.s.) 1917B567 (1915).

Defendant, by accepting benefits of a pardon issued upon express condition that defendant pay all costs of the case, must be held to have assumed payment of the costs. Battistelli v. State, 141 Tenn. 565, 213 S.W. 417, 1919 Tenn. LEXIS 11 (1919).

5. Indefinite Suspensions.

The common-law practice of an indefinite suspension of judgment is not recognized in this state, this section covering the whole field of usefulness embraced by the common-law rule. Spencer v. State, 125 Tenn. 64, 140 S.W. 597, 1911 Tenn. LEXIS 7, 38 L.R.A. (n.s.) 680 (1911).

6. Commutation of Sentence.

Generally, the effect of a commutation of sentence is to terminate the term of imprisonment on the date that the commutation becomes effective, subject only to the conditions in the commutation. Where a prisoner violates the conditions of a conditional commutation, the commutation may be revoked. White v. State, 717 S.W.2d 309, 1986 Tenn. Crim. App. LEXIS 2377 (Tenn. Crim. App. 1986); Ricks v. State, 882 S.W.2d 387, 1994 Tenn. Crim. App. LEXIS 152 (Tenn. Crim. App. 1994).

Governor may grant a conditional commutation containing such conditions, restrictions and limitations as the governor deems proper. The conditions imposed may be either precedent or subsequent to the prisoner's release and the conditions must be reasonable as well as legal, moral, and possible for the prisoner to perform. Ricks v. State, 882 S.W.2d 387, 1994 Tenn. Crim. App. LEXIS 152 (Tenn. Crim. App. 1994).

Conditions of a commutation that the prisoner by supervised by the board of pardons and that the prisoner obey the laws of the United States, the state of Tennessee, and the ordinances of a municipality are reasonable. Ricks v. State, 882 S.W.2d 387, 1994 Tenn. Crim. App. LEXIS 152 (Tenn. Crim. App. 1994).

Where a prisoner violated conditions of a commuted sentence, and the governor revoked the commutation, reinstated the original sentence, and awarded the prisoner street time credit for the time spent on parole, the street time credit could not be used to determine whether the shorter commuted sentence had expired, but only applied in determining when the prisoner served the original sentence. Ricks v. State, 882 S.W.2d 387, 1994 Tenn. Crim. App. LEXIS 152 (Tenn. Crim. App. 1994).

7. Revocation.

Where conditions of commutation were violated, and the original term of imprisonment had not expired when commutation was revoked, the governor was well within his executive authority in ordering such revocation. White v. Livesay, 715 F. Supp. 202, 1989 U.S. Dist. LEXIS 7124 (M.D. Tenn. 1989).

40-27-103. Return of governor's warrant.

The governor's warrant should be returned by the officer after its execution, with the officer's endorsement of the action, to the secretary of state, to be filed by the secretary of state with the other papers.

Code 1858, § 5262; Shan., § 7237; Code 1932, § 11843; T.C.A. (orig. ed.), § 40-3503.

Law Reviews.

Adjudicating Claims of Innocence for the Capitally Condemned in Tennessee: Embracing a Truth Forum (Dwight Aarons), 76 Tenn. L. Rev. 511 (2009).

40-27-104. Remission of imprisonment.

The governor has the discretion to remit a portion of the imprisonment of a convict in the penitentiary upon the written recommendation of the board of parole.

Code 1858, § 5254; impl. am. Acts 1899, ch. 10, § 1; impl. am. Acts 1915, ch. 20, § 7; Shan., § 7229; impl. am. Acts 1919, ch. 39, § 2; impl. am. Acts 1923, ch. 7, § 42; Code 1932, § 11820; impl. am. Acts 1937, ch. 276, § 2; C. Supp. 1950, § 11820; impl. am. Acts 1961, ch. 93, § 1; impl. am. Acts 1972, ch. 576, § 17; impl. am. Acts 1972, ch. 636, § 1; T.C.A. (orig. ed.), § 40-3504; Acts 1998, ch. 1049, § 22.

Law Reviews.

Adjudicating Claims of Innocence for the Capitally Condemned in Tennessee: Embracing a Truth Forum (Dwight Aarons), 76 Tenn. L. Rev. 511 (2009).

NOTES TO DECISIONS

1. Commutation.

A commutation is effective immediately if it is clear from his actions the governor issuing the commutation intended it to be and never does or says anything inconsistent with that intention. Smith v. Thompson, 584 S.W.2d 253, 1979 Tenn. Crim. App. LEXIS 265 (Tenn. Crim. App. 1979).

40-27-105. Commutation of death penalty on application for pardon.

Upon application for a pardon by a person sentenced to capital punishment, if the governor is of opinion that the facts and circumstances adduced are not sufficient to warrant a total pardon, the governor may commute the punishment of death to imprisonment for life in the penitentiary.

Code 1858, §§ 180, 5258 (deriv. Acts 1841-1842, ch. 55); Shan., §§ 232, 7233; Code 1932, §§ 174, 11839; T.C.A. (orig. ed.), § 40-3505.

Textbooks. Tennessee Jurisprudence, 20 Tenn. Juris., Pardon and Parole, § 2.

Law Reviews.

Adjudicating Claims of Innocence for the Capitally Condemned in Tennessee: Embracing a Truth Forum (Dwight Aarons), 76 Tenn. L. Rev. 511 (2009).

NOTES TO DECISIONS

1. Crimes Covered.

The statute had application to crimes that were capital before its enactment. State v. Becton, 66 Tenn. 138, 1874 Tenn. LEXIS 94 (1874).

2. Effect on Fees.

Fee of district attorney is contingent on conviction, not on infliction of punishment, and is allowable when there is a commutation. State v. Hill, 43 Tenn. 98, 1866 Tenn. LEXIS 21 (1866).

40-27-106. Commutation on certificate of supreme court.

The governor may, likewise, commute the punishment from death to imprisonment for life, upon the certificate of the supreme court, entered on the minutes of the court, that in its opinion, there were extenuating circumstances attending the case, and that the punishment ought to be commuted.

Code 1858, § 5259; Shan., § 7234; Code 1932, § 11840; T.C.A. (orig. ed.), § 40-3506.

Rule Reference. This section is referred to in Rule 12 of the Rules of the Supreme Court of Tennessee.

Law Reviews.

Adjudicating Claims of Innocence for the Capitally Condemned in Tennessee: Embracing a Truth Forum (Dwight Aarons), 76 Tenn. L. Rev. 511 (2009).

Survey of Tennessee Constitutional Law in 1976-77, VII. Reprieves, Pardons, and Commutations (Kenneth L. Penegar), 46 Tenn. L. Rev. 153.

NOTES TO DECISIONS

1. Review.

Petitioner could not complain where the punishment, as reduced by the governor's action, was constitutionally permissible and was lawfully imposed. Bowen v. State, 488 S.W.2d 373, 1972 Tenn. LEXIS 319 (Tenn. 1972).

The Tennessee Supreme Court will issue certificates of commutation only when the extenuating circumstances attending the case are based upon the facts in the record or a combination of record facts and new evidence that is uncontroverted. Coe v. State, 17 S.W.3d 249, 2000 Tenn. LEXIS 149 (Tenn. 2000).

2. When Relief Authorized.

Certificates of commutation are issued pursuant to this section only when the extenuating circumstances attending the case are based upon the facts in the record or a combination of record facts and new evidence that is uncontroverted. Workman v. State, 22 S.W.3d 807, 2000 Tenn. LEXIS 655 (Tenn. 2000).

T.C.A. § 40-27-106 does not authorize relief when a death-sentenced prisoner, in what amounts to an original action, relies upon extra-judicial facts and challenges the accuracy of the jury's verdict and the credibility of the evidence upon which the conviction was based. Workman v. State, 22 S.W.3d 807, 2000 Tenn. LEXIS 655 (Tenn. 2000).

40-27-107. Record of reasons for clemency.

The governor shall cause to be entered, in a book kept for that purpose, any reasons for granting pardons or commuting punishment, and preserve on file all documents on which the governor acted, and submit the same to the general assembly when requested.

Code 1858, § 5253; Shan., § 7228; Code 1932, § 11819; T.C.A. (orig. ed.), § 40-3507.

Law Reviews.

Adjudicating Claims of Innocence for the Capitally Condemned in Tennessee: Embracing a Truth Forum (Dwight Aarons), 76 Tenn. L. Rev. 511 (2009).

40-27-108. Restoration of citizenship on pardon of manslaughter.

Any person convicted of the offense of manslaughter and pardoned by the governor is thereby restored to all the rights of citizenship to which the person was entitled previous to conviction.

Code 1858, § 5260 (deriv. Acts 1843-1844, ch. 13); Shan., § 7235; Code 1932, § 11841; T.C.A. (orig. ed.), § 40-3508.

Cross-References. Restoration of citizenship generally, title 40, ch. 29.

Law Reviews.

Adjudicating Claims of Innocence for the Capitally Condemned in Tennessee: Embracing a Truth Forum (Dwight Aarons), 76 Tenn. L. Rev. 511 (2009).

Tennessee Civil Disabilities: A Systemic Approach (Neil P. Cohen), 41 Tenn. L. Rev. 253 (1974).

40-27-109. Exoneration.

After consideration of the facts, circumstances and any newly discovered evidence in a particular case, the governor may grant exoneration to any person whom the governor finds did not commit the crime for which the person was convicted. No person may apply for nor may the governor grant exoneration until the person has exhausted all possible state judicial remedies.
Exoneration granted pursuant to subsection (a) shall as a matter of law be unconditional, shall without application having to be made therefor expunge all records of the person's arrest, indictment and conviction, and shall automatically restore all rights of citizenship to the person.
1. The governor has the authority to review and reconsider any pardon the governor has previously granted for the purpose of determining whether the recipient of the pardon qualifies for and merits the granting of exoneration in lieu of a pardon. If the governor so determines, the governor shall have the authority to convert any pardon previously granted into exoneration as defined by this section.
2. Nothing in this section shall be construed as preventing the governor from granting exoneration to a person who applied for a pardon if the person qualifies under subsection (a) and if the governor determines the person merits exoneration.

Acts 1982, ch. 604, § 2; T.C.A., § 40-3509.

Cross-References. Judgment of infamy, right of suffrage, competency as witness, § 40-20-112.

Restoration of citizenship generally, title 40, ch. 29.

Restoration of suffrage to persons convicted of infamous crimes, § 2-2-139.

Suffrage for persons convicted of infamous crimes, § 2-19-143.

Law Reviews.

Adjudicating Claims of Innocence for the Capitally Condemned in Tennessee: Embracing a Truth Forum (Dwight Aarons), 76 Tenn. L. Rev. 511 (2009).

40-27-110. Victims of Crime Executive Clemency Notification Act.

This section shall be known and may be cited as the “Victims of Crime Executive Clemency Notification Act.”
Prior to any reprieve, commutation, pardon, exoneration, or any other form of executive clemency being made public, the governor shall notify or cause to be notified the attorney general and reporter and the district attorney general of the judicial district in which the conviction occurred of the impending clemency action.
1. Prior to notice of the clemency action being made public, the district attorney general, through the victim-witness coordinator, shall notify the victim or victims of the offense for which the person is receiving clemency, or the victim's representative, of the impending grant of clemency.
2. If notice is required by this section, the district attorney general, through the victim-witness coordinator, shall contact the victim or victim's representative by telephone, electronic mail, facsimile or by other means intended to ensure that the victim receives immediate notification; provided, that the victim or victim's representative has provided the district attorney general's office with contact information necessary to accomplish such immediate notification.

Acts 2011, ch. 439, § 1.

Attorney General Opinions. Constitutionality of proposed “Victims of Crime Executive Clemency Notification Act”. OAG 11-31, 2011 Tenn. AG LEXIS 33 (4/11/11).

Chapter 28
Probation, Paroles and Pardons

Part 1
General Provisions

40-28-101. Purpose — Application to clemency powers.

The purpose of this chapter is to provide a system of probation and paroles to be liberally construed to the end that the treatment of persons convicted of crime shall take into consideration their individual characteristics, circumstances, needs and potentialities as revealed by a case study and that such persons shall be dealt with in the community by a uniformly organized system of constructive rehabilitation under probation supervision instead of in correctional institutions or under parole supervision when a period of institutional treatment has been deemed essential whenever it appears desirable in the light of the needs of public safety and their own welfare.
Nothing in §§ 40-28-101 — 40-28-104 shall be construed in any way as intended to modify or abridge the clemency powers of the governor, as defined in §§ 40-27-101 — 40-27-108.

Acts 1937, ch. 276, §§ 1, 2; 1949, ch. 18, §§ 1-3; mod. C. Supp. 1950, §§ 11818.1, 11818.2 (Williams, §§ 11843.1, 11843.2); Acts 1961, ch. 93, § 1; 1963, ch. 288, § 1; 1970, ch. 488, § 1; 1972, ch. 636, §§ 1-8; 1976, ch. 806, § 1(82); 1978, ch. 929, § 6; 1979, ch. 359, §§ 2-5, 7; impl. am. Acts 1979, ch. 359, §§ 5, 26; Acts 1980, ch. 584, § 1; T.C.A. (orig. ed.), §§ 40-3601(1), (5).

Cross-References. Executive clemency, title 40, ch. 27.

Restoration of citizenship, title 40, ch. 29.

Roster of inmate release privileges, title 41, ch. 21, part 7.

Textbooks. Tennessee Jurisprudence, 20 Tenn. Juris., Pardon and Parole, § 7.

Attorney General Opinions. Retroactive custodial parole hearing authorized for first of consecutive sentences, OAG 98-089 (4/15/98).

NOTES TO DECISIONS

1. Act Exclusive.

This chapter covers the whole subject of pardons, paroles and probation and repeals by implication all previous laws in conflict. State ex rel. Neilson v. Harwood, 183 Tenn. 567, 194 S.W.2d 448, 1946 Tenn. LEXIS 239 (1946).

40-28-102. Chapter definitions.

As used in this chapter, unless the context otherwise requires:

“Board” means the board of parole;
“Commissioner” means the commissioner of correction;
“Department” means the department of correction;
“Executive director” means the officer employed by the board as the chief administrative officer of the agency;
“Notification,” as used in this part, may include telephone, facsimile and internet communications;
“Parole” means the release of a prisoner to the community by the board prior to the expiration of the prisoner's term subject to conditions imposed by the board and to supervision by the department, or when a court or other authority has issued a warrant against the prisoner and the board, in its discretion, has released the prisoner to answer the warrant of the court or authority; and
“Probation and parole officer” means a probation and parole officer employed by the department.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended this section, shall be fully accomplished on or before January 1, 2013.

NOTES TO DECISIONS

1. Warrantless Search of Probationer.

Warrantless search of defendant's residence, made pursuant to a written condition of her parole, was reasonable under the U.S. Const. amend. IV and Tenn. Const. art. I, § 7, even if made without any reasonable, individualized, or particularized suspicion; under the totality of the circumstances, the police officer's decision to search defendant's residence was not unreasonable. There was no proof that the officer acted for any reason other than the furtherance of legitimate law enforcement concerns as defendant had been convicted of drug offenses in two states and the officer had information from an informant that she was involved in selling crack cocaine; he verified defendant's parole status and the warrantless search condition before he searched her residence and neither the search of defendant's vehicle nor that of her residence was unreasonably lengthy—that the total time of defendant's detention might have been at most two hours and included a short trip by defendant in her own vehicle did not so prolong the detention as to make the search unreasonable. State v. Turner, 297 S.W.3d 155, 2009 Tenn. LEXIS 678 (Tenn. Oct. 15, 2009).

40-28-103. Board of parole.

There is created a full-time, autonomous board of parole that is composed of seven (7) members who shall be appointed by the governor, and that shall be autonomous in structure and shall have the authority to perform all administrative functions necessary to carry out its duties, including the submission of a budget request to the commissioner of finance and administration and the submission of personnel actions to the commissioner of human resources. In all respects the board shall be separate functionally and administratively from any other agency. In performing the administrative and financial functions necessary to its operations, the board and its employees shall be subject to the budgetary, accounting, personnel, purchasing and audit requirements, as well as other administrative requirements, applicable to all state departments and agencies pursuant to title 4, chapters 3 and 4.
In the initial appointments made under this section, the speaker of the senate and the speaker of the house of representatives shall jointly appoint one (1) member to a term expiring on January 1, 1986. The governor shall appoint two (2) members to terms expiring on January 1, 1984, and two (2) members to terms expiring on January 1, 1982. On June 2, 1989, the governor shall appoint two (2) additional members to terms expiring on January 1, 1992. Thereafter, all members shall serve six-year terms and shall be eligible for reappointment. Beginning on April 7, 2017, all appointments and reappointments shall be made by the governor.
In considering persons for appointment, the appointing authority shall give preference to candidates with training, education or experience in the criminal justice system, law, corrections, medicine, education, social work or the behavioral sciences. Beginning with the gubernatorial appointments that are made to the board of parole for terms beginning in January 2018 or when a vacancy on the board occurs, every six (6) years the governor shall strive to appoint at least one (1) individual to the board who possesses expertise in corrections, probation, or parole by virtue of training or employment. No member of the board shall hold any other salaried public office, whether elective or appointive, nor shall any member engage for pay in any other business or profession.
Vacancies occurring in an office of a member of the board before the expiration of a term by reason of death, resignation, removal or any other reason shall be filled by the governor in the same manner as a regular appointment for the remainder of the unexpired term.
The governor shall appoint one (1) member of the board to serve as its chair for a term of two (2) years, beginning July 1 of the appropriate year. The chair shall direct the operation of the board and shall fulfill the functions established by statute, unless duties and responsibilities are otherwise assigned under this chapter. The board may designate one (1) of its members to act as chair during the absence or incapacity of the chair, and when so acting, the member so designated shall have and perform all the powers and duties of the chair of the board.

Compiler's Notes. The board of parole, created by this section, terminates June 30, 2022. See §§ 4-29-112, 4-29-243.

Acts 2013, ch. 86, § 3 provided that the division of state audit shall return to the board of parole and to the department of correction in 2014 for the purpose of conducting a limited audit to review actions taken to address the issues raised in the findings of the September, 2012, board of probation and parole performance audit report. The division of state audit shall complete the limited audit within a period sufficient to allow for its review by the government operations joint subcommittee on judiciary and government no later than December 1, 2014.

Acts 2015, ch. 16, § 3 provided that the Board of Parole shall appear before the Government Operations Joint Evaluation Committee on Judiciary and Government no later than October 1, 2015, to update the Committee on the Board’s progress in addressing the findings set forth in the March 2014 follow-up performance audit report.

NOTES TO DECISIONS

1. Qualifications.

Members of the Tennessee Board of Probation and Parole were qualified because they all had leadership and decision-making experience in either a political, administrative, or community based organization; the words “give preference” indicate that the qualifications listed in the statute only need to be taken into consideration when reviewing possible candidates, and it is not required that a candidate possess such qualities in order to be appointed to the Board. Wells v. Tenn. Bd. of Prob. & Parole, — S.W.3d —, 2014 Tenn. App. LEXIS 633 (Tenn. Ct. App. Oct. 6, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 248 (Tenn. Mar. 16, 2015), cert. denied, 193 L. Ed. 2d 95, 136 S. Ct. 121, — U.S. —, 2015 U.S. LEXIS 5700 (U.S. 2015).

40-28-104. Powers and duties of board — Executive director.

The board is hereby vested and charged with those powers and duties necessary and proper to enable it to fully and effectively carry out this chapter, including, but not limited to:
1. The authority to select and recommend to the appropriate state officials the employment or transfer of all personnel required for the operation of the board, except, however, the initial transfer of any preferred service employee pursuant to the merger of probation and parole field services and community corrections pursuant to this chapter shall not result in any impairment, interruption or diminution of employee rights, salary, benefits, leave accumulation or employment. The commissioner of human resources is authorized to determine if there has been any impairment of rights, salary, benefits, leave accumulation or employment as a result of the initial transfer. Any preferred service employee may seek redress of any such determination through a request for declaratory order by the commissioner of human resources pursuant to § 4-5-223;
2. The authority to promulgate reasonable substantive and procedural rules in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5;
3. The authority to develop and implement guidelines for granting or denying parole, which guidelines shall be reviewed and reevaluated by the board at least annually and copies of the guidelines shall be provided to the governor, the commissioner of correction and the appropriate standing committees of the general assembly;
4. The authority to prescribe all forms to be used by the board in the transaction of its business;
5. The authority to adopt an official seal by which its acts and proceedings shall be authenticated, and of which a court or other officials concerned with actions of the board shall take judicial notice. The certificate of the chair of the board, under seal and attested to by the executive director, shall be accepted in any judicial or administrative proceeding as adequate and sufficient proof of the acts and proceedings of the board so described therein;
6. The authority to employ other employees and to incur such other expenses, within the limits of appropriations, as may be necessary for the proper discharge of its duties;
7. The authority to issue subpoenas subject to this chapter;
8. The duty to cooperate with other state agencies in developing and promoting effective parole programs;
9. The duty to keep appropriate records of all its official actions and to make them accessible in accordance with law and the regulations of the board;
10. The duty, upon the request of the governor, to consider and to make nonbinding recommendations concerning all requests for exonerations, pardons, reprieves or commutations. The board shall have discretion to make either favorable or unfavorable recommendations based upon its application of guidelines and criteria adopted by the governor;
11. The duty to adopt written long-range goals and objectives. The goals and objectives shall be reaffirmed or changed, as appropriate, by the board at least once each year;
12. The duty to adopt written policies and procedures to govern its internal operations, taking into consideration the policies and procedures as are reflected in the management standards of the Manual of Standards for Adult Parole Authorities , published by the Commission on Accreditation for Corrections and the American Correctional Association or other authorities that it may wish to consult, it being the legislative intent that the board have authority to freely adopt policies and procedures to meet its own particular needs. Prior to final board adoption of the policies and procedures and prior to change, a draft shall be submitted to the attorney general and reporter for review and comment; and
13. The authority to employ staff attorneys who are licensed to practice law in the state and to employ others as the board may deem necessary.
As soon as convenient after their appointment, the members of the board shall meet and organize. They shall appoint an executive director who shall be chief administrative officer of the board whose duties shall include:
1. Supervising the scheduling of appropriate hearings at each correctional institution or facility as may be required;
2. Arranging for the maintenance of parole eligibility lists for the board;
3. Assisting the board in the formulation, development and implementation of procedures and policies;
4. Assisting in the preparation of the necessary forms and maintaining the records required for decisions of the board;
5. Conducting conferences and managing correspondence with interested persons who wish to be heard concerning the parole or revocation of parole of any committed person eligible for consideration;
6. Supervising all employees of the board; and
7. Developing and maintaining communication and cooperation between the board and other state agencies.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended subsection (a), shall be fully accomplished on or before January 1, 2013.

Acts 2012, ch. 800, § 1 provided that the act, which amended subdivision (a)(1), shall be known and cited as the “Tennessee Excellence, Accountability, and Management (T.E.A.M.) Act of 2012.”

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 23.10.

40-28-105. Permanent office of board — Meetings — Compensation — Removal of members.

The permanent office of the board shall be at Nashville.
The board shall prescribe the times and places of its meetings and shall schedule hearings at each correctional institution or facility at times as may be necessary to discharge its duties. All votes taken by the board shall be by public ballot or public roll call. No secret ballots or secret roll calls shall be permitted.
The salaries of the members of the board shall be established by the governor at not more than eighty-five percent (85%) and not less than sixty percent (60%) of those established for Class 2 state officials under § 8-23-101; provided, that a member's salary shall not be diminished during the term to which appointed. The salaries of the members of the board shall be equal except that of the chair, whose salary shall be set by the governor at a level commensurate with the increased duties and responsibilities. The salaries of employees of the board shall be set by the board. The requirements of § 40-28-103(a) regarding personnel procedures shall apply to all actions under this subsection (c).
1. A majority of members of the board shall constitute a quorum for official administrative business.
2. The chair of the board may designate individual members of the board of parole and appoint hearing officers who shall be authorized to conduct hearings, take testimony and make proposed findings of fact and recommendations to the board regarding a grant, denial, revocation or rescission of parole. The findings and recommendations shall be reduced to writing and reviewed by board members who shall adopt, modify or reject the recommendations.
3. The grant of parole shall require the concurrence of three (3) board members except as set out in subdivision (d)(4).
4. The grant of parole involving the following offenses shall require the concurrence of four (4) board members:
  1. First degree murder;
  2. Aggravated arson;
  3. Aggravated child abuse and neglect (child six (6) years of age or less);
  4. Aggravated rape;
  5. Aggravated vehicular homicide;
  6. Attempted first degree murder;
  7. Conspiracy to commit first degree murder;
  8. Especially aggravated kidnapping;
  9. Especially aggravated robbery;
  10. Rape of a child;
  11. Second degree murder;
  12. Adulteration of foods, liquids, or pharmaceuticals (serious bodily injury or death);
  13. Aggravated child abuse or neglect (child six (6) years of age or above);
  14. Aggravated kidnapping;
  15. Aggravated sexual battery;
  16. Aggravated sexual exploitation of a minor (obscene);
  17. Especially aggravated burglary;
  18. Especially aggravated sexual exploitation of a minor;
  19. Rape;
  20. Solicitation to commit first degree murder;
  21. Vehicular homicide by intoxication;
  22. Aggravated assault;
  23. Spousal rape;
  24. Vehicular homicide;
  25. Voluntary manslaughter;
  26. Vehicular assault; and
  27. Any other offense for which punishment is life imprisonment.
5. Subdivision (d)(4) shall also apply to persons convicted of offenses repealed November 1, 1989, which would have constituted a conviction for one (1) of the enumerated offenses in subdivision (d)(4) had it been committed after November 1, 1989.
6. The denial of parole shall require the concurrence of three (3) board members, except the denial of parole involving the offenses as set out in subdivision (d)(4), shall require the concurrence of four (4) board members.
7. The recision of a parole grant shall require the concurrence of two (2) board members.
8. The revocation of a parole grant shall require the concurrence of two (2) board members.
9. No board action shall be invalid because it is based upon the recommendation of a hearing officer.
10. The administrative continuance of a case will not require board approval.
11. Inmates whose parole has been revoked or rescinded, or who have been denied parole, or whose grant of parole has been rescinded, may request an appellate review by the board. The board shall establish a reasonable time limit for filing of the request. If the time limit is not met, the request for an appellate review will be denied. An appellate request will be screened by a board member or designee and a review will be conducted if there is new evidence or information that was not available at the time of the hearing, or if there are allegations of misconduct by the hearing official that are substantiated by the record or if there were significant procedural errors by a hearing official. The appellate review will be conducted from the record of the first hearing and the appearance of the inmate will not be necessary. If a board member decides that an appearance hearing is necessary, it will be scheduled before a board member or hearing officer who did not conduct the hearing that is the subject of the appeal. A summary of the appellate hearing will be prepared and the board will vote after a review of the summary and the record of the first hearing. The decision after an appellate review will require the concurrence of three (3) board members. The decision rendered after an appellate review will be final.
When appropriate, the members of the board and the board's employees shall be reimbursed for their reasonable and necessary travel expenses in accordance with the state comprehensive travel regulations.
The governor or the attorney general and reporter may seek the removal of a member of the board for knowing or willful misconduct in office or for knowing or willful neglect or failure to perform any duty enjoined upon a member of the board by any of the laws of this state or for the conviction of any crime which constitutes a felony under the laws of the state. This removal shall be accomplished through the removal procedure provided in title 8, chapter 47.

Acts 1937, ch. 276, § 2; C. Supp. 1950, § 11818.2 (Williams, § 11843.2); Acts 1978, ch. 929, § 2; 1979, ch. 56, § 1; 1979, ch. 359, § 6; 1981, ch. 80, § 3; T.C.A. (orig. ed.), § 40-3602; Acts 1983, ch. 325, § 7; 1988, ch. 880, § 3; 1989, ch. 227, §§ 7, 8; 1989, ch. 506, § 3; 1997, ch. 488, § 1; 1999, ch. 456, §§ 1, 2.

Compiler's Notes. Acts 1999, ch. 456, § 3, provided that any costs associated with implementing the provisions of subsections (d)-(f) shall be paid for with funds that have been appropriated to the board.

Cross-References. Misconduct involving public officials and employees, title 39, ch. 16, part 4.

Removal of officers, title 8, chapter 47.

NOTES TO DECISIONS

1. Evidence Considered.

Provision of Acts 1913, ch. 8, § 3, prohibiting board from considering arguments or petitions of outside persons was repealed by implication by Acts 1937, ch. 276, § 2, granting unlimited power to board to make its own rules and by Acts 1937, ch. 276, § 3, authorizing board to compel attendance of witnesses together with all necessary documents. State ex rel. Neilson v. Harwood, 183 Tenn. 567, 194 S.W.2d 448, 1946 Tenn. LEXIS 239 (1946).

2. Procedure.

Procedure of the former board of paroles in separately and independently reviewing cases and formulating parole decisions relying on the record compiled by the hearing officer does not violate the Open Meetings Act. Arnold v. Tennessee Bd. of Paroles, 956 S.W.2d 478, 1997 Tenn. LEXIS 533 (Tenn. 1997).

The requirements of T.C.A. § 40-28-502 applicable to parole hearings does not apply to the procedure of the former board of paroles in making parole decisions. Arnold v. Tennessee Bd. of Paroles, 956 S.W.2d 478, 1997 Tenn. LEXIS 533 (Tenn. 1997).

The concurrence of four members of the Board of Probation and Parole was not required to deny an inmate parole because the inmate's conviction for the repealed offense of robbery armed with a deadly weapon was not necessarily a conviction for especially aggravated robbery. Morris v. Tenn. Bd. of Prob. & Parole, — S.W.3d —, 2019 Tenn. App. LEXIS 347 (Tenn. Ct. App. July 15, 2019).

3. Ex Post Facto.

The 1997 amendment to T.C.A. § 40-28-105 was merely a procedural change which did not implicate the prohibitions against ex post facto laws. Application of the new statute to deny parole to an inmate serving a life sentence for a murder committed in 1977 did not violate ex post facto concerns. Miller v. Tenn. Bd. of Prob. & Paroles, 119 S.W.3d 696, 2003 Tenn. App. LEXIS 335 (Tenn. Ct. App. 2003).

4. Time Limitations.

Inmate's petition for a writ of certiorari after being denied parole should have been dismissed because (1) the relevant regulation said the Board of Probation and Parole had to receive the appeal within 45 days of the denial, (2) no prison mailbox rule extended that time, and (3) the appeal was not timely received. Morris v. Tenn. Bd. of Prob. & Parole, — S.W.3d —, 2019 Tenn. App. LEXIS 347 (Tenn. Ct. App. July 15, 2019).

40-28-106. Hearings and investigations — Appointment of counsel for indigents — Reports on prisoners under consideration for pardon or commutation of sentence — Assessment of inmates and parolees — Records and files.

1. The board, or any member of the board, or any hearing officer may administer oaths and take the testimony of persons under oath.
2. For the purpose of any investigation made by the board or any member of the board in the performance of board duties, the board has the power to issue subpoenas to compel the attendance of witnesses and the production of books, papers and other documents pertaining to the subject of its inquiry.
3. The board is authorized to pay a witness a fee for expenses in attending a hearing pursuant to a subpoena as set forth in title 24, chapter 4; provided, that no fee shall be paid to any incarcerated prisoner where transportation is provided by the sheriff. Section 40-25-106 shall apply to the terms of this subsection (a). The chair or presiding member shall certify the amount of the fees to the fiscal officer of the board and the fiscal officer shall authorize the payments.
4. If a person refuses to obey a subpoena, the board may petition any circuit or criminal court to request the person to attend, testify and produce evidence. The court may issue an order requiring the person to appear before the board when the court finds that the testimony or other evidence that the person may be able to produce is directly related to a matter with respect to which the board is empowered to make a determination. Failure to obey the order is punishable by the court as contempt or by a penalty of two hundred fifty dollars ($250).
1. In any revocation hearing conducted by the board, or in cases of preliminary hearings, the board is authorized to appoint legal counsel for an indigent individual where necessary in obedience to the requirements of the United States supreme court. For this purpose, the Tennessee supreme court shall prescribe by rule the nature of costs for which reimbursement may be allowed, and the limitations on and conditions for the reimbursement of costs as it deems appropriate in the public interest, subject to this subsection (b). The rules shall also specify the form and content of applications for reimbursement of costs to be filed in accordance with this subsection (b).
2. The administrative director of the courts shall administer this subsection (b) and rules promulgated under subdivision (b)(1), and shall audit and review all applications for reimbursement of costs. Upon finding payment to be in order, the administrative director of the courts shall process the payment thereof out of money appropriated for that purpose.
3. Costs incurred by the state in providing legal counsel shall be minimized insofar as is possible and practicable by the appointment by the board of counsel from any legal services group functioning in the county in which the proceedings are held if the group is supported in whole or in part from federal, state, county or municipal moneys.
The board shall also have the powers and perform the duties when requested by the governor of collecting the records, making investigations, and reporting to the governor the facts, circumstances, criminal records, and the social, physical, mental and psychiatric conditions and histories of prisoners under consideration by the governor for pardon or commutation of sentence.
1. The board shall identify the types of information necessary to enable the board to properly assess inmates being considered for action by the board and the performance of former inmates under parole supervision, and all other appropriate state and local officials and agencies, including the courts, shall provide assistance as requested.
2. The board shall, with assistance of the divisions cited in subdivision (d)(1), oversee the development of written procedures and controls to assure the early identification of offenders who become eligible for parole consideration, including those serving sentences in local detention facilities, through such means as the offender-based state correctional information system.
1. In order to assure access to complete and adequate records on all inmates under consideration by the board, the board shall assist the department of correction and any other cooperating officials or agencies of the criminal justice system in identifying records needs of each agency in the criminal justice system and in the development of procedures to assure that the records are secured and maintained by the appropriate agencies, including official documentary statements of the circumstances surrounding the commission of a crime, prior criminal history, social history, community background assessments, psychological and health assessments, and other information useful in the evaluation and classification of inmates.
2. The board shall develop a comprehensive parole summary report form for completion by institutional staff or others mutually agreed by the board and the commissioner who shall assure that the reports required are completed prior to parole hearings.
Notwithstanding other law to the contrary and unless prohibited by federal law in a specific instance, the board shall be granted access to any record or information, public or otherwise, that it deems necessary to carry out its duties, and all officials and agencies, including the commissioners of correction, safety, mental health and substance abuse services and intellectual and developmental disabilities, the director of the Tennessee bureau of investigation, wardens of institutions, courts and other state and local government officials and employees, shall accordingly respond to requests from the board under authority of this section and § 40-28-127. Access shall include, but not be limited to, information, records or reports developed under §§ 4-3-604, 4-6-140, and 4-6-141; §§ 39-12-101, 39-12-103, 39-13-304, 39-16-402, 39-16-403, 39-16-602, 39-16-603, 39-16-606, 39-16-607, 39-17-302, 39-17-303, 40-28-111 [repealed], 40-28-114, 40-28-119, 40-28-120 [repealed] and 40-28-121; §§ 41-1-111, 41-21-107, 41-21-222, 41-21-223 and 41-21-226; and title 41, chapter 21, parts 4 and 7.

Acts 1937, ch. 276, § 3; mod. C. Supp. 1950, § 11818.3 (Williams, § 11843.3); Acts 1961, ch. 93, § 2; impl. am. Acts 1972, ch. 636, §§ 1-8; Acts 1978, ch. 929, § 3; 1979, ch. 359, § 8; 1979, ch. 399, § 7; T.C.A. (orig. ed.), § 40-3603; Acts 1989, ch. 227, §§ 9-14; 1993, ch. 66, § 69; 1996, ch. 675, § 35; 1998, ch. 1049, §§ 24, 29, 66; 2001, ch. 355, § 2; 2010, ch. 1100, § 67; 2012, ch. 575, § 2; 2012, ch. 727, § 15.

Compiler's Notes. This section may be affected by Tenn. R. Crim. P. 17(g).

This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

Acts 2010, ch. 1100, § 153 provided that the commissioner of mental health and developmental disabilities, the commissioner of mental health, the commissioner of intellectual and developmental disabilities, and the commissioner of finance and administration are authorized to promulgate rules and regulations to effectuate the purposes of the act. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended subsection (e), shall be fully accomplished on or before January 1, 2013.

Sections 40-28-111 and 40-28-120, referred to in subsection (f), were repealed by Acts 2012, ch. 727.

Cross-References. Counsel for indigents, title 40, ch. 14, part 2.

Right to appointed counsel, § 40-14-103.

Transportation of prisoner by sheriff, § 8-26-108.

Witnesses living near court, § 40-25-106.

NOTES TO DECISIONS

1. Failure to Pay Fine or Restitution.

In probation revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternative measures of punishment other than imprisonment. Only if alternative measures are not adequate to meet the state's interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. State v. Dye, 715 S.W.2d 36, 1986 Tenn. LEXIS 841 (Tenn. 1986).

40-28-107. Reports of the board — Notification of release on parole to kidnapping hostages and victims.

The board shall make reports concerning the records, organization and work of the board as may from time to time be requested by the governor.
The board shall forward to the appropriate standing committees of the general assembly, designated by the speaker of the senate and the speaker of the house of representatives, the names of all persons released on parole, as well as all persons receiving both favorable and unfavorable recommendations for executive clemency of any sort, together with the reasons for the recommendations. This information shall be furnished to the designated standing committees as soon as practicable after the board's action. This information shall also be furnished to the appropriate district attorney general in whose district any such person was convicted.
Before a prisoner is released on parole, the board shall notify the following officials in the county in whose district the prisoner was convicted as well as the following officials in whose district the prisoner is to be released, if different:
1. The judge who sentenced the prisoner;
2. The district attorney general;
3. The sheriff; and
4. The chief of police.
At least three (3) days prior to the release on parole of a defendant convicted of any kidnapping offense involving a hostage or victim, the board shall notify the sheriff of the county in which the crime was committed and the sheriff shall make all reasonable and diligent efforts to notify the hostage or victim of the offense that the defendant will be released on parole. If the hostage or victim is less than eighteen (18) years of age or is otherwise unavailable, the sheriff shall make all reasonable and diligent efforts to so notify the family, if any, of the hostage or victim.
The board shall provide notification to those officials listed in subsection (c) in the event of an inmate's release due to exoneration, commutation of sentence, or the granting of a pardon by the governor.

Acts 1937, ch. 276, § 2; C. Supp. 1950, § 11818.2 (Williams, § 11843.2); Acts 1961, ch. 93, § 3; 1979, ch. 359, § 10; 1981, ch. 60, § 1; T.C.A. (orig. ed.), § 40-3604; Acts 1986, ch. 543, § 1; 1987, ch. 169, § 1; 1988, ch. 648, § 4; 1989, ch. 227, §§ 15-20; 1993, ch. 336, § 6; 1999, ch. 392, § 4; 1999, ch. 516, § 2; 2012, ch. 727, § 16.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended subsection (e), shall be fully accomplished on or before January 1, 2013.

Cross-References. Notice to officials of convict's release, § 41-21-224.

Notification to kidnapping hostages or victims, of convict's release on parole or probation, § 40-28-107.

Open parole hearings, title 40, ch. 28, part 5.

Parole, § 40-28-505.

40-28-108 — 40-28-112. [Reserved.]

This part shall apply to every person sentenced to a state or county correctional facility and to those who may now be serving a sentence in a state or county correctional facility.

Acts 1937, ch. 276, § 17; mod. C. Supp. 1950, § 11818.17 (Williams, § 11843.17); Acts 1979, ch. 318, § 24; T.C.A. (orig. ed.), § 40-3610; Acts 1989, ch. 227, § 27.

Cross-References. Correctional institutions and inmates generally, title 41.

40-28-114. Records of prisoners.

As each prisoner sentenced is received at a classification center within the department of correction, it will further be the duty of the probation and parole officer of the district from which the prisoner was sent to cause to be obtained and forwarded to the board a summary from the trial judge and the district attorney general containing:

The facts as they developed at the trial;
The nature of the prisoner's conviction;
The court in which the prisoner was sentenced;
The name of the trial judge; and
Copies of other probation reports as may have been made in order for the board to have the benefit of the reports when the prisoner becomes eligible for parole consideration or applies for executive clemency.

Acts 1937, ch. 276, § 7; mod. C. Supp. 1950, § 11818.7 (Williams, § 11843.7); Acts 1961, ch. 93, § 9; modified; 1979, ch. 359, § 16; T.C.A. (orig. ed.), § 40-3611; Acts 1989, ch. 227, § 28; 1998, ch. 1049, §§ 24, 35; 2012, ch. 727, § 22.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended the introductory paragraph, shall be fully accomplished on or before January 1, 2013.

40-28-115. Eligibility for parole.

Every person sentenced to an indeterminate sentence and confined in a state prison, after having served a period of time equal to the minimum sentence imposed by the court for the crime of which the person was convicted, shall be subject to the jurisdiction of the board. The time of release shall be discretionary with the board, but no such person shall be released before serving the minimum sentence nor before serving one (1) year.
1. Every person sentenced to a determinate sentence and confined in a state prison, after having served a period of time equal to one half (½) of the sentence imposed by the court for the crime for which the person was convicted, but in no event less than one (1) year, shall likewise be subject to parole in the same manner provided for those sentenced to an indeterminate sentence.
2. The parole eligibility for each person who commits a crime on or after July 1, 1982, shall be determined by the criteria listed in the Criminal Sentencing Reform Act of 1982 [repealed].
The action of the board in releasing prisoners shall be deemed a judicial function and shall not be reviewable if done according to law.
If a prisoner has been accorded a bona fide offer of employment, the board may release the prisoner on probationary parole under either of the following conditions:
1. At any time not more than six (6) months before the prisoner's date of eligibility for parole as provided in this chapter if, after all credit for good conduct, that eligibility shall occur more than eighteen (18) months and less than five (5) years from the date of sentence; or
2. At any time not more than one (1) year before the prisoner's date of eligibility for parole as provided in this chapter if, after all credit for good conduct, that eligibility shall occur more than five (5) years from the date of sentence.
The prisoner shall at all times during probationary parole be under the jurisdiction of the board and the supervision of the department. The board may revoke the probationary parole for any reason satisfactory to it.
Notwithstanding any other provision of this chapter relating to parole eligibility, and when acting pursuant to the Tennessee Contract Sentencing Act of 1979, compiled in chapter 34 of this title, the board of parole is authorized to release a prisoner on parole on the date specified in a sentencing agreement entered into by the prisoner, the board and the department of correction. In granting parole, the board may impose any conditions and limitations that the board deems necessary.
1. The general assembly declares it to be public policy that no person shall be granted parole, notwithstanding any law, rule or regulation to the contrary, until the person has successfully completed a test requiring that individual to master certain basic and other skills. The test shall include as a minimum requirement scoring at an eighth-grade reading level. This requirement shall not apply to any person certified by the commissioner of correction or the commissioner's designee as being so intellectually disabled or mentally ill as to be incapable of learning at the required levels. Furthermore, this subsection (g) shall not apply to the following:
  1. Persons who are incarcerated in county jails or workhouses;
  2. Persons who are in the custody of the department of correction for less than one (1) year; or
  3. Persons who have high school diplomas or the equivalent.
2. The commissioner or the commissioner's designee, the board of parole and the state board of education shall jointly formulate policies and procedures to implement this subsection (g).
3. This subsection (g) shall be inapplicable to any inmate or group of inmates if the commissioner determines that its effectuation will increase the system's inmate population and if the commissioner so certifies the determination to the governor.
1. The department of correction shall not certify an inmate for a parole grant hearing, other than an initial grant hearing, if, at the time the department of correction would otherwise have certified the inmate as eligible, the inmate is classified as close custody. This decertification shall continue for the duration of the classification, and for a period of one (1) year thereafter.
2. The department of correction shall not certify an inmate for a parole grant hearing, other than an initial grant hearing, if, at the time the department of correction would otherwise have certified the inmate as eligible, the inmate is classified as maximum custody. This decertification shall continue for the duration of the classification, and for a period of two (2) years thereafter.
When declining, revoking, or rescinding parole, the board is authorized to set the period of time before the prisoner receives another hearing on the same offense or offenses. However, no period set by the board shall exceed ten (10) years.

Acts 1937, ch. 276, § 8; mod. C. Supp. 1950, § 11818.8 (Williams, § 11843.8); Acts 1957, ch. 162, § 1; 1974, ch. 624, § 3; 1979, ch. 359, § 17; impl. am. Acts 1979, ch. 359, §§ 5, 26; Acts 1979, ch. 386, § 2; T.C.A. (orig. ed.), § 40-3612; Acts 1985, ch. 254, § 1; 1985 (1st Ex. Sess.), ch. 5, § 25; 1989, ch. 227, § 29; 1990, ch. 1011, § 1; 1998, ch. 743, §§ 1, 2; 1998, ch. 1049, §§ 24, 66; 1999, ch. 516, § 4; 2011, ch. 158, § 20; 2012, ch. 727, § 23; 2016, ch. 870, § 1.

Compiler's Notes. Acts 1985 (1st Ex. Sess.), ch. 5, § 32, provided that the department of correction shall consider the implementation of a plan whereby any inmate who has served five (5) years or more in the custody of the department be placed in a halfway house for a period of time prior to his release on supervised parole.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended subsections (e)-(g), shall be fully accomplished on or before January 1, 2013.

The Criminal Sentencing Reform Act of 1982, referred to in this section, was compiled in chapter 35 of this title, effective until November 1, 1989, when the Criminal Sentencing Reform Act of 1989 took effect. The Criminal Sentencing Reform Act of 1982 was repealed by Acts 1989, ch. 591, which enacted the Criminal Sentencing Reform Act of 1989.

For Preamble to act relative to parole hearings, see Acts 2016, ch. 870.

Cross-References. Applicability of Criminal Sentencing Reform Act of 1989, § 40-35-117.

Parole consideration for persons sentenced to consecutive sentences, § 40-20-110.

Parole on recommendation of trial judge, §§ 40-22-102 — 40-22-113.

Prisoner becoming subject to parole laws on suspension of sentence, § 40-22-104.

Textbooks. Tennessee Jurisprudence, 20 Tenn. Juris., Pardon and Parole, § 7.

NOTES TO DECISIONS

1. Argument to Jury.

It was improper for district attorney general to argue effect of indeterminate sentence law before jury in a murder case. Graham v. State, 202 Tenn. 423, 304 S.W.2d 622, 1957 Tenn. LEXIS 407 (1957).

In a trial occurring before the Farris decision, 535 S.W.2d 608 (Tenn. 1976), held the last paragraph of § 40-20-107 unconstitutional, where the trial court permitted the prosecution to argue to the jury the possible effects of the parole, good time and honor grade statutes on any sentence imposed, in an appeal decided after the Farris decision the court looked to the circumstances of the case to determine if the argument, though improper, was prejudicial and concluded that it was harmless error. Buckingham v. State, 540 S.W.2d 660, 1976 Tenn. Crim. App. LEXIS 373 (Tenn. Crim. App. 1976), cert. denied, Buckingham v. Tennessee, 429 U.S. 1049, 97 S. Ct. 759, 50 L. Ed. 2d 764, 1977 U.S. LEXIS 331 (1977).

2. Good Time Credits.

Good and honor time credit is not applicable in calculating parole eligibility for one serving a determinate sentence. McFadden v. State, 532 S.W.2d 944, 1975 Tenn. Crim. App. LEXIS 318 (Tenn. Crim. App. 1975).

3. Board's Discretion.

Parole eligibility comes when the minimum sentence is served less all credits for good and honor time as calculated from the minimum sentence and subtracted from the minimum sentence — but prisoner's release is still discretionary with the former board of pardons and paroles. Farris v. State, 535 S.W.2d 608, 1976 Tenn. LEXIS 583 (Tenn. 1976).

A prisoner has no absolute right to be released on parole, even though he has a clean conduct record, and has served the minimum term for his offense. Robinson v. Traughber, 13 S.W.3d 361, 1999 Tenn. App. LEXIS 648 (Tenn. Ct. App. 1999).

4. Eligibility Date.

The parole eligibility date on a determinate sentence is set by this section which contains no provision for aggregating sentences and is singular in concept. Howell v. State, 569 S.W.2d 428, 1978 Tenn. LEXIS 620 (Tenn. 1978).

5. —Review of Board Action.

The action of the parole board in releasing prisoners is not reviewable if done according to law. Flowers v. Traughber, 910 S.W.2d 468, 1995 Tenn. Crim. App. LEXIS 583 (Tenn. Crim. App. 1995).

A limited form of review of the parole board's decision is available under the writ of certiorari to determine whether the board exceeded its jurisdiction, or has acted illegally, fraudulently or arbitrarily. Robinson v. Traughber, 13 S.W.3d 361, 1999 Tenn. App. LEXIS 648 (Tenn. Ct. App. 1999).

Petitioner's challenge to the intrinsic correctness of the board's decision, and not to its legality, was beyond the scope of review under the common law writ of certiorari. Robinson v. Traughber, 13 S.W.3d 361, 1999 Tenn. App. LEXIS 648 (Tenn. Ct. App. 1999).

Appellate court reversed an order dismissing a prisoner's claim that the parole board acted arbitrarily in deferring the next consideration of his parole for 20 years where the decision to defer consideration for so many years was found to have been an arbitrary exercise of the board's authority and the prisoner had stated a cause of action which entitled him to a writ of certiorari. Baldwin v. Tenn. Bd. of Paroles, 125 S.W.3d 429, 2003 Tenn. App. LEXIS 575 (Tenn. Ct. App. 2003), appeal denied, — S.W.3d —, 2003 Tenn. LEXIS 1266 (Tenn. Dec. 22, 2003).

Because an inmate was not entitled to multiple release eligibility dates and consideration for custodial parole, his petition alleging that the Tennessee Board of Probation and Parole and Board officials deprived him of the privilege to be heard for custodial parole failed to state a claim on which relief could be granted; therefore, the trial court properly granted the motions of the Board and officials to dismiss the inmate's petition for common law writ of certiorari pursuant to T.C.A. §§ 27-8-101 and 27-9-101. Stewart v. Schofield, 368 S.W.3d 457, 2012 Tenn. LEXIS 376 (Tenn. May 25, 2012).

6. —Seriousness of Offense.

Seriousness of offense is a valid ground for denying parole in Tennessee. Robinson v. Traughber, 13 S.W.3d 361, 1999 Tenn. App. LEXIS 648 (Tenn. Ct. App. 1999).

7. Parole Properly Denied.

Tennessee Board of Paroles did not act arbitrarily, fraudulently, illegally, in excess of its authority, or without material evidence in denying the inmate's request for parole because the inmate was permitted to present exhaustive evidence of his rehabilitation, and the details of the offense at issue were serious. Smith v. Tenn. Bd. of Paroles, — S.W.3d —, 2019 Tenn. App. LEXIS 364 (Tenn. Ct. App. July 25, 2019).

40-28-116. Power to parole.

1. The board has the power to cause to be released on parole any person the department has declared eligible for parole consideration.
2. No person convicted of a sex crime shall be released on parole unless a psychiatrist or licensed psychologist designated as a health service provider has evaluated the inmate and determined to a reasonable medical or psychological certainty that the inmate does not pose the likelihood of committing sexual assaults upon release from confinement. The evaluations shall be provided by psychiatrists or licensed psychologists designated as health service providers whose services are contracted for and funded by the board.
Notwithstanding any other provision of this chapter relating to parole eligibility, and when acting pursuant to the Tennessee Contract Sentencing Act of 1979, compiled in chapter 34 of this title, the board is authorized to release a prisoner on parole on the date specified in a sentencing agreement entered into by the prisoner and the board. In granting parole, the board may impose any conditions and limitations that the board deems necessary.

Acts 1913, ch. 8, § 3; impl. am. Acts 1915, ch. 20, § 7; Shan., § 7202a6; impl. am. Acts 1919, ch. 39, § 2; impl. am. Acts 1923, ch. 7, § 42; mod. Code 1932, § 11771; impl. am. Acts 1937, ch. 276, §§ 1, 3; C. Supp. 1950, § 11771; Acts 1957, ch. 353, § 1; 1961, ch. 93, § 10; 1965, ch. 273, §§ 1, 2; impl. am. Acts 1972, ch. 636, § 1; Acts 1973, ch. 370, §§ 1, 2; 1974, ch. 624, § 4; modified; impl. am. Acts 1979, ch. 359, §§ 5, 26; Acts 1979, ch. 359, § 18; 1979, ch. 386, § 3; T.C.A. (orig. ed.), § 40-3613; Acts 1985 (1st Ex. Sess.), ch. 5, § 26; 1989, ch. 227, § 30; 1989, ch. 591, § 8; 1992, ch. 991, § 17; 1998, ch. 1049, § 24; 2012, ch. 727, § 24.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended subdivision (a)(1), shall be fully accomplished on or before January 1, 2013.

Cross-References. Eligibility for parole, § 40-28-115.

Sex offenders, title 33, ch. 6, part 8.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 32.2, 32.60.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 49; 20 Tenn. Juris., Pardon and Parole, § 7.

Law Reviews.

The Habitual Offender Laws of Tennessee (Steven W. Feldman), 14 Mem. St. U.L. Rev. 293 (1984).

Attorney General Opinions. Retroactive custodial parole hearing authorized for first of consecutive sentences, OAG 98-089 (4/15/98).

NOTES TO DECISIONS

1. Eligibility Date.

The parole eligibility date on a determinate sentence is set by § 40-28-115 which contains no provision for aggregating sentences and is singular in concept. Howell v. State, 569 S.W.2d 428, 1978 Tenn. LEXIS 620 (Tenn. 1978).

2. Discretion of Board.

Granting of parole is a discretionary matter vested exclusively in the board of paroles. Doyle v. Hampton, 207 Tenn. 399, 340 S.W.2d 891, 1960 Tenn. LEXIS 471 (1960).

3. Effect of Parole.

Convict on parole remained in custody of board and was not subject to imprisonment in the county jail under a sentence for a conviction occurring prior to his imprisonment. State ex rel. Nicholson v. Bush, 136 Tenn. 478, 190 S.W. 453, 1916 Tenn. LEXIS 150 (1916).

During the period of the parole the prisoner cannot be rearrested under a capias or otherwise and placed in the penitentiary, jail or workhouse under a conviction had prior to the conviction upon which he is serving as a parolee from the state penitentiary. Doyle v. Hampton, 207 Tenn. 399, 340 S.W.2d 891, 1960 Tenn. LEXIS 471 (1960).

4. Sentence for Crime Committed While on Parole.

A defendant who commits a crime while on parole from a life sentence can be tried for that crime and sentenced and such sentence runs consecutively to the life sentence becoming effective if at any time the defendant is pardoned on the previous life sentence. Bosley v. State, 218 Tenn. 134, 401 S.W.2d 770, 1966 Tenn. LEXIS 555 (1966).

5. Good Time Credit.

Good time credit is not used to calculate the parole eligibility date of one serving a determinate sentence. McFadden v. State, 532 S.W.2d 944, 1975 Tenn. Crim. App. LEXIS 318 (Tenn. Crim. App. 1975).

6. Instructions.

Where in a prosecution for first degree murder the jury was erroneously instructed as to the time when defendant would be eligible for parole from a life sentence, the court held such error did not justify a reversal of the conviction but remanded the case for a redetermination of punishment. Tosh v. State, 527 S.W.2d 146, 1975 Tenn. Crim. App. LEXIS 327 (Tenn. Crim. App. 1975).

Where the court failed to charge on eligibility for parole as required by former § 40-20-107, there was no error since the Tennessee supreme court held the pertinent part of former § 40-20-107 unconstitutional. Walker v. State, 544 S.W.2d 905, 1976 Tenn. Crim. App. LEXIS 337 (Tenn. Crim. App. 1976).

In a prosecution for aggravated sexual battery, the trial court did not abuse its discretion in refusing to charge the jury with the provisions contained in T.C.A. § 40-28-116. State v. Campbell, 904 S.W.2d 608, 1995 Tenn. Crim. App. LEXIS 189 (Tenn. Crim. App. 1995).

7. Argument to the Jury.

8. Type of Sentence for Application.

This section does not contemplate consecutive sentences and has no application to determinate sentences, with the exception of life sentences, but not multiple life sentences. Howell v. State, 569 S.W.2d 428, 1978 Tenn. LEXIS 620 (Tenn. 1978).

9. Conditions.

Parole condition requiring that the parolee submit to warrantless searches is reasonable in light of the parolee's significantly diminished privacy interests, the goals sought to be attained by early release, and society's legitimate interest in protecting itself against recidivism; therefore, the Tennessee Constitution permits a parolee to be searched without any reasonable or individualized suspicion where the parolee has agreed to warrantless searches by law enforcement officers. Importantly, such searches may be undertaken only if the searching officer has prior knowledge of the parolee's status as subject to such searches; the totality of the circumstances surrounding a warrantless, suspicionless search of a parolee must be examined to determine whether the search is constitutionally unreasonable. State v. Turner, 297 S.W.3d 155, 2009 Tenn. LEXIS 678 (Tenn. Oct. 15, 2009).

10. Sex Crime.

Members of the Tennessee Board of Probation and Parole did not act arbitrarily and capriciously by failing to consider the opinion of a psychiatrist or licensed clinical psychologist because the Board had enough evidence to sustain its decision to deny parole; the inmate was not being released, and the statute stated that there had be a clinical evaluation prior to the release of an inmate convicted of a sex crime, not prior to the Board's determination of an inmate's likelihood to re-offend. Wells v. Tenn. Bd. of Prob. & Parole, — S.W.3d —, 2014 Tenn. App. LEXIS 633 (Tenn. Ct. App. Oct. 6, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 248 (Tenn. Mar. 16, 2015), cert. denied, 193 L. Ed. 2d 95, 136 S. Ct. 121, — U.S. —, 2015 U.S. LEXIS 5700 (U.S. 2015).

40-28-117. Grounds for parole — Terms.

1. Parole being a privilege and not a right, no prisoner shall be released on parole merely as a reward for good conduct or efficient performance of duties assigned in prison, but only if the board is of the opinion that there is reasonable probability that the prisoner, if released, will live and remain at liberty without violating the law, and that the prisoner's release is not incompatible with the welfare of society. If the board so determines, the prisoner may be paroled and if paroled shall be allowed to go upon parole outside of prison walls and enclosure upon the terms and conditions as the board shall prescribe, but to remain while thus on parole in the legal custody of the warden of the prison or the supervisor of the county jail or workhouse from which the prisoner is paroled, until the expiration of parole. The terms and conditions of parole set by the board may specifically include the requirement that a prisoner pay restitution to the victims of the crimes for which the prisoner had been sentenced to prison, to compensate them for their personal injuries or property losses or both proximately caused through the commission of those crimes.
2. 1. For any prisoner paroled on or after July 1, 2014, the terms and conditions may specifically include that the prisoner, upon release, use a transdermal monitoring device or other alternative monitoring device if, in the opinion of the board, the prisoner's use of alcohol or drugs was a contributing factor in one (1) or more of the offenses for which the prisoner is being paroled.
  2. As used in this subdivision (a)(2), “transdermal monitoring device” means any device or instrument that is attached to the person, designed to automatically test the alcohol or drug content in a person by contact with the person's skin at least once per one-half (½) hour regardless of the person's location, and which detects the presence of alcohol or drugs and tampering, obstructing, or removing the device. If the board includes use of a transdermal monitoring device or alternative monitoring device as a term and condition on or after July 1, 2016, but determines that the person is indigent, the board shall order that the portion of the costs of the device that the person is unable to pay be paid by the electronic monitoring indigency fund, established in § 55-10-419.
Every prisoner who has never been granted a parole of any type by the board on a particular sentence of imprisonment shall be granted a mandatory parole by the board subject to the following restrictions:
1. Prisoners serving an indeterminate or determinate sentence with a maximum term of two (2) years up to ten (10) years inclusive, as fixed by the court, shall be paroled by the board ninety (90) days prior to the completion of the maximum term of sentence less credit for good and honor time and incentive time;
2. Prisoners serving a determinate or indeterminate sentence with a maximum term of more than ten (10) years as fixed by the court, shall be paroled by the board six (6) months prior to the completion of the maximum term of sentence less credit for good and honor time and incentive time;
3. All prisoners mandatorily paroled shall be paroled under the provisions and conditions as the board may deem necessary. A violation of the provisions and conditions shall subject the prisoner to all the penalties and provisions of law now provided for violation of the terms of parole. Upon a violation, the prisoner shall not receive another mandatory parole, but may be paroled in the discretion of the board;
4. Mandatory parole shall not be construed to grant parole earlier than set forth in §§ 40-28-115 — 40-28-119;
5. Every prisoner released on mandatory parole shall receive a money and clothing allowance, as set out in § 41-21-219, for prisoners released on parole; and
6. Prisoners who have been convicted of a sex offense shall not be released on mandatory parole unless they have been evaluated and met the requirement described in § 40-28-116(a).

Acts 1937, ch. 276, § 9; C. Supp. 1950, § 11818.9 (Williams, § 11843.9); Acts 1961, ch. 93, § 11; 1974, ch. 624, § 5; 1975, ch. 99, § 1; 1979, ch. 313, § 1; T.C.A. (orig. ed.), § 40-3614; Acts 1989, ch. 227, §§ 31-33; 2014, ch. 567, § 2; 2016, ch. 993, § 13; 2018, ch. 1046, § 3.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

Acts 2014, ch. 567, § 6 provided that the act, which added subdivision (a)(2), shall be known and may be cited as “Amelia's Law”.

Acts 2018, ch. 1046, § 12 provided that the act, which amended this section, shall apply to offenses committed on or after July 1, 2018.

Amendments. The 2018 amendment substituted “electronic monitoring indigency” for “DUI monitoring” preceding “fund” in (a)(2)(B).

Effective Dates. Acts 2018, ch. 1046, § 12. July 1, 2018.

Cross-References. Clothing, money and transportation furnished on discharge, § 41-21-219.

Sex offenders, title 33, ch. 6, part 8.

Law Reviews.

Wealth-Based Penal Disenfranchisement, 72 Vand. L. Rev. 55 (January 2019).

Attorney General Opinions. Retroactive custodial parole hearing authorized for first of consecutive sentences, OAG 98-089 (4/15/98).

The board of probation and parole is authorized to condition parole on payment of fines but not criminal court costs, OAG 06-062 (4/5/06).

NOTES TO DECISIONS

1. Constitutionally Protected Interests.

Although this section does not create a liberty interest, the overall Tennessee parole scheme, particularly Tenn. Comp. R. & Regs. R. 1100-1-1-.06 of the Rules of Tennessee Board of Parole, does create a liberty entitlement protected by the due process clause. Mayes v. Trammell, 751 F.2d 175, 1984 U.S. App. LEXIS 15557 (6th Cir. Tenn. 1984), superseded by statute as stated in, Wright v. Trammell, 810 F.2d 589, 1987 U.S. App. LEXIS 7640 (6th Cir. Tenn. 1987), superseded by statute as stated in, Dace v. Mickelson, 816 F.2d 1277, 1987 U.S. App. LEXIS 5461 (8th Cir. S.D. 1987), superseded by statute as stated in, Robinson v. Board of Paroles, 878 F.2d 382, 1989 U.S. App. LEXIS 9161 (6th Cir. Tenn. 1989), superseded by statute as stated in, Wells v. Tennessee Bd. of Paroles, 909 S.W.2d 826, 1995 Tenn. App. LEXIS 487 (Tenn. Ct. App. 1995), superseded by statute as stated in, Jordan v. Tennessee Bd. of Paroles, — S.W.2d —, 1997 Tenn. App. LEXIS 27 (Tenn. Ct. App. Jan. 15, 1997), superseded by statute as stated in, Teague v. Cox, — F. Supp. 2d —, 2008 U.S. Dist. LEXIS 48971 (E.D. Tenn. June 19, 2008).

An inmate has a constitutionally protected right to present evidence at his parole hearing. Mayes v. Trammell, 751 F.2d 175, 1984 U.S. App. LEXIS 15557 (6th Cir. Tenn. 1984), superseded by statute as stated in, Wright v. Trammell, 810 F.2d 589, 1987 U.S. App. LEXIS 7640 (6th Cir. Tenn. 1987), superseded by statute as stated in, Dace v. Mickelson, 816 F.2d 1277, 1987 U.S. App. LEXIS 5461 (8th Cir. S.D. 1987), superseded by statute as stated in, Robinson v. Board of Paroles, 878 F.2d 382, 1989 U.S. App. LEXIS 9161 (6th Cir. Tenn. 1989), superseded by statute as stated in, Wells v. Tennessee Bd. of Paroles, 909 S.W.2d 826, 1995 Tenn. App. LEXIS 487 (Tenn. Ct. App. 1995), superseded by statute as stated in, Jordan v. Tennessee Bd. of Paroles, — S.W.2d —, 1997 Tenn. App. LEXIS 27 (Tenn. Ct. App. Jan. 15, 1997), superseded by statute as stated in, Teague v. Cox, — F. Supp. 2d —, 2008 U.S. Dist. LEXIS 48971 (E.D. Tenn. June 19, 2008).

After a pro se prisoner argued that the application of harsher, more severe statutes at his 1998 parole hearing caused him to be denied parole, because, if the laws and rule which were in effect in 1974 had been used, the outcome of the hearing would have been different, the appellate court vacated the decision and remanded to the district court with the instructions that discovery be limited to a class of inmates with comparable convictions and sentences so that the prisoner would have the opportunity to acquire data evidencing the practical implementation of the parole provisions in question. Dyer v. Bowlen, 465 F.3d 280, 2006 FED App. 330P, 2006 U.S. App. LEXIS 22221 (6th Cir. 2006).

Parole board's use of laws and procedures, including T.C.A. § 40-28-117 and T.C.A. § 40-35-503(b), which were in effect at the time of inmate's parole hearing, rather than use of laws in effect at the time of his offense, did not violate the ex post facto clause of U.S. Const. art. I., § 10, because evidence submitted by inmate was insufficient to show that retroactive application of the laws created sufficient risk of increasing the measure of punishment attached to his crime. Teague v. Cox, — F. Supp. 2d —, 2008 U.S. Dist. LEXIS 48971 (E.D. Tenn. June 19, 2008).

Warrantless search of defendant's residence, made pursuant to a written condition of her parole, was reasonable under the U.S. Const. amend. IV and Tenn. Const. art. I, § 7, even if made without any reasonable, individualized, or particularized suspicion; under the totality of the circumstances, the police officer's decision to search defendant's residence was not unreasonable. There was no proof that the officer acted for any reason other than the furtherance of legitimate law enforcement concerns as defendant had been convicted of drug offenses in two states and the officer had information from an informant that she was involved in selling crack cocaine; he verified defendant's parole status and the warrantless search condition before he searched her residence and neither the search of defendant's vehicle nor that of her residence was unreasonably lengthy, that the total time of defendant's detention might have been at most two hours and included a short trip by defendant in her own vehicle did not so prolong the detention as to make the search unreasonable. State v. Turner, 297 S.W.3d 155, 2009 Tenn. LEXIS 678 (Tenn. Oct. 15, 2009).

2. Discretion of Board.

The granting of parole is a discretionary matter vested exclusively in the former board of pardons and paroles. Doyle v. Hampton, 207 Tenn. 399, 340 S.W.2d 891, 1960 Tenn. LEXIS 471 (1960); State ex rel. Ivey v. Meadows, 216 Tenn. 678, 393 S.W.2d 744, 1965 Tenn. LEXIS 614 (1965).

Trial court properly determined that the inmate was not eligible for parole under T.C.A. § 40-28-117(b) where he had received a life sentence plus additional time, and thus there was no way to determine six months prior to the completion of his maximum term. Powers v. Tennessee Bd. of Probation & Paroles, — S.W.3d —, 2007 Tenn. App. LEXIS 328 (Tenn. Ct. App. May 23, 2007).

3. —Right to Parole.

A prisoner has no absolute right to be released on parole when he has a clean conduct record and has served the minimum term for his offense. State ex rel. Wade v. Norvell, 1 Tenn. Crim. App. 447, 443 S.W.2d 839, 1969 Tenn. Crim. App. LEXIS 285 (Tenn. Crim. App. 1969).

Tennessee laws and regulations create no right to parole, or to due process in the conduct of a parole hearing. Hinds v. Tennessee, 888 F. Supp. 854, 1995 U.S. Dist. LEXIS 8121 (W.D. Tenn. 1995).

An inmate was not entitled to mandatory parole under T.C.A. § 40-28-117(b), because inmate's crime was committed after July 1, 1982, and mandatory parole had been abolished for all crimes committed after that date. Hickman v. Tenn. Bd. of Paroles, 78 S.W.3d 285, 2001 Tenn. App. LEXIS 773 (Tenn. Ct. App. 2001).

Writ of certiorari was denied in an inmate's challenge to the denial of parole, because due process was not violated by the failure to hold the hearing on the inmate's release eligibility date; there was no constitutionally protected liberty interest in parole. Gordon v. Tenn. Bd. of Prob. & Parole, — S.W.3d —, 2007 Tenn. App. LEXIS 492 (Tenn. Ct. App. July 30, 2007).

4. —Power of Courts.

The courts have no jurisdiction to exercise authority or control or command or dominion over the board of probation and paroles in the exercise of its statutory duties with reference to the parole of prisoners and allowance or forfeiture of time credits upon their sentences. State ex rel. Wade v. Norvell, 1 Tenn. Crim. App. 447, 443 S.W.2d 839, 1969 Tenn. Crim. App. LEXIS 285 (Tenn. Crim. App. 1969).

5. Status of Parolee.

Parole is nothing more than a conditional suspension of sentence and the sentence of the prisoner does not expire because of the parole nor during the pendency of the parole, and during this time he is still in the custody of the penal authorities of the state and subject to the provisions upon which he has been paroled. Doyle v. Hampton, 207 Tenn. 399, 340 S.W.2d 891, 1960 Tenn. LEXIS 471 (1960).

Parolee remains under the confinement of his sentence while on parole. Doyle v. Hampton, 207 Tenn. 399, 340 S.W.2d 891, 1960 Tenn. LEXIS 471 (1960).

6. Parole Denial Upheld.

Trial court did not err in dismissing an inmate's petition for a common law writ of certiorari challenging the decision of the Tennessee Board of Parole denying him parole because the Board's decision was not illegal, arbitrary, or fraudulent; the record supported the Board's decision to deny the inmate appeal based on the seriousness of his offense because the offense, murder, was serious, heinous, and violent, and it was all the more so because of the young age of his victim. Bibbs v. Tenn. Bd. of Parole, — S.W.3d —, 2016 Tenn. App. LEXIS 277 (Tenn. Ct. App. Apr. 22, 2016).

7. Sentence Reduction Credits.

Defendant was not eligible for mandatory parole until six months prior to the completion of his determinate 99 year sentence; sentence reduction credits could only assist defendant in determining the earliest date on which defendant would become eligible for parole under T.C.A. § 40-28-117. Richardson v. Tennessee Dep't of Correction, 33 S.W.3d 818, 2000 Tenn. App. LEXIS 353 (Tenn. Ct. App. 2000).

40-28-118. Determination as to paroles — Supervision of parolees.

Subject to other provisions of law, the board is charged with the duty of determining what prisoners serving a felony sentence of more than two (2) years or consecutive felony sentences equaling a term greater than two (2) years in state prisons, jails and county workhouses may be released on parole and when and under what conditions.
When the director of probation and parole issues a warrant for the retaking of a parolee pursuant to § 40-28-607, the board is charged with determining whether violation of parole conditions exists in specific cases and of deciding the action to be taken in reference to the violation.
It is also the duty of the members of the board to study the prisoners confined in the prisons, workhouses and jails when they are eligible for parole consideration so as to determine their ultimate fitness to be paroled.

Acts 1937, ch. 276, § 6; C. Supp. 1950, § 11818.6 (Williams, § 11843.6); Acts 1961, ch. 93, § 12; 1974, ch. 624, § 6; 1977, ch. 22, § 1; 1979, ch. 359, § 19; T.C.A. (orig. ed.), § 40-3615; Acts 1989, ch. 227, §§ 34-36; 1990, ch. 729, § 3; 1998, ch. 1049, §§ 23, 25; 2012, ch. 727, § 25.

Acts 1990, ch. 729, § 4 provided that the amendment by that act shall apply to any felon, notwithstanding the date of sentencing.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended this section, shall be fully accomplished on or before January 1, 2013.

Cross-References. Interstate Compact for Supervision of Adult Offenders, title 40, ch. 28, part 4.

NOTES TO DECISIONS

1. Refusal of Release.

Life prisoner was not entitled to release on ground that petition for release was at first favorably considered though later refused upon reconsideration where prisoner was in failing health and required assistance and parties which had agreed to take care of petitioner changed their minds and refused to be responsible for him. State ex rel. Neilson v. Harwood, 183 Tenn. 567, 194 S.W.2d 448, 1946 Tenn. LEXIS 239 (1946).

40-28-119. Records of parolees.

The board shall cause to be kept records which may include social, physical, mental, psychiatric and criminal information for every inmate considered for or released.
The board may make rules, as it deems proper, as to the privacy of the record and of the records of its employment bureau, and their use by others than the board and its staff.

Acts 1937, ch. 276, §§ 5, 15; C. Supp. 1950, §§ 11818.5, 11818.15 (Williams, §§ 11843.5, 11843.15); modified; Acts 1979, ch. 359, § 20; T.C.A. (orig. ed.), § 40-3616; Acts 1989, ch. 227, §§ 37, 38; 1998, ch. 1049, §§ 36, 37; 2012, ch. 727, § 26.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended this section, shall be fully accomplished on or before January 1, 2013.

Cross-References. Notice to police of release, § 41-21-224.

Registration of parolees, § 41-21-225.

Roster of inmate release privileges, title 41, ch. 21, part 7.

40-28-120. [Reserved.]

Upon the issuance of a warrant under § 40-28-607, any officer authorized to serve criminal process, or any peace officer to whom a warrant is delivered, shall execute the warrant by taking the prisoner and returning the prisoner to a prison, workhouse or jail to be held to await the action of the board.
Upon the arrest of a parolee pursuant to subsection (a), unless waived in writing, a preliminary hearing shall be conducted to determine whether probable cause exists to believe that the parolee has violated the conditions of parole in an important respect. Indictment by a grand jury or a finding of probable cause or a waiver of a probable cause hearing or a conviction in any federal or state court of competent jurisdiction for any felony or misdemeanor committed after parole shall constitute “probable cause” and no further proof shall be necessary at the preliminary hearing. If a parole revocation hearing is held within fourteen (14) days of the service of the warrant, a preliminary hearing will not be necessary.
Written notice of the violations alleged and the time, place and purpose of the hearing shall be given the parolee a reasonable time before the hearing.
The preliminary hearing shall be conducted by a hearing officer, appointed by the chair of the board.

Acts 1937, ch. 276, § 11; 1949, ch. 18, § 1; C. Supp. 1950, § 11818.11 (Williams, § 11843.11); Acts 1974, ch. 624, § 8; 1978, ch. 659, § 1; 1978, ch. 929, § 4; 1979, ch. 359, § 22; T.C.A. (orig. ed.), § 40-3618; Acts 1989, ch. 227, § 40; 2012, ch. 727, § 28.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended this section, shall be fully accomplished on or before January 1, 2013.

Cross-References. Charges assessed against inmates for services provided them, deduction from inmate's trust fund account, § 41-21-237.

Collecting from inmate trust fund account, § 40-25-143.

Counsel for indigent persons in parole revocation proceedings, Tenn. R. Sup. Ct. 16.

Hearings on parole violations, appointment of counsel for indigents, § 40-28-122.

Payment for transporting prisoners, § 40-25-111.

Sheriffs powers and duties of office, § 8-8-201.

Textbooks. Tennessee Jurisprudence, 20 Tenn. Juris., Pardon and Parole, § 8.

NOTES TO DECISIONS

1. Waiver.

In parole revocation case, where parolee's testimony indicated that he signed waiver of preliminary hearing in order to hasten his appearance before the parole board, he failed to prove allegation that his waiver was coerced. Young v. State, 539 S.W.2d 850, 1976 Tenn. Crim. App. LEXIS 389 (Tenn. Crim. App. 1976).

40-28-122. Hearings on parole violations — Appointment of counsel for indigents.

When the director of probation and parole issues a warrant for the retaking of a parolee pursuant to § 40-28-607, the board is charged with determining whether violation of parole conditions exists in specific cases and of deciding the action to be taken in reference to the violation. After being notified that a warrant has been executed and a probable cause hearing has been held or waived, the board shall, as soon as practicable, hold a parole revocation hearing and consider the case of the parole violator, who shall be given an opportunity to appear personally before a board member or hearing officer and explain the charges made. A probable cause hearing shall not be necessary if a parole revocation hearing is held within fourteen (14) days of the service of the warrant.
A laboratory report regarding a parolee's drug test may be admissible in any parole revocation proceeding, even though the laboratory technician who performed the test is not present to testify, when accompanied by an affidavit containing at least the following information:
1. The identity of the certifying technician;
2. A statement of qualifications from the certifying technician;
3. A specific description of the testing methodology;
4. A statement that the method of testing was the most accurate test for this particular drug;
5. A certification that the results were reliable and accurate;
6. A declaration that all established procedures and protocols were followed; and
7. A statement of acknowledgment that submission of false information in the affidavit may subject the affiant to prosecution for the criminal offense of perjury pursuant to § 39-16-702.
1. The board shall, within a reasonable time, act upon the charges, and may, if it sees fit, require the prisoner to serve out in prison the balance of the maximum term for which the prisoner was originally sentenced, calculated from the date of delinquency or such part thereof, as it may determine, or impose the punishment as it deems proper, subject to § 40-28-123.
2. At a revocation hearing for a prisoner paroled from a department of correction facility, the board may also, in conjunction with revocation of the prisoner's parole for reasons other than the commission of a new felony offense, reparole the prisoner effective upon the department's certification that the prisoner has successfully completed a diversion program established by the department of correction pursuant to § 41-1-123. If the offender fails to successfully complete the program, the offender shall be scheduled for a preparole rescission hearing.
1. In any revocation hearing conducted by the board, or in cases of initial preliminary hearings, the board is authorized to appoint legal counsel for an indigent individual where necessary in obedience to the requirements of the supreme court of the United States. For this purpose, the supreme court of Tennessee shall prescribe by rule the nature of costs for which reimbursement may be allowed, and the limitations on and conditions for the reimbursement of costs as it deems appropriate in the public interest, subject to this part. The rules shall also specify the form and content of applications for reimbursement of costs to be filed under this section.
2. The administrative director of the courts shall administer this subsection (d) and rules promulgated pursuant to subdivision (d)(1), and shall audit and review all applications for reimbursement of cost. Upon finding payment to be in order, the administrative director of the courts shall process the payment thereof out of money appropriated for that purpose.
Costs incurred by the state in providing legal counsel shall be minimized insofar as is possible and practicable by the appointment by the board of counsel from any legal services group functioning in the county in which the proceedings are held if the group is supported in whole or in part from federal, state, county or municipal moneys.
1. This subsection (f) shall apply to a paroled prisoner who is reincarcerated while awaiting a parole revocation preliminary hearing, a parole revocation hearing, or a parole rescission hearing, or following revocation or rescission of parole, and the sole reason the paroled prisoner was arrested and reincarcerated was because the paroled prisoner was charged with a new offense. Upon receipt of notification that the prisoner's revocation or rescission case, which was previously decided by the board, merits further review based upon the circumstances under which the new offense was dismissed, the board shall waive the time limitation for appeal, as set in rule by the board, and any limitation based on previously filed appeals, in order that the prisoner may submit evidence of any of the following events:
  1. The charge or charges against the paroled prisoner that resulted in the arrest of the prisoner for a parole violation were dismissed or retired based on the merits of the case;
  2. A no true bill was returned by a grand jury on the charge or charges;
  3. A verdict of not guilty was returned, whether by the judge following a bench trial or by a jury; or
  4. The paroled prisoner was arrested and released, without being charged.
2. The notification required by subdivision (f)(1) may be in written or electronic form and shall be submitted by:
  1. The district attorney general from the judicial district in which the charges were brought or the district attorney general's designee;
  2. The judge in the court where charges were brought;
  3. The department of correction;
  4. The prisoner's attorney, provided that the notification is also signed by one (1) of the officials in subdivisions (f)(2)(A)-(C); or
  5. The prisoner, provided that the notification is also signed by one (1) of the officials in subdivisions (f)(2)(A)-(C).
3. Upon verification of the authenticity of the submitted notification, which shall occur within ten (10) business days from receipt of the notification, and submission of evidence of the occurrence of one (1) or more of the events in subdivision (f)(1)(A)-(D), the board, or the board's designee, shall conduct a hearing on the record to determine if:
  1. One (1) of the events in subdivision (f)(1)(A)-(D) has occurred involving a charge against a parolee that was committed while on parole; and
  2. The parolee was reincarcerated solely because of this charge and the parolee remains incarcerated while awaiting a parole revocation or rescission hearing or because the parolee's parole was revoked or rescinded.
4. If, after the board or the board's designee conducts a hearing on the record, the board determines that the events described in subdivisions (f)(3)(A) and (B) have occurred, the board may vote to order the release and reinstatement on parole of the prisoner in accordance with applicable law. If released and reinstated, any sentence credits that may have been lost while the paroled prisoner was incarcerated shall also be reinstated. The number of votes required to release and reinstate the prisoner's parole shall be determined in accordance with the rules of the board.
5. The hearing conducted pursuant to this subsection (f) shall be scheduled on the next available docket upon the occurrence of the events defined in subdivisions (f)(1)-(3), and shall be conducted no later than thirty-five (35) days from verification of the notification required by subdivision (f)(1).

Acts 1937, ch. 276, § 12; C. Supp. 1950, § 11818.12 (Williams, § 11843.12); Acts 1978, ch. 929, § 5; T.C.A. (orig. ed.), § 40-3619; Acts 1989, ch. 227, §§ 41, 42; 1993, ch. 66, § 70; 1998, ch. 1049, § 25; 2001, ch. 323, § 1; 2001, ch. 355, § 1; 2006, ch. 666, § 2; 2012, ch. 727, §§ 29, 30; 2017, ch. 162, § 2.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which deleted former subsection (a) and amended subsection (b), shall be fully accomplished on or before January 1, 2013.

This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

Cross-References. Appointment and compensation of counsel for indigent persons in parole revocation hearings, Tenn. R. Sup. Ct. 16.

Counsel for indigents, title 40, ch. 14, part 2.

Felony committed by parolee or prisoner assigned to release program, § 40-28-123.

Official misconduct, § 39-16-402.

Perjury, § 39-16-702.

Right to appointed counsel, § 40-14-103.

Textbooks. Tennessee Jurisprudence, 20 Tenn. Juris., Pardon and Parole, § 8.

Law Reviews.

Cheating the Constitution (Pamela R. Metzger), 59 Vand. L. Rev. 475 (2006).

NOTES TO DECISIONS

1. Authority of Courts.

Trial court improperly granted habeas relief based on delay because it lacked the authority to review the revocation decision of the parole board; exclusive jurisdiction for judicial review of an action of the parole board lies with the chancery court of Davidson County through a writ of certiorari. Long v. Tenn. Bd. of Prob. & Parole, 143 S.W.3d 787, 2004 Tenn. Crim. App. LEXIS 138 (Tenn. Crim. App. 2004), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 588 (Tenn. June 21, 2004).

2. Parolee's Rights at Hearing.

Where, at revocation hearing, parolee admitted violating condition of parole, confrontation and cross-examination of witnesses was of no use to him and denial of such rights was not error. Young v. State, 539 S.W.2d 850, 1976 Tenn. Crim. App. LEXIS 389 (Tenn. Crim. App. 1976).

3. Delay.

Where parole violator's revocation hearing took place four months after he was taken into custody, charge that he was denied prompt hearing was meritless absent showing of prejudice resulting from delay. Young v. State, 539 S.W.2d 850, 1976 Tenn. Crim. App. LEXIS 389 (Tenn. Crim. App. 1976).

Trial court improperly granted habeas relief based on delay because a prisoner's sentence had not expired when his parole was revoked; the prisoner ceased earning credit on his sentence on the date that the parole violation warrant was filed and the prisoner was declared delinquent. Long v. Tenn. Bd. of Prob. & Parole, 143 S.W.3d 787, 2004 Tenn. Crim. App. LEXIS 138 (Tenn. Crim. App. 2004), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 588 (Tenn. June 21, 2004).

4. Sentence Imposed.

Where convict's parole was revoked for violation of conditions, and the resultant requirement that he return to prison to serve his sentence was challenged as unrelated to the gravity of his parole infraction, the validity of the sentence was measured by crime for which it was originally imposed and not by subsequent misbehavior. Young v. State, 539 S.W.2d 850, 1976 Tenn. Crim. App. LEXIS 389 (Tenn. Crim. App. 1976).

40-28-123. Felony committed by parolee or prisoner assigned to release program — Signed acknowledgement prerequisite to participation in release programs.

Any prisoner who is convicted in this state of a felony, committed while on parole from a state prison, jail or workhouse, shall serve the remainder of the sentence under which the prisoner was paroled, or part of that sentence, as the board may determine before the prisoner commences serving the sentence received for the felony committed while on parole. If any prisoner while on parole from a state prison, jail or workhouse commits a crime under the laws of another state government or country which, if committed within this state, would be a felony, and is convicted of the crime, the director of probation and parole shall arrange for the return of the prisoner through the terms of the interstate compact. The board shall require that the prisoner serve the portion remaining of the maximum term of sentence or part of that sentence as the board may determine. The board, at its discretion, may recommend to the commissioner of correction the removal of all or any part of the good and honor time and incentive time accrued on the sentence under which the prisoner was paroled.
1. Any prisoner who is convicted in this state of any felony except escape, and when the felony is committed while the prisoner is assigned to any work release, educational release, restitution release or other program whereby the prisoner enjoys the privilege of supervised release into the community, including, but not limited to, participation in any programs authorized by § 41-21-208 or § 41-21-227, the prisoner shall serve the remainder of the term without benefit of parole eligibility or further participation in any of these programs. The department shall have the authority to penalize or punish prisoners who escape from any of the above programs in accordance with department policy.
2. As a prerequisite to any inmate's placement in a program described in subdivision (b)(1), the department shall read and provide the inmate with a copy of subdivision (b)(1). The inmate shall then give written acknowledgement of receipt of the copy and shall signify comprehension of the provisions contained in it. A permanent file, hardcopy or electronic, of these acknowledgements shall be maintained by the department.

Acts 1937, ch. 276, § 13; C. Supp. 1950, § 11818.13 (Williams, § 11843.13); Acts 1961, ch. 289, § 1; 1974, ch. 624, § 9; 1978, ch. 794, § 1; 1979, ch. 359, § 23; T.C.A. (orig. ed.), § 40-3620; Acts 1985, ch. 220, § 1; 1989, ch. 227, §§ 43, 44; 1998, ch. 1049, §§ 24, 25; 2012, ch. 727, § 31.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended subsection (b), shall be fully accomplished on or before January 1, 2013.

Cross-References. Counsel for indigent persons in parole revocation proceedings, Tenn. R. Sup. Ct. 16.

Counsel for indigents, title 40, ch. 14, part 2.

Grant of furloughs to inmates, § 41-21-227.

Interstate compact for supervision of adult offenders, title 40, ch. 28, part 4.

Work within and outside prisons, § 41-21-208.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 32.122, 32.174.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 47; 20 Tenn. Juris., Pardon and Parole, § 8.

Law Reviews.

Criminal Law in Tennessee in 1968 — A Critical Survey (Joseph G. Cook), 36 Tenn. L. Rev. 221.

Attorney General Opinions. Applicability to inmates assigned to work release programs who escape from institution, OAG 97-144 (10/23/97).

NOTES TO DECISIONS

1. Constitutionality.

Application of this T.C.A. § 40-28-123 which imposed substantial additional penalties to defendant's original sentences did not violate the due process, double jeopardy or ex post facto clauses of the Tennessee or United States constitutions, where the penalties imposed were upon a valid conviction for acts committed subsequent to enactment of T.C.A. § 40-28-123(b). Wheeler v. Tennessee Dep't of Correction, 36 S.W.3d 824, 2000 Tenn. App. LEXIS 183 (Tenn. Ct. App. 2000).

2. Effect of Felony on Prior Sentence.

Prisoner who committed robbery while on parole and who was sentenced to serve five years for robbery commencing on date he was delivered to state prison was not entitled to release upon serving maximum time on robbery sentence, since prisoner was compelled to serve balance of prior sentence as result of violation of parole. State ex rel. Kimbrough v. Swafford, 191 Tenn. 588, 235 S.W.2d 589, 1951 Tenn. LEXIS 363 (1951).

Where a parolee was convicted of a felony and the trial court ordered that his sentence under such new conviction should begin upon his delivery to the keeper of the prison, the defendant could not have the constitutionality of this section with respect to its alleged violation of the separation of powers doctrine determined by declaratory judgment in the federal court until such time as he would be entitled to release under the sentence as pronounced by the court under such new conviction. Scruggs v. Henderson, 380 F.2d 981, 1967 U.S. App. LEXIS 5445 (6th Cir. Tenn. 1967).

3. Acceptance of Parole.

Where prisoner who was sentenced prior to the effective date of this section accepted a parole after its effective date, he accepted it subject to all legislative conditions, including the provisions of this section, and it will be presumed that, in accepting such parole, he knew the conditions. State ex rel. York v. Russell, 180 Tenn. 515, 176 S.W.2d 820, 1944 Tenn. LEXIS 316 (1944).

4. Concurrent Sentence.

Where defendant who was on parole pleaded guilty to charge of armed robbery under agreement between his court appointed attorney and the attorney general that he would receive minimum sentence and that this would run concurrently with sentence under which defendant had been paroled, defendant on habeas corpus proceeding was entitled to have his plea set aside and have a new trial since under this section trial judge was powerless to order concurrent sentence. Henderson v. State, 220 Tenn. 520, 419 S.W.2d 176, 1967 Tenn. LEXIS 470 (1967), overruled in part, Summers v. State, 212 S.W.3d 251, 2007 Tenn. LEXIS 15 (Tenn. 2007).

Appellate court reformed judgment in trial court which directed that sentence be served “at the expiration of” a previous sentence for which the defendant was on parole at the time the instant offense was committed, by deleting the words “sentence to run at the expiration of his present sentence,” so that the instant sentence would be served consecutively as a matter of law, in conformity with this section and Tenn. R. Crim. P. 32. State v. Venable, 606 S.W.2d 298, 1980 Tenn. Crim. App. LEXIS 299 (Tenn. Crim. App. 1980).

A subsequent sentence for bank robbery committed while defendant was on a work release program could not be allowed to run concurrent to defendant's preexisting life sentence for murder and was void. Taylor v. Morgan, 909 S.W.2d 17, 1995 Tenn. Crim. App. LEXIS 292 (Tenn. Crim. App. 1995).

5. Consecutive Sentence.

Trial court did not abuse its discretion by ordering defendant's sentence in the instant case to be served consecutively to his parole sentence because it was necessary to protect the public and reasonably related to the severity of the offense of felony murder and aggravated robbery. State v. Watts, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 36 (Tenn. Crim. App. Jan. 19, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 316 (Tenn. May 18, 2017).

Post-conviction court properly denied petitioner post-conviction relief because the trial court did not sentence him illegally; because the judgments were silent regarding the prior sentence for which petitioner was on parole, the sentences were presumed to run consecutively. Shreve v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 436 (Tenn. Crim. App. May 24, 2017).

Post-conviction court properly denied petitioner post-conviction relief because the trial court did not sentence him illegally; although petitioner said at the post-conviction hearing he would not have pleaded guilty if he had known he would not receive credit for the time he served following the parole violation, he did not offer his contention as sworn testimony or establish that the award of credit as a term of the guilty pleas was improper. Shreve v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 436 (Tenn. Crim. App. May 24, 2017).

6. Supervised Release Programs.

By leaving prison for a basketball game in the company of a departmental employee, the prisoner was enjoying the privilege of supervised release into the community. Wheeler v. Tennessee Dep't of Correction, 36 S.W.3d 824, 2000 Tenn. App. LEXIS 183 (Tenn. Ct. App. 2000).

Execution of a signed document by prisoner is a statutory requirement for enrollment in a program discussed in T.C.A. § 40-28-123(b)(1); existence of such a document is persuasive evidence that the signatory was a participant in a program covered by T.C.A. § 40-28-123. Wheeler v. Tennessee Dep't of Correction, 36 S.W.3d 824, 2000 Tenn. App. LEXIS 183 (Tenn. Ct. App. 2000).

7. Habeas Corpus Relief.

An inmate serving a state sentence in federal custody concurrent with a federal sentence was permitted to file for habeas corpus relief, and a trial court should not have dismissed his petition based on jurisdictional grounds; however, since he failed to document his assertion that a state sentence imposed was illegal due to the fact that he was on parole when the offenses were committed, summary dismissal of the petition was proper. Faulkner v. State, 226 S.W.3d 358, 2007 Tenn. LEXIS 370 (Tenn. Apr. 27, 2007).

40-28-124, 40-28-125. [Reserved.]

It is the duty of the board to advise with and make recommendations to the governor with respect to pardons, exonerations and commutations. Any report received from the trial judge or district attorney general will be made a part of the file of the applicant.
The board shall have the district attorney general and trial judge, in whose court the case was tried, notified of the hearing of applications for executive clemency.

Acts 1937, ch. 276, § 18; C. Supp. 1950, § 11818.18 (Williams, § 11843.18); Acts 1961, ch. 93, § 14; 1979, ch. 359, § 24; 1982, ch. 604, § 3; T.C.A. (orig. ed.), § 40-3623; Acts 1989, ch. 227, § 46; 1998, ch. 1049, § 25; 2012, ch. 727, § 34.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended subsection (b), shall be fully accomplished on or before January 1, 2013.

Cross-References. Clemency powers of the governor, title 40, ch. 27, part 1.

40-28-127. Cooperation of prison officials.

The warden of each prison and all officers and employees of each prison and of the board of parole and all other public officials shall at all times cooperate with the board and shall furnish to the board, its officers and employees, information as may be necessary to enable it to perform its functions, and the wardens and other employees shall at all times give the members of the board, its officers and employees, free access to all prisoners confined in the prisons, workhouses and jails of the state.

Acts 1937, ch. 276, § 16; C. Supp. 1950, § 11818.16 (Williams, § 11843.16); T.C.A. (orig. ed.), § 40-3624; Acts 1989, ch. 227, § 47; 1998, ch. 1049, § 24.

40-28-128. Executive pardoning power unabridged.

Nothing in §§ 40-28-101 — 40-28-127 shall be construed in any way as intended to modify or abridge the pardoning power of the governor.

Acts 1937, ch. 276, § 23; C. Supp. 1950, § 11818.20 (Williams, § 11843.23); T.C.A. (orig. ed.), § 40-3625.

Compiler's Notes. Sections 40-28-108 — 40-28-112, 40-28-120, 40-28-124, and 125, referred to in this section, were repealed by Acts 2012, ch. 727.

Cross-References. Clemency powers of the governor, §§ 40-27-101—40-27-108.

Pardoning power of governor, Tenn. Const., art. III, § 6.

40-28-129. Calculation of sentence expiration date and earliest release date.

Notwithstanding any other law to the contrary, the department of correction shall be responsible for calculating the sentence expiration date and the earliest release date of any felony offender sentenced to the department of correction and any felony offender sentenced to confinement in a county jail or workhouse for one (1) or more years.

Acts 1985 (1st Ex. Sess.), ch. 5, § 38; 1998, ch. 1049, § 24; 1999, ch. 516, § 5.

NOTES TO DECISIONS

1. Applicability.

Appellate court exceeded its authority by determining the date the prisoner could be considered for parole because the Department of Correction was solely responsible for calculating a prisoner's release eligibility date under T.C.A. § 40-28-129, and the appellate court's calculation was flawed. Brennan v. Bd. of Parole for Tenn., 512 S.W.3d 871, 2017 Tenn. LEXIS 2 (Tenn. Jan. 10, 2017).

2. Appellate Jurisdiction.

Part 2
Contributions by Parolees, Probationers and Employed Releasees

40-28-201. Parolees, probationers and employed releasees — Contributions required — Arrearages — Records.

1. Except in those cases waived by the director as hardship cases, any person who is placed on parole or any person who is granted suspension of sentence and probation by a court of competent jurisdiction, and who is under the supervision of the department, and based on the person's ability to pay, shall be required to contribute fifteen dollars ($15.00) per month toward the cost of the person's supervision and rehabilitation. The contribution shall be deposited in the department of correction supervision and rehabilitation fund established pursuant to § 40-28-203. This subdivision (a)(1) shall also apply to any probationer or parolee transferred to the state of Tennessee from another state under the supervision of the Interstate Compact for the Supervision of Adult Offenders, compiled in part 4 of this chapter. In addition, any offender who is under the supervision of the department who requests to transfer residence to another state under the Interstate Compact for the Supervision of Adult Offenders shall pay to the department an application fee for the transfer.
2. In addition to the other charges and fees imposed by this section, any person who is under the supervision of the department and is enrolled in an electronic monitoring and tracking supervision program shall be required to contribute funds as the department deems necessary and reasonable to cover the applicable costs of the program. This subdivision (a)(2) shall also apply to any probationer or parolee for violation of a serious offense or sexually violent offense, as defined in § 40-39-202, transferred to the state of Tennessee from another state under the Interstate Compact for the Supervision of Adult Offenders.
3. 1. The department shall make an investigation of the financial and other circumstances of the following persons:
    1. Any person who is placed on parole;
    2. Any person who is granted suspension of sentence and probation by a court of competent jurisdiction; or
    3. Any person who is participating in any program in which the person is permitted in an environment away from the direct, constant, and immediate supervision of the department, whether community-based or otherwise, and who is under the supervision of the department.
  2. Based on the person's ability to pay, the department shall require the person to pay thirty dollars ($30.00) for each month or portion of a month the person remains under the supervision of the department, to the criminal injuries compensation fund established in § 40-24-107, beginning thirty (30) days from the date of suspension of sentence, date of parole, or in the case of an employed releasee, the date of employment. The payment required under this subdivision (a)(3) shall not exceed ten percent (10%) of the offender's net income. In cases of hardship as set forth in § 40-28-202, the department may modify the payment required by this item to an appropriate amount given the nature and magnitude of the hardship.
4. Except in those cases waived by the department of correction as hardship cases, any inmate who is participating in any department of correction program whereby the person is permitted in an environment away from the direct, constant, and immediate supervision of the department of correction, whether community-based or otherwise (the inmate shall be referred to as “employed releasee” in this part), and who is under the supervision of the department, and based on the inmate's ability to pay, shall be required to contribute five dollars ($5.00) per month toward the cost of the inmate's supervision and rehabilitation. The department of correction shall deposit the contribution as departmental revenue of the institution.
5. In addition to the other charges and fees imposed by this section, beginning July 1, 2018, any person who is under the supervision of the department and is enrolled in an electronic monitoring and tracking supervision program shall be required to pay a one-time electronic monitoring initial use fee of twelve dollars ($12.00) if the person has not previously been ordered by a court of this state to use an electronic monitoring or ignition interlock device. All proceeds collected pursuant to this subdivision (a)(5) shall be transmitted to the treasurer for deposit in the electronic monitoring indigency fund, established in § 55-10-419.
1. The sums shall be deducted by the parolee or probationer from the person's monthly net earned income and shall be delivered to the department on or before the fifth day of each month, or as provided in §§ 40-28-203 and 40-28-204 before the tenth day of each month. In the case of an employed releasee, the contributions shall be made through existing revenue deduction procedures.
2. By prior agreement between an employer and employee, an employer may deduct the amount necessary to satisfy the contributions required pursuant to this section, from the monthly earned income of the parolee, probationer or other employed releasee, and remit the amount to the department by the fifth day of each month.
3. The responsibility of assuring the contributions shall remain that of the parolee, probationer or employed releasee.
In the event of more than two (2) months' arrearage or delinquency in making either or both of the contributions, the arrearage or delinquency shall constitute sufficient ground for revocation of the parole, probation or other release program of the person in arrears.
Separate records shall be maintained of those funds contributed toward the cost of a person's supervision and rehabilitation by the department and those funds contributed to the criminal injuries compensation fund.

Acts 1979, ch. 319, § 1; impl. am. Acts 1979, ch. 359, §§ 5, 26; Acts 1980, ch. 836, §§ 1-9; 1982, ch. 605, §§ 1-3; T.C.A., § 40-3630(a); Acts 1984, ch. 752, § 6; 1985, ch. 211, § 1; 1988, ch. 528, §§ 1-4; 1989, ch. 227, § 48; 1995, ch. 497, § 1; 1998, ch. 1049, §§ 24, 66; 2004, ch. 899, § 4; 2005, ch. 149, §§ 1, 2; 2009, ch. 313, § 1; 2009, ch. 531, §§ 16, 17; 2011, ch. 483, § 3; 2012, ch. 727, § 36; 2018, ch. 1046, § 9.

Compiler's Notes. For the Preamble to the act concerning the operation and funding of state government and to fund the state budget for the fiscal years beginning on July 1, 2008, and July 1, 2009, please refer to Acts 2009, ch. 531.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended this section, shall be fully accomplished on or before January 1, 2013.

Acts 2018, ch. 1046, § 12 provided that the act, which amended this section, shall apply to offenses committed on or after July 1, 2018.

Amendments. The 2018 amendment added (a)(5).

Effective Dates. Acts 2018, ch. 1046, § 12. July 1, 2018.

Cross-References. Interstate compact for supervision of adult offenders, title 40, ch. 28, part 4.

Revocation of parole, §§ 40-28-121, 40-28-122, 40-28-123.

Revocation of probation, §§ 40-35-310, 40-35-311.

Serious and Violent Sex Offender Monitoring Pilot Project Act, title 40, chapter 39, part 3.

Law Reviews.

Compensating Violent Crime Victims in the State of Tennessee (Keith Jordan), 20 No. 3 Tenn. B.J. 9 (1984).

NOTES TO DECISIONS

1. Failure to Pay Fine or Restitution.

2. Federal Courts.

Provisions of T.C.A. § 40-28-201 requiring parolees under certain situations to pay towards the cost of his or her supervision and rehabilitation and to pay into the criminal injuries compensation fund were taxes under state law for Tax Injunction Act purposes prohibiting federal courts from interfering with the assessment, levy or collection of any tax under state law where an efficient remedy to challenge such tax would be obtained in the courts of the state. Wright v. McClain, 835 F.2d 143, 1987 U.S. App. LEXIS 16357 (6th Cir. Tenn. 1987).

40-28-202. “Hardship” defined.

As used in § 40-28-201, “hardship” includes, but is not limited to, the following:
1. If a probationer, parolee or employed releasee's sole income is from social security or welfare benefits;
2. If the probationer, parolee or employed releasee has doctor, hospital or medical expenses exceeding twenty-five percent (25%) of total gross monthly income and is not covered by insurance, workers' compensation or any other source of reimbursement;
3. If a probationer, parolee or employed releasee has a certificate from a doctor, whose residence is in Tennessee and is licensed to practice in this state, stating that the person is physically or mentally incapable of working;
4. Any parolee transferred to another state under the supervision of the Interstate Compact for the Supervision of Adult Offenders, compiled as part 4 of this chapter;
5. If a probationer, parolee or employed releasee has an excessive amount of gross monthly income obligated for court ordered expenses such as alimony, child support, etc.;
6. Any person already paying restitution to a victim under a department program shall be exempted from the contributions to the criminal injuries compensation fund but shall not be exempt from contributions to the rehabilitation and supervision fund required by § 40-28-201; and
7. Any person whose income falls below the poverty level according to the latest determination by the United States bureau of the census.
Notwithstanding the provisions of this section, every person placed on probation or granted parole shall pay a minimum of five dollars ($5.00) to the supervision fund, except those individuals claiming a hardship exemption under subdivisions (a)(1), (3) and (4).

Acts 1979, ch. 319, § 1; impl. am. Acts 1979, ch. 359, §§ 5, 26; Acts 1980, ch. 836, §§ 1-9; 1982, ch. 605, §§ 1-3; T.C.A., § 40-3630(d); Acts 1988, ch. 528, § 5; 1989, ch. 227, § 49; 1995, ch. 497, § 3; 1998, ch. 1049, § 24; 2012, ch. 727, § 37.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended subdivision (a)(6), shall be fully accomplished on or before January 1, 2013.

Cross-References. Criminal injuries compensation fund, § 40-24-107.

40-28-203. Department of correction supervision and rehabilitation fund — Collection of funds — Authorized expenditures — Disposition of revenues.

There is established a department of correction supervision and rehabilitation fund.
All funds collected for defraying of the costs of supervision and rehabilitation pursuant to § 40-28-201(a)(1) and (2) shall be paid over to the department before the tenth day of each month for deposit in the fund established by this section.
The purpose of the fund is to promote the safety of the public by ensuring better supervision of individuals released into the community. All the funds shall be withdrawn or expended only for the purpose of employing additional probation and parole personnel, mandatory random drug screening for all persons covered by § 40-28-201(a)(1) and (2), continuing education and training of existing personnel, establishing additional programs whereby an offender may become gainfully employed for the purpose of learning a trade, supporting the person's family and making restitution to the victim, and establishing and providing office and operational supplies for programs to facilitate the inmate's safe and productive return to the general public upon the expiration of the person's parole or probation.
1. Moneys retained in the supervision and rehabilitation fund shall be invested by the state treasurer under appropriate rules and regulations, to the end that adequate funds will be available for the purposes of this section.
2. Revenues that are produced for the supervision and rehabilitation fund shall not revert to the state general fund and shall not be subject to impoundment or allotment reserve, but shall be managed on a revolving no-quarter basis.

Acts 1979, ch. 319, § 1; impl. am. Acts 1979, ch. 359, §§ 5, 26; Acts 1980, ch. 836, §§ 1-9; 1982, ch. 605, §§ 1-3; T.C.A., § 40-3630(b); Acts 1985, ch. 211, § 2; 1989, ch. 227, § 50; 1995, ch. 497, § 2; 1998, ch. 1049, §§ 38, 39; 2005, ch. 149, § 3; 2009, ch. 531, § 18; 2012, ch. 727, § 38.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended this section, shall be fully accomplished on or before January 1, 2013.

40-28-204. Payments to criminal injuries compensation fund.

All funds received pursuant to § 40-28-201 for the criminal injuries compensation fund shall be paid over to the department before the tenth day of each month for deposit in the criminal injuries compensation fund established by § 40-24-107.

Acts 1979, ch. 319, § 1; impl. am. Acts 1979, ch. 359, §§ 5, 26; Acts 1980, ch. 836, §§ 1-9; 1982, ch. 605, §§ 1-3; T.C.A., § 40-3630(c); Acts 1985, ch. 211, § 3; 1998, ch. 1049, § 40; 2012, ch. 727, § 39.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended this section, shall be fully accomplished on or before January 1, 2013.

Cross-References. Criminal injuries compensation fund, § 40-24-107.

40-28-205. Civil recovery of unpaid supervision fees.

1. Notwithstanding any law to the contrary, upon expiration of the term of probation or parole supervision, if any portion of a fee prescribed by § 39-13-705, § 40-28-201, § 40-35-303 or § 40-39-305 remains unpaid and has not been waived by the department or sentencing judge, then the department or its agent may convert the unpaid balance into a civil judgment in accordance with the procedure set forth in this section.
2. Within the twelve-month period following the expiration of the term of probation or parole supervision, the department or its agent may file a certified copy of the parole certificate, probation certificate or other court document that imposes a statutory duty to pay a supervision fee, along with an affidavit certifying the amount of fees that remain unpaid with an appropriate civil court having jurisdiction over the total amount of the unpaid balance.
3. When the department or its agent files a certified copy of the parole certificate, probation certificate or other court document imposing a statutory supervision fee, and the affidavit certifying the unpaid balance with the civil court, the department or its agent shall have the defendant personally served in accordance with the Tennessee Rules of Civil Procedure. The service shall give notice to the defendant of the department's intent to convert the unpaid balance of supervision fees to a civil judgment, include a copy of the documents filed with the court evidencing the duty to pay the supervision fees, and include a statement as to the amount of unpaid fees the department alleges the defendant still owes.
4. Upon being served, the defendant shall be permitted to file an answer in accordance with the Tennessee Rules of Civil Procedure.
1. The department may retain an agent to collect, institute proceedings to collect or establish an in-house collection procedure to collect unpaid supervision fees as provided for in this section. If an agent is used, the department shall utilize state competitive bidding procedures to select and retain the agent.
2. The agent may be paid an amount not exceeding forty percent (40%) of the sums collected as consideration for collecting the unpaid fees.
3. The written contract between the agent and the department shall include a provision specifying whether the agent may institute an action to collect the unpaid supervision fees in a judicial proceeding.

Acts 2008, ch. 1078, § 1; 2012, ch. 727, § 40.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended this section, shall be fully accomplished on or before January 1, 2013.

Part 3
Community Supervision

40-28-301. Definitions.

As used in this part:

“Chief supervision officer” means the correctional administrator for each region of the state or any other person designated by the commissioner;
1. “Community supervision” means:
  1. The placement of a defendant on probation by a court for a specified period during which the sentence is suspended in whole or in part; or
  2. The placement by the board of parole of an individual on parole after release from prison or jail, with conditions imposed by the board for a specified period; and
2. “Community supervision” does not mean community supervision for life imposed pursuant to § 39-13-524;
“Court” means a court of record having original criminal jurisdiction;
“Graduated sanction” means any of a wide range of non-prison offender accountability measures and programs, including, but not limited to, electronic supervision tools; drug and alcohol testing or monitoring; day or evening reporting centers; rehabilitative interventions such as substance abuse or mental health treatment; reporting requirements to probation and parole officers; community service or work crews; and residential treatment facilities;
“Positive reinforcement” means any of a wide range of rewards and incentives, including, but not limited to, awarding certificates of achievement, reducing reporting requirements, removing supervision conditions such as home detention or curfew, or asking the offender to be a mentor to others;
“Probation and parole officer” means a person appointed or employed by the department to supervise individuals placed on community supervision; and
“Supervised individual” means an individual placed on probation by a court or serving a period of parole or post-release supervision from prison or jail for a felony offense.

Acts 2016, ch. 906, § 14.

Code Commission Notes.

Acts 2016, ch. 906, § 14 enacted a new part 7, §§ 40-28-701 — 40-28-706, but the part has been redesignated as part 3, §§ 40-28-301 — 40-28-306, by authority of the Code Commission.

Compiler’s Notes. Acts 2016, ch. 906, § 1 provided that the act, which enacted this section, shall be known and may be cited as the Public Safety Act of 2016.

NOTES TO DECISIONS

1. Constitutionality.

Because T.C.A. §§ 40-28-301 and 40-28-306, which changed how non-criminal or technical violations of probation are handled in Tennessee, remove the discretion of a trial judge in making determinations of logical or legal relevancy and collectively impair the independent operation of the judicial branch of government, they violate the Tennessee Constitution's Separation of Powers Clause and, therefore, cannot be upheld. State v. Price, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 615 (Tenn. Crim. App. Aug. 14, 2018).

40-28-302. Policy on community supervision.

Supervised individuals shall be subject to:

Violation revocation proceedings and possible incarceration for failure to comply with the conditions of supervision when such failure constitutes a significant risk to prior victims of the supervised individual or the community at large and cannot be appropriately managed in the community; or
Sanctions other than revocation as appropriate to the severity of the violation behavior, the risk of future criminal behavior by the offender, and the need for, and availability of, interventions which may assist the offender to remain compliant and crime-free in the community.

Acts 2016, ch. 906, § 14.

Code Commission Notes.

Acts 2016, ch. 906, § 14 enacted a new part 7, §§ 40-28-701 — 40-28-706, but the part has been redesignated as part 3, §§ 40-28-301 — 40-28-306, by authority of the Code Commission.

Compiler’s Notes. Acts 2016, ch. 906, § 1 provided that the act, which enacted this section, shall be known and may be cited as the Public Safety Act of 2016.

40-28-303. System of graduated sanctions.

The department shall adopt a single system of graduated sanctions for violations of the conditions of community supervision. The system shall set forth a menu of presumptive sanctions for the most common types of supervision violations, including, but not limited to: failure to report; failure to pay fines and fees; failure to participate in a required program or service; failure to complete community service; and failure to refrain from the use of alcohol or controlled substances. The system of sanctions shall take into account factors such as the severity of the current violation, the supervised individual's previous criminal record, the number and severity of any previous supervision violations, the supervised individual's assessed risk level, and the extent to which graduated sanctions were imposed for previous violations. The system shall also define positive reinforcements that supervised individuals will receive for compliance with conditions of supervision. The system shall clearly specify as to each type of sanction whether the supervised individual has the option to object and seek administrative review of the sanction.
The department shall establish by policy an administrative process to review and approve or reject, prior to imposition, graduated sanctions that deviate from those prescribed.
The department shall establish by policy an administrative process to review graduated sanctions contested by supervised individuals under § 40-28-305. The review shall be conducted by the chief supervision officer, who shall be impartial and trained to hear cases regarding graduated sanctions for violations of supervision conditions.
The department shall establish and maintain a program of initial and ongoing training regarding the system of graduated sanctions for probation and parole officers.

Acts 2016, ch. 906, § 14.

Code Commission Notes.

Acts 2016, ch. 906, § 14 enacted a new part 7, §§ 40-28-701 — 40-28-706, but the part has been redesignated as part 3, §§ 40-28-301 — 40-28-306, by authority of the Code Commission.

Compiler’s Notes. Acts 2016, ch. 906, § 1 provided that the act, which enacted this section, shall be known and may be cited as the Public Safety Act of 2016.

40-28-304. Conditions of community supervision.

For individuals placed on supervised probation, the judge of the court having jurisdiction over the case shall determine the conditions of community supervision, which shall include as a condition that the department supervising the individual may, in accordance with § 40-28-305, impose graduated sanctions adopted by the department for violations of the conditions of community supervision.

Acts 2016, ch. 906, § 14.

Code Commission Notes.

Acts 2016, ch. 906, § 14 enacted a new part 7, §§ 40-28-701 — 40-28-706, but the part has been redesignated as part 3, §§ 40-28-301 — 40-28-306, by authority of the Code Commission.

Compiler’s Notes. Acts 2016, ch. 906, § 1 provided that the act, which enacted this section, shall be known and may be cited as the Public Safety Act of 2016.

NOTES TO DECISIONS

1. Constitutionality.

Court of Criminal Appeals erred in affirming the trial court's judgments regarding the constitutionality of the Public Safety Act (PSA) of 2016 because the provisions at issue — calling for the Department of Correction (DOC) to impose graduated sanctions on probationers committing certain violations — were not ripe for consideration inasmuch as the notification requirement clearly did not satisfy the prongs of the ripeness doctrine where neither defendant had been accused of violating a condition of his probation nor subjected to a sanction imposed by the DOC for a probation violation, and they were not “immediately deprived” of any judicial review upon being sentenced to probation and their day-to-day activities were not impacted. State v. Price, — S.W.3d —, 2019 Tenn. LEXIS 292 (Tenn. July 22, 2019).

Statutory provision permitting appeal from the manner of service of a sentence conveyed jurisdiction over the trial court's allegedly erroneous failure to include the graduated sanctions in the January 17, 2018 order vacating the prior revocation and reinstating his probation; however, defendant waived any claim regarding the absence of graduated sanctions by failing to raise that issue in the trial court. State v. Mason, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 514 (Tenn. Crim. App. Aug. 23, 2019).

40-28-305. Authority to impose graduated sanctions.

Notwithstanding any rule or law to the contrary, the department may impose graduated sanctions.
A probation and parole officer intending to impose a graduated sanction shall issue to the supervised individual a notice of the intended sanction. The notice shall inform the supervised individual of the violation or violations alleged, the date or dates of the violation or violations, and the graduated sanction to be imposed.
The imposition of a graduated sanction or sanctions by a probation and parole officer must comport with the system of graduated sanctions adopted by the department under § 40-28-303. Upon receipt of the notice, the supervised individual shall immediately accept the sanction or, if permitted under the system of graduated sanctions, object to the sanction or sanctions proposed by the probation and parole officer. The failure of the supervised individual to comply with a sanction shall constitute a violation of probation, parole, or post-release supervision. If the supervised individual objects to the imposition of the sanction or sanctions, when permitted by the system of graduated sanctions, the individual is entitled to an administrative review to be conducted by the department within five (5) days of the issuance of the notice. If the department affirms the recommendation contained in the notice, the sanction or sanctions shall become effective immediately.
1. A notice of a graduated sanction may not be issued for any violation of probation or parole that could warrant an additional, separate felony charge or Class A misdemeanor charge.
2. Notwithstanding subdivision (d)(1), a notice of a graduated sanction may be issued for a positive drug test.
Upon successful completion of a graduated sanction or sanctions, a court shall not revoke the term of community supervision or impose additional sanctions for the same violation. Notwithstanding this subsection (e), a court may consider an individual's supervision and sanctions history when adjudicating subsequent violations.
The department shall regularly provide notice of sanctions imposed upon probationers to the sentencing court and the prosecutor's office for each jurisdiction.
If a probation and parole officer imposes a graduated sanction, the officer shall:
1. Deliver a copy of the sanction to the supervised individual; and
2. Note the date of delivery of the copy in the supervised individual's file.

Acts 2016, ch. 906, § 14.

Code Commission Notes.

Acts 2016, ch. 906, § 14 enacted a new part 7, §§ 40-28-701 — 40-28-706, but the part has been redesignated as part 3, §§ 40-28-301 — 40-28-306, by authority of the Code Commission.

Compiler’s Notes. Acts 2016, ch. 906, § 1 provided that the act, which enacted this section, shall be known and may be cited as the Public Safety Act of 2016.

Cross-References. Penalty for Class A midemeanor, § 40-35-111.

40-28-306. Monitoring graduated sanctions.

The chief supervision officer shall review confinement sanctions recommended by probation and parole officers on a quarterly basis to assess any disparities that may exist among officers, evaluate the effectiveness of the sanction as measured by the supervised individuals' subsequent conduct, and monitor the impact on the department's number and type of revocations for violations of the conditions of supervision.

Acts 2016, ch. 906, § 14.

Code Commission Notes.

Acts 2016, ch. 906, § 14 enacted a new part 7, §§ 40-28-701 — 40-28-706, but the part has been redesignated as part 3, §§ 40-28-301 — 40-28-306, by authority of the Code Commission.

Compiler’s Notes. Acts 2016, ch. 906, § 1 provided that the act, which enacted this section, shall be known and may be cited as the Public Safety Act of 2016.

NOTES TO DECISIONS

1. Constitutionality.

Part 4
Supervision of Adult Offenders

40-28-401. Interstate Compact for Supervision of Adult Offenders.

The governor of this state is authorized and directed to execute a compact on behalf of the state of Tennessee with any of the United States legally joining therein in the form substantially as follows:

ARTICLE I: PURPOSE

The compacting states to this Interstate Compact recognize that each state is responsible for the supervision of adult offenders in the community who are authorized pursuant to the by-laws and rules of this compact to travel across state lines both to and from each compacting state in such a manner as to: track the location of offenders, transfer supervision authority in an orderly and efficient manner, and when necessary return offenders to the originating jurisdictions.

The compacting states also recognize that Congress, by enacting the Crime Control Act, 4 U.S.C. § 112, has authorized and encouraged compacts for cooperative efforts and mutual assistance in the prevention of crime.

It is the purpose of this compact and the Interstate Commission created hereunder, through means of joint and cooperative action among the compacting states: to provide the framework for the promotion of public safety and protect the rights of victims through the control and regulation of the interstate movement of offenders in the community; to provide for the effective tracking, supervision, and rehabilitation of these offenders by the sending and receiving states; and to equitably distribute the costs, benefits and obligations of the compact among the compacting states.

In addition, this compact will: create an Interstate Commission which will establish uniform procedures to manage the movement between states of adults placed under community supervision and released to the community under the jurisdiction of courts, paroling authorities, corrections or other criminal justice agencies which will promulgate rules to achieve the purpose of this compact; ensure an opportunity for input and timely notice to victims and to jurisdictions where defined offenders are authorized to travel or to relocate across state lines; establish a system of uniform data collection, access to information on active cases by authorized criminal justice officials, and regular reporting of compact activities to heads of state councils, state executive, judicial, and legislative branches and criminal justice administrators; monitor compliance with rules governing interstate movement of offenders and initiate interventions to address and correct non-compliance; and coordinate training and education regarding regulations of interstate movement of offenders for officials involved in such activity.

The compacting states recognize that there is no “right” of any offender to live in another state and that duly accredited officers of a sending state may at all times enter a receiving state and there apprehend and retake any offender under supervision subject to the provisions of this compact and by-laws and rules promulgated hereunder.

It is the policy of the compacting states that the activities conducted by the Interstate Commission created herein are the formation of public policies and are therefore public business.

ARTICLE II: DEFINITIONS

As used in this compact, unless the context clearly requires a different construction:

A. “Adult” means both individuals legally classified as adults and juveniles treated as adults by court order, statute, or operation of law.

B. “By-laws” mean those by-laws established by the Interstate Commission for its governance, or for directing or controlling the Interstate Commission's actions or conduct.

C. “Compact administrator” means the individual in each compacting state appointed pursuant to the terms of this compact responsible for the administration and management of the state's supervision and transfer of offenders subject to the terms of this compact, the rules adopted by the Interstate Commission and policies adopted by the State Council under this compact.

D. “Compacting state” means any state which has enacted the enabling legislation for this compact.

E. “Commissioner” means the voting representative of each compacting state appointed pursuant to article III of this compact.

F. “Interstate Commission” means the Interstate Commission for Adult Offender Supervision established by this compact.

G. “Member” means the commissioner of a compacting state or designee, who shall be a person officially connected with the commissioner.

H. “Non-compacting state” means any state which has not enacted the enabling legislation for this compact.

I. “Offender” means an adult placed under, or subject, to supervision as the result of the commission of a criminal offense and released to the community under the jurisdiction of courts, paroling authorities, corrections, or other criminal justice agencies.

J. “Person” means any individual, corporation, business enterprise, or other legal entity, either public or private.

K. “Rules” means acts of the Interstate Commission, duly promulgated pursuant to article VII of this compact, substantially affecting interested parties in addition to the Interstate Commission, which shall have the force and effect of law in the compacting states.

L. “State” means a state of the United States, the District of Columbia and any other territorial possessions of the United States.

M. “State Council” means the resident members of the State Council for Interstate Adult Offender Supervision created by each state under article III of this compact.

ARTICLE III: THE COMPACT COMMISSION

A. The compacting states hereby create the “Interstate Commission for Adult Offender Supervision.” The Interstate Commission shall be a body corporate and joint agency of the compacting states. The Interstate Commission shall have all the responsibilities, powers and duties set forth herein, including the power to sue and be sued, and such additional powers as may be conferred upon it by subsequent action of the respective legislatures of the compacting states in accordance with the terms of this compact.

B. The Interstate Commission shall consist of commissioners selected and appointed by resident members of a State Council for Interstate Adult Offender Supervision for each state. While each member state may determine the membership of its own State Council, its membership must include at least one representative from the legislative, judicial, and executive branches of government, victims groups and compact administrators. Each State Council shall appoint as its commissioner the compact administrator from that state to serve on the Interstate Commission in such capacity under or pursuant to applicable law of the member state. Each compacting state retains the right to determine the qualifications of the compact administrator who shall be appointed by the State Council or by the governor in consultation with the legislature and the judiciary.

In addition to appointment of its commissioner to the Interstate Commission, each State Council shall exercise oversight and advocacy concerning its participation in Interstate Commission activities and other duties as may be determined by each member state, including but not limited to, development of policy concerning operations and procedures of the compact within that state.

C. In addition to the commissioners who are the voting representatives of each state, the Interstate Commission shall include individuals who are not commissioners but who are members of interested organizations; such non-commissioner members must include a member of the national organizations of governors, legislators, state chief justices, attorneys general and crime victims. All non-commissioner members of the Interstate Commission shall be ex-officio (nonvoting) members. The Interstate Commission may provide in its by-laws for such additional, ex-officio, nonvoting members as it deems necessary.

D. Each compacting state represented at any meeting of the Interstate Commission is entitled to one vote. A majority of the compacting states shall constitute a quorum for the transaction of business, unless a larger quorum is required by the by-laws of the Interstate Commission.

E. The Interstate Commission shall meet at least once each calendar year. The chairperson may call additional meetings and, upon the request of twenty-seven (27) or more compacting states, shall call additional meetings. Public notice shall be given of all meetings and meetings shall be open to the public.

F. The Interstate Commission shall establish an executive committee which shall include commission officers, members and others as shall be determined by the by-laws. The executive committee shall have the power to act on behalf of the Interstate Commission during periods when the Interstate Commission is not in session, with the exception of rulemaking and/or amendment to the compact. The executive committee oversees the day-to-day activities managed by the executive director and Interstate Commission staff; administers enforcement and compliance with the provisions of the compact, its by-laws and as directed by the Interstate Commission and performs other duties as directed by the Interstate Commission or set forth in the by-laws.

ARTICLE IV: POWERS AND DUTIES OF THE INTERSTATE COMMISSION

The Interstate Commission shall have the following powers:

1. To adopt a seal and suitable By-laws governing the management and operation of the Interstate Commission.

2. To promulgate rules which shall have the force and effect of statutory law and shall be binding in the compacting states to the extent and in the manner provided in this compact.

3. To oversee, supervise and coordinate the interstate movement of offenders subject to the terms of this compact and any By-laws adopted and rules promulgated by the Compact Commission.

4. To enforce compliance with compact provisions, Interstate Commission rules, and by-laws, using all necessary and proper means, including but not limited to, the use of judicial process.

5. To establish and maintain offices.

6. To purchase and maintain insurance and bonds.

7. To borrow, accept, or contract for services of personnel, including, but not limited to, members and their staffs.

8. To establish and appoint committees and hire staff which it deems necessary for the carrying out of its functions including, but not limited to, an executive committee as required by article III which shall have the power to act on behalf of the Interstate Commission in carrying out its powers and duties hereunder.

9. To elect or appoint such officers, attorneys, employees, agents, or consultants, and to fix their compensation, define their duties and determine their qualifications; and to establish the Interstate Commission's personnel policies and programs relating to, among other things, conflicts of interest, rates of compensation, and qualifications of personnel.

10. To accept any and all donations and grants of money, equipment, supplies, materials, and services, and to receive, utilize, and dispose of same.

11. To lease, purchase, accept contributions or donations of, or otherwise to own, hold, improve or use any property, real, personal, or mixed.

12. To sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property, real, personal or mixed.

13. To establish a budget and make expenditures and levy dues as provided in article IX of this compact.

14. To sue and be sued.

15. To provide for dispute resolution among compacting states.

16. To perform such functions as may be necessary or appropriate to achieve the purposes of this compact.

17. To report annually to the legislatures, governors, judiciary, and state councils of the compacting states concerning the activities of the Interstate Commission during the preceding year. Such reports shall also include any recommendations that may have been adopted by the Interstate Commission.

18. To coordinate education, training and public awareness regarding the interstate movement of offenders for officials involved in such activity.

19. To establish uniform standards for the reporting, collecting, and exchanging of data.

ARTICLE V: ORGANIZATION AND OPERATION OF THE INTERSTATE COMMISSION

Section A. By-laws

1. The Interstate Commission shall, by a majority of the members, within 12 months of the first Interstate Commission meeting, adopt by-laws to govern its conduct as may be necessary or appropriate to carry out the purposes of the compact, including, but not limited to:

a. Establishing the fiscal year of the Interstate Commission;

b. Establishing an executive committee and such other committees as may be necessary;

c. Providing reasonable standards and procedures: (i) for the establishment of committees, and (ii) governing any general or specific delegation of any authority or function of the Interstate Commission;

d. Providing reasonable procedures for calling and conducting meetings of the Interstate Commission, and ensuring reasonable notice of each such meeting;

e. Establishing the titles and responsibilities of the officers of the Interstate Commission;

f. Providing reasonable standards and procedures for the establishment of the personnel policies and programs of the Interstate Commission. Notwithstanding any civil service or other similar laws of any compacting state, the by-laws shall exclusively govern the personnel policies and programs of the Interstate Commission;

g. Providing a mechanism for winding up the operations of the Interstate Commission and the equitable return of any surplus funds that may exist upon the termination of the compact after the payment and/or reserving of all of its debts and obligations;

h. Providing transition rules for “start up” administration of the compact; and

i. Establishing standards and procedures for compliance and technical assistance in carrying out the compact.

Section B. Officers and Staff

1. The Interstate Commission shall, by a majority of the members, elect from among its members a chairperson and a vice-chairperson, each of whom shall have such authorities and duties as may be specified in the by-laws. The chairperson or, in his or her absence or disability, the vice-chairperson, shall preside at all meetings of the Interstate Commission. The officers so elected shall serve without compensation or remuneration from the Interstate Commission; PROVIDED THAT, subject to the availability of budgeted funds, the officers shall be reimbursed for any actual and necessary costs and expenses incurred by them in the performance of their duties and responsibilities as officers of the Interstate Commission.

2. The Interstate Commission shall, through its executive committee, appoint or retain an executive director for such period, upon such terms and conditions and for such compensation as the Interstate Commission may deem appropriate. The executive director shall serve as secretary to the Interstate Commission, and hire and supervise such other staff as may be authorized by the Interstate Commission, but shall not be a member.

Section C. Corporate Records of the Interstate Commission

The Interstate Commission shall maintain its corporate books and records in accordance with the by-laws.

Section D. Qualified Immunity, Defense and Indemnification

1. The members, officers, executive director and employees of the Interstate Commission shall be immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused or arising out of any actual or alleged act, error or omission that occurred within the scope of Interstate Commission employment, duties or responsibilities; PROVIDED, that nothing in this paragraph shall be construed to protect any such person from suit and/or liability for any damage, loss, injury or liability caused by the intentional or willful and wanton misconduct of any such person.

2. The Interstate Commission shall defend the commissioner of a compacting state, or his or her representatives or employees, or the Interstate Commission's representatives or employees, in any civil action seeking to impose liability, arising out of any actual or alleged act, error or omission that occurred within the scope of Interstate Commission employment, duties or responsibilities, or that the defendant had a reasonable basis for believing occurred within the scope of Interstate Commission employment, duties or responsibilities; PROVIDED, that the actual or alleged act, error or omission did not result from intentional wrongdoing on the part of such person.

3. The Interstate Commission shall indemnify and hold the commissioner of a compacting state, the appointed designee or employees, or the Interstate Commission's representatives or employees, harmless in the amount of any settlement or judgment obtained against such persons arising out of any actual or alleged act, error or omission that occurred within the scope of Interstate Commission employment, duties or responsibilities, or that such persons had a reasonable basis for believing occurred within the scope of Interstate Commission employment, duties or responsibilities, provided, that the actual or alleged act, error or omission did not result from gross negligence or intentional wrongdoing on the part of such person.

ARTICLE VI: ACTIVITIES OF THE INTERSTATE COMMISSION

1. The Interstate Commission shall meet and take such actions as are consistent with the provisions of this compact.

2. Except as otherwise provided in this compact and unless a greater percentage is required by the by-laws, in order to constitute an act of the Interstate Commission, such act shall have been taken at a meeting of the Interstate Commission and shall have received an affirmative vote of a majority of the members present.

3. Each member of the Interstate Commission shall have the right and power to cast a vote to which that compacting state is entitled and to participate in the business and affairs of the Interstate Commission. A member shall vote in person on behalf of the state and shall not delegate a vote to another member state. However, a State Council shall appoint another authorized representative, in the absence of the commissioner from that state, to cast a vote on behalf of the member state at a specified meeting. The by-laws may provide for members' participation in meetings by telephone or other means of telecommunication or electronic communication. Any voting conducted by telephone, or other means of telecommunication or electronic communication shall be subject to the same quorum requirements of meetings where members are present in person.

4. The Interstate Commission shall meet at least once during each calendar year. The chairperson of the Interstate Commission may call additional meetings at any time and, upon the request of a majority of the members, shall call additional meetings.

5. The Interstate Commission's by-laws shall establish conditions and procedures under which the Interstate Commission shall make its information and official records available to the public for inspection or copying. The Interstate Commission may exempt from disclosure any information or official records to the extent they would adversely affect personal privacy rights or proprietary interests. In promulgating such rules, the Interstate Commission may make available to law enforcement agencies records and information otherwise exempt from disclosure, and may enter into agreements with law enforcement agencies to receive or exchange information or records subject to non-disclosure and confidentiality provisions.

6. Public notice shall be given of all meetings and all meetings shall be open to the public, except as set forth in the rules or as otherwise provided in the compact. The Interstate Commission shall promulgate rules consistent with the principles contained in the “Government in Sunshine Act,” 5 U.S.C. Section 552(b), as may be amended. The Interstate Commission and any of its committees may close a meeting to the public where it determines by two-thirds (2/3) vote that an open meeting would be likely to: a. relate solely to the Interstate Commission's internal personnel practices and procedures; b. disclose matters specifically exempted from disclosure by statute; c. disclose trade secrets or commercial or financial information which is privileged or confidential; d. involve accusing any person of a crime, or formally censuring any person; e. disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy; f. disclose investigatory records compiled for law enforcement purposes; g. disclose information contained in or related to examination, operating or condition reports prepared by, or on behalf of or for the use of, the Interstate Commission with respect to a regulated entity for the purpose of regulation or supervision of such entity; h. disclose information, the premature disclosure of which would significantly endanger the life of a person or the stability of a regulated entity; i. specifically relate to the Interstate Commission's issuance of a subpoena, or its participation in a civil action or proceeding.

7. For every meeting closed pursuant to this provision, the Interstate Commission's chief legal officer shall publicly certify that, in his or her opinion, the meeting may be closed to the public, and shall reference each relevant exemptive provision. The Interstate Commission shall keep minutes which shall fully and clearly describe all matters discussed in any meeting and shall provide a full and accurate summary of any actions taken, and the reasons therefore, including a description of each of the views expressed on any item and the record of any roll call vote (reflected in the vote of each member on the question). All documents considered in connection with any action shall be identified in such minutes.

8. The Interstate Commission shall collect standardized data concerning the interstate movement of offenders as directed through its by-laws and rules which shall specify the data to be collected, the means of collection and data exchange and reporting requirements.

ARTICLE VII: RULEMAKING FUNCTIONS OF THE INTERSTATE COMMISSION

1. The Interstate Commission shall promulgate rules in order to effectively and efficiently achieve the purposes of the compact including transition rules governing administration of the compact during the period in which it is being considered and enacted by the states.

2. Rulemaking shall occur pursuant to the criteria set forth in this article and the by-laws and rules adopted pursuant thereto. Such rulemaking shall substantially conform to the principles of the Federal Administrative Procedure Act, 5 U.S.C. Section 551 et seq., and the Federal Advisory Committee Act, 5 U.S.C. Appx., Section 1 et seq., as may be amended (hereinafter “APA”).

3. All rules and amendments shall become binding as of the date specified in each rule or amendment.

4. If a majority of the legislatures of the compacting states rejects a rule, by enactment of a statute or resolution in the same manner used to adopt the compact, then such rule shall have no further force and effect in any compacting state.

5. When promulgating a rule, the Interstate Commission shall: a. publish the proposed Rule stating with particularity the text of the rule which is proposed and the reason for the proposed rule; b. allow persons to submit written data, facts, opinions and arguments, which information shall be publicly available; c. provide an opportunity for an informal hearing; and d. promulgate a final rule and its effective date, if appropriate, based on the rulemaking record.

6. Not later than sixty (60) days after a rule is promulgated, any interested person may file a petition in the United States District Court for the District of Columbia or in the federal district court where the Interstate Commission's principal office is located for judicial review of such rule. If the court finds that the Interstate Commission's action is not supported by substantial evidence, (as defined in the APA), in the rulemaking record, the court shall hold the rule unlawful and set it aside.

7. Subjects to be addressed within twelve (12) months after the first meeting must at a minimum include:

a. Notice to victims and opportunity to be heard;

b. Offender registration and compliance;

c. Violations/returns;

d. Transfer procedures and forms;

e. Eligibility for transfer;

f. Collection of restitution and fees from offenders;

g. Data collection and reporting;

h. The level of supervision to be provided by the receiving state;

i. Transition rules governing the operation of the compact and the Interstate Commission during all or part of the period between the effective date of the compact and the date on which the last eligible state adopts the compact; and

j. Mediation, arbitration and dispute resolution.

The existing rules governing the operation of the previous compact superseded by this part shall be null and void twelve (12) months after the first meeting of the Interstate Commission created hereunder.

8. Upon determination by the Interstate Commission that an emergency exists, it may promulgate an emergency rule which shall become effective immediately upon adoption, provided that the usual rulemaking procedures provided hereunder shall be retroactively applied to such rule as soon as reasonably possible, in no event later than ninety (90) days after the effective date of the Rule.

ARTICLE VIII: OVERSIGHT, ENFORCEMENT, AND DISPUTE RESOLUTION BY THE INTERSTATE COMMISSION

Section A. Oversight

1. The Interstate Commission shall oversee the interstate movement of adult offenders in the compacting states and shall monitor such activities being administered in non-compacting states which may significantly affect compacting states.

2. The courts and executive agencies in each compacting state shall enforce this compact and shall take all actions necessary and appropriate to effectuate the compact's purposes and intent. In any judicial or administrative proceeding in a compacting state pertaining to the subject matter of this compact which may affect the powers, responsibilities or actions of the Interstate Commission, the Interstate Commission shall be entitled to receive all service of process in any such proceeding, and shall have standing to intervene in the proceeding for all purposes.

Section B. Dispute Resolution

1. The compacting states shall report to the Interstate Commission on issues or activities of concern to them, and cooperate with and support the Interstate Commission in the discharge of its duties and responsibilities.

2. The Interstate Commission shall attempt to resolve any disputes or other issues which are subject to the compact and which may arise among compacting states and non-compacting states.

3. The Interstate Commission shall enact a by-law or promulgate a rule providing for both mediation and binding dispute resolution for disputes among the compacting states.

Section C. Enforcement

The Interstate Commission, in the reasonable exercise of its discretion, shall enforce the provisions of this compact using any or all means set forth in article XI, section B, of this compact.

ARTICLE IX: FINANCE

1. The Interstate Commission shall pay or provide for the payment of the reasonable expenses of its establishment, organization and ongoing activities.

2. The Interstate Commission shall levy on and collect an annual assessment from each compacting state to cover the cost of the internal operations and activities of the Interstate Commission and its staff which must be in a total amount sufficient to cover the Interstate Commission's annual budget as approved each year. The aggregate annual assessment amount shall be allocated based upon a formula to be determined by the Interstate Commission, taking into consideration the population of the state and the volume of interstate movement of offenders in each compacting state and shall promulgate a rule binding upon all compacting states which governs such assessment.

3. The Interstate Commission shall not incur any obligations of any kind prior to securing the funds adequate to meet the same; nor shall the Interstate Commission pledge the credit of any of the compacting states, except by and with the authority of the compacting state.

4. The Interstate Commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the Interstate Commission shall be subject to the audit and accounting procedures established under its by-laws. However, all receipts and disbursements of funds handled by the Interstate Commission shall be audited yearly by a certified or licensed public accountant and the report of the audit shall be included in and become part of the annual report of the Interstate Commission.

ARTICLE X: COMPACTING STATES, EFFECTIVE DATE AND AMENDMENT

1. Any state, as defined in article II of this compact, is eligible to become a compacting state.

2. The compact shall become effective and binding upon legislative enactment of the Compact into law by no less than thirty-five (35) of the states. The initial effective date shall be the later of July 1, 2001, or upon enactment into law by the thirty-fifth jurisdiction. Thereafter it shall become effective and binding, as to any other compacting state, upon enactment of the compact into law by that state. The governors of non-member states or their designees will be invited to participate in Interstate Commission activities on a nonvoting basis prior to adoption of the compact by all states and territories of the United States.

3. Amendments to the compact may be proposed by the Interstate Commission for enactment by the compacting states. No amendment shall become effective and binding upon the Interstate Commission and the compacting sates unless and until it is enacted into law by unanimous consent of the compacting states.

ARTICLE XI: WITHDRAWAL, DEFAULT, TERMINATION, AND JUDICIAL ENFORCEMENT

Section A. Withdrawal

1. Once effective, the compact shall continue in force and remain binding upon each and every compacting state; PROVIDED, that a compacting state may withdraw from the compact (withdrawing state) by enacting a statute specifically repealing the statute which enacted the compact into law.

2. The effective date of withdrawal is the effective date of the repeal.

3. The withdrawing state shall immediately notify the chairperson of the Interstate Commission in writing upon the introduction of legislation repealing this compact in the withdrawing state.

4. The Interstate Commission shall notify the other compacting states of the withdrawing state's intent to withdraw within sixty (60) days of its receipt thereof.

5. The withdrawing state is responsible for all assessments, obligations and liabilities incurred through the effective date of withdrawal, including any obligations, the performance of which extend beyond the effective date of withdrawal.

6. Reinstatement following withdrawal of any compacting state shall occur upon the withdrawing state reenacting the compact or upon such later date as determined by the Interstate Commission.

Section B. Default

1. If the Interstate Commission determines that any compacting state has at any time defaulted (defaulting state) in the performance of any of its obligations or responsibilities under this compact, the by-laws or any duly promulgated rules, the Interstate Commission may impose any or all of the following penalties:

a. Fines, fees and costs in such amounts as are deemed to be reasonable as fixed by the Interstate Commission;

b. Remedial training and technical assistance as directed by the Interstate Commission;

c. Suspension and termination of membership in the compact. Suspension shall be imposed only after all other reasonable means of securing compliance under the by-laws and rules have been exhausted. Immediate notice of suspension shall be given by the Interstate Commission to the governor, the chief justice or chief judicial officer of the state; the majority and minority leaders of the defaulting state's legislature, and the State Council. The grounds for default include, but are not limited to, failure of a compacting state to perform such obligations or responsibilities imposed upon it by this compact, Interstate Commission by-laws, or duly promulgated rules. The Interstate Commission shall immediately notify the defaulting state in writing of the penalty imposed by the Interstate Commission on the defaulting state pending a cure of the default. The Interstate Commission shall stipulate the conditions and the time period within which the defaulting state must cure its default. If the defaulting state fails to cure the default within the time period specified by the Interstate Commission, in addition to any other penalties imposed herein, the defaulting state may be terminated from the compact upon an affirmative vote of a majority of the compacting states and all rights, privileges and benefits conferred by this compact shall be terminated from the effective date of suspension.

2. Within sixty (60) days of the effective date of termination of a defaulting state, the Interstate Commission shall notify the governor, the chief justice or chief judicial officer and the majority and minority leaders of the defaulting state's legislature and the State Council of such termination.

3. The defaulting state is responsible for all assessments, obligations and liabilities incurred through the effective date of termination including any obligations, the performance of which extends beyond the effective date of termination.

4. The Interstate Commission shall not bear any costs relating to the defaulting state unless otherwise mutually agreed upon between the Interstate Commission and the defaulting state.

5. Reinstatement following termination of any compacting state requires both a reenactment of the compact by the defaulting state and the approval of the Interstate Commission pursuant to the rules.

Section C. Judicial Enforcement

The Interstate Commission may, by majority vote of the members, initiate legal action in the United States District Court for the District of Columbia or, at the discretion of the Interstate Commission, in the federal district court where the Interstate Commission has its offices to enforce compliance with the provisions of the compact, its duly promulgated rules and by-laws, against any compacting state in default. In the event judicial enforcement is necessary the prevailing party shall be awarded all costs of such litigation including reasonable attorneys fees.

Section D. Dissolution of Compact

1. The compact dissolves effective upon the date of the withdrawal or default of the compacting state which reduces membership in the compact to one compacting state.

2. Upon the dissolution of this compact, the compact becomes null and void and shall be of no further force or effect, and the business and affairs of the Interstate Commission shall be wound up and any surplus funds shall be distributed in accordance with the by-laws.

ARTICLE XII: SEVERABILITY AND CONSTRUCTION

1. The provisions of this compact shall be severable, and if any phrase, clause, sentence or provision is deemed unenforceable, the remaining provisions of the compact shall be enforceable.

2. The provisions of this compact shall be liberally construed to effectuate its purposes.

ARTICLE XIII: BINDING EFFECT OF COMPACT AND OTHER LAWS

Section A. Other Laws

1. Nothing herein prevents the enforcement of any other law of a compacting state that is not inconsistent with this compact.

2. All compacting states' laws conflicting with this compact are superseded to the extent of the conflict.

Section B.

1. All lawful actions of the Interstate Commission, including all rules and by-laws promulgated by the Interstate Commission, are binding upon the compacting states.

2. All agreements between the Interstate Commission and the compacting states are binding in accordance with their terms.

3. Upon the request of a party to a conflict over meaning or interpretation of Interstate Commission actions, and upon a majority vote of the compacting states, the Interstate Commission may issue advisory opinions regarding such meaning or interpretation.

4. In the event any provision of this compact exceeds the constitutional limits imposed on the legislature of any compacting state, the obligations, duties, powers or jurisdiction sought to be conferred by such provision upon the Interstate Commission shall be ineffective and such obligations, duties, powers or jurisdiction shall remain in the compacting state and shall be exercised by the agency thereof to which such obligations, duties, powers or jurisdiction are delegated by law in effect at the time this compact becomes effective.

Acts 2002, ch. 805, § 2.

Compiler's Notes. Former part 4, §§ 40-28-401 — 40-28-409 (Acts 1939, ch. 80, § 1; C. Supp. 1950, § 11843.1 (Williams, § 11843.24); Acts 1955, ch. 299, § 1; T.C.A. (orig. ed.), §§ 40-3626 — 40-3629; Acts 1988, ch. 504, § 3; 1997, ch. 288, § 1; 1997, ch. 289, § 1; 1997, ch. 457, § 1; 1997, ch. 458, § 1; 1998, ch. 1049, §§ 23, 24), concerning transfers of out-of-state supervision for convicted offenders, was repealed, effective the later of July 1, 2002 or upon enactment by no less than thirty five (35) states, by Acts 2002, ch. 805, § 2, which also enacted new § 40-28-401, effective the later of July 1, 2002 or upon enactment by no less than thirty five (35) states. As of July 2003, thirty five (35) states had approved the Interstate Compact for Supervision of Adult Offenders.

The Interstate Compact for Supervision of Adult Offenders, created by this section, terminates June 30, 2026. See §§ 4-29-112, 4-29-247.

Cross-References. Confidentiality of public records, § 10-7-504.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 2.41, 2.72.

40-28-402. Council for interstate adult offender supervision.

The governor shall establish by an executive order the following:
1. The initial composition and terms of the Tennessee council for interstate adult offender supervision required by article III, paragraph B, of the Interstate Compact for Supervision of Adult Offenders. Members will be appointed by the governor to those positions, except that any positions representing the legislative branch shall be made jointly by the speaker of the house of representatives and the speaker of the senate and any positions representing the judicial branch shall be made by the chief justice of the Tennessee supreme court;
2. The qualifications and terms of the compact administrator required by article II, paragraph C, of that compact shall be determined by the state council; and
3. Any other matters necessary for the implementation of the compact at the time it becomes effective.
Except as provided by subdivisions (a)(1) and (2), the department of correction may promulgate any rules and regulations necessary to implement and administer the compact after it goes into effect.

Acts 2002, ch. 805, § 3; 2012, ch. 727, § 41.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended subsection (b), shall be fully accomplished on or before January 1, 2013.

40-28-403. Interstate compact for adult supervision registry.

The department of correction shall maintain a database consisting of a registry and associated information of those persons who have been placed on probation or parole in another state but are residing in Tennessee pursuant to the compact for out-of-state supervision, compiled in this part. The registry shall include, at a minimum, the name of the offender and, for each probationer or parolee approved for residence in this state under the interstate compact after May 30, 1997, the offender's photograph. The database shall be placed and maintained on the state of Tennessee’s internet website.

Acts 2012, ch. 727, § 42.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which enacted this section, shall be fully accomplished on or before January 1, 2013.

Part 5
Open Parole Hearings Act

40-28-501. Short title.

This part shall be known and may be cited as the “Open Parole Hearings Act.”

Acts 1993, ch. 336, § 1.

Attorney General Opinions. Parole grant hearings may be conducted by the use of two way video conferencing, OAG 05-175 (12/13/05).

40-28-502. Applicable requirements.

The following requirements apply to parole board hearings:
1. In accordance with title 8, chapter 44, part 1, parole hearings and parole revocation hearings shall be open to the public, except as provided in subsection (b); and
2. The vote of each board member on each formal action shall be recorded. Formal actions include, but are not limited to, the granting or denial of parole, the revocation of parole or any action taken under subsection (b).
The following exceptions and limitations apply:
1. The board of parole may restrict the number of individuals allowed to attend parole or parole revocation hearings in accordance with physical limitations or security requirements of the hearing facilities; and
2. The board may deny admission or continued attendance at parole or parole revocation hearings to individuals who:
  1. Threaten or present a danger to the security of the institution in which the hearing is being held;
  2. Threaten or present a danger to other attendees or participants; or
  3. Disrupt the hearing.

Acts 1993, ch. 336, § 2; 1998, ch. 1049, §§ 24, 66.

NOTES TO DECISIONS

1. Parole Decisions.

The requirements of T.C.A. § 40-28-502 applicable to parole hearings do not apply to the procedure of the former board of paroles in making parole decisions. Arnold v. Tennessee Bd. of Paroles, 956 S.W.2d 478, 1997 Tenn. LEXIS 533 (Tenn. 1997).

40-28-503. Attendance policies — Standard victim notification form.

The board shall establish a policy governing attendance at board hearings and submission and use of victim impact statements. Copies of the policy shall be available upon request. The policy shall govern:
1. The requirement that those requesting notification of parole and parole revocation hearings keep the board advised of their current addresses and telephone numbers;
2. Instructions for attending and participating in parole and parole revocation hearings;
3. The limitations on attendance as set forth in § 40-28-502;
4. Reasonable limitations on oral presentations; and
5. Information about board discretion to investigate victim impact statements.
The board shall establish a standard victim notification form. The board shall distribute copies of the form to the victim witness coordinator in each judicial district for the state who shall make copies of the form available to the appropriate persons.

Acts 1993, ch. 336, § 3.

Cross-References. Rights of crime victims, notification, § 40-38-103.

Victim impact statements, title 40, ch. 38, part 2.

Victim-witness coordinator, § 8-7-206.

NOTES TO DECISIONS

1. Notification of Victim's Family.

Letter from attorney of victim's family requesting that notice of parole hearing be sent to him was effective to furnish a new address for the family in care of the attorney. Daniels v. Traughber, 984 S.W.2d 918, 1998 Tenn. App. LEXIS 315 (Tenn. Ct. App. 1998).

40-28-504. Victim impact statements.

The board shall receive and consider victim impact statements.
Written victim impact statements shall not be made available to the public and shall be considered confidential.
Assertions made in a victim impact statement may be investigated and verified by the board.

Acts 1993, ch. 336, § 4.

Cross-References. Confidentiality of public records, § 10-7-504.

Victim impact statements, title 40, ch. 38, part 2.

NOTES TO DECISIONS

1. Ex Post Facto Clause.

Retroactively applying requirements to consider victim input at parole hearings was no ex post facto violation because the requirements posed an insignificant risk of increased punishment, as a statute requiring the Tennessee Board of Probation and Parole to consider such input, and a constitutional provision letting victims attend parole hearings were procedural and did not determine parole suitability. York v. Tenn. Bd. of Parole, 502 S.W.3d 783, 2016 Tenn. App. LEXIS 269 (Tenn. Ct. App. Apr. 19, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 572 (Tenn. Aug. 18, 2016).

Changes in the law concerning victim input in the parole process did not violate the ex post facto clause of the federal and State constitutions because the parole standards had not changed as applied to the inmate; the Tennessee Board of Paroles had always been required to consider the seriousness of the offense in determining a prisoner's parole eligibility. Smith v. Tenn. Bd. of Paroles, — S.W.3d —, 2019 Tenn. App. LEXIS 364 (Tenn. Ct. App. July 25, 2019).

40-28-505. Parole.

Within ninety (90) days of receipt by the department of correction of a valid judgment of conviction, the department shall notify the victim witness coordinator of the county of conviction of the currently scheduled parole hearing date when the inmate will be eligible for parole consideration.
At least thirty (30) days prior to a scheduled parole hearing and three (3) days prior to a parole revocation hearing conducted pursuant to § 40-28-122, the board of parole shall send a notice of the date and place of the hearing to the following individuals:
1. The trial judge for the court in which the conviction occurred, or the trial judge's successor;
2. The district attorney general in the county in which the crime was prosecuted;
3. The sheriff of the county in which the crime was committed; and
4. The victim or the victim's representative who has requested notification of the date and place of the scheduled hearing or notice of the board's final decision. However, at any time, the victim or victim's representative may withdraw the request for notice by sending the board a written notarized statement that the request for notice is withdrawn or, if the victim or victim's representative is registered with the state's electronic victim notification system, by cancelling that registration in the system.
No later than thirty (30) days after a parole or parole revocation decision has been finalized, the board shall send notice of its decision to those required to receive notice under subsection (b), together with notice that any victim whom the board failed to notify as required in subsection (b) has the opportunity to have a written victim impact statement considered by the board, pursuant to subsection (d).
The following remedies apply if there is a failure to provide the required advance notice:
1. Prior to a parole or parole revocation hearing, a party to whom the board failed to provide the notice required in subsection (b) may request the board to postpone the scheduled hearing. Upon that request, the board may, for just cause, postpone the scheduled parole or parole revocation hearing in order to provide a reasonable opportunity for the party to attend the hearing and, if that party is a victim, to submit a victim statement; and
2. If within fifteen (15) days after a parole or a parole revocation decision has been finalized, the board receives a written victim impact statement from a party to whom the board failed to provide the notice required in subsection (b), the board shall consider the statement. If the board finds that the victim impact statement warrants a new hearing, it shall schedule the hearing, subject to all notification requirements under subsection (b).
Any notice required to be provided to the victim or victim's representative by this section shall be mailed to the last known address of the victim or the victim's representative unless the victim or victim's representative is registered with the state's electronic victim notification system, in which case the notice shall be communicated to the victim or victim's representative by the method or methods indicated by the registration in the system. It is the responsibility of the victim or victim's representative to provide the board a current mailing address.
This section shall apply only to an inmate who has received a sentence of two (2) or more years.
Any notice of an inmate's release on parole required to be provided to the victim or the victim's representative shall include the proposed county of residence of the inmate.
1. Any identifying information concerning a crime victim or a crime victim's representative who has been notified or requested that notification be provided to the victim or the victim's representative pursuant to this section shall be confidential.
2. For purposes of subdivision (h)(1), “identifying information” means the name, home and work addresses, telephone numbers and social security number of the person being notified or requesting that notification be provided.

Acts 1993, ch. 336, § 5; 1997, ch. 489, § 1; 1998, ch. 1049, § 24; 1999, ch. 127, § 1; 1999, ch. 516, § 3; 2001, ch. 53, §§ 1, 2; 2006, ch. 666, § 3; 2009, ch. 176, § 2; 2018, ch. 598, §§ 1, 2.

Amendments. The 2018 amendment rewrote (b)(4) which read: “The victim or the victim’s representative who has requested notification of the date and place of the scheduled hearing or notice of the board’s final decision. However, at any time the victim or victim’s representative may withdraw the request for notice by sending the board a written certified statement that the request for notice is withdrawn. Electronic notification may be used, in addition to, but not in lieu of, written notification to a victim or a victim’s representative.”; and substituted “the victim's representative unless the victim or victim's representative is registered with the state's electronic victim notification system, in which case the notice shall be communicated to the victim or victim's representative by the method or methods indicated by the registration in the system” for “or victim’s representative” at the end of the first sentence in (e).

Effective Dates. Acts 2018, ch. 598, § 7. July 1, 2018.

Cross-References. Confidentiality of public records, § 10-7-504.

Notification to kidnapping hostages or victims of convicts release on parole or probation, §§ 40-11-113, 40-28-107.

Rights on crime victims, notification, § 40-38-103.

Victim impact statements, title 40, ch. 38, part 2.

Victim witness coordinator, § 8-7-206.

NOTES TO DECISIONS

1. Notification of Victim's Family.

Part 6
Probation and Parole

40-28-601. Supervision of parolees.

The department is charged with the duty of supervising all prisoners released on parole from the prisons of the state, workhouses, jails or those accepted through the interstate compact, and of making investigation as may be necessary in connection therewith.
A probation and parole officer may, with the consent of the director, suspend direct supervision of a parolee after a successful two-year period of supervision. The parolee shall continue on parole and be subject to all rules and conditions of parole. A parolee who violates the rules and conditions may be subject to reinstatement of direct supervision or revocation of parole.

Acts 2012, ch. 727, § 43.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which enacted this part, shall be fully accomplished on or before January 1, 2013.

40-28-602. Director of probation and parole — Qualifications — Duties.

The commissioner shall appoint a director of probation and parole who shall devote full time and capacities to the duties of the office. The director shall have at least five (5) years of related administrative experience or a bachelor's or advanced degree in any of the following fields: penology, corrections work, law enforcement, law, vocational education, public administration, rehabilitation or social work, medicine or the behavioral sciences. Under the supervision of the commissioner or designee, the director of probation and parole shall:
1. Formulate methods of investigation, evaluation and supervision of persons under the supervision of the department;
2. Develop and implement various techniques relating to the casework of probation and parole officers, including, but not limited to, interviewing, organization of records, analysis of information, development of plans for supervision and the coordination of efforts by individuals and other governmental agencies involving the treatment and rehabilitation of persons released on parole;
3. Assist the commissioner in promulgating rules and regulations for the guidance of the probation and parole officers in the conduct of their work;
4. Supervise the work of the probation and parole officers;
5. Cooperate fully with state courts of criminal jurisdiction in all matters relating to persons who have been released on parole; and
6. Establish conditions of supervision for and supervise sex offenders sentenced to community supervision for life pursuant to § 39-13-524.
Nothing in this part shall be construed to diminish the authority of the courts to impose conditions of supervision on probationers under their jurisdiction pursuant to § 40-35-303(d).
The director of probation and parole shall have the authority, upon request of the governor, to issue warrants authorizing the arrest and return to their former places of incarceration of persons who are reasonably believed to have violated the conditions of their grants of executive clemency.

Acts 2012, ch. 727, § 43.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which enacted this part, shall be fully accomplished on or before January 1, 2013.

40-28-603. Parole and probation officers — Appointment.

The commissioner shall appoint probation and parole officers who shall be supervised by the director of probation and parole. The probation and parole officers shall be placed within districts or other locations as may be designated by the commissioner, and shall devote their full time and capacities to the duties of their office.

Acts 2012, ch. 727, § 43.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which enacted this part, shall be fully accomplished on or before January 1, 2013.

40-28-604. Probation and parole officers — Qualifications.

No person shall be eligible for the position of probation and parole officer who has not received a bachelor's degree from an accredited college or university or had at least four (4) years of qualifying full-time professional experience.

Acts 2012, ch. 727, § 43.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which enacted this part, shall be fully accomplished on or before January 1, 2013.

40-28-605. Parole and probation officers — Powers and duties.

The duties of probation and parole officers shall be to supervise, investigate and check on the conduct, behavior and progress of parolees and persons placed on probation by the courts or pursuant to § 40-35-501(a)(3), and assigned to them for supervision and shall make to the director or court, as appropriate, a report of the investigations, and shall perform other duties and functions as the director of probation and parole may direct.

Acts 2012, ch. 727, § 43.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which enacted this part, shall be fully accomplished on or before January 1, 2013.

40-28-606. Officers and employees — Compensation and salaries.

The director of probation and parole and the probation and parole officers shall have their compensation fixed and shall be paid as other state officials and state employees are paid.

Acts 2012, ch. 727, § 43.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which enacted this part, shall be fully accomplished on or before January 1, 2013.

40-28-607. Report of violation of parole — Declaration of delinquency.

If the probation and parole officer having charge of a paroled prisoner has reasonable cause to believe that the prisoner has violated the conditions of parole in an important respect, the officer shall report the facts to the director of probation and parole. The director or the director's designee shall review the reports and may issue a warrant for the retaking of the prisoner if the director or the director's designee agrees that parole may have been violated in an important respect. The governor shall have the power to issue requisition for the person if the person has departed from the state.
Whenever there is reasonable cause to believe that a parolee has violated parole and a parole violation warrant has been issued, the director of probation and parole may declare the parolee to be delinquent and the parolee will stop earning credit for service of the parolee's sentence from the date the warrant was issued until the removal of delinquency by the board.
Section 40-28-122(f) shall apply if:
1. A paroled prisoner's probation and parole officer believes that the prisoner has violated the conditions of parole in an important respect based solely on the paroled prisoner being arrested on new criminal charges while on parole;
2. The director or the director's designee agrees that the paroled prisoner violated parole solely by being arrested for a new criminal charge and a warrant for the retaking of the paroled prisoner is issued; and
3. The paroled prisoner is arrested and incarcerated pending or following a parole revocation or rescission hearing.

Acts 2012, ch. 727, § 43; 2017, ch. 162, § 1.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which enacted this part, shall be fully accomplished on or before January 1, 2013.

40-28-608. Relief from further reports — Permission to leave state or county.

The director may relieve a prisoner on parole from making further reports and may permit the prisoner to leave the state or county, if satisfied that this is for the best interests of society.

Acts 2012, ch. 727, § 43.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which enacted this part, shall be fully accomplished on or before January 1, 2013.

40-28-609. Final discharge of parolee.

Whenever the director is satisfied that a parolee has kept the conditions of parole in a satisfactory manner, the director shall issue to the parolee a certificate of final discharge. This final discharge from parole will be granted only after a parolee has completed the maximum sentence imposed, less diminution allowed for good and honor time and incentive time and sentence credits earned and retained. If a parolee is not eligible for a certificate of discharge because of a pending violation, parole will expire at the end of the maximum sentence less diminution for good and honor time, incentive time and sentence credits earned and retained, plus delinquent time.
This is in no way to be construed as permitting a discharge from parole for parolees with a life sentence.

Acts 2012, ch. 727, § 43.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which enacted this part, shall be fully accomplished on or before January 1, 2013.

Law Reviews.

Wealth-Based Penal Disenfranchisement, 72 Vand. L. Rev. 55 (January 2019).

40-28-610. Special alternative incarceration.

In addition to any other terms or conditions of probation, the trial judge may provide that probationers sentenced to a period of time of not less than one (1) year nor more than six (6) years on probation as a condition of probation must satisfactorily complete a program of incarceration in a special alternative incarceration unit of the department for a period of ninety (90) days from the time of initial incarceration in the unit. Notwithstanding any other provision of the law to the contrary, these probationers shall not be entitled to have their time in the special alternative incarceration unit reduced by sentence credits of any sort.
Before a court can place this condition upon the sentence, the director of probation and parole must certify to the sentencing court that the probationer is qualified for the treatment in that the individual is not physically or mentally handicapped in a way that would prevent the individual from strenuous physical activity, that the individual has no obvious contagious diseases, that the individual is not less than seventeen (17) years of age nor more than twenty-five (25) years of age at the time of sentencing, and that the department has approved the placement of the individual in the special alternative incarceration unit.
In every case where an individual is sentenced under the terms of this section, the clerk of the sentencing court shall, within five (5) working days, mail to the department a certified copy of the sentence and indictment, a personal history statement, and an affidavit of the custodian provided by the sheriff of the county.
The department will arrange with the sheriff's office in the county of incarceration to have the individual delivered to the designated facility within a specific date not less than fifteen (15) days after receipt by the department of the documents provided by the clerk of the court under this section.
At any time during the individual's incarceration in the unit, but at least five (5) days prior to the individual's expected date of release, the department will certify to the trial court whether the individual has satisfactorily completed this condition of probation.
Upon the receipt of a satisfactory report of performance in the program from the department, the trial court shall release the individual from confinement in the special alternative incarceration unit. However, the receipt of an unsatisfactory report will be grounds for revocation of the probated sentence as would any other violation of a condition or term of probation.
This section shall be subject to funding availability and availability of a suitable facility within the department.
Nothing in this section shall be construed to limit the current authority of a trial judge to sentence a defendant to an initial period of incarceration at a jail or workhouse as a condition of probation in accordance with the Criminal Sentencing Reform Act of 1982 [repealed] or the Criminal Sentencing Reform Act of 1989, when applicable, compiled in chapter 35 of this title, or in conjunction with a community-based program in accordance with the Tennessee Community Corrections Act of 1985, compiled in chapter 36 of this title.

Acts 2012, ch. 727, § 43.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which enacted this part, shall be fully accomplished on or before January 1, 2013.

40-28-113. Prisoners to whom applicable.

40-28-121. Arrest of parole violator — Preliminary hearing — Notice.

40-28-126. Advice as to pardons, exonerations and commutations.

Chapter 29
Restoration of Citizenship

Part 1
General Provisions

40-29-101. Jurisdiction — Time of application.

Persons rendered infamous or deprived of the rights of citizenship by the judgment of any state or federal court may have their full rights of citizenship restored by the circuit court.
Those pardoned, if the pardon does restore full rights of citizenship, may petition for restoration immediately after the pardon; provided, that a court shall not have jurisdiction to alter, delete or render void special conditions of a pardon pertaining to the right of suffrage.
Those convicted of an infamous crime may petition for restoration upon the expiration of the maximum sentence imposed for the infamous crime.

Code 1858, § 1994 (deriv. Acts 1851-1852, ch. 30, § 1); Shan., § 3635; Code 1932, § 7183; Acts 1981, ch. 345, § 7; T.C.A. (orig. ed.), § 40-3701; Acts 1983, ch. 207, § 2.

Cross-References. Acts purging registration, § 2-2-106.

Duties of election coordinator, § 2-11-202.

Judgment of infamy, § 40-20-112.

Qualified voters, § 2-2-102.

Registration information, § 2-2-116.

Restoration of suffrage to persons convicted of infamous crimes, § 2-2-139.

Suffrage for persons convicted of infamous crimes, § 2-19-143.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 32.223.

Tennessee Jurisprudence, 6 Tenn. Juris., Citizenship, § 2; 25 Tenn. Juris., Witnesses, § 16.

Law Reviews.

Tennessee Civil Disabilities: A Systemic Approach (Neil P. Cohen), 41 Tenn. L. Rev. 253 (1974).

Attorney General Opinions. Felons obtaining handgun carry permit after restoration of rights, OAG 97-169 (12/22/97).

If a felon not sentenced to the penitentiary was convicted on and after July 1, 1986, but before July 1, 1996, he or she must obtain a “certificate of restoration” under T.C.A. § 40-29-105(b)(3); however, the “full restoration of rights” provided for under that section does not restore the right to possess a handgun to persons convicted of a felony involving the use or attempted use of force, violence or a deadly weapon. To the extent that OAG 97-169 could be read to suggest that otherwise eligible penitentiary-sentenced inmates have their full rights of citizenship restored for handgun purposes by issuance of a certificate of restoration, it is hereby withdrawn, OAG 02-119 (10/24/02).

A pre-1998 form titled “Restoration of Voting Rights” is sufficient for issuance of handgun carry permit to non-penitentiary-sentenced felons convicted between 1986 and 1996 if executed by the proper authority at the time it was the officially prescribed form, OAG 02-119 (10/24/02).

An otherwise eligible felon convicted during the 1986-1996 period and sentenced to the penitentiary must obtain restoration of his or her “citizenship rights” by court order according to the procedures outlined in T.C.A. §§ 40-29-101 and 40-29-102 before obtaining a handgun permit, OAG 02-119 (10/24/02).

NOTES TO DECISIONS

1. Legislative Intent.

The legislature intended that a person who has been convicted of a felony involving the use or attempted use of force, violence, or a deadly weapon cannot possess a handgun, even where citizenship rights have been restored pursuant to T.C.A. § 40-29-101 et seq.State v. Johnson, 79 S.W.3d 522, 2002 Tenn. LEXIS 325 (Tenn. 2002).

2. Effect of Restoration.

Judgment for restoration of citizenship acts only in futuro and rights of citizenship are only restored from and after date of judgment of restoration. State ex rel. Harvey v. Knoxville, 166 Tenn. 530, 64 S.W.2d 7, 1933 Tenn. LEXIS 111 (1933).

3. Right to Hold Office.

Duly elected commissioner could require other commissioners to meet and transact town business with him even though he had been convicted of forgery 20 years before election since he had been restored under this section to his rights of citizenship. Bryant v. Moore, 198 Tenn. 335, 279 S.W.2d 517, 1955 Tenn. LEXIS 376 (1955), superseded by statute as stated in, State v. Baltimore, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 451 (Tenn. Crim. App. May 13, 2014).

4. Restoration Denied.

Defendant was indicted for a drug felony, but pled guilty to a reduced charge of attempt to commit a felony; there was no proof that defendant pled guilty to any crime other than attempt to possess a Schedule II substance for purposes of resale, and defendant was not entitled to have his right to keep and bear arms restored. State v. Ferguson, 106 S.W.3d 665, 2003 Tenn. App. LEXIS 6 (Tenn. Ct. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 443 (Tenn. May 19, 2003).

Circuit court properly declined to restore defendant's right to bear arms because it was an offense for a convicted drug felon to possess a firearm, a convicted drug felon was prohibited from being granted a permit, and defendant's conviction involved the attempted sale of cocaine, a Schedule II controlled substance. Fisher v. State, — S.W.3d —, 2017 Tenn. App. LEXIS 449 (Tenn. Ct. App. July 3, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 821 (Tenn. Nov. 17, 2017).

5. Construction.

To the extent there is a conflict between the statutes, the reasonable construction is that the specific procedure of the one statute is to be utilized when seeking restoration of the right to vote rather than the general full rights of citizenship provisions for those whose right to vote has been revoked as a result of a criminal conviction. O'Neal v. Goins, — S.W.3d —, 2016 Tenn. App. LEXIS 549 (Tenn. Ct. App. July 29, 2016).

40-29-102. Petition and proof.

The proceeding for this purpose shall be by petition to the circuit court of the county in which the petitioner resides, or to the circuit court of the county in which the petitioner was convicted of an act depriving the petitioner of citizenship sustained by satisfactory proof that ever since the judgment of disqualification, the petitioner has sustained the character of a person of honesty, respectability and veracity, and is generally esteemed as such by the petitioner's neighbors.

Code 1858, § 1995 (deriv. Acts 1851-1852, ch. 30, § 1); Shan., § 3656; Code 1932, § 7184; Acts 1969, ch. 316, § 1; T.C.A. (orig. ed.), § 40-3702.

Attorney General Opinions. An otherwise eligible felon convicted during the 1986-1996 period and sentenced to the penitentiary must obtain restoration of his or her “citizenship rights” by court order according to the procedures outlined in T.C.A. §§ 40-29-101 and 40-29-102 before obtaining a handgun permit, OAG 02-119 (10/24/02).

NOTES TO DECISIONS

1. Necessity for Proceeding.

Where, by conviction and sentence for crime, persons were rendered incompetent to testify as witnesses, they were not relieved of such disability by the pardon of the governor, and can only be relieved by the proceeding authorized under this chapter. Evans v. State, 66 Tenn. 12, 1872 Tenn. LEXIS 440 (1872).

2. Effect of Restoration.

Tenure of office of policeman which was terminated as result of conviction for second degree murder was not restored by virtue of restoration of citizenship in proceeding under this section, since it was effective only from date of decree. State ex rel. Harvey v. Knoxville, 166 Tenn. 530, 64 S.W.2d 7, 1933 Tenn. LEXIS 111 (1933).

3. Conduct of Applicant.

A party demeaning himself properly for four years after his pardon and discharge from the penitentiary for larceny, and showing by unimpeachable witnesses that he sustains a good moral character, was entitled to be restored to his rights as a citizen, although he was adjudged to be infamous under § 40-20-112. In re Curtis, 6 Tenn. Civ. App. (6 Higgins) 12 (1915).

4. Appeal.

Resident of this state is entitled to an appeal, upon the pauper oath, from the circuit court to the court of appeals from the action of the circuit court in refusing to restore him to citizenship; and the case will be tried de novo in the appellate court, on the proof heard in the lower court. In re Curtis, 6 Tenn. Civ. App. (6 Higgins) 12 (1915).

Motion for new trial is not necessary as a prerequisite to an appeal and a hearing in the appellate court, where the application for restoration to citizenship was denied. In re Curtis, 6 Tenn. Civ. App. (6 Higgins) 12 (1915).

40-29-103. Notice to district attorney general and to United States attorney.

Before the petition of a person rendered infamous or deprived of the rights of citizenship by the judgment of a state court is heard, the district attorney general in whose county the petitioner currently resides and the district attorney general of the county in which the petitioner was convicted shall have twenty (20) days' notice of the petition in order that, if deemed advisable, each may resist. The United States attorney and the district attorney general in whose district the petitioner currently resides shall be given notice, with the same opportunity to resist, when the petitioner was rendered infamous or deprived of the rights of citizenship by the judgment of a federal court.

Code 1858, § 1966 (deriv. Acts 1851-1852, ch. 30, § 1); Shan., § 3657; mod. Code 1932, § 7185; modified; T.C.A. (orig. ed.), § 40-3703; Acts 1983, ch. 207, § 3.

Law Reviews.

The Tennessee Court System — Prosecution, 8 Mem. St. U.L. Rev. 477.

40-29-104. Costs.

The petitioner shall pay the costs of this application.

Code 1858, § 1997 (deriv. Acts 1851-1852, ch. 30, § 2); Shan., § 3658; Code 1932, § 7186; T.C.A. (orig. ed.), § 40-3704.

NOTES TO DECISIONS

1. Costs on Appeal.

Upon appeal upon pauper oath from the circuit court to the court of appeals from action of the circuit court in refusing to restore citizenship, judgment may be rendered against appellant for costs if the judgment of the lower court is reversed. In re Curtis, 6 Tenn. Civ. App. (6 Higgins) 12 (1915).

40-29-105. Felons convicted of infamous crimes — Dates.

The provisions and procedures provided for in §§ 40-29-101 — 40-29-104 shall apply to all persons convicted of an infamous crime prior to July 2, 1986.
For all persons convicted of infamous crimes after July 1, 1986, but before July 1, 1996, the following procedures shall apply:
1. A person rendered infamous or deprived of the rights of citizenship by the judgment of any state or federal court may have full rights of citizenship restored upon:
  1. Receiving a pardon, except where the pardon contains special conditions pertaining to the right to suffrage;
  2. Service or expiration of the maximum sentence imposed for the infamous crime; or
  3. Being granted final release from incarceration or supervision by the board of parole, or county correction authority;
2. A person rendered infamous after July 1, 1986, by virtue of being convicted of one (1) of the following crimes shall never be eligible to register and vote in this state:
  1. First degree murder;
  2. Aggravated rape;
  3. Treason; or
  4. Voter fraud.
3. Any person eligible for restoration of citizenship pursuant to subdivision (b)(1) may request, and then shall be issued, a certificate of restoration upon a form prescribed by the coordinator of elections, by:
  1. The pardoning authority; or
  2. An agent or officer of the supervising or incarcerating authority;
4. Any authority issuing a certificate of restoration shall forward a copy of the certificate to the coordinator of elections;
5. Any person issued a certificate of restoration shall submit, to the administrator of elections of the county in which the person is eligible to vote, the certificate and upon verification of the certificate with the coordinator of elections be issued a voter registration card entitling the person to vote; and
6. A certificate of restoration issued pursuant to subdivision (b)(3) shall be sufficient proof to the administrator of elections that the person fulfills the requirements provided in subdivision (b)(1); however, before allowing a person convicted of an infamous crime to become a registered voter, it is the duty of the administrator of elections in each county to verify with the coordinator of elections that the person is eligible to register under this section.
The following procedure shall apply to a person rendered infamous by virtue of being convicted of a felony on or after July 1, 1996:
1. Except as provided in subdivision (c)(2)(B), a person rendered infamous or whose rights of citizenship have been deprived by the judgment of a state or federal court may seek restoration of full rights of citizenship by petitioning the circuit court of the county where the petitioner resides or where the conviction for the infamous crime occurred;
2. 1. A person receiving a pardon that restores full rights of citizenship may petition for restoration immediately upon receiving the pardon. However, the court shall not have the authority or jurisdiction to alter, delete or render void special conditions pertaining to the right of suffrage that may be contained in the pardon;
  2. A person convicted of an infamous crime may petition for restoration upon the expiration of the maximum sentence imposed by the court for the infamous crime; provided, that a person convicted of murder, rape, treason or voter fraud shall never be eligible to register and vote in this state;
3. The petition shall set forth the basis for the petitioner's eligibility for restoration and shall state the reasons the petitioner believes that petitioner's full citizenship rights should be restored. The petition shall be accompanied by the certified records, statements and other documents or information necessary to demonstrate to the court that the petitioner is both eligible for and merits having full rights of citizenship restored. The court may require any additional proof as it deems necessary to reach a just decision on the petition. There is a presumption that a petition filed pursuant to this subsection (c) shall be granted and that the full citizenship rights of the petitioner shall be restored. This presumption may only be overcome upon proof by a preponderance of the evidence that either the petitioner is not eligible for restoration or there is otherwise good cause to deny the petition;
4. 1. Prior to acting on any petition filed pursuant to this subsection (c), the court shall notify the district attorney general in whose county the petitioner resides and the district attorney general of the county in which the conviction occurred that a petition for restoration of citizenship has been filed by the petitioner. The notice shall be sent at least thirty (30) days prior to any hearing on or disposition of the petition. Each district attorney general so notified may object to the restoration of the petitioner's citizenship rights either in person or in writing;
  2. If the petitioner was rendered infamous or deprived of citizenship rights by judgment of a federal court, the circuit court shall give the notice required in subdivision (c)(2)(A) to the United States attorney and the district attorney general in whose district the petitioner is currently residing. Each such official shall have the same right to object to the petition as is provided in subdivision (c)(2)(A);
5. If, upon the face of the petition or after conducting a hearing, the court finds that the petitioner's full citizenship rights should be restored, it shall so order and send a copy of the order to the state coordinator of elections;
6. All costs for a proceeding under this subsection (c) to restore a person's citizenship rights shall be paid by the petitioner unless the court specifically orders otherwise; and
7. Any person whose citizenship rights have been restored by order of the court pursuant to this subsection (c) shall submit a certified copy of the order to the administrator of elections of the county in which the person is eligible to vote. The administrator of elections shall verify with the coordinator of elections that the order was issued and, upon receiving the verification, shall issue the person a voter registration card entitling the person to vote.

Acts 1986, ch. 906, § 1; 1989, ch. 227, § 51; 1996, ch. 898, §§ 1, 2; 1998, ch. 1049, § 41.

Cross-References. Judgment of infamy, right of suffrage, competency as witness, § 40-20-112.

Restoration of citizenship, generally, title 40, ch. 29.

Restoration of suffrage to persons convicted of infamous crimes, § 2-2-139.

Suffrage of persons convicted of infamous crimes, § 2-19-143.

Attorney General Opinions. If a felon not sentenced to the penitentiary was convicted on and after July 1, 1986, but before July 1, 1996, he or she must obtain a “certificate of restoration” under T.C.A. 40-29-105(b)(3); however, the “full restoration of rights” provided for under that section does not restore the right to possess a handgun to persons convicted of a felony involving the use or attempted use of force, violence or a deadly weapon. To the extent that OAG 97-169 could be read to suggest that otherwise eligible penitentiary-sentenced inmates have their full rights of citizenship restored for handgun purposes by issuance of a certificate of restoration, it is hereby withdrawn, OAG 02-119 (10/24/02).

Illegal registration under T.C.A. § 2-19-107 constitutes voter fraud for the purposes of this section, OAG 04-005 (1/12/04).

NOTES TO DECISIONS

1. Restoration of Citizenship.

A felon is eligible for restoration of citizenship under T.C.A. § 40-29-105; however, it is not automatic. United States v. White, 808 F. Supp. 586, 1992 U.S. Dist. LEXIS 18480 (M.D. Tenn. 1992).

Trial court's order denying a prisoner's petition for restoration of citizenship rights did not violate ex post facto protections because the trial court's application of the statute could not form the basis for an ex post facto violation based on the imposition of a harsher punishment than originally applicable. Moffitt v. State, — S.W.3d —, 2018 Tenn. App. LEXIS 708 (Tenn. Ct. App. Feb. 4, 2018).

Prisoner could not rely on the commission date of his crime as the applicable date; neither subsection (c)(2)(B) nor subsection (b)(2) focus on the date the offense was “committed,” but rather, the plain language of both sections focuses on the date of the petitioner's “conviction. Moffitt v. State, — S.W.3d —, 2018 Tenn. App. LEXIS 708 (Tenn. Ct. App. Feb. 4, 2018).

Insofar as a prisoner argued that subsection (b)(2) was applicable based on his conviction for first degree murder, that conviction was reversed and vacated, which rendered the conviction null and void, and thus, the conviction was of no effect; as such, the only conviction date was the date that judgment was entered on the prisoner's second degree murder conviction under subsection (c). Moffitt v. State, — S.W.3d —, 2018 Tenn. App. LEXIS 708 (Tenn. Ct. App. Feb. 4, 2018).

40-29-106. Explanation of procedure for restoration of citizenship rights.

When any nonviolent offender who was convicted of an infamous crime is granted final release from incarceration or discharged from parole, probation, pretrial or judicial diversion or community correction supervision, the sentencing court, department of correction and board of parole are urged to have the official charged with processing and effectuating the person's release or discharge provide the person with information explaining the restoration of citizenship rights procedure.
For purposes of this section, “nonviolent offender” means a person convicted of a felony that is not defined as a “violent offense” by § 40-35-120(b).

Acts 2004, ch. 758, § 1.

Cross-References. Judgment of infamy, right of suffrage, competency as witness, § 40-20-112.

Restoration of suffrage to persons convicted of infamous crimes, § 2-2-139.

Suffrage of persons convicted of infamous crimes, § 2-19-143.

40-29-107. Certificate of employability.

A person may petition the court for a certificate of employability either in conjunction with or independently of petitioning the court for restoration of the person's rights of citizenship.
A petition for a certificate of employability filed under subsection (a) shall be filed in the circuit court of the county where the petitioner resides or where the conviction for the infamous crime occurred.
The petitioner shall pay the costs of this application.
The administrative office of the courts shall create a standard certificate of employability to be issued by the court and a standard petition for employability form to be used to petition the court for a certificate of employability. The form for the petition shall be placed on the website of the administrative office of the courts. The form for the petition shall include places for all the information specified in subsection (e).
A petition for employability filed by a person under this section shall include all of the following:
1. The person's name, date of birth, and social security number;
2. All aliases of the person and all social security numbers associated with those aliases;
3. The person's address of residence, including the city, county, state, and zip code;
4. The length of time that the person has been a resident of this state, expressed in years and months of residence;
5. A summary of the person's criminal history with respect to each offense that is a disqualification from employment or licensing in an occupation or profession, including the years of each conviction or plea of guilty for each of those offenses;
6. A summary of the person's employment history, specifying the name of, and dates of employment with, each employer and the positions held;
7. Verifiable references and endorsements;
8. The name of one (1) or more immediate family members of the person, or other persons with whom the person has a close relationship, who support the person's reentry plan; and
9. A summary of the reason the person believes the certificate of employability should be granted.
Before the petition for employability of a person rendered infamous or deprived of the rights of citizenship by the judgment of a state court is heard, the district attorney general in whose county the petitioner currently resides and the district attorney general of the county in which the petitioner was convicted shall have twenty (20) days' notice of the petition in order that, if deemed advisable, each may resist. The United States attorney and the district attorney general in whose district the petitioner currently resides shall be given notice of the petition and shall be given the same opportunity to resist, as afforded the United States attorney and the district attorney general when the petitioner was rendered infamous or deprived of the rights of citizenship by the judgment of a federal court.
The district attorney general of the county in which the petitioner was convicted that receives notification of the filing of a petition for a certificate of employability under this section shall notify any known victims of crimes perpetrated by the petitioner by sending notice of the filing of the petition to the last known address of such victims, if known.
A court that receives a person's petition for employability pursuant to this section shall review the person's petition, the person's criminal history, filings submitted by any district attorney general, United States attorney, or victim of crimes perpetrated by the petitioner, and all other relevant evidence. The court may order any report, investigation, or disclosure by the person that the court believes is necessary for the court to reach a decision on whether to approve the person's petition for a certificate of employability.
The court may issue a certificate of employability, at the court's discretion, if the court finds that the person has established all of the following by a preponderance of evidence:
1. The petitioner has sustained the character of a person of honesty, respectability, and veracity and is generally esteemed as such by the petitioner's neighbors;
2. Granting the petition will materially assist the person in obtaining employment or occupational licensing;
3. The person has a substantial need for the relief requested in order to live a law-abiding life; and
4. Granting the petition would not pose an unreasonable risk to the safety of the public or any individual.
If the court grants the petition for employability, a certificate of employability shall be given to the petitioner for use in obtaining employment.
1. If the court denies the petition, the court shall provide notice to the petitioner of the court's denial. The court may place conditions on the petitioner regarding the petitioner's filing of any subsequent petition for a certificate of employability. The court shall notify the petitioner of any conditions placed on the petitioner's filing of a subsequent petition for a certificate of employability.
2. If the court denies the petition, the petitioner may appeal the decision to the court of appeals only if the petitioner alleges that the denial was an abuse of discretion on the part of the court.
A certificate of employability issued under this section shall be presumptively revoked if the person to whom the certificate of employability was issued is convicted of or pleads guilty to a felony offense committed subsequent to the issuance of the certificate of employability.
1. If a person presents a valid certificate of employability, no board, agency, commission, or other licensing entity that issues, restores or renews licenses or certificates and regulates occupations and trades for which a license or certificate is required to do business in this state shall deny the issuance, restoration or renewal of an occupational license or certificate based solely on the person's past record of criminal activity but instead shall consider on a case-by-case basis whether to grant or deny the issuance, restoration or renewal of an occupational license or an employment opportunity.
2. Any rule of a board, agency, commission, or other licensing entity in effect on April 28, 2014, with respect to the denial or refusal to issue, restore or renew the license or certificate of a person who has a past record of criminal activity shall control if the applicant does not possess a certificate of employability.
3. However, if a person seeking the issuance, restoration or renewal of a license or certificate, does possess a certificate of employability, it shall preempt any present rule that authorizes or requires the denial or refusal to issue, restore or renew a license or certificate if the denial is based upon the person's past record of criminal activity.
4. Notwithstanding subdivision (m)(1) or (m)(3), a board, agency, commission, or other licensing entity may adopt a rule on or after April 28, 2014, denying the issuance, restoration or renewal of a license or certificate to a person, notwithstanding the person's possession of a certificate of employability, based on:
  1. The time that has elapsed since the criminal offense; or
  2. The nature of the offense having a direct bearing on the fitness or ability of the person to perform one (1) or more of the duties or responsibilities necessarily related to the license or certificate sought.
1. In a judicial or administrative proceeding alleging negligence or other fault, a certificate of employability issued to a person pursuant to this section may be introduced as evidence of a person's due care in hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise transacting business or engaging in activity with the person to whom the certificate was issued if the person knew of the certificate at the time of the alleged negligence or other fault.
2. In any proceeding on a claim against an employer for negligent hiring, a certificate of employability issued to a person pursuant to this section shall provide immunity for the employer with respect to the claim if the employer knew of the certificate at the time of the alleged negligence.
3. An employer who hires a person who has been issued a certificate of employability under this section may be held liable in a civil action based on or relating to the retention of the person as an employee only if:
  1. The person, after being hired, subsequently demonstrates danger or is convicted of a felony;
  2. The person is retained by the employer as an employee after the demonstration of danger or the conviction;
  3. The plaintiff proves by a preponderance of the evidence that the person having hiring and firing responsibility for the employer had actual knowledge that the employee was dangerous or had been convicted of the felony; and
  4. The employer, after having actual knowledge of the employee's demonstration of danger or conviction of a felony, was willful in retaining the person as an employee.
4. The provisions of § 1-3-119 relative to implied rights of action shall apply to this section.
Nothing in this section shall be construed to apply to a person or entity subject to licensing, certification or regulation by any board, commission, or agency pursuant to title 33, chapter 2, part 4; title 38, chapter 8; titles 41, 49, 56, 63 and 71; or persons subject to regulation by the department of financial institutions pursuant to title 45 and title 56, chapter 37.

Acts 2014, ch. 815, § 1; 2017, ch. 83, § 1.

Compiler's Notes. Pursuant to Article III, Section 18 of the Constitution of Tennessee, Acts 2014, ch. 815 took effect on April 28, 2014 for purposes of: (1) The administrative office of the courts creating a certificate of employability form and a petition for employability form pursuant to § 40-29-107(d); and (2) A board, agency, commission, or other licensing entity promulgating new rules as provided in § 40-29-107(m).

Acts 2017, ch. 83, § 2 provided that the act, which amended this section, shall apply to all certificates of employability filed on or after July 1, 2017.

Part 2
Voting Rights

40-29-201. Application.

The provisions and procedures of this part shall apply to and govern restoration of the right of suffrage in this state to any person who has been disqualified from exercising that right by reason of a conviction in any state or federal court of an infamous crime.
This part shall apply to any person convicted of an infamous crime after May 18, 1981.
This part shall apply only to restoration of the right of suffrage. For restoration of all other rights of citizenship forfeited as the result of a conviction for an infamous crime, part 1 of this chapter shall apply.

Acts 2006, ch. 860, § 1.

NOTES TO DECISIONS

1. Construction.

40-29-202. Application for voter registration card.

A person rendered infamous and deprived of the right of suffrage by the judgment of any state or federal court is eligible to apply for a voter registration card and have the right of suffrage restored upon:
1. Receiving a pardon, except where the pardon contains special conditions pertaining to the right of suffrage;
2. The discharge from custody by reason of service or expiration of the maximum sentence imposed by the court for the infamous crime; or
3. Being granted a certificate of final discharge from supervision by the board of parole pursuant to § 40-28-105, or any equivalent discharge by another state, the federal government, or county correction authority.
Notwithstanding subsection (a), a person shall not be eligible to apply for a voter registration card and have the right of suffrage restored, unless the person:
1. Has paid all restitution to the victim or victims of the offense ordered by the court as part of the sentence; and
2. Beginning September 1, 2010, notwithstanding subsection (a), a person shall not be eligible to apply for a voter registration card and have the right of suffrage restored, unless the person has paid all court costs assessed against the person at the conclusion of the person's trial, except where the court has made a finding at an evidentiary hearing that the applicant is indigent at the time of application.
Notwithstanding subsection (a), a person shall not be eligible to apply for a voter registration card and have the right of suffrage restored, unless the person is current in all child support obligations.

Acts 2006, ch. 860, § 1; 2010, ch. 1115, § 1.

Law Reviews.

Reawakening “Privileges or Immunities”: An Originalist Blueprint for Invalidating State Felon Disenfranchisement Laws (John Benjamin Schrader), 62 Vand. L. Rev. 1285 (2009).

Wealth-Based Penal Disenfranchisement, 72 Vand. L. Rev. 55 (January 2019).

Attorney General Opinions. The exception which excludes from eligibility those convicted felons who are not current in their child support obligations does not violate the equal protection clause of the United States or Tennessee constitutions, OAG 06-148 (9/29/06).

Constitutionality of 2010 amendment to T.C.A. § 40-29-202(b). OAG 10-74, 2010 Tenn. AG LEXIS 80 (5/24/10); OAG 10-75, 2010 Tenn. AG LEXIS 81 (5/27/10).

Based on existing precedent from the Sixth Circuit Court of Appeals, the legislature may require, as a condition of the restoration of the voting rights of a convicted felon, that the convicted felon enter into a payment plan for satisfying existing financial obligations, such as restitution, child support, and court costs. The principles on which that precedent rests suggest that the legislature may restore convicted felons’ voting rights only provisionally, subject to subsequent revocation for failure to pay in accordance with the payment plan. An argument can be made that subsequent revocation for failure to pay need not take indigency into account in order to pass constitutional muster, but no court has directly addressed that question. Nor has a court squarely addressed what procedural protections would be required for a subsequent revocation for failure to abide by the terms of a payment plan. Because those questions remain unsolved, a statutory scheme that (1) explicitly makes the restoration of voting rights provisional and conditional on adherence to the terms of the payment plan, (2) accounts for indigency, and (3) allows convicted felons facing subsequent revocation of restored voting rights for failure to abide by the payment plan to prove their indigency and good faith to a neutral court would be on firmer constitutional footing than a statute that did not include those provisions. OAG 20-02, 2020 Tenn. AG LEXIS 2 (2/25/2020).

All convicted felons, including individuals convicted in other States or in federal court, must satisfy outstanding debts arising from court costs, court-ordered restitution, and child support obligations before they are eligible to apply for the reinstatement of their voting rights. OAG 20-06, 2020 Tenn. AG LEXIS 6 (3/26/2020).

NOTES TO DECISIONS

1. Constitutionality.

Subsections (b) and (c) of this section do not violate the equal protection clause because felons do not have a fundamental right to vote, and the state has a rational basis for the provisions. Johnson v. Bredesen, 579 F. Supp. 2d 1044, 2008 U.S. Dist. LEXIS 80932 (M.D. Tenn. Sept. 22, 2008), aff'd, 624 F.3d 742, 2010 FED App. 335P, 2010 U.S. App. LEXIS 22357 (6th Cir. Oct. 28, 2010).

Subsections (b) and (c) of this section do not violate the privileges or immunities clause of U.S. Const. Amend. 14, § 1 because, even assuming that the right to vote is a privilege or immunity of the citizens of the United States, the privilege or right of ex-felons to vote in federal elections can be suspended without violating the U.S. Constitution. Johnson v. Bredesen, 579 F. Supp. 2d 1044, 2008 U.S. Dist. LEXIS 80932 (M.D. Tenn. Sept. 22, 2008), aff'd, 624 F.3d 742, 2010 FED App. 335P, 2010 U.S. App. LEXIS 22357 (6th Cir. Oct. 28, 2010).

Subsections (b) and (c) of T.C.A. § 40-29-202 do not violate U.S. Const. Amend. 24' s prohibition on poll taxes because felons have been already stripped of their fundamental right to vote, and the requirements imposed by the subsections could not be deemed taxes. Johnson v. Bredesen, 579 F. Supp. 2d 1044, 2008 U.S. Dist. LEXIS 80932 (M.D. Tenn. Sept. 22, 2008), aff'd, 624 F.3d 742, 2010 FED App. 335P, 2010 U.S. App. LEXIS 22357 (6th Cir. Oct. 28, 2010).

Subsections (b) and (c) of this section do not violate ex post facto clauses of the Tennessee and U.S. Constitutions because the state's re-enfranchisement scheme is not punitive in nature. Johnson v. Bredesen, 579 F. Supp. 2d 1044, 2008 U.S. Dist. LEXIS 80932 (M.D. Tenn. Sept. 22, 2008), aff'd, 624 F.3d 742, 2010 FED App. 335P, 2010 U.S. App. LEXIS 22357 (6th Cir. Oct. 28, 2010).

T.C.A. § 40-29-202(b) and (c), which conditions re-enfranchisement of convicted felons on payment of restitution and child support obligations, does not violate the Fourteenth Amendment Equal Protection Clause under rational basis review. Also, even if the Twenty-Fourth Amendment applies, § 40-29-202 does not violate it because the restitution and child-support-payment provisions fail to qualify as the sort of taxes the Amendment seeks to prohibit, and no authority recognizes the right to vote in federal elections as a privilege or immunity of United States citizenship within the Fourteenth Amendment Privileges and Immunities Clause. Johnson v. Bredesen, 624 F.3d 742, 2010 FED App. 335P, 2010 U.S. App. LEXIS 22357 (6th Cir. Oct. 28, 2010), rehearing denied, — F.3d —, — FED App. —, 2010 U.S. App. LEXIS 26390 (6th Cir. Dec. 17, 2010), cert. denied, Johnson v. Haslam, 563 U.S. 1008, 131 S. Ct. 2903, 179 L. Ed. 2d 1246, 2011 U.S. LEXIS 3835.

T.C.A. § 40-29-202(b) and (c), which conditions re-enfranchisement of convicted felons on payment of restitution and child support obligations, does not violate the Tennessee Constitution's Ex Post Facto Clause, Tenn. Const. art. I, § 11; § 40-29-202 serves to designate a reasonable ground of eligibility for voting, and thus qualifies as a nonpenal exercise of the power to regulate the franchise. Johnson v. Bredesen, 624 F.3d 742, 2010 FED App. 335P, 2010 U.S. App. LEXIS 22357 (6th Cir. Oct. 28, 2010), rehearing denied, — F.3d —, — FED App. —, 2010 U.S. App. LEXIS 26390 (6th Cir. Dec. 17, 2010), cert. denied, Johnson v. Haslam, 563 U.S. 1008, 131 S. Ct. 2903, 179 L. Ed. 2d 1246, 2011 U.S. LEXIS 3835.

2. Construction.

Under the statutes, after having one's rights of citizenship restored, the person must be deemed eligible to apply for a voter registration card, with the determination of eligibility to be made by the state election coordinator and communicated to the administrator of elections at the county election commission; in this case, there was no allegation that this procedure was not followed and plaintiff did not allege facts relative to any effort he made to apply for a voter card, and the complaint was insufficient to state a claim for relief. O'Neal v. Goins, — S.W.3d —, 2016 Tenn. App. LEXIS 549 (Tenn. Ct. App. July 29, 2016).

40-29-203. Certificate of voting rights restoration.

A person eligible to apply for a voter registration card and have the right of suffrage restored, pursuant to § 40-29-202, may request, and then shall be issued, a certificate of voting rights restoration upon a form prescribed by the coordinator of elections, by:
1. The pardoning authority;
2. The warden or an agent or officer of the incarcerating authority; or
3. A parole officer or another agent or officer of the supervising authority.
The issuing authority shall supply the person being released with a written statement explaining the purpose and effect of the certificate of voting rights restoration and explaining the procedure by which the person may use the certificate to apply for and receive a voter registration card and become eligible to vote.
A certificate of voting rights restoration issued pursuant to subsection (a) shall be sufficient proof that the person named on the certificate is no longer disqualified from voting by reason of having been convicted of an infamous crime.
Any person issued a certificate of voting rights restoration pursuant to this section shall submit the certificate to the administrator of elections of the county in which the person is eligible to vote. The administrator of elections shall send the certificate to the coordinator of elections who shall verify that the certificate was issued in compliance with this section. Upon determining that the certificate complies with this section, the coordinator shall notify the appropriate administrator of elections and, after determining that the person is qualified to vote in that county by using the same verification procedure used for any applicant, the administrator shall grant the application for a voter registration card. The administrator shall issue a voter registration card and the card shall be mailed to the applicant in the same manner as provided for any newly issued card.

Acts 2006, ch. 860, § 1; 2013, ch. 231, §§ 12, 13.

Law Reviews.

Wealth-Based Penal Disenfranchisement, 72 Vand. L. Rev. 55 (January 2019).

40-29-204. Persons never eligible to register and vote.

Notwithstanding this part, the following persons shall never be eligible to register and vote in this state:

Those convicted after July 1, 1986, of the offenses of voter fraud, treason, murder in the first degree, or aggravated rape;
Those convicted after July 1, 1996, but before July 1, 2006, of any of the offenses set out in subdivision (1) or any other degree of murder or rape; and
Those convicted on or after July 1, 2006, of:
1. Any of the offenses set out in subdivision (1) or (2);
2. Any other violation of title 39, chapter 16, parts 1, 4 or 5 designated as a felony or any violation containing the same elements and designated as a felony in any other state or federal court; or
3. Any sexual offense set out in § 40-39-202 or violent sexual offense set out in § 40-39-202 that is designated as a felony or any violation containing the same elements and designated as a felony in any other state or federal court and where the victim of the offense was a minor.

Acts 2006, ch. 860, § 1; 2011, ch. 184, §§ 1, 2.

Law Reviews.

Felon Disenfranchisement, 49 U. Mem. L. Rev. 1275 (Summer 2019).

NOTES TO DECISIONS

1. Construction.

T.C.A. § 40-29-204(3) does not govern the reestablishment of voting rights but makes any deprivation of the right to vote permanent, where the statute is applicable. Clearly, this statute therefore involves a future civil disability on the right to vote. State v. Dixon, — S.W.3d —, 2018 Tenn. App. LEXIS 123 (Tenn. Ct. App. Mar. 6, 2018).

In a case in which petitioner, a former state senator convicted of bribery, appealed the trial court's denial of the restoration of his voting rights based on T.C.A. § 40-29-204, the appellate court concluded that the technical definition of the term “convicted” is used in § 40-29-204(3). Because petitioner's “conviction” occurred after July 1, 2006, he was permanently barred from voting under the terms of the statute. State v. Dixon, — S.W.3d —, 2018 Tenn. App. LEXIS 123 (Tenn. Ct. App. Mar. 6, 2018).

40-29-205. Certificate of voting rights restoration form.

The coordinator of elections shall prepare a certificate of voting rights restoration form and the written statement explaining the form and the procedure by which a person can apply for a voter registration card and become eligible to vote as required by this part. The coordinator shall be responsible for printing and distributing a sufficient number of the forms to the department of correction, the board of parole and any other authority that may discharge a person to whom this part applies.

Acts 2006, ch. 860, § 1.

Chapter 30
Post-Conviction Procedure

Part 1
General Provisions

40-30-101. Short title.

This part shall be known and may be referred to as the “Post-Conviction Procedure Act.”

Acts 1995, ch. 207, § 1; T.C.A. § 40-30-201.

Compiler's Notes. Former chapter 30, §§ 40-30-101 — 40-30-124 (Acts 1967, ch. 310, §§ 1-23 and 27; 1969, ch. 242, § 1; 1971, ch. 96, §§ 1-6; 1972, ch. 792, § 1; modified; 1981, ch. 449, § 2; T.C.A. 40-3801 — 40-3824; Acts 1986, ch. 634, § 1; 1993, ch. 136, § 1), concerning post-conviction procedure, was repealed by Acts 1995, ch. 207, § 1.

Cross-References. Post-commitment relief, petition by juveniles, title 37, ch. 1, part 3.

Tennessee Rules of Post-Conviction Procedure, Supreme Court Rule 28.

Rule Reference. This section is referred to in Rule 28, § 1 of the Rules of the Supreme Court of Tennessee.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 33.1.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 39; 14 Tenn. Juris., Habeas Corpus, §§ 1, 8.

Law Reviews.

Appellate and Post Conviction Relief in Tennessee (Ronald W. Eades), 5 Mem. St. U.L. Rev. 1.

Kaleidoscopic Chaos: Understanding the Circuit Courts' Various Interpretations of § 2255's Savings Clause, 45 U. Mem. L. Rev. 1 (2014).

Present Competency to be Executed — Van Tran v. State: Common Law and Constitutional Prohibitions Against Executing the Insane and the Inherent Authority of the Tennessee Supreme Court to Adopt and Enforce These Rights, 31 U. Mem. L. Rev. 973 (2001).

The Tennessee Court of Criminal Appeals: A Study and Analysis (Daniel J. Foley), 66 Tenn. L. Rev. 427 (1999).

Prisoners and Habeas Privileges under the Fourteenth Amendment, 67 Vand. L. Rev. 609 (2014).

Due Process Tolling of the Post-Conviction Statute Of Limitations in Tennessee After Whitehead v. State, 10 Tenn. J. L. & Pol'y 8 (2014).

Attorney General Opinions. Constitutionality of repeal of Post-Conviction Procedure Act. OAG 11-23, 2011 Tenn. AG LEXIS 25 (3/14/11).

NOTES TO DECISIONS

1. Applicability.

A prisoner's competency to be executed is a question independent of the validity of trial sentencing, and as such, not within the contemplation of title 40, ch. 30. Heck Van Tran v. State, 6 S.W.3d 257, 1999 Tenn. LEXIS 602 (Tenn. 1999), cert. denied, Heck Van Tran v. Tennessee, 529 U.S. 1091, 120 S. Ct. 1728, 146 L. Ed. 2d 648, 2000 U.S. LEXIS 2938 (2000).

2. Ineffective Assistance of Counsel.

Although a defendant may waive his right to appeal, a waiver of appeal, executed as part of a post-verdict sentencing agreement, did not preclude the filing of a petition for post-conviction relief under the Post Conviction Procedure Act for claims of ineffective assistance of counsel that occurred prior to the waiver; however, defendant failed to show that his counsel's representation fell below an objective standard of reasonableness for criminal attorneys. Serrano v. State, 133 S.W.3d 599, 2004 Tenn. LEXIS 331 (Tenn. 2004).

Trial court erred in dismissing inmate's post-conviction petition, because the inmate could challenge the revocation of a community corrections sentence in a post-conviction proceeding on the ground of ineffective assistance of counsel, when an attorney's ineffectiveness in the “revocation portion” of a community corrections revocation hearing could affect the “resentencing portion” of the same proceeding in the form of a sentence that was greater than the sentence originally imposed. Carpenter v. State, 136 S.W.3d 608, 2004 Tenn. LEXIS 575 (Tenn. 2004).

3. Competency.

Civil standard for mental incompetence adopted in State v. Nix , applies to a competency determination during post-conviction proceedings; to trigger a hearing on competency, a petitioner must make a prima facie showing of incompetence by submission of affidavits, depositions, medical reports, or other credible evidence. A petitioner bears the burden of proving that he or she is incompetent by clear and convincing evidence; a finding of incompetence requires neither a stay of the post-conviction proceedings nor abeyance of individual issues; a trial court should appoint, if necessary, a next friend or guardian ad litem to pursue the action on behalf of the petitioner. Reid v. State, 197 S.W.3d 694, 2006 Tenn. LEXIS 555 (Tenn. 2006), rehearing denied, — S.W.3d —, 2006 Tenn. LEXIS 643, (Tenn. 2006).

4. Appeal.

No appeal as of right flowed from petitioner's filing of a motion for new trial, the substance of which pertained to the denial of his petition for post-conviction relief, because neither the rule nor the Post-Conviction Procedure Act provided for such a filing; the law does not provide for an appeal as of right from the denial of a motion to reconsider a post-conviction petition. Hassman v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 152 (Tenn. Crim. App. Mar. 11, 2019).

40-30-102. When prisoners may petition for post-conviction relief.

Except as provided in subsections (b) and (c), a person in custody under a sentence of a court of this state must petition for post-conviction relief under this part within one (1) year of the date of the final action of the highest state appellate court to which an appeal is taken or, if no appeal is taken, within one (1) year of the date on which the judgment became final, or consideration of the petition shall be barred. The statute of limitations shall not be tolled for any reason, including any tolling or saving provision otherwise available at law or equity. Time is of the essence of the right to file a petition for post-conviction relief or motion to reopen established by this chapter, and the one-year limitations period is an element of the right to file the action and is a condition upon its exercise. Except as specifically provided in subsections (b) and (c), the right to file a petition for post-conviction relief or a motion to reopen under this chapter shall be extinguished upon the expiration of the limitations period.
No court shall have jurisdiction to consider a petition filed after the expiration of the limitations period unless:
1. The claim in the petition is based upon a final ruling of an appellate court establishing a constitutional right that was not recognized as existing at the time of trial, if retrospective application of that right is required. The petition must be filed within one (1) year of the ruling of the highest state appellate court or the United States supreme court establishing a constitutional right that was not recognized as existing at the time of trial;
2. The claim in the petition is based upon new scientific evidence establishing that the petitioner is actually innocent of the offense or offenses for which the petitioner was convicted; or
3. The claim asserted in the petition seeks relief from a sentence that was enhanced because of a previous conviction and the conviction in the case in which the claim is asserted was not a guilty plea with an agreed sentence, and the previous conviction has subsequently been held to be invalid, in which case the petition must be filed within one (1) year of the finality of the ruling holding the previous conviction to be invalid.
This part contemplates the filing of only one (1) petition for post-conviction relief. In no event may more than one (1) petition for post-conviction relief be filed attacking a single judgment. If a prior petition has been filed which was resolved on the merits by a court of competent jurisdiction, any second or subsequent petition shall be summarily dismissed. A petitioner may move to reopen a post-conviction proceeding that has been concluded, under the limited circumstances set out in § 40-30-117.

Acts 1995, ch. 207, § 1; 1996, ch. 995, §§ 1-3; T.C.A. § 40-30-202.

Cross-References. Appeal as of right, T.R.A.P. 3.

Rule Reference. This section is referred to in Appendix A of the Rules of the Supreme Court of Tennessee.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Certiorari, § 21; 8 Tenn. Juris., Criminal Procedure, § 39; 18 Tenn. Juris., Limitation of Actions, § § 4, 19; 21 Tenn. Juris., Prisons and Prisoners, § 7.

Law Reviews.

Adjudicating Claims of Innocence for the Capitally Condemned in Tennessee: Embracing a Truth Forum (Dwight Aarons), 76 Tenn. L. Rev. 511 (2009).

Due Process Tolling of the Post-Conviction Statute Of Limitations in Tennessee After Whitehead v. State, 10 Tenn. J. L. & Pol'y 8 (2014).

Post-Conviction Relief in Tennessee — Fourteen Years of Judicial Administration Under the Post-Conviction Procedure Act (Gary L. Anderson), 48 Tenn. L. Rev. 605 (1981).

The Tennessee Court of Criminal Appeals: A Study and Analysis (Daniel J. Foley), 66 Tenn. L. Rev. 427 (1999).

Attorney General Opinions. Constitutionality, OAG 95-008 (3/1/95).

NOTES TO DECISIONS

1. Constitutionality.

While the one-year statute of limitations set forth in T.C.A. § 40-30-202(a) (now T.C.A. § 40-30-102(a)) does not violate due process on its face, application of the statute must not deny a petitioner a reasonable opportunity to raise a claim in a meaningful time and manner. Seals v. State, 23 S.W.3d 272, 2000 Tenn. LEXIS 347 (Tenn. 2000).

Due process requires tolling of the statute of limitations set forth in T.C.A. § 40-30-202(a) (now T.C.A. § 40-30-102(a)) where a petitioner shows the inability either to manage the petitioner's personal affairs or to understand the petitioner's legal rights and liabilities. State v. Nix , 40 S.W.3d 459, 2001 Tenn. LEXIS 107 (Tenn. 2001), overruled, Reid ex rel. Martiniano v. State, 396 S.W.3d 478, 2013 Tenn. LEXIS 84 (Tenn. Jan. 24, 2013), overruled, Crocker v. State, — S.W.3d —, 2013 Tenn. LEXIS 873 (Tenn. Oct. 23, 2013), overruled in part, Green v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 875 (Tenn. Crim. App. Oct. 29, 2015).

Although defendant filed petition beyond the statutory deadline, due process considerations may have tolled the limitations period; therefore, the case was remanded for an evidentiary hearing to determine the circumstances precluding defendant from filing a timely application. Williams v. State, 44 S.W.3d 464, 2001 Tenn. LEXIS 357 (Tenn. 2001).

2. In General.

Ward v. State , which states that trial courts have an affirmative duty, before accepting a guilty plea to a crime carrying a mandatory sentence of community supervision for life, to inform the defendant of the consequence of lifetime supervision, is not retroactive for purposes of tolling the post-conviction statute of limitations. Bush v. State, 428 S.W.3d 1, 2014 Tenn. LEXIS 16 (Tenn. Jan. 28, 2014).

Retroactivity of new constitutional rules in post-conviction proceedings is determined using T.C.A. § 40-30-122, not Meadows v. State . Bush v. State, 428 S.W.3d 1, 2014 Tenn. LEXIS 16 (Tenn. Jan. 28, 2014).

3. Limitations.

Strict enforcement of the limitations period was appropriate where the petitioner's interest in attacking a constitutional issue that was not a personal trial right was outweighed by the state interests in preventing the litigation of stale claims and preventing excessive costs. Caldwell v. State, 917 S.W.2d 662, 1996 Tenn. LEXIS 98 (Tenn. 1996), rehearing denied, — S.W.2d —, 1996 Tenn. LEXIS 176 (Tenn. Mar. 18, 1996), cert. denied, Caldwell v. Tennessee, 519 U.S. 853, 117 S. Ct. 148, 136 L. Ed. 2d 94, 1996 U.S. LEXIS 5275 (1996).

Petitioners for whom the statute of limitations expired prior to the effective date of the Post-Conviction Procedure Act of 1995, i.e., May 10 1995, do not have an additional year in which to file petitions for post-conviction relief. Carter v. State, 952 S.W.2d 417, 1997 Tenn. LEXIS 435 (Tenn. 1997).

Although defendant's claim of suppression of exculpatory evidence was a later-arising claim, in that it did not arise until after the post-conviction statute of limitations began to run, defendant was not denied a reasonable opportunity to have the issue heard by application of the three-year limitations period, where the defendant's interest in litigating the claim did not outweigh the state's interest in preserving final judgments and preventing the litigation of stale claims. Wright v. State, 987 S.W.2d 26, 1999 Tenn. LEXIS 63 (Tenn. 1999), cert. denied, Wright v. Tennessee, 528 U.S. 828, 120 S. Ct. 81, 145 L. Ed. 2d 69, 1999 U.S. LEXIS 5161 (1999).

A statute of limitations is not tolled during the time a prisoner is released pursuant to a governors commutation because a conditional commutation constitutes a possible restraint on the prisoner's liberty and he thus remains “in custody” for purposes of the post-conviction statute of limitations. Taylor v. State, 995 S.W.2d 78, 1999 Tenn. LEXIS 324 (Tenn. 1999), cert. denied, Gwin v. Tennessee, 528 U.S. 915, 120 S. Ct. 270, 145 L. Ed. 2d 226, 1999 U.S. LEXIS 6457 (1999).

As the state court claim was not exhausted and could not provide a basis for reopening petitioner's state court post-conviction proceeding, further presentation of the claim was barred by both the post-conviction statute of limitations contained in T.C.A. § 40-30-202(a) (now T.C.A. § 40-30-102(a)) and by the one-petition rule of T.C.A. § 40-30-202(c) (now T.C.A. § 40-30-102(c)). Alley v. Bell, 101 F. Supp. 2d 588, 2000 U.S. Dist. LEXIS 8616 (W.D. Tenn. 2000), aff'd, 307 F.3d 380, 2002 FED App. 344P, 2002 U.S. App. LEXIS 20798 (6th Cir. Tenn. 2002).

The required prima facie showing of a petitioner's incompetence requiring tolling of the statute of limitations under T.C.A. § 40-30-202(a) (now T.C.A. § 40-30-102(a)) may be satisfied by attaching to the petition affidavits, depositions, medical reports, or other credible evidence that contain specific factual allegations of incompetence under T.C.A. § 40-30-204(e) (now T.C.A. § 40-30-104(e)). Unsupported, conclusory, or general allegations of mental illness will not be sufficient to require tolling and prevent summary dismissal under the statute of limitations contained in T.C.A. § 40-30-202(a) (now T.C.A. § 40-30-102(a)). State v. Nix , 40 S.W.3d 459, 2001 Tenn. LEXIS 107 (Tenn. 2001), overruled, Reid ex rel. Martiniano v. State, 396 S.W.3d 478, 2013 Tenn. LEXIS 84 (Tenn. Jan. 24, 2013), overruled, Crocker v. State, — S.W.3d —, 2013 Tenn. LEXIS 873 (Tenn. Oct. 23, 2013), overruled in part, Green v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 875 (Tenn. Crim. App. Oct. 29, 2015).

Filing an untimely application for permission to appeal to the Tennessee supreme court does not constitute “an appeal” as that term is used in T.C.A. § 40-30-202(a) (now T.C.A. § 40-30-102(a)). Williams v. State, 44 S.W.3d 464, 2001 Tenn. LEXIS 357 (Tenn. 2001).

Period for filing petition for post-conviction relief was tolled as defendant, who argued that DUI sentence had expired, did not receive notice to start serving sentence until two months after limitations period expired. State v. McKnight, 51 S.W.3d 559, 2001 Tenn. LEXIS 580 (Tenn. 2001).

Prisoner's pro se petition, delivered to the proper prison authorities within the time period fixed for filing, was considered timely filed for purposes of Tenn. Sup. Ct. R. 28, § 2(G) even though the mailing address was incorrect at the time of delivery to the prison officials. Paul v. State, 75 S.W.3d 926, 2001 Tenn. Crim. App. LEXIS 482 (Tenn. Crim. App. 2001).

Due process did not preclude the application of the statute of limitations to defendant's post-conviction petition, because defendant's status as a minor was not enough to make a prima facie showing of incompetence to toll the limitations period. Stewart v. State, 95 S.W.3d 229, 2002 Tenn. Crim. App. LEXIS 700 (Tenn. Crim. App. 2002), review or rehearing denied, — S.W.3d —, 2002 Tenn. LEXIS 747 (Tenn. Dec. 23, 2002).

Trial court properly dismissed petitioner's motion for post-conviction relief as time-barred under T.C.A. § 40-30-202(a) (now T.C.A. § 40-30-102(a)), because petitioner failed to file the motion for relief within one year of the date on which the judgment of conviction became final, pursuant to T.R.A.P. 4(a), (c); the court rejected petitioner's argument that the motion was timely as filed within one year of the court's denial of petitioner's motion for a waiver of the timely filing of a notice of appeal. Hill v. State, 111 S.W.3d 579, 2003 Tenn. Crim. App. LEXIS 21 (Tenn. Crim. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 513 (Tenn. May 27, 2003).

Where an inmate's claims were barred by T.C.A. § 40-30-102(a) and (c)'s statute of limitations and one-petition rule, the inmate's motion for voluntary dismissal of his federal habeas corpus petition, which he sought for the purpose of reopening state post-conviction relief proceedings so as to make a meritless claim under the Tennessee Post Conviction DNA Analysis Act of 2001, was denied. Taylor v. Myers, 345 F. Supp. 2d 855, 2003 U.S. Dist. LEXIS 26200 (W.D. Tenn. 2003).

Tennessee court's determination that most of state prisoner's post-conviction claims were procedurally defaulted under T.R.A.P. 10(b) and that his completely new claims were barred by the one-year statute of limitations set forth in T.C.A. § 40-30-102 was supported by independent and adequate state grounds, thereby precluding federal habeas corpus review, because those rules were consistently applied by Tennessee courts and were used to promote the timely presentation of claims. Hodges v. Bell, 548 F. Supp. 2d 485, 2008 U.S. Dist. LEXIS 25780 (M.D. Tenn. Mar. 27, 2008), aff'd, Hodges v. Colson, 711 F.3d 589, 2013 FED App. 75P, 2013 U.S. App. LEXIS 6050 (6th Cir. Mar. 26, 2013).

Inmate's petition for post-conviction relief was barred by the one-year statute of limitation in T.C.A. § 40-30-102(a). Due process did not required the tolling of the statute, although the inmate's attorney had abandoned her and been censured by the bar, because her claims (ineffectiveness of trial counsel) were not late-arising, and she had a six-month period after she learned of the denial of her appeal to file her petition. Ward v. State, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 116 (Tenn. Crim. App. Feb. 11, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 839 (Tenn. Sept. 7, 2010), cert. denied, Ward v. Tennessee, 131 S. Ct. 1614, 179 L. Ed. 2d 511, 79 U.S.L.W. 3513, 2011 U.S. LEXIS 2080 (U.S. 2011).

Denial of petitioner's, an inmate's, motion for post-conviction relief relative to his conviction and sentence for victim one's murder was proper because the inmate had more than ample opportunity in the proceedings below to present the proof necessary to establish tolling and have his murder post-conviction claims heard on the merits. The failure to develop that necessary proof was fatal to all of the claims challenging that murder conviction and resulting life sentence. Smith v. State, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 793 (Tenn. Crim. App. Sept. 21, 2010), rehearing denied, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 914 (Tenn. Crim. App. Oct. 11, 2010), aff'd in part and vacated in part, 357 S.W.3d 322, 2011 Tenn. LEXIS 1152 (Tenn. Dec. 19, 2011).

If treated as a second post-conviction petition as styled by petitioner, through counsel, then the petition was subject to summary dismissal because only one petition for post-conviction relief was permitted, and the petition was barred by the applicable one-year statute of limitations. Ramsey v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 394 (Tenn. Crim. App. May 25, 2016).

Post-conviction court properly dismissed defendant's petition for relief as untimely because the petition was defendant's first and only petition for post-conviction relief, there was no constitutional right to effective assistance of post-conviction counsel, defendant was not excepted from the statute of limitations for post-conviction claims on the basis that a constitutional right was established after the limitations period had run, consideration of the issues asserted on appeal was waived where defendant failed to raise them in his petition for post-conviction relief, defendant's arguments were without merit, and defendant failed to articulate any legitimate explanation for the nearly 10-year delay in filing his petition. Freels v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 496 (Tenn. Crim. App. July 12, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 759 (Tenn. Oct. 19, 2016).

Post-conviction court properly denied defendant's petition for relief summarily because his petition was untimely where the plea agreement documents, judgment form, and plea submission hearing made no mention of his federal sentence, no other possible grounds for tolling the statute of limitations existed, and while trial counsel mistakenly believed that not mentioning defendant's federal sentence on the judgment form of the state conviction would result in concurrent sentencing, counsel's actions did not rise to the level of actively lying or otherwise misleading defendant. Vowell v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 955 (Tenn. Crim. App. Dec. 29, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 259 (Tenn. Apr. 13, 2017).

4. Competency To Be Executed.

The one-year statute of limitations in T.C.A. § 40-30-202(a) (now T.C.A. § 40-30-102(a)) indicates that the General Assembly did not contemplate that post-conviction relief would be available regarding the issue of competency to be executed, as this issue is generally not considered ripe until execution is imminent. Heck Van Tran v. State, 6 S.W.3d 257, 1999 Tenn. LEXIS 602 (Tenn. 1999), cert. denied, Heck Van Tran v. Tennessee, 529 U.S. 1091, 120 S. Ct. 1728, 146 L. Ed. 2d 648, 2000 U.S. LEXIS 2938 (2000).

An allegation of incompetency to be executed does not meet any of the grounds allowing consideration of a petition filed after the statute has run under T.C.A. § 40-30-202(b) (now T.C.A. § 40-30-102(b)), nor does it satisfy any of the criteria for re-opening a petition for post-conviction relief under T.C.A. § 40-30-217(a) (now T.C.A. § 40-30-117(a)). Heck Van Tran v. State, 6 S.W.3d 257, 1999 Tenn. LEXIS 602 (Tenn. 1999), cert. denied, Heck Van Tran v. Tennessee, 529 U.S. 1091, 120 S. Ct. 1728, 146 L. Ed. 2d 648, 2000 U.S. LEXIS 2938 (2000).

5. Survival of Right to Relief.

Those petitions not resolved on their merits are not subject to dismissal. Gibson v. State, 7 S.W.3d 47, 1998 Tenn. Crim. App. LEXIS 1341 (Tenn. Crim. App. 1998).

6. Construction With Other Statutes.

The filing time for a petition for post-conviction relief under T.C.A. § 40-30-202(a) (now T.C.A. § 40-30-102(a)) is not tolled due to mental incompetence under the savings provision in T.C.A. § 28-1-106; it is not to be tolled for any reason except those enumerated under T.C.A. § 40-30-202(b) (now T.C.A. § 40-30-102(b)). Seals v. State, 23 S.W.3d 272, 2000 Tenn. LEXIS 347 (Tenn. 2000).

Because Tennessee's limit of one post-conviction petition to each inmate prevented petitioner from now returning to state court to exhaust his Brady claim, the claim was procedurally defaulted. Smith v. Bell, 381 Fed. Appx. 547, — F.3d —, 2010 FED App. 370N, 2010 U.S. App. LEXIS 12645 (6th Cir.).

7. Construction With Federal Habeas Relief.

Because petitioner state inmate's ineffective assistance of counsel claim was never raised in the state courts, and could still be timely adjudicated therein under T.C.A. § 40-30-102(a), he had failed to fully exhaust all of his claims prior to filing for federal habeas relief and dismissal was proper. Howard v. Steward, — F. Supp. 2d —, 2012 U.S. Dist. LEXIS 98158 (M.D. Tenn. July 16, 2012).

Because petitioner inmate's juror misconduct claim in his federal habeas proceeding did not fall within any of the exceptions in T.C.A. § 40-30-217(a) to the one petition rule of T.C.A. § 40-30-102(c) and because the inmate failed to present the claim to the state courts and no state court remedies remained available, the claim was procedurally defaulted. Hodges v. Colson, 711 F.3d 589, 2013 FED App. 75P, 2013 U.S. App. LEXIS 6050 (6th Cir. Mar. 26, 2013).

Petitioner's juror misconduct claim did not fall within any of the exceptions to Tennessee statute allowing a prisoner challenging a conviction to file only one petition attacking a single judgment, and because he failed to present the claim to the state courts and no state court remedies remained available, the claim was procedurally defaulted. Hodges v. Colson, 727 F.3d 517, 2013 FED App. 224A, 2013 U.S. App. LEXIS 17026 (6th Cir. Aug. 14, 2013).

8. Post-Conviction Relief.

Inmate was entitled to reopen the inmate's former post-conviction case because, treating the inmate's petition as a petition for writ of error coram nobis, documents and affidavits the inmate filed showed a former sheriff willfully suppressed materially exculpatory evidence, even though the legislature did not provide an exception to the statute of limitations or the one petition rule through the reopening process for a Brady violation similar to that in T.C.A.§ 40-30-106(g)(2), so the inmate sufficiently alleged the judgment in the inmate's case might have differed with the evidence and that the inmate was without fault in failing to uncover the evidence, sufficiently alleging the requisites of a petition for writ of error coram nobis. State v. Harris, — S.W.3d —, 2001 Tenn. Crim. App. LEXIS 1010 (Tenn. Crim. App. Dec. 4, 2001), rev'd, 102 S.W.3d 587, 2003 Tenn. LEXIS 313 (Tenn. 2003).

Post-conviction trial court lacked the authority to consider the petitions filed on behalf of defendants where the petition was not signed or verified by defendants under oath, as required by T.C.A. § 40-30-104(d) and (e), and the petition was filed after the one-year statute of limitations had expired, T.C.A. § 40-30-102(a), and the public defender failed to establish a next friend basis upon which to proceed. Holton v. State, 201 S.W.3d 626, 2006 Tenn. LEXIS 331 (Tenn. 2006).

The inmate pressed neither of his due process theories before the state courts and any attempt to seek post-conviction relief in the Tennessee courts would be procedurally barred under T.C.A. § 40-30-102; because the inmate did not establish that he could not have developed his Brady claim in state court and did not explain why he did not present his other due process claim in state post-conviction proceedings, he failed to establish “cause” sufficient to excuse the procedural default. Henley v. Bell, 487 F.3d 379, 2007 FED App. 174P, 2007 U.S. App. LEXIS 11328 (6th Cir. May 15, 2007), rehearing denied, — F.3d —, 2007 U.S. App. LEXIS 25163 (6th Cir. Tenn. Oct. 17, 2007), cert. denied, 171 L. Ed. 2d 886, 128 S. Ct. 2962, 554 U.S. 918, 2008 U.S. LEXIS 5121 (U.S. 2008).

Because appellant received a full hearing and appeal on his original petition, the trial court properly dismissed his motion for new trial or evidentiary hearing on the ground that it was a subsequent petition seeking post-conviction relief; none of the claims appellant asserted qualified to reopen his previous petition because he simply wished to re-litigate his ineffective assistance of counsel claim. Taylor v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 933 (Tenn. Crim. App. Dec. 14, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 239 (Tenn. Apr. 13, 2017).

Petitioner claimed that a county habeas corpus court determined that his petition was timely filed under T.C.A. § 40-30-102 and that this ruling was binding, but this argument failed because the county court's order did not contain anything remotely read as a determination of timeliness, nor would any such determination been valid, as the county court lacked jurisdiction to hear the post-conviction petition. Echeveria v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 649 (Tenn. Crim. App. July 25, 2017).

Post-conviction court erred by summarily dismissing a petition for post-conviction relief on grounds that petitioner had filed more than one petition because he filed only a single, timely post-conviction petition with regard to the conviction at issue; although petitioner previously raised the issue of his trial counsel's effectiveness, he did not do so via a petition for post-conviction relief filed under the terms of the Post-Conviction Procedure Act. Thomas v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 633 (Tenn. Crim. App. Aug. 17, 2018).

Court of criminal appeals lacked jurisdiction to consider petitioner's appeal because he failed to comply with the statutory requirements governing an appeal from the post-conviction court's denial of a motion to reopen; the notice of appeal failed to satisfy the requirements for an application for permission to appeal because it did not state the issues for review, failed to explain why the court of criminal appeals had to grant review, and was not accompanied by the required documents. Simmons v. Lee, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 747 (Tenn. Crim. App. Oct. 2, 2018).

9. Relief Denied.

Petition filed by petitioner, who was sentenced to death on felony murder charges, was denied because (1) petitioner had not demonstrated that he was incompetent or that he created a doubt about his competency where limited intelligence and limited education did not necessarily suggest lack of competence; and (2) petitioner had not satisfied the requirements to prove mental retardation and obtain habeas relief for his Atkins claims. Van Tran v. Bell, — F. Supp. 2d —, 2010 U.S. Dist. LEXIS 146189 (W.D. Tenn. Sept. 30, 2010).

Finding against appellant, an inmate, was appropriate because his current ineffective assistance of counsel claim neither satisfied the requirements for an exception to the statute of limitations bar nor provided a basis for re-opening a ruled upon petition for post-conviction relief, T.C.A. §§ 40-30-102(b); 40-30-117(a). Coleman v. State, 341 S.W.3d 221, 2011 Tenn. LEXIS 319 (Tenn. Apr. 11, 2011), overruled, Dellinger v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 669 (Tenn. Crim. App. Aug. 18, 2015).

Inmate's post-conviction relief petition was properly dismissed because (1) the petition was a second such petition, and no T.C.A. § 40-30-117(a) exception applied, and (2) the inmate's claim that the State failed to disclose exculpatory evidence was not a statutory ground for reopening a post-conviction proceeding. Skipper v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 634 (Tenn. Crim. App. Aug. 26, 2016).

Circuit court properly denied defendant's petition for post-conviction relief because, inter alia, he failed to establish that he was entitled to change of venue where the jurors stated they could set aside what they had heard or read and follow the law, defendant failed to show that trial counsel were ineffective in calling certain experts, in failing to call other or additional experts, in failing to ensure that his blood and urine samples were preserved and independently tested, and in failing to suppress his statements to the police as involuntary due to intoxication and mental health problems. Jordan v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 772 (Tenn. Crim. App. Oct. 14, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 421 (Tenn. July 19, 2017), cert. denied, Jordan v. Tennessee, — L. Ed. 2d —, — S. Ct. —, — U.S. —, 2018 U.S. LEXIS 818 (U.S. Jan. 22, 2018).

Defendant's petition for post-conviction relief was properly denied because defendant challenged his convictions some 17 months after the judgments became final; although defendant claimed in his pro-se petition that he had previously attempted to file a petition for post-conviction relief, no proof of such a petition or the date on which he attempted to file it appeared in the record; the statutory grounds for the tolling of the one-year statute of limitations were not applicable; and due process principles did not mandate the tolling of the statute of limitations as defendant's claim for relief was not later arising. Thomas v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 72 (Tenn. Crim. App. Jan. 31, 2017).

10. Not Entitled to Relief.

Post-conviction court properly dismissed petitioner's application for post-conviction relief; the Post-Conviction Procedure Act does not contemplate an ineffective assistance of counsel claim with regard to counsel appointed to represent a petitioner during a habeas corpus proceeding. Blackstock v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 243 (Tenn. Crim. App. Mar. 31, 2016), review denied and ordered not published, — S.W.3d —, 2016 Tenn. LEXIS 563 (Tenn. Aug. 18, 2016).

Summary dismissal of defendant's petition for post-conviction relief was appropriate because the trial court, at the request of counsel, treated defendant's petition as one for post-conviction relief with a delayed appeal identified as the only relief sought, so that summary dismissal of defendant's second petition for post-conviction relief was required. Branner v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 243 (Tenn. Crim. App. Apr. 3, 2017), review denied and ordered not published, — S.W.3d —, 2017 Tenn. LEXIS 525 (Tenn. Aug. 16, 2017).

Post-conviction court properly denied defendant's second petition for post-conviction relief because his first petition's failure to state a colorable claim was a judgment on the merits, and the post-conviction court was required to dismiss the petition rather than holding a hearing where the record supported court's conclusion that the certification of the State's expert, who had testified as an expert numerous times in civil and criminal trials, was “inevitable,” and defendant could not show that counsel's failure to object had any effect on the results of the proceeding. Benson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 41 (Tenn. Crim. App. Jan. 19, 2018).

11. Tolling.

When a post-conviction petitioner argues that due process requires tolling the Post-Conviction Procedure Act's statute of limitations based on the conduct of his or her lawyer, a two-prong inquiry should guide the analysis; a petitioner is entitled to due process tolling upon a showing (1) that he or she has been pursuing his or her rights diligently, and (2) that some extraordinary circumstance stood in his or her way and prevented timely filing, and specifically, the second prong is met when the prisoner's attorney of record abandons the prisoner or acts in a way directly adverse to the prisoner's interests, such as by actively lying or otherwise misleading the prisoner to believe things about his or her case that are not true. Whitehead v. State, 402 S.W.3d 615, 2013 Tenn. LEXIS 310 (Tenn. Mar. 21, 2013).

Court of criminal appeals erred in affirming an order dismissing a prisoner's petition for post-conviction relief as untimely because he statute of limitations contained in the Post-Conviction Procedure Act of 1995, T.C.A. § 40-30-102, was tolled; the prisoner was effectively abandoned by his appellate attorney, and that abandonment impeded the prisoner's otherwise diligent efforts to file a timely post-conviction petition. Whitehead v. State, 402 S.W.3d 615, 2013 Tenn. LEXIS 310 (Tenn. Mar. 21, 2013).

Prisoner's case did not warrant due process tolling of the post-conviction statute of limitations because he did not diligently pursue his rights when did not file his petition in the intervening years after his discovery of the undisclosed sentence. Bush v. State, 428 S.W.3d 1, 2014 Tenn. LEXIS 16 (Tenn. Jan. 28, 2014).

Although a post-conviction relief petition was untimely, due process required tolling; it was only after the State sought to apply the sex offender registration requirements to petitioner that it possibly breached his plea agreement and triggered his responsibility to pursue his rights diligently. Petitioner filed a post-conviction petition approximately seven months after he was first indicted in Rutherford County; a statute had not been amended to encompass petitioner's conviction when he was charged with failure to comply with the sex offender registry in Wayne County in 2011. Foley v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 35 (Tenn. Crim. App. Jan. 20, 2016).

Petitioner might not have had direct access to the law library, but nothing indicated that he could not communicate with his uncle, who worked in the law library, in order to prepare the petition, plus petitioner was aware that there was a deadline to file the petition, and even if he was unaware, trial counsel's failure to inform him, alone, would not have triggered due process tolling; due process did not require tolling the statute of limitations and the petition was time-barred. Davis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 164 (Tenn. Crim. App. Mar. 4, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 499 (Tenn. June 23, 2016).

It was not error to summarily deny an inmate's post-conviction petition as untimely because the inmate presented no documentation, such as a certificate of service, to support the inmate's explanation that the inmate timely delivered the petition to the appropriate prison authorities for mailing, so nothing in the record preponderated against the post-conviction court's decision to discredit the inmate's testimony. Fowler v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 881 (Tenn. Crim. App. Nov. 23, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 94 (Tenn. Feb. 15, 2017).

Prior final determination, that the erroneous designation of the petitioner's release eligibility was a clerical error, was binding in petitioner's post-conviction petition; thus, the errors in petitioner's release eligibility designation were merely clerical errors and did not result in an illegal sentence and did not toll the statute of limitations for post-conviction relief. Hartley v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 936 (Tenn. Crim. App. Dec. 15, 2016).

Where, as here, the judgment reflects the sentence the petitioner originally agreed to as part of his plea agreement, due process does not require tolling the statute of limitations. Hartley v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 936 (Tenn. Crim. App. Dec. 15, 2016).

Due process did not require tolling of the statute of limitations under T.C.A. § 40-30-102(a) in petitioner's case, as he failed to establish that, based on his alleged mental incompetence, he was unable to understand his legal position or make rational choices among his options; he was able to obtain necessary documentation to support his petition, provide information to jailhouse lawyers regarding why he pleaded guilty, determine that he wanted to file for post-conviction and habeas corpus relief, and communicate effectively. Webb v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 568 (Tenn. Crim. App. June 29, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 650 (Tenn. Oct. 6, 2017).

Petitioner failed to put forth facts that amounted to extraordinary circumstances to justify tolling the statute of limitations because trial counsel's failure to accurately inform petitioner about the statute of limitations was not sufficient to require due process tolling; petitioner had adequate resources and documentation available to determine the correct deadline, and thus, trial counsel's mistaken advice did not constitute attorney abandonment for tolling purposes. Madden v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 599 (Tenn. Crim. App. July 6, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 774 (Tenn. Nov. 16, 2017).

Petitioner argued he was entitled to due process tolling of the statute of limitations under T.C.A. § 40-30-102, but nowhere did he assert that a language barrier prevented him from timely filing his petition, and the issue could not be presented for the first time on appeal under T.C.A. § 40-30-106(d), plus he was aware of the mechanism for filing a post-conviction petition and had an opportunity to present his claims at a meaningful time and in a meaningful manner. Echeveria v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 649 (Tenn. Crim. App. July 25, 2017).

Summary dismissal of defendant's petition for post-conviction relief was appropriate because it was not timely filed under the one-year statute of limitations and defendant did not offer any credible evidence, such as affidavits, depositions, or medical reports, to support defendant's allegations of mental incompetence during the statute of limitations period. Heath v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 813 (Tenn. Crim. App. Sept. 5, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 124 (Tenn. Feb. 22, 2018).

Petition for a writ of habeas corpus was filed outside the one-year statute of limitations, and due process did not toll the statute because petitioner failed to meet the requirements in order to toll the statute of limitations; petitioner's allegations did not demonstrate that he was unable to manage his personal affairs or to understand his legal rights and liabilities. Young v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 35 (Tenn. Crim. App. Jan. 17, 2018).

Even if counsel abandoned petitioner on direct appeal, nothing prevented him from filing his petition in the intervening years between his discovery of abandonment in October 2003 and the filing of his petition in 2014, and this was not a rare case in which it would be unconscionable to enforce the limitation period; because the petition was untimely and due process considerations did not require tolling of the statute of limitations, the petition was properly dismissed as time-barred. Munford v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 151 (Tenn. Crim. App. Feb. 26, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 410 (Tenn. July 18, 2018).

Petitioner could not rely on the statutory tolling provision in T.C.A. § 40-30-102(b)(1) to save his untimely filed post-conviction petition because certain case law did not create a new constitutional right not recognized as existing at the time of petitioner's trial, and even if that case law did, petitioner still was not entitled to tolling because he did not file his post-conviction petition until over a year after that case law was decided. Munford v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 151 (Tenn. Crim. App. Feb. 26, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 410 (Tenn. July 18, 2018).

Petitioner was not entitled to due process tolling for his later-arising ineffective assistance of counsel claim; the delay of more than 10 years between petitioner's learning of trial counsel's abandonment on appeal and his filing of a petition for post-conviction relief demonstrated a lack of diligence on his part, and the conditions of his confinement did not prevent him from working on his case. Munford v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 151 (Tenn. Crim. App. Feb. 26, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 410 (Tenn. July 18, 2018).

Petitioner failed to establish that the statute of limitations should have been tolled due to his alleged mental incompetence; although he presented testimony that he had been diagnosed as having psychotic disorder, not otherwise specified, and major depressive disorder, not otherwise specified, the doctor acknowledged that he had never personally met with or assessed petitioner, plus while he was taking his medication, he had sufficient mental capacity to write letters inquiring about the status of his appeal. Munford v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 151 (Tenn. Crim. App. Feb. 26, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 410 (Tenn. July 18, 2018).

Because the parties did not address whether due process tolling applied to petitioner's case during the post-conviction evidentiary hearing, further development of the record was necessary to determine whether the limitations period could be tolled based on due process; thus, the order denying post-conviction relief was vacated, and the case was remanded for a hearing on whether due process tolled the statute of limitations. Ruby-Ruiz v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 246 (Tenn. Crim. App. Apr. 3, 2018).

Petitioner's post-conviction claims were barred by the statute of limitations, as his original pro se petition was filed after the one-year period expired, and there was no basis for tolling; he failed to rebut the presumption that he was competent, given that he filed a pro se motion to correct an illegal sentence, which demonstrated that he had the capacity to make a rational choice as to continuing or abandoning further litigation, and his claimed ignorance of post-conviction procedures did not operate to toll the statute. Armstrong v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 315 (Tenn. Crim. App. Apr. 25, 2018).

Because the inmate conceded that his petition for post-conviction relief was filed outside of the one-year statute of limitation and his claim that the trial court lacked subject matter jurisdiction did not satisfy any of the available ground for due process tolling, the petition was properly dismissed as untimely. Bunch v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 354 (Tenn. Crim. App. May 8, 2018).

None of the statutory exceptions for tolling the statute of limitations was applicable to petitioner's case, nothing prevented him from filing his petition within the statute of limitations, and his late discovery of his ineffective assistance claim, which stemmed from counsel's failure to inform him of adverse immigration consequences, existed when his judgment became final and was not later-arising; therefore, due process did not require tolling the statute of limitations and his petition was untimely. Hakeem v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 387 (Tenn. Crim. App. May 18, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 584 (Tenn. Sept. 13, 2018).

Due process did not required tolling the statute of limitations, because even if the inmate was in solitary confinement, he could have filed a timely petition for post-conviction relief, as he failed to present proof he attempted to obtain certain documents but was denied access, he was able to send and receive mail, and he filed his petition while he was still in solitary confinement. Gray v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 525 (Tenn. Crim. App. July 6, 2018).

Post-conviction court did not err in denying petitioner's motion to toll the statute of limitations; his proof of incompetence consisted entirely of the testimony of two lay witnesses, and the State presented a psychological evaluation of petitioner conducted in 2004 that determined he did not suffer from a mental illness, such that he failed to show that he was prevented by his mental incompetence from complying with the statute of limitations. Caraway v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 781 (Tenn. Crim. App. Oct. 17, 2018).

Habeas corpus court properly dismissed defendant's petition for writ of habeas corpus relief because he failed to show any illegality on the face of the judgment, any argument that he was adequately advised regarding the community supervision for life requirement was not cognizable in a habeas corpus proceeding, the voluntariness of his plea was not a cognizable basis for habeas corpus relief inasmuch as it required proof beyond the face of the judgment, and he was not entitled to tolling of the post-conviction statute of limitations or the due process clause. Jordan v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 921 (Tenn. Crim. App. Dec. 26, 2018).

Post-conviction court properly dismissed appellant's petition for post-conviction relief as time-barred under T.C.A. § 40-30-102(a). None of the statutory exceptions to the limitations period applied, there were no general due process concerns that favored equitable tolling, and petitioner's argument that due process required tolling because he was denied a constitutional right to effective assistance of counsel was unpersuasive. Wallace v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 289 (Tenn. Crim. App. May 2, 2019).

Petitioner was not entitled to tolling of the statute of limitations and was not entitled to post-conviction relief; he clearly acquiesced to the requirement of supervision for life, and a 10-year delay in filing for relief was certainly not diligent. Fish v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 373 (Tenn. Crim. App. June 27, 2019).

Because defendant's petition for post-conviction relief was untimely filed and due process considerations did not require tolling of the statute of limitations as defendant did not show that defendant's learning disability rendered defendant incompetent and it was defendant's choice not to engage with the clerk in the law library or any other inmate or person who could help defendant with defendant's case; the denial by the post-conviction court of defendant's petition as time-barred was appropriate. Delk v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 102 (Tenn. Crim. App. Feb. 19, 2020).

Defendant alleged facts which, if taken as true, would entitle him to due process tolling of the one-year statute of limitations period in the Post-Conviction Procedure Act because, once he was appointed, the assistant public defender waited until one day before the one-year anniversary of the judgment's being filed to file a motion to withdraw, and he misinformed defendant in open court about the deadline to file; the post-conviction court did not correct the assistant public defender about the filing deadline; and it was reasonable for defendant to assume that if he followed the post-conviction court's instructions, he would be permitted to late-file his post-conviction petition. Smith v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 468 (Tenn. Crim. App. July 8, 2020).

12. Habeas Corpus Petition.

Circuit court did not err by summarily denying petitioner habeas corpus relief because petitioner's claims that he received ineffective assistance of counsel and that the trial court violated his right to a fair trial did not constitute cognizable claims for habeas corpus relief; petitioner filed his petition for post-conviction relief, and the denial of relief was affirmed on appeal. Thomas v. Perry, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 59 (Tenn. Crim. App. Jan. 27, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 254 (Tenn. Apr. 13, 2017).

13. Petition Time Barred.

Post-conviction court did not err by summarily dismissing defendant's petition for post-conviction relief because, although defendant claimed that due process required tolling the statute of limitations, defendant did not raise that claim in the petition for post-conviction relief. Accordingly, the claim was waived because defendant failed to present it to the post-conviction court. Jones v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 413 (Tenn. Crim. App. June 3, 2016).

Petitioner was required to file his petition for post-conviction relief within one year of November 10, 2010, the date of the final action of the highest state appellate court to which an appeal was taken, but petitioner filed his petition on June 19, 2012. This filing occurred more than one year after the Tennessee Supreme Court denied petitioner's application seeking appeal, and thus, was barred by the statute of limitations. Richardson v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 524 (Tenn. Crim. App. July 20, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 899 (Tenn. Nov. 22, 2016).

Post-conviction court properly dismissed petitioner's application for post-conviction relief because it was time barred. Harris v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 568 (Tenn. Crim. App. Aug. 4, 2016).

Post-conviction court did not err in summarily dismissing defendant's petition for post-conviction relief as time-barred because defendant was required to file his petition for post-conviction relief within one year of the date on which the judgment became final; on September 27, 2012, defendant entered a best interest plea to facilitation of kidnapping and received a five-year sentence; defendant filed his petition on December 14, 2015, which was more than one year after the judgment became final; none of the statutory exceptions to the one-year statute of limitations applied; and due process did not require tolling as defendant had been provided an opportunity for the presentation of claims at a meaningful time and in a meaningful manner. Sherron v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 760 (Tenn. Crim. App. Oct. 6, 2016).

Trial court properly denied petitioner post-conviction relief because his petition was filed well outside the one-year statute of limitations; the trial court determined that petitioner had successfully complied with the terms of his community corrections placement and transferred him to supervised probation, and thus, petitioner's efforts to collaterally attack the revocation of his probation availed him nothing. Cox v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 868 (Tenn. Crim. App. Nov. 17, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 105 (Tenn. Feb. 15, 2017).

Trial court properly denied petitioner post-conviction relief because his petition was filed well outside the one-year statute of limitations, and the statutory grounds for the tolling of the statute of limitations, were not applicable; due process principles did not mandate the tolling of the statute of limitations because petitioner's claims for relief were not “later-arising.” Cox v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 868 (Tenn. Crim. App. Nov. 17, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 105 (Tenn. Feb. 15, 2017).

Community supervision for life was a mandatory component of petitioner's sentence, and the fact that subsequent judgments, meant to correct clerical errors, failed to indicate the lifetime supervision requirement did not render the original judgment void or the sentence illegal; the original judgment was a valid final judgment, the statute of limitations for post-conviction relief began to run 30 days after its entry, and petitioner's petition for post-conviction relief was barred by the one-year statute of limitations. Hartley v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 936 (Tenn. Crim. App. Dec. 15, 2016).

Inmate's post-conviction petition was time-barred because, inter alia, (1) the limitations period ran from an amended judgment ordering required lifetime community supervision but not from a corrected judgment granting pretrial jail credit, as the failure to order lifetime supervision made the sentence illegal and judgment void, but not awarding pretrial jail credit did not, and (2) the petition was not filed within one year of the amended judgment. Murphy v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 260 (Tenn. Crim. App. Apr. 6, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 501 (Tenn. Aug. 16, 2017).

Inmate's post-conviction petition was time-barred because, inter alia, when the inmate claimed delayed receipt of the amended judgment from which the limitations period ran, (1) the inmate did not explain why the inmate did not file within ten months left between the judgment's receipt and the period's expiration, so the inmate did not diligently pursue the inmate's rights and no extraordinary circumstances barred timely filing, and (2) no discovery rule applied. Murphy v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 260 (Tenn. Crim. App. Apr. 6, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 501 (Tenn. Aug. 16, 2017).

Inmate's post-conviction petition was time-barred because, inter alia, the inmate did not allege (1) a statutory exception to the statute of limitations, or (2) the inmate's claim arose after the statute expired, the inmate's mental incompetence barred compliance with the statute, or counsel's misconduct. Murphy v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 260 (Tenn. Crim. App. Apr. 6, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 501 (Tenn. Aug. 16, 2017).

Defendant's post-conviction petition was time-barred because trial counsel's filing of a post-judgment motion for modification of sentence was not an extraordinary impediment to the timely filing of a post-conviction petition. Furthermore, defendant, although aware that there was some time limitation, did not attempt to diligently pursue defendant's rights between defendant's sentencing and the filing of a post-conviction petition. Locke v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 290 (Tenn. Crim. App. Apr. 19, 2017).

Petitioner sought post-conviction relief over five years after he pleaded guilty; the petition was filed outside the limitations period under T.C.A. § 40-30-102 and was properly dismissed under T.C.A. § 40-30-106. Echeveria v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 649 (Tenn. Crim. App. July 25, 2017).

Even if the remaining charges were still pending until May 6, 2013, as petitioner claimed, he still did not file for post-conviction relief in Hickman County until June 18, 2015, and he did not file for relief in Wilson County until May 16, 2016, and thus both petitions were in any event filed outside of the one-year limitations period under T.C.A. § 40-30-102. Echeveria v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 649 (Tenn. Crim. App. July 25, 2017).

Appellate court was without jurisdiction to consider defendant's appeal because his petition for post-conviction relief was barred by the one-year statute of limitations for filing a petition for post-conviction relief inasmuch as it was filed well over a year after the final decision by the highest appellate court from which defendant sought relief and the case did not fall within the three statutory exceptions, and the record did not show that defendant was denied the reasonable opportunity to assert a claim in a meaningful time and manner. Bond v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 732 (Tenn. Crim. App. Aug. 16, 2017).

Petitioner waived any equitable tolling argument because he failure to advance that argument in the habeas corpus court; the habeas corpus court properly found that due process would not toll the statute of limitations in petitioner's case because the petition for a writ of habeas corpus was filed outside the one-year statute of limitations. Young v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 35 (Tenn. Crim. App. Jan. 17, 2018).

Petition for post-conviction relief was untimely because it was filed over a month outside of the statute of limitations; because the case did not fall within the three exceptions, the post-conviction court did not have jurisdiction to consider the petition unless petitioner could establish that he was denied the reasonable opportunity to assert a claim in a meaningful time and manner, entitling him to due process tolling. Ruby-Ruiz v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 246 (Tenn. Crim. App. Apr. 3, 2018).

Dismissal of defendant's petition for post-conviction relief was appropriate because the petition was filed outside the statute of limitations. Furthermore, tolling of the statute of limitations was not required in that defendant failed to establish that defendant was unable to understand defendant's legal rights and liabilities due to a mental illness or defect as defendant was not a credible witness and defendant's medical records indicated that defendant was feigning mental illness and unwilling to be honest about defendant's mental health. Jones v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 477 (Tenn. Crim. App. June 27, 2018).

Defendant's petition for post-conviction relief was time-barred because defendant filed the petition outside of the one-year limitations period and because defendant failed to present any facts to support due process tolling of the statute of limitations as defendant relied on advice from another inmate in filing defendant's petition and trial counsel, who withdrew from defendant's case after the denial of defendant's direct appeal, was under no duty to inform defendant of the post-conviction deadline. Townsend v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 519 (Tenn. Crim. App. July 12, 2018).

Petition for post-conviction relief was properly dismissed as untimely as defendant failed to show that counsel's advice was an extraordinary circumstance that prevented him from filing a timely post-conviction petition because counsel went over the plea petition with defendant line-by-line and specifically noted that defendant was waiving his right to appeal; counsel did not discuss post-conviction matters with defendant; the colloquy from the guilty plea hearing did not mention waiver of post-conviction or collateral review; and there was simply no proof that counsel misrepresented the law on post-conviction procedure, misrepresented the status of defendant's case, abandoned defendant, or acted in a way adverse to defendant's interests. Lester v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 560 (Tenn. Crim. App. July 26, 2018).

Because the inmate filed his petition for post-conviction relief just over nine years after his guilty plea, and over three years after his federal sentence was imposed, his riling was time barred by the one-year statute of limitations. Young v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 711 (Tenn. Crim. App. Sept. 20, 2018).

Order denying petitioner's post-conviction petition as time-bared had to be upheld because no facts existed that required a tolling of the statute of limitations for due process concerns; petitioner knew of his post-conviction rights, but his petition for post-conviction relief was not filed until twenty-three years later, and petitioner's claim that the trial court failed to advise petitioner of his right against self-incrimination at the guilty plea hearing was not “later-arising.” Fuller v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 636 (Tenn. Crim. App. Oct. 8, 2019).

Postconviction court properly dismissed defendant's petition for relief as time-barred because his petition for post-conviction relief exceeded the statute of limitations by approximately three months where the statute of limitations began to run on the day the Tennessee Supreme Court denied review, statutory tolling did not apply as there was no newly recognized constitutional right in defendant's case, and no authority existed for due process tolling of the statute of limitations due to bad advice from inmate legal advisors. Taylor v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 519 (Tenn. Crim. App. July 28, 2020).

14. Post Conviction Petition Timely Filed.

Record reflected that appellant's judgment became final on June 10, 2013, and he had one year from that date to file a petition for post-conviction relief. Because appellant filed his petition on January 10, 2014, his petition was timely under T.C.A. § 40-30-102(a), and petitioner was entitled to an evidentiary hearing on his petition. Robinson v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 141 (Tenn. Crim. App. Feb. 24, 2016).

15. Post-conviction relief.

Any failure by the prosecution to disclose that the murder victim may have been involved in the drug trade did not support a claim of actual innocence to excuse the procedural default of that claim by petitioner death row inmate for failure to timely raise it in the state courts because, in light of the other evidence, it was largely irrelevant; although the fact that the victim was suspected of transporting guns might increase the likelihood that it was actually the victim, not petitioner, who was armed and initiated the fight, the jury heard testimony that the victim had earlier stated he had a gun, the jury had been told of the victim's traveling companion's prior drug convictions, and the companion and another witness testified that petitioner had a gun. Abdus-Samad v. Bell, 420 F.3d 614, 2005 U.S. App. LEXIS 18250 (6th Cir. Tenn. 2005), cert. denied, 549 U.S. 952, 127 S. Ct. 380, 166 L. Ed. 2d 269, 2006 U.S. LEXIS 7515 (2006).

16. In Custody.

Post-conviction court erred in concluding that it lacked jurisdiction over the case because the inmate's sentence had been served, because the inmate, who was still on probation at the time he filed the petition, met the technical requirements of being “in custody,” and the custody requirement of the post-conviction statute was satisfied by the fact that a challenged conviction could be used to enhance a sentence on another conviction. Floyd v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 644 (Tenn. Crim. App. Aug. 30, 2016).

Post-conviction court erred in summarily dismissing defendant's petition for post-conviction relief, for lack of jurisdiction as defendant's probation had expired, because defendant was found guilty of a misdemeanor driving under the influence (DUI) and, although the sentence had expired, the conviction could be used to enhance a future sentence, particularly if defendant was charged with a second DUI. Defendant was still subject to collateral legal consequences from defendant's expired sentence. Dates v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 48 (Tenn. Crim. App. Jan. 24, 2017).

40-30-103. Grounds for relief.

Relief under this part shall be granted when the conviction or sentence is void or voidable because of the abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of the United States.

Acts 1995, ch. 207, § 1; T.C.A. § 40-30-203.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 18.19, 22.140.

Law Reviews.

Adjudicating Claims of Innocence for the Capitally Condemned in Tennessee: Embracing a Truth Forum (Dwight Aarons), 76 Tenn. L. Rev. 511 (2009).

Due Process Tolling of the Post-Conviction Statute Of Limitations in Tennessee After Whitehead v. State, 10 Tenn. J. L. & Pol'y 8 (2014).

Post-Conviction Relief in Tennessee — Fourteen Years of Judicial Administration Under the Post-Conviction Procedure Act (Gary L. Anderson), 48 Tenn. L. Rev. 605 (1981).

The Tennessee Court of Criminal Appeals: A Study and Analysis, 66 Tenn. L. Rev. 427 (1999).

NOTES TO DECISIONS

1. In General.

A petition for post-conviction relief is the authorized avenue for attacking voidable judgments; such judgments are facially valid and requires the introduction of proof beyond the face of the record or judgment to establish invalidity. Taylor v. State, 995 S.W.2d 78, 1999 Tenn. LEXIS 324 (Tenn. 1999), cert. denied, Gwin v. Tennessee, 528 U.S. 915, 120 S. Ct. 270, 145 L. Ed. 2d 226, 1999 U.S. LEXIS 6457 (1999).

Since defendant was not arguing that the sentence was invalid, but was instead arguing that the defendant's DUI sentence had expired, post-conviction relief act was inapplicable. State v. McKnight, 51 S.W.3d 559, 2001 Tenn. LEXIS 580 (Tenn. 2001).

Trial court erred in denying petitioner's request for habeas corpus relief; trial court did not have jurisdiction to revoke petitioner's judicial diversion as no revocation warrant nor petition to revoke was filed before the term of judicial diversion expired. Alder v. State, 108 S.W.3d 263, 2002 Tenn. Crim. App. LEXIS 735 (Tenn. Crim. App. 2002).

Order revoking probation and mandating that the sentence originally imposed be carried out was not a sentence subject to collateral attack under the provisions of the statute; the statute did not permit the filing of a petition under its provisions to attack collaterally the validity of a proceeding to revoke the suspension of sentence and/or probation. Young v. State, 101 S.W.3d 430, 2002 Tenn. Crim. App. LEXIS 822 (Tenn. Crim. App. 2002), appeal denied, — S.W.3d —, 2003 Tenn. LEXIS 146 (Tenn. Feb. 18, 2003).

Ward v. State, which states that trial courts have an affirmative duty, before accepting a guilty plea to a crime carrying a mandatory sentence of community supervision for life, to inform the defendant of the consequence of lifetime supervision, is not retroactive for purposes of tolling the post-conviction statute of limitations. Bush v. State, 428 S.W.3d 1, 2014 Tenn. LEXIS 16 (Tenn. Jan. 28, 2014).

Retroactivity of new constitutional rules in post-conviction proceedings is determined using T.C.A. § 40-30-122, not Meadows v. State. Bush v. State, 428 S.W.3d 1, 2014 Tenn. LEXIS 16 (Tenn. Jan. 28, 2014).

2. Limitations.

Because the post-conviction court denied relief on October 27, 2014, the notice of appeal was due on or before November 26, but the State has not asked this court to dismiss the appeal and petitioner requested permission to file a late notice of appeal; in the interest of justice, the timely filing of the notice of appeal was waived and his claims were addressed on the merits. Dodd v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 26 (Tenn. Crim. App. Jan. 14, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 341 (Tenn. May 6, 2016).

Due process did not require tolling of the statute of limitations, as the inmate testified that counsel informed him that counsel was withdrawing and would not be representing him in any further proceedings, the inmate filed a timely pro se application for permission to appeal as counsel advised him to do, and the inmate made no allegation that any misrepresentation made by counsel led him not to file his post-conviction petition until more than four years after the statute of limitations expired. Jones v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 189 (Tenn. Crim. App. Mar. 14, 2017).

Record suggested that petitioner's probation for attempted promotion of prostitution ended in 2005 and unless he was convicted of subsequent sexual offenses, he would be eligible to seek termination from the sex offender registry; it also appeared that T.C.A. § 40-39-207(i)(3)(A) was directly applicable as the offense for which he pleaded guilty in 2004 was not classified as a sexual offense until 2012. If his request was denied, he could still petition the chancery court for review and thus post-conviction relief was not available. Woodson v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 36 (Tenn. Crim. App. Jan. 24, 2020).

3. Violation of Constitutional Right Required.

A claim which asserts that a plea was not voluntarily and knowingly entered implicates a defendant's due process rights; it therefore falls squarely within the ambit of issues appropriately addressed in a post-conviction petition. State v. Wilson, 31 S.W.3d 189, 2000 Tenn. LEXIS 519 (Tenn. 2000).

Defendant's arguments did not present a colorable claim for post-conviction relief because the Tennessee statute at issue, which declared that evading arrest with a motor vehicle was a Class E felony unless the flight or attempt to elude created a risk of death or injury to innocent bystanders or other third parties, in which case it was a Class D felony, was not void for vagueness, as the statute clearly required gauging the riskiness of conduct in which an individual defendant engaged on a particular occasion. Russell v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 624 (Tenn. Crim. App. Aug. 22, 2016).

Trial court required petitioner's counsel to review an audiotape recording of the voir dire before ordering a transcription of the hearing, and petitioner could not be granted post-conviction relief on the issue related to a potential Batson claim when he failed to exercise due diligence and actually listen to a copy of the audiotape. Lewis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 722 (Tenn. Crim. App. Sept. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 38 (Tenn. Jan. 20, 2017).

There was no error in the post-conviction court's refusal to admit evidence of the State's chart used during jury selection; the prosecutor stated there were no notations related to race or ethnicity, and it could not be concluded that the admission of the chart would have in any way aided petitioner in a potential Batson claim, and no post-conviction relief was warranted. Lewis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 722 (Tenn. Crim. App. Sept. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 38 (Tenn. Jan. 20, 2017).

4. —Right to Counsel.

Judgment was not void on its face and was instead entitled to the presumption of regularity where it contained a blank line where defense counsel was ordinarily listed, and the preprinted “Waiver of Attorney” was not signed by defendant. The judgment did not clearly reflect that the defendant was denied the right to counsel, the judgment was at most voidable, rather than void, and a post-conviction petition was the proper method for attacking a voidable judgment. Hickman v. State, 153 S.W.3d 16, 2004 Tenn. LEXIS 828 (Tenn. 2004).

Defendant's petition for post-conviction relief was properly denied because defendant's right to counsel was not violated as no conflict of interest existed because, although trial counsel had previously represented a witness, counsel was unaware of the witness's connection to defendant's case during counsel's representation of the witness; counsel did not obtain confidential information relevant to defendant's case during counsel's representation of the witness; counsel and the witness did not discuss any conduct that could have been used to impeach the witness at defendant's trial; and nothing about counsel's representation of the witness would have impaired counsel's ability to represent defendant. Woodard v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 847 (Tenn. Crim. App. Nov. 8, 2016).

Because there was no right to effective assistance of counsel on defendant's motion for correction of an illegal sentence, defendant's claim for post-conviction relief could not be premised on the supposed deficiency of counsel in the proceeding. Northener v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 309 (Tenn. Crim. App. Apr. 25, 2017).

5. —Competence of Counsel.

Petitioner, requesting post-conviction relief from conviction for second-degree murder, was denied effective assistance of counsel when trial counsel failed to object to an erroneous jury instruction informing the jury of sentence ranges, failed to preserve the issue for appeal, and failed to raise the issue on direct appeal. Dean v. State, 59 S.W.3d 663, 2001 Tenn. LEXIS 765 (Tenn. 2001).

Where two defendants were convicted of first degree murder, both counsels' failure to object to the erroneous jury instructions regarding the release eligibility date for a person convicted of first degree murder was deficient and prejudicial, thus denying each defendant of his constitutional right to effective counsel; defendants were entitled to post-conviction relief. Vaughn v. State, 202 S.W.3d 106, 2006 Tenn. LEXIS 843 (Tenn. 2006), overruled in part, Brown v. Jordan, 563 S.W.3d 196, 2018 Tenn. LEXIS 728 (Tenn. Dec. 6, 2018).

Defendants are entitled to counsel with reasonable competence, determined by whether the advice given, or the services rendered by the attorney are within the range of competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 1975 Tenn. LEXIS 605 (Tenn. 1975).

The standards of counsel competence apply to privately retained attorneys as well as to those appointed by the court. Baxter v. Rose, 523 S.W.2d 930, 1975 Tenn. LEXIS 605 (Tenn. 1975).

Conclusory allegations that the attorney general abused his discretion in seeking the death penalty were not worthy of constitutional significance, and the trial court was entitled to dismiss the claim without an evidentiary hearing. Cooper v. State, 847 S.W.2d 521, 1992 Tenn. Crim. App. LEXIS 484 (Tenn. Crim. App. 1992).

Defense counsel's failure to object to the jury instructions regarding the law of aggravated rape did not constitute ineffective assistance of counsel since at the time defendant allegedly committed the offense (August 1978 — May 1979), the offense of aggravated rape did not exist, and this instruction was an accurate statement of the law as it existed at the time the indictment was returned. Overton v. State, 874 S.W.2d 6, 1994 Tenn. LEXIS 94 (Tenn. 1994).

Defendant's petition for post-conviction relief was properly denied because counsel made a reasonable, strategic choice to avoid testing evidence that he rationally expected would produce results that were inculpatory to defendant, even though the testing of the victim's fingernail scrapings ultimately proved favorable to defendant; and defendant did not establish a violation of the principles of fundamental fairness under the Due Process Clause as, while genetic material from a male other than defendant found under the victim's fingernails had exculpatory value, it was not exonerating, and the evidence was not so exculpatory that it undermined the confidence in the verdict or raised a reasonable probability of a different result at trial. Waterford v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 772 (Tenn. Crim. App. Oct. 16, 2018).

Counsel's alleged ineffective assistance did not entitle defendant to post-conviction relief because (1) counsel did not call witnesses presented at a post-conviction hearing for strategic reasons, (2) no relief could be granted for not calling a witness not so presented, (3) counsel's failure to cross-examine the victim on certain statements was reasonably strategic, as such cross-examination would have opened the door to harmful evidence, (4) counsel's failure to object to the prosecutor's improper statements was not prejudicial, and (5) counsel credibly testified counsel advised defendant of all charges. Romero v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 321 (Tenn. Crim. App. May 20, 2019).

Inmate was not entitled to post-convicton relief based on the alleged ineffective assistance of counsel, because counsel was not ineffective for failing to file a motion to sever as it would not have been granted and the inmate received benefits from being tried together with co-defendant, the inmate failed to show that more meetings with trial counsel would have altered the course of the trial, the claim of failure to investigate lacked merit as the inmate could not show prejudice, and trial counsel's cross-examination of an officer was not deficient. Williams v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 342 (Tenn. Crim. App. June 7, 2019).

Defendant was not entitled to post-conviction relief following a conviction for sexually abusing defendant's stepdaughter because defendant failed to prove that defendant was denied effective assistance of counsel based on trial counsel's failure to raise in a motion for new trial the admissibility of opinion testimony from a school resource officer and character testimony regarding the victim from a school counselor and failure to object to the prosecutor's statements during closing argument about the truthfulness of the victim's testimony. Petr Pompa v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 767 (Tenn. Crim. App. Dec. 2, 2019).

It was proper to deny petitioner post-conviction relief because he failed to prove by clear and convincing evidence that trial counsel failed to thoroughly investigate the case or adequately communicate with petitioner; counsel's accredited testimony established that he met with petitioner at least 30 times leading up to the petitioner's trial, and petitioner failed to present any evidence or witnesses that counsel could have discovered with further investigation. Bozza v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 24 (Tenn. Crim. App. Jan. 17, 2020).

It was proper to deny petitioner post-conviction relief because he failed to prove by clear and convincing evidence that trial counsel performed deficiently by failing to object to a judge's testimony as hearsay; trial counsel did in fact move to exclude the judge's testimony on hearsay grounds, and the trial court held a jury-out hearing to determine the admissibility of the judge's testimony and found the statements admissible as hearsay exceptions. Bozza v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 24 (Tenn. Crim. App. Jan. 17, 2020).

It was proper to deny petitioner post-conviction relief because he failed to prove by clear and convincing evidence sufficient facts to support his claim that trial counsel's representation was deficient; although petitioner complained about counsel's inadequate advice prior to his proffering statements to the State, he failed to show any prejudice because he presented no proof that he would not have cooperated with the State had counsel advised him the statements could be used against him. Bozza v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 24 (Tenn. Crim. App. Jan. 17, 2020).

Denial of post-conviction relief to defendant was appropriate because defendant did not prove that defendant's counsel was ineffective as counsel explained to defendant the ramifications of being a Range II offender, the elements of the offenses, and the evidence which the State of Tennessee intended to use. Counsel fully advised defendant about the plea agreement, explained to defendant the theory of criminal responsibility, informed defendant of the rights defendant was waiving, and gave sound advise for defendant to enter a guilty plea. Chapman v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 30 (Tenn. Crim. App. Jan. 23, 2020).

Defendant was not entitled to post-conviction relief for ineffective assistance of counsel because defendant failed to establish deficient performance and prejudice relative to counsel's informed decision not to pursue a mental health defense. Walton v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 110 (Tenn. Crim. App. Feb. 19, 2020).

Defendant failed to prove that defendant's trial counsel provided ineffective assistance in failing to impeach a witness with the prior inconsistent statements of the witness denying that the witness could identify the shooter in an incident and in failing to move for a mistrial when the State of Tennessee referenced defendant's exercise of the right to remain silent because counsel's decisions were tactical in nature and entitled to deference. Furthermore, another eyewitness to the shooting identified defendant as the shooter. McEwen v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 114 (Tenn. Crim. App. Feb. 19, 2020).

Defendant did not show that counsel was ineffective based on counsel's decision not to seek suppression of the statement which defendant made to the police because, in the situation of counsel presenting self-defense as defendant's primary theory if a mistaken identity theory was not borne out by the testimony of witnesses, parts of defendant's statement aided this theory and thus counsel opted to keep the statement as part of the evidence, so counsel could have used the helpful portions were the self-defense theory to have been presented. Dowdy v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 115 (Tenn. Crim. App. Feb. 19, 2020).

Inmate was not entitled to post-conviction relief from his guilty plea to one count each of burglary, identity theft, credit card fraud, forgery, simple possession of marijuana, and driving on a revoked license, based on the alleged ineffective assistance of counsel because the inmate failed to show by clear and convincing evidence that latter counsel did not properly inform him of the theft grading system prior to his plea agreement and thereby rendered deficient performance. Owen v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 418 (Tenn. Crim. App. June 17, 2020).

Inmate's counsel was not ineffective for failing to effectively present opening argument by using essentially the same argument in the inmate's second murder trial that had been used during his first trial, and therefore the inmate was properly denied post-conviction relief, because there was no reason to conclude that a different presentation by counsel would have altered the jury's verdict and sentence. The record supported the conclusion that it was a strategic decision regarding the information presented in the opening statement, that the limitation on the information revealed was reasonable under the circumstances, and counsel considered and rejected reasonable alternative courses of action. Keen v. State, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 442 (Tenn. Crim. App. June 5, 2006), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 1032 (Tenn. Oct. 30, 2006), cert. denied, Keen v. Tennessee, 550 U.S. 938, 127 S. Ct. 2250, 167 L. Ed. 2d 1097, 2007 U.S. LEXIS 5243 (2007).

Inmate's counsel was not ineffective for failing to investigate and present certain mitigating evidence, because the mitigating evidence that was presented was extensive, thorough, and aptly conveyed the mitigation theme relating to long-term implications of the childhood abuse the inmate sustained; the inmate failed to establish substantially different new mitigation evidence. Even if counsel's performance was unreasonable, the inmate was not prejudiced, as the state offered extremely powerful evidence of aggravating factors, including the fact that the eight-year-old victim was raped, strangled, and thrown into a river while still alive, where she drowned. Keen v. State, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 442 (Tenn. Crim. App. June 5, 2006), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 1032 (Tenn. Oct. 30, 2006), cert. denied, Keen v. Tennessee, 550 U.S. 938, 127 S. Ct. 2250, 167 L. Ed. 2d 1097, 2007 U.S. LEXIS 5243 (2007).

Inmate's counsel was not ineffective for failing to prepare defense witnesses, on the ground that they first met with counsel the night before the first hearing or the day of the hearing and met with them collectively rather than individually, and therefore the inmate was properly denied post-conviction relief, because counsel had adequate contact with the witnesses, who were the inmate's family members, prior to and throughout the trial. The new information elicited from the inmate's siblings was only marginally relevant to the inmate's mitigation in that the information specifically related to the individual siblings well after their separation from the inmate. Keen v. State, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 442 (Tenn. Crim. App. June 5, 2006), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 1032 (Tenn. Oct. 30, 2006), cert. denied, Keen v. Tennessee, 550 U.S. 938, 127 S. Ct. 2250, 167 L. Ed. 2d 1097, 2007 U.S. LEXIS 5243 (2007).

Inmate's counsel was not ineffective for committing errors regarding the use of an expert, and therefore the inmate was properly denied post-conviction relief, because: (1) The expert diagnosed the inmate as suffering from post-traumatic stress disorder, which was consistent with the diagnoses of the inmate's siblings; (2) The expert testified as to the abuse the inmate suffered when he was a child; and (3) The inmate was unable to produce a diagnosis that he suffered from fetal alcohol syndrome, and therefore counsel could not be deemed ineffective for failing to inform the expert about the alleged damage the inmate suffered from in utero alcohol exposure. Keen v. State, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 442 (Tenn. Crim. App. June 5, 2006), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 1032 (Tenn. Oct. 30, 2006), cert. denied, Keen v. Tennessee, 550 U.S. 938, 127 S. Ct. 2250, 167 L. Ed. 2d 1097, 2007 U.S. LEXIS 5243 (2007).

Dismissal of petitioner's, an inmate's, petition for post-conviction relief was appropriate because he failed to prove by clear and convincing evidence under T.C.A. § 40-30-110(f) that he received the ineffective assistance of counsel. In part, although the inmate contended that his trial counsel was ineffective for not filing a motion for the arrest histories of the witnesses testifying at trial, the post-conviction court found that the state had no obligation to turn over arrest histories of witnesses and even if it were required, there was no proof that the histories would have changed the outcome of the case. Wilkerson v. State, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 587 (Tenn. Crim. App. July 14, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 1193 (Tenn. Dec. 8, 2010), cert. denied, Wilkerson v. Tennessee, 180 L. Ed. 2d 856, 131 S. Ct. 3035, 564 U.S. 1025, 2011 U.S. LEXIS 4727 (U.S. 2011).

Dismissal of petitioner's, an inmate's, petition for post-conviction relief was appropriate because he failed to prove by clear and convincing evidence under T.C.A. § 40-30-110(f) that he received the ineffective assistance of counsel. In part, he failed to prove that had his trial counsel argued for concurrent sentences, that the sentences would have been ordered to be served concurrently; the trial court, in sentencing him, noted his lack of credibility, his lack of remorse, and his “atrocious” criminal history. Wilkerson v. State, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 587 (Tenn. Crim. App. July 14, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 1193 (Tenn. Dec. 8, 2010), cert. denied, Wilkerson v. Tennessee, 180 L. Ed. 2d 856, 131 S. Ct. 3035, 564 U.S. 1025, 2011 U.S. LEXIS 4727 (U.S. 2011).

Denial of petitioner's, an inmate's, motion for post-conviction relief relative to his death sentence for victim two's murder was inappropriate because the post-conviction court erred in denying the inmate's claim that his trial attorneys provided ineffective assistance in their investigation and presentation of available evidence in support of their motion to recuse the 1995 resentencing judge. Smith v. State, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 793 (Tenn. Crim. App. Sept. 21, 2010), rehearing denied, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 914 (Tenn. Crim. App. Oct. 11, 2010), aff'd in part and vacated in part, 357 S.W.3d 322, 2011 Tenn. LEXIS 1152 (Tenn. Dec. 19, 2011).

Petitioner was not entitled to post-conviction relief because he did not receive ineffective assistance due to trial counsel's failure to object to the jury's verdict; the jury convicted petitioner of possession of cocaine with intent to sell and possession of cocaine with intent to deliver, T.C.A. § 39-17-417(a)(4), which were based on the same operative facts, facts established only a single criminal offense, and the trial court merged the two findings of guilt into a single conviction and correctly entered a single judgment of conviction. Taylor v. State, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 88 (Tenn. Crim. App. Feb. 7, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 367 (Tenn. May 16, 2012), cert. denied, Taylor v. Tennessee, 2012 U.S. LEXIS 7724, 568 U.S. 924, 133 S. Ct. 382, 184 L. Ed. 2d 226 (U.S. 2012).

Petitioner was not entitled to post-conviction relief because he did not receive ineffective assistance due to trial counsel's failure to request that the state be required to make an election of offenses since the arresting officer testified as to only a single drug transaction between petitioner and another individual; jury unanimity concerns are simply not implicated where the jury is considering proof of only one offense. Taylor v. State, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 88 (Tenn. Crim. App. Feb. 7, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 367 (Tenn. May 16, 2012), cert. denied, Taylor v. Tennessee, 2012 U.S. LEXIS 7724, 568 U.S. 924, 133 S. Ct. 382, 184 L. Ed. 2d 226 (U.S. 2012).

Denial of post-conviction relief in a capital case was proper, as petitioner's Sixth Amendment right to effective counsel was not violated; petitioner's claim that voir dire was inadequate was not supported, as the record reflected that trial counsel and the prosecution questioned jurors about whether they could consider death, life without parole, and life imprisonment. Robinson v. State, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 251 (Tenn. Crim. App. Mar. 20, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 653 (Tenn. Aug. 14, 2013), cert. denied, Robinson v. Tennessee, 188 L. Ed. 2d 960, 134 S. Ct. 1936, — U.S. —, 2014 U.S. LEXIS 3072 (U.S. 2014).

Because the post-conviction court made specific factual findings that counsel and an inmate discussed and decided against a third appeal, and that that understanding was confirmed in a letter to the inmate, counsel's failure to file a waiver of appeal was not ineffective assistance of counsel to allow post-conviction relief with a delayed appeal. Arroyo v. State, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 586 (Tenn. Crim. App. July 10, 2013), aff'd, 434 S.W.3d 555, 2014 Tenn. LEXIS 370 (Tenn. May 21, 2014).

Trial court did not err in denying petitioner post-conviction relief because she failed to show that counsel provided deficient performance or that she was prejudiced by counsel's performance; counsel informed petitioner of the potential outcomes at the sentencing hearing, and there was no evidence that petitioner contacted counsel to express any misunderstanding of the possible sentence. Strickland v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 128 (Tenn. Crim. App. Feb. 14, 2014), dismissed, Strickland v. Qualls, — F. Supp. 2d —, 2017 U.S. Dist. LEXIS 143652 (E.D. Tenn. Sept. 6, 2017).

Petitioner was not entitled to post-conviction relief based on ineffective assistance of counsel; the failure to investigate and preserve any available evidence was deficient performance, but despite the inability to play messages for the jury, petitioner was able to introduce evidence about their contents, and thus he was not prejudiced. Williamson v. State, 476 S.W.3d 405, 2015 Tenn. Crim. App. LEXIS 267 (Tenn. Crim. App. Apr. 14, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 595 (Tenn. July 21, 2015).

Failure to consult a mental health expert and to obtain an evaluation of petitioner was deficient performance, as the State was required to prove a premeditated, intentional killing, but defendant was not prejudiced because the doctor's testimony was not admissible and prompt consultation would not have affected the defense; he only said it was a possibility that due to a mental disease, petitioner lacked capacity, and evidence of certain diagnoses was not relevant and admissible without an opinion regarding the ultimate issue of petitioner's capacity to form the required mens rea, such that he was not entitled to post-conviction relief. Williamson v. State, 476 S.W.3d 405, 2015 Tenn. Crim. App. LEXIS 267 (Tenn. Crim. App. Apr. 14, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 595 (Tenn. July 21, 2015).

Petitioner was not entitled to post-conviction relief based on ineffective assistance of counsel; he failed to prove that his attorneys' investigation, preparation, or trial performance was inadequate, or that the attorneys were ineffective in the preparation for and cross-examination of a particular witness, and he was not deprived of the opportunity to present a defense by the exclusion of evidence. Williamson v. State, 476 S.W.3d 405, 2015 Tenn. Crim. App. LEXIS 267 (Tenn. Crim. App. Apr. 14, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 595 (Tenn. July 21, 2015).

Counsel advised petitioner not to testify due to his admission that he was connected to money seized from the vehicle and there was no indication that counsel's strategy was from a lack of preparation; ineffective assistance was not shown and petitioner was not entitled to post-conviction relief. Vasquez v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1079 (Tenn. Crim. App. May 28, 2015).

As petitioner failed to show ineffective assistance , he was not entitled to post-conviction relief; counsel testified that he met with petitioner multiple times, both with and without an interpreter, and counsel explained that he was able to effectively communicate with petitioner without an interpreter and petitioner understood English to a greater extent than his actions indicated, such that counsel was not deficient for failing to use an interpreter in all meetings. Vasquez v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1079 (Tenn. Crim. App. May 28, 2015).

Petitioner failed to prove that trial counsel's representation was deficient or prejudicial, and thus the denial of post-conviction relief was affirmed; counsel was certain that she reviewed the requirements of the sexual offender registry with petitioner, counsel saw no basis to file a motion to suppress, and this reasonable trial strategy would not be second-guessed, and the record showed petitioner's understanding of the proceedings and his willingness to enter into the plea agreement. Holland v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 8 (Tenn. Crim. App. Jan. 8, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 467 (Tenn. June 23, 2016).

Denial of post-conviction relief to petitioner was proper; he failed to prove that trial counsel's alleged failure to discuss the bill of particulars or the filing of a motion to sever constituted ineffective assistance of counsel, and because petitioner did not produce either of his proposed witnesses, or any other medical expert, he failed to establish that counsel was ineffective in this respect, and his cumulative error claim was without merit. Harrison v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 14 (Tenn. Crim. App. Jan. 12, 2016).

Nothing indicated that the State made a plea offer, and petitioner's argument conceded that the post-conviction court's ruling that there was no deficient performance was correct; petitioner's brief did not raise any issue regarding whether counsel's failure to engage in plea negotiations constituted ineffective assistance, and the issue was waived, plus as the strength of the State's case was good, it was unlikely that the State would have made an attractive offer, and petitioner failed to show that he was prejudiced by the failure of his counsel to pursue an offer of settlement, and he was not entitled to post-conviction relief. Rollins v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 19 (Tenn. Crim. App. Jan. 12, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 332 (Tenn. May 6, 2016).

Evidence did not preponderate against the post-conviction court's finding that counsel advised petitioner of his right to testify and merely informed him of a possible drawback of his potential testimony, in that his prior criminal record might be used against him; counsel stated that the decision to testify ultimately rested with petitioner, which he acknowledged, and thus he was not entitled to relief, as ineffective assistance was not shown. Rollins v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 19 (Tenn. Crim. App. Jan. 12, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 332 (Tenn. May 6, 2016).

To the extent the post-conviction court determined that previous convictions would have been per se admissible had petitioner testified, that conclusion was not supported by the record; regardless of whether petitioner's prior convictions would have been admissible, the possibility still existed that such evidence might have been admitted had he chosen to testify, and thus even if the State did not file a notice of intent to impeach, counsel's advice that the prior convictions might be introduced was not without legal merit, and ineffective assistance was not found in this regard. Dodd v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 26 (Tenn. Crim. App. Jan. 14, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 341 (Tenn. May 6, 2016).

Petitioner pointed to nothing in a witness's evidentiary hearing testimony that would have been favorable to the defense at trial, and thus he had not proven either deficient performance or prejudice and was not entitled to post-conviction relief. Dodd v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 26 (Tenn. Crim. App. Jan. 14, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 341 (Tenn. May 6, 2016).

Post-conviction relief was not warranted because it was not shown that trial counsel was ineffective under the United States and Tennessee Constitutions based on a failure to call a witness; petitioner testified that he did not know what the witness would have said if she had been allowed to testify at trial, and the witness did not testify at the post-conviction hearing. Foley v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 35 (Tenn. Crim. App. Jan. 20, 2016).

Post-conviction relief was not warranted because it was not shown that sentencing counsel was ineffective under the United States and Tennessee Constitutions; counsel adequately prepared for the sentencing hearing, and she adequately advised petitioner about the waiver of his right to seek a new trial and to appeal. Petitioner did not show how sentencing counsel's failure to object to the erroneous application of one enhancement factor at sentencing prejudiced him because two other sentencing factors were properly applied. Foley v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 35 (Tenn. Crim. App. Jan. 20, 2016).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly dismissed because the co-defendant's trial counsel testified that he observed defendant in open court reject the State's final plea offer and waive his right to testify; and, with respect to the alleged conflict of interest regarding one of the co-defendants' appellate counsel, defendant failed to present any evidence establishing that the attorney participated in the prosecution of the case or was even aware that those offenses had occurred during her time as an Assistant District Attorney General, and defendant did not present any evidence as to how the alleged conflict of interest would have affected his direct appeal. Clark v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 41 (Tenn. Crim. App. Jan. 20, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 357 (Tenn. May 6, 2016).

Evidence did not preponderate against the finding that counsel was not deficient by failing to object to the trial judge's proper application of the law and that counsel did not provide deficient performance relative to lesser included offenses; petitioner did not meet his burden and was not entitled to relief on this basis. Diggs v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 148 (Tenn. Crim. App. Feb. 29, 2016).

Post-conviction relief was not warranted in a case where an applicant entered guilty pleas because ineffective assistance of counsel was not shown; the applicant's testimony that he and defense counsel never reviewed the charges against him or the discovery materials and that they never spoke of matters other than the plea offer was rejected. Moreover, counsel's letter to the prosecutor, which the applicant signed, stated that counsel had spent hours reviewing the case with the applicant; in addition, counsel's notes contained multiple references to obtaining assistance from the applicant's family regarding the plea offer, and the applicant testified that his family and church members were actively involved in his defense. Booker v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 170 (Tenn. Crim. App. Mar. 7, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 453 (Tenn. June 23, 2016).

Petitioner could not establish that but for the omission of challenge sheets, the outcome of his direct appeal would have been different, given that even without them, it was known to the court that four Caucasians and six African-Americans were removed from the jury, and the reasons for such removal were race neutral; nothing indicated that had the court been able to identify each juror by race and reason for removal, petitioner would have established purposeful discrimination, he did not show prejudice, and he was not entitled to relief on ineffective assistance of counsel grounds. Sanders v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 185 (Tenn. Crim. App. Mar. 2, 2016), appeal dismissed, — S.W.3d —, 2016 Tenn. LEXIS 585 (Tenn. Aug. 19, 2016).

Post-conviction court found that trial counsel was very prepared with a very valid strategy for the second trial, there were not any additional witnesses that trial counsel could have called that would have affected the outcome of the trial, and trial counsel also testified that his struggles with depression began after petitioner's trial; the record did not preponderate against the findings of the post-conviction court, and petitioner was not entitled to post-conviction relief on ineffective assistance grounds. Sanders v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 185 (Tenn. Crim. App. Mar. 2, 2016), appeal dismissed, — S.W.3d —, 2016 Tenn. LEXIS 585 (Tenn. Aug. 19, 2016).

Counsel testified that his reasons for asking certain questions and not objecting had to do with privileged conversations he had with his client, and thus petitioner had not established that trial counsel performed deficiently; moreover, petitioner could not show that he suffered prejudice because even without a witness's testimony, there was ample evidence that petitioner's vehicle was operational, as petitioner's wife was able to start the car and drive it off of the tow lot the next day when she came to retrieve it, and petitioner was not entitled to relief. Kinsler v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 201 (Tenn. Crim. App. Mar. 17, 2016).

Petitioner failed to prove by clear and convincing evidence his factual allegation that general sessions counsel did not convey the plea offer to him and did not discuss the repercussions of rejecting that offer, and thus he was not entitled to relief on this matter. Rice v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 229 (Tenn. Crim. App. Mar. 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 606 (Tenn. Aug. 19, 2016).

Because petitioner did not produce either of his proposed witnesses at the evidentiary hearing, he failed to establish that counsel was ineffective in this respect and he was not entitled to post-conviction relief. Rice v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 229 (Tenn. Crim. App. Mar. 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 606 (Tenn. Aug. 19, 2016).

Counsel recalled talking with petitioner about his options, and he ultimately decided to waive his right to a preliminary hearing; petitioner had not proven his ineffective assistance allegations by clear and convincing evidence, and he was not entitled to relief. Rice v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 229 (Tenn. Crim. App. Mar. 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 606 (Tenn. Aug. 19, 2016).

Because petitioner offered no meaningful testimony at the hearing and did not even allege that a motion to suppress was appropriate or would have been granted, this ineffective assistance of counsel issue lacked merit and he was not entitled to post-conviction relief. Rice v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 229 (Tenn. Crim. App. Mar. 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 606 (Tenn. Aug. 19, 2016).

Post-conviction court found that petitioner's decision not to testify was the reason a self-defense instruction was not given, and thus even if he had proven that he was lawfully upon the premises when he shot the victims, the trial court would still have not instructed the jury on self-defense due to the rest of the evidence adduced at trial, and petitioner has not proven prejudice as to his ineffective assistance claim and was not entitled to relief. Rice v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 229 (Tenn. Crim. App. Mar. 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 606 (Tenn. Aug. 19, 2016).

Defendant failed to prove by clear and convincing evidence that defendant received ineffective assistance of counsel when trial counsel failed to file a pre-trial motion to dismiss the charge against defendant of robbery, based on the loss of a surveillance video of the incident, because eyewitnesses testified that defendant was the one who robbed the victim. Therefore, defendant failed to show that defendant was prejudiced by counsel's failure, or that counsel's performance was in any way deficient. Weston v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 230 (Tenn. Crim. App. Mar. 29, 2016).

Other than petitioner's testimony, no evidence was presented to support his claim that he and the victim knew each other and conspired in the robbery; the State provided a letter at the post-conviction hearing, written by petitioner, in which he confessed to robbing the convenience store, and while he contended that the victim's phone records would have shown they were in contact prior to the robbery and damaged her credibility at trial, he did not offer those phone records, and counsel's representation was not ineffective and petitioner was not entitled to relief. Crawford v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 286 (Tenn. Crim. App. Mar. 31, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 583 (Tenn. Aug. 19, 2016).

Petitioner failed to identify or call any witnesses who might have changed the outcome of his trial, and counsel testified that he investigated petitioner's potential alibi witness but could not establish an alibi; beyond petitioner's own testimony, which was discredited by the post-conviction court, he put forth no proof demonstrating that he received ineffective assistance, and thus he was not entitled to post-conviction relief. Williams v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 289 (Tenn. Crim. App. Apr. 8, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 718 (Tenn. Sept. 26, 2016).

Defendant failed to prove prejudice because, although defendant claimed that counsel was ineffective in failing to subpoena alibi witnesses at trial or to obtain the transcript of a preliminary hearing wherein defendant alleged that they testified, defendant failed to present the testimony of the witnesses or a transcript from the preliminary hearing at a post-conviction hearing. Neither the post-conviction court, nor the appellate court could speculate as to what the testimony may have been or whether it would have been favorable to defendant. Horstead v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 370 (Tenn. Crim. App. May 18, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 672 (Tenn. Sept. 22, 2016).

Petition for post-conviction relief alleging ineffective assistance of counsel in defendant's first-degree murder conviction was properly denied because trial counsel and defendant discussed pursuing a defense of a crime of passion as the physical proof did not fit the self-defense theory; defendant failed to present an expert in forensics, blood spatter analysis, or neuropharmacology at the evidentiary hearing, and the appellate court could not speculate what any of those expert witnesses might have testified to at trial; and counsel did not err in failing to call those witnesses as they were not needed due to the abandonment of the self-defense theory, which was a reasonable trial strategy that the appellate court would not second-guess. Sutton v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 398 (Tenn. Crim. App. May 25, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 701 (Tenn. Sept. 23, 2016).

Post-conviction relief was not warranted in first degree felony murder case because there was no showing of ineffective assistance of counsel under the United States or Tennessee Constitutions, even though a recording of a 911 call was not introduced into evidence after the jury was told during opening statements that they would hear the call. The decision not to play the recording was an informed tactical decision based upon adequate preparation; it was not in the best interest of petitioner to play the recording based on the fact that he sounded unemotional. Long v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 389 (Tenn. Crim. App. May 26, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 553 (Tenn. Aug. 18, 2016).

Petitioner failed to show ineffective assistance of counsel, and thus he was not entitled to post-conviction relief; counsel's opening statement was not deficient and counsel made strategic reasons not to call certain witnesses. Smith v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 400 (Tenn. Crim. App. May 27, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 776 (Tenn. Oct. 17, 2016).

Post-conviction court properly denied petitioner post-conviction relief because petitioner failed to establish that trial counsel was ineffective for failing to obtain surveillance videotape; petitioner failed to present the videotape at the post-conviction hearing, and trial counsel testified that he requested the footage after his appointment, but it was unavailable. Gant v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 406 (Tenn. Crim. App. June 1, 2016).

Post-conviction court properly denied petitioner post-conviction relief because petitioner failed to establish that trial counsel's performance regarding the alibi defense was deficient or prejudicial; trial counsel testified that he interviewed several individuals before he and petitioner agreed that a witness was the only person who could possibly testify as an alibi witness. Gant v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 406 (Tenn. Crim. App. June 1, 2016).

Post-conviction court properly denied petitioner post-conviction relief because petitioner failed to establish that trial counsel's performance was ineffective; because petitioner did not present an alleged perpetrator or any other witnesses showing that he was the perpetrator, petitioner failed to show that trial counsel was ineffective in failing to investigate the existence of the perpetrator. Gant v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 406 (Tenn. Crim. App. June 1, 2016).

Post-conviction court properly denied petitioner post-conviction relief because petitioner failed to establish that trial counsel was ineffective for failing to investigate and question the victim; petitioner failed to provide one shred of evidence that a conspiracy existed, and even if the allegation were true, such evidence would not have a reasonable probability of changing the outcome. Gant v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 406 (Tenn. Crim. App. June 1, 2016).

Trial counsel's cross-examination of witnesses was neither deficient nor prejudicial because counsel effectively and vigorously cross-examined the witnesses, and petitioner failed to show that additional cross-examination would have further eroded their credibility such that it would have changed the outcome of trial. Gant v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 406 (Tenn. Crim. App. June 1, 2016).

Defendant did not meet defendant's burden of showing by clear and convincing evidence that defendant was entitled to post-conviction relief, based upon trial counsel's failure to provide effective assistance, because the witnesses whom defendant proposed to have testify were either not able to testify about the alleged rape incident or were a liability due to their having been victims of a robbery by defendant. Moreover, trial counsel chose a reasonable strategy of impeaching the victim because of the victim's multiple inconsistent statements. Cooper v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 412 (Tenn. Crim. App. June 3, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 549 (Tenn. Aug. 18, 2016).

Defendant failed to prove by clear and convincing evidence that trial counsel's representation was deficient or prejudicial because defendant failed to show that defendant was not sufficiently informed of the charges or that defendant was prejudiced by an alleged variance in the indictments; trial counsel informed defendant, on more than one occasion, of defendant's sentencing range and offender classification; and defendant failed to introduce into evidence a copy of the notice of enhancement for a defective notice of enhancement claim. Watts v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 437 (Tenn. Crim. App. June 14, 2016).

Post-conviction court did not err in finding that petitioner had not proven by clear evidence that he had received ineffective assistance of counsel, as one of the prosecutors testified that he did not observe counsel sleeping during the trial and that it seemed that counsel was paying attention, plus as to other claims, petitioner failed to prove prejudice; the evidence against him was overwhelming, counsel presented the only plea offer given by the State, and petitioner failed to show a connection between counsel's subsequent disbarment and petitioner's claims. Flores v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 459 (Tenn. Crim. App. June 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 789 (Tenn. Oct. 19, 2016).

Evidence did not preponderate against the post-conviction court's findings that counsel effectively negotiated and conveyed the 25-year offer to petitioner and effectively cross-examined a witness by successfully showing inconsistencies in his testimony, and further that counsel was not deficient by failing to request a mistrial; petitioner was not entitled to post-conviction relief. Stewart v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 467 (Tenn. Crim. App. June 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 766 (Tenn. Oct. 19, 2016).

Although the loss of the toxicology report was not condoned, the loss of the report and failure to present the results at the trial did not constitute deficient performance and petitioner was not entitled to post-conviction relief; petitioner's blood alcohol concentration was determined at least five days after the victim's death, would have had no evidentiary value at the trial, and would not have been relevant to show his conduct was mitigated by intoxication. Stewart v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 467 (Tenn. Crim. App. June 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 766 (Tenn. Oct. 19, 2016).

Record supported the post-conviction court's finding that counsel did not engage in any meaningful pretrial investigation as to the collision in question, and counsel's failure to investigate constituted deficient performance; however, prejudice was not shown, as the evidence against petitioner was overwhelming, and he failed to show that the outcome of his trial would have been any different had counsel presented an expert accident reconstructionist, and thus petitioner was not entitled to post-conviction relief. Stewart v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 467 (Tenn. Crim. App. June 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 766 (Tenn. Oct. 19, 2016).

Although counsel might have doubted whether the victim's injuries were caused by an automobile collision, counsel had a duty to investigate this, and thus the conclusion that counsel was deficient by failing to investigate, including obtaining a medical expert to review the autopsy report, was supported; however, petitioner failed to establish he was prejudiced because he did not present an independent forensic pathologist expert at the post-conviction hearing, and he was not entitled to relief. Stewart v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 467 (Tenn. Crim. App. June 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 766 (Tenn. Oct. 19, 2016).

Although petitioner, who sought post-conviction relief, argued that her uncle was too inexperienced with criminal law and procedure to effectively represent her, petitioner did not point to any specific deficient performance by her uncle that prejudiced the outcome of her trial. Pursell v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 478 (Tenn. Crim. App. July 5, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 799 (Tenn. Oct. 19, 2016).

Post-conviction court did not err in denying defendant's petition alleging ineffective assistance of counsel because counsel's failure to file a portion of the transcript from the sentencing hearing, detailing the trial court's conversation with defendant's family, did not affect the appellate court's review of defendant's sentence, given his extensive criminal history; counsel stated that the trial court's discussion with defendant's family was not part of the sentencing decision and, thus, counsel did not think it would be relevant on appeal; and defendant did not show that, had counsel filed the transcript, the appellate court's decision on appeal with regard to defendant's sentence would have been different. Johnson v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 520 (Tenn. Crim. App. July 19, 2016).

Petition for post-conviction relief alleging ineffective assistance of counsel was properly denied because trial counsel testified that he chose not to introduce into evidence a photograph of an actor that the victim stated that defendant looked like as defendant's passing resemblance to the actor could have been potentially detrimental to his case; counsel elected not to question the victim about any alleged mental health issues as he believed that to do so would have only increased the jury's sympathy toward the victim; counsel determined that no legal justification existed to pursue the adequacy of the charging instruments issue; and defendant failed to show that he was prejudiced by counsel's failure to seek recusal of the trial judge. Turner v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 533 (Tenn. Crim. App. July 22, 2016).

Post-conviction court properly denied appellant's petition for post-conviction relief. Appellant, who was convicted of first degree murder, failed to meet his burden of showing that counsel was deficient for not pursuing an intoxication defense and not requesting a jury instruction on intoxication. Segura v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 548 (Tenn. Crim. App. July 26, 2016).

Defendant's petition for post-conviction relief alleging ineffective assistance of trial counsel was properly denied as counsel was not ineffective by conceding the defense during her opening statement because, even if trial counsel was deficient in her opening statement, defendant failed to establish that any deficiency resulted in prejudice due to the overwhelming evidence of guilt presented at trial. Blake v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 554 (Tenn. Crim. App. July 27, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 896 (Tenn. Nov. 22, 2016).

In a case where defendant was convicted of first degree felony murder during perpetration of aggravated child abuse or neglect, trial counsel was not ineffective in failing to object to a sentence of life imprisonment without first holding a sentencing hearing as a life sentence was the minimum sentence allowed for first degree felony murder; and in failing to object to the trial court's imposition of an illegal sentence because a sentence of life imprisonment was not an indefinite amount of time; and the trial court was not required to specify a term of years when sentencing a defendant to life imprisonment. Blake v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 554 (Tenn. Crim. App. July 27, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 896 (Tenn. Nov. 22, 2016).

Defendant's petition for post-conviction relief alleging ineffective assistance of trial counsel was properly denied because counsel determined that a reasonable defense strategy to first degree felony murder during the perpetration of aggravated child abuse or neglect involved establishing that defendant's actions were a form of discipline, that he did not intend to injure the victim, and that he should be convicted of a lesser charge of negligent or reckless homicide; and counsel's failure to implicate the victim's mother did not constitute deficient performance as defendant did not present any evidence demonstrating that the mother's conduct could have caused the victim's death or could have constituted a break in the chain of events. Blake v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 554 (Tenn. Crim. App. July 27, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 896 (Tenn. Nov. 22, 2016).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly denied as defendant's trial counsel specifically testified that, while she advised defendant not to testify based on his criminal history, she did not coerce or prevent him from doing so; although defendant testified that he wanted to testify at his trial, he failed to offer any substantive evidence at the hearing of what his testimony would have been; defendant's own testimony was that counsel urged him to accept the plea agreement several times as the evidence against him was overwhelming, and nothing indicated that she ever advised him to reject the agreement; and counsel saw no basis for a motion for change of venue. Godwin v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 502 (Tenn. Crim. App. July 13, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 892 (Tenn. Nov. 22, 2016).

Defendant's petition for post-conviction relief in alleging ineffective assistance of counsel was properly denied because trial counsel was not ineffective for failing to call defendant's wife as a witness at trial as defendant did not call his own wife to testify at the post-conviction hearing; the record did not preponderate against the post-conviction court's conclusion that trial counsel exercised reasonable judgment when deciding not to call defendant's wife as a witness because she revealed that she actually encouraged defendant to skip his court appearance; trial counsel thought the wife's testimony would be damaging to the case; and defendant did not prove that he was somehow forced to testify solely because his wife did not. Lynch v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 594 (Tenn. Crim. App. Aug. 11, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 876 (Tenn. Nov. 16, 2016).

Post-conviction court properly denied defendant's request for relief based on ineffective assistance of counsel because counsel testified that she met with defendant two times at the jail and seven or eight times at court; she stated that she had reviewed all discovery with defendant as well as the results of both psychiatric evaluations and their possible impact; at the post-conviction hearing, defendant acknowledged that during the evaluations, he exhibited a knowledge and understanding of some of the specific evidence alleged against him, while also maintaining that counsel had not reviewed the evidence with him; and counsel testified that defendant did not want a trial on the charges and, thus, she worked toward a settlement. Drewry v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 660 (Tenn. Crim. App. Sept. 1, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 972 (Tenn. Dec. 15, 2016).

On direct appeal, it was determined that any incidents of alleged prosecutorial misconduct did not affect the outcome of the trial, and thus petitioner had not proven by clear and convincing evidence that he was prejudiced by counsels' failure to object to the State's closing argument, and petitioner was not entitled to post-conviction relief. Barlow v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 672 (Tenn. Crim. App. Sept. 9, 2016).

Petitioner failed to establish that co-counsel had an actual conflict of interest; petitioner knew co-counsel had worked with the hospital experts and he was fine with co-counsel still representing him, co-counsel's interaction with these experts did not present an actual conflict in that he was not representing differing interests, plus co-counsel was not hindered in his ability to cross-examine the experts, and thus petitioner was not entitled to post-conviction relief. Barlow v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 672 (Tenn. Crim. App. Sept. 9, 2016).

Post-conviction court erred when it denied petitioner post-conviction relief, as counsel was ineffective for failing to accurately inform petitioner that his sentence was not eligible for sentencing credit and that he would be required to serve the 15-year sentence day-for-day; petitioner, relying on Counsel's advice, was significantly misinformed, given that petitioner was required to serve two years and three months more than counsel had stated, and thus petitioner's plea was not knowing and voluntary. Davis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 677 (Tenn. Crim. App. Sept. 9, 2016).

Post-conviction court did not err in finding that petitioner had not proven by clear and convincing evidence, that he had received the ineffective assistance of counsel; co-counsel, who had medical training and experience, stated that his review of the medical records led him to the same conclusions as the State's expert, both counsels testified that after reviewing the proposed defense expert's affidavit, they still believed that his testimony would not have benefited the case, and thus he was not prejudiced by counsels' failure to retain an expert witness and petitioner was not entitled to post-conviction relief. Barlow v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 672 (Tenn. Crim. App. Sept. 9, 2016).

Defendant was not entitled to post-conviction relief because defendant failed to show that defendant's guilty plea was not knowingly, voluntarily, and intelligently entered due to the ineffective assistance of counsel. Defendant failed to show that counsel was deficient in the investigation or preparation of defendant's cases, or that defendant would have insisted on proceeding to trial but for the ineffective assistance of counsel, while the trial court properly and thoroughly explained the nature and consequences of defendant's guilty plea. Gray v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 691 (Tenn. Crim. App. Sept. 16, 2016).

Trial counsel did object to statements by the investigator that he visited petitioner in jail to obtain a DNA sample because counsel saw no need to do so based on the theory of defense he was pursuing; this was a strategic decision made by trial counsel, to which deference was given, plus prejudice was not demonstrated, as the short colloquy would not have had an impact on the verdict in this case, and petitioner was not entitled to post-conviction relief. Lewis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 722 (Tenn. Crim. App. Sept. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 38 (Tenn. Jan. 20, 2017).

Trial counsel cross-examined the eyewitnesses regarding their vantage point and ability to see the altercation, the post-conviction court found that trial counsel was well-prepared for trial, and petitioner was not entitled to relief on ineffective assistance of counsel grounds. Lewis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 722 (Tenn. Crim. App. Sept. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 38 (Tenn. Jan. 20, 2017).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly denied because, with regard to the transparencies admitted at trial, defendant failed to show that the State committed prosecutorial misconduct in its closing argument that it was defendant's vehicle shown on the transparencies, and thus counsel was not ineffective for failing to object. Fields v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 742 (Tenn. Crim. App. Sept. 29, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 21 (Tenn. Jan. 19, 2017).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly denied as trial counsel was not ineffective for failing to request a change of venue because trial counsel decided not to seek a change in venue as he was able to select a jury he felt was fair and impartial from the first panel; and because trial counsel testified that in his experience the alternative venue was usually a more rural East Tennessee county, and he did not think that defendant would draw a more favorable jury in such a county. Fields v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 742 (Tenn. Crim. App. Sept. 29, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 21 (Tenn. Jan. 19, 2017).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly denied because trial counsel was not ineffective for failing to call a professor as an expert witness at trial as trial counsel testified that his primary reason for not calling the professor was because he did not think a jury would find his explanation that the transparencies were not of sufficient quality to allow for the identification of defendant's vehicle persuasive; and counsel was concerned that calling the professor would open the door to the State calling a rebuttal expert witness that had previously been excluded as the State's rebuttal witness would have been devastating to defendant's case. Fields v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 742 (Tenn. Crim. App. Sept. 29, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 21 (Tenn. Jan. 19, 2017).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly denied as trial counsel explained that he decided not to introduce the bank's tape of vehicles passing the bank between 12:15 and 12:30 p.m. on the day of the offense at trial because, according to the timeline presented by the State at trial, the crime occurred sometime between 11:50 and 12:00 p.m.; the tape did not show defendant's vehicle and therefore had no probative value; and defendant failed to establish that he suffered prejudice as a result of the State's disclosure of the bank tape 12 days prior to trial given that the tape lacked probative value. Fields v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 742 (Tenn. Crim. App. Sept. 29, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 21 (Tenn. Jan. 19, 2017).

Defendant's petition for post-conviction relief was properly denied as defendant's trial counsel was not ineffective for failing to provide appropriate accommodations for defendant's hearing difficulties during his trial because nothing in the record preponderated against the trial court's finding that trial counsel's testimony was truthful with regards to defendant's ability to hear and communicate during his trial as trial counsel explained that defendant gave input throughout his trial, and she communicated effectively with him during the trial. Gibbs v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 770 (Tenn. Crim. App. Oct. 13, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 106 (Tenn. Feb. 16, 2017).

Counsel was not deficient in questioning the victim about an assault perpetrated by another person, thereby opening the door to evidence regarding prior abuse that the victim suffered at the hands of petitioner; this was a strategic decision and did not affect the results of the trial, and there was no reasonable probability that admitting this evidence would have affected the outcome, and thus petitioner was not entitled to post-conviction relief. Medlock v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 792 (Tenn. Crim. App. Oct. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 127 (Tenn. Feb. 21, 2017).

Trial counsel's failure to require DNA testing was not deficient because testing could not have been conducted with the technology in existence at the time and also because choosing to avoid testing was a reasonable trial strategy; petitioner was not entitled to post-conviction relief. Medlock v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 792 (Tenn. Crim. App. Oct. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 127 (Tenn. Feb. 21, 2017).

Petitioner had not shown that more frequent communication or further investigation would have led to a reasonable probability that the outcome of the trial would have been different, and his convictions were supported by overwhelming evidence, and thus petitioner failed to establish any sort of prejudice for ineffective assistance of counsel purposes, and he was not entitled to post-conviction relief. Medlock v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 792 (Tenn. Crim. App. Oct. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 127 (Tenn. Feb. 21, 2017).

Trial court conducted a thorough examination to ensure that petitioner understood the rights he was waiving, and the post-conviction court credited counsel's testimony that petitioner was aware that the sentence was for 30 years' imprisonment, plus the plea hearing transcript showed that petitioner acknowledged his understanding; the evidence against him was a strong inducement to plead guilty to avoid a greater penalty, and thus the plea was knowing and voluntary, counsel was not ineffective, and petitioner was not entitled to post-conviction relief. Townsel v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 793 (Tenn. Crim. App. Oct. 21, 2016).

Petitioner did not substantiate his claim that counsel failed to disclose additional exculpatory evidence to him and failed to explain the extent of the State's proof; the testimony of counsel established that petitioner was informed of the evidence known prior to the plea agreement, and petitioner failed to show that counsel acted deficiently in communicating with him or that he suffered any prejudice, and he was not entitled to post-conviction relief. Townsel v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 793 (Tenn. Crim. App. Oct. 21, 2016).

Defendant failed to show that defendant received ineffective assistance of counsel based on trial counsel's (1) failure to adequately investigate and discover a third statement to law enforcement by a witness, because the action was not prejudicial as the jury appeared to have discredited the testimony by the witness; and (2) failure to call witnesses, because counsel made an informed, tactical decision as one of the witnesses was unreliable and the other witness was apparently not going to give beneficial testimony to defendant's case. Good v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 803 (Tenn. Crim. App. Oct. 28, 2016).

Post-conviction court did not err in denying defendant's petition for post-conviction relief alleging ineffective assistance of counsel because defendant did not present any evidence to dispute the fact that the park near where the drug sale took place was a city park and a drug free zone; trial counsel contacted the city recorder or someone at city hall and confirmed that the park near where the drug sale took place was registered as a city park; and the post-conviction court found that there was nothing further trial counsel could have done to indicate that it was not a drug free zone. Gauldin v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 835 (Tenn. Crim. App. Nov. 7, 2016).

Post-conviction court did not err in denying defendant's petition for post-conviction relief alleging ineffective assistance of counsel because trial counsel told defendant on numerous occasions that he would be sentenced as a Range III, Persistent Offender; prior to each of his two trials, trial counsel and the trial court discussed defendant's sentence range with him; and defendant's letter noting that he rejected the State's six-year offer twice belied his claim that he would have pled guilty had he known his status as a Range III, Persistent Offender. Gauldin v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 835 (Tenn. Crim. App. Nov. 7, 2016).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel based on counsel's failure to object to the racial composition of the jury was properly denied because, although jury venires were supposed to constitute a fair-cross-section of the community; defendant did not argue or present any proof that African Americans were unfairly underrepresented in his county or that such underrepresentation resulted in their systematic exclusion from jury venires as there was no data from the court clerk explaining how jurors were selected, and no census reports to compare the population of African Americans in the county against the number of African Americans selected for jury service. Gauldin v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 835 (Tenn. Crim. App. Nov. 7, 2016).

Post-conviction court did not err in denying defendant's petition for post-conviction relief as defendant's trial counsel was not ineffective for failing to have a gunshot residue test conducted by the Tennessee Bureau of Investigation because counsel testified that his decision not to pursue testing was tactical, positing that arguing the lack of testing was easier than dealing with potentially negative test results; and defendant failed to show that counsel's decision hurt his defense as he did not present any gunshot residue test results at the post-conviction hearing, and as such he could not prove that counsel's tactical decision prejudiced him. Chalmers v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 836 (Tenn. Crim. App. Nov. 7, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 151 (Tenn. Feb. 28, 2017).

Petitioner neither specified what discovery he wanted, nor described how the discovery would have affected his decision to go to trial, and thus he failed to establish deficient performance or prejudice resulting from trial counsel's failure to request the discovery, and petitioner was not entitled to post-conviction relief. Thomas v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 840 (Tenn. Crim. App. Nov. 7, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 153 (Tenn. Feb. 28, 2017).

Only proof in support of claims of ineffective assistance was petitioner's and trial counsel's testimony, and the post-conviction court accredited trial counsel's testimony and completely discredited petitioner's testimony, which was not reviewed on appeal; petitioner failed to establish deficient performance or prejudice and he was not entitled to relief. Thomas v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 840 (Tenn. Crim. App. Nov. 7, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 153 (Tenn. Feb. 28, 2017).

Petitioner had not alleged that his proffer testimony was coerced or otherwise falsely given, and trial counsel did not have advanced notice that a proffer would be requested and he did speak with petitioner; he failed to show how trial counsel failed to prepare him for the proffer in this case and petitioner was not entitled to post-conviction relief. Thomas v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 840 (Tenn. Crim. App. Nov. 7, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 153 (Tenn. Feb. 28, 2017).

Defendant's petition for post-conviction relief was properly denied as trial counsel was not ineffective for failing to adequately investigate possible defenses associated with defendant's mental health and intoxication because his claim of innocence rendered immaterial his mental health and intoxication, and his denial of involvement in the shooting prevented a defense of mitigating evidence in an effort to obtain a conviction for a lesser included offense; and counsel was not ineffective for failing to challenge the admission of the letter defendant wrote while in jail as he testified that he wrote the letter and admitted that he asked an individual to burn a witness's house; thus, a handwriting expert was unnecessary. Woodard v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 847 (Tenn. Crim. App. Nov. 8, 2016).

Defendant's petition for post-conviction relief alleging ineffective assistance of trial counsel was properly denied because trial counsel's accredited testimony established that, although he lost two weeks' preparation time after defendant tried to change attorneys, he was fully prepared for defendant's trial; trial counsel interviewed a potential witness but deemed her potential testimony not credible or persuasive; and trial counsel's decision not to attack the six-year-old victim was a reasonable trial strategy. Watt v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 849 (Tenn. Crim. App. Nov. 10, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 110 (Tenn. Feb. 16, 2017).

Defendant's petition for post-conviction relief alleging ineffective assistance of appellate counsel was properly denied because defendant presented no evidence to suggest that appellate counsel's failure to request oral argument affected the outcome of his appeal; appellate counsel's accredited testimony established that it was her belief that the appellate brief was the primary vehicle of appellate advocacy; and defendant failed to show how appellate counsel's inclusion in her brief of certain portions of the victim's testimony would have altered the outcome on appeal. Watt v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 849 (Tenn. Crim. App. Nov. 10, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 110 (Tenn. Feb. 16, 2017).

Post-conviction court properly denied petitioner post-conviction relief because he failed to prove he received ineffective assistance of counsel when entering his guilty pleas; trial counsel testified that he discussed trial strategy with petitioner and explained the plea negotiations with petitioner, and at the guilty plea hearing, the trial court reviewed the details of the plea agreement with petitioner and advised him of his constitutional rights. Bartlett v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 861 (Tenn. Crim. App. Nov. 15, 2016).

Decision to attack a witness's testimony in closing argument was a strategic decision entitled to deference and petitioner failed to establish ineffective assistance in this regard, in light of the trial court's pretrial determination that the witness had not asked leading questions in the interview and the ruling admitting the evidence. Davis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 864 (Tenn. Crim. App. Nov. 16, 2016).

Victim's statement about petitioner having “freaked on” her was made during the course of the interview, and the victim's statement to the doctor was made for the purposes of medical diagnosis and treatment; petitioner failed to show that his attorneys provided deficient performance by not objecting, and prejudice was not shown. Davis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 864 (Tenn. Crim. App. Nov. 16, 2016).

When considered in context, the complained-of questioning by the petitioner's attorneys was brief and occurred in the context of overall thorough cross-examination of two State witnesses, and the questions were not posed based upon an assumption that the victim's underlying statement had been truthful; petitioner failed to establish that his attorneys performed deficiently. Davis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 864 (Tenn. Crim. App. Nov. 16, 2016).

This rule pertains to admission of otherwise hearsay statements that qualify as prior inconsistent statements of a testifying witness, but petitioner had not explained this rule's relevance to the present case and none was found, and thus petitioner failed to show that his attorneys should have requested a hearing to determine the trustworthiness of a prior inconsistent statement of a testifying witness. Davis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 864 (Tenn. Crim. App. Nov. 16, 2016).

Doctor testified that the hymenal notch was an indeterminate finding that neither indicated nor excluded sexual assault, and petitioner did not offer any additional proof regarding the interpretation of this finding; the record did not support a conclusion that the evidence would have been admissible under the rule's limited exception to the general rule of exclusion of evidence of a victim's other sexual behavior, and deficient representation was not shown. Davis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 864 (Tenn. Crim. App. Nov. 16, 2016).

Import of the testimony was to explain why the witness took the victim to the hospital, not to prove petitioner's conduct toward the victim, and thus petitioner failed to show that his trial attorneys provided deficient performance when they did not make a hearsay objection; in any event, prejudice was not shown. Davis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 864 (Tenn. Crim. App. Nov. 16, 2016).

Post-conviction court did not err in denying defendant's petition for relief because the court accredited trial counsel's testimony that counsel informed defendant of the State of Tennessee's sentencing offer, that counsel tried to get defendant a lesser offer, that counsel met with defendant numerous times prior to trial, that counsel reviewed the discovery materials and discussed trial strategy with defendant, and that counsel never told defendant that the State's offer included a percentage of service of defendant's sentence. Bobo v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 865 (Tenn. Crim. App. Nov. 16, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 157 (Tenn. Feb. 28, 2017).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly denied because the post-conviction court heard testimony from two witnesses whom defendant claimed should have been subpoenaed to testify at trial, but the court found that trial counsel was never provided with the adequate information needed to locate the potential witnesses before trial. Clark v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 876 (Tenn. Crim. App. Nov. 22, 2016).

Petitioner did not introduce any evidence regarding what a more thorough investigation of a particular telephone call would have uncovered, and even if trial counsel was deficient by not interviewing one witness, he did not testify during the post-conviction hearing, and thus petitioner could not establish prejudice and was not entitled to post-conviction relief. Muhammad v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 879 (Tenn. Crim. App. Nov. 22, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 221 (Tenn. Apr. 13, 2017).

Unavailability of a recording did not render testimony about a telephone call inadmissible under the best evidence rule, and because an objection based on the rule would not have resulted in exclusion of the testimony, petitioner failed to establish that trial counsel was deficient, plus counsel said he did not object based on strategic grounds; in any event, any deficiency did not result in prejudice in light of the strong evidence of guilt and petitioner was not entitled to post-conviction relief. Muhammad v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 879 (Tenn. Crim. App. Nov. 22, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 221 (Tenn. Apr. 13, 2017).

Trial counsel's testimony reflects that he considered the issues and raised the ones he thought held the possibility for appellate relief, and he did not raise issues for which he thought the possibility of relief did not exist; petitioner failed to establish deficient performance by counsel and she was not entitled to post-conviction relief. Myers v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 880 (Tenn. Crim. App. Nov. 23, 2016).

Petitioner did not testify about which items of clothing were hers, and thus the post-conviction court was without a basis for determining how it might have corroborated her testimony and demonstrated that she was not the shooter; the State relied upon a criminal responsibility theory as to petitioner, and she admitted her presence and participation in the offenses, and thus she failed to establish deficient performance by counsel and she was not entitled to post-conviction relief. Myers v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 880 (Tenn. Crim. App. Nov. 23, 2016).

Petitioner did not articulate a constitutional basis for suppressing certain evidence, and thus she failed to carry her burden of establishing deficient performance by counsel and prejudice, and she was not entitled to post-conviction relief. Myers v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 880 (Tenn. Crim. App. Nov. 23, 2016).

Dismissal of one count charging first degree premeditated murder would have availed petitioner no benefit because no issue existed with regard to the counts charging felony murder; petitioner failed to establish deficient performance by counsel and she was not entitled to post-conviction relief. Myers v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 880 (Tenn. Crim. App. Nov. 23, 2016).

Petitioner's fingernail merely corroborated her presence at the scene, trial counsel elicited petitioner's testimony that she did not shoot the victims, and questioning her about other times she might have worn a glove would not have diminished the incriminating nature of the facts, such that petitioner failed to prove her ineffective assistance claim and thus she was not entitled to post-conviction relief. Myers v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 880 (Tenn. Crim. App. Nov. 23, 2016).

Post-conviction court did not err in denying defendant's petition for post-conviction relief alleging ineffective assistance of counsel because, although counsel was deficient in failing to request the special jury instruction for defendant's kidnapping charges, defendant did not receive ineffective assistance of counsel as he suffered no prejudice because the appellate court had already concluded that his especially aggravated kidnapping conviction was not incidental to his aggravated assault conviction; and a reasonable juror would not have found that defendant's convictions were incidental. Waller v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 890 (Tenn. Crim. App. Nov. 30, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 136 (Tenn. Feb. 22, 2017).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly denied because counsel testified he was never told about a potential witness, and defendant failed to produce the witness at the hearing; defendant admitted that he confirmed his decision not to testify with the trial court and signed a waiver of his right, and he did not claim his decision would have been different with a more complete explanation of his right; and there was no evidence that defendant's alleged lack of understanding about the plea offer prejudiced the outcome of the proceedings as he testified that he would not have pled guilty to something he did not do and acknowledged that he believed he had a better chance at trial. Cunningham v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 894 (Tenn. Crim. App. Nov. 30, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 147 (Tenn. Feb. 21, 2017).

Defendant's petition for post-conviction relief alleging that he received ineffective assistance of counsel and that his guilty plea was involuntary was properly denied as his first and second counsel were not ineffective in failing to investigate his whereabouts on the dates alleged in the indictment because defendant admitted to engaging in sexual intercourse with the minor victim approximately 10 times over the previous three years, and defendant did not present any evidence of an alibi for the listed dates at the post-conviction hearing; and defendant's plea was not involuntary as there was no indication at the guilty plea hearing that he was physically threatened by his first counsel or forced into entering his guilty plea. Collins v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 905 (Tenn. Crim. App. Dec. 6, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 256 (Tenn. Apr. 13, 2017).

Petitioner did not prove by clear and convincing evidence that he had received the ineffective assistance of counsel; certain witnesses would not have aided in the defense strategy, plus petitioner failed to present these witnesses at the hearing and show that counsel could have located them. Glover v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 929 (Tenn. Crim. App. Dec. 12, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 119 (Tenn. Feb. 16, 2017).

Petitioner failed to show that counsel was ineffective for failing to interview the lead detective; there was ample evidence that counsel thoroughly investigated and prepared this case, the evidence against petitioner was overwhelming, and petitioner failed to show that had the detective been interviewed, counsel would have been better prepared for trial; petitioner was not entitled to post-conviction relief. Glover v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 929 (Tenn. Crim. App. Dec. 12, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 119 (Tenn. Feb. 16, 2017).

Petition for post-conviction relief alleging ineffectiveness of counsel was properly denied because, although defendant was dissatisfied with counsel's advice regarding the 15-year settlement offer for the aggravated rape charge, he never stated that he would have pled guilty to the rape charge or otherwise controverted counsel's testimony that defendant was adamant about not pleading guilty to the aggravated rape charge; and defendant was not offered an effective 15-year sentence for the robbery, kidnapping, and rape charges as the prosecutor agreed to recommend the aggravated rape sentence be served concurrently to the other sentences, and he remained in jeopardy of consecutive sentencing for the robbery and kidnapping convictions. Hunt v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 937 (Tenn. Crim. App. Dec. 15, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 224 (Tenn. Apr. 13, 2017).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective for failing to call a co-defendant as a witness at trial because counsel testified that she had no reason to believe that the co-defendant would testify on behalf of defendant after his attorney announced in court that the co-defendant refused to testify; and she did not believe his testimony would help the defense. Matthews v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 941 (Tenn. Crim. App. Dec. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 232 (Tenn. Apr. 13, 2017).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective in her explanation of felony murder and criminal responsibility as counsel said she believed defendant understood those concepts; and there was no support in the record that defendant's lack of understanding could be attributed to counsel's failure to explain and review the concepts of felony murder and criminal responsibility with him. Matthews v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 941 (Tenn. Crim. App. Dec. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 232 (Tenn. Apr. 13, 2017).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective for not investigating or presenting a theory of self-defense at trial because the post-conviction court concluded that counsel had conducted a thorough investigation of the case and all possible defenses; the post-conviction court accredited counsel's testimony that the only shots fired during the incident were from the vehicle; there was no evidence that the stray marks that co-defendant's investigator found in 2012 were related to the 2009 shooting or that the marks were present on the residence in 2009; and defendant told counsel that the only shots fired were fired from the vehicle with no return fire from anyone. Matthews v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 941 (Tenn. Crim. App. Dec. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 232 (Tenn. Apr. 13, 2017).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective for failing to support defendant's contention that his sentence of life with the possibility of parole was unconstitutional as defendant waived review of that issue; and defendant would have been unable to show that counsel's failure to make that challenge prejudiced his defense as defendant's sentence was not unconstitutional. Matthews v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 941 (Tenn. Crim. App. Dec. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 232 (Tenn. Apr. 13, 2017).

Defendant failed to prove ineffective assistance because counsel advised defendant against pursuing an entrapment defense due to the difficulty of proving the defense given the video recording evidence and the fact that defendant had provided a confidential informant with defendant's new telephone number after engaging in video-recorded drug transactions with the informant. Counsel's decision to tell the jury that defendant had previously sold cocaine to the informant was to be honest with the jury and appeal to the jurors' sense of fairness. Duclair v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1 (Tenn. Crim. App. Jan. 5, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 265 (Tenn. Apr. 12, 2017).

Inmate was not entitled to post-conviction relief for counsel's failure to object to the State's sentencing statements that the inmate's crimes involved more than one victim, due to a victim's pregnancy, after which the sentencing court allegedly misapplied the multiple victim sentencing enhancement factor, because the inmate showed no prejudice, by clear and convincing evidence, as (1) the State had a good faith basis for asking about the inmate's knowledge of the victim's pregnancy, (2) the inmate's sentences were within applicable ranges, (3) three other enhancement factors were properly applied, and (4) the court properly heard testimony that the inmate held a knife to the victim's stomach and saw video footage showing the victim was visibly pregnant. Bush v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 33 (Tenn. Crim. App. Jan. 18, 2017).

Post-conviction court properly denied petitioner relief because trial counsel's deficient performance in preparing for trial and communicating with petitioner did not result in an unreliable outcome at trial; petitioner did not present any evidence that interviewing a codefendant or a follow-up investigation would result in the development of any exculpatory evidence or lead to a different result at trial. Baker v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 43 (Tenn. Crim. App. Jan. 23, 2017).

Because petitioner only briefly mentioned trial counsel's failure to adequately communicate with him during the plea negotiation process in his amended petition for post-conviction relief and did not address the issue in his brief on appeal, the issue had been abandoned. Baker v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 43 (Tenn. Crim. App. Jan. 23, 2017).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly denied because counsel did not pursue a claim that another person who had lived with the victim's mother for some period of time committed the offense because he had no evidence to support that allegation and felt the jury would not respond well to such a claim; and defendant was not deprived of a meaningful defense as counsel impeached the victim, who changed her testimony about one of the incidents during cross-examination, and defendant's wife testified that she was with defendant and the victim during the time the victim alleged the first incident occurred, and she refuted the victim's claims. Hickman v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 46 (Tenn. Crim. App. Jan. 24, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 247 (Tenn. Apr. 12, 2017).

Petitioner failed to prove that trial counsel provided ineffective assistance by failing to file a motion to suppress a search of his cellphone because petitioner did not prove that the motion would have been successful; it could not be determined whether he abandoned his expectation of privacy in the cellphone when he left the crime scene, and it could also not be determined if the search of the phone was justified by exigent circumstances, and he was not entitled to post-conviction relief. Gatewood v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 113 (Tenn. Crim. App. Feb. 17, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 362 (Tenn. June 7, 2017).

Post-conviction court concluded that the lineup procedure was neither suggestive nor unreliable, and trial counsel's decision not to file a motion to suppress the identification was a tactical decision entitled to deference; even if the identification had been excluded, there was still other evidence that petitioner was the perpetrator, and a motion to suppress the identification would have been unsuccessful, and thus petitioner was not entitled to post-conviction relief. Gatewood v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 113 (Tenn. Crim. App. Feb. 17, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 362 (Tenn. June 7, 2017).

Post-conviction court properly determined that trial counsel presented the best defense theory possible and petitioner had not presented a reasonable alternative strategy, trial counsel did not obstruct petitioner's ability to testify at trial, and petitioner's claim about potential expert testimony failed because he had not presented expert testimony at the evidentiary hearing; he was not entitled to post-conviction relief. Gatewood v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 113 (Tenn. Crim. App. Feb. 17, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 362 (Tenn. June 7, 2017).

Defendant's petition for post-conviction relief was properly denied as the evidence did not establish that trial counsel was deficient or that any deficiency resulted in prejudice because the post-conviction court found that defendant's testimony was not reliable and that defendant had the requisite mental capacity to plead guilty, considering the mental evaluation that determined defendant was competent to stand trial; that trial counsel met with defendant extensively leading up to her decision to waive her jury trial, and that trial counsel had not exerted improper pressure on defendant to plead guilty; and that, ultimately, defendant concluded she was satisfied with the plea and determined it was in her best interest to accept the plea. Morton v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 119 (Tenn. Crim. App. Feb. 22, 2017).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly denied as trial counsel's performance was not deficient for failing to obtain an expert witness to testify on the defense of duress because defendant failed to produce an expert witness on duress to testify at the post-conviction hearing or to introduce evidence on what an expert witness might have presented and how it would have aided his defense. Mims v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 127 (Tenn. Crim. App. Feb. 24, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 375 (Tenn. June 9, 2017).

Defendant failed to establish at a post-conviction hearing that defendant received ineffective assistance of counsel because defendant, by failing to present the testimony of counsel and defendant as to counsel not showing a video of defendant's performance on field sobriety tests to defendant before trial, failed to present clear and convincing evidence of counsel's deficiency. Moreover, defendant failed to present any evidence establishing other proof that counsel could have presented had counsel shown the video to defendant before trial. Hicks v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 136 (Tenn. Crim. App. Feb. 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 258 (Tenn. Apr. 12, 2017).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly denied because trial counsel testified that the facts of defendant's case did not support an entrapment defense and that the defense would have been ineffective, particularly with respect to the charge of evidence tampering; regarding sentencing, trial counsel testified that his options were limited due to defendant's extensive criminal history, although counsel did argue, albeit unsuccessfully, in favor of alternative sentencing; and, given the substantial evidence against defendant, defendant could not establish that, but for counsel's alleged errors, the outcome would have differed. Johnson v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 177 (Tenn. Crim. App. Mar. 9, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 385 (Tenn. June 7, 2017).

Counsel did not submit a written request to the trial court regarding the jury instruction, although he did make an oral request and both the trial court and the court considered the issue; although counsel should have filed a written request, petitioner could not establish prejudice because fraudulent use of a credit card was not a lesser-included offense of identity theft, plus his claim had already been determined on direct appeal and could not be relitigated in a post-conviction proceeding. Wilson v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 201 (Tenn. Crim. App. Mar. 17, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 417 (Tenn. July 19, 2017).

Defendant's petition for post-conviction relief was properly denied because counsel was not ineffective for failing to challenge the search warrants; in his preparation and strategy for the DNA evidence; for failing to pursue a defense based upon the theory that the glove tip with defendant's DNA on it was planted; for making assertions in opening argument that were later unsupported by the proof; for failing to use exculpatory evidence in the form of phone calls and a footprint found near the victim's body; for inadequately cross-examining defendant's son about his prior inconsistent statements; for inadequately defending the character of defendant; and for failing to impeach the victim as a hearsay declarant. Cannon v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 204 (Tenn. Crim. App. Mar. 21, 2017).

Defendant's petition for post-conviction relief was properly denied because counsel was not ineffective as he made no “promises” to the jury in his opening statement because counsel introduced the theory of physical impossibility during opening argument consistent with his trial strategy that the victim's size and physical state at the time of the murder was not consistent with the State's theory of how the murder occurred; and he did not promise the State's medical examiner would agree that defendant was innocent, but the medical examiner did state that the strangulation was accomplished with so much force that it had to be somebody who was extremely powerful to have done it. Cannon v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 204 (Tenn. Crim. App. Mar. 21, 2017).

Post-conviction court properly found that subsequent counsel provided deficient performance by failing to question trial counsel about the concession at the motion for a new trial hearing and that petitioner failed to establish prejudice; trial counsel's testimony regarding his concession was critical to determining whether subsequent counsel's deficient performance resulted in prejudice, but petitioner did not present counsel at the hearing and the court would not speculate what trial counsel's testimony might have been, and petitioner was not entitled to relief. Wagner v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 238 (Tenn. Crim. App. Mar. 31, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 423 (Tenn. July 20, 2017).

Record supported the post-conviction court's finding that subsequent counsel's failure to question trial counsel about the note at the motion for a new trial hearing was deficient performance, but as petitioner failed to establish prejudice without any testimony from trial counsel regarding his failure to object to the note's admission, and the court would not speculate, petitioner was not entitled to relief. Wagner v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 238 (Tenn. Crim. App. Mar. 31, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 423 (Tenn. July 20, 2017).

Post-conviction court properly found that subsequent counsel provided deficient performance by failing to question trial counsel about jury selection at the motion for a new trial hearing; trial counsel's testimony regarding his lack of an objection was critical to determining whether subsequent counsel's deficient performance at the motion for a new trial hearing resulted in prejudice, but petitioner did not present trial counsel and the court would not speculate regarding trial counsel's reasons for not objecting during jury selection, and petitioner was not entitled to relief. Wagner v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 238 (Tenn. Crim. App. Mar. 31, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 423 (Tenn. July 20, 2017).

To the extent petitioner argued that subsequent counsel provided ineffective assistance because he failed to raise in the written motion for a new trial that trial counsel provided ineffective assistance by failing to rectify petitioner's hearing difficulties, he was not entitled to relief; a transcript showed that petitioner answered questions clearly without complaint of an inability to hear, plus trial counsel informed the trial court of his hearing difficulties, and subsequent counsel did not provide deficient performance in this regard. Wagner v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 238 (Tenn. Crim. App. Mar. 31, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 423 (Tenn. July 20, 2017).

Petitioner was not entitled to post-conviction relief because he failed to show ineffective assistance of counsel; DNA evidence was not an issue in the case, and thus petitioner did not show deficient performance or prejudice based on counsel's decision not to share DNA results with petitioner prior to entering his guilty plea. Armstrong v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 255 (Tenn. Crim. App. Apr. 6, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 493 (Tenn. Aug. 18, 2017).

Petitioner was not entitled to post-conviction relief because he failed to show ineffective assistance of counsel, as petitioner did knowingly and voluntarily enter his guilty plea based on the advice of counsel and that the plea was in his best interest; petitioner conferred with trial counsel numerous times about the potential DNA results and the alternatives to the guilty plea, and he could have received a significantly greater penalty had he proceeded to trial. Armstrong v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 255 (Tenn. Crim. App. Apr. 6, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 493 (Tenn. Aug. 18, 2017).

Petitioner was not entitled to post-conviction relief because he failed to show ineffective assistance of counsel; no evidence showed that counsel knew or should have known of petitioner's incriminating statements in recordings before the State provided transcripts the week before the trial, counsel was not questioned about his reasons for not requesting recordings of petitioner's jail telephone communications and the court would not speculate, and nothing showed that the State intended to use the recordings at trial until after petitioner rejected the plea offer. Hughes v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 252 (Tenn. Crim. App. Apr. 6, 2017).

Criminal court properly denied petitioner post-conviction relief because he failed to establish that he was denied effective assistance of counsel at trial; petitioner did not establish that counsel was ineffective for failing to locate a favorable expert witness because he did not present the testimony of an alternative expert, and he failed to establish that he was prejudiced by trial counsel's alleged failure to provide him with discovery materials. Cook v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 265 (Tenn. Crim. App. Apr. 10, 2017).

Because petitioner did not seek post-conviction relief on the basis of the ineffective assistance of appellate counsel, he waived review of any error in sentencing. Cook v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 265 (Tenn. Crim. App. Apr. 10, 2017).

Defendant's petition for post-conviction relief, alleging ineffective assistance of counsel and that her guilty pleas were not knowingly or voluntarily entered, was properly denied because trial counsel performed a thorough investigation of the case and advised defendant of the nature of the charges, the potential punishments, and the consequences of pleading guilty; defendant acknowledged that counsel had explained all the relevant information to her prior to her accepting the plea agreement; the record belied defendant's testimony that counsel pressured her into accepting the plea agreement and pleading guilty; and the record supported the conclusion that defendant's guilty pleas were knowingly, intelligently, and voluntarily entered. Vaughn v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 273 (Tenn. Crim. App. Apr. 13, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 524 (Tenn. Aug. 18, 2017).

Petitioner failed to prove that certain testimony would have been excluded at trial, plus the testimony was corroborated; thus, petitioner had not shown that counsel or appellate counsel were ineffective and petitioner was not entitled to relief. Johnson v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 297 (Tenn. Crim. App. Apr. 21, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 500 (Tenn. Aug. 16, 2017).

Petitioner failed to establish that the marital privilege applied to the statement in question, and even assuming his wife's statements were communications between the parties, nothing showed that the statement originated in confidence, nor were the other factors for application of the privilege shown; counsel was not ineffective for failing to further challenge the testimony on this basis after his objection was overruled, and petitioner was not entitled to post-conviction relief. Johnson v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 297 (Tenn. Crim. App. Apr. 21, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 500 (Tenn. Aug. 16, 2017).

Without a legal basis for a motion to suppress, counsel was not ineffective for not filing such a motion, nor was counsel ineffective for excluding this issue on appeal; petitioner was not entitled to relief. Johnson v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 297 (Tenn. Crim. App. Apr. 21, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 500 (Tenn. Aug. 16, 2017).

Defendant's petition for post-conviction relief, alleging that he was denied his right to the effective assistance of counsel as counsel did not advise him to testify at trial, was properly denied because defendant acknowledged that he had the right to testify, that it was his decision whether to testify, and that trial counsel discussed with him the advantages and disadvantages of testifying; and the post-conviction court found that defendant chose not to testify, followed the advice of his family and trial counsel, and never indicated that he wanted to testify. Oliver v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 306 (Tenn. Crim. App. Apr. 25, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 434 (Tenn. July 20, 2017).

Defendant was not entitled to post-conviction relief because defendant failed to prove, by clear and convincing evidence, that trial counsel was deficient in preparing for trial, interviewing a witness, failing to file a motion to suppress, or causing defendant to reject a plea offer. Northener v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 309 (Tenn. Crim. App. Apr. 25, 2017).

In a case in which defendant was convicted of possession of a controlled substance in a penal institution, defendant's petition for post-conviction relief alleging that he received ineffective assistance of counsel was properly denied because, although defendant argued that trial counsel should have made various objections at trial, he failed to provide any proof to support his arguments beyond the trial record; he did not meet his burden of proving deficiency or prejudice because he provided inadequate proof; and he offered no explanation in the record or on appeal regarding his failure to present testimony at the post-conviction hearing. Parliment v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 341 (Tenn. Crim. App. May 5, 2017).

Defendant's petition for post-conviction relief was properly denied as trial counsel was not ineffective because the evidence did not preponderate against the finding that counsel was the more credible witness; counsel testified at the hearing that he discussed the plea offer contained in the letter from the State's counsel with defendant prior to trial; counsel explained the possibility of an effective life sentence to defendant and discussed the damaging potential of the handwritten letter purportedly from defendant to the victim with defendant in preparation for trial; and the post-conviction court found the testimony of defendant's mother that counsel did not discuss the contents of the letter with defendant incredible and unbelievable. Hagerman v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 359 (Tenn. Crim. App. May 9, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 580 (Tenn. Sept. 20, 2017).

Defendant's petition for post-conviction relief was properly denied because trial counsel was not ineffective in allowing defense's expert witness to testify at trial that defendant was competent to stand trial while simultaneously allowing him to testify as to defendant's diminished capacity at the time of the offense as the post-conviction court determined that the jury would not have been confused by the expert witness's testimony. Buford v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 353 (Tenn. Crim. App. May 9, 2017).

Defendant's petition for post-conviction relief was properly denied because defendant was not denied effective assistance of counsel when trial counsel recalled defendant's sister as a defense witness, after she testified in the State's case-in-chief, as counsel testified that he recalled her to aid the theory of defendant's diminished capacity at the time he killed the victim; once the State attempted to introduce the new prior bad act evidence, trial counsel immediately and strenuously objected; and had trial counsel known prior to recalling the sister as a defense witness that the newly discovered prior bad act evidence was going to be offered and admitted, it was highly unlikely that she would have been recalled as a defense witness. Buford v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 353 (Tenn. Crim. App. May 9, 2017).

Defendant's petition for post-conviction relief was properly denied because defendant failed to demonstrate ineffective assistance of counsel based on trial counsel's failure to prepare and present a viable defense as the record showed that trial counsel, assisted by two other lawyers, a law student, and an investigator, mounted a vigorous defense. Buford v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 353 (Tenn. Crim. App. May 9, 2017).

Post-conviction court did not err in denying defendant's petition for post-conviction relief, in which he alleged that he was denied the effective assistance of counsel, because the record amply supported the post-conviction court's determinations that defendant was not credible as the court emphasized that defendant testified that he had lied on more than one occasion during the guilty plea proceedings; and defense counsel met with the prosecutor, reviewed all the discovery and evidence, filed appropriate pleadings, met with defendant numerous times and ultimately negotiated a plea with a sentence carrying only one-eighth of defendant's potential exposure. Lequire v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 390 (Tenn. Crim. App. May 15, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 516 (Tenn. Aug. 16, 2017).

Defendant failed to show that defendant received ineffective assistance of counsel because defendant failed to present clear and convincing evidence of ineffective assistance by counsel failing to subpoena certain witnesses to testify at trial and by counsel failing to obtain a mental evaluation of defendant at the time of the offense and at the time of the trial. Spicer v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 392 (Tenn. Crim. App. May 16, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 591 (Tenn. Sept. 22, 2017), cert. denied, Spicer v. Tennessee, 200 L. Ed. 2d 274, 138 S. Ct. 1007, — U.S. —, 2018 U.S. LEXIS 1339 (U.S. Feb. 20, 2018).

Defendant's petition for post-conviction relief, arguing that his guilty plea was involuntary and unknowing, was properly denied because trial counsel was not ineffective as he testified that he advised defendant of his rights, including the right to a second jury trial; however, defendant told trial counsel that he wanted to accept the plea agreement, and counsel stated that defendant was eager to sign the plea agreement. Hodges v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 408 (Tenn. Crim. App. May 16, 2017).

Defendant's petition for post-conviction relief, arguing that trial counsel was ineffective in failing to present an alibi witness at trial, was properly denied because trial counsel testified that he was not advised of an alibi witness; and trial counsel noted that even if he had been advised of the alibi witness, it would not have made a difference in defendant's case as the offense actually occurred on July 28, the day before the alibi witness said she celebrated her birthday with defendant. Bates v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 403 (Tenn. Crim. App. May 17, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 481 (Tenn. Aug. 18, 2017).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective in preparing the certified questions of law and in educating defendant on the applicable law because he was advised of the procedural risks of the certified questions; counsel advised him that she could not guarantee that his questions would be deemed dispositive by the appellate court; counsel did not guarantee him success on appeal; and counsel advised defendant that, although not all questions would be deemed dispositive, she chose to include them as the appellate court sometimes overlooked whether a question was dispositive and reviewed it, but counsel did not guarantee that the appellate court would address the non-dispositive questions. King v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 570 (Tenn. Crim. App. June 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 675 (Tenn. Oct. 4, 2017).

In a case in which defendant pled guilty to multiple drug and money laundering crimes in three separate counties, defendant's petition for post-conviction relief, claiming that he received ineffective assistance of counsel, was properly denied as defendant's plea was entered knowingly and voluntarily because counsel and defendant weighed the risk of taking his case to trial, where he faced a lengthy sentence approaching 100 years but retained all his rights of appeal, versus entering a guilty plea for a sentence of 40 years but reduced rights of appeal; and defendant affirmed that he was asked at the guilty plea hearing whether he understood his right to trial and that he was giving up that right, which he stated he did. King v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 570 (Tenn. Crim. App. June 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 675 (Tenn. Oct. 4, 2017).

After reviewing the briefs from the direct appeal, the evidence did not preponderate against the post-conviction court's finding that counsel fully briefed defendant's argument related to the probable cause requirement in the wiretapping statute, and that she addressed the subsections of that statute in her brief that she felt most strongly aided her argument that the wiretaps were unlawful; and, while the appellate court's decision limited defendant's argument, defendant did not show that counsel was ineffective in that regard as she made a strategic decision to focus her argument in the reply brief, which the appellate court would not second guess. King v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 570 (Tenn. Crim. App. June 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 675 (Tenn. Oct. 4, 2017).

In a case in which defendant pled guilty to multiple drug and money laundering crimes in three separate counties, defendant's petition for post-conviction relief, claiming that he received ineffective assistance of counsel, was properly denied as defendant's plea was entered knowingly and voluntarily because counsel and defendant weighed the risk of taking his case to trial, where he faced a lengthy sentence approaching 100 years but retained all his rights of appeal, versus entering a guilty plea for a sentence of 40 years but reduced rights of appeal; and defendant affirmed that he was asked at the guilty plea hearing whether he understood his right to trial and that he was giving up that right, which he stated he did. King v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 571 (Tenn. Crim. App. June 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 671 (Tenn. Oct. 4, 2017).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective in preparing the certified questions of law and in educating defendant on the applicable law because he was advised of the procedural risks of the certified questions; counsel advised him that she could not guarantee that his questions would be deemed dispositive by the appellate court; counsel did not guarantee him success on appeal; and counsel advised defendant that, although not all questions would be deemed dispositive, she chose to include them as the appellate court sometimes overlooked whether a question was dispositive and reviewed it, but counsel did not guarantee that the appellate court would address the non-dispositive questions. King v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 571 (Tenn. Crim. App. June 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 671 (Tenn. Oct. 4, 2017).

Defendant failed to establish by clear and convincing evidence that plea counsel was deficient for failing to adequately explain the concept of criminal responsibility for the conduct of another, failed to show that counsel was deficient for advising defendant to accept the plea deal, failed to prove by clear and convincing evidence that counsel forced defendant to plead guilty, and failed to show that defendant was prejudiced by counsel's representations to defendant about consecutive sentencing. Green v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 594 (Tenn. Crim. App. July 7, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 785 (Tenn. Nov. 16, 2017).

Evidence did not preponderate against the post-conviction court's findings that defense counsel was not deficient and that petitioner suffered no prejudice when defense counsel did not file a motion to suppress the evidence seized from a backpack. When asked by the police about the backpack, petitioner disclaimed ownership. Abernathy v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 602 (Tenn. Crim. App. July 10, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 793 (Tenn. Nov. 16, 2017).

Defendant's petition for post-conviction relief was properly denied because trial counsel was not deficient for failing to adequately advise defendant about sentencing ranges or his classification as a Range I offender; for failing to advise defendant to proceed to trial as the prosecutor stated that the State would be able to call witnesses that would identify defendant as the man who held the victim at gunpoint during the robbery preceding the victim's murder, and that defendant confessed to murdering the victim; and for failing to object to defendant's plea on the basis that he was a minor as he was properly before the criminal court as an adult. Cunningham v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 611 (Tenn. Crim. App. July 12, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 658 (Tenn. Oct. 5, 2017).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective for failing to call witnesses because counsel met with defendant, developed an appropriate trial strategy, and investigated the case adequately; defendant offered alibi witnesses to counsel, but those witnesses were not with defendant at the time of the offense and seemed skeptical about whether he had committed the shooting; counsel used sound legal discretion when choosing not to present those witnesses; and defendant did not present those witnesses at his post-conviction hearing, and one of them, his sister, declined to testify at the post-conviction hearing. Hollins v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 612 (Tenn. Crim. App. July 12, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 837 (Tenn. Nov. 21, 2017).

Counsel filed the motion for new trial one day late, but despite the late filing, the motion was heard by the trial court; although petitioner alleged ineffective assistance, she was not prejudiced because the appellate court reviewed her issues beyond sufficiency of the evidence, and thus she was not barred from pursuing issues on appeal, for purposes of T.C.A. § 40-30-113, and she was not entitled to post-conviction relief, for purposes of T.C.A. §§ 40-30-103, 40-30-110(f). Summers v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 619 (Tenn. Crim. App. July 14, 2017).

Counsel was not ineffective for failing to file a written motion for severance because none was required, and counsel was not ineffective for failing to raise the severance issue during the trial because such a motion had to be made pre-trial unless it was based on a ground not previously known, and petitioner did not claim that counsel was unaware of the statement in question; thus, petitioner was not entitled to post-conviction relief, for purposes of T.C.A. §§ 40-30-103, 40-30-110(f). Summers v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 619 (Tenn. Crim. App. July 14, 2017).

Counsel made a sound tactical decision to confront an inculpatory statement head-on, and later abandon the self-defense theory after none of the witnesses testified that they saw the gun in petitioner's hand at the scene; petitioner had not met her burden of overcoming the strong presumption that counsel provided adequate assistance, nor could petitioner establish prejudice, and thus she was not entitled to post-conviction relief, for purposes of T.C.A. §§ 40-30-103, 40-30-110(f). Summers v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 619 (Tenn. Crim. App. July 14, 2017).

Petitioner failed to establish that counsel's performance in arguing for severance was deficient; there was no transcript provided of any hearing on the severance motion, the court had previously held that the severance issue was without merit given the proof the State could have presented in a separate trial against petitioner, there was no reason to deviate from the court's prior evaluation, and petitioner was not entitled to post-conviction relief, for purposes of T.C.A. §§ 40-30-103, 40-30-110(f). Summers v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 619 (Tenn. Crim. App. July 14, 2017).

Because codefendant testified and was subject to cross-examination by petitioner's counsel, the admission of his statement implicating petitioner did not violate case law and severance was not required; petitioner failed to show deficiency or prejudice and was not entitled to post-conviction relief, for purposes of T.C.A. §§ 40-30-103, 40-30-110(f). Summers v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 619 (Tenn. Crim. App. July 14, 2017).

Even though the completed offense of voluntary manslaughter was defined as a dangerous felony under T.C.A. § 39-17-1324(i)(1)(C), the trial court specified attempt to commit voluntary manslaughter, and without knowing that the completed offense of voluntary manslaughter in count one was a statutorily enumerated dangerous felony, it was reasonable that the jury considered only the attempted voluntary manslaughter in count two as the underlying felony; counsel was not deficient and petitioner was not entitled to post-conviction relief, for purposes of T.C.A. §§ 40-30-103, 40-30-110(f). Summers v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 619 (Tenn. Crim. App. July 14, 2017).

Counsel made a valid strategic decision not to object to the State's closing arguments and thus counsel did not render constitutionally deficient performance, plus none of the statements were so inflammatory as to have constituted reversible error; thus, petitioner did not suffer any prejudice and thus was not entitled to post-conviction relief, for purposes of T.C.A. §§ 40-30-103, 40-30-110(f). Summers v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 619 (Tenn. Crim. App. July 14, 2017).

Record supported the denial of post-conviction relief under T.C.A. § 40-30-103 as petitioner failed to prove by clear and convincing evidence that counsel's representation was deficient or prejudicial under T.C.A. § 40-30-110(f); counsel's decision to advise petitioner against testifying in the second trial was reasonable trial strategy, and given the overwhelming evidence against him, he could not establish that, but for counsel's alleged errors, the outcome would have differed. Goodrum v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 650 (Tenn. Crim. App. July 25, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 771 (Tenn. Nov. 16, 2017).

Only proof of trial counsel's failure to file a motion for a new trial was an affidavit attached to the petition, and although affidavits could be attached under T.C.A. § 40-30-104(e), affidavits were generally inadmissible at evidentiary hearings; the affidavit was not considered, petitioner was unable to show ineffective assistance, and he was not entitled to post-conviction relief, for purposes of T.C.A. §§ 40-30-103, 40-30-110(f). Heath v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 684 (Tenn. Crim. App. Aug. 7, 2017).

Defendant's petition for post-conviction relief was properly denied because, although appellate counsel's performance was deficient as she filed a brief asserting insufficiency of the evidence based on law no longer in effect, defendant failed to show that he was prejudiced by appellate counsel's deficient performance as he did not show that the outcome would have been different even if appellate counsel filed a reply brief arguing the new sufficiency of the evidence standard; defendant further failed to assert what appealable issues were present that appellate counsel failed to pursue; and appellate counsel's deficiencies did not rise to the level of structural defect constituting a complete denial of counsel. Byrd v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 749 (Tenn. Crim. App. Aug. 24, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 823 (Tenn. Nov. 16, 2017).

Despite defendant's waiver of a claim of ineffective assistance of counsel, defendant failed to prove any of defendant's claims by clear and convincing evidence because, with regard to witness preparation and strategy, defendant failed to present the testimony of any proposed witnesses to show how counsel's failure to call them at trial inured to defendant's prejudice and the strategic decisions of counsel were challengeable as counsel testified the decisions were made after adequate preparation and defendant offered no proof otherwise. Brandon v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 754 (Tenn. Crim. App. Aug. 25, 2017).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly denied as trial counsel did not fail to explain the case and the witnesses against him because trial counsel testified at the hearing that she gave defendant access to his discovery materials through her website and that defendant was able to communicate with her through the website by sending her messages; trial counsel did not recall defendant's giving her the name of any alibi witnesses; defendant did not produce the alibi witness that he claimed trial counsel was ineffective for failing to present to the trial court; and trial counsel did not promise defendant special parole. Tucker v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 789 (Tenn. Crim. App. Aug. 31, 2017).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly denied because there was no reasonable probability that a jury instruction which clarified the mens rea elements of the crime of aggravated sexual battery would have resulted in acquittal on any of the offenses as the evidence established only an intentional touching, and there was no evidence that defendant's numerous sexual crimes against his daughter were committed knowingly or recklessly but not intentionally. Crim v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 804 (Tenn. Crim. App. Sept. 5, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 854 (Tenn. Dec. 6, 2017).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly denied because the record did not preponderate against the post-conviction court's finding that the issue of coercion through promises and the voluntariness of defendant's confession was raised, and trial counsel did not provide deficient representation. Crim v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 804 (Tenn. Crim. App. Sept. 5, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 854 (Tenn. Dec. 6, 2017).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly denied because the instruction to the jury that it had to unanimously have a reasonable doubt as to defendant's guilt regarding the charged offense before it could acquit him and consider a lesser-included offense was supported by the pattern jury instructions and the case law. Crim v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 804 (Tenn. Crim. App. Sept. 5, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 854 (Tenn. Dec. 6, 2017).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly denied because defendant did not present the testimony of the counselor from Pennsylvania who initially interviewed the victim regarding the abuse at the post-conviction hearing; and trial counsel testified that the victim had made one statement recorded by the Pennsylvania authorities which was relevant to the defense, but the record did not contain any testimony or other evidence regarding what the Pennsylvania counselor's testimony would have been. Crim v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 804 (Tenn. Crim. App. Sept. 5, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 854 (Tenn. Dec. 6, 2017).

Defendant was not entitled to post-conviction relief because defendant failed to offer any evidence at a post-conviction hearing that the challenged actions of defendant's counsel; failure to call a witness to testify, failure to object to the testimony of a witness, failure to adequately prepare a witness to testify, failure to adequately question witnesses, failure to object to the admission of evidence, and failure to effectively cross examine witnesses were anything but tactical decisions made after adequate preparation for trial. Saitta v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 825 (Tenn. Crim. App. Sept. 8, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 51 (Tenn. Jan. 18, 2018).

Defendant's petition for post-conviction relief was properly denied because defendant did not show actual prejudice by trial counsel's failure to include the every issue that defendant wanted raised in the motion for new trial; in his argument in his brief, defendant did not specify what issues trial counsel should have raised in the motion for new trial; and defendant failed to state in his brief how the exclusion of any issue affected the outcome of his case; thus, defendant waived his issue concerning ineffective assistance of counsel as he did not cite to the record in support of his argument, and he failed to identify the issues that counsel failed to raise in the motion for new trial. McNutt v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 828 (Tenn. Crim. App. Sept. 8, 2017).

Defendant's petition for post-conviction relief was properly denied because trial counsel did not fail to conduct a reasonable investigation into the case as counsel secured the services of an investigator and conducted his own pretrial investigation, which included interviewing witnesses; defendant presented no fact or circumstance of consequence that counsel failed to uncover during his pretrial investigation; a full hearing occurred during which defendant expressed that he wished to testify in his own defense, even understanding that he would be impeached by his prior convictions; and the statements that defendant called inconsistent statements were not inconsistent with the witness's testimony at trial. Russ v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 833 (Tenn. Crim. App. Sept. 8, 2017).

Petitioner was not entitled to post-conviction relief under T.C.A. §§ 40-30-103, 40-30-110(f), given that deficient performance was not shown; counsel's conclusion that State v. Watkins regarding double jeopardy would apply in this case was reasonable, there was no indication that counsel was inadequately prepared, and his decision to forego an argument for the application of other case law was a reasonable tactical decision, plus no prejudice was found in any event. Johnson v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 848 (Tenn. Crim. App. Sept. 15, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 122 (Tenn. Feb. 23, 2018).

Defendant was not entitled to post-conviction relief because defendant failed to present clear and convincing evidence that defense counsel provided ineffective assistance, with regard to counsel filing a motion for a change of venue, instead of a motion for recusal, to address defendant's concern about being treated fairly by the clerk's office when the alleged victim's father was an employee of the trial court clerk's office, as counsel's decision was a strategic one in that counsel believed that a motion for recusal would not have succeeded. Poston v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 858 (Tenn. Crim. App. Sept. 22, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 53 (Tenn. Jan. 18, 2018).

Post-conviction court properly denied defendant's petition for relief because his counsel testified that she met with defendant several times to discuss his cases, that she believed the State's evidence against defendant was strong, and that she secured a plea offer that was more favorable than the previous plea offer conveyed through defendant's former counsel, defendant did not offer any testimony or other evidence that might have supported a possible defense to the charges or prove that, but for any error on counsel's part, he would not have pleaded guilty and would have insisted on going to trial, and the plea colloquy showed that he understood the charges against him and the potential sentences. Clark v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 903 (Tenn. Crim. App. Oct. 6, 2017).

Defendant's petition for post-conviction relief alleging ineffective assistance of appellate counsel was properly denied because appellate counsel testified that he made a strategic decision not to raise the suppression issue after considering the facts and the law as he did not believe that the appellate court would find that the issue had merit; and defendant did not show that the issue had any merit as the only evidence that defendant did not initiate contact with law enforcement was his testimony at the post-conviction hearing, which would not have been available to appellate counsel; and he agreed that the lieutenant read the Miranda warnings to him and that he waived his rights before making his statement. Rice v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 910 (Tenn. Crim. App. Oct. 12, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 82 (Tenn. Feb. 15, 2018).

Defendant's petition for post-conviction relief alleging ineffective assistance of trial counsel was properly denied because trial counsel was not ineffective (1) in failing to request a jury instruction on corroboration of accomplice testimony as the witness was not an accomplice because the witness testified that defendant twice approached him and discussed robbing the victim, and both times he refused to help; and defendant's own statement did not implicate the witness in planning, committing, or sharing in the proceeds from the robbery; and (2) in failing to move for a judgment of acquittal on the basis of inconsistent verdicts as the proof supported defendant's convictions for facilitation and felony murder. Rice v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 910 (Tenn. Crim. App. Oct. 12, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 82 (Tenn. Feb. 15, 2018).

Court of criminal appeals concluded that the evidence in the record did not preponderate against the judgment of the post-conviction court denying post-conviction relief. Although petitioner argued that she received ineffective assistance of counsel based on counsel's failure to call certain witnesses and introduce certain evidence, the court of criminal appeals declined to second-guess a reasonably based trial strategy. Crews v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 916 (Tenn. Crim. App. Oct. 16, 2017).

Defendant's petition for post-conviction relief was properly denied as his original trial counsel were not ineffective because counsel questioned each juror about whether their past experiences would affect their ability to remain impartial and neutral, and the jurors stated they could remain impartial despite their experiences; counsel moved to suppress defendant's statement but were simply unsuccessful; defendant did not identify any potential witness counsel should have called to testify; at the time of defendant's trial, there was no absolute prohibition to a juror being permitted to question a witness; and, in the failure to investigate claim, defendant failed to reference any other evidence his attorneys should have uncovered. Odom v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 922 (Tenn. Crim. App. Oct. 20, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 252 (Tenn. Apr. 23, 2018).

In a capital murder case, defendant's petition for post-conviction relief was properly denied as counsel were not ineffective at the second resentencing hearing in failing to investigate defendant's guilt to determine whether a residual doubt defense was viable because defendant offered absolutely no evidence that counsel should have presented in support of a residual doubt defense during resentencing. Odom v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 922 (Tenn. Crim. App. Oct. 20, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 252 (Tenn. Apr. 23, 2018).

In a capital murder case, defendant's petition for post-conviction relief was properly denied as his counsel did not render ineffective assistance during the third sentencing hearing by not timely investigating, obtaining, and presenting evidence of his neurological and cognitive impairments in mitigation because counsel explained that they chose not to focus their defense on defendant's brain damage as counsel did not want evidence introduced that defendant could not control his impulses and would not attempt escape in the future because that would contradict their theory that defendant had become well-adjusted in prison, was viewed as a model inmate, and did not pose any future danger in prison. Odom v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 922 (Tenn. Crim. App. Oct. 20, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 252 (Tenn. Apr. 23, 2018).

In a capital murder case, defendant's petition for post-conviction relief was properly denied as counsel reviewed all relevant records, discussed a possible mental health defense, considered results from previous hearings, and decided, based upon defendant's station in life at the time of the second resentencing hearing, that their best defense was to generate empathy through family testimony and demonstrate that defendant would not pose any future danger because he would never be released from prison, even with a life sentence; and counsel did not err in calling a clinical psychologist as a witness to testify that defendant would continue to thrive in the structured environment in prison if given a life sentence. Odom v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 922 (Tenn. Crim. App. Oct. 20, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 252 (Tenn. Apr. 23, 2018).

In a capital murder case, defendant's petition for post-conviction relief was properly denied as counsels' failure to present evidence of defendant's brain damage at the 2007 resentencing hearing did not prejudice him because neither of defendant's doctors could specifically state whether defendant's brain damage affected his actions at the time of the murder; and both doctors commented on defendant's inability to control his impulses, something which trial counsel was keen on keeping from the jury as it would have hampered counsels' theory of mitigation that defendant would continue to thrive in the structured environment in prison if given a life sentence. Odom v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 922 (Tenn. Crim. App. Oct. 20, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 252 (Tenn. Apr. 23, 2018).

In a capital murder case, defendant's petition for post-conviction relief was properly denied as counsel did introduce evidence at the 2007 resentencing hearing that defendant suffered repeated sexual assaults as a child and adolescent to empathy from the jury, but counsel made a strategic decision to exclude extensive evidence relating to defendant's time in a Mississippi prison as counsel was unsuccessfully in precluding opening the door to evidence about defendant's prior escape from prison. Odom v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 922 (Tenn. Crim. App. Oct. 20, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 252 (Tenn. Apr. 23, 2018).

In a capital murder case, defendant's petition for post-conviction relief was properly denied as counsel were not ineffective during closing arguments during the second resentencing hearing because, although the prosecutor repeatedly referred to the crime scene photos during her closing remarks as the worst of the worst, in rebuttal, defense counsel attempted to defuse the State's emphasis on the photographs and to dispute the fact that defendant's case was the worst of the worst; and counsels' remarks were not an admission that defendant's actions warranted the death penalty. Odom v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 922 (Tenn. Crim. App. Oct. 20, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 252 (Tenn. Apr. 23, 2018).

In a capital murder case, defendant's petition for post-conviction relief was properly denied as counsel were not ineffective for failing to object to a statement made by the prosecutor during closing arguments in the 2007 resentencing hearing that defendant anally raped the victim when no evidence was introduced to support that statement because defense counsel were not questioned about why they did not object to the statement; trial counsel could have decided not to object for several valid reasons, including not wanting to emphasize the unfavorable statements; and trial counsel was not given the opportunity to explain why they did not object to the allegedly prejudicial remarks. Odom v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 922 (Tenn. Crim. App. Oct. 20, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 252 (Tenn. Apr. 23, 2018).

In a capital murder case, defendant's petition for post-conviction relief was properly denied as counsel were not ineffective for failing to object to the prosecutor's definition of mitigation during closing arguments in the 2007 resentencing hearing because defendant did not demonstrate how trial counsels' failure to object to the prosecutor's remarks was anything other than a tactical decision; counsel were not asked why they did not object to that particular statement; and the jury was properly instructed on its duty under the law. Odom v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 922 (Tenn. Crim. App. Oct. 20, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 252 (Tenn. Apr. 23, 2018).

In a capital murder case, defendant's petition for post-conviction relief was properly denied as counsel were not ineffective during the resentencing hearing in 2007 by failing to object to the State's reliance on his previous juvenile conviction for first degree murder because counsel decided not to contest the prior conviction as they believed it could benefit their argument to the jury that defendant would never be released from prison if given a life sentence; and, even if counsel had decided to file the motion to strike consideration of defendant's juvenile conviction, it would have been denied as there was no constitutional or statutory restriction against the use of defendant's prior juvenile conviction for first degree murder. Odom v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 922 (Tenn. Crim. App. Oct. 20, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 252 (Tenn. Apr. 23, 2018).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective because defendant did not present as a witness at the post-conviction hearing the individual or individuals who he claimed should have been called to testify at trial; counsel's decision not to introduce at trial the victim's interview or have the victim's examiner testify were strategic decisions designed to shield the jury from further exposure to the victim's statements about his sexual abuse by defendant; and counsel's strategy also prevented the jury from hearing evidence that defendant had sexually abused other children. Lewis v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 929 (Tenn. Crim. App. Oct. 23, 2017).

Petitioner failed to show any development in his case that counsel failed to communicate to him, such that counsel was not deficient in his communication; moreover, petitioner failed to show that he was prejudiced, counsel's lack of communication did not affect petitioner's guilty plea, and he was not entitled to post-conviction relief under T.C.A. §§ 40-30-103, 40-30-110(f) on the basis of ineffective assistance of counsel. McWilliams v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 942 (Tenn. Crim. App. Nov. 2, 2017).

Evidence did not preponderate against the finding that counsel knew all there was to know about the case, and even if counsel did not formally file for discovery, he was not deficient in that regard; moreover, prejudice was not shown and petitioner was not entitled to post-conviction relief under T.C.A. §§ 40-30-103, 40-30-110(f) on the basis of ineffective assistance of counsel. McWilliams v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 942 (Tenn. Crim. App. Nov. 2, 2017).

With regard to counsel's investigation of a mental health defense, counsel used his experience to determine that petitioner did not meet the criteria for an insanity defense, and the only way for petitioner to show prejudice was to present testimony that would be the basis for that defense, but petitioner made no such showing; thus, he was not entitled to post-conviction relief under T.C.A. §§ 40-30-103, 40-30-110(f) on the basis of ineffective assistance of counsel. McWilliams v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 942 (Tenn. Crim. App. Nov. 2, 2017).

Defendant's petition for post-conviction relief was properly denied because the post-conviction court found that there was no basis to suppress the drugs; and, even if trial counsel's filing of the motion to suppress had not been circumvented by defendant's entry of his guilty plea, he did not show that he was prejudiced by the failure to file the motion. Holley v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 949 (Tenn. Crim. App. Nov. 9, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 83 (Tenn. Feb. 14, 2018).

Defendant was not entitled to post-conviction relief, when defendant alleged that defendant's trial counsel provided ineffective assistance of counsel, because (1) trial counsel obtained an automobile accident reconstruction expert who presented evidence favorable to defendant; and (2) trial counsel's advice to defendant not to testify was a reasonable strategic decision, given defendant's criminal history and statement admitting fault for the vehicular accident to an investigating officer. Krasovic v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 964 (Tenn. Crim. App. Nov. 14, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 171 (Tenn. Mar. 14, 2018).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly denied because defense counsel was prepared for a trial; counsel investigated the crime scene, reviewed discovery, and summarized witness statements; counsel said that he worked about 150 hours on defendant's case and that he provided defendant with the discovery and the ballistic evidence; counsel met numerous times with defendant to review the evidence and to discuss the State's plea offer; and he said he answered defendant's questions regarding the plea offer, that he subpoenaed witnesses for the sentencing hearing, and that he was prepared for the sentencing hearing. Smith v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 959 (Tenn. Crim. App. Nov. 14, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 180 (Tenn. Mar. 16, 2018).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly denied because, given the fact that possession of the drugs could be attributed to the leaseholder, the decision not to assert standing to contest the search was a reasonable strategic decision, and the motion to suppress was unlikely to succeed. McCathern v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 962 (Tenn. Crim. App. Nov. 14, 2017), review denied and ordered not published, McCathern v. State, — S.W.3d —, 2018 Tenn. LEXIS 139 (Tenn. Mar. 14, 2018).

Defendant's petition for post-conviction relief was properly denied because, although counsel's advice to plead guilty constituted deficient performance, as by pleading guilty to aggravated burglary, defendant acknowledged that he intended to possess cocaine with the intent to sell or deliver it, and that he actually possessed the cocaine, defendant was not prejudiced by counsel's deficient performance as he did not show a reasonable probability that the jury would have entertained reasonable doubt regarding the drug charge had he not acknowledged guilt of the aggravated burglary charge because he entered an apartment that appeared to function solely as a cocaine dispensary with co-defendant, who had cocaine, a gun, and two sets of scales. McCathern v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 962 (Tenn. Crim. App. Nov. 14, 2017), review denied and ordered not published, McCathern v. State, — S.W.3d —, 2018 Tenn. LEXIS 139 (Tenn. Mar. 14, 2018).

Defendant was not entitled to post-conviction relief because defendant failed to show ineffective assistance of counsel based upon counsel failing to move to suppress the evidence against defendant, failing to file a motion regarding the lack of a video recording from an officer's in-car video camera, and failing to file a motion for a new trial. Dunn v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 975 (Tenn. Crim. App. Nov. 20, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 129 (Tenn. Feb. 14, 2018).

Petitioner failed to show that the State ever extended a plea offer, and counsel could not be found ineffective for failing to communicate an offer that never existed; the State was under no obligation to enter into plea negotiations, and when the State rejected petitioner's original offer to plead guilty, counsel rightfully prepared for trial, such that petitioner failed to show that counsel's actions were ineffective and he was not entitled to post-conviction relief under T.C.A. §§ 40-30-103, 40-30-110(f). Cunningham v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 983 (Tenn. Crim. App. Nov. 28, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 169 (Tenn. Mar. 14, 2018).

Defendant's petition for post-conviction relief was properly denied as lead counsel was not ineffective because defendant failed to show that he was prejudiced by lead counsel's handling of the McDaniel hearing request as the testimony of the doctor who performed the victim's autopsy about the direction defendant's car was traveling when it struck the victim, and specifically her testimony about the injuries left by the car's heat shield, was not outside her area of expertise; there was no error in the doctor's opinion that the manner of death was homicide; and lead counsel was aware of the doctor's opinions regarding the manner of death and direction of travel of defendant's car, and he had extensively prepared for the doctor's testimony. Cornwell v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 994 (Tenn. Crim. App. Dec. 1, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 214 (Tenn. Apr. 18, 2018).

Defendant's petition for post-conviction relief was properly denied as lead counsel was not ineffective because defendant did not establish that he was prejudiced by lead counsel's failure to timely inspect defendant's car as there was no exculpatory evidence to be preserved on defendant's car; and, despite the fact that the car had been stored outside, defendant's expert accident reconstructionist was still able to opine that the physical evidence was consistent with defendant's explanation of the incident in which the victim was run over by defendant's car and to testify that he did not believe that the officers' opinions that the victim was struck in one direction could be proven by the evidence. Cornwell v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 994 (Tenn. Crim. App. Dec. 1, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 214 (Tenn. Apr. 18, 2018).

Defendant's petition for post-conviction relief was properly denied as lead counsel was not ineffective for failing to object and properly cross-examine the doctor who performed the victim's autopsy because lead counsel's attempt to impeach the doctor, although ill-advised given that lead counsel mistakenly stated that the doctor said the car backed over the victim, was not deficient because lead and co-counsel believed that the doctor had confirmed defendant's version of the incident at a prior hearing and had weighed the possible benefits of impeaching the doctor with a prior statement that confirmed defendant's story against the possible risks, including the doctor's denial that she had said that defendant's car backed over the victim. Cornwell v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 994 (Tenn. Crim. App. Dec. 1, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 214 (Tenn. Apr. 18, 2018).

Defendant's petition for post-conviction relief was properly denied because there was nothing in the trial court record or the appellate court's opinion on direct appeal that would demonstrate a specific bias against defendant as no evidence showed that the trial judge's out-of-court misconduct pierced the veil of judicial impartiality in defendant's trial proceedings; and the evidence did not show that the trial judge was impaired, based on an addiction to pain killers, during the trial or in denying defendant's motion for new trial. Cornwell v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 994 (Tenn. Crim. App. Dec. 1, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 214 (Tenn. Apr. 18, 2018).

Defendant's petition for post-conviction relief was properly denied because there was no evidence in the trial record that the trial judge ever expressed dissatisfaction or disagreement with the weight of the evidence or that he had absolved himself of his responsibility to act as the thirteenth juror as he denied defendant's motion for new trial in a written order that stated the verdict of the jury was specifically approved by the court, which was sufficient to establish that the trial judge approved the verdict as the thirteenth juror. Cornwell v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 994 (Tenn. Crim. App. Dec. 1, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 214 (Tenn. Apr. 18, 2018).

Defendant failed to show ineffective assistance of counsel because his counsel had a mental health evaluation conducted on defendant at the outset of counsel's representation which revealed that defendant understood the charges against him and was competent to aid counsel in his defense. Furthermore, because defendant failed to call an educational specialist trained in mental defects and retardation during the post-conviction hearing, he could not meet his burden of proof Curry v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1009 (Tenn. Crim. App. Dec. 5, 2017).

Because defendant failed to offer any proof refuting or contradicting the State of Tennessee's proof and simply argued that defendant's counsel should have presented proof of defendant's innocence, defendant could not meet the burden of proof to show that counsel was ineffective in failing to offer evidence of defendant's innocence. Furthermore, the evidence against defendant consisted of the testimony of a cooperative victim, defendant's own confession, and DNA analysis of the victim's unborn child establishing defendant as the father. Curry v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1009 (Tenn. Crim. App. Dec. 5, 2017).

Defendant failed to show ineffective assistance of counsel because counsel did not coerce defendant into pleading guilty in that, after hearing the court's explanation concerning potential sentences, a summary of the evidence against defendant, and the court's explanation of the difference between pleading guilty and a jury trial, defendant informed the trial court that defendant wanted to accept the plea offer. After speaking with trial counsel and defendant's parent, defendant again informed the court of defendant's desire to plead guilty. Curry v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1009 (Tenn. Crim. App. Dec. 5, 2017).

Inmate was not entitled to post-conviction relief based on trial counsel's alleged ineffective assistance because (1) witness testimony not presented was cumulative or not exculpatory, (2) the inmate showed no crime scene contamination, (3) the inmate's informed choice not to testify barred claiming counsel did not prepare the inmate to testify, and (4) the inmate's failure to show deficient performance barred showing prejudice through a juror's testimony. Kiser v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1047 (Tenn. Crim. App. Dec. 21, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 223 (Tenn. Apr. 19, 2018).

Post-conviction court properly denied petitioner post-conviction relief because trial counsel was not ineffective for failing to file a motion to suppress the video recording of the drug transaction; the evidence supported the determinations that petitioner failed to present evidence to support suppression and that counsel decided as a matter of strategy not to file the motion to suppress and to instead address the issue by objecting to the evidence as not showing an exchange of drugs. McNeal v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 7 (Tenn. Crim. App. Jan. 5, 2018), appeal denied, McNeal v. State, — S.W.3d —, 2018 Tenn. LEXIS 292 (Tenn. May 16, 2018).

Post-conviction court properly denied petitioner post-conviction relief because trial counsel did not fail to prepare adequately for trial the evidence supported the post-conviction court's decision to credit counsel's testimony regarding his preparations for the trial, including his meetings with petitioner and their review of the evidence. McNeal v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 7 (Tenn. Crim. App. Jan. 5, 2018), appeal denied, McNeal v. State, — S.W.3d —, 2018 Tenn. LEXIS 292 (Tenn. May 16, 2018).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective for failing to obtain the preliminary hearing transcript and to impeach the victim with her prior statement and testimony because the recording of the hearing was not transcribed as it was inaudible; counsel aggressively cross-examined the victim at the trial using counsel's notes from the preliminary hearing; the discovery material was available to defendant and his counsel, and defendant could have alerted his counsel to genuine conflicts; counsel's examination of witnesses and his objections showed his preparation and purpose; and the victim identified defendant as the person who held her against her will in a vehicle and who shot her. Overton v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 4 (Tenn. Crim. App. Jan. 4, 2018).

Post-conviction court properly denied petitioner post-conviction relief because appellate counsel was not ineffective for failing to raise an issue of the violation of petitioner's constitutional rights due to admission of a video recording; petitioner cited no legal authorities that supported suppression or exclusion of the video recording, and he failed to identify any pertinent information counsel lacked due to counsel's failure to meet with him before filing the appellate brief. McNeal v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 7 (Tenn. Crim. App. Jan. 5, 2018), appeal denied, McNeal v. State, — S.W.3d —, 2018 Tenn. LEXIS 292 (Tenn. May 16, 2018).

Post-conviction court properly denied petitioner post-conviction relief because trial counsel was not ineffective for improperly advising petitioner; petitioner did not testify at the hearing regarding the substance of the testimony he would have given but for counsel's alleged erroneous advice. McNeal v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 7 (Tenn. Crim. App. Jan. 5, 2018), appeal denied, McNeal v. State, — S.W.3d —, 2018 Tenn. LEXIS 292 (Tenn. May 16, 2018).

Trial court properly denied petitioner post-conviction relief because he failed to offer any proof of ineffective assistance of trial counsel; petitioner failed to present a witness that could have offered testimony exonerating him, failed to present an expert to refute the State's medical proof, and failed to present any proof in support of his claim that he was not competent to stand trial. Valentine v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 19 (Tenn. Crim. App. Jan. 10, 2018).

Court of criminal appeals concluded that trial counsel was effective in his representation of appellant and that appellant knowingly and voluntarily entered his guilty plea in exchange for his immediate release. Accordingly, the post-conviction court properly denied appellant's petition for post-conviction relief. Valentino v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 24 (Tenn. Crim. App. Jan. 11, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 162 (Tenn. Mar. 14, 2018).

Defendant's petition for post-conviction relief, alleging ineffective assistance of counsel, was properly denied because trial counsel recounted an adequate investigation of the facts, adequate communication with defendant, and adequate negotiations with the State; defendant failed to prove that, but for any error by trial counsel, he would not have pleaded guilty and would have insisted on going to trial as defendant stated that he was terrified of a trial; and defendant did not show that his pleas were entered unknowingly or involuntarily as the transcript of the plea colloquy showed that he indicated that he understood each right that he was giving up and that he voluntarily waived each right. Henry v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 46 (Tenn. Crim. App. Jan. 23, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 279 (Tenn. May 17, 2018).

Special condition was not announced during the plea colloquy, but counsel testified that petitioner was informed of the special condition prior to entering his guilty plea, and the evidence did not preponderate against this; petitioner failed to show deficiency in trial counsel's performance and he was not entitled to post-conviction relief under T.C.A. §§ 40-30-103, 40-30-110(f). Greene v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 53 (Tenn. Crim. App. Jan. 26, 2018).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly denied because the trial court accurately informed defendant that a conviction of first degree murder carried an automatic sentence of life imprisonment, which equated to a service of 100 percent of 60 years minus any eligible credits up to 15 percent; accurately informing defendant of the potential sentence did not equate to a threat or an act of coercion on the part of the trial court; a contentious relationship with counsel, standing alone, would not entitle defendant to relief; and nothing in the record suggested that counsel represented defendant with anything less than the constitutionally required zeal. Warlick v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 74 (Tenn. Crim. App. Jan. 31, 2018).

Post-conviction court did not err in denying appellant's petition for post-conviction relief. Although appellant contended that his guilty pleas were not knowingly and voluntarily entered because his trial counsel was ineffective in explaining the possible sentencing outcomes to him, the post-conviction court accredited trial counsel's testimony that she explained to appellant that his sentences would be up to the trial court and that his chances of getting a six-year sentence were slim to none. Lancaster v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 77 (Tenn. Crim. App. Feb. 2, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 370 (Tenn. June 8, 2018).

Post-conviction court properly denied petitioner post-conviction relief because he failed to establish that trial counsel was ineffective for failing to strike a juror who was allegedly the victim of an assault; petitioner did not present any proof concerning the juror's assault case and/or how that experience could have influenced the juror's verdict, and thus, even if counsel was deficient in failing to make a challenge for cause, petitioner failed to establish prejudice. Anderson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 112 (Tenn. Crim. App. Feb. 15, 2018).

Post-conviction court properly denied petitioner post-conviction relief because he failed to establish that trial counsel was ineffective for failing to file a motion to suppress the photographic line-up; there is no Sixth Amendment right to have defense counsel present when the State provides a pretrial photographic display to a witness. Anderson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 112 (Tenn. Crim. App. Feb. 15, 2018).

Post-conviction court properly denied petitioner post-conviction relief because he failed to offer any proof in support of his ineffective assistance of counsel claims; petitioner failed to call potential witnesses despite his claim that trial counsel should have called them, he failed to substantiate his claim that counsel was ineffective for failing to hire an investigator to do background checks on the State's witnesses, and he offered no proof that a sergeant perjured himself. Anderson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 112 (Tenn. Crim. App. Feb. 15, 2018).

Post-conviction court properly denied petitioner post-conviction relief because he failed to carry his burden of proof establishing that trial counsel was deficient by failing to meet with him while he was in jail and by failing to provide him with discovery; petitioner was out on bond prior to and during trial, and trial counsel testified that he was provided with open file discovery from the State, made a copy of the discovery for petitioner, and discussed the discovery with petitioner. Anderson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 112 (Tenn. Crim. App. Feb. 15, 2018).

Post-conviction court properly denied petitioner post-conviction relief because he failed to establish his factual allegation that members of the jury spoke and mingled with the State's witnesses during his trial; trial counsel testified that he never witnessed any mingling between the State's witnesses and the juror and was never informed of such by petitioner, and petitioner did not call a member of the jury or the State's witnesses he claimed were talking to the jury members. Anderson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 112 (Tenn. Crim. App. Feb. 15, 2018).

Defendant failed to establish by clear and convincing evidence that defendant's trial counsel was aware of a photograph and deficient in failing to introduce the photograph into evidence because there was not a reasonable probability that the verdict would have been different, even if the watch in the post-conviction photograph was the same watch allegedly stolen from the victim, as the evidence supported the conclusion that defendant attempted to commit aggravated robbery by taking the victim's money, even if the victim's watch was not taken. Perry v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 144 (Tenn. Crim. App. Feb. 23, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 426 (Tenn. July 18, 2018).

Defendant failed to establish by clear and convincing evidence that defendant's trial counsel provided ineffective assistance of counsel because the evidence showed that defendant's trial counsel was only absent in defendant's trial during jury deliberations and the reading of the verdict. Accordingly, defendant failed to establish that trial counsel effectively pressured defendant not to testify in defendant's own defense by informing defendant that counsel would be absent during defendant's testimony. Perry v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 144 (Tenn. Crim. App. Feb. 23, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 426 (Tenn. July 18, 2018).

Defendant failed to prove ineffective assistance of counsel by clear and convincing evidence because there was no evidence that plea counsel in one case conducted an inadequate investigation and there was no prejudice because the post-conviction court granted defendant a delayed appeal of the sentence, which the appellate court ruled upon. Because alleged deficiencies by trial counsel in another case occurred after defendant's pleas in one case, defendant failed to show that but for counsel's actions, defendant would not have pleaded guilty. Phifer v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 132 (Tenn. Crim. App. Feb. 23, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 440 (Tenn. July 19, 2018).

It was proper to deny petitioner post-conviction relief because petitioner's guilty plea was not involuntarily and unknowingly entered on the ground that trial counsel was ineffective; trial counsel testified that he met with petitioner several times and spoke with the detective, the prosecutor, and the victim's attorney and that he discussed the State's discovery response with petitioner. Shade v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 154 (Tenn. Crim. App. Feb. 27, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 327 (Tenn. June 6, 2018).

It was proper to deny petitioner post-conviction relief because petitioner's guilty plea was not involuntarily and unknowingly entered on the ground that trial counsel was ineffective; trial counsel did not misinform petitioner about the amount of time he would actually have to serve before he could be released from prison because petitioner was properly informed by trial counsel and the trial court that he could receive sentencing credits to reduce his sentence by fifteen percent. Shade v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 154 (Tenn. Crim. App. Feb. 27, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 327 (Tenn. June 6, 2018).

Defendant was not entitled to relief when defendant asserted that defendant's guilty plea was not voluntarily and knowingly entered because defendant failed to show ineffective assistance of counsel as defendant was fully aware that the plea agreement to which defendant entered applied to both of defendant's cases and defendant voluntarily entered a plea in accordance with the agreement. Defendant also failed to establish that defendant was not aware of what lifetime community supervision required. Bell v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 168 (Tenn. Crim. App. Mar. 2, 2018).

Defendant's petition for post-conviction relief was properly denied because trial counsel was not ineffective for failing to file a motion to sever his case from his codefendant as both defendant and codefendant maintained that they were forced to commit the robbery by a gang leader; codefendant's statement and testimony backed-up defendant's claim of duress; and the identity of the actual shooter was of no consequence given that the State proceeded at trial on a theory of criminal responsibility; further, defendant's main argument that the admission of codefendant's statement at trial violated his right to confrontation was belied by the record as codefendant testified at trial and was cross-examined by trial counsel. Craft v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 197 (Tenn. Crim. App. Mar. 16, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 414 (Tenn. July 18, 2018).

Defendant's petition for post-conviction relief was properly denied as he failed to establish that he was prejudiced by trial counsel's not calling a mental health expert at trial because defendant did not present an expert at the post-conviction hearing to testify regarding his mental state at the time of the offenses; furthermore, the record belied defendant's claim that counsel failed to even explore the possibility of calling such an expert as counsel testified that defendant was examined by an expert for the State and her own expert, and both concluded that defendant was competent at the time of the offenses and to stand trial; and counsel questioned witnesses about defendant's performance in school and his learning disabilities. Craft v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 197 (Tenn. Crim. App. Mar. 16, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 414 (Tenn. July 18, 2018).

Trial court properly denied defendant's petition for post-conviction relief because neither trial nor appellate counsel provided deficient performance where the evidence of defendant's guilt was overwhelming, while a witness's testimony could have been relevant to defendant's state of mind, he did not see the shooting and was not identified as a potential witness by either side and no attempt was made to locate him, no evidence was presented at the post-conviction hearing about defendant's medications or their adverse effects, and the jury was properly instructed on voluntary intoxication. Witherow v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 201 (Tenn. Crim. App. Mar. 19, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 443 (Tenn. July 18, 2018).

Post-conviction court did not err in denying petitioner post-conviction relief because petitioner failed to establish that trial counsel never informed him that he would receive a sentence of life without the possibility of parole if he were convicted; the post-conviction court accredited trial counsel's testimony that he explained to petitioner that he faced a life sentence without the possibility of parole and that petitioner knew of the consequences if he went to trial and lost. Timmons v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 205 (Tenn. Crim. App. Mar. 20, 2018).

It was proper to deny petitioner denial post-conviction relief because he failed to establish his factual allegation that trial counsel was ineffective for failing to pursue a mental health defense by clear and convincing evidence; trial counsel testified that there was nothing in his interactions with petitioner or his review of petitioner's record to suggest that petitioner had been previously diagnosed with a mental health condition. Timmons v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 205 (Tenn. Crim. App. Mar. 20, 2018).

Defendant's petition for post-conviction relief was properly denied because trial counsel was not ineffective for failing to seek a mental evaluation or to present an expert witness to support his duress defense as there was no evidence presented at the post-conviction hearing that defendant suffered from any mental condition that would have warranted a mental evaluation; defendant failed to present the testimony of an expert at the evidentiary hearing to explain what, if any, mental health evidence trial counsel should have advanced at trial; and defendant presented no psychological expert or any other evidence to establish how such an expert would have bolstered defendant's duress defense. Evans v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 216 (Tenn. Crim. App. Mar. 22, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 466 (Tenn. July 19, 2018).

Defendant's petition for post-conviction relief was properly denied because trial counsel was not ineffective for failing to adequately prepare him for cross-examination because counsel testified that he and his investigator spoke to defendant about testifying at trial and explained to him what they were needing and what his primary defense was going to be; and defendant failed to establish his factual allegations with respect to that issue by clear and convincing evidence as defendant did not testify at the postconviction hearing. Evans v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 216 (Tenn. Crim. App. Mar. 22, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 466 (Tenn. July 19, 2018).

Although petitioner waived the issue, his claims of ineffective assistance related to the failure to argue that the victim did not suffer serious bodily injury still failed, as counsel testified that he could not make a good faith argument to that effect, the post-conviction court determined this was a matter of trial strategy, and the court agreed on review. Dyer v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 217 (Tenn. Crim. App. Mar. 22, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 409 (Tenn. July 18, 2018).

Petitioner failed to establish that he received improper advice about his Range II classification or that any improper advice from counsel impacted his decision to reject the 15-year-offer and proceed to trial; petitioner was aware of the information he needed to make an informed decision about whether to accept or reject the plea agreement. Dyer v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 217 (Tenn. Crim. App. Mar. 22, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 409 (Tenn. July 18, 2018).

Although petitioner waived the issue, his claims of ineffective assistance related to the failure to visit the crime scene still failed, as he failed to explain what further investigation by trial counsel of the crime scene would have revealed, and the court would not speculate as to what evidence further investigation might have uncovered. Dyer v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 217 (Tenn. Crim. App. Mar. 22, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 409 (Tenn. July 18, 2018).

Although petitioner waived the issue, his claims of ineffective assistance related to the failure to negotiate a more favorable plea offer still failed; trial counsel wrote petitioner a letter outlining, in part, the potential sentencing outcomes and counsel's recommendation to accept a plea offer, which defendant initialed and recognized. Dyer v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 217 (Tenn. Crim. App. Mar. 22, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 409 (Tenn. July 18, 2018).

Although petitioner waived the issue, his claims of ineffective assistance related to the failure to call witnesses at the sentencing hearing still failed, as he offered no citation in support of his argument, the sentencing hearing was not a part of the record, and the court failed to see how petitioner growing up without a father would have caused the trial court to fashion a different sentence, and he failed to show that presenting his mother at the hearing would have resulted in a different outcome. Dyer v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 217 (Tenn. Crim. App. Mar. 22, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 409 (Tenn. July 18, 2018).

Petitioner failed to state his claim of ineffective assistance regarding the failure to object to a machete photograph with any specificity in his petition, and because the issue was not addressed in the order denying relief and petitioner cited no authority or argument, he did not overcome the presumption of waiver; in any event, his claim failed, as the photographs were not a part of the record, plus petitioner confessed to swinging the machete, and neither deficient performance nor prejudice was shown. Dyer v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 217 (Tenn. Crim. App. Mar. 22, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 409 (Tenn. July 18, 2018).

Although petitioner waived the issue, his claims of ineffective assistance related to the failure to prepare him to testified for trial still failed, as the State withdrew its notice of its intent to impeach the him with prior convictions if he chose to testify, he still did not testify, and the court had previously addressed the issue on direct appeal and concluded that the record showed he voluntarily and personally waived his right to testify in his own defense. Dyer v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 217 (Tenn. Crim. App. Mar. 22, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 409 (Tenn. July 18, 2018).

Law enforcement had the option of having petitioner's car towed and subsequently searched, and while the State had to show that impounding the vehicle was necessary, the search would have likely been justified pursuant to this exception, and nothing showed that impounding petitioner's car was inappropriate, such that ineffective assistance of counsel was not established and petitioner was not entitled to post-conviction relief. Harris v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 266 (Tenn. Crim. App. Apr. 6, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 526 (Tenn. Aug. 13, 2018).

Trial counsel was not deficient for failing to impeach an attorney with mere allegations of misconduct, the introduction of which might have resulted in a mini-trial concerning those collateral matters and unnecessarily alienated the jury; the court could not speculate what might have happened at petitioner's state trial had the attorney been so impeached, and thus petitioner was not entitled to post-conviction relief. Harris v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 266 (Tenn. Crim. App. Apr. 6, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 526 (Tenn. Aug. 13, 2018).

Petitioner failed to show deficient performance from counsel's failure to challenge the his arrest for lack of probable cause, and thus he was not entitled to post-conviction relief; witnesses testified to helping arrange a drug deal between petitioner and the victim on the evening the victim was killed, one witness was present when petitioner tried to rob the victim and shot him, and the other witness testified that petitioner made some questionable statements indicating that he had taken money from the victim. Harris v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 266 (Tenn. Crim. App. Apr. 6, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 526 (Tenn. Aug. 13, 2018).

Petitioner's arrest was based upon probable cause and he failed show that the government delayed the probable cause hearing for unreasonable purposes, and thus even if trial counsel had raised this issue in a motion to suppress, the trial judge would have found no violation; ineffective assistance was not shown and petitioner was not entitled to post-conviction relief. Harris v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 266 (Tenn. Crim. App. Apr. 6, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 526 (Tenn. Aug. 13, 2018).

Trial counsel was not ineffective for failing to file a motion to recuse the trial judge on the ground that he was the same judge who issued the search warrant for petitioner's automobile; a trial judge's issuing a search warrant would not disqualify the same judge from later presiding over the case, and there was no need why the judge who issued the search warrant was a needed witness at a Franks hearing, and thus petitioner was not entitled to post-conviction relief. Harris v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 266 (Tenn. Crim. App. Apr. 6, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 526 (Tenn. Aug. 13, 2018).

Waiver notwithstanding, petitioner failed to show deficient performance or prejudice regarding trial counsel's failure to seek recusal due to any ex parte communication involving enhanced security procedures; on direct appeal, it was determined that the trial court did not abuse its discretion by imposing additional security measures in the courtroom, and petitioner failed to establish that the increased measures prejudiced his trial, such that he was not entitled to post-conviction relief. Harris v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 266 (Tenn. Crim. App. Apr. 6, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 526 (Tenn. Aug. 13, 2018).

After his original motion in federal court was denied, trial counsel had the unique benefit of hindsight and made a strategic decision not to file a similar motion in state court, and because there was no apparent reason to anticipate any more success with the same suppression motion in state court, counsel's strategic decision was not questioned, and petitioner was not entitled to post-conviction relief. Harris v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 266 (Tenn. Crim. App. Apr. 6, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 526 (Tenn. Aug. 13, 2018).

Because petitioner's underlying issues regarding recusal of the trial judge are without merit, trial counsel was not required to file a futile motion irrespective of the deliberate nature of the decision, and petitioner was not entitled to post-conviction relief. Harris v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 266 (Tenn. Crim. App. Apr. 6, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 526 (Tenn. Aug. 13, 2018).

Defendant failed to show that defense counsel provided ineffective assistance in failing to conduct a reasonable investigation, to have defendant declared indigent, to hire an investigator, to retain experts, to object to evidence, and to properly cross-examine witnesses. Although counsel was deficient in failing to interview one potential witness, to review the recordings of defendant's telephone conversations from jail, and to object to the prosecutor's opening statements, there was no prejudice given the strong evidence against defendant. Braswell v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 269 (Tenn. Crim. App. Apr. 9, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 595 (Tenn. Sept. 14, 2018).

Defendant's petition for post-conviction relief was properly denied as plea counsel was not ineffective because, at the post-conviction hearing, plea counsel testified that he met with defendant multiple times, reviewed all of the discovery materials, and successfully bargained with the State for a lower sentence for defendant. Cobb v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 273 (Tenn. Crim. App. Apr. 12, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 441 (Tenn. July 18, 2018).

Defendant was not entitled to post-conviction relief when defendant alleged ineffective assistance of counsel because defendant did not prove by clear and convincing evidence that counsel was ineffective regarding defendant's Interstate Agreement on Detainers and speedy trial violation claims. Although defendant complained that counsel failed to certify questions of law on these issues, defendant did not meet defendant's burden to show that, had counsel done so, the outcome of the case would have been different. Bauer v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 300 (Tenn. Crim. App. Apr. 19, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 483 (Tenn. Aug. 8, 2018).

Defendant's motion for post-conviction relief was properly denied as counsel was not ineffective because counsel's reasoning for not objecting to the testimony of defendant's ex-wife about the victim's purpose in providing her with a handgun or to the testimony of the ex-wife's sister about defendant's prior threats were reasonably based trial strategies; counsel's decisions to introduce evidence of defendant's character for peacefulness and refrain from questioning potential jurors about domestic violence were reasonable trial strategies; and defendant did not show how counsel's failure to seek suppression of the search warrant based on an insufficient description of defendant's property would have affected the outcome of his trial. Rogers v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 305 (Tenn. Crim. App. Apr. 23, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 478 (Tenn. Aug. 10, 2018).

Counsel's decision not to object to the prosecutor's reference to certain evidence in closing argument was a reasonable tactical decision, and the prosecutor's use of the term “pedophile” was not improper, as there was evidence that petitioner picked up the child victim from school and the topic of grooming and pedophilia was discussed; petitioner's claim of ineffective assistance of counsel failed and he was not entitled to post-conviction relief. Presson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 317 (Tenn. Crim. App. Apr. 25, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 570 (Tenn. Sept. 13, 2018).

Counsel thoroughly investigated the economic motive defense, but rather than pursue it and expose petitioner to a likely damaging challenge to his credibility, counsel chose to focus on the victims' credibility; as counsel made a reasonable strategic decision not to pursue the defense at trial, petitioner's claim of ineffective assistance of counsel failed, and petitioner was not entitled to post-conviction relief. Presson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 317 (Tenn. Crim. App. Apr. 25, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 570 (Tenn. Sept. 13, 2018).

Counsel and a jury consultant used questionnaire information to rank potential jurors, and counsel believed that the jurors' positives outranked the negatives, and as petitioner failed to show that the jury was not impartial, his claim of ineffective assistance of counsel failed and he was not entitled to post-conviction relief. Presson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 317 (Tenn. Crim. App. Apr. 25, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 570 (Tenn. Sept. 13, 2018).

Counsel testified that he discussed the issue of testifying with petitioner several times and that petitioner made his own decision not to testify; petitioner's claim of ineffective assistance of counsel failed and he was not entitled to post-conviction relief. Presson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 317 (Tenn. Crim. App. Apr. 25, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 570 (Tenn. Sept. 13, 2018).

Trial court did not err by failing to instruct the jury on the lesser-included offenses of misdemeanor assault and misdemeanor child abuse and neglect and counsel was not ineffective for failing to request such instructions, as petitioner was convicted of either the charged offenses or attempt, the issue had no merit, petitioner's claim of ineffective assistance of counsel failed, and he was not entitled to post-conviction relief. Presson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 317 (Tenn. Crim. App. Apr. 25, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 570 (Tenn. Sept. 13, 2018).

Trial counsel's decision not to seek a severance was a reasonable strategic decision, petitioner's claim of ineffective assistance of counsel failed, and he was not entitled to post-conviction relief. Presson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 317 (Tenn. Crim. App. Apr. 25, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 570 (Tenn. Sept. 13, 2018).

Petitioner's claims of ineffective assistance failed and he was not entitled to post-conviction relief; although he claimed he was confused about the charges and would not have pleaded guilty but for the actions of counsel, counsel testified that petitioner understood and made the decision to accept the plea agreement himself, and the record supported the finding that he knowingly and voluntarily entered his guilty pleas. Jones-Smith v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 318 (Tenn. Crim. App. Apr. 25, 2018).

Petitioner's claims of ineffective assistance failed and he was not entitled to post-conviction relief; although he claimed that counsel failed to properly investigate the case, there was no proof regarding either petitioner's alleged alibi or mental health defenses presented at the post-conviction hearing, the court could not speculate, and these claims were not proven by clear evidence. Jones-Smith v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 318 (Tenn. Crim. App. Apr. 25, 2018).

Post-conviction court properly denied petitioner post-conviction relief because petitioner was unable to present any specific facts of trial counsel's ineffectiveness; petitioner confirmed at the post-conviction hearing that she never attempted to visit or call trial counsel about her case, and counsel testified that he set several appointments with petitioner, but she failed to appear at any. Barnett v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 338 (Tenn. Crim. App. Apr. 27, 2018).

Defendant failed to prove by clear and convincing evidence that defense counsel provided ineffective assistance, at defendant's trial for rape by coercion and criminal exposure to HIV, by failing to request a bill of particulars, failing to call particular witnesses at trial, failing to obtain cell phone records and cell tower data, failing to advise defendant of the nature of the charges and the potential penalties that defendant faced, failing to effectively cross-examine the victim, and failing to request an accomplice jury instruction. Chandler v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 362 (Tenn. Crim. App. May 9, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 592 (Tenn. Sept. 13, 2018).

Petitioner failed to establish deficient performance or prejudice as a result of counsel's inability to communicate with him, and thus he was not entitled to relief; the breakdown in communication was not attributable to counsel, but rather petitioner's refusal to meet with her, counsel was ready for trial, but petitioner chose to enter a guilty plea, and a review of the guilty plea colloquy showed that petitioner was fully aware of the consequences of entering his plea, despite his claim of being inhibited by marijuana. Anderson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 365 (Tenn. Crim. App. May 10, 2018).

In a case in which defendant was convicted of two counts of aggravated child neglect or endangerment and two counts of child abuse, defendant's petition for post-conviction relief was properly denied as counsel was not ineffective for advising defendant not to testify at trial because defendant made her own decision not to testify based on the strategic recommendation of trial counsel; trial counsel stated that he advised defendant against testifying as she tended not to answer questions directly and failed to see her actions from the perspective of others; and trial counsel had concerns about the allegations to which defendant admitted in her interview with a doctor. Kent v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 372 (Tenn. Crim. App. May 14, 2018).

In a case in which defendant was convicted of aggravated child neglect or endangerment and child abuse, defendant's petition for post-conviction relief was properly denied as counsel was not ineffective for failing to cross-examine a worker for the Department of Children's Services (DCS) with the DCS case recording summary as counsel thoroughly questioned the worker about the allegations regarding nutritional neglect; the worker explained that she did not trust defendant's ex-husband, that his communications only prompted her to continue her investigation, and that she built her case based on the children's disclosures; and defendant failed to allege which portions of the case recording summary should have been used on cross-examination. Kent v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 372 (Tenn. Crim. App. May 14, 2018).

In a case in which defendant was convicted of two counts of aggravated child neglect or endangerment and two counts of child abuse, defendant's petition for post-conviction relief was properly denied as counsel was not ineffective for failing to file a motion to change venue based on pretrial publicity because counsel determined that there was no credible basis for filing the motion; the prospective jurors were questioned about their knowledge of the allegations, parties, victims, and witnesses in the case, and those jurors who indicated they had prior knowledge or knew anyone involved in the case were dismissed; and defendant did not present any evidence of actual bias or prejudice in the selected jury. Kent v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 372 (Tenn. Crim. App. May 14, 2018).

In a case in which defendant was convicted of two counts of aggravated child neglect or endangerment and two counts of child abuse, defendant's petition for post-conviction relief was properly denied as counsel was not ineffective for failing to call the victims' uncle as a witness because his testimony was not material to the defense as he did not spend much time with the victims when the abuse occurred; the uncle stated that he did not know if he could have testified about the victims' truthfulness; and the photographs showing the victims celebrating holidays and participating in fun activities were not in the uncle's possession at the time of trial and were not material as they depicted events occurring before 2008 and 2009. Kent v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 372 (Tenn. Crim. App. May 14, 2018).

Petitioner failed to present clear and convincing evidence establishing any deficiency by trial counsel or any prejudice because neither petitioner nor trial counsel testified at the post-conviction hearing; petitioner did not challenge on appeal the post-conviction court's denial of his request to enter his daily calendars into evidence. Casey v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 380 (Tenn. Crim. App. May 17, 2018).

Petitioner did not specify how counsel could have further discredited certain testimony regarding her emotional state, and counsel presented proof tending to counter the prosecution's evidence that petitioner was unemotional; she did not establish either deficiency or prejudice and she was not entitled to post-conviction relief. Nelson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 384 (Tenn. Crim. App. May 17, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 608 (Tenn. Sept. 17, 2018).

Trial counsel testified that he attempted to secure a pathologist but was unable to do so, and he put considerable effort into reviewing and understanding the medical proof, such that petitioner had not shown deficiency or prejudice as to her claim of a failure to investigate and call witnesses, and she was not entitled to post-conviction relief. Nelson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 384 (Tenn. Crim. App. May 17, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 608 (Tenn. Sept. 17, 2018).

Doctor considered petitioner's ability to work with counsel and determined that petitioner met the medical criteria for competency, including the ability to consult with counsel and assist in her defense; without expert testimony showing that petitioner was not competent, she could not establish prejudice for ineffective assistance of counsel purposes and she was not entitled to post-conviction relief. Nelson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 384 (Tenn. Crim. App. May 17, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 608 (Tenn. Sept. 17, 2018).

Decision not to move for a severance was a strategic decision, and petitioner failed to present any argument that a motion to sever would have been granted, such that she had not shown deficiency or prejudice and she was not entitled to post-conviction relief. Nelson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 384 (Tenn. Crim. App. May 17, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 608 (Tenn. Sept. 17, 2018).

Although trial counsel was ineffective by failing to request a jury instruction regarding accomplice testimony, the post-conviction court did not err in denying relief because defendant failed to show that defendant was prejudiced by the absence of the instruction as there was sufficient evidence, wholly apart from the accomplice's testimony, from which the jury could have found defendant guilty of the offenses beyond a reasonable doubt. Boatwright v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 397 (Tenn. Crim. App. May 22, 2018).

Although trial counsel's failure to learn of a victim's recanting statement made to an investigator constituted deficient performance, defendant failed to prove that defendant was prejudiced by the deficiency because even if the victim had been asked about making the prior inconsistent statement at trial, and had denied making it, the investigator's testimony would not have changed the outcome of the trial as the victim testified about the events in the robbery and said that the victim was able to identify defendant's voice and face. Boatwright v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 397 (Tenn. Crim. App. May 22, 2018).

Petitioner failed to prove ineffective assistance of counsel and therefore he was not entitled to post-conviction relief; although petitioner challenged the voluntariness of his guilty pleas, he failed to include the guilty plea hearing transcript in the record and the transcript was not offered at the post-conviction hearing, defense counsel testified that he did not recall petitioner having mental health issues and he had no basis to believe that he suffered from such, and no expert was offered to refute this testimony. Osborne v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 420 (Tenn. Crim. App. June 1, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 542 (Tenn. Sept. 14, 2018).

Petitioner failed to prove his ineffective assistance allegation and therefore was not entitled to relief; counsel testified that he advised petitioner that an appeal had to be filed within 30 days and that petitioner stormed out, petitioner would not return counsel's calls requesting permission to file an appeal and warning that time was limited, and petitioner did not present evidence as to the scope of counsel's representation beyond the trial, or whether counsel failed to file a motion for a new trial. Mpawinayo v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 421 (Tenn. Crim. App. June 1, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 563 (Tenn. Sept. 13, 2018).

Counsel testified that he obtained discovery, met with petitioner a number of times, reviewed the discovery with him, and utilized an investigator, and as petitioner failed to present evidence of any additional investigative steps that counsel should have taken or what an additional investigation would have revealed, petitioner failed to show that counsel was deficient and petitioner was not entitled to post-conviction relief. Moutry v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 425 (Tenn. Crim. App. June 1, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 582 (Tenn. Sept. 14, 2018).

Petitioner did not specify which mitigating factors applied to him and did not present any evidence of mitigating factors, such that he failed to meet his burden of showing that counsel was deficient, and petitioner was not entitled to post-conviction relief. Moutry v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 425 (Tenn. Crim. App. June 1, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 582 (Tenn. Sept. 14, 2018).

Counsel discussed the decision of whether to testify with petitioner and advised him against testifying, and contrary to petitioner's claim, counsel was not deficient in this regard and petitioner was not entitled to post-conviction relief. Moutry v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 425 (Tenn. Crim. App. June 1, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 582 (Tenn. Sept. 14, 2018).

Counsel testified that he reviewed the discovery materials, he advised petitioner against relying solely upon an alibi defense and prepared a defense that petitioner did not know the victim based on petitioner's repeated representations, and counsel did not learn until the trial that petitioner had a prior relationship with the victim; petitioner presented no evidence that a viable alternative defense theory existed, trial counsel was not deficient in this regard, and petitioner was not entitled to post-conviction relief. Moutry v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 425 (Tenn. Crim. App. June 1, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 582 (Tenn. Sept. 14, 2018).

There was no evidence establishing that the State was willing to offer a plea and that petitioner would have accepted a plea agreement; counsel was not deficient in this regard, and petitioner was not entitled to post-conviction relief. Moutry v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 425 (Tenn. Crim. App. June 1, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 582 (Tenn. Sept. 14, 2018).

Defendant was not entitled to post-conviction relief because defendant failed to demonstrate that defendant was denied the effective assistance of counsel, through either a deficiency in counsel's representation or any prejudice to defendant's case, or that defendant's guilty pleas were unknowing and involuntary due to coercion by counsel. The evidence revealed that defendant was familiar with criminal proceedings, was represented and advised by competent and experienced counsel, and was satisfied at the plea hearing with the representation. Walker v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 443 (Tenn. Crim. App. June 11, 2018).

Defendant's petition for post-conviction relief, alleging that his guilty plea was not knowing and voluntary because it was coerced, and that trial counsel was ineffective by failing to provide competent representation throughout the preliminary proceedings, by failing to object to his employment of a firearm charge, and by failing to obtain a reduced sentence for him, was properly denied as defendant failed to prove his factual allegations by clear and convincing evidence because the record fully supported the post-conviction court's determinations that defendant knowingly and voluntarily entered his guilty plea and that trial counsel provided effective assistance. Chism v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 450 (Tenn. Crim. App. June 19, 2018).

Defendant's petition for post-conviction relief, alleging that trial counsel did not adequately litigate the suppression issue, was properly denied because counsel testified that the prosecutor would not have allowed defendant to litigate the validity of the warrant and still enter into the plea agreement; counsel testified that he discussed the ramifications of the plea with defendant and that while he felt that the sentence under the agreement was harsh, he also thought it was possible that the motion to suppress would be denied, leaving defendant exposed to a much higher sentence; and counsel investigated the suppression issue and presented defendant with the choice of taking the plea offer or litigating the validity of the warrant. Wilson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 452 (Tenn. Crim. App. June 20, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 568 (Tenn. Sept. 14, 2018).

Defendant's petition for post-conviction relief was properly denied as trial counsel was not ineffective in failing to produce mitigating evidence of defendant's mental illness at the sentencing hearing because counsel's reasons for not introducing the records at sentencing were well informed as counsel thoroughly researched defendant's medical health records, and there was no definite mental health diagnosis; defendant agreed to be sentenced as a Range II offender and received a within range sentence, albeit with consecutive alignment; and defendant failed to show how the admission of non-specific mental health records as a mitigating factor would have altered the consecutive nature of his sentence. Norris v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 454 (Tenn. Crim. App. June 20, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 555 (Tenn. Sept. 14, 2018).

Defendant's petition for post-conviction relief was properly denied because counsel was not ineffective for failing to keep defendant informed throughout the case as counsel met with defendant five times in one week in August 2012 and visited him in jail in February 2012, he met with counsel's investigator multiple times, and he met with counsel's paralegal; for failing to investigate the case as defendant failed to show how the absence of the phone records prejudiced him; and for failing to withdraw as counsel as counsel was not at liberty to withdraw because defendant filed a motion and had the burden of establishing a ground for the grant of substitute counsel, but the trial court denied the motion. Crosby v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 455 (Tenn. Crim. App. June 21, 2018).

Defendant's petition for post-conviction relief was properly denied because trial counsel was not ineffective as defendant chose not to testify because counsel testified that he advised defendant not to testify as defendant, based on her limited understanding of the technical aspects of the case, would have been outmatched by the prosecutor, and counsel concluded that defendant's testifying would create bigger problems than it would have resolved; and because defendant did not show that counsel was ineffective for failing to call any witnesses at trial as none of the witness, who defendant claimed should have testified at trial, testified at the post-conviction hearing. Lopez v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 499 (Tenn. Crim. App. July 5, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 546 (Tenn. Sept. 14, 2018).

Post-conviction court properly denied petitioner post-conviction relief because he did not show that trial counsel was deficient in failing to have him evaluated for competency; both trial counsel and an agent of the Tennessee Bureau of Investigation testified that petitioner did not appear to have any mental impairment, and the doctor who found him competent at the time of the hearing testified that he could make no retroactive determination of petitioner's competency at the time of trial. Bettis v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 505 (Tenn. Crim. App. July 9, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 712 (Tenn. Nov. 14, 2018).

Post-conviction court properly denied petitioner post-conviction relief because trial counsel was not deficient in entering an agreed order to substitute one doctor for another doctor; trial counsel articulated that the decision was based on strategy, and testified that the first doctor's testimony was not in conflict with the second doctor's but that her testimony also included her expert opinion regarding strangulation. Bettis v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 505 (Tenn. Crim. App. July 9, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 712 (Tenn. Nov. 14, 2018).

Post-conviction court properly denied petitioner post-conviction relief because petition made no showing that he was prejudiced by trial counsel's failure to exclude family photographs of the victim; petitioner was linked to the murder of the victim by his own statement to police and by strong physical evidence, and there was not a reasonable probability that the jury would have acquitted him had trial counsel managed to exclude the pictures. Bettis v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 505 (Tenn. Crim. App. July 9, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 712 (Tenn. Nov. 14, 2018).

Because petitioner failed to append the autopsy photographs of the victim, specify which photographs were inadmissible, or specify what the grounds for excluding them would be, he was not entitled to relief on his argument that trial counsel should have attempted to exclude the photographs; petitioner was charged with first degree premeditated murder, and photographs of the victim's corpse would have demonstrated the amount of trauma she suffered prior to her death. Bettis v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 505 (Tenn. Crim. App. July 9, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 712 (Tenn. Nov. 14, 2018).

Post-conviction court properly denied petitioner post-conviction relief because he did not demonstrate that he was prejudiced by trial counsel's failure to obtain a forensic pathologist to rebut an expert's testimony; although petitioner asserted that a hypothetical forensic pathologist could have given more favorable testimony that could have supported his theory of self-defense, petitioner failed to present the testimony of such an expert at the post-conviction hearing. Bettis v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 505 (Tenn. Crim. App. July 9, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 712 (Tenn. Nov. 14, 2018).

Post-conviction court properly denied petitioner post-conviction relief because he failed to demonstrate a reasonable probability that the motion to suppress his statement would have succeeded had trial counsel made the motion; the post-conviction court credited counsel's testimony that petitioner did not inform him that petitioner had been awake for several days prior to making the statement, and an agent testified that petitioner did not appear to be affected by lack of sleep. Bettis v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 505 (Tenn. Crim. App. July 9, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 712 (Tenn. Nov. 14, 2018).

Post-conviction court properly denied petitioner post-conviction relief because he did not demonstrate that he was prejudiced by trial counsel's failure to exclude the crime scene photographs; because the decision not to challenge the photographs was a sound strategic decision, petitioner could not show that his counsel's actions were deficient, and the photographs were relevant to the issues at trial. Bettis v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 505 (Tenn. Crim. App. July 9, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 712 (Tenn. Nov. 14, 2018).

Defendant's petition for post-conviction relief was properly denied because, with no signs of impairment and a mental evaluation stating defendant was competent to stand trial, trial counsel and co-counsel were not ineffective when they proceeded to trial without further investigation into defendant's education or mental health; and trial counsel and co-counsel adequately considered the pros and cons of not objecting to defendant's statement as they agreed that his statement could be used to benefit him by conveying his side of the story to the jury without risking the perils of cross-examination, and they made a strategic or tactical decision not to object to the admission of his statement. Love v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 511 (Tenn. Crim. App. July 11, 2018).

Petition for post-conviction relief was properly denied as trial counsel was not ineffective because counsel had provided defendant with all of the information she needed to make an informed decision on whether to plead guilty as counsel testified that after defendant indicated that she wanted to plead guilty, he made several unsuccessful attempts to come to an agreement with the State; when defendant still wished to plead guilty, he encouraged her to take additional time to think about her decision; counsel explained the elements of first degree premeditated murder, the strengths and weaknesses of the State's case, and possible defenses; and trial counsel informed defendant of the rights she would be giving up by entering a guilty plea. Cole v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 517 (Tenn. Crim. App. July 12, 2018).

Counsel testified that he and petitioner discussed the ramifications of petitioner giving testimony on several occasions, and counsel filed a motion to exclude evidence of petitioner's prior convictions; petitioner failed to show that counsel performed deficiently and thus petitioner was not entitled to post-conviction relief. Jamison v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 773 (Tenn. Crim. App. July 16, 2018).

State presented witnesses to testify regarding the chain of custody of the cocaine and petitioner had not shown that counsel's failure to move for a hearing to establish the chain of custody prior to trial was deficient, nor had he shown a reasonable probability that the proceeding would have had a different outcome had counsel done so, and thus the post-conviction court properly denied relief. Jamison v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 773 (Tenn. Crim. App. July 16, 2018).

Counsel testified that he met with petitioner numerous times, that petitioner disappeared for a period of time while counsel made strenuous efforts to find him, and that he reviewed discovery with petitioner; counsel was not deficient in failing to meet with petitioner, and he was not entitled to post-conviction relief. Jamison v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 773 (Tenn. Crim. App. July 16, 2018).

Because the record did not show that petitioner informed counsel of the factual basis for asserting entrapment, he had not demonstrated deficiency in counsel's failure to file a pretrial notice; furthermore, petitioner could not establish a reasonable probability that a properly preserved entrapment defense would have changed the outcome of trial, as he did not accidentally and unexpectedly find rocks of crack cocaine in his pocket and then give them to law enforcement only because he was persuaded to do so. Jamison v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 773 (Tenn. Crim. App. July 16, 2018).

Petitioner claimed that counsel failed to investigate or call witnesses on his behalf at trial, but those witnesses were not presented at the post-conviction hearing, such that petitioner failed to establish prejudice, plus the testimony that he claimed would have come from the witnesses did not relate to the commission of the offense; he was not entitled to post-conviction relief. Jamison v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 773 (Tenn. Crim. App. July 16, 2018).

Petitioner had not demonstrated a reasonable probability of a different verdict had the motion to suppress been file and thus he was not entitled to post-conviction relief; the telephone, which was used as collateral in the commission of the crime, was seized during a search incident to arrest, the drugs were in the possession of police because petitioner delivered them to an officer, and the evidentiary value of the telephone was marginal. Jamison v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 773 (Tenn. Crim. App. July 16, 2018).

Post-conviction court properly denied petitioner relief because trial counsel was not deficient in failing to obtain a hypothetical crime scene expert; petitioner made no allegations regarding what testimony an expert could have given to support the defense theory, and he did not present the testimony of any crime scene expert at the post-conviction hearing to demonstrate that expert testimony would have shown that the crime scene supported the defense's theory of the events. Meeks v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 609 (Tenn. Crim. App. July 18, 2018).

Post-conviction court properly denied petitioner relief because he failed to establish that he was prejudiced by trial counsel's failure to have his mental health evaluated prior to trial since he did not show that the omitted mental health evaluation affected the results of the proceeding; there was no evidence to suggest that a mental health evaluation would have shown that petitioner was not competent to stand trial or that he was incapable of performing a premeditated act. Meeks v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 609 (Tenn. Crim. App. July 18, 2018).

Defendant's petition for post-conviction relief was properly denied as trial counsel was not ineffective for failing to produce the contents of defendant's phone records, which defendant claimed would have shown that he was asleep at the time of the crime, because, without more specific testimony or the introduction of the phone records as an exhibit, the appellate court could not determine whether the existence of the alleged phone calls or the timing of the alleged phone calls would have had an impact on the outcome of the trial. Davis v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 562 (Tenn. Crim. App. July 26, 2018).

Defendant's petition for post-conviction relief was properly denied as trial counsel was not ineffective for failing to present the testimony of a domestic violence expert at the post-conviction hearing because, without testimony from a domestic violence expert, the appellate court had no idea what one might have concluded about defendant's situation or how such a conclusion could have affected the outcome of defendant's trial. Davis v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 562 (Tenn. Crim. App. July 26, 2018).

Defendant's petition for post-conviction relief was properly denied as trial counsel was not ineffective for not introducing evidence of the victim's drug addiction because it was a reasonable trial strategy as it avoided the implication that defendant was the victim's drug dealer and a discussion on defendant's drug dealing; and counsel wanted to avoid defendant disputing the credibility of another witness on the stand and, thereby, calling his own credibility into question. Davis v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 562 (Tenn. Crim. App. July 26, 2018).

Defendant's petition for post-conviction relief was properly denied because the appellate court could not find that counsel performed deficiently by not objecting to the rebuttal testimony of the victim's mother after she had been in the courtroom throughout the proceedings as the mother would be a “victim” in the case because she was a natural parent of the victim who was deceased; as a victim, the mother had a right under the Tennessee Constitution to be at any proceeding that defendant had a right to be present, including his criminal trial; and the precise interplay between the sequestration rule and the victim's constitutional right to be present during the criminal proceedings had yet to be clarified. Davis v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 562 (Tenn. Crim. App. July 26, 2018).

Petition for post-conviction relief was properly denied as defendant received effective assistance of counsel and entered his guilty pleas knowingly and voluntarily because, while he asserted that counsel coerced him into accepting the guilty pleas, the court accredited counsel's testimony that he wanted to reset the guilty plea hearing due to his retention as counsel that morning and lack of familiarity with the case, but defendant insisted on pleading that day; counsel's decision to abide by defendant's request after explaining the sentences that he would receive did not constitute ineffective assistance; and, during the plea colloquy, defendant acknowledged that he was entering into the plea agreement freely, voluntarily, and knowingly. Brown v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 590 (Tenn. Crim. App. Aug. 7, 2018).

Petition for post-conviction relief based on the alleged ineffective assistance of trial counsel was properly denied, because the record showed that trial counsel met with the inmate frequently during the seven months preceding the trial and interviewed all relevant witnesses except the victim, whose father would not allow to be interviewed, and the accomplice, whose attorney prevented an interview, and trial counsel did develop a strategy, albeit unsuccessful. Holmes v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 593 (Tenn. Crim. App. Aug. 7, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 695 (Tenn. Nov. 14, 2018).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective because defendant failed to prove by clear and convincing evidence the existence of a plea offer from the State that would reduce the sentence he was currently severing from 37 years to 20 years while simultaneously pleading guilty to additional felonies; and defendant was not prejudiced by any alleged deficiency on the part of counsel as he failed to prove that there was a reasonable probability that he would have accepted the State's 10-year-consecutive offer reflected in the State's file as he repeatedly insisted that the offer he wanted to accept was the asserted 20-year-inclusive offer, which the appellate court concluded never existed. Smith v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 597 (Tenn. Crim. App. Aug. 9, 2018).

Claim for post-conviction relief based on the alleged ineffective assistance of counsel was properly denied, as trial counsel's strategy and tactical decisions were sound and made after thorough preparation and investigation, and the inmate failed to prove counsel was ineffective for failing to allow the inmate to testify to establish that he acted in defense of others, as the theory would not have survived cross-examination where the defense would have to overcome the inmate having used more force than necessary. Naive v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 599 (Tenn. Crim. App. Aug. 10, 2018), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 21 (Tenn. Jan. 15, 2020).

Post-conviction court properly denied petitioner post-conviction relief because he failed to prove by clear and convincing evidence his factual allegations that his guilty pleas were not voluntarily and knowingly entered his trial counsel's ineffective assistance; petitioner stated that he reviewed his case with trial counsel, trial counsel explained the strengths and weaknesses of his case, and trial counsel had gone over the pros and cons of entering a guilty plea as opposed to going to trial. Watkins v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 631 (Tenn. Crim. App. Aug. 17, 2018).

Defendant's petition for post-conviction relief was properly denied as trial counsel was not ineffective for failing to secure a more favorable plea offer because, after considerable negotiations, the State made an offer that included a total sentence of 35 years, less than half of the total effective sentence that defendant received; and defendant presented no evidence to suggest that counsel could have obtained an even more favorable offer from the State. Tynes v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 675 (Tenn. Crim. App. Aug. 30, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 680 (Tenn. Nov. 16, 2018).

Defendant's petition for post-conviction relief was properly denied as trial counsel was not ineffective because counsel made a tactical decision not to pursue a severance of the offenses committed against the first victim from those committed against the second victim as he wanted to use the fact that defendant was a minimal participant in the offenses against the first victim to suggest that he was also a minimal participant in the offenses against the second victim; and counsel believed a motion to sever the offenses would likely be denied. Tynes v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 675 (Tenn. Crim. App. Aug. 30, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 680 (Tenn. Nov. 16, 2018).

Petitioner failed to prove that trial counsel was deficient for not calling petitioner as a trial witness, and he was not entitled to post-conviction relief; counsel stated that he and petitioner had extensive discussions relative to petitioner testifying and that his testimony would have been devastating to the defense, and the trial court conducted a hearing in which petitioner was advised of his right to testify and he stated that he elected not to testify. Oliver v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 916 (Tenn. Crim. App. Sept. 5, 2018).

Witnesses' testimony about the victim's mother's history of erratic and irrational behavior in stressful situations would have been irrelevant and inadmissible at trial, plus the witnesses' testimony would not have been material to petitioner's defense in light of the fact that the mother testified that she did not handle stressful situations well; therefore, petitioner was properly denied post-conviction relief. Lewis v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 683 (Tenn. Crim. App. Sept. 7, 2018).

Trial counsel was not deficient for failing to certain witnesses, as their testimony would not have been material to the petitioner's defense, nor was he prejudiced by counsel's failure to introduce certain evidence, and therefore petitioner was not entitled to post-conviction relief. Lewis v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 683 (Tenn. Crim. App. Sept. 7, 2018).

Petitioner was properly denied post-conviction relief; testimony about his having driven around after the death of his first child in 1994 would have opened the door for the State to introduce possible evidence of his bad character, and counsel made an informed strategic and tactical decision not to call two witnesses to testify regarding petitioner's actions after the victim's death. Lewis v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 683 (Tenn. Crim. App. Sept. 7, 2018).

Petitioner claimed that counsel failed to adequately investigate his case or meet with him, but counsel testified that he met with him a few times and discussed various strategies, and counsel further found in his investigation that inconsistencies in the victim's statements were not particularly significant; the postconviction court credited counsel's testimony, and petitioner was not entitled to post-conviction relief on the ground of ineffective assistance of counsel. Chambers v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 694 (Tenn. Crim. App. Sept. 12, 2018).

Trial counsel investigated petitioner's alleged alibi and was adequately prepared, counsel did not recall petitioner requesting any motions to be filed, plus counsel found no legal basis for a motion to suppress or a motion to challenge the charges, counsel advised petitioner to accept the offer but said the ultimate decision was petitioner's, and petitioner stated at the plea hearing that he was satisfied with counsel's representation, such that petitioner was not entitled to post-conviction relief. Chambers v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 694 (Tenn. Crim. App. Sept. 12, 2018).

Post-conviction court did not err in granting relief given that the evidence showed that trial counsel erroneously told the inmate that his potential sentence would be 25 years at 30-45%, when the conviction in a drug free school zone necessitate confinement at 100%, and the inmate testified that he would have accepted the State's negotiated plea offer of 15 years to be served at 45% had he been correctly informed of his exposure. Yarbro v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 704 (Tenn. Crim. App. Sept. 17, 2018).

Post-conviction relief was granted in error because, although the claim form for attorney fees indicated that counsel only spent 16.4 out-of-court hours on the inmate's case, the post-conviction court erred in concluding that the amount of time was insufficient because the inmate failed to present any evidence that counsel overlooked, no witness that might have discovered, and no portion of any audio or video discovery that might have undermined the outcome of the trial. Phillips v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 716 (Tenn. Crim. App. Sept. 21, 2018).

Inmate did not show the inmate was entitled to post-conviction relief due to a denial of the effective assistance of counsel based on counsel's alleged bad advice regarding whether to testify because (1) counsel credibly testified that decision was left to the inmate, despite counsel's strong advice not to testify, due to the inmate's record, and (2) the inmate told the trial court the inmate did not want to testify. Blacksmith v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 724 (Tenn. Crim. App. Sept. 24, 2018).

Inmate did not show the inmate was entitled to post-conviction relief due to a denial of the effective assistance of counsel when counsel did not withdraw after conveying a plea offer the inmate did not like because counsel credibly testified their relationship did not reach the point where they were unable to communicate. Blacksmith v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 724 (Tenn. Crim. App. Sept. 24, 2018).

Inmate did not show the inmate was entitled to post-conviction relief due to a denial of the effective assistance of counsel when counsel did not call witnesses to rebut a victim's testimony because the inmate did not present such witnesses at the post-conviction hearing. Blacksmith v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 724 (Tenn. Crim. App. Sept. 24, 2018).

Petitioner failed to establish by clear and convincing evidence that counsel was ineffective, and thus petitioner was not entitled to post-conviction relief. counsel fully explored the potential defenses to the State's case, his investigation prior to entry of the guilty plea was reasonable, and petitioner was sufficiently advised of this during the guilty plea colloquy. Connor v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 729 (Tenn. Crim. App. Sept. 27, 2018).

Counsel fully attempted to put forward the best defense theory and strategy possible; [2]-Petitioner failed to show by clear and convincing evidence how trial counsel's failure to file a motion to sever constituted ineffective assistance of counsel, and he was not entitled to post-conviction relief. Lyles v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 740 (Tenn. Crim. App. Oct. 1, 2018).

Defendant's petition for post-conviction relief was properly denied as there was no conflict of interest, and trial counsel was not deficient in failing to disclose his representation of the prosecutor's mother in a civil matter to defendant because counsel's representation of the prosecutor's mother was not directly adverse to his representation of defendant, and was unrelated to defendant's murder trial; and defendant did not show that counsel's representation of defendant would be materially limited. Glenn v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 741 (Tenn. Crim. App. Oct. 1, 2018), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 64 (Tenn. Jan. 16, 2019).

Defendant's petition for post-conviction relief was properly denied as trial counsel was not ineffective for not complying with defendant's request for counsel to withdraw, or, at the very least, not supporting defendant's request for new counsel to the trial court because it was reasonable for trial counsel to continue representing defendant as, at the time that he represented defendant, he did not perceive an inability to communicate with defendant and had hope for building a better relationship with him. Further, defendant was not prejudiced by counsel's refusal to withdraw as the trial court had held a hearing on counsel's representation after receiving a letter from defendant, and denied his request for new counsel. Glenn v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 741 (Tenn. Crim. App. Oct. 1, 2018), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 64 (Tenn. Jan. 16, 2019).

Defendant's petition for post-conviction relief was properly denied as there was no deficiency in trial counsel's efforts to communicate with defendant because trial counsel made nine jail visits, sent 12 letters, and spoke with defendant at various court dates; counsel spoke to defendant about the validity of the indictment, jury instructions, plea offers, trial strategy, likelihood of conviction, and sentencing exposure; and it was unquestioned that counsel communicated the 17 year plea offer extended by the State, but that defendant rejected the offer. Glenn v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 741 (Tenn. Crim. App. Oct. 1, 2018), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 64 (Tenn. Jan. 16, 2019).

Defendant failed to show that defendant received deficient representation of counsel because defendant pointed to no facts in defendant's brief which showed that trial counsel was deficient, but merely referred to defendant's own testimony about trial counsel's alleged lack of communication, failure to explain the charges, and threat to withdraw if defendant did not take a guilty plea. Additionally, trial counsel met with defendant multiple times, reviewed all of the discovery materials, and successfully bargained for a lower sentence. Al-Khafajy v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 746 (Tenn. Crim. App. Oct. 2, 2018).

There were several factors that supported a finding of premeditation besides whether the victim was unarmed, including the use of a deadly weapon, repeated blows, calmness after the killing, failing to render aid, the concealment of evidence, and motive; counsel testified that there was no proof that the victim ever displayed a knife, and thus petitioner's claim that counsel was ineffective for failing to challenge the notion that the victim was unarmed failed and he was not entitled to post-conviction relief. Hooten v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 757 (Tenn. Crim. App. Oct. 5, 2018).

Petitioner claimed counsel failed to effectively explain that if he did not testify, then counsel would be unable to present petitioner's version of events, but this claim was not established and petitioner was not entitled to relief on ineffective assistance grounds; counsel recalled having multiple conversations with petitioner about whether he should testify, it was ultimately petitioner's decision as to whether he testified, plus he admitted that he never asked the trial court if he would be able to tell his side of the story if he did not testify. Hooten v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 757 (Tenn. Crim. App. Oct. 5, 2018).

Issues relating to the stop and subsequent search of petitioner's vehicle were extensively litigated and fully considered on direct appeal and found to be without merit; counsel's performance was not deficient nor had petitioner shown that he was prejudiced by any alleged deficiency in counsel's performance. Hooten v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 757 (Tenn. Crim. App. Oct. 5, 2018).

Petitioner failed to establish that counsel provided deficient performance, and thus he was not entitled to post-conviction relief; trial counsel questioned a witness about the inconsistency regarding whether he reported to the police that he heard a gunshot in a particular recording, which recording was played several times during the trial, and it was up to the jury to determine the witness's credibility and if there was a gunshot. Jones v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 763 (Tenn. Crim. App. Oct. 9, 2018).

Defendant's petition for postconviction relief was properly denied because trial counsel chose not to challenge a potential juror for cause only after defendant insisted that the potential juror might prove favorable to his case, and defendant could not now be heard to complain that counsel erred when counsel's decision was based entirely on information provided to counsel by defendant himself; defendant presented no proof to suggest that the jury who heard the case was not fair and impartial; and trial counsel chose not to object to a detective's testimony that defendant had his share of run-ins with the law as she did not want to draw unnecessary attention to testimony she believed was not that big of a deal. Robinette v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 762 (Tenn. Crim. App. Oct. 9, 2018).

While petitioner claimed that but for counsel's deficient advice, he would not have entered his guilty plea, he never said he would have rejected the plea as a whole; the only way for him to avoid the risk of a first degree murder conviction and life sentence was to accept the State's offer in exchange for his guilty pleas to voluntary manslaughter and possession of a firearm; counsel did not provide ineffective assistance and petitioner was not entitled to post-conviction relief. Evans v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 769 (Tenn. Crim. App. Oct. 15, 2018).

Defendant's petition for post-conviction relief was properly denied because counsel was not ineffective in deliberately choosing to forego the sentence alignment issue in favor of the merger issue, and counsel's decision was reasonable as any challenge to the consecutive alignment of defendant's sentences would not have been successful on appeal because defendant's record included three prior convictions of assault and one conviction of child endangerment in addition to six prior convictions of drug possession and convictions of shoplifting and weapons possession; and the record fully supported the trial court's conclusion that defendant was an offender whose record of criminal activity was extensive. Feaster v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 811 (Tenn. Crim. App. Nov. 1, 2018).

Defendant's petition for post-conviction relief was properly denied as to his ineffective assistance of counsel claim as he did not show prejudice because, pursuant to the plea agreement, numerous felony charges were dismissed against defendant and defendant's nephew received the benefit of a sentence to be served primarily on probation; the record clearly demonstrated that defendant was aware of the sentence he would receive; and he made no particular allegation explaining what element of aggravated robbery he contested or why he would not have been willing to plead guilty to aggravated robbery had trial counsel explained the elements. Englebert v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 812 (Tenn. Crim. App. Nov. 1, 2018).

Defendant's petition for post-conviction relief was properly denied because defendant's counsel during his trial for failure to appear was not ineffective in failing to call a doctor as a witness to raise the diminished capacity defense as counsel testified that he did not trust the doctor, especially when it came to presenting a diminished capacity defense, because he had prior experience with the doctor, who had testified inconsistently about diminished capacity; and counsel did present to the jury the theory that defendant was not capable of forming the state of mind sufficient to satisfy that element of the offense because he was in a drug-induced fugue state at the time he failed to appear at the sentencing hearing. Kidd v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 813 (Tenn. Crim. App. Nov. 1, 2018).

Defendant's petition for post-conviction relief was properly denied because defendant's counsel during his trial for failure to appear was not ineffective in failing to use a preemptory challenge against a juror with personal knowledge of defendant as counsel testified that defendant insisted that the juror not be stricken; the juror indicated that no part of that relationship would affect her ability to sit as a fair and impartial juror; the juror's friendship with defendant's family members indeed could have weighed in defendant's favor; and defendant presented no evidence that his desire for her to be removed from the jury was ignored or disregarded by counsel. Kidd v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 813 (Tenn. Crim. App. Nov. 1, 2018).

Defendant's petition for post-conviction relief was properly denied because defendant's counsel during his trial for failure to appear was not ineffective for failing to appeal the failure to appear conviction as the plea agreement, encompassing both of defendants cases and sentencing defendant to an effective sentence of 12 years, included a waiver of his right to appeal; and counsel had no grounds on which to file an appeal. Kidd v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 813 (Tenn. Crim. App. Nov. 1, 2018).

Defendant's petition for post-conviction relief was properly denied because plea counsel was not ineffective in advising defendant to plead guilty as counsel secured a shorter sentence through a plea agreement with the State; or ineffective in failing to request a mental health evaluation as there was no evidence of defendant's need for an evaluation. Kidd v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 813 (Tenn. Crim. App. Nov. 1, 2018).

Petition for post-conviction relief alleging ineffective assistance of counsel was properly denied as defendant failed to show that his plea was not knowingly, voluntarily and intelligently made and that, but for trial counsel's alleged deficiencies, he would have refused to plead guilty and insisted on going to trial because the assistant district attorney general who prosecuted defendant's case testified that counsel demonstrated excellent awareness of the facts that he was going to use in his defense, and that the proof against defendant at trial was becoming somewhat overwhelming; and defendant pled guilty once he saw the evidence against him to obtain a more favorable sentence than he would have received if convicted at trial. Pierce v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 823 (Tenn. Crim. App. Nov. 5, 2018).

Post-conviction court properly denied petitioner post-conviction relief because he failed to establish that trial counsel was ineffective in failing to object to the prosecutor's comment that an unedited audio/video recording of the drug transaction between petitioner and a confidential informant (CI) that was not shown to the jury did not have “substance”; the unedited recording was irrelevant and inadmissible because it did not indicate that the CI obtained the cocaine from her friend, rather than petitioner. Cullom v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 818 (Tenn. Crim. App. Nov. 5, 2018), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 124 (Tenn. Feb. 21, 2019).

Petitioner was not entitled to post-conviction relief because he failed to establish that trial counsel provided ineffective assistance in failing to objection to the prosecutor's comment; there was nothing problematic about the prosecutor's comment that the trial court was correct in its statement to the jury regarding an exhibit. Cullom v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 818 (Tenn. Crim. App. Nov. 5, 2018), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 124 (Tenn. Feb. 21, 2019).

Petitioner failed to establish trial counsel was deficient in not using an unedited audio/video recording of the drug transaction between petitioner and a confidential informant (CI) to cross-examine the CI because trial counsel cross-examined the CI about whether she obtained the drugs from her friend rather than petitioner; the prosecutor testified that the CI could not have gotten the drugs from the friend because the redacted recording showed petitioner was the individual who gave her drugs. Cullom v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 818 (Tenn. Crim. App. Nov. 5, 2018), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 124 (Tenn. Feb. 21, 2019).

Post-conviction court properly denied petitioner post-conviction relief because he failed to establish trial counsel was deficient in failing to object to the trial court's comments to the jury about an unedited audio/video recording of the drug transaction between petitioner and a confidential informant (CI); the trial court's comment was appropriate because it informed the jury that the recording contained irrelevant evidence but did not disclose the prejudicial nature of some of the evidence. Cullom v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 818 (Tenn. Crim. App. Nov. 5, 2018), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 124 (Tenn. Feb. 21, 2019).

Petitioner failed to establish that trial counsel was deficient in failing to object to the trial court's ruling that the jury could not view an unedited audio/video recording of the drug transaction between petitioner and a confidential informant recording; the unedited recording, which contained material that was irrelevant and inadmissible at trial, had been redacted by agreement between the parties. Cullom v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 818 (Tenn. Crim. App. Nov. 5, 2018), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 124 (Tenn. Feb. 21, 2019).

Defendant's petition for post-conviction relief was properly denied as the post-conviction court did not err in excluding testimony of two criminal defense attorneys about the standard of performance required of an attorney in a child sexual abuse case because he did not make an offer of proof consisting of testimony, an affidavit, or other evidence to show how the proposed expert testimony was necessary to substantially assist the trier of fact; and no issues unique to the case which required specialized knowledge beyond that possessed by the post-conviction court were apparent from the record. Russell v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 857 (Tenn. Crim. App. Nov. 20, 2018).

Defendant's petition for post-conviction relief alleging that trial counsel was ineffective for failing to argue that the State failed to prove that the victim was less than 13 years old was properly denied because counsel testified that, after consulting with and preparing for trial with defendant, she chose to pursue a defense that the facts failed to show he committed the alleged offenses; a strategy of arguing that the facts failed to show that defendant had sexually penetrated the victim did not turn on a question of the age of the victim; and counsel's strategy proved somewhat successful in that defendant was acquitted of rape of a child and was convicted of the lesser included offense of attempted rape of a child. Russell v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 857 (Tenn. Crim. App. Nov. 20, 2018).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective because trial counsel discussed co-defendant's statement and any plea offers that the State proposed; the possibility that his co-defendant could testify against him or that his co-defendant's statement could be admitted; and that, even if the co-defendant's statement was suppressed, there was a significant amount of evidence against him, including the victim identifying defendant and the police arresting defendant after removing him from the stolen, wrecked car. Farmer v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 882 (Tenn. Crim. App. Dec. 5, 2018).

Defendant failed to prove ineffective assistance of defendant's counsel due to defendant's trial counsel failing to call defendant's parent and defendant's ex-spouse as witnesses. Trial counsel made an informed tactical decision not to call defendant's parent as a witness given the weakness of the parent's testimony, while defendant failed to present defendant's ex-spouse at the post-conviction hearing and the appellate court would not speculate as to the ex-spouse's testimony. Doria v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 895 (Tenn. Crim. App. Dec. 12, 2018).

Defendant failed to prove ineffective assistance of counsel due to defendant's original counsel forcing defendant to participate in a television interview prior to trial because defendant failed to prove by clear and convincing evidence defendant's factual allegation that the State of Tennessee ceased plea negotiations due to the television interview. Doria v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 895 (Tenn. Crim. App. Dec. 12, 2018).

Defendant's petition for post-conviction relief was properly denied as trial counsel was not ineffective in failing to object to the State's question to the victim to compare her pain after the aggravated assault to pain she had experienced during other times of her life because counsel believed that the State had a right to inquire about the victim's pain level and place it in context so the jury could understand; the post-conviction court found that the testimony was highly relevant to the jury in evaluating the seriousness of the victim's injuries; and the evidence of the victim's testimony as well as the medical proof overwhelmingly showed that the victim suffered serious bodily injury and extreme pain as a result of defendant's attack. Baxter v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 902 (Tenn. Crim. App. Dec. 14, 2018).

Defendant's petition for post-conviction relief was properly denied because trial counsel was not ineffective as she testified that she hired an expert to rebut a witness's testimony that he saw defendant shoot the victim and that the expert was prepared to testify, but, when the witness testified at trial that he did not recall the incident, counsel made a strategic decision not to call the expert; counsel stated that she wanted to focus on the witness's testimony that he did not recall the incident and that the expert's testimony would have drawn attention to the factual basis of the witness's testimony; and counsel argued no reliable witnesses identified defendant as the perpetrator. Davis v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 7 (Tenn. Crim. App. Jan. 4, 2019).

Defendant's petition for post-conviction relief was properly denied because post-trial counsel was not ineffective in failing to present an alleged recantation by the victim as counsel repeatedly asked the State for proof that the victim had recanted his testimony, but he never received anything; although defendant's father allegedly saw the victim's recantation, he never testified that he discussed the recantation with post-trial counsel; and defendant failed to establish that the recantation ever existed. Steed v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 21 (Tenn. Crim. App. Jan. 11, 2019).

Defendant's petition for post-conviction relief was properly denied as lead counsel was not ineffective for failing to present any mitigating proof at the sentencing hearing because, while the trial court ruled that defendant had failed to establish entitlement to a self-defense instruction, the proof of the prior altercation with the victim that same evening came into evidence at trial; the victim had testified to exactly the same thing; and defendant did not show that he would have received a different sentence but for lead counsel's alleged error as he had a lengthy criminal record and was on bond when he committed the current offense. Johnson v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 37 (Tenn. Crim. App. Jan. 17, 2019).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective for failing to seek a hearing to determine which of defendant's prior convictions were admissible impeachment evidence if defendant chose to testify because defendant never intended to testify regardless of which priors could have been used against him at trial; his convictions also could have been admitted as substantive evidence to rebut a claim of self-defense had he testified; and he did not show that he would have testified had counsel conducted a hearing regarding the admissible impeachment convictions and that his testimony would have affected the outcome of his trial. Johnson v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 37 (Tenn. Crim. App. Jan. 17, 2019).

Defendant was not entitled to post-conviction relief because defendant did not establish by clear and convincing evidence that defendant was prejudiced by the failure of trial counsel regarding the denial of defendant's motion to suppress and the failure of trial counsel to move to strike the testimony by a witness concerning DNA evidence after the trial court excluded a DNA report, or by the appellate counsel failing to raise the issues on appeal. Gilbert v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 81 (Tenn. Crim. App. Feb. 7, 2019).

Defendant was not entitled to post-conviction relief because defendant failed to present clear and convincing evidence that trial counsel provided ineffective assistance by failing to use a peremptory challenge to remove a juror who was a guard at the penitentiary and knew that defendant had been an inmate at the penitentiary, failing to object to testimony that defendant previously had been incarcerated at the penitentiary, and failing to advise defendant of the State of Tennessee's plea settlement offer. Matthews v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 155 (Tenn. Crim. App. Mar. 11, 2019).

Post-conviction court did not err in denying relief as ineffective assistance was not shown; counsel objected to the prosecutor's use of Florida police reports during her argument, but the majority of the facts described were contained in the presentence report, which was reliable hearsay, plus prejudice was not shown, as the Florida police reports were not used to establish any enhancement factor, plus the trial court found he was dangerous offender as justification for imposing consecutive sentences. Thompson v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 166 (Tenn. Crim. App. Mar. 14, 2019).

Defendant did not prove by clear and convincing evidence that trial counsel rendered ineffective assistance by failing to properly object when an alleged victim was declared to unavailable as a witness after the victim refused to testify because, without the statement of the victim to a police officer, or the testimony of the officer who purportedly took the statement, the appellate court was unable to conclude that defendant was prejudiced. Lawson v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 186 (Tenn. Crim. App. Mar. 26, 2019).

Evidence did not preponderate against the post-conviction court's finding that petitioner's claims of insufficient communication were without merit because trial counsel documented nine different times that he met with petitioner either in person or via video conference; additionally, the record contained four letters sent by trial counsel to petitioner in order to keep him apprised of the status of his case. Wi v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 229 (Tenn. Crim. App. Apr. 10, 2019).

Evidence did not preponderate against the post-conviction court's finding that petitioner's claims of insufficient communication were without merit because trial counsel informed petitioner that he “may” face the death penalty, but at the post-conviction hearing, trial counsel carefully explained that he used the word “may” rather than “would”; it is not deficient performance when an attorney is not informed of and thus does not dispel a client's assumptions. Wi v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 229 (Tenn. Crim. App. Apr. 10, 2019).

Inmate was not entitled to post-conviction relief based on ineffective assistance of counsel, due to counsel's alleged failure to pursue inconsistencies in a victim's testimony, because the inmate did not establish by clear and convincing evidence either counsel's deficient performance or prejudice, as counsel explained counsel did not pursue a certain line of questioning attacking the victim's credibility or make an offer of proof since (1) counsel did not think there was a good-faith basis for such questioning, (2) counsel had no proof to offer that would have helped the defense, (3) counsel did not question the victim about the victim's failure to appear at a trial setting due to not knowing why the victim did not appear, and (4) counsel did not want to pursue a line of questioning that could have harmed the defense. Morgan v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 284 (Tenn. Crim. App. Apr. 30, 2019).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective because the trial court considered the admitted statement of a prior bad act to be probative of defendant's acting knowingly in selling the two morphine pills to the confidential informant; and the trial court weighed the probative value and the prejudicial effect of the statement. Sizemore v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 318 (Tenn. Crim. App. May 20, 2019).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective because any error resulting from counsel's failing to request a jury instruction limiting the use of defendant's statement of a prior bad act was harmless in light of the substantial evidence of defendant's guilt as the jury heard testimony that a confidential informant (CI) contacted defendant and arranged to purchase some pills, and that defendant sold two morphine pills to the CI; and the jury heard an audio recording of the transaction. Sizemore v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 318 (Tenn. Crim. App. May 20, 2019).

Defendant's petition for post-conviction relief was properly denied as the appellate court did not need to determine whether counsel performed deficiently by failing to include the issue of the lack of a limiting instruction regarding the use of defendant's statement of a prior bad act in a motion for new trial because defendant had failed to show that he was prejudiced by the lack of a limiting instruction, and, therefore, had failed to establish prejudice on the current claim. Sizemore v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 318 (Tenn. Crim. App. May 20, 2019).

Inmate was not entitled to post-conviction relief due to counsel's ineffective assistance because (1) counsel rejected the theory that a vehicle collision, rather than the inmate's acts, caused a victim's injuries after thoroughly investigating that theory and reasonably concluding the evidence did not support the theory, in favor of pursuing the victim's letter stating the inmate did not assault the victim, and (2) counsel's failure to include two issues in a new trial motion or on appeal was not prejudicial, as neither alleged error affected the trial's outcome, since a limiting instruction was given regarding testimony that the inmate previously assaulted the victim, and a detective's one general statement about abuse victims' behavior was not prejudicial given the strength of the State's case. Baxter v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 362 (Tenn. Crim. App. June 25, 2019).

Petition for post-conviction relief was properly denied as defendant's trial counsel was not ineffective because, although counsel did not file a motion for discovery, he received all of the discovery materials and reviewed those materials with defendant; he adequately communicated with defendant in preparation for trial; there was no legal basis to move for suppression of defendant's statement; and, although defendant testified that he had been shot in the head only days before providing a statement, he presented no evidence detailing the severity of his injury, the character of the medication prescribed to him, or the potential effect of either the injury or the medication on his ability to provide a voluntary statement to the police. Minor v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 388 (Tenn. Crim. App. July 3, 2019).

Trial court properly denied post-conviction relief because the inmate failed to carry his burden to prove by clear and convincing evidence sufficient facts to support his claim that trial counsel's representation was deficient. The inmate did not present any evidence at the post-conviction hearing to support such a conclusion and the inmate's claim that the post-conviction court erred by granting the State's motion to dismiss without making findings of fact was simply without merit. McAllister v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 409 (Tenn. Crim. App. July 12, 2019).

Inmate was not entitled to postconviction relief based on his claims of ineffective assistance of counsel because some claims were waived, the inmate could not show counsel was ineffective for failing to call certain witnesses after he failed to present the witnesses at the postconviction hearing, and the outcome of the trial would not have been different had counsel sought to sever the inmate's trial from that of codefendant. Starner v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 497 (Tenn. Crim. App. Aug. 16, 2019).

Circuit court properly denied defendant's petition for post-conviction relief because he failed to establish that he received ineffective assistance of counsel inasmuch as trial counsel relied on a behavioral health services' conclusion that defendant was competent to stand trial and able to appreciate the wrongfulness of his actions, trial counsel testified that his personal interactions with defendant led him to believe defendant was competent for trial, and defendant did not present any proof, other than his own testimony, to establish that further expert evaluation would have assisted his case at trial. Webb v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 517 (Tenn. Crim. App. Aug. 23, 2019).

Defendant's petition for post-conviction relief was properly denied because trial counsel was not ineffective as counsel explained the concept of criminal responsibility to defendant; and defendant rejected the State's offer of a plea agreement, stating that if he was going to jail, a jury or the judge would give him that sentence. Wilson v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 572 (Tenn. Crim. App. Sept. 17, 2019).

Defendant's petition for post-conviction relief was properly denied because trial counsel was not ineffective as counsel was not intoxicated or impaired to the extent that he could not perform his duties as counsel while meeting with defendant or otherwise in preparing for his defense. Wilson v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 572 (Tenn. Crim. App. Sept. 17, 2019).

Defendant's petition for post-conviction relief was properly denied because trial counsel was not ineffective for not seeking to exclude his prior aggravated robbery conviction as defendant had already decided not to testify when trial counsel and the prosecutor learned that the conviction was for aggravated robbery and not aggravated burglary; and defendant's decision not to testify was due to defendant's criminal history, which included several other felony convictions. Wilson v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 572 (Tenn. Crim. App. Sept. 17, 2019).

Petitioner failed to prove that counsel's performance was deficient and thus he was not entitled to post-conviction relief; counsel communicated plea offers to petitioner and was justified in believing he rejected them. Although petitioner testified that he thought he had accepted a plea offer for a sentence of four years and one month, the record supported at most that he might have desired an offer involving that sentence, and the evidence showed that the State never formally extended a four-year offer. Torres v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 635 (Tenn. Crim. App. Oct. 9, 2019).

Petitioner was not entitled to post conviction relief, as he failed to show that counsel falsely threatened that he could be sentenced to death if he proceeded to trial and that this threat induced him to plead guilty; ineffective assistance was not shown. Simmons v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 735 (Tenn. Crim. App. Nov. 14, 2019).

Defendant failed to prove that trial counsel was ineffective because, although counsel was deficient in certain ways—the failure to seek an investigator based upon counsel's misunderstanding of the law and the erroneous conclusions that certain evidence was irrelevant—such deficiencies did not result in prejudice to defendant in light of the strong evidence supporting defendant's guilt. Further, defendant failed to show ineffective assistance due to counsel's not calling witnesses, not filing pretrial motions, and not objecting at trial. Thompson v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 754 (Tenn. Crim. App. Nov. 25, 2019).

Petitioner had not identified a reason why the post-conviction court erred in concluding that the evidence fell under a hearsay exception and the court declined to speculate; the post-conviction court did not err in determining that petitioner failed to prove his ineffective assistance claim and he was not entitled to relief. Anglin v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 790 (Tenn. Crim. App. Dec. 19, 2019).

Record supported the post-conviction court's determination tha counsel made an informed, tactical decision to agree to a change of venue, and petitioner was not entitled to relief; after a mistrial occurred due to a friendship between a court officer and a juror and after consideration of several factors that counsel thought might affect the likelihood of petitioner's receiving a fair trial in Hickman County, counsel consented to a change of venue to Williamson County. Anglin v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 790 (Tenn. Crim. App. Dec. 19, 2019).

Record supported the post-conviction court's determination that petitioner failed to show that his attorneys performed deficiently in advising him not to testify; their advice was based on their concerns about his testimony adversely affecting the jury, plus he did not testify at the post-conviction hearing. Without knowing how he might have testified, the post-conviction court had no basis from which to conclude that he suffered prejudice from following his attorneys' advice and he was not entitled to post-conviction relief. Anglin v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 790 (Tenn. Crim. App. Dec. 19, 2019).

Petitioner failed to show that his attorneys performed deficiently in failing to call a witness, and in view of the evidence regarding the witness's potential damaging testimony, petitioner failed to show prejudice; the post-conviction court did not err in concluding that he failed to prove his ineffective assistance claim and he was properly denied post-conviction relief. Anglin v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 790 (Tenn. Crim. App. Dec. 19, 2019).

By using a cell phone, defendant willingly exposed identifying information to defendant's wireless provider, thereby assuming the risk that this information might be revealed to the government and rendering defendant's expectation of privacy in this information unreasonable. Thus, trial counsel's decision not to file a non-meritorious motion to suppress the cell phone records allegedly linking defendant to charged crimes that were obtained in a warrantless seizure was not deficient performance. Howell v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 798 (Tenn. Crim. App. Dec. 19, 2019).

Post-conviction relief court properly denied defendant's petition for relief because his trial counsel met and discussed with him both the factual and legal circumstances surrounding the case, trial counsel testified that she and the prosecutor came to an agreement that defendant would waive the preliminary hearing in exchange for a reduced bond, and defendant failed to establish a reasonable probability that had trial counsel included a Miranda argument within the motion to suppress, it would have been successful and that he would not have entered a guilty plea. Younger v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 795 (Tenn. Crim. App. Dec. 19, 2019).

Although defendant argued that defendant received ineffective assistance of counsel due to counsel's failure to file a motion to suppress the warrantless seizure of cell phone records allegedly linking defendant to charged crimes in violation of defendant's constitutional rights, the lack of any evidence suggesting that defendant, who pleaded guilty, would have taken defendant's case to trial had the desired motion been filed prevented defendant from establishing the prejudice prong of defendant's claim of ineffective assistance of counsel. Howell v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 798 (Tenn. Crim. App. Dec. 19, 2019).

Defendant failed to prove that trial counsel provided ineffective assistance by failing to present a cohesive defense theory, investigate, interview defendant and witnesses, explain the sufficiency of the evidence, and advise defendant of the right to testify. Although counsel was deficient failing to object to the trial court's ex parte communication with the jury during deliberations and by failing to request that the jury be brought in for supplemental instructions, defendant did not prove that the issue would have been successful on appeal. Adams v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 791 (Tenn. Crim. App. Dec. 20, 2019), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 218 (Tenn. Apr. 15, 2020).

In a case in which, on the day of trial, counsel was presented with the State's proposition that the defense either stipulate to evidence of previous unindicted controlled buys or the State would seek dismissal of the case and re-indict defendant with additional charges, defendant's petition for post-conviction relief was properly denied as counsel was not ineffective in how she responded to and addressed the State's proposal, dismissal, and new indictment because, after the new indictment, counsel filed a motion to dismiss the new indictment, but the trial court denied the motion; and counsel was not responsible for the actions of the prosecutors. Gossett v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 806 (Tenn. Crim. App. Dec. 30, 2019).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel based on trial counsel's failure to adequately communicate with him was properly denied because counsel provided discovery to defendant, and he met with him and reviewed it; counsel disagreed that he and defendant mainly discussed the plea offers and not the facts of the case; he specifically remembered discussing defendant's rights with him; counsel said that he explained to the best of his ability the potential sentence that defendant faced if he went to trial versus the plea offers; and, at the post-conviction hearing, defendant admitted that he understood that he could face more time if he went to trial rather than accepting the plea offer. Jackson v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 808 (Tenn. Crim. App. Dec. 30, 2019).

Counsel effectively cross-examined each of the witnesses, and while petitioner complained that counsel should have asked the witnesses more questions regarding discrepancies or inconsistencies, he had not shown that counsel's performance fell below a reasonable standard and prejudice was not shown; therefore, he was not entitled to post-conviction relief on his claim of ineffective assistance of counsel. Winters v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 7 (Tenn. Crim. App. Jan. 9, 2020).

Petitioner did not question counsel about his decision not to object during the post-conviction proceedings, which could have been a strategic one, plus he waived the issue by failing to include the appropriate references to the record; he was not entitled to post-conviction relief. Winters v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 7 (Tenn. Crim. App. Jan. 9, 2020).

It was unclear whether petitioner's defense would have benefited from the testimony of the medical professionals because they were not presented at the evidentiary hearing, and thus he failed to present any proof that the medical record offered any information different than that which was already addressed with the victim at trial or that trial counsels' failure to call the professionals at trial was deficient and prejudicial, and he was not entitled to relief on this claim. Grimes v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 23 (Tenn. Crim. App. Jan. 16, 2020).

Petitioner failed to present any witnesses or photos of the crime scene to show that the evidence would have assisted in his defense, and he was not entitled to relief on this issue due to his failure to present any evidence of prejudice by alleged deficient performance. Grimes v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 23 (Tenn. Crim. App. Jan. 16, 2020).

Petitioner failed to show that his trial counsels failed to obtain and/or communicate a negotiated plea agreement that he would accept; he was adamant about going to trial from the beginning and he was made aware of an offer by the State but ultimately refused it. Petitioner had also failed to present any witness to show that he would have been given the option to plead guilty and continue his service in the military and he was not entitled to post-conviction relief. Grimes v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 23 (Tenn. Crim. App. Jan. 16, 2020).

Petitioner failed to show with clear and convincing evidence that his trial counsels' failure to file pretrial motions preventing the State from introducing evidence of prior bad acts was prejudicial; he failed to conduct a Tenn. R. Evid. 404(b) hearing within his evidentiary hearing to prove deficient performance or prejudice, and thus he was not entitled to post-conviction relief. Grimes v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 23 (Tenn. Crim. App. Jan. 16, 2020).

Petitioner was not entitled to post-conviction relief on his claim of ineffective assistance of counsel; the post-conviction court properly determined that a personal visit to the parking lot of the apartments where the drug transaction took place would not have yielded additional evidence. Blackman v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 47 (Tenn. Crim. App. Jan. 29, 2020).

Petitioner was not entitled to post-conviction relief on his claim of ineffective assistance of counsel; given the flaw in the informant's credibility, the post-conviction court properly determined that any further impeachment would have been duplicative and would not have addressed the fact that multiple officers corroborated the informant's testimony, plus petitioner failed to present any evidence establishing that the informant had any additional criminal history. Blackman v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 47 (Tenn. Crim. App. Jan. 29, 2020).

Counsel's failure to request a bill of particulars in a child sex abuse case was not ineffective because (1) a victim's preliminary hearing testimony narrowed the relevant timeframe as much as it could have been, (2) counsel was prepared to defend the charges, and (3) nothing showed a bill of particulars would have given defendant additional assistance. Franklin v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 49 (Tenn. Crim. App. Jan. 30, 2020).

Counsel's failure to call a witness was not ineffective because (1) counsel was unaware of the witness until trial, and (2) the witness would not have provided defendant with an alibi. Franklin v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 49 (Tenn. Crim. App. Jan. 30, 2020).

Counsel's failure to request a formal election of offenses was not ineffective because (1) each offense was well defined in preliminary hearing testimony and verdict forms, and (2) counsel reasonably strategically chose not to seek an election as to two virtually identical offenses. Franklin v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 49 (Tenn. Crim. App. Jan. 30, 2020).

Petitioner failed to demonstrate that counsel was deficient in waiving the transfer hearing and thus he was not entitled to post-conviction relief; counsel testified that the decision to waive the hearing was strategic so he was able to negotiate a bond, which petitioner wanted. Furthermore, petitioner failed to present any evidence that he would have been successful in preventing his case from being transferred if he had had a transfer hearing, and thus he also failed to demonstrate that he was prejudiced. Perkins v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 100 (Tenn. Crim. App. Feb. 19, 2020).

Defendant was not entitled to a new trial because defendant failed to prove that trial counsel provided deficient representation rendering defendant's pleas involuntary, in that counsel met numerous times with defendant and conducted extensive pretrial preparations. Furthermore, defendant failed to demonstrate any prejudice from counsel's alleged failure to develop a defense strategy. Wade v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 132 (Tenn. Crim. App. Feb. 21, 2020).

Defendant's pleas were not rendered involuntary by defendant's awareness of defendant's potential sentencing exposure and by defendant having possibly damaged defendant's working relationship with defendant's counsel by threatening to assault counsel. Moreover, defendant's testimony at the plea hearing affirmed that defendant understood the charges, had discussed the case and the plea offer with defendant's attorney, and had voluntarily made the decision to plead guilty. Wade v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 132 (Tenn. Crim. App. Feb. 21, 2020).

Post-conviction court did not err by citing a case for the principle that trial counsel's decisions could not be reviewed with the benefit of hindsight because the holding in that case was consistent with established case law; petitioner did not cite any authority, persuasive or binding, to support his argument that the post-conviction court's reliance on the case entitled him to a new evidentiary hearing. Logan v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 139 (Tenn. Crim. App. Feb. 26, 2020).

Post-conviction court did not err in denying petitioner post-conviction relief because he failed to show that trial counsel's performance was deficient for failure to make a motion for a change of venue; trial counsel consulted with attorneys experienced in cases involving a change of venue, and based on his research and the facts of petitioner's case, he believed that petitioner's risk of conviction could have been greater if the case was tried before a more conservative jury. Logan v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 139 (Tenn. Crim. App. Feb. 26, 2020).

Petitioner was properly denied post-conviction relief as he failed to show ineffective assistance of counsel; counsel established that he and petitioner discussed petitioner's testifying prior to trial, petitioner confirmed they discussed the issue and he decided not to testify, and petitioner offered no testimony calling into question the evidence of his guilt. Furthermore, counsel pursued a reasonable trial strategy that was designed to greatly reduce petitioner's exposure and nothing suggested that he was prejudiced by this strategy. Maples v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 144 (Tenn. Crim. App. Feb. 26, 2020).

Trial court properly denied defendant's petition for post-conviction relief because he did not establish that his counsel was ineffective in failing to file a motion to suppress a photograph lineup where trial counsel made an informed decision not to challenge the lineup because he did not believe it was impermissibly suggestive and because he did not think the victim would be able to identify defendant at the trial, and, even if the lineup had been suppressed, other evidence existed to identify defendant as a participant and as the shooter, including the testimony of his accomplices and the mother of his children, to whom he had confessed. Faught v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 175 (Tenn. Crim. App. Mar. 9, 2020).

Defendant showed that defendant's trial counsel provided deficient performance because, although the chosen defense was mistaken identity, counsel failed to challenge the sufficiency of the evidence of defendant's especially aggravated robbery and aggravated robbery convictions. Furthermore, defendant showed that counsel's deficient performance resulted in prejudice because a reasonable probability existed that the trial court or the appellate court would have acted in defendant's favor if the sufficiency issues had been raised. Boatwright v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 178 (Tenn. Crim. App. Mar. 10, 2020).

Defendant's petition for postconviction relief was properly denied as trial counsel was not ineffective for failing to move for a new preliminary hearing due to an incomplete recording of the first hearing because trial counsel stated that it would have been the same testimony; counsel was familiar with the State's witnesses and prepared to cross-examine them at trial; and both witnesses were cross-examined at trial about statements they made at the preliminary hearing. Cartwright v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 239 (Tenn. Crim. App. Apr. 14, 2020).

Defendant's petition for postconviction relief was properly denied as trial counsel was not ineffective for failing to elaborate on the possibility that the victim's death resulted from an injury to his head received when he was accidentally dropped on concrete through thorough cross-examination of the medical examiner (ME) because, although trial counsel did not ask the ME about the victim's being dropped on the concrete during his initial cross-examination, the ME did discuss the issue based upon the questions submitted by the jury; and trial counsel, after the question, got the ME to concede that such a scenario could in theory be more apt to cause a skull fracture than kicking or stomping with tennis shoes. Cartwright v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 239 (Tenn. Crim. App. Apr. 14, 2020).

Defendant's petition for postconviction relief was properly denied as trial counsel was not ineffective for failing to move to re-open the proof in order to call co-defendant to the stand after he had accepted a plea because trial counsel would have been unaware of the exact details of co-defendant's testimony at that stage of trial; the defense had already been presented to the jury that the victim's injuries might have resulted from his being dropped or hitting his head on the concrete, that co-defendant was involved, and that any such actions were accidental; and co-defendant's testimony at the evidentiary hearing served little to bolster the theory that the victim was dropped on the concrete hard enough to cause his injuries. Cartwright v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 239 (Tenn. Crim. App. Apr. 14, 2020).

Defendant's petition for postconviction relief was properly denied as trial counsel was not ineffective for failing to fulfill a promise made during opening statement that the victim was on house arrest with supporting proof at trial because the trial court's admonishment to trial counsel not to tarry on the issue of the victim's house arrest was made in front of the jury after an objection by the State. Cartwright v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 239 (Tenn. Crim. App. Apr. 14, 2020).

Defendant's petition for postconviction relief was properly denied as trial counsel was not ineffective for failing to object to the jury instruction because the trial court provided complete preliminary instructions that it was the jury's job to determine what the facts of the case were, and that the jury would apply the law that the trial court gave the jury to the facts in the case; and nothing in the challenged preliminary instruction misstated the constitutional principle that the jury were the judges of the facts and of the law as it applied to the facts. Cartwright v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 239 (Tenn. Crim. App. Apr. 14, 2020).

Without introducing any proof to show that a motion to suppress would have been successful, petitioner failed to establish that she was prejudiced by trial counsel's failure to file a motion to suppress, and petitioner was not entitled to post-conviction relief. Smith v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 291 (Tenn. Crim. App. Apr. 24, 2020).

Petitioner failed to show that counsel's performance was deficient and thus petitioner was not entitled to post-conviction relief; the record did not support her claim that counsel failed to adequately communicate with her, as counsel testified that he met with petitioner four times and used her father as an intermediary, meeting with him on seven or eight occasions, and by petitioner's own admission, counsel informed her of the State's plea offer, which she rejected. Smith v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 291 (Tenn. Crim. App. Apr. 24, 2020).

Petitioner failed to demonstrate that a motion to suppress would have been successful if filed and therefore failed to prove that counsel was deficient; petitioner testified she was confined as a result of her convictions, which were about 10 years old, but she did not state her date of release from confinement or introduce evidence to show that more than 10 years had elapsed between the date of her release and the date of her trial. She was not entitled to post-conviction relief. Smith v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 291 (Tenn. Crim. App. Apr. 24, 2020).

Petitioner did not establish that counsel's failure to present a prior arrest report or booking photo was deficient or that he was prejudiced; discrepancies in the victim's description of him were insignificant in light of the proof of his guilt at trial, and he was not entitled to relief on the issue. Brent v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 295 (Tenn. Crim. App. Apr. 24, 2020).

Despite the issue being waived, the evidence also did not preponderate against the post-conviction court's finding that a detective advised petitioner of his Miranda rights and thus petitioner did not show that a motion to suppress his statement likely would have been granted and he was not entitled to relief; petitioner maintained that his testimony was more credible than the detective's testimony on the issue, but questions concerning the credibility of the witnesses were to be resolved by the post-conviction judge. Brent v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 295 (Tenn. Crim. App. Apr. 24, 2020).

Photo lineup was not unduly suggestive and was not subject to suppression, and thus deficient performance of counsel was not shown and petitioner was not entitled to post-conviction relief; the court did not discern an obvious difference in the skin tones of the six individuals pictured and the hairstyles of the men were not so grossly dissimilar that a motion to suppress the lineup would have been granted. Brent v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 295 (Tenn. Crim. App. Apr. 24, 2020).

In order to determine whether counsel's failure to introduce a photo of petitioner's wrist taken three months after the robbery was deficient, petitioner should have produced the photo at the post-conviction hearing, and because he did not, ineffective assistance was not shown; the court already held that a witness's testimony was not material to the defense and the omission of any scars on the arrest report did not affect the outcome of the case, and the court would not speculate what a photograph of petitioner's wrist would have shown. Brent v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 295 (Tenn. Crim. App. Apr. 24, 2020).

Regardless of whether a statement was hearsay or whether counsel's failure to object was deficient, petitioner was not prejudiced by the admission of the statement; he was not prejudiced by the driver's statement that he got the vehicle from petitioner because petitioner, a passenger in the vehicle, admitted to police that he had gotten the vehicle from another individual, who police discovered was the victim. Brent v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 295 (Tenn. Crim. App. Apr. 24, 2020).

Evidence did not preponderate against the post-conviction court's conclusions that counsel's failure to interview a witness and present her testimony that petitioner had a different hairstyle than what the victim described did not affect the outcome of petitioner's trial, and thus he was not entitled to relief; the most incriminating proof at trial was not the victim's description of the perpetrator, but rather evidence that petitioner was apprehended in the victim's stolen vehicle. Brent v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 295 (Tenn. Crim. App. Apr. 24, 2020).

Petitioner failed to establish that he was prejudiced by counsel's failure to investigate petitioner's traffic stop and thus he was not entitled to relief; proof that he was given a traffic citation while driving the victim's stolen car two days after the robbery would not have been beneficial to petitioner, plus he failed to present the officer at the post-conviction hearing and the court would not make an exception to the rule that one had to introduce whatever evidence he claimed that counsel should have introduced at trial. Brent v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 295 (Tenn. Crim. App. Apr. 24, 2020).

Post-conviction court properly denied petitioner relief because counsel's failure to object to the prosecutor's improper statements did not create a reasonable probability that the result of the proceedings would have been different; the evidence proving petitioner was in possession of 0.5 gram or more of cocaine with the intent to deliver in a Drug-Free School Zone was overwhelming, and any impropriety in the opening statement and closing argument did not affect the verdict. Whitehead v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 299 (Tenn. Crim. App. Apr. 27, 2020).

Defendant's petition for post-conviction relief was properly denied because counsel was not ineffective for failing to conduct a proper investigation as he did not show how trial counsel's failure to test the gun for fingerprints, to have the blood evidence tested to ensure that it was human blood, to hire experts in blood-spatter analysis or forensic toxicology, and to investigate the crime scene fell below an objective standard of reasonableness under prevailing professional norms. Stitts v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 356 (Tenn. Crim. App. May 20, 2020).

Defendant's petition for post-conviction relief was properly denied because counsel was not ineffective for failing to ensure juror impartiality as the trial court instructed the victim's family to turn the domestic abuse support shirts they were wearing inside out; and trial counsel questioned the jury venire on whether they could apply the presumption of innocence and reasonable doubt standard, whether they knew defendant, the victim, or other jurors, whether they had an inherent bias about domestic abuse, and whether they had a bias toward the police and their testimony. Stitts v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 356 (Tenn. Crim. App. May 20, 2020).

Defendant's petition for post-conviction relief was properly denied because counsel was not ineffective for failing to adequately cross-examine the victim as trial counsel's decision not to aggressively cross-examine a sympathetic victim about the disability she suffered as a result of a shooting was reasonable; the victim's testimony that defendant had been stalking her and taking violent actions against her was not refuted by defendant's claim that he was dating someone else at the time of the offense; and the decision of trial counsel to focus the defense strategy on more relevant aspects of the case was reasoned and strategic, and therefore not deficient. Stitts v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 356 (Tenn. Crim. App. May 20, 2020).

Defendant's petition for post-conviction relief was properly denied because counsel was not ineffective for failing to object to improper witness testimony as an agent's statement that it was impossible to collect fingerprints and DNA from the same source was not shown to be incorrect; and the 9-1-1 operator acted as the keeper of the records at trial, and her testimony was admitted to authenticate the veracity of the recording. Stitts v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 356 (Tenn. Crim. App. May 20, 2020).

Petitioner did not receive ineffective assistance; counsel sought to exclude the firearm by claiming the officers lacked reasonable suspicion to initiate the stop, and counsel litigated the issue of whether the “be on the lookout” had expired before the stop and before the firearm was seen. The trial court credited the investigating officers' testimony that they did not receive notice the BOLO was canceled until after the stop was initiated, and petitioner was not entitled to post-conviction relief. Theus v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 391 (Tenn. Crim. App. June 5, 2020).

Defendant's petition for post-conviction relief was properly denied as defendant was not prejudiced by any alleged deficiency in trial counsel's failure to challenge the use of his juvenile record in sentencing defendant or in appellate counsel's failure to raise the issue on appeal because there were several other references to defendant's criminal history during the sentencing hearing that were separate from the juvenile offenses, which would have been sufficient to establish a sentence enhancement. Dickerson v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 398 (Tenn. Crim. App. June 9, 2020).

In denying defendant's petition for post-conviction relief, because especially aggravated robbery had to involve a theft, be accomplished with a deadly weapon, and result in serious bodily injury to the victim, but second-degree murder involved the intent to kill someone, separate convictions for especially aggravated robbery and attempted second-degree murder did not violate principles of double jeopardy, and trial counsel's failure to seek merger or appellate counsel's failure to argue such as error on appeal did not constitute deficient performance. Dickerson v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 398 (Tenn. Crim. App. June 9, 2020).

Defendant was not entitled to relief on a claim of ineffective assistance of counsel because defendant could not prove that defendant was prejudiced by trial counsel's representation in that, even if a motion to suppress evidence found in defendant's apartment had been granted, there was sufficient evidence to support defendant's aggravated domestic assault by reckless conduct conviction as defendant testified that defendant hit the victim with a metal broomstick, while the victim testified that defendant beat the victim with a heavy metal rod. Parker v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 406 (Tenn. Crim. App. June 11, 2020).

Petitioner's ineffective assistance claim failed and he was not entitled to post-conviction relief; while counsel's decision to call an officer was unsuccessful, it was a tactical decision, plus the evidence introduced through the officer had already been introduced and the State had evidence that petitioner was in possession of guns that matched those used in the shooting. Thus, the outcome of his trial would not have been different even had counsel not called the officer as a witness. Lagrone v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 426 (Tenn. Crim. App. June 19, 2020).

Defendant failed to prove that counsel in defendant's trial for rape of a child was ineffective for failing to file a pre-trial motion in limine, failing to object when the State of Tennessee asked the victim about other times when defendant forced the victim to perform sexual acts, asking a witness about defendant's character for truthfulness, failing to object when the State asked the victim about counseling and medication, and failing to argue that defendant was to be permitted to introduce evidence of the victim's prior sexual behavior. Bailey v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 429 (Tenn. Crim. App. June 19, 2020).

Defendant's petition for post-conviction relief was properly denied because trial counsel did not perform deficiently because counsel testified that he chose to argue for the exclusion of the victim's statement on the ground that the victim did not believe his death was imminent as he determined that to be the strongest argument for exclusion; and that counsel chose not to call alibi witnesses out of concern that the alibi was contradicted by eyewitnesses and that the jury would not find the witnesses credible as they were all family members. Thompson v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 457 (Tenn. Crim. App. June 30, 2020).

Defendant was not entitled to post-conviction relief for ineffective assistance of counsel, due to counsel's failure to call certain witnesses at trial, because (1) counsel made a strategic decision not to call a witness defendant claimed would have supported voluntary manslaughter instead of the second degree murder of which defendant was convicted after interviewing the witness and concluding the witness's testimony would have painted defendant as an aggressor, and (2) defendant did not show what other witnesses counsel did not call would have said. Lopez v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 459 (Tenn. Crim. App. July 2, 2020).

Inmate was not entitled to post-conviction relief based on ineffective assistance when the inmate thought a law enforcement officer guaranteed the inmate probation in exchange for the inmate's assistance, and counsel did not ensure the inmate understood a plea agreement, because (1) the inmate understood a guilty plea and the plea's consequences, including a lack of guaranteed probation, and (2) counsel credibly testified the plea agreement did not guarantee a sentence, and counsel said counsel advised the inmate the inmate faced mandatory incarceration and was unlikely to be immediately released thereafter. Cole v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 486 (Tenn. Crim. App. July 16, 2020).

Defendant's petition for post-conviction relief was properly denied because counsel was not ineffective in failing to keep defendant's mental health expert in the courtroom to observe his testimony and that of the State's rebuttal expert witness as defendant's family would have incurred an additional charge for the expert's continued presence in the courtroom; and counsel consulted with the expert ahead of time about his cross-examination of the State's expert based on her anticipated testimony. Halliburton v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 554 (Tenn. Crim. App. Aug. 13, 2020).

Defendant's petition for post-conviction relief was properly denied because counsel was not ineffective in allowing for the relationship between defendant and counsel to deteriorate resulting in poor communication because counsel testified that, despite his difficulties with defendant, he did not believe that communication between them had completely broken down and they were able to develop a strategy for trial; and counsel presented the defense that defendant chose to present. Halliburton v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 554 (Tenn. Crim. App. Aug. 13, 2020).

Denial of post-conviction relief was appropriate because defendant failed to demonstrate deficiency or prejudice with regard to defendant's claims of ineffective assistance of counsel as defendant failed to establish a reasonable probability that the outcome of the proceeding would have changed if defendant's trial counsel had performed the acts which defendant claimed were necessary for counsel to have performed. Davis v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 576 (Tenn. Crim. App. Aug. 25, 2020).

6. Competency To Be Executed.

A prisoner's competency to be executed is a question independent of the validity of trial sentencing, and as such, not within the contemplation of this chapter. Heck Van Tran v. State, 6 S.W.3d 257, 1999 Tenn. LEXIS 602 (Tenn. 1999), cert. denied, Heck Van Tran v. Tennessee, 529 U.S. 1091, 120 S. Ct. 1728, 146 L. Ed. 2d 648, 2000 U.S. LEXIS 2938 (2000).

7. Guilty Plea.

Trial court did not err in denying petitioner post-conviction relief because she knowingly, voluntarily, and intelligently entered her guilty plea; petitioner stated that she understood the plea agreement, that she and counsel reviewed the plea agreement, that she signed the agreement because she was guilty, and that she understood what was happening in court. Strickland v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 128 (Tenn. Crim. App. Feb. 14, 2014), dismissed, Strickland v. Qualls, — F. Supp. 2d —, 2017 U.S. Dist. LEXIS 143652 (E.D. Tenn. Sept. 6, 2017).

In a drug case, post-conviction relief was not warranted because the record of a guilty-plea submission hearing and the explicitly accredited testimony of trial counsel, as well as the explicitly discredited testimony of petitioner, showed that petitioner understood the proceedings and was willing to enter into the plea agreement, which resulted in a lesser sentence than the 20 years offered by the State. Moreover, the record demonstrated that trial counsel rendered effective assistance in representing petitioner, and petitioner failed to establish a “manifest injustice” that would have justified the withdrawal of his guilty pleas. Joiner v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 88 (Tenn. Crim. App. Feb. 9, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 420 (Tenn. June 24, 2016).

Post conviction relief was not granted under this statute because ineffective assistance of counsel was not shown; the explicitly accredited testimony of trial counsel, as well as the explicitly discredited testimony of petitioner, showed his knowledge of a rejection of a plea offer and his willingness to proceed to trial. Petitioner's claim that trial counsel was deficient for failing to convince him to accept the plea offer and for failing to inform him that the offer had been extended was rejected. Maxwell v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 87 (Tenn. Crim. App. Feb. 9, 2016).

Post-conviction relief was not warranted in a case where an applicant entered guilty pleas to several offenses, including especially aggravated kidnapping, because he failed to show that his pleas were unknowing and involuntary where a plea offer had been discussed on several occasions. The guilty plea hearing transcript reflected that the applicant understood what he was doing by pleading guilty, understood that he was waiving certain rights, and failed to express concern about counsel's competence. Booker v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 170 (Tenn. Crim. App. Mar. 7, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 453 (Tenn. June 23, 2016).

Counsel testified that he explained the terms of the State's plea offer with petitioner, plus the trial court provided him with a detailed explanation of his rights; petitioner stated that he understood the terms and consequences of the plea agreement, and thus he failed to prove that his guilty plea was involuntary and unknowing, and he was not entitled to relief. Williams v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 289 (Tenn. Crim. App. Apr. 8, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 718 (Tenn. Sept. 26, 2016).

Notwithstanding petitioner's unsuccessful presentation of the issue on appeal, petitioner's guilty pleas were entered knowingly and voluntarily; the trial court extensively questioned him to confirm that trial counsel had explained the terms of the offer, there was no indication that petitioner was coerced into entering his plea, and he failed to prove by clear and convincing evidence that his guilty pleas were involuntary and unknowing, and he was not entitled to post-conviction relief. Thomas v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 840 (Tenn. Crim. App. Nov. 7, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 153 (Tenn. Feb. 28, 2017).

Post-conviction petition was properly denied, as the inmate failed to prove that his guilty plea was unknowing and involuntary, as trial counsel was not unprepared, and trial counsel told the inmate about weaknesses in his case, but testified that, as a trial lawyer, he would never advise a client to plead guilty, and explaining the realities of the inmate's situation did not coerce the inmate into entering a guilty plea. Hughes v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 74 (Tenn. Crim. App. Jan. 31, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 357 (Tenn. June 7, 2017).

Post-conviction court did not err in denying defendant's petition for post-conviction relief because, regarding defendant's claim that his guilty pleas were unknowingly and involuntarily entered, the post-conviction court did not err in concluding that defendant entered his plea freely, voluntarily, willingly and knowingly as it noted defendant's signature on the waiver of a trial by jury and request for acceptance of a plea resulting in conviction form; and it reviewed the transcript of the plea submission hearing, wherein the court went over every detail about the effectiveness of the attorney, and defendant, at that time, advised the court that everything was fine. Lequire v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 390 (Tenn. Crim. App. May 15, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 516 (Tenn. Aug. 16, 2017).

Defendant's petition for post-conviction relief, arguing that his guilty plea was involuntary and unknowing, was properly denied because defendant's guilty plea was voluntary and knowing as he was advised that he was pleading outside of his range and the trial court explained exactly what that meant; and the guilty plea transcript showed that defendant was informed of the rights he would waive by pleading guilty. Hodges v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 408 (Tenn. Crim. App. May 16, 2017).

Defendant's petition for post-conviction relief was properly denied as defendant knowingly and voluntarily entered his guilty plea because, at the guilty plea hearing, defendant testified that he understood the legal rights that he was waiving; that he understood that by accepting his guilty plea, he was agreeing to a 30-year sentence; that he understood that he was being sentenced as a Range II offender and that, if he were convicted of second degree murder at trial, he would be sentenced as a Range I offender and receive a shorter sentence; and that he understood that he would be required to serve 100 percent of his sentence and that he was only eligible for a possible 15 percent reduction in his sentence for good behavior. Cunningham v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 611 (Tenn. Crim. App. July 12, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 658 (Tenn. Oct. 5, 2017).

Defendant was not entitled to post-conviction relief because defendant did not establish by clear and convincing evidence that defense counsel was ineffective, or that defendant was prejudiced by any alleged deficiency, as counsel met with defendant numerous times and defendant told the plea court that defendant was satisfied with counsel's representation. Defendant knowingly and voluntarily entered the guilty plea on the advice of counsel and the plea was in defendant's best interest as defendant could have received a greater penalty at trial. Hurtch v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 805 (Tenn. Crim. App. Sept. 5, 2017).

Defendant's petition for post-conviction relief was properly denied because his claims about the involuntariness of his guilty plea were belied by the transcript of the plea hearing, in which he was advised of his constitutional rights and his sentencing range; he affirmed that he was clear-minded and that it was his desire to plead guilty; and he failed to prove that he received ineffective assistance of counsel that would have otherwise rendered his guilty plea involuntary and unintelligent. Holley v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 949 (Tenn. Crim. App. Nov. 9, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 83 (Tenn. Feb. 14, 2018).

Defendant's petition for post-conviction relief was properly denied as he entered a knowing, intelligent, and voluntary best interest guilty plea because counsel discussed the plea agreement and the State's evidence with defendant; counsel reviewed the plea form twice with defendant before he entered his plea; the guilty plea hearing transcript reflected that defendant told the trial court he understood he was waiving certain rights by pleading guilty and that he did not have any questions about his plea; defendant said he understood that the court would determine the length of the sentence; and the court asked defendant whether it was in his best interest to plead guilty, and defendant responded in the affirmative. Smith v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 959 (Tenn. Crim. App. Nov. 14, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 180 (Tenn. Mar. 16, 2018).

Defendant's petition for post-conviction relief was properly denied as his guilty plea was knowingly and voluntarily entered as he admitted on cross-examination that the trial court said that he would receive a 23-year sentence; he had an extensive record and was familiar with criminal proceedings; plea counsel was competent to represent him; and plea counsel and the trial court adequately advised defendant of the nature of his plea. Cobb v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 273 (Tenn. Crim. App. Apr. 12, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 441 (Tenn. July 18, 2018).

Post-conviction court properly denied petitioner post-conviction relief because petitioner knowingly and voluntarily entered her guilty plea; trial counsel testified that he discussed the terms of the plea agreement with petitioner, the trial court explained release eligibility and what pleading outside of petitioner's sentencing range meant, and petitioner repeatedly stated she understood the terms and discussed them thoroughly with her counsel. Barnett v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 338 (Tenn. Crim. App. Apr. 27, 2018).

Defendant failed to establish by clear and convincing evidence that the proof preponderated against the findings of the post-conviction court that defendant received the effective assistance of counsel and that defendant's guilty plea to second degree murder was entered knowingly and voluntarily. Both trial counsel and the trial court informed defendant of the terms and consequences contained within the plea agreement, and, following the court's detailed colloquy, defendant stated under oath that defendant understood and wanted to plead guilty. Chaleunsak v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 395 (Tenn. Crim. App. May 21, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 572 (Tenn. Sept. 13, 2018).

Defendant failed to establish by clear and convincing evidence that defendant's guilty plea to second degree murder was not knowingly and voluntarily entered because the trial court, although the court did not follow all of the requirements, adequately determined that defendant's plea was knowingly and voluntarily entered and defendant failed to establish that defendant's counsel provided ineffective assistance of counsel in representing defendant as to the plea. Womac v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 487 (Tenn. Crim. App. July 2, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 694 (Tenn. Nov. 15, 2018).

Post-conviction court did not err in denying petitioner post-conviction relief because the record supported its determination that petitioner entered knowing, intelligent, and voluntary guilty pleas; petitioner told the court that he understood the plea agreement and the rights he waived by pleading guilty, that he was satisfied with counsel's performance, that he had reviewed the discovery materials with counsel, and that he felt comfortable entering his guilty pleas. Carpenter v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 639 (Tenn. Crim. App. Aug. 21, 2018).

Defendant's petition for post-conviction relief was properly denied as his guilty plea to filing a false police report was knowingly and voluntarily entered because his plea counsel testified that defendant was lucid; defendant's family, who was present at the plea hearing, recalled that defendant had been doing drugs, but provided no evidence that he was too drugged to understand the proceedings; and, during the plea colloquy, defendant answered clearly and was not too incoherent to participate. Kidd v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 813 (Tenn. Crim. App. Nov. 1, 2018).

Defendant's petition for post-conviction relief was properly denied as he was not entitled to relief on the ground that his plea was not knowing and voluntary because he fully understood the consequences of his guilty plea; trial counsel explained to him what the proof would be at trial if co-defendant's statement were not admitted into evidence; and that, by entering into the plea, he avoided the evading arrest and firearms charges and the mandatory consecutive sentence the firearm charge required. Farmer v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 882 (Tenn. Crim. App. Dec. 5, 2018).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective because defendant knowingly and voluntarily entered into the plea agreement as counsel testified that he explained to defendant that his sentences in the two cases had to be served consecutively; the trial court spent a significant amount of time explaining to defendant why he could not receive jail credits on both sentences, and explained the consecutive nature of defendant's sentences; and defendant stated, under oath, that he understood and that it was his desire to enter into the plea agreement. Wade v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 36 (Tenn. Crim. App. Jan. 17, 2019).

Post-conviction court did not err in denying petitioner relief, as his guilty pleas were knowingly and voluntarily entered and ineffective assistance of counsel was not shown; counsel's failure to inform petitioner that he would be subject to lifetime registration did not render his pleas invalid as counsel was not required to explain fully the sexual offender registry. Counsel explained to petitioner that he would be on the sex offender registry and the ramifications of what that meant. Ford v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 164 (Tenn. Crim. App. Mar. 14, 2019).

Post-conviction court did not err in denying relief regarding counsel's conduct at petitioner's sentencing hearing, as he failed to show ineffective assistance of counsel; his guilty pleas were knowingly and voluntarily entered, as the trial court informed him of the range of punishment, he stated that he understood, plus he testified that he had instructed counsel to accept a plea agreement without an agreed upon sentence. Thompson v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 166 (Tenn. Crim. App. Mar. 14, 2019).

Petitioner's guilty plea was made knowingly and voluntarily because petitioner failed to overcome the strong presumption of verity afforded to his declarations at the guilty plea hearing; the trial court thoroughly reviewed petitioner's guilty plea with him, and petitioner affirmed at the guilty plea hearing that he had read and understood the plea agreement, which informed petitioner of all of his rights, including the right to remain silent. Wi v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 229 (Tenn. Crim. App. Apr. 10, 2019).

Evidence did not preponderate against the post-conviction court's finding that counsel made a strategic decision not to pursue the withdrawal of the guilty plea, and counsel's multiple discussions with petitioner dealt with his sentencing exposure if he withdrew his guilty plea and went to trial; counsel's strategy included a decision not to explain the further difficulties involved in withdrawing the plea after sentencing, which was not second guessed on review, and petitioner was not entitled to post-conviction relief. Talley v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 71 (Tenn. Crim. App. Feb. 6, 2020).

Although petitioner testified that he chose to plead guilty based on counsel's advice that he could withdraw his plea at a later date, the post-conviction court found that petitioner's testimony was not credible; he had not provided any credible evidence that his plea was not knowingly and voluntarily entered, and thus he was not entitled to post-conviction relief. Talley v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 71 (Tenn. Crim. App. Feb. 6, 2020).

Petitioner was not entitled to post-conviction relief and counsel was not ineffective for failing to request withdrawal of petitioner's guilty plea; he communicated to counsel that he wished to go forward with sentencing following the entry of his plea and he never raised his desire to withdraw his plea during the sentencing hearing. As petitioner failed to provide a just reason to withdraw his plea, he failed to show that, but for counsel's inaction, the trial court would have granted a request to withdraw his plea, Talley v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 71 (Tenn. Crim. App. Feb. 6, 2020).

Record did not preponderate against the post-conviction court findings that the advice given petitioner by his trial counsel regarding a plea agreement was well within the range of competence of competent attorneys and that trial counsel's performance was not deficient. Therefore, the court of criminal appeals agreed with the post-conviction court's conclusion, and petitioner was not entitled to post-conviction relief. Cooper v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 220 (Tenn. Crim. App. Apr. 3, 2020).

8. Cognizable Issues.

9. Burden of Proof.

Defendant was not entitled to post-conviction relief because defendant did not prove by clear and convincing evidence that defendant received ineffective assistance of counsel in that, although defendant argued that counsel should have advised defendant to appeal defendant's case and should not have allowed defendant to have waived defendant's appeal, counsel advised defendant that, if defendant chose to waive the appeal, that defendant's case would be over, and defendant testified that defendant understood as much. Jones v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 205 (Tenn. Crim. App. Mar. 18, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 414 (Tenn. June 24, 2016).

Petitioner, who appealed from the denial of her petition for post-conviction relief, failed to prove by clear and convincing evidence that counsel's representation was deficient or prejudicial. Petitioner failed to establish that she was denied the effective assistance of counsel at trial. Krizka v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 56 (Tenn. Crim. App. Jan. 27, 2017).

Defendant failed to prove by clear and convincing evidence that defendant was denied the effective assistance of counsel at trial because, although defendant contended that trial counsel failed to follow defendant's requested theory of defense by calling certain witnesses and producing certain video surveillance footage, defendant failed to present these witnesses or the alleged video recording at an evidentiary hearing and the appellate court could not speculate as to the content of the potential testimony or recording. Allen v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 120 (Tenn. Crim. App. Feb. 20, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 305 (Tenn. May 16, 2018).

Defendant failed to carry defendant's burden of establishing deficient performance or prejudice by defendant's trial counsel because defendant at a hearing for post-conviction relief did not produce witnesses or testimony regarding whether the witnesses could have been reasonably located. Moreover, defendant provided no information or argument as to what testimony or information the witnesses would have provided or why they were not available. Borum v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 109 (Tenn. Crim. App. Feb. 15, 2019).

10. Denial of Relief.

Petitioner was not entitled to post-conviction relief; counsel was not ineffective because petitioner was aware of the detainer ICE had already placed on him and knew that he would be subject to immediate deportation upon entering the guilty plea and trial counsel fulfilled her obligation by advising petitioner that the guilty plea could carry a risk of adverse immigration consequences. Garcia v. State, 425 S.W.3d 248, 2013 Tenn. LEXIS 1012 (Tenn. Dec. 23, 2013).

Post-conviction relief was not warranted because petitioner did not receive ineffective assistance of counsel under the United States or Tennessee Constitutions based on a failure to discuss and/or present an attempted suicide defense; the decision to present a reckless homicide defense was not based on inadequate preparation since trial counsel spent 160 hours on the case and visited petitioner at least 24 times. Counsel's decision to present one theory of defense to the exclusion of another was a tactical decision that was not second-guessed unless it was made upon inadequate preparation. Sydnor v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 48 (Tenn. Crim. App. Jan. 26, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 489 (Tenn. June 23, 2016).

Because petitioner could have presented his argument that the trial judge did not consider lesser included offenses, but did not do so, the issue was waived; in addition, counsel conceded at the post-conviction hearing that the trial judge did not err and petitioner was not entitled to relief. Diggs v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 148 (Tenn. Crim. App. Feb. 29, 2016).

Petitioner, who appealed from the denial of his petition for post-conviction relief, failed to establish that his trial counsel's performance was deficient because petitioner did not testify at the post-conviction hearing and failed to identify or call any witnesses who may have changed the outcome of his trial. Coleman v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 233 (Tenn. Crim. App. Mar. 30, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 602 (Tenn. Aug. 19, 2016).

Defendant was not deprived of the constitutional right to a fair trial because the evidence did not preponderate against the post-conviction court's finding that defense counsel knew before the trial all the impeachment evidence contained in a report of codefendant's criminal history that was not disclosed by the prosecution before the trial. Lister v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 315 (Tenn. Crim. App. Apr. 27, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 693 (Tenn. Sept. 23, 2016).

Defendant was not deprived of the constitutional right to a fair trial because codefendant testified that codefendant had no agreement with the State of Connecticut regarding leniency in return for codefendant's testimony at trial, which was consistent with post-conviction testimony of the prosecutors and codefendant's defense counsel, and the post-conviction court found that no agreement existed. Furthermore, defendant testified at the post-conviction hearing that defendant had no proof codefendant lied at the trial. Lister v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 315 (Tenn. Crim. App. Apr. 27, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 693 (Tenn. Sept. 23, 2016).

Police detective's actions in destroying compact discs that contained witness statements did not deprive defendant of a fair trial because defendant obtained access to the statements before the trial, the detective testified at defendant's trial regarding the matter, and defendant had the opportunity to cross-examine the detective at trial. Furthermore, despite defendant's concern that the detective may have engaged in undiscovered misconduct, defendant did not present proof of any misconduct. Lister v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 315 (Tenn. Crim. App. Apr. 27, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 693 (Tenn. Sept. 23, 2016).

Both these statutory provisions require a finding that the evidence was either not previously tested for DNA or was not subjected to the analysis that is now requested which could resolve an issue not resolved by previous analysis; petitioner did not ask the post-conviction court to make any factual findings in this regard, and thus any analysis of the issue was waived, and petitioner was not entitled to post-conviction relief. Medlock v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 792 (Tenn. Crim. App. Oct. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 127 (Tenn. Feb. 21, 2017).

Trial court properly denied defendant's petition for post-conviction relief because he failed to present a witness or any video evidence at the evidentiary hearing to support his claims of ineffective assistance of counsel, and trial counsel's decision to eschew DNA testing on the knife that was held to the victim's neck was based on his reasonable belief that such testing was unnecessary, given the lack of blood on the mark on the victim's neck and the fact that defendant could have held the non-serrated edge against her throat. Johnson v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1027 (Tenn. Crim. App. Dec. 12, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 186 (Tenn. Mar. 14, 2018).

Defendant was unable to prove that the State of Tennessee failed to provide defendant with exculpatory evidence because there was no way to determine the contents of a missing sealed manila envelope by even a preponderance of the evidence standard, much less by a clear and convincing standard. Because there was no evidence as to the contents of the missing envelope, there also was no evidence that the contents included exculpatory material. Braswell v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 269 (Tenn. Crim. App. Apr. 9, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 595 (Tenn. Sept. 14, 2018).

Inmate was not entitled to post-conviction relief, because the inmate did not present the alleged alibi witnesses at the post-conviction hearing to who that he was prejudiced by trial counsel's performance and counsel was not ineffective for failing to file a notice of alibi under Tenn. R. Crim. P. 12.1(a)(1), as the State did not request an alibi notice. Vann v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 668 (Tenn. Crim. App. Aug. 30, 2018).

Post-conviction relief was properly denied, as trial counsel was not ineffective for failing to object to victim's testimony he worked for the Missouri Department of Conservation because the victim was not a law enforcement officer and inquiry into a witness's employment was normal practice, and there was no violation of the inmate's protection against double jeopardy because consecutive sentencing was justified due to his being a professional criminal and there was no proof the trial court considered any fact that was not appropriate. Leonard v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 923 (Tenn. Crim. App. Dec. 28, 2018).

Petitioner, of her own volition, decided to accept a plea offer because she believed that she would receive better medical care in the custody of the Department of Correction. Her decision did not constitute grounds for post-conviction relief. Hinson-Bull v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 16 (Tenn. Crim. App. Jan. 7, 2019).

Denial of the inmate's petition for postconviction relief alleging ineffective assistance of counsel was proper, because counsel developed a strategy based on what the inmate told him and law enforcement and worked under that theory until new evidence rendered that strategy no longer viable, and counsel did hire a crash reconstructionist expert to provide support for the inmate's claim he was not driving at the time of the wreck, but the expert was not helpful to the inmate's case. Strong v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 336 (Tenn. Crim. App. June 5, 2019).

Denial of the inmate's petition for postconviction relief was not erroneous because whether the inmate understood the term “Hicks plea” was irrelevant to whether the plea was entered knowingly and intelligently so long as he understood the consequences of his plea, and his plea was knowingly and voluntarily entered, given that the inmate was familiar with the criminal justice system, the inmate had the terms of the plea explained by competent counsel and the trial court, and he was not threatened or induced to plead guilty. Lavender v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 625 (Tenn. Crim. App. Oct. 4, 2019), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 124 (Tenn. Feb. 19, 2020).

Post-conviction court erred in denying defendant's petition for relief because it did not consider defendant's claims that he was not prepared, that he needed additional discovery materials, that he wanted an opportunity to hire a lawyer rather than proceed with his court-appointed attorney, and the record did not reflect that the court inquired about any communication issues between post-conviction counsel and defendant, nor did the court question counsel about whether she had provided, or at least investigated, the additional documents sought by defendant. Woods v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 113 (Tenn. Crim. App. Feb. 19, 2020).

Inmate's claim that trial counsel was ineffective for failing to advise him to testify in light of evidence lacked merit because, contrary to the post-conviction court's finding that trial counsel specifically advised the inmate to not testify, neither trial counsel nor the inmate stated that such advice was given. The error by the post-conviction court's finding of fact did not affect the result, as the record was undisputed that trial counsel advised the inmate that his prior criminal record could be used against him if he testified and the inmate chose not to testify based upon his desire that the jury not know about his extensive prior criminal record. Trammell v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 447 (Tenn. Crim. App. June 26, 2020).

Postconviction relief was erroneously denied because had if counsel adequately preserved a challenge to the admission of text messages between the victim and the inmate on direct appeal by including in the record the motion for discovery and the notebook compilation of the text messages, the inmate would have successfully established that the State substantially prejudiced the inmate's case by failing to disclose the contents of the full extraction report and the notebook compilation containing over 6000 text messages and the post-conviction court erred in denying the inmate's petition. Jernigan v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 557 (Tenn. Crim. App. Aug. 14, 2020).

11. Summary Dismissal Improper.

Because defendant, a pro se petitioner, was not appointed an attorney and afforded an opportunity to amend defendant's petition for post-conviction relief, reversal of the summary denial of defendant's petition and remand for further proceedings was appropriate as the court's determination that defendant could not prove defendant's claim that defendant's guilty pleas were coerced or unintelligently and unknowingly made necessarily rested upon the implicit finding that defendant's petition did in fact assert a colorable claim. State v. Lankford, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 434 (Tenn. Crim. App. June 14, 2016).

Summary dismissal of defendant's petition for post-conviction relief was inappropriate because, taking the allegations in defendant's petition in the light most favorable to defendant, defendant presented a colorable claim for relief, based upon allegations of ineffective assistance of counsel, and was entitled to an evidentiary hearing. However, it appeared that the court denied defendant's petition after determining from the petition that defendant did not prove the allegations by clear and convincing evidence. Sizemore v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 873 (Tenn. Crim. App. Sept. 26, 2017).

12. Dismissal Proper Where Conviction Had Been Expunged.

Denial of appellant's post-conviction relief petition was proper because, after appellant's guilty plea, his criminal record was expunged, and a post-conviction relief action did not lie when the record had been expunged and no conviction existed; an expunged “conviction” was not a conviction within the meaning of Tennessee's Post-Conviction Procedure Act, T.C.A. § 40-30-103. In addition, the trial court was correct in concluding that the petition was time-barred. Rodriguez v. State, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 11 (Tenn. Crim. App. Jan. 7, 2013), aff'd, 437 S.W.3d 450, 2014 Tenn. LEXIS 274 (Tenn. 2014).

13. Petition Properly Denied.

Inmate was not entitled to post-conviction relief based on second petition, as the petition was filed more than 11 years after one-year statute of limitations expired and thus, was untimely, due process concerns did not toll limitations period, and the claims presented had been previously determined in his habeas corpus case. Whitaker v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 7 (Tenn. Crim. App. Jan. 7, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 466 (Tenn. June 23, 2016).

Post-conviction relief was properly denied, as the inmate failed to prove that trial counsel was ineffective such that his pleas were rendered unknowing and involuntary where counsel testified he met with the inmate multiple times, the inmate's own testimony was that he and trial counsel thoroughly discussed the facts underlying his case, and counsel's refusal to file a motion to dismiss was a reasonable, strategic decision. Isaac v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 12 (Tenn. Crim. App. Jan. 11, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 300 (Tenn. Apr. 6, 2016).

Post-conviction court did not err in denying petitioner post-conviction relief because he failed to prove ineffective assistance of counsel and failed to prove that his guilty plea was not knowingly and voluntarily made; the record of the guilty-plea submission hearing and the explicitly accredited testimony of petitioner's trial counsel evinced petitioner's understanding of the proceedings and his willingness to enter into the plea agreement in order to secure a reduced sentence. Hardin v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 16 (Tenn. Crim. App. Jan. 12, 2016).

Record of the guilty plea submission hearing and the testimony of counsel evinced petitioner's understanding of the proceedings and his willingness to enter into the plea agreement, plus the record showed that counsel rendered effective assistance in representing petitioner; he was not entitled to post-conviction relief. Harvey v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 23 (Tenn. Crim. App. Jan. 12, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 285 (Tenn. Apr. 7, 2016).

Inmate was properly denied post-conviction relief, as there was no evidence beyond the inmate's own testimony supporting his contention that he was offered a plea deal with lesser sentence than the one he received, trial counsel did not mislead the inmate as to the terms of his plea agreement, and the inmate fully understood the consequences of his decision to enter a guilty plea. Anderson v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 111 (Tenn. Crim. App. Feb. 12, 2016), dismissed, Anderson v. Lee, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 88694 (M.D. Tenn. July 8, 2016).

Inmate was not entitled to post-conviction relief based on his claim that his guilty plea was not knowing and voluntary, as counsel advised the inmate he had the option of pleading guilty or going to trial on the charge of first degree murder, which carried a lengthier sentence than second-degree murder, and the inmate failed to show how addition time to consider the plea would have affected his decision. Wells v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 123 (Tenn. Crim. App. Feb. 17, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 444 (Tenn. June 23, 2016), dismissed, Wells v. Perry, — F. Supp. 2d —, 2017 U.S. Dist. LEXIS 158322 (E.D. Tenn. Sept. 27, 2017).

Inmate was not entitled to post-conviction relief, as his claim of ineffective assistance under the Sixth Amendment and Tenn. Const. art. I, § 9 failed where trial counsel testified filed a motion to suppress and did not believe that it would have benefitted the inmate's case if granted, counsel made efforts to interview a potential witness who was unresponsive, and counsel did not believe a visit to the crime scene would have been beneficial since he had photographs of it. Wells v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 123 (Tenn. Crim. App. Feb. 17, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 444 (Tenn. June 23, 2016), dismissed, Wells v. Perry, — F. Supp. 2d —, 2017 U.S. Dist. LEXIS 158322 (E.D. Tenn. Sept. 27, 2017).

Post-conviction court properly dismissed petitioner's application for post-conviction relief because it was filed well outside of the statute of limitations; due process did not require the tolling of the statute of limitations because none of the circumstances in which due process required tolling the post-conviction statute of limitation applied. Blackstock v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 243 (Tenn. Crim. App. Mar. 31, 2016), review denied and ordered not published, — S.W.3d —, 2016 Tenn. LEXIS 563 (Tenn. Aug. 18, 2016).

Post-conviction court properly denied petitioner relief because he failed to present clear and convincing evidence to show that trial counsel was deficient; the post-conviction court accredited co-counsel's testimony regarding trial counsel's representation. Davis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 252 (Tenn. Crim. App. Apr. 4, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 603 (Tenn. Aug. 18, 2016).

Post-conviction relief was properly denied, because trial counsel credibly testified that he relayed the six-year plea offer to the inmate but the inmate rejected it because he did not want to be on probation that long, counsel was not deficient for failing to argue for suppression of text messages, as that theory lacked statutory or precedential support, and counsel discussed testifying with inmate. Vaughn v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 278 (Tenn. Crim. App. Apr. 12, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 616 (Tenn. Aug. 19, 2016).

Inmate's claim post-conviction relief was properly denied, as trial counsel was not ineffective for meeting with the inmate less than 10 times and failing to hire a private investigator since there was nothing to suggest meetings with inmate more would have led counsel to other witnesses and counsel did his own investigation. Minton v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 334 (Tenn. Crim. App. May 4, 2016).

Witness was not called at the evidentiary hearing and thus it was unclear what the witness would have actually testified to and what impact, if any, that testimony would have had on the outcome of trial; thus, petitioner did not show prejudice and he was not entitled to post-conviction relief. Barrett v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 610 (Tenn. Crim. App. Aug. 18, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 961 (Tenn. Dec. 14, 2016).

Petitioner failed to produce the testimony of a DNA expert at the hearing, and thus it could not be assessed what impact such testimony would have had at trial; petitioner failed to prove that he was prejudiced by counsel's decision in this respect, and he was not entitled to post-conviction relief. Barrett v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 610 (Tenn. Crim. App. Aug. 18, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 961 (Tenn. Dec. 14, 2016).

Petitioner failed to introduce any results of independent DNA testing and offered no explanation as to how he was prejudiced by the absence of such testing, and trial counsel made a decision not to request independent testing based on consultation with an expert and the conclusion that additional testing would not be helpful; although counsel expressed regret in hindsight that he did not request independent testing, at the time he made a reasonable strategic decision, and petitioner was not entitled to post-conviction relief. Barrett v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 610 (Tenn. Crim. App. Aug. 18, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 961 (Tenn. Dec. 14, 2016).

Record did not preponderate against the post-conviction court's findings that counsel made a strategic and tactical decision not to present the inmate's friend as a trial witness and that counsel was not deficient by failing to so do, because the friend testified that defense counsel told her that her prior convictions for crimes involving dishonesty prevented her from being a witness. Braxton v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 648 (Tenn. Crim. App. Aug. 31, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 865 (Tenn. Nov. 17, 2016).

Tennessee Supreme Court Rules clearly prohibit the authorization of expert services in non-capital post-conviction proceedings; no authority exists to allow funds for experts in non-capital post-conviction cases, and thus petitioner was not entitled to post-conviction relief. Barlow v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 672 (Tenn. Crim. App. Sept. 9, 2016).

Rule explicitly stated that funding for an expert witness in non-capital post-conviction proceedings was not to be authorized or approved, and the court was bound by the determinations made by the Tennessee Supreme Court on this issue, and thus petitioner was not entitled to post-conviction relief. Lewis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 722 (Tenn. Crim. App. Sept. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 38 (Tenn. Jan. 20, 2017).

Post-conviction relief was properly denied, as the inmate failed to prove that his guilty plea was not voluntary, given that the evidence showed that the inmate retained an attorney who was presenting during negotiations and at the plea submission hearing, the inmate denied any threats or promises were made to induce the plea, and the inmate told the court he was choosing to plead guilty to avoid service of his sentence at 100% if he should be convicted at trial. Jones v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 914 (Tenn. Crim. App. Dec. 7, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 229 (Tenn. Apr. 13, 2017).

Defendant's petition for post-conviction relief was properly denied because, although mandatory sentencing schemes imposing a sentence of life without the possibility of parole for a juvenile offender violated the prohibition against cruel and unusual punishment, defendant's sentence of life with the possibility of parole was not unconstitutional even if the mandatory 51 years before release was effectively a functional life sentence. Matthews v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 941 (Tenn. Crim. App. Dec. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 232 (Tenn. Apr. 13, 2017).

Post-conviction court properly denied petitioner relief because there was no Brady violation; there was no evidence that trial counsel made a specific request for a police report, which would have triggered the State's duty to disclose the report, and petitioner failed to show that a witness's subsequent testimony was material since it did not discredit a codefendant's trial testimony, which was the key to the State's case. Baker v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 43 (Tenn. Crim. App. Jan. 23, 2017).

Post-conviction petition was properly denied, as the inmate failed to show that trial counsel failed to investigate his case, as the record supported the post-conviction court's finding that trial counsel's testimony that he spoke to the victim at some point and that the content of that conversation matched her pervious statement was credible, and the inmate failed provide any additional witnesses that would have been favorable or that might have been uncovered by a broader investigation. Hughes v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 74 (Tenn. Crim. App. Jan. 31, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 357 (Tenn. June 7, 2017).

Post-conviction relief was denied, because trial counsel was not ineffective for failing to require the State to elect offenses in the inmate's second trial, for refusing to file a motion asserting that the inmate's speedy trial rights had been violated, or for agreeing to sever the case into groups of four counts, as mandatory joinder applied only to the same conduct and the same criminal episode offenses, neither of which were involved. Hollis v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 97 (Tenn. Crim. App. Feb. 14, 2017), cert. denied, Hollis v. Tennessee, 200 L. Ed. 2d 272, 138 S. Ct. 1004, — U.S. —, 2018 U.S. LEXIS 1052 (U.S. Feb. 20, 2018).

Post-conviction relief was properly denied, as counsel testified that he informed the inmate that he faced 24 years as a maximum potential sentence, the inmate's mother testified that counsel advised them of the maximum sentence, and the transcript from the guilty plea hearing reflecting that the trial court clearly and methodically informed the inmate of his rights and the inmate state he was satisfied with counsel's representation. Tomlin v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 106 (Tenn. Crim. App. Feb. 17, 2017).

Inmate was not entitled to post-conviction relief, because he could not prove prejudice due to trial counsel's failure to ask witnesses about the location of the gunshot wound or the path of the bullet, as the inmate presented no evidence about how any hypothetical questions posed would have changed the outcome, and counsel said that he did not approach the witnesses because his theory of the case was that the shooting was accidental and he intended to present that through the inmate's testimony. Johnson v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 141 (Tenn. Crim. App. Mar. 1, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 379 (Tenn. June 7, 2017).

Postconvicton relief was properly denied, as the inmate failed to show that he received ineffective assistance based on counsel's advice to plead guilty when counsel was prepared to go to trial and have developed a strategy but advised the inmate to plead guilty because of the fact that confidential informant could identify the inmate personally and the inmate was subject to a lengthy sentence if found guilty by a jury. Nevils v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 142 (Tenn. Crim. App. Mar. 1, 2017).

Post-conviction relief was properly denied, as trial counsel was not ineffective for failing to file a meritless motion to suppress; failing to negotiate concurrent sentences when they were required under Tenn. R. Crim. P. 32(C)(3)(C), because the inmate was on bail when he committed the charged offense; and the inmate insisted it was his desire to plead guilty, and thus, he failed to prove he received ineffective assistance of counsel rendering his guilty plea involuntary and unintelligent. Cole v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 150 (Tenn. Crim. App. Mar. 1, 2017).

Post-conviction relief was properly denied, as trial counsel was not ineffective where the evidence showed that he met with the inmate on at least four occasions, he did not file a motion to suppress because he found no legal basis to challenge the search warrant, and he advised the inmate not to testify based on his belief that the inmate's testimony would be questionable due to criminal history. Davenport v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 163 (Tenn. Crim. App. Mar. 6, 2017).

Defendant's petition for post-conviction relief was properly denied because the post-conviction court did not improperly deny her request to destroy and to touch sealed trial exhibits or her request to have the post-conviction court give “lay testimony” because defendant did not show the relevance of whether the latex glove tip was cut or ripped as defendant's DNA was found on the glove tip that was located near the victim's body, and the DNA evidence was unchanged regardless of whether the tip was ripped or torn; and the post-conviction court should not offer testimony at the post-conviction hearing. Cannon v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 204 (Tenn. Crim. App. Mar. 21, 2017).

Post-conviction relief was properly denied, as trial counsel was not ineffective for failure to investigate hot water heater when further investigation would have been cumulative of information in discovery file, counsel met with inmate at least seven times prior to the plea and discussed discovery with him, and counsel was not ineffective for failing to file the motion to withdraw the guilty plea until one month after entry of the plea. Scott v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 206 (Tenn. Crim. App. Mar. 21, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 318 (Tenn. May 18, 2017).

Inmate was not entitled to post-conviction relief based on trial counsel's failure to play a video from an officer's dash camera in its entirety, because the proof at trial was overwhelming against the inmate, and the video would only have served to reiterate the events in front of the jury and would have hurt the inmate. Hicks v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 380 (Tenn. Crim. App. May 15, 2017).

Post-conviction court properly denied petitioner post-conviction relief because the trial court did not sentenced him illegally; because the judgments were silent regarding the prior sentence for which petitioner was on parole, the sentences were presumed to run consecutively. Shreve v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 436 (Tenn. Crim. App. May 24, 2017).

Post-conviction court properly denied petitioner post-conviction relief because the trial court did not sentenced him illegally; although petitioner said at the post-conviction hearing he would not have pleaded guilty if he had known he would not receive credit for the time he served following the parole violation, he did not offer his contention as sworn testimony or establish that the award of credit as a term of the guilty pleas was improper. Shreve v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 436 (Tenn. Crim. App. May 24, 2017).

post-conviction relief was properly denied, as issues not raised in the appeal of the inmate's conviction were waived, and although trial counsel's lacked of knowledge about the ability to seek state funds for an expert and failure to question his client about his refusal to hire an expert was deficient performance, the inmate was not entitled to relief, as he failed to establish prejudice given that he failed to show that a request for state funds could have been granted by the trial court. Sprunger v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 603 (Tenn. Crim. App. July 10, 2017).

Post-conviction relief was properly denied, as evidence did not preponderate against the trial court's finding that the inmate received effective assistance of counsel, as trial counsel testified that he did not have any problems with the indictment, and, even if trial counsel had convinced the trial court to dismiss the subject counts to the indictment pretrial, the State would have resubmitted the aggravated child neglect charges to the grand jury. Hester v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 681 (Tenn. Crim. App. Aug. 3, 2017).

Post-conviction court properly denied defendant's petition for relief because he could not prove that he was prejudiced by his counsels' representation based on their tactical decisions where the three-month old victim had both healing and fresh injuries, suffered significant, traumatic, and life-ending injuries while in defendant's care, and counsel attempted to inculpate the only other person present, an eight-year-old child, as the perpetrator of the victim's injuries. Pegues v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 734 (Tenn. Crim. App. Aug. 17, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 901 (Tenn. Dec. 11, 2017).

Circuit court properly dismissed defendant's petition for post-conviction relief because he failed to establish that his trial counsel was ineffective inasmuch as he did not present any of the witnesses at the post-conviction hearing that he argued trial counsel failed to subpoena, he did not cite to any authority that requires the circuit court clerk's office to use a criminal summons when a defendant failed to appear in court, and did not explain in any way how trial counsel was intimidated by the trial court or how it affected the outcome of his trial. Baxter v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 786 (Tenn. Crim. App. Aug. 31, 2017).

Denial of post-conviction relief was proper, as the inmate presented no proof that a child abuse expert was available to the defense, would have testified favorably for the defense, or that the proposed expert testimony would have changed the outcome of the trial, and the inmate's claim that trial counsel failed to properly prepare and utilize a doctor as an expert in neonatology was without merit given trial counsel's testimony that the strategic decision was made after the doctor changed his opinion in the days before trial. Calloway v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 802 (Tenn. Crim. App. Sept. 1, 2017).

Denial of post-conviction relief was proper, because the inmate's ineffective assistance of counsel claims failed, as counsel was not deficient for failing to object to a detective's statement that defendant admitted there was an altercation given the inmate's admission at trial that there was such an altercation and claim of self-defense, the DNA testing and evidence collection about which the inmate was complaining was neither practical nor would it have been helpful, and counsel testified that he did not call the inmate to testify at the sentencing hearing because he was concerning about damaging evidence that could have been introduced through cross-examination. Moffitt v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 851 (Tenn. Crim. App. Sept. 18, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 90 (Tenn. Jan. 22, 2018).

Petitioner was properly denied post-conviction relief because he failed to establish that trial counsel was deficient in failing to file a motion to recuse the trial judge since he submitted no evidence at the post-conviction hearing that there was a valid reason to request recusal; trial counsel, knowing that a motion to recuse a judge would be unsuccessful, properly weighed the benefits of whether a motion requesting recusal would be necessary and reasonably concluded that it was not. Armstrong v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 871 (Tenn. Crim. App. Sept. 27, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 31 (Tenn. Jan. 17, 2018).

Post-conviction relief was properly denied, as counsel was not ineffective for failing to present an alibi defense as defendant's admission to he events involved in the underlying charge made any issue about the precise timing of the event irrelevant and defense counsel's manner of cross-examining the victim was a matter of trial strategy. McDonald v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 882 (Tenn. Crim. App. Sept. 29, 2017).

In a capital murder case, defendant's petition for post-conviction relief was properly denied as the State did not fail to disclose evidence favorable to the defense, denying him defendant due process under Brady, because trial co-counsel testified that the prosecutor maintained an open-file policy and permitted defense counsel to view everything the prosecution possessed; defendant did not demonstrate that trial co-counsel did not review the police reports during discovery; as to the evidence of blood on a floor in a parking garage above where the crime occurred, defendant merely speculated that it could have led to another suspect; and evidence of defendant's guilt, including his confession to the murder, was overwhelming. Odom v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 922 (Tenn. Crim. App. Oct. 20, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 252 (Tenn. Apr. 23, 2018).

In a capital murder case, defendant's petition for post-conviction relief was properly denied as defendant was not denied his due process right to a meaningful opportunity to present his grounds for post-conviction relief based on missing evidence because he confessed to his involvement in the crime; he was given an opportunity to test other evidence possessed by the State, including biological samples, but apparently declined to do so; and he did not offer proof that an examination of a copy of his original signed statement, which was available, would otherwise be insufficient. Odom v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 922 (Tenn. Crim. App. Oct. 20, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 252 (Tenn. Apr. 23, 2018).

Record supported the denial of post-conviction relief, as trial counsel testified that the State offered the inmate a 30-year sentence prior to the second trial and that the inmate had rejected the offer, and, although the inmate denied any such offer had been made, the post-conviction court found trial counsel's testimony credible. Causey v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1040 (Tenn. Crim. App. Dec. 19, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 268 (Tenn. Apr. 23, 2018).

It was no error to deny an inmate post-conviction relief based on trial counsel's alleged ineffective assistance because (1) the court permissibly accredited trial counsel's testimony that counsel met with the inmate on numerous occasions and thoroughly investigated the case, (2) counsel pursued a reasonable trial strategy, and, (3) given the overwhelming evidence against the inmate, the inmate could not establish that, but for counsel's alleged errors, the outcome of the inmate's trial would have been different. Taliaferro v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1049 (Tenn. Crim. App. Dec. 21, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 250 (Tenn. Apr. 23, 2018).

Petitioner, in his own best interests, pleaded guilty to a charge for which there was little factual foundation in order to avoid the significant exposure he faced on the cocaine and methamphetamine possession charges, making the denial of his petition for postconviction relief proper. Ellison v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 191 (Tenn. Crim. App. Mar. 15, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 419 (Tenn. July 19, 2018).

Defendant was not entitled to post-conviction relief, following defendant's conviction for rape, because defendant's constitutional rights were not violated by prosecutorial misconduct during the jury voir dire and closing arguments, the trial court did not commit reversible errors in its supplemental instruction to the jury and its instruction as to the required mental element, and defendant failed to show ineffective assistance from defendant's trial and appellate counsel in regards to their handling of the case. Guinn v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 257 (Tenn. Crim. App. Apr. 5, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 499 (Tenn. Aug. 8, 2018).

Post-conviction court did not err in denying the inmate's petition for relief, because counsel testified that the inmate did not exhibit behavior that caused counsel to doubt the inmate's competency to stand trial, the failure to call a witness was not ineffective when counsel testified he determined her testimony would not be favorable to the inmate's case, and the inmate presented no expert testimony or scientific evidence contradicting counsel's testimony that such services would not likely have been helpful. Butler v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 355 (Tenn. Crim. App. May 4, 2018).

Post-conviction relief was properly denied, as the inmate's claim that his guilty plea was involuntary lacked merit, as the record of the guilty-plea submission hearing and the explicitly discredited testimony of the inmate evinced the inmate's understanding of the proceedings and his willingness to enter into the plea agreement, and the inmate offered nothing, aside from his bald assertions, about his medicated state during his plea submission hearing. Prather v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 382 (Tenn. Crim. App. May 15, 2018).

Inmate's claim that his guilty plea was not knowingly and voluntarily entered failed because the evidence did not preponderate against the post-conviction court's findings that the inmate was advised of the terms and consequences of his pleas, that he weighed the advantages of accepting the plea agreement against the risks of going to trial and facing the possibility of serving a sentence that exceeded his lifetime, and that he knowingly and voluntarily pleaded guilty. Townsend v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 774 (Tenn. Crim. App. May 15, 2018).

Denial of post-conviction relief was not erroneous, because appellate counsel was not deficient for failing to file the transcript from the hearing on the motion in limine to exclude evidence of the victim's prior drug use where the outcome of the inmate's appeal would not have changed even if the transcript had been included, since the trial court did not abuse its discretion by excluding evidence of the victim's drug use prior to or subsequent to the incident. Lucio v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. May 21, 2018).

Defendant was not entitled to postconviction relief following convictions for drug related offenses because the State of Tennessee did not fail to disclose facts that would have been classified as Brady material, any issues related to the validity of a search warrant had already been litigated at trial and on appeal and were thus not properly presented, and the post-conviction court did not abuse its discretion when it quashed a subpoena of a witness whose testimony would have been irrelevant in light of the issues properly before the court. Davis v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 607 (Tenn. Crim. App. Aug. 13, 2018).

Diminished capacity did not prevent the inmate from entering his guilty plea competently, as he was evaluated many times before entering the plea and was not found incompetent, insane, or otherwise mentally incapacitated such that he could not enter a knowing and voluntary plea, and the record showed he was able to confer with trial counsel before entering the plea and received a more favorable sentence than had he gone to trial. Woods v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 656 (Tenn. Crim. App. Aug. 24, 2018).

Inmate was not entitled to post-conviction relief based on the trial court having classified him as a Range II offender, as he agreed to that classification as part of his guilty plea. Woods v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 656 (Tenn. Crim. App. Aug. 24, 2018).

Inmate was not entitled to post-conviction relief based on the alleged ineffective assistance of counsel, as the inmate failed to present the victim to testify as to how her testimony would have altered her age at the time of the crime and failed to present expert testimony he was incompetent to stand trial or enter a guilty plea. Woods v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 656 (Tenn. Crim. App. Aug. 24, 2018).

Post-conviction relief was properly denied, as the inmate failed to show that counsel's failure to seek a mental evaluation prior to trial equated to ineffective assistance because, although he testified he had mental health issues, no mental health expert testified at the evidentiary hearing, and counsel's failure to move to suppress the victim's statement of identification did not support a finding of ineffective assistance given that the victim did not make a statement identifying the inmate as one of the robbers. Rogers v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 669 (Tenn. Crim. App. Aug. 30, 2018).

Inmate was not entitled to post-conviction relief on his claim that counsel was ineffective for failing to spend sufficient time reviewing discovery with him, as the record showed counsel met with the inmate and reviewed discovery and the inmate contributed to any lack of time spent by not showing up for meetings, and counsel was not ineffective for failing to investigate another possible perpetrator when the inmate did not present the alleged perpetrator or other evidence of his existence. Rich v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 785 (Tenn. Crim. App. Oct. 19, 2018).

Post conviction relief was properly denied, as inmate did not state with specificity which pretrial motions counsel should have filed nor explain the merits of those motions, trial counsel was not deficient for failing to explain to the inmate why a juror was not challenged after the inmate told counsel he was a correction officer because the inmate liked the jurors selected, and trial counsel was not ineffective for failing to obtain and present evidence of a recording that did not exist. Dowlen v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 912 (Tenn. Crim. App. Dec. 19, 2018).

Inmate was not entitled to postconviction relief because trial counsel was not ineffective, as the outcome of the suppression hearing would have been same even if the evidence showed that the officer knew there was no outstanding warrant for the inmate at the time of his arrest, as the officer had reasonable suspicion the inmate was engaged in narcotics activity and the inmate failed to show that the State knowingly presented false testimony at the hearing on the motion to suppress. Nelson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 915 (Tenn. Crim. App. Dec. 21, 2018).

Postconviction relief was properly denied because the inmate's claim that the transfer hearing was not conducted properly and that counsel was ineffective for failing to object to the special judge and failing to appeal the transfer lacked merit, as the magistrate was qualified to sit as a special judge to preside over the transfer hearing. Mosley v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 924 (Tenn. Crim. App. Dec. 28, 2018).

Post-conviction relief based on ineffective assistance of counsel, was properly denied because counsel made a reasoned tactical decision not to file any motions to suppress and any alleged error did not affect the outcome of the trial where, inter alia, the inmate could not show that a motion to suppress text messages with the victim would have been granted because the records were lawfully obtained through another method and the inmate had no right of privacy to a video taken of him at an ATM. Blunkall v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 11 (Tenn. Crim. App. Jan. 4, 2019).

Denial of post-conviction relief based on a claim of ineffective assistance of counsel was proper, as trial counsel was not ineffective for failing to impeach a witness with a favorable plea deal after finding no evidence of such, for failing to call inmates's wife as alibi witness since she stated she could not confirm he was in bed all night, or for failing to call an expert to rebut cell phone evidence as he failed to present an expert to prove how such testimony would have altered the trial. McLemore v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 40 (Tenn. Crim. App. Jan. 18, 2019).

Defendant failed to prove by clear and convincing evidence that prosecution witnesses spoke in a hallway outside the courtroom, against the sequestration rules/order of the court because, although at the post-conviction hearing defendant brought a witness to testify about the things that the witness overheard the prosecution witnesses discussing in violation of the rule of sequestration, the witness was unable to offer any testimony that the prosecution witnesses had any inappropriate discussions. Gilbert v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 81 (Tenn. Crim. App. Feb. 7, 2019).

Defendant was not entitled to post-conviction relief because defendant did not provide one example of trial counsel's deficient performance. Furthermore, there was nothing in the record that preponderated against the post-conviction court's findings that trial counsel's performance was not deficient, that defendant was not prejudiced by any alleged deficiencies, and that defendant's plea was knowingly and voluntarily entered. Sanders v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 114 (Tenn. Crim. App. Feb. 21, 2019).

Post-conviction court properly denied defendant's petition for relief because defendant admitted at the evidentiary hearing that he understood the offenses to which he was pleading and the sentences he would receive as part of the plea agreement, the trial court reviewed with defendant his constitutional rights, the offenses to which he would be pleading, and the specific sentences he would receive, and defendant assured the trial court that he was satisfied with counsel's representation, understood the plea agreement, had no questions, and was freely and voluntarily making the decision to plead guilty without pressure or coercion. Duckworth v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 139 (Tenn. Crim. App. Mar. 5, 2019).

In a postconviction proceeding, the evidence did not preponderate against the post-conviction court's findings that trial counsel was not ineffective, but showed that counsel reviewed the discovery, negotiated a favorable plea, met with the inmate on multiple occasions both in and out of court, and advised the inmate regarding the strength of the State's case and the terms of the plea agreement. Fisher v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 215 (Tenn. Crim. App. Apr. 5, 2019).

Denial of post-conviction relief was proper because trial counsel testified that the inmate was correctly advised as to release eligibility dates and that counsel made the decision not to call defendant's wife as an alibi witness because the wife's alibi seemed contrived, included time gaps, and the wife said she did not want to testify. Green v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 275 (Tenn. Crim. App. Apr. 30, 2019).

Inmate failed to prove by clear and convincing evidence sufficient facts to support his claim for postconviction relief, alleging that trial counsel's representation was deficient for failing to move to suppress the inmate's statement to police, because the inmate's request to speak with his pastor for legal advice was not an unequivocal invocation of his right to counsel. Watts v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 508 (Tenn. Crim. App. Aug. 21, 2019).

Post-conviction relief was properly denied, as the inmate failed to show that trial counsel was deficient in the advice he gave concerning the plea offer and potential consequences to proceeding to trial, and, while trial counsel was deficient in failing to prevent the State from using whatever admissions the inmate made at the suppression hearing and failing to object to an investigator's testimony concerning the inmate's admission to shooting, those deficiencies were not prejudicial given the inmate's multiple admissions to driving the shooters and the jury instruction on criminal responsibility. Campbell v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 715 (Tenn. Crim. App. Nov. 8, 2019).

Denial of the inmate's petition for postconviction relief was proper because the inmate could not show that counsel was ineffective for failing to obtain hearing assistance for the inmate at trial where counsel had no reason to think the inmate could not hear during the trial and the inmate did not mention an inability to hear and understand to counsel and the inmate failed to show counsel was ineffective for cross-examining the emergency medical technician about the inmate's assisting the victim at the scene. Angel v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 789 (Tenn. Crim. App. Dec. 18, 2019).

Inmate's petition for postconviction relief was properly denied because trial counsel was not ineffective for failing to file a motion to suppress the inmate's statement to a law enforcement officer, in which the inmate admitting to shaking the victim, because the inmate voluntarily signed a Miranda waiver and thus, counsel did not believe such a motion would have been successful, and trial counsel effectively rehabilitated an expert who had been impeached by the State. Iceman v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 4 (Tenn. Crim. App. Nov. 14, 2019).

Petition for postconviction relief was properly denied because the inmate failed to prove prejudice in regard to trial counsel's examination of the victim's cousin since the inmate's involvement in the murder was not established by the cousin alone, as another witness identified the inmate as the driver of the vehicle involved, that was known to belong to the inmate, and the inmate failed to prove prejudice from the joint trial because he did not argue grounds upon which a severance would have been granted. Crockett v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 9 (Tenn. Crim. App. Jan. 10, 2020).

Inmate's petition for postconviction relief was properly denied because the inmate failed to show that trial counsel performed deficiently by failing to adequately cross-examine a State witness, failing to call certain witnesses, and failing to adequately investigate the case since such decisions were tactical and the inmate failed to present any witness whose testimony he claimed would have benefited his defense at trial. Houser v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 62 (Tenn. Crim. App. Feb. 3, 2020).

Counsel was not ineffective for failing to request withdrawal from petitioner's case; a conflict of interest was not created by petitioner's complaint against counsel and withdrawal was not necessary, plus petitioner had not presented more than a vague allegation of a conflict, and thus he was not entitled to post-conviction relief. Talley v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 71 (Tenn. Crim. App. Feb. 6, 2020).

Post-conviction court properly denied defendant's petition for relief because defendant failed to show that his counsel's representation prejudiced him where the outcome of the trial would not have been different had counsel challenged the indictment for failure to name the victim or sought a mental health evaluation for defendant since the victim's name was not an element of attempted first-degree murder and defendant did not allege what effect, if any, his medications for a mental illness had on his ability to effectively participate in his defense. Taylor v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 77 (Tenn. Crim. App. Feb. 10, 2020).

Denial of postconviction relief was proper, because, even if trial counsel was deficient for failing to follow up with an alibi witness, the inmate failed to prove prejudice because he did not introduce what evidence would have been uncovered had counsel more thoroughly investigated the alibi witness's claim, the witness's statement conflicted with the testimony of others regarding the inmate's whereabouts on night of the murder, and his statement did not establish an alibi. Lanier v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 216 (Tenn. Crim. App. Apr. 1, 2020).

Inmate was not entitled to relief based on a claim that counsel allowed the State to fabricate issues to delay the trial lacked merit because the inmate failed to prove that the State engaged in any wrongdoing relative to requesting continuances, that any evidence was fabricated, or that the State dealt with the trial court in bad faith. Lanier v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 216 (Tenn. Crim. App. Apr. 1, 2020).

Inmate was not entitled to relief based on a claim that counsel was ineffective in his investigation and presentation of a third party defense because the inmate failed to show how, in light of the evidence establishing multiple people had a grudge against the victim, arguably threatening messages sent after the victim had been murdered would have changed the outcome of the inmate's trial. Lanier v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 216 (Tenn. Crim. App. Apr. 1, 2020).

In an action for aggravated burglary in concert with others and possession of a firearm during the commission of a dangerous felony, postconviction relief was properly denied, as lead trial counsel was not ineffective for failing to request a written jury instruction on lesser-included offenses where the inmate was not prejudiced by such failure since the jury convicted the inmate of the charged offense and thus the jury never had the opportunity to consider any lesser-included offenses, or for making a strategic decision not to object to a supplemental jury instruction. Blount v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 271 (Tenn. Crim. App. Apr. 17, 2020).

Inmate was not entitled to postconviction relief based on, inter alia, a claim of lack of communication because, during the post-conviction hearing, both the inmate and trial counsel testified that they had multiple face-to-face meetings and that the inmate was given his discovery, and the inmate did not attempt to establish any way in which better communication with his trial counsel or better involvement of the inmate in trial preparation could have altered the outcome of the case. Tate v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 292 (Tenn. Crim. App. Apr. 24, 2020).

Post-conviction relief was properly denied because, contrary to the inmate's contention, trial counsel did not concede the inmate's guilt but maintained the inmate's innocence throughout the trial and advanced a theory consistent with that strategy and thus, the inmate failed to show that he was prejudiced by counsel's decision to cross-examine the victim about his claim that the inmate sodomized him and asking the victim to set the scene in an effort to discredit the victim's recollection of the rape, which contained inconsistencies. Thornton v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 347 (Tenn. Crim. App. May 15, 2020).

Inmate was not entitled to post-conviction relief because his claims of ineffective assistance failed, as the failure to object to testimony that a stain on the carpet looked like dried semen, even if inadmissible, did not prejudice the inmate given that the inmate's DNA was recovered from DNA from seminal fluid from both victims and failure to object to photos of knives did not prejudice the inmate given the overwhelming evidence of the inmate's guilt. Davis v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 377 (Tenn. Crim. App. May 29, 2020).

In a second-degree murder action, postconviction relief was properly denied, as the inmate failed to show remand to the post-conviction court to call a witness was necessary since the inmate received a full and fair hearing under T.C.A. § 40-30-106(h); trial counsel made a reasonable strategic decision not to introduce character evidence about the victim because it would permit character evidence of the inmate to be admissible; and trial counsel made a reasonably based strategic decision not to call a distraught witness and believing that the witness's testimony would harm the inmate's case given her mental state. Ferrell v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 593 (Tenn. Crim. App. Sept. 2, 2020).

14. Motor Vehicle Habitual Offender Judgment.

Because a proceeding under the Motor Vehicle Habitual Offenders Act is civil, it does not follow that the offender is without remedy. The offender should first mount a post-conviction procedure attack upon one or more of the underlying or predicate offenses as void or voidable because of the abridgement of any right guaranteed by the constitution; if successful, the petitioner should then be in a position to mount an attack upon the habitual offender judgment. Bankston v. State, 815 S.W.2d 213, 1991 Tenn. Crim. App. LEXIS 190 (Tenn. Crim. App. 1991), appeal denied, — S.W.2d —, 1991 Tenn. LEXIS 276 (Tenn. July 1, 1991).

Defendant could not show prejudice stemming from any alleged omissions by counsel in a negotiated sentence for a failure to appear conviction by counsel failing to challenge an agreed order declaring defendant a habitual motor vehicle offender (MVHO) as defendant failed to appear to serve defendant's prison sentences for theft, reckless endangerment, and resisting arrest in addition to the sentence for the MVHO violation. Defendant was obligated to appear in court and begin serving sentences regardless of the validity of the MVHO order Johnson v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 143 (Tenn. Crim. App. Mar. 1, 2017).

15. Punishment.

Post-conviction relief was properly denied, because trial counsel was not deficient for failing to obtain independent testing of a palm print match, counsel did inform the inmate that she could not be sentenced to death, and the inmate failed to prove guilty plea was not knowing and voluntary, as she had two years of college, had been a defendant in another state, was represented by competent counsel, and had a strong incentive to proffer guilty plea because she faced life without parole. Calhoun v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 137 (Tenn. Crim. App. Feb. 28, 2017).

Decisions Under Prior Law

1. In General.

Defendant's assertion that he should have been permitted to litigate grounds alleging: (a) The death penalty is unconstitutional; (b) The denial of the constitutional right to effective assistance of counsel; and (c) Claims relating to the use of a prior rape for which the defendant was neither indicted nor convicted, was without merit where: (1) The grounds had been previously determined; (2) Those few issues that had not been previously determined were waived; (3) The grounds were totally devoid of merit; (4) Most of the grounds were couched in conclusory terms, and no facts were set forth in the petition to support those grounds; and (5) Some of the grounds were not cognizable in a post-conviction suit. Caruthers v. State, 814 S.W.2d 64, 1991 Tenn. Crim. App. LEXIS 55 (Tenn. Crim. App. 1991).

2. Purpose.

Former chapter was enacted to allow prisoners a procedure for relief when their conviction is void or voidable because of abridgment of a Tennessee or federal constitutional right. Its authority and limitations are derived solely from the legislature and are not constitutionally mandated, and the history of its development shows that its purpose is to provide for collateral attack on Tennessee convictions. Oliphant v. State, 806 S.W.2d 215, 1991 Tenn. Crim. App. LEXIS 46 (Tenn. Crim. App. 1991), appeal denied, — S.W.2d —, 1991 Tenn. LEXIS 106 (Tenn. Mar. 11, 1991).

3. Violation of Constitutional Right Required.

Post-conviction petitions properly go only to abridgment of constitutional rights in the conviction process. Sloan v. State, 477 S.W.2d 219, 1971 Tenn. Crim. App. LEXIS 453 (Tenn. Crim. App. 1971); Terrell v. Dutton, 661 F. Supp. 100, 1986 U.S. Dist. LEXIS 18538 (M.D. Tenn. 1986).

If post-conviction petition failed to show abridgment of constitutional rights of petitioner or if grounds stated had been waived or previously determined, court could have dismissed petition without appointment of counsel. Cureton v. Tollett, 477 S.W.2d 233, 1971 Tenn. Crim. App. LEXIS 460 (Tenn. Crim. App. 1971).

Petition which made no attack upon petitioner's guilty pleas and did not charge that either convictions or sentences were void or voidable because of abridgment of a right guaranteed by the state or federal constitution stated no ground for relief under the Post-Conviction Procedure Act. Wooten v. State, 477 S.W.2d 767, 1971 Tenn. Crim. App. LEXIS 476 (Tenn. Crim. App. 1971); Hankins v. State, 512 S.W.2d 591, 1974 Tenn. Crim. App. LEXIS 278 (Tenn. 1974).

Where petition for post-conviction relief did not allege facts showing that conviction resulted from abridgment of constitutional rights, petition was subject to dismissal without hearing. Arthur v. State, 483 S.W.2d 95, 1972 Tenn. LEXIS 362 (Tenn. 1972); Gant v. State, 507 S.W.2d 133, 1973 Tenn. Crim. App. LEXIS 219 (Tenn. Crim. App. 1973).

The Post-Conviction Procedure Act was adopted solely for the purpose of allowing presentation of error of constitutional dimension which if true would make the convicting procedure void. Frazier v. State, 480 S.W.2d 551, 1972 Tenn. Crim. App. LEXIS 323 (Tenn. Crim. App. 1972).

It is only if a factual basis giving rise to a constitutional issue is alleged that there is any basis for the filing and determination of a petition seeking post conviction nullification of a final judgment of conviction. Gunn v. State, 509 S.W.2d 843, 1974 Tenn. Crim. App. LEXIS 308 (Tenn. Crim. App. 1974).

Appellant's contentions that the failure of Tennessee authorities to return him to a Kentucky prison immediately after his conviction in Tennessee retroactively deprived Tennessee of jurisdiction or served to impliedly pardon or commute his Tennessee sentence, presented no question of constitutional deprivation, and therefore were not properly raised under this chapter. Carter v. State, 600 S.W.2d 750, 1980 Tenn. Crim. App. LEXIS 278 (Tenn. Crim. App. 1980).

The standards for accepting a guilty plea as set forth in State v. Mackey, 553 S.W.2d 337, 1977 Tenn. LEXIS 579 (Tenn. 1977) go beyond constitutional requirements and a violation of the standards set by that case to the extent that they go beyond constitutional standards did not constitute ground for post-conviction relief. State v. Wallace, 604 S.W.2d 890, 1980 Tenn. Crim. App. LEXIS 296 (Tenn. Crim. App. 1980); Housler v. State, 749 S.W.2d 758, 1988 Tenn. Crim. App. LEXIS 216 (Tenn. Crim. App. 1988).

Advice to defendant entering guilty plea that prior convictions might be used to enhance sentence is not constitutionally required and its omission has no validity in post-conviction proceedings. State v. Prince, 781 S.W.2d 846, 1989 Tenn. LEXIS 529 (Tenn. 1989).

Violations of State v. Mackey, 553 S.W.2d 337, 1977 Tenn. LEXIS 579 (Tenn. 1977) requiring trial judges to advise defendants of the consequences of guilty pleas that exceed the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274, 1969 U.S. LEXIS 1434 (1969), are not constitutional violations and are not available except on direct appeal. State v. Frazier, 784 S.W.2d 927, 1990 Tenn. LEXIS 54 (Tenn. 1990).

Pursuant to former chapter, post-conviction petitioners, unlike habeas corpus petitioners, may challenge convictions or sentences that are either void or voidable because of constitutional deprivations. Archer v. State, 851 S.W.2d 157, 1993 Tenn. LEXIS 143 (Tenn. 1993).

Relief may be granted on a post-conviction petition only when the sentence or conviction is void or voidable because it contravenes a state or federal constitutional right of the defendant. Overton v. State, 874 S.W.2d 6, 1994 Tenn. LEXIS 94 (Tenn. 1994).

4. Violation of Laws or Treaties of the U.S.

A state prisoner is entitled to post-conviction relief only if held in custody in violation of the constitution or laws or treaties of the United States. Terrell v. Dutton, 661 F. Supp. 100, 1986 U.S. Dist. LEXIS 18538 (M.D. Tenn. 1986).

5. Unlawful Arrest.

The law is settled that there is no constitutional immunity from unlawful arrest and arrest without a warrant does not per se violate any constitutional right entitling a defendant to post-conviction relief where he is subsequently convicted upon a valid indictment. Nelson v. State, 4 Tenn. Crim. App. 228, 470 S.W.2d 32, 1971 Tenn. Crim. App. LEXIS 499 (Tenn. Crim. App. 1971).

6. Right to Counsel.

Where defendant is represented by retained counsel, state action is not involved and the action or inaction of such counsel is imputed to the defendant. Morgan v. State, 1 Tenn. Crim. App. 454, 445 S.W.2d 477, 1969 Tenn. Crim. App. LEXIS 334 (Tenn. Crim. App. 1969); Brewer v. State, 4 Tenn. Crim. App. 265, 470 S.W.2d 47, 1970 Tenn. Crim. App. LEXIS 496 (Tenn. Crim. App. 1970); Brotherton v. State, 477 S.W.2d 522, 1971 Tenn. Crim. App. LEXIS 470 (Tenn. Crim. App. 1972); Bratton v. State, 477 S.W.2d 754, 1971 Tenn. Crim. App. LEXIS 472 (Tenn. Crim. App. 1971).

The action or inaction of retained counsel is not a ground for post-conviction relief. Jones v. State, 2 Tenn. Crim. App. 152, 452 S.W.2d 361, 1969 Tenn. Crim. App. LEXIS 312 (Tenn. Crim. App. 1969); Carvin v. State, 2 Tenn. Crim. App. 220, 452 S.W.2d 681, 1970 Tenn. Crim. App. LEXIS 418 (Tenn. Crim. App. 1970); Phillips v. State, 3 Tenn. Crim. App. 184, 458 S.W.2d 642, 1970 Tenn. Crim. App. LEXIS 455 (Tenn. Crim. App. 1970).

Where defendant assured counsel that a witness would be present at trial and in reliance upon such assurance counsel did not subpoena the witness, failure of the witness to show for trial did not make counsel incompetent. Shepherd v. State, 533 S.W.2d 335, 1975 Tenn. Crim. App. LEXIS 268 (Tenn. Crim. App. 1975).

8. Judicial Discretion.

Trial court's exercise of judicial discretion is not subject to post-conviction collateral attack unless such discretionary actions prejudicially trench upon constitutional rights of accused. Janow v. State, 4 Tenn. Crim. App. 195, 470 S.W.2d 19, 1971 Tenn. Crim. App. LEXIS 495 (Tenn. Crim. App. 1971); Wooten v. State, 477 S.W.2d 767, 1971 Tenn. Crim. App. LEXIS 476 (Tenn. Crim. App. 1971).

9. Sufficiency of Indictment.

The sufficiency of an indictment cannot be reviewed or tested by resort to the Post-Conviction Procedure Act. Brown v. State, 1 Tenn. Crim. App. 462, 445 S.W.2d 669, 1969 Tenn. Crim. App. LEXIS 335 (Tenn. Crim. App. 1969); Myers v. State, 3 Tenn. Crim. App. 414, 462 S.W.2d 265, 1970 Tenn. Crim. App. LEXIS 463 (1970).

Claim that indictment in a previous conviction used as the basis for a habitual criminal charge was not a true bill and was not signed by the foreman of the grand jury did not constitute constitutional error and was not grounds for post-conviction relief on the theory that the conviction as a habitual criminal was void. State v. Wright, 225 Tenn. 652, 475 S.W.2d 546, 1972 Tenn. LEXIS 404 (1972).

Where a petitioner for post-conviction relief contended, for the first time, that his conviction was under an indictment returned by a grand jury selected in violation of U.S. Const., amend. 14, § 1, of Tenn. Const., art. I, § 8 and of § 40-1501 (repealed), the court held that he had waived his right to object by failing to challenge the competency or legality of the grand jury by plea in abatement prior to pleading to the indictment at his trial. Holiday v. State, 512 S.W.2d 953, 1972 Tenn. Crim. App. LEXIS 276 (Tenn. Crim. App. 1972).

10. Sufficiency of Evidence.

Post-conviction proceedings may not be employed to question or review or test the sufficiency of the evidence at the original trial. Shiflet v. Tollett, 448 S.W.2d 681, 1969 Tenn. Crim. App. LEXIS 369 (Tenn. Crim. App. 1969); Carvin v. State, 2 Tenn. Crim. App. 220, 452 S.W.2d 681, 1970 Tenn. Crim. App. LEXIS 418 (Tenn. Crim. App. 1970); Doyle v. State, 3 Tenn. Crim. App. 171, 458 S.W.2d 637, 1970 Tenn. Crim. App. LEXIS 453 (Tenn. Crim. App. 1970); Phillips v. State, 3 Tenn. Crim. App. 184, 458 S.W.2d 642, 1970 Tenn. Crim. App. LEXIS 455 (Tenn. Crim. App. 1970); Guy v. State, 4 Tenn. Crim. App. 218, 470 S.W.2d 28, 1971 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 1971); Sloan v. State, 477 S.W.2d 219, 1971 Tenn. Crim. App. LEXIS 453 (Tenn. Crim. App. 1971); Brotherton v. State, 477 S.W.2d 522, 1971 Tenn. Crim. App. LEXIS 470 (Tenn. Crim. App. 1972).

Insufficiency of trial evidence and incompetency of witnesses are not matters reviewable by post-conviction proceedings. Gant v. State, 507 S.W.2d 133, 1973 Tenn. Crim. App. LEXIS 219 (Tenn. Crim. App. 1973).

11. Extrinsic Evidence.

The former section clearly permitted the introduction of extrinsic evidence to establish the existence of a constitutional violation that makes an otherwise facially valid conviction unconstitutional and, therefore, invalid. Sawyers v. State, 814 S.W.2d 725, 1991 Tenn. LEXIS 514 (Tenn. 1991).

12. Exclusion of Witnesses.

The exclusion of witnesses from the courtroom is not a matter of right and an alleged error in failure to exclude a witness provides no ground for post-conviction relief. Rucker v. Tollett, 4 Tenn. Crim. App. 672, 475 S.W.2d 207, 1971 Tenn. Crim. App. LEXIS 439 (Tenn. Crim. App. 1971).

13. Correction of Errors.

Post-conviction proceedings may not be used to review or correct errors of law or fact allegedly committed by a court of competent jurisdiction. Brewer v. State, 4 Tenn. Crim. App. 265, 470 S.W.2d 47, 1970 Tenn. Crim. App. LEXIS 496 (Tenn. Crim. App. 1970).

14. Guilty Plea.

Where general sessions judge failed to advise defendant who pled guilty to drunk driving of his right against compelled self-incrimination, thereby violating State v. Mackey, 553 S.W.2d 337, 1977 Tenn. LEXIS 579 (Tenn. 1977), and Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274, 1969 U.S. LEXIS 1434 (1969), but defendant's own testimony demonstrated that his plea was knowingly and voluntarily entered, and that the plea represented a voluntary and intelligent choice among the alternatives available at that time, the plea was constitutionally valid. Stagnolia v. State, 792 S.W.2d 450, 1990 Tenn. Crim. App. LEXIS 5 (Tenn. Crim. App. 1990), appeal denied, — S.W.2d —, 1990 Tenn. LEXIS 291 (Tenn. June 11, 1990).

In a post-conviction hearing, where petitioner asserts that his guilty pleas were not voluntarily, knowingly and understandingly entered, the attorney-client privilege should be waived as to that issue; a client may not use his or her version of the events, involving the attorney, as a sword while raising the privilege as a shield to prevent the attorney from being used in responding to the attack. Bryan v. State, 848 S.W.2d 72, 1992 Tenn. Crim. App. LEXIS 679 (Tenn. Crim. App. 1992).

15. Determination of Guilt.

Post-conviction proceedings may not be employed to determine the question of guilt or innocence. Doyle v. State, 3 Tenn. Crim. App. 171, 458 S.W.2d 637, 1970 Tenn. Crim. App. LEXIS 453 (Tenn. Crim. App. 1970); Phillips v. State, 3 Tenn. Crim. App. 184, 458 S.W.2d 642, 1970 Tenn. Crim. App. LEXIS 455 (Tenn. Crim. App. 1970).

16. Punishment.

A contention that punishment is cruel and unusual is without substance where the punishment is within the statutory authority. State ex rel. Fields v. Henderson, 1 Tenn. Crim. App. 443, 443 S.W.2d 837, 1969 Tenn. Crim. App. LEXIS 333 (Tenn. Crim. App. 1969).

Where petitioner's felony conviction was reversed and he was reindicted for the same felony and for being a habitual criminal, he could not complain of the increased punishment imposed on conviction of the felony and habitual criminal charge. Brown v. State, 1 Tenn. Crim. App. 462, 445 S.W.2d 669, 1969 Tenn. Crim. App. LEXIS 335 (Tenn. Crim. App. 1969).

Trial court's determination that petitioner serve robbery sentences consecutively was not a ground for post-conviction relief. Wooten v. State, 477 S.W.2d 767, 1971 Tenn. Crim. App. LEXIS 476 (Tenn. Crim. App. 1971).

Where a defendant is sentenced to an enhanced range which is founded on constitutionally infirm convictions, he or she may, in a post-conviction proceeding, attack the enhanced sentence range as voidable pursuant to the former section. Dulsworth v. State, 881 S.W.2d 275, 1994 Tenn. Crim. App. LEXIS 33 (Tenn. Crim. App. 1994).

17. Enhanced Sentence Range.

Where a defendant is sentenced to an enhanced range which is founded on constitutionally infirm convictions, he or she may, in a post-conviction proceeding, attack the enhanced sentence range as voidable pursuant to this section. Dulsworth v. State, 881 S.W.2d 275, 1994 Tenn. Crim. App. LEXIS 33 (Tenn. Crim. App. 1994).

18. Subsequently Recognized Right.

Where, due to ruling of supreme court, defendant has a defense not existing at time of trial court hearing on petition for post-conviction relief, court of criminal appeals may remand for taking of further evidence. Pruett v. State, 501 S.W.2d 807, 1973 Tenn. LEXIS 538 (Tenn. 1973), cert. denied, Pruett v. Tennessee, 415 U.S. 994, 94 S. Ct. 1596, 39 L. Ed. 2d 891, 1974 U.S. LEXIS 809 (1974).

Convictions entered in the trial courts prior to the release of Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274, 1969 U.S. LEXIS 1434 (1969), which requires that guilty pleas be made knowingly and voluntarily, are not subject to post-conviction attack. State v. Frazier, 784 S.W.2d 927, 1990 Tenn. LEXIS 54 (Tenn. 1990).

19. Bail.

Refusal of bail pending appeal is not a ground for post-conviction relief. Jones v. State, 2 Tenn. Crim. App. 152, 452 S.W.2d 361, 1969 Tenn. Crim. App. LEXIS 312 (Tenn. Crim. App. 1969).

20. Prior Post-Conviction Proceeding.

Appointment of inadequate counsel at post-conviction hearing, even if true, would not have voided the original judgment of conviction. Dowlen v. State, 477 S.W.2d 253, 1971 Tenn. Crim. App. LEXIS 466 (Tenn. Crim. App. 1971).

Errors in a prior post-conviction proceeding did not affect the initial judgment of conviction and unless the conviction or sentence was void or voidable upon constitutional grounds there could be no post-conviction relief. Brotherton v. State, 477 S.W.2d 522, 1971 Tenn. Crim. App. LEXIS 470 (Tenn. Crim. App. 1972); Recor v. State, 489 S.W.2d 64, 1972 Tenn. Crim. App. LEXIS 294 (Tenn. Crim. App. 1972), cert. denied, Recor v. Tennessee, 411 U.S. 920, 93 S. Ct. 1560, 36 L. Ed. 2d 313, 1973 U.S. LEXIS 2885 (1973).

21. Probation and Parole Board Actions.

Action of state board of probation and parole in revoking prisoner's parole was not reviewable in post-conviction proceeding. Bratton v. State, 477 S.W.2d 754, 1971 Tenn. Crim. App. LEXIS 472 (Tenn. Crim. App. 1971).

22. Defense.

The fact that post-conviction proceeding constituted collateral attack on judgment was no defense to proceeding. Goodner v. State, 484 S.W.2d 364, 1972 Tenn. Crim. App. LEXIS 337 (Tenn. Crim. App. 1972).

23. Burden of Proof.

The burden is on the petitioner to prove his allegations attacking the validity of his conviction. Long v. State, 510 S.W.2d 83, 1974 Tenn. Crim. App. LEXIS 295 (Tenn. Crim. App. 1974).

In a post-conviction proceeding the burden is on the petitioner to prove by a preponderance of the evidence the allegations in his petition. Clenny v. State, 576 S.W.2d 12, 1978 Tenn. Crim. App. LEXIS 336 (Tenn. Crim. App. 1978), cert. denied, Clenny v. Tennessee, 441 U.S. 947, 99 S. Ct. 2170, 60 L. Ed. 2d 1050, 1979 U.S. LEXIS 1870 (1979); McGee v. State, 739 S.W.2d 789, 1987 Tenn. Crim. App. LEXIS 2686 (Tenn. Crim. App. 1987).

24. Prior Determinations.

Grounds for relief previously determined on appeal are not subject to review by post-conviction proceedings. Roach v. Moore, 550 S.W.2d 256, 1977 Tenn. Crim. App. LEXIS 262 (Tenn. Crim. App. 1977).

25. Waiver.

Where the record is void of any allegations that the guilty plea was made without the assistance of competent counsel, the guilty plea waived all nonjurisdictional and procedural defects and constitutional infirmities. Ellison v. State, 549 S.W.2d 691, 1976 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 1976).

26. Number of Petitions.

The former section necessarily allowed more than one petition to be filed in some cases. Swanson v. State, 749 S.W.2d 731, 1988 Tenn. LEXIS 70 (Tenn. 1988).

27. Prior Convictions.

A defendant cannot maintain a collateral attack by post-conviction proceedings on his status of habitual criminality by attacking the validity of his predicate convictions. Prior to making such an attack on an habitual criminal conviction, he must by appropriate petition in the court where his earlier conviction took place seek a hearing to determine the constitutional validity of any such prior conviction; if he is successful in those proceedings he then exposes the enhanced sentence on the subsequent conviction to collateral attack as well. State v. Prince, 781 S.W.2d 846, 1989 Tenn. LEXIS 529 (Tenn. 1989).

Grounds raised by defendant for setting aside his convictions, namely, the failure to advise him that additional punishment might be imposed as a result of prior convictions, that questions about the offense and answers given to those questions could be used in a prosecution for perjury against him, that evidence of prior convictions might be presented at a sentencing hearing to determine punishment, and that convictions could be used to enhance his punishment for subsequent offenses, are not cognizable in a post-conviction proceeding because they are not constitutionally mandated. Teague v. State, 789 S.W.2d 916, 1990 Tenn. Crim. App. LEXIS 66 (Tenn. Crim. App. 1990), appeal denied, — S.W.2d —, 1990 Tenn. LEXIS 211 (Tenn. May 14, 1990).

40-30-104. Petition.

A post-conviction proceeding is commenced by filing, with the clerk of the court in which the conviction occurred, a written petition naming the state as the respondent. No filing fee shall be charged. Petitions challenging misdemeanor convictions not in a court of record shall be filed in a court of record having criminal jurisdiction in the county in which the conviction was obtained, and the case shall be assigned as set forth in § 40-30-105(b).
The petitioner shall provide all information required by this section. Petitions which are incomplete shall be filed by the clerk, but shall be completed as set forth in an order entered in accordance with § 40-30-106(d).
The petition for post-conviction relief shall be limited to the assertion of claims for relief from the judgment or judgments entered in a single trial or proceeding. If the petitioner desires to obtain relief from judgments entered in separate trials or proceedings, the petitioner must file separate petitions.
The petitioner shall include all claims known to the petitioner for granting post-conviction relief and shall verify under oath that all the claims are included.
The petitioner shall include allegations of fact supporting each claim for relief set forth in the petition and allegations of fact explaining why each ground for relief was not previously presented in any earlier proceeding. The petition and any amended petition shall be verified under oath. Affidavits, records or other evidence available to the petitioner supporting the allegations of the petition may be attached to it.
The petitioner shall provide the name of any attorney licensed to practice law who drafts or has given assistance or advice regarding drafting the petition for post-conviction relief.
Amendments to the petition shall conform substantially to the form for original petitions, except that matters alleged in the original petition need not be repeated.

Acts 1995, ch. 207, § 1; T.C.A. § 40-30-204.

Law Reviews.

Adjudicating Claims of Innocence for the Capitally Condemned in Tennessee: Embracing a Truth Forum (Dwight Aarons), 76 Tenn. L. Rev. 511 (2009).

The Tennessee Court of Criminal Appeals: A Study and Analysis, 66 Tenn. L. Rev. 427 (1999).

NOTES TO DECISIONS

1. Waiver.

A blanket statement giving a variety of reasons why issues were not raised in a previous petition is insufficient to rebut the presumption of waiver. Cone v. State, 927 S.W.2d 579, 1995 Tenn. Crim. App. LEXIS 258 (Tenn. Crim. App. 1995), cert. denied, Cone v. Tennessee, 519 U.S. 934, 117 S. Ct. 309, 136 L. Ed. 2d 226, 1996 U.S. LEXIS 6238 (1996).

Petitioner waived consideration of the issue of ineffective assistance of counsel on appeal because the issue was not included in the petition; petitioner's claim was not based upon a constitutional right that was not recognized at the time of his trial, and there was no evidence that his failure to present such a claim was the result of state action in violation of the federal or state constitution. Walker v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 107 (Tenn. Crim. App. Feb. 12, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 496 (Tenn. June 23, 2016).

Because petitioner failed to include his Brady issue in his pro se or amended petition for post-conviction relief as required, it was waived. Connor v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 729 (Tenn. Crim. App. Sept. 27, 2018).

Defendant did not waive the issue of trial counsel's failure to object to testimony regarding defendant's prior incarceration because, although defendant did not explicitly include in petitions a claim that counsel was ineffective for failing to object to the testimony, defendant did generally claim that defendant received ineffective assistance. Further, when defendant raised the issue during the post-conviction hearing, the State of Tennessee never objected on the basis that defendant failed to include the issue in post-conviction petitions. Matthews v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 155 (Tenn. Crim. App. Mar. 11, 2019).

Petitioner waived review of his claim that his petition for post-conviction relief had to be considered timely because he failed to raise the issue in his post-conviction petition. Fuller v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 636 (Tenn. Crim. App. Oct. 8, 2019).

2. Construction With Other Sections.

The required prima facie showing of a petitioner's incompetence requiring tolling of the statute of limitations under T.C.A. § 40-30-202(a) (now T.C.A. § 40-30-102(a)) may be satisfied by attaching to the petition affidavits, depositions, medical reports, or other credible evidence that contain specific factual allegations of incompetence under T.C.A. § 40-30-204 (now T.C.A. § 40-30-104). State v. Nix , 40 S.W.3d 459, 2001 Tenn. LEXIS 107 (Tenn. 2001), overruled, Reid ex rel. Martiniano v. State, 396 S.W.3d 478, 2013 Tenn. LEXIS 84 (Tenn. Jan. 24, 2013), overruled, Crocker v. State, — S.W.3d —, 2013 Tenn. LEXIS 873 (Tenn. Oct. 23, 2013), overruled in part, Green v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 875 (Tenn. Crim. App. Oct. 29, 2015).

3. Record.

Trial court did not err when it dismissed a petition for post-conviction relief where, after a thorough examination of the record, which included the original pro se petition, accompanying memorandum, and guilty plea transcript, the court concluded that defendant was not entitled to relief. Burnett v. State, 92 S.W.3d 403, 2002 Tenn. LEXIS 705 (Tenn. 2002).

4. Limitations.

5. Verification of Petition.

Petition for post-conviction relief was comprehensive, but was not signed by petitioner or counsel and was not verified by petitioner under oath; the trial court clerk was required to file the petition regardless of any deficiencies, petitioner was not notified of the deficiencies, a dismissal based on counsel's failure to comply would forever bar petitioner from seeking post-conviction relief, and the deficiencies could have been easily corrected, such that the post-conviction court should have given petitioner a reasonable opportunity to correct the petition before summarily dismissing it. Lewis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 810 (Tenn. Crim. App. Oct. 31, 2016), review denied and ordered not published, — S.W.3d —, 2017 Tenn. LEXIS 118 (Tenn. Feb. 16, 2017).

Although neither the original nor the amended petitions for post-conviction relief were verified by defendant, and, despite that procedural lapse, the post-conviction court allowed the case to proceed without pointing out the error, because defendant testified under oath at the evidentiary hearing, thereby adopting and attesting to the veracity of the claims in his petition, the appellate court would consider the merits of defendant's claims. Watt v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 849 (Tenn. Crim. App. Nov. 10, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 110 (Tenn. Feb. 16, 2017).

6. Reviewability.

Corrected petition was not stamped as filed by the trial court clerk and was not included in the appellate record, and thus could not be considered on appeal. Lewis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 810 (Tenn. Crim. App. Oct. 31, 2016), review denied and ordered not published, — S.W.3d —, 2017 Tenn. LEXIS 118 (Tenn. Feb. 16, 2017).

Post-conviction court in defendant's rape case should have summarily dismissed defendant's post-conviction claims related to defendant's separate assault case that were raised for the first time in the amended petition for the rape case. Pilate v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 614 (Tenn. Crim. App. Aug. 14, 2018).

That petitioner failed to name any specific claim in his appellate brief did not prevent him from presenting that claim upon remand because the post-conviction court summarily dismissed the petition in its entirety, and the summary dismissal of the petition, not the merit of any particular claim, was the sole issue in the appeal; petitioner could amend his petition for post-conviction relief to assert additional claims prior to the evidentiary hearing. Thomas v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 633 (Tenn. Crim. App. Aug. 17, 2018).

7. Jurisdiction.

Post-conviction court erred in dismissing defendant's petition for relief because the court had jurisdiction to consider the petition—defendant pleaded guilty in a general sessions court and filed his petition in a court of record in the same county—and that his petition stated a colorable claim of ineffective assistance of counsel—counsel failed to advise defendant of the immigration consequences of the plea—and defendant maintained that he would not have accepted the guilty plea but for trial counsel's deficiencies. Guerra-Rosales v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 360 (Tenn. Crim. App. May 21, 2020).

Decisions Under Prior Law

1. Legislative Intent.

The general assembly did not intend to vest the court of criminal appeals with the authority to either receive and hear proof on original applications for post-conviction relief (on the limited issue of the effectiveness of post-conviction appellate counsel) or interchange by panel with the trial court to hear evidence on the question. State v. Clark, 774 S.W.2d 634, 1989 Tenn. Crim. App. LEXIS 275 (Tenn. Crim. App. 1989).

There is a legitimate, rational basis for limiting a post-conviction case to the county in which the conviction occurred as required in subsection (a). It fosters administrative convenience in that the record of the original proceedings and many witnesses are more convenient and more readily available to the parties. Oliphant v. State, 806 S.W.2d 215, 1991 Tenn. Crim. App. LEXIS 46 (Tenn. Crim. App. 1991), appeal denied, — S.W.2d —, 1991 Tenn. LEXIS 106 (Tenn. Mar. 11, 1991).

2. Facts Properly Included in Petition.

A matter previously determined is not a proper subject for post-conviction relief. Forrest v. State, 535 S.W.2d 166, 1976 Tenn. Crim. App. LEXIS 392 (Tenn. Crim. App. 1976).

Appellant's contentions that the evidence obtained in an illegal search and seizure was introduced against him and that he was illegally arrested, were not proper subjects of post-conviction relief since they were proper subjects of direct appeal; likewise, contentions that he was subjected to an illegal identification procedure and that proof of unrelated crimes was introduced against him over objections did not warrant post-conviction relief since they were explicitly dealt with on direct appeal. Forrest v. State, 535 S.W.2d 166, 1976 Tenn. Crim. App. LEXIS 392 (Tenn. Crim. App. 1976).

Petition was defective for not explaining why facts, on which petition was based and which were known by the defendant, were not presented on appeal. State v. Higgins, 729 S.W.2d 288, 1987 Tenn. Crim. App. LEXIS 2090 (Tenn. Ct. App. 1987).

When a petition for post-conviction relief does not allege facts showing that the grounds asserted for relief were not waived in a prior proceeding in which they could have been presented, the petition does not present a colorable claim for relief and is subject to being dismissed without a hearing. State v. Smith, 814 S.W.2d 45, 1991 Tenn. LEXIS 272 (Tenn. 1991).

Where petition did not address the rebuttable presumption that the grounds for relief had been waived, the petition did not state a colorable claim, even though it was filed pro se. State v. Smith, 814 S.W.2d 45, 1991 Tenn. LEXIS 272 (Tenn. 1991).

3. Pro Se Petitions.

A pro se petition under the act is held to less stringent standards than formal pleadings drafted by lawyers, and the test is whether it appears beyond doubt that the petitioner can prove no set of facts in support of his claim which would entitle him to relief. Swanson v. State, 749 S.W.2d 731, 1988 Tenn. LEXIS 70 (Tenn. 1988).

When a colorable claim is presented in a pro se petition, dismissal without appointment of counsel to draft a competent petition is rarely proper. If the availability of relief cannot be conclusively determined from a pro se petition and the accompanying records, the petitioner must be given the aid of counsel. Swanson v. State, 749 S.W.2d 731, 1988 Tenn. LEXIS 70 (Tenn. 1988).

Defendant's assertion that he should have been permitted to litigate grounds alleging: (a) the death penalty is unconstitutional; (b) the denial of the constitutional right to effective assistance of counsel; and (c) claims relating to the use of a prior rape for which the defendant was neither indicted nor convicted, was without merit where: (1) the grounds had been previously determined; (2) those few issues that had not been previously determined were waived; (3) the grounds were totally devoid of merit; (4) most of the grounds were couched in conclusory terms, and no facts were set forth in the petition to support those grounds; and (5) some of the grounds were not cognizable in a post-conviction suit. Caruthers v. State, 814 S.W.2d 64, 1991 Tenn. Crim. App. LEXIS 55 (Tenn. Crim. App. 1991).

4. Case-by-Case Evaluation.

Former §§ 40-30-104 and 40-30-112 [repealed] clearly contemplate a case-by-case evaluation of petitions. Swanson v. State, 749 S.W.2d 731, 1988 Tenn. LEXIS 70 (Tenn. 1988).

5. Record.

The district attorney is responsible for seeing that records or transcripts, material to the questions raised, are included in the record. Childress v. State, 695 S.W.2d 541, 1985 Tenn. Crim. App. LEXIS 2636 (Tenn. Crim. App. 1985).

6. Defective Habeas Corpus Petition.

The mere fact that an appellant designates a pleading as a petition for habeas corpus relief does not mean that the jurisdiction of the habeas corpus statutes has been properly invoked; if the petition is, in fact, a request for relief that may be granted only pursuant to the post-conviction statutes, a court may properly treat that petition as a petition for post-conviction relief and apply the appropriate three-year statute of limitations to its filing. Archer v. State, 851 S.W.2d 157, 1993 Tenn. LEXIS 143 (Tenn. 1993).

40-30-105. Processing of petitions — Designation of judge.

When in receipt of a petition applying for post-conviction relief, the clerk of the trial court shall forthwith:
1. Make three (3) copies of the petition;
2. Docket and file the original petition and its attachments;
3. Mail one (1) copy of the petition to the attorney general and reporter in Nashville;
4. Mail or forward one (1) copy of the petition to the district attorney general;
5. Mail or forward one (1) copy to petitioner's original attorney;
6. Advise the presiding judge that the petition has been filed; and
7. Deliver the petition, its attachments, and all available files, records, and correspondence relating to the judgment under attack to the assigned judge for preliminary consideration.
At either the trial proceeding or an appellate proceeding reviewing the proceeding, the presiding judge of the appropriate court shall assign a judge to hear the petition. The issue of competency of counsel may be heard by a judge other than the original hearing judge. If a presiding judge is unable to assign a judge, the chief justice of the supreme court shall designate an appropriate judge to hear the matter.
A petition for habeas corpus may be treated as a petition under this part when the relief and procedure authorized by this part appear adequate and appropriate, notwithstanding anything to the contrary in title 29, chapter 21, or any other statute.

Acts 1995, ch. 207, § 1; 1996, ch. 995, § 4; T.C.A. § 40-30-205.

Cross-References. Habeas corpus generally, title 29, ch. 21.

Rule Reference. This section is referred to in Rule 28, § 6 of the Rules of the Supreme Court of Tennessee.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 33.74.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 39.

Tennessee Jurisprudence, 2 Tenn. Juris., Appeal and Error, § 17; 8 Tenn. Juris., Criminal Procedure, § 39.

Law Reviews.

Adjudicating Claims of Innocence for the Capitally Condemned in Tennessee: Embracing a Truth Forum (Dwight Aarons), 76 Tenn. L. Rev. 511 (2009).

Appellate and Post Conviction Relief in Tennessee (Ronald W. Eades), 5 Mem. St. U.L. Rev. 1.

Post-Conviction Relief in Tennessee — Fourteen Years of Judicial Administration Under the Post-Conviction Procedure Act (Gary L. Anderson), 48 Tenn. L. Rev. 605 (1981).

NOTES TO DECISIONS

1. Sentencing Claims.

Defendant's maximum sentence was proper because, while it was error to apply an enhancement based on more than one victim, since only one person qualified as a victim, defendant's argument that it was error to use a single prior conviction both to establish defendant's range I offender status and to apply an enhancement factor failed, as defendant would have been sentenced as a range I, standard offender regardless of whether defendant had a prior conviction. State v. Bumpas, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 803 (Tenn. Crim. App. Sept. 1, 2017), review denied and ordered not published, — S.W.3d —, 2018 Tenn. LEXIS 11 (Tenn. Jan. 17, 2018).

2. Recusal of Post-conviction Judge.

Post-conviction court's presiding over petitioner's motion for post-conviction relief was proper under T.C.A. § 40-30-105 because, although the court was party to an in-camera meeting between the parties, the court's mere presence at the meeting was not a sufficient reason to force the court's disqualification. Pike v. State, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 285 (Tenn. Crim. App. Apr. 25, 2011), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 1110 (Tenn. Nov. 15, 2011), cert. denied, Pike v. Tennessee, 2012 U.S. LEXIS 6877, 568 U.S. 827, 133 S. Ct. 103, 184 L. Ed. 2d 47 (U.S. 2012).

Petitioner was not entitled to relief on his contention that the trial court judge was disqualified from later presiding as the post-conviction judge because the court held that under this section, a trial judge was not statutorily disqualified from later presiding as the post-conviction judge regardless of whether the petition raises a claim of ineffective assistance of counsel. Gatlin v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 527 (Tenn. Crim. App. June 23, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 669 (Tenn. Oct. 4, 2017).

Decisions Under Prior Law

1. Legislative Intent.

2. Duties Mandatory.

In prescribing the duties of the clerk in this section, the general assembly clearly indicates its intention to make such specified duties mandatory by using the word “shall.” Brown v. State, 1 Tenn. Crim. App. 462, 445 S.W.2d 669, 1969 Tenn. Crim. App. LEXIS 335 (Tenn. Crim. App. 1969); Blankenship v. State, 4 Tenn. Crim. App. 158, 469 S.W.2d 530, 1971 Tenn. Crim. App. LEXIS 493 (Tenn. Crim. App. 1971); Sykes v. State, 477 S.W.2d 254, 1971 Tenn. Crim. App. LEXIS 467 (Tenn. Crim. App. 1971).

3. Delay in Finding Judge.

Delay caused by difficulty in finding hearing judge competent under this section gave defendant no ground for relief. Johnson v. Russell, 4 Tenn. Crim. App. 113, 469 S.W.2d 511, 1971 Tenn. Crim. App. LEXIS 489 (Tenn. Crim. App. 1971).

4. Harmless Error.

Any error in letting judge who presided at trial in criminal case hear matters on post-conviction relief was harmless under (former) § 27-1-117 (see now T.R.A.P. 36), especially where the only matter raised concerned the order of the appellate court and not the action of the judge who presided at the trial. May v. State, 589 S.W.2d 933, 1979 Tenn. Crim. App. LEXIS 285 (Tenn. Crim. App. 1979), superseded by statute as stated in, Steadman v. State, 806 S.W.2d 780, 1990 Tenn. Crim. App. LEXIS 870 (Tenn. Crim. App. 1990).

5. Effect of 1969 Amendment.

Where proceedings began prior to effective date of 1969 amendment to the former section to provide in effect that judge who presided at original trial shall not be assigned to hear post-conviction proceeding, trial judge who presided at original hearing did not err in conducting evidentiary hearing under this section. Brewer v. State, 4 Tenn. Crim. App. 265, 470 S.W.2d 47, 1970 Tenn. Crim. App. LEXIS 496 (Tenn. Crim. App. 1970).

6. Effect of 1988 Amendment.

Under the 1988 revision of former subdivision (b)(1), the trial court should accept the testimony relative to the issue of effective assistance of appellate counsel, make appropriate findings of fact, and otherwise establish the record necessary for review. The panel of original review, if “available,” will then hear, and determine the issue on the merits. State v. Clark, 774 S.W.2d 634, 1989 Tenn. Crim. App. LEXIS 275 (Tenn. Crim. App. 1989).

7. Competency of Counsel.

When ineffective assistance of appellate counsel is an issue in a post-conviction proceeding, it is first necessary for the trial court to conduct an evidentiary hearing in which it must make appropriate findings and determines the issue; the panel of the original reviewing appellate court, if available, then determines the merits of the issue based upon the record made in the trial court. Cooper v. State, 849 S.W.2d 744, 1993 Tenn. LEXIS 5 (Tenn. 1993).

In a post-conviction proceeding based on a claim of ineffective assistance of counsel, the appellate court should accept that the findings of fact of the trial judge are conclusive on appeal unless the evidence preponderates against the judgment. Cooper v. State, 849 S.W.2d 744, 1993 Tenn. LEXIS 5 (Tenn. 1993).

8. Pleadings Not Complying with Habeas Corpus Requirements.

Where petition of prisoner and answer of state failed to comply with mandatory requirements of §§ 29-21-107 and 29-21-116, respectively, criminal court properly treated petition as petition under Post-Conviction Procedure Act rather than petition for habeas corpus where such procedure was adequate. Trolinger v. Russell, 1 Tenn. Crim. App. 525, 446 S.W.2d 538, 1969 Tenn. Crim. App. LEXIS 288 (Tenn. Crim. App. 1969); Richmond v. Russell, 2 Tenn. Crim. App. 345, 454 S.W.2d 155, 1970 Tenn. Crim. App. LEXIS 420 (1970).

Where prisoner's petition was properly treated as petition under Post-Conviction Procedure Act rather than petition for habeas corpus, state's answer did not have to comply with § 29-21-116 relating to contents of answer in habeas corpus proceeding. Trolinger v. Russell, 1 Tenn. Crim. App. 525, 446 S.W.2d 538, 1969 Tenn. Crim. App. LEXIS 288 (Tenn. Crim. App. 1969); Richmond v. Russell, 2 Tenn. Crim. App. 345, 454 S.W.2d 155, 1970 Tenn. Crim. App. LEXIS 420 (1970); Porter v. State, 2 Tenn. Crim. App. 437, 455 S.W.2d 159, 1970 Tenn. Crim. App. LEXIS 425 (Tenn. Crim. App. 1970).

9. Discretion of Court.

The trial court could have treated a habeas corpus petition as one filed under the Post-Conviction Procedure Act, but was not required to do so. Ray v. State, 489 S.W.2d 849, 1972 Tenn. Crim. App. LEXIS 310 (Tenn. Crim. App. 1972).

10. Post-Conviction Petition as Habeas Corpus.

There is no provision that a petition for post-conviction relief may be treated as one for habeas corpus. Moran v. State, 3 Tenn. Crim. App. 118, 457 S.W.2d 886, 1970 Tenn. Crim. App. LEXIS 380 (Tenn. Crim. App. 1970).

40-30-106. Preliminary consideration.

The trial judge to whom the case is assigned shall, within thirty (30) days of the filing of the original petition, or a petition amended in accordance with subsection (d), examine it together with all the files, records, transcripts, and correspondence relating to the judgment under attack, and enter an order in accordance with this section or § 40-30-107.
If it plainly appears from the face of the petition, any annexed exhibits or the prior proceedings in the case that the petition was not filed in the court of conviction or within the time set forth in the statute of limitations, or that a prior petition was filed attacking the conviction and was resolved on the merits, the judge shall enter an order dismissing the petition. The order shall state the reason for the dismissal and the facts requiring dismissal. If the petition is dismissed as untimely, the order shall state or the record shall reflect the date of conviction, whether an appeal was taken, the name of each court to which an appeal was taken, the date of the final action by each appellate court, and the date upon which the petition was filed.
If it appears that a post-conviction petition challenging the same conviction is already pending in either the trial court, court of criminal appeals, or supreme court, the judge shall enter an order dismissing the subsequent petition. The order shall state the style of the pending petition and in which court it is pending.
The petition must contain a clear and specific statement of all grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings. Failure to state a factual basis for the grounds alleged shall result in immediate dismissal of the petition. If, however, the petition was filed pro se, the judge may enter an order stating that the petitioner must file an amended petition that complies with this section within fifteen (15) days or the petition will be dismissed.
If a petition amended in accordance with subsection (d) is incomplete, the court shall determine whether the petitioner is indigent and in need of counsel. The court may appoint counsel and enter a preliminary order if necessary to secure the filing of a complete petition. Counsel may file an amended petition within thirty (30) days of appointment.
Upon receipt of a petition in proper form, or upon receipt of an amended petition, the court shall examine the allegations of fact in the petition. If the facts alleged, taken as true, fail to show that the petitioner is entitled to relief or fail to show that the claims for relief have not been waived or previously determined, the petition shall be dismissed. The order of dismissal shall set forth the court's conclusions of law.
A ground for relief is waived if the petitioner personally or through an attorney failed to present it for determination in any proceeding before a court of competent jurisdiction in which the ground could have been presented unless:
1. The claim for relief is based upon a constitutional right not recognized as existing at the time of trial if either the federal or state constitution requires retroactive application of that right; or
2. The failure to present the ground was the result of state action in violation of the federal or state constitution.
A ground for relief is previously determined if a court of competent jurisdiction has ruled on the merits after a full and fair hearing. A full and fair hearing has occurred where the petitioner is afforded the opportunity to call witnesses and otherwise present evidence, regardless of whether the petitioner actually introduced any evidence.
If the petition is not dismissed pursuant to this rule, the court shall enter a preliminary order as provided in § 40-30-107.

Acts 1995, ch. 207, § 1; 1996, ch. 995, §§ 5-7; T.C.A. § 40-30-206.

Cross-References. Counsel for indigents, title 40, ch. 14, part 2.

Determination of indigency, appointment of counsel, § 8-14-105.

Right to appointed counsel, § 40-14-103.

Rule Reference. This section is referred to in Appendix C of Rule 28 of the Rules of the Supreme Court

of Tennessee.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 33.74.

Tennessee Jurisprudence, 6A Tenn. Juris., Constitutional Law, § 45; 8 Tenn. Juris., Criminal Procedure, § 39.

Law Reviews.

Adjudicating Claims of Innocence for the Capitally Condemned in Tennessee: Embracing a Truth Forum (Dwight Aarons), 76 Tenn. L. Rev. 511 (2009).

Post-Conviction Relief in Tennessee — Fourteen Years of Judicial Administration Under the Post-Conviction Procedure Act (Gary L. Anderson), 48 Tenn. L. Rev. 605 (1981).

NOTES TO DECISIONS

1. Evidentiary Hearing.

The rebuttable presumption of waiver is not overcome by an allegation that the petitioner did not personally, knowingly, and understandingly fail to raise a ground for relief; waiver in the post-conviction context is to be determined by an objective standard under which a petitioner is bound by the action or inaction of his attorney. House v. State, 911 S.W.2d 705, 1995 Tenn. LEXIS 565 (Tenn. 1995), rehearing denied, —S.W.2d—, 1995 Tenn. LEXIS 764 (Tenn. Dec. 4, 1995), cert. denied, House v. Tennessee, 517 U.S. 1193, 116 S. Ct. 1685, 134 L. Ed. 2d 787, 1996 U.S. LEXIS 3114 (1996).

Upon receipt of a petition for post-conviction relief, the court is required to take the allegations in the petition as true and may not consider other matters contained in the record in determining whether or not the petitioner is entitled to an evidentiary hearing. Hayes v. State, 969 S.W.2d 943, 1997 Tenn. Crim. App. LEXIS 1096 (Tenn. Crim. App. 1997).

A trial court may not conduct an independent review of the transcript of a guilty plea hearing and make a conclusive determination that a post-conviction petition is without merit at the preliminary stage of proceedings to determine whether a petitioner is indigent and in need of counsel. Charlton v. State, 987 S.W.2d 862, 1998 Tenn. Crim. App. LEXIS 854 (Tenn. Crim. App. 1998).

Issue of whether the trial court errantly concluded that its failure to give petitioner a preliminary hearing regarding the basis of his revocation warrant was waived due to the petitioner's failure to raise it in his direct appeal. Massey v. State, 929 S.W.2d 399, 1996 Tenn. Crim. App. LEXIS 185 (Tenn. Crim. App. 1996).

2. Dismissal of Petition.

Where a petitioner raises claims that could have been asserted at trial and in a direct appeal, and fails to present a factual explanation why those claims have not been waived, a trial court may dismiss the petition without the appointment of counsel and without conducting an evidentiary hearing. Blair v. State, 969 S.W.2d 423, 1997 Tenn. Crim. App. LEXIS 872 (Tenn. Crim. App. 1997).

Trial court did not err in dismissing petition where the petition did not contain a clear and specific statement of the grounds upon which relief was sought, nor did it contain a full disclosure of the factual basis of the grounds asserted. Powell v. State, 8 S.W.3d 631, 1998 Tenn. Crim. App. LEXIS 1052 (Tenn. Crim. App. 1998).

In the light most favorable to petitioner, who claimed that her trial counsel was ineffective for not seeking a continuance of the trial to allow petitioner to be less mentally and emotionally distressed so that she would have been better able to calmly communicate her recollection of the events to the jury, the allegations in her petition for post-conviction relief stated a colorable claim for such relief. Therefore, the post-conviction court erred in summarily dismissing the petition. Cross v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 785 (Tenn. Crim. App. Oct. 19, 2016).

The trial court erred by dismissing a petition wherein defendant alleged that guilty pleas had not been knowingly nor voluntarily entered and that, but for deficient representation of his counsel, he would not have conceded his guilt to the charges. Waite v. State, 948 S.W.2d 283, 1997 Tenn. Crim. App. LEXIS 230 (Tenn. Crim. App. 1997).

3. Waiver.

Post-conviction relief on petitioner's claim that trial judge solicited a bribe from him was not waived under former § 40-30-112(b)(1) (repealed) because petitioner could not be expected to ask the judge to recuse himself for solicitation of bribes, petitioner should not be penalized for not raising the issue until the investigation of the judge became public and the issue could not be raised on direct appeal because it involved facts not in the record. State v. Benson, 973 S.W.2d 202, 1998 Tenn. LEXIS 297 (Tenn. 1998).

The legislature did not intend the issue of ineffective assistance of appellate counsel to be waived if not raised on direct appeal. Kendricks v. State, 13 S.W.3d 401, 1999 Tenn. Crim. App. LEXIS 881 (Tenn. Crim. App. 1999).

Even if the legislature did intend the issue of ineffective assistance of counsel to be waived if not raised on direct appeal, where petitioner had alleged ineffective assistance of counsel for failing to raise a myriad of issues in his motion for new trial and on direct appeal, the failure to raise any potential ground for relief was attributable to counsel's incompetence, not the petitioner's waiver; therefore, any failure to raise these issues could not be considered a valid waiver under T.C.A. § 40-30-206(g) (now T.C.A. § 40-30-106(g)). Kendricks v. State, 13 S.W.3d 401, 1999 Tenn. Crim. App. LEXIS 881 (Tenn. Crim. App. 1999).

The plain error rule may not be applied in post-conviction proceedings to issues that would otherwise be deemed previously determined or waived. State v. West, 19 S.W.3d 753, 2000 Tenn. LEXIS 244 (Tenn. 2000).

On appeal from the denial of petitioner's, an inmate's, motion for post-conviction relief, his argument that the prosecutor engaged in misconduct during his guilt phase closing argument during the 1989 trial was not addressed because that claim was waived, T.C.A. § 40-30-106(g). Trial counsel did not object during the 1989 trial to that part of the guilt phase closing argument currently challenged in post-conviction, nor did counsel challenge that part of the argument on direct appeal from the 1989 conviction. Smith v. State, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 793 (Tenn. Crim. App. Sept. 21, 2010), rehearing denied, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 914 (Tenn. Crim. App. Oct. 11, 2010), aff'd in part and vacated in part, 357 S.W.3d 322, 2011 Tenn. LEXIS 1152 (Tenn. Dec. 19, 2011).

On post-conviction relief, an inmate waived a claim that the inmate's speedy trial right was violated because the inmate did not raise the claim on direct appeal. Lee v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 33 (Tenn. Crim. App. Jan. 18, 2016).

Post-conviction petitioner waived any right to a speedy trial challenge due to a failure to raise this issue on direct appeal; in this case, petitioner waived his right to appeal. Foley v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 35 (Tenn. Crim. App. Jan. 20, 2016).

Defendant waived defendant's post-conviction claims regarding election of offenses at trial, double jeopardy, and due process because defendant failed to raise them on direct appeal. Croom v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 130 (Tenn. Crim. App. Feb. 19, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 442 (Tenn. June 24, 2016).

Petitioner could not reformulate issues on appeal and expect relief. Rice v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 229 (Tenn. Crim. App. Mar. 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 606 (Tenn. Aug. 19, 2016).

Petitioner's claims were waived because petitioner could have raised such claims on direct appeal but failed to do so. Askew v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 306 (Tenn. Crim. App. Apr. 26, 2016).

As to petitioner's allegation that he was denied his right to an impartial jury, the post-conviction court did not render specific findings of facts and conclusions of law; however, because petitioner did not present his allegations regarding violations of his constitutional rights to a fair trial and impartial jury in the appeal of his convictions, they were waived for purposes of post-conviction relief. Stewart v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 467 (Tenn. Crim. App. June 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 766 (Tenn. Oct. 19, 2016).

To the extent that defendant raised a right to a jury trial issue in a motion for post-conviction relief, consideration of the issue was waived because defendant did not raise the issue in a previous appeal. Yokley v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 661 (Tenn. Crim. App. Sept. 6, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 29 (Tenn. Jan. 19, 2017).

Although there was no good cause for failing to pursue the suppression motion to a hearing and a dispositive order, because trial counsel's failure to pursue the matter was a calculated, deliberate action that did not constitute ineffective assistance of counsel, the free-standing constitutional search-and-seizure issue was waived. Cannon v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 204 (Tenn. Crim. App. Mar. 21, 2017).

Petitioner did not raise double jeopardy, ex post facto, or merger issues as a basis for post-conviction relief outside of the scope ineffective assistance, and thus as independent bases for post-conviction relief, those issues were waived under T.C.A. § 40-30-106(g). Johnson v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 848 (Tenn. Crim. App. Sept. 15, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 122 (Tenn. Feb. 23, 2018).

Although defendant waived claims of prosecutorial misconduct by not raising them in defendant's direct appeal, the issues were at times discussed in the appellate brief as if they stood alone and at other times as if they were being raised in the context of an ineffective assistance of counsel claim. Accordingly, the appellate court addressed the issues on the merits, waiver notwithstanding, because they were discussed in addressing defendant's claims of ineffective assistance of trial and appellate counsel. Guinn v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 257 (Tenn. Crim. App. Apr. 5, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 499 (Tenn. Aug. 8, 2018).

Defendant's free-standing claim that the prosecutor's voir dire and co-counsel's concession of second degree murder created a structural constitutional error that violated his right to a jury trial was waived because he failed to present that claim to the trial court in his motion for new trial or to the appellate court on direct appeal; and because neither of the exceptions in this statute applied as defendant's claim was not based upon a constitutional right not recognized as existing at the time of trial; and defendant's failure to present that issue to a court of competent jurisdiction was not the result of state action in violation of the federal or state constitution. Stanhope v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 297 (Tenn. Crim. App. Apr. 19, 2018).

Inmate waived his claim for post-conviction relief which alleged that the trial court erred by including a “deadly weapon” definition in the jury instruction by failing to raise the claim at any of the appropriate times, including at trial, in his motion for a new trial, or on direct appeal. Carwell v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 323 (Tenn. Crim. App. Apr. 26, 2018).

Petitioner was properly denied post-conviction relief because he waived his stand-alone claims because he failed to raise them on direct appeal. Casey v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 380 (Tenn. Crim. App. May 17, 2018).

Because petitioner failed to raise as a ground for relief in his post-conviction petition that appellate counsel was ineffective in not raising an issue challenging the trial court's admission of the certified transcript of a conversation between the victim and petitioner in lieu of playing the actual audio recording, that ground for relief was waived. Casey v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 380 (Tenn. Crim. App. May 17, 2018).

Post-conviction court properly dismissed petitioner's claims of prosecutorial misconduct because petitioner waived those claims by failing to raise them on direct appeal. Casey v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 380 (Tenn. Crim. App. May 17, 2018).

Inmate was not entitled to post-conviction relief due to counsel's alleged ineffective assistance when the inmate pled guilty because (1) appellate issues not raised in original or amended post-conviction petitions were waived, and, (2) notwithstanding waiver, the post-conviction court was authorized to credit counsel's testimony over the inmate's contrary testimony that counsel pressured the inmate to plead guilty. Sharkey v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 629 (Tenn. Crim. App. Aug. 17, 2018).

Record reflected that petitioner was permitted to file her application for review of the Court of Criminal Appeals' decision and the Supreme Court denied petitioner's application. Petitioner failed to argue this issue in her application and thus waived it on appeal. Smith v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 651 (Tenn. Crim. App. Aug. 23, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 690 (Tenn. Nov. 15, 2018).

Any claims regarding judicial bias and recusal were waived; petitioner never filed a motion seeking disqualification or recusal of the trial court and petitioner did not raise the issue until he filed his petition for post-conviction relief, but even then, he claimed only that the trial court had made an inappropriate comment and did not argue that the trial court should have recused itself. Phillips v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 703 (Tenn. Crim. App. Sept. 17, 2018).

Because petitioner failed to raise the free-standing double jeopardy issue in the post-conviction court, he waived the issue. Evans v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 769 (Tenn. Crim. App. Oct. 15, 2018).

Petitioner waived his double jeopardy claim by entering his guilty plea in count two to possession of a firearm, but in any event, he was not entitled to relief because a directed verdict on count two, which was contingent on the jury's guilty verdict in count one, first degree murder, did not preclude him from being retried on count two; the directed verdict was entered because count one was not an enumerated dangerous felony, and when the verdict on count one was set aside, petitioner returned to the position he held post-indictment. Evans v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 769 (Tenn. Crim. App. Oct. 15, 2018).

Because petitioner failed to raise a free-standing claim regarding the defective nature of his indictment in his two amended petitions and failed to specifically incorporate his pro se petition raising this issue, he effectively abandoned the issue. Evans v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 769 (Tenn. Crim. App. Oct. 15, 2018).

Petitioner's claim regarding the ineffectiveness of trial counsel had been previously determined, and it was noted that the post-conviction court found that all issues about the search of a computer were adequately addressed by counsel; as a petitioner was bound by the decisions of his post-conviction counsel including the strategic decision not to pursue certain claims, petitioner's current claim regarding the validity of the search warrant was waived. Aguilar v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 863 (Tenn. Crim. App. Nov. 27, 2018).

Petitioner waived consideration of her claim by failing to present the freestanding Sixth Amendment claim to the post-conviction court. Polochak v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 709 (Tenn. Crim. App. Nov. 4, 2019).

Petitioner did not challenge the admission of a witness's statement on Sixth Amendment grounds either at trial or on direct appeal, the issue was waived. Polochak v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 709 (Tenn. Crim. App. Nov. 4, 2019).

Because petitioner had the opportunity to raise the issue of prosecutorial misconduct on direct appeal and failed to do so, the issue was waived. Vargas v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 145 (Tenn. Crim. App. Feb. 26, 2020).

Because petitioner could have presented an issue for review on direct appeal but chose not to, it was waived. Chapman v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 265 (Tenn. Crim. App. Apr. 17, 2020).

In an action for postconviction relief, the inmate waived any claim that the postconviction court erred in denying him relief for claims of prosecutorial vindictiveness because he failed to raise the issue on direct appeal. McNary v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 288 (Tenn. Crim. App. Apr. 24, 2020).

4. Time-Barred Claims.

The 1995 Post-Correction Procedures Act does not allow the filing of a petition upon grounds that were already time-barred when the 1995 act became effective. Church v. State, 987 S.W.2d 855, 1998 Tenn. Crim. App. LEXIS 538 (Tenn. Crim. App. 1998), review or rehearing denied, — S.W.3d —, 1999 Tenn. LEXIS 11 (Tenn. Jan. 4, 1999).

Nothing in the Post-Conviction Procedures Act prevents a trial court from noticing a limitations bar to a petition on its own motion. Church v. State, 987 S.W.2d 855, 1998 Tenn. Crim. App. LEXIS 538 (Tenn. Crim. App. 1998), review or rehearing denied, — S.W.3d —, 1999 Tenn. LEXIS 11 (Tenn. Jan. 4, 1999).

Trial court did not err in dismissing petition for post-conviction relief as time barred where the petition was not filed with the clerk's office until well outside the limitations period; despite petitioner's unsupported assertions, there was no evidence that the petitioner timely delivered the petition to the appropriate prison authorities for mailing within the applicable time for filing. Neely v. State, 34 S.W.3d 879, 2000 Tenn. Crim. App. LEXIS 439 (Tenn. Crim. App. 2000).

Interest of justice did not demand waiver of the timely filing requirement because the issues raised in petitioner's action had been waived since they could have been raised at his previous revocation hearing or on appeal from the trial court's order revoking his probation; also, the merits of the post-conviction matter had been previously determined. Hassman v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 152 (Tenn. Crim. App. Mar. 11, 2019).

Petitioner filed a petition for relief on March 26, 1999 and the preliminary order appointing post-conviction counsel was filed on January 12, 2000, but counsel did not file an amended petition until October 9, 2018; while counsel's delay in filing was much longer than necessary, there was no indication that the legislature or the Tennessee Supreme Court intended for a petitioner to be granted relief simply because of non-compliance of performing an act within a certain time limit, and petitioner was provided a full and fair hearing. Chapman v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 265 (Tenn. Crim. App. Apr. 17, 2020).

5. Previously Determined.

Petitioner was not entitled to relief on his claim that his Miranda waivers were not signed voluntarily, knowingly, or intelligently because the issue had been previously determined. Johnson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1056 (Tenn. Crim. App. Dec. 30, 2015), dismissed, Johnson v. Westbrooks, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 165248 (M.D. Tenn. Nov. 30, 2016).

Defendant's due process issue regarding the State of Tennessee's non-disclosure of the facts surrounding a police officer's employment termination was not subject to further consideration in defendant's motion for post-conviction relief because it was previously determined on appeal. Yokley v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 661 (Tenn. Crim. App. Sept. 6, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 29 (Tenn. Jan. 19, 2017).

Petitioner's allegation that his guilty pleas were unknowing and involuntary was previously determined on direct appeal and therefore could not be grounds for post-conviction relief. Valentine v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 121 (Tenn. Crim. App. Feb. 23, 2017), review denied and ordered not published, — S.W.3d —, 2017 Tenn. LEXIS 321 (Tenn. May 18, 2017).

Although petitioner failed to present all evidence showing trial counsel's alleged ineffectiveness at the hearing, he was afforded the opportunity to present the evidence, and thus the ineffective assistance claim against trial counsel had been previously determined, precluding its consideration in the petition for post-conviction relief. Wagner v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 238 (Tenn. Crim. App. Mar. 31, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 423 (Tenn. July 20, 2017).

Although defendant maintained that the State violated the mandatory joinder rule, because the appellate court previously determined that the offenses committed on November 10 and December 8, 2006, were not part of the same criminal episode, defendant was not entitled to relief on that issue. Grimes v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 298 (Tenn. Crim. App. Apr. 19, 2018), vacated, — S.W.3d —, 2018 Tenn. LEXIS 398 (Tenn. Aug. 10, 2018).

Post-conviction court properly dismissed petitioner's stand-alone claims because they had been previously dismissed; the court of criminal appeals had rejected petitioner's argument on direct appeal. Casey v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 380 (Tenn. Crim. App. May 17, 2018).

Post-conviction court did not err by concluding that any claim with regard to trial counsel's performance was barred in the post-conviction proceeding because petitioner raised the issue of ineffective assistance in his motion for new trial and on direct appeal, and both the trial court and the court of criminal appeals passed on that issue; thus, all claims regarding trial counsel's actions qualified as having been previously determined and could not form a basis for post-conviction relief. Thomas v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 633 (Tenn. Crim. App. Aug. 17, 2018).

Post-conviction court erred in summarily dismissing petitioner's claims because he had not previously presented those claims, and, as such, they had never been passed on by a court of competent jurisdiction after a full and fair hearing; because those claims could not qualify as having been previously determined, they were not barred in the post-conviction proceeding. Thomas v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 633 (Tenn. Crim. App. Aug. 17, 2018).

Petitioner was barred from filing a second petition for post-conviction relief under the Post-Conviction Procedure Act, which contemplates the filing of only one petition for post-conviction relief, because by raising “ineffective assistance” in his initial filing, prior courts applied the law of the Post-Conviction Procedure Act. Hassman v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 152 (Tenn. Crim. App. Mar. 11, 2019).

6. Appointment of Counsel.

Where petition for post-conviction relief failed to allege a colorable claim for relief, petitioner was not entitled to appointment of counsel nor to an evidentiary hearing. Pewitt v. State, 1 S.W.3d 674, 1999 Tenn. Crim. App. LEXIS 180 (Tenn. Crim. App. 1999).

7. Ineffective Assistance of Counsel.

Defendant's petition stated a claim that would entitle him to relief under former T.C.A. § 40-30-206 (now T.C.A. § 40-30-106), where despite the adverse publicity surrounding defendant's trial, his trial attorney failed to request a change of venue and failed to adequately question potential jurors to determine the extent to which they were subjected and influenced by this constant and exploitative media coverage; defendant linked his convictions and his consecutive sentences to his attorney's deficient performance and suggested that a fair trial was impossible, such that the petition stated a colorable claim and that the post-conviction court erred in dismissing the petition. Arnold v. State, 143 S.W.3d 784, 2004 Tenn. LEXIS 694 (Tenn. 2004).

Inmate's guilty plea to aggravated sexual battery in violation of T.C.A. § 39-13-504 was reversed because he was unaware of the mandatory nature of his sentences and that he was not eligible for probation or community corrections under T.C.A. § 40-35-303, not only during the course of the plea negotiations and at the time of his guilty pleas, but also during his sentencing hearing and throughout his direct appeal to the court of criminal appeals. Grindstaff v. State, 297 S.W.3d 208, 2009 Tenn. LEXIS 718 (Tenn. Oct. 30, 2009).

Inmate seeking post-conviction relief did not prove by clear and convincing evidence that trial counsel's failure to sequester the inmate's daughter at trial, causing the daughter to be unable to testify, was ineffective assistance because the inmate did not show prejudice, since the inmate said the inmate did not know how the daughter would have testified and did not present the daughter's testimony at the post-conviction hearing. Lee v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 33 (Tenn. Crim. App. Jan. 18, 2016).

Inmate did not show on post-conviction review that sentencing counsel was ineffective because (1) counsel testified about counsel's extensive investigation, (2) counsel successfully argued against consecutive sentences, (3) counsel properly advised the inmate about waiving the inmate's rights to seek a new trial and appeal, and (4) the inmate did not show the inmate was prejudiced by counsel's failure to object to applying an enhancement factor for failure to comply with community release conditions, since this did not invalidate the inmate's sentence. Lee v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 33 (Tenn. Crim. App. Jan. 18, 2016).

A second petition for post-conviction relief alleging ineffective assistance of counsel was properly dismissed by the trial court where the issue was previously determined at an evidentiary hearing at which the trial record was introduced in evidence and the trial judge determined from that record, and argument of counsel, that the allegations were without merit, fully satisfying the requirements for a “full and fair” hearing. House v. State, 911 S.W.2d 705, 1995 Tenn. LEXIS 565 (Tenn. 1995), rehearing denied, —S.W.2d—, 1995 Tenn. LEXIS 764 (Tenn. Dec. 4, 1995), cert. denied, House v. Tennessee, 517 U.S. 1193, 116 S. Ct. 1685, 134 L. Ed. 2d 787, 1996 U.S. LEXIS 3114 (1996).

There being no constitutional or statutory right to effective assistance of counsel in post-conviction proceedings, a court may not consider the ineffectiveness of counsel at a prior post-conviction proceeding in deciding whether a ground for relief has been previously determined. House v. State, 911 S.W.2d 705, 1995 Tenn. LEXIS 565 (Tenn. 1995), rehearing denied, —S.W.2d—, 1995 Tenn. LEXIS 764 (Tenn. Dec. 4, 1995), cert. denied, House v. Tennessee, 517 U.S. 1193, 116 S. Ct. 1685, 134 L. Ed. 2d 787, 1996 U.S. LEXIS 3114 (1996).

Post-conviction court erred in dismissing petitioner's the ground of ineffective assistance of trial counsel and ineffective assistance of appellate counsel that he properly raised in his brief because the State conceded that the post-conviction court erred in dismissing those ground. Casey v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 380 (Tenn. Crim. App. May 17, 2018).

Because petitioner raised a broad claim of ineffective assistance of counsel in his amended petitions for post-conviction relief and, more importantly, specifically raised and presented proof on those specific alleged deficiencies at the evidentiary hearing, those issues were not waived. Bozza v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 24 (Tenn. Crim. App. Jan. 17, 2020).

8. Facts Alleging Mental Incompetency.

Petitioner had not demonstrated that he was incompetent or that he created a doubt about his competency where (1) limited intelligence and limited education did not necessarily suggest lack of competence; and (2) that petitioner had been depressed and had suicidal ideations was not necessarily sufficient to create a bona fide doubt concerning about his competency. Van Tran v. Bell, — F. Supp. 2d —, 2010 U.S. Dist. LEXIS 146189 (W.D. Tenn. Sept. 30, 2010).

9. Summary Dismissal Improper.

Post-conviction court erred in summarily dismissing petitioner's post-conviction petition for failure to state a colorable claim; the court was unable to conclude that petitioner had argued ineffective assistance of counsel prior to this proceeding and the post-conviction court erred in determining that the claims had been previously determined. Because the claims, if true, would entitle him to relief, he presented a colorable claim for relief and appointment of counsel was necessary. Tuttle v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 235 (Tenn. Crim. App. Apr. 12, 2019).

10. Denial of Relief.

11. Failure to Raise Argument In Original Motion.

Because defendant did not raise an issue related to whether the prosecution's withholding of a report concerning codefendant's criminal history deprived defendant of the right to a fair trial in the appeal of defendant's conviction, consideration of the issue was waived in defendant's appeal from the denial of defendant's motion for post-conviction relief. Lister v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 315 (Tenn. Crim. App. Apr. 27, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 693 (Tenn. Sept. 23, 2016).

Because defendant did not raise an issue in the direct appeal related to whether the State of Connecticut's failure to disclose the existence of an agreement for leniency with codefendant deprived defendant of the right to a fair trial in the appeal of defendant's conviction, consideration of the matter was waived in the appeal of the denial of defendant's motion for post-conviction relief. Lister v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 315 (Tenn. Crim. App. Apr. 27, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 693 (Tenn. Sept. 23, 2016).

Because defendant did not raise an issue related to whether a police detective's actions in destroying compact discs that contained witness statements deprived defendant of the right to a fair trial in the appeal of defendant's conviction, consideration of the claim was waived in an appeal from a denial of defendant's motion for post-conviction relief. Lister v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 315 (Tenn. Crim. App. Apr. 27, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 693 (Tenn. Sept. 23, 2016).

12. Failure to Appeal.

Defendant was not entitled to post-conviction relief, when defendant represented defendant at trial, because defendant failed to present the issues presented for review by failing to object to a pat-down prior to trial and by failing to object to the inclusion of unknown jurors in the venire. Defendant also failed to raise the issues on direct appeal. Dykes v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 270 (Tenn. Crim. App. Apr. 12, 2017).

13. Failure to Raise Question Previously.

Issue of whether the trial court engaged in improper ex parte communication with the jury, by asking them during their deliberations if they wanted the clerk to order food for them, was waived because defendant failed to raise the constitutional challenge in the trial court and in a previous appeal. Poston v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 858 (Tenn. Crim. App. Sept. 22, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 53 (Tenn. Jan. 18, 2018).

Petitioner raised a stand-alone claim that he was unconstitutionally denied his right to testify, but, as argued by the State, this issue should have been raised on direct appeal and was not cognizable as a post-conviction claim. Hooten v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 757 (Tenn. Crim. App. Oct. 5, 2018).

14. Coercion.

Inmate failed to present a factual basis for the ground that he was coerced into waiving his right to post-conviction relief, as the inmate executed a waiver of rights, which stated that he understood that such waiver was made knowingly, freely, and voluntarily. Brichetto v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 634 (Tenn. Crim. App. July 18, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 815 (Tenn. Nov. 16, 2017).

15. Summary Dismissal Required.

Petitioner's claim that the charging instrument failed to comply with requirements for charging enhanced driving under the influence alleged only a statutory violation, not a constitutional violation; as his pro se petition did not state a colorable claim for relief, the post-conviction court did not err in summarily dismissing it without appointing counsel or allowing petitioner the opportunity to amend. Bunch v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 161 (Tenn. Crim. App. Mar. 2, 2018).

40-30-107. Preliminary order.

If the petition is not dismissed upon preliminary consideration, the court shall enter a preliminary order.
In all cases, the preliminary order shall direct the following:
1. If a petitioner not represented by counsel requests counsel and the court is satisfied that the petitioner is indigent as defined in § 40-14-201, the court shall appoint counsel to represent the petitioner.
2. If counsel is appointed or retained, or the petitioner is proceeding pro se, counsel or the petitioner if proceeding pro se must file an amended petition or a written notice that no amendment will be filed. The amended petition or notice shall be filed within thirty (30) days of the entry of the preliminary order, unless extended for good cause. The written notice, if filed by counsel, shall state that counsel has consulted the petitioner and that the petitioner agrees there is no need to amend the petition. Good cause will not be met by a routine statement that the press of other business prevents the filing of the appropriate pleadings within the designated time.

Acts 1995, ch. 207, § 1; T.C.A. § 40-30-207.

Cross-References. Counsel for indigents, title 40, ch. 14, part 2.

Determination of indigency, § 8-14-105.

Right to appointed counsel, § 40-14-103.

Rule Reference. This section is referred to in Rule 28, § 5 of the Rules of the Supreme Court of Tennessee.

Law Reviews.

Adjudicating Claims of Innocence for the Capitally Condemned in Tennessee: Embracing a Truth Forum (Dwight Aarons), 76 Tenn. L. Rev. 511 (2009).

NOTES TO DECISIONS

1. Responsibilities of Counsel.

Counsel must consult with the petitioner where feasible, but retains the right to make strategic and tactical decisions (including the determination of which issues should be raised and pursued) based on counsel's professional judgment. Leslie v. State, 36 S.W.3d 34, 2000 Tenn. LEXIS 716 (Tenn. 2000), rehearing denied, — S.W.3d —, 2001 Tenn. LEXIS 96 (Tenn. Jan. 30, 2001).

Where there was no evidence or allegation that defendant abused the post-conviction process, the trial court erred by allowing counsel to withdraw based on counsel's assertions of defendant's unreasonable demands and by failing to appoint new counsel without conducting a hearing. Leslie v. State, 36 S.W.3d 34, 2000 Tenn. LEXIS 716 (Tenn. 2000), rehearing denied, — S.W.3d —, 2001 Tenn. LEXIS 96 (Tenn. Jan. 30, 2001).

Petitioner was not denied due process by his post-conviction counsel's failure to either withdraw as counsel or file an application for permission to appeal after the court of criminal appeals upheld the trial court's denial of post-conviction relief. All that due process requires during post-convictions procedures is a meaningful opportunity to be heard and petitioner was afforded a full evidentiary hearing and full review in his first post-conviction appeal. Stokes v. State, 146 S.W.3d 56, 2004 Tenn. LEXIS 829 (Tenn. 2004), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 878 (Tenn. Oct. 11, 2004).

2. Appointment of Counsel.

Statutory right to counsel for post-conviction proceedings includes the right to be represented by conflict-free counsel; defendant's appellate counsel was properly removed from representing defendant where defendant did not knowingly waive the potential conflict that could arise from counsel's employment, where counsel had represented defendant on direct appeal. McCullough v. State, 144 S.W.3d 382, 2003 Tenn. Crim. App. LEXIS 673 (Tenn. Crim. App. 2003), appeal denied, — S.W.3d —, 2003 Tenn. LEXIS 1310 (Tenn. Dec. 29, 2003).

Petitioner, who sought to reopen his state post-conviction proceedings, had a statutory right under Tennessee law to appointed counsel; thus, even if 18 U.S.C. § 3599 would otherwise apply to petitioner's state post-conviction proceedings, he would not have been eligible for federal funding because state law afforded him “adequate representation.” Irick v. Bell, 636 F.3d 289, 2011 FED App. 90P, 2011 U.S. App. LEXIS 7552 (6th Cir. Apr. 13, 2011).

3. Conflict of Interest.

Trial court erred when it conducted an evidentiary hearing with regard to an inmate's petition for post-conviction relief because it failed to address a possible conflict of interest issue involving retained counsel in violation of Tenn. Sup. Ct. R. 8, RPC 1.7. despite being aware of such potential conflict and it had a duty of inquiry. Frazier v. State, 303 S.W.3d 674, 2010 Tenn. LEXIS 88 (Tenn. Feb. 18, 2010).

Although a post-conviction court dismissed defendant's petition for post-conviction relief on procedural grounds without holding an evidentiary hearing on the merits, in light of the appellate court's conclusion that the post-conviction court's dismissal of the post-conviction petition as untimely was not in error, it was unnecessary to remand the case for consideration of any conflict of interest issue based upon defendant's trial and post-conviction counsel both working in the same public defender's office. Locke v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 290 (Tenn. Crim. App. Apr. 19, 2017).

4. Summary Dismissal Improper.

Post-conviction court erred in dismissing defendant's petition, without a hearing, as time-barred because the order incorporated the incorrect dates and the misstatement about defendant waiving his right to appeal in the State's response and the final action of the highest state appellate court to which an appeal was taken occurred when the court of criminal appeals dismissed defendant's direct appeal. Seay v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 481 (Tenn. Crim. App. June 29, 2018).

Decisions Under Prior Law

1. Furnishing Transcripts.

State was not required to furnish petitioner with transcript of original trial or of subsequent habeas corpus proceeding where he alleged no constitutional error and specified no trial errors but desired records only for purpose of exploring possibility of filing another petition. Jones v. State, 3 Tenn. Crim. App. 76, 457 S.W.2d 869, 1970 Tenn. Crim. App. LEXIS 445 (Tenn. Crim. App. 1970).

The state was not obligated to furnish at its own expense a complete record for a potential petitioner to pore over in hopeful efforts to find some constitutional defect of which he had not enough inkling to allege in the petition. Dotson v. State, 477 S.W.2d 763, 1971 Tenn. Crim. App. LEXIS 474 (Tenn. Crim. App. 1971).

The obligation to furnish portions of the record of the original trial did not arise until it was demonstrated to the satisfaction of the trial court, after petition had been filed setting forth grounds which if true would have entitled petitioner to relief, that such portions of the record might have been of reasonable assistance to petitioner in establishing his right to the relief sought. Dotson v. State, 477 S.W.2d 763, 1971 Tenn. Crim. App. LEXIS 474 (Tenn. Crim. App. 1971).

Petitioner was not entitled to a complete trial transcript at state expense just so he could go on a fishing expedition through it to see what he could find. McCracken v. State, 529 S.W.2d 724, 1975 Tenn. Crim. App. LEXIS 286 (Tenn. Crim. App. 1975).

2. Prerequisites to Aid.

There are two prerequisites placed upon a defendant, (1) that he file a petition for post conviction relief, and (2) that he is declared an indigent as defined in § 40-14-201, before the trial court may order any document necessary to further his attack upon his conviction. Avant v. State, 577 S.W.2d 471, 1978 Tenn. Crim. App. LEXIS 351 (Tenn. Crim. App. 1978).

3. Conclusions of Attorney.

Where allegations of petition were merely to the effect that argument to jury by assistant attorney general was highly inflammatory and prejudicial such argument was a mere conclusion of the pleader and allegation that record did not contain that portion of the transcript did not per se allege deprivation of constitutional rights. Blankenship v. State, 4 Tenn. Crim. App. 158, 469 S.W.2d 530, 1971 Tenn. Crim. App. LEXIS 493 (Tenn. Crim. App. 1971).

40-30-108. Answer or response.

The district attorney general shall represent the state and file an answer or other responsive pleading within thirty (30) days, unless extended for good cause. Good cause will not be met by a routine statement that the press of other business prevents a response within the thirty-day period. Failure by the state to timely respond does not entitle the petitioner to relief under the Post-Conviction Procedure Act.
If the petition does not include the records or transcripts, or parts of records or transcripts that are material to the questions raised therein, the district attorney general is empowered to obtain them at the expense of the state and may file them with the responsive pleading or within a reasonable time thereafter.
The district attorney general has the option to assert by motion to dismiss that:
1. The petition is barred by the statute of limitations;
2. The petition was not filed in the court of conviction;
3. The petition asserts a claim for relief from judgments entered in separate trials or proceedings;
4. A direct appeal or post-conviction petition attacking the same conviction is currently pending in the trial or appellate courts;
5. The facts alleged fail to show that the petitioner is entitled to relief; or
6. The facts alleged fail to establish that the claims for relief have not been waived or previously determined.
The answer shall respond to each of the allegations of the petition and shall assert the affirmative defenses the district attorney general deems appropriate.

Acts 1995, ch. 207, § 1; T.C.A. § 40-30-208.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 39.

Law Reviews.

Adjudicating Claims of Innocence for the Capitally Condemned in Tennessee: Embracing a Truth Forum (Dwight Aarons), 76 Tenn. L. Rev. 511 (2009).

Post-Conviction Relief in Tennessee — Fourteen Years of Judicial Administration Under the Post-Conviction Procedure Act (Gary L. Anderson), 48 Tenn. L. Rev. 605 (1981).

Decisions Under Prior Law

1. Duties Mandatory.

In prescribing the duties of the district attorney general in the former section, the general assembly by using the word “shall” clearly indicated its intention to make such specified duties mandatory. Brown v. State, 1 Tenn. Crim. App. 462, 445 S.W.2d 669, 1969 Tenn. Crim. App. LEXIS 335 (Tenn. Crim. App. 1969); Blankenship v. State, 4 Tenn. Crim. App. 158, 469 S.W.2d 530, 1971 Tenn. Crim. App. LEXIS 493 (Tenn. Crim. App. 1971); Sykes v. State, 477 S.W.2d 254, 1971 Tenn. Crim. App. LEXIS 467 (Tenn. Crim. App. 1971); State v. Craven, 656 S.W.2d 872, 1982 Tenn. Crim. App. LEXIS 412 (Tenn. Crim. App. 1982); Davis v. State, 673 S.W.2d 171, 1984 Tenn. Crim. App. LEXIS 2775 (Tenn. Crim. App. 1984); Malone v. State, 707 S.W.2d 541, 1985 Tenn. Crim. App. LEXIS 3258 (Tenn. Crim. App. 1985).

It is the role of the state, and not the court, to file those parts of the record that are material to the questions raised in a post-conviction relief petition. Allen v. State, 854 S.W.2d 873, 1993 Tenn. LEXIS 204 (Tenn. 1993).

2. Failure to Participate.

Failure of the district attorney general to participate in post-conviction proceeding as required by the former section may have been prejudicial to petitioner considering the specified duties of the district attorney general. Brown v. State, 1 Tenn. Crim. App. 462, 445 S.W.2d 669, 1969 Tenn. Crim. App. LEXIS 335 (Tenn. Crim. App. 1969).

3. Pleadings.

State's motion to dismiss petition for post-conviction relief was not improper for alleging facts not contained in original petition since attorney general is authorized to file responsive pleadings and records and transcripts relating to the questions raised in the petition. Guy v. State, 4 Tenn. Crim. App. 218, 470 S.W.2d 28, 1971 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 1971).

It was not error for the court to consider the state's answer to the post-conviction petition after petitioner's charge of untimeliness where there was nothing in the record to indicate when the state received timely notice of the petition. State v. Higgins, 729 S.W.2d 288, 1987 Tenn. Crim. App. LEXIS 2090 (Tenn. Ct. App. 1987).

4. Habeas Corpus Cases — Requirement.

While it is required in habeas corpus cases that the respondent show by what authority the petitioner is being held, the same requirement is not a part of the Post-Conviction Procedure Law. Hughes v. State, 2 Tenn. Crim. App. 71, 451 S.W.2d 696, 1969 Tenn. Crim. App. LEXIS 306 (Tenn. Crim. App. 1969).

Requirements as to state's answer in petition for post-conviction relief is governed by this section rather than by the provisions of § 29-21-116 relating to answers in habeas corpus proceedings. Doyle v. State, 3 Tenn. Crim. App. 171, 458 S.W.2d 637, 1970 Tenn. Crim. App. LEXIS 453 (Tenn. Crim. App. 1970); Phillips v. State, 3 Tenn. Crim. App. 184, 458 S.W.2d 642, 1970 Tenn. Crim. App. LEXIS 455 (Tenn. Crim. App. 1970).

The allegation that the trial court failed to advise the petitioner of his right against self-incrimination and that the trial court failed to determine that the plea was knowing and voluntary if supported by evidence, is sufficient to shift the burden of going forward to the state; it does not, ipso facto, entitle the petitioner to relief. The state may rebut the allegation with proof of substantial compliance with the advice requirement, which would show that the petitioner was made aware of his constitutional rights, or the state alternatively may show that the petitioner was aware of his constitutional rights and that therefore the trial court's failure to give the mandated advice was harmless error. Johnson v. State, 834 S.W.2d 922, 1992 Tenn. LEXIS 365 (Tenn. 1992).

Even though the trial court did not advise the petitioner of the right against self-incrimination, where the guilty plea accepted by the trial court was knowing and voluntary the petitioner was not entitled to have the conviction vacated. Johnson v. State, 834 S.W.2d 922, 1992 Tenn. LEXIS 365 (Tenn. 1992).

40-30-109. Prehearing procedure.

The court shall review the case after the district attorney general's response is filed. If, on reviewing the petition, the response, files, and records, the court determines conclusively that the petitioner is entitled to no relief, the court shall dismiss the petition. The order of dismissal shall set forth the court's conclusions of law. If the court does not dismiss the petition, the court shall enter an order setting an evidentiary hearing. The order of dismissal or the order setting an evidentiary hearing shall be entered no later than thirty (30) days after the filing of the state's response. The evidentiary hearing shall be within four (4) calendar months of the entry of the court's order. The deadline shall not be extended by agreement, and the deadline may be extended only by order of the court based upon a finding that unforeseeable circumstances render a continuance a manifest necessity. An extension shall not exceed sixty (60) days.
Discovery is not available in a proceeding under this section except as provided under Rule 16 of the Tennessee Rules of Criminal Procedure.
The petitioner may withdraw a petition at any time prior to the hearing without prejudice to any rights to refile, but the withdrawn petition shall not toll the statute of limitations set forth in § 40-30-102.

Acts 1995, ch. 207, § 1; T.C.A. § 40-30-209.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 39.

Law Reviews.

Adjudicating Claims of Innocence for the Capitally Condemned in Tennessee: Embracing a Truth Forum (Dwight Aarons), 76 Tenn. L. Rev. 511 (2009).

Post-Conviction Relief in Tennessee — Fourteen Years of Judicial Administration Under the Post-Conviction Procedure Act (Gary L. Anderson), 48 Tenn. L. Rev. 605 (1981).

NOTES TO DECISIONS

1. Evidentiary Hearing.

Post-conviction court found that post-conviction counsel had failed to allege any circumstances that would make a continuance a manifest necessity; nevertheless, the post-conviction court rescheduled the hearing, and there was no abuse of discretion. Stewart v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 339 (Tenn. Crim. App. May 5, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 568 (Tenn. Aug. 18, 2016).

Post-conviction court did not abuse its discretion in denying defendant another continuance for the purpose of calling an expert witness or violate defendant's due process rights by refusing to give defendant another opportunity because three of the four evidentiary hearings that were held included the presentation of testimony and evidence; he could have called a domestic violence expert at any of the first three hearings of his choosing, but he chose not to; only at the conclusion of the third hearing did defendant request a continuance to call a domestic violence expert; and defendant's request was denied as he had plenty of opportunities at the prior hearings over the course of almost a year to call such a witness. Davis v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 562 (Tenn. Crim. App. July 26, 2018).

In a case in which defendant obtained an agreed order stating that counsel had provided ineffective assistance in drafting the certified questions, his judgments of conviction were vacated, and he was allowed to withdraw his guilty plea, and his guilty plea to the same offenses was accepted, with defendant reserving two new certified questions of law, because the post-conviction procedures and law requiring the setting of an evidentiary hearing, defendant to prove the allegations of fact by clear and convincing evidence, and him to establish that defense counsel's performance was both deficient and prejudicial were not followed before the new certified questions were reserved, and he could not establish prejudice, his appeal was dismissed. State v. Forest, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 660 (Tenn. Crim. App. Aug. 27, 2018).

Post-conviction court never conducted an evidentiary hearing on the issues raised in the post-conviction petition, and instead, the court entered an order granting a delayed appeal but did not include a statement that the court was staying the proceedings on petitioner's remaining claim; the post-conviction court should have followed the procedure outlined in T.C.A. § 40-30-113(a)(3), which authorized petitioner to file a proper motion for new trial within 30 days, and remand for a full hearing was ordered. Rogers v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 858 (Tenn. Crim. App. Nov. 20, 2018).

Defendant's petition for post-conviction relief was properly denied as defendant's claim that the post-conviction court did not enter an order setting his evidentiary hearing failed because the record showed that defendant was informed of the hearing date, requested that he represent himself, and was prepared to present proof the day of the post-conviction hearing. Steed v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 21 (Tenn. Crim. App. Jan. 11, 2019).

2. Timeliness.

Although inmate claimed that he was constrained in his state postconviction proceedings by state trial court's failure to provide funding and adequate time for preparation, T.C.A. § 40-30-109 provided for discovery in postconviction proceedings, and pursuant to T.C.A. 29-21-121(a) the inmate could have petitioned the state trial court to issue subpoenas; moreover, certain FBI records relating to inmate's conviction were subject to disclosure under the Freedom of Information Act, 5 U.S.C. § 552. Hodges v. Bell, 548 F. Supp. 2d 485, 2008 U.S. Dist. LEXIS 25780 (M.D. Tenn. Mar. 27, 2008), aff'd, Hodges v. Colson, 711 F.3d 589, 2013 FED App. 75P, 2013 U.S. App. LEXIS 6050 (6th Cir. Mar. 26, 2013).

3. Discovery.

Post-conviction court erred in denying defendant's request for discovery materials from the State because, while it properly found that the State had an affirmative duty to provide discovery materials to defendant as part of the post-conviction proceeding, it erred in categorically concluding, without any apparent review or analysis of the relationship between the various disclosures, that none of the materials subject to disclosure were relevant to the claims raised in the original petition for post-conviction relief, and it was not clear whether the court applied the appropriate standard of leniency when reviewing the claims made in the initial, pro se petition or whether the court applied the appropriate standard of relevancy. Bennett v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 65 (Tenn. Crim. App. Jan. 29, 2018).

Read together, the plain language of T.C.A. § 40-30-109 and Tenn. Sup. Ct. R. 28 clearly imposes upon the State an affirmative duty to provide discovery materials to the petitioner as part of the post-conviction proceeding. Nothing in either the statute or the rule suggests that the State fulfills its obligations in the post-conviction proceeding by disclosures that occurred prior to the commencement of the post-conviction proceeding. Johnson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 369 (Tenn. Crim. App. May 14, 2018).

Decisions Under Prior Law

1. Construction with Other Sections.

Former §§ 40-30-109 and 40-30-110 [repealed], when construed in pari materia, show a clearly ascertainable legislative intent that the trial court may dismiss a post-conviction petition without a hearing when the files and records conclusively show that petitioner is entitled to no relief. Stokely v. State, 4 Tenn. Crim. App. 241, 470 S.W.2d 37, 1971 Tenn. Crim. App. LEXIS 397 (Tenn. Crim. App. 1971).

The enormous burden imposed on the trial judge by this section required great caution in the exercise of those functions and that section should have been considered in complete correlation with the provisions of former §§ 40-30-107 and 40-30-115 [repealed]. Cureton v. Tollett, 477 S.W.2d 233, 1971 Tenn. Crim. App. LEXIS 460 (Tenn. Crim. App. 1971).

The former section and Tenn. Sup. Ct. R. 28, not the Public Records Act, governed discovery in inmate's post-petition appeal. Waller v. Bryan, 16 S.W.3d 770, 1999 Tenn. App. LEXIS 698 (Tenn. Ct. App. 1999), review or rehearing denied, — S.W.3d —, 2000 Tenn. LEXIS 234 (Tenn. Apr. 17, 2000).

2. Evidentiary Hearing.

The necessity of an evidentiary hearing must be determined by viewing as true all well-pleaded allegations of fact. Bland v. State, 2 Tenn. Crim. App. 77, 451 S.W.2d 699, 1969 Tenn. Crim. App. LEXIS 307 (Tenn. Crim. App. 1969); Skinner v. State, 4 Tenn. Crim. App. 447, 472 S.W.2d 903, 1971 Tenn. Crim. App. LEXIS 509 (Tenn. Crim. App. 1971).

At the evidentiary hearing the petitioner will not be allowed to raise issues not charged in the petition or amended petition. Long v. State, 510 S.W.2d 83, 1974 Tenn. Crim. App. LEXIS 295 (Tenn. Crim. App. 1974).

3. —Required.

A petition alleging sufficient facts to establish that petitioner's conviction was void because of alleged denial of constitutional rights, state or federal, necessitates a trial of those facts. Moran v. State, 3 Tenn. Crim. App. 118, 457 S.W.2d 886, 1970 Tenn. Crim. App. LEXIS 380 (Tenn. Crim. App. 1970).

Where petition presented issues of fact as to whether or not petitioner's pleas were knowingly and understandingly entered and as to whether his attorney suppressed facts and secreted witnesses favorable to petitioner, petitioner was entitled to an evidentiary hearing however unlikely it might be that the allegations were true. Skinner v. State, 4 Tenn. Crim. App. 447, 472 S.W.2d 903, 1971 Tenn. Crim. App. LEXIS 509 (Tenn. Crim. App. 1971).

The Tennessee Post-Conviction Procedure Act contemplates an evidentiary hearing except in those cases where a competently drafted petition and all pleadings, files and records of the case conclusively show that the petitioner is entitled to no relief. Baxter v. Rose, 523 S.W.2d 930, 1975 Tenn. LEXIS 605 (Tenn. 1975).

4. —Dismissal Without.

It is doubtful that an evidentiary hearing is necessary where the allegations of the petition if true, do not result in a constitutional deprivation. State ex rel. Fields v. Henderson, 1 Tenn. Crim. App. 443, 443 S.W.2d 837, 1969 Tenn. Crim. App. LEXIS 333 (Tenn. Crim. App. 1969).

Unsupported conclusory allegations in petition do not justify or require an evidentiary hearing. Jones v. State, 2 Tenn. Crim. App. 152, 452 S.W.2d 361, 1969 Tenn. Crim. App. LEXIS 312 (Tenn. Crim. App. 1969); Burt v. State, 2 Tenn. Crim. App. 408, 454 S.W.2d 182, 1970 Tenn. Crim. App. LEXIS 483 (Tenn. Crim. App. 1970); Monts v. State, 2 Tenn. Crim. App. 586, 455 S.W.2d 627, 1970 Tenn. Crim. App. LEXIS 491 (Tenn. Crim. App. 1970); Frazier v. State, 480 S.W.2d 551, 1972 Tenn. Crim. App. LEXIS 323 (Tenn. Crim. App. 1972); Gant v. State, 507 S.W.2d 133, 1973 Tenn. Crim. App. LEXIS 219 (Tenn. Crim. App. 1973).

Where the petition and all the files, pleadings and records which were before court showed that petitioner was not entitled to relief because of asserted ineffectiveness of retained counsel, petition was properly dismissed without evidentiary hearing. Carvin v. State, 2 Tenn. Crim. App. 220, 452 S.W.2d 681, 1970 Tenn. Crim. App. LEXIS 418 (Tenn. Crim. App. 1970).

Where petition conclusively showed that petitioner was entitled to no relief, petition was properly dismissed without an evidentiary hearing. Porter v. State, 2 Tenn. Crim. App. 437, 455 S.W.2d 159, 1970 Tenn. Crim. App. LEXIS 425 (Tenn. Crim. App. 1970); Blankenship v. State, 4 Tenn. Crim. App. 158, 469 S.W.2d 530, 1971 Tenn. Crim. App. LEXIS 493 (Tenn. Crim. App. 1971); Guy v. State, 4 Tenn. Crim. App. 218, 470 S.W.2d 28, 1971 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 1971); Miller v. State, 508 S.W.2d 804, 1973 Tenn. Crim. App. LEXIS 217 (Tenn. Crim. App. 1973); Long v. State, 510 S.W.2d 83, 1974 Tenn. Crim. App. LEXIS 295 (Tenn. Crim. App. 1974); Trigg v. State, 523 S.W.2d 375, 1975 Tenn. Crim. App. LEXIS 295 (Tenn. Crim. App. 1975); State v. Wallace, 604 S.W.2d 890, 1980 Tenn. Crim. App. LEXIS 296 (Tenn. Crim. App. 1980).

Allegation of prejudice resulting from exclusion from jury of persons opposed to the death penalty did not require an evidentiary hearing where the applicant in fact did not receive the death penalty. Monts v. State, 2 Tenn. Crim. App. 586, 455 S.W.2d 627, 1970 Tenn. Crim. App. LEXIS 491 (Tenn. Crim. App. 1970).

Petition for post-conviction relief may be dismissed without hearing or appointment of counsel where petition on its face shows no constitutional abridgement. Crumley v. Tollett, 4 Tenn. Crim. App. 495, 474 S.W.2d 148, 1971 Tenn. Crim. App. LEXIS 513 (Tenn. Crim. App. 1971); Cureton v. Tollett, 477 S.W.2d 233, 1971 Tenn. Crim. App. LEXIS 460 (Tenn. Crim. App. 1971); Hill v. State, 478 S.W.2d 923, 1971 Tenn. Crim. App. LEXIS 480 (Tenn. Crim. App. 1971); Arthur v. State, 483 S.W.2d 95, 1972 Tenn. LEXIS 362 (Tenn. 1972).

Trial court properly dismissed petition for post-conviction relief without hearing, as the grounds upon which petition was based had been adjudicated previously by the court of criminal appeals or the supreme court. Fuller v. State, 4 Tenn. Crim. App. 625, 475 S.W.2d 188, 1971 Tenn. Crim. App. LEXIS 516 (Tenn. Crim. App. 1971).

Where a post-conviction petition stated no ground for relief as set out in former § 40-30-105 [repealed] or stated only grounds that had previously been determined as defined in former § 41-30-112 [repealed], it might properly have been summarily dismissed without an evidentiary hearing. Sloan v. State, 477 S.W.2d 219, 1971 Tenn. Crim. App. LEXIS 453 (Tenn. Crim. App. 1971).

A habeas corpus or post-conviction petition which charges no constitutional infirmity in petitioner's conviction or sentence does not entitle him to any relief and may be dismissed by the court without an evidentiary hearing. Gant v. State, 507 S.W.2d 133, 1973 Tenn. Crim. App. LEXIS 219 (Tenn. Crim. App. 1973).

Where a petition conclusively shows that the petitioner is entitled to no relief, it is properly dismissed without the appointment of counsel and without an evidentiary hearing. Givens v. State, 702 S.W.2d 578, 1985 Tenn. Crim. App. LEXIS 3202 (Tenn. Crim. App. 1985).

5. — —Appointment of Counsel.

Where petition for post-conviction relief was in proper form and its substance did not create an issue calling for an evidentiary hearing, trial court was not under duty to appoint counsel for petitioner. Crumley v. Tollett, 4 Tenn. Crim. App. 495, 474 S.W.2d 148, 1971 Tenn. Crim. App. LEXIS 513 (Tenn. Crim. App. 1971).

Appointment of counsel or a hearing is necessarily required in every case. When a colorable claim for relief has been presented, a hearing may not be necessary after the petitioner has had the assistance of counsel to amend the petition, by which the court may then fully evaluate the merits of the claim. Swanson v. State, 749 S.W.2d 731, 1988 Tenn. LEXIS 70 (Tenn. 1988).

6. — —Presence of Petitioner.

The Post-Conviction Procedure Act did not require that petitioner be returned to county of conviction to confer with counsel about possible amendments to petition prior to its dismissal where the grounds of the petition were clearly stated and had no merit. Burt v. State, 2 Tenn. Crim. App. 408, 454 S.W.2d 182, 1970 Tenn. Crim. App. LEXIS 483 (Tenn. Crim. App. 1970); Phillips v. State, 3 Tenn. Crim. App. 184, 458 S.W.2d 642, 1970 Tenn. Crim. App. LEXIS 455 (Tenn. Crim. App. 1970).

The presence of the petitioner is not required for the trial judge to dismiss the petition. Monts v. State, 2 Tenn. Crim. App. 586, 455 S.W.2d 627, 1970 Tenn. Crim. App. LEXIS 491 (Tenn. Crim. App. 1970).

7. — —Order of Dismissal.

Where trial judge dismisses petition for post-conviction relief without a hearing, there is no evidence upon which to make findings of fact but his order should show all grounds presented and his conclusion with regard to each of them. Guy v. State, 4 Tenn. Crim. App. 218, 470 S.W.2d 28, 1971 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 1971).

8. Prompt Hearing.

Provision of the former section that trial court shall grant a hearing as soon as practicable does not mean that the court must stop all other proceedings and vacate the rest of its hearings or defer all of its pending business pending the hearing of such a petition. Luallen v. State, 2 Tenn. Crim. App. 329, 453 S.W.2d 453, 1969 Tenn. Crim. App. LEXIS 321 (Tenn. Crim. App. 1969).

Where delay in hearing petition was predicated upon the difficulty in finding a judge in the district who was competent to hear petition and trial court found the delay was not unreasonable, petitioner was not entitled to discharge from custody because of unreasonable delay in being granted hearing. Johnson v. Russell, 4 Tenn. Crim. App. 113, 469 S.W.2d 511, 1971 Tenn. Crim. App. LEXIS 489 (Tenn. Crim. App. 1971).

Habeas corpus petition in federal district court was dismissed where two-year delay of post-conviction petition in state court was caused by refractory attitude of petitioner with counsel appointed by state court for him as an indigent. Kruse v. Lack, 634 F. Supp. 50, 1985 U.S. Dist. LEXIS 15167 (M.D. Tenn. 1985).

9. Burden of Proof.

The burden is on the petitioner to prove his allegations attacking the validity of his conviction. Long v. State, 510 S.W.2d 83, 1974 Tenn. Crim. App. LEXIS 295 (Tenn. Crim. App. 1974).

10. Review of Facts.

Findings of fact by the trial court are conclusive unless the evidence preponderates against the trial court's judgment. Long v. State, 510 S.W.2d 83, 1974 Tenn. Crim. App. LEXIS 295 (Tenn. Crim. App. 1974); Clenny v. State, 576 S.W.2d 12, 1978 Tenn. Crim. App. LEXIS 336 (Tenn. Crim. App. 1978), cert. denied, Clenny v. Tennessee, 441 U.S. 947, 99 S. Ct. 2170, 60 L. Ed. 2d 1050, 1979 U.S. LEXIS 1870 (1979).

11. Error to Dismiss Petition.

It was error for the trial judge to dismiss an inartfully drawn petition drafted without the benefit of counsel; the former section required that petitions be competently drafted, and the judge should have allowed the petitioner, with the aid of counsel, to file an amended petition. Mayes v. State, 671 S.W.2d 857, 1984 Tenn. Crim. App. LEXIS 2352 (Tenn. Crim. App. 1984).

12. Stay of Proceedings.

In cases where a post-conviction proceeding is pending which mounts a collateral attack on an habitual criminal conviction on the basis of the invalidity of one or more prior guilty plea convictions, the proceedings will be stayed to give the defendant an opportunity to test the constitutional validity of those prior convictions in the court where they occurred. State v. Prince, 781 S.W.2d 846, 1989 Tenn. LEXIS 529 (Tenn. 1989).

13. Proper Forum.

Where guilty plea convictions and habitual criminal conviction took place in the same forum, judicial economy was best served by requiring post-conviction petition attacking enhanced sentence on basis of invalid prior convictions to be filed, consolidated and heard in the same court, at the same time. State v. Prince, 781 S.W.2d 846, 1989 Tenn. LEXIS 529 (Tenn. 1989).

14. Construction with Other Sections.

The enormous burden imposed on the trial judge by former § 40-30-109 [repealed] required great caution in the exercise of those functions and that section should have been considered in complete correlation with the provisions of this section and former § 40-30-107 [repealed]. Cureton v. Tollett, 477 S.W.2d 233, 1971 Tenn. Crim. App. LEXIS 460 (Tenn. Crim. App. 1971).

15. Appointment of Counsel.

16. Voluntary Withdrawal of Waiver.

There is no waiver where a defendant is permitted to withdraw a post-conviction petition before it is heard on the merits. Williams v. State, 831 S.W.2d 281, 1992 Tenn. LEXIS 339 (Tenn. 1992).

A defendant who, with leave of court, voluntarily withdraws a post-conviction petition may later reinstitute that petition or substitute a new petition for it, without fear of being denied adjudication on the merits. Williams v. State, 831 S.W.2d 281, 1992 Tenn. LEXIS 339 (Tenn. 1992).

17. Dismissal with Prejudice.

Under the now repealed §§ 40-30-101 et seq., the dismissal with prejudice of a post-conviction petition will bar any subsequent petition for post-conviction relief predicated on grounds in existence prior to the dismissal. Cazes v. State, 980 S.W.2d 364, 1998 Tenn. LEXIS 604 (Tenn. 1998).

40-30-110. Hearing.

The petitioner shall appear and give testimony at the evidentiary hearing if the petition raises substantial questions of fact as to events in which the petitioner participated, unless the petitioner is incarcerated out of state, in which case the trial judge may permit the introduction of an affidavit or deposition of the petitioner and shall permit the state adequate time to file any affidavits or depositions in response the state may wish.
1. If the petitioner is imprisoned, the warden shall arrange for transportation of the petitioner to and from the court upon proper orders issued by the trial judge.
2. The sheriff of the county where the proceeding is pending shall have the authority to receive and transport the petitioner to and from the penitentiary and the court, if the court so orders or if for any reason the warden is unable to transport the petitioner. The sheriff shall be entitled to the same costs allowed for the transportation of prisoners as is provided in criminal cases upon the presentation of the account certified by the judge and district attorney general.
Proof upon the petitioner's claim or claims for relief shall be limited to evidence of the allegations of fact in the petition.
All evidentiary hearings shall be recorded.
The Tennessee Rules of Evidence shall apply except as otherwise required in this part.
The petitioner shall have the burden of proving the allegations of fact by clear and convincing evidence. There is a rebuttable presumption that a ground for relief not raised before a court of competent jurisdiction in which the ground could have been presented is waived.

Acts 1995, ch. 207, § 1; T.C.A. § 40-30-210.

Cross-References. Transportation of prisoner by sheriff, § 8-26-108.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 23.50.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 39.

Law Reviews.

Adjudicating Claims of Innocence for the Capitally Condemned in Tennessee: Embracing a Truth Forum (Dwight Aarons), 76 Tenn. L. Rev. 511 (2009).

Appellate and Post Conviction Relief in Tennessee (Ronald W. Eades), 5 Mem. St. U.L. Rev. 1.

Recent Developments in Tennessee and Federal Procedure (Donald F. Paine), 36 Tenn. L. Rev. 276 (1969).

NOTES TO DECISIONS

1. Guilty Plea.

Defendant's request for post-conviction relief was properly denied because defendant's assertion that his guilty pleas were entered into as a result of trickery on the part of his attorney lacked proof as defendant's guilty pleas were knowingly and voluntarily entered because the trial court made an implicit credibility determination that defendant's testimony at the guilty plea submission hearing was more credible than his conflicting testimony at the post-conviction hearing; and, during the guilty plea colloquy, defendant was advised of his rights to a jury trial, and the details of the pleas were discussed, including ranges of punishment and possibly exposure. Holloway v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 922 (Tenn. Crim. App. Dec. 9, 2016).

Defendant's petition for post-conviction relief alleging that his guilty pleas were involuntary was properly denied as he was not forced to enter blind pleas to all of the charges because the guilty plea hearing transcript showed that the trial court advised defendant about his rights, thoroughly questioned him about his pleas, and advised him about the charges and potential punishments; the court repeatedly asked defendant if he understood, and he said yes; defendant stated that he was not being forced or pressured to enter his pleas; and second counsel testified at the evidentiary hearing that defendant wanted to plead guilty rather than go to trial and that defendant even wrote to the State to request a plea bargain. Dotson v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 938 (Tenn. Crim. App. Dec. 15, 2016).

Defendant entered guilty pleas knowingly and voluntarily because counsel advised defendant on the elements of the charges and potential sentences, and, despite defendant's ninth-grade education and learning disability, the post-conviction court found that defendant seemed to be asking the correct questions of counsel, was sharp and alert to the concept of criminal responsibility, and was familiar with criminal proceedings having pleaded guilty to other offenses. Defendant also testified that it was in defendant's best interest to plead guilty. Green v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 594 (Tenn. Crim. App. July 7, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 785 (Tenn. Nov. 16, 2017).

Defendant was not entitled to post-conviction relief because the post-conviction court found that defendant pleaded guilty voluntarily in that defendant made no complaints at the plea hearing as defendant acknowledged at the evidentiary hearing that defendant received the minimum sentences possible and that the pleas were in defendant's best interest. Perry v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 150 (Tenn. Crim. App. Feb. 26, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 336 (Tenn. June 8, 2018).

Record supported the post-conviction court's determination that petitioner entered knowing, intelligent, and voluntary guilty pleas, The guilty plea hearing transcript reflected that petitioner was asked whether he was freely and voluntarily pleading guilty and that petitioner responded in the affirmative. Tate v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 617 (Tenn. Crim. App. Aug. 15, 2018).

Post-conviction court afforded petitioner a full hearing on whether he entered his guilty plea knowingly and voluntarily and found that counsel did not coerce him into pleading guilty; as petitioner failed to show that the trial court would have granted his motion to withdraw his plea, he failed to demonstrate prejudice, and the post-conviction court properly denied his petition for post-conviction relief. Phillips v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 703 (Tenn. Crim. App. Sept. 17, 2018).

Defendant failed to show entitlement to post-conviction relief because defendant's plea was knowing and voluntary as defendant graduated from high school and was able to read and admitted to the trial court that defendant was familiar with the plea process having entered guilty pleas in the past, trial counsel met with defendant and discussed plea negotiations as well as the likelihood of success at trial, and trial counsel and the trial court adequately advised defendant of the nature of the plea. Al-Khafajy v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 746 (Tenn. Crim. App. Oct. 2, 2018).

Evidence indicated that an assistant attorney general extended a plea offer to petitioner and his co-defendants expressly conditioned upon all three men accepting the offer. It was entirely reasonable for the assistant attorney general to interpret the actions of a co-defendant's counsel as a repudiation of the offer and to then withdraw it. Alston v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 865 (Tenn. Crim. App. Nov. 27, 2018).

Defendant did not prove that defendant's pleas were rendered involuntary by defendant's awareness of defendant's potential sentencing exposure and by defendant having possibly damaged defendant's working relationship with defendant's counsel by threatening to assault counsel. Moreover, defendant's testimony at the plea hearing affirmed that defendant understood the charges, had discussed the case and the plea offer with defendant's attorney, and had voluntarily made the decision to plead guilty. Wade v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 132 (Tenn. Crim. App. Feb. 21, 2020).

2. Petitioner's Presence at Hearing.

Absent some appropriate justification for removal, a petitioner appearing at an evidentiary hearing should be allowed to remain present through the remainder of the presentation of evidence. Scott v. State, 936 S.W.2d 271, 1996 Tenn. Crim. App. LEXIS 487 (Tenn. Crim. App. 1996).

Error in the removal of a petitioner from a hearing was deemed harmless where there was no showing of any specific failure, weakness, or other prejudice to his case. Scott v. State, 936 S.W.2d 271, 1996 Tenn. Crim. App. LEXIS 487 (Tenn. Crim. App. 1996).

Petitioner complained about trial counsel's failure to provide an alibi witness at trial, which was a substantial question of fact as to events in which petitioner participated, for purposes of T.C.A. § 40-30-110(a); however, petitioner was required to appear and testify at the hearing, and by failing to testify or present any evidence at the hearing with regard to the alibi witness, petitioner failed to satisfy his burden. Heath v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 684 (Tenn. Crim. App. Aug. 7, 2017).

3. Burden of Proof.

Post-conviction relief petitioner proved allegations that his trial judge solicited a bribe from him by a preponderance of the evidence where witnesses and other evidence corroborated petitioner's conversations with court officer and telephone calls from and to judge and the only direct evidence that judge and his court officer had not solicited a bribe was court officer's testimony which was replete with false representations. State v. Benson, 973 S.W.2d 202, 1998 Tenn. LEXIS 297 (Tenn. 1998).

Evidence is clear and convincing when there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence. Hicks v. State, 983 S.W.2d 240, 1998 Tenn. Crim. App. LEXIS 416 (Tenn. Crim. App. 1998), review or rehearing denied, — S.W.3d —, 1998 Tenn. LEXIS 653 (Tenn. 1998).

Defendant failed to establish that his trial counsel was ineffective in setting out the range of punishment for the offense charged, when the conspiracy to which defendant pled guilty, delivery of over 300 pounds of marijuana, continued beyond the effective date of the statute designating the offense as a Class A felony, T.C.A. § 39-17-417(j)(13), and defendant could properly be convicted of a Class A felony without violating the ex post facto provisions of U.S. Const. art. I, § 10, cl. 1, Tenn. Const. art. I, § 11, and T.C.A. § 39-11-112. Agee v. State, 111 S.W.3d 571, 2003 Tenn. Crim. App. LEXIS 7 (Tenn. Crim. App. 2003), appeal denied, — S.W.3d —, 2003 Tenn. LEXIS 331 (Tenn. Apr. 28, 2003).

Denial of petitioner's, an inmate's, petition for post conviction relief was appropriate because he failed to prove that he received the ineffective assistance of counsel. The inmate did not meet his burden under T.C.A. § 40-30-110(f) of proving that had the jury heard testimony about the inmate's chronic alcoholism, that it would not have found him guilty of premeditated murder. Keough v. State, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 549 (Tenn. Crim. App. June 30, 2010), vacated, 356 S.W.3d 366, 2011 Tenn. LEXIS 1140 (Tenn. Dec. 9, 2011).

Defendant was not entitled to post-conviction relief because defendant failed to prove by clear and convincing evidence defendant's claims that the State of Tennessee failed to make a proper election of offenses at trial; that defendant's convictions for both for aggravated sexual battery and rape of a child violated double jeopardy, and that defendant's conviction for aggravated sexual battery violated due process. Croom v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 130 (Tenn. Crim. App. Feb. 19, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 442 (Tenn. June 24, 2016).

Petitioner, who appealed the denial of her petition for post-conviction relief, failed to prove by clear and convincing evidence her claim that she was not competent to waive her rights because she was suffering from postpartum depression at the time of her police interviews. Furthermore, trial counsel's decision to not challenge the admissibility of petitioner's statements was a reasonable strategic decision. McCollum v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 820 (Tenn. Crim. App. Nov. 5, 2018).

Due process considerations did not require tolling of the statute of limitations for defendant's petition for post-conviction relief because defendant did not establish incompetence, by clear and convincing evidence, due to defendant's learning disability and it was defendant's choice not to engage with the clerk in the law library or any other inmate or person who could help defendant with defendant's case. Delk v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 102 (Tenn. Crim. App. Feb. 19, 2020).

Even without trial counsel's testimony at the post-conviction evidentiary hearing to contradict petitioner's claims, petitioner failed to establish by clear and convincing evidence that he was entitled to post-conviction relief. Accordingly, a second evidentiary hearing was not necessary. Snipes v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 256 (Tenn. Crim. App. Apr. 16, 2020).

4. Evidence.

Courts properly found defendant competent because the courts in the three cases issued comprehensive orders summarizing the evidence presented at the two evidentiary hearings, including the various reports of the expert witnesses as well as the other exhibits introduced. The courts concluded that defendant was competent to manage his personal affairs and to understand his legal rights and liabilities. Reid v. State, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 605 (Tenn. Crim. App. Aug. 8, 2011), aff'd, Reid ex rel. Martiniano v. State, 396 S.W.3d 478, 2013 Tenn. LEXIS 84 (Tenn. Jan. 24, 2013).

5. Waiver of Ground for Relief.

In post-conviction appeal, state's argument that the issue of improper influence on the jury was waived by petitioner due to his failure to raise it during his direct appeals was not preserved for appeal because the state did not assert the defense of waiver at the post-conviction hearing; therefore, the state could not assert the defense for the first time on appeal. Walsh v. State, 166 S.W.3d 641, 2005 Tenn. LEXIS 581 (Tenn. 2005).

Petitioner has waived his argument that the statute was vague and overbroad because he failed to raise it in his petition for post-conviction relief; counsel was not ineffective for failing to receive a ruling on constitutional issues surrounding the statute and preserve the issues, as counsel raised the issue on direct appeal that the petitioner lacked knowledge of the victims' mental impairment, plus counsel made a constitutional claim on direct appeal, and thus petitioner failed to prove that counsel performed deficiently or that any deficiency caused him prejudice. Haynes v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 147 (Tenn. Crim. App. Feb. 26, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 433 (Tenn. June 24, 2016).

Petitioner waived consideration of an issue on appeal because the issue was not included in the petition for post-conviction relief or the amended petition. Askew v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 306 (Tenn. Crim. App. Apr. 26, 2016).

Petitioner claimed that counsel was ineffective, but because the appellate record did not contain a transcript of the post-conviction evidentiary hearing, petitioner waived consideration of his claim; the court assumed that the findings and conclusions of the post-conviction court with respect to petitioner's allegations were correct, and thus the denial of the petition for post-conviction relief was affirmed. Parker v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 327 (Tenn. Crim. App. Apr. 28, 2016).

Post-conviction court properly denied defendant's petition for relief because, although the petition included a general claim of counsel's failure to investigate the case, defendant technically waived consideration of the precise issue presented inasmuch as the issue of the lack of gunshot residue testing was not developed in any meaningful way, and at least six people testified at trial that defendant had a gun when the shooting occurred. Polk v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 111 (Tenn. Crim. App. Feb. 15, 2019).

6. Denial of Relief.

Petitioner, who had waived counsel at trial, was not entitled to post-conviction relief. Given petitioner's history of waiving his right to counsel, the trial court would have had no reason to treat his statement that he would be representing himself on appeal with skepticism or concern. Anderson v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 20 (Tenn. Crim. App. Jan. 12, 2016).

Regarding petitioner's argument that he was entitled to post-conviction relief because the trial court failed to appoint counsel to represent him on direct appeal, petitioner did not point to a single concrete issue, even with the assistance of post-conviction counsel, that turned upon his having counsel on direct appeal to prevail. Anderson v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 20 (Tenn. Crim. App. Jan. 12, 2016).

7. Ineffective Assistance of Counsel.

Denial of petitioner's, an inmate's, motion for post-conviction relief relative to his death sentence for victim two's murder was inappropriate because the post-conviction court erred in denying the inmate's claim that his trial attorneys provided ineffective assistance in their investigation and presentation of available evidence in support of their motion to recuse the 1995 resentencing judge, T.C.A. § 40-30-110(f). Smith v. State, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 793 (Tenn. Crim. App. Sept. 21, 2010), rehearing denied, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 914 (Tenn. Crim. App. Oct. 11, 2010), aff'd in part and vacated in part, 357 S.W.3d 322, 2011 Tenn. LEXIS 1152 (Tenn. Dec. 19, 2011).

Trial counsel was not ineffective for failing to present evidence that the methods by which the State's expert witness reached a conclusion of arson had been discredited by the scientific community, as the scientific understanding of burn patterns was evolving and unsettled and the scientific developments that petitioner cited did not necessarily exclude the possibility that the expert could have reached the conclusion of arson using the expert's methods. Garrett v. State, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 700 (Tenn. Crim. App. Sept. 5, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 205 (Tenn. Feb. 25, 2013), dismissed, Garrett v. Carpenter, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 37123 (M.D. Tenn. Mar. 21, 2016).

Trial counsel did not render ineffective assistance of counsel by failing to call a witness and post-conviction relief was improper, as trial counsel investigated the witness and made the informed decision that the witness's testimony would be detrimental; if counsel had called the witness, the State would have been able to question the witness extensively and develop evidence of petitioner's premeditation. Bond v. State, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 684 (Tenn. Crim. App. Aug. 31, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 97 (Tenn. Jan. 22, 2013), dismissed, Bond v. Sexton, — F. Supp. 2d —, 2014 U.S. Dist. LEXIS 11613 (M.D. Tenn. Jan. 30, 2014).

Petitioner failed to establish that counsel's performance was deficient or that the voluntariness of petitioner's guilty plea was affected by counsel's actions, as the transcript of the guilty plea hearing reflected that the trial court discussed the ramifications of the guilty plea with petitioner, and petitioner was thoroughly questioned by the trial court to ascertain whether petitioner understood the effects of the plea. Norwood v. State, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 221 (Tenn. Crim. App. Mar. 13, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 574 (Tenn. June 13, 2013), dismissed, Norwood v. Lebo, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 100011 (W.D. Tenn. Aug. 1, 2016).

Trial counsel's deficient performance in failing to adduce expert proof about a faulty trigger mechanism in a rifle was prejudicial to the defense and entitled petitioner to post-conviction relief, as the jury was deprived by counsel's deficient performance of substantive evidence concerning a police officer's initial explanations of how the officer came to be shot by the rifle; this proof was critical to the theory of the defense. Kendrick v. State, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 539 (Tenn. Crim. App. June 27, 2013), rev'd, 454 S.W.3d 450, 2015 Tenn. LEXIS 9 (Tenn. Jan. 16, 2015).

Post-conviction relief was improper as counsel was not ineffective for failing to meet with petitioner; counsel met with petitioner four times at petitioner's place of incarceration and multiple times during court appearances, and during these meetings counsel reviewed the discovery with petitioner and discussed weaknesses in the case. White v. State, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 708 (Tenn. Crim. App. Aug. 21, 2013), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 345 (Tenn. Apr. 10, 2014), dismissed, White v. Johnson, — F. Supp. 2d —, 2014 U.S. Dist. LEXIS 136149 (M.D. Tenn. Sept. 26, 2014).

Petitioner failed to prove that he received ineffective assistance of counsel due to trial counsel's failure to preserve photographs trial counsel took of him after his arrest because the trial court implicitly found that no marks or blemishes were on petitioner at the time photographs were taken; therefore, even if the device with the digital photographs had not been stolen, the photographs would not have shown any evidence of physical abuse to petitioner. Garrett v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 85 (Tenn. Crim. App. Feb. 5, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 499 (Tenn. June 11, 2015), cert. denied, Garrett v. Tennessee, 136 S. Ct. 549, 193 L. Ed. 2d 439, 2015 U.S. LEXIS 7501, 84 U.S.L.W. 3300 (2015).

Post-conviction court properly denied petitioner post-conviction relief because counsel was not ineffective in any regard; petitioner failed to demonstrate that he was prejudiced by trial counsel's failure to object to the State's referring to a witness as “deputy” because the jury's finding petitioner guilty of the lesser-included offenses of attempted voluntary manslaughter and reckless aggravated assault demonstrated that it carefully considered the elements of the charged offenses. Luther v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 196 (Tenn. Crim. App. Mar. 17, 2016).

Post-conviction court properly denied petitioner post-conviction relief because counsel was not ineffective in any regard; nothing indicated that counsel was deficient for failing to raise the issue of excessive on appeal or that petitioner was prejudiced by counsel's failure to do so because petitioner did not explain why his sentence was excessive, and in its direct appeal opinion, the court of criminal appeals held that the trial court properly ordered consecutive sentencing. Luther v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 196 (Tenn. Crim. App. Mar. 17, 2016).

Trial counsel was not ineffective for failing to challenge a search warrant because defendant did not present any evidence that he had a reasonable expectation of privacy in the room that was searched in his mother's house; the proof at trial showed that defendant sometimes visited his mother's house but had only spent one night there more than a month before the search, and he did not have a key to the house and had been prohibited by his mother from entering the house without a key. State v. Cox, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 240 (Tenn. Crim. App. Mar. 31, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 803 (Tenn. Oct. 17, 2016).

Trial counsel was not ineffective for failing to question whether a juror saw defendant exiting the jail van because trial counsel testified that after the trial, the juror claimed he had not seen defendant and that his decision not to pursue the issue was a matter of strategy. State v. Cox, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 240 (Tenn. Crim. App. Mar. 31, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 803 (Tenn. Oct. 17, 2016).

Denial of post-conviction relief was proper, as finding trial counsel provided effective representation was supported by the record, which showed that trial counsel properly examined the State's witnesses and attempted to discredit their testimony, counsel's opinion that there was no legitimate basis upon which to file a motion to suppress was credible, and counsel advised the inmate of the right to testify and the inmate made his own decision not to testify in his defense. Pewitte v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 313 (Tenn. Crim. App. Apr. 27, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 618 (Tenn. Aug. 19, 2016).

Defendant was not entitled to post-conviction relief because defendant's guilty pleas were knowingly and intelligently entered with the effective assistance of counsel in that the evidence showed that defendant was very familiar with criminal proceedings, was represented and advised by competent counsel, and avoided a greater penalty that could have resulted from a jury trial. Amos v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 328 (Tenn. Crim. App. Apr. 28, 2016).

Petitioner failed to establish that counsel provided ineffective assistance, and thus the denial of post-conviction relief was affirmed; petitioner had not demonstrated that counsel failed to communicate with him, counsel testified that she considered filing a motion to suppress but she could not see any ethical way to file the motion, petitioner had not alleged how counsel should have prepared him to testify at trial or that his testimony at trial would have been any different and affected the outcome of the trial, and petitioner had not demonstrated how any additional cross-examination of the State's witnesses by counsel would have affected the trial in this case. Green v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 336 (Tenn. Crim. App. May 4, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 663 (Tenn. Sept. 22, 2016).

Petitioner's complaints of ineffective assistance of counsel related to strategic decisions made by trial counsel, who tried to mitigate the damage of petitioner's detailed confession, and he was not entitled to relief. Stewart v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 339 (Tenn. Crim. App. May 5, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 568 (Tenn. Aug. 18, 2016).

Proof at trial revealed the existence of another actor in the criminal episode for whose conduct the petitioner was criminally responsible; trial counsel was not deficient for failing to challenge the petitioner's convictions on that basis and he was not entitled to post-conviction relief in this regard. Cole v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 355 (Tenn. Crim. App. May 11, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 715 (Tenn. Sept. 26, 2016).

Petitioner failed to show that counsel rendered deficient performance or that she was prejudiced by any deficiency, and thus the trial court properly denied her petition for post-conviction relief; counsel stated that if petitioner or anyone else had told him that she was physically unable to stab the victim, then he would have pursued the issue, and petitioner never told the agent on the day of the crime or the person who helped her draft her original petition that she was physically unable to grasp a knife or stab the victim due to her carpal tunnel syndrome, plus petitioner did not present her treating physicians or any expert to support her claim. Whaley v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 361 (Tenn. Crim. App. May 13, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 705 (Tenn. Sept. 23, 2016).

Post-conviction court did not err by failing to compel the testimony of two co-defendants at a hearing because petitioner made no request or argument relating to such where they were subpoenaed, transported, and available to testify. Therefore, petitioner was not prejudiced by any alleged deficiency of his counsel as a result Taylor v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 399 (Tenn. Crim. App. May 31, 2016).

Petition for post-conviction relief alleging ineffective assistance of counsel was properly denied because counsel was not ineffective for failing to call witnesses to testify that defendant was not a violent person as defendant did not present any witnesses at the post-conviction hearing regarding her non-violent nature; for failing to inform defendant of plea offers; and for failing to adequately inform defendant of the charges and sentences she was facing and failing to prepare her to testify at trial as defendant did not say how she would have benefitted from further trial preparation, and counsel took care to explain everything to defendant based on her awareness of defendant's mental difficulties. Polk v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 419 (Tenn. Crim. App. June 7, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 680 (Tenn. Sept. 22, 2016).

Petition for post-conviction relief alleging ineffective assistance of counsel based on counsel misinforming defendant about the terms of his plea agreement with the State and counsel failing to ensure that the State honored that plea agreement was properly denied because defendant knowingly and voluntarily entered into open guilty pleas, with sentencing left to the trial court's discretion; there was nothing in the record that the State verbally promised him a fully-probated eight-year sentence in exchange for his cooperation with police and prosecutors; and the trial court informed defendant that sentencing would be determined solely by the trial court following a sentencing hearing, and defendant indicated his understanding. Mills v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 482 (Tenn. Crim. App. July 6, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 702 (Tenn. Sept. 22, 2016).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly denied because the victim's pre-trial letters to defendant should have been introduced at the evidentiary hearing in order to prove how defendant could have possibly been prejudiced by trial counsel's refusal to read or use the letters at trial; and because, as to defendant's claims regarding trial counsel's refusal to read or use the victim's pre-trial letters to defendant, counsel testified that based on what defendant stated was in the victim's letters to defendant, counsel did not want to use them at trial as they did not contradict her previous version of defendant's criminal conduct. Kirk v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 500 (Tenn. Crim. App. July 13, 2016).

Although petitioner argued that trial counsel was ineffective for not securing a witness's appearance at trial, because petitioner did not call the witness to testify at the evidentiary hearing, the post-conviction court correctly held that the petitioner had failed to meet his burden of showing he was entitled to post-conviction relief. Minor v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 506 (Tenn. Crim. App. July 15, 2016).

Post-conviction court did not err in denying defendant's petition for post-conviction relief alleging ineffective assistance of trial counsel because the only evidence presented at the evidentiary hearing was the testimony of trial counsel, who explained that defendant never mentioned an alibi defense and that he was not surprised by any testimony at trial, including the date of the offenses; the indictment was not specific as to date; and the variance in the indictment was not of a character which could have misled defendant at trial and was not such as to deprive defendant of his right to be protected against another prosecution for the same offense. Blaylock v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 567 (Tenn. Crim. App. Aug. 4, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 825 (Tenn. Oct. 24, 2016).

Post-conviction court did not err in denying defendant's petition for post-conviction relief alleging ineffective assistance of trial counsel because, with respect to counsel's alleged deficiency for failing to investigate the medical report, the appellate court noted that no medical report of the minor victim was submitted at the evidentiary hearing; and defendant's convictions for aggravated assault and attempted aggravated assault against the minor victim did not depend upon the victim's injuries, but instead were based on the victim's reasonable fear of imminent bodily injury caused by defendant's strangulation of the victim's neck and his use of the weight as a deadly weapon against the victim. Blaylock v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 567 (Tenn. Crim. App. Aug. 4, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 825 (Tenn. Oct. 24, 2016).

Defendant failed to overcome the strong presumption that defendant's appellate counsel exercised reasonable professional judgment in making the strategic decision to focus on an order of consecutive sentencing rather than the length of the sentences issued to defendant. Defendant, thus, did not meet the burden of showing that appellate counsel was deficient for not arguing the issue on appeal and did not meet the burden of showing that defendant was prejudiced as a result of counsel's alleged deficiency. Floyd v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 690 (Tenn. Crim. App. Sept. 16, 2016).

Post-conviction court properly denied defendant's petition for relief because he failed to demonstrate that his trial counsel failed to communicate with him about his case, failed to provide him with discovery until after the trial, failed to have alibi witness testify at trial, and the post-conviction court specifically accredited counsel's testimony over that of defendant. Churchwell v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 708 (Tenn. Crim. App. Sept. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 48 (Tenn. Jan. 19, 2017).

Trial counsel was not ineffective for failing to take the inmate's mental illness into account during the guilty plea hearing, as counsel testified that the inmate was deemed competent to stand trial after a mental health evaluation, he was level-headed during her representation of him, and at the guilty plea hearing, the inmate testified that he understood the proceedings and had pled guilty multiple times in the past and was able to articulate his desire to get the treatment that he needed. Pruitt v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 749 (Tenn. Crim. App. Sept. 30, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 79 (Tenn. Jan. 23, 2017).

Post-conviction court properly denied petitioner post-conviction relief because he failed to prove that he received ineffective assistance of counsel; the record supported the post-conviction court's findings that counsel met with petitioner a sufficient number of times, petitioner made a knowing and voluntary decision to not testify at trial, and counsel did not render deficient performance in failing to obtain a transcript of the preliminary hearing. Brummitt v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 781 (Tenn. Crim. App. Oct. 18, 2016).

In a case where defendant was convicted of numerous drug offenses occurring within 1,000 feet of a school zone, defendant's petition for post-conviction relief was properly denied because, even if defense counsel was deficient in failing to pursue additional plea negotiations with the State, defendant failed to show that she was prejudiced by the deficiency as counsel testified that defendant was not interested in a plea offer that involved school-zone sentencing; the State's only offer to defendant involved a 10-year sentence with a minimum six years to serve due to the offenses occurring in a school zone; and nothing indicated that the State would have agreed to any plea offer that did not involve school-zone sentencing. McMurry v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 923 (Tenn. Crim. App. Dec. 12, 2016).

Defendant's petition for post-conviction relief alleging that his counsel was ineffective was properly denied as second counsel testified that he reviewed the affidavit used to obtain the search warrant and found no basis to file a motion to suppress; and defendant did not have an expectation of privacy in a lady friend's apartment as he did not live in the apartment, and nothing in the residence belonged to him. Dotson v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 938 (Tenn. Crim. App. Dec. 15, 2016).

Defendant's petition for post-conviction relief was properly denied because counsel was not ineffective for failing to object to a nurse reading the victim's statement when she did not take the statement from the victim as the nurse's testimony was admissible under the hearsay exceptions for business records, and for statements made for the purpose of medical diagnosis and treatment. Coleman v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 11 (Tenn. Crim. App. Jan. 10, 2017).

Defendant's petition for post-conviction relief was properly denied because trial counsel was not ineffective for requesting a recess after the victim's direct examination testimony, which gave the State an opportunity to improve its case against defendant, as lead counsel objected to the additional questioning after the State had rested, but the trial court could permit the introduction of further evidence after a party had rested. Coleman v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 11 (Tenn. Crim. App. Jan. 10, 2017).

Defendant's petition for post-conviction relief was properly denied because counsel was not ineffective as he made a strategic decision not to cross-examine the victim; and because defendant was not prejudiced by the failure to cross-examine the victim as the State's case, while not overwhelming, was strong; and as the victim maintained for an extensive period of time that defendant abused her, and her testimony at trial was mostly consistent with her statement to the nurse practitioner. Coleman v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 11 (Tenn. Crim. App. Jan. 10, 2017).

Defendant's petition for post-conviction relief was properly denied because counsel was not ineffective for refusing to provide him with the victim's complete statement as lead counsel testified that he gave all discovery materials to defendant and that he did not withhold any page of the victim's statement; and defendant did not present any evidence that a page from the victim's statement was missing. Coleman v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 11 (Tenn. Crim. App. Jan. 10, 2017).

Post-conviction court properly denied defendant's petition for relief because he failed to prove that trial counsel were ineffective where the majority of his claims were inappropriate for post-conviction relief and were previously determined on direct appeal, the sufficiency of an indictment could not be reviewed or tested in a post-conviction proceeding, spousal immunity for rape and sexual battery offenses was abolished in 2005, defendant did not argue how any additional preparation by counsel would have changed the outcome of his case, and he provided no information or argument, at the evidentiary hearing or in his brief, as to what testimony or information his sister would have provided. Johnson v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 78 (Tenn. Crim. App. Jan. 31, 2017).

Post-conviction relief was properly denied, as appellate counsel was not ineffective for failing to appeal on the basis of insufficient evidence, as such an appeal would not have been successful and appellate counsel testified that he made the decision only challenge the sentence on appeal because that was a stronger challenge and it was counsel's experience that an appeal was more likely to yield beneficial results if he focused on the strongest issue. Barnes v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 124 (Tenn. Crim. App. Feb. 24, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 351 (Tenn. May 24, 2017).

Petition for post-conviction relief alleging ineffective assistance of counsel was properly denied because trial counsel testified that he met with defendant several times, that he was unable to locate an alibi witness, and that he was unable to obtain the store's video surveillance; defendant did not explain how the store's video surveillance would have helped his case; he did not present the alibi witness at the evidentiary hearing; and, although he alleged that counsel should have had his mother testify at his sentencing hearing, defendant did not have his mother testify at the evidentiary hearing, and the appellate court could not speculate on what benefit she might have offered to his case. Hardin v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 171 (Tenn. Crim. App. Mar. 8, 2017).

Petition for post-conviction relief alleging ineffective assistance of counsel and that defendant's guilty plea was unknowing and involuntary was properly denied because trial counsel's initial misstatement of the potential sentencing exposure was rectified long before defendant entered her guilty plea; trial counsel did not pursue further investigation into defendant's mental health as she testified that defendant was lucid in their conversations, exhibited no deficits in understanding, and informed counsel that she had understood what she was doing when interviewed by the police and decided to give her statement; and defendant's guilty plea was not unknowing and involuntary. Gonzales v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 172 (Tenn. Crim. App. Mar. 8, 2017).

Defendant did not meet the burden of demonstrating ineffective assistance of counsel or that defendant's guilty plea was unknowing and involuntary because the record amply supported the post-conviction court's determinations that the testimony of trial counsel as to the evidence against defendant and the securing of the plea agreement was to be accredited over that of defendant, that defendant's rights were explained to defendant in detail at the guilty plea hearing, and that defendant failed to prove ineffective assistance of trial counsel. Lindiment v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 184 (Tenn. Crim. App. Mar. 10, 2017).

Defendant's petition for post-conviction relief was properly denied as trial counsel was not ineffective because trial counsel was a very experienced trial attorney who conducted a thorough investigation of the facts, reviewed the record from the first trial, and communicated with defendant about the facts, defense theories, and the pros and cons of testifying in his own defense; and trial counsel offered a reasonable explanation for why he did not call a witness based on her demeanor and attitude on the day of the trial; and how he was limited in his examination of another witness by the trial court's evidentiary rulings. Watkins v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 207 (Tenn. Crim. App. Mar. 20, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 309 (Tenn. May 18, 2017).

Defendant's petition for post-conviction relief, alleging effective assistance of counsel and that her guilty pleas were not knowingly or voluntarily entered, was properly denied because trial counsel performed a thorough investigation of the case and advised defendant of the nature of the charges, the potential punishments, and the consequences of pleading guilty; defendant acknowledged that counsel had explained all the relevant information to her prior to her accepting the plea agreement; the record belied defendant's testimony that counsel pressured her into accepting the plea agreement and pleading guilty; and the record supported the conclusion that defendant's guilty pleas were knowingly, intelligently, and voluntarily entered. Vaughn v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 273 (Tenn. Crim. App. Apr. 13, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 524 (Tenn. Aug. 18, 2017).

Defendant failed to prove that trial counsel rendered deficient performance or that there was any reasonable probability of another outcome had trial counsel cross-examined one witness differently. Britt v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 310 (Tenn. Crim. App. Apr. 25, 2017).

Defendant failed to prove that defendant received ineffective assistance of counsel by trial counsel not presenting testimony from ballistics or blood spatter experts because defendant did not present the testimony of a ballistics or blood spatter expert at a post-conviction hearing, admitted that defendant had not consulted such experts, and admitted that defendant was merely speculating as to whether such experts would have helped defendant's case. Britt v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 310 (Tenn. Crim. App. Apr. 25, 2017).

Defendant's petition for post-conviction relief, alleging ineffective assistance of counsel, was properly denied because, even without trial counsel's testimony at the post-conviction evidentiary hearing to contradict defendant's claim of outside influence on the jury, defendant failed to establish by clear and convincing evidence that he was entitled to relief as the post-conviction court found absolutely no evidence of jury misconduct; and it found that the evidence against defendant was overwhelming. Breezee v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 357 (Tenn. Crim. App. May 9, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 605 (Tenn. Sept. 22, 2017).

Defendant's petition for post-conviction relief, alleging ineffective assistance of counsel, was properly denied as counsel was not ineffective for failing to have defendant's mother testify at his August 2011 trial because, while the mother testified at the hearing that defendant was gone often, she testified that he was home on the day of at least one of the incidents. Breezee v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 357 (Tenn. Crim. App. May 9, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 605 (Tenn. Sept. 22, 2017).

After reviewing the briefs from the direct appeal, the evidence did not preponderate against the post-conviction court's finding that counsel fully briefed defendant's argument related to the probable cause requirement in the wiretapping statute, and that she addressed the subsections of that statute in her brief that she felt most strongly aided her argument that the wiretaps were unlawful; and, while the appellate court's decision limited defendant's argument, defendant did not show that counsel was ineffective in that regard as she made a strategic decision to focus her argument in the reply brief, which the appellate court would not second guess. King v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 570 (Tenn. Crim. App. June 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 675 (Tenn. Oct. 4, 2017).

In a case in which defendant pled guilty to multiple drug and money laundering crimes in three separate counties, defendant's petition for post-conviction relief, claiming that he received ineffective assistance of counsel, was properly denied as defendant's plea was entered knowingly and voluntarily because counsel and defendant weighed the risk of taking his case to trial, where he faced a lengthy sentence approaching 100 years but retained all his rights of appeal, versus entering a guilty plea for a sentence of 40 years but reduced rights of appeal; and defendant affirmed that he was asked at the guilty plea hearing whether he understood his right to trial and that he was giving up that right, which he stated he did. King v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 571 (Tenn. Crim. App. June 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 671 (Tenn. Oct. 4, 2017).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective in preparing the certified questions of law and in educating defendant on the applicable law because he was advised of the procedural risks of the certified questions; counsel advised him that she could not guarantee that his questions would be deemed dispositive by the appellate court; counsel did not guarantee him success on appeal; and counsel advised defendant that, although not all questions would be deemed dispositive, she chose to include them as the appellate court sometimes overlooked whether a question was dispositive and reviewed it, but counsel did not guarantee that the appellate court would address the non-dispositive questions. King v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 571 (Tenn. Crim. App. June 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 671 (Tenn. Oct. 4, 2017).

Trial counsel was not ineffective for failing to request a mistrial after learning that a sequestered juror had spoken to a waitress during lunch, as the juror's conversation was only about an ink pen and was not improper. Petty v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 632 (Tenn. Crim. App. July 19, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 782 (Tenn. Nov. 16, 2017).

Without any showing otherwise by petitioner, deference was given to trial counsel's decision not to file a motion to suppress. Accordingly, petitioner failed to establish by clear and convincing evidence that counsel was deficient. Petty v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 632 (Tenn. Crim. App. July 19, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 782 (Tenn. Nov. 16, 2017).

Although petitioner argued that trial counsel failed to include all grounds as to why a new trial should be granted, petitioner did not specify which issues should have been included and appeared to solely rely on trial counsel's testimony at the post-conviction hearing that counsel believed the motion was insufficient. Without proof to the contrary, deference was given to trial counsel's tactical decisions. Petty v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 632 (Tenn. Crim. App. July 19, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 782 (Tenn. Nov. 16, 2017).

Defendant's petition for post-conviction relief was properly denied as trial counsel was not ineffective because both defendant and counsel testified the two engaged in detailed discussions regarding the charges defendant faced, the evidence at issue, the strategy counsel would pursue, and the strengths and weaknesses of his defense, and nothing indicated that counsel's strategy was not sound; nothing in the record indicated that defendant's plea was coerced or entered into involuntarily or as the result of fear; and he understood the options he faced prior to entering his guilty plea, the sentencing associated with his plea, and the rights he waived upon entering the guilty plea. Hurst v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 706 (Tenn. Crim. App. Aug. 11, 2017).

Defendant's petition for post-conviction relief was properly denied because counsel was not ineffective for failing to adequately investigate and prepare defendant's case as counsel talked to two of the officers involved and their statements were the same as what was in their reports as far as to what they would testify to, and speaking to material witnesses to determine the strength of a case was adequate investigation; because defendant failed to show that but for trial counsel's performance the outcome would have been different as defendant would have faced a longer prison term had he gone to trial; and because defendant's guilty plea was not coerced and was knowingly, voluntarily, and intelligently entered. Gleaves v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 779 (Tenn. Crim. App. Aug. 30, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 863 (Tenn. Dec. 6, 2017).

Defendant's petition for post-conviction relief from his second degree murder conviction was properly denied because trial counsel was not ineffective as trial counsel testified that, because he knew the State's position would be to portray defendant as a womanizing wife beater, he filed numerous pretrial motions in an effort to keep out such testimony; and trial counsel relied upon his experience in determining whether to object to the witnesses' testimony about domestic abuse during the victim's and defendant's marriage, explaining that sometimes it was better to remain silent than to draw the jury's attention to it. Owens v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 797 (Tenn. Crim. App. Aug. 31, 2017).

Petitioner claimed trial counsel was ineffective for failing to challenge his arrest warrant, but all questions as to the sufficiency of the arrest warrant were foreclosed by the finding of an indictment; he failed to show ineffective assistance of counsel for purposes of T.C.A. § 40-30-110(f) and he was not entitled to relief. Belk v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 954 (Tenn. Crim. App. Nov. 8, 2017).

Petitioner failed to explain what more appellate counsel should have done with regard to the suppression issue, and thus petitioner failed to show that appellate counsel was deficient or that he was prejudiced by any deficiency for purposes of T.C.A. § 40-30-110(f). Belk v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 954 (Tenn. Crim. App. Nov. 8, 2017).

Petitioner claimed he received ineffective assistance of counsel because counsel did not attempt to impeach an officer with his reasons for leaving the force, but there was testimony that the officer did not resign due to dishonesty, and petitioner failed to question the officer about his reasons for leaving during the post-conviction hearing; he failed to show ineffective assistance for purposes of T.C.A. § 40-30-110(f) and he was not entitled to relief. Belk v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 954 (Tenn. Crim. App. Nov. 8, 2017).

Trial court denied the motion to suppress, which was affirmed on appeal, and petitioner failed to explain what more trial counsel should have done regarding the search warrant or the motion to suppress; thus, petitioner failed to show that trial counsel was deficient or that he was prejudiced by any deficiency, for purposes of T.C.A. § 40-30-110(f), and he was not entitled to post-conviction relief. Belk v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 954 (Tenn. Crim. App. Nov. 8, 2017).

Even if trial counsel was deficient for not attempting to obtain a recording, petitioner failed to explain how the recording itself could have been beneficial to his case, and he further failed to show that providing a missing evidence instruction would have changed the outcome of the trial, such that he failed to show ineffective assistance of counsel for purposes of T.C.A. § 40-30-110(f) and he was not entitled to relief. Belk v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 954 (Tenn. Crim. App. Nov. 8, 2017).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly denied because trial counsel did not interview one of the arresting officers as, given the officer's version of the facts, she could not envision how his testimony would have aided defendant; trial counsel denied that defendant asked that she subpoena any of the victim's children, and no proof was presented at the hearing as to how those witness would have testified; and trial counsel explained that the problem with using the recordings of jailhouse telephone calls between defendant and the victim at a trial was that a number of the calls were initiated by defendant, which would have shown that he had violated the order of protection. Parram v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 967 (Tenn. Crim. App. Nov. 14, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 195 (Tenn. Mar. 16, 2018).

Petition for post-conviction relief alleging ineffective assistance of counsel was properly denied because the appellate court agreed that defendant's sister would not have been a helpful trial witness, considering her lackadaisical attitude at the evidentiary hearing and inability to remember how many theft and shoplifting convictions she had; regarding the failure to hire an investigator, the post-conviction court determined that defendant had failed to prove that a police officer and one of the victims were having an affair or that an investigator could have discovered that; and counsel testified as to his several meetings with defendant, who failed to prove the trial outcome would have been different had there been additional meetings. Forbes v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 972 (Tenn. Crim. App. Nov. 17, 2017).

Trial counsel's actions met an objective standard of reasonableness and petitioner failed to establish that he received ineffective assistance of counsel or that he was prejudiced by trial counsel's actions. Although petitioner claimed in his petition for post-conviction relief that he would not have pleaded guilty, none of the deficiencies in representation alleged by petitioner created a reasonable probability that petitioner would not have pled guilty. Cline v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 999 (Tenn. Crim. App. Dec. 4, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 88 (Tenn. Feb. 14, 2018).

Petitioner was not entitled to post-conviction relief due to ineffective assistance of counsel because an eyewitness expert witness was not called to testify at the post-conviction hearing, as petitioner failed to prove prejudice. In addition, petitioner failed to present any evidence at the post-conviction hearing to show what trial counsel should have presented to substantiate that a Batson challenge as to the racial makeup of the jury pool and/or the trial jury would have been successful. Brewer v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 30 (Tenn. Crim. App. Jan. 16, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 301 (Tenn. May 17, 2018).

Defendant's petition for post-conviction relief was properly denied as trial counsel was not ineffective for failing to call a witness because counsel testified that defendant did not provide her with any contact information for the witness; although counsel's investigator happened to find the witness on one occasion, and interviewed him, counsel explained that it was her practice to personally interview witnesses before calling them to testify at trial; counsel made attempts to locate the witness to talk to him face to face but she was unable to do so, and her investigator was also unable to locate the witness a second time; and counsel's strategic decision not to subpoena a witness that she did not interview was entitled to deference. Wright v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 31 (Tenn. Crim. App. Jan. 16, 2018).

Trial counsel's advice that petitioner testify was a matter of trial strategy, which was not second-guessed on appeal, and because under T.C.A. § 40-30-110 petitioner failed to testify that he did not understand his rights and the consequences of his decision to testify, he could not demonstrate that the evidence preponderated against the post-conviction court's determinations. Johnson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 87 (Tenn. Crim. App. Feb. 8, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 344 (Tenn. June 6, 2018).

Evidence was consistent with the post-conviction court's conclusion that trial counsel met multiple times with petitioner, investigated the case, and was prepared for trial, and petitioner did not present an expert witness at the post-conviction hearing or submit records he claimed trial counsel should have presented at trial, and thus, for purposes of T.C.A. § 40-30-110(f), he failed to present any evidence of prejudice, even if trial counsel had rendered deficient performance. Nelson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 135 (Tenn. Crim. App. Feb. 22, 2018).

It was proper to deny petitioner post-conviction relief because petitioner's guilty plea was not involuntarily and unknowingly entered on the ground that trial counsel was ineffective; trial counsel did not misinform petitioner about the amount of time he would actually have to serve before he could be released from prison because petitioner was properly informed by trial counsel and the trial court that he could receive sentencing credits to reduce his sentence by fifteen percent. Shade v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 154 (Tenn. Crim. App. Feb. 27, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 327 (Tenn. June 6, 2018).

Although petitioner alleged that his trial counsel was ineffective by calling an alibi witness whose testimony was not favorable to petitioner, the court of criminal appeals concluded that the post-conviction court did not err when it held that petitioner failed to establish that trial counsel was ineffective. The court of criminal appeals agreed with the post-conviction court that trial court that trial counsel made a reasonable, tactical decision to call the alibi witness and that the jury resolved the conflicts in the testimony in favor of the State. Taylor v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 157 (Tenn. Crim. App. Feb. 28, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 413 (Tenn. July 19, 2018).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective in failing to communicate with defendant because counsel stated that he and defendant did not have any trouble communicating and that defendant cooperated with him; and defendant, who called trial counsel to testify at the hearing, did not question counsel about his trial or appellate strategy, any plea offers, or counsel's communications with defendant about potential punishments under the Drug-Free School Zone Act. Grimes v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 298 (Tenn. Crim. App. Apr. 19, 2018), vacated, — S.W.3d —, 2018 Tenn. LEXIS 398 (Tenn. Aug. 10, 2018).

Defendant's petition for post-conviction relief was properly denied as he was not entitled to relief based on counsel's alleged ineffective assistance in failing to argue the preindictment delay issue competently on direct appeal because he failed to show that the State caused the delay to gain a tactical advantage or that he was prejudiced by the delay; and he failed to present any proof of prejudice at the post-conviction evidentiary hearing. Grimes v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 298 (Tenn. Crim. App. Apr. 19, 2018), vacated, — S.W.3d —, 2018 Tenn. LEXIS 398 (Tenn. Aug. 10, 2018).

Defendant's petition for post-conviction relief was properly denied because he failed to show that he received ineffective assistance of counsel based on counsel's failure to raise a speedy trial violation on direct appeal of his conviction as he did not provide any reason for the delay at the post-conviction evidentiary hearing; and he failed to present any proof at the hearing to show he was prejudiced by the delay because he offered no explanation as to how two witnesses who could not be located would have helped his case and did not present the witnesses at the evidentiary hearing, and the appellate court could not speculate on what benefit those witnesses might have offered to defendant's case. Grimes v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 298 (Tenn. Crim. App. Apr. 19, 2018), vacated, — S.W.3d —, 2018 Tenn. LEXIS 398 (Tenn. Aug. 10, 2018).

In a case in which defendant was convicted of two counts of aggravated child neglect or endangerment and two counts of child abuse, defendant's petition for post-conviction relief was properly denied as counsel was not ineffective for failing to file a motion to change venue based on pretrial publicity because counsel determined that there was no credible basis for filing the motion; the prospective jurors were questioned about their knowledge of the allegations, parties, victims, and witnesses in the case, and those jurors who indicated they had prior knowledge or knew anyone involved in the case were dismissed; and defendant did not present any evidence of actual bias or prejudice in the selected jury. Kent v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 372 (Tenn. Crim. App. May 14, 2018).

In a case in which defendant was convicted of two counts of aggravated child neglect or endangerment and two counts of child abuse, defendant's petition for post-conviction relief was properly denied as counsel was not ineffective for failing to call the victims' uncle as a witness because his testimony was not material to the defense as he did not spend much time with the victims when the abuse occurred; the uncle stated that he did not know if he could have testified about the victims' truthfulness; and the photographs showing the victims celebrating holidays and participating in fun activities were not in the uncle's possession at the time of trial and were not material as they depicted events occurring before 2008 and 2009. Kent v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 372 (Tenn. Crim. App. May 14, 2018).

Defendant did not meet defendant's burden of demonstrating that defendant was prejudiced by any alleged deficiency in counsel not immediately objecting to the proposed jury instructions at the start of trial because it was determined in the direct appeal that any error that resulted from the trial court's having informed the jury about defendant's prior aggravated robbery conviction was harmless given the strength of the State of Tennessee's case and the fact that the trial court issued a limiting instruction to the jury. Thomas v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 510 (Tenn. Crim. App. July 11, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 726 (Tenn. Nov. 16, 2018).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective because counsel did not prejudice defendant with his statements to the jury in his opening statement as counsel did not make an admission of guilt; the State outlined the evidence it intended to present at trial, and counsel responded consistently with his trial strategy of mitigating defendant's role in the charged offenses; counsel was, to some degree, successful in that strategy as indicated by the jury's verdict of facilitation of some of the charged offenses; and counsel's statements in response to the State's overview of the evidence were a reasonable strategic choice under the circumstance. Jackson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 545 (Tenn. Crim. App. July 20, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 706 (Tenn. Nov. 14, 2018).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective because counsel was not at fault for not allowing defendant to present closing argument as it was not counsel's prerogative to decide whether defendant was to address the jury in closing; after closing arguments, counsel made the trial court aware that defendant wanted to address the jury; and defendant explained his position to the trial court and, ultimately, the trial court denied his request finding that he was represented by counsel who provided the closing argument. Jackson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 545 (Tenn. Crim. App. July 20, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 706 (Tenn. Nov. 14, 2018).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective because counsel did not err in not objecting to the supplemental instruction that the jury had to rely on the jury's own memory as to what a witness did or did not say as the instruction was fair to both parties in that it did not preclude jurors who recalled a description of the perpetrator from relying on that testimony, and did not cause misunderstanding or confusion; the instruction was a fair statement of the law in that judges were prohibited from commenting upon the evidence; and defendant provided no evidence that, upon objection, the trial court would have instructed the jury that the victim gave no description of the perpetrator. Jackson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 545 (Tenn. Crim. App. July 20, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 706 (Tenn. Nov. 14, 2018).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective because counsel did not prejudice defendant with his statements to the jury in his closing argument as counsel's statements in closing were consistent with the defense strategy to mitigate defendant's involvement in the offenses; a valid argument of total innocence was precluded by the fact that co-defendant and defendant placed defendant at the crime scene; and counsel's strategy was reasonable and his statements in closing argument were consistent with the strategy. Jackson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 545 (Tenn. Crim. App. July 20, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 706 (Tenn. Nov. 14, 2018).

Petition for post-conviction relief was properly denied as counsel was not ineffective because counsel made an informed decision in not introducing the transcripts of a witness's community corrections hearing as it limited the State's ability to emphasize aspects of the testimony that were contrary to the defense theory; he cross-examined the eyewitnesses about discrepancies and elicited responses related to their honesty about the offense; a determination of the admissibility of defendant's prior convictions was unnecessary as he expressed no interest in testifying; counsel had extensive discussions with defendant about his right to testify; and defendant did not present any witnesses that would have testified on his behalf at sentencing. Jackson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 545 (Tenn. Crim. App. July 20, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 706 (Tenn. Nov. 14, 2018).

Defendant's petition for post-conviction relief was properly denied because trial counsel was not ineffective for failing to object to the State's leading questions as counsel's decision was based on a tactical strategy of not angering the jury; for allowing a juvenile court employee to be on the jury as defendant was aware of the court clerk and did not voice any concerns about her being on the jury, and counsel knew the court clerk to be fair and made a strategic decision to keep her on the jury; and for failing to call his mother and wife to testify at trial as the victim's mother did not have any information that was helpful to defendant, and his wife made it clear that she was going to punish whoever brought her in to court. Kelley v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 557 (Tenn. Crim. App. July 25, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 722 (Tenn. Nov. 14, 2018).

Defendant's petition for post-conviction relief was properly denied because counsel was not ineffective for failing to file a Giglio motion to reveal any promises made to an accomplice in exchange for his testimony because counsel knew the accomplice was going to be a witness for the State, he knew about the plea agreement and promises of leniency made to the accomplice, and counsel brought all that information out at trial; and defendant failed to present any additional information counsel might have uncovered through a Giglio motion, or explain how any such information would have made a difference at trial in light of counsel's thorough investigation and cross-examination at trial. Howard v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 644 (Tenn. Crim. App. Aug. 21, 2018).

Defendant's petition for post-conviction relief was properly denied as his convictions did not violate double jeopardy, and his counsel was not ineffective for failing to raise that argument because defendant's conviction for attempted possession of cocaine with intent to sell or deliver required a finding that he attempted to possess the cocaine with intent to manufacture, deliver or sell it; and a factual finding of intent to manufacture, deliver or sell was completely absent from the crime of aggravated robbery, which required proof that the theft of the drug was accomplished with a deadly weapon or by display of any article used or fashioned to lead the victim to reasonably believe it to be a deadly weapon. Howard v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 644 (Tenn. Crim. App. Aug. 21, 2018).

Court of criminal appeals could not find ineffective assistance of counsel based on the failure to file a written motion for a continuance when trial counsel's oral motion was heard and denied. Smith v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 801 (Tenn. Crim. App. Oct. 30, 2018).

Although trial counsel admitted at the postconviction hearing that he did not fully understand the cell phone technology used at trial, he explained that the trial strategy was to explain petitioner was not in possession of his cell phone at the time of the victim's death and, therefore, any additional knowledge of cell phone GPS technology was irrelevant. Petitioner failed to show how this trial strategy resulted in prejudice. Smith v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 801 (Tenn. Crim. App. Oct. 30, 2018).

Post-conviction court did not find petitioner's testimony that he asked trial counsel to withdraw but that trial counsel never filed a motion to do so credible, and the court of criminal appeals declined to substitute its own inferences for those drawn by the post-conviction court. Moreover, petitioner did not provide any additional proof that he asked trial counsel to withdraw or that trial counsel's failure to do so resulted in prejudice. Smith v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 801 (Tenn. Crim. App. Oct. 30, 2018).

Although petitioner took issue with trial counsel's failure to call alibi witnesses, petitioner failed to present any alibi witnesses at the post-conviction hearing. Petitioner failed to prove any deficiency or prejudice by clear and convincing evidence. Smith v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 801 (Tenn. Crim. App. Oct. 30, 2018).

Defendant was not entitled to post-conviction relief because, at the post-conviction hearing, defendant failed to provide evidence detailing trial counsel's alleged failure to communicate with defendant, to adequately prepare defendant's case for trial, and to discuss defendant's testimonial rights with defendant during their pre-trial meetings. Furthermore, defendant could not prove prejudice resulting from counsel's alleged failure to advise defendant as to sentencing. Waggoner v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 802 (Tenn. Crim. App. Oct. 30, 2018).

Inmate was not entitled to post-conviction relief for ineffective assistance of counsel because, (1) as to counsel's failure to move to dismiss for the State's failure to preserve evidence, it was not apparent the evidence had to be preserved, and reliable substitute evidence existed, and, (2) as to counsel's alleged advice to waive a direct appeal, sufficient evidence supported the inmate's conviction such that the inmate was not prejudiced, the inmate admitted counsel actually told the inmate an appeal would not succeed, and the inmate admitted the inmate waived a direct appeal because the inmate thought an appeal would be a waste of time. Carroll v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 819 (Tenn. Crim. App. Nov. 5, 2018).

Petition for post-conviction relief was properly dismissed because trial counsel was not ineffective for failing to investigate defendant's cell mate before he testified as counsel portrayed the cell mate as a snitch and a liar, and he mentioned to the jury that it was possible that the cell mate would seek a reduction in his sentencing; for failing to present proof at the suppression hearing that defendant was seized by detectives as defendant was unwilling to testify at the suppression hearing, despite counsel's explanation of the necessity of doing so; and for not objecting to an officer's testimony that the victim was on the ground when he was shot so as to draw as little attention as possible to his testimony. Pollard v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 831 (Tenn. Crim. App. Nov. 8, 2018).

Petitioner failed to establish that trial counsel and co-counsel were deficient. Trial counsel and co-counsel agreed that petitioner did not want to plead guilty and instead wanted to go to trial, and the record did not preponderate against the post-conviction court's finding that trial counsel and co-counsel were credible witnesses. Teats v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 1 (Tenn. Crim. App. Jan. 2, 2019).

Defendant's petition for post-conviction relief was properly denied as trial counsel was not ineffective for failing to timely file a motion to cross-examine the victim about an alleged consensual sexual encounter because counsel testified that defendant came up with the idea that he had been in a consensual sexual relationship with the victim when he saw the victim at trial, that defendant never told him about a consensual sexual encounter before trial and that, if defendant had mentioned that before trial, it would have made perfect sense to go ahead and file such a motion; the post-conviction court determined that counsel was credible and defendant was not; and the proof at trial regarding the rape was overwhelming. Jefferson v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 8 (Tenn. Crim. App. Jan. 4, 2019).

Defendant's petition for post-conviction relief was properly denied because counsel was not ineffective for failing to file a motion to suppress the temperature study done on defendant's car as the victims died of hyperthermia in the car; officers could seize a vehicle that was the instrumentality of the crime; a subsequent inspection of the vehicle was not an unlawful search; and officers routinely and properly conducted testing of items taken into evidence. Bates v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 26 (Tenn. Crim. App. Jan. 16, 2019).

Defendant's petition for post-conviction relief was properly denied because, although counsel was deficient for failing to file a motion to suppress evidence of methamphetamine manufacturing based on the methamphetamine and ion scan obtained from the July 13 search of defendant's home as the information in the affidavit did not establish probable cause to believe that evidence of manufacturing methamphetamine would still be in the home at the time of the search, she failed to show that suppression of that evidence would have changed the outcome of her trial. Bates v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 26 (Tenn. Crim. App. Jan. 16, 2019).

Defendant's petition for post-conviction relief was properly denied as trial counsel's direct examination of defendant, in which counsel testified that he might have been hard on defendant in an attempt to get some real emotion from her, was part of his trial strategy; and the appellate court saw nothing improper in trial counsel's questioning of defendant because, although trial counsel was accusatory at times, defendant failed to acknowledge the difficult position in which she put trial counsel as she first told an investigator that she found the victims in the yard but then told him she found the victims in the car, and, at trial, she testified that she found the victims in the yard, which totally contradicted the State's proof. Bates v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 26 (Tenn. Crim. App. Jan. 16, 2019).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective by failing to object to the testimony of an investigator and a detective on the basis that they were not qualified to testify about the manufacture of methamphetamine because, although the investigator testified that he was not as well versed in the production of methamphetamine as some officers, and the detective testified that he was not an expert in the manufacture of methamphetamine, neither officer said he was not qualified to testify about the process of manufacturing methamphetamine; and, in fact, the detective testified that he had assisted with the investigation of at least 200 methamphetamine laboratories. Bates v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 26 (Tenn. Crim. App. Jan. 16, 2019).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective by failing to object to the testimony of an agent with Tennessee Bureau of Investigation because the agent testified as a toxicology expert; and defendant offered no proof at the evidentiary hearing that the agent was not qualified to testify about the effects of methamphetamine on the human body. Bates v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 26 (Tenn. Crim. App. Jan. 16, 2019).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective by failing to object to a witness's testimony about the process to manufacture methamphetamine because the witness testified at trial that he had worked for the Tennessee Meth and Pharmaceutical Task Force since 2004. Bates v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 26 (Tenn. Crim. App. Jan. 16, 2019).

Defendant failed to prove ineffective assistance as defendant failed to show that trial counsel was ineffective for failure to hire an investigator, failed to show that counsel was ineffective for failure to properly investigate the case, failed to provide real evidence that counsel failed to meet with defendant, and failed to show that counsel was ineffective for failure to file motions, challenge evidence, ask questions of witnesses, make objections, and present proof or seek an instruction regarding a defense of others. Wilson v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 158 (Tenn. Crim. App. Mar. 12, 2019).

Defendant was not entitled to post-conviction relief because defendant failed to show that trial counsel's decision to pursue a self-defense strategy was unreasonable, fell below professional norms, or prejudiced the outcome of the case and defendant, thus, was not entitled to relief on a correlating claim that counsel was ineffective for not requesting a jury instruction on defense of another. Moreover, defendant failed to show that trial counsel's strategy regarding the testimony of a witness was unsound and amounted to deficient performance. Johnson v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 167 (Tenn. Crim. App. Mar. 14, 2019).

Although defendant should have been allowed to testify that he feared the victim based on the victim's past physical abuse of his wife as this rule did not apply because defendant was not arguing that he should have been allowed to testify that the victim was a violent person and was acting in conformity with a propensity for violence on the day of the shooting, defendant was not entitled to post-conviction relief based on ineffective assistance of counsel because defendant never testified at the hearing that he feared the victim at all. Gayden v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 258 (Tenn. Crim. App. Apr. 23, 2019).

Defendant's petition for post-conviction relief was properly denied as lead counsel was not ineffective because he discussed defendant's voluntary manslaughter conviction with him and determined he did not want the jury to learn about defendant's prior conviction; and trial counsel made a strategic decision not to do anything that might open the door to that prior conviction. Gayden v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 258 (Tenn. Crim. App. Apr. 23, 2019).

Defendant's petition for post-conviction relief was properly denied as trial counsel were not ineffective for failing to make offers of proof at trial about the victim's reputation for violence in the neighborhood and the victim's prior acts of abuse toward his wife, based on the fact that the evidence would have supported defendant's claim of self-defense and defense of another, as the wife and her son did testify on direct and cross-examination at trial that the victim was the first aggressor before the shooting. Gayden v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 258 (Tenn. Crim. App. Apr. 23, 2019).

Circuit court properly denied defendant's petition for post-conviction relief because he failed to show that his trial counsel was ineffective, inter alia, where counsel cross-examined the confidential informant on her criminal record and activities with a drug task force, defendant did not show how he could have achieved a different outcome had he known of counsel's strategy, he did not offer any proof of mitigating factors that counsel could have raised, he presented no proof that any juror was aware of the co-conspirator's murder charge other than his testimony that the co-conspirator's name had been in the newspaper, and he failed to show that counsel performed deficiently by failing to raise credibility issues on direct appeal. Smith v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 442 (Tenn. Crim. App. July 22, 2019).

Trial counsel was not ineffective for failing to investigate defendant's mental health at the time of the crimes because defendant failed to provide any evidence to demonstrate he was suffering from mental health issues, either at the time of the crimes or trial; trial counsel believed defendant understood the charges he faced and the plea deal offered, but defendant simply insisted on going to trial. State v. Winters, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 611 (Tenn. Crim. App. Sept. 30, 2019).

Defendant could not show he was prejudiced by trial counsel's failure to pursue a defense of intoxication as nothing in the record suggested it was warranted at trial; trial counsel testified defendant did not suggest he was intoxicated during the crimes. State v. Winters, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 611 (Tenn. Crim. App. Sept. 30, 2019).

Defendant was not entitled to relief on his claim that trial counsel did not effectively challenge witness testimony because defendant failed to present the proposed evidence to support his claim and failed to offer any additional proof. State v. Winters, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 611 (Tenn. Crim. App. Sept. 30, 2019).

Defendant could not show he was prejudiced by trial counsel's alleged failure to interview or call the fiancé of the victim's friend or members of his family to testify because he failed to call the fiancé, his brother, or any family members to testify on his behalf; trial counsel was aware of the time necessary to prepare the case and utilized resources to interview witnesses in preparation for the trial. State v. Winters, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 611 (Tenn. Crim. App. Sept. 30, 2019).

Trial counsel was not ineffective for failing to challenge the victim's mental state at the time of the crimes because nothing in the record suggested trial counsel's strategy regarding the handling of the victim at trial was deficient, and defendant could not show prejudice as a result; trial counsel explained he utilized the victim as a defense witness and believed she put on defendant's position through her cross-examination. State v. Winters, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 611 (Tenn. Crim. App. Sept. 30, 2019).

Trial counsel was not ineffective for failing to argue defendant's actions were meant only “to calm the victim down,” not to injure the victim, because trial counsel effectively cross-examined the victim during which she corroborated defendant's position, and defendant could not he show prejudice as a result; trial counsel highlighted the defendant's position while cross-examining the victim at trial. State v. Winters, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 611 (Tenn. Crim. App. Sept. 30, 2019).

Trial counsel was not ineffective for impeaching the victim with statements she made during a forensic interview even though the interview included additional allegations of sexual abuse not disclosed during the victim's direct examination as trial counsel's strategy was to attack the victim's credibility as a witness by showing that, at trial, the victim testified to three instances of sexual abuse wherein defendant touched her vagina with his mouth, finger, or both, and denied any other instances of sexual abuse, but, in the forensic interview, the victim claimed defendant had sex with her multiple times and inserted his finger into her vagina. Love v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 621 (Tenn. Crim. App. Oct. 3, 2019).

Defendant failed to show that trial counsel was deficient or that defendant was prejudiced by any deficiency in counsel failing to file a timely notice of insanity, never clearly articulating or discussing a coherent or consistent defense with defendant, not contacting witnesses, failing to use or employ a private investigator, failing to cross-examine a forensic psychiatrist about inconsistencies in the psychiatrist's testimony, and allowing the jail to deny defendant access to a law library. Ghormley v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 739 (Tenn. Crim. App. Nov. 15, 2019).

Record supported the post-conviction court's determination that counsel made an informed, tactical decision to agree to a change of venue, and petitioner was not entitled to relief; after a mistrial occurred due to a friendship between a court officer and a juror and after consideration of several factors that counsel thought might affect the likelihood of petitioner's receiving a fair trial in Hickman County, counsel consented to a change of venue to Williamson County. Anglin v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 790 (Tenn. Crim. App. Dec. 19, 2019).

Trial counsel was deficient for not requesting lesser-included offenses because he testified that he was aware a written request for lesser-included offenses was required and simply filed to make such a request; petitioner failed to show that, but for trial counsel's deficiency, the jury would have convicted him of child abuse as a lesser-included offense of rape of a child because the physician who examined the victim found no signs of bleeding or bruising. Townsend v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 105 (Tenn. Crim. App. Feb. 20, 2020).

Trial counsel's failure to request an instruction on misdemeanor assault as a lesser-included offense of rape of a child was prejudicial to petitioner, and petitioner received the ineffective assistance of counsel, because given the proof, a properly instructed jury could have found petitioner guilty of misdemeanor assault; the victim's mother testified that she did not see petitioner doing anything to the victim, and the jury discredited the victim's claim of penetration. Townsend v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 105 (Tenn. Crim. App. Feb. 20, 2020).

Petitioner failed to show that, but for trial counsel's deficiency, the jury would have convicted him of misdemeanor assault as a lesser-included offense of aggravated sexual battery because the State presented proof that petitioner's unlawful sexual contact with the victim was for the purpose of sexual arousal or gratification; the victim's mother testified that she saw petitioner rubbing the victim's vagina over her clothes and that he had an erection. Townsend v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 105 (Tenn. Crim. App. Feb. 20, 2020).

Defendant failed to establish in a postconviction proceeding that defendant's trial counsel was ineffective because counsel, in attempting to locate witnesses through an investigator, exercised reasonable means to investigate the case. Defendant also failed to show that the witnesses could have been located and that they had information which would have been favorable to defendant. Dorsey v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 182 (Tenn. Crim. App. Mar. 13, 2020).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective because the post-conviction court accredited trial counsel's testimony that defendant chose not to testify after trial counsel fully advised him regarding the potential problems with his testimony; and the post-conviction court found that defendant did not present testimony or other evidence to support his claim that he was denied the right to testify on his own behalf. Alajemba v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 233 (Tenn. Crim. App. Apr. 13, 2020).

Defendant's petition for post-conviction relief was properly denied as trial counsel was not ineffective for failing to withdraw because counsel testified he did not allow defendant's complaints to affect his representation; and, although defendant asked trial counsel to withdraw from the case following the complaints, counsel did not perceive a conflict of interest which would necessitate the filing of a motion to withdraw. Anderson v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 238 (Tenn. Crim. App. Apr. 14, 2020).

Defendant's petition for post-conviction relief was properly denied as trial counsel was not ineffective for failing to have the blood tested because counsel was not aware of any facts that would support the need for testing. Anderson v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 238 (Tenn. Crim. App. Apr. 14, 2020).

Defendant's petition for post-conviction relief was properly denied as trial counsel was not ineffective for failing to adequately prepare for trial because counsel met with defendant three times at the jail, and each visit lasted at least one hour; counsel and defendant met at each court appearance to discuss the case; counsel stated he and defendant discussed trial strategy, witnesses, and the possible sentence defendant faced; and, although defendant argued that trial counsel should have interviewed a doctor regarding the victim's injuries and subpoenaed the victim's text messages, defendant failed to present either the doctor or the text messages at the post-conviction hearing and, therefore, could not establish prejudice. Anderson v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 238 (Tenn. Crim. App. Apr. 14, 2020).

There was nothing in the record to suggest petitioner was unable to meaningfully consult with trial counsel or that he did not understand the proceedings against him, plus petitioner failed to produce any medical proof at the post-conviction hearing supporting his claim, and thus he was not entitled to relief on his claim of ineffective assistance of counsel for failure to request a mental evaluation. Chapman v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 265 (Tenn. Crim. App. Apr. 17, 2020).

Although counsel could not recall the exact number of visits, he testified that he and co-counsel met with petitioner more than two times, plus counsel also drove to Atlanta and Birmingham to meet with mathematical and DNA experts; implicit in the post-conviction court's order denying relief for claimed ineffective assistance of counsel was an accreditation of trial counsel's testimony, nothing preponderated against this, and petitioner was not entitled to relief. Chapman v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 265 (Tenn. Crim. App. Apr. 17, 2020).

There was no requirement for the State to lay the foundation for hypnotic testimony, and thus petitioner failed to show that counsel's failure to object to the testimony amounted to deficient performance, and he was not entitled to relief on this issue. Chapman v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 265 (Tenn. Crim. App. Apr. 17, 2020).

Petitioner claimed counsel was ineffective for failing to object to DNA evidence taken from the blood sample he provided in a separate case, but there was no evidence that he refused to give consent or limited the scope of his consent, and even if the DNA evidence exceeded the scope of consent, it would have been inevitably discovered. Using results of a second cases's sample, police would have discovered that petitioner's DNA matched DNA found on the victim, which would have been admissible, and petitioner was not entitled to relief. Chapman v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 265 (Tenn. Crim. App. Apr. 17, 2020).

Alleged inconsistent statements would not have impeached a witness's testimony and would not have made any difference in the outcome of the trial and thus petitioner failed to establish prejudice for purposes of his ineffective assistance claim and he was not entitled to relief; the post-conviction court accredited counsel's testimony that he did not think the statements were strong evidence in favor of petitioner, plus the evidence against petitioner was strong. Waddell v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 284 (Tenn. Crim. App. Apr. 23, 2020).

Post-conviction court properly denied defendant's motion for relief because he failed to show that trial counsel rendered deficient performance by failing to adequately consult with him prior to defendant entering the guilty pleas or that his guilty plea was not knowingly, voluntarily, and intelligently made, since defendant specifically told the trial court that trial counsel had done a good job, provided him with discovery, and discussed the nature and terms of the plea agreement with him. Degroat v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 331 (Tenn. Crim. App. May 11, 2020).

Petitioner did not receive the ineffective assistance; counsel sought to exclude the firearm by claiming the officers lacked reasonable suspicion to initiate the stop, and counsel litigated the issue of whether the “be on the lookout” had expired before the stop and before the firearm was seen. The trial court credited the investigating officers' testimony that they did not receive notice the BOLO was canceled until after the stop was initiated, and petitioner was not entitled to post-conviction relief. Theus v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 391 (Tenn. Crim. App. June 5, 2020).

Inmate did not show the inmate was entitled to post-conviction relief for trial counsel's ineffective assistance when counsel did not introduce certain records because the inmate showed no prejudice, as (1) counsel was allowed to inquire into the records' subject matter, and (2) the inmate did not identify documents counsel could have used for impeachment or explain how counsel could have introduced the records. Cerano v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 446 (Tenn. Crim. App. June 25, 2020).

Petition for post-conviction relief was properly denied because trial counsel was not ineffective in recommending that defendant not testify, but, once he made the decision to testify, counsel did all he could to prepare and advise defendant. Fisher v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 456 (Tenn. Crim. App. July 1, 2020).

Petition for post-conviction relief was properly denied because trial counsel was not ineffective in failing to object to the admission of the unredacted video of defendant's police interview as defendant provided no proof to support his assertion that a motion to suppress portions of his police interview would have been granted, or that the admission of the police interview effected the outcome of the proceedings. Fisher v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 456 (Tenn. Crim. App. July 1, 2020).

Petition for post-conviction relief was properly denied because trial counsel was not ineffective in failing to object to the State's reference to the gun found in defendant's vehicle as an assault rifle and an assault weapon because defendant corrected the prosecutor when the prosecutor called the gun an assault rifle while cross-examining defendant; and counsel testified that he chose not to object as he believed it would magnify the State's argument that defendant was armed with an assault rifle. Fisher v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 456 (Tenn. Crim. App. July 1, 2020).

Petition for post-conviction relief was properly denied because trial counsel was not ineffective in failing to raise on direct appeal the admission of a witness's recorded preliminary hearing testimony as counsel verified that the witness was properly sworn in at the hearing and determined the issue was not as strong as defendant's other issues. Fisher v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 456 (Tenn. Crim. App. July 1, 2020).

Trial court properly denied defendant's petition for post-conviction relief based on the ineffectiveness of his trial and appellate counsel for failing to object to or raise the improper statements by the prosecutor during closing and rebuttal argument because trial counsel had already lodged six objections during the prosecutor's closing arguments before the prosecutor made the statement at issue—that trial counsel failed to mention the victim's name during closing argument—and trial counsel was not deficient for making a strategic decision to only raise the issues he reasonably believed might have succeeded on appeal. Branam v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 485 (Tenn. Crim. App. July 16, 2020).

Inmate was not entitled to post-conviction relief for counsel's failure to object to a victim's granddaughter's lay testimony because (1) the witness could describe what the witness saw during the victim's forensic examination, and (2) the witness's use of common medical terms did not elevate the witness's testimony to that of a medical expert. Denton v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 487 (Tenn. Crim. App. July 16, 2020).

Inmate was not entitled to post-conviction relief for counsel's failure to object to a prosecutor's closing argument because counsel's decision was strategic. Denton v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 487 (Tenn. Crim. App. July 16, 2020).

Inmate was not entitled to post-conviction relief based on counsel's failure to present an expert critical of the State's expert's failure to photograph a forensic examination because such testimony by a defense expert would not have changed the trial's result, as (1) this expert could not state defendant did not penetrate the victim and could not have determined from photographs if penetration occurred, and (2) evidence of penetration was overwhelming. Denton v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 487 (Tenn. Crim. App. July 16, 2020).

Inmate's claim that trial counsel was ineffective because he did not explain the State's evidence against him, the theory of criminal responsibility, and the inmate's options regarding a plea bargain lacked merit because trial counsel testified he met with the inmate numerous times and a Spanish-speaking investigator accompanied him to every meeting, and trial counsel testified that he explained the facts of the case and the State's theory to the inmate and that the State did not make a plea offer. Conde-Valentino v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 543 (Tenn. Crim. App. Aug. 6, 2020).

Trial counsel was not ineffective for failing to present evidence at trial that the inmate did not speak English, which would have shown that the conversations he allegedly had with an acquaintance were linguistically impossible,” because the acquaintance testified that she spoke English with the inmate and a codefendant and that they spoke English too. Conde-Valentino v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 543 (Tenn. Crim. App. Aug. 6, 2020).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective for failing to communicate adequately with defendant because the post-conviction court accredited trial counsel's testimony that he met with defendant when he came to court, that defendant had a copy of the discovery materials at every meeting, and that defendant was knowledgeable about his case; and, although defendant contended that trial counsel did not discuss a trial strategy with him, defendant did not suggest what strategy trial counsel should have used to change the outcome of his case. Williams v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 560 (Tenn. Crim. App. Aug. 14, 2020).

8. —Clear and Convincing Evidence.

Civil standard for mental incompetence adopted in State v. Nix, applies to a competency determination during post-conviction proceedings; to trigger a hearing on competency, a petitioner must make a prima facie showing of incompetence by submission of affidavits, depositions, medical reports, or other credible evidence. A petitioner bears the burden of proving that he or she is incompetent by clear and convincing evidence; a finding of incompetence requires neither a stay of the post-conviction proceedings nor abeyance of individual issues; a trial court should appoint, if necessary, a next friend or guardian ad litem to pursue the action on behalf of the petitioner. Reid v. State, 197 S.W.3d 694, 2006 Tenn. LEXIS 555 (Tenn. 2006), rehearing denied, — S.W.3d —, 2006 Tenn. LEXIS 643, (Tenn. 2006).

Dismissal of petitioner's, an inmate's, petition for post-conviction relief was appropriate because he failed to prove by clear and convincing evidence under T.C.A. § 40-30-110(f) that he received the ineffective assistance of counsel. In part, the inmate failed to prove that his counsel was ineffective for failing to move to suppress a tape recording provided by the state's informant; however, the inmate failed to prove that the motion would have been granted if presented and failed to prove deficient performance or prejudice from counsel's decision not to pursue the motion to suppress. Wilkerson v. State, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 587 (Tenn. Crim. App. July 14, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 1193 (Tenn. Dec. 8, 2010), cert. denied, Wilkerson v. Tennessee, 180 L. Ed. 2d 856, 131 S. Ct. 3035, 564 U.S. 1025, 2011 U.S. LEXIS 4727 (U.S. 2011).

Dismissal of petitioner's, an inmate's, petition for post-conviction relief was appropriate because he failed to prove by clear and convincing evidence under T.C.A. § 40-30-110(f) that he received the ineffective assistance of counsel. In part, although the inmate contended that his trial counsel was ineffective for not filing a motion for the arrest histories of the witnesses testifying at trial, the post-conviction court found that the State had no obligation to turn over arrest histories of witnesses and even if it were required, there was no proof that the histories would have changed the outcome of the case. Wilkerson v. State, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 587 (Tenn. Crim. App. July 14, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 1193 (Tenn. Dec. 8, 2010), cert. denied, Wilkerson v. Tennessee, 180 L. Ed. 2d 856, 131 S. Ct. 3035, 564 U.S. 1025, 2011 U.S. LEXIS 4727 (U.S. 2011).

Dismissal of petitioner's, an inmate's, petition for post-conviction relief was appropriate because he failed to prove by clear and convincing evidence under T.C.A. § 40-30-110(f) that he received the ineffective assistance of counsel. In part, he failed to prove that had his trial counsel argued for concurrent sentences, that the sentences would have been ordered to be served concurrently; the trial court, in sentencing him, noted his lack of credibility, his lack of remorse, and his “atrocious” criminal history. Wilkerson v. State, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 587 (Tenn. Crim. App. July 14, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 1193 (Tenn. Dec. 8, 2010), cert. denied, Wilkerson v. Tennessee, 180 L. Ed. 2d 856, 131 S. Ct. 3035, 564 U.S. 1025, 2011 U.S. LEXIS 4727 (U.S. 2011).

Dismissal of petitioner's, an inmate's, petition for post-conviction relief was appropriate because he failed to prove by clear and convincing evidence under T.C.A. § 40-30-110(f) that he received the ineffective assistance of counsel. In part, the inmate failed to prove that trial counsel was deficient in failing to pursue a motion to sever the inmate's offenses for trial because the inmate had told counsel before trial that the confidential informant who purchased the drugs from the inmate would not appear at trial; the attorney therefore decided not to pursue the motion for severance because, if the confidential informant did not testify, the State would have had a difficult, if not impossible, prosecution of the inmate. Wilkerson v. State, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 587 (Tenn. Crim. App. July 14, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 1193 (Tenn. Dec. 8, 2010), cert. denied, Wilkerson v. Tennessee, 180 L. Ed. 2d 856, 131 S. Ct. 3035, 564 U.S. 1025, 2011 U.S. LEXIS 4727 (U.S. 2011).

Nothing in the record preponderated against the post-conviction court's findings that petitioner failed to prove by clear evidence that counsel's performance was deficient, as counsel met with petitioner several times to discuss the case, plus counsel negotiated a settlement with the State. Rye v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 79 (Tenn. Crim. App. Feb. 5, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 293 (Tenn. Apr. 7, 2016).

Nothing in the record preponderated against the post-conviction court's findings that petitioner was not entitled to relief on the basis that his plea was entered involuntarily or unknowingly, as counsel explained the terms of the agreement to him, and ineffective assistance was not shown, plus the trial court discussed the ramifications of the guilty plea with petitioner, who understood the plea and knew what he was doing. Rye v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 79 (Tenn. Crim. App. Feb. 5, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 293 (Tenn. Apr. 7, 2016).

Post-conviction court properly denied petitioner's application for post-conviction relief because the evidence did not preponderate against its findings that petitioner's counsel were not ineffective; it accredited the testimony of counsel, finding that petitioner was advised that he was potentially a Range II offender. Haase v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 347 (Tenn. Crim. App. May 9, 2016).

Petitioner provided no legal basis for counsel to have objected to expert witnesses' testimony and thus defendant failed to prove his ineffective assistance allegations by clear and convincing evidence; he was not entitled to post-conviction relief in this regard. Cole v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 355 (Tenn. Crim. App. May 11, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 715 (Tenn. Sept. 26, 2016).

Though petitioner alleged numerous deficiencies of counsel on appeal, he failed to address how any of the alleged deficiencies prejudiced the proceedings; on review, the court was not required to address the strength of the specific deficiencies alleged and there were sufficient grounds to deny petitioner's claim for post-conviction relief without further analysis, and he was not entitled to relief based on ineffective assistance of counsel. Mays v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 679 (Tenn. Crim. App. Sept. 9, 2016).

Record was absent any evidence that trial counsel failed to file necessary motions on behalf of petitioner, who could not prove any prejudice as a result, for ineffective assistance of counsel purposes. Mays v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 679 (Tenn. Crim. App. Sept. 9, 2016).

Petitioner claimed that counsel was intoxicated during the trial, but petitioner did not address this at trial or call counsel at the post-conviction hearing; the only evidence supporting this allegation was petitioner's testimony that counsel was sweating a lot during the trial, but this was insufficient to prove intoxication, and petitioner could not show prejudice for ineffective assistance of counsel purposes and was not entitled to post-conviction relief. Mays v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 679 (Tenn. Crim. App. Sept. 9, 2016).

Petitioner had no standing to file a motion to suppress the jacket he denied owning, and thus nothing supported the claim that counsel was ineffective as to the jacket evidence; petitioner could not prove any resulting prejudice and was not entitled to post-conviction relief. Mays v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 679 (Tenn. Crim. App. Sept. 9, 2016).

Petitioner acknowledged that the weight of the cocaine was not disputed at trial, that defendants did not try to argue that the substance was anything other than cocaine, that he was not charged with a marijuana-related offense, and that the only offenses he was charged with related to possession of over 300 grams of cocaine; thus, even if counsel were deficient for failing to object to the jury instructions, petitioner did not suffer any prejudice, and he was not entitled to post-conviction relief. Spann v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 687 (Tenn. Crim. App. Sept. 16, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 978 (Tenn. Dec. 15, 2016).

Defendant was not entitled to post-conviction relief because defendant failed to show by clear and convincing evidence that defendant's guilty plea was not knowingly, voluntarily, and intelligently entered due to the ineffective assistance of counsel. Defendant failed to show that counsel was deficient in the investigation or preparation of defendant's cases, or that defendant would have insisted on proceeding to trial but for the ineffective assistance of counsel. Gray v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 691 (Tenn. Crim. App. Sept. 16, 2016).

Defendant was not entitled to post-conviction relief on the basis of ineffective assistance of counsel regarding defendant's guilty pleas because defendant failed to prove by clear and convincing evidence that counsel performed deficiently as the testimony of counsel, which the post-conviction court credited, established that defendant was informed of the potential sentences that defendant faced if convicted at trial. Woods v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 838 (Tenn. Crim. App. Nov. 7, 2016).

Defendant was not entitled to post-conviction relief because defendant failed to prove by clear and convincing evidence that trial counsel was ineffective as trial counsel testified that counsel and defendant frequently discussed the trial strategy and that defendant understood the decision (1) to stipulate as to defendant being the person who approached the complainant, got into the complainant's car, and drove away with the complainant; and (2) to pursue a defense of misunderstanding with defendant testifying at trial. Dean v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 851 (Tenn. Crim. App. Nov. 14, 2016).

Trial court instructed the jury in accordance with the pattern instruction for aggravated kidnapping in effect at the time of trial and did not define the key element, substantial interference with the victim's liberty, as requiring a finding that the victim's removal or confinement was not essentially incidental to the felony offense; even if counsel was deficient for failing to raise an instruction issue, petitioner was not prejudiced, given that his confinement of the victim was not incidental to the aggravated rape and was not subject to different interpretations, and petitioner was not entitled to post-conviction relief. Guillen v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 878 (Tenn. Crim. App. Nov. 22, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 285 (Tenn. May 19, 2017).

Petitioner failed to establish that trial counsel provided ineffective assistance or that his guilty plea was unknowingly or involuntarily entered, and thus the denial of post-conviction relief was affirmed; the trial court explained things to petitioner, including consecutive and concurrent sentencing, plus counsel testified that she explained the plea to him and informed him that consecutive sentencing could be an option, and further that petitioner absolutely had an understanding of what he was doing when he entered the plea. Wallace v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 870 (Tenn. Crim. App. Nov. 18, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 109 (Tenn. Feb. 15, 2017).

Defendant was not entitled to post-conviction relief on defendant's claim of ineffective assistance of counsel because defendant failed to show by clear and convincing evidence that trial counsels' performance prejudiced the outcome of the proceedings as the record was absent any evidence supporting defendant's claim that defendant was unable to present a complete defense at trial due to the alleged deficiencies of trial counsel. Johnson v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 895 (Tenn. Crim. App. Nov. 30, 2016).

Post-conviction court did not err by finding that defendant failed to prove that counsel was ineffective because, even if counsel was deficient by utilizing an abandonment defense instead of an alibi defense, defendant failed to prove any prejudice. Defendant's complaints amounted to attempting to blame counsel for defendant's refusal to heed counsel's advice after testifying to a version of facts rejected by the jury, and given the evidence and defendant's testimony, an alibi defense was not believable and was not the best strategy. Peoples v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 5 (Tenn. Crim. App. Jan. 6, 2017).

Petitioner failed to show that counsel was ineffective, and thus petitioner was not entitled to post-conviction relief; counsel did not recall petitioner asking for jurors to be stricken and such determinations were strategic choices, plus petitioner failed to show how any further testing would have benefitted his defense, and thus he failed to show that counsel was ineffective or that he was prejudiced. Mendenhall v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 50 (Tenn. Crim. App. Jan. 25, 2017).

Petitioner failed to show that trial counsel was ineffective and thus petitioner was not entitled to post-conviction relief, as his guilty pleas were knowingly and voluntarily entered; the post-conviction court accredited counsel's testimony that he shared all relevant discovery materials with petitioner and discussed the plea options with him, plus counsel advised petitioner of the risks involved in pursuing a suppression hearing, and he entered his pleas in order to avoid the risk of being convicted at trial and receiving a sentence of 60 years. Butler v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 247 (Tenn. Crim. App. Apr. 6, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 389 (Tenn. June 7, 2017).

Denial of defendant's petition for post-conviction relief was appropriate because, although defendant contended that defendant received the ineffective assistance of trial counsel as trial counsel failed to discover, interview, or present witnesses in support of defendant's defense, defendant did not present any such witnesses at the evidentiary hearing. Therefore, defendant did not prove the factual allegations contained in the post-conviction petition by clear and convincing evidence. Hildred v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 269 (Tenn. Crim. App. Apr. 10, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 480 (Tenn. Aug. 18, 2017).

Defendant failed to demonstrate by clear and convincing evidence that defendant was denied the effective assistance of counsel because trial counsel made a sound strategic decision not to pursue a mental health examination in light of the change in the testimony of a witness and defendant failed to show that trial counsel was deficient in not striking a sheriff's department employee as a juror. Furthermore, defendant failed to show prejudice based on the decisions by counsel, as well as failure to call a particular witness. Hayes v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 555 (Tenn. Crim. App. June 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 835 (Tenn. Nov. 20, 2017).

Defendant failed to prove by clear and convincing evidence ineffective assistance of counsel at defendant's trial for reckless vehicular homicide and reckless endangerment with a deadly weapon because (1) trial counsel obtained an automobile accident reconstruction expert who presented evidence favorable to defendant; and (2) trial counsel's advice to defendant not to testify was a reasonable strategic decision, given defendant's criminal history and statement admitting fault for the vehicular accident to an investigating officer. Krasovic v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 964 (Tenn. Crim. App. Nov. 14, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 171 (Tenn. Mar. 14, 2018).

Defendant was not entitled to post-conviction relief because defendant failed to show ineffective assistance of counsel by clear and convincing evidence based upon counsel failing to move to suppress the evidence against defendant, failing to file a motion regarding the lack of a video recording from an officer's in-car video camera, and failing to file a motion for a new trial. Dunn v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 975 (Tenn. Crim. App. Nov. 20, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 129 (Tenn. Feb. 14, 2018).

Defendant proved by clear and convincing evidence that trial counsel in defendant's trial for aggravated sexual battery was deficient for failing to conduct an effective cross-examination of the minor victim and the victim's mother, who was defendant's former wife, because counsel's cross-examination of the victim and the victim's mother consisted mostly of brief leading questions rehashing their direct examination testimony and failed to point out inconsistencies in their testimony. Defendant was prejudiced by counsel's deficient performance. Garrity v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 133 (Tenn. Crim. App. Feb. 22, 2018), rehearing denied, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 253 (Tenn. Crim. App. Apr. 4, 2018), substituted opinion, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 254 (Tenn. Crim. App. Mar. 4, 2018).

Defendant failed to demonstrate ineffective assistance of counsel because defendant failed to present any expert testimony at the evidentiary hearing to support defendant's claims and the post-conviction court accredited trial counsel's testimony that defendant chose not to testify at a suppression hearing and determined that counsel made a strategic decision not to present certain evidence at the hearing. Perry v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 150 (Tenn. Crim. App. Feb. 26, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 336 (Tenn. June 8, 2018).

Defendant failed to demonstrate ineffective assistance of counsel because trial counsel was not ineffective for failing to challenge the indictment against defendant for employing a firearm during the commission of a dangerous felony because defendant knew from the indictment that two possible underlying dangerous felonies–especially aggravated kidnapping and aggravated burglary–were to be tried in the same trial as the firearm charge, so that defendant was not surprised at having to make a defense against either felony. Perry v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 150 (Tenn. Crim. App. Feb. 26, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 336 (Tenn. June 8, 2018).

Defendant did not show entitlement to post-conviction relief on the ground of ineffective assistance of counsel because defendant, who was convicted by a jury, knowingly and voluntarily agreed to accept the recommended sentence and to waive defendant's direct appeal as defendant's trial counsel correctly advised defendant that defendant's sentence could be enhanced above the minimum if defendant proceeded to a sentencing hearing. Moreover, defendant was advised of the rights defendant was waiving by accepting the sentencing agreement. Douglas v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 167 (Tenn. Crim. App. Mar. 2, 2018).

Defendant proved by clear and convincing evidence that defendant received ineffective assistance of counsel in defendant's trial for aggravated sexual battery of defendant's stepchild because trial counsel was deficient for failing to conduct an effective cross-examination of the alleged victim and the victim's mother about critical discrepancies and prior inconsistent statements by them. Furthermore, defendant was prejudiced by trial counsel's deficient performance. Garrity v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 254 (Tenn. Crim. App. Mar. 4, 2018).

Petitioner failed to meet his burden of demonstrating any deficiency in counsel's performance or resulting prejudice; counsel obtained petitioner's school records and made a strategic decision not to introduce the records at trial because they did not reflect his inability to read, plus counsel succeeded in getting the victim to acknowledge he was not certain in his identification of petitioner, and thus petitioner failed to show that trial counsel was deficient in these areas. Booker v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 605 (Tenn. Crim. App. Aug. 10, 2018).

Post-conviction court did not err in denying petitioner post-conviction relief because he failed to prove that his counsel provided ineffective assistance by failing to provide him with discovery materials; counsel's credited testimony at the post-conviction hearing reflected that he reviewed all of the discovery materials with petitioner, and the guilty plea hearing transcript reflected that petitioner stated he had reviewed the discovery materials with counsel; Carpenter v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 639 (Tenn. Crim. App. Aug. 21, 2018).

Petitioner was not entitled to post-conviction relief on the ground of ineffective assistance of counsel; in part, because trial counsel was more experienced than co-counsel and was prepared to handle petitioner's trial without co-counsel's assistance, trial counsel's failure to request a continuance did not prejudice petitioner, nor did trial counsel's prior representation of a witness in petitioner's case, as the witness's testimony was helpful to petitioner. Greene v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 145 (Tenn. Crim. App. Mar. 7, 2019).

Defendant was not entitled to post-conviction relief when defendant alleged that defendant did not receive effective assistance of counsel because defendant did not show by clear and convincing evidence that trial counsel's failure to request an accomplice jury instruction was not part of a sound trial strategy or that trial counsel failed to present or pursue any offers to settle the case to defendant. Spencer v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 154 (Tenn. Crim. App. Mar. 11, 2019).

Defendant failed to present clear and convincing evidence that defense counsel was deficient at sentencing for not presenting proof which the defense had prepared for the sentencing phase of defendant's trial because, despite counsel's extensive argument, the trial court found that enhancement factors, but no mitigating factors, applied to defendant's sentences and that defendant was to serve the sentences consecutively as a dangerous offender. Defendant also failed to demonstrate prejudice from the result having thus been different. Franklin v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 283 (Tenn. Crim. App. Apr. 30, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 445 (Tenn. Aug. 20, 2019).

Defendant failed to prove by clear and convincing evidence that appellate counsel was ineffective by failing to challenge the trial court's imposition of consecutive sentencing, or that defendant was prejudiced by any deficiency, because counsel made a reasonable tactical decision as counsel thought that the trial court acted within its discretion by imposing consecutive sentencing when defendant committed violent felony offenses within hours of each other. Counsel focused on other issues which, based on counsel's experience, had more merit. Churchman v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 414 (Tenn. Crim. App. July 12, 2019).

It could not be concluded that trial counsel's representation of defendant in his civil case amounted to ineffective representation in this post-conviction case. Since defendant failed to establish what additional information deposing the victims would have revealed, defendant failed to establish his factual allegations in this regard by clear and convincing evidence. State v. Ailey, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 499 (Tenn. Crim. App. Aug. 19, 2019).

9. Statute of Limitations.

Due process tolling of the limitations period was not justified because no circumstance beyond petitioner's control denied him a reasonable opportunity to present his post-conviction claims in a timely manner; petitioner, who became solely responsible for representing himself, was aware or should have been aware of the time frame in which he had to prepare a petition for post-conviction relief. Whitehead v. State, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 699 (Tenn. Crim. App. Sept. 7, 2011), rev'd, 402 S.W.3d 615, 2013 Tenn. LEXIS 310 (Tenn. Mar. 21, 2013).

10. Petition Properly Denied.

Inmate was not entitled to relief based on a Brady violation, because, even if trial counsel had been in possession of a statement implicating a witness in another homicide, all counsel could have done was asked the witness if he was facing charges or committed the homicide, he could not have impeached the witness's testimony with the statement, and the person who made the statement did not testify at the post-conviction hearing regarding what his answers to such questions would have been. Becton v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 303 (Tenn. Crim. App. Apr. 28, 2015), review denied and ordered not published, — S.W.3d —, 2016 Tenn. LEXIS 80 (Tenn. Jan. 19, 2016).

Petitioner failed to establish that counsel performed deficiently, and the post-conviction court properly denied the petition for post-conviction relief following a full and fair hearing; counsel's advice that petitioner accept the plea offer was sound, nothing suggested that counsel ever guaranteed petitioner that he would prevail at trial, and that counsel's theory of defense was not successful did not mean it was not a reasonable strategy under the circumstances. Agostinho v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 744 (Tenn. Crim. App. Sept. 16, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 56 (Tenn. Jan. 19, 2016).

Post-conviction relief was properly denied, as trial counsel's failure to contemporaneously object to character evidence of the victim did not amount to ineffective assistance, since counsel did ultimately object and jury heard about the victim's attributes and that the victim frequently picked up prostitutes and bought drugs for them, and the inmate failed to show that the trial court's sequestration order as to the investigator was prejudicial. Echols v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 31 (Tenn. Crim. App. Jan. 15, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 340 (Tenn. May 5, 2016).

Denial of post-conviction relief was proper, as the inmate failed to prove what further investigation would have revealed and thus, counsel was not ineffective for failing to investigate or interview witnesses prior to trial, and counsel was not ineffective for establishing the value of the items taken, as the questions were within the purview of counsel's strategy. Mayers v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 262 (Tenn. Crim. App. Mar. 31, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 604 (Tenn. Aug. 18, 2016).

Denial of post-conviction relief was proper, because the inmate failed to show counsel was deficient after counsel testified he went over the contents CDs and DVDs containing interviews of the victim, the inmate, and other witnesses with the inmate and it was the practice of the prosecutor to have someone from probation review the rules of probation and sex offender directive with a defendant before a guilty plea was entered. Turner v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 248 (Tenn. Crim. App. Apr. 1, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 595 (Tenn. Aug. 18, 2016).

Post-conviction relief was properly denied, as the court properly denied the inmate's motion to recuse the District Attorney General's office where he failed to show prejudice as a result of the delayed disclosure of the prosecutor's notes containing a notation “Defendant made no threats,” counsel was not ineffective for failing to seek a change in venue where there was not a lot of publicity, and the inmate failed to show counsel was ineffective in selecting a jury without individual voir dire. Rose v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 410 (Tenn. Crim. App. June 2, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 764 (Tenn. Oct. 19, 2016).

Inmate's petition for post-conviction relief was properly denied, because the inmate could not show that he was prejudiced by trial counsel's failure to raise the statute of limitations as a defense, and the jury and the inmate were informed of a witness's agreement with the State and trial counsel cross-examined the witness about it. Staggs v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 462 (Tenn. Crim. App. June 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 745 (Tenn. Oct. 19, 2016).

Post-conviction relief was properly denied, because the inmate failed to show that counsel rendered ineffective assistance, as counsel testified that he relayed the State's plea offer to the inmate and explained the facts that would be required to establish his guilt, counsel discussed the disparity between the plea offer sentence and the sentence exposure if convicted after a trial, and counsel recalled that all discussions were in the context of a felony murder. Gibbs v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 472 (Tenn. Crim. App. June 30, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 778 (Tenn. Oct. 20, 2016).

Inmate's petition for post-conviction relief was properly denied, as the inmate failed to meet his burden of proving ineffective representation, as trial counsel testified that he met with the inmate multiple times prior to trial to discuss the implications of testifying and the inmate did not wish to testify, the inmate testified that he understood his rights and it was his decision not to testify, and the inmate failed to offer any evidence as to what his testimony would have been. Stanton v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 531 (Tenn. Crim. App. July 21, 2016).

Post-conviction relief was properly denied as the inmate failed to prove he received ineffective assistance of counsel where counsel testified he advised the inmate to take the plea bargain offer because it was likely the inmate would be convicted of first degree murder if he went to trial and the inmate expressed his understanding of the implications of his decision to plead guilty, affirmed he did not wish to go to trial, and had ample opportunities to express any misunderstanding of his plea. Elliott v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 546 (Tenn. Crim. App. July 26, 2016).

There was no error in the post-conviction court's refusal to admit evidence of the State's chart used during jury selection; the prosecutor stated there were no notations related to race or ethnicity, and it could not be concluded that the admission of the chart would have in any way aided petitioner in a potential Batson claim, and not post-conviction relief was warranted. Lewis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 722 (Tenn. Crim. App. Sept. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 38 (Tenn. Jan. 20, 2017).

Inmate was properly denied post-conviction relief because (1) the inmate did not show counsel ineffectively failed to argue the weight of the drugs the inmate possessed, as the inmate's testimony was vague and contradictory, and counsel testified the argument was made, (2) the inmate did not show counsel let the inmate sign a sentencing agreement without understanding the rights waived, as the inmate showed no coercion or unknowing, unintelligent, or involuntary decision, (3) the inmate showed no prejudice, as the inmate faced a longer sentence than the one the inmate agreed to in exchange for the right to appeal, and (4) the inmate waived review of a claim that the inmate was not mentally competent to stand trial. Armstrong v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 800 (Tenn. Crim. App. Oct. 26, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 129 (Tenn. Feb. 21, 2017).

Inmate was not entitled to post-conviction relief, counsel was not ineffective for failing to present an entrapment defense for which there was no evidence, the inmate failed to present witnesses at the evidentiary hearing that counsel should have allegedly called to testify, and counsel did provide the inmate with discovery and went over the police reports with him. Mendenhall v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 884 (Tenn. Crim. App. Nov. 28, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 120 (Tenn. Feb. 15, 2017).

Denial of post-conviction relief was proper, as the inmate's claim that trial counsel was ineffective for not calling a babysitter for the victim as a witness lacked merit, as the babysitter did not testify at the post-conviction hearing. Wooten v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 885 (Tenn. Crim. App. Nov. 28, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 125 (Tenn. Feb. 16, 2017).

Denial of post-conviction relief was proper, as trial counsel made a sound strategic decision no to call the victim's grandfather as a witness due to concerns that the trial court might have allowed him to testify concerning the victim's character and that she was a truthful, credible witness. Wooten v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 885 (Tenn. Crim. App. Nov. 28, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 125 (Tenn. Feb. 16, 2017).

Denial of post-conviction relief was proper, as trial counsel was not ineffective for failing to call the inmate's co-worker to rebut testimony that the inmate and a roommate had their children at the apartment at different times and the victim could have slept somewhere other than with the inmate, as there was testimony that all the children were there at the same time when the co-worker was present. Wooten v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 885 (Tenn. Crim. App. Nov. 28, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 125 (Tenn. Feb. 16, 2017).

Post-conviction relief was properly denied, as inmate failed to show State withheld exculpatory information and trial counsel made a strategic decision not to cross-examine two detectives concerning their misconduct on another case because she needed one detective to testify as to the 21-foot rule, a law enforcement training concept that a person with an edged weapon within 21 feet is a risk sufficient to justify the use of lethal force, for purposes of establishing the defense of self-defense. Ellington v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 899 (Tenn. Crim. App. Dec. 1, 2016).

Post-conviction relief was properly denied, as counsel was not ineffective for failing to challenge the inmate's statement to police after the inmate initially asked for lawyer but later said he did not need one, for failing to move for redaction of references to gang activity, as inmate referenced his gang affiliation and disassociation from it, and appellate counsel was not ineffective for failing to raise the issue of the sufficiency of the evidence where evidence supported convictions. Grasty v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 109 (Tenn. Crim. App. Feb. 17, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 294 (Tenn. May 28, 2017).

Post-conviction relief was properly denied, as inmate waived challenges by failing to include the issues in his post-conviction petition, the inmate's mere citation to his own testimony to support his claim that counsel was ineffective did not comply with Tenn. R. App. P. 27(a)(7)(A), and his waived any claim that the court erred in denying his request for funds for a private investigator by failing to provide facts or argument in his brief. El Amin v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 125 (Tenn. Crim. App. Feb. 24, 2017), appeal denied, Bin El Amin v. State, — S.W.3d —, 2017 Tenn. LEXIS 230 (Tenn. Apr. 13, 2017).

Post-conviction court properly dismissed defendant's petition for relief because, while the State's counsel's closing arguments that “self-defense was a get out of jail free card” might have been an improper argument, the comments were not improper argument based upon the context in which they were stated; the prosecutor was pointing out to the jury that if defendant believed he had to act in self-defense, why would he wait almost two weeks to put forth that reason for the killings (an absolute defense to homicide) during multiple recorded telephone calls made by defendant from jail to several people; and defense counsel did not objection for tactical strategic reasons. Howard v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 220 (Tenn. Crim. App. Mar. 24, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 366 (Tenn. June 7, 2017).

Post-conviction relief was properly denied, as trial counsel was not deficient for failing to argue that the inmate's arrest was not supported by probable cause, as the record showed that officers were given a description of a car seen next to the truck where the victim's body was found, the vehicle was seen pulling into a parking lot where the inmate was seen using an ATM inside, and codefendant implicated the inmate, or for failing to attempt to obtain unedited footage of his arrest from a television show, as the inmate failed to show prejudice by producing the raw footage at the post-conviction hearing. Malone v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 286 (Tenn. Crim. App. Apr. 18, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 547 (Tenn. Aug. 21, 2017).

Post-conviction relief was properly denied, as trial counsel was not ineffective for failing to argue that the trial court misapplied an enhancement factor because the trial court applied four other enhancement factors and thus, defendant was not prejudiced; not was trial counsel ineffective for failing to have DNA analysis performed on all of the physical evidence, as it would not have changed the aggravated sexual battery conviction where the inmate admitted to beating the victim. Garner v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 287 (Tenn. Crim. App. Apr. 18, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 546 (Tenn. Aug. 21, 2017).

Post-conviction relief was properly denied, as the inmate could not show trial counsel was ineffective for failing to call the inmate's mother and wife to testify in support of an alibi defense when the mother would have testified the inmate had left the house during the night in question and the wife would have testified he handed her bloody clothes to wash, and the inmate's claim that he was coerced not to testify was belied by his acknowledgement he made the choice not to testify on the advise of counsel. Jackson v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 378 (Tenn. Crim. App. May 15, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 611 (Tenn. Sept. 21, 2017).

Trial court properly denied post-conviction relief, as inmate could not show counsel was ineffective for failing to call two witnesses, failing to inform defendant that a codefendant would testify against him, and failing to call family members or a doctor to testify about defendant's mental health history. McKissack v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 790 (Tenn. Crim. App. Aug. 31, 2017), appeal denied, McKissack v. State, — S.W.3d —, 2017 Tenn. LEXIS 859 (Tenn. Dec. 6, 2017).

Inmate was not entitled to post-conviction relief for a trial judge's failure to sua sponte recuse due to a relationship with a prosecutor's employee because (1) no clear and convincing evidence showed an improper relationship, and (2) counsel's failure to move to recuse based on counsel's belief the judge was not influenced was not ineffective. Kiser v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1047 (Tenn. Crim. App. Dec. 21, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 223 (Tenn. Apr. 19, 2018).

Inmate was not entitled to post-conviction relief based on alleged newly discovered exculpatory evidence because such actual innocence claims not based on scientific evidence were not cognizable. Kiser v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1047 (Tenn. Crim. App. Dec. 21, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 223 (Tenn. Apr. 19, 2018).

Inmate was not entitled to post-conviction relief based on a trial witness's alleged perjury because (1) it was not alleged that the State knowingly presented false testimony, and, (2) had such a claim been made, nothing showed false testimony was knowingly presented. Kiser v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1047 (Tenn. Crim. App. Dec. 21, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 223 (Tenn. Apr. 19, 2018).

Inmate was not entitled to post-conviction relief for trial counsel's alleged failure to interview witnesses because the inmate did not present the witnesses at the evidentiary hearing on the inmate's petition for post-conviction relief. Pettie v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 153 (Tenn. Crim. App. Feb. 27, 2018).

Inmate was not entitled to post-conviction relief for trial counsel's failure to move to dismiss new charges on grounds of vindictive prosecution and unreasonable delay because (1) the inmate was told the charges could be brought, and (2) the State had probable cause to bring the charges. Pettie v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 153 (Tenn. Crim. App. Feb. 27, 2018).

Inmate was not entitled to post-conviction relief for appellate counsel's failure to raise bond revocation and denial of the inmate's right to self-representation because (1) bond was properly revoked when the inmate dismissed counsel the day before trial, and (2) the inmate's assertion of the right to self-representation at that time was untimely. Pettie v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 153 (Tenn. Crim. App. Feb. 27, 2018).

Inmate was not entitled to post-conviction relief for appellate counsel's failure to argue the proper sentencing range because trial counsel had correctly determined that the inmate's prior convictions could be used to enhance the inmate's sentence. Pettie v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 153 (Tenn. Crim. App. Feb. 27, 2018).

Inmate was not entitled to post-conviction relief for trial counsel's alleged failure to “timely” inform the inmate of the inmate's confession or to adequately prepare for a suppression hearing because counsel credibly testified counsel informed the inmate of the confession and adequately prepared for the hearing. Pettie v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 153 (Tenn. Crim. App. Feb. 27, 2018).

Inmate was not entitled to post-conviction relief for trial counsel's alleged failure to argue the inmate's stop was invalid under the “cite and release” statute or to argue the inmate was intoxicated when the inmate confessed because (1) counsel researched the statute and found the statute did not apply, and (2) the inmate did not timely make counsel aware of the intoxication. Pettie v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 153 (Tenn. Crim. App. Feb. 27, 2018).

Denial of post-conviction relief was not erroneous, as the inmate failed to offer any proof of what his girlfriend would have testified to had she been called at trial and thus, the failure to call her as a witness could not support a finding of ineffective assistance of counsel; Williams v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 327 (Tenn. Crim. App. Apr. 26, 2018).

Inmate was not entitled to post-conviction relief because counsel was not ineffective for failing to interrupt the trial judge at the motion for a new trial hearing given his realization it would not have changed the ruling of the trial court, nor was counsel ineffective for failing to move for a mistrial or request testimony be stricken based on the State's failure to provide the inmate with a witness's written statement given the lack of evidence regarding the existence of such a statement. Bobo v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 784 (Tenn. Crim. App. Oct. 19, 2018).

Inmate was not entitled to post-conviction relief for the State's failure to preserve evidence because the inmate waived such a freestanding claim by not raising the claim on direct appeal. Carroll v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 819 (Tenn. Crim. App. Nov. 5, 2018).

Denial of post-conviction relief was proper, as trial counsel was not ineffective for failing to challenge the sufficiency of the evidence after the State adduced sufficient proof to sustain the attempted aggravated robbery conviction and trial counsel did not deprive the inmate of his constitutional right to testify when counsel advised the inmate he would not allow him to testify because his answers would be lies, as counsel correctly advised the inmate that if he intended to offer false testimony, counsel ethically would be unable to question him. Pierce v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 821 (Tenn. Crim. App. Nov. 5, 2018).

Post-conviction court did not err in finding that the inmate failed to prove that trial counsel was deficient in any way, as the record indicated that, after defendant's motion to suppress was denied, the inmate and trial counsel discussed the inmate's options and ultimately chose to plead guilt the same day and the record contained sufficient evidence that the inmate understood the options he faced and the sentence associated with his guilty plea. Washington v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 908 (Tenn. Crim. App. Dec. 14, 2018).

Inmate was not entitled to post-conviction relief based on the alleged ineffective assistance of trial counsel, as the inmate failed to show counsel's failure to raise a speedy trial violation prevented the inmate from being able to locate witnesses or prejudiced his defense, the inmate failed to show that the State caused the delay to gain a tactical advantage or that he was prejudiced by the delay, and the inmate failed to show that trial counsel was ineffective for failing to communicate. Grimes v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 15 (Tenn. Crim. App. Jan. 7, 2019).

Post-conviction court did not err in denying the inmate's request for relief because he failed to show prejudice due to trial counsel's failure to obtain a video recording of the victims' first interview with a forensic interviewer, failure to provide the inmate with discovery, and failure to have the inmate testify, where the inmate failed to present the video at the hearing to show how it prejudiced him, counsel testified he and the inmate reviewed discovery, and the inmate failed to offer testimony that would have rebutted proof of guilt. Looney v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 96 (Tenn. Crim. App. Feb. 15, 2019).

Petitioner made no argument as to how he would have responded to the proof for each count so as to have changed the jury's verdict, and thus he failed to demonstrate that trial counsel was deficient for failing to request an election of offenses at the close of the State's proof or that he was prejudiced by any deficiency. Sanchez v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 200 (Tenn. Crim. App. Mar. 27, 2019).

In petitioner's rape of a child case, trial court stated that it had reviewed and rejected all 13 mitigating factors, and petitioner did not explain what other mitigating evidence trial counsel could have presented at sentencing that would have resulted in the trial court's ordering him to serve his five 25-year sentences concurrently; thus, he failed to demonstrate that trial counsel was deficient or that he was prejudiced by any deficiency. Sanchez v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 200 (Tenn. Crim. App. Mar. 27, 2019).

Counsel testified that he talked with the State and received discovery materials before trial, and thus he knew what the State's evidence was going to be and what the victim was going to say at trial; petitioner offered no explanation as to how trial counsel's failure to file a motion for a bill of particulars impaired his defense, and thus he failed to demonstrate that he was entitled to post-conviction relief. Sanchez v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 200 (Tenn. Crim. App. Mar. 27, 2019).

Court found no obvious differences between the signatures on the waiver and the statement and the signature on the booking sheet, plus petitioner did not have a handwriting expert testify at the hearing; the court could not speculate on what benefit the witness might have offered to petitioner's case, and thus he failed to demonstrate deficient performance or prejudice. Sanchez v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 200 (Tenn. Crim. App. Mar. 27, 2019).

In a case in which defendant was convicted of aggravated robbery, defendant's protected right to autonomy was not violated by counsel's partial admission of guilt to simple robbery because nothing in the record showed that defendant made a clear assertion of his innocence or made an objection to that particular defense strategy; trial counsel did not concede defendant's guilt to the primary offense at any time; and, based on the post-conviction court's factual determinations, it appeared that the decision to partially admit involvement was an agreed-upon trial strategy likely made due to the identification of defendant and his own statement to the police. Broadnax v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 210 (Tenn. Crim. App. Mar. 29, 2019).

Petitioner was properly denied post-conviction relief; while counsel was deficient for not learning until months later that the plea agreement included a special condition that petitioner could not seek to suspend the remainder of his sentence, he was present when the State said five times that he could not petition for suspension and the trial court warned him that the odds were against him for probation, yet he chose to proceed, and he failed to demonstrate that counsel's deficiency resulted in his guilty pleas being involuntary. Johnson v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 232 (Tenn. Crim. App. Apr. 10, 2019).

Circuit court properly denied defendant's petition for post-conviction relief because he did not establish that he received ineffective assistance of counsel and/or that his guilty plea was unknowing and involuntary where, inter alia, he was fully advised about the consequences of the guilty plea, trial counsel gave advice and services within the bounds of generally accepted professional standards, defendant did not offer any testimony to show how his ability to enter into the plea agreement was affected by failing to take his medication or any testimony, other than his own, that he was either prescribed and/or was not taking medication at the time of the plea. Williams v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 389 (Tenn. Crim. App. July 3, 2019).

Trial court did not err in denying post-conviction relief because the inmate waived his claim that counsel was ineffective for failing to properly investigate his case by failing to present any proof supporting that claim at his evidentiary hearing, the inmate failed to show that counsel was ineffective for not filing a motion to suppress because he failed to present any evidence that a suppression motion would have been granted, and, the inmate failed to establish that he was prejudiced by trial counsel's failure to present the witness at trial since he did not present the witness at the hearing. Wilkerson v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 51 (Tenn. Crim. App. Jan. 30, 2020).

In an action challenging the denial of postconviction relief, the inmate failed to show by clear and convincing evidence that trial counsel was deficient for failing to call three witnesses, as the inmate presented only one witness at the post-conviction hearing, who did not indicate what her testimony would have been at trial, and without the testimony of the other two witnesses, the appellate court could not speculate as to what those witnesses might have said or whether they might have been credible. Tumlin v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 193 (Tenn. Crim. App. Mar. 23, 2020).

Denial of postconviction relief was proper because, although the trial court should have defined “sexual contact” as part of the instruction for aggravated sexual battery, not attempted rape of a child, counsel was not deficient for not noticing and objecting to the misplaced definition because the trial court defined “sexual contact” and thus, the inmate failed to show prejudice. Black v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 215 (Tenn. Crim. App. Apr. 1, 2020).

Defendant's petition for post-conviction relief was properly denied because, concerning defendant's claims of newly discovered evidence, the post-conviction court did not err in holding that allegations of newly discovered or recanted testimony were matters related to the sufficiency of the evidence and not appropriate for post-conviction relief. Alajemba v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 233 (Tenn. Crim. App. Apr. 13, 2020).

Defendant's petition for post-conviction relief was properly denied because the post-conviction court did not err in finding that defendant failed to present any evidence at the post-conviction hearing to demonstrate how an insanity defense could be made or supported as the post-conviction court found that defendant had been found competent to stand trial; and the post-conviction court accredited trial counsel's testimony that the appointed doctor's testimony would not be favorable to defendant. Alajemba v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 233 (Tenn. Crim. App. Apr. 13, 2020).

Inmate's claim for postconviction relief based on trial counsel's failure to object to the inmate's wearing of a stun vest during trial was properly denied because, even if trial counsel were deficient for failing to object, the inmate failed to show that he was prejudiced by the deficiency, as there was no proof the jury ever saw the stun vest, counsel testified that the inmate never complained about the vest, and the inmate's claim the stun vest affected his ability to communicate with trial counsel was not credible. Massey v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 252 (Tenn. Crim. App. Dec. 16, 2019).

Trial court did not err in denying the inmate's petition for post-conviction relief, seeking relief from rape and incest convictions, because trial counsel testified that he could not remember why he did not object to the victims' testimony but acknowledged that his decision may have been strategic, and trial counsel was not deficient for failing to file a Tenn. R. Evid. 412 motion and the inmate failed to demonstrate he was prejudiced by trial counsel's failure to file the motion because trial counsel even acknowledged that it would not be unusual for a fifteen-year-old to have knowledge about sexual matters. Colwell v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 470 (Tenn. Crim. App. July 10, 2020).

Denial of post-conviction relief was appropriate because defendant failed to show that trial counsel was deficient or that defendant was prejudiced by any deficiency as the post-conviction court accredited the testimony of defendant's counsel and the favorable sentence defendant received. Defendant also failed to show that defendant did not plead guilty knowingly or understandingly as the trial court confirmed that defendant went over the plea petition with counsel, understood the petition, and signed the petition freely and voluntarily. Alexander v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 579 (Tenn. Crim. App. Aug. 25, 2020).

11. Post-conviction Review.

15. Effective Assistance of Counsel.

Petitioner failed to establish deficient performance or prejudice on the part of trial counsel, and petitioner was not entitled to post-conviction relief. Although trial counsel was aware of the victim's different descriptions of a gun used in a robbery prior to trial, trial counsel emphasized that the victim never said that there was not a gun involved in the robbery and that the color of the gun was not relevant. Ridley v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 20 (Tenn. Crim. App. Jan. 16, 2020).

Post-conviction court properly denied defendant's petition for relief because he failed to show that his trial counsel was ineffective where counsel visited with defendant between 17 and 19 times in the jail, and wrote at least six letters to him discussing the contents of discovery and answering defendant's questions, counsel also provided defendant with adequate information regarding trial strategy and the potential consequences of going to trial, provided defendant with discovery on two occasions, which they reviewed on multiple occasions, and reviewed all of the evidence in defendant's case so that defendant could make an “informed decision” to accept the plea offer from the State. Balfour v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 513 (Tenn. Crim. App. July 27, 2020).

40-30-111. Final disposition of petitions — Compliance reports.

If the court finds that there was such a denial or infringement of the rights of the prisoner as to render the judgment void or voidable, including a finding that trial counsel was ineffective on direct appeal, the court shall vacate and set aside the judgment or order a delayed appeal as provided in this part and shall enter an appropriate order and any supplementary orders that may be necessary and proper. Costs shall be taxed as in criminal cases.
Upon the final disposition of every petition, the court shall enter a final order, and except where proceedings for delayed appeal are allowed, shall set forth in the order or a written memorandum of the case all grounds presented, and shall state the findings of fact and conclusions of law with regard to each ground.
Where the petitioner has court-appointed counsel, the court may require petitioner's counsel to file a verified statement of dates and times counsel has consulted with petitioner, and this statement shall become a part of the record.
The court shall rule within sixty (60) days of conclusion of the proof. The deadline shall not be extended by agreement, and the deadline may be extended only by order of the court based upon a finding that unforeseeable circumstances render a continuance a manifest necessity. An extension shall not exceed thirty (30) days. Final disposition of a capital case must be made within one (1) year of the filing of the petition. Copies of all orders extending deadlines in capital cases shall be sent to the administrative office of the courts. The administrative office of the courts shall report annually to the general assembly on the compliance by the courts within the time limits established for capital cases and the reason for noncompliance, if any.
1. By December 1, 2009, and every December 1 thereafter, the administrative office of the courts shall complete the compliance report required by subsection (d) and submit the report to the chief clerks of the house of representatives and the senate and the chairs of the judiciary committee of the house of representatives and the judiciary committee of the senate.
2. The administrative office of the courts, in consultation with the district attorneys general conference, the office of the post-conviction defender and the district public defenders conference, shall review the annual compliance report to determine if the time period for the final disposition of post-conviction petitions in capital cases set out in subsection (d) is a realistic time period for providing a thorough and meaningful review of the claims and making a final disposition of them. If it is determined that the statutory period for final disposition of the petitions is not realistic, the administrative office of the courts shall determine a realistic and attainable time period and submit it to the legislature as provided in subdivision (e)(1).
3. The review and determination of a realistic time period for the conclusion of post-convictions petitions required by subdivision (e)(2) shall be made by December 1, 2009, and every December 1 thereafter.

Acts 1995, ch. 207, § 1; T.C.A. § 40-30-211; Acts 2009, ch. 594, § 1; 2013, ch. 236, § 38; 2019, ch. 345, § 57.

Amendments. The 2019 amendment substituted “judiciary” for “criminal justice” preceding “committee of the house” in (e)(1).

Effective Dates. Acts 2019, ch. 345, § 148. May 10, 2019.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 12.34.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 39.

Law Reviews.

Adjudicating Claims of Innocence for the Capitally Condemned in Tennessee: Embracing a Truth Forum (Dwight Aarons), 76 Tenn. L. Rev. 511 (2009).

Post-Conviction Relief in Tennessee — Fourteen Years of Judicial Administration Under the Post-Conviction Procedure Act (Gary L. Anderson), 48 Tenn. L. Rev. 605 (1981).

NOTES TO DECISIONS

1. Effective Assistance of Counsel.

Defendant may receive a delayed appeal under T.C.A. §§ 40-30-113(a)(1) and (3), and 40-30-111(a), if he was denied effective assistance of counsel in violation of the U.S. Const. amend. VI or Tenn. Const. art. I, § 9. Wallace v. State, 121 S.W.3d 652, 2003 Tenn. LEXIS 1213 (Tenn. 2003).

2. Sufficient Order.

Although the post-conviction court's order denying relief contained a section entitled “Findings of Fact,” the court merely recounted the testimony presented at the hearing without making factual findings or credibility determinations; however, the order set forth reasons for denying relief, and petitioner took no fault with the order, and it was sufficient to permit appellate review. Rice v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 229 (Tenn. Crim. App. Mar. 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 606 (Tenn. Aug. 19, 2016).

Post-conviction court properly denied defendant's motion for relief because the court identified defendant's claim for relief, summarized the scant proof presented, made specific credibility findings, and concluded that defendant failed to prove deficient performance or prejudice, the evidence did not preponderate against the court's finding that trial counsel had advised defendant of the plea offer, the likelihood of conviction, the range of punishment, and the implications of his previous criminal history, and the post-conviction court specifically found that defendant's testimony lacked credibility. Coleman v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 541 (Tenn. Crim. App. July 25, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 796 (Tenn. Oct. 20, 2016).

On remand from the appellate court, the post-conviction court entered an order that set out its findings of fact and conclusions of law regarding petitioner's ground for relief. Therefore, the record was sufficient for the appellate court to conduct a review. Lewis v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 417 (Tenn. Crim. App. July 12, 2019).

3. Findings of Fact.

Post-conviction court failed to make adequate findings of fact and conclusions of law regarding petitioner's Batson claim, but on direct appeal the transcript of voir dire was relied upon to conduct a substantive analysis of the claim; the dispute was whether the omission of challenge sheets constituted deficient performance that prejudiced petitioner, which was a question of law reviewed de novo. Sanders v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 185 (Tenn. Crim. App. Mar. 2, 2016), appeal dismissed, — S.W.3d —, 2016 Tenn. LEXIS 585 (Tenn. Aug. 19, 2016).

In an action for post-conviction relief, the record was devoid of any findings of fact and conclusions of law with regards to petitioner's issues, including those touching on the Board of Professional Responsibility's inquiry into the prosecutor and lead counsel's role in the inquiry into petitioner's insanity; the lack of an objection to testimony that petitioner was not committable; and the trial court's alleged conflict of interest and whether petitioner was adequately advised of those circumstances. Johnson v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 602 (Tenn. Crim. App. Sept. 8, 2020).

4. Failure to Make Findings.

Failure to make findings in this case was error, but because the witnesses' testimony on the issue of the voluntary and intelligent nature of petitioner's plea was clearly set out at the post-conviction hearing and in the plea colloquy, reversal was not necessary. Edwards v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 212 (Tenn. Crim. App. Mar. 23, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 597 (Tenn. Aug. 18, 2016).

Remand of a case for a new post-conviction hearing was necessary because the post-conviction court's final order failed to contain specific findings of fact and conclusions of law relating to each issue presented when defendant alleged that defendant's best interest plea was not voluntarily given due to ineffective assistance of counsel. Epps v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 326 (Tenn. Crim. App. May 4, 2017).

Court of criminal appeals was unable to properly address the merits of petitioner's claims that his guilty pleas were unknowingly and involuntarily entered because the record was devoid of several findings of fact and conclusions of law critical to review, which were required under the Post-Conviction Procedure Act. Nabi v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 270 (Tenn. Crim. App. Apr. 9, 2018).

Remand was necessary for additional findings of fact and conclusions of law because the post-conviction court failed to make findings as to whether trial counsel provided deficient performance by failing to challenge the sufficiency of the evidence to establish defendant's identity as the perpetrator of one aggravated robbery and the ownership or possession of the property taken in another aggravated robbery. The court merely said that the issues were subsumed by sufficiency of the evidence argument in a previous appeal. Boatwright v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 397 (Tenn. Crim. App. May 22, 2018).

Although the post-conviction court did not make explicit findings regarding certain claims, the post-conviction court's findings and denial of petitioner's claim were sufficient to allow for review of this claim. Brent v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 295 (Tenn. Crim. App. Apr. 24, 2020).

7. Delayed Appeal.

Because there was no post-conviction petition on which to proceed, and the trial court did not require defendant to comply with the Post-Conviction Procedure Act and to satisfy his burden of proving the allegations of fact by clear and convincing evidence or to establish that he received ineffective assistance of counsel, the trial court lacked jurisdiction over the case when it issued its order purporting to grant a delayed appeal. State v. Caudle, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 717 (Tenn. Crim. App. Nov. 12, 2019).

Decisions Under Prior Law

1. Duties Mandatory.

In prescribing the duties of the trial court, the legislature in using the word “shall” clearly indicates its intention to make such specified duties mandatory. Brown v. State, 1 Tenn. Crim. App. 462, 445 S.W.2d 669, 1969 Tenn. Crim. App. LEXIS 335 (Tenn. Crim. App. 1969); Blankenship v. State, 4 Tenn. Crim. App. 158, 469 S.W.2d 530, 1971 Tenn. Crim. App. LEXIS 493 (Tenn. Crim. App. 1971); Sykes v. State, 477 S.W.2d 254, 1971 Tenn. Crim. App. LEXIS 467 (Tenn. Crim. App. 1971); Davis v. State, 673 S.W.2d 171, 1984 Tenn. Crim. App. LEXIS 2775 (Tenn. Crim. App. 1984).

It is the primary duty of the trial court to make the basic findings on factual issues in all cases heard under the Post-Conviction Relief Act and the habeas corpus statutes and to set forth in his final order or written memorandum of the case stating the findings of fact and conclusions of law with regard to each ground. Dowlen v. State, 2 Tenn. Crim. App. 34, 450 S.W.2d 793, 1969 Tenn. Crim. App. LEXIS 353 (Tenn. Crim. App. 1969).

The trial court is required to state its reasons for its disposition of a petition. A petition stating a colorable claim for relief or demonstrating an unwaived or undetermined ground for relief is to be considered on its merits; technical grounds for dismissal are clearly disfavored for such petitions. Swanson v. State, 749 S.W.2d 731, 1988 Tenn. LEXIS 70 (Tenn. 1988).

2. Absence of Finding of Facts.

Failure of trial court to include finding of facts in order dismissing petition required reversal of the order. Brown v. State, 1 Tenn. Crim. App. 462, 445 S.W.2d 669, 1969 Tenn. Crim. App. LEXIS 335 (Tenn. Crim. App. 1969).

Factual question regarding voluntariness of guilty plea demanded an evidentiary hearing in post-conviction proceeding, and a finding of fact was required; however, since the evidence showed the facts were undisputed, reversal was not required for failure of trial court to make a finding of fact. Webb v. State, 4 Tenn. Crim. App. 723, 475 S.W.2d 228, 1971 Tenn. Crim. App. LEXIS 444 (Tenn. Crim. App. 1971).

The failure of the trial judge to state his findings in the order of dismissal does not in itself deny any constitutional right which would render the conviction or sentence void or voidable. George v. State, 533 S.W.2d 322, 1975 Tenn. Crim. App. LEXIS 265 (Tenn. Crim. App. 1975).

Where the findings of fact and conclusions of law were not stated in the final order or by a separate written memorandum it was harmless error as the trial court orally pronounced his findings from the bench. State v. Higgins, 729 S.W.2d 288, 1987 Tenn. Crim. App. LEXIS 2090 (Tenn. Ct. App. 1987).

3. Final Order.

Where court dismisses petition on questions of law he has no evidence upon which to find facts but his order should show all grounds presented and his conclusions with regard to each of them. Little v. State, 4 Tenn. Crim. App. 175, 469 S.W.2d 537, 1971 Tenn. Crim. App. LEXIS 395 (Tenn. Crim. App. 1971); Troletti v. State, 483 S.W.2d 755, 1972 Tenn. Crim. App. LEXIS 333 (Tenn. Crim. App. 1972).

4. —Noncompliance with Requisites.

Although a trial judge is required to set forth a final written order in which all grounds presented are set forth along with findings of fact and conclusions of law with regard to each of the grounds, a trial judge's noncompliance with the mandate does not always warrant a reversal of the trial court's judgment. State v. Swanson, 680 S.W.2d 487, 1984 Tenn. Crim. App. LEXIS 2950 (Tenn. Crim. App. 1984).

The primary intent of the general assembly underlying the requirement that a trial judge set forth a final written order in which all grounds presented are set forth along with findings of fact and conclusions of law with regard to each of the grounds is to facilitate appellate review of the lower court's proceedings, and the failure to meet the requirement neither constitutes constitutional abridgement nor renders the conviction or sentence of the appellant void or voidable, and where the record contains the reasons of the trial judge for dismissing appellant's petition and the transcripts of both the evidentiary hearing held on appellant's post-conviction petition and the original trial, the record is sufficient to effectuate meaningful appellate review. State v. Swanson, 680 S.W.2d 487, 1984 Tenn. Crim. App. LEXIS 2950 (Tenn. Crim. App. 1984).

5. Vacating and Setting Aside Judgment.

Where court appointed attorney perfected appeal to court of criminal appeals, but failed to file petition for writ of certiorari seeking review in supreme court or to advise defendant of such review, rights of defendant were violated, and proper procedure was to vacate order affirming conviction and then to reinstate order so as to start a new statutory period for filing of petition for certiorari. Hutchins v. State, 504 S.W.2d 758, 1974 Tenn. LEXIS 425 (Tenn. 1974).

6. Reduction of Sentence.

A trial judge is not authorized to reduce a sentence to compensate for the entry of a guilty plea induced by faulty representation of counsel. State v. Carter, 669 S.W.2d 707, 1984 Tenn. Crim. App. LEXIS 2639 (Tenn. Crim. App. 1984).

40-30-112. Notice of final judgments by clerk of court.

The clerk of the court shall send a copy of the final judgment to the petitioner, the petitioner's counsel of record, any authority imposing restraint on the petitioner and the attorney general and reporter at Nashville.

Acts 1995, ch. 207, § 1; T.C.A. § 40-30-212.

40-30-113. Petitioner unconstitutionally denied appeal — Procedure.

When the trial judge conducting a hearing pursuant to this part finds that the petitioner was denied the right to an appeal from the original conviction in violation of the Constitution of the United States or the Constitution of Tennessee and that there is an adequate record of the original trial proceeding available for a review, the judge can:
1. If a transcript was filed, grant a delayed appeal;
2. If, in the original proceedings, a motion for a new trial was filed and overruled but no transcript was filed, authorize the filing of the transcript in the convicting court; or
3. If no motion for a new trial was filed in the original proceeding, authorize a motion to be made before the original trial court within thirty (30) days. The motion shall be disposed of by the original trial court as if the motion had been filed under authority of Rule 59 of the Rules of Civil Procedure.
An order granting proceedings for a delayed appeal shall be deemed the final judgment for purposes of review. If either party does appeal, the time limits provided in this section shall be computed from the date the clerk of the trial court receives the order of the appellate court determining the appeal.
The judge of the court which sentenced a prisoner who has sought and obtained relief from that sentence by any procedure in a federal court is likewise empowered to grant the relief provided in this section.

Acts 1995, ch. 207, § 1; T.C.A. § 40-30-213.

Cross-References. Appeal as of right, record, T.R.A.P. 3, 24, 25, 26.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 33.105.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 39.

Law Reviews.

Post-Conviction Relief in Tennessee — Fourteen Years of Judicial Administration Under the Post-Conviction Procedure Act (Gary L. Anderson), 48 Tenn. L. Rev. 605 (1981).

NOTES TO DECISIONS

1. Delayed Appeal.

Defendant may receive a delayed appeal under T.C.A. §§ 40-30-113(a)(1) and (3), and 40-30-111(a), if he was denied effective assistance of counsel in violation of the U.S. Const. amend. VI, or Tenn. Const. art. I, § 9. Wallace v. State, 121 S.W.3d 652, 2003 Tenn. LEXIS 1213 (Tenn. 2003).

Fact that defendant was entitled to direct review on the issue of the sufficiency of the evidence supporting a first degree murder conviction did not resolve the prejudice prong of the Strickland test, as nothing in T.C.A. § 40-30-113 limits the trial court's discretion to order a delayed direct appeal to circumstances where there was a complete denial of such an appeal. Wallace v. State, 121 S.W.3d 652, 2003 Tenn. LEXIS 1213 (Tenn. 2003).

Post-conviction court erred in granting defendant post-conviction relief in the form of a new trial as the proper remedy for trial counsel's failure to file a timely motion for new trial was the grant of a delayed appeal; because the post-conviction court should have granted a delayed appeal, which authorized the filing of a motion for new trial, the post-conviction court's judgment granting defendant a new trial was reversed and remanded; and, on remand, the post-conviction court should permit defendant to file a motion for new trial. Torres v. State, 543 S.W.3d 141, 2017 Tenn. Crim. App. LEXIS 855 (Tenn. Crim. App. Sept. 19, 2017).

Post-conviction court erred by failing to follow the proper procedure outlined in T.C.A. § 40-30-113(a)(3), allowing the inmate to file a proper motion for a new trial within 30 days, and Tenn. R. Sup. Ct. 28, § 9(D)(1)(b)(i), directing the postconviction court to stay the original petition until the delayed appeal was completed, prior to granting the inmate a delayed appeal. Moore v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 95 (Tenn. Crim. App. Feb. 15, 2019).

Because appellate counsel for defendant failed to file a timely application for permission to appeal to the Supreme Court of Tennessee, so that defendant was denied the opportunity for substantive review by the Supreme Court, defendant was entitled to a delayed appeal for the purpose of seeking Supreme Court review of defendant's conviction proceedings. As a result defendant's ineffective assistance of counsel allegations were held in abeyance pending the resolution of the delayed appeal. Ruby-Ruiz v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 616 (Tenn. Crim. App. Oct. 2, 2019).

2. No Error.

3. Application.

4. Plain Error Review.

Counsel failed to file a timely motion for new trial, and thus defendant's amended motion for new trial was a nullity; although the trial court granted defendant post-conviction relief to file a delayed appeal, he did not file a motion for new trial within the 30-day time limit, and the trial court never disposed of such a motion, and thus his evidentiary issues were reviewed solely for plain error. State v. Adams, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 845 (Tenn. Crim. App. Nov. 15, 2018).

Decisions Under Prior Law

1. Application.

The provisions for delayed appeal apply only where the petitioner was denied his right of an appeal in the nature of a writ of error from his original conviction. Baugh v. State, 3 Tenn. Crim. App. 121, 457 S.W.2d 887, 1970 Tenn. Crim. App. LEXIS 381 (Tenn. Crim. App. 1970).

Where court appointed attorney assured defendant that he would take the case all the way to the supreme court and case was appealed to the court of criminal appeals which affirmed the conviction but attorney did not seek a writ of certiorari from the supreme court and time had expired before defendant learned of this fact, trial court hearing petition for post-conviction relief had no power to vacate the judgment of the court of criminal appeals and extend the time for applying for certiorari. In this case, however, the court of criminal appeals did vacate and immediately reinstate its own judgment in order to start anew the time for which the defendant could petition the supreme court for writ of certiorari. State v. Hopson, 589 S.W.2d 952, 1979 Tenn. Crim. App. LEXIS 291 (Tenn. Crim. App. 1979).

2. Bill of Exceptions.

An order of the trial court granting a delayed appeal is ineffective to validate a bill of exceptions that is invalid because it was not signed and filed within the time required by law. Sims v. State, 1 Tenn. Crim. App. 623, 448 S.W.2d 93, 1969 Tenn. Crim. App. LEXIS 292 (Tenn. Crim. App. 1969).

Where defendants were denied effective right to appeal because of failure of court reporter to prepare bill of exceptions within time allowed, case would be remanded to trial court in post-conviction proceedings with directions that defendants be resentenced nunc pro tunc upon previous finding of guilt with the time therefor dating from the rendition of the judgment. State v. Davis, 3 Tenn. Crim. App. 625, 466 S.W.2d 237, 1970 Tenn. Crim. App. LEXIS 413 (Tenn. Crim. App. 1971).

Defendant, who was indigent, was entitled to have a bill of exceptions prepared for him free of charge, and the failure to provide him with such a bill constituted good cause for ordering the late filing of the bill of exceptions. State v. Wilson, 530 S.W.2d 766, 1975 Tenn. LEXIS 569 (Tenn. 1975).

3. Delayed Appeal.

The argument that only a trial court may grant a delayed appeal is without merit, because the decision of the trial court in denying the delayed appeal is subject to appeal and correction by an appellate court which can correct the trial court's order by granting the delayed appeal. State v. Wilson, 530 S.W.2d 766, 1975 Tenn. LEXIS 569 (Tenn. 1975).

Only a trial court can grant a delayed appeal, and then only after an evidentiary hearing on a petition for post-conviction relief seeking that remedy. Whisnant v. State, 532 S.W.2d 572, 1975 Tenn. Crim. App. LEXIS 314 (Tenn. Crim. App. 1975). See State v. Wilson, 530 S.W.2d 766, 1975 Tenn. LEXIS 569 (Tenn. 1975).

The trial court's granting a “delayed appeal” triggers the 30-day period for filing a notice of appeal. State v. Cordell, 645 S.W.2d 763, 1982 Tenn. Crim. App. LEXIS 409 (Tenn. Crim. App. 1982).

The statute of limitations for post-conviction relief applies to delayed appeals because the petitioner must comply with the post-conviction procedure act to obtain a delayed appeal. Handley v. State, 889 S.W.2d 223, 1994 Tenn. Crim. App. LEXIS 302 (Tenn. Crim. App. 1994), appeal denied, — S.W.2d —, 1994 Tenn. LEXIS 303 (Tenn. Oct. 10, 1994).

40-30-114. Reimbursement of expenses of district attorney general — Duty of attorney general and reporter.

The district attorney general shall be reimbursed for any expenses, including travel, incurred in connection with the preparation and trial of any proceeding under this part. This expense shall be paid by the state and shall not be included in the expense allowance now received by the various district attorneys general.
1. It is the duty and function of the attorney general and reporter, and the attorney general and reporter's staff, to lend whatever assistance may be necessary to the district attorney general in the trial and disposition of the cases.
2. In the event an appeal is taken or a delayed appeal in the nature of a writ of error is granted, the attorney general and reporter, and the attorney general and reporter's staff, shall represent the state and prepare and file all necessary briefs in the same manner as now performed in connection with criminal appeals.

Acts 1995, ch. 207, § 1; T.C.A. § 40-30-214.

NOTES TO DECISIONS

4. More Than One Victim.

Because defendant was convicted of two counts of assault where the officers were separately named as victims, the trial court improperly applied the enhancement factor under T.C.A. § 40-30-114(3). State v. Stringer, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 730 (Tenn. Crim. App. Sept. 27, 2018).

24. Sentence Upheld.

Trial court properly sentenced defendant to three years for felony evading arrest and 11 months and 29 days for his two aggravated assault convictions, to run consecutively; defendant had an extensive criminal history, the trial court considered all appropriate principles, and the record supported the enhancement factors under T.C.A. § 40-35-114(1), (8), (10), (13)(B), as he had no hesitation to commit a crime when the risk to human life was high, he failed to comply with conditions of sentence, and he was on parole when he committed the offense. State v. Stringer, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 730 (Tenn. Crim. App. Sept. 27, 2018).

40-30-115. Determination of indigency — Appointment of counsel and court reporters.

Indigency shall be determined and counsel and court reporters appointed and reimbursed as now provided for criminal and habeas corpus cases by chapter 14, parts 2 and 3 of this title.

Acts 1995, ch. 207, § 1; T.C.A. § 40-30-215.

Cross-References. Counsel for indigents, title 40, ch. 14, part 2.

Determination of indigency, appointment of counsel, § 8-14-105.

Right to appointed counsel, § 40-14-103.

Decisions Under Prior Law

1. Appointment of Counsel.

Hearing judge did not err in appointing competent local attorney to represent applicant although applicant requested a specific attorney from another county. Brewer v. State, 4 Tenn. Crim. App. 265, 470 S.W.2d 47, 1970 Tenn. Crim. App. LEXIS 496 (Tenn. Crim. App. 1970).

Appointment of counsel is not required in every case where a petition is filed for post-conviction relief. Cureton v. Tollett, 477 S.W.2d 233, 1971 Tenn. Crim. App. LEXIS 460 (Tenn. Crim. App. 1971).

Where the asserted violation was recognized by the court of criminal appeals as a constitutional claim that had not been previously litigated or waived, it provided a colorable claim sufficient to make dismissal without appointment of counsel inappropriate. Allen v. State, 854 S.W.2d 873, 1993 Tenn. LEXIS 204 (Tenn. 1993).

40-30-116. Appeal after final judgment.

The order granting or denying relief under this part shall be deemed a final judgment, and an appeal may be taken to the court of criminal appeals in the manner prescribed by the Tennessee Rules of Appellate Procedure. In capital cases, the appellate court in which the case is pending shall render a decision within nine (9) months of the date of oral argument in the case, if oral argument is conducted. If no oral argument occurs, the court shall render an opinion within nine (9) months after submission of the case to the court for decision. The appellate court shall have thirty (30) days in which to dispose of any petition to rehear which may be filed. If an appellate court finds that it is unable to comply with the deadlines, it shall enter an order setting out the circumstances which render an extension beyond these time limits a necessity. Copies of all the orders shall be sent to the administrative office of the courts. The administrative office of the courts shall report annually to the general assembly on the compliance of the appellate courts with the time limits established in this section.

Acts 1995, ch. 207, § 1; T.C.A. § 40-30-216.

Cross-References. Appeal as of right by state in criminal actions, T.R.A.P. 3.

Textbooks. Tennessee Jurisprudence, 14 Tenn. Juris., Habeas Corpus, § 11.

Decisions Under Prior Law

1. Review.

Petitioner timely filed a pro se petition for post-conviction relief and subsequently, the trial court ordered that his petition be granted. But 43 days later, the trial court found there had not been a factual basis to grant the petition, and it vacated the prior order granting the petition on grounds of mutual mistake under Tenn. R. Civ. P. 60.02. Tenn. Sup. Ct. R. 28 does not authorize the application of Tenn. R. Civ. P. 60.02 in a post-conviction setting; moreover, pursuant to T.C.A. § 40-30-116, a post-conviction court lost jurisdiction over the proceeding 30 days after it entered an order granting post-conviction relief, and therefore, the trial court exceeded its jurisdiction in vacating its prior order and its later order, denying post-conviction relief, was a nullity. Maka v. State, — S.W.3d —, 2004 Tenn. Crim. App. LEXIS 873 (Tenn. Crim. App. Oct. 11, 2004).

In a post-conviction action, the record reflected that petitioner failed to challenge the legality of his sentence on direct appeal and that the petition for post-conviction relief was devoid of any allegation of improper sentencing. Thus, petitioner waived the issue for failure to properly prosecute his sentencing claims. Cartwright v. State, — S.W.3d —, 2004 Tenn. Crim. App. LEXIS 937 (Tenn. Crim. App. Oct. 21, 2004).

2. —Questions of Law.

Where certain mandatory provisions of the former chapter were not complied with but only question was one of law upon which court of criminal appeals could pass, court decided such question rather than reversing and remanding for new trial upon the petition. Brown v. State, 1 Tenn. Crim. App. 462, 445 S.W.2d 669, 1969 Tenn. Crim. App. LEXIS 335 (Tenn. Crim. App. 1969).

3. —Questions of Fact.

Findings of trial court after full evidentiary hearing were conclusive on appeal as to questions of fact where the evidence did not preponderate against the judgment of that court. Turner v. State, 1 Tenn. Crim. App. 582, 447 S.W.2d 876, 1969 Tenn. Crim. App. LEXIS 291 (Tenn. Crim. App. 1969); Janow v. State, 4 Tenn. Crim. App. 195, 470 S.W.2d 19, 1971 Tenn. Crim. App. LEXIS 495 (Tenn. Crim. App. 1971).

Finding of the trial judge that a petitioner's guilty pleas had been voluntarily made and were not the product of a hope for a suspended sentence was, upon appeal, to be given the weight of a jury verdict. Summerlin v. State, 607 S.W.2d 495, 1980 Tenn. Crim. App. LEXIS 324 (Tenn. Crim. App. 1980).

4. —Counsel.

Where petition for post-conviction relief was summarily dismissed, petitioner was entitled to an appeal and, where he was indigent, he was entitled to the appointment of counsel at the trial court level. Recor v. State, 489 S.W.2d 64, 1972 Tenn. Crim. App. LEXIS 294 (Tenn. Crim. App. 1972), cert. denied, Recor v. Tennessee, 411 U.S. 920, 93 S. Ct. 1560, 36 L. Ed. 2d 313, 1973 U.S. LEXIS 2885 (1973).

5. Delayed Appeal.

Under the former section, § 27-3-125 (repealed, see now T.R.A.P. 42) and former § 40-30-120 [repealed], the trial court or the appellate court may order the filing of a delayed appeal where a petitioner has been denied his right to such an appeal under the U.S. or Tenn. Const. State v. Wilson, 530 S.W.2d 766, 1975 Tenn. LEXIS 569 (Tenn. 1975).

Where appointed counsel failed to inform defendant of the trial court's dismissal of his post-conviction petition, and failed to advise him of his right to appeal until the 30-day appeal period had lapsed, the court of appeals waived the timely filing of the notice of appeal. Warren v. State, 833 S.W.2d 101, 1992 Tenn. Crim. App. LEXIS 94 (Tenn. Crim. App. 1992).

6. Waiver of Notice of Appeal.

For purposes of T.R.A.P. 4, post-conviction proceedings are criminal in nature and the notice of appeal may be waived in the interest of justice. State v. Scales, 767 S.W.2d 157, 1989 Tenn. LEXIS 137 (Tenn. 1989).

40-30-117. Motions to reopen.

A petitioner may file a motion in the trial court to reopen the first post-conviction petition only if the following applies:
1. The claim in the motion is based upon a final ruling of an appellate court establishing a constitutional right that was not recognized as existing at the time of trial, if retrospective application of that right is required. The motion must be filed within one (1) year of the ruling of the highest state appellate court or the United States supreme court establishing a constitutional right that was not recognized as existing at the time of trial; or
2. The claim in the motion is based upon new scientific evidence establishing that the petitioner is actually innocent of the offense or offenses for which the petitioner was convicted; or
3. The claim asserted in the motion seeks relief from a sentence that was enhanced because of a previous conviction and the conviction in the case in which the claim is asserted was not a guilty plea with an agreed sentence, and the previous conviction has subsequently been held to be invalid, in which case the motion must be filed within one (1) year of the finality of the ruling holding the previous conviction to be invalid; and
4. It appears that the facts underlying the claim, if true, would establish by clear and convincing evidence that the petitioner is entitled to have the conviction set aside or the sentence reduced.
The motion must set out the factual basis underlying its claims and must be supported by affidavit. The factual information set out in the affidavit shall be limited to information which, if offered at an evidentiary hearing, would be admissible through the testimony of the affiant under the rules of evidence. The motion shall be denied unless the factual allegations, if true, meet the requirements of subsection (a). If the court grants the motion, the procedure, relief and appellate provisions of this part shall apply.
If the motion is denied, the petitioner shall have thirty (30) days to file an application in the court of criminal appeals seeking permission to appeal. The application shall be accompanied by copies of all the documents filed by both parties in the trial court and the order denying the motion. The state shall have thirty (30) days to respond. The court of criminal appeals shall not grant the application unless it appears that the trial court abused its discretion in denying the motion. If it determines that the trial court did so abuse its discretion, the court of criminal appeals shall remand the matter to the trial court for further proceedings.

Acts 1995, ch. 207, § 1; 1996, ch. 995, §§ 8, 9; T.C.A. § 40-30-217; Acts 2011, ch. 290, § 1.

Rule Reference. This section is referred to in Rule 28, § 2 of the Rules of the Supreme Court of Tennessee.

Law Reviews.

Adjudicating Claims of Innocence for the Capitally Condemned in Tennessee: Embracing a Truth Forum (Dwight Aarons), 76 Tenn. L. Rev. 511 (2009).

Casenote: Criminal Procedure — Capital Punishment — Motions to Reopen Petitions for Post-Conviction Relief, 81 Tenn. L. Rev. 389 (2014).

NOTES TO DECISIONS

1. Constitutionality.

2. Jurisdiction.

The supreme court has jurisdiction to review applications for permission to appeal which seek review of a denial of a motion to reopen a first petition for post-conviction relief. Fletcher v. State, 951 S.W.2d 378, 1997 Tenn. LEXIS 407 (Tenn. 1997).

In a first degree murder case, the trial court properly dismissed defendant's motion to reopen his post-conviction petition as the state's alleged suppression of exculpatory evidence was not a proper ground to reopen; the appellate court erred in sua sponte treating defendant's motion to reopen as a petition for writ of error coram nobis. Harris v. State, 102 S.W.3d 587, 2003 Tenn. LEXIS 313 (Tenn. 2003), overruled in part, Nunley v. State, 552 S.W.3d 800, 2018 Tenn. LEXIS 382 (Tenn. July 19, 2018).

Petitioner's appeal of the summary dismissal of his second petition for post-conviction relief was dismissed for lack of jurisdiction because petition failed to comply with the requirements governing an appeal from the denial of a motion to reopen post-conviction proceedings; petitioner filed a notice of appeal in the post-conviction court, but he did not file with the court of appeals an application for permission to appeal or a notice of appeal. Ramsey v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 394 (Tenn. Crim. App. May 25, 2016).

3. Discretion.

The trial court did not abuse its discretion by denying defendant's motion to reopen a first petition for post-conviction relief on the basis that the ground for relief had been previously determined. Fletcher v. State, 951 S.W.2d 378, 1997 Tenn. LEXIS 407 (Tenn. 1997).

4. Scientific Evidence.

T.C.A. § 40-30-217(a)(2) (now T.C.A. § 40-30-117(a)(2)) does not provide the petitioner a vehicle for obtaining discovery, rather, the petitioner must delineate in the motion to reopen the new scientific evidence that has already been secured and which will establish his or her actual innocence. Ray v. State, 984 S.W.2d 236, 1997 Tenn. Crim. App. LEXIS 1350 (Tenn. Crim. App. 1997).

Petitioner's motion to re-open post-conviction proceedings was properly denied because he failed to include in his notice of appeal the specific issues he was seeking to raise on appeal; he did not present new scientific evidence establishing that he was actually innocent of the aggravated robbery which led to the first victim's death; and the special agent's testimony at trial and the new scientific evidence contained in the FBI's letter were inconsequential as to petitioner's guilt, based on his admitted role in the crime. Smith v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 222 (Tenn. Crim. App. Apr. 6, 2020).

5. Competency To Be Executed.

Defendant's motion to reopen a post-conviction petition to assert ineligibility for the death penalty due to intellectual disability failed because, while the trial court suggested the motion was waived by not having mental status examined sooner, and a motion to reopen was the proper vehicle to claim a newly recognized constitutional right or actual innocence based on new evidence despite circumstances suggesting the issue was waived, the Tennessee Supreme Court had specifically rejected the bases upon which defendant sought to reopen the post-conviction proceedings. Payne v. State, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 1159 (Tenn. Crim. App. July 29, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 956 (Tenn. Nov. 14, 2013).

6. Procedure.

As the 10-day appeal period (now 30 days) in T.C.A. § 40-30-117(c) began when the order denying the motion to reopen was filed with the trial court clerk and not when the judge signed the order or the clerk entered it into the minutes, petitioner's notice of appeal was timely filed as it was filed within 10 days of the date the trial court's order denying the motion to reopen was filed with the court clerk, and petitioner substantially complied with the procedural requirements. Graham v. State, 90 S.W.3d 687, 2002 Tenn. LEXIS 548 (Tenn. 2002), rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 66 (Tenn. 2003).

Because petitioner inmate's juror misconduct claim in his federal habeas proceeding did not fall within any of the exceptions in T.C.A. § 40-30-117(a) to the one petition rule of T.C.A. § 40-30-102(c) and because the inmate failed to present the claim to the state courts and no state court remedies remained available, the claim was procedurally defaulted. Hodges v. Colson, 711 F.3d 589, 2013 FED App. 75P, 2013 U.S. App. LEXIS 6050 (6th Cir. Mar. 26, 2013).

7. Motion Denied.

Inmate's motion to reopen a post-conviction petition was properly denied as Coleman v. State, 341 S.W.3d 221, 2011 Tenn. LEXIS 319 (Tenn. 2011), did not establish a new retroactive rule for proving intellectual disability in Tennessee under the Eighth Amendment or Tenn. Const. art. I, § 16 for T.C.A. § 40-30-117(a)(1) purposes, but concerned an interpretation of T.C.A. § 39-13-203, and held that the courts could consider factors other than raw test scores in determining intellectual disability. Keen v. State, 398 S.W.3d 594, 2012 Tenn. LEXIS 932 (Tenn. Dec. 20, 2012), cert. denied, Keen v. Tennessee, 187 L. Ed. 2d 120, 134 S. Ct. 176, — U.S. —, 2013 U.S. LEXIS 7234 (U.S. Oct. 7, 2013).

Defendant's application for permission to appeal the denial of his motion to reopen his post-conviction petition was denied because the statute at issue was constitutionally sound and did not bar the presentation of other proof of defendant's intellectual disability where the decision in Hall v. Florida, 134 S. Ct. 1986, 188 L. Ed. 2d 1007, 2014 U.S. LEXIS 3615 (2014) did not announce a new rule or alter the understanding of the bedrock procedural elements essential to the fairness of a proceeding, but clarified provisions in Atkins v. Virginia, 122 S. Ct. 2242, 153 L. Ed. 2d 335, 536 U.S. 304, 321, 2002 U.S. LEXIS 4648 (2002), regarding the class protected by Atkins, i.e., defendants who were intellectually disabled. Sims v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 613 (Tenn. Crim. App. Jan. 28, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 365 (Tenn. May 6, 2016), cert. denied, Sims v. Tennessee, 197 L. Ed. 2d 516, 137 S. Ct. 1327, — U.S. —, 2017 U.S. LEXIS 1828 (U.S. Mar. 20, 2017).

8. Burden of Proof.

Denial of petitioner's, an inmate's, motion to reopen his post-conviction petition for the purpose of determining whether he was mentally retarded and thus ineligible for the death penalty was appropriate pursuant to T.C.A. § 39-13-203(b) because he failed to meet the bright-line mark of 70 for establishing mental retardation at the time of the offense and failed to meet his burden of proof under T.C.A. § 40-30-117(a)(4). He also failed to establish that he had adaptive deficits and he was not twice placed in jeopardy. Coleman v. State, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 36 (Tenn. Crim. App. Jan. 13, 2010), aff'd in part and vacated in part, 341 S.W.3d 221, 2011 Tenn. LEXIS 319 (Tenn. Apr. 11, 2011).

9. Jurisdiction.

Court of criminal appeals lacked jurisdiction to review petitioner's appeal of the motion to reopen the post-conviction petition because petitioner failed to properly seek review of the post-conviction court's denial of the motion to reopen; petitioner's notice of appeal was not filed within thirty days of entry of the post-conviction court's order denying the motion and did not include sufficient substance to be treated as an application for permission to appeal. Turner v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 595 (Tenn. Crim. App. July 7, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 878 (Tenn. Dec. 6, 2017).

10. Appeal.

Even if appellant was attempting to reopen his post-conviction petition by filing a motion for new trial or evidentiary hearing, he was required to seek permission to appeal the trial court's ruling on that pleading because an appeal from an order denying a motion to reopen had to be granted by the appellate court; although appellant filed his notice of appeal in the trial court, that did not effectuate an appeal to the appellate court. Taylor v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 933 (Tenn. Crim. App. Dec. 14, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 239 (Tenn. Apr. 13, 2017).

Petitioner's appeal was dismissed, as it was not shown that he followed the procedures for seeking permission to appeal; the notice of appeal was filed incorrectly, did not state the reasons why review should be granted, and fell short of providing sufficient substance to provide substantial compliance with the statute, plus the motion to reopen was not supported by an affidavit as required. State v. Wolfe, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 215 (Tenn. Crim. App. Mar. 22, 2017).

Neither T.C.A. § 40-30-117 nor Tenn. Sup. Ct. R. 28, § 10(B) provide that the thirty-day time period for filing an application for permission to appeal in the court of criminal appeals may be tolled by the filing of a motion to reconsider. Turner v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 595 (Tenn. Crim. App. July 7, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 878 (Tenn. Dec. 6, 2017).

Petitioner's appeal of the denial of his motion to reopen his application for post-conviction relief was dismissed because petitioner failed to comply with the requirements to seek discretionary review of a motion to reopen post-conviction proceedings; no application for permission to appeal was filed in the court of criminal appeals, but instead, petitioner filed a notice of appeal in the post-conviction court. Cage v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 952 (Tenn. Crim. App. Nov. 13, 2017).

Defendant was denied permission to appeal the denial of his motion to reopen his petition for post-conviction relief because the evidence alleged by defendant in support of his motion did not establish that he was actually innocent of the crimes for which he was convicted, his current attack was essentially another attempt to challenge the voluntariness of his pleas, and his motion to proceed on appeal as an indigent person did not comply with the appellate requirements. Wolley v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1059 (Tenn. Crim. App. June 21, 2017).

11. Actual Innocence.

T.C.A. § 40-30-117(a)(2) is not applicable to claims of actual innocence of the death penalty; therefore, petitioner could not rely on § 40-30-117(a)(2) in an attempt to reopen post-conviction proceedings where it was argued that he was actually innocent of the death penalty due to his intellectual disability. Keen v. State, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 972 (Tenn. Crim. App. June 29, 2011), aff'd, 398 S.W.3d 594, 2012 Tenn. LEXIS 932 (Tenn. Dec. 20, 2012).

Inmate's claim that he was ineligible for the death penalty under T.C.A. § 39-13-203 did not qualify as an actual innocence claim under T.C.A. § 40-30-117(a)(2) as: (1) to qualify as actually innocent, the inmate had to show actual innocence of the underlying crimes; (2) there was no separate offense in Tennessee for capital murder; (3) the inmate had pled guilty to first-degree murder under T.C.A. § 39-13-202; and (4) under T.C.A. § 39-13-204(i), the death penalty was a sentencing consideration for first-degree murder. Keen v. State, 398 S.W.3d 594, 2012 Tenn. LEXIS 932 (Tenn. Dec. 20, 2012), cert. denied, Keen v. Tennessee, 187 L. Ed. 2d 120, 134 S. Ct. 176, — U.S. —, 2013 U.S. LEXIS 7234 (U.S. Oct. 7, 2013).

To qualify as “actually innocent” under T.C.A. § 40-30-117(a)(2), a petitioner must demonstrate actual innocence of the underlying crimes for which he was convicted. Keen v. State, 398 S.W.3d 594, 2012 Tenn. LEXIS 932 (Tenn. Dec. 20, 2012), cert. denied, Keen v. Tennessee, 187 L. Ed. 2d 120, 134 S. Ct. 176, — U.S. —, 2013 U.S. LEXIS 7234 (U.S. Oct. 7, 2013).

12. New Rule.

Coleman v. State, 341 S.W.3d 221, 2011 Tenn. LEXIS 319, did not create a new constitutional rule of law, but involved statutory construction based upon existing law that was practiced in relation to the interpretation of the first prong of the intellectual disability statute for death penalty purposes. Therefore, this was not a ground for reopening post-conviction proceedings. Keen v. State, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 972 (Tenn. Crim. App. June 29, 2011), aff'd, 398 S.W.3d 594, 2012 Tenn. LEXIS 932 (Tenn. Dec. 20, 2012).

13. Criteria Not Met.

Because the United States Supreme Court's decision in Hurst v. Florida did not announce a new constitutional rule requiring retrospective application, the post-conviction court properly denied petitioner's motion to reopen post-conviction proceedings; the Hurst decision, which held that Florida's capital sentencing scheme was unconstitutional, was clearly derivative of previous Court rulings. Rice v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1069 (Tenn. Crim. App. Nov. 14, 2017).

40-30-118. Promulgation of rules.

The supreme court may promulgate rules of practice and procedure consistent with this part, including rules prescribing the form and contents of the petition, the preparation and filing of the record and assignments of error for simple appeal and for delayed appeal in the nature of a writ of error, and may make petition forms available for use by petitioners. The supreme court shall develop a form which shall be available without cost to a prisoner in the prison and other places of detention, and shall also be available without cost to any potential petitioner in the office of the clerk of any court of record having criminal jurisdiction.

Acts 1995, ch. 207, § 1; T.C.A. § 40-30-218.

Cross-References. Appeal as of right, T.R.A.P. 3.

Rule Reference. This section is referred to in Rule 28 of the Rules of the Supreme Court of Tennessee.

Law Reviews.

Post-Conviction Relief in Tennessee — Fourteen Years of Judicial Administration Under the Post-Conviction Procedure Act (Gary L. Anderson), 48 Tenn. L. Rev. 605 (1981).

40-30-119. Bail during new trial or delayed appeal — Exception.

When a new trial or delayed appeal is granted, release on bail shall be determined by the trial judge as provided by law pending further proceedings. In all other cases, the petitioner shall not be entitled to bail.

Acts 1995, ch. 207, § 1; T.C.A. § 40-30-219.

40-30-120. Stays of execution when petitioner is under sentence of death.

When affirming a conviction and sentence of death on direct appeal, the Tennessee supreme court shall contemporaneously set a date for an execution. The date shall be no less than four (4) months from the date of the judgment of the Tennessee supreme court. Upon the filing of a petition for post-conviction relief, the court in which the conviction occurred shall issue a stay of the execution date that shall continue in effect for the duration of any appeals or until the post-conviction action is otherwise final. The execution date shall not be stayed prior to the filing of a petition for post-conviction relief except upon a showing by the petitioner of the petitioner's inability to file a petition prior to the execution date and that the inability is justified by extraordinary circumstances beyond the petitioner's control.
Where the petitioner is under a sentence of death and the petition is not the first petition under this part attacking that judgment, or a motion to reopen has been filed, no court may stay the execution unless a court of competent jurisdiction first finds that a motion to reopen that meets the requirements set out in § 40-30-117 has been granted.
The mere satisfaction of the requirements of subsection (b) shall not automatically result in a stay. In order to obtain a stay, an applicant must show that upon the court's consideration of the petition there is a significant possibility that the death sentence will be invalidated and that there is a significant possibility that the death sentence will be carried out before consideration of the petition is concluded.
Any motion for stay pending consideration of the post-conviction petition must be presented first to the court where the petition is filed. The decision of the court shall be reviewable by the court of criminal appeals upon the filing of a motion for review. Either party may seek review. The lower court's determination shall not be set aside unless the movant demonstrates an abuse of discretion. The action of the court of criminal appeals shall likewise be reviewable upon the filing of a motion for review in the Tennessee supreme court. Either party may seek review. The determination of the court of criminal appeals shall not be set aside unless the movant demonstrates an abuse of discretion.
Each motion for stay, or motion for review, shall be filed in writing with the clerk of the court to whom the motion is directed. The clerk shall immediately refer the matter to the court. Each motion shall be served upon opposing counsel in the most expeditious manner practicable. The motion shall recite that opposing counsel has been served and in what manner. Oral requests directed to a judge are prohibited unless, owing to emergency circumstances, the filing of a written motion is impractical. In that event, counsel initiating the contact shall orally notify opposing counsel prior to the contact.
Motions for review may be acted upon by a single judge of the appellate court. The judge may, in lieu thereof, refer the motion to the court. In the court of criminal appeals, the reference will be to a three (3) judge panel of the court in the grand division where the motion is filed. Review shall be made promptly within five (5) days or within a shorter period as necessary to preclude the issue from becoming moot, whether by a single judge or by the court. Oral argument shall not be permitted unless the court otherwise directs. Opposing counsel shall have a right to file a written response to the motion within three (3) days of the service of the motion. If time does not permit the filing of a written response, the court shall ascertain the position of opposing counsel by other means which may include a telephone conference. The court may consider the last-minute nature of an application to stay execution by resolving against the petitioner any doubts and uncertainties as to the sufficiency of the petitioner's submission.

Acts 1995, ch. 207, § 1; T.C.A. § 40-30-220.

Cross-References. Grand divisions, title 4, ch.1, part 2.

40-30-121. Priority.

Post-conviction cases where the petitioner is under the death sentence shall be given priority over all other matters in docketing by the courts having trial and appellate jurisdiction of the cases.

Acts 1995, ch. 207, § 1; T.C.A. § 40-30-221.

40-30-122. Interpretation.

For purposes of this part, a new rule of constitutional criminal law is announced if the result is not dictated by precedent existing at the time the petitioner's conviction became final and application of the rule was susceptible to debate among reasonable minds. A new rule of constitutional criminal law shall not be applied retroactively in a post-conviction proceeding unless the new rule places primary, private individual conduct beyond the power of the criminal law-making authority to proscribe or requires the observance of fairness safeguards that are implicit in the concept of ordered liberty.

Acts 1995, ch. 207, § 1; T.C.A. § 40-30-222.

Law Reviews.

Twelve Angry Hours: Improving Domestic Violence Holds in Tennessee Without Risk of Violating the Constitution, 10 Tenn. J. L. & Pol'y 215 (2015).

NOTES TO DECISIONS

1. In General.

Retroactivity of new constitutional rules in post-conviction proceedings is determined using T.C.A. § 40-30-122, not Meadows v. State. Bush v. State, 428 S.W.3d 1, 2014 Tenn. LEXIS 16 (Tenn. Jan. 28, 2014).

2. Retroactive Application.

Inmate was entitled to post-conviction relief from unconstitutional sentencing enhancements, despite not raising the issue at trial, because (1) the enhancement statute had repeatedly been held unconstitutional, so the unconstitutionality was obvious, and (2) a decision so holding applied retroactively, as the decision barred penalizing gang affiliation without a nexus between the affiliation and a crime. Harshaw v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 221 (Tenn. Crim. App. Mar. 24, 2017).

Postconviction court correctly determined that the Riley decision did not apply retroactively because even though Riley announced a new rule of constitutional criminal procedure, it did not place primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe, as it addressed the procedural requirement that law enforcement obtain a warrant before searching the contents of a cell phone. It also did not require the observance of fairness safeguards that were implicit in the concept of ordered liberty. Sayles v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 193 (Tenn. Crim. App. Mar. 28, 2019).

Part 2
Post-Conviction Defender Oversight Commission Act of 2011

40-30-201. Short title.

This part shall be known and may be cited as the “Post-Conviction Defender Oversight Commission Act of 2011.”

Acts 1995, ch. 510, § 1; T.C.A. § 40-30-301; Acts 2011, ch. 414, § 4.

Law Reviews.

Pretend Justice—Defense Representation in Tennessee Death Penalty Cases (William P. Redick, Jr., Bradley A. MacLean, and M. Shane Truett), 38 U. Mem. L. Rev. 303 (2008).

40-30-202. Commission created — Role.

On July 1, 2011, the post-conviction defender oversight commission is created. This part also creates the office of post-conviction defender to provide for the representation of any person convicted and sentenced to death in this state who is unable to secure counsel due to indigence, and that legal proceedings to challenge that conviction and sentence may be commenced in a timely manner and so as to assure the people of this state that the judgments of its courts may be regarded with the finality to which they are entitled in the interests of justice. The operation of the post-conviction defender oversight commission and office of post-conviction defender shall be consistent with professional standards and shall not compromise independent professional judgment or create a professional or institutional conflict of interest, appearance of impropriety, breach of attorney-client confidence or secret or other violation of the Tennessee Rules of Professional Conduct or the Tennessee Code of Judicial Conduct.
The post-conviction defender oversight commission shall be strictly administrative in nature and shall oversee budget, staffing and caseload concerns. In order to avoid possible conflicts, relating to cases assigned to the post-conviction defender's office, no member of the commission shall advise, consult or otherwise directly assist the post-conviction defender or the post-conviction defender's staff in providing legal representation in such cases.

Acts 1995, ch. 510, § 1; T.C.A. § 40-30-302; Acts 2003, ch. 112, § 2; 2011, ch. 414, § 5.

Cross-References. Counsel for indigents, title 40, ch. 14, part 2.

Determination of indigency, appointment of counsel, § 8-14-105.

District public defender, § 8-14-104.

Right to appointed counsel, § 40-14-103.

NOTES TO DECISIONS

1. Statute of Limitations.

40-30-203. Establishment — Composition.

On July 1, 2011, there is created a post-conviction defender oversight commission. The members of the commission appointed under this section shall have a commitment to the constitutional rights of all individuals. In making these appointments, the appointing authorities shall strive to ensure that the membership of the commission appropriately reflects the racial and geographic diversity of the state. Members of the commission are not required to be attorneys, but any member who is an attorney may not be a current district attorney general or assistant district attorney general, a current public defender or assistant public defender, or a sitting judge. The commission is composed of the following nine (9) members:
1. Three (3) members appointed by the governor;
2. Three (3) members appointed by the speaker of the senate; and
3. Three (3) members appointed by the speaker of the house of representatives.
The term of office of each member of the commission is four (4) years. A vacancy occurring among the members of the commission before the expiration of a term shall be filled in the same manner as the original appointments. An appointment to fill a vacancy occurring before the expiration of a term is for the remainder of the unexpired term.
To stagger the terms of the commission members, the initial term shall be as follows:
1. The initial term of the members appointed by the governor shall be two (2) years;
2. The initial term of the members appointed by the speaker of the senate shall be three (3) years; and
3. The initial term of the members appointed by the speaker of the house of representatives shall be four (4) years.

Acts 1995, ch. 510, § 1; T.C.A. § 40-30-303; Acts 2011, ch. 414, § 6.

Compiler's Notes. The post-conviction defender oversight commission, created by this section, terminates June 30, 2026. See §§ 4-29-112, 4-29-247.

Acts 2011, ch. 414, § 2 provided that notwithstanding the provisions of § 4-29-112, or any other law to the contrary, the post-conviction defender commission as it currently exists shall terminate and shall cease all activities on June 30, 2011.

Acts 2011, ch. 414, § 11 provided that the current post-conviction defender and any staff shall remain in place and continue to operate at least until the new commission has been appointed and has met. The appointing authorities shall make their appointments by September 1, 2011, at which time the current post-conviction defender will schedule a meeting for the newly appointed commission members.

40-30-204. Chair — Meetings — Duties.

The members of the commission shall designate one (1) member of the commission as chair.
Meetings of the commission may be held upon reasonable notice to the commission members by the chair of the commission and shall be in compliance with title 8, chapter 44.
The commission shall appoint a qualified attorney to the office of post-conviction defender.
The commission shall prepare an annual budget for the office of the post-conviction defender, administer the funds made available to the office, and oversee the expenditure of the funds.

Acts 1995, ch. 510, § 1; T.C.A. § 40-30-304; Acts 2011, ch. 414, § 7.

40-30-205. Post-conviction defender.

There is created the office of the post-conviction defender.
The post-conviction defender shall be appointed by the post-conviction defender oversight commission, as provided for in § 40-30-204.
The post-conviction defender shall be an attorney in good standing with the Tennessee supreme court and shall possess a demonstrated experience in the litigation of capital crimes.
The post-conviction defender shall serve a term of four (4) years.
Vacancies in the office of post-conviction defender shall be filled in the same manner as appointment.
The principal office of the post-conviction defender shall be located in Nashville. The post-conviction defender may establish branch offices as may, in the discretion of the post-conviction defender, be warranted to fulfill statutory duties as provided in this part.
The exclusive function of the post-conviction defender's office shall be to provide legal representation to persons convicted of capital offenses. The post-conviction defender's office including the members of the post-conviction defender's oversight commission shall not lobby any entity, organization, or legislative body to urge either the abolition or retention of the death penalty. However, the office may respond to inquiries of the general assembly, the judiciary and the executive branch.
In the event the post-conviction defender provides direct representation to persons on direct appeal of a conviction, the post-conviction defender's office shall be prohibited from providing representation to those persons in any collateral proceeding.

Acts 1995, ch. 510, § 1; T.C.A. § 40-30-305; Acts 2011, ch. 414, §§ 8, 9.

40-30-206. Duties.

It is the primary responsibility of the post-conviction defender to represent, without additional compensation, any person convicted and sentenced to death in this state who is without counsel and who is unable to secure counsel due to indigency or determined by a state court with competent jurisdiction to be indigent, for the purpose of instituting and prosecuting collateral actions challenging the legality of the judgment and sentence imposed against that person in state court, and who the court determines requires the appointment of counsel.
Under limited circumstance where the post-conviction defender determines that it is in the interest of justice, the post-conviction defender may represent, without additional compensation, any person on a direct appellate review of the conviction of a capital crime if that person is without counsel and is unable to secure counsel due to indigency, or is determined by a state court with competent jurisdiction to be indigent and where that state court has determined competent counsel is unavailable.
The post-conviction defender shall represent, without additional compensation, any person convicted and sentenced to death in this state who is without counsel and who is unable to secure counsel due to that person's indigency or is determined by a state court of competent jurisdiction to be indigent for the purpose of instituting and prosecuting collateral actions challenging the legality of the judgment and sentence imposed against the person in the federal courts in this state, the United States court of appeals for the sixth circuit, and the United States supreme court, only to the extent that compensation for representation and reimbursement for expenses is provided by 18 U.S.C. § 3006A or any other non-state funded source.
The post-conviction defender shall also:
1. Maintain a clearinghouse of materials and a repository of briefs prepared by the post-conviction defender to be made available to public defenders and private counsel who represent indigents charged with or convicted of capital crimes;
2. Provide continuing legal education training to public defenders, assistant post-conviction defenders and to private counsel representing indigents in capital cases, as resources are available;
3. Provide consulting services to all attorneys representing defendants in capital cases on a non-case-specific basis; and
4. Recruit qualified members of the private bar who are willing to provide representation in state death penalty proceedings.
Where the post-conviction defender determines that it is in the interest of justice, the post-conviction defender may represent, without additional compensation, a death sentenced inmate, who, at the completion of both state post-conviction proceedings and federal collateral review, remains under a sentence of death, if the individual is presently represented by the post-conviction defender or if the individual is not currently represented by the post-conviction defender but is unable to secure counsel due to indigency, during clemency proceedings before the Tennessee board of parole and the governor and in proceedings to determine whether the death sentenced inmate is competent to be executed.

Acts 1995, ch. 510, § 1; 2002, ch. 713, § 1; T.C.A. § 40-30-306.

Cross-References. Counsel for indigents, title 40, ch. 14, part 2.

Determination of indigency, appointment of counsel, § 8-14-105.

District public defender, § 8-14-104.

Right to appointed counsel, § 40-14-103.

NOTES TO DECISIONS

1. Post-Conviction Relief Denied.

Nothing in the former Post-Conviction Defender Commission Act, T.C.A. § 40-30-201 et seq., allowed the Public Defender to initiate a post-conviction action on behalf of an inmate who had not signed or verified the post-conviction petition; there was no statutory basis upon which to use the Post-Conviction Defender Commission Act (now the Post-Conviction Defender Oversight Commission Act of 2011) as a catapult for standing on behalf of one who had neither signed nor verified a post-conviction petition. Holton v. State, 201 S.W.3d 626, 2006 Tenn. LEXIS 331 (Tenn. 2006).

2. Relationship to Federal Law.

40-30-207. Conflict of interest and substitute counsel.

If at any time during the representation of two (2) or more indigent persons, the post-conviction defender determines that the interests of those persons are so adverse or hostile that they cannot all be counseled by the post-conviction defender or the post-conviction defender's staff without conflict of interest, the court in which the proceeding is pending shall, upon application therefor by the post-conviction defender, appoint one (1) or more qualified attorneys to represent the persons.

Acts 1995, ch. 510, § 1; T.C.A. § 40-30-307.

40-30-208. Appointment of assistants and other staff — Method of payments.

The post-conviction defender is authorized to appoint, employ, and establish, in the numbers as the post-conviction defender determines, full-time assistant post-conviction defenders, investigators, and other clerical and support personnel who shall be paid from funds appropriated for that purpose.

Acts 1995, ch. 510, § 1; T.C.A. § 40-30-308.

40-30-209. Salary.

The post-conviction defender shall be paid a salary equal to the amount established by law for district public defenders.
Full-time assistant post-conviction defenders shall be compensated in an amount set by the post-conviction defender in compliance with the assistant public defender's pay schedule and shall be paid from funds appropriated for that purpose.
All payments of the salary of the post-conviction defender and employees of the office and payments for other necessary expenses of the office from state funds appropriated therefor shall be considered as being for a valid public purpose.
Notwithstanding any law to the contrary, any limitations on compensation and step increases that apply to district public defenders and assistant public defenders for the period of time beginning from June 16, 2003, to June 30, 2004, and June 25, 2009, to June 30, 2010, shall also apply to post-conviction defenders and assistant post-conviction defenders. In the fiscal years beginning July 1, 2004, and July 1, 2010, and in subsequent fiscal years, salary increases pursuant to the pay schedule prescribed in this section shall not include time of service between July 1, 2003, and June 30, 2004, and between July 1, 2009, and June 30, 2010.
The salary increase provided by this section and suspended by subsection (d) for the period July 1, 2003, through June 30, 2004, shall be reinstated effective July 1, 2017. For purposes of determining the appropriate salary classification pursuant to this section, credible service for the time period of July 1, 2003, through June 30, 2004, shall be included.

Acts 1995, ch. 510, § 1; T.C.A. § 40-30-309; Acts 2009, ch. 531, § 28; 2017, ch. 461, § 9.

Cross-References. Assistant public defender pay schedule, § 8-14-107.

40-30-210. Records and reports.

The post-conviction defender shall keep appropriate records and make annual reports concerning caseload, funding, staffing, and salaries to the post-conviction defender oversight commission; provided, however, that the post-conviction defender and the defender's staff shall not discuss specific details about any case with the members of the commission.

Acts 1995, ch. 510, § 1; T.C.A. § 40-30-310; Acts 2011, ch. 414, § 10.

Part 3
Post-Conviction DNA Analysis Act of 2001

40-30-301. Short title.

This part shall be known and may be cited as the “Post-Conviction DNA Analysis Act of 2001.”

Acts 2001, ch. 444, § 1; T.C.A. § 40-30-401.

Cross-References. Collection of biological specimens for DNA analysis, § 40-35-321.

DNA analysis, admissibility in evidence, § 24-7-118.

NOTES TO DECISIONS

1. In General.

Inmate's motion for voluntary dismissal of his 28 U.S.C.§ 2254 habeas corpus petition, which he sought for the purpose of reopening state post-conviction relief proceedings so as to make a claim under the Tennessee Post-Conviction DNA Analysis Act of 2001, T.C.A. § 40-30-301 et seq., was denied; the inmate's DNA claim was exhausted where (1) he failed to raise the claim in his habeas petition in a timely manner; (2) there was no DNA evidence upon which to perform serological tests; (3) the state courts had determined the issue to be without merit because even if the inmate's DNA were not found on the victim, such was inconsequential, as sufficient evidence showed that the inmate actively participated in the victim's kidnapping, and as such, was also guilty of sexual battery even if one of his accomplices had carried out the actual rape; and (4) the claims were barred by T.C.A. § 40-30-102(a) and (c)'s statute of limitations and one-petition rule. Taylor v. Myers, 345 F. Supp. 2d 855, 2003 U.S. Dist. LEXIS 26200 (W.D. Tenn. 2003).

Trial court did not treat a petition for writ of error coram nobis as a petition for DNA testing because the order disposed only of petitioner's bid for coram nobis relief and did not consider the petition as a request for DNA testing. Nunley v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 162 (Tenn. Crim. App. Mar. 3, 2017), aff'd, 552 S.W.3d 800, 2018 Tenn. LEXIS 382 (Tenn. July 19, 2018).

2. Analysis Not Warranted.

Denial of petitioner's, an inmate's, petition for postconviction DNA analysis was appropriate pursuant to the Post-Conviction DNA Analysis Act, T.C.A. § 40-30-301 et seq., because he requested DNA testing of evidence even though he acknowledged that there was no evidence in existence to test. The evidence was not therefore not in such a condition that DNA analysis could have been conducted under T.C.A. § 40-30-304(2). Powers v. State, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 149 (Tenn. Crim. App. Feb. 18, 2010), rev'd, 343 S.W.3d 36, 2011 Tenn. LEXIS 595 (Tenn. June 16, 2011).

Denial of petitioner's, an inmate's, petition for postconviction DNA analysis was appropriate pursuant to the Post-Conviction DNA Analysis Act, T.C.A. § 40-30-301 et seq., because the postconviction court did not rely on merely the victims' identification in finding that there was no reasonable probability that the inmate would not have been convicted if exculpatory DNA results had been obtained. Great weight was instead given to the fact that the evidence was overwhelming. Powers v. State, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 149 (Tenn. Crim. App. Feb. 18, 2010), rev'd, 343 S.W.3d 36, 2011 Tenn. LEXIS 595 (Tenn. June 16, 2011).

40-30-302. “DNA analysis” defined.

As used in this part, unless the context otherwise requires, “DNA analysis” means the process through which deoxyribonucleic acid (DNA) in a human biological specimen is analyzed and compared with DNA from another biological specimen for identification purposes.

Acts 2001, ch. 444, § 1; T.C.A. § 40-30-402.

NOTES TO DECISIONS

1. Application.

Language in T.C.A. § 40-30-302 defining “DNA analysis” as the process through which DNA in a human biological specimen is analyzed and compared with DNA from another biological specimen for identification purposes does not limit the statute's reach to permit only the performance of a DNA analysis which compares the petitioner's DNA samples to DNA samples taken from biological specimens gathered at the time of the offense. The key terms are general in nature; the only requirement for the evidence sought to be tested is that it be in the possession of law enforcement and be related to the conviction, pursuant to T.C.A. § 40-30-303. Powers v. State, 343 S.W.3d 36, 2011 Tenn. LEXIS 595 (Tenn. June 16, 2011).

40-30-303. Petition requesting analysis.

Notwithstanding part 1 of this chapter, or any other provision of law governing post-conviction relief to the contrary, a person convicted of and sentenced for the commission of first degree murder, second degree murder, aggravated rape, rape, aggravated sexual battery or rape of a child, the attempted commission of any of these offenses, any lesser included offense of these offenses, or, at the direction of the trial judge, any other offense, may at any time, file a petition requesting the forensic DNA analysis of any evidence that is in the possession or control of the prosecution, law enforcement, laboratory, or court, and that is related to the investigation or prosecution that resulted in the judgment of conviction and that may contain biological evidence.

Acts 2001, ch. 444, § 1; T.C.A. § 40-30-403.

NOTES TO DECISIONS

1. Analysis not Warranted.

Denial of petitioner's, an inmate's, petition for postconviction DNA analysis was appropriate pursuant to the Post-Conviction DNA Analysis Act, T.C.A. § 40-30-301 et seq., because the postconviction court did not rely on merely the victims' identification in finding that there was no reasonable probability that the inmate would not have been convicted if exculpatory DNA results had been obtained. Great weight was instead given to the fact that the evidence was overwhelming. Powers v. State, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 149 (Tenn. Crim. App. Feb. 18, 2010), rev'd, 343 S.W.3d 36, 2011 Tenn. LEXIS 595 (Tenn. June 16, 2011).

Trial court did not err in denying defendant's motion for post-conviction DNA analysis because defendant did not establish a reasonable probability that he would not have been prosecuted or convicted had the DNA evidence proven exculpatory; the DNA analysis requested had already been performed, and replicating the testing could result in either confirming or undermining the initial result. State v. Reed, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 22 (Tenn. Crim. App. Jan. 16, 2020).

2. Factors.

Post-conviction petitioner's delay in requesting DNA testing did not preclude such testing because there was no time limit under the Post-Conviction DNA Analysis Act of 2001, and petitioner was represented by the Innocence Project, which received many requests for assistance, thereby contributing to the delay in petitioner's request. Powers v. State, 343 S.W.3d 36, 2011 Tenn. LEXIS 595 (Tenn. June 16, 2011).

40-30-304. Court order if probable that exculpatory results would not have resulted in prosecution or conviction.

After notice to the prosecution and an opportunity to respond, the court shall order DNA analysis if it finds that:

A reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA analysis;
The evidence is still in existence and in such a condition that DNA analysis may be conducted;
The evidence was never previously subjected to DNA analysis or was not subjected to the analysis that is now requested which could resolve an issue not resolved by previous analysis; and
The application for analysis is made for the purpose of demonstrating innocence and not to unreasonably delay the execution of sentence or administration of justice.

Acts 2001, ch. 444, § 1; T.C.A. § 40-30-404.

NOTES TO DECISIONS

1. Analysis not Warranted.

2. Entitlement to DNA Testing.

General Assembly intended to allow petitioners to access a DNA database if a positive match between the crime scene DNA and a profile in the database would create a reasonable probability that petitioner would not have been prosecuted or convicted, as required by T.C.A. § 40-30-304(1). Powers v. State, 343 S.W.3d 36, 2011 Tenn. LEXIS 595 (Tenn. June 16, 2011).

3. Petition Properly Denied.

Post-conviction court properly denied defendant's request pursuant to the Post-Conviction DNA Analysis Act of 2001 to retest various swabs that were analyzed in 1993 because the State might very well have prosecuted defendant and secured a conviction, the State offered plausible explanations for why the evidence might not exist, defendant did not seek to require the State to perform a search therefor, and failed to establish that the specimen in question was in such a condition that further DNA testing could be accomplished. Kennedy v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 99 (Tenn. Crim. App. Feb. 10, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 432 (Tenn. June 23, 2016).

It was no error to summarily dismiss an inmate's post-conviction DNA testing petition because even favorable DNA results from unprocessed specimens would have created no reasonable probability that the inmate would not have been prosecuted or convicted or would have received a more favorable verdict or sentencing, when compared to inculpatory evidence, as such evidence would have a miniscule effect on the evidence at the time of the decision to prosecute the inmate, at the time of trial, or at the time of sentencing. Elsea v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 405 (Tenn. Crim. App. May 24, 2018).

4. Required Findings.

Both these statutory provisions require a finding that the evidence was either not previously tested for DNA or was not subjected to the analysis that is now requested which could resolve an issue not resolved by previous analysis; petitioner did not ask the post-conviction court to make any factual findings in this regard, and thus any analysis of the issue was waived and petitioner was not entitled to post-conviction relief. Medlock v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 792 (Tenn. Crim. App. Oct. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 127 (Tenn. Feb. 21, 2017).

Reversal and remand was necessary because the trial court failed to address the four requirements for a DNA analysis under the Post-Conviction DNA Analysis Act of 2001. State v. Downs, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 911 (Tenn. Crim. App. Dec. 18, 2018).

5. Due Process.

40-30-305. Court order if probable that results would have resulted in a more favorable verdict or sentence.

After notice to the prosecution and an opportunity to respond, the court may order DNA analysis if it finds that:

A reasonable probability exists that analysis of the evidence will produce DNA results that would have rendered the petitioner's verdict or sentence more favorable if the results had been available at the proceeding leading to the judgment of conviction;
The evidence is still in existence and in such a condition that DNA analysis may be conducted;
The evidence was never previously subjected to DNA analysis, or was not subjected to the analysis that is now requested which could resolve an issue not resolved by previous analysis; and
The application for analysis is made for the purpose of demonstrating innocence and not to unreasonably delay the execution of sentence or administration of justice.

Acts 2001, ch. 444, § 1; T.C.A. § 40-30-405.

NOTES TO DECISIONS

1. Required Findings.

2. Due Process.

Defendant's petition for post-conviction relief was properly denied because trial counsel made a reasonable, strategic choice to avoid testing evidence which he rationally expected would produce results that were inculpatory to defendant, even though the testing of the victim's fingernail scrapings ultimately proved favorable to defendant; and defendant's did not establish a violation of the principles of fundamental fairness under due process as, while genetic material from a male other than defendant found under the victim's fingernails had exculpatory value, it was not exonerating, and the evidence was not so exculpatory that it undermined confidence in the verdict or raised a reasonable probability of a different result at trial. Waterford v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 772 (Tenn. Crim. App. Oct. 16, 2018).

40-30-306. Payment for analysis.

In the case of an order issued pursuant to § 40-30-304, the court shall order the analysis and payment, if necessary. In the case of an order under § 40-30-305, the court may require the petitioner to pay for the analysis.

Acts 2001, ch. 444, § 1; T.C.A. § 40-30-406.

40-30-307. Appointment of counsel for indigents.

The court may, at any time during proceedings instituted under this part, appoint counsel for an indigent petitioner.

Acts 2001, ch. 444, § 1; T.C.A. § 40-30-407.

Cross-References. Counsel for indigents, title 40, ch. 14, part 2.

Determination of indigency, § 8-14-105.

Right to appointed counsel, § 40-14-103.

40-30-308. Court order for production of laboratory reports, underlying data and notes.

If evidence has previously been subjected to DNA analysis by either the prosecution or defense, the court may order the prosecution or defense to provide all parties and the court with access to the laboratory reports prepared in connection with the DNA analysis, as well as the underlying data and laboratory notes. If any DNA or other biological evidence analysis was previously conducted by either the prosecution or defense without knowledge of the other party, the analysis shall be revealed in the motion for analysis or response, if any. If the court orders DNA analysis in connection with a proceeding brought under this part, the court shall order the production of any laboratory reports prepared in connection with the DNA analysis and may, in its discretion, order production of the underlying data and laboratory notes.

Acts 2001, ch. 444, § 1; T.C.A. § 40-30-408.

40-30-309. Preservation of evidence during pendency of proceeding — Sanctions.

When the petition is not summarily dismissed, the court shall order that all evidence in the possession of the prosecution, law enforcement, laboratory, or the court that could be subjected to DNA analysis must be preserved during the pendency of the proceeding. The intentional destruction of evidence after such an order may result in appropriate sanctions, including criminal contempt for a knowing violation.

Acts 2001, ch. 444, § 1; T.C.A. § 40-30-409.

Code Commission Notes.

Acts 2003, ch. 355, § 14, purported to add a subsection (d) to this section. The added provisions concern compensation and step increases for post-conviction defenders and assistant post-conviction defenders. The code commission determined that legislative intent dictated that subsection (d) be added to § 8-14-107 instead. Acts 2009, ch. 531, § 26 deleted § 8-14-107(d), effective June 25, 2009.

Cross-References. Criminal contempt, Tenn. R. Crim. P. 42.

40-30-310. Laboratory standards.

If the court orders analysis, it shall select a laboratory that meets the standards adopted pursuant to the DNA Identification Act of 1994 (42 U.S.C. § 14131 et seq.).

Acts 2001, ch. 444, § 1; T.C.A. § 40-30-410.

40-30-311. Orders in discretion of court.

The court may, in its discretion, make such other orders as may be appropriate.

Acts 2001, ch. 444, § 1; T.C.A. § 40-30-411.

40-30-312. Analysis results — Dismissal of petition — Order for hearing.

If the results of the post-conviction DNA analysis are not favorable to the petitioner, the court shall dismiss the petition, and make further orders as may be appropriate. If the results of the post-conviction DNA analysis are favorable, the court shall order a hearing, notwithstanding any provisions of law or rule of court that would bar the hearing as untimely, and thereafter make orders as are required or permitted by the rules of criminal procedure or part 1 of this chapter.

Acts 2001, ch. 444, § 1; T.C.A. § 40-30-412.

40-30-313. Payment for analysis.

If an order is issued requiring a DNA analysis be paid on behalf of a petitioner pursuant to this part, then the payment shall be made from funding provided for indigent defendants' counsel as set forth within the annual appropriations act. The payment shall be made only after receipt by the administrative director of the courts of a certified copy of the order and only upon receipt of a bill from the laboratory that conducted the analysis. The bill shall set forth the name of the petitioner, the date the analysis was performed, the amount of the bill, and the name and address of the laboratory to which payment is to be made.

Acts 2001, ch. 444, § 1; T.C.A. § 40-30-413; Acts 2004, ch. 693, § 3.

Chapter 31
Interstate Compact on Detainers

40-31-101. Enactment of agreement — Text.

The agreement on detainers is hereby enacted into law and entered into by this state with all other jurisdictions legally joining therein in the form substantially as follows:

The contracting states solemnly agree that:

ARTICLE I

The party states find that charges outstanding against a prisoner, detainers based on untried indictments, informations or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. Accordingly, it is the policy of the party states and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints. The party states also find that proceedings with reference to such charges and detainers, when emanating from another jurisdiction, cannot properly be had in the absence of cooperative procedures. It is the further purpose of this agreement to provide such cooperative procedures.

ARTICLE II

As used in this agreement:

“Receiving state” means a state in which trial is to be had on an indictment, information or complaint pursuant to article III or article IV hereof;
“Sending state” means a state in which a prisoner is incarcerated at the time that the prisoner initiates a request for final disposition pursuant to article III hereof or at the time that a request for custody or availability is initiated pursuant to article IV hereof; and
“State” means a state of the United States, the United States, a territory or possession of the United States, the District of Columbia, and the commonwealth of Puerto Rico.

ARTICLE III

Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, the person shall be brought to trial within one hundred eighty (180) days after having caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of the person's imprisonment and request for a final disposition to be made of the indictment, information or complaint; provided, that for good cause shown in open court, the prisoner or the prisoner's counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good and honor time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.
The written notice and request for final disposition referred to in paragraph (a) hereof shall be given or sent by the prisoner to the warden, commissioner of corrections or other official having custody of the prisoner, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.
The warden, commissioner of corrections or other official having custody of the prisoner shall promptly inform the prisoner of the source and contents of any detainer lodged against the prisoner and shall also inform the prisoner of the right to make a request for final disposition of the indictment, information or complaint on which the detainer is based.
Any request for final disposition made by a prisoner pursuant to paragraph (a) hereof shall operate as a request for final disposition of all untried indictments, informations or complaints on the basis of which detainers have been lodged against the prisoner from the state to whose prosecuting official the request for final disposition is specifically directed. The warden, commissioner of corrections or other official having custody of the prisoner shall forthwith notify all appropriate prosecuting officers and courts in the several jurisdictions within the state to which the prisoner's request for final disposition is being sent of the proceeding being initiated by the prisoner. Any notification sent pursuant to this paragraph shall be accompanied by copies of the prisoner's written notice, request, and the certificate. If trial is not had on any indictment, information or complaint contemplated hereby prior to the return of the prisoner to the original place of imprisonment, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.
Any request for final disposition made by a prisoner pursuant to paragraph (a) hereof shall also be deemed to be a waiver of extradition with respect to any charge or proceeding contemplated thereby or included therein by reason of paragraph (d) hereof, and a waiver of extradition to the receiving state to serve any sentence there imposed upon the prisoner, after completion of the term of imprisonment in the sending state. The request for final disposition shall also constitute a consent by the prisoner to the production of the prisoner's body in any court where his presence may be required in order to effectuate the purposes of this agreement and a further consent voluntarily to be returned to the original place of imprisonment in accordance with the provisions of this agreement. Nothing in this paragraph shall prevent the imposition of a concurrent sentence if otherwise permitted by law.
Escape from custody by the prisoner subsequent to the prisoner's execution of the request for final disposition referred to in paragraph (a) hereof shall void the request.

ARTICLE IV

The appropriate officer of the jurisdiction in which an untried indictment, information or complaint is pending shall be entitled to have a prisoner against whom the appropriate officer has lodged a detainer and who is serving a term of imprisonment in any party state made available in accordance with article V (a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated; provided, that the court having jurisdiction of such indictment, information or complaint shall have duly approved, recorded and transmitted the request. Provided, further, that there shall be a period of thirty (30) days after receipt by the appropriate authorities before the request be honored, within which period the governor of the sending state may disapprove the request for temporary custody or availability, either upon the motion of the governor of the sending state or upon motion of the prisoner.
Upon receipt of the officer's written request as provided in paragraph (a) hereof, the appropriate authorities having the prisoner in custody shall furnish the officer with a certificate stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good and honor time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner. These authorities in the sending state simultaneously shall furnish all other officers and appropriate courts in the receiving state who have lodged detainers against the prisoner with similar certificates and with notices informing them of the request for custody or availability and of the reasons therefor.
In respect of any proceedings made possible by this article, trial shall be commenced within one hundred twenty (120) days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or the prisoner's counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
Nothing contained in this article shall be construed to deprive any prisoner of any right which the prisoner may have to contest the legality of the prisoner's delivery as provided in paragraph (a) hereof, but such delivery may not be opposed or denied on the ground that the executive authority of the sending state has not affirmatively consented to or ordered such delivery.
If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner's being returned to the original place of imprisonment pursuant to article V (e) hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.

ARTICLE V

In response to a request made under article III or article IV hereof, the appropriate authority in a sending state shall offer to deliver temporary custody of such prisoner to the appropriate authority in the state where such indictment, information or complaint is pending against such person in order that speedy and efficient prosecution may be had. If the request for final disposition is made by the prisoner, the offer of temporary custody shall accompany the written notice provided for in article III of this agreement. In the case of a federal prisoner, the appropriate authority in the receiving state shall be entitled to temporary custody as provided by this agreement or to the prisoner's presence in federal custody at the place for trial, whichever custodial arrangement may be approved by the custodian.
The officer or other representative of a state accepting an offer of temporary custody shall present the following upon demand:
1. Proper identification and evidence of such person's authority to act for the state into whose temporary custody the prisoner is being given; and
2. A duly certified copy of the indictment, information or complaint on the basis of which the detainer has been lodged and on the basis of which the request for temporary custody of the prisoner has been made.
If the appropriate authority shall refuse or fail to accept temporary custody of such person, or in the event that an action on the indictment, information or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided in article III or article IV hereof, the appropriate court of the jurisdiction where the indictment, information or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.
The temporary custody referred to in this agreement shall be only for the purpose of permitting prosecution on the charge or charges contained in one (1) or more untried indictments, informations or complaints which form the basis of the detainer or detainers or for prosecution on any other charge or charges arising out of the same transaction. Except for attendance at court and while being transported to or from any place at which the prisoner's presence may be required, the prisoner shall be held in a suitable jail or other facility regularly used for persons awaiting prosecution.
At the earliest practicable time consonant with the purposes of this agreement, the prisoner shall be returned to the sending state.
During the continuance of temporary custody or while the prisoner is otherwise being made available for trial as required by this agreement, time being served on the sentence shall continue to run but good and honor time shall be earned by the prisoner only if and to the extent that, the law and practice of the jurisdiction which imposed the sentence may allow.
For all purposes other than that for which temporary custody as provided in this agreement is exercised, the prisoner shall be deemed to remain in the custody of and subject to the jurisdiction of the sending state and any escape from temporary custody may be dealt with in the same manner as an escape from the original place of imprisonment or in any other manner permitted by law.
From the time that a party state receives custody of a prisoner pursuant to this agreement until such prisoner is returned to the territory and custody of the sending state, the state in which the one (1) or more untried indictments, informations or complaints are pending or in which trial is being had shall be responsible for the prisoner and shall also pay all costs of transporting, caring for, keeping and returning the prisoner as in the case of other criminal prosecution costs. The provisions of this paragraph shall govern unless the states concerned shall have entered into a supplementary agreement providing for a different allocation of costs and responsibilities as between or among themselves.

ARTICLE VI

In determining the duration and expiration dates of the time periods provided in articles III and IV of this agreement, the running of such time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.
No provision of this agreement and no remedy made available by this agreement, shall apply to any person who is adjudged to be mentally ill.

ARTICLE VII

Each state party to this agreement shall designate an officer who, acting jointly with like officers of other party states, shall promulgate rules and regulations to carry out more effectively the terms and provisions of this agreement, and who shall provide, within and without the state, information necessary to the effective operation of this agreement.

ARTICLE VIII

This agreement shall enter into full force and effect as to a party state when such state has enacted the same into law. A state party to this agreement may withdraw herefrom by enacting a statute repealing the same. However, the withdrawal of any state shall not affect the status of any proceedings already initiated by inmates or by state officers at the time such withdrawal takes effect, nor shall it affect their rights in respect thereof.

ARTICLE IX

This agreement shall be liberally construed so as to effectuate its purposes. The provisions of this agreement shall be severable and if any phrase, clause, sentence or provision of this agreement is declared to be contrary to the constitution of any party state or of the United States or the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this agreement and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this agreement shall be held contrary to the constitution of any state party hereto, the agreement shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters.

Acts 1970, ch. 560, § 1; 1972, ch. 865, § 1; T.C.A., § 40-3901.

Compiler's Notes. The Interstate Compact on Detainers, created by this section, terminates June 30, 2025. See §§ 4-29-112, 4-29-246.

Cross-References. Certified mail in lieu of registered mail, § 1-3-111.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 2.1, 2.71, 2.84.

Tennessee Jurisprudence, 6A Tenn. Juris., Constitutional Law, § 45; 8 Tenn. Juris., Criminal Procedure, § 43; 13 Tenn. Juris., Extradition, § 3.

Law Reviews.

The Interstate Agreement on Detainers: Defining the Federal Role, 31 Vand. L. Rev. 1017 (1978).

NOTES TO DECISIONS

1. Applicability.

Provisions of the Interstate Agreement on Detainers (IAD), T.C.A. § 40-31-101, were not triggered when the state filed a writ of habeas corpus ad prosequendum, and neither defendant nor the state proceeded further under the provisions of the IAD. State v. Thomas, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 189 (Tenn. Crim. App. Mar. 3, 2006), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 1015 (Tenn. Oct. 30, 2006), cert. denied, Thomas v. Tennessee, 549 U.S. 1290, 127 S. Ct. 1842, 167 L. Ed. 2d 338, 2007 U.S. LEXIS 3192 (2007).

2. —Probation Violations.

The Interstate Compact on Detainers does not apply to detainers based on probation violation charges. State v. Warren, 740 S.W.2d 427, 1986 Tenn. Crim. App. LEXIS 2691 (Tenn. Crim. App. 1986).

The Interstate Compact on Detainers does not apply to a proceeding to revoke judicial diversion. State v. Evitts, 915 S.W.2d 468, 1995 Tenn. Crim. App. LEXIS 867 (Tenn. Crim. App. 1995).

3. Liberal Construction.

Due to the remedial nature of this legislation it is to be construed liberally in favor of those it was intended to benefit, to wit: inmates incarcerated in one state with charges pending in another state. State v. Black, 594 S.W.2d 738, 1979 Tenn. Crim. App. LEXIS 305 (Tenn. Crim. App. 1979), overruled, State v. Moore, 774 S.W.2d 590, 1989 Tenn. LEXIS 337 (Tenn. 1989); Dillon v. State, 844 S.W.2d 139, 1992 Tenn. LEXIS 625 (Tenn. 1992), cert. denied, Dillon v. Tennessee, 507 U.S. 988, 113 S. Ct. 1589, 123 L. Ed. 2d 155, 1993 U.S. LEXIS 2214 (1993); State v. Lock, 839 S.W.2d 436, 1992 Tenn. Crim. App. LEXIS 428 (Tenn. Crim. App. 1992).

4. Purpose.

The Interstate Compact on Detainer's purpose is to provide cooperative state procedures for the expeditious and orderly disposition of the charges underlying such detainers. Dillon v. State, 844 S.W.2d 139, 1992 Tenn. LEXIS 625 (Tenn. 1992), cert. denied, Dillon v. Tennessee, 507 U.S. 988, 113 S. Ct. 1589, 123 L. Ed. 2d 155, 1993 U.S. LEXIS 2214 (1993).

The Interstate Compact on Detainers seeks to ensure that prosecutors file detainers only when substantial grounds exist for bringing the prisoner to trial in other jurisdictions; it further aims to protect prisoners from the difficulties that occur once a detainer has been filed. State v. Hill, 875 S.W.2d 278, 1993 Tenn. Crim. App. LEXIS 672 (Tenn. Crim. App. 1993).

5. Construction with Other Provisions.

The chief difference between the Extradition Act, § 40-9-101 et seq., and the compact on detainers is that the compact procedures result in only a temporary transfer to the receiving state. State ex rel. Young v. Rose, 670 S.W.2d 238, 1984 Tenn. Crim. App. LEXIS 3001 (Tenn. Crim. App. 1984).

Because petitioner was a Tennessee state prisoner and subject to temporary transfer to the Commonwealth of Kentucky pursuant to the Interstate Compact on Detainers, T.C.A. § 40-31-101 et seq., T.C.A. § 40-9-103 of the Uniform Criminal Extradition Act did not apply. Accordingly, the trial court did not err by denying petitioner's petition for a writ of habeas corpus to contest the transfer. Heard v. Lee, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 57 (Tenn. Crim. App. Jan. 29, 2019).

6. Nature of Rights.

The rights created by the Interstate Agreement on Detainers are statutory, not fundamental, constitutional, or jurisdictional in nature. Grizzell v. Tennessee, 601 F. Supp. 230, 1984 U.S. Dist. LEXIS 20254 (M.D. Tenn. 1984), appeal dismissed, Grizzell v. Tenn., 746 F.2d 1476 (6th Cir. 1984), dismissed, Environmental Properties Corp. v. Allied Supermarkets, Inc., 746 F.2d 1476 (6th Cir. Mich. 1984).

7. Right to Counsel.

There is no constitutional right to counsel in the early stages of a request for custody. State v. Tyson, 603 S.W.2d 748, 1980 Tenn. Crim. App. LEXIS 288 (Tenn. Crim. App. 1980).

8. Final Disposition of Charges.

The receiving state cannot be charged with attempting to try the prisoner within 180 days until the receiving state has been given notice, by the prisoner or by officials of the sending state, of a request to proceed under Article III, specifically overruling Burns v. State, 578 S.W.2d 650, 1978 Tenn. Crim. App. LEXIS 342 (Tenn. Crim. App. 1978) and State v. Black, 594 S.W.2d 738, 1979 Tenn. Crim. App. LEXIS 305 (Tenn. Crim. App. 1979), insofar as they conflict. State v. Moore, 774 S.W.2d 590, 1989 Tenn. LEXIS 337 (Tenn. 1989).

The trial court did not abuse its discretion in refusing to reopen evidence or to reverse a prior ruling; both parties had the opportunity at a prior hearing to present whatever evidence they thought bore on the issues. State v. Lock, 839 S.W.2d 436, 1992 Tenn. Crim. App. LEXIS 428 (Tenn. Crim. App. 1992).

Where defendant made an appropriate request for final disposition of his charge, the 180-day period began to run when the district attorney general received the request. State v. Lock, 839 S.W.2d 436, 1992 Tenn. Crim. App. LEXIS 428 (Tenn. Crim. App. 1992).

Although court documents reflected that the defendant was in the temporary custody of several other jurisdictions, subsequent to his request for final disposition, since they did not indicate for what periods of time, the burden was on the state to obtain the temporary custody of the defendant and to dispose of his case within the 180 days. State v. Lock, 839 S.W.2d 436, 1992 Tenn. Crim. App. LEXIS 428 (Tenn. Crim. App. 1992).

In extradition case, court properly dismissed case, as there was sufficient proof in the record to conclude that an appropriate detainer was lodged with Kentucky authorities so as to allow the Interstate Compact on Detainers Act's 180-day time requirement to be triggered by the defendant's request for final disposition. State v. Lock, 839 S.W.2d 436, 1992 Tenn. Crim. App. LEXIS 428 (Tenn. Crim. App. 1992).

The 180-day time period under this compact, had begun to run when the county prosecutor and circuit court received the defendant's request for final disposition. State v. Lock, 839 S.W.2d 436, 1992 Tenn. Crim. App. LEXIS 428 (Tenn. Crim. App. 1992).

Defendant's attempt to invoke the governor's intervention, as provided in article IV of this compact, on receiving county's request for temporary custody, apparently made under article IV of this act, did not constitute sufficient proof that the defendant was unable to stand trial in receiving county within 180 days of his article III request for final disposition, thus absent any evidence that the defendant's petition to the governor resulted in the custodial state revoking its offer of temporary custody to the requesting county or otherwise actually prohibited such a transfer, the petition did not operate to toll the running of the 180-day time period. State v. Lock, 839 S.W.2d 436, 1992 Tenn. Crim. App. LEXIS 428 (Tenn. Crim. App. 1992).

The 180-day time limit begins to run when the state receives the petition. In this case the inadequate record does not allow the court to determine whether the time began to run on October 7 or October 17, 1995. If it began to run on October 17, the trial was timely commenced and if it began to run on October 7, the continuance of the trial from the March 11, 1996 setting was reasonable, necessary, and to the benefit of the defendant. State v. Garmon, 972 S.W.2d 706, 1998 Tenn. Crim. App. LEXIS 44 (Tenn. Crim. App. 1998).

9. —Continuance.

A continuance granted ex parte has no tolling effect on 120-day limit for bringing prisoners to trial. Dillon v. State, 844 S.W.2d 139, 1992 Tenn. LEXIS 625 (Tenn. 1992), cert. denied, Dillon v. Tennessee, 507 U.S. 988, 113 S. Ct. 1589, 123 L. Ed. 2d 155, 1993 U.S. LEXIS 2214 (1993).

Because defendant was denied the opportunity to prepare a reasoned response to the state's request for a continuance, the resulting continuance was not issued in accordance with statutory requirements and, thus, had no tolling effect on the 120-day limit for bringing a prisoner to trial. Dillon v. State, 844 S.W.2d 139, 1992 Tenn. LEXIS 625 (Tenn. 1992), cert. denied, Dillon v. Tennessee, 507 U.S. 988, 113 S. Ct. 1589, 123 L. Ed. 2d 155, 1993 U.S. LEXIS 2214 (1993).

10. —Delay of Final Disposition.

Failure to bring defendant to trial within 180 days of a request for final disposition where the reason for the delay was due to negligence and inaction between the two jurisdictions, required that the indictment in the state wanting custody be dismissed. Nelms v. State, 532 S.W.2d 923, 1976 Tenn. LEXIS 610 (Tenn. 1976).

The default of prison officials in the “sending state” in not notifying the officials in the “receiving state” of a prisoner's request for final disposition is not imputable to a prisoner and does not defeat the prisoner's right under the interstate compact. Burns v. State, 578 S.W.2d 650, 1978 Tenn. Crim. App. LEXIS 342 (Tenn. Crim. App. 1978), overruled, State v. Moore, 774 S.W.2d 590, 1989 Tenn. LEXIS 337 (Tenn. 1989).

Contention that state failed to comply with 180-day “statute of limitations” of Article III was properly rejected by trial judge where record failed to show even substantial compliance by defendant with the requirements of Article III (a) and (b). Dykes v. State, 589 S.W.2d 384, 1979 Tenn. Crim. App. LEXIS 283 (Tenn. Crim. App. 1979).

Although from the date of defendant's arrival in Tennessee until the trial began 174 days elapsed, defendant could not complain because of a lack of a speedy trial if, excluding the delays sought by defendant only 17 days would be chargeable to the prosecution, since such a minimal delay would not amount to denial of a speedy trial under the Compact. State v. Tyson, 603 S.W.2d 748, 1980 Tenn. Crim. App. LEXIS 288 (Tenn. Crim. App. 1980).

Failure to comply with the 180-day time requirement for bringing defendants to trial did not automatically require dismissal of the indictment and necessary or reasonable continuances for good cause would be allowed. State v. Gipson, 670 S.W.2d 637, 1984 Tenn. Crim. App. LEXIS 2330 (Tenn. Crim. App. 1984).

A crowded docket was not a necessary or reasonable ground for a continuance, and defendants' indictment was set aside where the trial occurred after the 180 days were up. State v. Gipson, 670 S.W.2d 637, 1984 Tenn. Crim. App. LEXIS 2330 (Tenn. Crim. App. 1984).

The 180-day time requirement in the compact was such that trial courts were obligated to give these compact cases precedence over the other cases on their docket. State v. Gipson, 670 S.W.2d 637, 1984 Tenn. Crim. App. LEXIS 2330 (Tenn. Crim. App. 1984).

One day delay beyond the 180-day statutory limit was not an abuse of discretion. State v. Green, 680 S.W.2d 474, 1984 Tenn. Crim. App. LEXIS 2847 (Tenn. Crim. App. 1984), overruled, State v. Moore, 774 S.W.2d 590, 1989 Tenn. LEXIS 337 (Tenn. 1989).

The Interstate Compact on Detainers does not tolerate any negligence on the part of the state, nor anything short of good cause to be exercised in the discretion of the court. State v. Green, 680 S.W.2d 474, 1984 Tenn. Crim. App. LEXIS 2847 (Tenn. Crim. App. 1984), overruled, State v. Moore, 774 S.W.2d 590, 1989 Tenn. LEXIS 337 (Tenn. 1989).

Defendant's escape from jail one year and 10 months after a request for final disposition of his case did not void his request, as, the state failed, without cause to dispose of the prisoner's case within 180 days of the prisoner's valid request. State v. Lock, 839 S.W.2d 436, 1992 Tenn. Crim. App. LEXIS 428 (Tenn. Crim. App. 1992).

11. —Retrial.

The time for retrial after a mistrial is to be left to the sound discretion of the trial court. State v. Bobo, 724 S.W.2d 760, 1981 Tenn. Crim. App. LEXIS 434 (Tenn. Crim. App. 1981).

A defendant must be retried within a reasonable time from the date of mistrial, such period not to exceed 120 days, unless good cause be shown. State v. Bobo, 724 S.W.2d 760, 1981 Tenn. Crim. App. LEXIS 434 (Tenn. Crim. App. 1981).

In the absence of any evidence of bad faith or lack of diligence on the part of the state, a retrial must take place within a reasonable time, not to exceed the same time period provided for an original trial under T.C.A. § 40-31-101. State v. Green, 680 S.W.2d 474, 1984 Tenn. Crim. App. LEXIS 2847 (Tenn. Crim. App. 1984), overruled, State v. Moore, 774 S.W.2d 590, 1989 Tenn. LEXIS 337 (Tenn. 1989).

12. —Tolling.

The 120-day period for bringing a prisoner to trial was tolled as of the date defendant filed his motion to suppress. Dillon v. State, 844 S.W.2d 139, 1992 Tenn. LEXIS 625 (Tenn. 1992), cert. denied, Dillon v. Tennessee, 507 U.S. 988, 113 S. Ct. 1589, 123 L. Ed. 2d 155, 1993 U.S. LEXIS 2214 (1993).

13. “Untried Indictment, Information or Complaint.”

Provisions of this statute are not applicable to cases of parole violation detainers, since a charge of parole violation is not an “untried indictment, information or complaint.” Blackwell v. State, 546 S.W.2d 828, 1976 Tenn. Crim. App. LEXIS 316 (Tenn. Crim. App. 1976).

The 180-day time limitation in Article III(a) did not apply to the trial of a defendant who had been placed on parole in the sending state. Womble v. State, 957 S.W.2d 839, 1997 Tenn. Crim. App. LEXIS 270 (Tenn. Crim. App. 1997).

14. State Warrant.

A “state warrant” is a “complaint” for purposes of the Interstate Compact on Detainers. State v. Black, 594 S.W.2d 738, 1979 Tenn. Crim. App. LEXIS 305 (Tenn. Crim. App. 1979), overruled, State v. Moore, 774 S.W.2d 590, 1989 Tenn. LEXIS 337 (Tenn. 1989).

15. “Unable to Stand Trial.”

The phrase “unable to stand trial” in Article VI(a) includes a situation where a prisoner is lodged in a state or federal facility other than in the sending or receiving state. Time limits are tolled during the periods when the prisoner is removed from the custodial place of incarceration to a place other than the demanding jurisdiction. State v. Moore, 774 S.W.2d 590, 1989 Tenn. LEXIS 337 (Tenn. 1989).

16. Transfer Forms.

17. —Listing of Offenses.

While, on a request for temporary custody, the transfer forms require the listing of offenses with which the individual is charged, an habitual criminal charge need not be listed since it is not an “offense.” State v. Tyson, 603 S.W.2d 748, 1980 Tenn. Crim. App. LEXIS 288 (Tenn. Crim. App. 1980).

18. —Identifying Information.

A request for temporary custody does not require a physical description of the individual sought, a photograph of the individual; the only identifying information required is the name of the person requested. State v. Day, 882 S.W.2d 409, 1994 Tenn. Crim. App. LEXIS 178 (Tenn. Crim. App. 1994).

19. Detainer.

Where defendant was transferred between jurisdictions under a writ of habeas corpus ad prosequendum that did not amount to a detainer within the meaning of the Interstate Agreement on Detainers, it did not entitle defendant to the protection of Article IV requiring discharge when not tried before return. Metheny v. State, 589 S.W.2d 943, 1979 Tenn. Crim. App. LEXIS 289 (Tenn. Crim. App. 1979), cert. denied, Metheny v. Tennessee, 445 U.S. 967, 100 S. Ct. 1658, 64 L. Ed. 2d 243, 1980 U.S. LEXIS 1477 (1980).

A detainer is a request filed by a criminal justice agency with the institution in which a prisoner is incarcerated asking the institution either to hold the prisoner for the agency or to notify the agency when release of the prisoner is imminent. State v. Moore, 774 S.W.2d 590, 1989 Tenn. LEXIS 337 (Tenn. 1989).

Where a detainer was not filed against the defendant, the provisions of the agreement were never triggered; therefore, the transfer of the defendant between federal and state custody before the final disposition of the charges against the defendant did not violate the agreement. State v. Brown, 53 S.W.3d 264, 2000 Tenn. Crim. App. LEXIS 962 (Tenn. Crim. App. 2000), appeal denied, — S.W.3d —, 2001 Tenn. LEXIS 434 (Tenn. May 14, 2001), review denied, — S.W.3d —, 2002 Tenn. LEXIS 415 (Tenn. Sept. 23, 2002).

20. Burden to Show Compliance with Statute.

In the event of a knowing bypass of the statutory procedure, the burden is on the prisoner to demonstrate strict compliance with the notification and certification requirements of the statute. State v. Grizzell, 584 S.W.2d 678, 1979 Tenn. Crim. App. LEXIS 267 (Tenn. Crim. App. 1979), cert. denied, Grizzell v. Tennessee, 444 U.S. 993, 100 S. Ct. 527, 62 L. Ed. 2d 423, 1979 U.S. LEXIS 4082 (1979).

The burden of proof is on the state to show compliance with this act's time requirements, including a showing that the requirements were not met because the defendant was unable to stand trial. State v. Lock, 839 S.W.2d 436, 1992 Tenn. Crim. App. LEXIS 428 (Tenn. Crim. App. 1992).

21. Inmate Dealing Directly.

An inmate when he chooses to deal directly with officials in the requesting state is bound by the same requirements as would be the officials of the sending state, once they received notice from the prisoner as set out in Article III(b). State v. Grizzell, 584 S.W.2d 678, 1979 Tenn. Crim. App. LEXIS 267 (Tenn. Crim. App. 1979), cert. denied, Grizzell v. Tennessee, 444 U.S. 993, 100 S. Ct. 527, 62 L. Ed. 2d 423, 1979 U.S. LEXIS 4082 (1979).

22. Post-Conviction Status.

Once a person has been convicted, sentenced, and has begun serving that sentence in the sending jurisdiction, that person's status is distinguishable for purposes of invoking this act's protections from that of a pretrial detainee. State v. Lock, 839 S.W.2d 436, 1992 Tenn. Crim. App. LEXIS 428 (Tenn. Crim. App. 1992).

23. Monitoring.

There is a working assumption clearly built into this act, that a receiving state as a jurisdictional unit will have a routine method of monitoring under centralized control, the arrival of out-of-state prisoners for trial on particular charges anywhere within the jurisdictional unit. State v. Lock, 839 S.W.2d 436, 1992 Tenn. Crim. App. LEXIS 428 (Tenn. Crim. App. 1992).

24. Open Court.

“Open court” as used in art. IV(c), requires, at a minimum, that a verbatim record be made of the proceedings. Dillon v. State, 844 S.W.2d 139, 1992 Tenn. LEXIS 625 (Tenn. 1992), cert. denied, Dillon v. Tennessee, 507 U.S. 988, 113 S. Ct. 1589, 123 L. Ed. 2d 155, 1993 U.S. LEXIS 2214 (1993).

25. Relief.

There is no provision in the Interstate Agreement on Detainers, or in any case law of this circuit, which would afford a federal district court authority to provide relief by an order directing the Tennessee prison officials to disregard another state's detainer or by ordering the officials of that state to withdraw same. Bracey v. Tennessee, 616 F.2d 268, 1980 U.S. App. LEXIS 20002 (6th Cir. Tenn. 1980).

Defendant was not entitled to relief under Article III, because defendant was a federal pretrial detainee at the time he filed a procedurally deficient demand for speedy disposition. State v. Springer, 406 S.W.3d 526, 2013 Tenn. LEXIS 499 (Tenn. June 24, 2013).

26. —Not Granted.

Because violation of the Interstate Compact on Detainers Act was technical and inadvertent, and there was no claim by the defendant that his return to federal custody interfered with his rehabilitation, the trial court properly denied defendant's motion for dismissal on the grounds that the act had been violated. Ball v. State, 891 S.W.2d 240, 1994 Tenn. Crim. App. LEXIS 537 (Tenn. Crim. App. 1994).

27. Review by Governor.

The requirement that the governor personally review requests for custody under the Extradition Act, § 40-9-101 et seq., did not also apply to transfers under the Interstate Compact on Detainers. State ex rel. Young v. Rose, 670 S.W.2d 238, 1984 Tenn. Crim. App. LEXIS 3001 (Tenn. Crim. App. 1984).

The governor's approval is irrelevant to the receiving state's right to take temporary custody of a prisoner under article III. State v. Lock, 839 S.W.2d 436, 1992 Tenn. Crim. App. LEXIS 428 (Tenn. Crim. App. 1992).

28. Habeas Corpus.

Habeas corpus relief is not available where complaint only relates to possible denial of certain privileges because of out-of-state detainer lodged against complainant. State v. Warren, 740 S.W.2d 427, 1986 Tenn. Crim. App. LEXIS 2691 (Tenn. Crim. App. 1986).

The trial court properly declined to rule upon the validity of the Ohio detainer because the jurisdiction of Tennessee courts may not be invoked in habeas corpus actions to challenge the propriety of a sister state's proceedings for the enforcement of its laws. State v. Warren, 740 S.W.2d 427, 1986 Tenn. Crim. App. LEXIS 2691 (Tenn. Crim. App. 1986).

29. Defects Cognizable Under Federal Law.

In the absence of exceptional circumstances, a claimed violation of Article IV(e) of the Interstate Compact on Detainers is not a fundamental defect which is cognizable under 28 U.S.C. § 2254. Metheny v. Hamby, 835 F.2d 672, 1987 U.S. App. LEXIS 16559 (6th Cir. Tenn. 1987), cert. denied, 488 U.S. 913, 109 S. Ct. 270, 102 L. Ed. 2d 258, 1988 U.S. LEXIS 4559 (1988).

30. Evidence.

31. Protections Not Properly Invoked.

Defendant failed to invoke the protections offered pursuant to the Interstate Agreement on Detainers, T.C.A. § 40-31-101, art. III, as his request was not accompanied by a certificate from the appropriate official setting out the term of commitment under which the prisoner was being held; defendant could not provide the certificate because he had not been sentenced as of the date of the request. State v. Springer, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 110 (Tenn. Crim. App. Feb. 16, 2012), rev'd, 406 S.W.3d 526, 2013 Tenn. LEXIS 499 (Tenn. June 24, 2013).

32. Anti-shuttling Provision.

Movement of defendant did not trigger the Interstate Agreement on Detainers, T.C.A. § 40-31-101, art. IV's, anti-shuttling provision where was at a local, privately owned facility at the time he was brought to Gibson County for his arraignment and then returned, and was not transferred to a federal prison for service of his sentence until months later; defendant was not serving his term of imprisonment when he was transferred to Gibson County and then transferred back to the detention facility. State v. Springer, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 110 (Tenn. Crim. App. Feb. 16, 2012), rev'd, 406 S.W.3d 526, 2013 Tenn. LEXIS 499 (Tenn. June 24, 2013).

Anti-shuttling provision was violated, because defendant was transferred, pursuant to a detainer from federal custody to state custody and back to federal custody before he was tried on the charges pending in the state court. State v. Springer, 406 S.W.3d 526, 2013 Tenn. LEXIS 499 (Tenn. June 24, 2013).

40-31-102. “Appropriate court” defined.

“Appropriate court,” as used in the agreement on detainers, with reference to the courts of this state, means a court of record with criminal jurisdiction.

Acts 1970, ch. 560, § 2; T.C.A., § 40-3902.

40-31-103. Enforcement of agreement — Cooperation with party states.

All courts, departments, agencies, officers and employees of this state and its political subdivisions are hereby directed to enforce the agreement on detainers and to cooperate with one another and with other party states in enforcing the agreement and effectuating its purpose.

Acts 1970, ch. 560, § 3; T.C.A., § 40-3903.

NOTES TO DECISIONS

1. Request for Final Disposition.

After a detainer has been filed, the interstate compact is triggered when a prisoner gives his captors notice of his request for final disposition of untried charges against him in compliance with Article III(b). Burns v. State, 578 S.W.2d 650, 1978 Tenn. Crim. App. LEXIS 342 (Tenn. Crim. App. 1978), overruled, State v. Moore, 774 S.W.2d 590, 1989 Tenn. LEXIS 337 (Tenn. 1989).

40-31-104. Escape from temporary custody.

Any prisoner released to temporary custody under the provisions of the agreement on detainers from a place of imprisonment in Tennessee who shall escape or attempt to escape from the temporary custody, whether within or without the borders of this state, shall be dealt with in the same manner as if the escape or attempt to escape were from the original place of imprisonment.

Acts 1970, ch. 560, § 4; T.C.A., § 40-3904.

Cross-References. Escape, § 39-16-605.

Escape defined, § 39-16-601.

40-31-105. Surrender of prisoner mandatory.

It is lawful and mandatory upon the warden or other official in charge of a penal or correctional institution in this state to give over the person of any inmate of the penal or correctional institution whenever so required by the operation of the agreement on detainer.

Acts 1970, ch. 560, § 5; T.C.A., § 40-3905.

40-31-106. [Reserved.]

The governor is empowered to designate the officer who will serve as central administrator of, and information agent for, the agreement on detainers, pursuant to article VII of § 40-31-101.
The officer designated shall make a written report to the speakers of the senate and the house of representatives, and the chairs of the judiciary committee of the senate and the judiciary committee of the house of representatives, at least once each year. This report shall be made no later than February 1. The report shall advise the speakers and committee chairs on the number of participants in the compact.

Acts 1970, ch. 560, § 7; T.C.A., § 40-3907; Acts 1988, ch. 497, § 3; 2013, ch. 236, § 35; 2019, ch. 345, § 58.

Amendments. The 2019 amendment substituted “judiciary” for “criminal justice” preceding “committee of the house” in (b).

Effective Dates. Acts 2019, ch. 345, § 148. May 10, 2019.

NOTES TO DECISIONS

1. Review by Governor.

40-31-108. Distribution of copies of enactment.

Copies of this chapter shall, upon its approval, be transmitted to the governor of each state, the attorney general and the administrator of general services of the United States, and the council of state governments.

Acts 1970, ch. 560, § 8; T.C.A., § 40-3908.

40-31-107. Central administrator and information agent — Designation — Report.

Chapter 32
Destruction of Records Upon Dismissal or Acquittal

40-32-101. Destruction or release of records.

1. 1. All public records of a person who has been charged with a misdemeanor or a felony shall, upon petition by that person to the court having jurisdiction in the previous action, be removed and destroyed without cost to the person, if:
    1. The charge has been dismissed;
    2. A no true bill was returned by a grand jury; or
    3. The person was arrested and released without being charged.
  2. A person applying for the expunction of records because the charge or warrant was dismissed in any court as a result of the successful completion of a pretrial diversion program pursuant to §§ 40-15-102 — 40-15-107, shall be charged the appropriate court clerk's fee pursuant to § 8-21-401 for destroying such records.
  3. 1. If a person seeking expunction pursuant to subdivision (a)(1)(A) was arrested or charged due to a case of mistaken identity, the person may provide evidence of the relevant circumstances in the petition and request that the court order the expunction to be expedited. If the court finds that the person was arrested or charged due to mistaken identity, the court shall order the Tennessee bureau of investigation and any other entity that performs expunction to expunge the records of the person in an expedited manner.
    2. As used in this subdivision (a)(1)(C), “mistaken identity” means during the investigation of a criminal offense, a person has been arrested, charged, or indicted for a criminal act and subsequent investigation has revealed that the person arrested was not the individual the arresting officer believed the person to be.
  4. Notwithstanding subdivision (a)(1)(B) or (a)(6), the records of a person who successfully completes a pretrial diversion program pursuant to §§ 40-15-102 — 40-15-107, or a judicial diversion program pursuant to § 40-35-313, shall not be expunged pursuant to this section, if the offense for which the person was diverted was a sexual offense as defined by § 40-39-202, or a violent sexual offense as defined by § 40-39-202.
  5. Except as provided in subsection (j), a person is not entitled to the expunction of such person's records if:
    1. The person is charged with an offense, is not convicted of the charged offense, but is convicted of an offense relating to the same criminal conduct or episode as the charged offense, including a lesser included offense; provided, however, any moving or nonmoving traffic offense shall not be considered an offense as used in this subdivision (a)(1)(E); or
    2. The person is charged with multiple offenses or multiple counts in a single indictment and is convicted of:
      1. One (1) or more of the charged offenses or counts in the indictment; or
      2. An offense relating to the same criminal conduct or episode as one (1) of the offenses charged in the indictment, including a lesser included offense.
  6. Upon a verdict of not guilty being returned, whether by a judge following a bench trial or by a jury, on all charges for which the defendant was accused, the judge shall inquire of the person acquitted whether such person requests that all public records associated with the charges for which such person was acquitted be removed and destroyed without cost to the person and without the requirement that the person petition for destruction of such records. If the person requests that the public records related to such charges be removed and destroyed, the court shall so order. If the person acquitted does not request that such records be destroyed at the time the judge inquires pursuant to this subdivision (a)(1)(F), but subsequently requests that such records be destroyed, the person shall be required to follow the petition procedure set out in this section.
2. All public records of a person required to post bond under § 38-3-109 or § 38-4-106 [repealed] shall be removed and destroyed as required by this chapter upon the expiration of any bond required, if no surety on the bond is required to fulfill the obligations of the bond.
3. Upon petition by a defendant in the court that entered a nolle prosequi in the defendant's case, the court shall order all public records expunged.
4. For purposes of this section, “court” includes any juvenile court exercising juvenile court jurisdiction over an adult who is charged with an offense that was committed when the person was eighteen (18) years of age or older.
5. All public records concerning an order of protection authorized by title 36, chapter 3, part 6, which was successfully defended and denied by the court shall, upon petition by that person to the court denying the order, be removed and destroyed without cost to the person.
6. Except as provided in subsection (f), it is the intent of this section that a person is entitled to the expunction of public records in a criminal case only if the person successfully completes a pretrial diversion program pursuant to §§ 40-15-102 — 40-15-107 or a judicial diversion program pursuant to § 40-35-313, the charges against such person are dismissed, or the person is entitled to have all public records removed and destroyed by reason of one (1) of the results specified in this section.
1. “Public records,” for the purpose of expunction only, does not include arrest histories, investigative reports, intelligence information of law enforcement agencies, or files of district attorneys general that are maintained as confidential records for law enforcement purposes and are not open for inspection by members of the public and shall also not include records of the department of children's services or department of human services that are confidential under state or federal law and that are required to be maintained by state or federal law for audit or other purposes. Whenever an order of expunction issues under this section directed to the department of children's services or department of human services, the department shall notify the defendant if there are records required to be maintained as directed above and the basis therefor. The department shall delete identifying information in these records whenever permitted by state or federal law. These records are to be expunged whenever their maintenance is no longer required by state or federal law.
2. “Public records”, for the purpose of expunction only, does not include appellate court records or appellate court opinions.
1. Release of confidential records or information contained therein other than to law enforcement agencies for law enforcement purposes shall be a Class A misdemeanor.
2. This section shall not be construed to deny access to any record to the comptroller of the treasury or the comptroller of the treasury's agent for purposes of audit investigation; the comptroller of the treasury or the comptroller of the treasury's agent having this access shall protect the confidential nature of the records that are not otherwise public under other statutes.
3. Release of arrest histories of a defendant or potential witness in a criminal proceeding to an attorney of record in the proceeding shall be made to the attorney upon request.
1. Any court ordering the expunction of a person’s public records of a criminal offense, including orders issued as a result of the successful completion of a diversion program pursuant to §§ 40-15-105 and 40-15-106 or judicial diversion program, shall send or cause to be sent a copy of the expunction order to the Tennessee bureau of investigation within thirty (30) days from the date of the expunction order for entry into its expunged offender and pretrial diversion database. The order shall contain the name of the person seeking expunction, the person’s date of birth and social security number, the offense that was dismissed, the date and cause of the dismissal and the date the order of expunction is entered.
2. [Deleted by 2019 amendment.]
It is the intent of the general assembly that no fee ever be charged a person who is petitioning a court for expunction of records because:
1. The charge against the person was dismissed for a reason other than the successful completion of a diversion program pursuant to §§ 40-15-102 — 40-15-106 or § 40-35-313;
2. A no true bill was returned by a grand jury;
3. A verdict of not guilty was returned, whether by the judge following a bench trial or by a jury; or
4. The person was arrested and released without being charged.
1. All public records of a person who has been charged and convicted with a misdemeanor or felony while protesting or challenging a state law or municipal ordinance whose purpose was to maintain or enforce racial segregation or racial discrimination shall, upon petition by that person to the court having jurisdiction in the previous action, be removed and destroyed without cost to the person, if:
  1. The charge has been dismissed;
  2. A no true bill was returned by a grand jury;
  3. A verdict of not guilty was returned, whether by the judge following a bench trial or by a jury;
  4. The person was arrested and released, without being charged; or
  5. 1. Thirty-seven (37) years or more have elapsed since the date of conviction for the offense being expunged and the petitioner has not been convicted of any other offense, excluding minor traffic violations, during that period of time;
    2. Any period of supervision due to conviction has been completed;
    3. The offense was a misdemeanor, Class C, D or E felony not otherwise excluded pursuant to subdivision (f)(1)(E)(iv), or, if committed prior to November 1, 1989, would be an included Class C, D, or E felony if committed after November 1, 1989;
    4. The offense was not a Class A or Class B felony or a Class C felony described in § 40-15-105(a)(1)(B)(iii), a sexual offense described in § 40-15-105(a)(1)(B)(ii), or an offense prohibited by title 55, chapter 10, part 4, vehicular assault as prohibited by § 39-13-106, or if committed prior to November 1, 1989, would not be an excluded offense if committed after November 1, 1989; and
    5. The district attorney general is served a copy of the petition for expunction by certified mail, return receipt requested, and the district attorney general does not file an objection with the court within twenty (20) calendar days of receipt of the petition.
2. All public records of a person required to post bond under § 38-3-109 shall be removed and destroyed as required by this section upon the expiration of any bond required, if no surety on the bond is required to fulfill the obligations of the bond.
3. Upon petition by a defendant in the court that entered a nolle prosequi in the defendant's case, the court shall order all public records expunged.
4. If the person charged or convicted is deceased, the petition may be filed by a person who is able to establish legal authority to act on the behalf of the deceased person.
5. Notwithstanding any law to the contrary, upon request of the petitioner, records or documents subject to the destruction requirement of this subsection (f) that are utilized exclusively for education purposes and are displayed in public museums, libraries, and buildings are exempt from the destruction requirement.
1. For purpose of this subsection (g), “eligible petitioner” means:
  1. A person who was convicted of one of the following Class E felonies and sentenced to imprisonment for a term of three (3) years or less for an offense committed on or after November 1, 1989:
    1. Section 39-11-411 — Accessory after the fact;
    2. Section 39-13-306 — Custodial interference where person not voluntarily returned by defendant;
    3. Section 39-13-604(c)(2) — Knowing dissemination of illegally recorded cellular communication;
    4. Section 39-14-105(a)(2) — Theft;
    5. Section 39-14-114(c) — Forgery;
    6. Section 39-14-115 — Criminal simulation;
    7. Section 39-14-116(c) — Hindering secured creditors;
    8. Section 39-14-117(b) — Fraud in insolvency;
    9. Section 39-14-118 — Fraudulent use of credit card or debit card;
    10. Section 39-14-121 — Worthless checks;
    11. Section 39-14-130 — Destruction of valuable papers;
    12. Section 39-14-131 — Destruction or concealment of will;
    13. Section 39-14-133 — Fraudulent or false insurance claim;
    14. Section 39-14-137(b) — Fraudulent qualifying for set aside programs;
    15. Section 39-14-138 — Theft of trade secrets;
    16. Section 39-14-139 — Sale of recorded live performances without consent;
    17. Section 39-14-143 — Unauthorized solicitation for police, judicial, or safety associations;
    18. Section 39-14-147(f) — Fraudulent transfer of motor vehicle with value of less than $20,000;
    19. Section 39-14-149 — Communication theft (fine only);
    20. Section 39-14-154 — Home improvement fraud;
    21. Section 39-14-402 — Burglary of an auto;
    22. Section 39-14-408 — Vandalism;
    23. Section 39-14-411 — Utility service interruption or property damage;
    24. Section 39-14-505 — Aggravated criminal littering (2nd and 3rd offenses involving certain weight or volume);
    25. Section 39-14-602 — Violation of Tennessee Personal and Commercial Computer Act;
    26. Section 39-14-603 — Unsolicited bulk electronic mail;
    27. Section 39-16-201 — Taking telecommunication device into penal institution;
    28. Section 39-16-302 — Impersonation of licensed professional;
    29. Section 39-16-603 — Evading arrest in motor vehicle where no risk to bystanders;
    30. Section 39-16-609(e) — Failure to appear (felony);
    31. Section 39-17-106 — Gifts of adulterated candy or food;
    32. Section 39-17-417(f) — Manufacture, delivery, sale, or possession of Schedule V drug (fine not greater than $5,000);
    33. Section 39-17-417(g)(1) — Manufacture, delivery, sale, or possession of not less than one-half ounce (½ oz.) and not more than ten pounds (10 lbs.) of Schedule VI drug marijuana (fine not greater than $2,500);
    34. Section 39-17-417(h) — Manufacture, delivery, sale or possession of Schedule VII drug (fine not greater than $1,000);
    35. Section 39-17-418(e) — Simple possession or casual exchange (3rd offense);
    36. Section 39-17-422(c) — Selling glue for unlawful purpose;
    37. Section 39-17-423(c) — Counterfeit controlled substance;
    38. Section 39-17-425(b)(1), (2), (3) — Unlawful drug paraphernalia uses and activities;
  2. Except as provided in this subdivision (g)(1)(B), a person who was convicted of a misdemeanor offense committed on or after November 1, 1989. Misdemeanors excluded from consideration are:
    1. Section 39-13-101(a)(1) and (2) — Assault;
    2. Section 39-13-102 — Aggravated assault of public employee;
    3. Section 39-13-111 — Domestic assault;
    4. Section 39-13-113(g) — Violation of protective or restraining order;
    5. Section 39-13-113(h) — Possession of firearm while order of protection in effect;
    6. Section 39-13-511 — Public indecency 3rd or subsequent offense;
    7. Section 39-13-511 — Indecent exposure (victim under 13 years of age) or by person in penal institution exposing to a guard;
    8. Section 39-13-526(b)(1) and (2) — Violation of community supervision by sex offender not constituting offense or constituting misdemeanor;
    9. Section 39-13-528 — Soliciting minor to engage in Class E sexual offense;
    10. Section 39-13-509 — Unlawful sexual contact by authority figure;
    11. Section 39-14-118 — Fraudulent use of credit/debit card (up to $500);
    12. Section 39-14-304 — Reckless burning;
    13. Section 39-14-406 — Aggravated criminal trespass of a habitation, hospital, or on the campus of any public or private school, or on railroad property;
    14. Section 39-15-201(b)(3) — Coercion — abortion;
    15. Section 39-15-210 — Third or subsequent violation of Child Rape Protection Act of 2006;
    16. Section 39-15-401(a) — Child abuse (where child is between ages 7-17);
    17. Section 39-15-401(b) — Child neglect and endangerment (where child is between ages 7-13);
    18. Section 39-15-404 — Enticing a child to purchase intoxicating liquor — purchasing alcoholic beverage for child;
    19. Section 39-15-404 — Allowing person ages 18-21 to consume alcohol on person’s premises;
    20. Section 39-15-414 — Harboring or hiding a runaway child;
    21. Section 39-17-315 — Stalking;
    22. Section 39-17-431 — Unlawful dispensing of immediate methamphetamine precursor, sale of meth precursor to person on methamphetamine registry or purchase by someone on registry, possess meth precursor with intent to sell to another for unlawful use, purchase meth precursor for another for unlawful use, purchase meth precursor at different times and places to circumvent limits, and use false ID to purchase meth precursor for purpose of circumventing limits;
    23. Section 39-17-437 — Using substance or device to falsify drug test results and selling synthetic urine;
    24. Section 39-17-438 — Possession of the hallucinogenic plant Salvia Divinorum or the synthetic cannabinoids;
    25. Section 39-17-452 — Sale or possession of synthetic derivatives or analogues of methcathinone;
    26. Section 39-17-902(a) — Importing, preparing, distributing, processing, or appearing in obscene material or Class A misdemeanors;
    27. Section 39-17-907 — Unlawful exhibition of obscene material;
    28. Section 39-17-911 — Sale or loan to minors of harmful materials;
    29. Section 39-17-918 — Unlawful massage or exposure of erogenous areas;
    30. Section 39-17-1307(f)(1)(A) — Possession of firearm after being convicted of misdemeanor crime of domestic violence;
    31. Section 39-17-1307(f)(1)(B) — Possession of firearm while order of protection is in effect;
    32. Section 39-17-1307(f)(1)(C) — Possession of firearm while prohibited by state or federal law;
    33. Section 39-17-1312 — Failure of adult to report juvenile carrying gun in school;
    34. Section 39-17-1320(a) — Nonparent providing handgun to a juvenile;
    35. Section 39-17-1352 — Failure to surrender handgun carry permit upon suspension;
    36. Section 39-17-1363 — Violent felon owning or possessing vicious dog;
    37. Section 39-13-101(a)(3) — Assault (offensive or provocative physical contact);
    38. Section 39-13-511(a) — Public indecency — first or second offense (punishable by $500 fine only);
    39. Section 39-13-511(b)(2) — Indecent exposure (victim 13 years old or older);
    40. Section 39-15-412(b) — Disseminating smoking paraphernalia to minor after 3 prior violations;
    41. Section 39-16-404 — Misuse of official information by public servant;
    42. Section 39-17-317 — Disorderly conduct at funerals;
    43. Section 39-17-715 — Possession of or consuming alcoholic beverages on K-12 school premises;
    44. Section 39-17-914 — Display for sale or rental of material harmful to minors; and
    45. Section 55-10-401 — Driving under the influence of an intoxicant;
  3. A person who was convicted of a felony or misdemeanor committed prior to November 1, 1989, if:
    1. The person was sentenced to a determinate sentence of three (3) years or less;
    2. The person was sentenced to an indeterminate sentence for which the person served three (3) years or less;
    3. The person has never had a previous conviction expunged as the result of the successful completion of a diversion program pursuant to §§ 40-15-102 — 40-15-106 or § 40-35-313; and
    4. The offense for which the person was convicted:
      1. Did not have as an element the use, attempted use, or threatened use of physical force against the person of another;
      2. Did not involve, by its nature, a substantial risk that physical force against the person of another would be used in the course of committing the offense;
      3. Did not involve the use or possession of a deadly weapon;
      4. Was not a sex offense for which the offender is required to register as a sexual offender or violent sexual offender under chapter 39, part 2 of this title; or any sex offense involving a minor;
      5. Did not result in the death, serious bodily injury or bodily injury to a person;
      6. Did not involve the use of alcohol or drugs and a motor vehicle;
      7. Did not involve the sale or distribution of a Schedule I, II, III, or IV controlled substance;
      8. Did not involve a minor as the victim of the offense; or
      9. Did not result in causing the victim or victims to sustain a loss of fifty thousand dollars ($50,000) or more;
  4. A person who was convicted of drug fraud pursuant to § 53-11-402(a)(3) and sentenced to imprisonment for a term of four (4) years or less for an offense committed on or after November 1, 1989; provided, however, that at least ten (10) years have elapsed since completion of the sentence imposed for the offense; or
  5. A person who was convicted of more than one (1) of the offenses listed in this subdivision (g)(1), if the conduct upon which each conviction is based occurred contemporaneously, occurred at the same location, represented a single continuous criminal episode with a single criminal intent, and all such convictions are eligible for expunction under this part. The offenses of a person who is an eligible petitioner under this subdivision (g)(1)(E) shall be considered a single offense for the purposes of this section so that the person is eligible for expunction consideration if all other requirements are met.
2. Notwithstanding the provisions of this section, effective July 1, 2012, an eligible petitioner may file a petition for expunction of that person’s public records involving a criminal offense if:
  1. Except as provided in subdivision (g)(1)(E), at the time of filing, the person has never been convicted of any criminal offense, including federal offenses and offenses in other states, other than the offense committed for which the petition for expunction is filed; provided, however, that any moving or non-moving traffic offense shall not be considered a criminal offense as used in this subdivision (g)(2)(A);
  2. At the time of the filing of the petition for expunction at least five (5) years have elapsed since the completion of the sentence imposed for the offense;
  3. The person has fulfilled all the requirements of the sentence imposed by the court in which the individual was convicted of the offense, including:
    1. Payment of all fines, restitution, court costs and other assessments;
    2. Completion of any term of imprisonment or probation;
    3. Meeting all conditions of supervised or unsupervised release; and
    4. If so required by the conditions of the sentence imposed, remaining free from dependency on or abuse of alcohol or a controlled substance or other prohibited substance for a period of not less than one (1) year.
3. A person seeking expunction shall petition the court in which the petitioner was convicted of the offense sought to be expunged is filed. Upon filing of the petition, the clerk shall serve the petition on the district attorney general for that judicial district. Not later than sixty (60) days after service of the petition, the district attorney may submit recommendations to the court and provide a copy of such recommendations to the petitioner.
4. Both the petitioner and the district attorney general may file evidence with the court relating to the petition.
5. In making a decision on the petition, the court shall consider all evidence and weigh the interests of the petitioner against the best interests of justice and public safety.
6. If the court denies the petition, the petitioner may not file another such petition until at least two (2) years from the date of the denial.
7. The district attorneys general conference shall, by September 1, 2012, create a simple form to enable a lay person to petition the court for expunction under this subsection (g).
8. The petition and proposed order shall be prepared by the office of the district attorney general and given to the petitioner to be filed with the clerk of the court. A petitioner shall be entitled to a copy of the order of expunction and such copy shall be sufficient proof that the person named in the order is no longer under any disability, disqualification or other adverse consequence resulting from the expunged conviction.
9. [Deleted by 2019 amendment.]
10. There is created within the district attorneys general conference a district attorneys expunction fund. Moneys in the district attorneys expunction fund shall be used to defray the expense incurred for the required record search and preparation of the petition and the proposed order of expunction under this subsection (g) or subsection (h). Any remaining moneys in the district attorneys expunction fund may be used by the district attorneys generals for law enforcement purposes, including, but not limited to, the hiring of expert witnesses, training, matching federal grants directly related to prosecutorial duties, the purchase of equipment and supplies necessary to carry out prosecutorial functions, the expenses of travel in the performance of official duties of the office, provided all reimbursement for travel expenses shall be in accordance with the provisions of the comprehensive travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter, salaries and salary supplements, which may only be paid through the district attorneys general conference for support staff. Such payments shall be subject to the limitation of § 40-3-209(b) on the use of any funds to supplement the salary of any assistant district attorney. Moneys in the district attorneys expunction fund shall not revert to the general fund but shall be carried forward into the subsequent fiscal year. All funds in the district attorneys expunction fund shall be subject to annual audit by the comptroller of the treasury.
11. There is created within the state treasury a public defenders expunction fund. Moneys in the public defenders expunction fund shall be used to defray the expense incurred by conducting the educational activities required pursuant to this subsection (g). Subject to annual appropriation, any remaining moneys in the public defenders expunction fund may be used in furtherance of the services and programs provided by public defenders for each judicial district. Moneys in the public defenders expunction fund shall not revert to the general fund but shall be carried forward into the subsequent fiscal year.
12. 1. Notwithstanding any other law to the contrary, an order of expunction granted pursuant to this subsection (g) or subsection (h) entitles the petitioner to have all public records of the expunged conviction destroyed in the manner set forth in this section.
  2. Additionally, such an expunction has the legal effect of restoring the petitioner, in the contemplation of the law, to the same status occupied before the arrest, indictment, information, trial and conviction. Once the expunction order is granted, no direct or indirect collateral consequences that are generally or specifically attendant to the petitioner's conviction by any law shall be imposed or continued.
  3. A petitioner with respect to whom an order has been granted under this subsection (g) or subsection (h) shall not be guilty of perjury or otherwise giving a false statement by reason of the person's failure to recite or acknowledge the arrest, indictment, information, trial or conviction in response to any inquiry made of the petitioner for any purpose.
  4. Expunction under this subsection (g) or subsection (h) means, in contemplation of law, the conviction for the expunged offense never occurred and the person shall not suffer any adverse effects or direct disabilities by virtue of the criminal offense that was expunged.
  5. Notwithstanding § 39-17-1307(b)(1)(B) and (c), a petitioner whose petition is granted pursuant to this subsection (g) or subsection (h), and who is otherwise eligible under state or federal law to possess a firearm, shall be eligible to purchase a firearm pursuant to § 39-16-1316 and apply for and be granted a handgun carry permit pursuant to § 39-17-1351.
13. The clerk of the court maintaining records expunged pursuant to this subsection (g) or subsection (h) shall keep such records confidential. These records shall not be public and can only be used to enhance a sentence if the petitioner is subsequently charged and convicted of another crime. This confidential record is only accessible to the district attorney general, the defendant, the defendant's attorney and the circuit or criminal court judge.
14. [Deleted by 2019 amendment.]
1. For purposes of this subsection (h), “eligible petitioner” means a person who was convicted of a nonviolent crime after January 1, 1980, if the person:
  1. Petitioned the court in which the petitioner was convicted of the offense and the judge finds that the offense was a nonviolent crime;
  2. Petitioned for and received a positive vote from the board of parole to receive a pardon; and
  3. Received a pardon by the governor.
2. Notwithstanding the provisions of this section, effective July 1, 2013, an eligible petitioner under subdivision (h)(1) may file a petition for expunction of that person's public records involving the crime. The procedures in subdivisions (g)(3)-(6), (8), (12) and (13) will apply to a petitioner under this subsection (h).
A person applying for expunction of records pursuant to this section or § 40-35-313 shall be charged the appropriate court clerk's fee pursuant to § 8-21-401 unless the person is entitled to have such records removed and destroyed without cost to the person.
A person who is ineligible for expunction of the person's records pursuant to subdivision (a)(1)(E) shall, upon petition by that person to the court having jurisdiction in the previous action, be entitled to removal of public records from electronic databases, as provided in this subsection (j), relating to the person's arrest, indictment, charging instrument, or disposition for any charges other than the offense for which the person was convicted. The public records shall be removed from the relevant electronic databases of the national crime information center system and similar state databases, and the person shall be entered into the Tennessee bureau of investigation's expunged criminal offender and pretrial diversion database with regard to the offenses removed pursuant to this subsection (j). The public records shall also be removed from any public electronic database maintained by a court clerk. Nothing in this subsection (j) shall require court clerks to expunge records relating to an offense for which the person was convicted. Court clerks shall not be liable for any errors or omissions relating to the removal and destruction of records under this section.
1. Notwithstanding subsection (g), effective July 1, 2017, for purposes of this subsection (k), an “eligible petitioner” means a person who was convicted of no more than two (2) offenses and:
  1. Each of the offenses for which the petitioner seeks expunction are offenses that are eligible for expunction under subsection (g);
  2. The offenses were:
    1. Two (2) misdemeanors; or
    2. One (1) felony and one (1) misdemeanor;
  3. 1. At the time of the filing of the petition for expunction at least five (5) years have elapsed since the completion of the sentence imposed for the most recent offense; and
    2. If one (1) of the offenses was drug fraud pursuant to § 53-11-402(a)(3), at the time of the filing of the petition for expunction at least ten (10) years have elapsed since the completion of the sentence imposed for that offense; and
  4. The person has fulfilled all the requirements of the sentences imposed by the court for each offense the petitioner is seeking to expunge, including:
    1. Payment of all fines, restitution, court costs, and other assessments for each offense;
    2. Completion of any term of imprisonment or probation for each offense;
    3. Meeting all conditions of supervised or unsupervised release for each offense; and
    4. Remaining free from dependency on or abuse of alcohol or a controlled substance or other prohibited substance for a period of not less than one (1) year, if so required by the conditions of any of the sentences imposed.
2. A person may petition for expunction of two (2) offenses under this subsection (k) only one (1) time.
3. [Deleted by 2019 amendment.]
4. Subdivisions (g)(3)-(6), (8), (12), and (13) shall apply to a petition filed under this subsection (k).

Acts 1973, ch. 318, § 1; 1975, ch. 193, § 1; 1976, ch. 790, § 1; 1977, ch. 161, § 1; 1978, ch. 736, § 1; 1980, ch. 892, § 1, 2; 1982, ch. 756, § 1; T.C.A., §§ 40-2109, 40-4001; Acts 1987, ch. 335, §§ 1-4; T.C.A., § 40-15-106; Acts 1996, ch. 1079, § 127; 1997, ch. 455, § 1; 1998, ch. 1036, § 1; 1998, ch. 1099, § 7; 1999, ch. 496, § 1; 2000, ch. 645, §§ 3, 5; 2000, ch. 664, §§ 1-3; 2002, ch. 495, §§ 1-4; 2003, ch. 50, § 1; 2003, ch. 175, § 1; 2005, ch. 429, § 12; 2006, ch. 650, §§ 1, 3; 2007, ch. 363, § 2; 2010, ch. 951, §§ 1, 2; 2012, ch. 951, §§ 1-3; 2012, ch. 1041, § 3; 2012, ch. 1103, §§ 1, 2; 2013, ch. 384, §§ 1, 2; 2013, ch. 443, §§ 1-3; 2014, ch. 671, §§ 1-4; 2014, ch. 1008, § 1; 2015, ch. 89, §§ 1, 2; 2015, ch. 278, §§ 1, 2; 2015, ch. 295, § 2; 2016, ch. 893, § 1; 2016, ch. 960, § 1; 2017, ch. 199, §§ 7, 8; 2017, ch. 298, § 1; 2017, ch. 358, § 1; 2017, ch. 456, §§ 1-4; 2017, ch. 487, § 1; 2018, ch. 586, § 3; 2018, ch. 876, § 1; 2019, ch. 200, §§ 1-3, 5-9.

Code Commission Notes.

Former subdivision (a)(6), concerning persons convicted of an offense prior to their twenty-first birthday, was deleted as obsolete by authority of the code commission.

Compiler's Notes. Former § 38-4-106, referred to in this section, was repealed by Acts 1993, ch. 360, § 1.

Former § 40-39-102, referred to in this section, was repealed by Acts 2004, ch. 921, § 4.

Acts 2006, ch. 650, § 2 purported to delete “; provided such fee shall not exceed twenty-five dollars ($25.00)” in subdivision (a)(6)(C). The act attempted to amend a subdivision that was previously deemed obsolete by the code commission; therefore, the act was not given effect.

For the Preamble to the Rosa Parks Act, please refer to Acts 2007, ch. 363.

Acts 2007, ch. 363, § 1 provided that the act shall be known and may be cited as “The Rosa Parks Act.”

Acts 2014, ch. 671, § 5 provided that the act, which amended subsection (g), shall apply to petitions for expunction pursuant to § 40-32-101(g), filed prior to or after July 1, 2014.

Acts 2015, ch. 278, § 3 provided that the act, which added (g)(1)(D), redesignated and rewrote former (g)(1)(D) as present (g)(1)(E), shall apply to petitions filed on or after April 28, 2015.

Acts 2017, ch. 487, § 2 provided that the act which amended subdivision (g)(1)(C)(iv)(i ) shall apply to petitions filed on or after June 6, 2017.

The reference to a fine of “not greater than $2,500” in subdivision (g)(1)(A)(xxxiii) is no longer accurate. The amount of the fine was increased to not more than $5,000 in 39-17-417(g)(1).

Section 39-16-609(e), referred to in subsection (g)(1)(A)(xxx), was amended by Acts 2019, ch. 486, § 4 to delete the felony offense of failure to appear.

Amendments. The 2018 amendment by ch. 586 deleted “following a hearing conducted pursuant to § 36-3-605,” preceding “shall, upon petition” in (a)(5).

The 2018 amendment by ch. 876 in the first sentence of (d)(2)(A), substituted “A” for “Beginning July 1, 2012,” at the beginning and substituted “one-hundred-eighty-dollar fee” for “three hundred-fifty-dollar ($350) fee”.

The 2019 amendment, deleted former (d)(2) which read: “(2)(A) A defendant petitioning a court for expunction of records because the charge against the person was dismissed as a result of the successful completion of a diversion program pursuant to §§ 40-15-102 — 40-15-106 shall be assessed a one-hundred-eighty-dollar fee. The fee shall be transmitted by the clerk of the court for deposit in a special fund and shall be used by the bureau for the following purposes:“(i) Employing personnel;“(ii) Purchasing equipment and supplies;“(iii) Funding education, training and development of employees;“(iv) Maintaining the expunged criminal offender and pretrial diversion database;“(v) Computer system support;“(vi) Maintenance expenses; and“(vii) Any other purpose to allow the bureau's business to be done in a more efficient manner.“(B) The moneys received in the fund shall be invested for the benefit of the fund by the state treasurer pursuant to § 9-4-603. Amounts in the fund shall not revert to the general fund of the state, but shall together with interest income credited to the fund remain available for expenditure in subsequent fiscal years.“(C) The three-hundred-fifty-dollar fee under subdivision (d)(2)(A) shall not apply to any case where there has been an acquittal, nolle prosequi, or dismissal for failure to prosecute or where the law does not require a copy of the expunction order be sent to the Tennessee bureau of investigation.”; deleted former (g)(9) which read, “(9) Except as provided in subdivision (g)(14), the petitioner shall pay to the clerk of the court a fee of one hundred eighty dollars ($180) upon the filing of the petition. The fee shall be distributed as follows:“(A) Fifty dollars ($50.00) to the Tennessee bureau of investigation for the purpose of defraying the costs incurred from the additional expunction petitions filed and granted as the result of this subsection (g) or subsection (h); and“(B) One hundred thirty dollars ($130) to the district attorneys expunction fund.”; deleted “and the petitioner pays the fee required by this subsection (g) or subsection (h)” following “is granted” in the second sentence of (g)(12)(B); deleted former (g)(14) which read, “(14) If the petitioner is unable to pay the fee required by subdivision (g)(9), the petitioner may enter into a payment plan with the clerk in order to pay the fee in installment payments; provided, however, that no order of expunction shall be granted pursuant to this subdivision (g)(14) until the total amount of the fee is paid. Once the petitioner has paid to the clerk of the court a total of one hundred eighty dollars ($180), the fee shall be allocated by the clerk in the same manner set forth for the disposition of the one-hundred-eighty-dollar fee under subdivision (g)(9).”; deleted “(9)” after “subdivisions (g)(3)-(6), (8),” near the end of (h)(2); deleted “, in addition to any other fees required by this section or § 40-35-313,” preceding “unless the person” in (i); deleted (k)(3) which read, “(3) The expunction fee under this subsection (k) shall be the same amount as a single expunction under subsection (g).”; and deleted “(9),” following “Subdivisions (g)(3)-(6), (8),” in (k)(4).

Effective Dates. Acts 2018, ch. 586, § 4. July 1, 2018.

Acts 2018, ch. 876, § 2. July 1, 2018.

Acts 2019, ch. 200, § 10. July 1, 2019.

Cross-References. Confidentiality of public records, § 10-7-504.

Expunction of records of minors for beer and low alcoholic content beverage violations, § 57-5-301.

Expunction of records of minors for local option alcoholic beverage violations, § 57-3-412.

Penalties for Class A, B, C misdemeanors, § 40-35-111.

Penalties for Class A, B, C, D, and E felonies, § 40-35-111.

Penalty for violations of chapter, § 40-32-104.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 11.25, 11.26, 22.36, 24.31, 31.50.

Tennessee Jurisprudence, 3 Tenn. Juris., Attorney General, § 5; 4 Tenn. Juris., Bail and Recognizance, § 16; 8 Tenn. Juris., Courts, § 11; 8 Tenn. Juris., Criminal Procedure, §§ 24, 40.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 3-11-6, 3-11-7.

Law Reviews.

Forgive Us Our Trespasses: The Need for Federal Expungement Legislation (Fruqan Mouzon), 39 U. Mem. L. Rev. 1 (2008).

Special Project: Criminal Procedure as Defined by the Tennessee Supreme Court (Julian L. Bibb and Walter Sillers Weems), 30 Vand. L. Rev. (4) 691.

Attorney General Opinions. Dissemination of criminal histories to treatment centers in domestic violence cases, OAG 99-145 (7/30/99).

An individual who has had criminal charges dismissed by a nolle prosequi at the request of the state is entitled to have the records of arrest and charges expunged, and such records must be removed and destroyed within 60 days of the date of the filing of a petition for expungement, OAG 01-155 (10/4/01).

A court may not refuse or delay the expunction of public records after it receives a petition from a defendant who has had a nolle prosequi entered for any reason, e.g., delay the entry of such order for a period of months to see if any further criminal charges will be brought, OAG 01-155 (10/4/01).

The proviso added at the end of T.C.A. § 40-32-101(a)(1) by Acts 2003, ch. 175, § 1, applies to all expungeable cases and not just to “sexual offenses” defined under former T.C.A. § 40-39-102(5), OAG 04-024 (2/12/04).

DUI conviction cannot be expunged through a pretrial diversion program or through judicial diversion, OAG 05-041 (4/5/05).

Retention of a copy of an expungement order by the circuit court clerk is not authorized, OAG 05-150 (9/30/05).

Where a defendant is convicted of at least one count in a multi-count indictment, T.C.A. § 40-32-101(a)(1) precludes expungement of records relating to all counts in that indictment, OAG 06-003 (1/5/06).

Authority of judge exercising general sessions court jurisdiction to expunge defendant's criminal record. OAG 10-18, 2010 Tenn. AG LEXIS 28 (2/19/10).

Court fees for expungements, OAG 12-89 (9/20/2012).

Clerks of court cannot charge both the $ 100 fee set forth in T.C.A. § 8-21-401 and the $ 350 fee set forth in Acts 2012, Chapter 1103, effective July 1, 2012, for expungement proceedings initiated under Chapter 1103. OAG 12-89, 2012 Tenn. AG LEXIS 89 (9/20/12).

Expunction of criminal records under T.C.A. § 40-32-101(g). OAG 13-86, 2013 Tenn. AG LEXIS 89 (11/6/13).

T.C.A. § 40-32-101(g)(2) does not provide for the expungement of the petitioner’s multiple convictions arising from the same criminal episode. OAG 14-12, 2014 Tenn. AG LEXIS 13 (1/22/14).

Portion of expunction filing fees deposited in general fund not a tax, OAG 14-66, 2014 Tenn. AG Lexis 70 (7/1/14)

Juvenile court clerks are responsible for collection of $350 fee for expunction of records. Petitions for expunction are mandatory, except in two limited circumstances, neither of which requires imposition of the fee. A judge or magistrate cannot waive the expunction fee. OAG 14-77, 2014 Tenn. AG LEXIS 81 (8/25/14).

Licenses to hunt and possession of firearms and effect of conviction of certain felonies and other offenses. OAG 15-33, 2015 Tenn. AG LEXIS 33 (4/10/15).

Once a person has obtained a complete restoration of firearms and other citizenship rights, that individual may lawfully possess or purchase any firearm that may be lawfully possessed or purchased by any other private citizen. Tennessee law is sufficiently clear to provide convicted felons with fair warning regarding applicable prohibitions on the possession of antique or black powder firearms. OAG 15-75, 2015 Tenn. AG LEXIS 76 (11/9/2015).

Upon order granting a petition for partial expunction, criminal court clerks must destroy public records that relate solely to offenses for which a petitioner was not convicted. When records relate to several charges, some resulting in convictions and others resulting in dismissals or acquittals, the records must be redacted. A criminal court may find that redaction is infeasible due to the intertwined nature of the charges, but the record must contain sufficient evidence to justify the finding. OAG 16-36, 2016 Tenn. AG LEXIS 36 (8/31/2016).

NOTES TO DECISIONS

1. Constitutionality.

Where, on its own volition, without reference to the attorney general or requiring other argument or action, a circuit court held this chapter unconstitutional, the supreme court reversed since the constitutional question had not been properly presented and was not before the court. Skiles v. State, 516 S.W.2d 75, 1974 Tenn. LEXIS 441 (Tenn. 1974).

This section, even though it impliedly amends §§ 18-1-105 and 18-4-103, does not violate Tenn. Const., art. II, § 17 which requires that the caption or body of an act make reference to any laws it repeals or amends as art. II, § 17 does not apply to implied amendments. Martin v. State, 519 S.W.2d 793, 1975 Tenn. LEXIS 715 (Tenn. 1975).

The expungement statute, providing that under certain circumstances judicial records shall be destroyed, was not unconstitutional as violating the separation of powers provisions, since control of the use of such records is properly a legislative, not judicial function, and was not unconstitutional by reason of amending or repealing a large part of the code without any recitation in the caption of the act that such was being done. Underwood v. State, 529 S.W.2d 45, 1975 Tenn. LEXIS 574 (Tenn. 1975).

An interpretation of this statute that it applies to records used for internal use as well as those for public inspection does not make it unconstitutional. State v. Doe, 588 S.W.2d 549, 1979 Tenn. LEXIS 499 (Tenn. 1979), superseded by statute as stated in, State v. Bridges, — S.W.2d —, 1996 Tenn. Crim. App. LEXIS 433 (Tenn. Crim. App. July 26, 1996)

Denial of the petitioner's motion for expungement of any records relating to the charge of child abuse was reversed and remanded because the petitioner was convicted of the lesser-included offense of assault, and the 2003 amendment to the expungement statute could not be used to deny the petitioner's request for expungement; at the time of his conviction and sentencing the law entitled the petitioner to expungement of any records regarding a charge of which he was not convicted even if he was convicted of a lesser-included offense of the charged offense, the Tennessee legislative amendment denying expungement to an offender convicted of a lesser-included offense was approved subsequent to the petitioner's conviction and sentencing, and retroactive application of the amended expungement statute violated the petitioner's constitutional protection against ex post facto laws because at minimum it offered a situation disadvantageous to the petitioner by unduly burdening him with the societal stigma attached to a felony. State v. Hanners, 235 S.W.3d 609, 2007 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. Apr. 12, 2007)

2. Application to Other Sections.

This section has no application to cases where a defendant pleads guilty and receives a reduced sentence, imposed under § 40-20-103. Skiles v. State, 516 S.W.2d 75, 1974 Tenn. LEXIS 441 (Tenn. 1974).

Under T.C.A. § 40-35-313 and T.C.A. § 38-8-106, police officer was wrongly decertified on the basis of a guilty plea that was of no legal effect, as the officer qualified as a law enforcement officer and was qualified for certification; under T.C.A. § 40-32-101(b)(1), a history of arrests, investigations, and/or police intelligence about the officer's alleged conduct was not sufficient to disqualify him.Wright v. Tenn. Peace Officer Stds. & Training Comm'n, 277 S.W.3d 1, 2008 Tenn. App. LEXIS 251 (Tenn. Ct. App. Apr. 29, 2008)

There was no basis for concluding that the sheriff's department could not inquire into the deputy jailer's expunged records and the jailer did not have the right to refrain from disclosing his expunged conviction in his response to sheriff's department lawful inquiry. The County Civil Service Merit Review Board's consideration of the jailer's admission of an expunged conviction was proper; accordingly, the trial court did not err in holding that the Board's decision was based on substantial and material evidence. Macon v. Shelby County Gov't Civ. Serv. Merit Bd., 309 S.W.3d 504, 2009 Tenn. App. LEXIS 643 (Tenn. Ct. App. Sept. 25, 2009), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 284 (Tenn. Mar. 15, 2010).

3. Public Records.

The term “public records” as used in this section refers to all records maintained by a public official regardless of whether such records be for public inspection or for internal use. state.

Denial of the attorney's request that the trial court expunge the public records relating to the charge of criminal contempt was improper, where T.C.A. § 40-32-101(a)(1) applied insofar as the contempt charges were criminal in nature; while there are differences between criminal contempt and other statutory crimes, those differences do not appear to preclude the application of § 40-32-101. Robinson v. Fulliton, 140 S.W.3d 304, 2003 Tenn. App. LEXIS 789 (Tenn. Ct. App. 2003).

In an action removed by defendant housing authority, where plaintiff tenant filed a “Motion to Reasonable Accommodation and to Expunge Eviction Record,” asking the court to grant him his reasonable accommodation request and remove his unjust eviction records, expunging the Eviction Record did not appear to be within the power of the federal court under T.C.A. § 40-32-101, and granting a reasonable accommodation, to the extent it was a cognizable claim at all, merely amplified his legal arguments relating to the housing authority's denial of reasonable accommodation made pursuant to the Fair Housing Act, 42 U.S.C. § 3601 et seq., accordingly, expunging the Eviction Record was not appropriate, but, to the extent the motion addressed the reasonable accommodation claims in the tenant's amended complaint, the court would construe the motion as one to amend under Fed. R. Civ. P. 15(a) and the amendment allowed, as it clarified legal arguments and restated factual allegations made elsewhere. Felts v. Cleveland Hous. Auth., 821 F. Supp. 2d 968, 2011 U.S. Dist. LEXIS 110300 (E.D. Tenn. Sept. 26, 2011).

4. —Pretrial Diversion Records.

5. —Dismissed Criminal Counts.

Where petitioner entered a guilty plea to one count of a multi-count indictment and the remaining counts were nollied, he was entitled to expungement of the public records in connection with the dismissed counts. State v. Liddle, 929 S.W.2d 415, 1996 Tenn. Crim. App. LEXIS 316 (Tenn. Crim. App. 1996).

6. —Never Prosecuted.

Conviction for one count in a multi-count indictment or presentment does not preclude expungement of the records relating to a separate count when the criteria of T.C.A. § 40-32-101 have been satisfied. State v. L.W., 350 S.W.3d 911, 2011 Tenn. LEXIS 759 (Tenn. Aug. 17, 2011).

Defendants were entitled to expungement of counts in defendants' indictments that were dismissed in exchange for defendants' guilty pleas to separate counts because: (1) the word “case” in T.C.A. § 40-32-101(a)(1)(E) did not mean the legislature intended to bar expungement of all counts in a multi-count indictment if any count resulted in a conviction, since the word was not so construed in T.C.A. § 40-32-101(a)(3), and the legislature was presumably aware of this construction when enacting T.C.A. § 40-32-101(a)(1)(E) and intended the same meaning throughout the statute, and (2) defendants were not convicted of any offense, including a lesser included offense, arising from the counts regarding which defendants sought expungement. State v. L.W., 350 S.W.3d 911, 2011 Tenn. LEXIS 759 (Tenn. Aug. 17, 2011).

7. —Relevance to Other Offenses.

Petition to expunge public records regarding charges that were resolved in defendants' favor was required to be remanded for determination as to whether redaction of the records could be performed without destroying documents necessarily relevant to offenses for which defendants were convicted. Eslick v. State, 942 S.W.2d 559, 1996 Tenn. Crim. App. LEXIS 624 (Tenn. Crim. App. 1996).

8. Release of Records.

Trial court properly denied defendants' request for arrest history of state witnesses. State v. Burton, 751 S.W.2d 440, 1988 Tenn. Crim. App. LEXIS 124 (Tenn. Crim. App. 1988).

9. Final Resolution.

Because the driving under the influence (DUI) charge against defendant had not been finally resolved in his favor or abandoned by the state, the expunction order entered pursuant to T.C.A. § 40-32-101(a)(1) was superseded by the subsequent return of the indictment and was void. State v. Doe, 860 S.W.2d 38, 1993 Tenn. LEXIS 308 (Tenn. 1993).

10. Pardons.

No authority existed for expungement of defendant's criminal records on the basis of his executive pardon; although defendant was granted a pardon, he was not acquitted on the ground of innocence, he was pardoned through favor. State v. Blanchard, 100 S.W.3d 226, 2002 Tenn. Crim. App. LEXIS 796 (Tenn. Crim. App. 2002).

11. Convictions of Witnesses.

There is no authority which requires revelation by the state of any convictions of the witnesses who are to be offered by the state. State v. Baker, 623 S.W.2d 132, 1981 Tenn. Crim. App. LEXIS 379 (Tenn. Crim. App. 1981).

12. Impeachment of Witnesses.

In a criminal prosecution, because the credibility of the victim was a central issue, the trial court committed reversible error in not allowing defendant to question the victim about her prior involvement in a burglary, even though the victim had been granted pretrial diversion and the records of the burglary proceedings were expunged. State v. Dishman, 915 S.W.2d 458, 1995 Tenn. Crim. App. LEXIS 814 (Tenn. Crim. App. 1995).

13. Invalid Order.

Because expunction order was no longer effective, the state was free to prosecute the case against defendant as if the order had never been entered. Thus the prosecution could proffer whatever documentary evidence it deemed relevant in the trial court, subject to the normal rules of evidence. State v. Doe, 860 S.W.2d 38, 1993 Tenn. LEXIS 308 (Tenn. 1993).

14. Lesser Included Offenses.

Defendant who was convicted of a lesser-included offense of the offense sought in the indictment or presentment was entitled to have the record expunged of any greater charges for which the jury found the defendant not guilty. State v. Adler, 92 S.W.3d 397, 2002 Tenn. LEXIS 703 (Tenn. 2002).

Plain language of T.R.A.P. 3(c) enumerates the six instances (now five instances) in which the state can appeal as of right and they were the “only” instances that gave the state such a right; state did not have the right, therefore, to appeal the expungement of defendants' criminal records where he had been found guilty of a lesser charge. State v. Adler, 92 S.W.3d 397, 2002 Tenn. LEXIS 703 (Tenn. 2002).

15. Contempt.

Where contempt charges brought by a wife against her husband's attorney in a divorce suit were partly criminal in nature, the trial court erred in holding that the expungement statute, T.C.A. § 40-32-101(a)(1), did not apply and denying expungement of the attorney's record after a court appointed referee found that there was insufficient evidence of contempt. Robinson v. Fulliton, 140 S.W.3d 304, 2003 Tenn. App. LEXIS 789 (Tenn. Ct. App. 2003).

Although according to Adler , the rules of appellate procedure did not provide for an attorney to appeal a trial court's decision denying expungement of her records in a contempt action brought in an underlying divorce suit, the Supreme Court of Tennessee permitted an appeal to proceed as a petition for a writ of certiorari pursuant to T.C.A. § 27-8-101. Robinson v. Fulliton, 140 S.W.3d 304, 2003 Tenn. App. LEXIS 789 (Tenn. Ct. App. 2003).

While there are differences between criminal contempt and other statutory crimes, those differences do not appear to preclude the application of the expungement statute. Robinson v. Fulliton, 140 S.W.3d 304, 2003 Tenn. App. LEXIS 789 (Tenn. Ct. App. 2003).

16. Expungement Not Permitted.

Petitioner was not entitled to expunction of cases involving driving under the influence (DUI) and simple possession of cocaine because DUI was specifically excluded from the list of expungeable misdemeanor offenses; for any one of multiple convictions to be eligible for expunction, all such convictions had to be eligible for expunction. State v. Dodd, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 192 (Tenn. Crim. App. Mar. 15, 2016).

Circuit court properly denied defendant's motion to expunge the records of his 1994 convictions for simple possession of amphetamine and simple possession of cocaine because the statute at issue clearly provided that, although a conviction of simple possession was eligible for expunction, a conviction of DUI was not, and inasmuch as all of defendant's convictions were not eligible for expunction, none of them were. State v. Moraca, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 334 (Tenn. Crim. App. Feb. 27, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 541 (Tenn. Sept. 14, 2018).

17. Appeal.

Because there is no right to appeal an unfavorable ruling on expungement, under T.C.A. § 40-32-101(a)(1), there is no other plain, speedy, or adequate remedy without granting a writ of certiorari. Robinson v. Fulliton, 140 S.W.3d 304, 2003 Tenn. App. LEXIS 789 (Tenn. Ct. App. 2003).

40-32-102. Officials required to destroy.

The chief administrative official of a municipal, county, or state agency and the clerk of each court where the records are recorded shall remove and destroy the records within sixty (60) days from the date of the expunction order issued under § 40-32-101.
The Tennessee bureau of investigation shall remove expunged records from the person's criminal history within sixty (60) days from the date of receipt of the expunction order.

Acts 1973, ch. 318, § 2; 1978, ch. 641, § 1; T.C.A., § 40-4002; Acts 2015, ch. 295, § 1.

Law Reviews.

Special Project: Criminal Procedure as Defined by the Tennessee Supreme Court (Julian L. Bibb and Walter Sillers Weems), 30 Vand. L. Rev. (4) 691.

40-32-103. Prior charges.

This chapter applies to those persons charged with a misdemeanor or a felony prior to July 1, 1973, if the person petitions to the court having jurisdiction in the previous action as provided in § 40-32-101.

Acts 1973, ch. 318, § 3; T.C.A., § 40-4003.

Law Reviews.

Special Project: Criminal Procedure as Defined by the Tennessee Supreme Court (Julian L. Bibb and Walter Sillers Weems), 30 Vand. L. Rev. (4) 691.

40-32-104. Penalties.

Any person who violates this chapter commits a Class A misdemeanor and shall be fined not less than five hundred dollars ($500) and not more than one thousand dollars ($1,000) and imprisoned in the county jail or workhouse not less than thirty (30) days and not more than eleven (11) months and twenty-nine (29) days.

Acts 1973, ch. 318, § 4; T.C.A., § 40-4004; Acts 1989, ch. 591, §§ 1, 6.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

Law Reviews.

Special Project: Criminal Procedure as Defined by the Tennessee Supreme Court (Julian L. Bibb and Walter Sillers Weems), 30 Vand. L. Rev. (4) 691.

40-32-105. Expungement of person's public records involving offenses related to status as victim of human trafficking.

Notwithstanding § 40-32-101, a person may file a petition for expunction of that person's public records involving offenses related to the person's status as a victim of human trafficking.
In order to be eligible for expunction pursuant to this section, the petitioner must meet the following requirements:
1. At the time of the filing of the petition for expunction at least one (1) year has elapsed since the completion of the sentence imposed for the petitioner's most recent criminal offense;
2. The petitioner has fulfilled the following requirements of the sentence imposed by any court in which the individual was convicted of an offense:
  1. Completion of any term of imprisonment or probation;
  2. Meeting all conditions of supervised or unsupervised release; and
  3. If so required by the conditions of any of the sentences imposed, remaining free from dependency on or abuse of alcohol or a controlled substance or other prohibited substance for a period of not less than one (1) year;
3. The petitioner has not been convicted of any criminal offense during the one (1) year prior to filing the petition and is not subject to any pending criminal charges;
4. At least one (1) of the convictions to be expunged was for prostitution, as prohibited by § 39-13-513;
5. The petitioner has not had public records previously expunged pursuant to this section;
6. The convictions to be expunged:
  1. Did not have as an element the use, attempted use, or threatened use of physical force against the person of another;
  2. Did not involve the use or possession of a deadly weapon; and
  3. Are individually eligible for expunction under § 40-32-101(g); and
7. Each of the convictions to be expunged resulted from the petitioner's status as a victim of human trafficking, under § 39-13-314. The petitioner may provide evidence of this requirement by testimony or affidavit. This subdivision (b)(7) does not require a conviction for an offense of which the petitioner was the victim. Any offense to be expunged must have occurred on or after the date on which the petitioner became a victim of human trafficking, as determined by the court.
A person seeking expunction pursuant to this section must petition the court in which the person was most recently convicted of an offense. Upon filing of the petition, the clerk must serve the petition on the district attorneys general for each jurisdiction in which the petitioner has been convicted of an offense that is to be expunged. Not later than sixty (60) days after service of the petition, the district attorneys general may submit recommendations to the court and provide a copy of such recommendations to the petitioner.
Both the petitioner and the district attorneys general may file evidence with the court relating to the petition. If necessary, the court may schedule a hearing for the purpose of taking testimony from the petitioner and any other interested persons. In making a decision on the petition, the court shall consider all evidence and weigh the interests of the petitioner against the best interests of justice and public safety.
If the court determines that the petitioner meets the requirements of subsection (b) and that the expunction is in the best interests of justice and public safety, the court shall order the person's records involving convictions resulting from the person's status as a victim of human trafficking expunged.
If the court denies the petition, the petitioner may not file another such petition until at least two (2) years from the date of the denial.
The district attorneys general conference shall create, by September 1, 2019, a simple form to enable a lay person to petition the court for expunction under this section.
The petition and proposed order must be prepared by the office of the district attorney general and given to the petitioner to be filed with the clerk of the court. A petitioner is entitled to a copy of the order of expunction and such copy is sufficient proof that the person named in the order is no longer under any disability, disqualification, or other adverse consequence resulting from the expunged convictions.
1. Notwithstanding any other law to the contrary, an order of expunction granted pursuant to this section entitles the petitioner to have all public records of the expunged convictions destroyed in the manner set forth in this section.
2. An expunction granted pursuant to this section has the legal effect of restoring the petitioner, in the contemplation of the law, to the same status occupied before the arrest, indictment, information, trial, and conviction for the expunged offenses. Once the expunction order is granted, no direct or indirect collateral consequences that are generally or specifically attendant to the petitioner's conviction by any law shall be imposed or continued.
3. A petitioner with respect to whom an order has been granted under this section is not guilty of perjury or otherwise giving a false statement by reason of the person's failure to recite or acknowledge the arrest, indictment, information, trial, or conviction in response to any inquiry made of the petitioner for any purpose.
4. As used in this section, expunction means, in contemplation of law, the conviction for the expunged offenses never occurred and the person shall not suffer any adverse effects or direct disabilities by virtue of the criminal offenses that were expunged.
5. Notwithstanding § 39-17-1307(b)(1)(B) and (c), a petitioner whose petition is granted pursuant to this section, and who is otherwise eligible under state or federal law to possess a firearm, is eligible to purchase a firearm pursuant to § 39-17-1316 and apply for and be granted a handgun carry permit pursuant to § 39-17-1351.
The clerk of the court maintaining records expunged pursuant to this section shall keep such records confidential. The records are not public and may only be used to enhance a sentence if the petitioner is subsequently charged and convicted of another crime. This confidential record is only accessible to the district attorney general, the defendant, the defendant's attorney, and the circuit or criminal court judge.
Upon filing the petition, the petitioner shall pay the clerk of court a fee, as described in § 40-32-101(g)(9) [repealed].

Acts 2019, ch. 199, § 1.

Compiler's Notes. Section 40-32-101(g)(9), referred to in subsection (k), was deleted by Acts 2019, ch. 200, § 2.

Effective Dates. Acts 2019, ch. 199, § 2. July 1, 2019.

Cross-References. Confidentiality of public records, § 10-7-504.

Chapter 33
Forfeitures

Part 1
Forfeiture of Conveyances

40-33-101. Conveyances subject to forfeiture.

Except as provided in subsection (b), where there is a final judgment of conviction, in the discretion of the court, conveyances, including vehicles, aircraft or vessels, are subject to forfeiture if used in the commission of:
1. Any offense under title 39, chapter 13, part 5;
2. Any robbery offense under title 39, chapter 13, part 4;
3. A burglary, aggravated burglary, or especially aggravated burglary offense under title 39, chapter 14, part 4; or
4. A felony theft offense under title 39, chapter 14, part 1.
1. No conveyance used by any person as a common carrier in the transaction of business as a common carrier is subject to forfeiture under this part, unless it appears that the owner or other person in charge of the conveyance is a consenting party or privy to any of the offenses listed in subdivisions (a)(2)-(4).
2. No conveyance is subject to forfeiture under this part by reason of any act or omission established by the owner thereof to have been committed or omitted without the owner's knowledge or consent; provided, that if the conveyance belongs to an automobile or truck rental company, the burden of proof shall be on the state to prove that the automobile or truck rental company knew, or had reason to know, that the conveyance was or would be used in the commission of an offense for which this part provides for forfeiture of the conveyance.
3. A forfeiture of a conveyance encumbered by a bona fide security interest is subject to the interest of the secured party if the secured party neither had knowledge of nor consented to the act or omission.

Acts 1977, ch. 81, § 1; T.C.A., § 40-4101; Acts 1992, ch. 838, §§ 1, 2; 2006, ch. 960, § 4; 2013, ch. 285, § 1.

Compiler's Notes. Acts 2006, ch. 960, § 6 provided that the amendment to this section shall apply to offenses committed on or after July 1, 2006.

Cross-References. Alcoholic beverage law violations resulting in forfeiture of conveyances, § 57-9-201.

Goods subject to forfeiture for drug law violations, § 53-11-451.

Racketeer influenced and corrupt organizations, title 39, ch. 12, part 2.

Real property subject to forfeiture for drug law violations, § 53-11-452.

Seized or repossessed motor vehicles, notice to sheriff, § 55-5-128.

Theft, forfeiture of equipment and devices, § 39-14-140.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 18.237.

Law Reviews.

Criminal Asset Forfeiture and the Sixth Amendment After Southern Union and Alleyne: State-Level Ramifications, 68 Vand. L. Rev. 549 (2015).

40-33-102. Seizure authorized.

A conveyance subject to forfeiture under this part may be seized by the director of the Tennessee bureau of investigation or the director's authorized representative, agent or employee, the commissioner of safety or the commissioner's authorized representative, agent or employee, or a sheriff, deputy sheriff, municipal law enforcement officer, campus police officer as defined in § 49-7-118, internal affairs director or internal affairs special agent of the department of correction, or constable upon process issued by any circuit or criminal court having jurisdiction over the property.
Seizure without process may be made if the seizure is incident to an arrest or a search under a search warrant.

Acts 1977, ch. 81, § 1; 1981, ch. 512, § 4; T.C.A., § 40-4102; Acts 2007, ch. 106, § 1; 2010, ch. 1040, § 1.

40-33-103. Commencement of action for determination of forfeiture.

In the event of seizure pursuant to § 40-33-102, proceedings under §§ 40-33-104 and 40-33-107 shall be instituted promptly.

Acts 1977, ch. 81, § 1; T.C.A., § 40-4103.

40-33-104. Replevin prohibited — Duty of seizing authority.

A conveyance taken or detained under this section shall not be subject to replevin, but is deemed to be in the custody of the director of the Tennessee bureau of investigation or the director's authorized representative, agent or employee, the commissioner of safety or the commissioner's authorized representative, agent or employee or a sheriff, deputy sheriff, municipal law enforcement officer, campus police officer as defined in § 49-7-118, internal affairs director or internal affairs special agent of the department of correction, or constable subject only to the orders and decrees of the circuit or criminal court.
When a conveyance is seized under this part, the seizing authority may:
1. Place the conveyance under seal;
2. Remove the conveyance to a place designated by the court having jurisdiction over the property; and/or
3. Require the director of the Tennessee bureau of investigation or the director's authorized representative, agent or employee, the commissioner of safety or the commissioner's authorized representative, agent or employee, or a sheriff, deputy sheriff, municipal law enforcement officer, campus police officer as defined in § 49-7-118, internal affairs director or internal affairs special agent of the department of correction, or constable to take custody of the conveyance and remove it to an appropriate location for disposition in accordance with law.

Acts 1977, ch. 81, § 1; 1981, ch. 512, § 5; T.C.A. § 40-4104; Acts 2007, ch. 106, § 2; 2010, ch. 1040, § 2.

40-33-105. Removal of forfeited conveyance.

When a conveyance is forfeited under this part, the director of the Tennessee bureau of investigation or the director's authorized representative, agent or employee, the commissioner of safety or the commissioner's authorized representative, agent or employee or a sheriff, deputy sheriff, municipal law enforcement officer, campus police officer as defined in § 49-7-118, internal affairs director or internal affairs special agent of the department of correction, or constable shall remove it for disposition in accordance with law.

Acts 1977, ch. 81, § 1; 1981, ch. 512, § 6; T.C.A., § 40-4105; Acts 2007, ch. 106, § 3; 2010, ch. 1040, § 3.

40-33-106. Jurisdiction over disposition of conveyance.

In any county having more than one (1) circuit court, or both a circuit court and a criminal court, the court in the county having jurisdiction of the indictment and trial of all matters relating to the offenses for which forfeiture of a conveyance may be imposed shall have exclusive jurisdiction over the disposition of the conveyances.

Acts 1977, ch. 81, § 1; T.C.A., § 40-4106.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 18.5.

40-33-107. Procedure for determination of forfeiture.

In all cases of seizure of any conveyance subject to forfeiture under this part, the procedure shall be as follows:

The officer or other person making the seizure shall deliver to the person, if any found in possession of the seized conveyance, a receipt. The receipt shall state a general description of the seized conveyance, the reasons for the seizure, the procedure by which recovery of the conveyance may be sought, including the time period in which a claim for recovery must be presented, and the consequences of failing to file within the time period. If the person found in possession of the conveyance is not the sole unencumbered owner of the conveyance, the court having jurisdiction over the property shall make a reasonable effort to notify the owner or lienholder or both of the seizure by furnishing all parties known to have an interest in the conveyance with a copy of the receipt. A copy of the receipt shall be filed with the clerk of the court having jurisdiction over the property and shall be open to the public for inspection;
All conveyances seized under this part shall be sold at public sale by the county sheriff at the direction of the court having jurisdiction over the property in the manner provided by law for judicial sales in civil cases; however, any vehicle seized by a county or municipal law enforcement agency, and forfeited under this part, may, with the permission of the county sheriff at the direction of the court having jurisdiction over the property, be retained by the county or municipal law enforcement agency and used for purposes of law enforcement; provided, that any liens that are filed against the vehicle shall be satisfied by the law enforcement agency retaining the vehicle. Subject to § 40-33-110, the proceeds that inure to the local governing body under this part shall be earmarked and used exclusively for law enforcement purposes in the county or municipality;
Any person claiming any conveyance so seized may, within fifteen (15) days after receipt of notification of seizure, file with the court a claim in writing, requesting a hearing and stating the person's interest in the conveyance seized. The claimant shall also file with the claimant's claim a cost bond with one (1) or more good and solvent sureties in the sum of two hundred fifty dollars ($250), the bond being made payable to the state. An indigent person may file the indigent's claim in forma pauperis by filing with the indigent's claim affidavit stating that the indigent is unable to bear the cost of the proceeding;
The court shall set a date for hearing within forty-five (45) days from the day a claim requesting the hearing is filed with the court. At each proceeding involving the disposition of the seized property, the state shall have the burden of proving by a preponderance of the evidence that the seized conveyance was used in a manner making it subject to forfeiture under this part, and failure to carry the burden of proof shall operate as a bar at any forfeiture hereunder. The state or local governing body shall be represented at the hearing by the district attorney general, the county attorney or the city attorney for the county or municipality wherein the seizure occurred; and
In the event the decision of the court is favorable to the claimant, the clerk of the court shall deliver to the claimant the conveyance so seized. If the ruling of the court is adverse to the claimant, the clerk of the court shall proceed to direct the county sheriff to sell or dispose of the conveyance in accordance with subdivision (2). The expenses of storage, transportation, etc., shall be adjudged as part of the cost of the proceeding in the manner as the court shall fix.

Acts 1977, ch. 81, § 2; 1981, ch. 266, § 1; T.C.A., § 40-4107; Acts 1983, ch. 240, § 1; 1986, ch. 613, §§ 1-3; 1992, ch. 623, § 1.

Cross-References. Racketeer influenced and corrupt organizations, title 39, ch. 12, part 2.

Law Reviews.

Selected Tennessee Legislation of 1986, 54 Tenn. L. Rev. 457 (1987).

40-33-108. Claim of interest in conveyance subject to forfeiture — Possession — Bond.

Whenever in any proceeding under this part, a claim is filed for any conveyance, the court shall not allow the claim unless the claimant proves that:
1. The claimant has an interest in the conveyance, as owner or otherwise, which the claimant acquired in good faith; and
2. The claimant never had knowledge or reason to believe that the conveyance was used in the commission of a robbery offense under title 39, chapter 13, part 4, or felony theft under title 39, chapter 14, part 1.
Pending any proceeding to recover a conveyance seized under this part, the court may order delivery thereof to any claimant who shall establish the claimant's right to immediate possession thereof, and who shall execute, with one (1) or more sureties approved by the court, and deliver to the clerk of the court, a bond in favor of the state and for the payment of a sum double the appraised value thereof as of the time of the hearing, and conditioned further that, if the conveyance is not returned at the time of hearing, the bond shall stand in lieu of and be forfeited in the same manner as the conveyance.
Within the discretion of the court, the claimant may be awarded possession of the confiscated conveyance pending an appeal of any adverse decision; provided, that the claimant shall be required to execute a bond payable to the state in an amount double the value of the property seized, the sureties to be approved by the court. The condition of the bond shall be that the obligors shall pay to the state, through the court, the full value of the conveyance seized, unless upon an appeal the decision of the court shall be reversed and the property awarded to the claimant.

Acts 1977, ch. 81, § 3; T.C.A., § 40-4108; Acts 1992, ch. 838, § 3.

40-33-109. Claim not filed — Disposition of conveyance.

If no claim is interposed, the conveyance shall be forfeited without further proceedings and the conveyance shall be sold or disposed of as provided in this part. The procedure in § 40-33-108 is the sole remedy of any claimant, and no court shall have jurisdiction to interfere therewith by replevin, injunction, supersedeas or in any other manner.

Acts 1977, ch. 81, § 4; T.C.A., § 40-4109.

40-33-110. Disposition of forfeited conveyance or proceeds of sale of forfeited conveyance.

Disposition of a forfeited conveyance or proceeds of goods seized under this part shall inure to the benefit of the county in which the goods were seized for enforcement of this part if the goods were seized by county law enforcement officers, or to the municipality in which they were seized if the goods were seized by municipal law enforcement officers, or to the university employing the campus police officers if the goods were seized by campus police officers as defined in § 49-7-118, or to the department of correction if the goods were seized by the internal affairs director or an internal affairs special agent of the department of correction; provided, that the forfeited conveyance or the funds derived from the confiscated goods shall go to the law enforcement agency that seized the conveyance and shall be used exclusively for law enforcement purposes by the county or municipality or university or department of correction; provided further, that, if the law enforcement agency retains a forfeited conveyance, any liens that are filed against the forfeited conveyance shall be satisfied by the law enforcement agency that retains the conveyance.
In all other cases, the proceeds shall be transmitted to the state treasurer and deposited in the state treasury. Upon application of the commissioner of safety, the proceeds, or any part of the proceeds, may be allocated by the director of the budget to the department of safety as expendable receipts for use in the enforcement of this part.
All proceeds resulting from actions of the Tennessee bureau of investigation or awarded to it in a division of funds shall be paid to the state treasurer to be used only for bureau purposes as appropriated by the general assembly.

Acts 1977, ch. 81, § 5; 1978, ch. 870, §§ 1, 2; 1981, ch. 365, § 1; 1981, ch. 512, § 7; T.C.A., § 40-4110; Acts 1986, ch. 613, § 4; 2007, ch. 106, § 4; 2010, ch. 1040, § 4.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

Cross-References. Racketeer influenced and corrupt organizations, title 39, ch. 12, part 2.

40-33-111. Lien for fees of attorney for accused.

The right to a forfeiture as provided in this part shall be inferior to and subject to any lien filed with the court in which the action is pending by an attorney representing the accused on the charge for which the forfeiture or confiscation resulted for the reasonable value of the services of the attorney. The value of the reasonable services represented by the lien shall be subject to the approval of the court that tried the case from which the forfeiture resulted. The arresting officer shall be furnished a copy of the attorney's claimed lien.

Acts 1977, ch. 81, § 6; T.C.A., § 40-4111.

Part 2
Forfeiture Procedures Generally

40-33-201. Application.

All personal property, including conveyances, subject to forfeiture under § 39-14-307, § 47-25-1105, § 53-11-451, § 55-16-104, § 55-50-504(g), § 55-10-414, § 57-3-411, § 57-5-409, § 57-9-201, § 67-4-1020, or § 70-6-202, shall be seized and forfeited in accordance with the procedure set out in this part.

Acts 1994, ch. 925, § 1; 1996, ch. 910, § 3; 1996, ch. 959, § 2; 2013, ch. 154, § 33; 2015, ch. 344, § 6.

Compiler's Notes. For the Preamble to the act concerning the problems associated with curbstoning, see Acts 2015, ch. 344.

Law Reviews.

Asset Forfeiture in Practice: Legislative Reform and Financial Considerations (Patricia S. Wall and Lee Sarver), 37 No. 4 Tenn. B.J. 24 (2001).

Criminal Asset Forfeiture and the Sixth Amendment After Southern Union and Alleyne: State-Level Ramifications, 68 Vand. L. Rev. 549 (2015).

Attorney General Opinions. Use of motor vehicles seized pursuant to § 55-10-403(k), OAG 99-190 (9/28/99).

NOTES TO DECISIONS

1. Applicability.

Inmate's personal property was not seized under the forfeiture statutes because assault and aggravated assault were not among the offenses giving rise to forfeiture proceedings, and the property was seized in the course of a criminal investigation, not as a part of a civil forfeiture proceeding. Lankford v. City of Hendersonville, — S.W.3d —, 2018 Tenn. App. LEXIS 165 (Tenn. Ct. App. Mar. 29, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 458 (Tenn. July 18, 2018).

40-33-202. Part definitions.

As used in this part, unless the context otherwise requires:

“Applicable agency” means the agency, board, commission or department charged by law or permitted by agreement with conducting the forfeiture proceeding for the particular property seized; and
“Secured party” means the holder of a security interest in the seized property acquired in the ordinary course of business within the meaning of § 47-9-102(a) and shall include a recourse party under the terms of a financing agreement.

Acts 1994, ch. 925, § 1; 2000, ch. 846, § 27.

40-33-203. Seizure.

Upon effecting a seizure, the seizing officer shall prepare a receipt titled a “Notice of Seizure.” The notice of seizure shall be a standard form promulgated by the applicable agency. The applicable agency may adopt an existing notice of seizure form.
1. Upon seizure of a conveyance, the seizing officer shall make reasonable efforts to determine the owner or owners of the property seized as reflected by public records of titles, registrations and other recorded documents.
2. If the conveyance seized is a commercial vehicle or common or contract carrier and the person in possession of the vehicle at the time of seizure does not have an ownership interest in the vehicle, the seizing officer shall, from the vehicle's manifest, bill of lading or public records of titles, registrations and other recorded documents, make reasonable efforts to determine the owner of the conveyance and notify the owner thereof of the seizure. Unless the cargo of the commercial vehicle or common or contract carrier is contraband or subject to forfeiture under some other provision of state or federal law, the cargo is not subject to forfeiture under this part and, upon the request of the owner of the conveyance, shall immediately be released by the seizing agency to the owner or transporting agent.
3. If the conveyance seized is a commercial vehicle or common or contract carrier and the person in possession of the vehicle at the time of seizure has an ownership interest in the vehicle, the seizing officer shall, from the vehicle's manifest or bill of lading, make reasonable efforts to determine the common or contract carrier responsible for conveying the cargo and notify the carrier of the seizure. Unless the cargo of the commercial vehicle or common or contract carrier is contraband or subject to forfeiture under some other provision of state or federal law, the cargo is not subject to forfeiture under this part and, upon the request of the owner of the cargo, shall immediately be released by the seizing agency to the owner or transporting agent.
4. If the conveyance seized is a commercial vehicle or common or contract carrier and the person in possession of the vehicle at the time of seizure does not have an ownership interest in the vehicle, the seizing officer shall, from the vehicle's manifest, bill of lading or public records of titles, registrations and other recorded documents, make reasonable efforts to determine the owner of the conveyance and notify the owner of the conveyance of the seizure. Unless the interest of the owner of the commercial vehicle or common or contract carrier is subject to forfeiture under § 40-33-210(a)(2), the vehicle or carrier is not subject to forfeiture under this part, the seizing officer shall not seek a forfeiture warrant and, upon the request of the owner of the vehicle or carrier, shall immediately be released by the seizing agency to the owner or transporting agent. For purposes of this subsection (b), “commercial vehicle” includes a private passenger motor vehicle that is used for retail rental for periods of thirty-one (31) days or less.
Upon the seizure of any personal property subject to forfeiture pursuant to § 40-33-201, the seizing officer shall provide the person found in possession of the property, if known, a receipt titled a “Notice of Seizure.” The notice of seizure shall contain the following:
1. A general description of the property seized and, if the property is money, the amount seized;
2. The date the property was seized and the date the notice of seizure was given to the person in possession of the seized property;
3. The vehicle identification number (VIN) if the property seized is a motor vehicle;
4. The reason the seizing officer believes the property is subject to seizure and forfeiture;
5. The procedure by which recovery of the property may be sought, including any time periods during which a claim for recovery must be submitted; and
6. The consequences that will attach if no claim for recovery is filed within the applicable time period.
Upon the seizure of any personal property subject to forfeiture pursuant to § 40-33-201 where the person in possession is not being arrested, the seizing officer shall provide the person found in possession of the property, if known, a notice entitled “Notice of Forfeiture Warrant Hearing”. This notice shall contain the following:
1. The date, time, and court in which the seizing officer will be seeking a forfeiture warrant against the property pursuant to § 40-33-204;
2. A statement that the person in possession is entitled to appear in court at the stated date and time to contest the issuance of a forfeiture warrant against the seized property and that this hearing shall be civil in nature pursuant to § 40-33-204(b); and
3. A statement that if the person in possession does not appear in court, a forfeiture warrant may be issued and the property subject to the forfeiture process set forth in title 40, chapter 33, part 2 and as stated in the Notice of Seizure.
1. After the seizure of any personal property subject to forfeiture pursuant to § 40-33-201, where the owner of the property is not present at the time of the seizure, regardless of whether an arrest has been made, the seizing officer shall, within five (5) business days of the date of seizure, mail to the owner by return receipt requested mail, at the owner's last known address as determined from public records of titles, registrations, or other recorded documents or information provided by the person in possession, a notice entitled “Notice of Forfeiture Warrant Hearing”. The notice shall contain the following:
  1. The date, time, and court in which the seizing officer will be seeking a forfeiture warrant against the property pursuant to § 40-33-204;
  2. A statement that the owner is entitled to appear in court at the stated date and time to contest the issuance of a forfeiture warrant against the seized property and that this hearing shall be civil in nature pursuant to § 40-33-204(b);
  3. A statement that if the owner does not appear in court, a forfeiture warrant may be issued and the property subject to the forfeiture process set forth in this part, and as stated in the Notice of Seizure; and
  4. A copy of the Notice of Seizure.
2. If an owner cannot be determined from public records of titles, registrations, or other recorded documents or information provided by the person in possession, the officer shall document the attempts made to determine the owner and include the documentation with any application for forfeiture warrant for the judge to review.

Acts 1994, ch. 925, § 1; 1997, ch. 532, § 1; 2013, ch. 382, § 1; 2018, ch. 772, § 1.

Amendments. The 2018 amendment, effective October 1, 2018, added (e).

Effective Dates. Acts 2018, ch. 782, § 11. October 1, 2018.

NOTES TO DECISIONS

1. Compliance.

State of Tennessee did not comply with the procedural requirements in a forfeiture proceeding because there was no indication that there was any agency involvement in the forfeiture proceedings. Significant parts of the remaining procedures, such as the affidavit supporting the forfeiture warrant, the record of any ex parte hearing on the application for the warrant that may have occurred, and the instructions to the property owner on how to contest the forfeiture, were likewise either missing or never existed. State v. Sprunger, 458 S.W.3d 482, 2015 Tenn. LEXIS 177 (Tenn. Mar. 9, 2015), rehearing denied, — S.W.3d —, 2015 Tenn. LEXIS 258 (Tenn. Mar. 16, 2015).

40-33-204. Forfeiture warrant.

Once personal property is seized pursuant to an applicable provision of law, no forfeiture action shall proceed unless a forfeiture warrant is issued in accordance with this section by a general sessions, circuit, criminal court or popularly elected city judge. The forfeiture warrant shall authorize the institution of a forfeiture proceeding under this part. As used in this subsection (a), “popularly elected city judge” means a licensed attorney who is elected to the office of city judge pursuant to title 16, chapter 18, part 2.
1. Any affidavit in support of a forfeiture warrant shall be sworn to and state the following:
  1. The legal and factual basis making the property subject to forfeiture;
  2. If the owner or co-owner of the property was not the person in possession of the property at the time of seizure and can be determined from public records of titles, registrations or other recorded documents, the affidavit shall state with particular specificity the officer's probable cause for believing that the owner or co-owner of the property knew that the property was of a nature making its possession illegal or was being used in a manner making it subject to forfeiture as well as the legal, and factual basis for forfeiture of the interest; and
  3. If the interest of a secured party with a duly perfected security interest as reflected in the public records of titles, registrations or other recorded documents, is sought to be forfeited, the affidavit shall state with particular specificity the officer's probable cause that the secured party's interest in the property is nevertheless subject to forfeiture as well as the legal and factual basis for forfeiture of the interest.
2. If an arrest was made at the time of the seizure, the officer making the seizure shall apply for a forfeiture warrant by filing a sworn affidavit within five (5) working days following the property seizure. The forfeiture warrant shall be based upon proof by affidavit and shall have attached to it a copy of the notice of seizure. Except as provided in subdivision (b)(4), the hearing on the application for a forfeiture warrant shall be ex parte and based upon the application, the affidavit, and any testimony as may be required in this section.
3. 1. If no arrest was made at the time of the seizure, the officer making the seizure shall present to the court, at the date and time specified on the notice of forfeiture warrant hearing, the application for a forfeiture warrant, the affidavit in support, the notice of seizure, and the notice of forfeiture warrant hearing. At the hearing on the forfeiture warrant application, the court shall:
    1. Review the application for a forfeiture warrant and the affidavit in support and take testimony from the seizing officer regarding the probable cause to issue a forfeiture warrant, including any testimony as may be required in this section; and
    2. Review any evidence presented by and take testimony from the person in possession at the time of the seizure regarding why no probable cause exists to issue a forfeiture warrant.
  2. The time period for seeking an ex parte forfeiture warrant under subdivision (b)(2) shall not apply to forfeiture warrant hearings under this subdivision (b)(3).
  3. Except as provided in subdivision (b)(4), if the person in possession at the time of the seizure does not appear at the hearing and has received notice of the hearing, then the court shall review the application for a forfeiture warrant ex parte as provided in subdivision (b)(2).
4. 1. If the owner of the property is not present at the time of the seizure, regardless of whether an arrest is made, the officer making the seizure shall present to the court, at the date and time specified on the notice of forfeiture warrant hearing, the application for a forfeiture warrant, the affidavit in support, the notice of seizure, and the notice of forfeiture warrant hearing for both the person in possession, if no arrest was made, and the owner of the property.
  2. The time period for seeking an ex parte forfeiture warrant under subdivision (b)(2) shall not apply to forfeiture warrant hearings under this subdivision (b)(4).
  3. The owner of the property must be given reasonable notice of the forfeiture warrant hearing; however, a forfeiture warrant hearing under this subdivision (b)(4) shall be held within forty-five (45) days after the date of seizure.
  4. At the hearing on the forfeiture warrant application, the court shall:
    1. Review the application for a forfeiture warrant and the affidavit in support and take testimony from the seizing officer regarding the probable cause to issue a forfeiture warrant, including any testimony as may be required in this section;
    2. Review any evidence presented by and take testimony from the person in possession at the time of the seizure, if present, regarding why no probable cause exists to issue a forfeiture warrant; and
    3. Review any evidence presented by and take testimony from the owner of the property, if present, regarding why no probable cause exists to issue a forfeiture warrant.
  5. If neither the person in possession at the time of the seizure, if no arrest was made, nor the owner of the property appear at the hearing and the person in possession and the owner have received notice of the hearing, the court shall review the application for a forfeiture warrant ex parte as provided in subdivision (b)(2).
5. The taking of testimony shall consist solely of the judge putting the seizing officer, owner of the property, and person in possession under oath and asking questions to determine if probable cause exists for a forfeiture warrant to be issued under this section. Any examination by the judge of the seizing officer shall in no form or manner extend to whether the seizure is part of an ongoing investigation, nor shall the judge's examination extend in any form or manner to the source of any confidential information used in making a stop leading to seizure of the property.
6. All hearings on applications for forfeiture warrants under this section shall be recorded. It is the duty of the court to maintain the recording. Certified copies of the proceeding shall be made available to any party requesting them, and the same shall be admissible as evidence.
1. The judge shall issue the forfeiture warrant if the judge finds that the offered proof establishes probable cause to believe that:
  1. The property is subject to forfeiture; and
  2. If the property is owned by one whose interest is described in public records of titles, registrations or other recorded documents, that the owner's interest is subject to forfeiture under the applicable provision of law.
2. In a proceeding under subdivision (b)(2), if the seizing officer asserts to the judge that the officer was unable to determine the owner of the seized property or whether the owner's interest is subject to forfeiture within the required five-day period, the judge may grant up to ten (10) additional days to seek a forfeiture warrant if the judge finds that the seizing officer has:
  1. Exercised due diligence and good faith in attempting to determine the owner of the property or whether the owner's interest is subject to forfeiture; and
  2. Made a factual showing that because of the existence of extraordinary and unusual circumstances an exception to the five-day forfeiture warrant requirement is justified.
3. General sessions judges may not authorize magistrates or judicial commissioners who are not licensed to practice law in this state to issue forfeiture warrants.
If the person in possession of the property is not the registered owner as determined from public records of titles, registrations or other recorded documents, the judge may consider other indicia of ownership that proves that the possessor is nonetheless an owner of the property. Other indicia of ownership shall include, but is not limited to, the following:
1. How the parties involved regarded ownership of the property in question;
2. The intentions of the parties relative to ownership of the property;
3. Who was responsible for originally purchasing the property;
4. Who pays any insurance, license or fees required to possess or operate the property;
5. Who maintains and repairs the property;
6. Who uses or operates the property;
7. Who has access to use of the property; and
8. Who acts as if they have a proprietary interest in the property.
If the owner or co-owner of the property was not the person in possession of the property at the time of the seizure and can be determined from public records of titles, registrations or other recorded documents, the judge shall put the seizing officer under oath and ask the following questions:
1. What is the officer's probable cause that the owner or co-owner of the property knew that the property was of a nature making its possession illegal or was being used in a manner making it subject to forfeiture;
2. What is the officer's probable cause that the co-owner or co-owners who are not in possession of the property at the time it was seized were co-conspirators to the activity making the property subject to forfeiture; and
3. Any other questions necessary to determine the legal and factual basis for forfeiture.
If a secured party's interest is sought to be forfeited, the judge shall put the seizing officer under oath and ask the following questions:
1. What is the officer's probable cause that the secured party is a co-conspirator to the activity making the property subject to forfeiture;
2. Did the secured party at the time the interest attached, have actual knowledge of the intended illegal use of the property; and
3. Any other question deemed necessary to determine the legal and factual basis for forfeiture of the secured party's interest.
Upon issuance of the forfeiture warrant, the judge shall retain the affidavit relied upon in support of the warrant and the officer shall, within seven (7) working days, send the warrant, a copy of the affidavit and the notice of seizure to the applicable agency. By signing and issuing the forfeiture warrant, the judge is affirming that the required finding of probable cause necessary to issue the warrant has been made. Upon receipt of the documents, the applicable agency shall notify any other owner, as may be determined from public records of titles, registrations or other recorded documents, or secured party that a forfeiture warrant has been issued. Upon receipt of the notice of seizure and forfeiture warrant and after interviewing any witnesses, the applicable agency shall release the property if there is no legal and factual basis for forfeiture. The seizing agency shall maintain a copy of the notice of seizure for all property seized at its main office and the notices and receipts shall be public records.
If no forfeiture warrant is issued, and the property is not needed for evidence in a criminal proceeding, the seizing agency shall immediately return the property to the owner, as determined from public records of titles, registrations or other recorded documents, or if the owner cannot be determined, to the person in possession of the property at the time of seizure.
Upon the request of any general sessions, circuit, criminal court or popularly elected city judge, the administrative office of the courts shall provide a cassette tape recorder for the purpose of recording the hearing on the application for a forfeiture warrant. As used in this subsection (i), “popularly elected city judge” means a licensed attorney who is elected to the office of city judge pursuant to title 16, chapter 18, part 2.
1. A person in possession of, a secured party of, or an owner of property for which a forfeiture warrant has been issued by a magistrate or judicial commissioner may appeal the forfeiture warrant within ten (10) days of issuance for review by the general sessions court in the county in which the seizure occurred. On appeal, the general sessions court shall conduct a hearing and review the issuance of the forfeiture warrant within ten (10) days of the appeal being filed.
2. Notwithstanding subsection (g), if a forfeiture warrant was issued by a magistrate or judicial commissioner, the warrant, a copy of the affidavit, and the notice of seizure shall be sent to the applicable agency within:
  1. Seven (7) business days after the time period to appeal the forfeiture warrant has ended and no appeal has been filed; or
  2. Seven (7) business days after the general sessions judge has affirmed the issuance of the forfeiture warrant, if the warrant was appealed.
1. The seizing agency shall, within five (5) business days of receipt of any forensic chemistry report regarding any alleged controlled substances or controlled substance analogues that are the basis of the seizure, send a copy of the forensic chemistry report to the applicable agency.
2. If the forensic chemistry report shows that the alleged controlled substances that are the basis of the seizure are not controlled substances or controlled substance analogues, and those substances were the sole basis for the seizure, the applicable agency, within five (5) business days of receipt, shall submit an order dismissing the case, or the portion of the case based on the alleged controlled substances or controlled substance analogues, to the administrative law judge or the administrative head of the applicable agency.
3. If the property is not needed for evidence in a criminal proceeding, or is not subject to other forfeiture proceedings, the seizing agency shall make the property available to the owner, as determined from public records of titles, registrations, or other recorded documents, or if the owner cannot be determined, to the person in possession of the property at the time of seizure, within five (5) business days of receipt from the applicable agency of the signed order of dismissal under subdivision (k)(2). A seizing agency that fails to make the property available as required by this subdivision (k)(3) may be considered to be acting in bad faith under § 40-33-215.
In any forfeiture warrant hearing, there shall be a rebuttable presumption that currency seized, for which a person has claimed ownership, is not subject to forfeiture absent evidence to the contrary. The burden to rebut the presumption is on the seizing officer.

Acts 1994, ch. 925, § 1; 1998, ch. 1070, §§ 1-3; 1999, ch. 124, §§ 1, 2; 2013, ch. 382, §§ 2, 3; 2016, ch. 784, § 1; 2017, ch. 441, § 3; 2018, ch. 772, §§ 2-8.

Amendments. The 2018 amendment, effective October 1, 2018, in (b)(2), rewrote the last sentence which read: “The hearing on the application for a forfeiture warrant shall be ex parte and based upon the application, the affidavit, and any testimony as may be required in this section”; added (b)(3)(B) and (b)(3)(C); rewrote (b)(4) which read: “If the person in possession at the time of the seizure does not appear at the hearing and has received notice of the hearing, then the court shall review the application for a forfeiture warrant ex parte as under subdivision (b)(2).”; substituted “the seizing officer, owner of the property, and person in possession” for “the seizing officer and person in possession” in the first sentence of (b)(5); substituted “shall be sent to the applicable agency within” for “shall not be sent to the applicable agency until” in the introductory language of (j)(2); and added (k) and (l ).

Effective Dates. Acts 2018, ch. 772, § 11. October 1, 2018.

NOTES TO DECISIONS

1. Forfeiture Proper.

Petitioner's property was properly forfeited as although the seizing officers did not obtain the forfeiture warrants within five working days, but instead obtained extension orders under T.C.A. § 40-33-204(c)(2), § 40-33-204(c)(2) did not require that the extension order be obtained within five working days. Watson v. Tenn. Dep't of Safety, 361 S.W.3d 549, 2011 Tenn. App. LEXIS 535 (Tenn. Ct. App. Sept. 30, 2011), appeal denied, Watson v. State Dep't of Safety, — S.W.3d —, 2012 Tenn. LEXIS 80 (Tenn. Feb. 15, 2012).

Chancery court properly found that an arrestee's federal constitutional rights were not violated when her car was forfeited because she was not entitled to notice of the forfeiture warrant hearing where she was arrested when her car was seized where she was not statutorily required to be provided with the forfeiture warrant as long as it was sent to the “applicable agency,” the Department of Safety and Homeland Security provided notice of the issuance of the warrant via certified mail to her home address, and the forfeiture of the arrestee's car was not an excessive fine since only the first factor of the proportionality test, harshness of the penalty, could conceivably weigh against permitting the forfeiture. Fisher v. Tenn. Dep't of Safety & Homeland Sec., — S.W.3d —, 2020 Tenn. App. LEXIS 176 (Tenn. Ct. App. Apr. 21, 2020).

2. Time Limitations.

T.C.A. § 40-33-204(c)(2) does not require that an extension order be obtained within five working days. Watson v. Tenn. Dep't of Safety, 361 S.W.3d 549, 2011 Tenn. App. LEXIS 535 (Tenn. Ct. App. Sept. 30, 2011), appeal denied, Watson v. State Dep't of Safety, — S.W.3d —, 2012 Tenn. LEXIS 80 (Tenn. Feb. 15, 2012).

In an appeal from the trial court's dismissal of a petition for judicial review for lack of subject matter jurisdiction, the appellate court concluded that the State acted in a manner reasonably calculated to provide interested parties notice of a forfeiture warrant. Because the petition for judicial review was not filed within 60 days of the entry of the order of forfeiture, the chancery court correctly concluded that it lacked subject-matter jurisdiction. Farley v. Tenn. Dep't of Safety & Homeland Sec., — S.W.3d —, 2016 Tenn. App. LEXIS 218 (Tenn. Ct. App. Mar. 29, 2016).

Because there was no allegation that a fiance company refused delivery or that the notice of forfeiture sent to the address listed on the title was returned “unclaimed,” the thirty-day time period in which the company was required to file a claim to contest the forfeiture began to run on the date that the notice was received by the company. Ally Fin. v. Tenn. Dep't of Safety & Homeland Sec., — S.W.3d —, 2016 Tenn. App. LEXIS 1009 (Tenn. Ct. App. June 7, 2016).

3. Compliance.

4. Notice.

Finance company's allegation that it did not receive proper notice of the forfeiture proceedings, if true, would mean that its claim to contest the forfeiture was not untimely; Given that no evidentiary hearing was conducted allowing each party to present evidence on the issue of notice, remanding to the Department for a hearing was appropriate. Ally Fin. v. Tenn. Dep't of Safety & Homeland Sec., — S.W.3d —, 2016 Tenn. App. LEXIS 1009 (Tenn. Ct. App. June 7, 2016).

Sufficient evidence was presented that a notice of forfeiture was mailed to a finance company's post office box and that a rebuttable presumption arose that it was delivered to whom it was addressed on the date noted on the return receipt because a letter indicated the company received the notice at its post office box; however, the return receipt was sufficient to meet the company's burden to create a factual dispute as to whether the notice was in fact delivered to whom it was addressed. Ally Fin. v. Tenn. Dep't of Safety & Homeland Sec., — S.W.3d —, 2016 Tenn. App. LEXIS 1009 (Tenn. Ct. App. June 7, 2016).

Where a notice of forfeiture does not go unclaimed, it is not the date of mailing that triggers the time period in which a secured party must file a claim, but the date the notice was received by the recipient; only in the event that a potential claimant refuses to accept delivery and the notice is returned “unclaimed” does the date of mailing commence the applicable time period. Ally Fin. v. Tenn. Dep't of Safety & Homeland Sec., — S.W.3d —, 2016 Tenn. App. LEXIS 1009 (Tenn. Ct. App. June 7, 2016).

40-33-205. Security interests.

If a secured party with a duly perfected security interest receives notification pursuant to § 40-33-204(g) that a forfeiture warrant has been issued with regard to the secured property, the secured party must submit proof of the security interest to the applicable agency within thirty (30) days of receipt of the notification in order for this subsection (a) to apply. A secured party with a duly perfected interest or any successor in interest to the secured party who does not receive notice of intent to forfeit the interest pursuant to § 40-33-204(b)(1)(C), need not file a claim to preserve any right the party may have to the property. Upon receiving proof of a security interest, no cost bond or other pleadings need be filed by the secured party or successor in interest in order to protect its interest in the seized property or to assert a claim to the property as provided in § 40-33-206. If the applicable agency notifies a secured party that it intends to seek forfeiture of the secured party's interest, it shall seek a forfeiture warrant against the secured party as provided in § 40-33-204(b). Upon receiving notice that a forfeiture warrant has been issued, the secured party is required to file a claim for the property as provided in this part.
Any secured party, other than one described in subsection (a), or any successor in interest to the secured party may file a claim for seized property by complying with § 40-33-206, within thirty (30) days of the date the forfeiture warrant is issued.

Acts 1994, ch. 925, § 1.

NOTES TO DECISIONS

1. Notice.

Given that no evidentiary hearing was conducted allowing each party to present evidence on the issue of notice, remanding to the Department for a hearing was appropriate; review was impossible where the Department was not required to present evidence to establish its compliance with the required notice rules, nor was the company allowed to present evidence in support of its argument that notice was not achieved. Ally Fin. v. Tenn. Dep't of Safety & Homeland Sec., — S.W.3d —, 2016 Tenn. App. LEXIS 1009 (Tenn. Ct. App. June 7, 2016).

2. Time Limitations.

40-33-206. Claims.

Any person asserting a claim to any property seized pursuant to the provisions of law set out in § 40-33-201, and described on the notice of seizure, may within thirty (30) days of being notified by the applicable agency that a forfeiture warrant has issued, file with the agency a written claim requesting a hearing and stating the person's interest in the seized property for which a claim is made. The claims may be on forms provided by the applicable agency.
1. Except as provided in § 40-33-205(a), with the claim the claimant shall also file a cash bond or attorney or corporate surety bond in the sum of three hundred fifty dollars ($350), the bond being made payable to the state of Tennessee; and
2. An indigent person may file a claim in forma pauperis by filing with the claim an affidavit stating that the person is unable to bear the cost of the proceeding.
If a claim or proof of a security interest is not filed with the applicable agency within the time specified by this part, the seized property shall be forfeited and disposed of as provided by law.

Acts 1994, ch. 925, § 1.

NOTES TO DECISIONS

1. Jurisdiction.

Trial court did not err in holding that it was deprived of jurisdiction to consider any effort to reclaim an arrestee's forfeited property because he did not attempt to file a claim in the applicable agency and did not seek judicial review of the agency's decision within sixty days; the arrestee was required to file a claim with the Tennessee Department of Safety to contest the forfeiture because the property seized was “narcotics related,” but he failed to file any claim with the Department. Augustin v. Bradley Cty. Sheriff's Office, 598 S.W.3d 220, 2019 Tenn. App. LEXIS 481 (Tenn. Ct. App. Oct. 2, 2019), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 125 (Tenn. Feb. 19, 2020).

40-33-207. Hearing date.

Within thirty (30) days from the day the claim is filed, the applicable agency shall establish a hearing date and set the case on the docket.
Nothing in this section shall be construed as requiring the hearing to be conducted within the thirty-day period.

Acts 1994, ch. 925, § 1.

40-33-208. Bonding procedure.

1. Pending any proceeding to forfeit seized property, any owner or co-owner may, and any secured party shall, unless a warrant for the forfeiture of the secured party's interest is issued or unless the seizing agency objects, obtain immediate possession of the property by submitting to the jurisdiction of the applicable agency and executing, with one (1) or more sureties approved by the applicable agency, a bond in favor of the state of Tennessee in the amount provided by this section. If the seizing agency objects, a secured party, owner or co-owner may not obtain possession of the property pursuant to this section until five (5) days after the date the property is seized.
2. If the property seized was other than a motor vehicle, bond shall be in an amount equal to two (2) times the retail value of the property.
3. If the property seized was a motor vehicle titled in the name of one (1) or more persons who are not secured parties, the bond shall be in an amount equal to the NADA Southeastern Edition retail value of the vehicle.
A secured party may obtain immediate possession of the seized property by executing the bond provided in subdivision (a)(2) or by executing an annual bond or letter of credit with a regulated financial institution in the amount of twenty-five thousand dollars ($25,000). Upon submitting proof of the bond or letter of credit, the applicable agency may release the property to the secured party.
Any owner, co-owner or secured party who fails to produce the seized property upon the issuance of a forfeiture order, or who fails to tender to the applicable agency the value of the interest that is forfeited, shall have the bond posted with the applicable agency forfeited in lieu of and in the same manner as the seized property.
Notwithstanding the provisions of any conditional sales contract, security agreement or title 47, chapter 9, to the contrary, a secured party who obtains possession of seized property under this section shall be prohibited from releasing the property to the person in possession of it at the time of seizure, but the secured party shall not otherwise be limited in exercising any right the party could exercise under the security agreement or law. The person in possession of the property at the time of seizure shall be ineligible to redeem any property released to a secured party, or to bid at any sale of the property by any holder of the security interest acting pursuant to a security agreement, contract or title 47, chapter 9.
Any secured party or successor in interest to the secured party who, pending a forfeiture hearing, bonds out and obtains immediate possession of a conveyance seized pursuant to this part shall notify the applicable agency and the seizing agency of any sale of the seized property conducted by the secured party or successor in interest. The secured party or successor in interest shall send to the seizing agency any proceeds resulting from the sale that were in excess of the amount required to satisfy the existing security interest. If the secured party or successor in interest sells the vehicle prior to the disposition of the forfeiture proceeding, the secured party or successor in interest shall notify the applicable agency in writing that a sale was conducted and the results of the sale. The secured party or successor in interest shall also notify the applicable agency of the amount of the security interest and the amount that resulted from the sale. The seizing agency shall be responsible for maintaining possession of any proceeds in excess of the amount of the security interest that the secured party or successor in interest returns to it following the sale of the confiscated vehicle. The seizing agency shall maintain possession of the proceeds until a final disposition in the forfeiture proceeding.
The state of Tennessee or any governmental official acting pursuant to this section shall not be liable for giving immediate possession of seized property to a person or entity pursuant to this section.

Acts 1994, ch. 925, § 1.

40-33-209. Hearing officer.

The administrative head of the applicable agency shall contract with the secretary of state for use of administrative law judges to conduct forfeiture hearings.
The administrative law judge is empowered to subpoena witnesses and compel their attendance and to produce records, memoranda, papers and other documents at any hearing authorized by this part.
At all hearings conducted pursuant to this part, the applicable agency shall provide a stenographer or court reporter to take a stenographic record of the evidence adduced at the hearing. Upon application, the claimant shall be entitled to a copy of the stenographic record upon payment of the reasonable costs thereof to be fixed by the administrative head of the applicable agency.
All hearings conducted pursuant to this part shall be contested case hearings and shall be conducted pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 1994, ch. 925, § 1; 2017, ch. 352, §§ 1, 2.

40-33-210. Hearing.

In order to forfeit any property or any person's interest in the property pursuant to §§ 39-14-307, 47-25-1105, 53-11-451, 55-10-414, 55-16-104, 55-50-504(g), 57-3-411, 57-5-409, 57-9-201, 67-4-1020 or 70-6-202, the state shall have the burden to prove by a preponderance of evidence that:
1. The seized property was of a nature making its possession illegal or was used in a manner making it subject to forfeiture under the sections set out in this subsection (a); and
2. The owner or co-owner of the property knew that the property was of a nature making its possession illegal or was being used in a manner making it subject to forfeiture, or, in the case of a secured party, that the standards set out in subsection (f) are met.
Failure to carry the burden of proof shall operate as a bar to any forfeiture and the property shall be immediately returned to the claimant.
1. The interest of a co-owner or co-owners who were not in possession of the property at the time it was seized may be forfeited if the co-owners:
  1. Were co-conspirators to the activity making the property subject to forfeiture;
  2. Knew that the property was of a nature making its possession illegal; or
  3. Knew that it was being used in a manner making it subject to forfeiture and consented to the use.
2. If the state meets its burden of proof as to one (1) co-owner of the seized property but fails to do so as to one (1) or more other co-owners, the property shall be forfeited subject to the interest of the innocent co-owners.
If it is determined that the state has carried the burden of proof with regard to all parties claiming an interest in the property, and the ruling of the administrative law judge is adverse to the claimant or claimants, the property shall be sold or disposed of as provided in § 40-33-211.
If the interest of the owner or co-owner of seized property is forfeited pursuant to this section but the interest of the secured party is not, the administrative law judge may, at the request of the secured party, return the seized property for disposition in accordance with the security agreement or other contract. If the property is not returned to the secured party, the forfeiture shall be subject to the secured party's interest.
A secured party's interest may be forfeited if, from evidence presented at the hearing, the administrative law judge finds that:
1. The secured party is a co-conspirator to the activity making the property subject to forfeiture; or
2. The secured party, at the time the interest attached, had actual knowledge of the intended illegal use of the property. A secured party who acquired an interest in the ordinary course of business shall be presumed to have no actual knowledge of an intended illegal use and shall have no duty to inquire as to the record or reputation of a borrower.
The expenses of storage, transportation and other similar costs shall be adjudged as part of the cost of the proceeding in such manner as the administrative law judge shall determine.
The administrative law judge's ruling shall be considered a final order of the applicable agency for purposes of appealing of the order.

Acts 1994, ch. 925, § 1; 1996, ch. 910, § 4; 1996, ch. 959, § 3; 2013, ch. 154, § 34; 2015, ch. 344, § 7; 2017, ch. 352, §§ 3-5.

Compiler's Notes. For the Preamble to the act concerning the problems associated with curbstoning, see Acts 2015, ch. 344.

NOTES TO DECISIONS

1. Evidence Sufficient.

Evidence was sufficient to sustain a forfeiture where the owner's credibility was inherently suspect because the property was confiscated after she was caught selling illegal drugs, and the record provided ample basis to conclude that the bulk of the owner's purchases were not made with legitimate funds. McEwen v. Tenn. Dep't of Safety, 173 S.W.3d 815, 2005 Tenn. App. LEXIS 157 (Tenn. Ct. App. 2005).

2. Return of Forfeited Property.

When the decision of a trial court was reversed and the forfeiture of the excess proceeds from the foreclosure sale of defendant's real property was vacated, the cause was remanded to the trial court for entry of an order directing the return to defendant of the excess proceeds paid into court. State v. Sprunger, 458 S.W.3d 482, 2015 Tenn. LEXIS 177 (Tenn. Mar. 9, 2015), rehearing denied, — S.W.3d —, 2015 Tenn. LEXIS 258 (Tenn. Mar. 16, 2015).

40-33-211. Property disposition.

1. The proceeds from all seizures, confiscations and sales made by a state agency pursuant to § 39-14-307, § 47-25-1105, § 53-11-451, § 55-10-414, § 57-3-411, § 57-5-409, § 57-9-201, § 67-4-1020 or § 70-6-202, shall be transmitted to the state treasurer and deposited in the state treasury. All the seizures, confiscations and sales made by county or municipal law enforcement personnel shall be paid to the county trustee or city recorder, respectively, and shall be used exclusively for the benefit of the seizing county or municipality for law enforcement or drug education purposes. All such seizures, confiscations and sales derived from the activities of a judicial district drug task force shall be paid to an expendable trust fund maintained by the county mayor in a county designated by the district attorney general, and shall be used exclusively in a drug enforcement or drug education program of the district as directed by the board of directors of the judicial district drug task force. If any other provision of law requires that the proceeds from seizures, confiscations and sales made under one (1) of the sections set out in this subsection (a) be deposited in a special fund, the provisions of that other provision shall control.
2. The comptroller's regular audit of a local government shall also include how proceeds derived from forfeited assets are used by county or municipal law enforcement or by a judicial district drug task force. The comptroller of the treasury shall provide information obtained during an audit pursuant to this subdivision (a)(2) to the department for publication on the department's website in accordance with § 40-33-216(c).
Funds derived from seizures, confiscations and sales shall not be used to supplement the salaries of any public employee or law enforcement officer. All purchases made from the proceeds shall be made in accordance with existing purchasing statutes, including private acts, which establish purchasing provisions or requirements for the county or municipality.
Notwithstanding the provisions of subsections (a) and (b) to the contrary, the revenue derived from the sale of vehicles forfeited under the authority of § 55-50-504(g) shall be distributed as follows:
1. The revenue shall be retained by the entity, either the state or local government, which was responsible for the seizure. The revenue shall be used during each fiscal year to compensate the entity for reasonable and direct expenses involved in the confiscation, towing, storage, and sale of the forfeited vehicles. All expenses claimed by the entity shall be subject to audit and review by the comptroller of the treasury for the purpose of determining that expenses claimed by the entity are direct and reasonable;
2. 1. Any remaining revenue shall be transmitted to the department of mental health and substance abuse services no later than June 30 of each fiscal year. This revenue shall be placed in a special fund to be known as the “alcohol and drug addiction treatment fund” and shall be available for use after July 1, 1998, to pay the cost of alcohol and drug addiction treatment for persons certified for the treatment by order of either general sessions or criminal court judges, pursuant to a plan and procedures developed by the department of mental health and submitted to the general assembly prior to July 1, 1998. Any moneys in the alcohol and drug addiction treatment fund administered by the state treasurer shall be transferred to the alcohol and drug addiction treatment fund administered by the department of mental health on April 8, 1998. The alcohol and drug addiction treatment fund shall be administered pursuant to rules promulgated by the department of mental health and substance abuse services, which shall establish criteria for application of the funds;
  2. The rules promulgated by the department of mental health and substance abuse services shall include application of a portion of the funds up to a total of two hundred thousand dollars ($200,000), and any grants, gifts, contributions, or other appropriations made to supplement the funds for services related to compulsive gambling disorder, to provide prevention, early intervention, assessment or referral, and evaluation services related to compulsive gambling disorder which shall include all of the following:
    1. Establishing an information and referral hotline to provide public education regarding compulsive gambling and to make treatment referrals;
    2. Coordinating activities, services and gathering data on the prevalence of problems regarding compulsive gambling;
    3. Training personnel in the prevention of gambling disorders and in the screening and assessment of these disorders;
    4. Making assessment services available through local treatment providers; and
    5. Providing development and maintenance of treatment services only to the extent that funds exist to do so and still accomplish the goals intended by creation of the alcohol and drug treatment addiction fund;
  3. Subdivision (c)(2)(B) shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to subdivision (c)(2)(B) unless the proposed improvement for the alcohol and drug treatment fund for fiscal year 2004-2005 is included in the general appropriation act; and
3. 1. If a court of competent jurisdiction orders a person to operate only a motor vehicle that is equipped with a functioning ignition interlock device and the judge makes a specific finding that the person is indigent, all costs associated with the lease, purchase, installation, removal and maintenance of such device or with any other cost or fee associated with a functioning ignition interlock device required by title 55, chapter 10, part 4, shall be paid exclusively from the electronic monitoring indigency fund established pursuant to § 55-10-419;
  2. Notwithstanding any other provision of title 55, chapter 10, no funds from the alcohol and drug addiction treatment fund administered by the department of mental health and substance abuse services shall be used for the lease, purchase, installation, removal or maintenance of such device or for any other cost or fee associated with a functioning ignition interlock device required by title 55, chapter 10, part 4.
1. An owner of property whose interest is forfeited after being arrested for, or charged with, any felony shall be ineligible to purchase the property from, or to bid at any sale of the property conducted by, the seizing agency or its agent.
2. An owner whose interest is forfeited after being arrested for, or charged with, any felony, shall also be ineligible to redeem the property from, or to bid at any sale of the property by, a secured party acting pursuant to the agreement, contract or title 47, chapter 9.
Nothing in this section shall be construed as prohibiting a state, county or municipal agency from using a seized vehicle in accordance with § 53-11-201(b).
Notwithstanding the provisions of subsections (a) and (b) to the contrary, the revenue derived from the sale of vehicles forfeited under the authority of § 55-10-414 shall be distributed as follows:
1. The revenue shall be retained by the entity, either the state or local government, which was responsible for the seizure. The revenue shall be used during each fiscal year to compensate the entity for reasonable and direct expenses involved in the confiscation, towing, storage, and sale of the forfeited vehicles. All expenses claimed by the entity shall be subject to audit and review by the comptroller of the treasury for the purpose of determining that expenses claimed by the entity are direct and reasonable;
2. Any remaining revenue shall be transmitted to the department of mental health and substance abuse services no later than June 30 of each fiscal year. This revenue shall be placed in a special fund to be known as the “alcohol and drug addiction treatment fund” and shall be available for use after July 1, 1998, to pay the cost of alcohol and drug addiction treatment for persons certified for the treatment by order of either general sessions or criminal court judges, pursuant to a plan and procedures developed by the department of mental health and submitted to the general assembly prior to July 1, 1998. Any moneys in the alcohol and drug addiction treatment fund administered by the state treasurer shall be transferred to the alcohol and drug addiction treatment fund administered by the department of mental health on April 8, 1998; and
3. 1. If a court of competent jurisdiction orders a person to operate only a motor vehicle that is equipped with a functioning ignition interlock device and the judge makes a specific finding that the person is indigent, all costs associated with the lease, purchase, installation, removal and maintenance of such device or with any other cost or fee associated with a functioning ignition interlock device required by title 55, chapter 10, part 4, shall be paid exclusively from the electronic monitoring indigency fund established pursuant to § 55-10-419;
  2. Notwithstanding any other provision of title 55, chapter 10, part 4, no funds from the alcohol and drug addiction treatment fund administered by the department of mental health and substance abuse services shall be used for the lease, purchase, installation, removal or maintenance of such device or for any other cost or fee associated with a functioning ignition interlock device required by title 55, chapter 10, part 4.
1. Notwithstanding the provisions of this section, the proceeds from all forfeitures of conveyances or real or personal property used in the commission of an offense under title 39, chapter 17, part 10 shall be transmitted to the general fund, where there is established a general fund reserve to be allocated through the general appropriations act, which shall be known as the child abuse fund. Moneys from the fund shall be expended to fund activities authorized by § 39-13-530. Any revenues deposited in this reserve shall remain in the reserve until expended for purposes consistent with this section, and shall not revert to the general fund at the end of the fiscal year. Any excess revenues or interest earned by the revenues shall not revert at the end of the fiscal year, but shall remain available for appropriation in subsequent fiscal years. Any appropriation from the reserve shall not revert to the general fund at the end of the fiscal year, but shall remain available for expenditure in subsequent fiscal years.
2. The general assembly shall appropriate, through the general appropriations act, moneys from the child abuse fund to the department of finance and administration for the child abuse fund. The appropriations shall be specifically earmarked for the purposes set out in § 39-13-530.
1. Notwithstanding this section, the proceeds from all forfeitures of conveyances or real or personal property used in the commission of an offense under title 39, chapter 13, part 5, shall be transmitted to the general fund where there is established a general fund reserve to be allocated through the general appropriations act, which shall be known as the child abuse fund. Moneys from the fund shall be expended to fund activities authorized by § 39-13-530. Any revenues deposited in this reserve shall remain in the reserve until expended for purposes consistent with this section, and shall not revert to the general fund on any June 30. Any excess revenues or interest earned by the revenues shall not revert on any June 30, but shall remain available for appropriation in subsequent fiscal years. Any appropriation from the reserve shall not revert to the general fund on any June 30, but shall remain available for expenditure in subsequent fiscal years.
2. The general assembly shall appropriate, through the general appropriations act, moneys from the child abuse fund to the department of finance and administration for the child abuse fund. The appropriations shall be specifically earmarked for the purposes set out in § 39-13-530.
Notwithstanding subsections (a) and (b), the revenue derived from the sale of motor vehicles forfeited under the authority of § 55-16-104 shall be distributed as follows:
1. Seventy-five percent (75%) of the revenue shall be retained by the entity responsible for the seizure;
2. Ten percent (10%) of the revenue shall be transferred to the state and placed in the general fund; and
3. Fifteen percent (15%) of the revenue shall be transferred to the department of commerce and insurance, division of consumer affairs, for consumer education.

Acts 1994, ch. 925, § 1; 1995, ch. 514, § 2; 1996, ch. 910, §§ 2, 5; 1996, ch. 959, § 4; 1997, ch. 148, §§ 1-6; 1998, ch. 729, §§ 1, 2; 2002, ch. 855, §§ 3, 4, 14; 2003, ch. 90, § 2; 2004, ch. 833, § 1; 2006, ch. 960, §§ 3, 5; 2007, ch. 586, § 1; 2009, ch. 186, § 5; 2010, ch. 921, §§ 1, 2; 2010, ch. 1100, § 66; 2012, ch. 575, § 1; 2013, ch. 154, § 35; 2015, ch. 344, § 8; 2016, ch. 993, §§ 5, 6; 2018, ch. 999, § 3; 2018, ch. 1046, § 3.

Code Commission Notes.

Acts 2006, ch. 960, §§ 3 and 5 both purported to add a new subsection (g). The code commission determined that neither of the subsections purported to be added by the two act sections could be codified, because the two act sections conflict in substance and the code commission was unable to determine the intent. The provisions of Acts 2006, ch. 960, § 3 that purported to add a new subsection (h) were added as a new subsection (g).

Former subdivision (f)(4), concerning a pilot program for residents of Shelby County who violate their DUI probation with a subsequent DUI arrest, was deleted as obsolete by authority of the code commission in 2006.

Compiler's Notes. Former § 55-10-421, formerly referred to in this section, was transferred to § 55-10-419 by Acts 2013, ch. 154, § 14, effective July 1, 2013.

Former § 55-10-403(k), formerly referred to in this section, was transferred to § 55-10-414 by Acts 2013, ch. 154, § 18, effective July 1, 2013.

For an Order transferring the bureau of alcohol and drug abuse services from the department of health to the department of mental health and developmental disabilities, except for functions related to the licensing of alcohol and drug abuse counselors, see Executive Order No. 44 (February 23, 2007).

Acts 2006, ch. 960, § 6 provided that the amendment to this section shall apply to offenses committed on or after July 1, 2006.

Acts 2010, ch. 921, § 14, provided that the administrative office of the courts shall develop and provide training to judges with jurisdiction over violations of § 55-10-401 to provide such judges with adequate knowledge to perform their duties under the act.

Acts 2010, ch. 921, § 15, provided that the treasurer shall establish a method by which ignition interlock providers, as defined in § 55-10-412(a)(2) [now 55-10-417], are reimbursed from the interlock assistance fund [now DUI monitoring fund] for the payment of the costs associated with the lease, purchase, installation, removal and maintenance of ignition interlock devices for persons found to be indigent.

Acts 2010, ch. 921, § 16, provided that the provisions of the act shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 921, § 18(3), provided that the act, which amended subdivisions (c)(3) and (f)(3), shall apply to applicable offenses of driving under the influence occurring on or after January 1, 2011.

Acts 2010, ch. 1100, § 153 provided that the commissioner of mental health and developmental disabilities, the commissioner of mental health, the commissioner of intellectual and developmental disabilities, and the commissioner of finance and administration are authorized to promulgate rules and regulations to effectuate the purposes of the act. All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

For the Preamble to the act concerning the problems associated with curbstoning, see Acts 2015, ch. 344.

Acts 2018, ch. 1046, § 12 provided that the act, which amended this section, shall apply to offenses committed on or after July 1, 2018.

Amendments. The 2018 amendment by ch. 999, added (a)(2).

The 2018 amendment by ch. 1046, in (c)(3)(A) and (f)(3)(A), substituted “electronic monitoring indigency” for “DUI monitoring” preceding “fund”.

Effective Dates. Acts 2018, ch. 999, § 4. July 1, 2018; provided, that for purposes of promulgating rules, policies, forms, and procedures and making necessary provisions for the implementation of the act, the act took effect May 21, 2018.

Acts 2018, ch. 1046, § 12. July 1, 2018.

Attorney General Opinions. Drug forfeiture funds used only to fund county or city drug education or law enforcement programs, OAG 97-037 (4/2/97).

Use of drug forfeiture proceeds to fund private drug education programs, OAG 97-125 (9/2/97).

Use of motor vehicles seized pursuant to § 55-10-403(k), OAG 99-190 (9/28/99).

Use of drug fines, forfeitures of appearance bonds and the proceeds of property forfeitures to fund salaries of persons employed by county and municipal law enforcement agencies, OAG 99-202 (10/6/99).

Member agencies of the Tennessee Association of Police Chiefs may use one percent of the funds received from drug forfeitures to pay the expenses of outside speakers and trainers participating in a continuous training program for the benefit of all municipal law enforcement agencies, provided such expenditures are not for supplementing salaries of public employees or law enforcement officers or for long-term obligations that recur, including salaries, OAG 02-130 (12/02/02).

40-33-212. Settlement agreements.

Only the chief administrative officer of the seizing agency, or the officer's designee, shall be permitted to negotiate or enter into any type of settlement agreement or agreements prior to the forfeiture hearing conducted pursuant to § 40-33-210. In no event shall any officer involved in the seizure of the property be allowed to negotiate or enter into any type of settlement agreement or agreements prior to the forfeiture hearing. All negotiated settlements by any seizing agency are subject to the approval of the chief administrative officer of the applicable agency.

Acts 1994, ch. 925, § 1.

40-33-213. Appeals — Venue.

The party aggrieved by the decision of the applicable agency may seek judicial review of the decision by filing a written notice of review. The reviewing court shall use the preponderance of evidence standard in determining whether to sustain or reverse the final order of the applicable agency. The burden of proof on review shall be the same as in the proceedings before the applicable agency.
Except as otherwise provided in this section, an appeal under this part shall be conducted in the same manner as is provided in § 4-5-322, for a contested case hearing under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
A notice of review may, at the election of the aggrieved party, be filed in the circuit court or chancery court of Davidson, Washington, Knox, Hamilton, Putnam, Madison, Dyer, Lawrence, or Shelby county; provided, that, the notice of review shall be filed in the county which corresponds with the location of the hearing.
The applicable agency shall be represented in the appeal by an attorney who is employed by the applicable agency.
If the reviewing court reverses the final order of the applicable agency and orders the return of seized property, the court shall also order the payment of attorney's fees incurred during the administrative proceeding, in the same manner provided and subject to the limits found in § 40-33-217, and any reasonable attorney's fees incurred during the appeal.

Acts 1994, ch. 925, § 1; 2017, ch. 352, § 6; 2018, ch. 772, § 9.

Amendments. The 2017 amendment substituted “, Washington, Knox, Hamilton, Putnam, Madison, Dyer, Lawrence, or Shelby county; provided, that, the notice of review shall be filed in the county which corresponds with the location of the hearing.” for “County.” at the end of (c) and added (d).

The 2018 amendment, effective January 1, 2019, substituted “an attorney who is employed by the applicable agency” for “the attorney or attorneys who represented the agency during the hearing” at the end of (d); and added (e).

Effective Dates. Acts 2017, ch. 352, § 7. January 1, 2019.

Acts 2018, ch. 772, § 11. January 1, 2019.

NOTES TO DECISIONS

1. Standard of Review.

Because the seizure at issue occurred on December 5, 1997 — well after the effective date of T.C.A. § 40-33-213(a) — the trial court erred by employing the “substantial and material” evidence standard in T.C.A. § 4-5-322(h)(5). McEwen v. Tenn. Dep't of Safety, 173 S.W.3d 815, 2005 Tenn. App. LEXIS 157 (Tenn. Ct. App. 2005).

2. Jurisdiction.

Dismissal of petitions for judicial review was appropriate because the chancery court lacked subject matter jurisdiction over the petitions by property owners and attorneys who represented property owners in forfeiture proceedings as one petition was untimely filed, the petitions were barred by res judicata, some of the forfeiture cases were still pending, and the petitioners lacked standing to pursue judicial review on behalf of classes of previous claimants to seized property. Heredia v. Gibbons, — S.W.3d —, 2019 Tenn. App. LEXIS 351 (Tenn. Ct. App. July 17, 2019).

Trial court did not err in holding that it was deprived of jurisdiction to consider any effort to reclaim an arrestee's forfeited property because he did not attempt to file a claim in the applicable agency and did not seek judicial review of the agency's decision within sixty days; the petition was not filed in the appropriate county, and the arrestee failed to seek judicial review within sixty days of the issuance of any of the administrative forfeiture orders. Augustin v. Bradley Cty. Sheriff's Office, 598 S.W.3d 220, 2019 Tenn. App. LEXIS 481 (Tenn. Ct. App. Oct. 2, 2019), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 125 (Tenn. Feb. 19, 2020).

Co-owner of a mobile home lacked standing to contest the forfeiture of currency that was properly seized as proceeds from drug trafficking during a search of the mobile home, which was leased to the co-owner's adult child, because the co-owner failed to demonstrate an ownership interest in the currency. The trial court's application of an incorrect standard of review was harmless error as, under the correct standard of review, the evidence preponderated in favor of the administrative law judge's determination that the co-owner lacked standing. Tubbs v. Long, — S.W.3d —, 2020 Tenn. App. LEXIS 198 (Tenn. Ct. App. Apr. 28, 2020).

40-33-214. Rules.

Any applicable agency authorized to conduct forfeiture hearings pursuant to § 39-14-307, § 47-25-1105, § 53-11-451, § 55-10-414, § 55-50-504(g), § 57-3-411, § 57-5-409, § 57-9-201, § 67-4-1020, or § 70-6-202 may promulgate rules in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to supplement and administer this part. However, no such rules shall be inconsistent with this part.

Acts 1994, ch. 925, § 1; 1996, ch. 910, §§ 6, 7; 1996, ch. 959, § 5; 2013, ch. 154, § 36.

40-33-215. Cause of action against seizing authority in cases of bad faith.

A person who has property seized in accordance with this part shall have a cause of action against the seizing agency if the seizing officer acted in bad faith in seizing or failing to return property seized pursuant to this part.
A person who prevails in an action against a seizing agency pursuant to this section shall be entitled to:
1. Reasonable attorney fees and court costs necessarily incurred in seeking the return of the seized property and in bringing the action pursuant to this section; and
2. Monetary damages resulting from the improper seizure of the property.
Monetary damages recoverable under this section shall be limited to the rental value of property similar to that which was seized for the period of time it was seized but in no event shall the damages exceed the value of the seized property.
For the purposes of this section, a seizing officer “acts in bad faith” when the officer acts intentionally, dishonestly, or willfully or the officer's actions have no reasonable basis in law or fact in regards to the seizure or failure to return the property seized.

Acts 1998, ch. 1070, § 4; 1999, ch. 124, § 3.

Cross-References. Misconduct involving public officials and employees, title 39, ch. 16, part 4.

NOTES TO DECISIONS

1. Wrongful Deprivation.

Premature sale of petitioner's property violated T.C.A. § 39-11-708(c), but did not deprive the Tennessee Department of Safety of jurisdiction, although had petitioner prevailed in the forfeiture proceedings, petitioner would have had a claim against the Department under T.C.A. § 40-33-215 for the wrongful deprivation of the property. Watson v. Tenn. Dep't of Safety, 361 S.W.3d 549, 2011 Tenn. App. LEXIS 535 (Tenn. Ct. App. Sept. 30, 2011), appeal denied, Watson v. State Dep't of Safety, — S.W.3d —, 2012 Tenn. LEXIS 80 (Tenn. Feb. 15, 2012).

2. Knowing Misconduct.

Trial court properly granted the county summary judgment on the bad faith seizure claim under T.C.A. § 40-33-215 where the homeowner had not shown that a detective had engaged in knowing misconduct or indifference, but rather had relied on advice from the DA's office even though he had not complied with certain procedural requirements when obtaining a forfeiture warrant. Sprunger v. Cumberland Cty., — S.W.3d —, 2017 Tenn. App. LEXIS 512 (Tenn. Ct. App. July 27, 2017), review denied and ordered not published, Sprunger v. Cumberland Cty. TN Sheriff's Office, — S.W.3d —, 2017 Tenn. LEXIS 811 (Tenn. Nov. 17, 2017).

3. Sovereign Immunity.

Circuit court properly ruled that the sovereign immunity of the Tennessee Department of Safety and Homeland Security and a county were removed because both entities could be “seizing authorities,” the statute at issue, on its face, removed the county's sovereign immunity, and the Department could be liable to a lienholder for the wrongful deprivation of property if it acted in bad faith in refusing to release the seized property after discovering his valid lien. Morton v. Knox Cty. Sheriff's Dep't, — S.W.3d —, 2019 Tenn. App. LEXIS 86 (Tenn. Ct. App. Feb. 15, 2019).

4. Jurisdiction.

Trial court erred in ruling it lacked subject matter jurisdiction over an arrestee's claim for monetary damages because the claim was fairly raised by his amended complaint; the court of criminal appeals was presented with no authority to suggest that such a claim could not be filed in the Bradley County Circuit Court. Augustin v. Bradley Cty. Sheriff's Office, 598 S.W.3d 220, 2019 Tenn. App. LEXIS 481 (Tenn. Ct. App. Oct. 2, 2019), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 125 (Tenn. Feb. 19, 2020).

40-33-216. Annual seizure report by department.

By March 1 of each year, the department of safety shall report to the speakers of the senate and the house of representatives and the chairs of the judiciary committee of the senate and the judiciary committee of the house of representatives, a report detailing, for the previous calendar year:
1. The total number of seizure cases opened by the department;
2. The number of seizure cases where an arrest was made;
3. The total number of cases resulting in forfeiture;
4. The types of property seized under this part and the totals of each type;
5. The amount of currency seized;
6. The amount of currency forfeited;
7. The total number of cases which resulted in a default by the property owner;
8. The total amount of currency forfeited as a result of default;
9. The total number of cases which resulted in a settlement;
10. The total amount of currency forfeited as a result of settlement;
11. The total amount of currency returned to the property owners as a result of settlement;
12. The total number of cases resulting in a hearing;
13. The total number of hearings resulting in forfeiture of assets;
14. The total amount of currency forfeited as a result of disposition by hearing;
15. The total amount of currency returned to the property owners as a result of a disposition by hearing; and
16. How proceeds derived from forfeited assets are used by the department.
The department shall include each category of information for the department as a whole and separately for each individual law enforcement agency that opened a forfeiture proceeding with the department in the previous calendar year.
The information reported by the department in subdivision (a)(16) and to the department in § 40-33-211(a)(2) shall be made accessible to the public on the department's website through a prominent link provided on the home page.

Acts 2016, ch. 861, § 1; 2017, ch. 441, §§ 1, 2; 2018, ch. 999, §§ 1, 2; 2019, ch. 345, § 59.

Amendments. The 2018 amendment added (a)(16); and added (c).

The 2019 amendment substituted “judiciary committee” for “, civil justice committee of the house of representatives, and criminal justice committee” preceding “of the house” in (a).

Acts 2019, ch. 345, § 148. May 10, 2019.

40-33-217. Attorney's fees.

Upon entering an initial order which includes a return of property, in whole or in part, the administrative law judge shall also include an award of attorney's fees against the seizing agency subject to the limits in subsection (c).
No award of attorney's fees against a seizing agency shall be entered when the initial order is the result of a settlement between the parties.
No award of attorney's fees under this section shall exceed the lesser of the following, as may be applicable to the case:
1. Twenty-five percent (25%) of the National Automobile Dealers Association rough trade-in value of any motor vehicle seized and returned;
2. Twenty-five percent (25%) of the value of any currency seized and returned;
3. Twenty-five percent (25%) of the reasonable replacement value of any miscellaneous personal property seized and returned;
4. Three thousand dollars ($3,000); or
5. If multiple types of property are returned, a combination of the amounts in subdivisions (c)(1)-(3), provided that the total amount of attorney's fees awarded shall not exceed three thousand dollars ($3,000).
The award of attorney's fees shall be appealable in the same manner as an initial order under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
Compensation shall not be awarded to an attorney whose fees are paid under any federally funded legal services program, or any such program funded by the state. However, compensation shall be determined and allowed in accordance with subsection (f) to an attorney employed in a privately or publicly funded nonprofit public interest law firm or corporation if neither the attorney, the law firm, nor the corporation received, or is entitled to receive, compensation for filing the claim on behalf of the claimant under any federal or state statute or rule other than this section.
Notwithstanding § 4-5-325 or any other law to the contrary, this section shall be the exclusive means for seeking attorney's fees for proceedings conducted under this part. This section does not prohibit a person who files an action pursuant to § 40-33-215 from seeking attorney's fees for that specific action.
For the purposes of this section, “seizing agency” means the agency that issued the Notice of Seizure pursuant to § 40-33-203.
Notwithstanding § 40-33-211, § 53-11-201, or any other law, funds forfeited to a seizing agency under this part may be used to pay attorney's fees ordered under this section.

Acts 2018, ch. 772, § 10.

Effective Dates. Acts 2018, ch. 772, § 11. October 1, 2018.

NOTES TO DECISIONS

1. Jurisdiction.

Chapter 34
Contract Sentencing

40-34-101. Short title.

This chapter shall be known as and may be cited as the “Tennessee Contract Sentencing Act of 1979.”

Acts 1979, ch. 386, § 1; T.C.A., § 40-4201.

40-34-102. Authority to establish program.

The commissioner of correction and the board of parole are authorized to establish a contract sentencing program, and to promulgate rules and regulations governing it, consistent with this chapter. The rules and regulations shall include eligibility requirements, procedures and the general form and substance of agreements that may be entered into under the program.

Impl. am. Acts 1979, ch. 359, §§ 5, 26; Acts 1979, ch. 386, § 1; T.C.A., § 40-4202; Acts 1998, ch. 1049, § 42.

40-34-103. Sentence agreements — Notice to officials and victims.

Any prisoner sentenced to a period of imprisonment under supervision of the department of correction and who is otherwise eligible to participate in the contract sentencing program may enter into an agreement with the department and the board of parole for a sentence agreement. The department and the board may establish objectives or programs for each eligible prisoner who wishes to enter into an agreement under the contract sentencing program.
The sentence agreement may include the promise of the prisoner to complete certain enumerated objectives, or certain programs offered for prisoners by the department, in return for:
1. The promise of the board to parole the prisoner on a definite, specified named date or a specific date in relation to the release eligibility date of the eligible prisoner; and
2. The promise of the department to provide the means by which the prisoner may have access to the programs and services necessary for the prisoner to fulfill the prisoner's part of the agreement.
Notwithstanding any other law to the contrary, if an inmate has served a minimum of ten (10) consecutive years in continuous confinement in correctional facilities and has entered into a sentencing agreement, there shall be no statutory restriction on the minimum amount of time that the inmate must serve before being paroled pursuant to the terms of the sentencing agreement. No offender who has been convicted as an habitual offender or has been convicted of a crime against the person, no offender who has been convicted of first degree murder, and no offender who has been convicted of a sexual offense as contained in §§ 39-13-501 — 39-13-506, 39-13-507 [repealed], 39-13-101 and 39-12-101 shall be eligible to participate in the contract sentencing program authorized by this subsection (c).
No agreement entered into under this chapter shall be legally binding or enforceable by any of the parties to the agreement.
The commissioner shall notify the district attorney general who prosecuted the case, or the district attorney general's successor, the trial judge in whose court the conviction occurred, or the trial judge's successor, and the victim or the victim's next of kin prior to the execution of a sentencing agreement under subsection (c).
Impl. am. Acts 1979, ch. 359, §§ 5, 26; Acts 1979, ch. 386, § 1; T.C.A., § 40-4203; Acts 1985 (1st Ex. Sess.), ch. 5, § 23; 1988, ch. 879, §§ 1, 2; 1989, ch. 227, § 52; 1996, ch. 675, § 37; 1998, ch. 1049, § 42.

Compiler's Notes. Acts 2012, ch. 727, § 1 amended § 4-3-104, which concerns name changes of departments and divisions, to provide that references to the board of probation and parole, formerly referred to in this section, are deemed references to the board of parole.

Former § 39-13-507, referred to in this section, was repealed by Acts 2005, ch. 456, § 2, effective June 18, 2005.

40-34-104. Coordination of contract sentencing program.

The governor shall appoint a person to coordinate the contract sentencing program whose duties shall include acting as spokesperson and advocate for prisoners. The coordinator shall receive reasonable compensation for the work and reimbursements for travel expenses in accordance with the comprehensive travel regulations promulgated by the department of finance and administration and approved by the attorney general and reporter, pursuant to § 4-3-1008.

Acts 1979, ch. 386, § 1; T.C.A., § 40-4204.

40-34-105. Establishment of alternative objectives of programs — Removal of prisoner from program.

If the objectives of the agreement cannot be met by the department of correction, or if programs or services referred to in the agreement are not available, the department and the board of parole may establish alternative objectives or programs for the prisoner.
If the prisoner cannot complete the prisoner's part of the agreement for disciplinary reasons, the commissioner of correction, or the commissioner's designee, may, for disciplinary purposes or for the safety of the institution, remove the prisoner from the contract sentencing program, in which event the agreement shall be void; provided, that a new agreement may later be entered into with the prisoner in the discretion of the commissioner and the board.
Impl. am. Acts 1979, ch. 359, §§ 5, 26; Acts 1979, ch. 386, § 1; T.C.A., § 40-4205; Acts 1998, ch. 1049, § 42.

Compiler's Notes. Acts 2012, ch. 727, § 1 amended § 4-3-104, which concerns name changes of departments and divisions, to provide that references to the board of probation and parole, formerly referred to in this section, are deemed references to the board of parole.

40-34-106. Prisoners not exempt from department regulations.

Nothing in this chapter shall be construed to exempt any prisoner, supervised by the department of correction, from the effect of any disciplinary rules or regulations established by the commissioner of correction.

Acts 1979, ch. 386, § 1; T.C.A., § 40-4206.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 32.272.

40-34-107. [Repealed.]

Acts 1985 (1st Ex. Sess.), ch. 5, § 35; 2011, ch. 410, § 2(a); 2013, ch. 236, § 64; 2019, ch. 345, § 60; repealed by Acts 2020, ch. 711, § 5, effective June 15, 2020.

Compiler's Notes. Former § 40-34-107 concerned reports to state and local government committees.

40-34-108. Maximum reduction of sentence.

1. 1. Notwithstanding any other law to the contrary, no sentence credits authorized by § 41-21-236 or any other provision of law, or no sentence contract authorized by this chapter or any other provision of law shall have the effect of reducing the amount of time an inmate must serve before the inmate's earliest release eligibility date, undiminished by the sentence credits, by more than thirty-five percent (35%).
  2. For inmates sentenced for offenses committed on or after January 1, 1988, no sentence credits or no sentence contract shall have the effect of reducing the amount of time an inmate must serve before the inmate's earliest release eligibility date, undiminished by the sentence credits, by more than thirty percent (30%).
2. The sentencing commission shall review the effect of these provisions as part of its duties under law.
As used in this section, “sentence credits” includes any credit, whether called such or not, that results in a reduction of the amount of time an inmate must serve on the original sentence or sentences. This section shall not be applicable when the powers granted pursuant to title 41, chapter 1 are in effect to reduce prison overcrowding.

Acts 1985 (1st Ex. Sess.), ch. 5, § 52.

Compiler's Notes. The Tennessee sentencing commission, referred to in this section, terminated June 30, 1995.

Chapter 35
Tennessee Criminal Sentencing Reform Act of 1989

Part 1
General Provisions

40-35-101. Short title.

This chapter shall be known and may be cited as the “Tennessee Criminal Sentencing Reform Act of 1989.”

Acts 1989, ch. 591, § 6.

Sentencing Commission Comments.

This and the following sections are a part of the comprehensive penal and sentencing reform legislation enacted in 1989 as proposed by the Tennessee sentencing commission. Prior revisions either modified substantive criminal law or dealt exclusively with sentencing provisions. The commission believes that a unified approach is necessary so that there is a clear relationship between the definition of an offense and the sentence for that offense.

The sentencing structure is designed to comply with the legislative directive as set forth in § 40-37-202 [obsolete] requiring that felonies be classified into five categories and misdemeanors into three categories. Therefore, all felony offenses are classified based on severity of offense with letter designations: the most serious felonies graded as Class A and the least serious as Class E. Misdemeanors are similarly graded. The substantive criminal code revision sets forth the class of each felony or misdemeanor based on the nature of the offense. One attribute of this classification system is to treat like offenses the same for punishment purposes. Thus, all theft and theft related offenses are “graded” based on the amount of property taken.

The classification of offenses also permits the construction of a sentencing grid so that the potential sentence for each offender can be rapidly ascertained. Each felony class carries a maximum and minimum sentence. Thus, a Class A felony can be punished from between 15 and 60 years. See § 40-35-112. The 15 to 60 year span is divided into three ranges called Range I, Range II and Range III. The “range” determination is based upon the number of prior convictions which, in turn, determines the potential span for that particular offender. Thus, a Range I sentence for a Class A felony is 15 to 25 years. A Range II sentence for a Class A felony is 25 to 40 years, and a Range III sentence is from 40 to 60 years.

The following grid combines the felony classifications, range determinations, parole eligibility and incarceration locations for all of the felony offenses under the new law.

Click to view

The far left-hand column of the above grid shows the five felony classes: A, B, C, D, and E. The numbers below each classification letter indicate the absolute minimum and absolute maximum sentence for each felony class. The “RED percentage” shows the percentage of time that each offender must serve prior to parole eligibility or “release eligibility date.” The “RED yrs” translates that percentage into the number of years.

The next column displays the sentences for a defendant classified as an “especially mitigated offender” under § 40-35-109. Where the trial judge finds mitigating factors but no enhancement factors, then the judge may depart from the normal range determination and impose a sentence under the absolute minimum. The trial judge also has the option of decreasing the parole eligibility date. The attributes of an especially mitigated offender are addressed in more detail under the comments to § 40-35-109.

The next column shows the sentencing span for offenders designated as “standard offenders.” As under prior law, a standard offender is a defendant who does not fall into one of the other sentencing ranges. See § 40-35-105.

The next column lists the potential lengths of incarceration for defendants who are found to be “multiple offenders.” As implied by this designation, a multiple offender is a defendant who has several prior convictions. The presence of these convictions enhances the potential length of sentence depending on the felony class of the prior convictions. See § 40-35-106.

The next column lists the potential span for defendants who are designated as persistent offenders under § 40-35-107. Depending on the number of prior felony convictions, such a designation subjects the offender to higher potential punishment.

The final column lists the defendant who is designated as a “career offender.” T.C.A. § 40-35-108. A defendant with such a designation must be sentenced to the maximum penalty imposed for Range III with a substantially higher parole eligibility date.

In any given case, the potential punishment for each offender can be found by cross-referencing the felony classification with a number of prior felony convictions, if any. This yields a “block” on the sentencing grid to disclose the potential minimum and maximum sentence for that particular offender. See § 40-35-210. Since all sentences are determinate in nature, the judge must fix a specific length of sentence within the appropriate range for that particular offender. The presumptive sentence is the minimum in the range. See § 40-35-210. Further, the judge must consider the various mitigating factors under § 40-35-113 and the enhancement factors under § 40-35-114.

After due consideration of all of these factors, along with the purposes and general sentencing considerations, the judge fixes a specific length of the sentence and also determines how that sentence should be satisfied. In some instances, incarceration in the department of correction is the only available sentencing option, particularly for the higher felony classifications and where the defendant has multiple prior felony convictions. In other instances, the trial judge has the discretion to impose a wide range of sentencing alternatives. See §§ 40-35-306, 40-35-307, and 40-36-106. These various sentencing alternatives are addressed in the comments to the pertinent sections hereafter.

Compiler's Notes. Former chapter 35, §§ 40-35-101 — 40-35-112, 40-35-201 — 40-35-214, 40-35-301 — 40-35-316, 40-35-401 — 40-35-403, 40-35-501 — 40-35-504 (Acts 1982, ch. 868, § 1; T.C.A., §§ 40-35-108, 40-43-101— 40-43-104, 40-43-106, 40-43-107, 40-43-109 — 40-43-112, 40-43-201 — 40-43-205, 40-43-207 — 40-43-212, 40-43-214, 40-43-301 — 40-43-304, 40-43-306 — 40-43-309, 40-43-311 — 40-43-315, 40-43-401 — 40-43-403, 40-43-501 — 40-43-504), concerning the Tennessee Criminal Sentencing Reform Act of 1982, was repealed by Acts 1989, ch. 591, § 6.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Cross-References. Commitment to department of children's services, § 37-1-137.

Sentencing provisions applicable to persons committing crimes prior to July 1, 1982, title 40, ch. 20.

“Three strikes” law, § 40-35-120.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 7.12, 22.3, 22.134, 32.2, 32.80.

Tennessee Jurisprudence, 6A Tenn. Juris., Constitution, § 52, 8 Tenn. Juris., Criminal Procedure, § 40-43, 49, 51; 11 Tenn. Juris., Evidence, § 188.

Law Reviews.

Crime & Punishment: Preventing Ineffective Assistance of Counsel: Advice Regarding Plea Offers (Wade V. Davies), 49 Tenn. B.J. 28 (2013).

Criminal Procedure—Tennessee v. Carter: The Strict Requirement of Notice Under Tennessee's Recidivist Sentencing Statutes (David Demar Ayliffe) 35 U. Mem. L. Rev. 145 (2004).

Sentencing Lockdown: What Is the Impact of Blakely on Sentencing in Tennessee? (David L. Raybin), 40 No. 8 Tenn. B.J. 12 (2004).

Specific Crime vs. Criminal Ways: Criminal Conduct and Responsibility in Rule 3E1.1, 54 Vand. L. Rev. 205 (2001).

The Court in Action: A summary of key cases from the U.S. Supreme Court 2000-2001 (Perry A. Craft and Arshad (Paku) Khan), 37 No. 9 Tenn. B.J. 18 (2001).

The Tennessee Court of Criminal Appeals: A Study and Analysis (Daniel J. Foley), 66 Tenn. L. Rev. 427 (1999).

The Trexler Saga: Hale & Middlebrooks (Gary R. Wade), 23 Mem. St. U.L. Rev. 319 (1993).

NOTES TO DECISIONS

1. In General.

Former T.C.A. § 55-50-504(a)(2) did not, on its face, violate either Tenn. Const. art. I, § 16 or U.S. Const. amend. VIII for the mere failure to fix a maximum fine; however, fines imposed in specific cases are subject to being challenged as excessive and, when such challenges are made, courts are required to first apply the principles of the Tennessee Criminal Sentencing Reform Act of 1989, T.C.A. § 40-35-101 et seq., to determine whether the fine is excessive before analyzing its constitutional validity. State v. Taylor, 70 S.W.3d 717, 2002 Tenn. LEXIS 145 (Tenn. 2002).

2. Construction.

The Tennessee Criminal Sentencing Reform Act, T.C.A. § 40-35-101 et seq., and the Community Corrections Act, T.C.A. § 40-36-101 et seq., are in pari materia. Consequently, when a trial court opts to resentence a defendant to a sentence more severe than the original, the trial court must conduct a sentencing hearing pursuant to the principles of the Sentencing Reform Act. State v. Crook, 2 S.W.3d 238, 1998 Tenn. Crim. App. LEXIS 1321 (Tenn. Crim. App. 1998).

3. Common Law.

Supreme Court of Tennessee held that the common law rule that a person charged as an accessory after the fact could not be tried prior to the principal offender being convicted, unless the person charged as an accessory after the fact expressly consented to waive the common law rule, had not been abrogated by the Tennessee Criminal Sentencing Reform Act, T.C.A. § 40-35-101 et seq., and it declined to judicially abrogate it. State v. Hawk, 170 S.W.3d 547, 2005 Tenn. LEXIS 656 (Tenn. 2005).

4. Offenses Committed Prior to Act.

Where an offense was committed prior to the enactment of the Criminal Sentencing Reform Act of 1989, T.C.A. § 40-35-101 et seq., but the sentencing is imposed subsequently, the court is required to calculate the proper sentence under both the 1982 and the 1989 sentencing acts and then impose the least severe sanction. State v. Carico, 968 S.W.2d 280, 1998 Tenn. LEXIS 250 (Tenn. 1998).

5. Jurisdiction.

The jurisdiction of a trial court to sentence defendants is limited to the provisions of this chapter; thus, a trial court may impose a sentence that is mutually agreeable to the state and the defendant, so long as the sentence is available under this chapter. McConnell v. State, 12 S.W.3d 795, 2000 Tenn. LEXIS 65 (Tenn. 2000).

6. Standard of Review.

Under this chapter the court of criminal appeals must presume the trial court's determinations to be correct. If appellate review reflects that the trial court, by following the statutory sentencing procedure, imposed a lawful sentence, after having given due consideration and proper weight to the factors and principles which are relevant to sentencing under the act, and that the trial court's findings of fact upon which the sentence is based are adequately supported in the record, then the court of appeals may not disturb the sentence even if it would have preferred a different result. State v. Fletcher, 805 S.W.2d 785, 1991 Tenn. Crim. App. LEXIS 54 (Tenn. Crim. App. 1991).

7. Sentencing Principles.

Trial court exercising the authority to fix a percentage of actual confinement that a felony split confinement defendant must serve before participating in work programs may fix the actual confinement percentage at 100 percent, if doing so is consistent with the principles of the Tennessee Sentencing Reform Act of 1989, T.C.A. § 40-35-101 et seq. However, even if a trial court orders 100 percent service of a split confinement sentence, which would effectively preclude a defendant from earning work credits, the 100 percent requirement does not preclude inmates from earning good time credits under T.C.A. § 41-2-111(b). Ray v. Madison Cty., 536 S.W.3d 824, 2017 Tenn. LEXIS 473 (Tenn. Aug. 16, 2017).

Supreme Court of Tennessee concludes that recognizing a trial court's implicit authority to fix a percentage of actual confinement that a felony split confinement defendant must serve before participating in work programs does not conflict with other statutory provisions related to work credits. Ray v. Madison Cty., 536 S.W.3d 824, 2017 Tenn. LEXIS 473 (Tenn. Aug. 16, 2017).

Supreme Court of Tennessee is convinced that the Tennessee Sentencing Reform Act of 1989, T.C.A. § 40-35-101 et seq., implicitly authorizes trial courts to establish the percentage of a felony split confinement sentence that a defendant must serve in actual confinement before becoming eligible to earn work sentencing credits. Ray v. Madison Cty., 536 S.W.3d 824, 2017 Tenn. LEXIS 473 (Tenn. Aug. 16, 2017).

8. Appellate Review of Fines.

Nowhere in this chapter, in the statutes dealing with appellate court jurisdiction, or in the statutes dealing specifically with fines, is there an explicit prohibition against appellate review of fines. State v. Bryant, 805 S.W.2d 762, 1991 Tenn. LEXIS 95 (Tenn. 1991).

The most persuasive argument in favor of appellate review of fines is that this chapter was adopted by the legislature for the obvious purpose of assuring fair and consistent treatment for all defendants by giving appellate courts an opportunity to review actions of the trial court in sentencing, including confinement and fines. An interpretation of this chapter that would prevent appellate review of fines would clearly be contrary to that broad legislative purpose. State v. Bryant, 805 S.W.2d 762, 1991 Tenn. LEXIS 95 (Tenn. 1991).

9. Sentence Upheld.

In a case in which defendant was convicted of reckless endangerment, aggravated kidnapping, and domestic assault, the trial court did not err in sentencing defendant to an effective sentence of ten years. Defendant's mid-range sentence was within the appropriate range and complied with the principles and purposes of sentencing. State v. Williams, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 211 (Tenn. Crim. App. Mar. 21, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 446 (Tenn. July 18, 2017).

Trial court properly sentenced defendant because the sentences were within the applicable range, and the trial court correctly applied all enhancement factors; the trial court identified several enhancement factors on the record and considered the principles and purposes of the Sentencing Act. State v. Armstrong, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 587 (Tenn. Crim. App. July 5, 2017).

10. Burden of Proof.

Although the trial court relied on an enhancement factor—the personal injuries inflicted upon the victim were particularly great —that was an element of the offense of child neglect, the trial court also applied as an enhancement factor the fact that defendant acted in a position of trust as the day-care provider for the infant victim. Defendant failed to prove that the sentence was improper because the application of the second enhancement factor alone supported the sentence imposed by the trial court. State v. Buchanan, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 844 (Tenn. Crim. App. Nov. 15, 2018).

40-35-102. Purpose of chapter.

The foremost purpose of this chapter is to promote justice, as manifested by § 40-35-103. In so doing, the following principles are adopted:

Every defendant shall be punished by the imposition of a sentence justly deserved in relation to the seriousness of the offense;
This chapter is to assure fair and consistent treatment of all defendants by eliminating unjustified disparity in sentencing and providing a fair sense of predictability of the criminal law and its sanctions;
Punishment shall be imposed to prevent crime and promote respect for the law by:
1. Providing an effective general deterrent to those likely to violate the criminal laws of this state;
2. Restraining defendants with a lengthy history of criminal conduct;
3. Encouraging effective rehabilitation of those defendants, where reasonably feasible, by promoting the use of alternative sentencing and correctional programs that elicit voluntary cooperation of defendants; and
4. Encouraging restitution to victims where appropriate;
Sentencing should exclude all considerations respecting race, gender, creed, religion, national origin and social status of the individual;
In recognition that state prison capacities and the funds to build and maintain them are limited, convicted felons committing the most severe offenses, possessing criminal histories evincing a clear disregard for the laws and morals of society and evincing failure of past efforts at rehabilitation shall be given first priority regarding sentencing involving incarceration; and
1. A defendant who does not fall within the parameters of subdivision (5), and who is an especially mitigated or standard offender convicted of a Class C, D or E felony, should be considered as a favorable candidate for alternative sentencing options in the absence of evidence to the contrary; however, a defendant’s prior convictions shall be considered evidence to the contrary and, therefore, a defendant who is being sentenced for a third or subsequent felony conviction involving separate periods of incarceration or supervision shall not be considered a favorable candidate for alternative sentencing;
2. As used in subdivision (6)(A), “separate periods of incarceration or supervision” means that the defendant serves and is released or discharged from a period of incarceration or supervision for the commission of a felony prior to committing another felony;
3. If a defendant with at least three (3) felony convictions is otherwise eligible, that defendant may still be considered a favorable candidate for any alternative sentencing that is within the jurisdiction of and deemed appropriate by a drug court;
4. A court shall consider, but is not bound by, the advisory sentencing guideline in this subdivision (6).

Acts 1989, ch. 591, § 6; 1990, ch. 980, § 21; 1994, ch. 736, § 1; 2005, ch. 353, § 1; 2007, ch. 512, § 1.

Sentencing Commission Comments.

These purposes should be read in conjunction with § 39-11-101 which sets forth the objectives of the criminal code. The sentencing purposes, in general, are similar to those under prior law and govern all sentencing determinations.

Subdivision (1) requires that the sentence imposed must bear a relationship to the seriousness of the offense.

Subdivision (2) states the designated purpose of eliminating unjustified disparity in sentencing and thereby providing predictability.

Subdivision (3) is similar to prior law but adds restitution as an additional factor. The commission believes restitution should be ordered in all appropriate cases.

Subdivision (4) restates the obvious purpose that considerations of race, gender, and social status are irrelevant to sentencing determinations. In 1994, creed, religion and national origin were added.

The importance of subdivision (5) is that, for the first time, Tennessee recognizes that scarce prison resources should enter into the sentencing evaluation for those convicted of violating the law.

Subdivision (6) provides that a defendant who does not fall within the parameters of the preceding subdivision and who is an especially mitigated or standard offender convicted of a Class C, D or E felony is “presumed to be a favorable candidate for alternative sentencing in the absence of evidence to the contrary.” This “presumption” is one of several sentencing presumptions found throughout the Sentencing Reform Act of 1989.

Compiler's Notes. The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Former chapter 35, §§ 40-35-101 — 40-35-112, 40-35-201 — 40-35-214, 40-35-301 — 40-35-316, 40-35-401 — 40-35-403, 40-35-501 — 40-35-504 (Acts 1982, ch. 868, § 1; T.C.A., §§ 40-35-108, 40-43-101— 40-43-104, 40-43-106, 40-43-107, 40-43-109 — 40-43-112, 40-43-201 — 40-43-205, 40-43-207 — 40-43-212, 40-43-214, 40-43-301 — 40-43-304, 40-43-306 — 40-43-309, 40-43-311 — 40-43-315, 40-43-401 — 40-43-403, 40-43-501 — 40-43-504), concerning the Tennessee Criminal Sentencing Reform Act of 1982, was repealed by Acts 1989, ch. 591, § 6.

Acts 2005, ch. 353, § 18 provided that the act, which amended subdivision (6), shall apply to sentencing for criminal offenses committed on or after June 7, 2005. Offenses committed prior to June 7, 2005, shall be governed by prior law, which shall apply in all respects. However, for defendants who are sentenced after June 7, 2005, for offenses committed on or after July 1, 1982, the defendant may elect to be sentenced under the provisions of the act by executing a waiver of such defendant's ex post facto protections. Upon executing such a waiver, all provisions of the act shall apply to the defendant.

Acts 2005, ch. 353, § 19 provided that the act, which amended subdivision (6), shall have no application to sentencing for persons convicted of murder in the first degree, which shall be governed by the provisions of §§ 39-13-202 — 39-13-208.

Cross-References. Penalty for Class C, D or E felonies, § 40-35-111.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 32.196, 32.221.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 3-32-2.

Tennessee Jurisprudence, 4 Tenn. Juris., Automobiles and Other Vehicles, § 33; 8 Tenn. Juris., Criminal Procedure, § 43-45.

Law Reviews.

Extralegal Punishment Factors: A Study of Forgiveness, Hardship, Good Deeds, Apology, Remorse, and Other Such Discretionary Factors in Assessing Criminal Punishment (Paul H. Robinson, Sean E. Jackowitz, and Daniel M. Bartels), 65 Vand. L. Rev. 737 (2012).

The Criminalization of Mental Illness: How Theoretical Failures Create Real Problems in the Criminal Justice System (Georgia Lee Sims), 62 Vand. L. Rev. 1053 (2009).

The Tennessee Court of Criminal Appeals: A Study and Analysis (Daniel J. Foley), 66 Tenn. L. Rev. 427 (1999).

Attorney General Opinions. Restitution under plea agreement exceeding monetary grade of offense, OAG 98-037, 1998 Tenn. AG LEXIS 37 (2/9/98).

NOTES TO DECISIONS

1. Construction.

Guidance as to what will constitute evidence to the contrary under T.C.A. § 40-35-102(6) is found in T.C.A. § 40-35-103(1). State v. Ashby, 823 S.W.2d 166, 1991 Tenn. LEXIS 489 (Tenn. 1991).

When T.C.A. §§ 40-35-102(6) and 40-35-303(b) are read together, it is clear that the legislature has provided in the Criminal Sentencing Reform Act of 1989, T.C.A. § 40-35-101 et seq., that, although probation is not a matter of automatic right, a defendant who meets the requirements of T.C.A. § 40-35-102(6) is vested with a rebuttable presumption that a sentence other than confinement would result in successful rehabilitation. State v. Hartley, 818 S.W.2d 370, 1991 Tenn. Crim. App. LEXIS 463 (Tenn. Crim. App. 1991).

While there is a presumption the defendant is a favorable candidate for alternative sentencing as to a Class E felony, there is no such presumption when the defendant is convicted of a Class B felony. State v. Vanderford, 980 S.W.2d 390, 1997 Tenn. Crim. App. LEXIS 1249 (Tenn. Crim. App. 1997).

Tennessee statutes and case law show that Tennessee, like many other states, does not consider life expectancy when sentencing a defendant. Davis v. Tenn. Dep't of Corr., — S.W.3d —, 2018 Tenn. App. LEXIS 631 (Tenn. Ct. App. Oct. 30, 2018).

2. Standard of Review.

By vesting the trial court with broad discretionary authority in the imposition of sentences, de novo appellate review and the presumption of correctness have ceased to be relevant and the abuse of discretion standard, accompanied by a presumption of reasonableness, applies to within-range sentences that reflect a decision based upon the purposes and principles of sentencing under T.C.A. § 40-35-401(d), including the questions related to probation or any other alternative sentence under T.C.A. § 40-35-102(6). State v. Caudle, 388 S.W.3d 273, 2012 Tenn. LEXIS 824 (Tenn. Nov. 27, 2012).

In an aggravated assault case, the trial court did not abuse its discretion in denying alternative sentencing for defendant, who had three prior convictions for domestic assault. The trial court carefully considered the applicable law, as well as all relevant factors in sentencing defendant as a Range I, standard offender to a minimum three-year sentence for a Class C felony. State v. Simpson, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 941 (Tenn. Crim. App. Oct. 31, 2017).

Because the trial court did not base its decision to impose split confinement solely upon the need for deterrence or solely upon the circumstances of the offense, the heightened standard of review did not apply. State v. Hill, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 46 (Tenn. Crim. App. Jan. 29, 2020).

3. Presumption of Correctness.

The trial court assigned little or no weight to the non-enumerated mitigating factors, in accordance with the discretion permitted it; the presumption of correctness applies to the trial court's determination if it correctly applied the principles of sentencing and its findings are supported by the evidence in the record. State v. Boggs, 932 S.W.2d 467, 1996 Tenn. Crim. App. LEXIS 198 (Tenn. Crim. App. 1996), appeal denied, — S.W.2d —, 1996 Tenn. LEXIS 648 (Tenn. Oct. 14, 1996).

In vehicular homicide case, trial court erred in imposing probation because trial court apparently gave no consideration to previous unsuccessful attempts to rehabilitate defendant through less restrictive measures; presumption of correctness did not attach to trial court's decision. State v. Carter, 254 S.W.3d 335, 2008 Tenn. LEXIS 363 (Tenn. May 19, 2008).

4. —Presumption Rebutted.

Evidence, including defendant's lack of candor, combined with the nature of the offense, and the established need for deterrence supported the trial judge's conclusions that incarceration was necessary, rather than probation or a suspended sentence. State v. Byrd, 861 S.W.2d 377, 1993 Tenn. Crim. App. LEXIS 410 (Tenn. Crim. App. 1993).

Appellant was not entitled to the statutory presumption regarding alternative sentencing because the offense of aggravated rape is a Class A felony and the presumption is limited to Class C, D and E felonies. State v. Smith, 891 S.W.2d 922, 1994 Tenn. Crim. App. LEXIS 455 (Tenn. Crim. App. 1994).

In sentencing for conviction of attempt to commit aggravated sexual battery pursuant to a plea agreement, defendant's request for alternative sentencing was properly denied where it was shown that he had been a pedophile for 40 years and the question of whether he could actually be rehabilitated was open to debate. State v. Jernigan, 929 S.W.2d 391, 1996 Tenn. Crim. App. LEXIS 116 (Tenn. Crim. App. 1996).

There was sufficient evidence to rebut defendant's presumption of entitlement to alternative sentencing in light of the circumstances of the offense including the illegal use of drugs and alcohol, along with the defendant's poor potential for rehabilitation. State v. Batey, 35 S.W.3d 585, 2000 Tenn. Crim. App. LEXIS 293 (Tenn. Crim. App. 2000).

5. Review Considerations.

Circumstances of the defendant's offense (possession with the intent to sell cocaine), did not justify an outright denial of probation where the record showed that defendant's role in the offense was very minor, was not motivated by his personal intent to commit a crime, and was not based upon him having a financial interest in the transaction. State v. Hartley, 818 S.W.2d 370, 1991 Tenn. Crim. App. LEXIS 463 (Tenn. Crim. App. 1991).

Court of criminal appeals' review of a sentence requires an analysis of: (1) The evidence, if any, received at the trial and sentencing hearing; (2) The presentence report; (3) The principles of sentencing and the arguments of counsel relative to sentencing alternatives; (4) The nature and characteristics of the offense; (5) Any mitigating or enhancing factors; (6) Any statements made by the defendant in his own behalf; and (7) The defendant's potential for rehabilitation or treatment. State v. Brewer, 875 S.W.2d 298, 1993 Tenn. Crim. App. LEXIS 837 (Tenn. Crim. App. 1993), appeal denied, — S.W.2d —, 1994 Tenn. LEXIS 119 (Tenn. Apr. 4, 1994); State v. Cole, — S.W.3d —, 2001 Tenn. Crim. App. LEXIS 628 (Tenn. Crim. App. Aug. 10, 2001).

Where defendant appealed from a four-year sentence imposed for violation of an order under the Motor Vehicle Habitual Offenders Act, T.C.A. 55-10-601 et seq., in conducting a de novo review of the sentence the court considered the evidence of defendant's total turnaround in his lifestyle to become a reliable employee and reliable member of society; the presentence report, the principles of sentencing and arguments as to sentencing alternatives; and the fact that the violation arose as a result of aberrant conduct because defendant did not normally drive, in compliance with the order, but only drove as a favor to pull a float in a parade. State v. Martin, 146 S.W.3d 64, 2004 Tenn. Crim. App. LEXIS 62 (Tenn. Crim. App. 2004).

Record sufficiently showed reasons for defendant's sentences because (1) the sentences were within statutory ranges and (2) sentencing purposes and principles were considered, as the court considered defendant's lack of a criminal record and the fact that a gun was used to commit defendant's crime. State v. King, 432 S.W.3d 316, 2014 Tenn. LEXIS 351 (Tenn. Apr. 23, 2014).

Because the trial court relied on multiple bases in denying probation, the heightened standard of review did not apply, and the trial court did not abuse its discretion; the heightened standard of review did not apply because the denial of probation was based on the need to avoid depreciating the seriousness of the offense, the need for deterrence, and the nature and circumstances of the offense. State v. Ward, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 437 (Tenn. Crim. App. July 19, 2019).

6. —Deterrence.

Deterrence is certainly a principle to consider in sentencing, but should be qualified because the element of deterrence is present in every case and its significance in restraining the offender, or curbing the propensity for criminal activity in others, varies widely with the class of offense and the facts of each case. State v. Ashby, 823 S.W.2d 166, 1991 Tenn. LEXIS 489 (Tenn. 1991); State v. Beverly, 894 S.W.2d 292, 1994 Tenn. Crim. App. LEXIS 414 (Tenn. Crim. App. 1994).

In sentencing a 20-year-old defendant upon conviction of vehicular homicide by recklessness, the trial court's finding, based solely on argument of counsel, that incarceration would provide an effective deterrence was not warranted, since such finding cannot be merely conclusory but must be supported by proof. State v. Bingham, 910 S.W.2d 448, 1995 Tenn. Crim. App. LEXIS 105 (Tenn. Crim. App. 1995), rehearing denied, — S.W.2d —, 1995 Tenn. Crim. App. LEXIS 407 (Tenn. Crim. App. May 15, 1995), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 592 (Tenn. Oct. 2, 1995), overruled in part, State v. Hooper, 29 S.W.3d 1, 2000 Tenn. LEXIS 535 (Tenn. 2000), overruled in part, State v. Walker, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 200 (Tenn. Crim. App. Mar. 16, 2017).

In a case involving embezzlement over $200 and theft of property over $10,000, the sentencing court could properly rely upon deterrence in denying an alternative sentence. State v. Millsaps, 920 S.W.2d 267, 1995 Tenn. Crim. App. LEXIS 961 (Tenn. Crim. App. 1995).

Evidence that defendant threatened the victim as she crossed a picket line set up in a labor dispute and then later committed acts of vandalism against her supported a finding that denial of probation was necessary to deter others from committing similar offenses. State v. Davis, 940 S.W.2d 558, 1997 Tenn. LEXIS 127 (Tenn. 1997), superseded by statute as stated in, State v. Bush, — S.W.2d —, 1997 Tenn. Crim. App. LEXIS 592 (Tenn. Crim. App. June 26, 1997), superseded by statute as stated in, State v. Thrasher, — S.W.3d —, 2000 Tenn. Crim. App. LEXIS 128 (Tenn. Crim. App. Feb. 15, 2000).

The record must contain some proof of the need for deterrence before a defendant who is otherwise eligible for probation or other alternative sentence may be incarcerated; in retaining this proof requirement, all prior cases which have found certain crimes to be “deterrable per se” are necessarily overruled. State v. Hooper, 29 S.W.3d 1, 2000 Tenn. LEXIS 535 (Tenn. 2000).

After noting the cavalier attitude of the defendant and the other witnesses regarding violence, the court properly found that the sentence was necessary to avoid depreciating the seriousness of the offense and to deter others. State v. Inlow, 52 S.W.3d 101, 2001 Tenn. Crim. App. LEXIS 40 (Tenn. Crim. App. 2001).

Trial courts may sentence a defendant to a term of incarceration based solely on a need for deterrence when the record contains evidence which would enable a reasonable person to conclude that: (1) Deterrence is needed in the community, jurisdiction or state; and (2) The defendant's incarceration may rationally serve as a deterrent to others similarly situated and likely to commit similar crimes. State v. Fields, 40 S.W.3d 435, 2001 Tenn. LEXIS 58 (Tenn. 2001).

7. —Expunged Conviction.

The criminal acts underlying an expunged conviction may properly be considered to determine whether a defendant is a suitable candidate for alternative sentencing. State v. Lane, 3 S.W.3d 456, 1999 Tenn. LEXIS 430 (Tenn. 1999).

8. —Prior Criminal Convictions.

Nothing in the Criminal Sentencing Reform Act of 1989, T.C.A. § 40-35-101 et seq., prohibits consideration of prior criminal convictions and conduct for both enhancement and consecutive sentencing purposes as long as those sentences comply with the purposes and principles of the 1989 act, and, as in the 1982 Sentencing Act, such sentences do not violate double jeopardy. State v. Davis, 825 S.W.2d 109, 1991 Tenn. Crim. App. LEXIS 728 (Tenn. Crim. App. 1991), appeal denied, — S.W.2d —, 1992 Tenn. LEXIS 125 (Tenn. Jan. 27, 1992).

9. —Seriousness of Offense.

In sentencing a 20-year-old defendant upon conviction of vehicular homicide by recklessness, the trial court's finding that a sentence other than confinement would depreciate the seriousness of the offense was not supported by evidence indicating that the circumstances of the offense, as committed, were especially violent, horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated degree. State v. Bingham, 910 S.W.2d 448, 1995 Tenn. Crim. App. LEXIS 105 (Tenn. Crim. App. 1995), rehearing denied, — S.W.2d —, 1995 Tenn. Crim. App. LEXIS 407 (Tenn. Crim. App. May 15, 1995), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 592 (Tenn. Oct. 2, 1995), overruled in part, State v. Hooper, 29 S.W.3d 1, 2000 Tenn. LEXIS 535 (Tenn. 2000), overruled in part, State v. Walker, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 200 (Tenn. Crim. App. Mar. 16, 2017).

Defendant who was convicted of leaving the scene of an accident where a death occurred, was clearly not an offender for whom incarceration is a priority. State v. Williams, 52 S.W.3d 109, 2001 Tenn. Crim. App. LEXIS 20 (Tenn. Crim. App. 2001).

Where the defendants stole nearly half a million dollars from an employer over a two-year period by check forgery, they were properly sentenced to eight years of confinement for theft of property over sixty thousand dollars. Based on the seriousness and excessive nature of the offense, alternative sentencing was inappropriate. State v. Trotter, 201 S.W.3d 651, 2006 Tenn. LEXIS 558 (Tenn. 2006).

In a case in which defendant pleaded guilty to aggravated sexual battery, the trial court properly exercised its discretion when it ordered that defendant's sentence be served in confinement based on the seriousness of the offenses and their effect on the victim. State v. Kubelick, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 920 (Tenn. Crim. App. Dec. 26, 2018).

10. Restitution.

The inability to make restitution could not form the basis for a denial of an alternative sentence. State v. Millsaps, 920 S.W.2d 267, 1995 Tenn. Crim. App. LEXIS 961 (Tenn. Crim. App. 1995).

The trial court did not abuse its discretion in ordering use of the proceeds from the sale of defendant's home for partial restitution, not for the payment of attorney fees. State v. Millsaps, 920 S.W.2d 267, 1995 Tenn. Crim. App. LEXIS 961 (Tenn. Crim. App. 1995).

Trial court erred in attempting to facilitate payment of its order of restitution by requiring defendant to legitimate her daughter as a condition of probation and pursue child support. State v. Mathes, 114 S.W.3d 915, 2003 Tenn. LEXIS 724 (Tenn. 2003).

11. Fines.

Fines are reviewable as an aspect of criminal sentencing. State v. Bryant, 805 S.W.2d 762, 1991 Tenn. LEXIS 95 (Tenn. 1991).

Trial court did not err in imposing the maximum fines allowed because defendant did not object to or argue against the fines imposed by the jury at the sentencing hearing, and defense counsel acknowledged that she had the ability to pay the fines; the trial court noted that defendant had at least twelve speeding convictions, that she used marijuana even though she knew it was illegal in Tennessee, and that she was not a truthful person. State v. Long, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 485 (Tenn. Crim. App. Oct. 3, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 611 (Tenn. Sept. 17, 2018).

12. Consecutive Sentences.

In considering consecutive sentencing the trial court is required to ensure that the aggregate sentence imposed should be the least severe measure necessary to protect the public from defendant's future criminal conduct and should bear some relationship to defendant's potential for rehabilitation. State v. Desirey, 909 S.W.2d 20, 1995 Tenn. Crim. App. LEXIS 304 (Tenn. Crim. App. 1995).

In a child sexual abuse case, although consecutive sentencing was permissible under T.C.A. § 40-35-115(b)(5), defendant's twelve-year consecutive sentences, for a total of nintey-six years, were not reasonably related to the severity of his offenses; rather, the circumstances of the case indicated that a combination of concurrent and consecutive sentences was appropriate in relation to the severity of the offenses and was the least severe measures necessary to deter defendant's future criminal conduct, to protect society, and to deter others who were similarly situated and likely to commit similar offenses. State v. Schiefelbein, 230 S.W.3d 88, 2007 Tenn. Crim. App. LEXIS 138 (Tenn. Crim. App. Feb. 8, 2007), modified, 230 S.W.3d 88, 2007 Tenn. Crim. App. LEXIS 213 (Tenn. Crim. App. Mar. 7, 2007).

Imposition of consecutive sentences was proper pursuant to T.C.A. § 40-35-115(b)(5), because: (1) Defendant was the minor victim's sole parent and guardian; (2) The sexual offenses went undetected for three or four years; (3) The victim testified as to numerous types of sexual abuse; (4) Defendant made the victim engage in sexual activities with another minor victim while he watched; and (5) A psychological evaluation outlined in detail the substantial emotional and psychological impact that defendant's conduct had on the victim with a recommendation that the victim continue with therapy on a long-term basis; pursuant to T.C.A. § 40-35-102(1) and T.C.A. § 40-35-103(2), a combination of concurrent and consecutive sentences was appropriate in relation to the severity of the offenses of rape of a child and aggravated sexual battery and were the least severe measures necessary to deter defendant's future criminal conduct, to protect society, and to deter others who were similarly situated and might be likely to commit similar offenses. State v. Osborne, 251 S.W.3d 1, 2007 Tenn. Crim. App. LEXIS 689 (Tenn. Crim. App. Aug. 28, 2007), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 59 (Tenn. Jan. 28, 2008).

In defendant's rape case, consecutive sentences were proper because the trial court found that “defendant clearly was a man with such extensive criminal history that he may be found a professional criminal and that has been his major source of livelihood.” The trial court also found that “the community and the citizens are surely endangered by the presence of defendant on the streets.” State v. Scarborough, 300 S.W.3d 717, 2009 Tenn. Crim. App. LEXIS 191 (Tenn. Crim. App. Mar. 17, 2009).

Imposition of partial consecutive sentences after defendant was convicted of drug charges was proper under T.C.A. §§ 40-35-102(1) and 40-35-103(2) because defendant's criminal activity was extensive and he was an appropriate candidate for partial consecutive sentencing. Prior criminal activity did not require prior convictions; prior criminal behavior was sufficient. State v. Hayes, 337 S.W.3d 235, 2010 Tenn. Crim. App. LEXIS 684 (Tenn. Crim. App. Aug. 18, 2010), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 152 (Tenn. Feb. 17, 2011).

Imposition of consecutive sentences was affirmed because defendant's criminal history was extensive, defendant was a professional criminal, and defendant was a dangerous offender; defendant's behavior indicated little or no regard for human life and defendant had no hesitation about committing a crime in which the risk to human life was high. State v. Richardson, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 407 (Tenn. Crim. App. June 18, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 670 (Tenn. Sept. 18, 2012).

Trial court erred in imposing consecutive sentences under T.C.A. § 40-35-115(b) on defendant as the trial court rested its determination of consecutive sentencing on the basis of defendant's status as a “dangerous offender,” which required it to conclude that an extended sentence was necessary to protect the public from further criminal conduct by defendant and that consecutive sentencing was reasonably related to the severity of the evidence; yet, there was no evidence in the record that the trial court even considered the two Wilkerson factors before ordering consecutive sentences. State v. Pollard, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 749 (Tenn. Crim. App. Sept. 17, 2012), aff'd, 432 S.W.3d 851, 2013 Tenn. LEXIS 1011 (Tenn. Dec. 20, 2013).

Although defendant was eligible for consecutive sentencing, the trial court abused its discretion when it ordered partial consecutive sentencing that resulted in a total sentence of 44 years for defendant's crimes of aggravated robbery, theft by shoplifting, and attempted aggravated robbery; the robberies were committed with a toy gun, no one was injured, two victims knew the gun was plastic, defendant was 49 years old and already serving a 12-year sentence, and the sentence was in effect a sentence of life imprisonment, was not justly deserved, and was not the least severe measure necessary. State v. Biggs, 482 S.W.3d 923, 2015 Tenn. Crim. App. LEXIS 795 (Tenn. Crim. App. Sept. 30, 2015).

Trial court did not err in imposing partial consecutive sentences because defendant's convictions satisfied at least one of the categories set forth in subsection (b); defendant was convicted of four statutory offenses involving sexual abuse of his minor stepdaughter, and the aggravating circumstances surrounding the convictions clearly warranted consecutive sentencing because the victim testified at length about the physical and mental damage she suffered as a result of defendant's actions. State v. Pompa, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 196 (Tenn. Crim. App. Mar. 15, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 453 (Tenn. July 28, 2017).

Trial court did not err in ordering additional consecutive sentencing and confinement upon resentencing after defendant's community corrections sentence had been revoked as defendant had an extensive record of criminal activity, including 45 felony convictions; she was charged with additional felonies; she admitted that she had used drugs since the age of 18; and she continued to use drugs after being released on community corrections. State v. Britton, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 680 (Tenn. Crim. App. Aug. 3, 2017).

In a case in which defendant was convicted of aggravated assault and child abuse, and sentenced to consecutive prison terms of six and four years, for a total effective sentence of 10 years, the evidence supported the trial court's imposition of consecutive sentences under the dangerous offender category because defendant, the two-month-old victim's caretaker, was frustrated with the victim's fussiness and was rough with him; the victim sustained 23 fractures throughout his body; defendant admitted to hearing a “pop” sound when aggressively handling the infant; and the trial court found it was necessary to protect the public from further criminal conduct and, in particular, any young child that defendant might come in contact with. State v. Crawford, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 791 (Tenn. Crim. App. Aug. 31, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 870 (Tenn. Dec. 6, 2017).

Trial court did not abuse its discretion by imposing consecutive sentencing on the basis of defendant's extensive criminal history because defendant had two Class A misdemeanor convictions and one Class B misdemeanor conviction, and she had numerous speeding violations in the past eight years; despite being injured in an accident while driving under the influence, defendant continued to drive while under the influence of various intoxicants and blatantly disregarded the rules of the road. State v. Long, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 485 (Tenn. Crim. App. Oct. 3, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 611 (Tenn. Sept. 17, 2018).

Trial court properly exercised its discretion in ordering defendant to serve his aggravated burglary sentence consecutively as defendant was a dangerous offender because the trial court found the circumstances surrounding the offenses were aggravated as defendant robbed three individuals at gunpoint in front of a four-year-old child; defendant committed the instant offenses while he was out on bond for other violent offenses, aggravated assault, vandalism, and reckless endangerment; and defendant had an extensive juvenile criminal history, had dropped out of high school, and was involved in gang activity. State v. Johnson, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 12 (Tenn. Crim. App. Jan. 5, 2018).

Trial court properly ordered consecutive sentencing because the sentences were reasonably related to the severity of the offenses, and defendant was a dangerous offender; defendant operated a vehicle under the influence of alcohol, he allowed children into the vehicle, none of the children wore seatbelts, and defendant chose to drive over a hill at speeds up to one hundred miles per hour. State v. Burnett, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 158 (Tenn. Crim. App. Feb. 28, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 439 (Tenn. July 18, 2018).

Trial court did not abuse its discretion by ordering defendant to serve his life sentences consecutively because it strongly believed that the facts and defendant's criminal history outweighed any rehabilitation; by the time defendant had turned twenty years old, he had committed two first degree murders, two especially aggravated kidnappings, two especially aggravated robberies, two aggravated robberies, and one aggravated assault, and he did not introduce any exhibits regarding rehabilitation. State v. Berry, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 618 (Tenn. Crim. App. Aug. 15, 2018).

Trial court properly imposed consecutive sentencing for defendant's convictions of especially aggravated robbery and first-degree murder because defendant was a dangerous offender as the trial court described in detail the horrific injuries that the victim suffered after defendant attacked him in his own home without provocation; and consecutive sentencing was reasonably related to the severity of the offenses and the need to protect the public from defendant's future criminal conduct. State v. Belt, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 208 (Tenn. Crim. App. Mar. 29, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 327 (Tenn. July 25, 2019).

Defendant's partial consecutive sentences were not an abuse of discretion because, (1) while defendant had been released from prison for defendant's most recent crime almost ten years earlier without incident, this fact did not bar a trial court from finding defendant had an extensive criminal history, and (2) defendant was previously convicted of four drug felonies and nine misdemeanors. State v. Hudson, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 229 (Tenn. Crim. App. Apr. 8, 2020).

Trial court did not abuse its discretion by ordering defendant to serve sentences for first degree premeditated murder and abuse of a corpse consecutively to one another, as well as to prior consecutive sentences for murder and solicitation to commit murder, because the court found that defendant was an offender whose record of criminal activity was extensive and classified defendant as a dangerous offender. Given the severity of defendant's crimes, it was essential to protect the public from further criminal conduct by defendant. State v. Mendenhall, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 343 (Tenn. Crim. App. May 14, 2020).

13. Alternative Sentencing.

T.C.A. § 40-35-102(5) establishes a rebuttable presumption in favor of rehabilitation upon early convictions. State v. Ashby, 823 S.W.2d 166, 1991 Tenn. LEXIS 489 (Tenn. 1991).

If the requirements for eligibility to fall under the presumption of T.C.A. § 40-35-102(6) are met, the trial court must presume that the defendant is subject to alternative sentencing, unless the court is presented with evidence sufficient to overcome the presumption, then it may sentence the defendant to confinement. State v. Ashby, 823 S.W.2d 166, 1991 Tenn. LEXIS 489 (Tenn. 1991).

The imposition of sentences must accede to the reality that the state does not have available sufficient prison facilities to accommodate all persons who, according to traditional concepts of punishment, would be incarcerated. State v. Ashby, 823 S.W.2d 166, 1991 Tenn. LEXIS 489 (Tenn. 1991).

The legislature has provided that, although probation is not a matter of automatic entitlement, a defendant who does not meet the parameters of T.C.A. § 40-35-102(5) is vested with a rebuttable presumption that a sentence other than incarceration would result in successful rehabilitation. State v. Fletcher, 805 S.W.2d 785, 1991 Tenn. Crim. App. LEXIS 54 (Tenn. Crim. App. 1991).

The alternative sentencing presumption in T.C.A. § 40-35-102(6) is not applicable to the issue of judicial diversion. State v. Anderson, 857 S.W.2d 571, 1992 Tenn. Crim. App. LEXIS 712 (Tenn. Crim. App. 1992).

The trial court must presume that a defendant sentenced to eight years or less and not an offender for whom incarceration is a priority is subject to alternative sentencing, and that a sentence other than incarceration would result in successful rehabilitation unless sufficient evidence rebuts the presumption. State v. Byrd, 861 S.W.2d 377, 1993 Tenn. Crim. App. LEXIS 410 (Tenn. Crim. App. 1993).

The fact that the death of another results from the defendant's conduct does not, alone, make the offense sufficiently violent to justify a denial of probation, nor can it be viewed as sufficient evidence to overcome the presumption in T.C.A. § 40-35-102(6). State v. Butler, 880 S.W.2d 395, 1994 Tenn. Crim. App. LEXIS 213 (Tenn. Crim. App. 1994); State v. Smith, 898 S.W.2d 742, 1994 Tenn. Crim. App. LEXIS 685 (Tenn. Crim. App. 1994).

The presumption regarding alternative sentencing does not apply to an accused convicted of a misdemeanor. State v. Williams, 914 S.W.2d 940, 1995 Tenn. Crim. App. LEXIS 653 (Tenn. Crim. App. 1995).

Where the amount of money stolen determined the offenses for which defendant was charged, the trial court could not deny an alternative sentence on the basis of the amount of money stolen. State v. Millsaps, 920 S.W.2d 267, 1995 Tenn. Crim. App. LEXIS 961 (Tenn. Crim. App. 1995).

Defendant who was a standard offender of four class C felonies was afforded a presumption favoring the imposition of an alternative sentence despite his juvenile history of unruliness adjudications. State v. Zeolia, 928 S.W.2d 457, 1996 Tenn. Crim. App. LEXIS 173 (Tenn. Crim. App. 1996).

A defendant who meets the criteria of T.C.A. § 40-35-102(6) is presumed eligible for alternative sentencing unless sufficient evidence rebuts the presumption; however, offenders who meet the criteria are not automatically entitled to such relief because sentencing issues should be determined by the facts and circumstances presented in each case. State v. Nunley, 22 S.W.3d 282, 1999 Tenn. Crim. App. LEXIS 712 (Tenn. Crim. App. 1999).

Defendant was eligible for probation under T.C.A. § 40-35-303(a), but defendant was not entitled to a statutory presumption in favor of an alternative sentence under T.C.A. § 40-35-102(6) because defendant was sentenced as a Range II offender; the evidence was more than sufficient to justify the denial of probation under T.C.A. § 40-35-103(1) because alternative sentencing would have depreciated the seriousness of the offense. State v. Souder, 105 S.W.3d 602, 2002 Tenn. Crim. App. LEXIS 986 (Tenn. Crim. App. 2002), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 269 (Tenn. Mar. 17, 2003).

Because defendant was convicted of vehicular assault in violation of T.C.A. § 39-13-106(a), a class D felony, defendant was entitled to the presumption that defendant was a favorable candidate for alternative sentencing pursuant to T.C.A. § 40-35-102(6); given that the trial court, in denying probation, improperly placed great weight on defendant's testimony at the sentencing hearing, the trial court was to reconsider probation for defendant, who established that an alternative sentence of some kind was appropriate. State v. Keathly, 145 S.W.3d 123, 2003 Tenn. Crim. App. LEXIS 438 (Tenn. Crim. App. 2003).

Where defendant was indicted for rape of a child after impregnating a 12-year-old girl, he pleaded guilty to attempted rape of a child and received a sentence of eight years; the trial court erred in relying on polygraph test results to deny defendant probation; however, the other factors showed that defendant was not suitable for probation: defendant had a sexual preference for minors, a poor work history, and a moderate risk for re-offending. State v. Pierce, 138 S.W.3d 820, 2004 Tenn. LEXIS 634 (Tenn. 2004).

In a case where defendant was convicted, upon his guilty plea, of robbery, possession of a weapon on school property, and assault, the trial court did not err in failing to grant defendant full probation under T.C.A. § 40-35-303(b) as: (1) The presentence report contained defendant's admission that defendant had never been employed, had dropped out of high school, and had not yet obtained a General Equivalency Diploma; (2) In the report, defendant admitted being a member of a gang; (3) Defendant's extensive juvenile record was particularly relevant to potential for rehabilitation as defendant was only 17 when defendant committed the offenses; and (4) Defendant's continued criminal behavior clearly demonstrated a lack of rehabilitative potential. State v. Farmer, 239 S.W.3d 752, 2007 Tenn. Crim. App. LEXIS 277 (Tenn. Crim. App. Mar. 28, 2007).

Record supported a trial court's denial of defendant's request for probation or split confinement upon his conviction for reckless aggravated assault. While defendant was entitled to be considered as a favorable candidate for alternative sentencing options under T.C.A. § 40-35-102(5), (6), a review of the factors in T.C.A. § 40-35-103 revealed that defendant had a prior conviction for misdemeanor theft, that he violated the terms of probation imposed upon his conviction of that offense, that he had struggled with alcohol and drug use from an early age, that the offense in the case involving the abuse of his 23-month-old child was serious, and that defendant's lack of candor about what happened reflected negatively on his potential for rehabilitation. State v. Kinnard, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 579 (Tenn. Crim. App. July 27, 2012).

In denying alternative sentencing, the trial court did not err by concluding that defendant's drug issues would best be treated in a correctional facility rather than in the community. Defendant failed to establish an abuse of discretion or otherwise overcome the presumption of reasonableness afforded to the trial court's denial of alternative sentencing. State v. Wilburn, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 82 (Tenn. Crim. App. Feb. 6, 2017).

Defendant was a favorable candidate for alternative sentencing because he was convicted of a Class C felony, received a six-year sentence, and was not convicted of any of the offenses listed in the statute rendering him ineligible for an alternative sentence. State v. Coleman, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 659 (Tenn. Crim. App. July 28, 2017).

It was not appropriate to affirmatively order that defendant be placed on probation because the trial court did not adequately comply with the prerequisites that had to be satisfied before imposing sentence, and thus, the proper remedy was a remand for a new sentencing hearing; the trial court made no findings regarding the particular circumstances surrounding the defendant's commission of the crime and failed to explain any determinations it made regarding his amenability to correction. State v. Trent, 533 S.W.3d 282, 2017 Tenn. LEXIS 710 (Tenn. Nov. 3, 2017).

In a case in which defendant pled guilty to reckless aggravated assault and leaving the scene of an accident resulting in injury, the case was remanded for a new sentencing hearing because a court had to place on the record what enhancement or mitigating factors were considered, if any, as well as the reasons for the sentence, but the trial court did not specify which factors applied to defendant's felony sentence; and the record of the sentencing hearing was part of the record of the case and had to include specific findings of fact upon which application of the sentencing principles was based, but the trial court failed to make any findings with regard to its imposition of consecutive sentencing or its denial of alternative sentencing. State v. Bentley, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 706 (Tenn. Crim. App. Nov. 4, 2019).

14. Denial of Alternative Sentencing Affirmed.

Trial court did not abuse its discretion in denying defendant's request for an alternative sentence and imposing a sentence of confinement because it carefully considered defendant's prior criminal history and his prior probationary sentences and reasoned that he was not a good candidate for alternative sentencing; defendant had outstanding warrants, a wide variety of prior convictions, and a prior violation of probation charge that was dismissed because he was unable to be located. State v. Taylor, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 16 (Tenn. Crim. App. Jan. 11, 2017).

Trial court did not abuse its discretion by denying defendant probation or an alternative sentence because he had a long history of criminal conduct, he had on more than one occasion failed to comply with measures less restrictive than incarceration, the instant case involved substantial damage to the victims, and defendant's confinement was necessary to avoid depreciating the seriousness of the offense and was particularly suited to provide an effective deterrence to others. State v. Cannady, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 27 (Tenn. Crim. App. Jan. 17, 2017).

In a case where defendant was indicted for second degree murder, but convicted of the lesser-included offense of voluntary manslaughter, the trial court did not err in denying defendant's request for an alternative sentence because, although defendant did not have a prior criminal history, and only one enhancement factor was applicable — that defendant possessed and employed a firearm during the offense, the trial court did not find any applicable mitigating factors; the trial court found that defendant was not an appropriate candidate for alternative sentencing as she was totally unrepentant from a responsibility standpoint; and the trial court found that giving defendant probation would depreciate the seriousness of the offense. State v. Elliott, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 55 (Tenn. Crim. App. Jan. 26, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 300 (Tenn. May 28, 2017).

In a case where defendant pled guilty to aggravated burglary, as a Range I standard offender, the trial court did not err in denying alternative sentencing to defendant and in sentencing him to a term of imprisonment because defendant had already received two sentences to be served on probation and he failed to comply with the terms of his probation on at least two occasions; although the trial court did not properly find that there was a need for deterrence, the trial court determined that defendant's long history of criminal conduct made imprisonment necessary to protect society; and the trial court was only required under the Sentencing Act to find one reason to properly confine defendant to prison and deny alternative sentencing. State v. Allen, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 130 (Tenn. Crim. App. Feb. 24, 2017).

In a case where defendant pled guilty to two counts of aggravated burglary and one count of aggravated assault, the trial court did not err in imposing a sentence of confinement because the trial court engaged in a detailed and thorough analysis to determine whether defendant should be granted judicial diversion or probation; and the trial court ultimately determined that the nature and circumstances of the offenses, that the need to avoid depreciating the seriousness of the offenses, and the fact that confinement was particularly suited to provide an effective deterrent to others likely to commit similar offenses justified the denial of an alternative sentence. State v. Smith, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 208 (Tenn. Crim. App. Mar. 20, 2017).

Trial court properly sentenced defendant as a Range I, standard offender to 10 years for possession of cocaine and denied his request for alternative sentencing because he did not contest the enhancement or mitigating factors found by the trial court, and, while defendant was eligible for alternative sentencing where his sentence was 10 years or less, he was not a favorable candidate for alternative sentencing inasmuch as he was convicted of a Class B felony, had a prior criminal record, was on probation at the time the offense occurred, never sought treatment for his drug addiction, and his potential for rehabilitation was poor. State v. Boykin, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 229 (Tenn. Crim. App. Mar. 27, 2017).

Because defendant was convicted of three Class B felonies, two counts of facilitation of aggravated child abuse and one count of facilitation of aggravated child neglect, he was not a favorable candidate for alternative sentencing, plus the trial court found confinement necessary to avoid depreciating the seriousness of the offense and would provide an effective deterrence to others; the trial court properly relied on defendant's history, the seriousness of the offense, and general deterrence in denying alternative sentencing. State v. Ricketts, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 331 (Tenn. Crim. App. May 5, 2017).

Trial court did not abuse its discretion by sentencing defendant as a multiple offender to 10 years in the Department of Correction at 35% instead of alternative sentencing after he pleaded guilty to being a convicted felon in possession of a firearm with a prior violent felony because the record showed that the trial court considered the relevant sentencing principles and applied them to the facts of the case and defendant had shown many times that he was unable to successfully complete a sentence involving probation or other forms of release into the community. State v. Ford, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 348 (Tenn. Crim. App. May 5, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 479 (Tenn. Aug. 18, 2017).

Based on defendant's sentence of 11 years for vehicular homicide by intoxication, the trial court did not abuse its discretion by denying defendant an alternative sentence because defendant was not eligible for an alternative sentence and could not have received a sentence of split confinement as the sentence imposed was for more than 10 years. State v. Bishop, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 395 (Tenn. Crim. App. May 16, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 599 (Tenn. Sept. 22, 2017).

Trial court did not err by not sentencing defendant to community corrections because the trial court believed that confinement was necessary to protect society by restraining a defendant who had a long history of criminal conduct; despite his convictions and receiving probationary sentences previously, he continued to reoffend; and his potential for rehabilitation was poor. State v. Jones, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 523 (Tenn. Crim. App. June 21, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 620 (Tenn. Sept. 21, 2017).

In a case in which defendant pled guilty to three counts of forgery and received a total effective sentence of six years in the Tennessee Department of Correction, the trial court did not err in denying defendant alternative sentencing, specifically drug court, because the trial court found that considering defendant's criminal history, commission of an offense while on bond, previous failures to comply with the terms of release, and breach of a private trust, he was not a good candidate for drug treatment. State v. Garwood, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 573 (Tenn. Crim. App. June 30, 2017).

Defendant's sentence of 10 years, to be served consecutively to any unexpired sentences, for the merged offenses of the sale of less than .5 grams of cocaine and of the delivery of less than .5 grams of cocaine was not excessive because the enhancement factors that defendant had a history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range, and that, before trial or sentencing, he had failed to comply with the conditions of a sentence involving release into the community were properly applied; his sentence was within the applicable range for his offense; and he was unable to successfully complete a sentence involving probation or other forms of release into the community. State v. Henderson, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 600 (Tenn. Crim. App. July 6, 2017).

Trial court did not abuse its discretion when it imposed incarceration rather than an alternative sentence after finding that the circumstances of the offense were horrifying, shocking, and reprehensible such that incarceration was appropriate, defendant participated in the meticulous cleaning of the scene, defendant failed to call the authorities when her boyfriend, who killed the victim, left the home, and defendant prepared for a vacation when her boyfriend wanted to leave town. State v. Harris, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 625 (Tenn. Crim. App. July 17, 2017).

Trial court properly denied an alternative sentence based on defendant's criminal history and probation violations, and his five-year sentences for three counts of possessing cocaine with intent to sell were within the statutory range under T.C.A. § 39-17-417(c)(2)(A), 40-35-112(a)(3); the trial court carefully considered the evidence, enhancement and mitigating factors under T.C.A. §§ 40-35-113, 40-35-114, and the purposes and principles of sentencing under T.C.A. §§ 40-35-210, 40-35-102, 40-35-103, and no abuse of discretion was found. State v. Cogshell, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 641 (Tenn. Crim. App. July 21, 2017).

Defendant failed to establish an abuse of discretion or overcome the presumption of reasonableness afforded to the trial court's denial of alternative sentencing because the record supported the determination that incarceration was necessary to avoid depreciating the seriousness of the offense; the presentence report indicated that defendant's prior convictions could have rendered him a Range II, multiple offender, and he failed to successfully complete probation for a felony theft conviction. State v. Coleman, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 659 (Tenn. Crim. App. July 28, 2017).

In a case in which defendant pled guilty to one count of robbery and two counts of assault, and received a total effective sentence of eight years, 11 months and 29 days, the trial court did not abuse its discretion by imposing a sentence of confinement because, although defendant received a sentence of less than 10 years, he was sentenced as a Range II, multiple offender and, thus, he was not a favorable candidate for probation; defendant was not eligible for community corrections as he was convicted of the felony offense of robbery, a crime against the person; defendant had prior probation and community corrections sentences revoked; and defendant's criminal record and the seriousness of the offense supported a sentence of confinement. State v. Churchwell, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 722 (Tenn. Crim. App. Aug. 15, 2017).

In a case in which defendant pled guilty to aggravated burglary and theft of property valued at less than $500, the trial court did not abuse its discretion when it ordered defendant to serve his sentence in confinement because he caused his victims to change their lives because of their fear and feeling of lack of security in their homes; the trial court specifically stated that it was imperative to confine defendant in order to avoid depreciating the seriousness of the crime; and the trial court found that defendant had a serious drug problem that could be addressed while he was incarcerated, and it ordered drug treatment, with the promise that it would review the case again after defendant completed treatment. State v. Thomas, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 760 (Tenn. Crim. App. Aug. 24, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 877 (Tenn. Dec. 6, 2017).

Defendant failed to show that the trial court abused its discretion by denying defendant's request for alternative sentencing and in ordering defendant to serve a sentence in confinement because the court determined that incarceration was necessary to avoid depreciating the seriousness of the offense. Furthermore, although the trial court noted that defendant's criminal history was not extensive, the court noted defendant's prior convictions for theft, assault, harassment, obstruction of service of process, and domestic assault. State v. Mims, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 979 (Tenn. Crim. App. Nov. 22, 2017).

Trial court did not err in denying defendant probation or an alternative sentence because, although defendant's eight-year sentence for child abuse was for less than 10 years, and he was eligible for probation, as a Range II, multiple offender, he was not considered a favorable candidate for alternative sentencing; he had an extensive prior criminal history and measures less restrictive than confinement had been unsuccessfully applied to him previously; and the trial court found confinement necessary to avoid depreciating the seriousness of the offense of child abuse of a mentally handicapped child. State v. Gerg, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1012 (Tenn. Crim. App. Dec. 7, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 179 (Tenn. Mar. 14, 2018).

Trial court did not err in ordering that defendant serve the 10-year sentence for attempted conspiracy to manufacture more than 300 grams of methamphetamine in confinement, and in denying defendant probation because the trial court engaged in a detailed and thorough analysis to determine whether defendant should be granted anything less than a sentence of full confinement and it found that defendant had a history of criminal convictions, including three felony convictions committed while on probation; he had, at least two, possibly three probation revocations; and the facts and circumstances surrounding the offenses and the nature of the offenses included cooking methamphetamine when there were children around. State v. Kilgore, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 13 (Tenn. Crim. App. Jan. 10, 2018).

In a case in which defendant pled guilty to reckless aggravated assault, reckless endangerment, driving under the influence, simple possession of buprenophine, and simple possession of marijuana, the trial court did not err in ordering that defendant serve his effective two-year sentence in confinement because defendant's extensive criminal history and his lack of success while on probation for previous offenses justified the denial of alternative sentencing as the 29-year-old defendant had prior convictions for aggravated burglary, theft, two counts of manufacturing a controlled substance, possession of a gun during the sale of marijuana, and grand larceny; and he violated his probation on the aggravated burglary and theft convictions. State v. Jones, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 39 (Tenn. Crim. App. Jan. 19, 2018).

Trial court did not abuse its discretion in denying defendant an alternative sentence, when defendant pleaded guilty to burglary and multiple counts of forgery, because the court considered defendant's criminal history, defendant was facing additional charges at the time of sentence, and previous attempts at alternative sentencing had failed. While defendant testified to being addicted to drugs and alcohol, there was no evidence that treatment of defendant's issues was best served in the community rather than in a correctional institution. State v. Shields, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 70 (Tenn. Crim. App. Jan. 30, 2018).

Trial court did not abuse its discretion in denying alternative sentencing because it considered the relevant sentencing considerations; because defendant was determined to be a Range II, multiple offender, he was not a favorable candidate for alternative sentencing. State v. Gordon, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 117 (Tenn. Crim. App. Feb. 20, 2018).

Trial court properly ordered that defendant serve her sentences in confinement because it found that confinement was necessary to protect society from defendant and that she lacked potential for rehabilitation; as a Range II, multiple offender, defendant was eligible for alternative sentencing, but she was not considered a favorable candidate for alternative sentencing. State v. Hottiman, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 159 (Tenn. Crim. App. Feb. 28, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 455 (Tenn. July 19, 2018).

Trial court properly ordered that defendant serve her sentences in confinement because it found that confinement was necessary to protect society from defendant and that she lacked potential for rehabilitation; the trial court was greatly troubled by defendant's likelihood to re-offend and her lack of potential for rehabilitation, and it stated defendant posed a threat to the public given her prior history and her continual disregard of conforming her conduct to the requirements of the law. State v. Hottiman, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 159 (Tenn. Crim. App. Feb. 28, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 455 (Tenn. July 19, 2018).

In a case in which defendant, the victim's grandfather, was convicted of attempted rape and attempted incest, the trial court did not abuse its discretion by denying defendant an alternative sentence because the evidence presented at trial and at the sentencing hearing established that the victim was traumatized and hurt by defendant's actions and that the impact on defendant's family was substantial; both the nature of defendant's relationship to the victim and the violation of her trust in him were particularly detrimental to the victim; and defendant's inappropriate sexual behavior towards the victim lasted over a period of two years. State v. Davis, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 189 (Tenn. Crim. App. Mar. 14, 2018).

Trial court did not abuse its discretion by denying defendant's request for an alternative sentence and by ordering confinement, after defendant's conviction for vehicular homicide by intoxication, reckless endangerment, and failure to exercise due care while operating a motor vehicle, because defendant's children were unrestrained in defendant's car, defendant was not forthcoming about drug use, defendant showed a disregard for others, and confinement was necessary to avoid depreciating the seriousness of the offense and for deterrence. State v. Robinson, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 200 (Tenn. Crim. App. Mar. 19, 2018).

Trial court properly denied alternative sentencing because, while defendant was a favorable candidate for alternative sentencing, the trial court found that defendant had a criminal history in addition to the five offenses at issue, that he was previously granted either partial suspended sentences or totally suspended sentences, and that there was a potential for defendant to be a “danger.” State v. Carter, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 409 (Tenn. Crim. App. May 25, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 587 (Tenn. Sept. 13, 2018).

Defendant's criminal record adequately supported the denial of an alternative sentence because the trial court followed the statutory sentencing procedure, properly weighing the factors and principles in denying alternative sentencing, and placed its reasoning on the record; accordingly, defendant failed to establish an abuse of discretion or otherwise overcome the presumption of reasonableness afforded to the denial of alternative sentencing, including probation. State v. Madden, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 429 (Tenn. Crim. App. June 5, 2018).

Trial court properly ordered defendant to serve her sentence in confinement because she was not a favorable candidate for alternative sentencing based on her history of drug-related convictions and multiple failed opportunities to serve an alternative sentence, and the trial court also expressed concern about the children in defendant's life to whom she was exposing her drug use and involvement in illicit drug sales. State v. Maddle, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 438 (Tenn. Crim. App. June 7, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 564 (Tenn. Sept. 13, 2018).

Trial court did not err in ordering defendant to serve his six-year sentence for attempted aggravated robbery in confinement and in denying alternative sentencing because confinement was necessary to avoid depreciating the seriousness of the offense and for deterrence as the record showed that defendant and co-defendant attacked the victim at gun point in broad daylight in a parking lot as she was leaving a store in order to take her money and vehicle; at the sentencing hearing, the victim testified that she had a concussion, could not work for one month, and she required psychological counseling; and she testified that she thought she would die during the attack because she had seen the faces of defendant and his co-defendant. State v. Cosby, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 540 (Tenn. Crim. App. July 19, 2018).

Trial court did not abuse its discretion when it denied defendant's request for an alternative sentence and ordered defendant to serve the sentence in the Tennessee Department of Correction because the court considered the purposes and principles of sentencing. Defendant had an extensive history of criminal offenses, measures less restrictive than confinement had on multiple occasions been unsuccessfully applied to defendant, and defendant was released on community corrections at the time when defendant committed the offenses. State v. Andrews, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 568 (Tenn. Crim. App. July 30, 2018).

In a case in which defendant was convicted of initiating a process intended to result in the manufacture of methamphetamine, the trial court correctly sentenced defendant because he was not considered a favorable candidate for alternative sentencing, and he was ineligible for probation as he received a sentence of 11 years; and denial of a community corrections sentence was appropriate as defendant had been released on probation in the past and had failed to comply with the terms of release, and defendant's rehabilitation potential was poor and he was highly likely to reoffend. State v. Mathis, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 595 (Tenn. Crim. App. Aug. 9, 2018).

Trial court did not abuse its discretion when it denied defendant's request for an alternative sentence because it considered the purposes and principles of sentencing as well as the factors relevant to imposing a sentence of confinement; the record supported the trial court's findings that defendant had an extensive history of criminal offenses and that measures less restrictive than confinement had on multiple occasions been unsuccessfully applied to him. State v. Kelley, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 664 (Tenn. Crim. App. Aug. 29, 2018).

trial court did not abuse its discretion in denying defendant alternative sentencing in sentencing defendant to 37 years in prison for his numerous convictions, which included two counts of reckless homicide, because it looked behind the plea agreement and found that he actually committed a felony murder and should be sentenced to life imprisonment. State v. Smith, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 722 (Tenn. Crim. App. Sept. 21, 2018).

Defendant's consecutive sentences of 10 years, three years, and three years for vehicular homicide by intoxication and two vehicular assaults were proper because mid-range sentences were appropriate; the enhancement of her sentences was proper based on her actions causing a direct risk to the lives of people other than the victims, and her long history of unlawful drug use; for purposes of consecutive sentencing, defendant was a dangerous offender as she had a long history of substance abuse and prior failed attempts at treatment, drove while intoxicated, caused a deadly head-on collision, and showed no concern for the victims; and alternative sentencing was not appropriate as she lacked potential for rehabilitation. State v. Beasley, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 765 (Tenn. Crim. App. Oct. 11, 2018).

In a case in which defendant was charged with first degree premeditated murder, but convicted of the lesser-included offense of voluntary manslaughter, the trial court did not err in denying defendant alternative sentencing, and in holding that confinement was appropriate due to defendant's history of criminal conduct and to avoid depreciating the seriousness of the offense because the record supported the determination that defendant had a long history of criminal conduct, including continued long-term use of illegal drugs, which did not cease even after the victim's death. State v. Jarman, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 832 (Tenn. Crim. App. Nov. 8, 2018), rev'd, — S.W.3d —, 2020 Tenn. LEXIS 267 (Tenn. July 6, 2020).

Trial court did not abuse its discretion by denying defendant alternative sentencing and ordering him to serve his sentences for aggravated burglary in confinement because the record amply supported its findings that defendant's criminal history was extensive and that he had violated probation on numerous occasions, as defendant acknowledged his extensive criminal history and numerous probation violations during his testimony at the sentencing hearing. Defendant also acknowledged that he was no parole at the time he committed the first aggravated burglary and that he was released on bond when he committed the second aggravated burglary. State v. Grosse, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 859 (Tenn. Crim. App. Nov. 26, 2018).

Defendant failed to show that the trial court abused its discretion in denying alternative sentencing, including probation, as the trial court considered defendant's lack of a prior record, social history, mental and physical health, and employment history and expressed concern over her untruthful behavior and failure to act responsibly and concluded that defendant was not likely to be rehabilitated during a period of probation and would not likely abide by the terms of probation. State v. Leininger, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 39 (Tenn. Crim. App. Jan. 18, 2019).

Trial court did not abuse its discretion in ordering defendant to serve defendant's sentence in confinement because the court mainly denied defendant's request for an alternative sentence based upon the need to protect society by restraining a defendant who had a long history of criminal conduct. The trial court also mentioned the need to avoid depreciating the seriousness of the aggravated assault offense for which defendant was convicted and the need for deterrence. State v. Wood, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 55 (Tenn. Crim. App. Jan. 28, 2019).

Trial court did not err when defendant pleaded guilty to soliciting sexual exploitation of a minor in denying alternative sentencing because, although defendant did not have a criminal history, defendant was at risk for committing additional crimes based on the evidence presented, less restrictive measures than confinement had not been frequently applied in similar cases, and confinement was an effective deterrent for others, whereas an alternative sentence would have depreciated the very serious nature of the crime. State v. Gantt, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 213 (Tenn. Crim. App. Apr. 4, 2019).

Defendant was properly denied alternative sentencing because he was not considered to be a favorable candidate for alternative sentencing as rape was a Class B felony; he lacked the potential for rehabilitation; and his act of forcing a mentally disabled nine-year-old child to engage in oral sex when he was supposed to be that child's caretaker was shocking and reprehensible. State v. Keener, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 269 (Tenn. Crim. App. Apr. 26, 2019).

There was no error in the trial court's decision to impose a fully-incarcerative sentence because the presentence investigation report showed twelve prior convictions, and the victim suffered significant pain; given the severity of the injuries to the victim, defendant's fleeing the scene, and his refusal to acknowledge his role in inflicting such severe injuries, the record supported confinement to avoid depreciating the seriousness of the offense. State v. Derrick, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 369 (Tenn. Crim. App. June 26, 2019).

Trial court did not abuse its discretion in ordering defendant to serve a sentence for aggravated assault, reckless endangerment with a deadly weapon, and possession of a weapon by a convicted felon in confinement because the court considered the need to protect society by restraining a defendant who had a long history of criminal conduct, the need to avoid depreciating the seriousness of the offenses and to provide an effective deterrent, and the fact that measures less restrictive than confinement had unsuccessfully been applied to defendant. State v. Howser, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 438 (Tenn. Crim. App. July 19, 2019).

Trial court did not abuse its discretion in ordering incarceration because defendant was neither presumed a favorable candidate for an alternative sentence nor was he eligible for probation; defendant provided no argument and citation to the facts in the record that supported a conclusion the trial court erred in denying alternative sentencing, and no such arguments and factual bases were apparent. State v. Tweedy, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 443 (Tenn. Crim. App. July 23, 2019).

In connection with defendant's child abuse conviction, the trial court did not err in denying defendant an alternative sentence; from the time of his arrest, defendant failed to take responsibility for his actions and he expressed a lack of remorse and inability to understand that his actions were not justified, which showed his lack of potential for rehabilitation. State v. Addair, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 647 (Tenn. Crim. App. May 30, 2019), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 172 (Tenn. Mar. 26, 2020).

Trial court did not abuse its discretion by denying defendant a community corrections sentence as defendant's rehabilitation potential was poor because he had previously failed to comply with the terms of release; and he was ordered to receive drug treatment previously, but continued to use and sell drugs. State v. Chavez, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 718 (Tenn. Crim. App. Nov. 12, 2019).

Trial court did not abuse its discretion by denying defendant probation for delivery of a controlled substance and sentencing him to 11 years incarceration because it found that defendant had a long history of criminal conduct with over 50 convictions dating back to 1986, he had previously been granted probation but probationary sentences had not been effective, because the trial court imposed an 11-year sentence defendant was not eligible for probation, and he was being sentenced for a third or subsequent felony conviction involving separate periods of incarceration or supervision. State v. Milligan, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 743 (Tenn. Crim. App. Nov. 19, 2019).

In a case in which defendant was convicted upon his guilty pleas of four counts of identity theft, pled guilty as a Range II offender, and agreed to an effective eight-year sentence, the trial court did not err by imposing incarceration rather than an alternative sentence because he was not entitled to the presumption that he was a favorable candidate for an alternative sentence; his criminal history spanned three states and involved multiple theft and burglary-related offenses; he had served time in confinement for his previous convictions, but continued to engage in burglary and theft-related offenses; he lacked the potential to rehabilitate; and there was a need to deter others from committing similar offenses. State v. Smith, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 171 (Tenn. Crim. App. Mar. 5, 2020).

Alternative sentences was not appropriate because confinement was necessary to avoid depreciating the seriousness of the offense and particularly suited to provide an effective deterrence to others likely to commit similar offenses; defendant was a forty-five-year-old police officer and the father of the fifteen-year-old victim's friend, and the psychosexual assessment was not particularly favorable to his potential for rehabilitation. State v. Patton, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 322 (Tenn. Crim. App. May 7, 2020).

Denial of an alternative sentence was proper as the trial court made the required findings; defendant had an extensive criminal history, he continued to commit new crimes while on probation, and less restrictive measures had been applied frequently without effect in the past. State v. McAlister, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 430 (Tenn. Crim. App. June 19, 2020).

In a case in which defendant was convicted of one count of aggravated statutory rape, although a favorable candidate for alternative sentencing, he was properly denied alternative sentencing based upon depreciating the seriousness of the offense, deterrence, and the circumstances surrounding the offense because, over a period of months, defendant engaged in sexual activity with the victim, who was developmentally delayed and vulnerable, on three occasions other than the offense for which he was convicted; and, although he was acquitted of the three other acts, the verdict of acquittal did not prevent the sentencing court from considering defendant's conduct underlying the acquitted charge as it was proven by a preponderance of the evidence. State v. Powell, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 518 (Tenn. Crim. App. July 27, 2020).

15. Sentence Upheld.

Trial court did not err by ordering defendant's three-year sentences for theft and vehicular assault to be served concurrently to each other but consecutively to defendant's 21-year sentence for aggravated vehicular homicide, resulting in a 24-year sentence; upon de novo review of the factors set forth in T.C.A. § 40-35-102, court of criminal appeals upheld defendant's sentence because he had a record of criminal activity that included over 20 prior convictions and the sentence was within the appropriate range. State v. Bowman, 327 S.W.3d 69, 2009 Tenn. Crim. App. LEXIS 35 (Tenn. Crim. App. Jan. 14, 2009), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 395 (Tenn. June 15, 2009), cert. denied, Bowman v. Tennessee, 175 L. Ed. 2d 388, 130 S. Ct. 559, 2009 U.S. LEXIS 8080 (U.S. 2009).

Trial court did not abuse its discretion in determining the length of defendant's sentence because it appropriately weighed the enhancing and mitigating factors; defendant had a previous history of criminal convictions or criminal behavior, he was a leader in the commission of an offense involving two or more criminal actors, and before trial or sentencing, he failed to comply with the conditions of a sentence involving release into the community. State v. Madden, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 429 (Tenn. Crim. App. June 5, 2018).

Trial court did not err in sentencing defendant under the Drug-Free School Zone Act as a Range II offender; the broad intent of the Act is that a defendant convicted of the facilitation of an offense proscribed by the Act is to be sentenced according to its requirements. State v. Gibson, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 484 (Tenn. Crim. App. June 23, 2015), aff'd in part, rev'd in part, 506 S.W.3d 450, 2016 Tenn. LEXIS 832 (Tenn. Nov. 16, 2016).

In a case in which defendant pleaded guilty to aggravated sexual battery and was sentenced as a Range I standard offender to a term of imprisonment of nine years and six months, the court of criminal appeals concluded that defendant did not overcome the presumption of reasonableness granted to the trial court's in-range sentence and that the trial court did not abuse its discretion in setting the length of defendant's sentence. The trial court's imposition of a sentence below the midpoint of the applicable sentencing range was not excessive in light of the factual basis provided by the State for defendant's guilty plea. State v. Utz, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 58 (Tenn. Crim. App. Jan. 27, 2017).

Four-year sentences were within the statutory range and presumed reasonable because defendant was a Range I, Standard Offender and subject to a sentencing range of three to six years for the offenses of sexual battery by an authority figure and statutory rape by an authority figure, both Class C felonies; although the trial court erroneously applied the vulnerable victim enhancement factor, the sentences were supported by the record and consistent with the purposes and principles of sentencing. State v. Pompa, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 196 (Tenn. Crim. App. Mar. 15, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 453 (Tenn. July 28, 2017).

In connection with defendant's convictions of facilitation of dogfighting, the trial court did not err in ordering defendant to serve 60 days of his concurrent sentences of 11 months and 29 days in confinement and the remainder on probation; he had a prior criminal history of felony conviction and several misdemeanor convictions and he violated parole on at least one occasion. State v. Trent, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 233 (Tenn. Crim. App. Mar. 30, 2017).

In a case in which defendant was sentenced to serve 10 years in confinement for selling one-half gram or more of a Schedule II controlled substance, the length of defendant's sentence was not excessive because defendant did not contest the applicability of the two enhancement factors found by the trial court; and the trial court was clearly troubled by defendant's prior criminal history and failure to abide by the terms of his prior probation sentences. State v. Jones, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 523 (Tenn. Crim. App. June 21, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 620 (Tenn. Sept. 21, 2017).

In an aggravated sexual battery case, defendant's sentence of 11 years' confinement at 100% was not excessive because the trial court did not abuse its discretion in applying enhancement factor number one that defendant had a previous history of criminal behavior as the victim testified defendant touched him on one of the church trips in such a way that made him uncomfortable, the trial court referenced several such accusations by the victim in a recorded phone call and his medical records, and defendant put on no proof that those allegations were false; defendant abused a position of public or private trust; and the trial court, as was its prerogative, declined to take into account any of defendant's mitigating evidence. State v. Alvarado, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 548 (Tenn. Crim. App. June 27, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 677 (Tenn. Oct. 4, 2017).

Trial court properly sentenced defendant because the sentences were within the applicable range, and the trial court correctly applied all enhancement factors; the trial court identified several enhancement factors on the record and considered the principles and purposes of the Sentencing Act. State v. Armstrong, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 587 (Tenn. Crim. App. July 5, 2017).

Defendant's was not erroneous because it exceeded that imposed upon two of his co-defendants because the trial court placed on the record the reasons for the imposition of mid-range sentences for each conviction as well as the reasons for its decision to order partially consecutive alignment of those sentences. State v. Yangreek Tut Wal, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 598 (Tenn. Crim. App. July 6, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 799 (Tenn. Nov. 16, 2017).

Because a trial court carefully considered the evidence, the enhancement and mitigating factors, and the purposes and principles of sentencing, defendant failed to establish an abuse of discretion or to overcome the presumption of reasonableness afforded sentences within the applicable range; the trial court properly applied enhancement factors, which supported the maximum sentence, and defendant did not object to the presentence report containing his prior convictions and probation revocations. State v. Blackman, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 636 (Tenn. Crim. App. July 20, 2017).

In a theft of property case valued at $1,000 or more but less than $10,000, a Class D felony, the trial court did not err in imposing the maximum sentence of 12 years because the trial court properly applied enhancement factors (1), (8), and (13) as defendant had multiple criminal convictions in addition to those rendering him a Range III, persistent offender, defendant was serving a sentence on probation at the time of the present offense, and defendant had previous probation and parole violations; defendant's criminal history had spanned 20 years; the sentence for a Range III, persistent offender for a Class D felony was not less than eight years and not more than 12 years; and the sentence imposed was within range. State v. Buckner, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 716 (Tenn. Crim. App. Aug. 14, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 875 (Tenn. Dec. 6, 2017).

Defendant was not entitled to relief regarding his sentences of eight and sixteen years for delivery of cocaine under T.C.A. § 39-17-417; the enhancement factor in T.C.A. § 40-35-114(1) was supported by the record, given defendant's three previous cocaine-related and other convictions, the sentences were within the appropriate range under T.C.A. § 40-35-112(b)(2), (b)(3), and the trial court properly applied the purposes and principles of sentencing for purposes of T.C.A. §§ 40-35-102, 40-35-103. State v. Whisnet, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 849 (Tenn. Crim. App. Sept. 15, 2017).

Trial court did not abuse its discretion by imposing the maximum sentences for each of defendant's Class A misdemeanor convictions because it considered the mitigating factors and found that none were applicable to defendant. State v. Long, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 485 (Tenn. Crim. App. Oct. 3, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 611 (Tenn. Sept. 17, 2018).

Trial court properly imposed a sentence of ten years' confinement because the sentence was within the statutory range and presumed reasonable; the trial court applied enhancement factors, none of which were in dispute, engaged in an exhaustive analysis of the purposes and principles of sentencing, and considered as mitigating factors defendant's acceptance of responsibility and specifically noted that his allocution to the victim was sincere and that he was a person who could be saved. State v. Lyczkowski, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 913 (Tenn. Crim. App. Oct. 16, 2017).

Defendant's sentence was not excessive as he was on parole at the time he committed the current offense and had already failed at parole at least twice before; his nearly 42 years of criminal activity and his past failures at rehabilitation weighed in favor of lengthy incarceration despite the fact that no serious bodily injury resulted from the theft of the truck; defendant's sentence was within the appropriate range after a consideration of the principles and purposes of sentencing; and defendant did not show that the trial court abused its discretion in sentencing him to an effective sentence of 15 years. State v. Richards, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 956 (Tenn. Crim. App. Nov. 14, 2017).

Defendant's within-range sentence of 11 years' incarceration for aggravated robbery was not excessive because defendant had previously been adjudicated delinquent for conspiracy to commit aggravated robbery and had two pending charges in criminal court at the time of sentencing; she had previously violated probation and did not adhere to her conditions of release; and she was a leader in the commission of the offense as she initiated contact with the victim and asked him to meet her at a designated location, and she communicated with another man to determine when the robbery should occur. State v. Taylor, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 1 (Tenn. Crim. App. Jan. 3, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 272 (Tenn. May 17, 2018).

Trial court properly sentenced defendant to an effective sentence of 27 years in confinement for theft of property and money laundering because, while defendant initially cooperated with the police investigation, he eventually quit cooperating with the investigation after hiring counsel, he did not call a law enforcement officer or any other witnesses to corroborate his claims of good behavior, the trial court imposed within-range sentences after considering the principles and purposes of sentencing, defendant was not entitled to probation on the money laundering offenses due to his deceit, abuse of trust, and employment in the public sector and to avoid depreciating the seriousness of the offense. State v. Hughes, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 9 (Tenn. Crim. App. Jan. 8, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 284 (Tenn. May 16, 2018).

Trial court did not abuse its discretion in sentencing defendant to the maximum punishment of twenty-five years for his attempted first degree murder conviction because it performed an extensive analysis evidencing its reasons for imposing the maximum sentence; the trial court specifically stated that it considered the purposes and principles of the 1989 Sentencing Act, and it placed on the record what enhancement and mitigating factors it considered. State v. Scott, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 28 (Tenn. Crim. App. Jan. 17, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 285 (Tenn. May 16, 2018).

Trial court did not abuse its discretion by denying alternative sentencing and by revoking defendant's probation on a prior conviction, when defendant pleaded guilty to vehicular homicide by intoxication, because defendant's conviction was for a Class B felony. Moreover, the court found that confinement was necessary to protect society because defendant had a long history of criminal conduct and measures less restrictive than confinement were unsuccessfully applied as defendant was sentenced to probation days before the auto accident occurred. State v. Privett, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 48 (Tenn. Crim. App. Jan. 24, 2018).

Defendant's within-range 20-year sentence for aggravated arson and attempted first degree murder was not excessive because (1) defendant's crimes were heinous, (2) defendant had a criminal record, (3) defendant was exceptionally cruel and did not hesitate to cause great risk to human life, (4) the victim's injuries were particularly great, (5) defendant had not complied with prior supervised release, (6) aggravated arson counts were merged, and (7) sentences were concurrent. State v. Boutrous, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 114 (Tenn. Crim. App. Feb. 16, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 343 (Tenn. June 6, 2018).

Trial court did not abuse its discretion by enhancing defendant's sentences, and the length of the sentences were not excessive, because although the trial court misapplied two enhancement factors, it properly applied two other enhancement factors. State v. Burnett, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 158 (Tenn. Crim. App. Feb. 28, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 439 (Tenn. July 18, 2018).

Trial court did not abuse its discretion by sentencing defendant to two years and six months, with six months served in jail and the remainder served in community corrections, for sexual exploitation of a minor by knowingly possessing sexual images of minors because the court considered the purposes and principles of sentencing and clearly stated its reasons for the within range sentence. The court also found that confinement was necessary to avoid depreciating the seriousness of the offense and to provide an effective deterrence to others. State v. Burt, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 190 (Tenn. Crim. App. Mar. 14, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 411 (Tenn. July 18, 2018).

Trial court, after revoking defendant's community corrections sentence, did not abuse its discretion in resentencing defendant to a within range sentence for possession of cocaine and ordering defendant to serve the sentence in confinement because defendant had been arrested for and pleaded guilty to simple possession and evading arrest and defendant had a previous history of criminal convictions or criminal behavior and an extensive history of failing to comply with court-ordered drug treatment programs and of absconding from supervision. State v. Franklin, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 228 (Tenn. Crim. App. Mar. 27, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 442 (Tenn. July 18, 2018).

Twelve-year sentence imposed upon defendant for his conviction for vandalism was not excessive because the trial court properly addressed the statutory factors it considered and the reasons for the sentence; the trial court determined that the level of damage defendant imposed was particularly great and that defendant demonstrated no remorse of any kind and posed a high risk for violence and thus, found the enhancing factors severely outweighed the applicable mitigating factors. State v. Swinford, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 292 (Tenn. Crim. App. Apr. 17, 2018).

Defendant's within-range sentence for attempted second-degree murder was proper because (1) statutory factors were considered, and (2) probation was properly denied based on avoiding depreciating the seriousness of the crime, rather than the crime's elements. State v. Wilson, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 351 (Tenn. Crim. App. May 7, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 567 (Tenn. Sept. 13, 2018).

Defendant was convicted of four counts of aggravated statutory rape, and while he was a candidate for alternative sentencing, the trial court did not abuse its discretion in ordering him to serve 16 years in incarceration; the crimes had a substantial impact on the victim and her family and the trial court determined that incarceration was proper to avoid depreciating the seriousness of the offense and to provide an effective deterrent to others. State v. Ryan, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 419 (Tenn. Crim. App. June 1, 2018).

Trial court did not err in imposing the maximum sentence of six years for voluntary manslaughter as it was within the statutory range; defendant had a history of criminal behavior; he possessed and employed a firearm during the offense; and he did not hesitate in committing a crime when the risk to human life was high. State v. Bell, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 539 (Tenn. Crim. App. July 19, 2018).

Trial court did not abuse its discretion in sentencing defendant, a juvenile offender, to twelve years' incarceration with a thirty percent release eligibility for multiple acts of vandalism because the court considered the purposes and principles of sentencing and imposed within-range sentences. The court considered the evidence as it applied to defendant, noting defendant's mental limitations, defendant's role in the video evidence, and the testimony as to defendant's background and foster care placement. State v. Eckert, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 558 (Tenn. Crim. App. July 25, 2018).

Defendant's sentence for second degree murder complied with the purposes and principles of the Sentencing Reform Act; the trial court found that multiple enhancement factors applied and supported these findings with ample reasoning, and the trial court did not err in failing to apply mitigating factors, as defendant did not act under strong provocation because the victim was unarmed, he had a sustained intent to violate the law as evidenced by the fact that he had gone on the run, and he failed to appear remorseful. State v. Johnson, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 564 (Tenn. Crim. App. July 27, 2018).

Trial court did not abuse its discretion in sentencing defendant to 18 years for aggravated robbery; defendant did not adduce any proof in support of the application of any mitigating factors, such that the trial court did not abuse its discretion by refusing to apply any, plus the trial court complied with the purposes and principles of sentencing and found that defendant failed to rehabilitate and likely would continue to offend. State v. Crowell, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 621 (Tenn. Crim. App. Aug. 16, 2018).

Trial court did not abuse its discretion by rejecting defendant's payment to the victim's insurance carrier as a mitigating factor because the carrier was not the “victim,” and defendant made the payment to settle a claim it had against her; defendant's payment was the result of negotiations with the carrier after her guilty plea and was self-serving in that she paid the carrier in exchange for a release discharging her from further liability to the carrier. State v. Lane, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 685 (Tenn. Crim. App. Sept. 10, 2018).

Defendant was convicted of driving under the influence, third offense, a Class A misdemeanor, and his sentence of 11 months and 29 days at 100 percent was a permissible sentence; he had four prior driving under the influence convictions at the time of sentencing, which indicated a total disregard for the laws governing roadways, and the trial court considered the purposes and principles of the Sentencing Act. State v. Crepack, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 767 (Tenn. Crim. App. Oct. 12, 2018).

Trial court properly considered enhancing defendant's rape of a child sentences on the bases of his position of trust and the physiological injuries to the victim from the repeated sexual abuse, which resulted in an unwanted pregnancy and an abortion; the 35-year sentence was consistent with the principles and purposes of the Sentencing Act. State v. Kimble, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 826 (Tenn. Crim. App. Nov. 7, 2018).

Trial court did not abuse its discretion in its original sentencing determination for defendant's convictions of rape and incest because the court applied the factor for defendant's leadership in the commission of the offenses as defendant at least encouraged, if not coerced, codefendant into committing the offenses in that defendant wanted the victim to experience sexual intercourse. Furthermore, the court did not accord enhancement weight based upon defendant's eluding the authorities after the indictment of defendant. State v. Sherrill, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 830 (Tenn. Crim. App. Nov. 8, 2018).

Trial court did not err in effectively sentencing defendant to 12 years for his aggravated assault and aggravated robbery convictions because defendant was sentenced to a within-range sentence as defendant faced a sentence of eight to 12 years for the aggravated robbery, and three to six years for the aggravated assault; the trial court properly applied enhancement factors based on defendant's prior offense of theft of property, his role as a leader in the commission of the crime, his failure to complete judicial diversion, and his status on judicial diversion at the time of the commission of the offense; and the trial court thoroughly and completely applied the statutory sentencing principles. State v. Godwin, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 6 (Tenn. Crim. App. Jan. 4, 2019).

Trial court did not err in sentencing defendant to the maximum sentence of six years for robbery, four years for felony evading arrest, and 11 months and 29 days for misdemeanor evading arrest because he had multiple arrests in his two years as an adult; he possessed a firearm during the commission of the offense; he previously failed to comply with the conditions of a sentence involving release into the community; he was released on bail or pretrial release when he committed the crime; and the offense of felony evading arrest involved more than one victim as the proof showed defendant crashed into a car containing multiple people. State v. Derring, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 32 (Tenn. Crim. App. Jan. 16, 2019).

Trial court thoroughly considered and weighed the principles of sentencing and all the evidence before it, and thus the court upheld defendant's 15-year sentence for aggravated burglary, burglary of a habitation under construction, felony and misdemeanor theft of property, and vandalism; the 59-year-old defendant had a criminal record consisting of six prior felony and 22 prior misdemeanor convictions, he was a leader in the commission of the offenses, he had a history of probation and parole violations, his actions caused significant harm to the community, and alternative sentencing was not appropriate. State v. Gilley, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 165 (Tenn. Crim. App. Mar. 14, 2019).

Despite the trial court's misapplication of the enhancement factor based on selecting the victim based upon her gender, the trial court did not abuse its discretion in sentencing defendant to a within-range sentence of 25 years for second degree murder because the trial court properly applied the purposes and principles of the Sentencing Act. State v. Simpson, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 173 (Tenn. Crim. App. Mar. 18, 2019).

As a Range II multiple offender convicted of a Class A felony, defendant was subject to a sentencing range of 25-40 years for his rape of a child convictions, and his sentence of 33 years for each rape conviction and five years for each incest conviction, with two 33-year sentences to run consecutively, was upheld; defendant had a prior history of misdemeanor convictions and he occupied a position of trust, and given the physical and mental damage the victim suffered, consecutive sentencing was appropriate. State v. Vest, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 807 (Tenn. Crim. App. Dec. 30, 2019).

In a case in which defendant pled guilty to four counts of aggravated statutory rape and one count of violation of a no-contact order, the trial court did not err in sentencing defendant to an effective sentence of four years, 11 months and 29 days, and in ordering partial consecutive sentencing because the trial court noted defendant's prior offenses and the fact that he had progressed from minor traffic offenses to crimes involving drugs and disorderly conduct; it determined that defendant was on the cusp of an extensive criminal history; and, with regard to conviction of two or more statutory offenses involving sexual abuse of a minor, the trial court determined that defendant played on the victim's vulnerabilities. State v. King, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 809 (Tenn. Crim. App. Dec. 30, 2019).

Trial court did not abuse its discretion in sentencing defendant to the maximum term available for defendant's voluntary manslaughter conviction because the court did not err in its application of the enhancement and mitigation factors. Any errors were harmless in light of existing enhancement factors, particularly that defendant was on probation at the time the offense was committed and that defendant had a history of criminal behavior in addition to the felonies used to establish defendant's sentencing range. State v. Davidson, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 14 (Tenn. Crim. App. Jan. 14, 2020).

Trial court did not abuse its discretion imposing a sentence of split confinement because the trial court properly considered the statutory criteria and other facts and circumstances supported by the record and made extensive findings regarding the circumstances of the offense; the trial court also found that defendant failed to accept responsibility for the offense and that her explanation for her actions was not credible. State v. Hill, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 46 (Tenn. Crim. App. Jan. 29, 2020).

Defendant's 30-year sentence for rape of a child was presumptively reasonable, as it was less than six months above the mean sentence for all similar offenders as shown in defendant's statistical evidence, which disparity was not excessive. The sentence was also within the range of punishment for a Range II offender and he did not contest the trial court's applicability of the position of trust enhancement factor or the trial court's conclusion that he lacked potential for rehabilitation or treatment. State v. Chaves-Abrego, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 422 (Tenn. Crim. App. June 18, 2020).

Defendant's sentence of four years for reckless homicide was appropriate because the baby was particularly vulnerable based on her age as she was unable to defend herself; and defendant abused a position of private trust in a manner that significantly facilitated the commission of the offense as she did not disclose her pregnancy to the victim's father or anyone else until after she gave birth and had killed the victim. State v. Brown, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 441 (Tenn. Crim. App. June 25, 2020).

Trial court did not abuse its discretion by denying defendant's request for alternative sentencing and by imposing within-range consecutive sentences when defendant was convicted of possession of heroin with the intent to sell and possession with intent to deliver 0.5 gram or more of cocaine because the court considered the presentence report, defendant's prior drug-related felonies and misdemeanors, defendant's physical and mental conditions, the nature of the offenses, defendant's likelihood of rehabilitation, and the evidence presented. State v. Johnson, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 545 (Tenn. Crim. App. Aug. 7, 2020).

Trial court properly sentenced defendant as a career offender to six years for violation of the Sex Offender Registry; the sentence was within the appropriate range, and the trial court thoroughly articulated its reasoning, including that defendant had failed to comply with probation numerous times and had another charge in another county while waiting for sentencing on the current charge. State v. Davis, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 546 (Tenn. Crim. App. Aug. 7, 2020).

In a case in which defendant pleaded guilty to one count of aggravated sexual exploitation of a minor and one count of sexual exploitation of a minor involving over 50 images, the court of criminal appeals concluded that the trial court sentenced defendant to a sentence within the range for each conviction and followed the proper sentencing procedure. The record showed that the trial court carefully considered the evidence, the enhancement and mitigating factors, and the purposes and principles of sentencing prior to imposing a sentence of confinement. State v. Hernandez, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 551 (Tenn. Crim. App. Aug. 12, 2020).

16. Sentence Reversed.

Trial court erred in denying defendant's request for probation after finding that defendant probably would have been successful on probation and been rehabilitated and the court was not concerned about the community being at risk from defendant's future criminal conduct. State v. Sihapanya, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 968 (Tenn. Crim. App. Nov. 8, 2013), aff'd in part, rev'd in part, 516 S.W.3d 473, 2014 Tenn. LEXIS 366 (Tenn. Apr. 30, 2014).

It was not shown that the trial court considered any of the purposes of sentencing in determining defendant's sentence, contrary to T.C.A. §§ 40-35-102, 40-35-103, 40-35-210, and while defendant was eligible for probation under T.C.A. § 40-35-303(a) because the sentence imposed was less than 10 years, it was not shown that the trial court considered any of the appropriate principles in denying defendant's request for full probation, and remand was necessary. State v. Powers, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 647 (Tenn. Crim. App. July 24, 2017).

Trial court erred by not granting defendant full probation for his vehicular homicide conviction because it concluded that the trial court based its decision solely on the seriousness of the offense, it did not find that the instant vehicular homicides were especially violent, horrifying, shocking, reprehensible, offensive, or otherwise of excessive or exaggerated degree, defendant's lack of a criminal record, social history, and physical and mental health were Electroplating factors favoring probation, and defendant was amenable to correction. State v. Oxendine, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 85 (Tenn. Crim. App. Feb. 12, 2020).

17. Denial of Probation Affirmed.

Trial court did not err by denying alternative sentencing in a child abuse case because the statutory factors were considered since it was determined that defendant had three misdemeanor convictions, the offense was particularly serious, and the victim was treated with exceptional cruelty; the child was repeatedly physically abused, had his arm broken due to twisting, and was forced to stand in a corner for entire days at a time. Moreover, the trial court expressed interest in the general deterrence effect that the sentence would have had; due to defendant's conviction of three Class B felonies, she was not considered a favorable candidate for alternative sentencing. State v. Kyles, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 169 (Tenn. Crim. App. Mar. 7, 2017).

In a case where defendant pled guilty to various drug-related offenses and received an effective sentence of eight years, the trial court did not abuse its discretion by denying an alternative sentence of probation or community corrections because, although defendant was eligible for alternative sentencing, he was not a favorable candidate for alternative sentencing; the trial court concluded that the best chance for defendant's rehabilitation was through incarceration given the highly addictive nature of methamphetamine; and, although defendant was a prima facie candidate for community corrections, the trial court found that confinement was necessary to avoid depreciating the seriousness of methamphetamine-related crimes. State v. Potts, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 312 (Tenn. Crim. App. Apr. 25, 2017).

In a case in which defendant pled guilty to theft of property valued at $1000 or more but less than $10,000 and possession of drug paraphernalia in exchange for an effective sentence of eight years with the manner of service to be determined by the trial court, the trial court did not err in imposing a sentence of confinement and in denying defendant full probation because defendant had a history of criminal conduct spanning at least 26 years and including 36 prior convictions; he admittedly had a long history of drug abuse; he removed merchandise from its appropriate box and replaced it with merchandise that was over $1000 more valuable; and he did that after smoking heroin and while in possession of drug paraphernalia. State v. Hatley, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 968 (Tenn. Crim. App. Nov. 14, 2017).

In a case in which defendant was convicted of attempted aggravated sexual battery, the trial court did not abuse its discretion in denying defendant probation because, while he pled guilty to the reduced charge of attempted aggravated sexual battery, the evidence supported the conclusion that he committed more than one completed aggravated sexual battery on his adopted daughter while she was under 13 years old; he obtained custody of the victim, removing her from the guardianship of others who could have protected her from him; and the trial court's finding that the presentence report was very disturbing supported the conclusion that it found the crime to be especially shocking, reprehensible, offensive, and of an exaggerated degree. State v. Sexton, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 8 (Tenn. Crim. App. Jan. 5, 2018).

Trial court properly denied defendant's request for probation because the interests of society heavily outweighed the interests of defendant; three innocent bystanders were shot in the incident, there were two other innocent bystanders inside a house into which defendant also fired a gun, and defendant committed four shooting offenses with a handgun he obtained from another person and concealed prior to the shooting. State v. Collins, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 255 (Tenn. Crim. App. Apr. 5, 2018).

Trial court did not abuse its discretion in denying defendant's request for full probation, following defendant's convictions for assault and contributing to the delinquency of a minor, because, in addition to the convictions which the 35 year old defendant received in defendant's late teens and twenties, defendant also had a fairly substantial record of more recent criminal activity, including multiple convictions for DUI and a conviction for domestic assault. Defendant also failed to show any remorse during the sentencing hearing. State v. Edwards, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 434 (Tenn. Crim. App. June 6, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 589 (Tenn. Sept. 14, 2018).

In a perjury case in which defendant falsely accused the father of her child of horrific treatment, including holding a gun to her head and forcible oral, vaginal, and anal sex, the trial court did not abuse its discretion by denying defendant's request for full probation and by ordering that she serve six months in confinement because the trial court found that confinement was necessary to avoid depreciating the seriousness of the offense and particularly suited to provide an effective deterrence to others; she failed to accept responsibility for the crime; and she gave a statement for the presentence report in which she essentially maintained that her allegations against her child's father were true. State v. Riner, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 676 (Tenn. Crim. App. Sept. 4, 2018).

Trial court did not abuse its discretion by ordering defendant to serve 10 years of incarceration for her conviction for the initiation of a process to manufacture methamphetamine because its decision, based on defendant's criminal record and her unsuccessful past attempts at completing an alternative sentence, was well supported by the evidence. The presentence report showed numerous convictions and charges against defendant related to her drug addiction, she had shown a history of non-compliance with alternative sentences, and she was serving a probation sentence when she committed the instant offense. State v. McTaggart, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 286 (Tenn. Crim. App. May 1, 2019).

Defendant's criminal history included three felony convictions and 42 misdemeanor convictions, and the trial court properly determined that he had an extensive history of criminal conduct, repeated violations of probation, was on probation when he committed the violent offenses of aggravated assault and domestic assault, and had a history of aggressive conduct, such that the denial of probation was based on a proper application of the purposes and principles of sentencing. State v. Slappey, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 343 (Tenn. Crim. App. June 6, 2019).

Trial court's denial of probation based on depreciating the seriousness of the offense, deterrence, and the circumstances surrounding the offense was not an abuse of discretion but was in keeping with the purposes and principles of sentencing because defendant's failure to maintain his lane and ultimate plunge down the cliff was accompanied by the consumption of alcohol; defendant acknowledged having consumed five to six beers in the hours prior to the accident, and he placed alcohol in the ATV. State v. Ward, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 437 (Tenn. Crim. App. July 19, 2019).

In a case in which defendant was convicted of two counts of aggravated assault, the trial court did not abuse its discretion by denying defendant's request for full probation and by ordering that defendant serve six months in confinement. The record reflected that the trial court took into account the relevant considerations by examining the circumstances of the offense; defendant's criminal record, social history, and present condition; the deterrent effect upon defendant; and the best interests of defendant and the public. State v. Ailey, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 499 (Tenn. Crim. App. Aug. 19, 2019).

Trial court did not err by denying defendant's request for probation because he was not considered a favorable candidate for alternative sentencing as he was convicted of a Class B felony; and he received a sentence of more than 10 years, making him ineligible for probation. State v. Chavez, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 718 (Tenn. Crim. App. Nov. 12, 2019).

17.5 Denial of Full Probation Appropriate.

Trial court did not err by refusing to grant a sentence entirely on probation after defendant pleaded guilty to attempted rape and instead ordering him to serve six months day-for-day prior to release on probation because it properly applied T.C.A. § 40-35-102(B) and described the attempted rape of the 70-year-old victim who was alone in her home as a very serious offense. The trial court also pointed out the victim's unwavering account of the incident and defendant's varying accounts of the events. State v. Guthrie, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 131 (Tenn. Crim. App. Feb. 27, 2019).

Trial court did not err by refusing to grant a sentence entirely on probation after defendant pleaded guilty to attempted rape and instead ordering him to serve six months day-for-day prior to release on probation because it properly applied this section and described the attempted rape of the 70-year-old victim who was alone in her home as a very serious offense. The trial court also pointed out the victim's unwavering account of the incident and defendant's varying accounts of the events. State v. Guthrie, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 131 (Tenn. Crim. App. Feb. 27, 2019).

18. Defendant Not Favorable Candidate.

In a case in which defendant received an effective sentence of 15 years, with five years to be served in confinement, followed by 10 years of supervised probation, the trial court did not abuse its discretion in denying defendant alternative sentencing for the first five years of his sentence because, although defendant was eligible for alternative sentencing, he was not considered a favorable candidate for alternative sentencing options as he had many prior convictions, had previously failed to comply with alternative sentencing, and was on bond at the time the current offenses were committed. State v. Branner, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 514 (Tenn. Crim. App. July 12, 2018).

19. Enhancement Factors.

Trial court did not abuse its discretion in applying a sentencing enhancement factor because the court determined that defendant's behavior indicated little or no regard for human life and that defendant did not hesitate in committing a crime in which the risk for human life was high in that defendant drove in the wrong direction on an interstate highway and placed other drivers on the highway in danger. State v. Pena, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 761 (Tenn. Crim. App. Oct. 8, 2018).

Although a trial court erred by applying an enhancement factor for use of deadly weapon during the commission of the offense—because the use of a motor vehicle was an essential element of vehicular homicide by reckless conduct—such error did not render defendant's sentence excessive because defendant was sentenced as a Range I offender to a within-range sentence. State v. Pena, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 761 (Tenn. Crim. App. Oct. 8, 2018).

Trial court imposed a within-range sentence and did not abuse its discretion in sentencing defendant because defendant has a long history of criminal convictions and prior incarceration; defendant did not provide any argument to support a conclusion that the trial court erred in applying enhancement factor based on his prior history of criminal convictions. State v. Tweedy, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 443 (Tenn. Crim. App. July 23, 2019).

20. Jurisdiction.

Because the post-conviction statute of limitations was jurisdictional, the trial court should have addressed the issue of its tolling before granting the post-conviction petition; because the petition was untimely and the trial court did not address the tolling claim, a grant of post-conviction relief was improper. Perry v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 146 (Tenn. Crim. App. Mar. 7, 2019).

40-35-103. Sentencing considerations.

To implement the purposes of this chapter, the following principles apply:

Sentences involving confinement should be based on the following considerations:
1. Confinement is necessary to protect society by restraining a defendant who has a long history of criminal conduct;
2. Confinement is necessary to avoid depreciating the seriousness of the offense or confinement is particularly suited to provide an effective deterrence to others likely to commit similar offenses; or
3. Measures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defendant;
The sentence imposed should be no greater than that deserved for the offense committed;
Inequalities in sentences that are unrelated to a purpose of this chapter should be avoided;
The sentence imposed should be the least severe measure necessary to achieve the purposes for which the sentence is imposed;
The potential or lack of potential for the rehabilitation or treatment of the defendant should be considered in determining the sentence alternative or length of a term to be imposed. The length of a term of probation may reflect the length of a treatment or rehabilitation program in which participation is a condition of the sentence;
Trial judges are encouraged to use alternatives to incarceration that include requirements of reparation, victim compensation, community service or all of these; and
Available community-based alternatives to confinement and the benefits that imposing such alternatives may provide to the community should be considered when the offense is nonviolent and the defendant is the primary caregiver of a dependent child.

Acts 1989, ch. 591, § 6; 2019, ch. 309, § 1.

Sentencing Commission Comments.

The sentencing principles set forth in this section must be considered by the judge in imposing appropriate penalties for persons convicted of violating the law. See § 40-35-210(b)(3). In addition, the considerations must be read in light of the policy purposes set forth in § 40-35-102.

Subdivision (1) restates those factors which must be considered when confinement is utilized as a sentencing option. Subdivisions (2), (3) and (4) are similar to prior law and require uniformity of sentencing. Subdivisions (5) and (6) require that rehabilitation and treatment be considered in determining the available sentencing options.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Amendments. The 2019 amendment added (7).

Effective Dates. Acts 2019, ch. 309, § 2. July 1, 2019.

Cross-References. Restitution, title 41, ch. 6.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 32.196, 32.170, 32.221.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 3-32-2.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, §§ 45, 47, 51.

Law Reviews.

NOTES TO DECISIONS

1. Consideration of Prior Criminal Convictions.

Trial court upon defendant's conviction for second offense driving under the influence did not abuse its discretion, given defendant's extensive history of driving-related convictions, including driving under the influence, by deviating upwards from the minimum period of confinement provided for in the Tennessee Code by sentencing defendant to 180 days in the county jail. However, remand for entry of correction in judgment was necessary because the judgment form indicated only a 45-day period of incarceration. State v. Campbell, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 325 (Tenn. Crim. App. May 2, 2017).

2. Lack of Potential for Rehabilitation.

Where the defendant's history indicated a clear disregard for the law and morals of society and a failure of past efforts to rehabilitate, the trial judge did not abuse his discretion in denying probation. State v. Chrisman, 885 S.W.2d 834, 1994 Tenn. Crim. App. LEXIS 359 (Tenn. Crim. App. 1994).

Trial court's consideration of defendant's candor while testifying was probative of her prospects for rehabilitation and thus was a relevant factor in determining the appropriate sentencing alternative. State v. Dowdy, 894 S.W.2d 301, 1994 Tenn. Crim. App. LEXIS 674 (Tenn. Crim. App. 1994).

Defendant's lack of truthfulness at his sentencing hearing and failure to accept responsibility for his crimes were circumstances germane to his rehabilitation potential. State v. Zeolia, 928 S.W.2d 457, 1996 Tenn. Crim. App. LEXIS 173 (Tenn. Crim. App. 1996).

There was sufficient evidence to rebut defendant's presumption of entitlement to alternative sentencing under T.C.A. § 40-35-102(6) in light of the circumstances of the offense including the illegal use of drugs and alcohol, along with the defendant's poor potential for rehabilitation. State v. Batey, 35 S.W.3d 585, 2000 Tenn. Crim. App. LEXIS 293 (Tenn. Crim. App. 2000).

Defendant's sentence of 11 months and 29 days with service of 90 days in confinement with the remainder to be served on probation for his DUI, second offense, conviction was not excessive because: (1) Defendant had a serious drinking problem; (2) Trial court expressed concern with the excessive nature of defendant's breath alcohol concentration (BAC) test result of .27 percent; and (3) Six months prior to his current offense, defendant had registered high on a BAC test which was later dismissed based upon an invalid stop, which could show lack of potential for rehabilitation or treatment. State v. Brooks, 277 S.W.3d 407, 2008 Tenn. Crim. App. LEXIS 579 (Tenn. Crim. App. May 8, 2008), appeal dismissed, — S.W.3d —, 2008 Tenn. LEXIS 545 (Tenn. July 28, 2008), appeal dismissed, — S.W.3d —, 2009 Tenn. LEXIS 544 (Tenn. Aug. 24, 2009).

Where defendant fabricated evidence and made false reports to the police in connection with the disappearance of his wife, the trial court properly denied defendant's request for full probation because defendant's deceit was an indicator of his poor potential for rehabilitation. Furthermore, deterrence was necessary because the case received substantial publicity beyond that normally expected in the typical case. State v. Smith, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 481 (Tenn. Crim. App. July 6, 2012), aff'd in part, rev'd in part, 436 S.W.3d 751, 2014 Tenn. LEXIS 466 (Tenn. June 19, 2014).

3. Seriousness of Offense.

Confinement was necessary to avoid depreciating the seriousness of the offense where defendant participated in the burning of four barns within one 48-hour period, the extent of the victims' financial losses was significant, and defendant was a leader in the commission of the offense. State v. Zeolia, 928 S.W.2d 457, 1996 Tenn. Crim. App. LEXIS 173 (Tenn. Crim. App. 1996).

The defendant must prove his suitability for alternative sentencing, but the law does not mandate an enhanced burden to prove exceptional circumstances when a death occurs. State v. Housewright, 982 S.W.2d 354, 1997 Tenn. Crim. App. LEXIS 1269 (Tenn. Crim. App. 1997).

A defendant is not precluded from receiving probation or other sentencing alternatives solely because a death occurred. The trial court must consider his suitability for probation, but the burden of proof remains solely upon the defendant. State v. Housewright, 982 S.W.2d 354, 1997 Tenn. Crim. App. LEXIS 1269 (Tenn. Crim. App. 1997).

For T.C.A. § 40-35-103(1)(B) to apply, the circumstances of the offense, as committed, must be especially violent, horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated degree, and the nature of the offense must outweigh all factors favoring probation. State v. Fields, 40 S.W.3d 435, 2001 Tenn. LEXIS 58 (Tenn. 2001).

The mere existence of the Drug-Free School Zone Act, T.C.A. § 39-17-432, without more, cannot elevate the nature of an offense to one requiring incarceration; thus, where there was no indication that the school was visible from the location of the drug transaction and there was no evidence that students were in the vicinity, were being solicited by drug dealers, were aware of the drug transaction, or were in any way involved, the facts and circumstances failed to meet the standard necessary to apply T.C.A. § 40-35-103(1)(B). State v. Fields, 40 S.W.3d 435, 2001 Tenn. LEXIS 58 (Tenn. 2001).

Defendant was eligible for probation, but was not entitled to a statutory presumption in favor of an alternative sentence under T.C.A. § 40-35-102(6) because defendant was sentenced as a Range II offender; the evidence was more than sufficient to justify the denial of probation because to not do so would have depreciated the seriousness of the offense. State v. Souder, 105 S.W.3d 602, 2002 Tenn. Crim. App. LEXIS 986 (Tenn. Crim. App. 2002), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 269 (Tenn. Mar. 17, 2003).

Trial court erred in imposing confinement solely on the need to avoid depreciating the seriousness of the offense, because the record was devoid of any specific findings that the offense “as committed” was especially violent, horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated degree. State v. Trent, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 528 (Tenn. Crim. App. July 21, 2016), rev'd, 533 S.W.3d 282, 2017 Tenn. LEXIS 710 (Tenn. Nov. 3, 2017).

Trial court erred in denying defendant's request for probation based on depreciating the seriousness of the offense and the deterrence value to others because reckless conduct by defendant that resulted in the death of the victim were elements of the conviction offense of vehicular homicide by reckless conduct, and those alone were insufficient to deny probation. State v. Pinhal, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 477 (Tenn. Crim. App. July 14, 2020).

4. Deterrence.

In sentencing defendant for four counts of arson, evidence was insufficient to establish a need for general deterrence which consisted of the testimony of one person that he and his son were guarding his barn because he had experienced a premonition and had heard about defendant's arson spree the previous evening, and he had earlier noticed marks on his barn indicative of attempted arson. State v. Zeolia, 928 S.W.2d 457, 1996 Tenn. Crim. App. LEXIS 173 (Tenn. Crim. App. 1996).

In order to rely on general deterrence as a justification for a period of confinement, evidence must be presented in accordance with T.C.A. § 40-35-103(1)(B) that indicates some special need or consideration relative to that jurisdiction which would not be addressed by the normal deterrence inherent in any criminal activity. State v. Nunley, 22 S.W.3d 282, 1999 Tenn. Crim. App. LEXIS 712 (Tenn. Crim. App. 1999).

T.C.A. § 40-35-103(1)(B) does not require proof that incarceration “will” or “should” deter another from committing similar crimes; therefore, to the extent that State v. Bingham, 910 S.W.2d 448, 1995 Tenn. Crim. App. LEXIS 105 (Tenn. Crim. App. 1995) and State v. Bonestel, 871 S.W.2d 163, 1993 Tenn. Crim. App. LEXIS 270 (Tenn. Crim. App. 1993), or any other case can be read to require proof that incarceration will or should result in deterrence, it is hereby overruled. State v. Hooper, 29 S.W.3d 1, 2000 Tenn. LEXIS 535 (Tenn. 2000).

Trial courts may sentence a defendant to a term of incarceration based solely on a need for deterrence when the record contains evidence which would enable a reasonable person to conclude that: (1) Deterrence is needed in the community, jurisdiction or state; and (2) The defendant's incarceration may rationally serve as a deterrent to others similarly situated and likely to commit similar crimes. State v. Hooper, 29 S.W.3d 1, 2000 Tenn. LEXIS 535 (Tenn. 2000).

Trial courts should consider the following factors to use as a guide when deciding whether a need for deterrence is present and whether incarceration is particularly suited to achieve that goal: (1) Whether other incidents of the charged offense are increasingly present in the community, jurisdiction, or in the state as a whole; (2) Whether the defendant's crime was the result of intentional, knowing, or reckless conduct or was otherwise motivated by a desire to profit or gain from the criminal behavior; (3) Whether the defendant's crime and conviction have received substantial publicity beyond that normally expected in the typical case; (4) Whether the defendant was a member of a criminal enterprise, or substantially encouraged or assisted others in achieving the criminal objective; and (5) Whether the defendant has previously engaged in criminal conduct of the same type as the offense in question, irrespective of whether such conduct resulted in previous arrests or convictions. The court need not find that all factors are present and additional factors may be considered, provided that: (1) The sentencing court states the additional factors in the record with specificity; and (2) The presence of these additional factors is supported by at least some proof. State v. Hooper, 29 S.W.3d 1, 2000 Tenn. LEXIS 535 (Tenn. 2000).

Trial court properly denied an alternative sentence and ordered defendant to serve his total effective sentence of nine years in prison because defendant was not presumptively a favorable candidate for alternative sentencing, confinement was appropriate as a deterrence, defendant failed to rebut the presumption of reasonableness, and while defendant's potential for rehabilitation was an important factor for the trial court to consider, there should be a broader consideration than the issue of whether defendant might have an alcohol problem. State v. Huffine, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 247 (Tenn. Crim. App. Apr. 3, 2018).

5. Measures Less Restrictive Than Confinement Unsuccessful.

In sentencing defendant for conviction of four counts of arson, his juvenile record was relevant, since he was only 18 at the time, and it was noted the probation had been applied unsuccessfully. State v. Zeolia, 928 S.W.2d 457, 1996 Tenn. Crim. App. LEXIS 173 (Tenn. Crim. App. 1996).

In a vehicular homicide case, defendant's request for an alternative sentence was denied based on the need to protect society by restraining her and because less restrictive measures than confinement had been unsuccessfully applied to her as she had previous convictions for evading arrest, speeding, theft, drug possession, possession of drug paraphernalia, and driving while her license was suspended; and she had previously received and violated her probations. State v. Pinhal, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 477 (Tenn. Crim. App. July 14, 2020).

6. Consecutive Sentences.

Based on factors set forth in T.C.A. § 40-35-114(1), (2), (5), (8), (11) (now (18), (1), (4), (7), and (10), respectively), the trial court imposed a life sentence without the possibility of parole for the first degree murder conviction of a gang member who killed another gang member and two consecutive twenty-two-year sentences for the especially aggravated kidnapping conviction of two fellow gang members. The trial court did not err in setting the length of defendant's sentences. State v. Mickens, 123 S.W.3d 355, 2003 Tenn. Crim. App. LEXIS 107 (Tenn. Crim. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 805 (Tenn. Sept. 2, 2003).

Trial court did not err in ordering that the sentences of co-defendant gang members convicted of the especially aggravated kidnapping of a fellow gang member be served consecutively. All three defendants had prior criminal records, and consecutive sentencing was the least severe measure necessary to achieve the purposes for which the sentence was imposed. State v. Mickens, 123 S.W.3d 355, 2003 Tenn. Crim. App. LEXIS 107 (Tenn. Crim. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 805 (Tenn. Sept. 2, 2003).

In a child sexual abuse case, although consecutive sentencing was permissible under T.C.A. § 40-35-115(b)(5), defendant's twelve-year consecutive sentences, for a total of ninety-six years, were not reasonably related to the severity of his offenses; rather, the circumstances of the case indicated that a combination of concurrent and consecutive sentences was appropriate in relation to the severity of the offenses and was the least severe measures necessary to deter defendant's future criminal conduct, to protect society, and to deter others who were similarly situated and likely to commit similar offenses. State v. Schiefelbein, 230 S.W.3d 88, 2007 Tenn. Crim. App. LEXIS 138 (Tenn. Crim. App. Feb. 8, 2007), modified, 230 S.W.3d 88, 2007 Tenn. Crim. App. LEXIS 213 (Tenn. Crim. App. Mar. 7, 2007).

Trial court did not abuse its discretion in imposing consecutive, within range sentences of eight years, four years, and 11 months, 29 days for unlawful possession of a firearm by a convicted felon, unlawful possession of a handgun, and merged drug convictions, for an effective sentence of 12 years, 11 months, and 29 days; defendant was an offender whose record of criminal activity was extensive, plus his actions indicated a lack of potential for rehabilitation. State v. Ford, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 160 (Tenn. Crim. App. Mar. 3, 2017).

Trial court did not abuse its discretion by ordering consecutive sentencing because it ordered it based on defendant's extensive criminal history and he made no argument regarding that finding. State v. Batts, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 228 (Tenn. Crim. App. Mar. 27, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 441 (Tenn. July 20, 2017).

Trial court did not abuse its discretion in sentencing defendant to serve his time for aggravated assault consecutively to his second-degree murder conviction because it made the requisite findings to support its determination that defendant was a dangerous offender; the trial court found that defendant's beating of a correctional officer indicated little or no regard for human life, and it determined that confinement was necessary to protect the public from further criminal acts. State v. Armstrong, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 587 (Tenn. Crim. App. July 5, 2017).

Trial court did not abuse its discretion by imposing partially consecutive sentences because it considered all appropriate principles; the trial court based its imposition of partially consecutive sentencing on the finding that defendant was a dangerous offender, and it made the appropriate statutory findings, as well as both requisite findings that the sentencing related to the seriousness of the matter and that the extended sentence was necessary to protect the public. State v. Yangreek Tut Wal, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 598 (Tenn. Crim. App. July 6, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 799 (Tenn. Nov. 16, 2017).

Trial court erred by imposing consecutive sentences on remand for defendants' convictions of attempted second-degree murder and aggravated assault because it was not based on evidence presented for the first time at the new sentencing hearing, but rather on evidence that was known to the trial court at the time of the original sentencing hearing and the trial court did not explain why the same evidence was not compelling to warrant consecutive sentences at the original sentencing hearing but warranted consecutive sentences on remand. State v. Bishop, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 354 (Tenn. Crim. App. June 17, 2019).

Trial court did not abuse its discretion in imposing consecutive sentences because the trial court, noting the temporal duration and physical severity of the abuse inflicted upon the victim, made the necessary findings to impose consecutive sentences based upon defendant's status as a dangerous offender. State v. Harris, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 708 (Tenn. Crim. App. Nov. 5, 2019), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 236 (Tenn. Mar. 26, 2020).

Defendant's history of criminal activity was extensive, spanned more than 20 years, and included 10 felony convictions, half of which related to the possession or sale of drugs; thus, the consecutive sentences of 20 years and 11 months, 29 days respectively, for possession with intent to sell methamphetamine and possession of drug paraphernalia, were proper. State v. Collins, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 290 (Tenn. Crim. App. Apr. 24, 2020).

7. Alternatives to Incarceration.

A defendant's “social history” must be considered in determining whether to grant probation; however, social history is not specifically mentioned by the code as a factor to be used in overcoming the presumption of suitability for alternative sentencing. State v. Nunley, 22 S.W.3d 282, 1999 Tenn. Crim. App. LEXIS 712 (Tenn. Crim. App. 1999).

8. Standard of Review.

In conducting a de novo review of a sentence, the Court of Appeals must consider the evidence adduced at trial and the sentencing hearing, the presentence report, the principles of sentencing, the arguments of counsel relative to sentencing alternatives, the nature of the offense, and the defendant's potential for rehabilitation. State v. Parker, 932 S.W.2d 945, 1996 Tenn. Crim. App. LEXIS 167 (Tenn. Crim. App. 1996), overruled in part, State v. King, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 192 (Tenn. Crim. App. Mar. 4, 2013), overruled in part, State v. King, 432 S.W.3d 316, 2014 Tenn. LEXIS 351 (Tenn. Apr. 23, 2014).

In reviewing defendant's sentence for an aggravated sexual battery conviction pursuant to T.C.A. § 40-35-401(d) and considering the appropriate sentencing factors under T.C.A. §§ 40-35-103(5) and 40-35-210(b), defendant's sentence of 12 years, which is within the sentencing range set out by T.C.A. § 40-35-112(a)(2), was appropriate because two sentencing enhancement factors applied to defendant as defendant had a previous history of sexual battery convictions which involved children, and defendant abused a position of private trust, since defendant was the victim's uncle to whom the parents had entrusted the victim's keeping on numerous occasions. State v. Jordan, 116 S.W.3d 8, 2003 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. 2003).

9. Improper Sentencing Considerations.

Trial court's reliance upon a “sorry social history” for the imposition of a short period of confinement was improper. State v. Nunley, 22 S.W.3d 282, 1999 Tenn. Crim. App. LEXIS 712 (Tenn. Crim. App. 1999).

Where defendant was indicted for rape of a child after impregnating a 12-year-old girl, he pleaded guilty to attempted rape of a child and received a sentence of eight years. The trial court erred in relying on polygraph test results to deny defendant probation; however, the other factors showed that defendant was not suitable for probation: defendant had a sexual preference for minors, a poor work history, and a moderate risk for re-offending. State v. Pierce, 138 S.W.3d 820, 2004 Tenn. LEXIS 634 (Tenn. 2004).

Trial courts may not consider polygraph examination results or any portion of a risk assessment report that relies upon polygraph examination results when imposing sentences. State v. Pierce, 138 S.W.3d 820, 2004 Tenn. LEXIS 634 (Tenn. 2004).

Circuit court erred in ordering defendant to serve eight years in incarceration for vehicular homicide by intoxication; the circuit court stated without legal authority that driving while using a prescription pain medication had to come to a strict liability standard, and these conclusions were based upon speculation and personal opinions. Defendant was at low risk for recidivism and he was a candidate for alternative sentencing. Amended judgment was to show a sentence of spilt confinement of time served with the remainder to be served on probation. State v. Trent, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 264 (Tenn. Crim. App. Apr. 17, 2020).

10. Proper Sentencing Considerations.

The court of criminal appeals' review of a sentence requires an analysis of: (1) The evidence, if any, received at the trial and sentencing hearing; (2) The presentence report; (3) The principles of sentencing and the arguments of counsel relative to sentencing alternatives; (4) The nature and characteristics of the offense; (5) Any mitigating or enhancing factors; (6) Any statements made by the defendant in his own behalf; and (7) The defendant's potential for rehabilitation or treatment. State v. Brewer, 875 S.W.2d 298, 1993 Tenn. Crim. App. LEXIS 837 (Tenn. Crim. App. 1993), appeal denied, — S.W.2d —, 1994 Tenn. LEXIS 119 (Tenn. Apr. 4, 1994).

In determining whether to grant or deny probation, a trial court should consider the following factors: (1) The circumstances of the offense; (2) The defendant's criminal record; (3) The defendant's social history and present condition; (4) The need for deterrence; and (5) The best interests of the defendant and the public. State v. Batey, 35 S.W.3d 585, 2000 Tenn. Crim. App. LEXIS 293 (Tenn. Crim. App. 2000).

There is no mathematical equation to be utilized in determining sentencing alternatives; the sentence should merely fit the offense and be appropriate for the offender as well. State v. Batey, 35 S.W.3d 585, 2000 Tenn. Crim. App. LEXIS 293 (Tenn. Crim. App. 2000).

Third defendant's sentence was not excessive, as the trial court found five enhancing factors, including his criminal history, that the injuries inflicted upon the victim were life-threatening, defendant had previously violated probation, defendant possessed a firearm during the commission of the charged offenses, and the offenses resulted in serious bodily injury and he had already been convicted of a felony that resulted in serious bodily injury. State v. Bonds, 502 S.W.3d 118, 2016 Tenn. Crim. App. LEXIS 266 (Tenn. Crim. App. Apr. 7, 2016).

Trial court properly sentenced defendant, a Range II, multiple offender, to 15 years of imprisonment for aggravated robbery because the sentence was within the statutory range, the trial court carefully considered the arguments of the parties, the evidence presented at the sentencing hearing, and the statutory factors that defendant had three prior felony convictions for aggravated robbery and had been on probation for the second offense at the time he committed the third, his actions were motivated by a desire to buy more drugs, he was not a candidate for alternative sentencing, he was the leader of two actors in the commission of the aggravated robbery at issue, and he did not establish that the sentence was improper. State v. Roberts, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 139 (Tenn. Crim. App. Feb. 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 378 (Tenn. June 7, 2017).

Trial court did not err in imposing defendant's within-range sentence because the court considered all the relevant principles associated with sentencing in imposing defendant's sentence of split confinement for misdemeanor conviction of simple possession and felony conviction of facilitation of the possession with intent to sell or deliver .5 grams or more of cocaine because the court, in a written sentencing order, enhanced defendant's sentence based upon defendant's previous history of criminal convictions but found no mitigating factors. State v. Bynum, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 924 (Tenn. Crim. App. Oct. 20, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 132 (Tenn. Feb. 14, 2018).

Even assuming that the trial court misapplied the criminal behavior enhancement factor in connection with defendant's conviction of rape of a child and especially aggravated sexual exploitation of a minor, the trial court considered all the relevant principles associated with sentencing, and defendant conceded that the trial court appropriately applied the enhancement factor of the abuse of a position of trust. State v. Baskins, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 416 (Tenn. Crim. App. May 31, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 553 (Tenn. Sept. 14, 2018).

Trial court imposed a within applicable range sentence after properly considering the evidence adduced at trial and the sentencing hearing, the presentence report, the principles of sentencing, the parties' arguments, the nature and characteristics of the crime, the potential for rehabilitation, and the evidence of enhancing factors; therefore, defendant's sentence was presumed reasonable. State v. Woodard, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 697 (Tenn. Crim. App. Sept. 13, 2018).

Defendant was properly convicted of sexual exploitation of a minor and aggravated sexual exploitation of a minor because, inter alia, he admitted to having child pornography on his phone, many of the children depicted in the 3000 images and 23 videos were infants and toddlers and the trial court properly considered the evidence and statutory factors. State v. Norton, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 149 (Tenn. Crim. App. Mar. 8, 2019).

Trial court properly sentenced defendant because it considered the relevant principles and sentenced defendant to within range sentences of 19 and 21 years for his convictions; as a Range I offender, defendant's sentencing range was 15 to 25 years by operation of law. State v. Morse, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 460 (Tenn. Crim. App. July 31, 2019).

Trial court properly sentenced defendant to serve eight years, the maximum sentence, as a Range II, multiple offender because the parties had agreed pursuant to the plea agreement for defendant to be sentenced as a Range II offender, the trial court applied enhancement factors, defendant's sentence was within the range for a Range II, Class D felony, the record reflected that the trial court considered and applied the purposes and principles of the Sentencing Act in reaching its determination, and defendant did not demonstrate on appeal that the trial court abused its discretion in relying on the presentence report. State v. Murray, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 603 (Tenn. Crim. App. Sept. 26, 2019), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 132 (Tenn. Feb. 19, 2020).

Defendant's effective within-range eight-year sentence for aggravated assault and felony vandalism was upheld; the trial court properly considered the evidence, the presentence report, the principles of sentencing, the nature of the crime, and enhancement factors. In part, defendant had a criminal history and failed to comply with conditions of a sentence involving release into the community, and the trial court considered defendant's willingness to plead guilty. State v. Horton, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 793 (Tenn. Crim. App. Dec. 20, 2019).

11. Sentence Upheld on Appeal.

Trial court did not err by ordering defendant's three-year sentences for theft and vehicular assault to be served concurrently to each other but consecutively to defendant's 21-year sentence for aggravated vehicular homicide, resulting in a 24-year sentence; upon de novo review of the factors set forth in T.C.A. § 40-35-103, court of criminal appeals upheld defendant's sentence because he had a record of criminal activity that included over 20 prior convictions and the sentence was within the appropriate range. State v. Bowman, 327 S.W.3d 69, 2009 Tenn. Crim. App. LEXIS 35 (Tenn. Crim. App. Jan. 14, 2009), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 395 (Tenn. June 15, 2009), cert. denied, Bowman v. Tennessee, 175 L. Ed. 2d 388, 130 S. Ct. 559, 2009 U.S. LEXIS 8080 (U.S. 2009).

In a case in which defendant was convicted of one count of initiating the methamphetamine manufacturing process and three counts of driving on a revoked license, second offense or more, the court of criminal appeals concluded that the trial court's imposition of a 10-year sentence was presumptively reasonable and that defendant failed to rebut that presumption. State v. Wilburn, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 82 (Tenn. Crim. App. Feb. 6, 2017).

Imposition of a three-year sentence mandated the trial court's considering probation as a sentencing option, but the trial court did not err in ordering defendant to serve his sentence in confinement; defendant drove after drinking all day, crashed his truck, and fled the scene, plus his probation had been revoked on five separate occasions, and he had a criminal history of drug-related and driving-related convictions. State v. Penley, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 258 (Tenn. Crim. App. Apr. 7, 2017).

In a case in which defendant was convicted of rape of a child, defendant's 27-year sentence was not excessive. When imposing sentence, the trial court considered all the relevant principles associated with sentencing, including the enhancement and mitigating factors. State v. Cruz, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 283 (Tenn. Crim. App. Apr. 17, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 514 (Tenn. Aug. 16, 2017).

Trial court properly sentenced defendant because the sentences were within the applicable range, and the trial court correctly applied all enhancement factors; the trial court identified several enhancement factors on the record and considered the principles and purposes of the Sentencing Act. State v. Armstrong, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 587 (Tenn. Crim. App. July 5, 2017).

Trial court properly sentenced defendant under T.C.A. § 39-17-1307 to a term of incarceration; while the trial court did not make specific findings regarding the determinations set forth in T.C.A. § 40-35-103(1)(A)-(C), the record supported the imposition of a sentence of confinement because as a Range II, multiple offender under T.C.A. § 40-35-102(6)(A), he was not considered a favorable candidate for an alternative sentence, he had prior felony convictions, and confinement was necessary to protect society. State v. Theus, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 613 (Tenn. Crim. App. July 12, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 794 (Tenn. Nov. 16, 2017).

Trial court did not abuse its discretion when it sentenced defendant to an effective 12-year sentence for attempted aggravated robbery; the trial court clearly stated its reasons for the sentence imposed, defendant's sentence was within the appropriate range; and it was apparent that the trial court considered the purposes and principles of the Sentencing Act under T.C.A. §§ 40-35-210, 40-35-103. State v. Gray, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 695 (Tenn. Crim. App. Aug. 7, 2017).

Defendant's 15-year sentence for one count of sale and one count of delivery of a Schedule II controlled substance, morphine, was not excessive because the sentence was within the statutorily-applicable range; besides defendant's five prior felony convictions that established his range, defendant had convictions for contempt, simple possession, assault, domestic assault, contributing to the delinquency of a minor, under-age drinking, and vandalism; defendant had nine violations of orders of protection; and defendant had previously failed to comply with the conditions of his release into society. State v. Shelton, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 832 (Tenn. Crim. App. Sept. 11, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 33 (Tenn. Jan. 17, 2018).

Trial court did not err by ordering defendant to serve his sentences for tampering with the evidence and filing false reports because the circumstances of the offenses could be described as shocking, offensive, or reprehensible because defendant, a police officer sworn to uphold the law, not only broke the law but also used his position as a police officer to do so, he manipulated the system in a way that broke the public trust, and the record supported the trial court's finding of a need for deterrence to similarly-situated individuals. State v. Millan, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 810 (Tenn. Crim. App. Nov. 1, 2018).

Trial court did not err by ordering that defendant serve his sentence in confinement because defendant and another individual were involved in a shoplifting scheme, he had a long history of criminal conduct, and measures less restrictive than confinement had frequently or recently been applied unsuccessfully to him, and he was a professional criminal with a record of criminal activity that was extensive. State v. Talley, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 261 (Tenn. Crim. App. Apr. 24, 2019).

Defendant's maximum 30-year sentence for possession of 0.5 grams or more of cocaine with intent to deliver was upheld on appeal; he was a career offender, the sentence was in range, and the trial court considered several enhancement and mitigating factors and followed the purposes of the Sentencing Act. State v. Parks, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 740 (Tenn. Crim. App. Nov. 13, 2019).

Not only the video, but defendant's own testimony showed that her reaction to social media postings led her to commit the criminal assault on the victim, and the trial court relied on defendant's prior probation violation and bond condition violation in ordering a sentence that included probation with all but 90 days suspended; the trial court did not err in denying full probation. State v. Stone, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 33 (Tenn. Crim. App. Jan. 24, 2020).

Trial court did not abuse its discretion in enhancing defendant's sentences for aggravated sexual battery above the statutory minimum because the court imposed a within-range sentence after considering the evidence, the presentence report, the principles of sentencing, the parties' arguments, the nature and characteristics of the crimes, and the evidence of mitigating and enhancement factors. The court also found that defendant had a previous history of criminal convictions or criminal behavior and abused a position of private trust. State v. Gleason, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 78 (Tenn. Crim. App. Feb. 10, 2020).

12. Sentence Reversed and Remanded on Appeal.

Trial court erred in denying a mother's motion to alter or amend an order finding her guilty of criminal contempt for non-payment of child support because nothing in the order indicated that it considered whether the mother's sentence would be served consecutively or concurrently, and it completely omitted any discussion of the sentencing factors; the order failed to even indicate the statutory provision relies upon in finding the mother in contempt and imposing the sentence of incarceration. Burris v. Burris, 512 S.W.3d 239, 2016 Tenn. App. LEXIS 698 (Tenn. Ct. App. Sept. 20, 2016).

In a case in which defendant was convicted of vandalism of property valued at more than $500 but less than $1,000, although the record supported the imposition of a two-year sentence, it did not support a sentence of full confinement because a sentence of continuous confinement for a conviction of vandalism of property valued at less than $1,000 was statutorily prohibited; thus, the case had to be remanded for a new sentencing hearing at which the trial court could sentence defendant to sentencing alternatives, which included, but were not limited to, periodic confinement, work release, community corrections, probation, or judicial diversion. State v. Beauregard, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 29 (Tenn. Crim. App. Jan. 16, 2018).

Trial court erred when it denied defendant's request for judicial diversion because it failed to consider and weigh the applicable factors for determining the issue of judicial diversion; the matter was remanded because the technical record on appeal did not include defendant's application for judicial diversion or the certificate of eligibility issued by the Tennessee Bureau of Investigation. State v. Norris, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 357 (Tenn. Crim. App. June 21, 2019).

Remand for a new sentencing hearing was necessary, when defendant pleaded guilty to reckless homicide, because the trial court made determinations in denying full probation that were not supported by the record. Further, although the trial court determined that the minor victim's death by accidental drowning might have been prevented but for defendant's working on a computer while supervising the victim and the victim's siblings, it was insufficient to deny full probation on the ground defendant killed someone while engaged in reckless conduct. State v. Baysinger, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 801 (Tenn. Crim. App. Dec. 23, 2019).

13. Denial of Probation Affirmed.

Although the trial court erroneously relied on a fact not in the record in support of the denial of probation, it properly considered the statutory criteria and other facts supported by the record; the trial court considered the pre-sentence report, defendant's lack of a criminal record, and his positive physical, mental, and social history, and it combined the need to avoid depreciating the seriousness of the offense with the need for deterrence and the nature and circumstances of the offense. State v. Sihapanya, 516 S.W.3d 473, 2014 Tenn. LEXIS 366 (Tenn. Apr. 30, 2014).

Trial court found that probation would depreciate the seriousness of the burglary and theft and defendant lacked the potential for rehabilitation, and thus the trial court's denial of probation was afforded a presumption of reasonableness; the evidence supported the denial, as defendant admitted to using drugs daily for 20 years, and to using drugs before the crime and using the money obtained from the crime to purchase more drugs, plus he had previously fled from Mississippi to Louisiana and was arrested as a fugitive from justice. State v. Firestone, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 103 (Tenn. Crim. App. Feb. 16, 2017).

Trial court did not err by denying defendant alternative sentencing because defendant's argument that the trial court failed to consider the factors of this section was not supported by the record, the trial court found that confinement was necessary to avoid depreciating the seriousness of the offense, it found that he was not truthful, T.C.A. § 40-35-113(7) was not applicable because the testimony about his son's health was offered to establish that defendant's absence from the household would create a hardship due to the need for a specialized caretaker, and the record did not show that the trial court denied probation based on defendant's release eligibility date. State v. Redden, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 193 (Tenn. Crim. App. Mar. 15, 2017).

Trial court did not err in denying probation because it considered the relevant sentencing considerations, and defendant did established that the trial court abused its discretion in denying alternative sentencing; the trial court saw no reason to go through probation considerations, noting that the “outrageous” crime was committed while in custody, and the pre-sentence report catalogued defendant's seven prior criminal convictions and his revocation of probation. State v. Armstrong, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 587 (Tenn. Crim. App. July 5, 2017).

Denial of probation was not improper, as the trial court's determined probation would unduly depreciate the seriousness of the offense, confinement would provide an effective deterrent, and defendant was not a favorable candidate for probation. State v. Lutrell, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 592 (Tenn. Crim. App. July 6, 2017).

Trial court did not abuse its discretion by ordering that defendant serve his entire nine-year sentence in confinement because defendant's involvement in the firing of a handgun into a crowd of people was a serious offense that warranted incarceration, and defendant's lack of candor and close gang affiliation weighed against an award of alternative sentence. State v. Tenaz, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 658 (Tenn. Crim. App. July 27, 2017).

Trial court did not err when it ordered defendant to serve the balance of his sentence incarcerated because it addressed at length defendant's prior failed attempts at probation as his reasoning for revoking the sentence, and the trial court and defendant spoke candidly about defendant's conduct that violated probation. State v. Vaughn, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 905 (Tenn. Crim. App. Oct. 6, 2017).

While the trial court erroneously concluded that defendant was not eligible for probation, and, as a result, did not make any of the necessary findings under T.C.A. § 40-35-103, the record fully supported the denial of all forms of alternative sentencing, because, by his own admission, defendant previously completed two probationary sentences, neither of which deterred him from continuing to manufacture methamphetamine, which he did while out on bond. State v. Vanwinkle, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 412 (Tenn. Crim. App. May 25, 2018).

In a rape case, the trial court did not err in denying a sentence of probation or split confinement as the court was concerned with a number of the responses in the psychosexual evaluation; a sentence of probation would unduly depreciate the seriousness of the offense; and the victim testified as to the damage defendant caused her. State v. Danoff, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 503 (Tenn. Crim. App. July 6, 2018).

Trial court did not abuse its discretion by denying defendant an alternative sentence because it reviewed defendant's lengthy criminal history dating back more than 30 years and including multiple driving and alcohol related offenses and defendant was on probation when he consumed a beverage containing alcohol. State v. Sams, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 582 (Tenn. Crim. App. Aug. 3, 2018).

Trial court did not err by denying defendant's request for probation because over three years he committed six felonies, two misdemeanors, and threatened two witnesses, his conviction in one case failed to deter him from continuing to commit crimes, and while alcohol played a role in some of his actions he never sought treatment. State v. Robertson, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 688 (Tenn. Crim. App. Sept. 12, 2018).

Trial court did not abuse its discretion in denying defendant alternative sentencing in sentencing defendant to 37 years in prison for his numerous convictions, which included two counts of reckless homicide, because it looked behind the plea agreement and found that he actually committed a felony murder and should be sentenced to life imprisonment. State v. Smith, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 722 (Tenn. Crim. App. Sept. 21, 2018).

Sentence of four years on each count of accessory after the fact to aggravated robbery to be served concurrently was consistent with the purposes of sentencing was proper; because aggravated robbery was part of defendant's originally charged and indicted offenses, it was not an abuse of discretion for the trial court to consider the underlying charge when making its decision to order confinement, and it was also not an abuse of discretion for the trial court to rely on the finding that defendant was untruthful as a basis for denying probation. State v. Sims, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 189 (Tenn. Crim. App. Mar. 27, 2019).

Trial court did not abuse its discretion by denying defendant an alternative sentence because it determined that a sentence of full probation would depreciate the seriousness of the offense. The trial court examined each factor to be considered, noting specifically the tragedy of the school bus accident, during which defendant was the driver and six children died and at least 22 suffered physical injuries ranging from bruises to severed limbs. State v. Walker, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 574 (Tenn. Crim. App. Sept. 17, 2019).

Trial court did not abuse its discretion by denying him an alternative sentence because the evidence established that the victim, who was shy and reserved by her own admission, was traumatized by defendant's actions, as evidenced by her threatening suicide, and the impact on her behavior was substantial. Defendant took advantage of the victim's vulnerability and naiveté by giving her alcohol and drugs at adult parties and then raping her when she was intoxicated. State v. Wallace, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 94 (Tenn. Crim. App. Feb. 14, 2020).

In a reckless homicide case, defendant was not a suitable candidate for probation and incarceration was necessary to avoid depreciating the seriousness of the offense because the trial court noted the very serious nature of the offense as defendant smothered her newborn baby by placing her hand over the baby's mouth and nose after she was born; defendant killed her very quickly indicating no hesitation about committing the offense and then placed the baby in a garbage bag; and defendant showed no remorse for her actions. State v. Brown, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 441 (Tenn. Crim. App. June 25, 2020).

14. Denial of Probation Improper.

Trial court erred in finding that it did not have the authority to order defendant to serve his sentences for the drug convictions on probation because the possession of a firearm with the intent to go armed during the commission of a dangerous felony statute limited the trial court's discretion to grant probation only for convictions resulting from the possession of a firearm and did not limit the trial court's discretion to grant probation for the underlying dangerous felonies; thus, defendant, who was sentenced to three years each for the drugs convictions, was eligible for probation for those convictions. State v. Lindsey, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 451 (Tenn. Crim. App. June 20, 2018).

15. Denial of Alternative Sentencing Affirmed.

Trial court did not abuse its discretion by denying defendant's request for an alternative sentence for aggravated assault because the offense was committed with two weapons, the victim and defendant did not know each other, they were not arguing, the victim was assisting defendant at the time of the offense, the trial court found that defendant's testimony was not credible, and it found that defendant's lack of candor weighed against his grant of an alternative sentence because he failed to accept responsibility for the offense. State v. Adams, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 175 (Tenn. Crim. App. Mar. 8, 2017).

Trial court did not abuse its discretion in denying defendant an alternative sentence like probation, as the trial court considered the sentencing principles and all relevant facts; although the trial court did not explicitly address the mitigating factor that defendant's criminal conduct did not cause or threaten serious bodily injury, the trial court considered it, but chose to give it little weight, which was its province, plus the trial court found that less restrictive measures had repeatedly been applied to defendant without success. State v. Walker, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 200 (Tenn. Crim. App. Mar. 16, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 451 (Tenn. July 18, 2017).

Trial court did not err in denying alternative sentencing based on its determination that the defendant's incarceration would avoid depreciating the seriousness of the offense, defendant's shooting of her husband at point blank range after an argument over dinner, and provide an effective deterrence to others. State v. Jetton, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 414 (Tenn. Crim. App. May 18, 2017).

Defendant did not establish that the trial court abused its discretion in denying alternative sentencing because the trial court considered the relevant sentencing considerations; the trial court specifically noted defendant's lengthy criminal history, that there had been less restrictive measures applied to him, and that there was a substantial risk that he would commit another crime if granted probation. State v. Zickefoose, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 520 (Tenn. Crim. App. June 20, 2017).

Trial court did not abuse its discretion by ordering a fully-incarcerated sentence because defendant had a lengthy criminal history and the trial court was concerned about his failure to comply with court orders; because the trial court considered all relevant principles associated with sentencing, no error attended the imposition of the within-range sentence. State v. Day, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 656 (Tenn. Crim. App. July 27, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 873 (Tenn. Dec. 6, 2017).

Trial court did not abuse its discretion by requiring defendant to serve in confinement her 10-year sentence for 19 counts of prescription medication fraud and 36 counts of identity theft because she had a long history of criminal conduct, as she was taking prescription medication from patients as early as February 2011, and the trial court believed there was a need to avoid depreciating the seriousness of the offense and a need for deterrence, as the record established that defendant was a nurse who took prescription pain medication from hospice patients who were entrusted in her care. State v. Walls, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 666 (Tenn. Crim. App. July 31, 2017).

Trial court did not err in sentencing defendant to a term of imprisonment, rather than alternative sentencing, after defendant pleaded of nolo contendere to attempted aggravated child neglect because the court found that confinement was necessary to avoid depreciating the seriousness of the offense as defendant's neglect left defendant's child almost dead from malnutrition, the infant victim was particularly vulnerable, defendant abused defendant's position of private trust with the victim, and defendant was not amenable to rehabilitation. State v. McLerran, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 729 (Tenn. Crim. App. Aug. 16, 2017).

Trial court did not abuse its discretion in denying alternative sentencing and ordering defendant to serve a portion of her within-range sentence in confinement, as it was not an isolated sale of pills, defendant played a major role, and defendant was not honest in her representation to the court or the jury. State v. Burton, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 821 (Tenn. Crim. App. Sept. 7, 2017).

Trial court did not abuse its discretion in denying an alternative sentence given defendant's extensive criminal history including over 20 prior convictions, previous failure to comply with probation rules by failing past drug screens, failure to pay restitution, failure to meet the terms of supervision, and failure to maintain employment. State v. Clark, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 885 (Tenn. Crim. App. Sept. 29, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 101 (Tenn. Jan. 23, 2018).

Trial court did not abuse its discretion in denying alternative sentencing because it considered the relevant sentencing considerations; the trial court specifically noted defendant's criminal history, the fact that defendant was previously sentenced to probation, and the fact that he was on community corrections at the time of the offense, and it expressed doubt with regard to his ability to be rehabilitated based on the fact that he was on community corrections at the time of the offense. State v. Gordon, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 117 (Tenn. Crim. App. Feb. 20, 2018).

Trial court properly ordered that defendant serve her sentences in confinement because it found that confinement was necessary to protect society from defendant and that she lacked potential for rehabilitation; the trial court was greatly troubled by defendant's likelihood to re-offend and her lack of potential for rehabilitation, and it stated defendant posed a threat to the public given her prior history and her continual disregard of conforming her conduct to the requirements of the law. State v. Hottiman, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 159 (Tenn. Crim. App. Feb. 28, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 455 (Tenn. July 19, 2018).

Trial court did not err in imposing a sentence of confinement and in denying defendant's request for probation or alternative sentencing because defendant had a long history of criminal conduct and measures less restrictive than confinement had been applied unsuccessfully to defendant. Defendant was ineligible for community corrections because defendant's convictions for reckless endangerment and aggravated burglary were crimes against a person and none of the programs available in the community recommended defendant for enhanced probation. State v. Ray, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 162 (Tenn. Crim. App. Mar. 2, 2018).

Trial court did not abuse its discretion by denying any form of alternative sentencing for defendant's one-year failure to appear sentence because defendant admitted that she walked out of the facility where she was receiving treatment as she was upset with their policies and that it was the second time she had left the program without permission; according to defendant's mother, defendant waited almost two weeks after learning that a warrant had been issued for her arrest before turning herself in to the jail; defendant was untruthful about not using drugs after 2015; and defendant had been granted both probationary and community corrections sentences and multiple, unsuccessful chances at drug rehabilitation. State v. Sims, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 214 (Tenn. Crim. App. Mar. 22, 2018).

Denial of alternative sentencing was supported by the lack of evidence of a mental health disorder, the circumstances surrounding the offenses, the fact that the thefts were large, and defendant's lack of potential for rehabilitation. State v. Kim, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 264 (Tenn. Crim. App. Apr. 6, 2018).

Trial court did not abuse its discretion by ordering defendant to serve his four-year sentence for robbery in confinement after considering the nature of the offense, defendant's age and lack of potential for rehabilitation, and defendant's years of drug use without seeking treatment. State v. Smith, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 265 (Tenn. Crim. App. Apr. 6, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 346 (Tenn. June 6, 2018).

Trial court did not abuse its discretion by denying defendant's request for an alternative sentence for his convictions of vehicular homicide and DUI per se, based on the need to avoid depreciating the seriousness of the offense, because it considered the particular circumstances of the offense, including that defendant hopped a curb with his vehicle and pulled onto a busy highway, directly into the victim's path. The trial court also deemed defendant's blood alcohol content at over three times the legal limit as excessive. State v. Cofrancesco, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 725 (Tenn. Crim. App. Sept. 24, 2018).

Trial court properly denied alternative sentencing for defendant's guilty-pleaded convictions of kidnapping, aggravated domestic assault, possession of a schedule I controlled substance, possession of a synthetic drug, and possession of drug paraphernalia because, while the imposition of an effective six-year sentence mandated the trial court's consideration of probation as a sentencing option, defendant's lengthy criminal history and previous failure to abide by the terms of his probation supported the trial court's determination that confinement of defendant was necessary. State v. Rose, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 918 (Tenn. Crim. App. Dec. 26, 2018).

Sentences of 11 months and 29 days for simple possession of marijuana was upheld, as defendant lacked truthfulness, confinement was necessary to avoid depreciating the seriousness of the offense, and incarceration provided an effective deterrent; as the sentences were within the appropriate range for his convictions and reflected the proper application of the purposes and principles of the sentencing act, the trial court did not abuse its discretion in denying an alternative sentence, including probation. State v. Hampton, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 159 (Tenn. Crim. App. Mar. 12, 2019).

Trial court did not abuse its discretion in declining to impose an alternative sentence after defendant pled guilty to eight counts of theft of property, as defendant was sentenced as a Range II offender and as such was not considered to be a favorable candidate for alternative sentencing and defendant had an extensive criminal history and had found to comply with the terms for probation and parole. State v. Lassiter, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 197 (Tenn. Crim. App. Mar. 28, 2019).

In a case in which defendant pled guilty to being a felon in possession of a firearm and identity theft and received a total effective sentence of 10 years, the trial court did not err in denying defendant's petition for a suspension of his sentence because defendant had a long history of criminal conduct; he repeatedly used drugs and violated the law; measures less restrictive than confinement had been unsuccessful; and defendant had poor potential for rehabilitation. State v. Pettis, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 209 (Tenn. Crim. App. Mar. 29, 2019).

In a case in which defendant pled guilty to attempted second degree murder, the trial court did not err in denying defendant alternative sentencing because the record showed that defendant attacked the victim from behind, stabbing him four times and causing life-threatening injuries that required the victim to undergo open heart surgery; and defendant committed the offense in the presence of the victim's four-year-old child, which satisfied the requirement that the offense be especially violent, horrifying, shocking, reprehensible, and offensive. State v. Underwood, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 302 (Tenn. Crim. App. May 10, 2019).

Trial court did not abuse its discretion when it denied defendant alternative sentencing following his guilty plea for five counts of aggravated sexual exploitation of a minor because, although the trial court did not expressly address this section, it went into great detail and explained why each factor weighed in favor of or against an alternative sentence. The trial court considered factors set out in T.C.A. §§ 40-35-210, 40-35-113, 40-35-114, 40-35-103, and 40-35-303 and stated on the record the reasons for the sentence it imposed, and therefore its sentencing decisions were entitled to a presumption of reasonableness. State v. Beckham, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 673 (Tenn. Crim. App. Oct. 22, 2019).

Trial court properly exercised its discretion when it ordered defendant to serve his 10-year sentence for aggravated burglary and driving on a revoked license in confinement after finding that alternative sentencing was not appropriate due to defendant's extensive criminal history, including at least 17 prior felony convictions that involved separate periods of incarceration or supervision. State v. Demoss, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 127 (Tenn. Crim. App. Feb. 24, 2020).

Trial court did not abuse its discretion by ordering a sentence of confinement, as the record indicated that defendant had a long history of criminal convictions and had frequently failed to comply with the terms of his probation, and the record supported the trial court's finding that measures less restrictive than confinement had frequently and recently been applied unsuccessfully to defendant. State v. Gregg, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 165 (Tenn. Crim. App. Mar. 5, 2020).

Trial court did not abuse its discretion by ordering a sentence of full confinement, as the record established that defendant's criminal history spanned more than 20 years and included numerous revocations of community-based sentences, and defendant was rejected by two supervision programs on the basis of his lengthy criminal history and failure to successfully complete a variety of sentences involving release into the community. The record supported the trial court's finding that measures less restrictive had been unsuccessful. State v. Rutherford, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 167 (Tenn. Crim. App. Mar. 5, 2020).

Trial court did not err in sentencing defendant to nine years for theft because the record supported the trial court's decision to deny an alternative sentence in part upon defendant's criminal history, which included that he had violated his parole, was returned to incarceration, and was released from custody shortly before committing the offenses herein. Additionally, the trial court found defendant's testimony evasive and that he minimized his participation in these offenses. State v. Wolfenbarker, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 237 (Tenn. Crim. App. Apr. 14, 2020).

In an action for theft of property, the trial court did not err in not sentencing defendant to an alterative sentence after finding that confinement was necessary to protect society by restraining defendant, who had a long history of criminal conduct; a sentence of probation would unduly depreciate the seriousness of this offense; and confinement was necessary to avoid depreciating the seriousness of the offense or confinement was particularly suited to provide an effective deterrence to others likely to commit similar offenses. State v. Dunkin, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 287 (Tenn. Crim. App. Apr. 24, 2020).

Trial court did not err in denying defendant's request for alternative sentences based, in part, upon the defendant's criminal history spanning more than twenty years and his previous probation violations. Moreover, a drug screen conducted on the date of defendant's sentencing hearing revealed defendant attended the hearing with multiple controlled substances in his system. State v. Wayman, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 339 (Tenn. Crim. App. May 14, 2020).

Trial court did not err in denying defendant's request for judicial diversion because, although defendant was eligible, defendant's criminal record and the circumstances of the offense weighed against defendant, as defendant's testimony denying misconduct was found not to be credible, and defendant's untruthfulness was probative of defendant's suitability for alternative sentencing and potential for rehabilitation. State v. Funzie, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 387 (Tenn. Crim. App. June 3, 2020).

16. Sentence Upheld.

Trial court did not err in ordering defendant to serve the maximum consecutive misdemeanor sentences after he pleaded guilty to leaving the scene of an accident and Driving Under the Influence (DUI) because it found that defendant had recently been in trouble with the law on several occasions and that he had a problem with his temper; while on bond, defendant twice cut off his alcohol monitoring bracelet and was arrested on multiple occasions for DUI. State v. Layhew, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 19 (Tenn. Crim. App. Jan. 13, 2017).

Trial court did not abuse its discretion by sentencing defendant to 11 months, 29 days confinement at 75% release eligibility for two counts of misdemeanor delivery of a controlled substance because defendant did not present proof as to why confinement was improper and probation was in his and the public's best interest, as he had two previous violations of probation. State v. Lee, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 342 (Tenn. Crim. App. May 5, 2017).

Others were in the area when defendant began shooting, and thus the trial court did not abuse its discretion in applying the enhancement factor regarding no hesitation to commit a crime when the risk to human life was high, plus nothing established that the trial court wholly departed from the statutes in applying the various enhancement factors and within-range sentences; thus, there was no abuse of discretion in defendant's sentences of 23 years for aggravated robbery, five years for aggravated assault, and four years for attempted voluntary manslaughter. State v. Steed, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 343 (Tenn. Crim. App. May 5, 2017).

As a Range II, multiple offender convicted of a Class C felony, unlawful possession of a firearm under T.C.A. § 39-17-1307, the applicable sentencing range was six to ten years under T.C.A. § 40-35-112(b)(3), and the trial court imposed a nine-year sentence; the trial court considered the principles of sentencing for purposes of T.C.A. §§ 40-35-210, 40-35-103, the nature of the offense, and enhancing and mitigating factors, such that there was no abuse of discretion. State v. Theus, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 613 (Tenn. Crim. App. July 12, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 794 (Tenn. Nov. 16, 2017).

Trial court did not abuse its discretion in sentencing defendant to 10 years and six months for aggravated robbery under T.C.A. § 39-13-402(a)(1); even if the trial court misapplied the enhancement under T.C.A. § 40-35-114(17), the trial court found § 40-35-114(1) applicable, which was an adequate basis for enhancement, and defendant did not contest this, plus the trial court considered the purposes and principles of sentencing under T.C.A. §§ 40-35-210, 40-35-103. State v. Farris, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 620 (Tenn. Crim. App. July 12, 2017).

Record supported the trial court's conclusion that confinement was necessary to avoid depreciating the serious nature of defendant's convictions, including the repeated sale of heroin, a Schedule I substance, and defendant's continuing to possess a firearm despite having been previously convicted of several felonies. State v. Lewis, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 745 (Tenn. Crim. App. Aug. 22, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 880 (Tenn. Dec. 6, 2017).

Trial court did not abuse its discretion when sentencing defendant to the maximum sentences of incarceration available for each of defendant's attempted first degree murder convictions because the trial court relied heavily on defendant's criminal history and noted defendant could have been sentenced as a Range II offender. In addition, the trial court found the facts established at trial indicated defendant was the leader in the commission of the offenses and that defendant acted without hesitation when the risk to human life was high. State v. Sims, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 814 (Tenn. Crim. App. Sept. 5, 2017).

Denial of full probation was supported by the trial court's consideration of the deterrence value as it related to defendant, that confinement would avoid depreciating the seriousness of the offense, and the exaggerated circumstances of the offense, which included defendant's unprovoked attack, with a gun he brought to the dispute and used to shoot the victim, and his lack of concern for the victim during the altercation. State v. Miller, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 912 (Tenn. Crim. App. Sept. 13, 2017).

After pleading guilty to the rape of the victim, defendant's adult daughter, the trial court did not err by imposing the maximum available sentence of 20 years' incarceration on defendant because, of the five enhancement factors applied, the trial court stated that the abuse of trust was very significant, stating that there was no greater trust than a parent and child relationship; the court considered defendant's social history to be troubling due to his lack of clear employment and his failure to significantly support any of his six children; the court found no mitigating factors were applicable; and, with respect to the victim impact statement, the court found that the victim explained in vivid detail how the rape had destroyed her life. State v. Vincent, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 878 (Tenn. Crim. App. Sept. 28, 2017).

Record supported the maximum sentence within range for rape of a child under T.C.A. §§ 39-13-522, 39-13-503(a)(2), plus aggravated and especially aggravated sexual exploitation of a minor conviction under T.C.A. §§ 39-17-1004(a)(1), 39-17-1005(a)(1); the trial court considered all the relevant principles associated with sentencing under T.C.A. § 40-35-103, when imposing the sentences in this case. State v. Smartt, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 960 (Tenn. Crim. App. Nov. 14, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 193 (Tenn. Mar. 16, 2018).

Denial of probation under T.C.A. § 40-35-303 for the theft offense under T.C.A. § 39-14-105 was not error requiring relief; the record supported the trial court's consideration under T.C.A. § 40-35-103 of defendant's criminal record and history of criminal behavior, as well as her lack of potential for rehabilitation and the fact that she was on probation when she committed the current offenses. State v. Moore, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 982 (Tenn. Crim. App. Nov. 28, 2017).

Trial court did not abuse its discretion in sentencing a husband for criminal contempt because the maximum jail time the husband could have received would have been 190 days, and he received less than half of that amount for his egregious behavior; there was nothing excessive in the sentence, and the husband never even articulated why or how the sentence was excessive. Trezevant v. Trezevant, — S.W.3d —, 2018 Tenn. App. LEXIS 213 (Tenn. Ct. App. Apr. 25, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 622 (Tenn. Sept. 18, 2018).

For purposes of T.C.A. § 40-35-103(1)(A), (C), the trial court did not abuse its discretion in ordering defendant to serve his sentences in incarceration, as confinement was necessary to protect society given defendant's long history of criminal activity, plus less restrictive measures had been applied recently and yielded unsuccessful results; his sentences involving probation and community corrections had previously been revoked, and he violated parole by pleading guilty to the current charges. State v. Childress, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 38 (Tenn. Crim. App. Jan. 19, 2018).

Trial court sentenced defendant in the appropriate range for all three sentences for rape of a child and did not abuse its discretion in determining the length of sentences or the partially consecutive alignment because it considered the purposes and principles of sentencing; the trial court was presented with evidence that defendant committed a fourth rape for which he was not charged and considered the aggravating circumstances arising from the relationship between defendant and the victim. State v. Franklin, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 139 (Tenn. Crim. App. Feb. 27, 2018).

Defendant did not show that his 42-year sentence for one count of driving under the influence, fourth offense, and three counts of aggravated vehicular homicide was improper; the trial court sentenced defendant to a within range sentence, the trial court filed detailed findings of facts to support defendant's sentence, including his criminal history and failure to comply with conditions of a sentence, and the trial court considered the purposes and principles of the Sentencing Act. State v. Fleming, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 218 (Tenn. Crim. App. Mar. 22, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 420 (Tenn. July 18, 2018).

Trial court did not err in imposing the maximum in-range sentence of 40 years for defendant's conviction of rape of a child and especially aggravated sexual exploitation of a minor, as the trial court considered the mitigating factors and determined that the enhancement factors far outweighed any mitigation, plus the trial court found the need to protect the community from defendant to be paramount. State v. Baskins, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 416 (Tenn. Crim. App. May 31, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 553 (Tenn. Sept. 14, 2018).

In a case in which defendant was convicted of two counts of aggravated sexual battery, the trial court did not err in sentencing defendant to consecutive terms of 25 years as a persistent offender with 100% service, for a total effective sentence of 50 years, because he had a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range; he had an extensive criminal record; he had a history of committing violent offenses; the 20-30 range was appropriate based on defendant being a persistent offender convicted of a Class B felony; and consecutive sentences were appropriate as defendant had been convicted of two or more statutory offenses involving sexual abuse of a minor. State v. Freels, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 520 (Tenn. Crim. App. July 13, 2018).

Trial court did not abuse its discretion in sentencing defendant to concurrent, within-range sentences for second degree murder and aggravated child abuse convictions because the court did not err in considering a jail inmate's testimony of defendant's confession in imposing the sentences. Although the court misapplied the enhancement factor that the personal injuries suffered by the victim were particularly great to defendant's aggravated child abuse conviction, the court did not wholly depart from the statutes in applying enhancement factors. State v. Russell, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 581 (Tenn. Crim. App. Aug. 3, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 719 (Tenn. Nov. 14, 2018).

Trial court's order of confinement was supported by the record, as defendant had a prior history of criminal offenses and had previously failed to successfully complete parole, and the trial court properly exercised its discretion by ordering defendant to serve his sentence in the Department of Correction. State v. Smith, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 632 (Tenn. Crim. App. Aug. 20, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 676 (Tenn. Nov. 14, 2018).

Sentence and fines that were imposed for defendant's possession with intent to sell/deliver and possession of drug paraphernalia convictions were in accordance with the applicable sentencing principles because the concurrent sentence was within the statutory range as defendant was a Range II, multiple offender with felony and misdemeanor convictions. The trial court also noted that defendant was on parole when committing the offenses and that not imposing some sentence to serve would have taken away from the seriousness of the offense. State v. Boykin, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 124 (Tenn. Crim. App. Feb. 21, 2019).

Trial court did not improperly order defendant to serve the balance of his consecutive two-year sentences upon finding that defendant had violated the conditions of his probation as the trial court was not required to consider the sentencing statute when revoking defendant's probation because defendant could not be resentenced under the sentencing guidelines as the result of probation violation; and the trial court lacked the authority to impose a new sentence or increase the length of the original sentence at the probation hearing. State v. Parker, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 148 (Tenn. Crim. App. Mar. 8, 2019).

Defendant's sentence requiring that he serve his 21-year sentence for especially aggravated kidnapping consecutively to his life sentence for first degree premeditated murder did not violate the principles of sentencing set forth in this section because in imposing the sentence, the trial court considered the facts and circumstances of the offenses, the presentence report, and the principles of sentencing, and defendant did not demonstrate that his aggregate sentence resulted from the application of an incorrect legal standard, an illogical conclusion, a clearly erroneous assessment of the evidence, or reasoning that has perpetuated an injustice. State v. Brown, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 220 (Tenn. Crim. App. Apr. 8, 2019).

Defendant's within-range 40-year sentence for rape of a child was upheld; although the trial court was incorrect in stating that defendant raped the victim vaginally, this did not negate his sentence, as the trial court considered the appropriate principles and enhancement factors, including that defendant abused a position of trust, and the enhancement factors, which defendant did not contest, were appropriately applied. State v. Franklin, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 377 (Tenn. Crim. App. June 28, 2019).

Defendant's 30-year sentence for rape of a child was upheld; it was within the range, defendant did not challenge the trial court's consideration of two enhancement factors, and the trial court considered the relevant principles of sentencing. State v. Zarate, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 393 (Tenn. Crim. App. July 5, 2019).

Defendant's sentence of 15 years' incarceration for aggravated child neglect was affirmed because enhancement factor (1) did not require that defendant's prior convictions or criminal behavior relate to the current sentence; and the trial court imposed a within-range sentence after properly considering the evidence adduced at the sentencing hearing, the presentence report, the principles of sentencing, the parties' arguments, the nature and characteristics of the crime, and evidence of mitigating and enhancement factors. State v. Pettus, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 459 (Tenn. Crim. App. July 31, 2019).

Trial court did not abuse its discretion by imposing the maximum sentence for aggravated assault within the defendant's applicable range as a Range II multiple offender; the trial court considered and applied enhancement factors, found no mitigating factors applied, and considered the applicable sentencing principles, and defendant's claim that the trial court placed too much weight on the enhancement factors was not a ground for appeal. State v. Sweeney, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 644 (Tenn. Crim. App. Oct. 11, 2019).

Trial court did not abuse its discretion in applying the enhancement and mitigating factors because the factual findings supporting its application of the factors were fully supported by the record; the trial court found that the victim was particularly vulnerable due to his mental disabilities, that defendant abused a position of private trust when committing the offenses, and that no mitigating factors applied. State v. Harris, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 708 (Tenn. Crim. App. Nov. 5, 2019), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 236 (Tenn. Mar. 26, 2020).

Trial court did not abuse its discretion either in increasing defendant's sentence or in ordering that he serve the sentence in incarceration, after the revocation of his community corrections sentence; the trial court considered the presentence report and the facts of the original offense and subsequent violation, rejected any mitigating factors, and found that defendant had not shown a potential for rehabilitation. State v. Espinoza, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 81 (Tenn. Crim. App. Feb. 11, 2020).

Trial court did not abuse its discretion by ordering a sentence of full confinement where the record indicated that defendant had a long criminal history, defendant was placed on bond pending the sentencing hearing but nevertheless failed to appear for the original setting of the sentencing hearing, and the record clearly supported the trial court's implicit finding that measures less restrictive than confinement had frequently and recently been applied unsuccessfully to defendant. State v. Britton, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 164 (Tenn. Crim. App. Mar. 5, 2020).

17. Split Incarceration.

Trial court did not abuse its discretion in ordering split confinement and ordering defendant to serve one year in confinement and the remainder of his sentence on supervised probation because it determined that a period of confinement was necessary to avoid depreciating the seriousness of the offense, that defendant's prior rape conviction was concerning, and defendant's statement in the presentence report suggested that he did not accept responsibility and as a result that he lacked potential for rehabilitation. State v. Sluder, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 338 (Tenn. Crim. App. May 14, 2020).

40-35-104. Sentencing alternatives.

A defendant convicted of a felony or a misdemeanor in this state shall be sentenced in accordance with this chapter.
1. A defendant who is convicted of a felony after November 1, 1989, and who is sentenced to a total sentence of at least one (1) year but not more than three (3) years, shall not be sentenced to serve the sentence in the department of correction, if the legislative body for the county from which the defendant is being sentenced has either contracted with the department, or has passed a resolution that expresses an intent to contract for the purpose of housing convicted felons with such sentences. If the sentencing court concludes that incarceration is the appropriate sentencing alternative, the defendant must be sentenced to the local jail or workhouse and not to the department.
2. A defendant who is convicted of a felony after November 1, 1989, and who is sentenced to at least one (1) year but not more than six (6) years, shall not be sentenced to serve the sentence in the department of correction if the defendant is being sentenced from a county with a population of not less than four hundred seventy-seven thousand eight hundred eleven (477,811), according to the 1980 federal census or any subsequent federal census, and the legislative body for the county has contracted with the department or has passed a resolution that expresses an intent to contract for the purpose of housing convicted felons with such sentences. If the sentencing court concludes that incarceration is the appropriate sentencing alternative, the defendant must be sentenced to the local jail or workhouse and not to the department.
The following sentencing alternatives in any appropriate combination are authorized for defendants otherwise eligible under this chapter:
1. Payment of a fine either alone or in addition to any other sentence authorized by this subsection (c);
2. Payment of restitution to the victim or victims either alone or in addition to any other sentence authorized by this subsection (c);
3. A sentence of confinement that is suspended upon a term of probation supervision that may include community service or restitution, or both;
4. A sentence of periodic confinement that may be served in a local jail or workhouse in conjunction with a term of probation;
5. A sentence of continuous confinement to be served in a local jail or workhouse in conjunction with a term of probation;
6. A sentence of continuous confinement in a local jail or workhouse;
7. Work release in accordance with § 40-35-315;
8. A sentence of continuous confinement in the department of correction if the conviction is for a felony and the sentence is at least one (1) year, unless:
  1. The sentence is prohibited by subsection (b); or
  2. The defendant is convicted of a violation of § 39-14-103, involving property valued at less than two thousand five hundred dollars ($2,500), and the defendant is sentenced as an especially mitigated offender as defined in § 40-35-109 or a standard offender as defined in § 40-35-105; or
9. A sentence to a community based alternative to incarceration in accordance with the provisions, including eligibility requirements, of chapter 36 of this title.
This chapter does not deprive a court of any authority conferred by law, including, but not limited to, § 40-35-313, to decree a forfeiture of property, suspend or cancel a license, remove a person from office or impose costs and other monetary obligations if specifically authorized by law.
This chapter does not prevent a court from imposing a sentence of death specifically authorized by law.

Acts 1989, ch. 591, § 6; 1990, ch. 1030, § 36; 1991, ch. 374, §§ 1, 2; 1992, ch. 878, § 2; 1996, ch. 699, § 2; 2016, ch. 906, § 6.

Sentencing Commission Comments.

Subsection (a) requires that persons convicted of any felony or misdemeanor must be sentenced in accordance with this chapter. This section must be read in conjunction with § 40-35-117 dealing with the effective date and application of the chapter to persons convicted prior to certain dates.

Subsection (b) provides for the available locations for incarceration. The trial judge can only sentence felony offenders to incarceration in the department of correction, unless the county contracts with the state to house certain felony offenders in the local correctional facility, or unless the defendant is eligible for local confinement under § 40-35-314. The applicable contracts are at the option of local counties and the department of correction and until they are effective inmates must be sentenced to the department of correction. (See Attorney General's Opinion 90-66).

When such contract exists between the county and the state, offenders sentenced under certain parameters shall be sentenced to the local facility. Those parameters are defined by sentence length and county population in this section, along with the provisions of the contract between the state and county.

Subsection (c) is similar to prior law and sets forth the available sentencing options. Obviously, not every sentencing option is available since some felony classifications and ranges mandate incarceration in the department as the only available sentencing option. The 1992 amendment prohibits sentences of continuous confinement in the department for especially mitigated or standard offenders who are convicted of theft of property valued at less than $1,000.

Subsection (d) indicates that the Sentencing Reform Act of 1989 does not remove any authority which a court might have to deal with forfeitures, license regulations, removal from office, imposition of costs, or other obligations which are specifically authorized by law.

Subsection (e) makes clear that the death penalty is an available sentencing provision where permitted by the terms of § 39-13-203 et seq.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Acts 2016, ch. 906, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Public Safety Act of 2016.”

Cross-References. Sentencing provisions applicable to persons committing crimes prior to July 1, 1982, title 40, ch. 20.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 32.190.

Tennessee Jurisprudence, 17 Tenn. Juris., Larceny and Theft, § 12.

Law Reviews.

Penile Polygraphy: The Admissibility of Penile-Plethysmograph Results at Sentencing in Tennessee, 72 Vand. L. Rev. 353 (January 2019).

Attorney General Opinions. Applicability, OAG 90-64, 1990 Tenn. AG LEXIS 64 (6/4/90).

Restitution under plea agreement exceeding monetary grade of offense, OAG 98-037, 1998 Tenn. AG LEXIS 37 (2/9/98).

NOTES TO DECISIONS

1. Applicability.

T.C.A. § 40-35-104(c)(8)(B) does not apply to all convictions for crimes that are punished as thefts; it only applies to convictions for violation of T.C.A. § 39-14-103, i.e., theft of property. State v. Elam, 7 S.W.3d 103, 1999 Tenn. Crim. App. LEXIS 768 (Tenn. Crim. App. 1999).

2. Construction.

Because defendant was convicted for non-violent property offenses, a period of continuous confinement was not authorized; he was convicted of two counts of theft of property and burglary of an automobile, each of which was a non-violent property offense, he had no prior convictions and had not violated another alternative sentence, and although the continuous confinement sentence was authorized, the one statute is more specific and makes clear that a sentence is not available in cases where a defendant has been convicted of a non-violent property offense, and thus defendant's sentences were vacated. State v. Cruze, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 694 (Tenn. Crim. App. Aug. 27, 2015).

3. Discretion of Court.

A trial court cannot impose, as separate and additional conditions in every community corrections case, a period of confinement; to do so allows the trial judge to supplant the legislature's eligibility criteria with the judge's own. State v. Byrd, 861 S.W.2d 377, 1993 Tenn. Crim. App. LEXIS 410 (Tenn. Crim. App. 1993).

Defendant was an eligible and appropriate offender for a community corrections sentence, and trial judge erred in denying such a sentence solely on the basis of his personal policy against community corrections. State v. Byrd, 861 S.W.2d 377, 1993 Tenn. Crim. App. LEXIS 410 (Tenn. Crim. App. 1993).

4. Plea Agreement.

A sentence for voluntary manslaughter to Range II punishment coupled with Range I release eligibility was valid where it was entered pursuant to a knowing and voluntary plea agreement. Hicks v. State, 945 S.W.2d 706, 1997 Tenn. LEXIS 203 (Tenn. 1997).

5. Split Confinement.

Had the court's earlier judgment been remanded for imposition of “alternative” sentencing, the trial court would have been authorized to consider split confinement, but because it did not, the defendant's two-year sentence was to be served on probation; had the court intended an alternative sentence of split confinement, it could and would have so specified. State v. Williams, 52 S.W.3d 109, 2001 Tenn. Crim. App. LEXIS 20 (Tenn. Crim. App. 2001).

Trial court erred by ordering a sentence of split confinement to be served as five years' incarceration followed by a placement on community corrections because a period of split confinement could not exceed one year. State v. Burkes, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 371 (Tenn. Crim. App. May 14, 2018).

6. Sentence Served Outside District.

A trial court without a community corrections program in its district has the authority to impose a community corrections sentence to be served in a defendant's home judicial district whose community corrections program agrees to accept supervisory responsibility. State v. Anderson, 7 S.W.3d 100, 1999 Tenn. Crim. App. LEXIS 640 (Tenn. Crim. App. 1999).

7. Alternatives to Incarceration.

A community corrections sentence is not probation under this chapter. It is, however, another alternative to incarceration available to the trial judge, and may be used as a condition of probation. State v. Fletcher, 805 S.W.2d 785, 1991 Tenn. Crim. App. LEXIS 54 (Tenn. Crim. App. 1991).

Trial court, following defendant's guilty plea to two counts of aggravated statutory rape, did not abuse its discretion in denying defendant judicial diversion because the court considered the required factors, identified those relevant to the case, and placed on the record its reasons for denying diversion. Although several factors weighed in favor of judicial diversion, defendant, despite knowing defendant's sexual conduct with the minor victim was illegal, continued while on bond to pursue the same activity that caused defendant's arrest. State v. Richardson, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 463 (Tenn. Crim. App. June 25, 2018).

8. Sentence Proper.

9. Sentencing.

10. Restitution.

In a case in which defendant was convicted of vandalism of property valued at more than $500 but less than $1,000, the trial court erred by ordering that defendant pay $2,095 in restitution because the presentence report did not contain any documentation regarding the amount of the victim's pecuniary loss; the victim did not provide any proof of the value placed on the tires by his insurance company or the precise amount of payment he received from the insurance company; the trial court failed to consider the financial resources and future ability of defendant to pay or perform; and the trial court failed to address the time for payment of the restitution. State v. Beauregard, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 29 (Tenn. Crim. App. Jan. 16, 2018).

Evidence at the restitution hearing supported the trial court's order requiring defendant to pay $19,442.36 in restitution at $540 per month. Because the trial court properly exercised its discretion in determining defendant's ability to pay the restitution amount, he was not entitled to relief. State v. Woods, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 575 (Tenn. Crim. App. Aug. 2, 2018).

Trial court erred in ordering defendant to pay restitution because it did not consider defendant's ability to pay the amount, set a time for payment, or say whether defendant could pay in installments. State v. Lane, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 685 (Tenn. Crim. App. Sept. 10, 2018).

Trial court erred by ordering defendant to pay restitution of $500,000 because it failed to consider defendant's financial resources and ability to pay in its restitution determination. Defendant was determined to be indigent in September 2017, the trial court acknowledged that he would not be able to pay restitution, the record showed that he did not have the financial resources to pay $500,000 restitution, and his future ability to pay restitution was uncertain. State v. Labrecque, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 671 (Tenn. Crim. App. Oct. 22, 2019).

Under the State's theory, defendant's conviction for money laundering arose out of her giving the seller $ 15,000 of the money she had stolen as a down payment on a house, and because the offense dealt with defendant giving the seller money, he did not suffer any pecuniary loss as a direct result of the money laundering, and the trial court erred by awarding the seller restitution. State v. Jives-Nealy, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 156 (Tenn. Crim. App. Feb. 28, 2020).

40-35-105. Standard offender.

A standard offender is a defendant not sentenced as:
1. A multiple offender, as defined by § 40-35-106;
2. A persistent offender, as defined by § 40-35-107;
3. A career offender, as defined by § 40-35-108;
4. An especially mitigated offender, as defined by § 40-35-109; or
5. A repeat violent offender, as defined by § 40-35-120.
The sentence for a standard offender is within Range I.
If the judgment of conviction does not include a sentence range, it shall be returned to the sentencing court to be completed.

Acts 1989, ch. 591, § 6; 1994, ch. 994, § 2.

Sentencing Commission Comments.

As noted in the comments to § 40-35-101, the various classes of felonies are divided into three ranges for determining the maximum and minimum available penalties. The first range is called “Range I” and is available for defendants who are not classified in one of the other ranges. Pursuant to § 40-35-501(c), the release eligibility percentage for such an offender is 30 percent.

Subsection (c) provides that the judgment form must specify the sentence range and, if it does not, the judgment form is returned to the sentencing court to be completed. The commission believes that accurate data is absolutely essential so that the Sentencing Reform Act of 1989 may be monitored.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Cross-References. Eligibility of certain drug offenders for special alternative incarceration unit, § 40-20-207.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 32.82, 32.126.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure § 45.

Law Reviews.

Criminal Procedure—Tennessee v. Carter: The Strict Requirement of Notice Under Tennessee's Recidivist Sentencing Statutes (David Demar Ayliffe) 35 U. Mem. L. Rev. 145 (2004).

Selected Tennessee Legislation of 1983 (N.L. Resener, J.A. Whitson, K.J. Miller), 50 Tenn. L. Rev. 785 (1983).

NOTES TO DECISIONS

1. Sentencing Range.

Petitioner's guilty plea was unknowing and involuntary because the trial court incorrectly told petitioner three times that he was facing a 30-year sentence even though as a Range I offender he faced a potential sentence of only eight to 12 years, the trial court also misstated that aggravated robbery was a non-parolable offense, and trial counsel's assurances that petitioner would receive the maximum sentence if convicted at trial led petitioner to believe that he would be sentenced to 30 years' incarceration without the possibility of parole if convicted of aggravated robbery at trial. Merriweather v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 558 (Tenn. Crim. App. Sept. 6, 2019).

40-35-106. Multiple offender.

A multiple offender is a defendant who has received:
1. A minimum of two (2) but not more than four (4) prior felony convictions within the conviction class, a higher class, or within the next two (2) lower felony classes, where applicable; or
2. One (1) Class A prior felony conviction if the defendant's conviction offense is a Class A or B felony.
In determining the number of prior convictions a defendant has received:
1. “Prior conviction” means a conviction for an offense occurring prior to the commission of the offense for which the defendant is being sentenced;
2. All prior felony convictions, including those occurring prior to November 1, 1989, are included;
3. 1. A finding or adjudication that a defendant committed an act as a juvenile that would constitute a felony if committed by an adult and that resulted in a transfer of the juvenile to criminal court pursuant to § 37-1-134, or similar statutes of other states or jurisdictions, shall not be considered as a prior conviction for the purposes of this section unless the juvenile was convicted of a felony in a criminal court;
  2. Notwithstanding subdivision (b)(3)(A), a finding or adjudication that a defendant committed an act as a juvenile that would constitute a Class A or Class B felony if committed by an adult shall be considered as a prior conviction for the purposes of this section, regardless of whether the juvenile was transferred to criminal court pursuant to § 37-1-134, or similar statutes of other states or jurisdictions;
4. Except for convictions for which the statutory elements include serious bodily injury, bodily injury, threatened serious bodily injury or threatened bodily injury to the victim or victims, or convictions for the offense of aggravated burglary under § 39-14-403, convictions for multiple felonies committed within the same twenty-four-hour period constitute one (1) conviction for the purpose of determining prior convictions; and
5. Prior convictions include convictions under the laws of any other state, government or country that, if committed in this state, would have constituted an offense cognizable by the laws of this state. In the event that a felony from a jurisdiction other than Tennessee is not a named felony in this state, the elements of the offense shall be used by the Tennessee court to determine what classification the offense is given.
A defendant who is found by the court beyond a reasonable doubt to be a multiple offender shall receive a sentence within Range II.
The finding that a defendant is or is not a multiple offender is appealable by either party.

Acts 1989, ch. 591, § 6; 2005, ch. 353, § 2; 2009, ch. 603, § 1; 2010, ch. 861, § 1.

Sentencing Commission Comments.

As noted in the comments to § 40-35-101, the various felony classifications are divided into one of three ranges so that the maximum and minimum sentence may be determined. The lowest range is Range I as set forth in § 40-35-105. The next higher range is Range II which is available for defendants who have a certain number of prior convictions. The commission believes that longer sentences should be imposed on those who have previously violated the law, and this section sets forth the preconditions which must exist so as to impose these greater penalties. A Range II sentence not only requires greater penalties but has an increased release eligibility date of 35 percent. See § 40-35-501(d).

Subsection (a) provides for the numbers and types of prior felony convictions for the multiple offender category. If the offender has at least two prior felony convictions within the same or higher class or within the next two lower felony classes, then the defendant must be sentenced as a multiple offender. For example, if a defendant is convicted of a Class C felony and has at least two other Class E felony convictions, then that defendant must be sentenced as a multiple offender. However, if a defendant is convicted of a Class B felony and has two prior Class E felony convictions, then that defendant would be sentenced as a standard offender, since a Class E felony is not within the next two lower felony classifications. The prior Class E felonies would be counted as enhancement factors within Range I.

Subdivision (a)(2) permits sentencing as a multiple offender if the defendant is convicted of a Class A or B felony and that defendant has one prior Class A felony conviction. This particular provision permits greater “weight” to be given to prior serious felony convictions where the defendant is also convicted for a serious offense.

Subsection (b) sets forth the factors which must be considered in ascertaining the nature and type of prior felony convictions necessary to impose a Range II sentence. Prior law restricted the time frame in which a defendant's conviction record could be considered for enhanced sentencing of a subsequent offense. The commission believes that all prior felony convictions should be considered in determining eligibility for a multiple offender classification. Thus, subdivision (b)(2) permits consideration of all felony convictions occurring any time during the defendant's life.

Subdivision (b)(3) permits felony convictions to be considered if such were committed while the defendant was a juvenile if the adjudication was under the provisions which permit juveniles to be tried as adults.

Prior felony convictions obviously include those committed in Tennessee but also include felony convictions occurring in other states or countries. In those instances where the conviction occurs in some other jurisdiction, the elements of the offense, as set forth in the statute of the other jurisdiction, are used to determine the classification the prior felony offense is to be given. See State v. Duffel, 631 S.W.2d 455 (Tenn. Crim. App. 1981), appealed after remand, 665 S.W.2d 402 (1983). See § 40-35-118 for the classification of offenses committed in Tennessee prior to November 1, 1989.

Under Tennessee law, a single course of criminal conduct may sometimes be divided into discreet parts for purposes of separate statutory violations. See State v. Black, 524 S.W.2d 913 (Tenn. 1975). The commission believes that even though multiple convictions might result from a “crime spree,” such activity should only be considered as one conviction for purposes of sentencing enhancement for a subsequent violation of the law. Under subdivision (b)(4), common criminal activity which occurs within a 24-hour period must be considered as one prior conviction for purposes of sentence enhancement. The time limitation is also part of the definitional concept of a “single course of conduct.” Although the commission believes that multiple convictions occurring in a connected series of transactions should be considered as a single “conviction,” an exception is made for prior convictions which involve bodily injury or threaten bodily injury to the person. Thus, if a defendant is convicted of two homicides, even though the homicides occurred at the same moment, such would constitute separate convictions for a subsequent violation of the law. As another example, if the defendant was convicted of robbing several people in the same store, such would constitute separate convictions for enhancement purposes for a new violation of the law. This is in accord with the policy of giving greater “weight” to crimes of violence.

The prior felony convictions used to trigger the multiple offender status must have occurred prior to the commission of the offense for which the defendant is being sentenced. In this sense, the multiple offender classification is a recidivist provision designed to punish persons who have been previously convicted and then commit new crimes. It should be observed that the provisions of subsection (b) require only “convictions” in that the commission intentionally omitted the concept of “final convictions” for purposes of a defendant's prior criminal history. There is no requirement that the “prior conviction” has been subject to appellate review or that such review is pending when the defendant is sentenced for the subsequent offense. See Beard v. State, 542 S.W.2d 389 (Tenn. Crim. App 1976). In other words, prior convictions still on appeal may be used for sentencing purposes.

Subsection (c) makes clear that it is mandatory that the trial judge designate the defendant as a multiple offender when the defendant has the required number of prior convictions.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Acts 2005, ch. 353, § 18 provided that the act, which amended subdivision (b)(4), shall apply to sentencing for criminal offenses committed on or after June 7, 2005. Offenses committed prior to June 7, 2005, shall be governed by prior law, which shall apply in all respects. However, for defendants who are sentenced after June 7, 2005, for offenses committed on or after July 1, 1982, the defendant may elect to be sentenced under the provisions of the act by executing a waiver of such defendant's ex post facto protections. Upon executing such a waiver, all provisions of the act shall apply to the defendant.

Acts 2005, ch. 353, § 19 provided that the act, which amended subdivision (b)(4), shall have no application to sentencing for persons convicted of murder in the first degree, which shall be governed by the provisions of §§ 39-13-202 — 39-13-208.

Acts 2009, ch. 603, § 4 provided that any and all convictions for the offense of aggravated burglary under § 39-14-403, occurring on or after August 17, 2009, shall count as prior convictions for the purposes enumerated in this act.

Acts 2010, ch. 861, § 5 provided that the act, which added subdivision (b)(3)(B), shall apply to all defendants committing offenses on or after July 1, 2010.

Cross References. Penalty for Class A or B felonies, § 40-35-111.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 15.15, 15.16, 32.82, 32.128, 32.130, 32.165.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, §§ 45, 47, 49.

Law Reviews.

1985 Tennessee Survey: Selected Developments in Tennessee Law, 53 Tenn. L. Rev. 351 (1986).

NOTES TO DECISIONS

1. “Prior Conviction” Defined.

“Prior conviction” means a conviction that has been adjudicated prior to the commission of the more recent offense for which sentence is to be imposed. State v. Blouvett, 904 S.W.2d 111, 1995 Tenn. LEXIS 376 (Tenn. 1995).

2. Twenty-four Hour Merger Rule.

In sentencing defendant for possession of cocaine with intent to sell, his prior convictions for receiving stolen property and aggravated assault should have been treated as one conviction for the purpose of range enhancement under the 24-hour merger rule; the exception to the rule did not apply since there was only one previous act involving bodily injury or threatened bodily injury. State v. Horton, 880 S.W.2d 732, 1994 Tenn. Crim. App. LEXIS 118 (Tenn. Crim. App. 1994).

3. Discretion of Court.

Record reflected that the trial court properly considered the relevant purposes and principles of the Sentencing Act and imposed a sentence within the applicable multiple offender range for defendant's Class B felony offense of aggravated robbery. Accordingly, the trial court did not abuse its discretion in imposing a sentence of 17 years in the Department of Correction. State v. Stepheny, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 748 (Tenn. Crim. App. Sept. 30, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 43 (Tenn. Jan. 20, 2017).

4. Classification of Offenders.

The court was justified in finding that defendant should be sentenced as a multiple offender on his aggravated burglary charge. Defendant had sufficient convictions to establish this classification. State v. Holland, 860 S.W.2d 53, 1993 Tenn. Crim. App. LEXIS 288 (Tenn. Crim. App. 1993).

Where defendant's record consisted of several juvenile offenses, two felony convictions for burglary, and one misdemeanor conviction for shoplifting, he was correctly sentenced as a Range II, multiple offender. State v. Crowe, 914 S.W.2d 933, 1995 Tenn. Crim. App. LEXIS 623 (Tenn. Crim. App. 1995), appeal denied, — S.W.2d —, 1996 Tenn. LEXIS 43 (Tenn. Jan. 8, 1996).

Where defendant admitted to four prior felony convictions and agreed on the grade of out-of-state offenses, the convictions were properly relied upon by the court in establishing his range even though one of the convictions was more than 20 years old. State v. Minthorn, 925 S.W.2d 234, 1995 Tenn. Crim. App. LEXIS 686 (Tenn. Crim. App. 1995).

For purposes of determining the classification of an offender, the appropriate analysis of prior out-of-state convictions is under Tennessee law as it existed at the time of the conviction, not as it currently exists. State v. Brooks, 968 S.W.2d 312, 1997 Tenn. Crim. App. LEXIS 558 (Tenn. Crim. App. 1997), appeal denied, — S.W.2d —, 1998 Tenn. LEXIS 139 (Tenn. Mar. 9, 1998).

Trial court properly determined that defendant had the requisite number of qualifying felony convictions to be sentenced as a Range II multiple offender based on his Georgia rape conviction and his Florida conviction for conspiracy to possess with intent to distribute and to distribute cocaine. State v. Christian, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 506 (Tenn. Crim. App. Aug. 21, 2019).

Trial court did not abuse its discretion by finding that defendant was a Range II multiple offender because the record supported the determination that defendant had at least two prior convictions within the conviction class, a higher class, or within the next two lower felony classes and that defendant was a Range II offender. Not only did defendant fail to establish that defendant committed the offenses within the same 24-hour period, but defendant agreed that defendant was a Range II offender at the sentencing hearing. State v. Jackson, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 353 (Tenn. Crim. App. May 14, 2020).

5. Prior Juvenile Adjudications.

Defendant's four-year sentences for felony reckless endangerment and felony evading arrest were authorized for a Range II, multiple offender and thus he failed to state a claim for relief in his motion; first, his sentences appeared to have expired, and if so, he was not entitled to relief, and in any event, there was no merit to his claim that his juvenile adjudication for aggravated robbery could not be used to classify him as a Range II offender, as he committed an act as a juvenile that would constitute a Class B felony if committed by an adult. State v. Carroll, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 524 (Tenn. Crim. App. July 6, 2018).

6. Alternative Sentencing Denied.

Although defendant was eligible for community corrections because he had been convicted of a nonviolent, property-related offense, the trial court did not err in failing to imposed such a sentence given defendant's extensive criminal history. State v. Lawson, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 632 (Tenn. Crim. App. Oct. 8, 2019).

7. Prior Felony Convictions.

Because both of defendant's prior convictions for attempted robbery and facilitation of first degree murder, under T.C.A. §§ 39-11-117, 39-11-403(a), 39-11-402(2), 39-12-101, 39-13-401, included an element of actual or threatened bodily injury or serious bodily injury, the trial court properly considered them to be separate convictions and found that defendant was a Range II multiple offender under T.C.A. § 40-35-106. State v. Theus, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 613 (Tenn. Crim. App. July 12, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 794 (Tenn. Nov. 16, 2017).

Petitioner failed to show that trial counsel was ineffective for failing to object to the trial court's use of his Louisiana convictions to classify him as a Range II offender because at least one of his prior burglary convictions would be classified as a Class D felony and the other would be classified as either a Class D or E felony. Petitioner failed to prove that his status as a minor would have prohibited the trial court using his Louisiana convictions during sentencing. Hayes v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 643 (Tenn. Crim. App. July 21, 2017).

Defendant qualified as a Range II offender and the trial court did not err in considering defendant's convictions in South Carolina for harboring a fugitive and assault of an aggravated nature as felonies; the trial court properly considered the elements of harboring a fugitive under South Carolina law and accessory after the fact under Tennessee law in determining that defendant's harboring conviction would constitute a felony in Tennessee, plus he conceded that his South Carolina assault conviction would also be considered a felony in Tennessee. State v. Ward, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 142 (Tenn. Crim. App. Feb. 23, 2018).

Trial court did not err by imposing a Range II sentence because, utilizing defendant's federal conviction for the distribution of cocaine which would have been a Class C felony and his Connecticut conviction for the sale of narcotics which would also have been at least a Class C felony, the State was able to establish beyond a reasonable doubt that defendant was a Range II offender. State v. Burkes, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 371 (Tenn. Crim. App. May 14, 2018).

Trial court did not err in classifying defendant as a Range II, multiple offender because he had three prior convictions for aggravated assault; the three prior convictions for aggravated assault were all Class C felonies; and defendant's aggravated robbery conviction was a Class B felony; therefore, his prior convictions for aggravated assault amounted to three felony convictions within the next two lower felony classes of the aggravated robbery conviction. State v. Carter, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 496 (Tenn. Crim. App. Aug. 16, 2019).

Trial court did not abuse its discretion in sentencing defendant because, since he was sentenced for two Class C felonies his prior criminal record of two Class C felonies justified sentencing him as a multiple offender, and the trial court enhanced his sentence to the top of the appropriate range. State v. Ward, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 693 (Tenn. Crim. App. Oct. 25, 2019).

8. Sentencing.

Trial court properly sentenced defendant as a Range II, multiple offender to an effective term of nine years' imprisonment because there was no dispute that defendant was a Range II, multiple offender, with a sentencing range of 4-12 years, the sentence was within the statutory range and presumed reasonable, the record showed the trial court noted only that the location of the offense, a funeral, had “some bearing” on the vulnerability of the victim, and the trial court properly applied several other enhancement factors, including defendant's extensive criminal history, the fact that previous efforts at rehabilitation had failed, and the fact that defendant committed the offense while on parole. State v. Henson, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 201 (Tenn. Crim. App. Mar. 29, 2019).

40-35-107. Persistent offender.

A persistent offender is a defendant who has received:
1. Any combination of five (5) or more prior felony convictions within the conviction class or higher or within the next two (2) lower felony classes, where applicable; or
2. At least two (2) Class A or any combination of three (3) Class A or Class B felony convictions if the defendant's conviction offense is a Class A or B felony.
In determining the number of prior convictions a defendant has received:
1. Prior conviction means a conviction for an offense occurring prior to the commission of the offense for which the defendant is being sentenced;
2. All prior felony convictions, including those occurring prior to November 1, 1989, are included;
3. 1. A finding or adjudication that a defendant committed an act as a juvenile that would constitute a felony if committed by an adult and that resulted in a transfer of the juvenile to criminal court pursuant to § 37-1-134 or similar statutes of other states or jurisdictions shall not be considered as a prior conviction for the purposes of this section unless the juvenile was convicted of a felony in a criminal court;
  2. Notwithstanding subdivision (b)(3)(A), a finding or adjudication that a defendant committed an act as a juvenile that would constitute a Class A or Class B felony if committed by an adult shall be considered as a prior conviction for the purposes of this section, regardless of whether the juvenile was transferred to criminal court pursuant to § 37-1-134, or similar statutes of other states or jurisdictions;
4. Except for convictions for which the statutory elements include serious bodily injury, bodily injury, threatened serious bodily injury or threatened bodily injury to the victim or victims or convictions for the offense of aggravated burglary under § 39-14-403, convictions for multiple felonies committed within the same twenty-four-hour period constitute one (1) conviction for the purpose of determining prior convictions; and
5. Prior convictions includes convictions under the laws of any other state, government or country that, if committed in this state, would have constituted an offense cognizable by the laws of this state. In the event that a felony from a jurisdiction other than Tennessee is not a named felony in this state, the elements of the offense shall be used by the Tennessee court to determine what classification the offense is given.
A defendant who is found by the court beyond a reasonable doubt to be a persistent offender shall receive a sentence within Range III.
The finding that a defendant is or is not a persistent offender is appealable by either party.

Acts 1989, ch. 591, § 6; 2005, ch. 353, § 3; 2009, ch. 603, § 2; 2010, ch. 861, § 2.

Sentencing Commission Comments.

This section sets forth the criteria for enhanced sentencing as a persistent offender. A finding that a defendant is a persistent offender requires sentencing within Range III which not only carries higher criminal penalties, but an increased release eligibility date of 45 percent. See § 40-35-501(e).

Subdivision (a)(1) permits sentencing as a persistent offender where the defendant has five or more felony convictions within the same or higher class or within the next two lower felony classes. In keeping with the commission's belief that prior felony convictions should be “weighted,” subdivision (a)(2) provides that multiple prior Class A or Class B felony convictions will trigger a Range III sentence if the defendant is being sentenced for a Class A or B felony. Thus, fewer numbers of prior convictions are necessary if the defendant commits a serious offense and has a prior record of serious crimes. Apart from the numbers of prior felony convictions, the provisions of this section are the same as § 40-35-106 concerning multiple offenders.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Acts 2010, ch. 861, § 5 provided that the act, which added subdivision (b)(3)(B), shall apply to all defendants committing offenses on or after July 1, 2010.

Cross-References. Mandatory consecutive sentences for felonies committed while on escape, Tenn. R. Crim. P. 32.

Penalty for Class A or B felonies, § 40-35-111.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 15.17, 15.18, 32.82, 32.128, 32.129, 32.130, 32.272.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, §§ 45, 49; 14 Tenn. Juris., Homicide, § 60, 26 Tenn. Juris., Words and Phrases, 235.5P.

Law Reviews.

Not-So-Sweet Sixteen: When Minor Convictions Have Major Consequences Under Career Offender Guidelines (Andrew Tunnard), 66 Vand. L. Rev. 1309 (2013).

NOTES TO DECISIONS

1. Only Prior Convictions Considered.

Only prior felony convictions may be used to determine a defendant's persistent offender status even though T.C.A. § 40-35-107(a)(2) refers to felony convictions and not prior felony convictions. State v. Blouvet, 965 S.W.2d 489, 1997 Tenn. Crim. App. LEXIS 545 (Tenn. Crim. App. 1997), appeal denied, — S.W.2d —, 1998 Tenn. LEXIS 138 (Tenn. Mar. 9, 1998).

2. Stipulation in Plea Agreement.

Petitioner could not challenge the sentence as being illegally imposed due to the fact that the petitioner claimed not to have enough prior convictions to qualify as a Range III offender, as petitioner pled guilty as a Range III offender and the offender classification was nonjurisdictional and a proper basis for plea negotiations. Bland v. Dukes, 97 S.W.3d 133, 2002 Tenn. Crim. App. LEXIS 681 (Tenn. Crim. App. 2002), review or rehearing denied, — S.W.3d —, 2002 Tenn. LEXIS 659 (Tenn. Dec. 9, 2002).

3. Denial of Habeas Corpus Relief.

Allegations of defendant's habeas corpus petition and attached documents failed to establish that the judgment classifying him as a persistent offender and imposing a nine-year, Range III, sentence for burglary was void under Tenn. Const. art. I, § 15 and T.C.A. § 29-21-101. Edwards v. State, 269 S.W.3d 915, 2008 Tenn. LEXIS 611 (Tenn. Sept. 18, 2008).

4. Range III Offender.

Trial court did not err by determining threatened bodily injury was an element of aggravated assault and that the two aggravated assault convictions were not subject to the 24-hour rule, and thus, they could both be counted in determining defendant was a range III offender. State v. Stitts, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 340 (Tenn. Crim. App. Apr. 27, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 474 (Tenn. Aug. 8, 2018).

Defendant was properly sentenced for sale of a controlled substance as a Range III, persistent offender; defendant's attempted aggravated robbery charge necessarily contained an element of bodily injury or threatened bodily injury, and because this conviction contained bodily harm or threatened bodily harm, it was an exception to the 24-merger rule and would not merge with the aggravated burglary conviction. State v. Adcock, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 688 (Tenn. Crim. App. Oct. 24, 2019).

Trial court's imposition of the maximum sentences of 15 years as a Range III, persistent offender, for defendant's Class C felony offenses was presumed reasonable because the trial court clearly stated on the record its reasons for the sentences imposed and all of defendant's sentences were within the appropriate ranges and the trial court reflected that the trial court considered the purposes and principles of the Sentencing Act. State v. Williams, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 720 (Tenn. Crim. App. Nov. 12, 2019).

5. Sentence Upheld on Appeal.

Trial court properly sentenced defendant as a persistent offender because defendant had at least five prior qualifying felony convictions. State v. Clouse, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 645 (Tenn. Crim. App. July 20, 2017).

40-35-108. Career offender.

A career offender is a defendant who has received:
1. Any combination of six (6) or more Class A, B or C prior felony convictions, and the defendant's conviction offense is a Class A, B or C felony;
2. At least three (3) Class A or any combination of four (4) Class A or Class B felony convictions if the defendant's conviction offense is a Class A or B felony; or
3. At least six (6) prior felony convictions of any classification if the defendant's conviction offense is a Class D or E felony.
In determining the number of prior convictions a defendant has received:
1. “Prior conviction” means a conviction for an offense occurring prior to the commission of the offense for which the defendant is being sentenced;
2. All prior felony convictions, including those occurring prior to November 1, 1989, are included;
3. 1. A finding or adjudication that a defendant committed an act as a juvenile that would constitute a felony if committed by an adult and that resulted in a transfer of the juvenile to criminal court pursuant to § 37-1-134 or similar statutes of other states or jurisdictions shall not be considered as a prior conviction for the purposes of this section, unless the juvenile was convicted of a felony in a criminal court;
  2. Notwithstanding subdivision (b)(3)(A), a finding or adjudication that a defendant committed an act as a juvenile that would constitute a Class A or Class B felony if committed by an adult shall be considered as a prior conviction for the purposes of this section, regardless of whether the juvenile was transferred to criminal court pursuant to § 37-1-134, or similar statutes of other states or jurisdictions;
4. Except for convictions for which the statutory elements include serious bodily injury, bodily injury, threatened serious bodily injury or threatened bodily injury to the victim or victims or convictions for the offense of aggravated burglary under § 39-14-403, convictions for multiple felonies committed within the same twenty-four-hour period constitute one (1) conviction for the purpose of determining prior convictions; and
5. “Prior convictions” includes convictions under the laws of any other state, government or country that, if committed in this state, would have constituted an offense cognizable by the laws of this state. In the event that a felony from a jurisdiction other than Tennessee is not a named felony in this state, the elements of the offense shall be used by the Tennessee court to determine what classification the offense is given.
A defendant who is found by the court beyond a reasonable doubt to be a career offender shall receive the maximum sentence within the applicable Range III.
The finding that a defendant is or is not a career offender is appealable by either party.

Acts 1989, ch. 591, § 6; 2005, ch. 353, § 4; 2009, ch. 603, § 3; 2010, ch. 861, § 3.

Sentencing Commission Comments.

This section sets forth the criteria for sentencing as a career offender. The types and number of prior felony convictions are set forth in subsection (a).

A defendant sentenced as a career offender must receive the maximum sentence within Range III pursuant to the provisions of subsection (c). The release eligibility date is increased to 60 percent. See § 40-35-501(f). The maximum sentence and parole eligibility for persons having this type of extensive criminal record is in keeping with the sentencing purposes set forth in § 40-35-102. Apart from the increased sentence and release eligibility date, the provisions of this section are the same as § 40-35-107 concerning persistent offenders.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Acts 2010, ch. 861, § 5 provided that the act, which added subdivision (b)(3)(B), shall apply to all defendants committing offenses on or after July 1, 2010.

Cross-References. Classification of felonies and misdemeanors, § 40-35-110.

Penalty for Class A, B, C, D, or E felonies, § 40-35-111.

Sentence ranges, § 40-35-112.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure §§ 45, 49.

Law Reviews.

Not-So-Sweet Sixteen: When Minor Convictions Have Major Consequences Under Career Offender Guidelines (Andrew Tunnard), 66 Vand. L. Rev. 1309 (2013).

NOTES TO DECISIONS

1. Construction.

The legislature, in enacting T.C.A. § 40-35-108, was aware that some offenses which were felonies under prior law were no longer felonies under the new act. There appears to be no doubt that the legislature intended to permit consideration of all prior felony convictions occurring during the defendant's life. State v. Wright, 836 S.W.2d 130, 1992 Tenn. Crim. App. LEXIS 143 (Tenn. Crim. App. 1992), appeal denied, 1992 Tenn. LEXIS 378 (Tenn. May 26, 1992).

2. Classification of Offenses.

T.C.A. § 40-35-118 determines the classification of felony offenses in title 39 committed between July 1, 1982 and November 1, 1989. Under that statute grand larceny is a Class D felony and petit larceny is a Class E felony. On the other hand, for offenses committed prior to July 1, 1982, prior law applies “and remain[s] in full force and effect in every respect, including, but not limited to, sentencing, parole and probation,” T.C.A. § 40-35-117(c). State v. Wright, 836 S.W.2d 130, 1992 Tenn. Crim. App. LEXIS 143 (Tenn. Crim. App. 1992), appeal denied, 1992 Tenn. LEXIS 378 (Tenn. May 26, 1992).

3. “Prior Conviction” Defined.

4. Twenty-Four Hour Merger Rule.

The trial court erred in finding that two prior convictions for violent felonies were not necessary for the twenty-four hour merger rule exception to apply; rather, the court should have treated defendant's prior convictions for aggravated assault and sale of cocaine as a single conviction under T.C.A. § 40-35-108(b)(4). State v. Walker, 29 S.W.3d 885, 1999 Tenn. Crim. App. LEXIS 1059 (Tenn. Crim. App. 1999).

5. Career Offender Finding Upheld.

In defendant's rape case, the trial court did not err in classifying defendant as a career offender because defendant's more than twenty prior felony convictions listed on the notice of intent to seek enhanced punishment and presentence report were, as noted by the trial court at sentencing, “far more than necessary to make him a career offender.” State v. Scarborough, 300 S.W.3d 717, 2009 Tenn. Crim. App. LEXIS 191 (Tenn. Crim. App. Mar. 17, 2009).

Despite the possible waiver, defendant had the requisite number of prior convictions to sustain the trial court's imposition of career offender status; the State had to show that defendant carried at least six prior felony convictions and the State met its burden. State v. McCommon, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 161 (Tenn. Crim. App. Mar. 3, 2017).

Defendant had more than enough prior convictions to be considered a career offender because the prior aggravated assaults he committed were Class C felonies in which a statutory element of the offense was serious bodily injury, State v. Kirk, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 635 (Tenn. Crim. App. July 19, 2017).

Trial court did not err by determining that defendant was a career offender under T.C.A. § 40-35-108(a)(1) because he pleaded guilty to three counts of the sale of oxymorphone and the trial court's finding that defendant had six prior felony convictions was supported by the record. Because of defendant's status as a career offender, the trial court properly imposed the statutorily mandated 15-year sentence for each of his convictions. State v. Jackson, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 669 (Tenn. Crim. App. Oct. 21, 2019).

6. Sentence Proper.

Defendant's sentence did not constitute cruel and unusual punishment because, based on his status as a career offender, he was properly sentenced to the mandatory maximum sentence of 30 years in prison. State v. Hall, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 328 (Tenn. Crim. App. May 4, 2017).

Defendant's six-year sentence, to be served at 60 percent release eligibility, for failure to appear did not constitute cruel and unusual punishment because it was the only sentence available given the offense defendant's criminal record. The presentence report reflected some 45 prior conviction dating back 25 years and defendant was released on bond at the time she committed the instant offense. State v. Chick, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 623 (Tenn. Crim. App. July 17, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 805 (Tenn. Nov. 16, 2017).

Defendant's 12-year sentence for one count each of forgery over $1,000, criminal simulation over $1,000, theft of property over $1,000, and two counts of identity theft was not excessive but was required, because defendant was a career offender with six prior felony convictions, and although the trial court could have imposed consecutive sentences it determined in its discretion that they should run concurrently. State v. Bumpas, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 95 (Tenn. Crim. App. Jan. 17, 2018).

Trial court properly denied defendant's motion to correct an illegal sentence because defendant failed to state a colorable claim for correction of an illegal sentence; the sentences imposed were authorized and did not directly contravene an applicable statute because defendant was sentenced to fifteen years as a career offender on each of the two Class C felonies. State v. Sanders, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 122 (Tenn. Crim. App. Feb. 20, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 321 (Tenn. June 6, 2018).

Defendant's effective sentence of 45 years for his aggravated robbery and aggravated burglary convictions was proper because he was a career offender as he had nine previous convictions for aggravated robbery, a Class B felony, one previous felony conviction for an attempted first-degree murder, a Class A felony, and two previous felony convictions for especially aggravated kidnapping, a Class A felony; the maximum sentence for the Class B felony of aggravated robbery in Range III was 30 years; the maximum sentence for the Class C felony of aggravated burglary in Range III was 15 years; and, as a career offender, he had to serve the 30 year sentence for aggravated robbery at 100%, and the 15 year sentence for aggravated burglary at 60%. State v. Mitchell, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 693 (Tenn. Crim. App. Sept. 12, 2018).

Trial court did not err by imposing an excessive sentence of 30 years for his drug convictions because the trial court determined the defendant was a career offender based on his prior criminal record, the maximum sentence for a Class B felony in Range III was 30 years, the maximum sentence for a Class C felony in Range III was 15 years, and therefore, the trial court properly sentenced the defendant to 30 years for each count of sale and delivery of 0.5 grams or more of cocaine and 15 years for each count of sale and delivery of less than 0.5 grams of cocaine, resulting in an effective sentence of 30 years. State v. Parks, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 452 (Tenn. Crim. App. July 29, 2019).

Trial court properly used defendant's six prior convictions in Florida to sentence defendant as a Range III, career offender to 12 years in confinement for aggravated statutory rape, a Class D felony, because reliable hearsay was admissible in a sentencing hearing; and a presentence report was considered reliable hearsay. State v. Sexton, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 707 (Tenn. Crim. App. Nov. 5, 2019), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 209 (Tenn. Mar. 26, 2020).

7. Guilty Plea.

Trial court did not abuse its discretion in denying defendant's motion to withdraw his guilty pleas because defendant failed to demonstrate manifest injustice; the trial court advised defendant that he was being sentenced as a career offender, that he would receive sentences of fifteen years for theft and six years for evading arrest, and that he would serve both sentences at sixty percent release eligibility, and defendant stated that he understood. State v. Kirk, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 635 (Tenn. Crim. App. July 19, 2017).

40-35-109. Especially mitigated offender.

The court may find the defendant is an especially mitigated offender, if:
1. The defendant has no prior felony convictions; and
2. The court finds mitigating, but no enhancement factors.
If the court finds the defendant an especially mitigated offender, the court shall reduce the defendant's statutory Range I minimum sentence by ten percent (10%) or reduce the release eligibility date to twenty percent (20%) of the sentence, or both reductions. If the court employs both reductions, the calculation for release eligibility shall be made by first reducing the sentence and then reducing the release eligibility to twenty percent (20%).
If the defendant is found to be an especially mitigated offender, the judgment of conviction shall so reflect.
The finding that a defendant is or is not an especially mitigated offender is appealable by either party.

Acts 1989, ch. 591, § 6.

Sentencing Commission Comments.

As noted in the comments to § 40-35-101, sentences have been divided into one of three ranges. The sentencing ranges are governed by the presence or absence of prior convictions. If a defendant has little or no prior criminal record, such defendant would normally be sentenced within Range I as a standard offender. See § 40-35-105. However, there are instances where the trial judge may desire to depart from even the minimum sentence for a Range I offender and impose lesser penalties. In such instances, the judge may designate the defendant as an “especially mitigated offender” under the provisions of this section. If the judge designates the defendant for this category, the judge has the option of reducing the minimum sentence by 10 percent or reducing the release eligibility date to 20 percent or both options. For example, a standard offender convicted of a Class C felony is normally subject to a three year minimum sentence as a standard Range I offender. The 10 percent reduction in the minimum sentence would result in a sentence of 2.7 years. The judge may further alter the normal 30 percent release eligibility date to 20 percent. While the other types of offenders, such as multiple, persistent or career mandate sentences within their required ranges, a finding of an especially mitigated offender is discretionary with the trial court. The criteria for such a finding is set forth in subsection (a) and requires that the defendant have no prior felony convictions and that the trial judge finds “mitigating factors but no enhancement factors.” It should be observed that this definition is different from prior law which required that the court could only consider mitigating factors which existed in the “commission of the offense.” This limiting language has been removed since the commission believes that all mitigating factors should be considered in ascertaining whether the defendant should receive a sentence within this category. A prior misdemeanor record no longer prohibits sentencing as an especially mitigated offender. A defendant convicted of any offense other than first degree murder may be sentenced as an especially mitigated offender given the absence of prior felony convictions and the presence of mitigating factors.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Cross-References. Eligibility of certain drug offenders for special alternative incarceration unit, § 40-20-207.

Sentence ranges, § 40-35-112.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 32.82, 32.127, 32.237, 32.272.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, §§ 49, 51.

Law Reviews.

Sentencing Lockdown: What Is the Impact of Blakely on Sentencing in Tennessee? (David L. Raybin), 40 No. 8 Tenn. B.J. 12 (2004).

NOTES TO DECISIONS

1. Discretion of Court.

The question of whether defendant should be sentenced as especially mitigated offender rests within the sound discretion of the trial court. State v. Braden, 867 S.W.2d 750, 1993 Tenn. Crim. App. LEXIS 355 (Tenn. Crim. App. 1993), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 387 (Tenn. Nov. 1, 1993).

Trial court did not abuse its discretion in deciding to classify defendant as a Range I, standard offender, following defendant's conviction for aggravated child abuse because, although the court found defendant' lack of criminal history to be a mitigating factor, the court found that applicable enhancement factors—the victim was a one-year-old child, exceptional cruelty, and defendant abusing a position of trust over the victim—precluded sentencing defendant as an especially mitigated offender. State v. Batiz, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 721 (Tenn. Crim. App. Nov. 1, 2019).

Trial court properly sentenced defendant as a Range I, standard offender, because according to the plea form signed by defendant, the parties agreed that defendant would be sentenced as a Range I, standard offender. State v. Hill, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 46 (Tenn. Crim. App. Jan. 29, 2020).

2. Presence of Enhancement Factor.

Because the trial court found an enhancing factor existed, defendant did not qualify as especially mitigated offender. State v. Braden, 867 S.W.2d 750, 1993 Tenn. Crim. App. LEXIS 355 (Tenn. Crim. App. 1993), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 387 (Tenn. Nov. 1, 1993); State v. Turner, 30 S.W.3d 355, 2000 Tenn. Crim. App. LEXIS 89 (Tenn. Crim. App. 2000), appeal denied, — S.W.3d —, 2000 Tenn. LEXIS 479 (Tenn. Sept. 5, 2000).

Even though he was a first offender, the presence of an enhancement factor, being the leader of the offense, disqualified defendant from characterization as especially mitigated offender for sentencing purposes. State v. Hicks, 868 S.W.2d 729, 1993 Tenn. Crim. App. LEXIS 483 (Tenn. Crim. App. 1993).

Trial court did not abuse its discretion in rejecting defendant's request to be sentenced as an especially mitigated offender because the enhancement factor that defendant had abused a position of public trust was shown by the evidence, as she forged receipts for amounts she spent using her county purchase card. State v. Finch, 465 S.W.3d 584, 2013 Tenn. Crim. App. LEXIS 1016 (Tenn. Crim. App. Nov. 22, 2013), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 548 (Tenn. June 24, 2014).

3. Absence of Enhancement Factor.

Given defendant's mental limitations and low function as substantial mitigating factors, and no existing enhancement factors, the trial court erred in refusing to sentence defendant as an especially mitigated offender. State v. Blackstock, 19 S.W.3d 200, 2000 Tenn. LEXIS 168 (Tenn. 2000).

Trial court did not err in failing to sentence defendant as an especially mitigated offender, where the evidence showed that defendant had been using drugs and defendant committed the brutal killing of a loved one, such that there was nothing mitigating about the case, much less especially mitigating. State v. Jackson, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 1003 (Tenn. Crim. App. Dec. 10, 2012), modified, 444 S.W.3d 554, 2014 Tenn. LEXIS 619 (Tenn. Aug. 22, 2014).

4. Refusal to Classify Not Error.

Trial court did not err by failing to find defendant to be an especially mitigated offender because the record supported the application of two enhancement factors, as it showed that it was defendant who concocted the scheme to defraud the motorcycle owner's insurance company and who directed his employee to dispose of the motorcycle frame and engine, and that he exploited his position as a police officer by ensuring that he would be the officer who responded to the owner's 911 call and by falsifying his report of the offense by putting another officer's name on it. State v. Millan, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 810 (Tenn. Crim. App. Nov. 1, 2018).

5. Waiver.

Defendant waived his challenge to offender classification because he pleaded guilty and failed to raise the issue at sentencing; defendant's offender classification was never in dispute before the trial court, and defendant never presented the trial court with the argument that he should be sentenced as an especially mitigated offender. State v. Ward, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 437 (Tenn. Crim. App. July 19, 2019).

40-35-110. Classification of offenses.

Felonies are classified for the purpose of sentencing into five (5) categories:
1. Class A felonies;
2. Class B felonies;
3. Class C felonies;
4. Class D felonies; and
5. Class E felonies.
An offense designated a felony without specification as to category is a Class E felony.
Misdemeanors are classified for the purpose of sentencing into three (3) categories:
1. Class A misdemeanors;
2. Class B misdemeanors; and
3. Class C misdemeanors.
An offense designated as a misdemeanor without specification as to category is a Class A misdemeanor.

Acts 1989, ch. 591, § 6.

Sentencing Commission Comments.

This section sets forth the classifications of felonies and misdemeanors. § 40-37-202 [obsolete] charged the sentencing commission with drafting a statute which classified felonies on the basis of severity into five categories and misdemeanors into three categories. This section complies with that provision and is the basis for the sentencing grid which is contained in the commentary to § 40-35-101. Subsections (b) and (d) follow prior law by giving a designated punishment for felonies contained in the code which are not otherwise specified as to category with similar treatment being given to unclassified misdemeanors. The following table shows the classification of felony and misdemeanor offenses in title 39. For first degree murder, see § 39-11-117.

CLASSIFICATION OF THE REVISED CRIMINAL CODE (Current as of July 1, 2020)

Class A Felonies Class and New Code Section Offense 39-11-117 Attempt — First degree murder 39-11-117 Conspiracy — First degree murder 39-13-210 Second degree murder 39-13-210(a)(2) Second degree murder that results from the unlawful distribution of any Schedule I or Schedule II drug, when the drug is the proximate cause of the death of the user 39-13-210(c) Second degree murder that results from the unlawful distribution of any Schedule I or Schedule II drug, when the drug is the proximate cause of the death of the user. Defendant sentenced one range higher than range otherwise appropriate if victim is a minor 39-13-210(a)(3) Second degree murder by unlawful distribution or unlawful delivery or unlawful dispensation of fentanyl or carfentanil, when those substances alone, or in combination with any other controlled substance 39-13-218 Aggravated vehicular homicide 39-13-305 Especially aggravated kidnapping 39-13-309 Trafficking for a commercial sex act where victim is child under 15 or offense occurs within 1,000' of school, park, playground 39-13-403 Especially aggravated robbery 39-13-502 Aggravated rape 39-13-514(b)(3) Patronizing prostitution (victim under age 18 or with intellectual disability) 39-13-515 Promoting prostitution where prostitute is less than 18 39-13-518(c)(1) Continuous sexual abuse of a child 39-13-522 Rape of a child (punished as Range II offender) 39-13-531 Aggravated rape of a child (mandatory life without parole) 39-13-805 Act of terrorism 39-13-807 Providing material support or resources to act of terrorism or to a designated entity 39-13-808(b)(1) Distribution or delivery of substance as act of terrorism 39-14-105 Value of property unlawfully obtained is in excess of $250,000 39-14-113 Organized retail crime involving stored value cards (over $250,000) 39-14-113 Organized retail crime involving stored value cards (over $60,000) if the defendant exercised organizational, supervisory, financial, or management authority over the activity of one (1) or more other persons in violation of section 39-14-302 Aggravated arson 39-14-411 Critical infrastructure vandalism ($250,000 or more) 39-14-602(d) Computer crimes violation in connection with act of terrorism 39-15-402 Aggravated child abuse or aggravated child neglect or endangerment where child 8 or less or vulnerable 39-15-502 Financial exploitation of elderly or vulnerable adult where amount unlawfully exploited is $60,000 or more (fine not less than $1,000) 39-17-417(j) Manufacture, delivery, sale, possession or conspiracy of certain amounts of drugs listed (fine not greater than $500,000) Class B Felonies Class and New Code Section Offense 39-11-117 Solicitation — First degree murder 39-12-205 RICO offense 39-13-102 Intentional or knowing aggravated assault by discharging firearm from within motor vehicle and victim is a minor 39-13-209 Voluntary manslaughter by discharging firearm from within motor vehicle and victim is a minor 39-13-213(b) Vehicular homicide involving intoxication 39-13-304 Aggravated kidnapping 39-13-307 Subjecting another to involuntary labor servitude where injury, extended duration, multiple victims, or victim less than 13 39-13-309 Trafficking for a commercial sex act 39-13-402 Aggravated robbery 39-13-404 Carjacking 39-13-503 Rape 39-13-504 Aggravated sexual battery 39-13-514(b)(3) Patronizing prostitution (intellectual disability or victim 15, 16 or 17 years of age) 39-13-515 Promoting prostitution where the prostitute is less than 18 years of age 39-13-518(c)(2) and (3) Continuous sexual abuse of a child 39-13-528 Soliciting minor to engage in Class A sexual offense 39-13-532 Statutory rape by authority [Ligature fi]gure 39-13-529(a) Induce minor to engage in sexual activity observed by another 39-13-806 Violations involving weapons of mass destruction 39-13-807 Providing material support to person committing act of terrorism 39-14-105(a)(5) Theft ($60,000 or more but less than $250,000). One classification higher if 5th or subsequent conviction in 2 year period and theft involved retail merchandise. 39-14-113 Organized retail crime involving stored value cards ($60,000-$250,000) 39-14-113 Organized retail crime involving stored value cards ($10,000-$59,999) if the defendant exercised organizational, supervisory, financial, or management authority over the activity of one (1) or more other persons in violation of section 39-14-114 Forgery ($60,000 or more but less than $250,000) 39-14-115 Criminal simulation ($60,000 or more but less than $250,000) 39-14-118 Illegal possession or fraudulent use of credit card or debit card ($60,000 or more) 39-14-121 Worthless checks ($60,000 or more but less than $250,000) 39-14-130 Destruction of valuable papers ($60,000 or more but less than $250,000) 39-14-133 Fraudulent or false insurance claims ($60,000 or more but less than $250,000) 39-14-137(b) Fraudulent qualifying for set aside contracts ($60,000 or more) 39-14-138 Theft of trade secrets ($60,000 or more but less than $250,000) 39-14-139 Sale of recorded live performances without consent ($60,000 or more but less than $250,000) 39-14-149 Communication theft ($60,000 or more but less than $250,000) 39-14-154 Home improvement fraud ($60,000 or more but less than $250,000) 39-14-205 Intentional killing of animals ($60,000 or more but less than $250,000) 39-14-208 Injuring guide dog ($60,000 or more but less than $250,000) 39-14-301 Arson of a place of worship 39-14-404 Especially aggravated burglary 39-14-408 Vandalism ($60,000 or more but less than $250,000) 39-14-408 Vandalism of retail merchant ($60,000 or more but less than $250,000) 39-14-411 Critical infrastructure vandalism ($60,000 or more but less than $250,000) 39-14-602 Alters, damages, or attempts to damage or destroy any computer, computer system or computer network or computer program or data ($60,000 or more) 39-14-603 Unsolicited bulk electronic mail ($60,000 or more but less than $250,000) 39-14-903 Money laundering offenses 39-14-903(e) Unlawful use of property to launder or transport criminal proceeds or to commit or facilitate TennCare fraud, on 5 or more occasions 39-15-402 Aggravated child abuse or aggravated child endangerment or neglect 39-15-502 Financial exploitation of elderly or vulnerable adult where amount unlawfully exploited is $10,000—59,999 (fine not less than $1,000) 39-15-508 Aggravated neglect of an elderly or vulnerable adult by a caregiver that results in serious bodily injury (minimum fine of $1,000) 39-15-511 Aggravated abuse of elderly or vulnerable adult involving deadly weapon or strangulation or resulting in serious bodily injury 39-16-102 Public servant accepting bribe or offering bribe to public servant 39-17-107 Adulteration of food, liquids or pharmaceuticals (serious bodily injury or death) 39-17-417(b) Manufacture, delivery, sale, possession, or conspiracy Schedule I drug (fine not greater than $100,000) 39-17-417(c) Manufacture, delivery, sale, possession, or conspiracy involving cocaine or methamphetamine in amounts of .5 grams or more (fine not greater than $100,000) 39-17-417(i) Manufacture, delivery, sale, possession, or conspiracy of certain amounts of listed drugs (fine not greater than $200,000) 39-17-435 Initiating process to result in manufacture of methamphetamine 39-17-455 Manufacture, delivery, sale, possession, or conspiracy involving methamphetamine in amounts of .5 grams or more (fine not greater than $100,000) 39-17-1003 Sexual exploitation of a minor more than 100 images 39-17-1004(b) Aggravated sexual exploitation of minor more than 25 images 39-17-1005 Especially aggravated sexual exploitation of minor 39-17-1307(b)(1)(A) Possession of [Ligature fi]rearm after convicted of felony involving the use or attempted use of force, violence, or a deadly weapon 39-17-1302 Possession of explosive or explosive weapon Class C Felonies Class and New Code Section Offense 39-13-102(a)(1),(b),(c) Intentional aggravated assault ($15,000 fine if committed against certain occupations while discharging duties) 39-13-102 Reckless aggravated assault by discharging firearm from within motor vehicle and victim is a minor 39-13-103 Reckless endangerment by discharging firearm into habitation 39-13-109 Criminal exposure of another to HIV 39-13-115 Aggravated vehicular assault 39-13-209 Reckless homicide by discharging firearm from within motor vehicle and victim is a minor 39-13-211 Voluntary manslaughter 39-13-213 Vehicular homicide by drag racing and where alcohol not involved 39-13-303 Kidnapping 39-13-307 Subjecting another to involuntary labor servitude 39-13-308 Trafficking in forced labor 39-13-315 Advertising commercial sexual abuse 39-13-401 Robbery 39-13-516 Aggravated prostitution 39-13-518(4) Continuous sexual abuse of a child 39-13-527 Sexual battery by authority figure 39-13-528 Soliciting minor to engage in Class B sexual offense 39-13-529(b) Adult engaging in sexual activity for viewing by minor less than 13 39-13-611 Aggravated unlawful photography 39-13-808(b)(2) Distribution or delivery of substance as a hoax device 39-14-105(a)(4) Theft ($10,000-$59,999) One classification higher if 5th or subsequent conviction in 2 year period and theft involved retail merchandise. 39-14-113 Organized retail crime involving stored value cards ($10,000-$59,999) 39-14-113 Organized retail crime involving stored value cards ($2,500-$9,999) if the defendant exercised organizational, supervisory, financial, or management authority over the activity of one (1) or more other persons in violation of section 39-14-114 Forgery ($10,000-$59,999) 39-14-115 Criminal simulation ($10,000-$59,999) 39-14-118 Illegal possession or fraudulent use of credit card or debit card ($10,000-$59,999) 39-14-121 Worthless checks ($10,000-$59,999) 39-14-130 Destruction of valuable papers ($10,000-$59,999) 39-14-133 Fraudulent or false insurance claims ($10,000-$59,999) 39-14-137(b) Fraudulent qualifying for set aside programs ($10,000-$59,000) 39-14-138 Theft of trade secrets ($10,000-$59,999) 39-14-139 Sale of recorded live performances without consent ($10,000-$59,000) 39-14-149 Communication theft ($10,000-$59,999) 39-14-150(c) Identity theft trafficking 39-14-154 Home improvement fraud ($10,000-$60,000) 39-14-205 Intentional killing of animals ($10,000-$59,999) 39-14-208 Injuring guide dog ($10,000-$59,999) 39-14-301 Arson 39-14-403 Aggravated burglary 39-14-408 Vandalism ($10,000-$59,999) 39-14-408 Vandalism of retail merchant ($10,000-$59,999) 39-14-411 Critical infrastructure vandalism ($10,000-$59,999) 39-14-602(b)(5) Violation of Tennessee Personal and Commercial Computer Act ($10,000-$59,999) 39-14-603 Unsolicited bulk electronic mail ($10,000-$59,999) 39-14-804 Theft of animal from or damage to an animal facility exceeding $500 39-15-201(b)(1) Criminal abortion 39-15-201(d) Abortion performed on nonresident 39-15-209(e)(1) Performance of partial birth abortion 39-15-215(f) Performing or inducing, or attempting to perform or induce, an abortion 39-15-216(b) Failure to determine the gestational age of the unborn child prior to performing or inducing, or attempting to perform or induce, an abortion. 39-15-216(c) Performing or inducing, or attempting to perform or induce, an abortion on a pregnant woman whose unborn child has a fetal heartbeat 39-15-217(f) Performing or inducing, or attempting to perform or induce an abortion because of the sex, race, or Down syndrome status of the unborn child 39-15-302 Incest 39-15-502 Financial exploitation of elderly or vulnerable adult where amount unlawfully exploited is $2,500—9,999 (fine not less than $1,000) 39-15-508 Aggravated neglect of an elderly or vulnerable adult by a caregiver that results in serious physical harm (minimum fine of $1,000) 39-15-511 Aggravated abuse of elderly or vulnerable adult resulting in serious psychological injury or serious physical harm 39-16-105 Buying and selling in regard to public offices 39-16-107 Bribing a witness 39-16-108 Bribing a juror 39-16-201 Introduction of weapons or explosives, into a state, county, or municipal penal institution 39-16-502(a)(3) Initiating or circulating false report of bomb, fire or other emergency 39-16-503 Tampering with or fabricating evidence 39-16-607(c)(3) Intentionally facilitating or permitting escape from penal institution 39-17-107 Adulteration of food, liquids or pharmaceuticals causing bodily injury 39-17-315(d)(1) Especially Aggravated Stalking 39-17-417(c) Manufacture, delivery, sale, or possession of Schedule II drug including cocaine or methamphetamine less than .5 grams (fine not greater than $100,000) 39-17-417(e) Manufacture, delivery, sale, or possession of flunitrazepam (fine not greater than $100,000) 39-17-417(g)(3) Manufacture, delivery, sale, or possession of 20-99 marijuana plants (fine not greater than $100,000) 39-17-454(g)(2) Second or subsequent offense of manufacturing, selling or possessing with the intent to manufacture or sell a controlled substance analogue 39-17-454(g)(3) Sale, dispensing or delivery of controlled substance analogue to a minor 39-17-455 Manufacture, delivery, sale, or possession of methamphetamine less than .5 grams (fine not greater than $100,000) 39-17-607(b) Attempting to influence lottery (maximum fine of $100,000) 39-17-1003 Sexual exploitation of a minor more than 50 images 39-17-1004 Aggravated sexual exploitation of a minor 39-17-1302(f)(3) Possession of a hoax device 39-17-1307(b)(1)(B) Possession of a [Ligature fi]rearm with a prior conviction for a drug felony 39-17-1324(b) Employing firearm during commission of a dangerous felony (6 year minimum if no prior record and 10 year minimum if prior dangerous felony conviction) 39-17-1324(g) Employing firearm during commission of a dangerous felony if prior conviction for a dangerous felony (15 year minimum) Class D Felonies Class and New Code Section Offense 39-13-102(a)(1)(B) Reckless aggravated assault ($15,000 fine if committed against certain occupations while discharging duties) 39-13-103 Reckless endangerment by discharging firearm or antique firearm into unoccupied habitation 39-13-106 Vehicular assault 39-13-110 Female genital mutilation, facilitation of or transportation for purpose of female genital mutilation 39-13-209 Criminally negligent homicide by discharging firearm from within motor vehicle and victim is a minor 39-13-213(a)(4) Vehicular homicide in construction zone 39-13-215 Reckless homicide 39-13-216 Assisted suicide 39-13-506 Aggravated statutory rape 39-13-515 Promoting prostitution if person being promoted has an intellectual disability 39-13-528 Soliciting minor to engage in Class C sexual offense 39-13-533 Promoting travel for prostitution 39-13-602 Unlawful wiretapping or electronic surveillance 39-13-605(d)(3) Dissemination of photographs and victim under 13 years of age 39-14-105(a)(3) Theft ($2,500-$9,999) One classification higher if 5th or subsequent conviction in 2 year period and theft involved retail merchandise. 39-14-112 Extortion 39-14-113 Organized retail crime involving stored value cards ($ 2,500-9,999) 39-14-113 Organized retail crime involving stored value cards ($1,001-$2,499) if the defendant exercised organizational, supervisory, financial, or management authority over the activity of one (1) or more other persons in violation of section 39-14-114 Forgery ($1,000-$9,999) 39-14-115 Criminal simulation ($2,500-$9,999) 39-14-118 Illegal possession or fraudulent use of credit card or debit card ($2,500-$9,999) 39-14-121 Worthless checks ($2,500-$9,999) 39-14-130 Destruction of valuable papers ($2,500-$9,999) 39-14-133 Fraudulent or false insurance claims ($2,500-$9,999) 39-14-137(b) Fraudulent qualifying for set aside programs ($2,500-$9,999) 39-14-138 Theft of trade secrets ($2,500-$9,999) 39-14-139 Sale of recorded live performances without consent ($2,500-$9,999) 39-14-147 Fraudulent transfer of motor vehicle valued at $20,000 or more 39-14-149 Communication theft ($2,500-$9,999) 39-14-150(b) Identity theft 39-14-154 Home improvement fraud ($2,500-$10,000) 39-14-205 Intentional killing of animals ($2,500-$9,999) 39-14-208 Injuring guide dog ($2,500-$9,999) 39-14-402 Burglary — other than habitation or auto 39-14-408 Vandalism ($2,500-$9,999) 39-14-408 Vandalism of retail merchant ($2,500-$9,999) 39-14-411 Critical infrastructure vandalism ($2,500-$9,999) 39-14-414 Unauthorized camping on state property 39-14-602(a) Violation of Tennessee Personal and Commercial Computer Act ($2,500-$9,999) 39-14-603 Unsolicited bulk electronic mail ($2,500-$9,999) 39-15-401(a) Child abuse where child is 6 or less 39-15-502 Financial exploitation of elderly or vulnerable adult where amount unlawfully exploited is $1,001—2,499 (fine not less than $1,000) 39-15-507 Neglect of a vulnerable adult (fine not less than ($1,000) 39-15-510 Knowing abuse of a vulnerable adult 39-15-513 False claim for reimbursement of value of unsolicited medical supplies 39-16-201 Introduction or possession of intoxicant or drugs or introduction of telecommunications device into state, county, or municipal penal institution 39-16-502(a)(1), (2) False report to law enforcement not involving bomb, fire or emergency 39-16-507 Coercion of a witness 39-16-603(b)(3)(B) Evading arrest in motor vehicle creating risk of injury to bystanders or pursuing law enforcement, 60 days mandatory 39-16-608 Introduction of escape implements into penal institutions 39-16-703 Aggravated perjury 39-17-309(b) Civil rights intimidation 39-17-314 Training for civil disorder 39-17-417(d) Manufacture, delivery, sale or possession of Schedule III drug (fine not greater than $50,000) 39-17-417(e) Manufacture, delivery, sale or possession of Schedule IV drug (fine not greater than $50,000) 39-17-417(g)(2) Manufacture, delivery, sale or possession of 10-70 pounds of Schedule VI drug marijuana (fine not greater than $50,000) 39-17-430 Prescribing or selling steroid for unlawful purpose 39-17-433 Promoting manufacture of methamphetamine 39-17-454(g)(1) Manufacture, sell or possess with intent to manufacture or sell a controlled substance analogue 39-17-607(a) Making counterfeit or altering lottery ticket (amounts not greater than $50,000) 39-17-608 Making material false statement on lottery application or record 39-17-654(c) Unauthorized person conducting charitable gaming event 39-17-1003 Sexual exploitation of a minor 39-17-1304(c)(2) Restrictions on firearms ammunition 39-17-1320(b) Parent knowingly providing handgun to juvenile 39-17-1324(a) Possession of firearm or antique firearm during attempt to commit dangerous felony (3 year minimum if no prior record and 5 year minimum if prior dangerous felony conviction) 39-17-1324(j) Possession of firearm or antique firearm during attempt to commit dangerous felony if prior conviction for dangerous felony (15 year minimum) Class E Felonies Class and New Code Section Offense 39-11-411 Accessory after the fact 39-13-111 Domestic assault 3rd offense depending on relationship (90 days mandatory confinement) 39-13-103 Reckless endangerment (deadly weapon involved) 39-13-108 Intentional escape from HIV quarantine 39-13-212 Criminally negligent homicide 39-13-306 Custodial interference where person not voluntarily returned by defendant 39-13-505 Sexual battery 39-13-506 Mitigated statutory rape and statutory rape 39-13-511 Indecent exposure where defendant is over 18, the victim is under 13 and the defendant has 2 or more prior convictions for indecent exposure or public indecency or the defendant is 18, the victim is under 13 and the offense occurs on property of school, day care center, at a time children likely to be present 39-13-515 Promoting prostitution 39-13-517 Public indecency where the defendant is masturbating on property of public school, day care center or other child care facility at a time defendant should know there are children present 39-13-526(b)(3) Violation of community supervision of sex offender where violation also a felony 39-13-528 Soliciting minor to engage in Class D sexual offense 39-13-529(c) Adult engaging in sexual activity for viewing by minor 39-13-604(c)(2) Knowing dissemination of illegally recorded cellular communication 39-13-605(d)(2) Dissemination of photographs of victim under 13 years of age 39-13-607(d)(2) Observation without consent (victim under the age of 13) 39-13-903(b) Unlawful use of an unmarried aircraft within 250 feet of a critical infrastructure facility 39-14-105(a)(2) Theft ($1,001-$2,499) One classification higher if 5th or subsequent conviction in 2 year period and theft involved retail merchandise. 39-14-113 Organized retail crime involving stored value cards ($1,001-$2,499) 39-14-113 Organized retail crime involving stored value cards ($1,000 or less) if the defendant exercised organizational, supervisory, financial, or management authority over the activity of one (1) or more other persons in violation of section 39-14-114(c) Forgery ($1,001-$2,499) 39-14-115 Criminal simulation ($1,001-$2,499) 39-14-116(c) Hindering secured creditors 39-14-117(b) Fraud in insolvency 39-14-118 Fraudulent use of credit card or debit card ($1,001-$2,499) 39-14-121 Worthless checks ($1,001-$2,499) 39-14-130 Destruction of valuable papers ($1,001-$2,499) 39-14-131 Destruction or concealment of will 39-14-133 Fraudulent or false insurance claim ($1,001-$2,499) 39-14-137(b) Fraudulent qualifying for set aside programs ($1,001-$2,499) 39-14-138 Theft of trade secrets ($1,001-$2,499) 39-14-139 Sale of recorded live performances without consent ($1,001-$2,499) 39-14-143 Unauthorized solicitation for police, judicial or safety associations 39-14-147(f) Fraudulent transfer of motor vehicle with value of less than $20,000 39-14-149 Communication theft ($1,001-$2,499 (fine only)) 39-14-154 Home improvement fraud ($1,001-$2,499) 39-14-202(f)(2) Animal cruelty (2nd or subsequent offense) 39-14-203(c)(1) Animal fighting (other than cock) 39-14-205 Intentional killing of animals ($1,001-$2,499) 39-14-205 Minimum punishment for killing service animal 39-14-208 Injuring guide dog ($1,001-$2,499) 39-14-212(d) Aggravated cruelty to animals 39-14-214 Bestiality 39-14-217 Aggravated cruelty to livestock animals 39-14-218 Failure to provide receipt for cremation of animal 39-14-303 Setting fire to personal property or land 39-14-402 Burglary of an auto 39-14-408 Vandalism ($1,001-$2,499) 39-14-408 Vandalism of retail merchant ($1,001-$2,499) 39-14-411 Critical infrastructure vandalism ($2,499 or less) 39-14-505 Aggravated criminal littering (2nd and 3rd offenses involving certain weight or volume) 39-14-602 Violation of Tennessee Personal and Commercial Computer Act ($1,001-$2,499) 39-14-603 Unsolicited bulk electronic mail ($1,001-$2,499) 39-14-704 Sale, purchase, possession or use of automated sales suppression device (Fine only up to $100,000) 39-14-903(d) Unlawful use of property to launder or transport criminal proceeds or to commit or facilitate TennCare fraud 39-15-101(d) Flagrant nonsupport 39-15-201(b)(2) Attempt to procure criminal miscarriage 39-15-202(d) Failure to observe waiting period before giving consent to abortion 39-15-206 Failure or refusal of physician or hospital to preserve the life of an infant delivered during an abortion 39-15-208 Unlawful use of aborted fetus 39-15-215(g) Failure to certify by an ultrasound technician or referring physician whose performance of an ultrasound is relied upon by a physician in performing or inducing, or attempting to perform or induce, an abortion without provided required notice. 39-15-218(j) Knowingly or recklessly performing or inducing, or attempting to perform or induce, an abortion without provided required notice. 39-15-401(b) Child neglect or endangerment where child 6 or less 39-15-502 Financial exploitation of elderly or vulnerable adult where amount unlawfully exploited is $1,000 or less (fine not less than $1,000) 39-15-507 Neglect of an elderly adult (fine not less than $1,000) 39-15-510 Knowing abuse of an elderly adult 39-16-104 Public servant soliciting unlawful compensation 39-16-201 Taking telecommunication device into penal institution 39-16-302 Impersonation of licensed professional 39-16-402 Official misconduct 39-16-403 Official oppression 39-16-408 Law enforcement officer, correctional employee, volunteer or vendor engaging in sex with inmate 39-16-409 Probation or parole officer engaging in sex with probationer or parolee 39-16-504 Destruction of or tampering with governmental records 39-16-508 Coercion of juror 39-16-510 Retaliation for past action 39-16-603 Evading arrest in motor vehicle, mandatory 30 days imprisonment 39-16-604 Compounding a felony 39-16-605(a) Escape from penal institution (felony) 39-16-605(c) Escape from lawful custody (held felony) 39-16-607(c) Correctional employee permitting or facilitating escape 39-16-609(e) Failure to appear (felony) 39-16-702(b)(2) Perjury on handgun permit application 39-16-702(b)(3) Perjury on sex offender registration form 39-16-705 Subornation of aggravated perjury 39-17-106 Gifts of adulterated candy or food 39-17-109 Violating airport security with intent to commit a felony 39-17-116 Preparing property transfer without interest in property 39-17-117 Filing lien to encumber property without legal basis 39-17-303 Aggravated riot 39-17-308(b) Harassment of victim by person convicted of crime 39-17-311 Desecration of a place of worship or burial 39-17-312 Abuse of corpse or sale or purchase of buried human skeletal remains 39-17-315(c)(1) Aggravated stalking 39-17-417(f) Manufacture, delivery, sale or possession of Schedule V drug (fine not greater than $5,000) 39-17-417(g)(1) Manufacture, delivery, sale or possession of not less than ½ ounce and not more than 10 pounds of Schedule VI drug marijuana (fine not greater than $1,000) 39-17-417(h) Manufacture, delivery, sale or possession of Schedule VII drug (fine not greater than $1,000) 39-17-418(e) Simple possession or casual exchange of controlled substance where person has 2 prior simple possession convictions and the current violation is for heroin. 39-17-422(c) Selling glue for unlawful purpose 39-17-423(c) Counterfeit controlled substance 39-17-425(b)(1), (2), (3) Unlawful drug paraphernalia uses and activities 39-17-453 Manufacture or sale of imitation controlled substance 39-17-455(b) Manufacturing marijuana concentrate by a process using inherently hazardous substance 39-17-504 Aggravated gambling promotion 39-17-506(c)(4) Lotteries, chain letters, and pyramid clubs ($10,000) 39-17-654(a) Engaging in gambling under pretense of charitable gaming event 39-17-656(b) Attempting to influence the winning of prize in charitable gaming event 39-17-657 Selling service in connection with charitable gaming event on contingency basis 39-17-902(b) Employment of minors in distribution of obscene material (fine $10,000-$100,000) 39-17-910 Sale of child-like sex doll (fine $10,000-$50,000) 39-17-1302(a)(2)-(4) Prohibited weapons 39-17-1304(c)(1) and (3) Firearm ammunition violation (hollow point explosive) 39-17-1306 Carrying weapons during judicial proceedings 39-17-1307(c) Possession of a handgun by person convicted of any felony 39-17-1307(d)(1) Unlawful possession of a dangerous weapon other than firearm with intent to employ it during commission of dangerous felony 39-17-1307(d)(2) Unlawful possession of a firearm with intent to employ it during commission of non-dangerous felony 39-17-1309 Carrying weapons on school property 39-17-1323 Committing violent or drug offense while wearing body vest or armor Class A Misdemeanors Class and New Code Section Offense 39-12-207(f)(2) Failure of trustee to notify investigative agency of RICO lien 39-13-101(a)(1) Assault with maximum fine of $15,000 (intentionally causing bodily injury to another) 39-13-101(a)(2) Assault (intentionally or knowingly causing another to fear imminent bodily injury) 39-13-102 Aggravated assault of public employee 39-13-103 Reckless endangerment (no weapon involved) 39-13-109 Criminal exposure to hepatitis B (HBV) and C (HCV) 39-13-111 Domestic assault 39-13-111 Domestic assault 2nd offense involving bodily injury (30 days mandatory incarceration) 39-13-111 Domestic assault 3rd or subsequent offense involving bodily injury (90 days mandatory incarceration) 39-13-113(g) Violation of protective or restraining order 39-13-113(h) Possession of firearm while order of protection in effect. 39-13-113(i) Violation of certain no contact orders issued as a condition of bond 39-13-302 False imprisonment 39-13-306 Custodial interference where person released voluntarily by the defendant 39-13-509 Sexual contact with a minor by an authority figure ($1,000 mandatory minimum fine) 39-13-509 Unlawful sexual contact by authority figure 39-13-511 Public indecency 3rd or subsequent offense 39-13-511 Indecent exposure where defendant is 18 and victim is under 13 or by person in penal institution exposing to a guard or staff member 39-13-513 Prostitution (near church or school) 39-13-514 Patronizing prostitute (near church or school) 39-13-517 Public indecency, 3rd or subsequent offense 39-13-526(b)(1), (2) Violation of community supervision by sex offender not constituting offense or constituting misdemeanor 39-13-528 Soliciting minor to engage in Class E sexual offense 39-13-604(c)(1) Interception of cellular communication 39-13-605(d)(1) Unlawful photographing in violation of privacy without dissemination and requirement of registration as sexual offender in discretion of judge. 39-13-606 Unlawful installation, concealment or placing of electronic tracking device in a leased motor vehicle 39-13-607 Observing or spying in violation of another's privacy without consent 39-13-608 Intercepting radio frequency transmission with intent to use information to commit crime 39-14-105(a)(1) Theft ($1,000 or less). One classification higher if 5th or subsequent conviction in 2 year period and theft involved retail merchandise. 39-14-106 Unauthorized use of automobiles and other vehicles 39-14-110 Knowingly recording motion picture with audiovisual recording device without consent 39-14-113 Organized retail crime involving stored value cards ($1,000 or less) 39-14-118 Fraudulent use of credit/debit card ($1,000 or less) 39-14-118 Illegal possession or fraudulent use of credit card or debit card where nothing obtained 39-14-121 Worthless checks ($1,000 or less) 39-14-128 Creating false impression of death 39-14-130 Destruction of valuable papers with intent to defraud 39-14-132 Misrepresentation of mileage on used motor vehicle odometer 39-14-133 Fraudulent or false insurance claims ($1,000 or less) 39-14-134 Alteration of item's permanent distinguishing numbers — selling or possession of such items 39-14-135 Manufacture, sale or possession of farm implement without serial number 39-14-136 Falsifying educational and academic records 39-14-137(b) Fraudulent qualifying for set aside programs ($1,000 or less) 39-14-138 Theft of trade secrets ($1,000 or less) 39-14-139 Sale of recorded live performances without consent ($1,000 or less) 39-14-143 Unauthorized solicitation for police, judicial or safety associations 39-14-148 False statement to obtain surety bond 39-14-149 Communication theft ($1,000 or less) (fine only) 39-14-150(k) Unlawful use or possession of scanning device 39-14-153 Obtaining housing project accommodations by falsely stating or concealing facts (Fine Only) 39-14-154 Home improvement fraud ($1,000 or less) 39-14-202(g)(1) Animal cruelty (1st offense) 39-14-202(g)(3) Violation of animal cruelty conditions or restrictions 39-14-203 Cock fighting 39-14-203 Causing a child to attend an animal fight 39-14-203 Being a spectator at an animal fight 39-14-203 Cock fighting paraphernalia 39-14-208 Injuring guide dog ($1,000 or less) 39-14-213(b) Dog is lost or killed because of removal of dog's electronic or radio transmitting collar 39-14-216(b), (c) Knowingly or recklessly maiming or inflicting harm upon a service animal 39-14-304 Reckless burning 39-14-406 Aggravated criminal trespass of a habitation, hospital, or on the campus of any public or private school, or on railroad property 39-14-406 Aggravated criminal trespass of posted construction, utility, electric or telephone property 39-14-408 Vandalism ($1,000 or less) 39-14-408 Vandalism of retail merchant ($1,000 or less) 39-14-410 Failure to obtain bill of sale in purchase of timber 39-14-505 Aggravated criminal littering 39-14-602 Violation of Tennessee Personal and Commercial Computer Act (up to $500) 39-14-603 Unsolicited bulk electronic mail ($1,000 or less) 39-14-701 Possession of burglary tools 39-14-702 Possession of explosive components 39-15-101(a) Nonsupport 39-15-201(b)(3) Coercion — abortion 39-15-210 3rd or subsequent violation of “Child Rape Protection Act of 2006” 39-15-301 Bigamy 39-15-401(a) Child abuse (where child is between ages 7-17) 39-15-401(b) Child neglect and endangerment (where child is between ages 7-13) 39-15-403 Tattooing of minors 39-15-404 Enticing a child to purchase intoxicating liquor — purchasing alcoholic beverage for child 39-15-404 Allow person 18-21 to consume alcohol on person's premises 39-15-414 Harboring or hiding a runaway child 39-15-512 Sexual exploitation of elderly or vulnerable adult 39-16-301(d)(2) Impersonation of a law enforcement officer or impersonation of a firefighter, medical fire responder, paramedic, emergency medical technician or any other first responder and while operating a demonstration vehicle or criminal impersonation with the intent to obtain something of value by pretending to be an active duty or veteran of uniformed service 39-16-301(d)(2) Impersonation of a law enforcement official while operating a motor vehicle, maximum fine $5,000 39-16-402 Official misconduct involving the obtaining and use of nonpublic information with intent to profit by transaction 39-16-407 Misrepresenting information to state auditor 39-16-410 Supervisor or employee of the state altering, concealing, interfering with or impeding an audit conducted by comptroller 39-16-507 Influencing or attempting to influence a witness in a domestic assault proceeding 39-16-509 Improper influence of juror 39-16-511 Compensation for past action of juror 39-16-512 Receipt of compensation for past action of juror 39-16-514 Dismissal of employee because of jury service 39-16-515 Pointing laser device at law enforcement officer 39-16-602 Resisting stop, frisk, halt, arrest, or search (weapon involved) 39-16-603 Evading arrest while not operating motor vehicle 39-16-604 Compounding a misdemeanor 39-16-605(a) Escape from penal institution (misdemeanor or civil confinement) 39-16-605(c) Escape from lawful custody (held for misdemeanor or civil confinement) 39-16-609(d) Failure to appear for Class B or C misdemeanor 39-16-702 Perjury 39-16-705 Subornation of perjury 39-17-104 Safety devices on refrigerators required 39-17-108 Tampering with construction signs and barricades and travel on closed roads 39-17-109 Violating airport security 39-17-111 Alteration of machine warning device (fine only up to $2,500) 39-17-112(a) Selling false academic degree 39-17-114 Transporting illegal alien for financial gain (fine only of $1,000) 39-17-115 Manufacturing or submitting false identification to obtain or maintain employment 39-17-302 Riot 39-17-304 Inciting to riot 39-17-308(a) Harassment 39-17-309(c) Wearing disguise with intent to intimidate 39-17-311 Desecration of state or national flag 39-17-315 Stalking 39-17-318 Unlawful exposure of another by distributing intimate pictures 39-17-418 Casual exchange or simple possession of drugs (fine not greater than $500) 39-17-422(a), (b), (d) Inhaling, or possessing glue for unlawful purposes 39-17-423(d) Counterfeit controlled substances (recipient) 39-17-425(a), (c) Unlawful drug paraphernalia uses and activities 39-17-426 Delivery, sale or possession of jimsonweed 39-17-431 Unlawful dispensing of immediate methamphetamine precursor, sale of meth precursor to person on methamphetamine registry or purchase by someone on registry, possess meth precursor with intent to sell to another for unlawful use, purchase meth precursor for another for unlawful use, purchase meth precursor at different times and places to circumvent limits, and use false ID to purchase meth precursor for purpose of circumventing limits 39-17-437 Using substance or device to falsify drug test results and selling synthetic urine 39-17-438 Possession of the hallucinogenic plant salvia divinorum or the synthetic cannabinoids 39-17-452 Sale or possession of synthetic derivatives or analogues of methcathinone 39-17-453(b) Consumption of imitation controlled substance for purpose of intoxication 39-17-453(c) Possession of imitation controlled substance for purpose of use 39-17-454(d) Simple possession or casual exchange of up to 1 gram of a controlled substance analogue 39-17-454(f) Representing or advertising that a substance is a controlled substance analogue 39-17-455(c) Permitting marijuana concentrate to be manufactured on premises by process using inherently hazardous substance 39-17-506(c)(3) Lotteries, chain letters and pyramid clubs ($250-$10,000) 39-17-602 Sale of lottery ticket to person under 18 — 2nd or subsequent violation 39-17-604 Sale of lottery ticket by other than lottery retailer 39-17-652 Conducting more than one charitable gaming event for same organization 39-17-654(b) Unauthorized person conducting charitable gaming event 39-17-655(a)(3) Making false statement in charitable gaming application 39-17-655(a)(4) Making false statement in charitable gaming financial accounting 39-17-656(a) Counterfeiting charitable gaming ticket 39-17-703 Receiving, possessing and transporting alcoholic beverages 39-17-704 Transportation of alcoholic beverages by common carriers 39-17-706 Manufacture of alcoholic beverages 39-17-713 Unauthorized storage of liquor for sale 39-17-902(a) Importing, preparing, distributing, processing, or appearing in obscene material or exhibition — 1st offense 39-17-907 Unlawful exhibition of obscene material 39-17-909 Promoting a gathering of minors in public place for purpose of providing the minors with a location to engage in public indecency 39-17-910 Possession of child-like sex doll 39-17-911 Sale or loan to minors of harmful materials 39-17-918 Unlawful massage or exposure of erogenous areas 39-17-1103 Sports bribery 39-17-1302(a)(6)-(7) Possession of prohibited weapons 39-17-1303 Unlawful sale of firearm 39-17-1307(a)(2) Unlawful possession of weapon in public places 39-17-1307(f)(1)(A) Possession of firearm after being convicted of misdemeanor crime of domestic violence 39-17-1307(f)(1)(B) Possession of firearm while order of protection is in effect 39-17-1307(f)(1)(C) Possession of firearm while prohibited by state or federal law 39-17-1311 Carrying weapon in public park with intent to go armed 39-17-1312 Failure of adult to report juvenile carrying gun in school 39-17-1316 Purchasing or attempting to purchase firearm when prohibited or selling or attempting to sell to person prohibited 39-17-1316 Transferring firearm to person judicially committed, adjudicated as mental defective, or receiving inpatient mental health treatment 39-17-1320(a) Non parent providing handgun to a juvenile 39-17-1321 Possession of handgun while under influence of intoxicant or possession of firearm in establishment serving alcohol while consuming alcohol 39-17-1352 Failure to surrender handgun carry permit upon suspension 39-17-1363 Violent felon owning or possessing vicious dog Class B Misdemeanors Class and New Code Section Offense 39-13-101(a)(3) Assault (offensive or provocative physical contact) 39-13-114 Communicating threat concerning school employee 39-13-511(a) Public indecency — 1st or 2nd offense (punishable by $500 fine only) 39-13-511 Indecent exposure with no statutory aggravating factors 39-13-513(b)(1) Prostitution 39-13-514(b)(1) Patronizing prostitution 39-13-517 Public indecency, 1st or 2nd offense 39-13-904 Unlawful use of unmanned aircraft to take image and display or distribution of image 39-14-119 Falsely reporting credit card or debit card lost, stolen, or mislaid 39-14-120 Issuing false financial statement 39-14-127 Deceptive business practices 39-14-147(b)(4) Fraudulent transfer of motor vehicle — failure to disclose location to owner 39-14-202(f)(2) Interfering with customary agricultural practices on animals 39-14-213(a) Removing electronic or radio transmitting collar from dog to prevent owner from locating dog 39-14-305 Leaving fire near woodland unattended 39-14-406 Aggravated criminal trespass (other than habitation, hospital or school) 39-14-412 Mailbox vandalism, defacement of state property with graffiti 39-14-413 Throwing or shooting object at train, bus, motorcycle, watercraft 39-14-504 Criminal littering 39-14-507 Hauling litter in unsecured manner 39-14-602(b)(3) Maliciously introducing contaminant or virus into computer system 39-14-803(c) Damaging animal facility or freeing animals therein (damage less than $500) 39-15-412(b) Disseminating smoking paraphernalia to minor after 3 prior violations 39-16-301(b) Criminal impersonation other than law enforcement officer ($500) fine maximum if involving driver license 39-16-304 Misrepresentation of a service or support animal for purposes of housing 39-16-404 Misuse of official information by public servant 39-16-516 Citation quotas established or required by public officials or employees (fine only) 39-16-602 Resisting stop, frisk, halt, arrest, or search (no weapon), obstructing service of process 39-16-610 Use of a radar jamming device to interrupt law enforcement signals 39-17-103 Abandonment of airtight containers 39-17-113 Seller of radar detection or jamming device paying traffic citation of purchaser 39-17-116 Filing records of property transfer when transferor has no interest to convey 39-17-306 Disrupting or obstructing meeting or procession 39-17-313 Aggressive Panhandling (2nd or subsequent offense) 39-17-317 Disorderly conduct at funerals 39-17-503 Gambling promotion 39-17-505 Possession of gambling device or record 39-17-506(c)(2) Making a lottery, chain letter or pyramid club ($50-$250) 39-17-602 Sale of lottery ticket to minor (1st offense) 39-17-655(a)(1) Failure to file charitable gaming financial accounting 39-17-702 Unlawful sale of alcoholic beverages without license 39-17-707 Possession of still 39-17-1104 Possession of software for purpose of interfering with operations of ticket seller 39-17-1307 Unlawful possession of weapon with intent to go armed (2nd or subsequent offense) 39-17-1309(c) Carrying firearm on school property absent intent to go armed 39-17-1317 Confiscation and disposition of confiscated weapons in unlawful manner 39-17-1358 Violation of handgun permit law not otherwise provided (fine only not to exceed $500) 39-17-1359 Possession of a weapon on posted property 39-17-1362 Displaying in threatening manner an imitation firearm 39-17-1402 Conveying dangerous materials to metals recycling facility without consent 39-17-1606 Failure to comply with or enforce Children's Act for Clean Indoor Air (fine only not to exceed $500) Class C Misdemeanors Class and New Code Section Offense 39-13-306 Noncustodial parent removing child from state during lawful visitation period with intent to violate court order 39-13-903 Unlawful use of unmanned aircraft to take image or drop item or substance into on private property, at open-air, ticketed outdoor venue, use within or over fireworks display site, on grounds of correctional facility, or use unlawfully obtained image 39-13-904 Unlawful use of unmanned aircraft to take image and possess or distribute 39-14-129 Seller failing to label fruits, berries, vegetables—Repealed 2015 PC 338 39-14-204 Unlawful sale or transportation of dyed baby fowl and rabbits 39-14-206 Taking fish caught by another 39-14-209 Failure to disqualify sored horse during horse show 39-14-210 Interference with agent of Society for the Prevention of Cruelty to Animals in performance of duties regarding acts of animal cruelty 39-14-216(d) Interfering with the duties of a service dog 39-14-306 Setting fire at certain times without permit 39-14-405 Criminal trespass 39-14-407 Trespass using motor vehicle on commercial property (fine only) 39-14-503 Mitigated criminal littering (fine only) 39-14-602(b)(1) Intentionally and without authorization accessing computer system or network 39-15-408 Dissemination of smoking paraphernalia to minor 39-15-409 Individual aged 18 to 21 acquiring smoking paraphernalia 39-15-410(a) Dissemination of smoking paraphernalia to minor without requiring proof of age 39-15-410(b) Person aged 18 to 21 presenting false identification to acquire smoking paraphernalia 39-15-411 Failure to display warning sign or decal relative to sale of smoking paraphernalia to minors 39-16-303 Using a false identification to obtain goods 39-16-405 Public official purchasing property at court sale (fine only) 39-16-610 Possessing, selling or operating vehicle with a radar jamming device 39-17-101 Handling snakes in manner endangering life 39-17-102 Unlawful disposal of raw sewage 39-17-105 Charge for use of public toilet facility 39-17-110 Attaching signs to interstate highway fences and barriers 39-17-112(b) Use of false academic degree 39-17-305 Disorderly conduct 39-17-307 Obstructing highway or other passageway 39-17-310 Public intoxication 39-17-313 Aggressive panhandling (1st offense) 39-17-421 Substitution of drugs in filling prescriptions 39-17-502 Gambling 39-17-506(c)(1) Making a lottery, chain letter or pyramid club ($50 or less) 39-17-507 Making an unlawful customer referral rebate 39-17-605 Failure of lottery retailer to display certificate of authorization 39-17-606 Failure of lottery retailer to display required signage relative to sales to minors 39-17-651 Selling charitable gaming ticket longer than allowable period 39-17-653 Conducting charitable gaming event at unauthorized location 39-17-655(a)(2) Failure to timely file charitable gaming accounting 39-17-715 Possession of or consuming alcoholic beverages on K-12 school premises 39-17-914 Display for sale or rental of material harmful to minors 39-17-1101 Engaging in unlawful prize fighting, brutal sports 39-17-1307(a)(1) Possession of a weapon not in public place but with intent to go armed 39-17-1350(f)(6)(B) Failure to return identification card authorizing holder to carry firearm when holder no longer vested corrections officer (fine only $50) 39-17-1504 Sale of tobacco and vapor products to person under 18 or purchasing tobacco or vapor products on behalf of minor 39-17-1510 Violation of Prevention of Youth Access to Tobacco, Smoking Hemp, and Vapor Products Act 39-17-1702 Parent of minor who violates established curfew

Click to view table.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Cross-References. Authorized terms of imprisonment and fines for felonies and misdemeanors, § 40-35-111.

Sentence ranges, § 40-35-112.

Three strikes law, § 40-35-120.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 45.

Law Reviews.

Let's Talk About Sexting, Baby: A Mens Rea-Centered Approach to the Sexting Issue in Tennessee (Emily Long), 42 U. Mem. L. Rev. 1139 (2012).

40-35-111. Authorized terms of imprisonment and fines for felonies and misdemeanors.

A sentence for a felony is a determinate sentence.
The authorized terms of imprisonment and fines for felonies are:
1. Class A felony, not less than fifteen (15) nor more than sixty (60) years. In addition, the jury may assess a fine not to exceed fifty thousand dollars ($50,000), unless otherwise provided by statute;
2. Class B felony, not less than eight (8) nor more than thirty (30) years. In addition, the jury may assess a fine not to exceed twenty-five thousand dollars ($25,000), unless otherwise provided by statute;
3. Class C felony, not less than three (3) years nor more than fifteen (15) years. In addition, the jury may assess a fine not to exceed ten thousand dollars ($10,000), unless otherwise provided by statute;
4. Class D felony, not less than two (2) years nor more than twelve (12) years. In addition, the jury may assess a fine not to exceed five thousand dollars ($5,000), unless otherwise provided by statute; and
5. Class E felony, not less than one (1) year nor more than six (6) years. In addition, the jury may assess a fine not to exceed three thousand dollars ($3,000), unless otherwise provided by statute.
1. A sentence to pay a fine, when imposed on a corporation for an offense defined in title 39 or for any offense defined in any other title for which no special corporate fine is specified, is a sentence to pay an amount, not to exceed:
  1. Three hundred fifty thousand dollars ($350,000) for a Class A felony;
  2. Three hundred thousand dollars ($300,000) for a Class B felony;
  3. Two hundred fifty thousand dollars ($250,000) for a Class C felony;
  4. One hundred twenty-five thousand dollars ($125,000) for a Class D felony; and
  5. Fifty thousand dollars ($50,000) for a Class E felony.
2. If a special fine for a corporation is expressly specified in the statute that defines an offense, the fine fixed shall be within the limits specified in the statute.
A sentence for a misdemeanor is a determinate sentence.
The authorized terms of imprisonment and fines for misdemeanors are:
1. Class A misdemeanor, not greater than eleven (11) months, twenty-nine (29) days or a fine not to exceed two thousand five hundred dollars ($2,500), or both, unless otherwise provided by statute;
2. Class B misdemeanor, not greater than six (6) months or a fine not to exceed five hundred dollars ($500), or both, unless otherwise provided by statute; and
3. Class C misdemeanor, not greater than thirty (30) days or a fine not to exceed fifty dollars ($50.00), or both, unless otherwise provided by statute.
In order to furnish the general assembly with information necessary to make an informed determination as to whether the increase in the cost of living and changes in income for residents of Tennessee has resulted in the minimum and maximum authorized fine ranges no longer being commensurate with the amount of fine deserved for the offense committed, every five (5) years, on or before January 15, the fiscal review committee shall report to the chief clerks of the senate and the house of representatives of the general assembly the percentage of change in the average consumer price index (all items-city average) as published by the United States department of labor, bureau of labor statistics and shall inform the general assembly what the statutory minimum and maximum authorized fine for each offense classification would be if adjusted to reflect the compounded cost-of-living increases during the five-year period.

Acts 1989, ch. 591, § 6; 2007, ch. 61, § 1.

Sentencing Commission Comments.

Subsection (a) continues the practice in Tennessee of determinate sentences. Subsection (b) sets forth the authorized terms of incarceration for the five felony classifications. These figures are set forth in the grid contained in the comments to § 40-35-101.

The commission believes that the classification and terms designated for each classification are an improvement over prior law which had dozens of penalty variations which were totally unrelated to one another. By adopting felony classifications with specific punishments, similar conduct can be given similar punishments.

Under this section, fines are given greater emphasis than was the case under prior law. Indeed, most prior criminal offenses carried no fines whatsoever. A distinction is made for corporations by a substantial increase in the amount of the fine since such is the only sanction available. As noted in the comments to § 40-35-301, fines in excess of $50.00 must be imposed by the jury because of the Tennessee constitutional provisions on this matter.

Code Commission Notes.

For fiscal year CPI changes, see the County Technical Assistance Service website at http://www.ctas.tennessee.edu.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Cross-References. Classification of felonies and misdemeanors, § 40-35-110.

Court to impose sentences in felony and misdemeanor cases, exceptions, § 40-35-203.

Fixing of fine by court or jury, § 40-35-301.

Sentence ranges, § 40-35-112.

Three strikes law, § 40-35-120.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 16.120, 22.98, 32.100, 32.111, 32.127, 32.221.

Tennessee Jurisprudence, 3 Tenn. Juris., Assault and Battery, § 1; 8 Tenn. Juris., Criminal Procedure, § 45; 14 Tenn. Juris., Homicide, §§ 60, 61; 17 Tenn. Juris., Larceny and Theft, § 12; 18 Tenn. Juris, Mobs, Riots, § 2.

Law Reviews.

Against Proportional Punishment, 66 Vand. L. Rev. 1141 (2013).

Constitutional Law — Fourth Amendment — Using an Informant as the Basis of a Search of Seizure, 66 Tenn. L. Rev. 531 (1999).

Let's Talk About Sexting, Baby: A Mens Rea-Centered Approach to the Sexting Issue in Tennessee (Emily Long), 42 U. Mem. L. Rev. 1139 (2012).

Misdemeanor Decriminalization, 68 Vand. L. Rev. 1055 (2015).

Not-So-Sweet Sixteen: When Minor Convictions Have Major Consequences Under Career Offender Guidelines (Andrew Tunnard), 66 Vand. L. Rev. 1309 (2013).

Invisible Bars: Adapting the Crime of False Imprisonment to Better Address Coercive Control and Domestic Violence in Tennessee, 71 Vand. L. Rev. 681 (2018).

Respecting Our Elders: Can Tennessee Do More to Protect its Elder Population from Institutional Abuse and Neglect?, 66 Tenn. L. Rev. 819 (1999).

Taxing Tennessee: New Business Taxes for 1999 (J. Leigh Griffith), 35 No. 8 Tenn. B.J. 12 (1999).

The Trexler Saga: Hale & Middlebrooks (Gary R. Wade), 23 Mem. St. U.L. Rev. 319 (1993).

Attorney General Opinions. Trial judge may not order a contribution to sheriff's drug fund as part of a sentencing order, OAG 04-096, 2004 Tenn. AG LEXIS 106 (5/19/04).

Additional “fines” imposed pursuant to T.C.A. § 68-55-301 are fines that must be imposed by the judge and may be imposed in addition to the fines authorized by T.C.A. § 40-35-111, OAG 05-091, 2005 Tenn. AG LEXIS 93 (6/6/05).

Punishment for a conviction of a Class A or B misdemeanor under Tenn. Code Ann. § 55-8-197 is limited to the fines provided in T.C.A. § 55-8-197(c). OAG 16-03, 2016 Tenn. AG LEXIS 5 (2/4/2016).

NOTES TO DECISIONS

1. Proper Sentence.

One year imprisonment penalty provided in T.C.A. § 55-50-504(a)(2) is a valid sentence for subsequent violations because T.C.A. § 40-35-111(e)(1) authorizes other penalties for misdemeanors in excess of eleven months and twenty-nine days. State v. Turner, 193 S.W.3d 522, 2006 Tenn. LEXIS 315 (Tenn. 2006).

Trial court's sentences for three years for Class D felony theft, two years for Class E felony reckless endangerment, and three months for Class A misdemeanor escape were entitled to a presumption of reasonableness because they were within the appropriate range under T.C.A. §§ 39-14-105, 39-13-103, 39-16-605, 40-35-111, 40-35-112; no error was found. State v. Moore, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 982 (Tenn. Crim. App. Nov. 28, 2017).

Trial court properly denied defendant's motion to correct an illegal sentence because she pled guilty to second-degree murder, a Class A felony punishable up to 60 years, as a Range II offender, defendant could have been sentenced between 25 and 40 years, defendant's 30-sentence did not exceed the maximum sentence authorized for a Class A felony, she agreed to the sentence, the trial court was not required to make any findings thereon, and her challenge to the voluntariness of her guilty plea had previously been determined and did not otherwise state a colorable claim for relief. State v. Fisher, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 328 (Tenn. Crim. App. May 1, 2018).

By pleading guilty to two initiation offenses, defendant acknowledged that he knowingly initiated a process intended to result in the manufacture of methamphetamine; because defendant had a violent felony conviction and two serious drug offense convictions, the district court did not err in sentencing him as an armed career criminal under the ACCA. United States v. Myers, 2019 FED App. 0112 (6th Cir.), — F.3d —, 2019 FED App. 112p, 2019 U.S. App. LEXIS 16560 (6th Cir. June 3, 2019).

By agreeing to entry of a judgment of conviction sentencing defendant to a six-year sentence for a Class E felony, defendant rendered his argument that the trial court, defense counsel, and prosecutor were confused about the sentence moot; the judgments of conviction did not provide an illegal sentence because defendant's six-year sentence for Class E felony theft is authorized by the applicable statute. State v. Birdwell, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 711 (Tenn. Crim. App. Nov. 7, 2019).

2. Improper Sentence.

Case was remanded to the trial court for entry of a corrected judgment reflecting that defendant's resisting arrest conviction was merged into his aggravated assault conviction because during the sentencing hearing, the trial court and the parties mistakenly believed that the resisting arrest conviction was a Class A misdemeanor; the indictment did not allege that defendant used a deadly weapon to resist the arrest, which would have elevated the offense to a Class A misdemeanor. State v. Clouse, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 645 (Tenn. Crim. App. July 20, 2017).

Sentence of eleven months and twenty-nine days was not an authorized term of imprisonment for a Class D felony under this section and was therefore an illegal sentence pursuant to Tenn. R. Crim. P. 36.1(2), and because defendant was convicted of a felony in one count, the sentence would be mandated to be served consecutively to the effective sentence for the other felony convictions pursuant to this section and Tenn. R. Crim. P. 32(c)(3)(C). State v. Menke, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 398 (Tenn. Crim. App. May 21, 2018).

3. Habeas Corpus.

Dismissal of habeas corpus petition was affirmed, because the agreed-upon 12-year sentence to a Class C charge of aggravated burglary was not void and was not subject to collateral attack via a petition for writ of habeas corpus, because the sentencing court had jurisdiction to impose the agreed-upon sentence; the sentence designated as Range I in the present case exceeded the six-year maximum sentence for a Range I offender in a Class C offense, pursuant to T.C.A. § 40-35-112(a)(3), but the imposed sentence was less than the maximum, 15-year sentence for Class C offenses through the career offender-classification, T.C.A. § 40-35-111. McChristian v. State, 159 S.W.3d 608, 2004 Tenn. Crim. App. LEXIS 780 (Tenn. Crim. App. 2004).

Inmate was not entitled to habeas corpus relief from his plea bargained thirty-five-year sentence for second-degree murder where the sentence was well below the maximum sixty-year sentence for Class A felonies set forth in Tenn. Code § 40-35-111(a), (b)(1), and thus the agreed sentence was legal. Hoover v. State, 215 S.W.3d 776, 2007 Tenn. LEXIS 14 (Tenn. 2007).

4. Plain Error.

Where defendant appealed a sentencing issue, the court of criminal appeals erred in vacating his conviction of incest because its finding of plain error was erroneous; factor (a) under the plain error test was not met and the record strongly suggested that defendant pleaded guilty to incest, a lower grade offense than rape of a child that he was originally charged with, for tactical reasons, and by his plea of guilty, defendant accepted the benefit of a lower sentence for a lower-grade offense. Studdard v. State, 182 S.W.3d 283, 2005 Tenn. LEXIS 1046 (Tenn. 2005), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 518 (Tenn. 2006).

5. Juvenile Convictions.

Categorical approach that was used to determine the nature of prior felonies under the Armed Career Criminal Act, 18 U.S.C. § 924(e), applied to defendant's juvenile convictions; however, while his aggravated assault conviction and his involvement in several drive-by shootings constituted two offenses qualifying as violent felonies given the underlying facts and his admissions, neither his adjudication of delinquency based upon a plea to the charge of attempted robbery nor his adjudication of delinquency based upon a charge of aggravated assault could be used as a third qualifying conviction for sentencing enhancement purposes. United States v. Wells, 473 F.3d 640, 2007 FED App. 8P, 2007 U.S. App. LEXIS 360 (6th Cir. Tenn. 2007).

6. Discretion of Court.

Trial court properly revoked defendant's probation and ordered the remainder of his sentence to be served in confinement because it was within the court's discretion to order defendant to serve the remainder of his sentence in confinement inasmuch as defendant's probation had previously been revoked, he violated the terms of his release, was granted a medical furlough, and then absconded when his GPS monitor was removed. State v. Wilburn, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 332 (Tenn. Crim. App. June 3, 2019).

40-35-112. Sentence ranges.

A Range I sentence is as follows:
1. For a Class A felony, not less than fifteen (15) nor more than twenty-five (25) years;
2. For a Class B felony, not less than eight (8) nor more than twelve (12) years;
3. For a Class C felony, not less than three (3) nor more than six (6) years;
4. For a Class D felony, not less than two (2) nor more than four (4) years; and
5. For a Class E felony, not less than one (1) nor more than two (2) years.
A Range II sentence is as follows:
1. For a Class A felony, not less than twenty-five (25) nor more than forty (40) years;
2. For a Class B felony, not less than twelve (12) nor more than twenty (20) years;
3. For a Class C felony, not less than six (6) nor more than ten (10) years;
4. For a Class D felony, not less than four (4) nor more than eight (8) years; and
5. For a Class E felony, not less than two (2) nor more than four (4) years.
A Range III sentence is as follows:
1. For a Class A felony, not less than forty (40) nor more than sixty (60) years;
2. For a Class B felony, not less than twenty (20) nor more than thirty (30) years;
3. For a Class C felony, not less than ten (10) nor more than fifteen (15) years;
4. For a Class D felony, not less than eight (8) nor more than twelve (12) years; and
5. For a Class E felony, not less than four (4) nor more than six (6) years.

Acts 1989, ch. 591, § 6.

Sentencing Commission Comments.

This section sets out the ranges for the various classifications of felonies and sets forth the minimum and maximum sentences for each. The grid accompanying the comments to § 40-35-101 illustrates these sentences on the sentencing table.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Cross-References. Authorized terms of imprisonment and fines for felonies and misdemeanors, § 40-35-111.

Classification of felonies and misdemeanors, § 40-35-110.

Textbooks. Tennessee Criminal Sentencing Act of 1982: Practice and Procedure (David L. Raybin), 18 No. 3 Tenn. B.J. 36 (1982).

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, §§ 40, 45, 48; 14 Tenn. Juris., Homicide, § 62; 25 Tenn. Juris., Weapons § 7.

Law Reviews.

Misdemeanor Decriminalization, 68 Vand. L. Rev. 1055 (2015).

NOTES TO DECISIONS

1. Construction with Other Statutes.

In order to comply with the ex post facto prohibitions of the U.S. and Tennessee Constitutions, trial court judges imposing sentences after the effective date of the this statute for the crime of assault with intent to commit murder, committed prior thereto, must calculate the appropriate sentence under T.C.A. § 40-35-112 and the former § 39-2-103, in their entirety, and then impose the lesser sentence of the two. State v. Harris, 978 S.W.2d 109, 1997 Tenn. Crim. App. LEXIS 1109 (Tenn. Crim. App. 1997), appeal denied, 978 S.W.2d 109, 1998 Tenn. LEXIS 397 (Tenn. 1998), review or rehearing denied, Rutherford v. Rutherford, — S.W.2d —, 1998 Tenn. LEXIS 398 (Tenn. 1998).

2. Guilty Pleas.

Because he was unaware that the agreed sentence was illegal, the petitioner could not have knowingly and voluntarily plead guilty. The statutory range agreed upon between the state and the defendant is a nullity and cannot be waived. The judgment may not be amended to reflect a sentence consistent with the statute unless the petitioner knowingly and voluntarily agrees to the changes. Woods v. State, 928 S.W.2d 52, 1996 Tenn. Crim. App. LEXIS 240 (Tenn. Crim. App. 1996).

The 1989 Criminal Sentencing Reform Act, T.C.A. § 40-35-101 et seq., applies to plea bargain agreements; therefore, a trial court may impose a sentence that is mutually agreeable to the state and the defendant, so long as the sentence is available under the Act. McConnell v. State, 12 S.W.3d 795, 2000 Tenn. LEXIS 65 (Tenn. 2000).

Where petitioner pled guilty as a Range III offender, the petitioner's sentence of 15 years was not illegal, as the sentencing range for a Range III offender convicted of a Class C felony is 10 to 15 years, and the offender classification was nonjurisdictional and a proper basis for plea negotiations. Bland v. Dukes, 97 S.W.3d 133, 2002 Tenn. Crim. App. LEXIS 681 (Tenn. Crim. App. 2002), review or rehearing denied, — S.W.3d —, 2002 Tenn. LEXIS 659 (Tenn. Dec. 9, 2002).

Post-conviction court properly denied defendant's petition for relief because he failed to prove that trial counsel was ineffective or that he had been prejudiced thereby where trial counsel accurately advised him of the maximum sentence that he was facing, the post-conviction court found that the evidence against him was “overwhelmingly strong” and the likelihood that he would be convicted at trial was “probably extremely high,” the trial court conducted a thorough plea colloquy with him, and his wish for reduced charges and his extensive criminal record showed that he was familiar with plea negotiating and sentencing. Johnson v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 26 (Tenn. Crim. App. Jan. 17, 2017).

3. Sentence Proper.

In reviewing defendant's sentence for an aggravated sexual battery conviction pursuant to T.C.A. § 40-35-401(d) and considering the appropriate sentencing factors under T.C.A. §§ 40-35-103(5) and 40-35-210(b), defendant's sentence of 12 years, which is within the sentencing range set out by T.C.A. § 40-35-112(a)(2), was appropriate because two sentencing enhancement factors applied to defendant as defendant had a previous history of sexual battery convictions which involved children and defendant abused a position of private trust, since defendant was the victim's uncle to whom the parents had entrusted the victim's keeping on numerous occasions. State v. Jordan, 116 S.W.3d 8, 2003 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. 2003).

Where defendant was indicted for rape of a child after impregnating a 12-year-old girl, he pleaded guilty to attempted rape of a child and received a sentence of eight years; the trial court properly determined that he was not a suitable candidate for probation; had the defendant been convicted of rape of a child, the charged offense, he would have been ineligible for probation and required to serve 100 percent of a 15 to 25-year sentence. State v. Pierce, 138 S.W.3d 820, 2004 Tenn. LEXIS 634 (Tenn. 2004).

Defendant's sentences to sixteen years in prison for his rape conviction and a concurrent term of fifteen years for his aggravated burglary conviction were imposed in compliance with the sentencing act and were in compliance with the U.S. Const. amend. 6. State v. Scarborough, 201 S.W.3d 607, 2006 Tenn. LEXIS 758 (Tenn. 2006).

Defendant's effective 29-year sentence after he was convicted of drug charges were proper under T.C.A. §§ 40-35-112(a)(1)-(4) and 40-35-114(1), (9) because the trial court followed the statutory sentencing procedure, made findings of facts that were adequately supported in the record, and gave due consideration to the principles that were relevant to sentencing. In part, the trial testimony established that 17 firearms were found in various locations around defendant's residence and at trial, an agent testified that he found a revolver with five rounds in it lying on a table in plain view in the recreation room. State v. Hayes, 337 S.W.3d 235, 2010 Tenn. Crim. App. LEXIS 684 (Tenn. Crim. App. Aug. 18, 2010), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 152 (Tenn. Feb. 17, 2011).

Trial court's enhancement of defendant's sentence to forty years based on the existence of three enhancement factors not found by a jury was appropriate as sentencing arguments previously cognizable under Blakely were rendered moot by the 2005 Amendments to the Sentencing Reform Act of 1989. State v. Davis, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 431 (Tenn. Crim. App. May 21, 2013), aff'd, 466 S.W.3d 49, 2015 Tenn. LEXIS 463 (Tenn. June 3, 2015).

Defendant's 18-year sentences for rape of a child, a Class A felony under T.C.A. § 39-13-522, and 10-year sentence for aggravated sexual battery, a Class B felony under T.C.A. § 39-13-504, were within the statutory range under T.C.A. § 40-35-112(a) and were proper as: (1) defendant had a previous criminal history for T.C.A. § 40-35-114(1) purposes; (2) the victim's injuries were particularly great for § 40-35-114(6) purposes; (3) defendant abused a position of private trust under § 40-35-114(14); and (4) there was no evidence that any mitigating factors applied under T.C.A. § 40-35-113. State v. Nance, 393 S.W.3d 212, 2012 Tenn. Crim. App. LEXIS 316 (Tenn. Crim. App. May 16, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 898 (Tenn. Nov. 27, 2012).

Trial court ordered defendant to serve four years for his Class D burglary conviction and to serve five years for his Class C theft of property conviction; because the trial court ordered sentences within the proper range, the sentences were presumptively reasonable and would not be reversed absent an abuse of discretion. State v. Firestone, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 103 (Tenn. Crim. App. Feb. 16, 2017).

In a case where defendant pled guilty to vehicular homicide by intoxication, because the trial court imposed a sentence within the applicable range of eight to 12 years, and the sentence was consistent with the purposes and principles of the Sentencing Act, the sentence was presumed reasonable, and the trial court did not abuse its discretion in ordering a sentence of 11 years. State v. Bishop, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 395 (Tenn. Crim. App. May 16, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 599 (Tenn. Sept. 22, 2017).

Five year sentence, one year beyond the minimum under T.C.A. § 40-35-112(b)(4) for facilitation of robbery under T.C.A. §§ 39-11-403(a) and 39-13-401(a) was proper; the trial court properly considered the factors under T.C.A. § 40-35-210(b) and applied enhancement factors under T.C.A. § 40-35-114(1), (8), (13)(C) related to defendant's criminal history, his failure to comply with conditions of a sentence involving release into the community, and the fact that he was released on federal probation at the time he committed the offense. State v. Shane, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 419 (Tenn. Crim. App. May 19, 2017).

Defendant's 12-year sentence for rape was proper, as it was within the applicable range and imposed after consideration of the evidence offered and enhancement and mitigating factors. State v. Thornton, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 524 (Tenn. Crim. App. June 22, 2017).

Defendant's 14-year sentence for aggravated burglary was not excessive because defendant had a history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range, and defendant was adjudicated to have committed a delinquent act or acts as a juvenile that would constitute a felony if committed by an adult; and defendant was sentenced to one year less than the maximum in his range. State v. Sanders, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 670 (Tenn. Crim. App. July 31, 2017).

Trial court's four and one half years' sentence for defendant's conviction of theft of property was entitled to a presumption of reasonableness because the trial court ordered a sentence within the appropriate range under T.C.A. §§ 39-14-105(a)(4), 40-35-112(a)(3); a trial court's weighing of various mitigating and enhancement factors was left to the trial court's sound discretion and there was no abuse of discretion here. State v. Moore, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 982 (Tenn. Crim. App. Nov. 28, 2017).

Defendant's eight-year sentence for his Class D felony conviction for child abuse was proper because the trial court determined that the statutory range for defendant's offense as a Range II, multiple offender was four to eight years; for purposes of the aggravating factors, the presentence report listed defendant's 23 prior misdemeanors and two prior felonies, and defendant testified to an extensive history of criminal activity and to violating probation twice; and, for purposes of the enhancement factors, the trial court properly considered the victim's vulnerability as the four-year-old victim was mentally disabled and autistic, and that defendant abused his position as the victim's babysitter. State v. Gerg, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1012 (Tenn. Crim. App. Dec. 7, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 179 (Tenn. Mar. 14, 2018).

Defendant's 12-year sentence for aggravated robbery was not excessive, as it was within the sentencing range for a Range I, standard offender, and accounted for defendant's prior criminal history and behavior and his prior failure to comply with the conditions of a sentence involving release into the community. State v. Moss, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 11 (Tenn. Ct. App. Jan. 5, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 271 (Tenn. May 17, 2018).

In a case in which defendant pled guilty to a lesser-included offense of attempted aggravated burglary, the trial court did not err in revoking defendant's community corrections sentence and resentencing him to 10 years in the Department of Correction because defendant's range of punishment was eight to 12 years; defendant had a previous history of criminal convictions or behavior in addition to those necessary to establish the appropriate range; he committed the convicted offense while on parole; defendant had a lengthy criminal history; and defendant previously had been placed on probation four to five times but never successfully completed it. State v. Rhodes, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 55 (Tenn. Crim. App. Jan. 26, 2018).

Trial court did not abuse its discretion by sentencing defendant to 15 years as a Range III persistent offender for theft because the trial court's findings that he had a prior history of criminal convictions or behavior and he had failed to comply with the conditions of release into the community were supported by defendant's presentence report. State v. Demling, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 68 (Tenn. Crim. App. Jan. 30, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 359 (Tenn. June 6, 2018).

Trial court did not abuse its discretion by sentencing defendant to an identical sentence as his codefendant, 11 years for a Class B felony, because the sentence was within the appropriate range, the trial court found that no mitigating factors applied, it found that four enhancement factors were applicable, and the security video belied his contention that he played a lesser role in the crime. State v. Williams, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 261 (Tenn. Crim. App. Apr. 5, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 594 (Tenn. Sept. 13, 2018).

Evidence was sufficient to support defendant's convictions of aggravated assault because while acting in concert with at least 10 other individuals, he intentionally or knowingly caused serious bodily injury to the victim by beating him severely with brass knuckles until the victim suffered facial fractures and temporarily lost consciousness, plus defendant handed a gun to his brother and told him to shoot the victim. State v. Gomez, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 359 (Tenn. Crim. App. May 9, 2018).

Trial court did not abuse its discretion in sentencing defendant to eight years for possession of contraband in a penal institution; as a Range II multiple offender, defendant's sentence range was six to ten years, the trial court did not err in applying enhancement factors as defendant failed to comply the conditions of a sentence when the felony was committed, and the trial court also considered the mitigating factor that defendant's criminal conduct neither caused nor threatened serious bodily injury. State v. Champion, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 392 (Tenn. Crim. App. May 18, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 642 (Tenn. Oct. 11, 2018).

Trial court properly sentenced defendant to 15 years in the Tennessee Department of Correction after he was convicted of one count of arson because defendant admitted to having set fire to the victim's house, the only evidence that another person hired him to do so was defendant's statement to an agent for the Tennessee Bureau of Investigation, which the jury was free to disregard, defendant's 15-year sentence was within range for a Range III offender convicted of a Class C felony, and the trial court properly considered the purposes and principles of sentencing. State v. Tidwell, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 430 (Tenn. Crim. App. June 5, 2018).

Trial court did not abuse its discretion by sentencing defendant to eight years and six months for aggravated robbery because it was within the sentencing range and it properly considered defendant's criminal history. State v. Austin, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 756 (Tenn. Crim. App. Oct. 4, 2018).

Where defendant pled guilty to two counts of robbery in case 109738 and to aggravated robbery and robbery in case 109776, the trial court did not err in sentencing defendant as a Range II multiple offender to consecutive terms of eight years in case 109738 and 14 years in case 109776 because, although there was no competent evidence that there was a high risk to the life of someone other than the victim during the aggravated robbery with a deadly weapon, and the trial court misapplied enhancement factor (10), the trial court did not abuse its discretion in sentencing defendant within the appropriate range for a multiple offender convicted of Class B felony aggravated robbery and Class C felony robbery. State v. Smith, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 840 (Tenn. Crim. App. Nov. 14, 2018).

Defendant's within-range sentence of 10 years and six months for rape was proper, as he was not eligible for probation, the trial court considered all relevant factors, and the trial court properly applied the enhancements for abusing a position of trust, as defendant was a pastor, and the offense was committed to gratify defendant's desire for pleasure, as he orchestrated the absence of others, including his daughter, when taking the victim to an isolated area, and the only mitigating factor was the conduct did not threaten bodily injury. State v. Zeigler, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 83 (Tenn. Crim. App. Feb. 7, 2019).

Trial court did not abuse its discretion by imposing the maximum sentence—when defendant pleaded guilty to soliciting sexual exploitation of a minor—because the court considered the applicable factors and accordingly imposed a sentence that was within the appropriate range and in compliance with the sentencing principles and purposes. State v. Gantt, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 213 (Tenn. Crim. App. Apr. 4, 2019).

Defendant's effective 40-year sentence was proper because (1) consecutive sentences were proper, as defendant was convicted of two or more crimes involving sexual abuse of a minor, (2) the sentences were within statutory ranges, and (3) applicable enhancement factors were properly applied. State v. Todd, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 250 (Tenn. Crim. App. Apr. 17, 2019).

Defendant's 22-year sentence for second degree murder was not excessive because the sentence was within the 15 to 25-year statutory range; the trial court did not place significant weight upon the number of firearm crimes and deaths in the county in imposing a sentence but placed significant weight on defendant's use of a firearm in killing the victim as an enhancement factor; in considering defendant's statement, the trial court did not err in determining that defendant failed to accept responsibility for his actions, and that he, thus, was not remorseful as his claim that the victim's death was accidental was not supported by the evidence; and the trial court considered all relevant sentencing principles when imposing the sentence. State v. Turner, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 259 (Tenn. Crim. App. Apr. 23, 2019).

Trial court did not err by sentencing defendant to seven years' confinement for felony theft of property because it was within the range provided by this section. State v. Talley, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 261 (Tenn. Crim. App. Apr. 24, 2019).

Defendant's within range 10-year sentence for the rape of the victim, a mentally disabled nine-year-old child, was not excessive because defendant had multiple prior convictions, two of which were for violent felonies involving the victim's family; the victim was particularly vulnerable as he was born with a genetic syndrome that caused him to be severely intellectually and developmentally delayed from birth, and he was autistic; and he served as the victim's caretaker while the victim's father was at work. State v. Keener, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 269 (Tenn. Crim. App. Apr. 26, 2019).

Trial court's sentence of 10 years was not excessive because the sentencing range was eight to 12 years, and the sentence was presumed reasonable because the trial court considered the evidence at trial and sentencing, the presentencing report, the principles of sentencing, the parties' arguments, the nature and characteristics of the crime, and evidence of mitigating and enhancement factors. State v. Golden, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 451 (Tenn. Crim. App. July 29, 2019).

Trial court properly sentenced defendant because it considered the relevant principles and sentenced defendant to within range sentences of 19 and 21 years for his convictions; defendant was convicted of two counts of aggravated child neglect of a child under the age of eight, a Class A felony, and as a Range I offender, his sentencing range was 15 to 25 years by operation of law. State v. Morse, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 460 (Tenn. Crim. App. July 31, 2019).

In a case in which defendant was sentenced to 20 years for his aggravated robbery conviction, the trial court did not abuse its discretion in finding the criminal history or the leader in the commission of an offense enhancement factor applied because defendant was previously convicted of 16 misdemeanors, four felonies; 11 of his prior convictions were crimes of violence, including domestic assault, assault, and aggravated assault; and the trial court determined that a top-of-range sentence was justly deserved in relation to the seriousness of the offense and that the sentence would promote respect for the law. State v. Carter, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 496 (Tenn. Crim. App. Aug. 16, 2019).

Trial court did not abuse its discretion by ordering defendant to serve his total effective sentence of two years in confinement because defendant was not eligible for community corrections as he was convicted under the Drug-Free School Zone Act; defendants dealing drugs in school zones who were sentenced to the minimum term in their sentencing range would serve 100% of their sentences; and defendant received concurrent sentences of two years for each conviction of sale of a Schedule III controlled substance within a drug-free zone, delivery of a Schedule III controlled substance within a drug-free zone, and maintaining a dwelling where a controlled substance was kept or sold, which were the minimum sentences for those offenses. State v. Diggs, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 501 (Tenn. Crim. App. Aug. 20, 2019).

Defendant's 10-year, within-range sentence for aggravated assault was not excessive but was based on defendant's prior criminal history, and the trial court's concern about defendant's history of criminal behavior, including convictions for domestic violence related offenses, especially considering the instant case involves a domestic violence related offense and concern that Defendant lacked an appreciation for his accountability for his actions and the impact of his criminal behavior on others. State v. Baker, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 627 (Tenn. Crim. App. Oct. 4, 2019).

Defendant was not entitled to relief because he failed to show how his sentence violated any statute or rendered him eligible to to correct an illegal sentence; defendant was convicted of theft over $ 10,000, a Class C felony, and received a within-range sentence of five years. State v. Chouinard, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 680 (Tenn. Crim. App. Oct. 21, 2019).

Trial court properly found that the minimum punishment of eight years for the Class B felony offenses was not appropriate in this case, and the trial court did not err by sentencing defendant to 10 years for drug possession with intent to deliver and 12 years for attempted second degree murder; the trial court did not err in considering defendant's admitted marijuana use, for purposes of T.C.A. § 40-35-114(a), but the court remanded due to numerous errors on the amended judgments of conviction that needed to be corrected. State v. Turner, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 704 (Tenn. Crim. App. Nov. 1, 2019).

Defendant's effective sentence of 12-years for possession of methamphetamine with intent to resell and intent to deliver, a Class B felony, was not excessive because the trial court was clearly troubled by the his prior criminal history and failure to abide by the terms of his prior probation sentences. State v. Chavez, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 718 (Tenn. Crim. App. Nov. 12, 2019).

Because defendant was sentenced as a Range I standard offender with a sentence maximum of 25 years for a Class A felony, and because the 2009 and 2010 versions of this statute required a minimum sentence of 25 years, the trial court properly sentenced defendant to 25 years on both counts of rape of a child. State v. Brady, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 232 (Tenn. Crim. App. Apr. 13, 2020).

Although defendant, who pled guilty to voluntary manslaughter and DUI, was designated as a Range I offender, he agreed to be sentenced outside of that range to a term of eight years' to twelve years' imprisonment, acknowledging at the plea hearing that he understood that he would receive a greater sentence for voluntary manslaughter than he would have had he proceeded to trial. State v. Henry, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 326 (Tenn. Crim. App. May 8, 2020).

Trial court acted within its discretion in sentencing defendant to a mid-range sentence of ten years after finding that defendant had a history of criminal behavior and that he was out on bond for another offense at the time he committed the aggravated robbery. State v. Jordan, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 328 (Tenn. Crim. App. May 8, 2020).

Defendant's sentence of 30 years fell within the statutory range for rape and his sentence of 10 years fell within the range for aggravated sexual battery, and the trial court considered the evidence mandated by statute and found the sentences in part based on defendant's relationship with the victims, his stepchildren; even though the trial court committed errors in application of enhancement factors, which the State conceded as there were no multiple victims and vulnerability was not proven, the sentences were not an abuse of discretion. State v. Haven, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 431 (Tenn. Crim. App. June 19, 2020).

4. —Enhancement.

In a case where defendant was convicted of theft, vehicular assault, and aggravated vehicular homicide, trial court did not err by imposing an effective 24-year sentence as defendant's 21-year sentence for aggravated vehicular homicide and three-year sentences for theft and vehicular assault were appropriate for a Range I, standard offender under T.C.A. § 40-35-112(a)(1), (4); trial court applied an enhancement factor based on defendant's previous criminal convictions. State v. Bowman, 327 S.W.3d 69, 2009 Tenn. Crim. App. LEXIS 35 (Tenn. Crim. App. Jan. 14, 2009), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 395 (Tenn. June 15, 2009), cert. denied, Bowman v. Tennessee, 175 L. Ed. 2d 388, 130 S. Ct. 559, 2009 U.S. LEXIS 8080 (U.S. 2009).

Court of criminal appeals properly affirmed the denial of defendant's motion to correct an illegal sentence because defendant failed to allege a colorable claim for correction of an illegal sentence; the five-year sentence defendant received was statutorily available for the offense of which her was convicted, facilitation of aggravated robbery, even if the trial court erred by concluding the sentence was appropriate for him. State v. Wooden, 478 S.W.3d 585, 2015 Tenn. LEXIS 932 (Tenn. Dec. 2, 2015).

Defendant's seven-year sentence for robbery was not excessive because it was within the sentence range for a Range II multiple offender and the presentence report supported the trial court's application of an enhancement factor for defendant's history of criminal convictions. State v. Ketchum, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 427 (Tenn. Crim. App. May 23, 2017).

In sentencing defendant for statutory rape and solicitation of a minor, the trial court properly applied the enhancement fact that defendant abused a position of public or private trust because the victim was a friend of defendant's son, and defendant's first sexual encounter with the victim occurred while the victim was in her care while at her home visiting her son. State v. Hodges, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 644 (Tenn. Crim. App. July 20, 2017).

Defendant's 22-year sentence for three counts of aggravated sexual battery was not excessive because his 11-year sentences were within range, he had previous convictions for theft and attempted sale of a controlled substance, and he conceded that he abused a position of trust based on the fact that the victim was his stepdaughter. State v. Mabe, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 920 (Tenn. Crim. App. Oct. 18, 2017).

In a case in which defendant was convicted of attempted aggravated sexual battery, the trial court did not abuse its discretion in imposing a five-year sentence because defendant was eligible for a sentence of three to six years; and, although the trial court misapplied the enhancement factor that defendant committed the crime to gratify his desire for pleasure or excitement as that factor was an element of attempted aggravated sexual battery, the trial court properly found as a separate enhancement factor that defendant abused a position of trust when he terminated the parental rights of the victim's biological parents and then subsequently sexually abused her. State v. Sexton, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 8 (Tenn. Crim. App. Jan. 5, 2018).

In a case in which defendant was convicted of two counts of aggravated sexual battery, in which the convictions were merged, defendant's 12-year sentence, although the maximum, was not excessive because he had a history of criminal convictions in addition to those necessary to establish his range; and he occupied a position of private trust with respect to the victim as the testimony at trial from the victim, her mother, her stepbrother, and defendant himself established that he was the victim's stepfather and that he lived with the victim and her family for several years prior to the incident. State v. Smith, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 33 (Tenn. Crim. App. Jan. 16, 2018).

Trial court sentenced defendant in the appropriate range for all three sentences for rape of a child because it considered the purposes and principles of sentencing; the trial court enhanced the second and third sentences based on a previous history of criminal behavior consisting of previous rapes simultaneously adjudicated, and the trial court was presented with evidence that defendant committed a fourth rape for which he was not charged. State v. Franklin, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 139 (Tenn. Crim. App. Feb. 27, 2018).

Defendant's 15-year sentence for two counts of aggravated assault was proper, as the sentence was within the range for a Range III offender and the record supported the trial court's application of enhancement factor for cruelty; defendant's conduct of striking the victim on the head once with the pipe supported defendant's conviction, and his striking the victim a second time while he was unable to defend himself supported a finding that defendant's conduct was for the purpose of inflicting pain or suffering for its own sake. State v. Hughes, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 367 (Tenn. Crim. App. May 11, 2018).

Defendant's 10-year sentence as a Range I offender for aggravated sexual battery was proper; his sentence fell within the applicable sentencing range and was presumed reasonable, the trial court properly weighed the applicable enhancement factors and found no mitigating factors applied, and the State provided sufficient facts to establish that defendant abused a position of private trust, which he conceded. State v. Bergum, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 705 (Tenn. Crim. App. Sept. 18, 2018).

Trial court did not abuse its discretion by sentencing defendant to 20 years in prison for second-degree murder because defendant's sentencing range was 15-25 years, the trial court found one enhancement factor, that defendant used a firearm in the commission of the offense, and it gave a lot of credit to that very strong enhancing factor that a firearm was taken into the victim's house and he was shot in the back of the head at a distance of three to four inches. State v. Donaldson, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 342 (Tenn. Crim. App. May 14, 2020).

5. Sentence Improper.

Petition for rehearing was granted and the court of criminal appeals held that the trial court's use of statutory enhancement factors to increase the length of defendant's numerous sentences for aggravated sexual battery to the maximum by applying T.C.A. § 40-35-114 was improper and violated his sixth amendment right to trial by jury; no statutory enhancement factors were applicable to overcome the inertia of the presumptive sentence, which on each count was eight years pursuant to T.C.A. § 40-35-112(a)(2), thereby yielding an effective sentence of thirty-two years. State v. Schiefelbein, 230 S.W.3d 88, 2007 Tenn. Crim. App. LEXIS 213 (Tenn. Crim. App. Mar. 7, 2007), appeal denied, State v. Shiefelbein, — S.W.3d —, 2007 Tenn. LEXIS 556 (Tenn. June 18, 2007).

Because defendant was a Range I offender, and the rape of a child offense occurred before January 1, 2012, under a former version of this statute, the minimum statutory sentence of 25 years for defendant was also the maximum possible sentence, and the trial court erred in imposing a Range II sentence of 28 years. State v. Fields, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 578 (Tenn. Crim. App. Aug. 25, 2020).

6. Habeas Corpus.

7. Sentencing Ranges.

Defendant was required to be sentenced as a Range I, standard offender subject to a sentencing range of eight to twelve years; accordingly, the trial court's twelve-year sentence was within the applicable statutory range and presumed reasonable. State v. Blackman, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 636 (Tenn. Crim. App. July 20, 2017).

Because defendant's sentences for sale of a Schedule III controlled substance within a drug-free zone, delivery of a Schedule III controlled substance within a drug-free zone, and maintaining a dwelling where a controlled substance was kept or sold were within the appropriate range, the trial court's sentencing determinations were entitled to a presumption of reasonableness. State v. Barrett, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 500 (Tenn. Crim. App. Aug. 20, 2019).

Trial court did not abuse its discretion by sentencing defendant to 21 years' confinement for each especially aggravated kidnapping conviction because the sentences were within-range, the trial court considered the arguments and evidence presented at trial and the sentencing hearing, the trial court reviewed the presentence report, defendant's criminal history, the violent nature of defendant's crime, and appropriate enhancement and mitigating factors, and it articulated why the enhancement factors outweighed the mitigating factors. State v. Kiser, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 411 (Tenn. Crim. App. June 16, 2020).

8. Appellate Review.

9. Range III Offender.

40-35-113. Mitigating factors.

If appropriate for the offense, mitigating factors may include, but are not limited to:

The defendant's criminal conduct neither caused nor threatened serious bodily injury;
The defendant acted under strong provocation;
Substantial grounds exist tending to excuse or justify the defendant's criminal conduct, though failing to establish a defense;
The defendant played a minor role in the commission of the offense;
Before detection, the defendant compensated or made a good faith attempt to compensate the victim of criminal conduct for the damage or injury the victim sustained;
The defendant, because of youth or old age, lacked substantial judgment in committing the offense;
The defendant was motivated by a desire to provide necessities for the defendant's family or the defendant's self;
The defendant was suffering from a mental or physical condition that significantly reduced the defendant's culpability for the offense; however, the voluntary use of intoxicants does not fall within the purview of this factor;
The defendant assisted the authorities in uncovering offenses committed by other persons or in detecting or apprehending other persons who had committed the offenses;
The defendant assisted the authorities in locating or recovering any property or person involved in the crime;
The defendant, although guilty of the crime, committed the offense under such unusual circumstances that it is unlikely that a sustained intent to violate the law motivated the criminal conduct;
The defendant acted under duress or under the domination of another person, even though the duress or the domination of another person is not sufficient to constitute a defense to the crime; and
Any other factor consistent with the purposes of this chapter.

Acts 1989, ch. 591, § 6.

Sentencing Commission Comments.

Under § 40-35-210(b)(5), the trial judge is required to consider mitigating factors in determining the specific sentence length and the appropriate combination of sentencing alternatives that should be imposed. This section sets forth twelve specific mitigating factors which are similar in nature to prior law.

It should be observed that the list is not exclusive and the final portion of this section provides that the trial judge may consider “any other factor consistent with the purposes of this chapter.” There has been a tendency to perceive mitigating factors as “statutory” and “non-statutory” in the sense that the latter are somehow of less significance than the former. The commission believes that appropriate sentencing determinations should be made on the basis of all relevant information presented to the trial judge. Simply because a particular mitigating factor is not specifically listed in this section does not diminish its significance. Obviously, not every factual situation can be statutorily contemplated for designation as a mitigating factor. Factual matters which are consistent with the purposes of sentencing, § 40-35-102, and the sentencing considerations, § 40-35-103, must be considered by the trial judge.

Compiler's Notes. The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Cross-References. Victim impact statement to be considered evidence in determining whether factors in § 40-35-114 and this section apply, § 40-38-207.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 26.47, 28.42, 28.97, 28.60, 32.221, 32.237.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 40.

Law Reviews.

Blended Sentencing in Tennessee Courts, 44 U. Mem. L. Rev. 767 (2014).

Judicial Discretion Under the New Tennessee Criminal Sentencing Reform Act of 1982 (Thomas A. Wiseman, Jr.), 18 No. 4 Tenn. B.J. 13 (1982).

Specific Crime vs. Criminal Ways: Criminal Conduct and Responsibility in Rule 3E1.1, 54 Vand. L. Rev. 205 (2001).

The Criminalization of Mental Illness: How Theoretical Failures Create Real Problems in the Criminal Justice System (Georgia Lee Sims), 62 Vand. L. Rev. 1053 (2009).

NOTES TO DECISIONS

1. In General.

Where the trial judge did not apply any mitigating factors and defendant did not specify factors which were omitted, it must be assumed the mitigating factors were inapplicable. State v. Buckmeir, 902 S.W.2d 418, 1995 Tenn. Crim. App. LEXIS 6 (Tenn. Crim. App. 1995).

Even if some evidence of mitigation existed, which was acknowledged by the court, where the mitigating factors were strongly outweighed by the enhancement factors, the maximum sentence was warranted. State v. Ruane, 912 S.W.2d 766, 1995 Tenn. Crim. App. LEXIS 584 (Tenn. Crim. App. 1995).

Court rejected defendant's argument that the trial court did not consider mitigating factors under T.C.A. § 40-35-113(1), (13) because the negative factors outweighed any and all mitigating factors that might have supported an alternative sentence. State v. Souder, 105 S.W.3d 602, 2002 Tenn. Crim. App. LEXIS 986 (Tenn. Crim. App. 2002), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 269 (Tenn. Mar. 17, 2003).

2. Lack of Serious Bodily Injury.

In sentencing upon conviction of two counts of aggravated sexual battery, even though multiple aggravating factors applied, defendant should receive the benefit in mitigation of the fact that his conduct neither caused nor threatened serious bodily injury and receive less than the maximum sentence. State v. Hayes, 899 S.W.2d 175, 1995 Tenn. Crim. App. LEXIS 25 (Tenn. Crim. App. 1995).

In sentencing a defendant for rape, the trial court properly excluded the fact that defendant's conduct did not cause bodily injury where he had caused an unwanted pregnancy. State v. Smith, 910 S.W.2d 457, 1995 Tenn. Crim. App. LEXIS 227 (Tenn. Crim. App. 1995), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 351 (Tenn. July 3, 1995).

Where defendant was convicted of offenses involving several minor victims, evidence that he furnished alcoholic beverages to some of them and, by various means sexually abused most all of them, the mitigating factor that there was no threat of serious bodily injury did not apply. State v. McKnight, 900 S.W.2d 36, 1994 Tenn. Crim. App. LEXIS 759 (Tenn. Crim. App. 1994), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 58 (Tenn. 1995), overruled, State v. Collier, 411 S.W.3d 886, 2013 Tenn. LEXIS 636 (Tenn. Aug. 12, 2013).

When the conviction for possession is based only upon constructive possession and the threat of serious bodily injury is more conceptual than real, little justification exists in having a per se rule that excludes consideration of the mitigating factor that defendant's criminal conduct neither caused nor threatened serious bodily injury. State v. Ross, 49 S.W.3d 833, 2001 Tenn. LEXIS 563 (Tenn. 2001).

Defendant convicted of fourth offense DUI was properly sentenced to 4 years and order to pay a $10,000 fine. Trial court considered mitigating factors, including the lack of serious injury, along with aggravating factors, including defendant's criminal history and the severity of the offense. State v. Butler, 108 S.W.3d 845, 2003 Tenn. LEXIS 573 (Tenn. 2003).

Defendant's sentences to sixteen years in prison for his rape conviction and a concurrent term of fifteen years for his aggravated burglary conviction were imposed in compliance with the sentencing act and were in compliance with U.S. Const. amend. 6; in imposing the sentences, the trial court applied a single mitigating factor, that defendant's conduct did not cause or threaten serious bodily injury, and it applied two enhancement factors, that defendant had a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range and that defendant had a previous history of unwillingness to comply with the conditions of a sentence involving release in the community. State v. Scarborough, 201 S.W.3d 607, 2006 Tenn. LEXIS 758 (Tenn. 2006).

Because the rape of a child necessarily involved mental suffering – or at least a threat of such – within the meaning of serious bodily injury, the mitigating factor under T.C.A. § 40-35-113(1) was inapplicable to defendant's offenses. State v. Kimble, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 826 (Tenn. Crim. App. Nov. 7, 2018).

Defendant did not ask the trial court to apply the mitigating factor that her conduct neither caused nor threatened serious bodily injury, and as this was raised for the first time on appeal, it was waived; even if not waived, the trial court was justified by not applying this mitigating factor because it was reasonable to find that whenever a person was kicked in the vicinity of an eye, like defendant did in this case, there was a threat of serious bodily injury to the eye, bones in the face, or even brain injury. State v. Stone, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 33 (Tenn. Crim. App. Jan. 24, 2020).

3. Youth.

The application of the mitigating factor of youth to defendant, who was an adult under Tennessee law when rapes were committed, was not warranted. State v. Adams, 864 S.W.2d 31, 1993 Tenn. LEXIS 286 (Tenn. 1993).

In determining the mitigation of a sentence because defendant lacked substantial judgment because of his youth, the court should consider the concept of youth in context, i.e., defendant's age, education, maturity, experience, mental capacity of development, and any other pertinent circumstance tending to demonstrate his ability or inability to appreciate the nature of his conduct. State v. Carter, 908 S.W.2d 410, 1995 Tenn. Crim. App. LEXIS 362 (Tenn. Crim. App. 1995).

The mitigating factor of youth did not apply to a 21-year-old defendant who, although a high school dropout, maintained full-time employment. State v. Leggs, 955 S.W.2d 845, 1997 Tenn. Crim. App. LEXIS 192 (Tenn. Crim. App. 1997), overruled, State v. Hooper, 29 S.W.3d 1, 2000 Tenn. LEXIS 535 (Tenn. 2000).

Trial court properly declined to apply the mitigating factor, regarding defendant's youth, where defendant was street-wise, and testified that to possessing a gun the day of the shooting because defendant was going to be out on the street, a statement which reflects a calculated judgment about the prospects for violence in the situation in which the defendant placed himself. State v. Kelley, 34 S.W.3d 471, 2000 Tenn. Crim. App. LEXIS 166 (Tenn. Crim. App. 2000), review or rehearing denied, — S.W.3d —, 2000 Tenn. LEXIS 667 (Tenn. Nov. 20, 2000).

The trial court properly denied application of the mitigating factor where nothing in the record suggested that defendant lacked substantial judgment because of defendant's youth. State v. Adams, 45 S.W.3d 46, 2000 Tenn. Crim. App. LEXIS 542 (Tenn. Crim. App. 2000), appeal denied, — S.W.3d —, 2001 Tenn. LEXIS 251 (Tenn. Mar. 19, 2001).

In sentencing for aggravated robbery under T.C.A. § 39-13-402(a)(1), the trial court did not err by refusing to apply the mitigating factor under T.C.A. § 40-35-113(6) related to youth and lacking substantial judgment; he already had nine misdemeanor convictions and a history of marijuana use, and he was a leader in the commission of the aggravated robbery. State v. Fuller, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 939 (Tenn. Crim. App. Nov. 1, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 118 (Tenn. Feb. 14, 2018).

4. Mental or Physical Condition.

The trial court erred in refusing to sentence defendant as an especially mitigated offender where defendant was intellectually disabled, functioned on a level equivalent to a child from six to nine years of age, and could not read or write. State v. Blackstock, 19 S.W.3d 200, 2000 Tenn. LEXIS 168 (Tenn. 2000).

5. Assistance in Locating Property or Person.

Assisting in the recovery of a victim of crime, as with the recovery of stolen property, should be considered in mitigation in the appropriate case. State v. Lord, 894 S.W.2d 312, 1994 Tenn. Crim. App. LEXIS 733 (Tenn. Crim. App. 1994).

6. Unusual Circumstances.

Where a defendant who normally complied with an order under the Motor Vehicle Habitual Offenders Act, T.C.A. 55-10-601 et seq., was found to have violated the Act as a result of an investigation of an accident in which he was hit while pulling a float in a parade, the trial court erred by refusing to consider the mitigating factors under T.C.A. § 40-35-113 where the record showed that defendant had turned his life around by becoming a reliable employee with a good work ethic and a family man of social reliability and that the violation at issue arose from aberrant conduct. State v. Martin, 146 S.W.3d 64, 2004 Tenn. Crim. App. LEXIS 62 (Tenn. Crim. App. 2004).

In a case in which defendant raped a mentally disabled nine-year-old child, the trial court properly refused to apply mitigating factor (11) regarding the offense occurring under unusual circumstances because the evidence did not support defendant's claim that he became clinically depressed at or about the time of the offense as defendant stated in the presentence report that he became depressed when his relationship with the victim's father ended, and the rape occurred prior to the end of the relationship. State v. Keener, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 269 (Tenn. Crim. App. Apr. 26, 2019).

7. Contributions to Family and Community.

Where defendant was convicted of sex offenses involving several minor victims, favorable consideration based upon his family contributions and work ethic was not appropriate. State v. McKnight, 900 S.W.2d 36, 1994 Tenn. Crim. App. LEXIS 759 (Tenn. Crim. App. 1994), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 58 (Tenn. 1995), overruled, State v. Collier, 411 S.W.3d 886, 2013 Tenn. LEXIS 636 (Tenn. Aug. 12, 2013).

8. Absence of Prior Criminal Record.

Although the absence of a prior criminal record may be considered under the catch-all provision of T.C.A. § 40-35-113, the court of criminal appeals was not required to consider it as a mitigating factor. State v. Williams, 920 S.W.2d 247, 1995 Tenn. Crim. App. LEXIS 817 (Tenn. Crim. App. 1995).

Defendant was entitled to only slight mitigation for his lack of a criminal record. State v. Moss, 13 S.W.3d 374, 1999 Tenn. Crim. App. LEXIS 527 (Tenn. Crim. App. 1999).

9. Other Factors.

In sentencing a 20-year-old defendant upon conviction of vehicular homicide by recklessness, the trial court properly considered her age, lack of a criminal record, and expression of great remorse. State v. Bingham, 910 S.W.2d 448, 1995 Tenn. Crim. App. LEXIS 105 (Tenn. Crim. App. 1995), rehearing denied, — S.W.2d —, 1995 Tenn. Crim. App. LEXIS 407 (Tenn. Crim. App. May 15, 1995), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 592 (Tenn. Oct. 2, 1995), overruled in part, State v. Hooper, 29 S.W.3d 1, 2000 Tenn. LEXIS 535 (Tenn. 2000), overruled in part, State v. Walker, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 200 (Tenn. Crim. App. Mar. 16, 2017).

Defendant's sentence was not due mitigation for a lack of prior felony convictions because of his juvenile convictions for assault and robbery. State v. Leggs, 955 S.W.2d 845, 1997 Tenn. Crim. App. LEXIS 192 (Tenn. Crim. App. 1997), overruled, State v. Hooper, 29 S.W.3d 1, 2000 Tenn. LEXIS 535 (Tenn. 2000).

Defendant's expression of remorse in a statement made at his sentencing hearing warranted marginal consideration as a mitigating factor. State v. Leggs, 955 S.W.2d 845, 1997 Tenn. Crim. App. LEXIS 192 (Tenn. Crim. App. 1997), overruled, State v. Hooper, 29 S.W.3d 1, 2000 Tenn. LEXIS 535 (Tenn. 2000).

The mitigating factor that the defendant's conduct neither caused nor threatened serious bodily injury will not be applied when the defendant is convicted of an offense involving cocaine. State v. Vanderford, 980 S.W.2d 390, 1997 Tenn. Crim. App. LEXIS 1249 (Tenn. Crim. App. 1997).

The minimal value of the property taken in the course of a robbery, which amounted to what the victim happened to be carrying at the time, was not a statutory mitigating factor. State v. Ball, 987 S.W.2d 859, 1998 Tenn. Crim. App. LEXIS 862 (Tenn. Crim. App. 1998).

Evidence did not justify application of the mitigating factor for defendant's minor role in child's felony murder where, at the very least, defendant ignored the obvious, severe medical peril of a helpless two-year old child for whom he had accepted a primary care responsibility on a regular basis and for whom he had accepted a parental relationship. State v. Hodges, 7 S.W.3d 609, 1998 Tenn. Crim. App. LEXIS 1286 (Tenn. Crim. App. 1998).

Consideration of a defendant's work history is consistent with the purposes and principles of this section; however, the defendant's work history in the present case helped not at all where he provided no information as to job performance, length of service or his reasons for leaving any of the jobs he had. State v. Kelley, 34 S.W.3d 471, 2000 Tenn. Crim. App. LEXIS 166 (Tenn. Crim. App. 2000), review or rehearing denied, — S.W.3d —, 2000 Tenn. LEXIS 667 (Tenn. Nov. 20, 2000).

Although the trial court considered the defendant's involvement in high school sports and church activities pursuant to T.C.A. § 40-35-113(13), the court gave these factors little weight. State v. Kelley, 34 S.W.3d 471, 2000 Tenn. Crim. App. LEXIS 166 (Tenn. Crim. App. 2000), review or rehearing denied, — S.W.3d —, 2000 Tenn. LEXIS 667 (Tenn. Nov. 20, 2000).

In a case in which defendant pled guilty to three counts of aggravated sexual battery of his biological minor child, the trial court did not err in imposing a sentence of 10 years for each count to be served in confinement because, although the trial court erred in applying the enhancement factor that the victim was particularly vulnerable, the trial court acted within its discretion in refusing to mitigate defendant's sentence as there was a lack of proof supporting defendant's potential for rehabilitation or his military service, and the only proof offered concerning his remorse was his self-serving statements; and the enhancement factor that defendant abused a position of private trust was properly applied. State v. Penny, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 302 (Tenn. Crim. App. Apr. 23, 2018).

Trial court did not err by failing to apply the so-called “catch-all” mitigating factor because its findings regarding the enhancement factors for prior criminal history, previous failure to abide by the terms of release into the community, and commission of the present offenses while on probation showed that it was underwhelmed by any evidence which might support the application of the mitigating factor based upon defendant's alleged remorse, potential for rehabilitation, religion, and family ties. State v. Ward, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 202 (Tenn. Crim. App. Apr. 1, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 331 (Tenn. July 18, 2019).

In a case in which defendant raped a mentally disabled nine-year-old child, the trial court properly refused to apply the catch-all mitigating factor as defendant lacked the potential for rehabilitation because defendant's version of the events differed from the victim's version in that defendant claimed the victim's father was involved; defendant claimed he did not have a sexual attraction to children, which was inconsistent with the results of a sexual interest assessment; and defendant claimed he engaged in child molestation only one time with only one victim, which was inconsistent with the victim's claim that he was forced to engage in oral sex with defendant multiple times. State v. Keener, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 269 (Tenn. Crim. App. Apr. 26, 2019).

Defendant argued for the first time on appeal for application of the mitigating factor related to a lack of a sustained intent to violate the law, but even if not waived, the trial court did not err in finding that no mitigating factors applied; defendant drove to the victim's place of work, actually following the victim there and elicited a friend to come along and film the assault, which was a classic example of a sustained intent to violate the law. State v. Stone, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 33 (Tenn. Crim. App. Jan. 24, 2020).

10. Application of Factors.

Trial court's misapplication of an enhancement or mitigating factor does not invalidate the sentence imposed unless the trial court wholly departed from Tennessee Criminal Sentencing Reform Act of 1989, as amended in 2005; so long as there are other reasons consistent with the purposes and principles of sentencing, a sentence imposed within the appropriate range should be upheld. State v. Bise, 380 S.W.3d 682, 2012 Tenn. LEXIS 645 (Tenn. Sept. 26, 2012).

Defendant was properly convicted of aggravated vehicular homicide, vehicular assault, and reckless endangerment with a deadly weapon because his intoxication proximately caused a car crash that killed his son and injured his nephew, while his convictions for vehicular assault and reckless endangerment both stemmed from the crash, his DUI conviction should merge with the vehicular assault conviction since it was a lesser-included offense and he could not be punished separately for one act of DUI that caused serious bodily injury, and the trial court properly considered the aggregating, mitigating, and sentencing factors. State v. Steelman, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 936 (Tenn. Crim. App. Oct. 30, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 99 (Tenn. Feb. 14, 2018).

Trial court did not abuse its discretion in sentencing defendant because it specifically considered and applied the mitigating factor that defendant's conduct did not cause serious bodily injury; the trial court specifically acknowledged defendant's difficult childhood and its contribution to his drug issues, but it ordered incarceration due to concern over defendant's pattern of failed attempts at alternative sentencing. State v. Mathis, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 287 (Tenn. Crim. App. May 2, 2019).

Defendant's sentence was not an abuse of discretion because (1) defendant's firearm offense sentence was statutorily set, (2) the aggravating factor for particularly great injury was properly applied to defendant's aggravated assault sentence based on the victim's written statement describing specific, objective examples of the long-lasting and significant effects defendant's conduct had and continued to have on the victim, (3) the sentence was within the range defendant faced as a Range I offender, and (4) defendant did not state what mitigating factors defendant believed the court should have applied. State v. Blackmon, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 435 (Tenn. Crim. App. July 17, 2019).

Trial court imposed a within-range sentence and did not abuse its discretion in sentencing defendant because defendant has a long history of criminal convictions and prior incarceration; defendant did not provide any argument to support a conclusion that the trial court erred in applying enhancement factor based on his prior history of criminal convictions, and he did not identify any mitigating factors for which evidence existed but which the trial court failed to apply. State v. Tweedy, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 443 (Tenn. Crim. App. July 23, 2019).

11. Propriety of Sentence.

In defendant's sale of .5 grams or more of cocaine within one thousand feet of a school case, the trial court did not err in sentencing defendant to the presumptive sentence of thirty-two years and six months for each conviction where defendant responded voluntarily to the confidential informant's request to purchase drugs and chose the location for the transaction. The sales occurred within a forty-eight hour time span, and defendant had a prior criminal record of selling drugs. State v. Lindsey, 208 S.W.3d 432, 2006 Tenn. Crim. App. LEXIS 328 (Tenn. Crim. App. 2006), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 731 (Tenn. Aug. 21, 2006), dismissed, Lindsey v. Parker, — F. Supp. 2d —, 2013 U.S. Dist. LEXIS 102475 (E.D. Tenn. July 23, 2013).

Following defendant's conviction for vehicular homicide, trial court was within its discretionary bounds to consider as mitigation any other factor consistent with the purposes of the Criminal Sentencing Reform Act of 1989, including requests for leniency and defendant's expression of remorse; presumption of correctness attached to trial court's decision to sentence defendant to 10 years for the homicide offense. State v. Carter, 254 S.W.3d 335, 2008 Tenn. LEXIS 363 (Tenn. May 19, 2008).

Defendant's sentence of two years' incarceration for his child abuse conviction was within the appropriate range, and the record showed that the sentence imposed complied with the principles and purposes of the Sentencing Act. State v. Gresham, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 610 (Tenn. Crim. App. Aug. 14, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 759 (Tenn. Dec. 6, 2018), cert. denied, Gresham v. Tennessee, 204 L. Ed. 2d 1112, 139 S. Ct. 2724, — U.S. —, 2019 U.S. LEXIS 4120 (U.S. June 17, 2019).

Resentencing was necessary, when defendant pleaded guilty to reckless homicide following the accidental drowning of the minor victim, because the record did not reflect that the trial court considered any appropriate mitigating factors. An investigator and the victim's parent testified that defendant was cooperative and attempted to help with the police investigation and to find the victim, the record supported a determination that the likelihood of recidivism was minimal, and the court determined that the case involved a tragic event. State v. Baysinger, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 801 (Tenn. Crim. App. Dec. 23, 2019).

12. Sentence Upheld.

Trial court did not err by denying defendant alternative sentencing because defendant's argument that the trial court failed to consider the factors of T.C.A. § 40-35-103 was not supported by the record, the trial court found that confinement was necessary to avoid depreciating the seriousness of the offense, it found that he was not truthful, this section was not applicable because the testimony about his son's health was offered to establish that defendant's absence from the household would create a hardship due to the need for a specialized caretaker, and the record did not show that the trial court denied probation based on defendant's release eligibility date. State v. Redden, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 193 (Tenn. Crim. App. Mar. 15, 2017).

Even if the court agreed that the trial court misapplied one enhancement factor and should have considered defendant's mental illness, defendant would still not be entitled to relief, as the trial court found applicable four other enhancement factors that defendant did not contest, which was more than an adequate basis for enhancement; defendant agreed to a sentencing range of 18 to 23 years, and the trial court imposed a within-range sentence for attempted first degree murder consistent with the purposes and principles of the Sentencing Act. State v. Talley, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 340 (Tenn. Crim. App. May 5, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 503 (Tenn. Aug. 16, 2017).

Trial court did not abuse its discretion by sentencing defendant to serve four years in the Tennessee Department of Correction, the maximum sentence allowed for a Range I, D felony conviction, because it complied with the Sentencing Act, and the proffered reasons for imposing the sentence were supported by the record; the trial court considered all the sentencing factors and the relevant facts and circumstances of the case, and its “within-range” sentence was presumed reasonable. State v. Zickefoose, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 520 (Tenn. Crim. App. June 20, 2017).

Trial court did not abuse its discretion by ordering a fully-incarcerated sentence because defendant had a lengthy criminal history and the trial court was concerned about his failure to comply with court orders; the trial court determined that only one mitigating factor applied but gave it very little weight, and the trial court found that defendant had a previous history of criminal convictions and previously failed to comply with the conditions of a sentence. State v. Day, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 656 (Tenn. Crim. App. July 27, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 873 (Tenn. Dec. 6, 2017).

Trial court did not abuse its discretion by failing to applying mitigating factor 4 because defendant was in possession of stolen items matching the description of items taken from the victim's home and his testimony was the only evidence presented at the sentencing hearing that defendant played a minor role in the offenses. State v. Whitaker, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 970 (Tenn. Crim. App. Nov. 16, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 191 (Tenn. Mar. 14, 2018).

Trial court properly sentenced defendant to an effective sentence of 27 years in confinement for theft of property and money laundering because, while defendant initially cooperated with the police investigation, he eventually quit cooperating with the investigation after hiring counsel, he did not call a law enforcement officer or any other witnesses to corroborate his claims of good behavior, the trial court imposed within-range sentences for defendant's convictions of theft of property, defendant was not entitled to probation on the money laundering offenses due to his deceit, abuse of trust, and employment in the public sector and to avoid depreciating the seriousness of the offense. State v. Hughes, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 9 (Tenn. Crim. App. Jan. 8, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 284 (Tenn. May 16, 2018).

Trial court did not err by enhancing defendant's sentences and by ordering partial consecutive sentencing, following defendant's conviction for two counts of aggravated rape, aggravated kidnapping, and domestic assault, because the court considered defendant's previous history of criminal convictions or criminal behavior and use of a deadly weapon, a Taser, during the commission of the offenses. The court also found that defendant posed a continual danger to the community by defendant's criminal activity and anti-societal lifestyle. State v. Brown, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 271 (Tenn. Crim. App. Apr. 11, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 525 (Tenn. Aug. 13, 2018).

Trial court did not abuse its discretion by imposing the within range sentence of three and a half years because it considered the principles and purposes of sentencing; the trial considered and then stated on the record the enhancement and mitigating factors considered and the reasons for imposing the sentence. State v. Mathis, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 287 (Tenn. Crim. App. May 2, 2019).

13. Especially Mitigated Offender.

Defendant did not qualify as an especially mitigated offender because the trial court did not find any applicable mitigating factors. State v. Patel, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 767 (Tenn. Crim. App. Aug. 25, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 12 (Tenn. Jan. 17, 2018).

14. Sentence Upheld.

40-35-114. Enhancement factors.

If appropriate for the offense and if not already an essential element of the offense, the court shall consider, but is not bound by, the following advisory factors in determining whether to enhance a defendant's sentence:

The defendant has a previous history of criminal convictions or criminal behavior, in addition to those necessary to establish the appropriate range;
The defendant was a leader in the commission of an offense involving two (2) or more criminal actors;
The offense involved more than one (1) victim;
A victim of the offense was particularly vulnerable because of age or physical or mental disability;
The defendant treated, or allowed a victim to be treated, with exceptional cruelty during the commission of the offense;
The personal injuries inflicted upon, or the amount of damage to property sustained by or taken from, the victim was particularly great;
The offense involved a victim and was committed to gratify the defendant's desire for pleasure or excitement;
The defendant, before trial or sentencing, failed to comply with the conditions of a sentence involving release into the community;
The defendant possessed or employed a firearm, explosive device or other deadly weapon during the commission of the offense;
The defendant had no hesitation about committing a crime when the risk to human life was high;
The felony resulted in death or serious bodily injury, or involved the threat of death or serious bodily injury, to another person, and the defendant has previously been convicted of a felony that resulted in death or serious bodily injury;
During the commission of the felony, the defendant intentionally inflicted serious bodily injury upon another person, or the actions of the defendant resulted in the death of, or serious bodily injury to, a victim or a person other than the intended victim;
At the time the felony was committed, one (1) of the following classifications was applicable to the defendant:
1. Released on bail or pretrial release, if the defendant is ultimately convicted of the prior misdemeanor or felony;
2. Released on parole;
3. Released on probation;
4. On work release;
5. On community corrections;
6. On some form of judicially ordered release;
7. On any other type of release into the community under the direct or indirect supervision of any state or local governmental authority or a private entity contracting with the state or a local government;
8. On escape status; or
9. Incarcerated in any penal institution on a misdemeanor or felony charge or a misdemeanor or felony conviction;
The defendant abused a position of public or private trust, or used a professional license in a manner that significantly facilitated the commission or the fulfillment of the offense;
The defendant committed the offense on the grounds or facilities of a pre-kindergarten through grade twelve (pre-K-12) public or private institution of learning when minors were present;
The defendant was adjudicated to have committed a delinquent act or acts as a juvenile that would constitute a felony if committed by an adult;
The defendant intentionally selected the person against whom the crime was committed or selected the property that was damaged or otherwise affected by the crime, in whole or in part, because of the defendant's belief or perception regarding the race, religion, color, disability, sexual orientation, national origin, ancestry or gender of that person or the owner or occupant of that property; however, this subdivision (17) should not be construed to permit the enhancement of a sexual offense on the basis of gender selection alone;
The offense was an act of terrorism or was related to an act of terrorism;
If the defendant is convicted of the offense of aggravated assault pursuant to § 39-13-102, the victim of the aggravated assault was a law enforcement officer, firefighter, correctional officer, youth services officer, probation and parole officer, a state registered security guard/officer, an employee of the department of correction or the department of children's services, a uniformed member of the armed forces or national guard, an emergency medical or rescue worker, emergency medical technician or paramedic, whether compensated or acting as a volunteer; provided, that the victim was performing an official duty and the defendant knew or should have known that the victim was such an officer or employee;
If the defendant is convicted of the offenses of rape pursuant to § 39-13-503, sexual battery pursuant to § 39-13-505 or rape of a child pursuant to § 39-13-522, the defendant caused the victim to be mentally incapacitated or physically helpless by use of a controlled substance or controlled substance analogue;
If the defendant is convicted of the offenses of aggravated rape pursuant to § 39-13-502, rape pursuant to § 39-13-503, rape of a child pursuant to § 39-13-522 or statutory rape pursuant to § 39-13-506, the defendant knew or should have known that, at the time of the offense, the defendant was HIV positive;
1. If the defendant is convicted of the offenses of aggravated arson pursuant to § 39-14-302 or vandalism pursuant to § 39-14-408, the damage or destruction was caused to a structure, whether temporary or permanent in nature, used as a place of worship and the defendant knew or should have known that it was a place of worship;
2. As used in subdivision (22)(A), “place of worship” means any structure that is:
  1. Approved, or qualified to be approved, by the state board of equalization for property tax exemption pursuant to § 67-5-212, based on ownership and use of the structure by a religious institution; and
  2. Utilized on a regular basis by a religious institution as the site of congregational services, rites or activities communally undertaken for the purpose of worship;
The defendant is an adult and sells to or gives or exchanges a controlled substance, controlled substance analogue or other illegal drug with a minor;
The offense involved the theft of property and, as a result of the manner in which the offense was committed, the victim suffered significant damage to other property belonging to the victim or for which the victim was responsible;
1. The defendant commits an offense:
  1. During the time period between the first occurrence of events or conduct that later results in a declaration of a state of emergency by a county, the governor, or the president of the United States and the time the county, governor, or the president of the United States terminates the state of emergency, as provided in § 58-2-107;
  2. Within the area or areas threatened by the emergency, as established by the county's, governor's, or president's declaration of a state of emergency; and
  3. Knowing of the existence of the emergency;
2. As used in this subdivision (25):
  1. “Emergency” means an occurrence, or threat thereof, whether natural, technological, or manmade, in war or in peace, that results or may result in substantial injury or harm to the population, or substantial damage to or loss of property; provided, that natural threats may include disease outbreaks and epidemics; and
  2. “Offense” means the defendant is convicted of a violation of § 39-14-103, § 39-14-104, § 39-14-408, or any other offense involving theft or vandalism that is graded by value pursuant to § 39-14-105, and the value of the property or service taken or property damaged is no greater than the value provided in § 39-14-105 for a Class E felony;
The defendant committed the offense of robbery pursuant to § 39-13-401, aggravated robbery pursuant to § 39-13-402, or especially aggravated robbery pursuant to § 39-13-403, on the premises of a licensed pharmacy in an effort to unlawfully obtain, sell, give, or exchange a controlled substance, controlled substance analogue, or other illegal drug;
The defendant commits a violent offense, as classified in § 40-35-120(b), against a uniformed law enforcement officer or uniformed member of the armed forces or national guard; and the defendant intentionally selected the person against whom the crime was committed, in whole or in part, because of the person's status as a law enforcement officer or member of the armed forces or national guard; and
At the time the instant offense was committed, the defendant was illegally or unlawfully in the United States.

Acts 1989, ch. 591, § 6; 1992, ch. 837, § 1; 1994, ch. 821, § 1; 1994, ch. 978, § 5; 1995, ch. 302, § 1; 1995, ch. 322, § 2; 1995, ch. 515, § 2; 1997, ch. 437, § 3; 1997, ch. 547, § 3; 2000, ch. 896, § 1; 2002, ch. 849, § 2c; 2005, ch. 353, § 5; 2007, ch. 173, § 1; 2008, ch. 690, § 2; 2012, ch. 848, § 33; 2015, ch. 443, § 1; 2016, ch. 934, § 1; 2016, ch. 1025, § 1; 2017, ch. 265, §§ 1, 2; 2017, ch. 492, § 1; 2020, ch. 580, § 18.

Sentencing Commission Comments.

Under § 40-35-210(b)(5), the trial judge must consider enhancement factors in sentencing determinations. The enhancement factors are set forth herein to identify those situations which justify a departure from the minimum penalties for each offense. The various enhancement factors are similar to several provisions of prior law. In all instances the enhancement factors can be utilized by the trial judge if those factors are “not themselves essential elements of the offense as charged in the indictment.” This follows prior law which prohibits enhancement for a matter which is already an element of the offense. See State v. Lambert, 741 S.W.2d 127 (Tenn. Crim. App. 1987).

Compiler's Notes. The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Acts 2005, ch. 353, § 18 provided that the act shall apply to sentencing for criminal offenses committed on or after June 7, 2005. Offenses committed prior to June 7, 2005, shall be governed by prior law, which shall apply in all respects. However, for defendants who are sentenced after June 7, 2005, for offenses committed on or after July 1, 1982, the defendant may elect to be sentenced under the provisions of the act by executing a waiver of such defendant's ex post facto protections. Upon executing such a waiver, all provisions of the act shall apply to the defendant.

Acts 2005, ch. 353, § 19 provided that the act shall have no application to sentencing for persons convicted of murder in the first degree, which shall be governed by the provisions of §§ 39-13-202 — 39-13-208.

Acts 2005, ch. 353, § 20(b) provided that the Tennessee Code commission is requested to insert a cross reference in §§ 39-13-102, 39-13-502, 39-13-503, 39-13-505, 39-13-506, 39-13-522, 39-14-302 and 39-14-408 to § 40-35-114 stating that the enhancement factor formerly found in each such section was moved to § 40-35-114 so that all enhancement factors are located in one (1) section.

For the Preamble to the act concerning robberies involving drugs, see Acts 2016, ch. 1025.

Amendments. The 2020 amendment substituted “a state registered security guard/officer” for “a state registered security officer/guard” in (19).

Effective Dates. Acts 2020, ch. 580, § 19. July 1, 2020.

Cross-References. Arson, § 39-14-301.

Penalty for Class E felony, § 40-35-111.

Sentencing provisions applicable to persons committing crimes prior to July 1, 1982, title 40, ch. 20.

Victim impact statement to be considered evidence in determining whether factors in § 40-35-113 and this section apply, § 40-38-207.

Textbooks. Tennessee Law of Evidence (2nd ed., Cohen, Paine and Sheppeard), § 501.4.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, §§ 45, 49; 18 Tenn. Juris., Malicious Mischief, § 4; 21 Tenn. Juris., Rape, § 8.

Law Reviews.

Judicial Discretion Under the New Tennessee Criminal Sentencing Reform Act of 1982 (Thomas A. Wiseman, Jr.), 18 No. 4 Tenn. B.J. 13 (1982).

Sentencing Lockdown: What Is the Impact of Blakely on Sentencing in Tennessee? (David L. Raybin), 40 No. 8 Tenn. B.J. 12 (2004).

The Trexler Saga: Hale & Middlebrooks (Gary R. Wade), 23 Mem. St. U.L. Rev. 319 (1993).

Attorney General Opinions. If a defendant selects the person against whom the defendant commits a crime because the person is transgender, a court may enhance the defendant’s sentence under T.C.A. § 40-35-114(17). A defendant who targets a person for a crime because that person is transgender has targeted the person because of the person’s gender within the meaning of the statute. OAG 19-01, 2019 Tenn. AG LEXIS 1 (2/8/2019).

NOTES TO DECISIONS

1. In General.

There is no prohibition in the 1989 Sentencing Act against using the same facts and circumstances both to enhance sentences under applicable enhancement factors and to require those sentences to be served consecutively. In fact, consideration of prior criminal convictions and conduct for both enhancement and consecutive sentencing purposes is allowed under Tennessee common law. State v. Meeks, 867 S.W.2d 361, 1993 Tenn. Crim. App. LEXIS 503 (Tenn. Crim. App. 1993), cert. denied, Meeks v. Tennessee, 510 U.S. 1168, 114 S. Ct. 1200, 127 L. Ed. 2d 548, 1994 U.S. LEXIS 1998 (1994); State v. Franklin, 919 S.W.2d 362, 1995 Tenn. Crim. App. LEXIS 880 (Tenn. Crim. App. 1995).

Since the use of enhancement factors that are essential elements of the offense is prohibited, the trial court must identify the specific elements of the offense charged and the proof that established the offense before applying an enhancement factor. State v. Jones, 883 S.W.2d 597, 1994 Tenn. LEXIS 259 (Tenn. 1994).

Where the defendant was convicted of multiple offenses and where the trial judge did not make separate findings as to which enhancement factors applied to which convictions, even though each of the sentences was enhanced within the appropriate range, without the classification of applicable factors to certain crimes, an adequate review on appeal was not possible. State v. Chrisman, 885 S.W.2d 834, 1994 Tenn. Crim. App. LEXIS 359 (Tenn. Crim. App. 1994).

The mere number of existing enhancement factors is not relevant; rather, the important consideration is the weight to be given each factor in light of its relevance to defendant's personal circumstances and background and the circumstances surrounding his criminal conduct. The more negatives shown to exist in defendant's background and the greater degree of his proven culpability in the offense may translate into the application of multiple enhancement factors, but the extent of sentencing enhancement flows from the increased personal negatives and degree of culpability, not the number of applicable factors. State v. Hayes, 899 S.W.2d 175, 1995 Tenn. Crim. App. LEXIS 25 (Tenn. Crim. App. 1995).

Where defendant had been convicted on three counts of first degree felony murder and sentenced to concurrent life terms, and where the convictions were reversed, and, upon remand, defendant was reindicted and convicted on three second degree murder charges, the trial court was not guilty of judicial vindictiveness, and did not err, in applying enhancing factors and ordering consecutive sentences based on information not available to the court at the original sentencing hearing. State v. Gilliam, 901 S.W.2d 385, 1995 Tenn. Crim. App. LEXIS 216 (Tenn. Crim. App. 1995).

Although the trial court improperly applied certain aggravating factors, attaching great weight to those properly applied permitted the judgment and sentence of the trial court to be affirmed. State v. Bradfield, 973 S.W.2d 937, 1997 Tenn. Crim. App. LEXIS 576 (Tenn. Crim. App. 1997).

When the trial court departs from the minimum sentence, it is limited to the enhancement factors listed in T.C.A. § 40-35-114. State v. Anderson, 985 S.W.2d 9, 1997 Tenn. Crim. App. LEXIS 1296 (Tenn. Crim. App. 1997).

When a trial court misapplies an enhancement factor, the proper remedy is not an automatic reversal of the conviction and a remand for a new trial; nor is a reduction in sentence necessarily warranted. State v. Spratt, 31 S.W.3d 587, 2000 Tenn. Crim. App. LEXIS 465 (Tenn. Crim. App. 2000).

Ambiguity in T.C.A. § 40-35-114 concerning factors to consider in sentence enhancement was resolved by the court; the legislature is not presumed to have passed or enacted useless legislation, T.C.A. § 40-35-114(1) applies only to adult criminal conduct, and T.C.A. § 40-35-114(20) (see now (16)) applies exclusively to juvenile adjudications. State v. Jackson, 60 S.W.3d 738, 2001 Tenn. LEXIS 804 (Tenn. 2001).

The defendant contended that the trial court erred by applying the enhancement factor that he committed the offense to gratify his desire for pleasure or excitement. However, the trial court did not rely on that factor in determining how the defendant should serve his sentence. This issue was, therefore, without merit. State v. Souder, 105 S.W.3d 602, 2002 Tenn. Crim. App. LEXIS 986 (Tenn. Crim. App. 2002), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 269 (Tenn. Mar. 17, 2003).

2. Previous Criminal History.

Previous history of criminal conduct defendant who, while a juvenile, was found to have committed sexual battery, aggravated sexual battery, plus assault and property offenses could be taken into account in fashioning an appropriate sentence. State v. Adams, 864 S.W.2d 31, 1993 Tenn. LEXIS 286 (Tenn. 1993).

An arrest or charge is not considered evidence of the commission of a crime and a trial court should not use evidence merely showing an arrest, without more, to enhance a sentence. State v. Marshall, 870 S.W.2d 532, 1993 Tenn. Crim. App. LEXIS 190 (Tenn. Crim. App. 1993), rehearing denied, — S.W.2d —, 1993 Tenn. Crim. App. LEXIS 261 (Tenn. Crim. App. Apr. 29, 1993).

Following conviction of the defendant for disorderly conduct, even though no enhancing factors were filed by the Attorney General's office and none were discovered by the investigating officer, where the presentence report indicated that the defendant had a somewhat lengthy criminal history, including two convictions for disorderly conduct, sentencing him to 30 days in jail at 75 percent, the maximum sentence allowed, was not excessive. State v. Creasy, 885 S.W.2d 829, 1994 Tenn. Crim. App. LEXIS 282 (Tenn. Crim. App. 1994).

Defendant's violation of probation by commission of the offense for which he was being sentenced did not establish a previous criminal history applicable as an enhancement factor. State v. Hayes, 899 S.W.2d 175, 1995 Tenn. Crim. App. LEXIS 25 (Tenn. Crim. App. 1995).

Where defendant had not been convicted of pending charges against him, it was improper for the trial judge to consider them in sentencing the defendant. State v. Buckmeir, 902 S.W.2d 418, 1995 Tenn. Crim. App. LEXIS 6 (Tenn. Crim. App. 1995).

Defendant's juvenile history qualified as a prior criminal history. State v. Carter, 908 S.W.2d 410, 1995 Tenn. Crim. App. LEXIS 362 (Tenn. Crim. App. 1995).

Defendant's prior conviction of aggravated assault involving a stab wound was properly applied as an enhancement factor in sentencing for attempted first degree murder and especially aggravated robbery. State v. Nix, 922 S.W.2d 894, 1995 Tenn. Crim. App. LEXIS 925 (Tenn. Crim. App. 1995), appeal denied, — S.W.2d —, 1996 Tenn. LEXIS 337 (Tenn. May 6, 1996).

In a prosecution for rape, where the victim testified that she had been sexually abused by defendant as often as twice a week, the record supported application of the “previous criminal history” factor. State v. Hunter, 926 S.W.2d 744, 1995 Tenn. Crim. App. LEXIS 871 (Tenn. Crim. App. 1995).

Proof that defendant had a cocaine problem at the time of the offenses justified application of this enhancement factor. State v. Alexander, 957 S.W.2d 1, 1997 Tenn. Crim. App. LEXIS 240 (Tenn. Crim. App. 1997).

A defendant's prior sexual acts involving a ten-year-old child constituted criminal behavior and consideration of these acts as an enhancement factor did not violate the defendant's right to due process. State v. Carico, 968 S.W.2d 280, 1998 Tenn. LEXIS 250 (Tenn. 1998).

A sentencing court may apply an enhancement factor based on facts underlying an offense for which the defendant has been acquitted, so long as the facts have been established in the record by a preponderance of the evidence. State v. Winfield, 23 S.W.3d 279, 2000 Tenn. LEXIS 346 (Tenn. June 20, 2000).

Criminal acts for which defendant received diversion could be considered as prior criminal behavior regarding defendant's previous criminal connections or criminal behavior. State v. Kelley, 34 S.W.3d 471, 2000 Tenn. Crim. App. LEXIS 166 (Tenn. Crim. App. 2000), review or rehearing denied, — S.W.3d —, 2000 Tenn. LEXIS 667 (Tenn. Nov. 20, 2000).

Trial court was entitled to rely on defendant's prior conviction in addition to those necessary to establish the appropriate sentencing range pursuant to T.C.A. § 40-35-114 because defendant was sentenced as a multiple offender as part of defendant's plea agreement; the trial court did not abuse its discretion in the weight it placed on the prior conviction because it arose from conduct similar to that for which defendant stood convicted. State v. Souder, 105 S.W.3d 602, 2002 Tenn. Crim. App. LEXIS 986 (Tenn. Crim. App. 2002), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 269 (Tenn. Mar. 17, 2003).

Trial court erred in applying the enhancement factor of previous history of criminal conviction to defendant in connection with defendant's conviction for vehicular assault in violation of T.C.A. § 39-13-106(a); in order to show intoxication, the State relied on defendant's prior driving under the influence conviction to reduce the presumptive level of intoxication to .08 percent pursuant to former T.C.A. § 55-10-408(b) (see now § 55-10-411(a)), and thus the prior conviction became a necessary element of the offense, which made the application of the enhancement factor improper. State v. Keathly, 145 S.W.3d 123, 2003 Tenn. Crim. App. LEXIS 438 (Tenn. Crim. App. 2003).

Sentence enhancement under T.C.A. § 40-35-114 was properly applied to defendant's sentence, because the evidence admitted at trial supported the trial court's determination that defendant had previously killed two other infants who were in her care, including the facts that: (1) Defendant's 16-month-old son could not have died of SIDS given his age; (2) The two infants' autopsies were negative, meaning that no natural or accidental cause of death was found; and (3) The preponderance of the evidence showed that both infants were in defendant's sole care at the time of their deaths. State v. Ward, 138 S.W.3d 245, 2003 Tenn. Crim. App. LEXIS 1103 (Tenn. Crim. App. 2003), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 514 (Tenn. June 1, 2004).

Defendant's DUI convictions, although misdemeanors, were properly considered by a trial court as part of defendant's past criminal conduct as a factor to enhance his sentence under T.C.A. § 40-35-114 for defendant's violation of an order under the Motor Vehicle Habitual Offenders Act, T.C.A. 55-10-601 et seq.State v. Martin, 146 S.W.3d 64, 2004 Tenn. Crim. App. LEXIS 62 (Tenn. Crim. App. 2004).

In defendant's aggravated robbery case, his sentence was properly enhanced because the trial court placed great significance on defendant's history of criminal convictions when stating that “it is not just two or three driving offenses or two or three shopliftings; he has a string of criminal convictions over the years; he spent a significant amount of time in the penitentiary”; the trial court also found the absence of any mitigating factors. State v. Welcome, 280 S.W.3d 215, 2007 Tenn. Crim. App. LEXIS 761 (Tenn. Crim. App. Sept. 26, 2007), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 134 (Tenn. Feb. 25, 2008).

Trial court did not err by imposing a 21-year sentence upon defendant's conviction for aggravated vehicular homicide and three-year sentences for theft and vehicular assault; trial court properly applied the “previous criminal convictions” enhancement factor under T.C.A. § 40-35-114 because defendant's presentence report and certified copies of convictions showed that he had over 20 convictions for offenses such as DUI, driving on a revoked license, domestic violence, misdemeanor possession of marijuana, disorderly conduct, evading arrest, and passing worthless checks. State v. Bowman, 327 S.W.3d 69, 2009 Tenn. Crim. App. LEXIS 35 (Tenn. Crim. App. Jan. 14, 2009), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 395 (Tenn. June 15, 2009), cert. denied, Bowman v. Tennessee, 175 L. Ed. 2d 388, 130 S. Ct. 559, 2009 U.S. LEXIS 8080 (U.S. 2009).

Where defendant had three prior misdemeanor convictions, two for theft and one for assault, a two-year enhancement above the midpoint of the range for an aggravated child abuse conviction was warranted. State v. Dorantes, 331 S.W.3d 370, 2011 Tenn. LEXIS 8 (Tenn. Jan. 25, 2011).

After defendant was convicted of two counts of aggravated sexual battery involving a minor victim, the record supported the trial court applying the enhancement factor of a previous criminal history because defendant admitted several prior misdemeanor convictions and serving time in confinement. State v. Frausto, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 1130 (Tenn. Crim. App. Dec. 23, 2013), aff'd in part, rev'd in part, 463 S.W.3d 469, 2015 Tenn. LEXIS 272 (Tenn. Apr. 1, 2015).

Trial court did not abuse its discretion by imposing the maximum sentence of 25 years for defendant's conviction of aggravated child neglect by enhancing defendant's sentence for her prior misdemeanor convictions or by not affording much weight to her letters of support and certificates of achievement. State v. Alston, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 178 (Tenn. Crim. App. Mar. 9, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 425 (Tenn. July 19, 2017).

Although the trial court misapplied three enhancement factors, defendant's prior criminal felony convictions beyond those necessary to establish his applicable range as a persistent offender were extensive; therefore, defendant's sentence based on that enhancement factor alone was justified. State v. Clouse, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 645 (Tenn. Crim. App. July 20, 2017).

Issue was whether the trial court erred by considering defendant's conduct of kidnapping under the previous history of criminal convictions or criminal behavior enhancement factor under T.C.A. § 40-35-114(1); a trial court could look behind the plea bargain and consider the true nature of the offenses committed, and the trial court did not err by considering or referring to defendant's criminal conduct as a kidnapping throughout the sentencing hearing. State v. Moore, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 982 (Tenn. Crim. App. Nov. 28, 2017).

In a case in which defendant was convicted of sexual exploitation of a minor involving more than 100 images, and was sentenced to 12 years at 100% in the Department of Correction, the trial court did not abuse its discretion by imposing the maximum sentence within defendant's range because there was proof that defendant engaged in criminal behavior, in the form of illegal drug use, in addition to his possession of child pornography; and, even if the trial court erred by its application of the exceptional cruelty enhancement factor, the trial court properly considered the enhancement and mitigating factors and the principles and purposes of sentencing before imposing a sentence within the applicable range for defendant's offense. State v. Shearin, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 20 (Tenn. Crim. App. Jan. 10, 2018).

In enhancing defendant's sentence the trial court relied on the fact that defendant had a history of criminal behavior, in addition to those necessary to establish the appropriate range, noting that he had been smoking two joints of marijuana every day for years. State v. Dotson, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 366 (Tenn. Crim. App. May 10, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 547 (Tenn. Sept. 14, 2018).

Defendant, having received no properly filed notice of the State's intent to seek enhanced punishment, was entitled to relief, and his offender classification was modified from career offender to Range I, standard offender; enhancement factors applied, considering his lengthy criminal record, plus he did not file any mitigating factors, and thus his six-year sentence for aggravated assault was proper. State v. Williams, 558 S.W.3d 633, 2018 Tenn. LEXIS 637 (Tenn. Oct. 12, 2018).

Trial court did not abuse its discretion when it sentenced defendant by applying three enhancement factors based on his prior convictions, his violating a 2002 probationary sentence, and his being on probation for three other convictions at the time he committed the instant crime of evading arrest because the evidence supported the application of those factors. State v. Johnson, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 243 (Tenn. Crim. App. Apr. 16, 2019).

Trial court did not abuse its discretion by imposing the maximum sentence for each conviction of aggravated assault and aggravated kidnapping because it articulated on the record its reasons for imposing the sentences, it found that defendant's prior convictions were significant and established a history to enhance his sentence because they were very violent attacks on the victim. The trial court found that defendant had previously failed to comply with the conditions of his probation for his prior California convictions. State v. Olivera, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 447 (Tenn. Crim. App. July 26, 2019).

Record supported consideration of the four enhancement factors that defendant challenged because the pre-sentence report reflected that defendant had four prior criminal convictions, and witnesses testified that defendant used and sold drugs. State v. Morse, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 460 (Tenn. Crim. App. July 31, 2019).

Trial court did not abuse its discretion by sentencing defendant to the maximum in the range and his sentence was not grossly disproportionate because he had an extensive criminal record, he admitted that he had a long-term drug problem and that he had sold drugs, and thee trial court found that defendant was not truthful with the court and that his potential for rehabilitation was poor. State v. Jones, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 313 (Tenn. Crim. App. Apr. 30, 2020).

3. Leader in Commission of Offense.

Enhancement for being a leader in the commission of an offense does not require the defendant to be the sole leader but only that he be “a” leader. State v. Hicks, 868 S.W.2d 729, 1993 Tenn. Crim. App. LEXIS 483 (Tenn. Crim. App. 1993).

Ten-year sentence for aggravated robbery committed one hour after previous aggravated robbery was supported by increased significance of defendant's leadership role in second offense and the decreased significance of the mitigating factor of lack of prior criminal activity. State v. Hicks, 868 S.W.2d 729, 1993 Tenn. Crim. App. LEXIS 483 (Tenn. Crim. App. 1993).

Upon the conviction of two defendants for assault, the fact that both of them engaged in sex with the victim did not suggest that one co-defendant was the leader in the commission of the offense so as to make that enhancement factor applicable. State v. Buckmeir, 902 S.W.2d 418, 1995 Tenn. Crim. App. LEXIS 6 (Tenn. Crim. App. 1995).

The trial court correctly found that the record supported two enhancing factors, where the defendant was a leader in the commission of the offense, and where the offense was committed under circumstances where the potential for bodily injury to the victim was great. State v. Parker, 932 S.W.2d 945, 1996 Tenn. Crim. App. LEXIS 167 (Tenn. Crim. App. 1996), overruled in part, State v. King, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 192 (Tenn. Crim. App. Mar. 4, 2013), overruled in part, State v. King, 432 S.W.3d 316, 2014 Tenn. LEXIS 351 (Tenn. Apr. 23, 2014).

The trial court erred in applying this enhancement factor where the evidence did not suggest that defendant was a leader in the offense. State v. Freeman, 943 S.W.2d 25, 1996 Tenn. Crim. App. LEXIS 606 (Tenn. Crim. App. 1996); State v. Alexander, 957 S.W.2d 1, 1997 Tenn. Crim. App. LEXIS 240 (Tenn. Crim. App. 1997).

Fourteen-year-old defendant was permissibly classified as a dangerous offender where, despite his youth, defendant was a leader in: the abduction of an entire family; the murders of a husband, wife and their six-year-old daughter; and permanent life-threatening injuries to their three-year-old son. State v. Howell, 34 S.W.3d 484, 2000 Tenn. Crim. App. LEXIS 167 (Tenn. Crim. App. 2000), appeal denied, — S.W.3d —, 2000 Tenn. LEXIS 539 (Tenn. Sept. 25, 2000), cert. denied, Sturgill v. Tennessee, 149 L. Ed. 2d 478, 121 S. Ct. 1614, 532 U.S. 977, 2001 U.S. LEXIS 2998 (2001).

In sentencing for aggravated robbery under T.C.A. § 39-13-402(a)(1), the record supported the trial court's application of the enhancement factor under T.C.A. § 40-35-114(2) related to being a leader in the commission of the offense; the victim testified that defendant held the gun and demanded the victim's property, and the enhancement did not require that defendant be the sole leader. State v. Fuller, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 939 (Tenn. Crim. App. Nov. 1, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 118 (Tenn. Feb. 14, 2018).

Trial court properly applied the enhancement factor for being a leader in light of defendant's reference to other people involved in his statement to police and one of the victim's testimony that it appeared that defendant had been casing out his store the day before the burglary and making notes and taking picture of different items. State v. Kim, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 264 (Tenn. Crim. App. Apr. 6, 2018).

Trial court did not err when it applied enhancement factor (2) (that defendant was a leader in the commission of an offense involving two or more criminal actors), where the evidence presented during the sentencing hearing supported the trial court's application of enhancement factor (2). Even if the trial court misapplied this enhancement factor, the misapplication of a single enhancement factor did not void defendant's sentence. State v. Boswell, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 299 (Tenn. Crim. App. Apr. 19, 2018).

Defendant's argument that her sentence was excessive since the weight given to the enhancement factor that allowed for an enhanced sentence upon a finding that the defendant was a leader in the commission of a crime involving two or more criminal actors was erroneous was not an applicable ground for appeal because the weighing of mitigating and enhancing factors was left to the sound discretion of the trial court. State v. Woodard, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 697 (Tenn. Crim. App. Sept. 13, 2018).

Record supported the trial court's application of the enhancement factor that allowed for an enhanced sentence upon a finding that the defendant was a leader in the commission of a crime involving two or more criminal actors because accomplices testified that defendant planned the robbery, acted as the getaway driver, and provided the handgun used during the commission of the robbery; the handgun used in the robbery was found in a backpack with defendant's belongings. State v. Woodard, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 697 (Tenn. Crim. App. Sept. 13, 2018).

4. More Than One Victim.

“Victim,” as used in enhancement factor is limited in scope to a person or entity that is injured, killed, had property stolen, or had property destroyed by the perpetrator of the crime. The term does not include a person who has lost a loved one or a means of support because the perpetrator of the crime killed a relative. State v. Raines, 882 S.W.2d 376, 1994 Tenn. Crim. App. LEXIS 132 (Tenn. Crim. App. 1994), appeal denied, 1994 Tenn. LEXIS 223 (Tenn. July 5, 1994).

Where defendant was convicted of 46 separate offenses, and many of the offenses involved more than one victim, the enhancement factor pertaining to multiple-victim crimes did not apply since he was convicted separately for each victim. State v. McKnight, 900 S.W.2d 36, 1994 Tenn. Crim. App. LEXIS 759 (Tenn. Crim. App. 1994), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 58 (Tenn. 1995), overruled, State v. Collier, 411 S.W.3d 886, 2013 Tenn. LEXIS 636 (Tenn. Aug. 12, 2013).

In sentencing for vehicular homicide and vehicular assault, application of the enhancement factor pertaining to an offense involving more than victim was erroneous where defendant was separately convicted of the offenses against each victim. State v. Williamson, 919 S.W.2d 69, 1995 Tenn. Crim. App. LEXIS 989 (Tenn. Crim. App. 1995).

This enhancement factor did not apply in sentencing for separate convictions of attempted second degree murder. State v. Freeman, 943 S.W.2d 25, 1996 Tenn. Crim. App. LEXIS 606 (Tenn. Crim. App. 1996).

This enhancement factor was not applicable where the victim's daughter witnessed the attack on her mother. State v. Alexander, 957 S.W.2d 1, 1997 Tenn. Crim. App. LEXIS 240 (Tenn. Crim. App. 1997).

Children, who had no physical contact with the defendant during the commission of the crime, and from whom no property was taken, were not “victims” for purpose of the enhancement factor that the offense involved more than one victim. State v. Cowan, 46 S.W.3d 227, 2000 Tenn. Crim. App. LEXIS 846 (Tenn. Crim. App. 2000).

Use of the “multiple victim” enhancement factor is well suited to the aggravated arson section, which does not permit multiple convictions in spite of the fact that multiple persons were victimized by the fire. State v. Lewis, 44 S.W.3d 501, 2001 Tenn. LEXIS 417 (Tenn. 2001).

Trial court erred in applying an enhancement factor to defendant in connection with defendant's conviction for vehicular assault in violation of T.C.A. § 39-13-106(a); because defendant was convicted of an offense involving a specifically named victim in the indictment, the trial court improperly applied this enhancement factor. State v. Keathly, 145 S.W.3d 123, 2003 Tenn. Crim. App. LEXIS 438 (Tenn. Crim. App. 2003).

Application of the enhancement for offenses involving more than one victim was erroneous, because the indictment named five businesses as the victims of the charged offenses, but the error was of no consequence since the trial court did not give that factor much weight. State v. Kim, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 264 (Tenn. Crim. App. Apr. 6, 2018).

In connection with defendant's second-degree murder conviction, nothing in the record supported a finding that the victim's son was injured, killed, had property stolen, or had property destroyed, and thus the trial court erred in applying the enhancement factor under T.C.A. § 40-35-114(3), that the offense involved multiple victims. State v. Flippen, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 594 (Tenn. Crim. App. Aug. 9, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 682 (Tenn. Nov. 14, 2018).

Trial court erred by applying enhancement factor three to defendant's convictions for attempted voluntary manslaughter, aggravated assault acting in concert, attempted especially aggravated robbery, employment of a weapon during commission of a dangerous felony, attempted voluntary manslaughter, and conspiracy to commit especially aggravated robbery because each offense had one, individually named victim, either the husband or the wife. State v. Calles, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 796 (Tenn. Crim. App. Oct. 25, 2018).

Trial court did not err by applying enhancement factor three to defendant's convictions for especially aggravated burglary, employment of a weapon during the commission of a dangerous felony, especially aggravated burglary, and conspiracy to commit especially aggravated burglary because the jury found that defendant caused serious bodily injuries to the husband and the wife, making them both victims for the offenses. State v. Calles, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 796 (Tenn. Crim. App. Oct. 25, 2018).

5. Vulnerability.

The “vulnerability because of age or physical or mental disability” factor can be used in an aggravated rape case where the victim's youth is the factor upgrading the rape to aggravated rape, even though youth of victim is an element of that offense. State v. Adams, 864 S.W.2d 31, 1993 Tenn. LEXIS 286 (Tenn. 1993).

The state bears the burden of proving the victim's limitations rendering him or her particularly vulnerable. State v. Adams, 864 S.W.2d 31, 1993 Tenn. LEXIS 286 (Tenn. 1993).

Trial court erred in finding victim was particularly vulnerable because of her frail physical stature based upon his having seen her in the past; the court could not predicate his finding upon what he may or may not have seen at some undetermined point in the past because he could not take judicial notice of this fact. State v. Raines, 882 S.W.2d 376, 1994 Tenn. Crim. App. LEXIS 132 (Tenn. Crim. App. 1994), appeal denied, 1994 Tenn. LEXIS 223 (Tenn. July 5, 1994).

Even though age was an essential element of certain crimes for which defendant was convicted, finding that victims were particularly vulnerable because of their ages was supported by evidence and the “vulnerability” factor was applicable. State v. McKnight, 900 S.W.2d 36, 1994 Tenn. Crim. App. LEXIS 759 (Tenn. Crim. App. 1994), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 58 (Tenn. 1995), overruled, State v. Collier, 411 S.W.3d 886, 2013 Tenn. LEXIS 636 (Tenn. Aug. 12, 2013).

Trial court erred in using the fact that the victim was an elderly woman where defendant had not taken advantage of her age and physical disability when he fired a pistol at her from a distance. State v. Butler, 900 S.W.2d 305, 1994 Tenn. Crim. App. LEXIS 585 (Tenn. Crim. App. 1994).

Mere proof that a victim is 12 years old is insufficient to support application of the “vulnerability” factor. State v. Hayes, 899 S.W.2d 175, 1995 Tenn. Crim. App. LEXIS 25 (Tenn. Crim. App. 1995).

Where defendant knew that the victim had been drinking and had “passed out” when he decided to have sex with her, the enhancement factor that the victim was particularly vulnerable was properly applied. State v. Buckmeir, 902 S.W.2d 418, 1995 Tenn. Crim. App. LEXIS 6 (Tenn. Crim. App. 1995).

In a conviction for aggravated sexual battery, age does not constitute an appropriate enhancement factor unless a victim is found to be particularly vulnerable due to age. State v. Clabo, 905 S.W.2d 197, 1995 Tenn. Crim. App. LEXIS 37 (Tenn. Crim. App. 1995), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 312 (Tenn. June 5, 1995).

In sentencing for aggravated rape, the trial court erred in finding the victim was particularly vulnerable based on her age, the circumstances of the offenses, and her physical condition. State v. Melvin, 913 S.W.2d 195, 1995 Tenn. Crim. App. LEXIS 502 (Tenn. Crim. App. 1995).

The “vulnerability” factor may be used to enhance sentences in aggravated rape and aggravated sexual battery cases involving children under 13 when a victim's natural physical and mental limitations render the victim particularly vulnerable for his or her age because of an inability to resist, a difficulty in calling for help, or difficulty in testifying against the perpetrator. State v. Kissinger, 922 S.W.2d 482, 1996 Tenn. LEXIS 266 (Tenn. 1996).

The “vulnerability” factor is completely separate from the “private position of trust abuse” factor; it takes separate facts to support each factor, and the evidence may support either one independent of the other. State v. Jernigan, 929 S.W.2d 391, 1996 Tenn. Crim. App. LEXIS 116 (Tenn. Crim. App. 1996).

The “vulnerability” factor properly applied where the victims were quite young and had been “abused, neglected, emotionally, physically” when the sexual abuse occurred, and defendant testified that he “knew that they were needy and vulnerable.” State v. Jernigan, 929 S.W.2d 391, 1996 Tenn. Crim. App. LEXIS 116 (Tenn. Crim. App. 1996).

A victim is particularly vulnerable within the meaning of this enhancement factor when the victim lacks the ability to resist the commission of the crime due to age, a physical condition, or a mental condition. State v. Boggs, 932 S.W.2d 467, 1996 Tenn. Crim. App. LEXIS 198 (Tenn. Crim. App. 1996), appeal denied, — S.W.2d —, 1996 Tenn. LEXIS 648 (Tenn. Oct. 14, 1996).

In sentencing for especially aggravated robbery of 70-year-old woman living alone, in the absence of evidence of physical or mental limitations at the time of the offense, along with proof of the victim's age, it could not be presumed that she was particularly vulnerable based solely on her age. State v. Poole, 945 S.W.2d 93, 1997 Tenn. LEXIS 260 (Tenn. 1997).

The “vulnerability” factor was properly applied in sentencing for aggravated assault where the victim was severely mentally retarded. State v. Leggs, 955 S.W.2d 845, 1997 Tenn. Crim. App. LEXIS 192 (Tenn. Crim. App. 1997), overruled, State v. Hooper, 29 S.W.3d 1, 2000 Tenn. LEXIS 535 (Tenn. 2000).

Age, as an essential element of sexual offenses perpetrated against children, does not preclude application of the “particularly vulnerable” enhancement factor, because the factor applies only because a victim is “particularly vulnerable,” not because the victim is a certain age; the relevant inquiry is not simply whether the victim is under the age of 13, but instead whether the victim was particularly vulnerable because of age or physical or mental disability. Likewise, the victim's age does not alone justify application of this enhancing factor, but rather the court should consider whether: (1) The victim, because of age or mental or physical attributes, was particularly unable to resist the crime, summon help, or testify at a later date; (2) Victim's age (extremely old or extremely young) is entitled to additional weight; and (3) The vulnerability of the victim made the victim more of a target for the offense or, conversely, whether the offense was committed in such a manner as to render the vulnerability of the victim irrelevant. State v. Walton, 958 S.W.2d 724, 1997 Tenn. LEXIS 628 (Tenn. 1997).

Child victim who was four years old at time of rape and attempted murder was particularly vulnerable due to age and in that she was at the mercy of three adults, she was powerless to call for assistance, and her own mother was a party to the conspiracy to inflict harm upon her. State v. Griffis, 964 S.W.2d 577, 1997 Tenn. Crim. App. LEXIS 427 (Tenn. Crim. App. 1997).

Where victim suffers from severe intoxication from alcohol and drugs, the trier of fact may determine state has proven victim was particularly vulnerable for purposes of application of sentencing factors. State v. Gray, 960 S.W.2d 598, 1997 Tenn. Crim. App. LEXIS 544 (Tenn. Crim. App. 1997).

While proof of age, standing alone, may be insufficient to establish particular vulnerability, evidence that the newborn victim was unable to resist, unable to summon help and unable to testify against the perpetrator indicated particular vulnerability sufficient to support application of the enhancement factor. State v. Collins, 986 S.W.2d 13, 1998 Tenn. Crim. App. LEXIS 254 (Tenn. Crim. App. 1998), review or rehearing denied, — S.W.2d —, 1998 Tenn. LEXIS 660 (Tenn. Nov. 2, 1998).

The vulnerability factor was improperly considered where the trial court considered the factor merely because the victim had previously had a kidney and pancreas transplant, and where there was no evidence that victim's status as a transplant recipient affected victim's ability to resist or victim's ability to summon help or to testify against defendant. State v. Spratt, 31 S.W.3d 587, 2000 Tenn. Crim. App. LEXIS 465 (Tenn. Crim. App. 2000).

A victim's youth does not necessarily equate with vulnerability; the state is required to proffer evidence in addition to the victim's age to establish particular vulnerability. State v. Lewis, 44 S.W.3d 501, 2001 Tenn. LEXIS 417 (Tenn. 2001).

A victim's age or physical condition might make the victim “vulnerable” in a general sense; that particular vulnerability, however, may play no part in the crime, and a vulnerability that is wholly irrelevant to the crime is not “appropriate for the offense”. State v. Lewis, 44 S.W.3d 501, 2001 Tenn. LEXIS 417 (Tenn. 2001).

Nothing inState v. Poole, 945 S.W.2d 93, 1997 Tenn. LEXIS 260 (Tenn. 1997) should be read to place an additional burden on the state to prove that a defendant actually evaluated the vulnerabilities of the defendant's victims and then acted to capitalize on those perceived vulnerabilities; to the extent prior cases may have interpreted T.C.A. § 40-35-114(4) otherwise, they are overruled. State v. Lewis, 44 S.W.3d 501, 2001 Tenn. LEXIS 417 (Tenn. 2001).

The “vulnerability” factor was properly applied against defendant who committed arson at approximately 3:00 a.m., in a building where most of the residents were sleeping and some of the children had to be physically removed from the burning apartments by their parents. State v. Lewis, 44 S.W.3d 501, 2001 Tenn. LEXIS 417 (Tenn. 2001).

Defendant's aggravated rape of an 89-year-old victim allowed application of the sentencing enhancement factor regarding a particularly vulnerable victim. State v. Dean, 76 S.W.3d 352, 2001 Tenn. Crim. App. LEXIS 791 (Tenn. Crim. App. 2001), appeal denied, — S.W.3d —, 2002 Tenn. LEXIS 776 (Tenn. Mar. 11, 2002).

Sentence enhancement under T.C.A. § 40-35-114 was properly applied to defendant's sentence, because defendant's daughter was six-months-old when she was killed, an expert testified that a child of that age could be asphyxiated easily because an adult has greater strength, and that a child who was deprived of oxygen would struggle but would lose consciousness after approximately 60 seconds. State v. Ward, 138 S.W.3d 245, 2003 Tenn. Crim. App. LEXIS 1103 (Tenn. Crim. App. 2003), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 514 (Tenn. June 1, 2004).

Trial court did not abuse its discretion by imposing the maximum sentence of 25 years for defendant's conviction of aggravated child neglect because the record contained sufficient evidence in addition to the age of the victim to support the enhancement factor because the victim, a three-year-old child, was particularly vulnerable, as he was unable to call for help or resist defendant, who placed and held him in scalding hot water. This conclusion was supported by the victim's second-degree immersion burns and bruising found on his arms and shoulders. State v. Alston, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 178 (Tenn. Crim. App. Mar. 9, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 425 (Tenn. July 19, 2017).

Vulnerable victim enhancement was properly applied, as the evidence showed that the victim present inside the home was both elderly and suffering from dementia. State v. Watkins, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 829 (Tenn. Crim. App. Sept. 8, 2017).

Trial court erred by applying the enhancement factor set forth in subsection (4), to defendant's sentences because the trial court failed to identify anything beyond the victims' ages that would warrant applying that enhancement factor. State v. Burnett, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 158 (Tenn. Crim. App. Feb. 28, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 439 (Tenn. July 18, 2018).

In connection with defendant's rape of a child convictions, the record did not support the application of the vulnerability enhancement factor; the trial court applied this factor because the victim was at best 11 years of age and in middle school when the abuse began and because she viewed defendant as her father, such that the trial court's only additional consideration beyond the victim's age was the nature of the relationship between the two. State v. Kimble, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 826 (Tenn. Crim. App. Nov. 7, 2018).

Trial court did not abuse its discretion in applying the enhancement factor based on the victim's vulnerability because the victim's arm was injured about 15 or 20 years before the incident; she received surgery to reattach her arm; she had limited use of her arm; she could not extend or bend her arm fully and could not reach behind her head; and the injury to her arm had some logical connection to her inability to resist the crime. State v. Simpson, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 173 (Tenn. Crim. App. Mar. 18, 2019).

Trial court misapplied the vulnerable victim enhancement factor, when defendant pleaded guilty to reckless homicide following the accidental drowning of the minor victim, because the evidence did not show that the victim's age or mental capabilities prevented the victim from calling for help or would have prevented the victim from testifying about defendant's conduct if the victim had not drowned accidentally. State v. Baysinger, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 801 (Tenn. Crim. App. Dec. 23, 2019).

6. Exceptional Cruelty.

In sentencing defendant for aggravated rape, armed robbery, and aggravated kidnapping, where facts relied on to support a finding of “exceptional cruelty” were the very facts which made the crimes aggravated under the law, such enhancement factor could not be considered. Manning v. State, 883 S.W.2d 635, 1994 Tenn. Crim. App. LEXIS 69 (Tenn. Crim. App. 1994).

In sentencing for rape, the enhancement factor based on exceptional cruelty required a finding of cruelty over and above that inherently attendant to the crime. State v. Embry, 915 S.W.2d 451, 1995 Tenn. Crim. App. LEXIS 664 (Tenn. Crim. App. 1995), overruled in part, State v. Winfield, 23 S.W.3d 279, 2000 Tenn. LEXIS 346 (Tenn. June 20, 2000).

In sentencing for aggravated rape, where the case involved no extended length of torture, no weapons, nor any unusual type of abuse, the trial court erroneously applied the “exceptional cruelty” enhancement factor. State v. Williams, 920 S.W.2d 247, 1995 Tenn. Crim. App. LEXIS 817 (Tenn. Crim. App. 1995).

Exceptional cruelty is not an element of offenses of aggravated rape or aggravated burglary, and use of exceptional cruelty enhancing factor in sentencing is appropriate where trial court finds offenses to be horrifying and shocking. State v. Alvarado, 961 S.W.2d 136, 1996 Tenn. Crim. App. LEXIS 736 (Tenn. Crim. App. 1996).

A rape victim was treated with exceptional cruelty for purposes of enhancing the defendant's sentence where the victim was beaten, choked, and suffocated by the defendant throughout the attack. State v. Johnson, 970 S.W.2d 500, 1996 Tenn. Crim. App. LEXIS 587 (Tenn. Crim. App. 1996).

Evidence that the victim, a 70-year-old woman living alone, was knocked unconscious by a blow to the head with a baseball bat was sufficient to show exceptional cruelty separate and apart from defendant's actions which constituted the offense of especially aggravated cruelty. State v. Poole, 945 S.W.2d 93, 1997 Tenn. LEXIS 260 (Tenn. 1997).

Exceptional cruelty is not an element of attempted second degree murder and may be considered as an enhancement factor in the commission of the offense. State v. Hall, 947 S.W.2d 181, 1997 Tenn. Crim. App. LEXIS 63 (Tenn. Crim. App. 1997).

Evidence was sufficient for application of the “exceptional cruelty” factor in sentencing defendant for aggravated assault. State v. Leggs, 955 S.W.2d 845, 1997 Tenn. Crim. App. LEXIS 192 (Tenn. Crim. App. 1997), overruled, State v. Hooper, 29 S.W.3d 1, 2000 Tenn. LEXIS 535 (Tenn. 2000).

In sentencing for attempted first degree murder, evidence that defendant stabbed the victim several times in the face and body and beat her with a hammer was sufficient to justify application of this enhancement factor. State v. Alexander, 957 S.W.2d 1, 1997 Tenn. Crim. App. LEXIS 240 (Tenn. Crim. App. 1997).

Where traumatic and severe injuries are sustained by victim, application of exceptional cruelty sentencing factor is appropriate. State v. Gray, 960 S.W.2d 598, 1997 Tenn. Crim. App. LEXIS 544 (Tenn. Crim. App. 1997).

Holding child-victim of attempted murder against a heater, pouring alcohol and peroxide on the open wounds to see her “dance,” pouring scalding water on her while she was in the bathtub, and hanging her from a coat hook qualify as acts of exceptional cruelty. State v. Griffis, 964 S.W.2d 577, 1997 Tenn. Crim. App. LEXIS 427 (Tenn. Crim. App. 1997).

The fact that a defendant takes property and jewelry that has personal value to the victim of a robbery may not be considered as exceptional cruelty since the taking of the property is an essential element of the offense. State v. Lavender, 967 S.W.2d 803, 1998 Tenn. LEXIS 251 (Tenn. 1998).

Application of the exceptional cruelty factor was permissible and did not duplicate an essential element of the crime of aggravated child abuse against a victim six years of age or less. State v. Hodges, 7 S.W.3d 609, 1998 Tenn. Crim. App. LEXIS 1286 (Tenn. Crim. App. 1998).

Application of enhancement factor regarding exceptional cruelty during the commission of the offense, was not appropriate where, despite the fact that there was no doubt that the victim was traumatized by the aggravated rape, the state failed to introduce any expert testimony that victim's emotional injuries were particularly great compared to those suffered by every victim of an aggravated rape. State v. Spratt, 31 S.W.3d 587, 2000 Tenn. Crim. App. LEXIS 465 (Tenn. Crim. App. 2000).

Defendant treated the victim with exceptional mental cruelty during the commission of the especially aggravated kidnapping; thus, the enhancement factor for exceptional cruelty applied. State v. Arnett, 49 S.W.3d 250, 2001 Tenn. LEXIS 538 (Tenn. 2001).

Trial court did not abuse its discretion in applying the enhancement factor based on the victim being treated with exceptional cruelty because the victim received multiple sharp force injuries to her head, arms, and hands and a five inch laceration to her throat; she received numerous chop wounds, including one to her left palm that went through the victim's left third finger, almost amputated the victim's middle finger, and injured her left first finger; and the length of the victim's blood trail was 383 feet. State v. Simpson, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 173 (Tenn. Crim. App. Mar. 18, 2019).

7. Particularly Great Personal Injury.

Unwanted pregnancy of the victim came within the definition of personal injury for purposes of enhancement of a sentence upon conviction of aggravated rape. State v. Jones, 889 S.W.2d 225, 1994 Tenn. Crim. App. LEXIS 309 (Tenn. Crim. App. 1994), rehearing denied, — S.W.2d —, 1994 Tenn. Crim. App. LEXIS 371 (Tenn. Crim. App. June 14, 1994), appeal denied, — S.W.2d —, 1994 Tenn. LEXIS 297 (Tenn. Oct. 10, 1994), superseded by statute as stated in, State v. Woodcock, 922 S.W.2d 904, 1995 Tenn. Crim. App. LEXIS 982 (Tenn. Crim. App. 1995).

The sentence enhancement factor that personal injury inflicted upon the victim was “particularly great” is an element of the offense of aggravated assault causing serious bodily injury and could not be used to enhance defendant's sentence. State v. Jones, 883 S.W.2d 597, 1994 Tenn. LEXIS 259 (Tenn. 1994); State v. Crowe, 914 S.W.2d 933, 1995 Tenn. Crim. App. LEXIS 623 (Tenn. Crim. App. 1995), appeal denied, — S.W.2d —, 1996 Tenn. LEXIS 43 (Tenn. Jan. 8, 1996).

Evidence that certain victims required counseling as a result of defendant's actions supported application of the enhancement factor pertaining to particularly great injuries. State v. McKnight, 900 S.W.2d 36, 1994 Tenn. Crim. App. LEXIS 759 (Tenn. Crim. App. 1994), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 58 (Tenn. 1995), overruled, State v. Collier, 411 S.W.3d 886, 2013 Tenn. LEXIS 636 (Tenn. Aug. 12, 2013).

In sentencing for aggravated rape, the trial court erred in finding the personal injuries inflicted to the victim were particularly great where she rejected a request that she have a physical examination and continued to reject offers of psychological therapy. State v. Melvin, 913 S.W.2d 195, 1995 Tenn. Crim. App. LEXIS 502 (Tenn. Crim. App. 1995).

An unwanted pregnancy comes within the definition of personal injury and was an appropriate factor for consideration in sentencing a defendant for rape. State v. Smith, 910 S.W.2d 457, 1995 Tenn. Crim. App. LEXIS 227 (Tenn. Crim. App. 1995), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 351 (Tenn. July 3, 1995).

In sentencing for rape, even though there was evidence of marked redness and swelling to the victim's vaginal area and of the victim's mental agitation, the evidence did not support a finding of particularly great injuries. State v. Embry, 915 S.W.2d 451, 1995 Tenn. Crim. App. LEXIS 664 (Tenn. Crim. App. 1995), overruled in part, State v. Winfield, 23 S.W.3d 279, 2000 Tenn. LEXIS 346 (Tenn. June 20, 2000).

Since causing “serious bodily injury” to the victim is an element of vehicular assault, the sentence enhancement factor that the personal injuries inflicted upon the victim were particularly great did not apply in sentencing for that offense. State v. Rhodes, 917 S.W.2d 708, 1995 Tenn. Crim. App. LEXIS 676 (Tenn. Crim. App. 1995).

The enhancement factor pertaining to particularly great injuries did not apply in sentencing for vehicular homicide and vehicular assault. State v. Williamson, 919 S.W.2d 69, 1995 Tenn. Crim. App. LEXIS 989 (Tenn. Crim. App. 1995).

In sentencing for aggravated rape, where, in addition to the painful injuries she suffered, the rape adversely affected the victim's emotional well being, the enhancement factor pertaining to particularly great injuries was properly applied. State v. Williams, 920 S.W.2d 247, 1995 Tenn. Crim. App. LEXIS 817 (Tenn. Crim. App. 1995).

In sentencing for especially aggravated robbery, the factor relating to particularly great personal injuries did not apply. State v. Nix, 922 S.W.2d 894, 1995 Tenn. Crim. App. LEXIS 925 (Tenn. Crim. App. 1995), appeal denied, — S.W.2d —, 1996 Tenn. LEXIS 337 (Tenn. May 6, 1996).

Particularly great injuries are not essential to the commission of attempted first degree murder. State v. Nix, 922 S.W.2d 894, 1995 Tenn. Crim. App. LEXIS 925 (Tenn. Crim. App. 1995), appeal denied, — S.W.2d —, 1996 Tenn. LEXIS 337 (Tenn. May 6, 1996).

Evidence of psychological injuries to two victims and of an unwanted pregnancy justified the application the enhancement factor pertaining to particularly great personal injury. State v. Hunter, 926 S.W.2d 744, 1995 Tenn. Crim. App. LEXIS 871 (Tenn. Crim. App. 1995).

In order to apply the “great personal injury” enhancement factor in aggravated rape cases, the state was required to prove that the injuries sustained by the victims were greater than those which ordinarily result from the offense. State v. Hoyt, 928 S.W.2d 935, 1995 Tenn. Crim. App. LEXIS 965 (Tenn. Crim. App. 1995), overruled in part, Spicer v. State, 12 S.W.3d 438, 2000 Tenn. LEXIS 57 (Tenn. 2000).

In sentencing for aggravated sexual battery, the factor pertaining to “particularly great injuries” did not apply where there was no medical or psychological proof, the witnesses detailed no specific injuries, and the court found only that the victim had experienced “emotional trauma.” State v. Kissinger, 922 S.W.2d 482, 1996 Tenn. LEXIS 266 (Tenn. 1996).

The enhancement factor pertaining to particularly great personal injury should have been applied where child victims of sexual abuse suffered severe psychological injuries and scarring. State v. Jernigan, 929 S.W.2d 391, 1996 Tenn. Crim. App. LEXIS 116 (Tenn. Crim. App. 1996).

Where trial court merges findings of guilt on alternative counts of aggravated rape and dismisses count of bodily injury, it is appropriate for court to apply particularly great injury enhancement factor in sentencing. State v. Alvarado, 961 S.W.2d 136, 1996 Tenn. Crim. App. LEXIS 736 (Tenn. Crim. App. 1996).

The enhancement factor pertaining to particularly great injury did not apply to sentencing for theft since the punishment for theft is enhanced based upon the amount taken. State v. Grissom, 956 S.W.2d 514, 1997 Tenn. Crim. App. LEXIS 676 (Tenn. Crim. App. 1997).

Personal injuries, great or small, are not an element of attempted murder. State v. Alexander, 957 S.W.2d 1, 1997 Tenn. Crim. App. LEXIS 240 (Tenn. Crim. App. 1997).

Victim impact statement provided sufficient evidence to establish that the victim's mental injuries were particularly great; thus, the enhancement factor of particularly great personal injury applied. State v. Arnett, 49 S.W.3d 250, 2001 Tenn. LEXIS 538 (Tenn. 2001).

While the psychological abuse the minor victim suffered from the sexual abuse might not have left the victim vulnerable as contemplated within the parameters of enhancement factor (4) under T.C.A. § 40-35-114, her psychological injuries were certainly proper for consideration under enhancement factor (6), because she had suffered and continued to suffer particularly great personal injury as a result of defendant's conduct. State v. Osborne, 251 S.W.3d 1, 2007 Tenn. Crim. App. LEXIS 689 (Tenn. Crim. App. Aug. 28, 2007), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 59 (Tenn. Jan. 28, 2008).

After defendant was convicted of two counts of aggravated sexual battery involving a minor victim, the trial court improperly applied the enhancement factor involving “particularly great injury” because even though the victim's counsel testified as to the extent of the mental injuries the victim suffered, there was no evidence showing the victim's injuries arose to the level of “particularly great.” State v. Frausto, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 1130 (Tenn. Crim. App. Dec. 23, 2013), aff'd in part, rev'd in part, 463 S.W.3d 469, 2015 Tenn. LEXIS 272 (Tenn. Apr. 1, 2015).

In a case in which defendant was convicted of attempted rape and attempted incest and imposed an effective six-year sentence, the evidence presented at trial and during the sentencing hearing supported the trial court's application of enhancement factor (6) because the victim's emotional injuries were particularly great, given that defendant was her grandfather and best friend, and that she suffered from PTSD as a result of the events, which necessitated a year of counseling; however, even if the trial court misapplied that enhancement factor, the misapplication of a single enhancement factor did not void defendant's sentence, and there was ample evidence to apply the additional enhancement factors that defendant did not contest. State v. Davis, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 189 (Tenn. Crim. App. Mar. 14, 2018).

Trial court did not err by applying enhancement factors six and nine to defendant's convictions because the husband was shot and still carried the bullet, he was beaten, drug out of his home, and kicked, and the wife was attacked when she went to assist her husband. The evidence also showed that defendant possessed or employed a deadly weapon. State v. Calles, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 796 (Tenn. Crim. App. Oct. 25, 2018).

Since death of the victim was an offense element, the circuit court erred by applying the great personal injury aggravating factor. State v. Trent, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 264 (Tenn. Crim. App. Apr. 17, 2020).

8. Pleasure or Excitement.

Where the record did not reflect what facts the trial court relied upon to support the enhancement factor, aggravated rape case was remanded to the trial court for resentencing in accordance with title 40, ch. 35, part 1. State v. Harris, 866 S.W.2d 583, 1992 Tenn. Crim. App. LEXIS 492 (Tenn. Crim. App. 1992).

Pleasure or excitement is not an essential element of the offense of rape and, therefore, may be considered as an appropriate enhancement. State v. Adams, 864 S.W.2d 31, 1993 Tenn. LEXIS 286 (Tenn. 1993); State v. Jones, 953 S.W.2d 695, 1996 Tenn. Crim. App. LEXIS 554 (Tenn. Crim. App. 1996).

The state has the burden of demonstrating that rape was sexually motivated, i.e., done to gratify the defendant's desire for pleasure or excitement, for the purpose of enhancement. State v. Adams, 864 S.W.2d 31, 1993 Tenn. LEXIS 286 (Tenn. 1993); State v. Smith, 910 S.W.2d 457, 1995 Tenn. Crim. App. LEXIS 227 (Tenn. Crim. App. 1995), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 351 (Tenn. July 3, 1995).

In sentencing defendant for aggravated rape, armed robbery, and aggravated kidnapping, where the facts showed the rape was sexually motivated, the enhancement factor pertaining to committing the crime for “pleasure and excitement” applied to the sentence for rape, but not to the armed robbery conviction. Manning v. State, 883 S.W.2d 635, 1994 Tenn. Crim. App. LEXIS 69 (Tenn. Crim. App. 1994).

The factor pertaining to the desire for pleasure and excitement may be applicable to convictions for sex offenses because many such offenses are committed for other reasons, e.g., acts of violence or a desire for control, and such factor is not necessarily an element of every sexual offense. State v. McKnight, 900 S.W.2d 36, 1994 Tenn. Crim. App. LEXIS 759 (Tenn. Crim. App. 1994), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 58 (Tenn. 1995), overruled, State v. Collier, 411 S.W.3d 886, 2013 Tenn. LEXIS 636 (Tenn. Aug. 12, 2013).

Intent to gratify the desire for pleasure and excitement is a necessary element of sexual battery and that factor cannot be used to enhance a sentence for such crime. State v. Hayes, 899 S.W.2d 175, 1995 Tenn. Crim. App. LEXIS 25 (Tenn. Crim. App. 1995); State v. Kissinger, 922 S.W.2d 482, 1996 Tenn. LEXIS 266 (Tenn. 1996).

In sentencing for aggravated rape, where there was no evidence that defendant made any abusive or sexually explicit comments during the assault or commission of the rape, there was no showing that the rape was committed to gratify defendant's desire for pleasure or excitement. State v. Williams, 920 S.W.2d 247, 1995 Tenn. Crim. App. LEXIS 817 (Tenn. Crim. App. 1995).

In sentencing for aggravated rape, the factor pertaining to pleasure or excitement should not have been applied based on the single, isolated fact of defendant's orgasm; that fact should have been viewed along with other circumstances and there was no proof beyond the emission of semen to indicate defendant's motivation. State v. Kissinger, 922 S.W.2d 482, 1996 Tenn. LEXIS 266 (Tenn. 1996).

Where trial court finds evidence of pleasure or excitement in commission of rape, and distinguishes case from one dealing with minimal force, application of enhancement factor in sentencing is appropriate. State v. Alvarado, 961 S.W.2d 136, 1996 Tenn. Crim. App. LEXIS 736 (Tenn. Crim. App. 1996).

This enhancement factor may not be applied to the offense of sexual battery or aggravated sexual battery. State v. Walton, 958 S.W.2d 724, 1997 Tenn. LEXIS 628 (Tenn. 1997).

Enhancement factor was improperly applied where the state failed to introduce any evidence from which it can be inferred that the aggravated rape was committed to gratify defendant's desire for sexual pleasure or excitement, rather than for any number of other reasons such as a desire to intimidate, coerce or simply abuse the victim. State v. Spratt, 31 S.W.3d 587, 2000 Tenn. Crim. App. LEXIS 465 (Tenn. Crim. App. 2000).

Evidence of ejaculation was insufficient, in and of itself, to establish that defendant committed the rape to gratify defendant's desire for pleasure or excitement; thus, the enhancement factor for pleasure or excitement did not apply. State v. Arnett, 49 S.W.3d 250, 2001 Tenn. LEXIS 538 (Tenn. 2001).

Trial court found that enhancement factor under T.C.A. § 40-35-114 was appropriate, because: (1) Defendant showed pornographic videos to the minor victims and then instructed them to do the same type of activity; (2) Defendant placed the victims in various sexual positions and watched them perform; (3) The older victim, defendant's daughter, was basically a surrogate for her mother in terms of sexual behavior; and (4) Defendant told the older victim that her mother would be proud of her for engaging in sexual activities with defendant. State v. Osborne, 251 S.W.3d 1, 2007 Tenn. Crim. App. LEXIS 689 (Tenn. Crim. App. Aug. 28, 2007), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 59 (Tenn. Jan. 28, 2008).

In connection with defendant's rape of a child convictions, while the trial court did not specifically address the defendant's motive for committing these offenses against his step-daughter, the record supported application of the factor under T.C.A. § 40-35-114(7) given that the step-daughter's pregnancy indicated that defendant achieved climax and the transactional nature of the relationship as described by the step-daughter. State v. Kimble, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 826 (Tenn. Crim. App. Nov. 7, 2018).

Because enhancement factor (7) was an essential element of both sexual battery and soliciting sexual exploitation of a minor, the trial court could not use it to enhance defendant's sentences; however, it did not err by sentencing defendant because the abuse occurred over an extended period of time and one time in defendant's patrol car while he was on duty, and with regard to the sentence for soliciting sexual exploitation of a minor, the trial court also applied enhancement factor (14). State v. Patton, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 322 (Tenn. Crim. App. May 7, 2020).

Trial court did not abuse its discretion in sentencing defendant for his convictions of attempted rape of a child because it found no mitigating factors and two enhancement factors to apply, and it imposed a within-range sentence of 12 years for each conviction. State v. Wethington, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 361 (Tenn. Crim. App. May 21, 2020).

9. Use of Firearm, Explosive, or Deadly Weapon.

Use of a firearm is not an element of murder in the second degree, and, if the accused commits murder in the second degree by shooting the victim with a firearm, this sentencing factor can be used to enhance the accused's sentence. State v. Raines, 882 S.W.2d 376, 1994 Tenn. Crim. App. LEXIS 132 (Tenn. Crim. App. 1994), appeal denied, 1994 Tenn. LEXIS 223 (Tenn. July 5, 1994); State v. Butler, 900 S.W.2d 305, 1994 Tenn. Crim. App. LEXIS 585 (Tenn. Crim. App. 1994).

The deadly weapon enhancement factor is not unconstitutionally vague. State v. Baxter, 938 S.W.2d 697, 1996 Tenn. Crim. App. LEXIS 454 (Tenn. Crim. App. 1996).

Use of a knife is not an element of second degree murder. State v. Baxter, 938 S.W.2d 697, 1996 Tenn. Crim. App. LEXIS 454 (Tenn. Crim. App. 1996).

Use of a knife was an element of aggravated rape but was not an element of aggravated burglary. State v. Baker, 956 S.W.2d 8, 1997 Tenn. Crim. App. LEXIS 51 (Tenn. Crim. App. 1997).

Use of a knife and hammer in the commission of theft justified the application of this enhancement factor. State v. Alexander, 957 S.W.2d 1, 1997 Tenn. Crim. App. LEXIS 240 (Tenn. Crim. App. 1997).

The use of a deadly weapon is not an essential element of an aggravated assault causing serious bodily injury, and thus can be used as an enhancement factor in sentencing following conviction of that offense. State v. Carter, 986 S.W.2d 596, 1998 Tenn. Crim. App. LEXIS 166 (Tenn. Crim. App. 1998).

Although defendant did not challenge the application of this enhancement factor, the court determined that it was improperly applied because this factor cannot be applied to a sentence for aggravated rape committed with a weapon due to the fact that it is an element of the offense. State v. Spratt, 31 S.W.3d 587, 2000 Tenn. Crim. App. LEXIS 465 (Tenn. Crim. App. 2000).

Because defendant was convicted of aggravated assault based on the use of a deadly weapon, the trial court erred in applying the enhancement factor for possession or employment of a deadly weapon during the commission of the offense since the enhancement factor was an element of the offense. State v. Clouse, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 645 (Tenn. Crim. App. July 20, 2017).

Trial court inappropriately applied the enhancement factor for possession of a firearm during the commission of the offense, as no evidence was presented that defendant actually possessed the weapons stolen from the victim's residence. State v. Watkins, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 829 (Tenn. Crim. App. Sept. 8, 2017).

Trial court did not err by sentencing defendant to 22 years incarceration for his conviction of second-degree murder because it was a within-range sentence and it properly determined that the use of a deadly weapon and exceptional cruelty enhancement factors outweighed any mitigating factors, as defendant fired numerous fatal shots at the victim, first in the back and then, after consideration, in the chest, from a close range. State v. Walton, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 571 (Tenn. Crim. App. Aug. 20, 2020).

10. Risk to Life.

There is a high risk to human life from the distribution of crack cocaine. The crime also involves great potential for bodily injury. State v. Millbrooks, 819 S.W.2d 441, 1991 Tenn. Crim. App. LEXIS 281 (Tenn. Crim. App. 1991).

In case involving conviction for possession of cocaine with intent to sell, trial court could not use the inherent traits of cocaine to enhance sentence under the factor requiring commission of crime where risk to human life is high. State v. Marshall, 870 S.W.2d 532, 1993 Tenn. Crim. App. LEXIS 190 (Tenn. Crim. App. 1993), rehearing denied, — S.W.2d —, 1993 Tenn. Crim. App. LEXIS 261 (Tenn. Crim. App. Apr. 29, 1993).

The sentence enhancement factors that defendant had no hesitation about committing a crime when the “risk to human life was high” and that the “potential for bodily injury” to a victim was great” are not elements of the offense of aggravated assault causing serious bodily injury and could be used for enhancement purposes if the facts of the case warrant such use. State v. Jones, 883 S.W.2d 597, 1994 Tenn. LEXIS 259 (Tenn. 1994).

Trial court is not warranted in using factors to enhance a sentence involving a Schedule II controlled substance due to the “nature and circumstances” of the substance. State v. Keel, 882 S.W.2d 410, 1994 Tenn. Crim. App. LEXIS 270 (Tenn. Crim. App. 1994).

In sentencing defendant for aggravated rape, armed robbery, and aggravated kidnapping, the enhancement factor pertaining to “committing a crime when the risk to human life was high” was inapplicable to the sentence for armed robbery since it was an element of that offense, but the facts showed that this factor did apply as to the rape and kidnapping convictions. Manning v. State, 883 S.W.2d 635, 1994 Tenn. Crim. App. LEXIS 69 (Tenn. Crim. App. 1994).

The trial court should not have considered the factor regarding a commission of a crime when the risk to human life was high since this factor was inherent in the offense of aggravated assault. State v. Hill, 885 S.W.2d 357, 1994 Tenn. Crim. App. LEXIS 73 (Tenn. Crim. App. 1994).

The factor involving high risk to human life was not inherent in the offense of attempted murder where persons other than the victim were present and could have been injured. State v. Makoka, 885 S.W.2d 366, 1994 Tenn. Crim. App. LEXIS 316 (Tenn. Crim. App. 1994).

Trial court erred in using defendant's lack of hesitation in committing the crime as an enhancement factor where defendant was convicted of second degree murder. State v. Butler, 900 S.W.2d 305, 1994 Tenn. Crim. App. LEXIS 585 (Tenn. Crim. App. 1994).

The offense of aggravated robbery necessarily entails a high risk to human life and a potential for great bodily harm, thus, the trial court's application of enhancement factors in sentencing for such offense was error. State v. Claybrooks, 910 S.W.2d 868, 1994 Tenn. Crim. App. LEXIS 738 (Tenn. Crim. App. 1994).

In sentencing for conviction of aggravated robbery, absent any proof establishing risk to life other than the victim's, the factor concerning risk to human life did not apply since it was an essential element of the offense. State v. King, 905 S.W.2d 207, 1995 Tenn. Crim. App. LEXIS 77 (Tenn. Crim. App. 1995), overruled, State v. Williams, 977 S.W.2d 101, 1998 Tenn. LEXIS 512 (Tenn. 1998).

In sentencing defendant for especially aggravated kidnapping and especially aggravated robbery, the enhancement factor pertaining to risk to life was inapplicable since it was based upon defendant's use of a deadly weapon, an element of the offenses. State v. Kern, 909 S.W.2d 5, 1993 Tenn. Crim. App. LEXIS 785 (Tenn. Crim. App. 1993), appeal denied, — S.W.2d —, 1994 Tenn. LEXIS 123 (Tenn. Apr. 4, 1994); State v. Zonge, 973 S.W.2d 250, 1997 Tenn. Crim. App. LEXIS 1017 (Tenn. Crim. App. 1997), rehearing denied, — S.W.3d —, 1997 Tenn. Crim. App. LEXIS 1079 (Tenn. Crim. App. 1997).

The factor pertaining to risk to life may be applied in situations where persons other than the victim are in the area and are subject to injury. State v. Sims, 909 S.W.2d 46, 1995 Tenn. Crim. App. LEXIS 392 (Tenn. Crim. App. 1995), overruled, State v. Osborne, — S.W.3d —, 1999 Tenn. Crim. App. LEXIS 465 (Tenn. Crim. App. May 12, 1999), overruled in part, State v. Osborne, — S.W.3d —, 1999 Tenn. Crim. App. LEXIS 465 (Tenn. Crim. App. May 12, 1999), overruled, State v. Price, — S.W.3d —, 1999 Tenn. Crim. App. LEXIS 1154 (Tenn. Crim. App. Nov. 24, 1999), overruled in part, State v. Lowery, — S.W.3d —, 2000 Tenn. Crim. App. LEXIS 457 (Tenn. Crim. App. June 12, 2000).

Upon a conviction for vehicular homicide by recklessness, enhancement factor may be applied where the defendant creates a high risk to the life of a person other than the victim; conversely, if there is no risk to the life of a person other than the victim, the factor would be encompassed by the proof necessary to establish an essential element of the offense, thus, it would not apply. State v. Bingham, 910 S.W.2d 448, 1995 Tenn. Crim. App. LEXIS 105 (Tenn. Crim. App. 1995), rehearing denied, — S.W.2d —, 1995 Tenn. Crim. App. LEXIS 407 (Tenn. Crim. App. May 15, 1995), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 592 (Tenn. Oct. 2, 1995), overruled in part, State v. Hooper, 29 S.W.3d 1, 2000 Tenn. LEXIS 535 (Tenn. 2000), overruled in part, State v. Walker, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 200 (Tenn. Crim. App. Mar. 16, 2017).

In a murder prosecution, where defendant shot the victim in a crowded tavern which endangered a number of people, application of the risk to life factor was warranted. State v. Ruane, 912 S.W.2d 766, 1995 Tenn. Crim. App. LEXIS 584 (Tenn. Crim. App. 1995).

In sentencing for aggravated rape, where defendant used no weapons in the commission of the offense and there was no evidence that defendant's actions showed conduct clearly beyond that necessary to prove the underlying offense, the factor pertaining to risk to life should not have been applied. State v. Williams, 920 S.W.2d 247, 1995 Tenn. Crim. App. LEXIS 817 (Tenn. Crim. App. 1995).

In sentencing for especially aggravated robbery, the factor relating to risk to life did not apply. State v. Nix, 922 S.W.2d 894, 1995 Tenn. Crim. App. LEXIS 925 (Tenn. Crim. App. 1995), appeal denied, — S.W.2d —, 1996 Tenn. LEXIS 337 (Tenn. May 6, 1996).

In sentencing for attempted first degree murder, the factor relating to risk to human life did not apply. State v. Nix, 922 S.W.2d 894, 1995 Tenn. Crim. App. LEXIS 925 (Tenn. Crim. App. 1995), appeal denied, — S.W.2d —, 1996 Tenn. LEXIS 337 (Tenn. May 6, 1996).

In sentencing for aggravated rape, the factor pertaining to “risk to human life” did not apply where there was no evidence to support it. State v. Kissinger, 922 S.W.2d 482, 1996 Tenn. LEXIS 266 (Tenn. 1996).

In sentencing for second degree murder, the enhancement factor relating to risk to life could not be used because it is inherent in the offense. State v. Belser, 945 S.W.2d 776, 1996 Tenn. Crim. App. LEXIS 568 (Tenn. Crim. App. 1996).

Although use of a deadly weapon was an essential element of the especially aggravated kidnapping charge and could not be used to enhance the defendant's sentence relative to the kidnapping victim, the defendant did create a high risk to human life when he waved the gun at the burglary victim. State v. Zonge, 973 S.W.2d 250, 1997 Tenn. Crim. App. LEXIS 1017 (Tenn. Crim. App. 1997), rehearing denied, — S.W.3d —, 1997 Tenn. Crim. App. LEXIS 1079 (Tenn. Crim. App. 1997).

A high risk to human life is not an essential element of every robbery offense and, as long as the evidence that established the robbery did not also establish that the defendant committed the crime notwithstanding a high risk to human life, the existence of such a risk may be considered as an enhancement factor. State v. Lavender, 967 S.W.2d 803, 1998 Tenn. LEXIS 251 (Tenn. 1998).

Enhancement factor applied where the defendant convicted of homicide fired three shots into a car containing two people and the passenger testified that she ducked when she saw the explosion from the gun; thus, the defendant put the other passenger's life at risk. State v. Kelley, 34 S.W.3d 471, 2000 Tenn. Crim. App. LEXIS 166 (Tenn. Crim. App. 2000), review or rehearing denied, — S.W.3d —, 2000 Tenn. LEXIS 667 (Tenn. Nov. 20, 2000).

The “risk to human life” factor was properly applied against defendant convicted of aggravated arson based upon the risk of the lives of firefighters. State v. Lewis, 44 S.W.3d 501, 2001 Tenn. LEXIS 417 (Tenn. 2001).

Multiple resident aggravated arson is the very type of crime to which the legislature intended the “risk to human life” enhancement factor to be applicable. State v. Lewis, 44 S.W.3d 501, 2001 Tenn. LEXIS 417 (Tenn. 2001).

Trial court properly applied an enhancement factor to defendant in connection with defendant's conviction for vehicular assault in violation of T.C.A. § 39-13-106(a) because when defendant collided with the victim's vehicle, the vehicle clipped the truck trailer in front of the victim, and the truck driver was in danger due to defendant's driving; on remand, the trial court was to determine the appropriate weight to be given to this factor. State v. Keathly, 145 S.W.3d 123, 2003 Tenn. Crim. App. LEXIS 438 (Tenn. Crim. App. 2003).

Even if the trial court erred by considering T.C.A. § 40-35-114(10) in sentencing defendant, the sentences imposed by the trial court were not excessive because: (1) Defendant's offenses endangered himself, law enforcement officers, and the general public solely to avoid being arrested for driving with a revoked license; (2) Defendant had previously violated the conditions of his release into the community; and (3) Defendant manifested an inability or unwillingness to comply with probationary conditions. State v. Cross, 362 S.W.3d 512, 2012 Tenn. LEXIS 155 (Tenn. Mar. 9, 2012).

Defendant's two-year sentence was not excessive given defendant's decision to consume alcohol and drive without sleeping the previous night while others were on the roadway, showing a disregard for the safety of others. State v. Sihapanya, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 968 (Tenn. Crim. App. Nov. 8, 2013), aff'd in part, rev'd in part, 516 S.W.3d 473, 2014 Tenn. LEXIS 366 (Tenn. Apr. 30, 2014).

Trial court misapplied the single enhancement factor to which it made specific reference, that defendant had no hesitation about committing a crime when the risk to human life was high, because the record contained no proof that any person other than the victim was put at risk by defendant's offense. State v. Trent, 533 S.W.3d 282, 2017 Tenn. LEXIS 710 (Tenn. Nov. 3, 2017).

Trial court erred by applying the enhancement factor set forth in subsection (10) because a wreck occurred close to midnight, and the record did not indicate that other traffic or people were on the road who would have been endangered by defendant's precarious driving. State v. Burnett, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 158 (Tenn. Crim. App. Feb. 28, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 439 (Tenn. July 18, 2018).

Trial court could not have predicated the application of the enhancement factor under T.C.A. § 40-35-114(10), related to defendant having no hesitation when the risk to human life was high, on the risk to the victim's own life, but the risk to the life of the victim's son might qualify, as he was inside the residence at the time of the shooting and that the victim was shot from behind; the trial court did not abuse its discretion in applying this factor in connection with defendant's second-degree murder conviction. State v. Flippen, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 594 (Tenn. Crim. App. Aug. 9, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 682 (Tenn. Nov. 14, 2018).

Trial court erred by applying enhancement factor 10 to defendant's convictions because the husband and wife were the only people present at the time that defendant and his co-conspirators attacked and attempted to rob the victims. State v. Calles, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 796 (Tenn. Crim. App. Oct. 25, 2018).

Trial court did not abuse its discretion in sentencing defendant for drug crimes because the circumstances surrounding his sale of fentanyl, instead of mere possession of fentanyl, imposed a particularly high risk to human life, and the trial court found that defendant's previous criminal history, including three felony convictions and two prior misdemeanor drug convictions, supported sentencing him to the maximum within-range sentence. State v. Carter, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 188 (Tenn. Crim. App. Mar. 27, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 253 (Tenn. June 19, 2019).

Defendant's claim that his 22-year sentence was excessive lacked merit because the trial court did not err in applying the enhancement factor for having no hesitation about committing a crime when the risk to human life was high when at least one person was in the room with defendant and the victim at the time of the shooting. State v. Harris, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 589 (Tenn. Crim. App. Sept. 20, 2019), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 123 (Tenn. Feb. 21, 2020).

Trial court misapplied the risk to human life enhancement factor, when defendant pleaded guilty to reckless homicide following the accidental drowning of the minor victim, because the record did not contain evidence reflecting that defendant's recklessness placed anyone other than the victim at risk. State v. Baysinger, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 801 (Tenn. Crim. App. Dec. 23, 2019).

Trial court misapplied the enhancement factor for committing a crime when the risk to human life wa high because that factor could not be used to enhance a conviction for aggravated robbery, for which possession of a deadly weapon was an essential element. State v. Dillard, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 259 (Tenn. Crim. App. Apr. 16, 2020).

11. Serious Bodily Injury.

The factor pertaining to infliction of serious bodily injury upon another person did not apply in sentencing a defendant for the offense of attempted murder. State v. Makoka, 885 S.W.2d 366, 1994 Tenn. Crim. App. LEXIS 316 (Tenn. Crim. App. 1994).

In sentencing for convictions of aggravated sexual battery and aggravated rape, application of the enhancement factor concerning the infliction of bodily injury did not apply to the aggravated battery convictions, but the record supported a finding of bodily injury in connection with the aggravated rape conviction. State v. Clabo, 905 S.W.2d 197, 1995 Tenn. Crim. App. LEXIS 37 (Tenn. Crim. App. 1995), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 312 (Tenn. June 5, 1995).

In sentencing defendant for especially aggravated kidnapping and especially aggravated robbery, the enhancement factor pertaining to the potential for bodily injury was inapplicable since it was based upon defendant's use of a deadly weapon, an element of the offenses. State v. Kern, 909 S.W.2d 5, 1993 Tenn. Crim. App. LEXIS 785 (Tenn. Crim. App. 1993), appeal denied, — S.W.2d —, 1994 Tenn. LEXIS 123 (Tenn. Apr. 4, 1994).

In sentencing for aggravated rape, the factor pertaining to “serious bodily injury” did not apply where there was no evidence to support it. State v. Kissinger, 922 S.W.2d 482, 1996 Tenn. LEXIS 266 (Tenn. 1996).

Because bodily injury is not an essential element of the offense of attempted second-degree murder, it was proper to enhance defendant's sentence for that offense with regard to a victim who was actually wounded. State v. Freeman, 943 S.W.2d 25, 1996 Tenn. Crim. App. LEXIS 606 (Tenn. Crim. App. 1996).

A great potential for bodily injury is not an essential element of every robbery offense and, as long as the evidence that established the robbery did not also establish that the defendant committed the crime notwithstanding a great potential for bodily injury, the existence of such a potential may be considered as an enhancement factor. State v. Lavender, 967 S.W.2d 803, 1998 Tenn. LEXIS 251 (Tenn. 1998).

Evidence did not establish that the defendant's crimes resulted in the victim's serious bodily injury; thus, the enhancement factor for serious bodily injury did not apply. State v. Arnett, 49 S.W.3d 250, 2001 Tenn. LEXIS 538 (Tenn. 2001).

Defendant's 10-year maximum sentence for aggravated assault that resulted in a permanent head injury to the victim was appropriate under T.C.A. § 40-35-114 given defendant's lack of potential for rehabilitation, his past felony causing death, and the past failure of alternatives to incarceration. State v. Jones, 341 S.W.3d 318, 2010 Tenn. Crim. App. LEXIS 943 (Tenn. Crim. App. Nov. 5, 2010), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 251 (Tenn. Mar. 9, 2011).

12. Potential for Bodily Injury.

The trial court should not have considered the factor that, based upon the circumstances of the crime committed by the defendant, the potential for bodily injury to the victim was great since this factor is inherent in the offense of aggravated assault. State v. Hill, 885 S.W.2d 357, 1994 Tenn. Crim. App. LEXIS 73 (Tenn. Crim. App. 1994).

In sentencing for conviction of aggravated robbery, the factor concerning the potential for bodily injury to the victim did not apply since it was an essential element of the offense. State v. King, 905 S.W.2d 207, 1995 Tenn. Crim. App. LEXIS 77 (Tenn. Crim. App. 1995), overruled, State v. Williams, 977 S.W.2d 101, 1998 Tenn. LEXIS 512 (Tenn. 1998).

The factor pertaining to the potential for bodily injury may be applied in situations where persons other than the victim are in the area and are subject to injury. State v. Sims, 909 S.W.2d 46, 1995 Tenn. Crim. App. LEXIS 392 (Tenn. Crim. App. 1995), overruled, State v. Osborne, — S.W.3d —, 1999 Tenn. Crim. App. LEXIS 465 (Tenn. Crim. App. May 12, 1999), overruled in part, State v. Osborne, — S.W.3d —, 1999 Tenn. Crim. App. LEXIS 465 (Tenn. Crim. App. May 12, 1999), overruled, State v. Price, — S.W.3d —, 1999 Tenn. Crim. App. LEXIS 1154 (Tenn. Crim. App. Nov. 24, 1999), overruled in part, State v. Lowery, — S.W.3d —, 2000 Tenn. Crim. App. LEXIS 457 (Tenn. Crim. App. June 12, 2000).

Enhancement factor regarding potential for bodily injury may not be applied to a conviction for vehicular homicide by recklessness. State v. Bingham, 910 S.W.2d 448, 1995 Tenn. Crim. App. LEXIS 105 (Tenn. Crim. App. 1995), rehearing denied, — S.W.2d —, 1995 Tenn. Crim. App. LEXIS 407 (Tenn. Crim. App. May 15, 1995), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 592 (Tenn. Oct. 2, 1995), overruled in part, State v. Hooper, 29 S.W.3d 1, 2000 Tenn. LEXIS 535 (Tenn. 2000), overruled in part, State v. Walker, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 200 (Tenn. Crim. App. Mar. 16, 2017).

The enhancement factor pertaining to the potential for bodily injury did not apply in sentencing for vehicular homicide and vehicular assault. State v. Williamson, 919 S.W.2d 69, 1995 Tenn. Crim. App. LEXIS 989 (Tenn. Crim. App. 1995).

In sentencing for aggravated rape, the enhancement factor pertaining to the potential for bodily injury does not apply absent extraordinary circumstances. State v. Williams, 920 S.W.2d 247, 1995 Tenn. Crim. App. LEXIS 817 (Tenn. Crim. App. 1995).

In sentencing for attempted first degree murder, the factor relating to the potential for bodily injury did not apply. State v. Nix, 922 S.W.2d 894, 1995 Tenn. Crim. App. LEXIS 925 (Tenn. Crim. App. 1995), appeal denied, — S.W.2d —, 1996 Tenn. LEXIS 337 (Tenn. May 6, 1996).

In sentencing for especially aggravated robbery, the factor relating to the potential for bodily injury did not apply. State v. Nix, 922 S.W.2d 894, 1995 Tenn. Crim. App. LEXIS 925 (Tenn. Crim. App. 1995), appeal denied, — S.W.2d —, 1996 Tenn. LEXIS 337 (Tenn. May 6, 1996).

In sentencing for second degree murder, the enhancement factor relating to the potential for bodily injury could not be used because it is inherent in the offense. State v. Belser, 945 S.W.2d 776, 1996 Tenn. Crim. App. LEXIS 568 (Tenn. Crim. App. 1996).

The factor concerning the potential for bodily injury should not have been applied upon a conviction for aggravated child abuse for causing serious bodily injury. State v. Jones, 953 S.W.2d 695, 1996 Tenn. Crim. App. LEXIS 554 (Tenn. Crim. App. 1996).

The factor pertaining to potential for bodily injury did not apply to enhance a sentence for aggravated rape. State v. Baker, 956 S.W.2d 8, 1997 Tenn. Crim. App. LEXIS 51 (Tenn. Crim. App. 1997).

When a theft is committed by breaking into person's house in the dead of night under circumstances in which it is reasonable to assume that a person is home, the potential for bodily injury to a victim is great. State v. Alexander, 957 S.W.2d 1, 1997 Tenn. Crim. App. LEXIS 240 (Tenn. Crim. App. 1997).

Trial court properly applied the enhancement factor which punishes more severely crimes where the potential for bodily injury to the victim was great, where defendant struck the victim on the head with enough force to shatter the bottle and dragged the victim around by the hair, creating a greater potential for bodily injury than is inherent in the crime of aggravated rape committed while in possession of a weapon. State v. Spratt, 31 S.W.3d 587, 2000 Tenn. Crim. App. LEXIS 465 (Tenn. Crim. App. 2000).

13. Release Status.

Factor pertaining to commission of a felony while on release from a prior felony conviction did not apply where defendant was on probation from a misdemeanor. State v. Sims, 909 S.W.2d 46, 1995 Tenn. Crim. App. LEXIS 392 (Tenn. Crim. App. 1995), overruled, State v. Osborne, — S.W.3d —, 1999 Tenn. Crim. App. LEXIS 465 (Tenn. Crim. App. May 12, 1999), overruled in part, State v. Osborne, — S.W.3d —, 1999 Tenn. Crim. App. LEXIS 465 (Tenn. Crim. App. May 12, 1999), overruled, State v. Price, — S.W.3d —, 1999 Tenn. Crim. App. LEXIS 1154 (Tenn. Crim. App. Nov. 24, 1999), overruled in part, State v. Lowery, — S.W.3d —, 2000 Tenn. Crim. App. LEXIS 457 (Tenn. Crim. App. June 12, 2000).

Enhancement factor set forth in subsection (13)(A) applied to defendant's sentences because defendant was on bail or some type of pretrial release when he committed the offenses; a grand jury had indicted defendant, and he pleaded guilty to three misdemeanors. State v. Burnett, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 158 (Tenn. Crim. App. Feb. 28, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 439 (Tenn. July 18, 2018).

14. Noncompliance with Conditions of Release.

Two prior parole violations were properly used to support enhancement based on defendant's history of unwillingness to comply with conditions of sentence involving release into the community. State v. Baker, 956 S.W.2d 8, 1997 Tenn. Crim. App. LEXIS 51 (Tenn. Crim. App. 1997).

Defendant's inability to comply with a community corrections sentence supported the application of enhancement for previous history of unwillingness to comply with the conditions of sentence involving release in the community. State v. Elam, 7 S.W.3d 103, 1999 Tenn. Crim. App. LEXIS 768 (Tenn. Crim. App. 1999).

The commission of the offense for which a defendant was being sentenced did not make the enhancement factor applicable because there must be a previous history of unwillingness to comply. State v. Adams, 45 S.W.3d 46, 2000 Tenn. Crim. App. LEXIS 542 (Tenn. Crim. App. 2000), appeal denied, — S.W.3d —, 2001 Tenn. LEXIS 251 (Tenn. Mar. 19, 2001).

Defendant convicted of fourth DUI offense was properly sentenced to 4 years and ordered to pay a $10,000 fine. Trial court considered mitigating factors along with aggravating factors, including defendant's criminal history and his previous history of unwillingness to comply with the conditions of a sentence involving release into the community. State v. Butler, 108 S.W.3d 845, 2003 Tenn. LEXIS 573 (Tenn. 2003).

There is no authority for the substitution of an oral directive for a valid court order, and therefore juvenile defendant was entitled to post-commitment relief after he was found to be in violation of the terms of probation based on an oral mandate for house arrest since he was entitled to notice under U.S. Const. amend. XIV, § 1 and Tenn. Const. art. I, § 8; moreover, the appeal was not moot because a finding of a probation violation could have had adverse consequences in the future. State v. Rodgers, 235 S.W.3d 92, 2007 Tenn. LEXIS 744 (Tenn. Aug. 17, 2007).

Trial court did not err by relying on T.C.A. § 40-35-114(8) in sentencing defendant because the State presented the following evidence: (1) A probation violation report stemming from an October 30, 1996 driving under the influence offense, (2) An affidavit of violation of the 1992 probation for driving under the influence, as well as a signed probation violation warrant for the same offense, and (3) A judgment of conviction for three driving under the influence offenses committed in 1996 prior to the expiration of defendant's probation for his 1992 incest conviction. State v. Cross, 362 S.W.3d 512, 2012 Tenn. LEXIS 155 (Tenn. Mar. 9, 2012).

Defendant's effective 13-year sentence for aggravated assault was proper; it was within the discretion of the trial court to enhance defendant's sentences based on his failure to comply with the conditions of his previous release on parole, and the trial court properly found that defendant had an extensive record of criminal activity, which alone supported the imposition of consecutive sentencing. State v. Smith, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 632 (Tenn. Crim. App. Aug. 20, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 676 (Tenn. Nov. 14, 2018).

15. Position of Trust.

Defendant's status of live-in boyfriend of the mother of the youngest rape victims is a sufficient basis for sentence enhancement abuse of a position of private trust. State v. Adams, 864 S.W.2d 31, 1993 Tenn. LEXIS 286 (Tenn. 1993).

The factor pertaining to defendant's violation of a position of public trust may be applicable to convictions for sex offenses against minors. State v. McKnight, 900 S.W.2d 36, 1994 Tenn. Crim. App. LEXIS 759 (Tenn. Crim. App. 1994), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 58 (Tenn. 1995), overruled, State v. Collier, 411 S.W.3d 886, 2013 Tenn. LEXIS 636 (Tenn. Aug. 12, 2013).

Defendant's abuse of his position of private trust as the victim's father charged with her care and control was sufficient for application of the pertinent sentence enhancement factor. State v. Hayes, 899 S.W.2d 175, 1995 Tenn. Crim. App. LEXIS 25 (Tenn. Crim. App. 1995).

Defendant's use of his position as the victim's brother to facilitate the commission of forgeries justified application of the enhancement factor concerning the abuse of a private or public trust. State v. Franklin, 919 S.W.2d 362, 1995 Tenn. Crim. App. LEXIS 880 (Tenn. Crim. App. 1995).

In sentencing for aggravated rape and aggravated sexual battery, the factor pertaining to “abuse of trust” applied where defendant had a long relationship with the victims' mother and she entrusted him with the care of the victims for whom he was, in many ways, a surrogate father. State v. Kissinger, 922 S.W.2d 482, 1996 Tenn. LEXIS 266 (Tenn. 1996).

In sentencing for aggravated sexual battery, the factor pertaining to “abuse of trust” did not apply where defendant was a casual visitor in the house at the time the offense occurred and, although the victim was acquainted with defendant, nothing demonstrated that he occupied any relationship to her that promoted confidence, reliability, or faith in him. State v. Kissinger, 922 S.W.2d 482, 1996 Tenn. LEXIS 266 (Tenn. 1996).

Where victims lived in defendant's home and he was described as a “father figure” and as the “caretaker” of the children, application of the “trust” factor was appropriate. State v. Jernigan, 929 S.W.2d 391, 1996 Tenn. Crim. App. LEXIS 116 (Tenn. Crim. App. 1996).

The “private position of trust abuse” factor is completely separate from the “vulnerability” factor; it takes separate facts to support each factor, and the evidence may support either one independent of the other. State v. Jernigan, 929 S.W.2d 391, 1996 Tenn. Crim. App. LEXIS 116 (Tenn. Crim. App. 1996).

Defendant's continuing criminal activity while he was on probation did not constitute a breach of trust for purposes of the enhancement factor pertaining to “abuse of trust.” State v. Seay, 945 S.W.2d 755, 1996 Tenn. Crim. App. LEXIS 119 (Tenn. Crim. App. 1996), appeal dismissed, — S.W.2d —, 1998 Tenn. Crim. App. LEXIS 1251 (1998 Tenn. Crim. App. LEXIS 1251).

Defendant's abuse of his position of private trust could be applied in sentencing him for the rape of his daughter, even though he also received a consecutive sentence for incest. State v. Jones, 953 S.W.2d 695, 1996 Tenn. Crim. App. LEXIS 554 (Tenn. Crim. App. 1996).

As a developmental technician at a facility for the retarded, defendant occupied a position of trust in relationship to the victim, a resident of the facility. State v. Leggs, 955 S.W.2d 845, 1997 Tenn. Crim. App. LEXIS 192 (Tenn. Crim. App. 1997), overruled, State v. Hooper, 29 S.W.3d 1, 2000 Tenn. LEXIS 535 (Tenn. 2000).

The defendants occupied a position of trust as extended parents with respect to a child-victim of rape and attempted murder where they lived with the child-victim and her mother, provided the child with food, expressed concern over the child's safety, bathed her, told her when it was time for bed, and disciplined her. State v. Griffis, 964 S.W.2d 577, 1997 Tenn. Crim. App. LEXIS 427 (Tenn. Crim. App. 1997).

Enhancement factor is construed to apply only where there is evidence that the nature of the relationship between the perpetrator and the adult victim caused the victim to be particularly vulnerable. State v. Gutierrez, 5 S.W.3d 641, 1999 Tenn. LEXIS 606 (Tenn. 1999).

Adults sharing a household are not in a per se position of trust. State v. Gutierrez, 5 S.W.3d 641, 1999 Tenn. LEXIS 606 (Tenn. 1999).

The determination of the existence of a position of trust does not depend on the length or formality of the relationship; rather, the court should look to see whether the offender formally or informally stood in a relationship to the victim that promoted confidence, reliability, or faith. State v. Blackstock, 19 S.W.3d 200, 2000 Tenn. LEXIS 168 (Tenn. 2000).

Where the adult perpetrator and minor victim are members of the same household, the adult occupies a position of presumptive private trust with respect to the minor; however, the court failed to take into account defendant's mental impairment as it related to the nature of the defendant's relationship with the child. Thus, under the unique facts of this case, the evidence was insufficient to apply the abuse of trust factor. State v. Blackstock, 19 S.W.3d 200, 2000 Tenn. LEXIS 168 (Tenn. 2000).

The court gave significant weight to the fact that defendant, who abused his two daughters (both under six years old), abused a position of private trust as a parent. State v. Turner, 30 S.W.3d 355, 2000 Tenn. Crim. App. LEXIS 89 (Tenn. Crim. App. 2000), appeal denied, — S.W.3d —, 2000 Tenn. LEXIS 479 (Tenn. Sept. 5, 2000).

Trial court did not err in applying the enhancement factor in T.C.A. § 40-35-114(14) as the proof showed that defendant was the victim's stepfather. It was not necessary for the State to officer proof that the victim and defendant enjoyed a close personal relationship. State v. Fann, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 542 (Tenn. Crim. App. July 12, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 945 (Tenn. Dec. 12, 2012).

After defendant was convicted of two counts of aggravated sexual battery involving a minor victim, enhancement factor involving “abuse of a position of trust” applied because defendant was entrusted as the victim's caretaker when she stayed at defendant's house and at the mother's apartment, defendant was aware the victim would be alone with him at both residences, and defendant accepted responsibility for the victim's well-being during that time by consenting to the stay. State v. Frausto, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 1130 (Tenn. Crim. App. Dec. 23, 2013), aff'd in part, rev'd in part, 463 S.W.3d 469, 2015 Tenn. LEXIS 272 (Tenn. Apr. 1, 2015).

In a case where defendant was indicted for rape of a child and entered a best-interest guilty plea to incest, the trial court did not abuse its discretion in sentencing defendant to serve a term of six years because it was clear from the transcript of the sentencing hearing that the trial court followed all necessary sentencing considerations; the trial court properly applied enhancement factor (14), as defendant, who was married to the victim's sister at the time, abused a position of trust by twice forcing the then 11-year-old victim, who was deaf and communicated with sign language, to perform oral sex on him; and the victim's mother testified as to the devastating and lasting effects those forced acts had on the victim. State v. Cole, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 70 (Tenn. Crim. App. Jan. 30, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 354 (Tenn. May 30, 2017).

Defendant's 18-year sentence for aggravated child abuse was not excessive because as a Range I standard offender convicted of a Class A felony he was subject to a sentencing range of 15 to 25 years, and the trial court properly enhanced defendant's sentence based on his position of trust with the victim, namely being the victim's father. State v. Iceman, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 931 (Tenn. Crim. App. Oct. 24, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 133 (Tenn. Feb. 14, 2018).

Even though the trial court erred by finding that defendant abused a position of private trust based on his relationship with his adult girlfriend, the court held that defendant's 25-year sentence for second-decree murder was justified because he used a rifle during the crime. State v. Howard, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 97 (Tenn. Crim. App. Feb. 12, 2018).

In connection with defendant's rape of a child convictions, the victim viewed defendant as being her father and the victim was made captive because if she refused defendant's advances, she would be punished, and thus the record supported the application of the violation of a position of private trust enhancement factor. State v. Kimble, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 826 (Tenn. Crim. App. Nov. 7, 2018).

In a case in which defendant was convicted of aggravated sexual battery, solicitation of a minor, sexual battery by an authority figure, and 11 counts each of statutory rape by an authority figure, incest, and rape, defendant's effective sentence of 52 years' incarceration was not excessive because the trial court correctly applied the enhancement factors that defendant, the victim's stepfather, abused a position of private trust; and, although the court found that defendant's girlfriend was an emotionally troubled young lady who was taken advantage of by defendant, and that her testimony did not serve as mitigating evidence, the court did not consider her testimony against defendant as evidence supporting enhancement. State v. Mason, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 582 (Tenn. Crim. App. Aug. 25, 2020).

16. Juvenile Offenses.

A court can only consider juvenile offenses for enhancement purposes. State v. Adams, 45 S.W.3d 46, 2000 Tenn. Crim. App. LEXIS 542 (Tenn. Crim. App. 2000), appeal denied, — S.W.3d —, 2001 Tenn. LEXIS 251 (Tenn. Mar. 19, 2001).

Enhancement factor applied where the defendant committed offenses as a juvenile in Maryland that would have been felonies if committed by an adult. State v. Adams, 45 S.W.3d 46, 2000 Tenn. Crim. App. LEXIS 542 (Tenn. Crim. App. 2000), appeal denied, — S.W.3d —, 2001 Tenn. LEXIS 251 (Tenn. Mar. 19, 2001).

As a juvenile, defendant was “convicted” of resisting arrest, unlawful taking means of conveyance, and theft as a juvenile; these offenses would not constitute felonies if committed as an adult and thus could not be considered in sentencing, nor could the juvenile charges against him that were dismissed. State v. Slappey, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 343 (Tenn. Crim. App. June 6, 2019).

As a 17-year-old, defendant was “convicted” in New Jersey of aggravated assault and sentenced to two years' confinement; because this offense if committed by an adult would be a felony, the trial court could properly consider the offense in determining the manner and method of service of the sentence. State v. Slappey, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 343 (Tenn. Crim. App. June 6, 2019).

17. Other Factors.

Nonstatutory factors cannot be used to enhance sentences. State v. Strickland, 885 S.W.2d 85, 1993 Tenn. Crim. App. LEXIS 620 (Tenn. Crim. App. 1993), appeal denied, — S.W.2d —, 1994 Tenn. LEXIS 52 (Tenn. Feb. 22, 1994).

In a rape prosecution, findings that “psychological injury” was inflicted upon the victim and that confinement was necessary to avoid depreciating the seriousness of the offense did not establish any of the enhancement factors contained in T.C.A. § 40-35-114. State v. Reid, 882 S.W.2d 423, 1994 Tenn. Crim. App. LEXIS 317 (Tenn. Crim. App. 1994).

In sentencing for theft, the trial court erred in applying as enhancement factors that the type of crime was prevalent in the community and that the particular crime was committed over an extended period of time. State v. Grissom, 956 S.W.2d 514, 1997 Tenn. Crim. App. LEXIS 676 (Tenn. Crim. App. 1997).

The defendant's lack of truthfulness is not a proper consideration for increasing the length of his sentence. State v. Anderson, 985 S.W.2d 9, 1997 Tenn. Crim. App. LEXIS 1296 (Tenn. Crim. App. 1997).

Because there was no proof concerning the amount of the victim's property loss resulting from a collision, the state was required on remand to provide proof of “particularly great” property loss to support the application of an enhancement factor under T.C.A. § 40-35-114 to defendant in connection with defendant's conviction of vehicular assault in violation of T.C.A. § 39-13-106(a). State v. Keathly, 145 S.W.3d 123, 2003 Tenn. Crim. App. LEXIS 438 (Tenn. Crim. App. 2003).

18. Blakely's Application.

Tennessee Criminal Sentencing Reform Act of 1989, T.C.A. § 40-35-101 et seq., fails to satisfy U.S. Const. Amend. 6 insofar as it allows a presumptive sentence to be enhanced based on judicially determined facts; therefore, the judicial imposition of the aggravating factors violates the sixth amendment because a trial court could not have imposed the maximum sentence without the finding of aggravating factors. State v. Gomez, 239 S.W.3d 733, 2007 Tenn. LEXIS 884 (Tenn. Oct. 9, 2007).

Trial court erred by enhancing defendant's sentence above the presumptive three-year maximum for abusing a position of public or private trust, or used a professional license in a manner that significantly facilitated the commission or the fulfillment of the offense, without a jury finding as required under Blakely v. Washington . State v. March, 293 S.W.3d 576, 2008 Tenn. Crim. App. LEXIS 650 (Tenn. Crim. App. July 15, 2008).

Trial court's consideration of T.C.A. § 40-35-114(10) did not violate defendant's sixth amendment rights under Blakely because defendant failed to acknowledge or address the various decisions in which the Tennessee Supreme Court determined that the 2005 amendments to Tennessee's sentencing provisions removed presumptive sentences. State v. Cross, 362 S.W.3d 512, 2012 Tenn. LEXIS 155 (Tenn. Mar. 9, 2012).

19. Right to Jury Trial.

Petition for rehearing was granted and the court of criminal appeals held that the trial court's use of statutory enhancement factors to increase the length of defendant's numerous sentences for aggravated sexual battery to the maximum by applying T.C.A. § 40-35-114 violated his sixth amendment right to trial by jury; no statutory enhancement factors were applicable to overcome the inertia of the presumptive sentence, which on each count was eight years pursuant to T.C.A. § 40-35-112(a)(2), thereby yielding an effective sentence of thirty-two years. State v. Schiefelbein, 230 S.W.3d 88, 2007 Tenn. Crim. App. LEXIS 213 (Tenn. Crim. App. Mar. 7, 2007), appeal denied, State v. Shiefelbein, — S.W.3d —, 2007 Tenn. LEXIS 556 (Tenn. June 18, 2007).

20. Application of Factors.

Although the trial court erred in relying on two sentencing enhancement factors, the within-range sentence was upheld, as two other factors were properly applied. State v. Lobbins, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 38 (Tenn. Crim. App. Jan. 17, 2019).

21. Factor Improperly Considered.

Clear and unequivocal rule of law was breached in the application of two enhancement factors because defendant did not make any admissions, and the jury did not make any findings, with regard to those enhancement factors; a substantial right of defendant was adversely affected by the trial court's application of those enhancement factors as it deprived him of his Sixth Amendment right to have a jury determine whether they applied. State v. Clouse, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 645 (Tenn. Crim. App. July 20, 2017).

Although the trial court relied on an enhancement factor—the personal injuries inflicted upon the victim were particularly great—that was an element of the offense of child neglect, the trial court also applied as an enhancement factor the fact that defendant acted in a position of trust as the day-care provider for the infant victim. Defendant failed to prove that the sentence was improper because the application of the second enhancement factor alone supported the sentence imposed by the trial court. State v. Buchanan, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 844 (Tenn. Crim. App. Nov. 15, 2018).

Trial court abused its discretion in applying the enhancement factor based on intentionally selecting the victim because of her gender as defendant's mother was not a victim in the current case or any other case relative to defendant; defendant was in a romantic relationship with his ex-wife when she was allegedly abused by defendant; and defendant was engaged to the victim at the time of the incident. State v. Simpson, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 173 (Tenn. Crim. App. Mar. 18, 2019).

22. Propriety of Sentence.

Evidence held sufficient to support trial court's determination that enhancement factors greatly outweighed mitigating factors. State v. Davis, 825 S.W.2d 109, 1991 Tenn. Crim. App. LEXIS 728 (Tenn. Crim. App. 1991), appeal denied, — S.W.2d —, 1992 Tenn. LEXIS 125 (Tenn. Jan. 27, 1992); State v. Moss, 13 S.W.3d 374, 1999 Tenn. Crim. App. LEXIS 527 (Tenn. Crim. App. 1999).

The trial court's findings on sentencing were supported by the record, although it incorrectly ignored the use of a firearm as an enhancement factor because such a use was not an element of second degree murder. State v. Shelton, 854 S.W.2d 116, 1992 Tenn. Crim. App. LEXIS 800 (Tenn. Crim. App. 1992).

Defendant convicted of eight counts of fraudulently obtaining controlled substance was properly sentenced to upper end of sentencing range on each count, even though there were five mitigating factors. There were also enhancement factors including: multiplicity of counts; more than one victim; and defendant, a respiratory technician, abused a private trust by stealing drug pads from doctors. State v. Cummings, 868 S.W.2d 661, 1992 Tenn. Crim. App. LEXIS 310 (Tenn. Crim. App. 1992).

Evidence supported a finding of enhancement factors under T.C.A. § 40-35-114. State v. Holland, 860 S.W.2d 53, 1993 Tenn. Crim. App. LEXIS 288 (Tenn. Crim. App. 1993).

Sentence of 11 months and 29 days, with release eligibility of 30%, for conviction of driving under the influence was appropriate where defendant was a police officer and enhancement applied. State v. Dockery, 917 S.W.2d 258, 1995 Tenn. Crim. App. LEXIS 868 (Tenn. Crim. App. 1995), overruled, State v. Troutman, 979 S.W.2d 271, 1998 Tenn. LEXIS 665 (Tenn. 1998), overruled in part, State v. Troutman, 979 S.W.2d 271, 1998 Tenn. LEXIS 665 (Tenn. 1998).

A sentence of two concurrent four-year terms was an appropriate penalty for convictions on two counts of forgery, where evidence of several enhancement factors was presented by the state and not challenged by the defendant. State v. Smith, 926 S.W.2d 267, 1995 Tenn. Crim. App. LEXIS 993 (Tenn. Crim. App. 1995).

In reviewing defendant's sentence for an aggravated sexual battery conviction pursuant to T.C.A. § 40-35-401(d) and considering the appropriate sentencing factors under T.C.A. §§ 40-35-103(5) and 40-35-210(b), defendant's sentence of 12 years, which was within the sentencing range set out by T.C.A. § 40-35-112(a)(2), was appropriate because two sentencing enhancement factors applied to defendant as defendant had a previous history of sexual battery convictions which involved children, and defendant abused a position of private trust, since defendant was the victim's uncle to whom the parents had entrusted the victim's keeping on numerous occasions. State v. Jordan, 116 S.W.3d 8, 2003 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. 2003).

Defendant's sentences to sixteen years in prison for his rape conviction and a concurrent term of fifteen years for his aggravated burglary conviction were imposed in compliance with the sentencing act and were in compliance with U.S. Const. amend. 6; in imposing the sentences, the trial court applied a single mitigating factor, that defendant's conduct did not cause or threaten serious bodily injury, and it applied two enhancement factors, that defendant had a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range and that defendant had a previous history of unwillingness to comply with the conditions of a sentence involving release in the community. State v. Scarborough, 201 S.W.3d 607, 2006 Tenn. LEXIS 758 (Tenn. 2006).

In defendant's murder and arson case, the effective sentence of life imprisonment plus eight years was proper, because defendant set fire to the victim's house and personal belongings in an effort to conceal the victim's murder; the kitchen area of the house, as well as many of the victim's personal belongings, were destroyed by the fire, and the remainder of the house and the victim's belongings were damaged by smoke and water. State v. Gann, 251 S.W.3d 446, 2007 Tenn. Crim. App. LEXIS 813 (Tenn. Crim. App. Oct. 16, 2007), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 243 (Tenn. Apr. 7, 2008), dismissed, Gann v. Lester, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 120372 (E.D. Tenn. Sept. 7, 2016).

In defendant's attempted first degree murder and aggravated burglary case, consecutive, enhanced sentences were proper because defendant had an extensive record of criminal activity, and after the attack, one victim said that he had to depend on others, was unable to work or play sports with his children, and experienced constant pain. The other victim testified that he experienced depression and anxiety after the attack and that he no longer slept well. State v. Dickson, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 397 (Tenn. Crim. App. June 14, 2012), aff'd in part, rev'd in part, 413 S.W.3d 735, 2013 Tenn. LEXIS 777 (Tenn. Oct. 8, 2013), dismissed, Dickson v. Leibach, — F. Supp. 2d —, 2019 U.S. Dist. LEXIS 174459 (E.D. Tenn. Oct. 8, 2019).

Trial court properly enhanced defendant's sentence because defendant had an extensive criminal history, including three felonies, and two failed opportunities to comply with a probation sentence. State v. Maddle, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 438 (Tenn. Crim. App. June 7, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 564 (Tenn. Sept. 13, 2018).

23. Sentence Upheld.

Notwithstanding the trial court's reliance on an erroneous enhancement factor, its imposition of three-year sentences, which were within the sentencing range, was supported by the reasons it articulated in the record, including the need for deterrence; therefore, the intermediate appellate court erred in reducing defendant's sentence. State v. Bise, 380 S.W.3d 682, 2012 Tenn. LEXIS 645 (Tenn. Sept. 26, 2012).

Trial court properly imposed consecutive sentences for defendant's two convictions of attempted first-degree murder based on his extensive criminal history, including misdemeanors, and the trial court's finding that he was a dangerous offender who showed little regard for human life. State v. Dickson, 413 S.W.3d 735, 2013 Tenn. LEXIS 777 (Tenn. Oct. 8, 2013).

Trial court did not err when it ordered the maximum sentence for defendant's aggravated robbery conviction because he conceded that the trial court properly applied two of the enhancement factors, the evidence supported the trial court's application of those factors, and the sentence was within the applicable range. State v. Watts, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 36 (Tenn. Crim. App. Jan. 19, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 316 (Tenn. May 18, 2017).

Trial court did not abuse its discretion by sentencing defendant to 12 years in prison for aggravated robbery where the sentencing range was eight to 12 years, the trial court found that multiple attempts at rehabilitation had failed, defendant had declined to seek help, and he had a significant history of criminal behavior beginning while he was a minor. State v. Taylor, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 40 (Tenn. Crim. App. Jan. 20, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 339 (Tenn. May 22, 2017).

Defendant's sentences of 20 years for rape and 10 years for incest were not excessive because he had eight prior felonies, the trial court found that he committed the offenses to gratify his desire for pleasure or excitement, there were multiple instances when he failed to comply with the conditions of release into the community, and he abused a position of private trust. State v. Belt, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 100 (Tenn. Crim. App. Feb. 15, 2017).

Defendant failed to show that the trial court abused its discretion in sentencing him because it applied four enhancement factors, which defendant did not contest, and found that those factors overwhelmed the single mitigating factor. State v. Batts, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 228 (Tenn. Crim. App. Mar. 27, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 441 (Tenn. July 20, 2017).

Trial court did not abuse its discretion by imposing the maximum available sentence for defendant's convictions of evading arrest and operating a motor vehicle as a habitual traffic offender because his presentence report showed that he had numerous arrests, convictions, and failed attempts at probation, the trial court found that no mitigating factors and three enhancement factors applied, and it found two criteria for imposing consecutive sentences, as defendant was on probation and out on bail when he committed the instant offenses. State v. Marlin, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 307 (Tenn. Crim. App. Apr. 24, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 519 (Tenn. Aug. 16, 2017).

Record supported the trial court's imposition of an effective 10-year sentence for two counts of facilitation of aggravated child abuse and one count of facilitation of aggravated child neglect; defendant was a leader in the commission of an offense involving two or more criminal actors, he treated the victim with exceptional cruelty, and the personal injuries inflicted upon the victim were particularly great, for enhancement purposes, and the trial court carefully considered the evidence and the purposes and principles of sentencing, such that no abuse of discretion was found. State v. Ricketts, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 331 (Tenn. Crim. App. May 5, 2017).

Even if the court agreed that the trial court misapplied one enhancement factor and should have considered defendant's mental illness, defendant would still not be entitled to relief, as the trial court found applicable four other enhancement factors that defendant did not contest, which was more than an adequate basis for enhancement; defendant agreed to a sentencing range of 18 - 23 years, and the trial court imposed a within-range sentence for attempted first degree murder consistent with the purposes and principles of the Sentencing Act. State v. Talley, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 340 (Tenn. Crim. App. May 5, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 503 (Tenn. Aug. 16, 2017).

Defendant's mid-range sentence of 20 years for his second-degree murder conviction was not excessive where the record did not support the application of any mitigating factors, the trial court applied the enhancement factors that defendant possessed or employed a firearm during the commission of the offense and two children were present when he shot his wife, and the trial court properly considered the purposes and principles of sentencing. State v. Langston, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 374 (Tenn. Crim. App. May 12, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 603 (Tenn. Sept. 22, 2017).

Trial court properly sentenced defendant because the sentences were within the applicable range, and the trial court correctly applied all enhancement factors; the trial court identified several enhancement factors on the record, noting that defendant had no hesitation about committing a crime when the risk to human life was high, that defendant had a previous history of criminal convictions, and that he was incarcerated in a penal institution on a felony conviction for second degree murder. State v. Armstrong, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 587 (Tenn. Crim. App. July 5, 2017).

Trial court did not abuse its discretion by ordering a fully-incarcerated sentence because defendant had a lengthy criminal history and the trial court was concerned about his failure to comply with court orders; the trial court determined that only one mitigating factor applied but gave it very little weight, and the trial court found that defendant had a previous history of criminal convictions and previously failed to comply with the conditions of a sentence. State v. Day, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 656 (Tenn. Crim. App. July 27, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 873 (Tenn. Dec. 6, 2017).

Offenses involved a victim and were committed to gratify defendant's desire for pleasure, he abused a position of trust, and the victim was vulnerable, for purposes of the enhancement factors under T.C.A. § 40-35-114(4), (7), (14); the record supported the mid-range sentence of 20 for rape of a child under T.C.A. § 39-15-522, the minimum sentences of five and eight years, respectively, for aggravated and especially aggravated sexual exploitation of a minor under T.C.A. §§ 39-17-1004(a)(1), 39-17-1005(a)(1). State v. Smartt, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 960 (Tenn. Crim. App. Nov. 14, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 193 (Tenn. Mar. 16, 2018).

Trial court did not abuse its discretion by ordering defendant to serve partially consecutive sentences because it found that defendant was a professional criminal, had an extensive record of criminal activity, and committed the offenses while on probation; defendant's alternative sentence in his federal case was sufficiently similar to state probation, and thus, it was within the trial court's discretion to consider that he committed the offenses while on federal probation. State v. Woods, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. Apr. 19, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 506 (Tenn. Aug. 8, 2018).

Trial court did not abuse its discretion in enhancing defendant's sentence, following defendant's conviction for aggravated sexual battery, because, although the court erroneously relied on the fact that the offense involved a high risk to human life as an enhancement, the court imposed a within-range sentence after finding that the victim was struck and then sexually assaulted while in a semi-conscious state. The trial court also noted that defendant had other criminal behavior and that the victim's ability to resist was impaired by alcohol. State v. Canales, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 344 (Tenn. Crim. App. May 4, 2018).

Trial court did not abuse its discretion in applying four sentencing factors, because defendant conceded that the enhancement for abuse of his professional license applied, the criminal history in the case involved six thefts over six years and thus, support a finding of a previous history of criminal behavior, multiple victims were involved, and the amount of damage was great, being almost three times that necessary to support the highest grade level of theft. State v. Hatmaker, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 439 (Tenn. Crim. App. June 8, 2018).

Trial court properly sentenced defendant for his kidnapping and rape convictions because it considered the relevant principles, sentenced defendant to a within range sentence, and properly applied three enhancement factors based on the victim's advanced age, the fact that defendant ejaculated, and the fact that defendant was on probation at the time of the offenses. State v. Stumbo, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 552 (Tenn. Crim. App. July 23, 2018).

Even if the trial court misapplied certain enhancements, that was not a basis for reversal, as the trial court properly considered the statutory criteria and properly applied other enhancement factors, and the 20-year sentence for second-degree murder was consistent with the purposes and principles of sentencing. State v. Flippen, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 594 (Tenn. Crim. App. Aug. 9, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 682 (Tenn. Nov. 14, 2018).

Trial court did not abuse its discretion by sentencing defendant to 22 years in prison for second-degree murder because the record showed that it carefully considered the evidence as well has the proposed enhancement and mitigating factors, and it applied three enhancement factors based on defendant's criminal history, his use of a firearm during the offense, and his release on probation five days before murdering the instant victim. Tenn. v. Satterfield, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 17 (Tenn. Crim. App. Jan. 8, 2019).

Defendant's within-range sentence was not excessive because the trial court considered the relevant principles, the evidence supported the trial court's application of an enhancement factor that the rape was committed for pleasure or excitement but the trial court only gave slight weight to this factor, and the trial court gave weight to the enhancement factor that defendant was the leader in the commission of the offense, which defendant. State v. Watkins, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 184 (Tenn. Crim. App. Mar. 26, 2019).

Sentence of 24 years for second degree murder was supported by finding that defendant had a history of criminal convictions and behavior, was a leader in the commission of the offense involving two or more actors, previously failed to comply with the conditions of a sentence involving release into the community, possessed a firearm during the offense, had no hesitation about committing a crime where the risk to human life was high, and was on probation when the felony offense wss committed. State v. Pruitt, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 212 (Tenn. Crim. App. Apr. 4, 2019).

Defendant's sentence of three years and six months for child abuse was proper and the evidence supported the application of three enhancement factors, given defendant's multiple convictions, the victim's dependence on defendant as her father and her young age, and the fact that defendant abused a position of trust. State v. Addair, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 647 (Tenn. Crim. App. May 30, 2019), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 172 (Tenn. Mar. 26, 2020).

It was no error to enhance defendant's sentence because he had (1) over 25 convictions in at least three counties, and (2) two probation violations. State v. Abdullah, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 26 (Tenn. Crim. App. Jan. 21, 2020).

Trial court did not abuse its discretion when sentencing defendant, a Range II offender, to an effective sentence of eight years in split-confinement, because his presentence report listed five pertinent prior felonies and he failed to comply with the conditions of a sentence involving release into the community. State v. Spencer, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 66 (Tenn. Crim. App. Feb. 5, 2020).

Trial court properly exercised its discretion in sentencing defendant to an effective sentence of 24 years for theft and money laundering; the trial court considered proper sentencing factors and defendant did not contest that the trial court properly relied on certain enhancement factors, including a history of convictions, being on probation when the current offenses took place, and being a leader in the commission of the offense, and the application of these factors was supported by the record. State v. Jives-Nealy, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 156 (Tenn. Crim. App. Feb. 28, 2020).

Trial court did not err by not imposing the minimum sentences in the range, as the record amply supported the trial court's application of enhancement factor that defendant had a previous history of criminal convictions or behavior in addition to those necessary to establish the appropriate range. State v. Rudd, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 539 (Tenn. Crim. App. July 31, 2020).

In a case in which defendant was convicted of, inter alia, especially aggravated robbery, the trial court considered the relevant principles and sentenced defendant to a within-range sentence of eighteen years. As such, defendant was not entitled to relief. State v. Banks, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 583 (Tenn. Crim. App. Aug. 25, 2020).

24. Sentence Upheld.

40-35-115. Multiple convictions.

If a defendant is convicted of more than one (1) criminal offense, the court shall order sentences to run consecutively or concurrently as provided by the criteria in this section.
The court may order sentences to run consecutively if the court finds by a preponderance of the evidence that:
1. The defendant is a professional criminal who has knowingly devoted the defendant's life to criminal acts as a major source of livelihood;
2. The defendant is an offender whose record of criminal activity is extensive;
3. The defendant is a dangerous mentally abnormal person so declared by a competent psychiatrist who concludes as a result of an investigation prior to sentencing that the defendant's criminal conduct has been characterized by a pattern of repetitive or compulsive behavior with heedless indifference to consequences;
4. The defendant is a dangerous offender whose behavior indicates little or no regard for human life and no hesitation about committing a crime in which the risk to human life is high;
5. The defendant is convicted of two (2) or more statutory offenses involving sexual abuse of a minor with consideration of the aggravating circumstances arising from the relationship between the defendant and victim or victims, the time span of defendant's undetected sexual activity, the nature and scope of the sexual acts and the extent of the residual, physical and mental damage to the victim or victims;
6. The defendant is sentenced for an offense committed while on probation; or
7. The defendant is sentenced for criminal contempt.
The finding concerning the imposition of consecutive or concurrent sentences is appealable by either party.
Sentences shall be ordered to run concurrently if the criteria noted in subsection (b) are not met, unless consecutive sentences are specifically required by statute or the Tennessee Rules of Criminal Procedure.

Acts 1989, ch. 591, § 6; 1990, ch. 980, §§ 31, 32.

Sentencing Commission Comments.

This statute is essentially a codification of two Tennessee supreme court cases dealing with concurrent and consecutive sentencing: Gray v. State, 538 S.W.2d 391 (Tenn. 1976) and State v. Taylor, 739 S.W.2d 227 (Tenn. 1987). In Taylor , the court held that consecutive sentences should not routinely be imposed in criminal cases and the aggregate maximum of consecutive terms must be reasonably related to the severity of the offenses involved. While this section permits consecutive sentencing, the trial judge has other available options, such as increasing the length of the sentence within the appropriate range depending on the presence of enhancing factors. However, where appropriate, consecutive sentences are authorized in the discretion of the court if the court finds one or more of the criteria as set forth in subsection (b). The first four criteria were taken directly from Gray v. State , supra, and the fifth was derived from State v. Taylor . The sixth and seventh criteria were added by the general assembly in 1990. In addition, the court is permitted to order consecutive sentencing where the defendant is convicted of “failure to appear” pursuant to § 39-16-609(f).

It should be noted that Gray v. State , supra, contained an additional category based on the numbers of prior felony convictions. This additional category has been built into the sentencing structure which enhances the sentence ranges depending on the types and severity of the prior felony convictions.

Subsection (d) provides that while consecutive sentences are discretionary, in a few instances, consecutive sentences are mandated either by statute or by Tenn. R. Crim. P. 32. For example, see § 39-16-605, which requires consecutive sentences for escape from a penal institution, and § 40-20-111(b), which requires consecutive sentences for felonies committed while the defendant was released on bail.

Compiler's Notes. The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Attorney General Opinions. Applicability to felony and misdemeanor sentencing, OAG 98-0150, 1998 Tenn. AG LEXIS 150 (8/12/98).

NOTES TO DECISIONS

1. Professional Criminal.

Finding that defendant, convicted on four counts of bribing a public servant, was a professional criminal was justified where it was based upon the contents of defendant's taped conversations showing that he was substantially involved in illegal gambling and derived substantial income therefrom. State v. Desirey, 909 S.W.2d 20, 1995 Tenn. Crim. App. LEXIS 304 (Tenn. Crim. App. 1995).

T.C.A. § 40-35-115(b)(2) applies to offenders who have an extensive history of criminal convictions and activities, not just to a consideration of the offenses before the sentencing court. State v. Palmer, 10 S.W.3d 638, 1999 Tenn. Crim. App. LEXIS 663 (Tenn. Crim. App. 1999).

Trial court noted defendant's prior conviction, current convictions, his actions in shooting at an individual, and his prior delinquency finding as a juvenile for possession of a Schedule II controlled substance with the intent to sell; the trial court did not err in relying on the individual's testimony and the trial court properly found that defendant had an extensive record of criminal activity. State v. Steed, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 343 (Tenn. Crim. App. May 5, 2017).

2. Dangerous Offender.

Finding defendant a dangerous offender, standing alone, will not justify consecutive sentencing. State v. Woods, 814 S.W.2d 378, 1991 Tenn. Crim. App. LEXIS 167 (Tenn. Crim. App. 1991); State v. Braden, 867 S.W.2d 750, 1993 Tenn. Crim. App. LEXIS 355 (Tenn. Crim. App. 1993), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 387 (Tenn. Nov. 1, 1993).

A defendant may not be required to serve multiple sentences consecutively on the ground he is a dangerous offender, unless the record establishes that: (a) The defendant's behavior indicated little or no regard for human life, and he did not hesitate about committing a crime in which the risk to human life was high; (b) The circumstances surrounding the commission of the offense were aggravated; (c) Confinement for an extended period of time is necessary to protect society; and (d) The aggregate length of the sentences, if consecutive sentencing is ordered, reasonably relates to the offenses for which the defendant stands convicted. State v. Woods, 814 S.W.2d 378, 1991 Tenn. Crim. App. LEXIS 167 (Tenn. Crim. App. 1991); State v. Kern, 909 S.W.2d 5, 1993 Tenn. Crim. App. LEXIS 785 (Tenn. Crim. App. 1993), appeal denied, — S.W.2d —, 1994 Tenn. LEXIS 123 (Tenn. Apr. 4, 1994).

The imposition of consecutive sentences on an offender found to be a dangerous offender requires, in addition to the application of general principles of sentencing, the finding that an extended sentence is necessary to protect the public against further criminal conduct by the defendant and that the consecutive sentences must reasonably relate to the severity of the offenses committed. State v. Wilkerson, 905 S.W.2d 933, 1995 Tenn. LEXIS 437 (Tenn. 1995).

Defendant held to be a dangerous offender where the defendant repeatedly stabbed four unarmed, much smaller and virtually helpless people, and defendant's previous convictions included reckless endangerment, aggravated assault and simple assault. State v. Palmer, 10 S.W.3d 638, 1999 Tenn. Crim. App. LEXIS 663 (Tenn. Crim. App. 1999).

Fourteen-year-old defendant was permissibly classified as a dangerous offender where, despite being young, defendant was a leader in: the abduction of an entire family; the murders of a husband, wife and their six-year-old daughter; and permanent life-threatening injuries to their three-year-old son. State v. Howell, 34 S.W.3d 484, 2000 Tenn. Crim. App. LEXIS 167 (Tenn. Crim. App. 2000), appeal denied, — S.W.3d —, 2000 Tenn. LEXIS 539 (Tenn. Sept. 25, 2000), cert. denied, Sturgill v. Tennessee, 149 L. Ed. 2d 478, 121 S. Ct. 1614, 532 U.S. 977, 2001 U.S. LEXIS 2998 (2001).

Court of criminal appeals did not err in remanding a case for a proper determination of whether defendant's sentences had to be served consecutively or concurrently because the trial court failed to address the factors required to impose consecutive sentences based on the dangerous offender classification; it did not demonstrate that the imposition of consecutive sentences reasonably related to the severity of the offenses or the total sentence was necessary to protect the public from defendant. State v. Pollard, 432 S.W.3d 851, 2013 Tenn. LEXIS 1011 (Tenn. Dec. 20, 2013).

Record supported the trial court's findings that defendant was a dangerous offender, as the offense took place during the day in a public location, and the trial court found that consecutive sentences were necessary to protect the public; the trial court did not abuse its discretion in ordering defendant to serve his sentences for especially aggravated robbery and attempted voluntary manslaughter consecutively. State v. Steed, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 343 (Tenn. Crim. App. May 5, 2017).

In a case in which the second defendant was convicted of first degree murder and especially aggravated kidnapping, the trial court did not err in finding the second defendant eligible for consecutive sentencing based on defendant being a dangerous offender as his behavior indicated no regard for human life and he had no hesitation in committing a crime where the risk to human life was high because defendant engaged in the prolonged beating of the victim during which she suffered extensive traumatic injuries while hanging by her arms from the ceiling; defendant admitted the crimes committed against the victim were cruel; and defendant had a criminal history for which he was on probation at the time of the victim's kidnapping and murder. State v. Reynolds, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 864 (Tenn. Crim. App. Nov. 28, 2018).

Trial court did not err in finding defendant was a dangerous offender and in ordering consecutive sentences for second degree murder and attempted second degree murder because the court found that the circumstances surrounding the commission of the shooting the victims–resulting in the death of one individual and the serious life-long medical and physical issues for another–were particularly aggravated, the aggregate length of the sentences reasonably related to the offenses, and consecutive sentencing was necessary to protect the public. State v. McLeod, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 605 (Tenn. Crim. App. Sept. 26, 2019).

3. Consecutive Sentences.

In considering consecutive sentencing the trial court is required to insure that the aggregate sentence imposed should be the least severe measure necessary to protect the public from defendant's future criminal conduct and should bear some relationship to defendant's potential for rehabilitation. State v. Desirey, 909 S.W.2d 20, 1995 Tenn. Crim. App. LEXIS 304 (Tenn. Crim. App. 1995).

Consecutive sentences may be imposed any time defendant is convicted of more than one criminal offense; the offenses do not necessarily have to arise from the same proceeding. State v. Moore, 942 S.W.2d 570, 1996 Tenn. Crim. App. LEXIS 686 (Tenn. Crim. App. 1996).

Consecutive sentences cannot be required of a dangerous offender unless the terms reasonably relate to the severity of the offenses committed and are necessary in order to protect society from further criminal acts by those persons who resort to aggravated criminal conduct. State v. Howell, 34 S.W.3d 484, 2000 Tenn. Crim. App. LEXIS 167 (Tenn. Crim. App. 2000), appeal denied, — S.W.3d —, 2000 Tenn. LEXIS 539 (Tenn. Sept. 25, 2000), cert. denied, Sturgill v. Tennessee, 149 L. Ed. 2d 478, 121 S. Ct. 1614, 532 U.S. 977, 2001 U.S. LEXIS 2998 (2001).

Pursuant to T.C.A. § 40-35-115(b)(2), consecutive sentences were warranted in defendant's case because the crime was horrifying, the sentences were necessary to protect the public from further violent criminal conduct by defendant, and the sentence terms were reasonably related to the severity of the crimes based on the fact that defendant was convicted of five separate criminal offenses arising from the terrible events of that one evening. State v. Arnett, 49 S.W.3d 250, 2001 Tenn. LEXIS 538 (Tenn. 2001).

Record showed that defendant was a prolific offender with a consistent record of criminal activity since adulthood who had a complete lack of success with alternative sentencing. The court of criminal appeals concluded that the trial court did not abuse its discretion in imposing consecutive sentences based either on defendant's being a professional criminal or his extensive record of criminal activity. State v. Russo, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 99 (Tenn. Crim. App. Feb. 15, 2017).

Defendant was not entitled to relief on his claim that subsection (b)(2) was void for vagueness because the court of criminal appeals declined to depart from its prior rulings that the “extensive criminal history” factor of subsection (b)(2) was not unconstitutionally vague. State v. Woods, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. Apr. 19, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 506 (Tenn. Aug. 8, 2018).

Language of the professional criminal factor is not unconstitutionally vague; the statute itself provides two definitive aspects of a professional criminal: someone who knowingly devotes their life to criminal acts and whose criminal acts are a major source of their livelihood. State v. Woods, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. Apr. 19, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 506 (Tenn. Aug. 8, 2018).

Person of ordinary intelligence could reasonably interpret “criminal acts” to include criminal conduct or behavior, and a person of ordinary intelligence could also reasonably understand “a major source of livelihood” to mean that the criminal acts are a substantial source of the defendant's income, but the criminal acts are not required to be the major or only source of income; the professional criminal factor is sufficiently clear and precise to pass constitutional muster. State v. Woods, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. Apr. 19, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 506 (Tenn. Aug. 8, 2018).

In a case in which defendant was convicted of, inter alia, six counts of vehicular homicide by intoxication, the trial court did not err by ordering consecutive sentencing, which resulted in an effective sentence of 55 years. The trial court's determinations that consecutive sentencing was necessary to protect the public from further serious criminal conduct and was reasonably related to the severity of the offenses committed were supported by the record. State v. Brewer, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 221 (Tenn. Crim. App. Apr. 6, 2020).

4. —Proper.

Where, in addition to the convictions necessary to sustain the finding of multiple offender, defendant had one class B felony, one class D felony, and one class E felony on his record, and also had eleven additional offenses, most of which originated as felonies but were disposed of as misdemeanors, those convictions were sufficient to support the finding of extensive criminal activity and the trial court's consecutive sentencing order. State v. Holland, 860 S.W.2d 53, 1993 Tenn. Crim. App. LEXIS 288 (Tenn. Crim. App. 1993).

The record supported a finding that defendant was a multiple or dangerous offender and that consecutive sentencing was, therefore, appropriate. State v. Rolland, 861 S.W.2d 840, 1992 Tenn. Crim. App. LEXIS 367 (Tenn. Crim. App. 1992); Manning v. State, 883 S.W.2d 635, 1994 Tenn. Crim. App. LEXIS 69 (Tenn. Crim. App. 1994).

Defendant convicted of eight counts of fraudulently obtaining controlled substance was properly sentenced to serve four of eight counts consecutively. State v. Cummings, 868 S.W.2d 661, 1992 Tenn. Crim. App. LEXIS 310 (Tenn. Crim. App. 1992).

Since defendant was convicted on six counts of aggravated rape of an eight-year-old victim and there was evidence that the sexual abuse extended over a significant period of time, and that the victim would suffer residual effects of the abuse, consecutive 16½-year sentences were warranted. State v. Anderson, 880 S.W.2d 720, 1994 Tenn. Crim. App. LEXIS 34 (Tenn. Crim. App. 1994).

Where the only expert who testified as to defendant's mental state was a clinical psychologist and the expert did not state that the defendant's conduct was that of a “dangerous mentally abnormal person,” and there was neither a competent psychiatrist nor a declaration of dangerous mentally abnormal status as the statute requires, the “dangerous mentally abnormal person” factor would not permit consecutive sentencing of this defendant; nevertheless, given the circumstances surrounding the defendant's multiple sex abuse of his two daughters for years, the consecutive sentencing decision was fully justified. State v. Hallock, 875 S.W.2d 285, 1993 Tenn. Crim. App. LEXIS 694 (Tenn. Crim. App. 1993).

Proof that the defendant had two prior drug convictions, two weapons offense convictions, and numerous misdemeanor driving offenses was sufficient to support a finding that the defendant had an extensive criminal record and the court had discretion to order that a two-year sentence for arson be served consecutively. State v. Chrisman, 885 S.W.2d 834, 1994 Tenn. Crim. App. LEXIS 359 (Tenn. Crim. App. 1994).

Where defendant was found guilty of over 40 sexual offenses against minor children, the record showed that at least two of the victims suffered emotionally, and the carefully planned seductions of the various victims intensified the severity of the offense, since the trial court made prudent determinations as to the sentences, consecutive rather than concurrent sentences for a portion of the convictions were approved. State v. McKnight, 900 S.W.2d 36, 1994 Tenn. Crim. App. LEXIS 759 (Tenn. Crim. App. 1994), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 58 (Tenn. 1995), overruled, State v. Collier, 411 S.W.3d 886, 2013 Tenn. LEXIS 636 (Tenn. Aug. 12, 2013).

Consecutive sentences totaling 85 years for aggravated rape were proper even though defendant was acquitted of 21 of 28 alleged acts of sexual abuse and the court could not consider the offenses ending in acquittal in determining the time span of defendant's sexual activity. State v. Melvin, 913 S.W.2d 195, 1995 Tenn. Crim. App. LEXIS 502 (Tenn. Crim. App. 1995).

Where defendant, convicted of nine counts of forgery, had five prior criminal convictions and in every instance in which he was released into the community after committing a crime, he resorted to additional criminal activity, the need for protection of the public from further criminal conduct was clear, and consecutive sentences totaling eight years on counts stemming from the forgeries were justified. State v. Franklin, 919 S.W.2d 362, 1995 Tenn. Crim. App. LEXIS 880 (Tenn. Crim. App. 1995).

Imposition of consecutive sentences was proper where defendant was convicted on multiple counts of rape and incest and there was evidence that consecutive sentences were necessary to protect the public from further criminal conduct by defendant. State v. Woodcock, 922 S.W.2d 904, 1995 Tenn. Crim. App. LEXIS 982 (Tenn. Crim. App. 1995).

Multiple offenses involving sexual abuse of a minor considered in the light of the surrounding circumstance justified the imposition of consecutive sentences. State v. Hunter, 926 S.W.2d 744, 1995 Tenn. Crim. App. LEXIS 871 (Tenn. Crim. App. 1995).

Where defendant was convicted of two second degree murders, the trial court erred in ordering a portion of his sentences to run consecutively and the remaining to run concurrently. State v. Meade, 942 S.W.2d 561, 1996 Tenn. Crim. App. LEXIS 673 (Tenn. Crim. App. 1996).

Where defendant pled guilty to burglary and theft offenses committed while he was on intensive probation for robbery, an order that he serve the robbery sentence and the burglary and theft sentences consecutive thereto was appropriate. State v. Moore, 942 S.W.2d 570, 1996 Tenn. Crim. App. LEXIS 686 (Tenn. Crim. App. 1996).

The court properly ordered the defendant's sentences to run consecutively where the defendant had an extensive criminal history, was clearly a dangerous offender whose behavior indicated little regard for human life and no hesitation about committing crimes in which the risk to human life was high, and was on parole at the time of the offenses for which he was being sentenced. State v. Lee, 969 S.W.2d 414, 1997 Tenn. Crim. App. LEXIS 501 (Tenn. Crim. App. 1997).

Trial court properly ordered defendant's sentences to run consecutively where he had no work history other than selling drugs and committing criminal offenses and he had an extensive history of juvenile offenses, misdemeanor convictions, and drug convictions. State v. Adams, 973 S.W.2d 224, 1997 Tenn. Crim. App. LEXIS 1 (Tenn. Crim. App. 1997).

Defendant's record of extensive criminal activity justified imposition of consecutive sentencing, although defendant's commission of a crime during a community corrections sentence could not serve as a basis for such sentencing. State v. Pettus, 986 S.W.2d 540, 1999 Tenn. LEXIS 44 (Tenn. 1999).

Where defendant was a Department of Human Services counselor for a 16-year-old female and he exploited the relationship by smoking marijuana and having sexual intercourse with her on multiple occasions, sufficient aggravating circumstances existed to justify the imposition of consecutive sentences under T.C.A. § 40-35-115(b)(5). State v. Lane, 3 S.W.3d 456, 1999 Tenn. LEXIS 430 (Tenn. 1999).

In light of defendant's numerous prior convictions, the trial court properly found that the defendant qualified for consecutive sentences; furthermore, considering that the defendant stabbed his wife, left the bedroom and stabbed two young women trying to come to her aid, then chased a fourth victim out of the house and stabbed him in the back, the consecutive sentences reasonably related to the severity of the offenses. State v. Palmer, 10 S.W.3d 638, 1999 Tenn. Crim. App. LEXIS 663 (Tenn. Crim. App. 1999).

Where the defendant had an extensive and terrible criminal record, consecutive sentencing was appropriate. State v. Russell, 10 S.W.3d 270, 1999 Tenn. Crim. App. LEXIS 321 (Tenn. Crim. App. 1999), review or rehearing denied, — S.W.3d —, 1999 Tenn. LEXIS 480 (Tenn. Oct. 4, 1999).

Consecutive sentences were proper pursuant to T.C.A. § 40-35-115(b) where defendant who had a history of violent behavior entered a dwelling and shot multiple rounds with different weapons, severely injuring the victim and endangering the lives of girlfriend and small children. State v. Cowan, 46 S.W.3d 227, 2000 Tenn. Crim. App. LEXIS 846 (Tenn. Crim. App. 2000).

The court correctly concluded that the consecutive sentence was warranted because the defendant was convicted while on probation for an offense in Georgia, and the defendant had an extensive prior record of criminal activity. State v. Kilpatrick, 52 S.W.3d 81, 2000 Tenn. Crim. App. LEXIS 497 (Tenn. Crim. App. 2000).

Trial court did not err in ordering that the sentences of co-defendant gang members convicted of the especially aggravated kidnapping of a fellow gang member be served consecutively. All three defendants had prior criminal records. State v. Mickens, 123 S.W.3d 355, 2003 Tenn. Crim. App. LEXIS 107 (Tenn. Crim. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 805 (Tenn. Sept. 2, 2003).

In defendant's murder and arson case, consecutive sentences were proper, because defendant was only 19, he had more than 15 prior convictions, defendant's work history was nearly nonexistent, and the circumstances of the crimes indicated defendant's willingness to commit a crime when the risk to human life was high; the crimes were severe and warranted the imposition of consecutive sentencing. State v. Gann, 251 S.W.3d 446, 2007 Tenn. Crim. App. LEXIS 813 (Tenn. Crim. App. Oct. 16, 2007), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 243 (Tenn. Apr. 7, 2008), dismissed, Gann v. Lester, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 120372 (E.D. Tenn. Sept. 7, 2016).

Trial court's imposition of consecutive sentences on defendant who was found to be a dangerous offender did not violate Apprendi rule because findings supporting dangerous offender status were the types of factors that assisted a judge in determining the manner in which defendant should serve sentences for multiple offenses, but were not functional equivalents of elements a jury would consider in determining whether defendant committed greater or lesser crime. State v. Allen, 259 S.W.3d 671, 2008 Tenn. LEXIS 419 (Tenn. June 24, 2008).

Defendant's extensive criminal history, standing alone, was enough to justify the imposition of consecutive sentencing for his various convictions. State v. Nelson, 275 S.W.3d 851, 2008 Tenn. Crim. App. LEXIS 346 (Tenn. Crim. App. Apr. 24, 2008).

Trial court did not err by ordering defendant's three-year sentences for theft and vehicular assault to be served concurrently to each other but consecutively to defendant's 21-year sentence for aggravated vehicular homicide, resulting in a 24-year sentence; defendant had a record of criminal activity which was extensive for purposes of T.C.A. § 40-35-115(b)(2) and there was enough evidence of convictions to show that defendant had engaged in criminal activity for most of his adult life. State v. Bowman, 327 S.W.3d 69, 2009 Tenn. Crim. App. LEXIS 35 (Tenn. Crim. App. Jan. 14, 2009), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 395 (Tenn. June 15, 2009), cert. denied, Bowman v. Tennessee, 175 L. Ed. 2d 388, 130 S. Ct. 559, 2009 U.S. LEXIS 8080 (U.S. 2009).

Consecutive sentencing is a matter addressed to the sound discretion of the trial court and T.C.A. § 40-35-115(b) lists a number of findings that will support the imposition of consecutive sentencing; the trial court ordered consecutive sentencing based on its findings that defendant was a professional criminal who knowingly devoted his life to criminal acts as a major source of livelihood, an offender whose record of criminal activity was extensive, and was on probation at the time of his offenses. The trial court considered the principles of sentencing, as well as all relevant facts and circumstances, and made a sentencing decision within its discretion. State v. Moore, 309 S.W.3d 512, 2009 Tenn. Crim. App. LEXIS 645 (Tenn. Crim. App. Aug. 10, 2009), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 191 (Tenn. Feb. 22, 2010), cert. denied, Moore v. Tennessee, 562 U.S. 919, 131 S. Ct. 290, 178 L. Ed. 2d 190, 2010 U.S. LEXIS 7450 (U.S. 2010).

Imposition of partial consecutive sentences after defendant was convicted of drug charges was proper under T.C.A. § 40-35-115(b) because defendant's criminal activity was extensive and he was an appropriate candidate for partial consecutive sentencing. Prior criminal activity did not require prior convictions; prior criminal behavior was sufficient. State v. Hayes, 337 S.W.3d 235, 2010 Tenn. Crim. App. LEXIS 684 (Tenn. Crim. App. Aug. 18, 2010), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 152 (Tenn. Feb. 17, 2011).

Defendant's consecutive sentencing of four years each for the DUI, fourth offense conviction; the habitual traffic offender status conviction; and the felony evading arrest conviction, were proper because the trial court made specific findings that defendant qualified as an offender with an extensive history of criminal activity, T.C.A. § 40-35-115(b)(2). Criminal history could serve as the basis for findings regarding the length and manner of service. State v. Ralph, 347 S.W.3d 710, 2010 Tenn. Crim. App. LEXIS 1090 (Tenn. Crim. App. Dec. 10, 2010), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 285 (Tenn. Mar. 9, 2011).

Where defendant, at a minimum, demonstrated extreme callousness toward the health and welfare of the victim, and the results were fatal, the trial court had a reasonable basis for imposing consecutive sentences. State v. Dorantes, 331 S.W.3d 370, 2011 Tenn. LEXIS 8 (Tenn. Jan. 25, 2011).

Defendant was properly sentenced to consecutive sentences for his six rape of a child convictions under T.C.A. § 39-13-522 and aggravated sexual battery conviction under T.C.A. § 39-13-504 as the trial court did not impose consecutive sentencing based upon a finding that defendant was a dangerous offender and did not have to make the Wilkerson findings; defendant was sentenced based on his abuse of the minor victim over a seven-month period, and the impact of the sexual relationship on the victim. State v. Nance, 393 S.W.3d 212, 2012 Tenn. Crim. App. LEXIS 316 (Tenn. Crim. App. May 16, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 898 (Tenn. Nov. 27, 2012).

Imposition of partially consecutive sentences was affirmed because the aggravating circumstances of the relationship between the defendant and the victims and the residual harm to the victims outweighed the less aggravating evidence of the time span of the activity and the nature and scope of the sexual acts. State v. Clark, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 703 (Tenn. Crim. App. Sept. 6, 2012), aff'd, 452 S.W.3d 268, 2014 Tenn. LEXIS 913 (Tenn. Nov. 10, 2014).

Defendant's 40-year partially-consecutive sentence for counts of aggravated sexual battery and rape of a child was proper, as defendant was the victim's quasi-step-father, or at least held a position of trust and authority within the household as the live-in boyfriend of the victim's mother and father of the mother's son, and the victim testified that the abuse spanned approximately two and a half years. State v. Sanders, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 830 (Tenn. Crim. App. Oct. 9, 2012), aff'd, 452 S.W.3d 300, 2014 Tenn. LEXIS 912 (Tenn. Nov. 10, 2014).

Imposition of consecutive sentences totaling 174 years for multiple sexual offense convictions was supported by the trial court's comment on the graphic and gruesome nature of the crimes and a finding that defendant videotaped the account to view at his own pleasure. State v. Hogg, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 329 (Tenn. Crim. App. Apr. 16, 2013), aff'd in part, rev'd in part, 448 S.W.3d 877, 2014 Tenn. LEXIS 668 (Tenn. Sept. 25, 2014).

Trial court properly imposed consecutive sentences based on its classification of defendant as a dangerous offender because defendant shot the adult victims multiple times and then repeatedly stabbed and beat the young children, moving from room to room to do so and defendant altered the scene to make it appear as if the murders were drug or gang-related. State v. Dotson, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 584 (Tenn. Crim. App. June 25, 2013), aff'd, 450 S.W.3d 1, 2014 Tenn. LEXIS 694 (Tenn. Sept. 30, 2014).

Trial court did not abuse its discretion in imposing consecutive sentences, which were authorized by T.C.A. § 39-17-1005(d). State v. Hogg, 448 S.W.3d 877, 2014 Tenn. LEXIS 668 (Tenn. Sept. 25, 2014).

Trial court did not abuse its discretion in imposing partial consecutive sentences because it concluded that defendant was an offender whose record of criminal activity was extensive and that he was a professional criminal who had knowingly devoted his life to criminal acts as a major source of livelihood, and defendant provided no citations to support his argument that consecutive sentences were not warranted because there was only one victim. State v. Cook, 2014 Tenn. Crim. App. LEXIS 157 (February 19, 2014).

Consecutive sentencing was proper, as defendant's criminal history included convictions for destruction of property, rape, attempted rape, escape, assault, and aggravated burglary, defendant had previously been convicted of a crime against the victim, and an order of protection was in effect at the time of the current offenses to protect the victim from defendant. State v. Smith, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 794 (Tenn. Crim. App. Aug. 13, 2014), aff'd in part, rev'd in part, 492 S.W.3d 224, 2016 Tenn. LEXIS 383 (Tenn. June 24, 2016).

Consecutive sentences was appropriate based on defendant' relationship to the victims and the extent of the residual damage that his actions cased. State v. Whited, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 324 (Tenn. Crim. App. May 4, 2015), modified, 506 S.W.3d 416, 2016 Tenn. LEXIS 823 (Tenn. Nov. 7, 2016), overruled in part, State v. Grisham, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 336 (Tenn. Crim. App. May 5, 2017).

Trial court did not abuse its discretion in imposing consecutive sentences because the court considered the aggravating circumstances arising from the relationship between defendant and the two child sexual abuse victims, who were the children of defendants' live-in paramour, the nearly year-long time span of defendant's undetected sexual activity, and the nature and scope of the sexual acts and the extent of the residual physical and mental damage to the victims. State v. Howard, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 627 (Tenn. Crim. App. Aug. 4, 2015), aff'd in part, rev'd in part, 504 S.W.3d 260, 2016 Tenn. LEXIS 725 (Tenn. Oct. 12, 2016).

Criteria are stated in the alternative and therefore only one need exist to support the appropriateness of consecutive sentencing; because the trial court provided reasons on the record establishing two of the statutory grounds, extensive criminal history and dangerous offender, the decision was afforded a presumption of reasonableness, and the trial court did not abuse its discretion by ordering defendant's sentences for false report and abuse of corpse to run consecutively. State v. Hawkins, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 700 (Tenn. Crim. App. Aug. 28, 2015), aff'd, 519 S.W.3d 1, 2017 Tenn. LEXIS 272 (Tenn. May 1, 2017), cert. denied, Hawkins v. Tennessee, 199 L. Ed. 2d 288, 138 S. Ct. 388, 2017 U.S. LEXIS 6432 (U.S. Oct. 30, 2017).

Trial court did not err in imposing consecutive sentences, as defendant had an extensive criminal history, committed the offenses while on probation, and had a history of probation violations. State v. Foust, 482 S.W.3d 20, 2015 Tenn. Crim. App. LEXIS 735 (Tenn. Crim. App. Sept. 9, 2015).

Imposition of consecutive sentences was supported by the trial court's conclusion that defendant was an offender whose record of criminal activity was extensive. State v. Branham, 501 S.W.3d 577, 2016 Tenn. Crim. App. LEXIS 9 (Tenn. Crim. App. Jan. 8, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 443 (Tenn. June 23, 2016).

Trial court did not abuse its discretion in imposing consecutive sentences because although it did not use the precise terminology “consecutive sentences reasonably related to the severity of the offense committed,” it was apparent from reading its findings that the trial court determined as such; even if there were error in finding defendant to be a dangerous offender, the trial court could have imposed consecutive sentencing upon finding he had an extensive record of criminal activity. State v. Richardson, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 61 (Tenn. Crim. App. Jan. 27, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 333 (Tenn. May 24, 2017).

Trial court did not abuse its discretion in imposing consecutive sentences because its finding that defendant was a dangerous offender was supported by the record; because defendant engaged in attempted mass murder despite his benign social history, his social history provided no assurances that he was not a risk to the public in the future. State v. Richardson, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 61 (Tenn. Crim. App. Jan. 27, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 333 (Tenn. May 24, 2017).

Consecutive sentences for first and second defendant were supported by the trial court's finding that they were dangerous offenders whose behavior indicated little to no regard for human life and that they had no hesitation about committing the offenses when the risk to human life was high. State v. Burgess, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 75 (Tenn. Crim. App. Jan. 31, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 340 (Tenn. May 22, 2017).

Trial court did not err in ordering that defendant's two 24 year sentences for two counts of aggravated vehicular homicide run consecutively, for a total effective sentence of 48 years, because defendant had 16 prior convictions; he was a dangerous offender whose behavior indicated little or no regard for human life and no hesitation about committing a crime in which the risk to human life was high; an extended sentence was necessary to protect the public from defendant as he had three previous driving under the influence convictions, which showed a disregard for the safety of others; and the consecutive sentences were reasonably related to the severity of defendant's offenses because two people died as a result of defendant's conduct. State v. Luthringer, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 81 (Tenn. Crim. App. Feb. 6, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 246 (Tenn. Apr. 12, 2017).

Imposition of consecutive sentences was supported by the trial court's finding that defendant was a career criminal and was an offender with an extensive criminal record, and the trial court's consideration of the evidence, the enhancement and mitigating factors, and the purposes and principles of sentencing. State v. Click, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 234 (Tenn. Crim. App. Mar. 30, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 494 (Tenn. Aug. 16, 2017), overruled, State v. Patterson, — S.W.3d —, 2018 Tenn. LEXIS 735 (Tenn. Dec. 10, 2018).

Trial court imposed the maximum sentences for each conviction because of defendant's repeatedly failed efforts at rehabilitation, and the trial court's recitation of the facts made clear the danger defendant posed to society, and thus consecutive sentencing was proper. State v. Sample, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 253 (Tenn. Crim. App. Apr. 6, 2017).

Consecutive sentencing was appropriate because the sentence for the employment of a firearm had to run consecutively to the sentence for the underlying felony of aggravated burglary, and the trial court did not abuse its discretion when it determined that the aggravated robbery sentence should also run consecutively to the other two sentences as defendant had attempted to rob her at gunpoint on the same day, before he robbed the victim; and the presentence report included facts that recounted defendant's involvement in two other armed robberies that same week, one of which was the robbery of an elderly woman. State v. Bertrand, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 338 (Tenn. Crim. App. May 4, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 629 (Tenn. Sept. 21, 2017).

Trial court did not err in imposing consecutive sentences after finding that the sentence reasonably related to the severity of the crimes, as it was not the first time the victim had been abused, and defendant either participated in the prior abuse or knew her then-husband was abusing the victim. State v. Taylor, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 387 (Tenn. Crim. App. May 16, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 630 (Tenn. Sept. 21, 2017).

Trial court did not abuse its discretion in imposing consecutive sentences because defendant's pre-sentence report listed criminal convictions beginning in 1977, when the defendant was 19, and ending in 2008, when he was 51; the trial court indicated the consecutive sentences were ordered because it found defendant to be a professional criminal, as reflected in the multitude of his prior felony convictions. State v. Pittman, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 394 (Tenn. Crim. App. May 16, 2017).

Imposition of consecutive sentences was not an abuse of discretion, as the trial court found that defendant was a dangerous offender with little or no regard for human life, confinement was necessary to protect society, and defendant committed the offense while on probation for statutory rape. State v. Fleming, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 426 (Tenn. Crim. App. May 23, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 632 (Tenn. Sept. 21, 2017).

Trial court did not abuse its discretion by imposing consecutive sentences for defendant's aggravated robbery and robbery convictions because of defendant's extensive record of criminal activity. Defendant had juvenile adjudications and prior conviction for unlawful possession of a weapon, while the court found that confinement of defendant for an extended period of time was necessary to protect society from defendant's unwillingness to lead a productive life. State v. Robinson, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 522 (Tenn. Crim. App. June 20, 2017).

Trial court properly imposed consecutive sentences under T.C.A. § 40-35-115 for defendant's two counts of theft of property over $ 500 under T.C.A. § 39-14-146; defendant's lengthy record consisted of at least 20 prior convictions, including numerous robbery and theft convictions, plus at the time of defendant's trial, he had two additional theft cases pending. State v. Moore, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 567 (Tenn. Crim. App. June 29, 2017).

Trial court did not err in imposing consecutive sentencing for defendant's attempted second degree murder and aggravated robbery convictions because defendant was eligible for consecutive sentencing based upon his extensive criminal history and the determination that he was a dangerous offender; defendant was previously convicted of criminal attempt, car-jacking, where he violated his diversion, by picking up a weapons offense; defendant robbed the victims at gunpoint and fired multiple shots at them as they attempted to escape; and the trial court found that the circumstances of the offenses were aggravated and stated that the length of the sentence was reasonably related to the offenses for which defendant was convicted. State v. Woods, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 569 (Tenn. Crim. App. June 29, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 840 (Tenn. Nov. 20, 2017).

Imposition of consecutive sentences was upheld, as the trial court addressed both the statutory requirements for a finding that defendant was a dangerous offender and the requisite Wilkerson factors. State v. Donaldson, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 597 (Tenn. Crim. App. July 6, 2017).

Defendant's six-year sentence, to be served at 60 percent release eligibility, for failure to appear did not constitute cruel and unusual punishment because it was the only sentence available given the offense defendant's criminal record. The presentence report reflected some 45 prior conviction dating back 25 years and because defendant was released on bond at the time she committed the instant offense consecutive sentencing was proper. State v. Chick, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 623 (Tenn. Crim. App. July 17, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 805 (Tenn. Nov. 16, 2017).

Trial court properly ordered defendant to serve his sentences consecutively to his sentences from convictions in another county because the convictions were imposed after defendant was convicted and sentenced in that county. State v. Clouse, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 645 (Tenn. Crim. App. July 20, 2017).

Court made the proper determinations to support consecutive sentencing because, after determining the applicable mitigating and enhancement factors but before determining the length of the sentence and whether to impose consecutive service, the court found that defendant was a professional criminal who had devoted his life to criminal conduct and that defendant was on probation at the time of the offense. State v. Buckner, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 716 (Tenn. Crim. App. Aug. 14, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 875 (Tenn. Dec. 6, 2017).

Trial court properly applied the dangerous offender classification in ordering consecutive sentences, after finding that the commission of the offenses were aggravated and confinement was necessary to protect society. State v. Cunningham, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 747 (Tenn. Crim. App. Aug. 23, 2017).

Trial court did not err by ordering defendant's sentence to be served consecutively with his prior sentence because of the relationship between defendant and the victims, who were friends, and the extent of the residual physical and mental damage to the victim. State v. Klein, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 809 (Tenn. Crim. App. Sept. 6, 2017).

Trial court did not err by ordering defendant's sentences for of first degree murder and multiple counts of attempted first degree murder and employment of a firearm during attempted first degree murder to run consecutively because the court based its finding that the defendant was a dangerous offender on defendant's criminal history and the facts of the case, in which defendant fired approximately eleven shots at unarmed victims, ultimately shooting one of them in the neck and jaw from close range, thereby causing that victim's death. State v. Sims, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 814 (Tenn. Crim. App. Sept. 5, 2017).

Criminal court properly imposed an effective 14-year sentence upon resentencing following the revocation of defendant's community corrections because the sentence was not greater than that deserved for the offenses committed and not the least severe measure necessary to achieve the purposes for which it was imposed where only one factor needed to exist to support the appropriateness of consecutive sentencing, defendant had and extensive record of criminal activity; 68 prior misdemeanor and 10 prior felony convictions; the trial court was clearly aware of defendant's mental health history and drug problems, and defendant never took full responsibility for his actions. State v. Buchanan, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 822 (Tenn. Crim. App. Sept. 7, 2017), review denied and ordered not published, — S.W.3d —, 2018 Tenn. LEXIS 13 (Tenn. Jan. 17, 2018).

Trial court did not abuse its discretion in ordering his sentence for first degree felony murder under T.C.A. § 39-13-202(a)(2) to be served consecutively under T.C.A. § 40-35-115(a) to his previously imposed federal sentence; defendant could not have received concurrent sentencing unless the trial court found that good cause existed, but such did not exist, given his extensive criminal history of property crimes along with his extremely limited employment history. State v. Hopkins, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 859 (Tenn. Crim. App. Sept. 22, 2017).

Trial court did not abuse its discretion in sentencing defendant to a within-range sentence for 20 felonies with partial consecutive sentences after considering defendant's nine prior felony convictions and several misdemeanor convictions and that he had many opportunities yet continued to engage in criminal conduct. State v. Patterson, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 884 (Tenn. Crim. App. Sept. 29, 2017), rev'd, — S.W.3d —, 2018 Tenn. LEXIS 735 (Tenn. Dec. 10, 2018).

Because the trial court imposed consecutive sentencing based upon defendant's extensive criminal history, not upon a finding that defendant was a dangerous offender, the trial court was not required to make any additional findings before imposing consecutive sentencing. State v. Long, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 485 (Tenn. Crim. App. Oct. 3, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 611 (Tenn. Sept. 17, 2018).

Imposition of consecutive sentences was supported by the trial court's consideration of the gruesome facts and circumstances of the offenses, a finding that defendant was a danger to the public, and his failure to accept responsibility for the crimes. State v. Bargery, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 902 (Tenn. Crim. App. Oct. 6, 2017).

Record supported the trial court's imposition of consecutive terms under T.C.A. § 40-35-115(b)(5) for rape of a child, aggravated and especially aggravated sexual exploitation under T.C.A. §§ 39-13-522, 39-13-503(a)(2), 39-17-1004(a)(1), 39-17-1005(a)(1); defendant was convicted for two or more statutory offenses involving sexual abuse of a minor. State v. Smartt, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 960 (Tenn. Crim. App. Nov. 14, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 193 (Tenn. Mar. 16, 2018).

Trial court did not err in ordering the Class E felony theft count under § 39-14-105 to be served consecutively under T.C.A. § 40-35-115 to the Class C felony theft count as the evidence did not preponderate against the trial court's finding that defendant's history of criminal activity was extensive and she committed the current offenses while on probation. State v. Moore, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 982 (Tenn. Crim. App. Nov. 28, 2017).

Imposition of consecutive sentences was supported by the trial court's finding that defendant was a professional criminal and he had an extensive criminal history spanning more than two decades and including multiple burglary and theft convictions. State v. McCoy, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1041 (Tenn. Crim. App. Dec. 19, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 263 (Tenn. Apr. 23, 2018).

Consecutive sentencing was warranted based on findings that defendant, who had been previously convicted of attempted second-degree murder, was a “dangerous offender,” defendant's behavior indicated little or no regard for human life and he had no hesitation about committing a crime in which the risk to human life was high, and consecutive sentences were needed to protect the public from further criminal conduct by defendant. State v. Biggs, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1042 (Tenn. Crim. App. Dec. 19, 2017).

Trial court properly imposed consecutive sentences for defendant's convictions for theft of property and money laundering because he had an extensive record of criminal activity that criminal activity spanned from a time period of six years and 10 months, or 38.22 percent of defendant's adult life. State v. Hughes, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 9 (Tenn. Crim. App. Jan. 8, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 284 (Tenn. May 16, 2018).

Record supported the trial court's finding that defendant had an extensive record of criminal activity, which included two felony and multiple misdemeanor convictions as an adult and one adjudication as a juvenile that would have been a felony if committed by an adult, and therefore the trial court did not abuse its discretion in imposing partial consecutive sentences under T.C.A. § 40-35-115(b)(2). State v. Childress, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 38 (Tenn. Crim. App. Jan. 19, 2018).

Imposition of consecutive sentences was supported by the fact that his convictions showed he had little regard for human life and did not hesitate in committed the offense for which the risk to human life was high and such were necessary to protect society from defendant's unwillingness to lead a productive life and his resort to criminal activity and furtherance of that anti-societal lifestyle. State v. Gathing, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 42 (Tenn. Crim. App. Jan. 19, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 297 (Tenn. May 17, 2018).

Trial court did not err by ordering that defendant's aggravated assault sentence run consecutively to his attempted second degree murder sentence because it found that he was a dangerous offender whose behavior indicated little or no regard for human life, there were aggravating circumstances based on one of the victim's injuries, defendant had an extensive criminal history, he had not successfully completed past alternative sentences, and he committed current offenses while on probation. State v. Johnson, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 62 (Tenn. Crim. App. Jan. 30, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 369 (Tenn. June 8, 2018).

Trial court properly imposed consecutive sentencing upon defendant because it did not abuse its discretion in finding that defendant was a dangerous offender and had an extensive prior record of criminal activity; the trial court made extensive findings, and at the sentencing hearing, the State recited defendant's criminal history. State v. Otis, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 106 (Tenn. Crim. App. Feb. 15, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 322 (Tenn. June 6, 2018).

Trial court did not abuse its discretion in imposing consecutive sentences because there was no double jeopardy violation, and the trial court made the necessary factual findings underlying the statutory conditions for imposing consecutive sentences. State v. Jones, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 126 (Tenn. Crim. App. Feb. 21, 2018).

Trial court did not abuse its discretion in determining either the length of the sentences or the partially consecutive alignment because it properly considered the aggravating circumstances arising from the relationship between defendant and victim or victims, the time span of defendant's undetected sexual activity, the nature and scope of the sexual acts, and the extent of the residual, physical and mental damage to the victim or victims; State v. Franklin, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 139 (Tenn. Crim. App. Feb. 27, 2018).

Trial court did not abuse its discretion when ordering consecutive terms because it relied on the nature of the crime, his extensive criminal record, his uncooperative nature prior to sentencing, his disrespectful actions during sentencing, his violation of the no-contact order, and defendant's admission that he would prefer jail time to probation. State v. Earhart, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 152 (Tenn. Crim. App. Feb. 27, 2018).

Trial court did not abuse its discretion by imposing partially consecutive sentences resulting in an effective 24-year sentence because defendant was a dangerous offender, given that he displayed a gun to officers because he believed them to be members of a rival gang, and he had an extensive criminal history, spanning from 2006 through 2015 and consisting of at least five felonies and several misdemeanors in addition to his current convictions. State v. Duncan, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 180 (Tenn. Crim. App. Mar. 6, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 325 (Tenn. June 8, 2018).

Trial court did not err by ordering consecutive sentencing for defendant's convictions of second-degree murder and possession of a firearm by a felon because it finding that defendant had an extensive criminal history was amply supported by the record. State v. Taylor, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 613 (Tenn. Crim. App. Mar. 13, 2018).

Trial court properly ordered two of defendant's sentences for aggravated child abuse to be served consecutively because the court found, by a preponderance of the evidence, that defendant had an extensive record of criminal activity by committing numerous acts of abuse against defendant's children over a period of years by beating, starving, and waterboarding the victims and engaging in what was best analogized to torture by forcing the victims to kneel on uncooked rice or handcuffing them in uncomfortable positions for several hours. State v. McIntosh, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 379 (Tenn. Crim. App. Mar. 27, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 571 (Tenn. Sept. 13, 2018).

Record supported the imposition of consecutive sentences based upon a finding that defendant was an offender whose record of criminal activity was extensive, because despite his lack of criminal history, the trial court was able to consider the 14 crimes, including 13 felonies, that defendant was convicted of in the instant action. State v. Kim, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 264 (Tenn. Crim. App. Apr. 6, 2018).

Imposition of consecutive sentences was supported by consideration of defendant's criminal history, the dangerousness of the crime, and the need to protect the public. State v. Fleming, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 274 (Tenn. Crim. App. Apr. 12, 2018).

Consecutive sentences were proper after the trial court considered defendant's extensive criminal record, and found he was a dangerous offender whose behavior indicates little or no regard for human life and no hesitation about committing a crime in which the risk to human life was high, that the circumstances surrounding the commission of the offenses were aggravated, and that confinement for an extended period was necessary to protect society from his unwillingness to lead a productive life. State v. Stitts, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 340 (Tenn. Crim. App. Apr. 27, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 474 (Tenn. Aug. 8, 2018).

Consecutive sentences were proper based on defendant's numerous violent offenses and a determination that defendant, who had committed numerous offenses related to a violent home invasion, was a dangerous offender whose behavior indicated little or no regard for human life and no hesitation about committing a crime in which the risk to human life was high. State v. Frelix, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 432 (Tenn. Crim. App. June 6, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 586 (Tenn. Sept. 13, 2018).

Imposition of consecutive sentences was not improper, as the trial court found defendant's action of driving his truck at a high rate of speed through a crowded parking lot, crushing a man to death, his lack of remorse, and that he was a dangerous offender whose behavior indicated no regard for human life. State v. Cromwell, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 498 (Tenn. Crim. App. July 3, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 729 (Tenn. Nov. 15, 2018).

Imposition of consecutive sentences was supported by the trial court's determination that defendant had an extensive criminal record and defendant's behavior indicated little or no regard for human life. State v. Wade, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 523 (Tenn. Crim. App. July 13, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 689 (Tenn. Nov. 15, 2018).

Imposition of consecutive sentences was not an abuse of discretion, but was based on defendant's extensive criminal history and a finding that he was a dangerous offender. State v. Sisson, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 526 (Tenn. Crim. App. July 16, 2018).

Trial court did not abuse its discretion by ordering that defendant's sentence for a drug related offense be served consecutively to defendant's sentence in another case because the court found that defendant was a professional criminal as defendant had a lengthy criminal history, the presentence report showed that defendant had only one verified job that lasted for just a month, and defendant's involvement in the enterprise of selling drugs was supported by defendant's membership in a criminal gang. State v. Carero, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 533 (Tenn. Crim. App. July 18, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 710 (Tenn. Nov. 15, 2018).

Trial court did not err when it ordered consecutive sentences for sale of cocaine offenses because defendant's prior convictions qualified defendant as a career offender, defendant's criminal history included numerous other convictions and very little work history, defendant also sold a gun to the confidential informant in the case, and defendant was on probation when defendant sold the cocaine to the informant in the drug transactions. State v. Hogan, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 544 (Tenn. Crim. App. July 20, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 674 (Tenn. Nov. 14, 2018).

Trial court did not err when it ordered partial consecutive sentencing because the evidence was that defendant held a 71-year-old woman at gunpoint inside her own home in the middle of the night while he raped her and threatened her family. State v. Stumbo, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 552 (Tenn. Crim. App. July 23, 2018).

Trial court did not abuse its discretion when it ordered that defendant's effective 10-year sentence for the drug buys in one case run consecutively to his effective six-year sentence for two other cases because defendant shot at one victim's car and at another victim's horses and tractor, despite being indicted defendant sold methamphetamine to an informant, and while out on bond he threatened two witnesses who had testified against him at trial. State v. Robertson, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 688 (Tenn. Crim. App. Sept. 12, 2018).

Consecutive sentences for defendant's aggravated robbery and aggravated burglary convictions were proper as defendant had an extensive history of repeatedly committing violent felonies, including 10 convictions for aggravated robbery, two convictions for especially aggravated kidnapping, and one conviction for attempted first-degree murder. State v. Mitchell, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 693 (Tenn. Crim. App. Sept. 12, 2018).

Imposition of consecutive sentences was supported by defendant's extensive criminal history. State v. Gray, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 700 (Tenn. Crim. App. Sept. 14, 2018).

Trial court did not abuse its discretion in ordering consecutive sentences because it made the findings required under Wilkerson and cited specific facts from defendant's case. Defendant was involved in a series of serious criminal offenses that resulted in the death of one of the victims. State v. Smith, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 722 (Tenn. Crim. App. Sept. 21, 2018).

Imposition of consecutive sentences was supported by evidence of defendant's extensive criminal history. State v. Patterson, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 736 (Tenn. Crim. App. Sept. 28, 2018).

Trial court did not abuse its discretion by imposing partial consecutive sentencing and a total effective sentence of life plus 24 years for first degree felony and premeditated murder, aggravated robbery, attempted aggravated robbery, aggravated burglary, and employment of a firearm; defendant committed six distinct violations of the law and the trial court properly applied the dangerous offender category after making the necessary findings, which included in part his long history of being a drug dealer and being affiliated with a gang. State v. Austin, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 758 (Tenn. Crim. App. Oct. 5, 2018).

Trial court did not err in imposing consecutive sentences for defendant's conviction of bribery of a witness and coercion of a witness, as he was properly found to be a dangerous offender; defendant's prior convictions were the underlying cause for his attempt to bribe and coerce the witness in the instant case, thereby making the cases intertwined. Consecutive sentencing was also proper just based on defendant's criminal history. State v. Colbert, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 770 (Tenn. Crim. App. Oct. 15, 2018).

Trial court did not err by partially imposing consecutive sentences for defendant's numerous convictions arising out a home invasion because the record showed that defendant participated in the execution of a conspiracy to rob, burglarize, and attack the victims with deadly weapons, and as a result the victims' sustained serious bodily injuries. State v. Calles, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 796 (Tenn. Crim. App. Oct. 25, 2018).

Where defendant pled guilty to two counts of robbery in case 109738 and to aggravated robbery and robbery in case 109776, the trial court did not err in sentencing defendant as a Range II multiple offender to consecutive terms of eight years in case 109738 and 14 years in case 109776 as there was ample support for the finding that defendant was a dangerous offender because defendant had an adjudication as a juvenile for a carjacking offense involving a deadly weapon; as an adult, defendant continued to violate the law culminating in the two violent offenses before the court; and the court found that a consecutive sentence was the least drastic measure that it could impose to protect society from defendant's further criminal conduct. State v. Smith, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 840 (Tenn. Crim. App. Nov. 14, 2018).

Trial court did not err by imposing consecutive sentences for defendant's convictions of four counts of sexual battery by an authority figure because the events arose out of a relationship in which each of the victims viewed defendant as a father figure, for each victim the abuse lasted at least three years, and while the extent of the abuse was different for each victim, the trial court noted the extent of defendant's abuse was horrific. State v. Fisher, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 878 (Tenn. Crim. App. Dec. 3, 2018).

Trial court did not err in ordering that defendant's sentences run consecutively because defendant was merely 20 years old but had other felony charges pending at the time of his trial, several other arrests as an adult, and multiple juvenile adjudications that would have been felonies if committed by an adult; defendant was a dangerous offender as he robbed the victim and crashed the victim's car into another car full of people; and defendant committed the offenses while released on bond. State v. Derring, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 32 (Tenn. Crim. App. Jan. 16, 2019).

There was no error in the imposition of consecutive sentences, as some were required by statute and others were supported by application of the dangerous offender factor. State v. Gill, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 91 (Tenn. Crim. App. Feb. 11, 2019).

Imposition of consecutive sentences was not an abuse of discretion but was proper after the trial court found that an extended sentence was necessary to protect the public against further criminal conduct by defendant, who had a lengthy criminal history including prior convictions for acts involving violence. State v. McKinnie, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 113 (Tenn. Crim. App. Feb. 21, 2019).

Imposition of consecutive sentences was supported by the trial court's finding defendant's children needed to be protected from him and what he did was absolutely horrific, that defendant was a dangerous offender whose behavior indicated little or no regard for human life and no hesitation about committed a crime in which the risk to human life was high, and that confinement for an extended time was necessary to protect society. State v. Sharp, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 130 (Tenn. Crim. App. Feb. 26, 2019).

Trial court properly imposed consecutive sentences because the evidence at the sentencing hearing established by a preponderance of the evidence that defendant's criminal history was extensive and that he was a professional criminal who devoted his life to criminal acts as a major source of livelihood. State v. Cox, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 141 (Tenn. Crim. App. Mar. 6, 2019).

Trial court did not abuse its discretion by imposing consecutive sentences for defendant's drug crimes because it determined that defendant was a professional criminal who knowingly devoted his life to criminal acts as a major source of livelihood, defendant failed to obtain a full time job since his release from incarceration in 2011, and his record of criminal activity was extensive. State v. Carter, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 188 (Tenn. Crim. App. Mar. 27, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 253 (Tenn. June 19, 2019).

Trial court did not err in imposing partial consecutive sentences because defendant had an extensive record of criminal activity and was sentenced for the current offense while he was on probation. State v. Lassiter, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 197 (Tenn. Crim. App. Mar. 28, 2019).

Trial court's order requiring that defendant serve his 21-year sentence for especially aggravated kidnapping consecutively to his life sentence for first degree premeditated murder was upheld because the trial court made the additional Wilkerson findings, and the trial court also found that defendant had an extensive record of criminal activity and that he committed the offenses while on probation and the Defendant does not challenge the findings. State v. Brown, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 220 (Tenn. Crim. App. Apr. 8, 2019).

Trial court did not err in ordering consecutive sentences under the “dangerous offender” criterion for aggravated robbery, convicted felon in possession of a firearm, and driving with a revoked, suspended, or cancelled license; the trial court found particularly disturbing that defendant committed the crimes while on probation for a prior violent felony and found that confinement for an extended period was necessary to protect society and that the aggregate length of his sentences was reasonably related to his offenses. State v. Austin, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 233 (Tenn. Crim. App. Apr. 10, 2019).

Defendant did not show consecutive sentencing erred because (1) consecutive sentencing was mandatory for a firearm charge and attempted first degree murder, (2) defendant did not contest a finding of being a dangerous offender whose behavior indicated little or no regard for human life and no hesitation about committing a crime in which the risk to human life was high, and (3) the evidence presumably sufficed when defendant did not include the presentence report in the appellate record. State v. Chambers, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 241 (Tenn. Crim. App. Apr. 15, 2019).

Defendant failed to demonstrate that the trial court abused its discretion in imposing partial consecutive sentences because the judgment and mandate was limited and did not provide for the consideration of additional evidence. State v. Henderson, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 254 (Tenn. Crim. App. Apr. 18, 2019).

Trial court followed the mandate of the court of criminal appeals and committed no error in imposing consecutive sentences because it made additional findings and stated facts to support such findings; the trial court found that the circumstances surrounding the commission of the offense were aggravated and that confinement for an extended period of time was necessary to protect society, and it determined that the aggregate length of the sentences reasonably relates to the offense. State v. Henderson, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 254 (Tenn. Crim. App. Apr. 18, 2019).

Trial court did not err by imposing consecutive sentences because the presentence report showed that defendant had nine prior convictions, he received six additional charges after being charged in the instant case, he chose to make a living by shoplifting and selling the stolen merchandise, and he was on probation at the time of the instant offenses. State v. Talley, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 261 (Tenn. Crim. App. Apr. 24, 2019).

Trial court properly imposed consecutive sentences to each other and to a prior sentence for defendant's guilty-pleaded convictions of aggravated burglary and theft of property valued at $60,000 or more but less than $250,000 because defendant's presentence investigation report showed a lengthy criminal history of at least 30 convictions spanning most of the defendant's adult life, and the trial court's finding of an extensive criminal history, which was amply supported by the record, was a sufficient basis for the imposition of consecutive sentences. State v. Cuevas, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 320 (Tenn. Crim. App. May 20, 2019).

Trial court did not err in imposing partial consecutive sentences based on defendant's extensive criminal history because he was convicted of 14 felonies, including stealing approximately seven or eight vehicles and several ATVs, and breaking into a house; the trial court also discussed defendant's other charges and convictions, including his convictions for vandalism, obstruction of justice, and driving under the influence; and the trial court noted that defendant admitted to smoking marijuana daily for several years and using methamphetamine for several months prior to his arrest. State v. Canter, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 344 (Tenn. Crim. App. June 10, 2019).

Consecutive service of aggravated rape sentences was amply merited because defendant had an extensive criminal history, which the trial court correctly found in the context of the length of his sentences; defendant's nine felony convictions in the case would independently qualify as an extensive criminal history, and defendant had previous convictions in three states. State v. Atha, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 588 (Tenn. Crim. App. Sept. 20, 2019), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 41 (Tenn. Jan. 15, 2020).

Trial court did not abuse its discretion in ordering defendant to serve sentences for second degree murder and attempted second degree murder consecutively, based upon the dangerous offender classification, because the court provided adequate reasons for imposing consecutive sentencing in that the circumstances surrounding the commission of the offenses were particularly aggravated, the aggregate length of the sentences reasonably related to the offenses, and consecutive sentencing was necessary to protect the public. State v. McLeod, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 605 (Tenn. Crim. App. Sept. 26, 2019).

In an action for aggravated assault and domestic assault, where defendant hit the victim with, inter alia, a stick, the imposition of partial consecutive sentencing was not erroneous but was based on the trial court's finding that defendant had an extensive criminal history and was a dangerous offender whose behavior indicated little or no regard for human life. State v. Baker, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 627 (Tenn. Crim. App. Oct. 4, 2019).

Trial court properly exercised its discretion in ordering defendant's sentences to be served consecutively because in addition to the three felony convictions in the instant case, defendant had 11 prior felony convictions and several misdemeanor convictions. His convictions spanned 27 years, most of his convictions relate to his selling of various controlled substances, and he was not employed at the time of his arrest. State v. Jackson, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 669 (Tenn. Crim. App. Oct. 21, 2019).

In a case in which defendant was convicted of two counts of attempted aggravated robbery and felony murder, the trial court did not err in imposing consecutive sentencing because defendant's life plus 10-year aggregate sentence involved convictions with separate victims and were for violent offenses; defendant was unemployed, had a substantial criminal history, was a gang member, and testified at trial that he intentionally targeted victims whom he believed were vulnerable to get easy money; and defendant's primary complaint that there would be no need to protect society from him at age 86, when he was eligible for parole, was a consequence of his automatic life sentence and not the trial court's order of consecutive sentencing. State v. Ware, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 710 (Tenn. Crim. App. Nov. 7, 2019).

Trial court did not abuse its discretion by imposing partial consecutive sentencing because defendant had a criminal history dating back to 1994, which included 12 felonies. There was nothing in the record showing that defendant sought treatment for his alleged drug addiction or that all of his crimes were committed as a result of his drug addiction. State v. Williams, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 720 (Tenn. Crim. App. Nov. 12, 2019).

Trial court did not err by imposing consecutive sentences based on its finding that defendant was a dangerous offender because the evidence showed that she took three lives in a brutal fashion by riddling the victim's car with six bullets, when run consecutively her total effective sentence was only 30 years, and the sentence was necessary to protect the public from defendant. State v. Isaac, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 733 (Tenn. Crim. App. Nov. 13, 2019).

Defendant did not provide a legal basis to contest the trial court's imposition of consecutive sentencing, and upon review of the record, none were found. State v. Wooten, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 12 (Tenn. Crim. App. Jan. 13, 2020).

Trial court did not abuse its discretion by ordering consecutive service of defendant's sentences because he had an extensive criminal record given his 41 felony convictions in the present case, he had two prior convictions for sexual offenses against different minor victims, and the instant offenses arose from defendant's committing years-long sexual abuse of his stepson, over whom he enjoyed a position of trust and almost unfettered access. State v. Williams, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 15 (Tenn. Crim. App. Jan. 14, 2020).

It was no error to impose partially consecutive sentences because, while the duration of events was not long, the scope of defendant's criminal acts and residual mental and emotional damage to the victim, including depression, self-harm, and suicidal ideation, warranted such sentencing. State v. Abdullah, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 26 (Tenn. Crim. App. Jan. 21, 2020).

Record amply supported the application of the statute to the Defendant's sentences for voluntary manslaughter and aggravated assault convictions; the trial court noted that the 25-year-old defendant had a criminal history of multiple violent offenses, mostly committed with firearms, and he committed the offenses in this case while on release into the community. State v. Wright, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 45 (Tenn. Crim. App. Jan. 29, 2020).

Trial court properly exercised its discretion in ordering defendant's sentences for theft and money laundering to be served consecutively as she was a professional criminal and used her position as a pastor to steal large sums of money from the funds provided by the state department for human services; while the trial court failed to make the requisite findings necessary to support the imposition of consecutive sentences, only one consecutive sentencing factor needed to exist, which did here. State v. Jives-Nealy, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 156 (Tenn. Crim. App. Feb. 28, 2020).

Trial court did not err by imposing consecutive sentences because defendant was on probation at the time the offenses were committed. State v. Odom, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 157 (Tenn. Crim. App. Feb. 28, 2020).

Although the trial court found that defendant was a dangerous offender and a professional criminal, the trial court's decision to impose consecutive sentencing was justified solely by its finding that defendant had an extensive criminal history. State v. Hurt, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 213 (Tenn. Crim. App. Apr. 1, 2020).

Trial court did not abuse its discretion in ordering defendant's sentences to be run consecutively because defendant was convicted of two or more statutory offenses involving sexual abuse of a minor, specifically rape of a child; defendant was the victim's father figure; and the victim had contemplated suicide. State v. Brady, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 232 (Tenn. Crim. App. Apr. 13, 2020).

Where the trial court made extensive findings and considered the principles of sentencing and found the aggregate length of the sentence reasonably related to the facts and circumstances, it did not abuse its discretion in imposing partial consecutive sentences. State v. Fleming, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 250 (Tenn. Crim. App. Apr. 15, 2020).

For defendant's conviction for second-degree murder and other crimes, while the trial court did not include the word severity in its sentencing analysis, it was clear the trial court properly considered the case law factors and did not abuse its discretion in ordering consecutive terms. State v. Campbell, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 294 (Tenn. Crim. App. Apr. 24, 2020).

Although the trial court failed to specify which of the criteria it was relying upon to impose consecutive sentencing for defendant's misdemeanor convictions, the trial court's findings substantiated the application of the criterion that defendant was an offender whose record of criminal activity was extensive as he had prior misdemeanor convictions for obscene display, masturbation in public, possession of drugs, breaking and entering, and multiple assaults; and defendant had often violated the terms of previously-imposed probationary sentences. State v. Lambert, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 304 (Tenn. Crim. App. Apr. 28, 2020).

Trial court did not abuse its discretion by imposing consecutive sentences because defendant did not challenge the trial court's finding that he was a professional criminal, defendant acknowledged he had a history of selling drugs, and, given defendant's numerous prior convictions, the trial court did not abuse its discretion by finding that he had an extensive criminal history. State v. Jones, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 313 (Tenn. Crim. App. Apr. 30, 2020).

Trial court properly ordered consecutive sentencing because the record supported its conclusion that the nature and scope of the sexual contact warranted consecutive sentencing; defendant did not contest the victim's version of events and admitted sending several photographs of his penis to the victim, and the victim testified that as a result of the abuse, she developed depression, anxiety, and insomnia, began losing her hair due to the stress, and stopped eating. State v. Patton, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 322 (Tenn. Crim. App. May 7, 2020).

Trial court properly ordered consecutive sentencing because the record supported its conclusion that the offenses occurred over an extended period of time; all of the offenses occurred more than one year, and defendant's contact with the victim was not limited to a few incidents over a brief period of time, but they occurred repeatedly over a span of at least months. State v. Patton, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 322 (Tenn. Crim. App. May 7, 2020).

Trial court did not err by imposing consecutive sentences because defendant was the victim's step-uncle, he committed the offenses while the victim's sibling slept nearby, and a forensic interviewer's testimony was sufficient to support a finding that the victim's sexual activity toward her stepbrother was “sexually reactive behavior” attributable to the abuse. State v. Wethington, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 361 (Tenn. Crim. App. May 21, 2020).

Defendant committed the present offenses when he was serving a sentence on probation and the trial court did not abuse its discretion by ordering consecutive service of defendant's effective sentence in the present case with the six-year sentence he was serving on probation when the present offenses occurred; the trial court considered the appropriate principles of sentencing in making its sentencing determinations. State v. Alexander, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 392 (Tenn. Crim. App. June 5, 2020).

Trial court did not err by imposing consecutive sentences based on its finding that defendant was convicted of two or more statutory offenses involving sexual abuse of a minor and it further considered the relationship between defendant and the victim, the time span of defendant's undetected sexual activity, the nature and scope of the sexual acts, and the extent of the residual physical and mental damage to the victim. State v. Miller, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 440 (Tenn. Crim. App. June 17, 2020).

Trial court did not abuse its discretion by imposing consecutive sentences because defendant had seven prior felony and ten prior misdemeanor convictions, and in the pre-sentence report, he admitted to long-term use of crack cocaine and marijuana, which constituted criminal behavior. State v. Savely, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 443 (Tenn. Crim. App. June 25, 2020).

In a vehicular homicide case, the trial court did not err in imposing consecutive service of her sentences because her criminal history indicated a pattern of behavior related to controlled substances and driving; and she was a dangerous offender based on her use of multiple controlled substances and her decision to drive a motor vehicle when impaired. State v. Pinhal, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 477 (Tenn. Crim. App. July 14, 2020).

While defendant had a relatively minor criminal history prior to the instant offense, her prior DUI conviction was significant because it too involved prescription drug use which resulted in a single car crash and that, combined with the four Class D felony offenses of conviction of a similar nature and her choice to drive after having been in an accident while using the same prescription drug, satisfied the statutory criteria for consecutive sentencing. State v. Scates, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 533 (Tenn. Crim. App. July 30, 2020).

Trial court did not err by ordering that defendant's sentences be served consecutively where the trial court determined that defendant had little to no regard for the lives of the victims, defendant was a dangerous offender, an extended sentence was necessary to protect the public from further criminal conduct by defendant, and the sentences reasonably related to the severity of the offenses. State v. Jones, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 575 (Tenn. Crim. App. Aug. 25, 2020).

Trial court did not abuse its discretion in imposing partial consecutive service of defendant's sentence because defendant was convicted of 36 felonies, and was convicted of two or more offenses involving the sexual abuse of a minor; he was the victim's father figure from a young age; he used his position of trust to accomplish the abuse through control and manipulation; the abuse involved multiple types of sexual penetration; and extreme damage to the victim's mental and emotional health resulted. State v. Mason, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 582 (Tenn. Crim. App. Aug. 25, 2020).

Imposition of consecutive sentences was supported by the trial court's determination that defendant was at least twenty-one years older than the victim, the victim needed a father figure and tried to find one in defendant, who abused her, and the victim suffered severe residual physical and mental damage which required treatment and medication. State v. Gambrell, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 595 (Tenn. Crim. App. Sept. 2, 2020).

5. —Improper.

The trial court abused its discretion in ordering the appellant to serve his sentences consecutively where: (1) the circumstances surrounding the commission of the offense were not aggravated; (2) based upon the defendant's age, the absence of a criminal record, his good school record, and his gainful employment when the offense was committed, consecutive sentencing was not necessary to protect society; (3) the defendant possessed the characteristics necessary to rehabilitate himself while serving the life sentence; and (4) an effective sentence of life plus five years was adequate to punish the defendant for the offenses. State v. Woods, 814 S.W.2d 378, 1991 Tenn. Crim. App. LEXIS 167 (Tenn. Crim. App. 1991).

Trial court abused its discretion in ordering consecutive sentences for vehicular homicide and aggravated assault since consecutive sentences were not required to protect society from the defendant's unwillingness to lead a productive life and his resort to criminal activity in furtherance of his antisocietal lifestyle. State v. Braden, 867 S.W.2d 750, 1993 Tenn. Crim. App. LEXIS 355 (Tenn. Crim. App. 1993), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 387 (Tenn. Nov. 1, 1993).

In sentencing upon conviction of two counts of aggravated sexual battery, imposition of consecutive sentences was improper where there was no support for the conclusion that defendant was a dangerous offender and where there was no significant time span of undetected sexual activity, the nature of the criminal conduct was non-aggravated, and the extent of residual damage to the victim caused by the conduct was not sufficiently shown. State v. Hayes, 899 S.W.2d 175, 1995 Tenn. Crim. App. LEXIS 25 (Tenn. Crim. App. 1995).

The trial court erred in sentencing defendant, convicted on four counts of bribing a public servant, to consecutive terms totaling 18 years based on its finding he was a professional criminal; the nonviolent nature of the offenses, the circumstances connecting the offenses to each other, and defendant's potential for rehabilitation indicated that a lesser sentence would sufficiently protect the public, reasonably relate to the severity of the offenses involved, and satisfy the interests of justice. State v. Desirey, 909 S.W.2d 20, 1995 Tenn. Crim. App. LEXIS 304 (Tenn. Crim. App. 1995).

In a child sexual abuse case, although consecutive sentencing was permissible under T.C.A. § 40-35-115(b)(5), defendant's twelve-year consecutive sentences, for a total of ninety-six years, were not reasonably related to the severity of his offenses; rather, the circumstances of the case indicated that a combination of concurrent and consecutive sentences was appropriate in relation to the severity of the offenses and was the least severe measures necessary to deter defendant's future criminal conduct, to protect society, and to deter others who were similarly situated and likely to commit similar offenses. State v. Schiefelbein, 230 S.W.3d 88, 2007 Tenn. Crim. App. LEXIS 138 (Tenn. Crim. App. Feb. 8, 2007), modified, 230 S.W.3d 88, 2007 Tenn. Crim. App. LEXIS 213 (Tenn. Crim. App. Mar. 7, 2007).

Trial court ordered the sentence for misdemeanor escape to run consecutively under T.C.A. § 40-35-115 to count one but concurrently to counts two and three; the case was remanded for correction of the judgment sheets to reflect that the sentence for escape had to be served consecutively to the sentences for counts two and three under T.C.A. § 39-16-605(d). State v. Moore, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 982 (Tenn. Crim. App. Nov. 28, 2017).

Record did not support the imposition of consecutive sentences because defendant's several encounters with the criminal justice system as a juvenile were for relatively minor offenses, the trial court did not find that defendant was a professional criminal, and the trial court failed to find that consecutive sentences were necessary to protect the public from further criminal conduct. State v. Wise, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 581 (Tenn. Crim. App. Sept. 18, 2019).

Trial court's consecutive sentencing decision was not presumptively reasonable because the trial court did not make the required findings. State v. Atha, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 588 (Tenn. Crim. App. Sept. 20, 2019), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 41 (Tenn. Jan. 15, 2020).

6. —Enhanced Sentences.

When confronted with multiple convictions under facts and circumstances which could justify a greatly enhanced sentence for each offense when such offense is considered separately, but which also could justify or call for the imposition of consecutive sentences, the trial court necessarily has authority to consider whether or not the effective, total sentence will meet the principles and purposes of the Sentencing Reform Act when assessing what weight applies to those factors which affect both the length of each sentence for the involved offenses and the consecutive sentencing decision. State v. Marshall, 888 S.W.2d 786, 1994 Tenn. Crim. App. LEXIS 571 (Tenn. Crim. App. 1994).

7. —Probation.

Imposition of consecutive probationary periods in conjunction with concurrent incarceration periods was impermissible under T.C.A. § 40-35-115; probation, if imposed, must run in the same manner as the periods of incarceration. State v. Connors, 924 S.W.2d 362, 1996 Tenn. Crim. App. LEXIS 21 (Tenn. Crim. App. 1996), overruled, State v. Troutman, 979 S.W.2d 271, 1998 Tenn. LEXIS 665 (Tenn. 1998), overruled in part, State v. Troutman, 979 S.W.2d 271, 1998 Tenn. LEXIS 665 (Tenn. 1998).

The general assembly did not intend a community corrections sentence and a probation sentence to be equivalents for purposes of consecutive sentencing under T.C.A. § 40-35-115(b)(6). State v. Pettus, 986 S.W.2d 540, 1999 Tenn. LEXIS 44 (Tenn. 1999).

8. —Fines.

Concurrent or consecutive sentences as used in T.C.A. § 40-35-115 refer to terms of imprisonment, not to fines; thus, the imposition of concurrent sentences did not imply that fines were to be paid concurrently, or non-cumulatively, as well. State v. Woodcock, 922 S.W.2d 904, 1995 Tenn. Crim. App. LEXIS 982 (Tenn. Crim. App. 1995).

9. Consideration of Expunged Conviction.

10. Discretion of Court.

Whether sentences are to be served concurrently or consecutively is a matter addressed to the sound discretion of the trial court; therefore, where the trial court ordered three sentences to run concurrently after giving due consideration and proper weight to the factors and principles set out under the sentencing law, the appellate court could not order all four sentences in the case to run consecutively even if it would have preferred that result. State v. Hastings, 25 S.W.3d 178, 1999 Tenn. Crim. App. LEXIS 1312 (Tenn. Crim. App. 1999).

11. Plain error.

12. Lack of Appropriate Findings.

Where a trial court fails to provide adequate reasons for imposing consecutive sentences, an appellate court should neither presume that consecutive sentences are reasonable nor defer to the trial court's exercise of its discretionary authority; an appellate court has two options: conduct a de novo review to determine whether there is an adequate basis for imposing consecutive sentences, or remand for the trial court to consider the factors in determining whether to impose consecutive sentences. State v. Pollard, 432 S.W.3d 851, 2013 Tenn. LEXIS 1011 (Tenn. Dec. 20, 2013).

Because the dangerous offender classification is the most subjective to apply, the record must also establish the aggregate sentence reasonably relates to the severity of the offenses and that the total sentence is necessary for the protection of the public from further crimes by the defendant; thus, when trial courts fail to include the two additional findings before classifying a defendant as a dangerous offender, they fail to adequately provide reasons on the record to support the sentences. State v. Pollard, 432 S.W.3d 851, 2013 Tenn. LEXIS 1011 (Tenn. Dec. 20, 2013).

Trial court erred when it failed to make findings to support consecutive sentences because it was unclear from the record the basis for the imposition of consecutive sentences; upon remand, the trial court also had to reexamine the eligibility date for rehabilitative programs, as the maximum for misdemeanor sentences was seventy-five percent. State v. Layhew, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 19 (Tenn. Crim. App. Jan. 13, 2017).

Although the trial court based its decision to order consecutive sentencing on findings that defendant had an extensive history of criminal activity and that defendant was a dangerous offender, the trial court failed to make the requisite dangerous offender findings that the consecutive sentences were reasonably related to the severity of the offenses committed and were necessary to protect the public from further criminal conduct; and defendant's criminal history did not justify the extensive criminal history finding. Because the record was inadequate to conduct a de novo review, the imposition of consecutive sentencing was vacated and the case was remanded to the trial court for the consideration of the dangerous offender factors. State v. Hardy, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 615 (Tenn. Crim. App. July 13, 2017).

13. Consideration of Factors.

Imposition of 14 ten-day sentences, each running consecutive to the others, for an effective sentence of 140 days in jail was excessive, and the sentences were reduced, where the record suggested that the trial court did not consider the statutory criteria of T.C.A. § 40-35-115 when determining whether defendant's multiple sentences should be served concurrently or consecutively, and the only statutory factor that applied to defendant was that he was sentenced for criminal contempt; even though defendant's actions were serious, withdraws from an equity line of credit and failing to pay real estate taxes and his wife's pendente lite support in violation of a marital dissolution agreement, they did not justify the imposition of the maximum sentence of 10 days for each count. Defendant's sentences for 12 of the counts were reduced to four days each, to run consecutive to each other, and the sentences for the two remaining counts were reduced to one day each, to run concurrent to each other but consecutive to the other 12 counts for an effective sentence of 49 days. Simpkins v. Simpkins, 374 S.W.3d 413, 2012 Tenn. App. LEXIS 131 (Tenn. Ct. App. Feb. 27, 2012).

14. Proper Sentencing Considerations.

Trial court properly imposed consecutive sentences for defendant's convictions for DUI, violation of the implied consent law, and violation of a habitual motor vehicle offender restriction because his criminal record was extensive, the trial court properly addressed the factors in applying the dangerous offender criteria, the record supported that the sentence imposed was necessary to protect the public and reasonably relates to the severity of defendant's fifth DUI offense, and the sentence was within the appropriate range and was otherwise in compliance with the purposes and principles of the statute. State v. Green, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 179 (Tenn. Crim. App. Mar. 20, 2019), review denied and ordered not published, — S.W.3d —, 2019 Tenn. LEXIS 368 (Tenn. Aug. 15, 2019).

15. Effective Assistance of Counsel.

16. Review.

When a trial court places findings on the record to support its sentencing decision the applicable standard of appellate review for a challenge to the imposition of consecutive sentences is abuse of discretion with a presumption of reasonableness. State v. Pollard, 432 S.W.3d 851, 2013 Tenn. LEXIS 1011 (Tenn. Dec. 20, 2013).

Appropriate standard of appellate review for consecutive sentencing is abuse of discretion accompanied by a presumption of reasonableness because the Tennessee Criminal Sentencing Reform Act of 1989 contemplates the same standard of appellate review for the determination of the length, range, or the manner of service of a sentence as well as the imposition of consecutive sentences. State v. Pollard, 432 S.W.3d 851, 2013 Tenn. LEXIS 1011 (Tenn. Dec. 20, 2013).

Because defendant did not include the transcript from the sentencing hearing with the record, the court of criminal appeals was unable to determine whether the trial court properly provided reasons on the record for imposing consecutive sentences; therefore, defendant waived his challenge of the trial court's imposition of consecutive sentences. State v. Pittman, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 394 (Tenn. Crim. App. May 16, 2017).

40-35-116. Revocation of bail on conviction.

If a defendant is convicted of first degree murder, a Class A felony, rape, aggravated robbery, aggravated sexual battery, aggravated kidnapping, aggravated child abuse, statutory rape by an authority figure or a violation of § 39-17-417(b) or (i), the judge shall revoke bail immediately, notwithstanding sentencing hearings, motions for a new trial and related post-guilt determination hearings.
If a defendant is convicted of any other felony offense, the judge may revoke bail immediately, notwithstanding sentencing hearing, motion for a new trial and related post-guilt determination hearings.
If the court revokes the defendant's bail, the defendant shall be housed in a local jail pending the sentencing determination. Following sentencing, the defendant shall be transferred to the custody of the authority to whom the defendant was sentenced.
If a defendant is convicted of first degree murder, the judge may house the defendant in a local jail or may transfer custody to the department of correction pending further proceedings in the trial court.

Acts 1989, ch. 591, § 6; 1990, ch. 980, § 22; 2007, ch. 108, § 1.

Sentencing Commission Comments.

Under prior law, revocation of bail following conviction was related to probation eligibility. Subsection (a) mandates revocation of bail based on the type of conviction offense.

Revocation of bail for other felony offenses is discretionary under subsection (b). The standards for revocation of bail are set forth in § 40-26-102.

Bail in misdemeanor cases is addressed in § 40-26-104.

Compiler's Notes. The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Cross-References. Classification of offenses, § 40-35-110.

Immediate revocation of bail for certain offenses, § 40-11-113.

Penalty for Class A felony, § 40-35-111.

Sentence range, § 40-35-112.

40-35-117. Applicability of chapter.

All persons who commit crimes on or after November 1, 1989, shall be tried and sentenced under this chapter.
Unless prohibited by the United States or Tennessee constitutions, any person sentenced on or after November 1, 1989, for an offense committed between July 1, 1982, and November 1, 1989, shall be sentenced under this chapter.
For all persons who committed crimes prior to July 1, 1982, prior law shall apply and remain in full force and effect in every respect, including, but not limited to, sentencing, parole and probation.

Acts 1989, ch. 591, § 6.

Sentencing Commission Comments.

This section provides that all persons who commit crimes on or after November 1, 1989, must be tried and sentenced under the provisions of this chapter.

Subsection (b) provides that persons sentenced on or after November 1, 1989, for an offense committed between July 1, 1982 and November 1, 1989, shall be sentenced under the provisions of this chapter. Felony offenses in existence prior to November 1, 1989, are classified in § 40-35-118. As noted in the comments to that section, the classification of these prior offenses serves two purposes. First, it determines the classification of a felony when a pre-November 1, 1989-conviction is used for enhancement. Second, except for first degree murder, it determines the appropriate classification for sentencing purposes of offenses which occurred prior to November 1, 1989, when the defendant is sentenced after that date. For example, a defendant committing aggravated arson under the provisions of former § 39-3-201 (repealed) is sentenced after November 1, 1989, as a Class A felon with all of the attributes of that classification as set forth under the new chapter. Some offenses which existed prior to November 1, 1989, have been consolidated into new provisions for which the elements are different. Consequently, the classification of prior offenses, with a corresponding felony classification, enables the punishment to be readily ascertained for those offenses which occurred prior to November 1, 1989. The offenses contained in titles other than title 39 have been amended directly by altering the punishment with specified felony or misdemeanor classifications. Since the elements of those offenses have not been changed, the punishment for those offenses can be ascertained by referring directly to the particular statute itself.

Subsection (c) provides that crimes committed prior to July 1, 1982 must be tried and sentenced under the law as it existed prior to that date. Offenses that occurred prior to July 1, 1982, were treated under the very different indeterminate jury sentencing structure. Due to the radical change in sentencing procedures, the commission believed that it was appropriate to retain prior law as to those few cases left in that category.

Because of the ex post facto provisions of the Tennessee and United States constitutions, a defendant sentenced after November 1, 1989, for an offense committed between July 1, 1982, and November 1, 1989, may not receive a greater punishment than he would have received under the prior law.

Compiler's Notes. The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Cross-References. Eligibility for parole, § 40-28-115.

Repealed or amended laws, application in prosecution for offense, § 39-11-112.

Sentencing provisions applicable to persons committing crimes prior to July 1, 1982, title 40, ch. 20.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 31.51, 32.80, 32.122.

NOTES TO DECISIONS

1. Applicability.

The provisions of the former Criminal Sentencing Reform Act of 1982, and only those provisions, were applicable to determining defendant's sentence, even though the Criminal Sentencing Reform Act of 1989 took effect while defendant's case was on appeal from the trial court's judgment of conviction and the original sentencing order. State v. Polk, 845 S.W.2d 171, 1992 Tenn. LEXIS 704 (Tenn. 1992).

Title 40, ch. 35 applies only to those offenders who are sentenced after its 1989 effective date; thus, it did not apply to the petitioner's case since he was sentenced in 1983. State ex rel. Stewart v. McWherter, 857 S.W.2d 875, 1992 Tenn. Crim. App. LEXIS 877 (Tenn. Crim. App. 1992).

By limiting the application of title 40, ch. 35 to persons who were not previously sentenced, the legislature devised a partial solution to prison overcrowding while avoiding the reopening of cases in which persons had been validly sentenced previously; thus, the petitioner's right to equal protection under the law was not violated by his continued incarceration under his 1983 sentences. State ex rel. Stewart v. McWherter, 857 S.W.2d 875, 1992 Tenn. Crim. App. LEXIS 877 (Tenn. Crim. App. 1992).

T.C.A. § 40-35-117 does not govern the issue whether changes in capital sentencing by the 1989 amendments, as contained in § 39-13-204, apply to persons who committed offenses prior to November 1, 1989, rather the controlling provision is T.C.A. § 39-11-112; thus, since the amendments did not provide for a lesser penalty, but merely changed the procedures to be followed at the sentencing hearing, where the offense occurred prior to the amendments, a jury instruction under the pre-1989 law was appropriate. State v. Smith, 893 S.W.2d 908, 1994 Tenn. LEXIS 278 (Tenn. 1994), rehearing denied, 893 S.W.2d 908, 1995 Tenn. LEXIS 48 (Tenn. 1995), cert. denied, Smith v. Tennessee, 516 U.S. 829, 116 S. Ct. 99, 133 L. Ed. 2d 53, 1995 U.S. LEXIS 5601 (1995).

Where the record did not show that the trial court followed the mandate in State v. Pearson, 858 S.W.2d 879, 1993 Tenn. LEXIS 240 (Tenn. 1993), i.e., to consider the sentencing statutes in effect before and after November 1, 1989, in sentencing a defendant after that date for offenses committed prior thereto, the case was remanded for resentencing. Manning v. State, 883 S.W.2d 635, 1994 Tenn. Crim. App. LEXIS 69 (Tenn. Crim. App. 1994).

Where defendant had been given a life sentence under the former 1982 Sentencing Act and thereafter was granted postconviction relief from prior convictions that were considered in finding him a persistent offender, the trial court did not err in resentencing him under the 1982 Act instead of the more favorable provisions of the 1989 Sentencing Act, since the resentencing involved only partial modification of the original sentence and, as such, constituted a continuation of the original procedure subject to the 1982 Act. Sills v. State, 884 S.W.2d 139, 1994 Tenn. Crim. App. LEXIS 228 (Tenn. Crim. App. 1994), appeal denied, — S.W.2d —, 1994 Tenn. LEXIS 267 (Tenn. Aug. 29, 1994).

The fact that the General Assembly opted to provide that people accused of committing an offense prior to July 1, 1982, would be tried and sentenced pursuant to the law in effect when the offense occurred did not violate defendant's federal or state constitutional rights. State v. Melvin, 913 S.W.2d 195, 1995 Tenn. Crim. App. LEXIS 502 (Tenn. Crim. App. 1995).

Defendant's right to due process was not violated by the imposition of a sentence based upon the law and punishment that existed when he committed the offense. State v. Turner, 919 S.W.2d 346, 1995 Tenn. Crim. App. LEXIS 779 (Tenn. Crim. App. 1995).

Title 40, ch. 35 was clearly applicable where offenses with which defendant was charged occurred in January 1989 and were followed by sentencing in 1990. McConnell v. State, 12 S.W.3d 795, 2000 Tenn. LEXIS 65 (Tenn. 2000).

The 1989 Criminal Sentencing Reform Act, T.C.A. § 40-35-101 et seq., applies to plea bargain agreements. McConnell v. State, 12 S.W.3d 795, 2000 Tenn. LEXIS 65 (Tenn. 2000).

In order to comply with the ex post facto prohibitions of the United States and Tennessee constitutions, pursuant to T.C.A. § 40-35-117(b), the trial court judges imposing sentences after the effective date of the 1989 Sentencing Reform Act, T.C.A. § 40-35-101 et seq., for crimes committed prior thereto, must calculate the appropriate sentence under both the 1982 statute and the 1989 statute, in their entirety, and then impose the lesser sentence of the two; because the trial court did not calculate the two sentences with regard to one of the aggravated sexual battery convictions as required, the appellate court remanded the case to the trial court for resentencing. State v. Jordan, 116 S.W.3d 8, 2003 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. 2003).

Circuit court properly denied defendant's petition for sentencing relief because the allegation put forth by defendant did not render his sentences illegal, defendant failed to present a colorable claim, defendant filed his motion well beyond the one year statute of limitations, and the Drug-Free School Zone Act did not apply to facilitation, did not fall within the statutory purview of a motion to reopen a post-conviction petition, and did not apply to facilitation or trigger due process protections. Osborne v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 330 (Tenn. Crim. App. May 11, 2020).

2. Date of Sentencing.

Defendant was not entitled to be sentenced under this chapter even though his Tenn. R. Crim. P. 35 motion was pending on November 1, 1989, the effective date of this chapter. The action of the trial court on a Tenn. R. Crim. P. 35 motion related back to the date of sentencing, in this case, July 7, 1989, so as to require any modification to comply with the law existing as of that date. State v. Bilbrey, 816 S.W.2d 71, 1991 Tenn. Crim. App. LEXIS 555 (Tenn. Crim. App. 1991), superseded by statute as stated in, State v. Grissom, 956 S.W.2d 514, 1997 Tenn. Crim. App. LEXIS 676 (Tenn. Crim. App. 1997).

T.C.A. § 39-11-112, and its forerunner, § 39-1-105 [repealed], did not apply to a defendant who was sentenced in 1983 so as to require him to be resentenced under this chapter. State ex rel. Stewart v. McWherter, 857 S.W.2d 875, 1992 Tenn. Crim. App. LEXIS 877 (Tenn. Crim. App. 1992).

3. Date of Commission.

T.C.A. § 40-35-118 determines the classification of felony offenses in title 39 committed between July 1, 1982 and November 1, 1989. Under that statute grand larceny is a Class D felony and petit larceny is a Class E felony. On the other hand, for offenses committed prior to July 1, 1982, prior law applies “and remain[s] in full force and effect in every respect, including, but not limited to, sentencing, parole and probation,” under T.C.A. § 40-35-117(c). State v. Wright, 836 S.W.2d 130, 1992 Tenn. Crim. App. LEXIS 143 (Tenn. Crim. App. 1992), appeal denied, 1992 Tenn. LEXIS 378 (Tenn. May 26, 1992).

A trial court imposing a sentence after the 1989 effective date of this chapter for a burglary committed before that date must calculate the appropriate sentence under both the 1982 sentencing statute and this chapter (which added the “bodily injury” enhancement factor to the sentencing formula for felonies) and then impose the lesser sentence of the two statutes. State v. Pearson, 858 S.W.2d 879, 1993 Tenn. LEXIS 240 (Tenn. 1993); State v. Dunn, 901 S.W.2d 398, 1995 Tenn. Crim. App. LEXIS 296 (Tenn. Crim. App. 1995).

4. Sentencing Hearing.

A sentencing hearing which occurs upon remand is not a continuation of the first sentencing proceeding and, therefore, a remanded sentencing hearing after the effective date of the Criminal Sentencing Reform Act of 1989, T.C.A. § 40-35-101 et seq., is to be controlled by this chapter. State v. Davis, 825 S.W.2d 109, 1991 Tenn. Crim. App. LEXIS 728 (Tenn. Crim. App. 1991), appeal denied, — S.W.2d —, 1992 Tenn. LEXIS 125 (Tenn. Jan. 27, 1992).

5. Parole Eligibility Review Board.

Parole eligibility review board, which was established under T.C.A. §§ 40-35-601 et seq. [obsolete] to review the sentences of those convicted as habitual criminals before November 1, 1989, went out of existence on July 1, 1993, its work presumably completed. Wilson v. State, 980 S.W.2d 196, 1998 Tenn. App. LEXIS 36 (Tenn. Ct. App. 1998), rehearing denied, 980 S.W.2d 196, 1998 Tenn. App. LEXIS 195 (Tenn. Ct. App. 1998).

The decision to amend or not to amend a prisoner's parole eligibility date was discretionary with the parole eligibility review board, was not merely a ministerial duty and there was no constitutional violation in the individualized consideration of each prisoner's record to determine which of them might be appropriate candidates for early release. Wilson v. State, 980 S.W.2d 196, 1998 Tenn. App. LEXIS 36 (Tenn. Ct. App. 1998), rehearing denied, 980 S.W.2d 196, 1998 Tenn. App. LEXIS 195 (Tenn. Ct. App. 1998).

Notwithstanding T.C.A. § 40-35-117(c), application of a newly amended parole statute, T.C.A. § 40-28-105(d)(4), to deny parole to an inmate serving a life sentence for murder did not violate ex post facto concerns. Miller v. Tenn. Bd. of Prob. & Paroles, 119 S.W.3d 696, 2003 Tenn. App. LEXIS 335 (Tenn. Ct. App. 2003).

40-35-118. Classification of repealed pre-1989 offenses [For list of classification for current offenses, see the compiler's note in § 40-35-110].

For the purpose of determining the classification of felony offenses in title 39 committed prior to November 1, 1989, the following classifications shall be used:

Code Section Offense Class 39-3703 First degree criminal sexual conduct A 39-1-604, 606 Conspiracy to take a human life A 39-2-103 Assault with intent to commit first degree murder A 39-2-202 First degree murder A 39-2-212 Second degree murder A 39-2-301(c) Aggravated kidnapping A 39-2-305 Prisoners holding hostages A 39-2-304 Unlawful representation to obtain ransom A 39-2-603 Aggravated rape A 39-2-640 Abduction of female from parents or guardian for purposes of prostitution A 39-3-201 Aggravated arson A 39-3-701 Willful injury by explosives A 39-5-803 Treason A 39-6-109 Adulteration of foods, liquors or pharmaceuticals (death occurs) A 39-6-204 Obstruction or damage to railroad tracks resulting in death A 39-6-619(a) Killing an officer while arresting a person on a charge of unlawful gaming A 39-6-915(a) Furnishing intoxicating liquor which results in death (second degree murder) A 39-3704 Second degree criminal sexual conduct B 39-1-607 Conspiracy to sabotage a nuclear production facility B 39-1-609 Conspiracy to commit illegal act capable of destroying human life by possession, use or transportation of explosives B 39-1-610 Conspiracy by convicts to kill B 39-2-301(e) Assault with intent to commit or attempt to commit aggravated kidnapping B 39-2-303 Kidnapping child under 16 B 39-2-501 Robbery by use of a deadly weapon B 39-2-502 Bank robbery B 39-2-604 Rape B 39-2-606 Aggravated sexual battery B 39-3-210 Causing injury to person by use of fire bomb B 39-4-422 Aggravated child abuse B 39-5-712 Rebellion by convict with intent to kill or escape B 39-6-109 Adulteration of food product or drug (injury) B 39-6-203 Obstruction or damage to railroad tracks resulting in injury B 39-6-417(a)(1)(A) Manufacture, delivery, sale or possession with intent to do same of Schedule I controlled substance B 39-6-417(c) Manufacture, delivery or sale of certain amount of controlled substances B 39-6-417(d) Habitual drug offender B 39-6-418 Person over 18 distributing Schedule I controlled substance to person under 18 who is at least 3 years such person's junior B 39-6-418 Person over 18 distributing Schedule II controlled substance to person under 18 who is at least 3 years such person's junior B 39-6-419 Second or subsequent conviction for violation of § 39-6-417, Schedule I B 39-6-419 Second or subsequent conviction for violation of § 39-6-417, Schedule II B 39-6-619(b) Wounding officer while arresting person on charge of unlawful gaming B 39-6-1137 Using minors for obscene purposes B 39-1-503 Attempt to commit sabotage C 39-1-606 Conspiracy to inflict punishment, take human life or burn or destroy property C 39-1-610 Conspiracy by convicts to escape C 39-2-101 Aggravated assault C 39-2-107 Assault from ambush with a deadly weapon C 39-2-109 Assault with deadly weapon while in disguise C 39-2-110 Assault by a juvenile 16 or older confined in an institution C 39-2-111 Mayhem C 39-2-112 Malicious shooting or stabbing C 39-2-115 Shooting or throwing missile calculated to cause death or bodily injury at or into a dwelling or vehicle C 39-2-116 Throwing object at common carrier vehicle with intent to do bodily harm where bodily harm occurs C 39-2-117 Injury to person during state of emergency C 39-2-118 Negligence by steamboat operator causing death C 39-2-222 Voluntary manslaughter C 39-2-231(a) Vehicular homicide as a result of conduct creating substantial risk of death or serious bodily injury C 39-2-231(b) Vehicular homicide as a result of driver's intoxication C 39-2-234 Negligence by train operator resulting in death C 39-2-302 Kidnapping C 39-2-501 Robbery C 39-2-608(a) Assault with intent to commit rape C 39-2-612 Crimes against nature C 39-2-613 Forcible marriage or abduction of female C 39-3-202 Setting fire or procuring same on building or structure C 39-3-205 Burning of insured property C 39-3-401 Burglary of dwelling by night C 39-3-403 Burglary of dwelling by day C 39-3-702 Manufacture/possession of explosives for burglarious purposes or burglary with explosives C 39-3-703 Malicious injury to structures with explosives C 39-4-306 Incest C 39-5-101 Bribery or offering to bribe officer C 39-5-102 Officer accepting bribe C 39-5-103 Bribing or offering to bribe peace officer or state, county or municipal employee C 39-5-105 Bribery of court official or juror C 39-5-106 Court official or juror accepting bribe C 39-5-108 Offering bribe to officer selecting or summoning jury C 39-5-109 Officer accepting bribe or permitting deputy to violate § 39-5-108 or § 39-5-420 C 39-5-112(a) Bargaining sales in regard to public office C 39-5-112(b) Sale of public office C 39-5-112(c) Offer to buy public office C 39-5-112(d) Refusal to qualify and discharge duties of public office by reason of pecuniary consideration C 39-5-112(e) Procuring resignation of officer C 39-5-115 Bribery of witness in felony prosecution C 39-5-201 Introduction of prohibited items upon or onto grounds of penal institution C 39-5-202 Introduction of weapons or drugs in the local jail or workhouse C 39-5-408 Use of public money by state treasurer or other public officer C 39-5-409 Embezzlement of public money or property C 39-5-508 Corruptly stealing, withdrawing or avoiding records and judicial proceedings C 39-5-522 Juror agreeing to give verdict or receiving improper evidence C 39-5-804 Misprision of treason C 39-5-805 Sedition C 39-5-813 Destruction, injury or interference with property so as to hinder preparation for defense or war C 39-5-814 Causing defects in war preparation C 39-6-417(a)(1)(B) Manufacture, delivery, sale or possession of Schedule II controlled substances C 39-6-418 Person over 18 distributing Schedule III controlled substances to person under 18 who is 3 years such person's junior C 39-6-418 Person over 18 distributing Schedule IV controlled substances to person under 18 who is 3 years such person's junior C 39-6-419 Second or subsequent conviction for violation of § 39-6-417, Schedule III C 39-6-419 Second or subsequent conviction for violation of § 39-6-417, Schedule IV C 39-6-915(a) Furnishing intoxicating liquor which causes death (voluntary manslaughter) C 39-6-915(b) Furnishing intoxicating liquor which causes paralysis or impairment of sight C 39-6-1138(b) Promoting performances which include sexual conduct by child C 39-6-1138(c) Parents consenting to child's participation in performance which includes sexual conduct C 39-3705 Third degree criminal sexual conduct D 39-1-504 Attempt to destroy property by fire bomb D 39-1-604(a) Conspiracy to commit felony on person of another D 39-1-604 Conspiracy to indict or prosecute innocent person for felony D 39-1-605 Conspiracy to commit offense against state or violate election laws D 39-1-606 Conspiracy to destroy property D 39-1-608 Conspiracy to commit arson D 39-1-609 Conspiracy to commit illegal act capable of destroying property by possession, use or transportation of explosives D 39-1-613 Conspiracy to use fire bomb D 39-2-104 Assault with intent to commit robbery D 39-2-701 Threats for purpose of extortion or obtaining action D 39-2-702 Use of intimidation or coercion to influence state official D 39-2-707 Night riders using intimidation to prevent disposal of farm products D 39-2-708 Night riders using intimidation to compel dismissal of laborers D 39-2-709 Inciting or conspiring to commit offense under § 39-2-707 or § 39-2-708 D 39-2-710 Burning of cross or religious symbol D 39-3-125 Stealing livestock D 39-3-129 Receiving stolen livestock D 39-3-204 Setting fire to any material or thing with intent to burn building or other thing D 39-3-402 Breaking after entry into dwelling D 39-3-404 Burglary of business D 39-3-505 Misuse of credit card over $200 D 39-3-506 Misrepresentation of amount of money, goods, and services furnished on credit card where difference exceeds $100 D 39-3-512 Obtaining goods, property or services by false or fraudulent use of credit card over $200 D 39-3-607 Interference with E.F.T.S. system D 39-3-703(a) Malicious injury to structures with explosives D 39-3-901 Obtaining property by false pretense over $200 D 39-3-902 Receiving property obtained under false pretense over $200 D 39-3-906 Fraudulent breach of trust by disposition of collateral or proceeds under security agreement over $200 D 39-3-907 Fraudulent breach of trust over $200 D 39-3-927(a) Disposal of consumer goods subject to UCC security interest over $200 D 39-3-927(b) Disposal of property covered by mortgage or trust deed over $200 D 39-3-932 Destruction or concealment of public records over $200 D 39-3-946 False personation to obtain property over $200 D 39-3-1104 Grand larceny D 39-3-1106 Larceny from the person D 39-3-1107 Feloniously stealing or taking by robbery any public records or valuable papers D 39-3-1109 Corruptly stealing, withdrawing or avoiding public papers D 39-3-1111 Severing and carrying away fixtures, products or minerals from land over $200 D 39-3-1112 Receiving stolen goods valued over $200 D 39-3-1114 Receiving personal property stolen out of state over $200 D 39-3-1115 Bringing stolen property into state over $200 D 39-3-1116 Receiving stolen public records or valuable papers D 39-3-1117 Wrongful appropriation of property found over $200 D 39-3-1118 Appropriation of property by person having custody over $200 D 39-3-1119 Contract of bailment or agency to make wrongful appropriation over $200 D 39-3-1120 Conversion of trust fund by executor, administrator, guardian or trustee over $200 D 39-3-1121 Embezzlement by private officer, clerk or employee over $200 D 39-3-1123 Receiving embezzled property over $200 D 39-3-1132 Transfer of recorded devices or manufacture or distribution without consent of owner (second offense) D 39-3-1404(b) Intentionally damaging or destroying computer system D 39-3-1404(c) Concealing proceeds of computer crime D 39-4-206 Failure to preserve life of infant prematurely born alive during abortion D 39-5-104 Peace officer or state, county or municipal employee accepting bribe D 39-6-211 Destruction of steamboat of value over $500 D 39-6-417(a)(1)(C) Manufacture, delivery or sale of Schedule III controlled substance D 39-6-417(a)(1)(D) Manufacture, delivery or sale of Schedule IV controlled substance D 39-6-418 Person over 18 distributing Schedule V controlled substances to person under 18 who is 3 years such person's junior D 39-6-418 Person over 18 distributing Schedule VI controlled substance to person under 18 who is 3 years such person's junior D 39-6-418 Person over 18 distributing Schedule VII controlled substance to person under 18 who is 3 years such person's junior D 39-6-419 Second or subsequent conviction for violation of § 39-6-417, Schedule V D 39-6-419 Second or subsequent conviction for violation of § 39-6-417, Schedule VI D 39-6-419 Second or subsequent conviction for violation of § 39-6-417, Schedule VII D 39-1-307 Accessories after the fact E 39-1-504 Attempt to destroy property by fire bomb E 39-1-506 Attempt to destroy property by placing explosives E 39-1-611 Conspiracy by juvenile 16 or older confined in an institution to commit offenses outlined in § 39-1-110 (assault by juvenile 16 or older confined in institution), § 39-2-344 (participation in riot by juvenile 16 or older confined in an institution) E 39-1-614 Conspiracy to commit sabotage E 39-1-615 Conspiracy to riot E 39-2-102 Assault with intent to commit felony E 39-2-118 Negligence by steamboat operator causing injury E 39-2-223 Involuntary manslaughter E 39-2-605 Statutory rape E 39-2-607 Sexual battery E 39-2-608(b) Assault with intent to commit sexual battery E 39-2-635 Procuring female for prostitution E 39-2-639 Enticing female, previously reputed virtuous, to house of ill fame E 39-3-102 Unlawful killing of horses, cattle, or sheep E 39-3-105 Animal fighting other than cocks E 39-3-203 Setting fire to property other than building or structure E 39-3-206 Maliciously setting a fire on land of another E 39-3-209 Causing fire of personal property by use of fire bomb E 39-3-211 Possession of fire bomb or materials E 39-3-212 Manufacture or disposal of fire bomb E 39-3-301 Knowingly drawing check or order in excess of $100 without sufficient funds E 39-3-306 Employer giving employee check in excess of $100 with fraudulent intent E 39-3-406 Breaking into vehicles E 39-3-408 Carrying burglary tools E 39-3-503 False statement to procure credit card E 39-3-504 Credit card theft or forgery E 39-3-505 Misuse of credit card under $200 E 39-3-506 Misrepresentation of amount of money, goods or services furnished on credit card where difference does not exceed $100 E 39-3-507 Completion of incomplete credit card or duplication without consent of owner E 39-3-508 Receipt of money, goods or services obtained in violation of credit card laws E 39-3-512 Obtaining goods, property or services by false or fraudulent use of credit card under $200 E 39-3-603 Making false statements to obtain issuance of debit card E 39-3-604 Debit card offenses under $200 E 39-3-605 Misuse of debit cards under $200 E 39-3-606 Completion of incomplete or duplication of debit card without consent of owner E 39-3-608 Use of stolen cards or illegally possessed debit card E 39-3-609 Misrepresentation of amount of money, goods or services furnished on debit card E 39-3-610 Card holder using card after reporting it stolen or lost E 39-3-703(b) Malicious injury to personal property over $25.00 with explosives E 39-3-706 Unauthorized possession or transportation of explosives E 39-3-710 False or malicious reports of explosives in building or structure E 39-3-711 Convicted felon carrying explosives E 39-3-803 Forging or counterfeiting of instrument or currency E 39-3-804 Transfer of forged paper E 39-3-805 Making counterfeit instrument of fictitious corporation or person E 39-3-806 Affixing fictitious signature to instrument of fictitious corporation or company E 39-3-807 Passing counterfeit bank bill which circulates as currency E 39-3-808 Possession of counterfeit bank bill E 39-3-809 Completing counterfeit bills or instruments E 39-3-810 Altering counterfeit bills or instruments E 39-3-811 Preparation of counterfeit stamp or plate E 39-3-812 Possession of counterfeit stamp or plate E 39-3-813 Making bank paper E 39-3-814 Making or mending paper, molds, or machines used in preparing bank paper E 39-3-815 Counterfeiting coin E 39-3-816 Adulteration of coin E 39-3-817 Possession or passing of counterfeit coin E 39-3-818 Making or concealing counterfeit machine E 39-3-819 Making or possessing adulterated metal for conversion into counterfeit coin E 39-3-901 Obtaining property by false pretense under $200 E 39-3-902 Receiving property obtained under false pretense under $200 E 39-3-906 Fraudulent breach of trust by disposition of collateral proceeds under security agreement under $200 E 39-3-907 Fraudulent breach of trust under $200 E 39-3-913 Selling animal under false representation of pedigree E 39-3-914 Giving false impression of death E 39-3-919(a) Packing foreign objects in cotton or tobacco E 39-3-919(b) Person from adjoining state selling cotton containing foreign objects in this state E 39-3-926(b) Removal from state of personal property subject to UCC security interest E 39-3-926(c) Removal from state of property embraced by mortgage or trust deed E 39-3-926(d) Removal from state of property the title to which is retained under conditional sales contract E 39-3-927(a) Disposal of consumer goods subject to UCC security interest under $200 E 39-3-927(b) Disposal of property covered by mortgage or trust deed under $200 E 39-3-930 Granting of security interest in personal property without title E 39-3-932 Destruction or concealment of public record under $200 E 39-3-933 Destruction or concealment of will E 39-3-936 Second or subsequent conviction for possession, sale or transfer of any apparatus for theft of telecommunication service E 39-3-944 Falsification of medical records or hospital bill E 39-3-946 False personation to obtain property under $200 E 39-3-948 False or fraudulent insurance claim E 39-3-949 False entries in books or records with intent to defraud E 39-3-951 Issuing false stock certificates E 39-3-1104 Petit larceny E 39-3-1111 Severing and carrying away fixtures, products or minerals from land under $100 E 39-3-1113 Receiving stolen goods valued under $200 E 39-3-1114 Receiving personal property stolen out of state under $200 E 39-3-1115 Bringing stolen property into state under $200 E 39-3-1117 Wrongful appropriation of property found under $200 E 39-3-1118 Appropriation of property by person having custody under $200 E 39-3-1119 Contract of bailment or agency to make wrongful appropriation under $200 E 39-3-1120 Conversion of trust fund by executor, administrator, guardian or trustee under $200 E 39-3-1121 Embezzlement by private officer, clerk or employee under $200 E 39-3-1123 Receiving embezzled property under $200 E 39-3-1124 Third or subsequent shoplifting conviction E 39-3-1125 Third or subsequent conviction for concealment of unpurchased goods (regardless of value of merchandise concealed) E 39-3-1126 Theft, embezzlement or copying trade secret E 39-3-1132 Transfer of recorded devices or manufacture or distribution without consent of owner E 39-3-1134 Offenses against parking meter E 39-3-1135 Third offense for unauthorized taking, concealing or possession of library material E 39-3-1206 Malicious trespass on farmland E 39-3-1311 Destruction of land or line marks E 39-3-1313 Destruction of tobacco plant bed or other plant beds; aiding and abetting destruction of plant bed E 39-3-1318 Cutting or removing timber from land of another for purpose of marketing E 39-3-1320 Cutting or destroying building or fences on public land E 39-3-1324 Tapping or entering telegraph, telephone, electric light and poles or gas lines E 39-3-1327 Vandalism of houses of worship, graveyards, cemetery and excavation and archaeological sites E 39-3-1404(a) Willfully gaining access to computer system with intent to defraud E 39-4-111 Leaving state after abandoning wife E 39-4-112 Leaving state after abandoning child E 39-4-113 Leaving state after court order for support E 39-4-201 Performance of criminal abortion E 39-4-202 Failure to obtain consent before abortion E 39-4-208 Unlawful research and experimentation upon aborted fetus E 39-4-301 Bigamy E 39-4-304 Marrying husband or wife of another E 39-4-305 Teaching or inducing to practice polygamy E 39-4-307 Begetting child on wife's sister E 39-4-402 Exposing child to inclement weather E 39-5-114 Bribery of or acceptance of bribe in connection with athletic sporting event E 39-5-301 Personating another in judicial proceedings E 39-5-407 State treasurer or other officer receiving interest or reward for deposit of public funds E 39-5-415 Officer having custody of a convicted felon voluntarily permitting escape E 39-5-416 Penitentiary official voluntarily permitting escape E 39-5-420 Corruptly appointing jurors E 39-5-421 False certification that conveyance of property was proven or acknowledged E 39-5-422 False noting, recording, registering or certifying conveyance of property E 39-5-433 Lobbying members of general assembly E 39-5-434 Absence of legislator for purposes of obstruction of business of general assembly E 39-5-435 Refusal of officer of bank or other corporation to deliver books or other documents to general assembly E 39-5-501 Compounding offense punishable with death or life imprisonment E 39-5-507 Encouraging disruption of communication to police and firefighters E 39-5-509(a) Interference with working of prisoners E 39-5-509(b) Leading mob to interfere with working of prisoners E 39-5-521 Intimidation of juror's family E 39-5-601 Perjury E 39-5-604 Subornation of perjury E 39-5-605 Perjury or subornation of perjury on trial for felony E 39-5-606 Misstatement of facts in an affidavit for parole/pardon E 39-5-701 Rescue of person in lawful custody for felony arrest or conviction E 39-5-702 Escape or attempt to escape from penitentiary E 39-5-703 Aiding and abetting escape or attempt to escape from penitentiary E 39-5-706 Escape or attempt to escape from local jail or workhouse E 39-5-708 Aiding or assisting prisoner to escape from place of confinement E 39-5-711 Aiding inmate of state institution to escape E 39-5-720 Bail jumping in case of felony E 39-5-833 Membership in communist party E 39-5-843 Mutilating or casting contempt on United States or Tennessee flag E 39-5-847 Willful destruction or desecration of United States flag E 39-5-848 Destruction of selective service card E 39-6-108 Offering or giving poisonous treat, candy or gift to another E 39-6-202 Obstruction of or injury to railroad tracks or equipment E 39-6-208 Cutting or taking property of electric railway E 39-6-210 Racing steamboat resulting in accident E 39-6-212 Destruction of steamboat with value under $500 E 39-6-310 Entering campuses, buildings, to incite public disturbance or violence E 39-6-322 Participating in, organizing or inciting to riot E 39-6-323 Interference with officers during riot E 39-6-324 Looting E 39-6-341 Entering school property to participate in riot E 39-6-344 Participation in riot by juvenile 16 or older confined in an institution E 39-6-345 Prisoners rioting or participating in riot E 39-6-417 Third or subsequent conviction for possession of controlled substance without valid prescription E 39-6-417(a)(1)(E) Manufacture, delivery or sale of Schedule V controlled substance E 39-6-417(a)(1)(F) Manufacture, delivery or sale of Schedule VI controlled substance E 39-6-417(a)(1)(G) Manufacture, delivery or sale of Schedule VII controlled substance E 39-6-452 Sale of glue for intoxication E 39-6-454(a) Sale of imitation controlled substance E 39-6-454(b) Manufacture of imitation controlled substance E 39-6-608 Professional gambling E 39-6-613 Keeping room or table for certain gambling E 39-6-622 Keeping place for betting on horse race E 39-6-626 Promoting prostitution E 39-6-635 Illegally transporting pinball machine into state after 6/30/80 E 39-6-701 Destruction of cemetery monument or marker E 39-6-702 Improper disposition of dead human body E 39-6-705 Removal or disinterment of dead human body for purpose of sale E 39-6-904 Second or subsequent violation of § 39-6-902 (unlawful sale of alcoholic beverages) and § 39-6-903 (unlawful sale of intoxicating bitters) E 39-6-908 Transportation of intoxicating liquors by common carrier (individual) E 39-6-909 Personal transportation of intoxicating liquors E 39-6-921 Second or subsequent conviction of unlawful storage of liquor for sale E 39-6-1104 Third or subsequent conviction for importing, preparing, distributing, possessing or appearing in obscene material E 39-6-1139 Solicitation of person to massage or expose erogenous area for compensation or permitting such solicitation E 39-6-1504 Filing fraudulent solicitation statement with secretary of state E 39-6-1522 Unauthorized interstate solicitation for police, judicial or safety association E 39-6-1609 Cutting or causing break in levee E 39-6-1713 Manufacture, possession or sale of sawed-off shotgun, sawed-off rifle or machine gun E 39-6-1716 Convicted felon carrying a firearm E 39-6-1717 Carrying dangerous weapon into establishment licensed to sell alcoholic beverages E 39-6-1718 Possession of deadly weapon on school grounds E 39-6-1719 Sale or possession of exploding bullets E

Click to view table.

These classifications shall be used for sentencing after November 1, 1989, if the offense was committed on or after July 1, 1982, and prior to November 1, 1989, except first degree murder, which shall be punished by death or life imprisonment.

Acts 1989, ch. 591, § 6; 1990, ch. 1030, § 31; 1992, ch. 655, § 1.

Sentencing Commission Comments.

This section classifies felony offenses in title 39 which were in existence prior to November 1, 1989. This classification of prior offenses serves two purposes. First, prior felonies are used to determine whether and to what extent a defendant's sentence should be enhanced. Since felonies have only recently been classified, this section designates the appropriate grade of the pre-November 1, 1989 conviction for purposes of the classification determination. For example, if a defendant is convicted of aggravated arson and has pre-November 1, 1989 convictions for second degree murder and aggravated rape, it is necessary to ascertain the classification of those prior convictions to determine whether the defendant's aggravated arson sentence can be enhanced into Range II or Range III. Second degree murder and aggravated rape are classified as Class A felonies. Under the criteria for sentencing as a persistent offender in § 40-35-107, the defendant must receive a Range III sentence.

Second, persons sentenced on or after November 1, 1989, for an offense committed between July 1, 1982 and November 1, 1989, must be sentenced under the provisions of this chapter. See, § 40-35-117(b). The new definitions and classifications cannot be utilized for offenses which occurred prior to November 1, 1989, because, in many instances, the elements of the offense are completely different. Consequently, except for first degree murder pursuant to § 39-11-117(b), this section sets forth the felony classification which is to be utilized for those offenses which occurred prior to November 1, 1989, when the sentencing takes place after that date. For example, if a defendant is convicted for the offense of first degree burglary which occurred prior to November 1, 1989, but the defendant is sentenced after that date, then this table of classification discloses that first degree burglary is punished as a Class C felony. As noted in § 40-35-111(b)(3), a Class C felony carries a sentence of not less than 3 nor more than 15 years. The precise sentence within that classification depends on the defendant's prior record which determines whether the defendant will be sentenced within Range I, II, or III.

The classification of prior offenses in this section determines sentencing for those offenses which were in existence prior to November 1, 1989, as set forth in title 39. It should be noted, however, that first degree murder is classified as a Class A felony in this section. However, pursuant to § 39-11-117(b), this classification is only utilized where the first degree murder conviction is part of the prior record of a defendant being sentenced for a subsequent offense. In all instances, both prior to November 1, 1989, and after that date, first degree murder is punished as a capital offense.

The offenses contained in titles other than title 39 have been amended directly by altering the punishment with specified felony or misdemeanor classifications. Since the elements of those offenses have not been changed, the punishment for those offenses can be ascertained by referring directly to the particular statute itself.

Compiler's Notes. The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Cemeteries, § 10; 5 Tenn. Juris., Burglary and Housebreaking, § 3.

Cross-References. Applicability of chapter, § 40-35-117.

Classification of offenses, § 40-35-110.

Penalties for felonies and misdemeanors, § 40-35-111.

Penalty for prior offenses not classified, § 40-35-119.

Sentence ranges, § 40-35-112.

Three strikes law, § 40-35-120.

Attorney General Opinions. Release of arrestees who have posted bail, OAG 00-035, 2000 Tenn. AG LEXIS 35 (3/1/00).

NOTES TO DECISIONS

1. Ex Post Facto Laws.

The constitutional provision against ex post facto legislation would only come into play if T.C.A. § 40-35-118 called for a harsher sentencing scheme than that available under the prior law. State v. Davis, 825 S.W.2d 109, 1991 Tenn. Crim. App. LEXIS 728 (Tenn. Crim. App. 1991), appeal denied, — S.W.2d —, 1992 Tenn. LEXIS 125 (Tenn. Jan. 27, 1992).

2. Date Offense Committed.

40-35-119. Classification of prior unclassified felony offenses.

Any prior felony offense committed between July 1, 1982, and November 1, 1989, which has not been classified pursuant to § 40-35-118 or otherwise, is a Class E felony.

Acts 1990, ch. 980, § 23.

Cross-References. Penalty for Class E felony, § 40-35-111.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 44.

40-35-120. Repeat violent offenders — Three strikes.

A “repeat violent offender” is a defendant who:
1. Is convicted in this state on or after July 1, 1994, of any offense classified in subdivision (b)(1) as a violent offense; and
2. Has at least two (2) prior convictions for offenses classified in subdivision (b)(1) or (b)(2) as a violent offense; or
3. Is convicted in this state on or after July 1, 1994, of any offense classified in subdivision (c)(1) as a violent offense; and
4. Has at least one (1) conviction for an offense classified in subdivision (c)(1) or (c)(2) as a violent offense; or
5. Is convicted in this state on or after July 1, 1995, of any offense classified in subdivision (d)(1) as a violent offense; and
6. Has at least one (1) prior conviction for an offense classified in subdivision (d)(1) or (d)(2) as a violent offense with the exception of the prior offense of robbery by use of a deadly weapon as listed in § 40-35-118(a).
1. For purposes of subdivisions (a)(1) and (a)(2), the following offenses are classified as violent offenses:
  1. First degree murder, including any attempt, solicitation or facilitation to commit first degree murder;
  2. Second degree murder and any attempt or facilitation to commit second degree murder;
  3. Especially aggravated kidnapping and any attempt or facilitation to commit especially aggravated kidnapping;
  4. Especially aggravated robbery and any attempt or facilitation to commit especially aggravated robbery;
  5. Aggravated rape and any attempt or facilitation to commit aggravated rape;
  6. Rape of a child and any attempt or facilitation to commit rape of a child;
  7. Aggravated arson and any attempt or facilitation to commit aggravated arson;
  8. Aggravated kidnapping;
  9. Aggravated robbery;
  10. Rape;
  11. Aggravated sexual battery;
  12. Especially aggravated burglary;
  13. Aggravated child abuse;
  14. Aggravated sexual exploitation of minor; and
  15. Especially aggravated sexual exploitation of a minor.
2. For purposes of subdivision (a)(2), the offenses that were repealed on November 1, 1989, and are listed in § 40-35-118(a) as Class A or B felonies against a person are classified as violent offenses.
1. For purposes of subdivisions (a)(3) and (a)(4), the following offenses are classified as violent offenses:
  1. First degree murder including any attempt, solicitation or facilitation to commit first degree murder;
  2. Second degree murder;
  3. Especially aggravated kidnapping;
  4. Especially aggravated robbery;
  5. Aggravated rape;
  6. Rape of a child; and
  7. Aggravated arson.
2. For purposes of subdivision (a)(4), the offenses that were repealed on November 1, 1989, and are listed in § 40-35-118(a) as Class A felonies against a person are classified as violent offenses.
1. For purposes of subdivisions (a)(5) and (a)(6), the following offenses are classified as violent offenses:
  1. First degree murder;
  2. Second degree murder;
  3. Especially aggravated kidnapping;
  4. Especially aggravated robbery;
  5. Aggravated rape;
  6. Rape of a child;
  7. Aggravated arson;
  8. Aggravated kidnapping;
  9. Rape;
  10. Aggravated sexual battery;
  11. Especially aggravated burglary;
  12. Aggravated child abuse;
  13. Aggravated sexual exploitation of a minor; and
  14. Especially aggravated sexual exploitation of a minor.
2. For purposes of subdivision (a)(6), the offenses that were repealed on November 1, 1989, and are listed in § 40-35-118(a) as Class A or B felonies against a person, with the exception of the offense of robbery by use of a deadly weapon, are classified as violent offenses.
In determining the number of prior convictions a defendant has received:
1. “Prior conviction” means a defendant serves and is released from a period of incarceration for the commission of an offense or offenses so that a defendant must:
  1. To qualify under subdivision (a)(1) and (a)(2), have served two (2) separate periods of incarceration for the commission of at least two (2) of the predicate offenses designated in subdivision (b)(1) or (b)(2) before committing an offense designated in subdivision (b)(1);
  2. To qualify under subdivision (a)(3) and (a)(4), at least one (1) separate period of incarceration for the commission of a predicate offense designated in subdivision (c)(1) or (c)(2) before committing an offense designated in subdivision (c)(1); or
  3. To qualify under subdivision (a)(5) and (a)(6), at least one (1) separate period of incarceration for the commission of a predicate offense designated in subdivision (d)(1) or (d)(2), with the exception of the prior offense of robbery by use of a deadly weapon as listed in § 40-35-118(a), before committing an offense designated in subdivision (d)(1);
2. “Separate period of incarceration” includes a sentence to a community correction program pursuant to chapter 36 of this title, a sentence to split confinement pursuant to § 40-35-306 or a sentence to a periodic confinement pursuant to § 40-35-307. Any offense designated as a violent offense pursuant to subsection (b), (c) or (d) that is committed while incarcerated or committed while the prisoner is assigned to a program whereby the prisoner enjoys the privilege of supervised release into the community, including, but not limited to, work release, educational release, restitution release, medical furlough or that is committed while on escape status from any correctional institution shall be considered as a separate period of incarceration;
3. A finding or adjudication that a defendant committed an act as a juvenile that is designated a predicate offense under subsection (b), (c) or (d) if committed by an adult, and that resulted in a transfer of the juvenile to criminal court pursuant to § 37-1-134, or similar statutes of other states or jurisdictions, shall not be considered a prior conviction for the purposes of this section unless the juvenile was convicted of the predicate offense in a criminal court and sentenced to confinement in the department of correction; and
4. “Prior convictions” include convictions under the laws of any other state, government or country that, if committed in this state, would have constituted a predicate offense in subsection (b), (c) or (d) if there are separate periods of incarceration in the other state as required by subdivision (e)(1). If a felony from a jurisdiction other than Tennessee is not a named predicate offense specified in subsection (b), (c) or (d) in this state and if the elements of the felony are the same as a designated predicate offense, it shall be considered a prior conviction; provided, that there are separate periods of incarceration in the other state as required in subdivision (e)(1).
The court shall refuse to accept a plea agreement that fails to recommend that a defendant with a sufficient number of designated prior convictions be sentenced as a repeat violent offender. If the judge refuses to accept the plea agreement, this does not prevent the district attorney general, in accordance with Rule 7 of the Tennessee Rules of Criminal Procedure, from amending the indicted offense to an offense that is not designated as a violent offense in subsection (b) or (c).
The court shall sentence a defendant who has been convicted of any offense listed in subdivision (b)(1), (c)(1) or (d)(1) to imprisonment for life without possibility of parole if the court finds beyond a reasonable doubt that the defendant is a repeat violent offender as defined in subsection (a).
The finding that a defendant is or is not a repeat violent offender is appealable by either party.
1. 1. A charge as a repeat violent offender shall be tried within one hundred eighty (180) days of the arraignment on the indictment pursuant to Rule 10 of the Tennessee Rules of Criminal Procedure unless delay is caused by:
    1. The defendant;
    2. An examination for competency;
    3. A competency hearing;
    4. An adjudication of incompetency for trial;
    5. A continuance allowed after a court's determination of the defendant's physical incapacity for a trial; or
    6. An interlocutory appeal.
  2. A continuance may be granted to any party, including the court, for good cause shown.
2. The district attorney general shall file a statement with the court and the defense counsel within forty-five (45) days of the arraignment pursuant to Rule 10 of the Rules of Criminal Procedure that the defendant is a repeat violent offender. The statement, which shall not be made known to the jury determining the guilt or innocence of the defendant, shall set forth the dates of the prior periods of incarceration, as well as the nature of the prior conviction offenses. If the notice is not filed within forty-five (45) days of the arraignment, the defendant shall be granted a continuance so that the defendant will have forty-five (45) days between receipt of notice and trial.
3. Failure to comply with this subsection (i) does not require release of a person from custody or a dismissal of charges.

Acts 1994, ch. 994, § 1; 1995, ch. 499, §§ 1-9.

Compiler's Notes. Acts 1994, ch. 994, § 6 provided that this section applies to all persons committing offenses under subdivisions (b)(1) or (c)(1) on or after July 1, 1994.

Cross-References. Penalty for Class A or B felonies, § 40-35-111.

Law Reviews.

Criminal Procedure—Tennessee v. Carter: The Strict Requirement of Notice Under Tennessee's Recidivist Sentencing Statutes (David Demar Ayliffe) 35 U. Mem. L. Rev. 145 (2004).

Not-So-Sweet Sixteen: When Minor Convictions Have Major Consequences Under Career Offender Guidelines (Andrew Tunnard), 66 Vand. L. Rev. 1309 (2013).

NOTES TO DECISIONS

1. Timeliness.

State was not foreclosed from seeking sentencing of the defendant as a repeat violent offender, even though it failed to give notice of its intent to do so at least 45 days prior to trial. State v. Thompson, 36 S.W.3d 102, 2000 Tenn. Crim. App. LEXIS 256 (Tenn. Crim. App. 2000).

T.C.A. § 40-35-120 was properly applied to defendant despite the fact that he was not tried within 180 days of arraignment. State v. Thompson, 36 S.W.3d 102, 2000 Tenn. Crim. App. LEXIS 256 (Tenn. Crim. App. 2000).

Trial court properly determined defendant to be a repeat violent offender for T.C.A. § 40-35-120(g) purposes as a certified Oregon judgment constituted proof beyond a reasonable doubt that defendant had previously served a separate period of incarceration since the 1995 judgment stated that defendant was sentenced to the custody of the Corrections Division of the State of Oregon for the crime of sodomy in the first degree, 3 counts, for a period not to exceed 111 months; defendant admitted that Or. Rev. Stat. § 163.405 had similar elements to T.C.A. § 39-13-522. State v. Cooper, 321 S.W.3d 501, 2010 Tenn. LEXIS 870 (Tenn. Sept. 21, 2010).

2. Deficient Notice.

Case was remanded for resentencing under T.C.A. § 40-35-202 for aggravated rape under T.C.A. § 39-13-502(a)(2) as it was plain error under T.R.A.P. 36(b) to allow a post-trial sentencing position to cure a deficient pre-trial T.C.A. § 40-35-120(i)(2) notice, which had failed to state that defendant was a repeat violent offender, or to set forth the nature of the sodomy conviction as a qualifying prior conviction and the dates of the prior period of incarceration; the severity of the sentence required a result similar to that imposed for defective notices under T.C.A. 39-13-208(c). State v. Cooper, 321 S.W.3d 501, 2010 Tenn. LEXIS 870 (Tenn. Sept. 21, 2010).

Defendant waived his challenge of the trial court's imposition of a life sentence without possibility of parole as a repeat violent offender and he was not entitled to review of the issue under the plain error doctrine because he failed to establish that the inclusion of his period of incarceration instead of the actual dates of incarceration on the notice under this section adversely affected a substantial right or changed the outcome of the sentencing hearing. State v. McKinney, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 141 (Tenn. Crim. App. Feb. 23, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 429 (Tenn. July 19, 2018).

3. Notice Sufficient.

Court of criminal appeals erred in setting aside defendant's sentence of life without parole under the three strikes law because the timely filed notice fairly informed defendant of the State's intent to seek enhanced sentencing; having conceded the accuracy of his prior criminal record, defendant failed to establish prejudice resulting from the omitted and inaccurate information and failed to establish that the omitted and inaccurate information adversely affected a substantial right. State v. Patterson, 538 S.W.3d 431, 2017 Tenn. LEXIS 736 (Tenn. Nov. 30, 2017).

State's timely notice made it clear that defendant served two prior, separate periods of confinement for five separate aggravated robbery convictions, thus satisfying the requirements of the repeat violent offender statute within the context of his present aggravated robbery conviction. Accordingly, defendant's challenge to the sufficiency of the notice, in that it failed to note the exact dates of incarceration, failed, and defendant was not entitled to relief. State v. Loyde, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 303 (Tenn. Crim. App. Apr. 23, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 498 (Tenn. Aug. 8, 2018).

Although the State's pretrial notice failed to list at least one separate period of incarceration for the commission of a predicate offense, it constituted fair notice and unambiguously advised defendant of the State's intent to sentence him as a repeat violent offender and was sufficient to trigger defendant's duty to inquire into the omitted information; further, by incorporating the original case file into the case file for the superseding indictment, the State substantially complied with its obligation to file a new notice for the additional offense charged in the superseding indictment. State v. Blaylock, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 267 (Tenn. Crim. App. Apr. 25, 2019).

4. Requirements.

Courts need not re-invent the analytical wheel for issues arising under the statutory notice requirement for repeat violent offenders and should apply the following principles; the State bears the responsibility for providing notice of enhanced sentencing as a repeat violent offender and must always endeavor to comply fully with the statute, both in timing and content, and the State must provide some notice prior to trial. State v. Patterson, 538 S.W.3d 431, 2017 Tenn. LEXIS 736 (Tenn. Nov. 30, 2017).

If the State fails entirely to provide notice prior to trial, it is precluded from seeking enhanced sentencing as a repeat violent offender, and a defendant need not show prejudice; as for form, the better practice is for the State to provide notice by a separate, properly captioned document and not to include the notice in a document addressing several subjects, and the form alone will almost never be a sufficient basis for precluding the State from seeking enhanced sentencing. State v. Patterson, 538 S.W.3d 431, 2017 Tenn. LEXIS 736 (Tenn. Nov. 30, 2017).

5. Delay in Trial.

Record supported the trial court's sentencing of defendant as a repeat violent offender to a life sentence without the possibility of parole for his aggravated robbery conviction because, although defendant was arraigned on March 6, 2013, but was not tried until February 22-23, 2016, the only reason for any alleged delay related to defendant's issues with his numerous trial counsel, as evidenced by four motions to withdraw in the record; thus, although more than 180 days passed between arraignment and trial, nothing in the record indicated the delay occurred for any reason other than that of defendant. State v. Loyde, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 303 (Tenn. Crim. App. Apr. 23, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 498 (Tenn. Aug. 8, 2018).

6. Jurisdiction.

Because the trial court concluded that defendant was not a repeat violent offender and failed to impose a sentence of life without parole based on his aggravated kidnapping conviction, the State had a right to an appeal under this statute, and the appellate court had jurisdiction to consider the claim raised by the State. State v. Blaylock, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 267 (Tenn. Crim. App. Apr. 25, 2019).

7. Evidence.

Evidence established defendant's repeat violent offender status as he was convicted of aggravated kidnapping in the instant case and had a prior conviction in Oklahoma for rape in the first degree that, if committed in Tennessee, would have constituted the predicate offense of rape under the repeat violent offender statute; and he had at least one separate period of incarceration for the commission of the predicate offense before he committed the current offense; thus, the trial court erred in failing to sentence defendant to life without possibility of parole for his aggravated kidnapping conviction. State v. Blaylock, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 267 (Tenn. Crim. App. Apr. 25, 2019).

Collateral References.

Construction and Application of Enhanced Sentencing Provision of Armed Career Criminal Act (ACCA), 18 U.S.C.S. § 924(e) — United States Supreme Court Cases. 67 A.L.R. Fed. 2d 1.

40-35-121. Criminal gang offenses — Enhanced punishment — Procedure.

As used in this section, unless the context otherwise requires:
1. “Criminal gang” means a formal or informal ongoing organization, association or group consisting of three (3) or more persons that has:
  1. As one (1) of its primary activities, the commission of criminal gang offenses;
  2. Two (2) or more members who, individually or collectively, engage in or have engaged in a pattern of criminal gang activity;
2. “Criminal gang member” is a person who is a member of a criminal gang, as defined in subdivision (a)(1), who meets two (2) or more of the following criteria:
  1. Admits to criminal gang involvement;
  2. Is identified as a criminal gang member by a parent or guardian;
  3. Is identified as a criminal gang member by a documented reliable informant;
  4. Resides in or frequents a particular criminal gang's area, adopts their style or dress, their use of hand signs or their tattoos and associates with known criminal gang members;
  5. Is identified as a criminal gang member by an informant of previously untested reliability and the identification is corroborated by independent information;
  6. Has been arrested more than once in the company of identified criminal gang members for offenses that are consistent with usual criminal gang activity; or
  7. Is identified as a criminal gang member by physical evidence such as photographs or other documentation;
3. “Criminal gang offense” means:
  1. A criminal offense committed prior to July 1, 2013 that:
    1. During the perpetration of which the defendant knowingly causes, or threatens to cause, death or bodily injury to another person or persons and specifically includes rape of a child, aggravated rape and rape; or
    2. Results, or was intended to result, in the defendant's receiving income, benefit, property, money or anything of value from the commission of any aggravated burglary, or from the illegal sale, delivery, or manufacture of a controlled substance, controlled substance analogue, or firearm; or
  2. The commission or attempted commission, facilitation of, solicitation of, or conspiracy to commit any of the following offenses on or after July 1, 2013:
    1. First degree murder, as defined in § 39-13-202;
    2. Second degree murder, as defined in § 39-13-210;
    3. Voluntary manslaughter, as defined in § 39-13-211;
    4. Assault, as defined in § 39-13-101;
    5. Aggravated assault, as defined in § 39-13-102;
    6. Kidnapping, as defined in § 39-13-303;
    7. Aggravated kidnapping, as defined in § 39-13-304;
    8. Especially aggravated kidnapping, as defined in § 39-13-305;
    9. Robbery, as defined in § 39-13-401;
    10. Aggravated robbery, as defined in § 39-13-402;
    11. Especially aggravated robbery, as defined in § 39-13-403;
    12. Carjacking, as defined in § 39-13-404;
    13. Rape, as defined in § 39-13-503;
    14. Aggravated rape, as defined in § 39-13-502;
    15. Rape of a child, as defined in § 39-13-522;
    16. Aggravated burglary, as defined in § 39-14-403;
    17. Especially aggravated burglary, as defined in § 39-14-404;
    18. Aggravated criminal trespass, as defined in § 39-14-406;
    19. Coercion of witness, as defined in § 39-16-507;
    20. Retaliation for past action, as defined in § 39-16-510;
    21. Riot, as defined in § 39-17-302;
    22. Aggravated riot, as defined in § 39-17-303;
    23. Inciting to riot, as defined in § 39-17-304;
    24. The illegal sale, delivery or manufacture of a controlled substance or controlled substance analogue, as defined in §§ 39-17-417 and 39-17-454;
    25. Possession of a controlled substance or controlled substance analogue with intent to sell, deliver, or manufacture, as defined in § 39-17-417(a)(4) and § 39-17-454;
    26. Unlawful carrying or possession of a weapon, as defined in § 39-17-1307;
    27. Trafficking for commercial sex acts, as defined in § 39-13-309;
4. 1. “Pattern of criminal gang activity” means prior convictions for the commission or attempted commission of, facilitation of, solicitation of, or conspiracy to commit:
    1. Two (2) or more criminal gang offenses that are classified as felonies; or
    2. Three (3) or more criminal gang offenses that are classified as misdemeanors; or
    3. One (1) or more criminal gang offenses that are classified as felonies and two (2) or more criminal gang offenses that are classified as misdemeanors; and
    4. The criminal gang offenses are committed on separate occasions; and
    5. The criminal gang offenses are committed within a five-year period;
  2. 1. As used in this subsection (a), “prior conviction” means a criminal gang offense for which a criminal gang member was convicted prior to the commission of the instant criminal gang offense by the defendant and includes convictions occurring prior to July 1, 1997;
    2. “Prior conviction” includes convictions under the laws of any other state, government or country that, if committed in this state, would have constituted a criminal gang offense. In the event that a conviction from a jurisdiction other than Tennessee is not specifically named the same as a criminal gang offense, the elements of the offense in the other jurisdiction shall be used by the Tennessee court to determine if the offense is a criminal gang offense;
    3. Convictions for multiple criminal gang offenses committed as part of a single course of conduct within twenty-four (24) hours are not committed on “separate occasions.” However, acts that constitute criminal gang offenses under subdivision (a)(3)(A) shall not be construed to be a single course of conduct.
A criminal gang offense committed by a defendant shall be punished one (1) classification higher than the classification established by the specific statute creating the offense committed if:
1. The defendant was a criminal gang member at the time of the offense; and
2. The criminal gang offense was committed at the direction of, in association with, or for the benefit of the defendant's criminal gang or a member of the defendant's criminal gang.
A criminal gang offense committed by a defendant who was not a criminal gang member at the time of the offense but who committed the offense for the purpose of and with the intent to fulfill an initiation or other requirement for joining a criminal gang as defined in subdivision (a)(1) shall be punished one (1) classification higher than the classification established by the specific statute creating the offense committed.
If the criminal gang offense subject to enhancement under subsection (b) or (c) is a Class A felony, the presumptive sentence for the offense shall be the maximum sentence within the range from which the defendant is to be sentenced.
A criminal gang offense committed by a defendant shall be punished two (2) classifications higher than the classification established by the specific statute creating the offense committed if, at the time the offense was committed:
1. The defendant was a criminal gang member;
2. The defendant was also a leader or organizer of the criminal gang; and
3. The offense was at the direction of, in association with, or for the benefit of the defendant's criminal gang or a member of the defendant's criminal gang.
If the criminal gang offense subject to enhancement under subsection (e) is a Class A or B felony, the criminal gang member shall be sentenced as a Class A felon and the presumptive sentence for the offense shall be the maximum sentence within the range from which the defendant is to be sentenced.
If the defendant is charged with a criminal gang offense and the district attorney general intends to seek enhancement of the punishment under subsection (b), (c) or (e), the indictment, in a separate count, shall specify, charge and give notice of the subsection under which enhancement is alleged applicable and of the required prior convictions constituting the gang's pattern of criminal gang activity.
1. If the defendant is convicted of the underlying criminal gang offense, the jury shall then separately consider whether the defendant was at the time of the offense:
  1. A criminal gang member;
  2. A criminal gang member and a leader or organizer of the gang; or
  3. Not a criminal gang member but committed the offense for the purpose of joining a criminal gang.
2. If the jury convicts the defendant under subdivision (h)(1)(A), (h)(1)(B) or (h)(1)(C), the court shall pronounce judgment and sentence the defendant as provided in this section.
For purposes of establishing a “pattern of criminal gang activity” the following offenses may be considered:
1. Criminal gang offenses, as defined by subdivision (a)(3)(A), committed prior to July 1, 2013; and
2. Criminal gang offenses, as defined by subdivision (a)(3)(B), committed on or after July 1, 2013.

Acts 1997, ch. 437, § 1; 2011, ch. 493, § 2; 2012, ch. 848, § 34; 2013, ch. 357, §§ 1–3; 2013, ch. 415, § 1; 2016, ch. 1034, §§ 1-3.

Cross-References. Classification of offenses, § 40-35-110.

Penalty for felonies and misdemeanors, § 40-35-111.

Penalties for Class A and Class B felonies, § 40-35-111.

Sentence ranges, § 40-35-112.

Law Reviews.

Breaking the Frame: Responding to Gang Stereotyping in Capital Cases (John M. Hagedorn, Ph.D. and Bradley A. MacLean, Esq.), 42 U. Mem. L. Rev. 1027 (2012).

NOTES TO DECISIONS

1. Constitutionality.

T.C.A. § 40-35-121(a) provided fair warning of the conduct covered by the statute, as it applied when a criminal gang member injured or killed someone, or threatened to do so, while committing a crime, and a person of common intelligence would have no trouble understanding that. State v. Bonds, 502 S.W.3d 118, 2016 Tenn. Crim. App. LEXIS 266 (Tenn. Crim. App. Apr. 7, 2016).

T.C.A. § 40-35-121(b), was found to be unconstitutionally vague, because it lacked a nexus requirement that the underlying offense be gang related. State v. Bonds, 502 S.W.3d 118, 2016 Tenn. Crim. App. LEXIS 266 (Tenn. Crim. App. Apr. 7, 2016).

Because defendant challenged the constitutionality of the statute for the first time on appeal, the issue was waived, and he was not entitled to plain error review because the criminal gang offenses enhancement statute was in full effect at the time of his convictions and sentencing; when enhancing defendant's sentence the trial court did not breach a clear and unequivocal rule of law, and the court of criminal appeals did not find the statute unconstitutional until after defendant's trial. State v. Minor, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 102 (Tenn. Crim. App. Feb. 16, 2017), modified, 546 S.W.3d 59, 2018 Tenn. LEXIS 149 (Tenn. Apr. 11, 2018).

Defendant's conviction for violating this section had to be reversed, because the statute was unconstitutional, in that it was not reasonably related to deterring gang activity. State v. Byars, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 133 (Tenn. Crim. App. Feb. 27, 2017), overruled in part, State v. Minor, 546 S.W.3d 59, 2018 Tenn. LEXIS 149 (Tenn. Apr. 11, 2018).

Vacating of the criminal gang enhancement applied to defendant's convictions of possession of cocaine with intent to sell or deliver and unlawful possession of a weapon was appropriate, along with the remand of the case for new sentencing on those convictions, because the convictions were enhanced pursuant to an unconstitutional statute. State v. Turner, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 274 (Tenn. Crim. App. Apr. 13, 2017), review denied and ordered not published, — S.W.3d —, 2018 Tenn. LEXIS 206 (Tenn. Apr. 18, 2018), overruled in part, State v. Minor, 546 S.W.3d 59, 2018 Tenn. LEXIS 149 (Tenn. Apr. 11, 2018).

While defendant was a gang member and he committed the crimes at issue, there was no evidence tying his assault to any sort of gang activity, and his sentences were enhanced based solely on his membership in the gang; the statute offends the principle of due process because it fails to tie membership in a gang to the offense at issue, and because the version of the gang enhancement statute in effect at the time of defendant's convictions was unconstitutional, these enhancements were vacated. State v. Turner, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 337 (Tenn. Crim. App. May 5, 2017), review denied and ordered not published, — S.W.3d —, 2018 Tenn. LEXIS 204 (Tenn. Apr. 19, 2018).

Statute is tantamount to a proscriptive statute, meaning that any constitutional flaw may be more critical to the triumph of justice than it might be if it were found in a more tangential statute, and the statute has been declared unconstitutional in a published case; a facially unconstitutional proscriptive statute is void on its face and does not fall within the ambit of the rule, and because it renders the indicted charge void, a pretrial motion is not required, such that the adjudication of the issue was not blocked by any issue of waiver. State v. Turner, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 337 (Tenn. Crim. App. May 5, 2017), review denied and ordered not published, — S.W.3d —, 2018 Tenn. LEXIS 204 (Tenn. Apr. 19, 2018).

Statute subjects the defendant to conviction for a higher degree crime than originally charged, resulting in an increased penalty range, based only upon a defendant's simple association with others, who may or may not be criminals, and the statute runs afoul of due process. State v. Turner, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 337 (Tenn. Crim. App. May 5, 2017), review denied and ordered not published, — S.W.3d —, 2018 Tenn. LEXIS 204 (Tenn. Apr. 19, 2018).

Defendant established his entitlement to relief from his convictions under the criminal gang offense statute via the plain error doctrine because his effective sentence was enhanced under the statute by at least 10 years, the Court of Criminal Appeals of Tennessee's decision in Bonds declaring the statute unconstitutional constituted the law now existing as defendant's appeal was pending on direct review when Bonds was decided, nothing in the record indicated that defendant waived his challenge to the constitutionality of the statute for tactical reasons, and consideration of the error was necessary to do substantial justice. State v. Minor, 546 S.W.3d 59, 2018 Tenn. LEXIS 149 (Tenn. Apr. 11, 2018).

Petitioner could not rely upon the State's insistence to support a conclusion that he bargained for the gang enhanced sentence, and the evidence failed to establish that he would not have pleaded guilty if the agreement had not included the gang enhancement requirement; as the evidence did not establish that the illegal sentence was material to petitioner's acceptance of the plea agreement, the appropriate remedy was the entry of a corrected judgment imposing a legal sentence and petitioner was entitled to habeas corpus relief. Perry v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 146 (Tenn. Crim. App. Mar. 7, 2019).

2. Proceedings.

Three of four defendants were entitled to a new trial on the gang enhancement, because the trial court treated the proceeding as a sentencing hearing rather than an extension of the guilt phase to which constitutional, statutory, and procedural rules applied. State v. Bonds, 502 S.W.3d 118, 2016 Tenn. Crim. App. LEXIS 266 (Tenn. Crim. App. Apr. 7, 2016).

3. Cruel and Unusual Punishment.

Imposition of a heightened punishment for gang-related offenses by increasing the sentencing range of the offense did not offend the proportionality requirements of the Eighth Amendment. State v. Bonds, 502 S.W.3d 118, 2016 Tenn. Crim. App. LEXIS 266 (Tenn. Crim. App. Apr. 7, 2016).

4. Sufficiency of Evidence.

Defendant's gang enhancement convictions were supported by evidence that he had been seen with other documented gang members, had a tattoo that exhibited gang emblems, and had years earlier admitted to being a gang member. State v. Byars, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 133 (Tenn. Crim. App. Feb. 27, 2017), overruled in part, State v. Minor, 546 S.W.3d 59, 2018 Tenn. LEXIS 149 (Tenn. Apr. 11, 2018).

40-35-122. Sentencing alternatives for defendants who commit nonviolent property offenses.

Notwithstanding any law to the contrary, except as provided in subsection (b), the judge sentencing a defendant who commits a nonviolent property offense, as defined in subsection (c), on or after July 1, 2010, shall not be authorized to impose the sentencing alternatives of continuous confinement in a local jail or the department of correction as authorized by § 40-35-104(c)(5), (c)(6), or (c)(8). However, the judge may sentence the defendant to any of the other sentencing alternatives authorized by § 40-35-104(c), which include, but are not limited to, periodic confinement, work release, community corrections, probation, or judicial diversion.
1. A defendant convicted of an offense set out in subsection (c) may be sentenced to any of the sentencing alternatives authorized by § 40-35-104(c), including a period of continuous confinement, if the sentencing judge determines the defendant:
  1. Has at least one (1) prior conviction at the time the subsection (c) offense is committed; or
  2. Violated the terms and conditions of the alternative sentence originally imposed upon the defendant pursuant to subsection (a).
2. As used in this subsection (b):
  1. 1. “Prior conviction” means that the defendant serves and is released or discharged from, is serving, or is on escape status from a separate period of incarceration or supervision for the commission of a felony offense prior to or at the time of committing an offense on or after July 1, 2010, listed in subsection (c);
    2. “Prior conviction” includes convictions under the laws of any other state, government or country that, if committed in this state, would constitute a felony. If an offense in a jurisdiction other than Tennessee is not identified as a felony in this state, it shall be considered a prior conviction if the elements of the offense are the same as the elements for a felony offense in this state; and
  2. “Separate period of incarceration or supervision” includes a sentence to any of the sentencing alternatives set out in § 40-35-104(c)(3)-(9).
As used in this section, a “nonviolent property offense” is:
1. Forgery under § 39-14-114, where the amount of the forgery is less than one thousand dollars ($1,000);
2. Attempted forgery under §§ 39-12-101 and 39-14-114, where the amount of the forgery is one thousand dollars ($1,000) or more, but less than ten thousand dollars ($10,000);
3. Criminal simulation under § 39-14-115, where the amount is less than one thousand dollars ($1,000);
4. Attempted criminal simulation under §§ 39-12-101 and 39-14-115, where the amount is one thousand dollars ($1,000) or more, but less than ten thousand dollars ($10,000);
5. Facilitating criminal simulation under §§ 39-11-403 and 39-14-115, where the amount is one thousand dollars ($1,000) or more, but less than ten thousand dollars ($10,000);
6. Theft of services under § 39-14-104, where the amount of the theft is less than one thousand dollars ($1,000);
7. Shoplifting under §§ 39-14-103 or 39-14-146, where the amount taken is less than one thousand dollars ($1,000);
8. Fraudulent use of a credit card under § 39-14-118, where the amount of the theft is less than one thousand dollars ($1,000);
9. Passing worthless checks under § 39-14-121 where the amount of the check is less than one thousand dollars ($1,000);
10. Passing forged checks under § 39-14-114, where the amount of the forgery is less than one thousand dollars ($1,000);
11. Theft of property under § 39-14-103, where the amount of the theft is less than one thousand dollars ($1,000);
12. Attempted theft of property under §§ 39-12-101 and 39-14-103, where the amount of the attempted theft is one thousand dollars ($1,000) or more, but less than ten thousand dollars ($10,000);
13. Facilitating the theft of property under §§ 39-11-403 and 39-14-103, where the amount of the property is one thousand dollars ($1,000) or more, but less than ten thousand dollars ($10,000);
14. Conspiracy to commit theft of property under §§ 39-12-103 and 39-14-103, where the amount of the property is one thousand dollars ($1,000) or more, but less than ten thousand dollars ($10,000);
15. Vandalism under § 39-14-408, where the amount of the vandalism is less than one thousand dollars ($1,000);
16. Fraudulent transfer of a motor vehicle under § 39-14-147;
17. Attempted burglary other than a habitation under §§ 39-12-101 and 39-14-402(a)(1), (a)(2) or (a)(3);
18. Burglary of an auto under § 39-14-402(a)(4); and
19. Burning personal property under § 39-14-303.

Acts 2010, ch. 1090, § 2; 2018, ch. 549, § 1.

Compiler's Notes. Acts 2010, ch. 1090, § 1 provided that the general assembly finds and declares that deterrence and punishment of violent crime is a matter of compelling public interest that requires the highest priority when allocating scarce public resources for the purpose of imprisoning criminals. To ensure that sufficient prison space is available for certain violent offenders to serve a sentence of sufficient length to longer remove them as a threat to society and to deter others from committing these offenses, it is in the public's best interest that certain nonviolent property offenders currently serving prison sentences for less serious offenses be given alternative sentences not involving continuous confinement. By doing so, these property offenders are able to work in order to pay restitution to the victims of their crimes without using scarce prison beds thereby permitting longer sentences for those offenders who do threaten public safety.

Law Reviews.

Misdemeanor Decriminalization, 68 Vand. L. Rev. 1055 (2015).

NOTES TO DECISIONS

4. Continuous Confinement Improper.

Because defendant's non-violent automobile burglary conviction fell under the scope of T.C.A. § 40-35-122, the trial court could not order split or continuous confinement for this conviction. Accordingly, the trial court erred by ordering split confinement. State v. Stutts, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 69 (Tenn. Crim. App. Jan. 31, 2018).

Trial court erred in ordering 240 days of “shock incarceration” because defendant could not be sentenced to continuous confinement, and the trial court's classification of the “shock incarceration” as “periodic confinement” did not alter the fact that it was, in reality, a period of continuous confinement followed by release to community corrections, defendant's convictions were included in the list of eligible non-violent property offenses, and his use of marijuana while on bond did not constitute a violation of the terms and conditions of the alternative sentence originally imposed. State v. Johnson, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 400 (Tenn. Crim. App. June 10, 2020).

40-35-123. Neighborhood Protection Act — Injunctive relief against offenders entering residential area.

This section shall be known and may be cited as the “Neighborhood Protection Act.”
A homeowners' association, as defined in § 68-14-302, a neighborhood association, a neighborhood watch, or a similarly organized residential entity that is recognized by state or local law with defined boundaries referenced in the residential entity's charter or governing document, may seek an injunction or restraining order prohibiting an offender from entering the boundaries of the residential area, if:
1. The offender has been convicted of three (3) or more separate offenses of:
  1. Burglary, as defined in § 39-14-402;
  2. Rape, as defined in § 39-13-503;
  3. Criminal homicide, as defined in § 39-13-201;
  4. Delivering or selling a controlled substance, as defined in § 39-
    17-417;
  5. Criminal gang activity, as defined in § 40-35-121;
  6. Prostitution, as defined in § 39-13-512;
  7. Theft, if the value of the property or services obtained is more than five hundred dollars ($500), pursuant to title 39, chapter 14, part 1; or
  8. Vandalism, as defined in § 39-14-408; and
2. Three (3) or more of the offenses were committed within the boundaries of the residential area.
Any injunction or restraining order shall remain in effect for one (1) year, unless modified or dissolved by the court that granted the injunction or restraining order, and may be renewed by the court upon motion of the homeowners' association, neighborhood association, neighborhood watch, or similarly organized residential entity.

Acts 2015, ch. 365, § 1.

Compiler's Note. Acts 2015, ch. 365, § 2 provided that the act, which enacted this section, shall apply to any person whose third or subsequent applicable offense is committed on or after July 1, 2015.

Part 2
Procedure for Imposing Sentence

40-35-201. Issue of guilt and sentence to be tried separately — Instructing jury on possible sentences.

In all contested criminal cases, the issue of guilt or innocence is submitted to the trier of fact for a verdict on that issue alone. If the defendant is found or pleads guilty, sentence shall be set in accordance with this chapter in a separate sentencing hearing. Nothing in this chapter shall be construed to deprive a defendant of a right to a jury trial as to the defendant's guilt or innocence pursuant to Rule 23 of the Tennessee Rules of Criminal Procedure and appropriate provisions of the United States or Tennessee constitutions.
In all contested criminal cases, except for capital crimes that are governed by the procedures contained in §§ 39-13-204 and 39-13-205, and as necessary to comply with the Tennessee Constitution, article VI, § 14 and § 40-35-301, the judge shall not instruct the jury, nor shall the attorneys be permitted to comment at any time to the jury, on possible penalties for the offense charged nor all lesser included offenses.
“Plea of guilty” or “guilty plea,” as used in this chapter, includes the plea of nolo contendere as provided in Rule 11 of the Tennessee Rules of Criminal Procedure.

Acts 1989, ch. 591, § 6; 1994, ch. 847, §§ 1, 2; 1998, ch. 1041, § 1.

Sentencing Commission Comments.

This section is similar to prior law. In 1994, the provision of subsection (b) concerning instructing the jury on the range of punishment was amended.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Cross-References. Execution of judgment, title 40, ch. 23.

Sentencing provisions applicable to persons committing crimes prior to July 1, 1982, title 40, ch. 20.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 15.11, 15.12, 22.61, 32.80.

Tennessee Jurisprudence, 6A Tenn. Juris., Constitutional Law § 30.

Law Reviews.

The Habitual Offender Laws of Tennessee (Steven W. Feldman), 14 Mem. St. U.L. Rev. 293 (1984).

Attorney General Opinions. Interpretation of subsection (b), OAG 99-178, 1999 Tenn. AG LEXIS 220 (9/17/99).

NOTES TO DECISIONS

1. Applicability.

In a felony murder case, the trial court abused its discretion by preventing defense counsel from cross-examining an investigator about his advising defendant that he could face “life in jail,” because T.C.A. § 40-35-201(b) merely prohibited trial judges, the state, and the defense from commenting to the jury on possible penalties for the offense charged; it neither mandated nor justified limitations on cross-examination. State v. Echols, 382 S.W.3d 266, 2012 Tenn. LEXIS 738 (Tenn. Oct. 10, 2012).

2. Instructions.

Instructing the jury on the range of punishment and parole eligibility for a crime that occurred prior to the effective date of T.C.A. § 40-35-201 was error. State v. Maddox, 957 S.W.2d 547, 1997 Tenn. Crim. App. LEXIS 1348 (Tenn. Crim. App. 1997).

Petitioner requesting postconviction relief from conviction for second degree murder was denied effective assistance of counsel when trial counsel failed to object to an erroneous jury instruction informing the jury of sentence ranges, failed to preserve the issue for appeal and failed to raise the issue on direct appeal. Dean v. State, 59 S.W.3d 663, 2001 Tenn. LEXIS 765 (Tenn. 2001).

Where two defendants were convicted of first degree murder, both counsels' failure to object to the erroneous jury instructions regarding the release eligibility date for a person convicted of first degree murder was deficient and prejudicial, thus denying each defendant of his constitutional right to effective counsel; under T.C.A. § 40-35-201(b), the defendants had a statutory right to have the jury know the range of punishment applicable to the charges, and the denial of this right was reversible error under T.R.A.P. 36(b). Vaughn v. State, 202 S.W.3d 106, 2006 Tenn. LEXIS 843 (Tenn. 2006), overruled in part, Brown v. Jordan, 563 S.W.3d 196, 2018 Tenn. LEXIS 728 (Tenn. Dec. 6, 2018).

3. Improper Comments.

Although the comments regarding the merger of offenses were improper, defendant failed to show he was adversely affected, as, immediately after the comments, the jury was instructed hat each count was separate and distinct and no other comments on potential sentencing were made. State v. Gathing, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 42 (Tenn. Crim. App. Jan. 19, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 297 (Tenn. May 17, 2018).

Prosecutor's comments were improper because comments on the merger of convictions at sentencing improperly implicated sentencing options. State v. Lockhart, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 248 (Tenn. Crim. App. Apr. 17, 2019).

4. Enhancement Factors.

5. Questioning.

Trial court did not abuse its discretion in determining that expounded questioning about the sentence a co-defendant faced for the same charges as defendant indirectly and impermissibly exposed the jury to the possible sentence defendant faced because the question was not permissible; although evidence of the exact potential sentence the co-defendant faced was arguably relevant to establish bias, even relevant evidence was inadmissible if rules or laws of general application excluded it. State v. Graham, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 275 (Tenn. Crim. App. Apr. 21, 2020).

40-35-202. Notice of intent to seek enhanced punishment — Statement of enhancement and mitigating factors.

If the district attorney general believes that a defendant should be sentenced as a multiple, persistent or career offender, the district attorney general shall file a statement thereof with the court and defense counsel not less than ten (10) days before trial or acceptance of a guilty plea; provided, that notice may be waived by the defendant in writing with the consent of the district attorney general and the court accepting the plea. The statement, which shall not be made known to the jury determining the guilt or innocence of the defendant on the primary offense, must set forth the nature of the prior felony convictions, the dates of the convictions and the identity of the courts of the convictions. The original or certified copy of the court record of any prior felony conviction, bearing the same name as that by which the defendant is charged in the primary offense, is prima facie evidence that the defendant named in the record is the same as the defendant before the court, and is prima facie evidence of the facts set out in the record.
In all cases following a finding of guilt, the court may require that:
1. The district attorney general file a statement with the court setting forth any enhancement or mitigating factors the district attorney general believes should be considered by the court; and
2. The defendant file a statement with the court setting forth all mitigating factors known to the defendant and indicating any mitigating factors the defendant believes should be considered by the court.

Acts 1989, ch. 591, § 6.

Sentencing Commission Comments.

This section provides for mandatory and discretionary notices involving sentencing questions. Subsection (a) requires that the district attorney general file a notice with the court and defense counsel setting forth the nature of any prior convictions which will later be utilized for sentencing enhancement purposes. See also, Tenn. R. Crim. P. 12.3 which provides that if the notice is filed in less than 10 days, the defendant may request a reasonable continuance of the trial.

Subsection (b) provides that the trial judge may require the attorneys to file notices of enhancement and mitigating factors which the judge will consider in imposing the sentence.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Cross-References. Enhancement factors, § 40-35-114.

Mitigating factors, § 40-35-113.

Repeat violent offenders, § 40-35-120.

Rule Reference. This section is referred to in the Advisory Commission Comments under Rule 12.3 of the Tennessee Rules of Criminal Procedure.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 15.13, 15.14, 15.15, 15.16, 15.17, 15.18, 32.91, 32.93, 32.131.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 3-12.3-1.

Tennessee Jurisprudence, 4 Tenn. Juris., Automobiles, § 33; 8 Tenn. Juris., Criminal Procedure §§ 23, 49.

Law Reviews.

Criminal Procedure—Tennessee v. Carter: The Strict Requirement of Notice Under Tennessee's Recidivist Sentencing Statutes (David Demar Ayliffe) 35 U. Mem. L. Rev. 145 (2004).

Sentencing Lockdown: What Is the Impact of Blakely on Sentencing in Tennessee? (David L. Raybin), 40 No. 8 Tenn. B.J. 12 (2004).

Not-So-Sweet Sixteen: When Minor Convictions Have Major Consequences Under Career Offender Guidelines (Andrew Tunnard), 66 Vand. L. Rev. 1309 (2013).

NOTES TO DECISIONS

1. Notice Sufficient.

Where count three of the indictment addressed defendant's habitual criminality, it constructively placed defendant on notice of the state's intention to pursue enhanced punishment on the basis of his extensive criminal history. State v. Brown, 795 S.W.2d 689, 1990 Tenn. Crim. App. LEXIS 345 (Tenn. Crim. App. 1990).

Where defendant's conviction for felony murder had been reversed, and the case remanded for resentencing for second degree murder, even though the state had failed to file a notice of range enhancement before trial, since it had provided notice to defendant that it intended to prove his prior murder conviction as an aggravating circumstance to justify imposition of the death penalty, the purpose for which pretrial notice is required had been met for purpose of the resentencing. State v. Dunn, 901 S.W.2d 398, 1995 Tenn. Crim. App. LEXIS 296 (Tenn. Crim. App. 1995).

Defendant had fair warning that the state intended to seek enhanced punishment for the crime of felony evading arrest, accomplishing the purposes of T.C.A. § 40-35-202(a), where both indictments charged evading arrest from the same officer, on the same date, by the same defendant, under the same statutory code provision, T.C.A. § 39-16-603. State v. Livingston, 197 S.W.3d 710, 2006 Tenn. LEXIS 641 (Tenn. 2006).

Defendant did not challenge the notice to seek enhanced punishment and, in fact, stipulated the accuracy of his prior convictions; the notice to seek enhanced punishment was not materially misleading as to his false report and abuse of corpse convictions. State v. Hawkins, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 700 (Tenn. Crim. App. Aug. 28, 2015), aff'd, 519 S.W.3d 1, 2017 Tenn. LEXIS 272 (Tenn. May 1, 2017), cert. denied, Hawkins v. Tennessee, 199 L. Ed. 2d 288, 138 S. Ct. 388, 2017 U.S. LEXIS 6432 (U.S. Oct. 30, 2017).

State's notice that it sought to sentence defendant as a career offender gave fair notice to defendant that he was exposed to other than the standard sentencing, including a lesser classification as a Range II offender, and defendant was not misled or surprised by the State's seeking an enhanced punishment. State v. Click, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 234 (Tenn. Crim. App. Mar. 30, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 494 (Tenn. Aug. 16, 2017), overruled, State v. Patterson, — S.W.3d —, 2018 Tenn. LEXIS 735 (Tenn. Dec. 10, 2018).

Defendant was not entitled to plain error relief when defendant alleged that the prosecution failed to provide an adequate notice of its intent to seek Range III sentencing because defendant did not show that a clear rule of law was breached, that a substantial right was adversely affected, and that the appellate court had to consider the alleged error to do substantial justice. Defendant raised general allegations of defects in the notice, while the court's lack of explicit findings as to each qualifying prior conviction was inconsequential. State v. Clemmons, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 464 (Tenn. Crim. App. June 25, 2018).

2. Notice Not Sufficient.

Where the state in a pretrial discovery response generally indicated its intent to seek enhanced sentencing under T.C.A. § 40-35-202(a) and attached a copy of defendant's criminal record to its response, such did not meet the notice requirements of § 40-35-202(a), because there was no information on the nature of defendant's prior convictions; hence, defendant's enhanced sentences on two counts of attempted aggravated robbery were reversed and the matter was remanded to the trial court for resentencing. State v. Benham, 113 S.W.3d 702, 2003 Tenn. LEXIS 824 (Tenn. 2003).

State filed no notice in this case before trial, and notice filed in another case could not serve to redeem the State's mistake; the statute requires the filing of a notice before a trial in the case at bar, not a blanket notice that was good in perpetuity. State v. Williams, 558 S.W.3d 633, 2018 Tenn. LEXIS 637 (Tenn. Oct. 12, 2018).

Notice filed in one case cannot provide fair notice of the State's intention to seek enhanced punishment in another case; if a new notice must be filed when additional charges are indicted in the same case, a new notice must certainly be filed when there is a different case altogether, and the unwritten presupposition underlying the notice cases is that the notice of enhancement is filed in the same case. State v. Williams, 558 S.W.3d 633, 2018 Tenn. LEXIS 637 (Tenn. Oct. 12, 2018).

3. Late-filed Notice.

The 1989 version of T.C.A. § 40-35-202 incorporates the specific time requirements for the filing of the notice contained in Tenn. R. Crim. P. 12.3(a). The rule fashioned by the supreme court in State v. Stephenson, 752 S.W.2d 80, 1988 Tenn. LEXIS 110 (Tenn. 1988) is applicable to the 1989 version of subsection (a). State v. Gilmore, 823 S.W.2d 566, 1991 Tenn. Crim. App. LEXIS 581 (Tenn. Crim. App. 1991); State v. Kinnaird, 823 S.W.2d 571, 1991 Tenn. Crim. App. LEXIS 589 (Tenn. Crim. App. 1991).

4. Notice Not Required.

State was not required to file a sentencing statement at least 10 days prior to trial, as the State only sought to have defendant sentenced with the range for a Range I, standard offender, not as a multiple, persistent, or career offender. State v. Jackson, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 1003 (Tenn. Crim. App. Dec. 10, 2012), modified, 444 S.W.3d 554, 2014 Tenn. LEXIS 619 (Tenn. Aug. 22, 2014).

State did not request that the trial court find that defendant was a multiple, persistent, or career offender and thus, had no statutory requirement to provide notice of enhancement factors. Notwithstanding that the State was not required to provide notice, defendant had eight days of actual notice between the filing of the State's Sentencing Memorandum and the hearing. State v. Hatmaker, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 439 (Tenn. Crim. App. June 8, 2018).

5. Right to a Continuance.

The right to a continuance after the filing of an untimely Tenn. R. Crim. P. 12.3 notice is absolute, and the trial judge must either strike the notice of enhancement and proceed to trial, or grant a continuance of at least 10 days from the date of the entry of the court order resetting the case for trial. State v. Lowe, 811 S.W.2d 526, 1991 Tenn. LEXIS 247 (Tenn. 1991); State v. Morgan, 929 S.W.2d 380, 1996 Tenn. Crim. App. LEXIS 99 (Tenn. Crim. App. 1996).

6. Waiver.

Although defendant did not receive notice of the State's intent to seek enhanced punishment until five days before trial, defendant received notice of such intent and did not raise any objection to any of the convictions listed therein; therefore, defendant waived plenary review. State v. Fusco, 404 S.W.3d 504, 2012 Tenn. Crim. App. LEXIS 994 (Tenn. Crim. App. Dec. 6, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 360 (Tenn. Apr. 11, 2013).

7. No Prejudice Found.

In a case in which defendant was sentenced to ten years' imprisonment as a Range III, persistent offender pursuant to T.C.A. § 40-35-202, the State's notice that it intended to seek enhanced punishment was ambiguous. However, defendant did not show that he investigated the ambiguity and did not show prejudice from the ambiguous notice. State v. Purvis, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 237 (Tenn. Crim. App. Mar. 30, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 418 (Tenn. July 19, 2017).

Although the notice relative to enhanced punishment improperly referenced Tennessee Rules of Evidence regarding use of prior convictions for impeachment purposes and was the result of imprecise drafting by the State, because the title showed that the purpose was to provide notice to the defense of the intention to seek an enhanced sentence upon conviction, the notice identified all of the required information for defendant's six previous felony convictions, and defendant did not dispute the accuracy of the convictions, the notice was not materially misleading, and the defense was charged with inquiring into the ambiguous notice and demonstrating prejudice, but defendant did not establish that he was prejudiced by the poorly drafted notice. State v. Buckner, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 716 (Tenn. Crim. App. Aug. 14, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 875 (Tenn. Dec. 6, 2017).

Even though the State failed to provide defendant with proper notice of its intent to seek an enhanced sentence against him, defendant was not prejudiced because the State's notice filed in another pending indictment provided adequate notice, as the notice made defendant aware that he qualified as a career offender. State v. Williams, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 843 (Tenn. Crim. App. Sept. 13, 2017), aff'd, 558 S.W.3d 633, 2018 Tenn. LEXIS 637 (Tenn. Oct. 12, 2018).

Defendant failed to show that he was prejudiced by the State's late-filed notice to seek enhanced punishment for his being a career offender and therefore he was not entitled to relief because it was filed three days before trial started and defendant failed to request a continuance. State v. Owens, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 107 (Tenn. Crim. App. Feb. 20, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 264 (Tenn. June 21, 2019).

8. Substantial Compliance.

District attorney's response served as constructive notice for purposes of T.C.A. § 40-35-202(a), substantially complying with the requirements, and thus, there was no prejudice to the inmate by the State's failure to strictly comply. Jelks v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 593 (Tenn. Crim. App. July 6, 2017).

9. Requirements.

40-35-203. Court to impose sentence — Exceptions.

Except as provided in subsection (c) and with respect to fines as provided in § 40-35-301, sentences in felony and misdemeanor cases shall be imposed by the court. Upon a verdict or plea of guilty, the court shall set and conduct a sentencing hearing except as provided in subsection (b). Evidence may, but need not, be presented by both the defendant and the district attorney general on any matter relevant to the issue of sentencing. The sentencing hearing may occur immediately after guilt is determined, subject to the rights of the parties to postpone the hearing under § 40-35-209(a).
Where the sentence is agreed upon by the district attorney general and the defendant and accepted by the court, the court may immediately impose sentence as provided in § 40-35-205(d) and no specific sentencing hearing or presentence reports shall be required. The judge may, in the judge's discretion, direct that a complete presentence report be prepared. No defendant sentenced to the custody of the department of correction shall be committed or conveyed to the department unaccompanied by the completed presentence report or investigation and report required by § 40-35-209(d)(1). Furthermore, a presentence report or investigation and report shall be prepared on all defendants sentenced to a period of continuous confinement of one (1) year or greater in a local jail or workhouse. This requirement shall not be cause for delay in conveying the defendant to the local institution to which the defendant has been committed. There shall be a presentence report and hearing on any issue of sentencing not agreed upon by the parties and accepted by the court.
If a capital offense is charged and the jury returns a verdict where death is a possibility, the jury shall fix the punishment in a separate sentencing hearing as otherwise provided by law, unless the jury is waived as to punishment.
If the trial judge who presided at the trial on the merits is unavailable because of death, resignation, retirement, ill health or loss of jurisdiction, another judge appointed by the chief justice of the Tennessee supreme court may impose the sentence.
If the criminal offense for which the defendant is charged carries an enhanced punishment for a second or subsequent violation of the same offense, the indictment in a separate count shall specify and charge that fact. If the defendant is convicted of the offense, then the jury must find that beyond a reasonable doubt the defendant has been previously convicted the requisite number of times for the same offense. Upon such finding, the defendant shall be subject to the authorized terms of imprisonment for the felonies and misdemeanors as set forth in § 40-35-111.

Acts 1989, ch. 591, § 6; 1990, ch. 980, § 24.

Sentencing Commission Comments.

This section requires that the judge impose the sentence except in the area of fines over $50.00 and in capital cases. Subsection (a) provides that in any sentencing hearing both sides may introduce evidence on matters relevant to sentencing questions. The sentencing hearing may occur immediately after the guilt phase of the trial, but normally the hearing is postponed for the preparation of a sentencing report.

Subsection (b) provides that if the parties are agreed as to all aspects of sentencing, the judge may immediately impose sentence, but the judge always has the discretion to direct that a pre-sentence report be prepared. The remaining provisions of this subsection (b) require that such reports be prepared for all persons who are incarcerated in the department of correction or in a local facility in excess of one year. Obviously, if the judge has already imposed sentence, such as in a plea situation, the report contemplated by this section is in the nature of a “post-sentence” report but should contain the same information as those prepared prior to any sentencing.

For an example of an application of subsection (e), see § 39-17-418.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Cross-References. Execution of judgment, title 40, ch. 23.

Sentencing provisions applicable to persons committing crimes prior to July 1, 1982, title 40, ch. 20.

Rule Reference. This section is referred to in the Advisory Commission Comments under Rule 11 of the Tennessee Rules of Criminal Procedure.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 22.75, 22.98, 22.103, 22.104, 24.12, 25.2, 32.30, 32.60, 32.63, 32.80, 32.92, 32.93.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 45.

Law Reviews.

Sentencing Lockdown: What Is the Impact of Blakely on Sentencing in Tennessee? (David L. Raybin), 40 No. 8 Tenn. B.J. 12 (2004).

Attorney General Opinions. District attorney not authorized to modify court order sentencing misdemeanant, OAG 98-0170, 1998 Tenn. AG LEXIS 170 (8/28/98).

NOTES TO DECISIONS

1. Applicability.

There is no connection between the plea bargaining procedures prescribed in Tenn. R. Crim. P. 11 and the correction or reduction of sentence provisions of Tenn. R. Crim. P. 35. The respective trial judges set sentencing hearings in each of these cases in accordance with T.C.A. § 40-35-203. State v. Hodges, 815 S.W.2d 151, 1991 Tenn. LEXIS 321 (Tenn. 1991).

T.C.A. §§ 39-13-523 and 40-35-203(e) dealt with two different types of sentence enhancements, where § 40-35-203(e) referred to T.C.A. § 40-35-111, which outlined the authorized terms of imprisonment and fines for felonies and misdemeanors, and T.C.A. § 39-13-523 addressed release eligibility of a defendant who was classified as a multiple rapist; thus, § 39-13-523 did not require the multiple rapist classification for parole eligibility purposes to be included in the indictment. Thurmond v. Carlton, 202 S.W.3d 131, 2006 Tenn. Crim. App. LEXIS 311 (Tenn. Crim. App. Apr. 4, 2006), appeal denied, Thurmond v. State, — S.W.3d —, 2006 Tenn. LEXIS 798 (Tenn. Aug. 28, 2006).

40-35-204. Presentence service officers.

The commissioner of correction shall appoint presentence service officers for each court having criminal jurisdiction. These officers may be the existing probation officers. Presentence service officers shall conduct investigations and make reports to sentencing courts relating to the imposition of sentences on defendants.
With permission of the court, and if the commissioner determines that it will not interfere with their other duties, the presentence service officers may:
1. Assist courts or other judicial officers in developing information relating to the setting of bail or other pretrial release or detention decisions; and
2. Develop information about defendants relating to the selection of a defendant for particular correctional programs.

Acts 1989, ch. 591, § 6.

Sentencing Commission Comments.

This section is the same as prior law.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 7.12, 32.91, 32.96.

40-35-205. Presentence investigation — Physical or mental examination of defendant.

Upon acceptance of a guilty plea or upon a verdict or finding of guilty, the court shall, in the case of a felony, and may, in the case of a misdemeanor, direct the presentence service officer to make a presentence investigation and report, except as provided in § 40-35-203 and subsection (b). The presentence service officer shall conduct the investigation necessary to prepare a presentence report, meeting the requirements of § 40-35-207 and any other investigation the officer deems appropriate or the court directs and shall independently determine the factual basis for any enhancement or mitigating factors asserted by the parties.
With the concurrence of a defendant, a court may direct the presentence service officer to begin the presentence investigation before the adjudication of the guilt of the defendant. Nothing discovered by the presentence investigation may be disclosed to the district attorney general, the court or the jury before acceptance of a plea of guilty or a verdict or finding of guilty unless the defendant concurs. If the presentence investigation is begun before the adjudication of guilt, the information discovered shall be disclosed to the defendant or defendant's counsel, upon request, after the court's acceptance of a plea of guilty or a verdict or finding of guilt.
The court may order a physical or mental examination of the defendant. If the court determines that an examination should be made, it shall issue an order that the defendant submit to examination at a time and place designated by the court and that the examination be conducted by a physician, psychiatrist, licensed psychologist, licensed psychological examiner, licensed senior psychological examiner or certified psychological assistant designated by the court. Upon the court's written determination that the defendant is indigent, the court may direct that any physical or mental examination provided for in this section shall be performed by the department of correction or mental health and substance abuse services. The examination shall be performed on an outpatient basis if appropriate. The costs of the examination shall be taxed as other costs in cases of indigency.
If the district attorney general and defendant agree on a specific sentence as to the offense classification, length or manner of service of sentence and the court accepts the sentence agreement as the appropriate disposition in the case, no presentence report or hearing shall be required unless so ordered by the court. No defendant sentenced to the custody of the department of correction shall be committed or conveyed to the department unaccompanied by the completed presentence report or investigation and report required by § 40-35-209(d)(1). Furthermore, a presentence report or investigation and report shall be prepared on all defendants sentenced to a period of continuous confinement of one (1) year or greater in a local jail or workhouse. This requirement shall not be cause for delay in conveying the defendant to the local institution to which the defendant has been committed. No sentence agreement shall be binding on the court, which may either accept or reject the agreement pursuant to Rule 11 of the Tennessee Rules of Criminal Procedure. If the court rejects the sentence agreement, the defendant may elect to have a sentencing hearing with a presentence report.

Acts 1989, ch. 591, § 6; 1999, ch. 157, § 1; 2001, ch. 334, § 8; 2010, ch. 1100, § 68; 2012, ch. 575, § 1; 2012, ch. 727, § 44.

Sentencing Commission Comments.

This section is similar to prior law. Subsection (a) requires the preparation of a presentence report in all felony cases except where the judge finds that such is unnecessary where the parties have agreed on all aspects of the sentence. Presentence reports are discretionary with the court in misdemeanor cases.

Subsection (b) permits the court to direct the preparation of the presentence report prior to trial where the defendant agrees that such should be done. This is of value in instances where the defendant desires to plead guilty and a presentence report might be necessary for a particular sentencing issue. This provision continues the prior practice of making such presentence reports confidential where they are prepared prior to an adjudication of guilt.

Subsection (c) permits the court authority to direct a physical or mental examination of the defendant where such is necessary. Subsection (d) also provides that any defendants sentenced to a period of incarceration of one year or more must have a presentence report prepared.

Subsection (d) states that presentence reports are not required where the parties agree to the terms of the sentence. However, the trial judge always has the authority to accept or reject any sentence agreement. The trial court may defer sentencing until after receipt of the presentence report, pursuant to Tenn. R. Crim. P. 11.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Acts 2010, ch. 1100, § 153 provided that the commissioner of mental health and developmental disabilities, the commissioner of mental health, the commissioner of intellectual and developmental disabilities, and the commissioner of finance and administration are authorized to promulgate rules and regulations to effectuate the purposes of the act. All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

For the Preamble to the act concerning the transfer of certain functions relating to probation and parole services and the community correction grant program from the board of probation and parole to the department of correction, please refer to Acts 2012, ch. 727.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended subsection (c), shall be fully accomplished on or before January 1, 2013.

Cross-References. Classification of offenses, § 40-35-110.

Confidentiality of public records, § 10-7-504.

Determination of indigency, § 8-14-105.

Penalties for felonies and misdemeanors, § 40-35-111.

Sentence ranges, § 40-35-112.

Sentencing provisions applicable to persons committing crimes prior to July 1, 1982, title 40, ch. 20.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 22.103, 32.93, 32.96, 32.97, 32.98.

Law Reviews.

Judicial Nullification of Juries: Use of Acquitted Conduct at Sentencing (Eang Ngov), 76 Tenn. L. Rev. 235 (2009).

The Unfairness of the Fair Sentencing Act of 2010 (Tyler B. Parks), 42 U. Mem. L. Rev. 1105 (2012).

NOTES TO DECISIONS

1. Resentencing Ordered.

Sentencing of defendant convicted of burglary and two misdemeanors without the filing of a presentence report required remand for resentencing. State v. Rice, 973 S.W.2d 639, 1997 Tenn. Crim. App. LEXIS 1199 (Tenn. Crim. App. 1997).

2. Self-Incrimination.

Trial court's instruction to defendant to begin a statutorily mandated process for preparation of a presentence report was not an act overbearing his will and forcing him to provide self-incriminating information; he was represented by counsel and was given the full colloquy before testifying at trial, and thus he was fully aware of his right to remain silent. State v. Kiser, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 340 (Tenn. Crim. App. June 6, 2019).

40-35-206. [Reserved.]

The presentence report shall set forth:
1. The characteristics and circumstances of the offense committed by the defendant;
2. The defendant's physical and mental history and condition, family history and background, education, occupation and personal habits;
3. Information relating to enhancement or mitigating factors asserted by the parties and its source;
4. The defendant's record of prior convictions, including any juvenile court findings or adjudications that the defendant committed an act as a juvenile that would constitute a Class A or Class B felony if committed by an adult;
5. Information relating to any enhancement or mitigating factors that may affect the sentence imposed although not asserted by the parties and the source from which the information was obtained;
6. If a sentence not involving confinement is likely or is sought by an eligible defendant, information to assist the court in deciding whether to grant probation and in imposing conditions for any probation supervision that may be ordered, including the nature and extent of programs and resources available to assist in rehabilitation of the defendant;
7. If requested by the court, information to assist the court in imposing a fine or restitution, including the financial resources of the defendant, the financial needs of the defendant's dependents and the gain derived from or loss caused by the criminal activity;
8. Any statement relating to sentencing submitted by the victim of the offense or the investigative agency;
9. Information to assist the court in deciding whether to sentence an eligible defendant to an available and appropriate community-based alternative to incarceration as provided in chapter 36 of this title and in imposing the terms and conditions for any such sentence;
10. The results of the validated risk and needs assessment; and
11. Any other matters the court directs to be included.
The presentence report shall not include a recommendation for confinement or nonconfinement of any defendant unless otherwise required by law.
In misdemeanor cases where the court has ordered a presentence report or hearing and in cases in which neither party asserts the existence of any enhancement or mitigating factors, the court may direct the presentence service officer not to include certain types of information normally required in the report.
As used in this section, “validated risk and needs assessment” means a determination of a person's risk to reoffend and the needs that, when addressed, reduce the risk to reoffend through the use of an actuarial assessment tool designated by the department that assesses the dynamic and static factors that drive criminal behavior.

Acts 1989, ch. 591, § 6; 2010, ch. 861, § 4; 2016, ch. 906, §§ 7, 8.

Sentencing Commission Comments.

This section specifies the matters which are to be contained in the presentence report. If the judge is to make an informed sentencing determination, it is necessary to have as much data about the defendant and the circumstances of the offense as possible. This section also contains a minor change from prior law. Prior law allowed a presentence officer to recommend whether or not a defendant should be incarcerated. Subsection (b) provides that a presentence report shall not include a recommendation for confinement or nonconfinement. The commission believes that sentencing reports should not be adversarial in nature but should be informative.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Acts 2010, ch. 861, § 5 provided that the act, which amended subdivision (a)(4), shall apply to all defendants committing offenses on or after July 1, 2010.

Acts 2016, ch. 906, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Public Safety Act of 2016.”

Cross-References. Alternative sentencing, title 40, ch. 36.

Enhancement factors, § 40-35-114.

Mitigating factors, § 40-35-113.

Penalties for Class A and B felonies, § 40-35-111.

Prisoners who may apply for release, procedure, § 41-2-128.

Probation eligibility, § 40-35-303.

Victim impact statement, § 40-38-103, title 40, ch. 38, part 2.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 32.96.

Law Reviews.

Judicial Nullification of Juries: Use of Acquitted Conduct at Sentencing (Eang Ngov), 76 Tenn. L. Rev. 235 (2009).

The Unfairness of the Fair Sentencing Act of 2010 (Tyler B. Parks) , 42 U. Mem. L. Rev. 1105 (2012).

NOTES TO DECISIONS

1. Findings of Fact.

Where trial court fails to set forth findings of fact concerning ability to pay fine, appellate review is de novo without presumption of correctness. State v. Alvarado, 961 S.W.2d 136, 1996 Tenn. Crim. App. LEXIS 736 (Tenn. Crim. App. 1996).

2. Ability to Pay Fine.

Defendant convicted of fourth offense DUI was required to pay a $10,000 fine, even though he was financially indebted; defendant's ability to pay the fine is not the controlling factor under T.C.A. § 40-35-207(a)(7). Given the severity of the offense committed by the defendant and his criminal history, the fine was proper. State v. Butler, 108 S.W.3d 845, 2003 Tenn. LEXIS 573 (Tenn. 2003).

3. Risk And Needs Assessment.

In an aggravated vehicular homicide, aggravated vehicular assault, and leaving the scene of an accident case, defendant's effective sentence of 33 years was appropriate because the trial court considered the risk and needs assessment in determining defendant's sentence, but did not err in declining to give it any weight as the assessment's conclusion that defendant had a low risk of reoffending was inconsistent with the evidence of his four driving under the influence convictions and other drug- and alcohol-related convictions, his multiple failed attempts at rehabilitation, his continued use of drugs, and the fact that he ran over two people in broad daylight while so intoxicated that he was unable to stay awake. State v. Solomon, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 788 (Tenn. Crim. App. Oct. 23, 2018).

40-35-208. Filing of report — Availability to parties.

The presentence report shall be filed with the clerk of the court and complete copies shall be made available to the parties within ten (10) days prior to the sentencing hearing, which may be waived by the consent of all parties and the court.

Acts 1989, ch. 591, § 6.

Sentencing Commission Comments.

This section requires that the presentence report be made available ten days prior to the sentencing hearing unless the parties and the court consent to a different time. The commission believes that the court and the parties should have ample opportunity within which to review the presentence report.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Cross-References. Filing of presentence report including victim impact statement, § 40-38-206.

Impact statement to be part of presentence report, § 40-38-205.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 24.90, 32.95, 32.97.

40-35-209. Sentencing hearing — Transfer of report to department of correction or local jail or workhouse — Form of judgment of conviction.

Before imposing sentence or making other disposition upon acceptance of a plea of guilty or upon a verdict or finding of guilty, the court shall conduct a sentencing hearing without unreasonable delay, but in no event more than forty-five (45) days after the finding of guilt, except as provided in § 40-35-203(b) relating to agreed sentences and § 40-35-203(c) relating to capital crimes. The court, upon the request of either party and with good cause shown, shall continue the sentencing hearing for at least five (5) days, but not more than thirty (30) days, after the filing of a presentence report, unless either party shows good cause for further postponement or unless these time constraints will unduly prejudice the position of either party.
At the sentencing hearing, the court shall afford the parties the opportunity to be heard and present evidence relevant to the sentencing of the defendant and may afford the victim of the offense or the family of the victim the opportunity to testify relevant to the sentencing of the defendant. The court may allow the parties to subpoena witnesses and call or cross-examine witnesses, including, but not limited to, the person who prepared the presentence report and any person whose information contained in the presentence report is relevant to the sentencing decision. At the sentencing hearing, the district attorney general shall be the first party to present evidence and then the defendant shall have an opportunity to present evidence. Both parties may be allowed to call witnesses in rebuttal. The rules of evidence shall apply, except that reliable hearsay, including, but not limited to, certified copies of convictions or documents, may be admitted if the opposing party is accorded a fair opportunity to rebut any hearsay evidence so admitted; provided, that this subsection (b) shall not be construed to authorize the introduction of any evidence secured in violation of the United States or Tennessee constitutions.
A record of the sentencing hearing is kept and preserved in the same manner as trial records. The record of the sentencing hearing is part of the record of the case and shall include specific findings of fact upon which application of the sentencing principles was based.
1. Whenever a defendant is sentenced for a felony to the custody of the department of correction or a local jail or workhouse, the sentencing court shall transmit to the commissioner of correction or the superintendent of the local jail or workhouse a copy of the defendant's presentence report when one is prepared in accordance with this chapter. If the presentence report was controverted at the sentencing hearing, the court shall order the report modified to incorporate any findings of the court that are inconsistent with the original report, and the defendant shall be entitled to file a statement in response to the presentence report and the court's findings. If there is no presentence report and the defendant is sentenced for a felony to the department or local jail or workhouse, the court shall direct the presentence service officer to make an investigation and report in conformity with § 40-35-207. The clerk shall, within ten (10) days after entry of the judgment of conviction of the defendant to a local jail or workhouse, transmit to the superintendent of the institution the original or modified presentence report and shall, within ten (10) days after receiving statements from the counsel for the defendant, transmit a copy to the superintendent and a copy to the district attorney general; provided, that this requirement shall not be cause for delay in conveying the defendant to the local institution to which the defendant has been committed. Notwithstanding any other law to the contrary, no defendant sentenced to the custody of the department shall be committed or conveyed to the department unaccompanied by the completed presentence report or investigation and report required by this section.
2. The department has the authority to employ a sufficient number of presentence service officers to provide the additional reports required by this subsection (d).
3. In those counties wherein a presentence report is prepared upon instructions of the court before the trial of any person, the presentence report shall not be commented upon or read to the jury by the judge or the district attorney general or defense counsel.
1. After the defendant is sentenced, the district attorney general shall complete and file within thirty (30) days the uniform judgment document for the conviction that is signed by all parties; but if not signed by the parties, the clerk shall make a copy of the document available to the parties before entry by the court, which shall indicate for each offense the following:
  1. The type of offense for which the defendant was charged and convicted and the sentence imposed;
  2. Whether the defendant was sentenced as a standard offender;
  3. Whether the defendant was sentenced as a multiple offender;
  4. Whether the defendant was sentenced as a persistent offender;
  5. Whether the defendant was sentenced as a career offender;
  6. Whether the defendant was sentenced as a repeat violent offender;
  7. Whether the defendant was sentenced as a one hundred percent (100%) offender pursuant to § 40-35-501(i);
  8. Whether the defendant was sentenced as an especially mitigated offender;
  9. Whether the sentence was to a local jail;
  10. Whether the sentence was to a local workhouse;
  11. Whether the sentence was to the department;
  12. Whether the sentence was to probation supervision;
  13. Whether the sentence was to continuous confinement or periodic confinement followed by a period of probation supervision;
  14. Whether the sentence was to a community-based alternative to incarceration as provided in chapter 36 of this title;
  15. Whether the sentence runs concurrently or consecutively with any other sentence;
  16. The amount, if any, of pretrial jail credit awarded pursuant to § 40-23-101;
  17. The social security number of the defendant;
  18. The date of birth of defendant; and
  19. The date the conviction offense was committed.
2. After the defendant is sentenced the uniform judgment document completed by the district attorney general is a public record and is available to anyone upon request.
The supreme court shall promulgate a uniform judgment document for use by the trial judges in this state, and the trial judges shall employ that document for each criminal case resulting in a conviction.
If the judgment of conviction does not include the information required in subsection (e), it shall be returned to the sentencing court to be completed.

Acts 1989, ch. 591, § 6; 1994, ch. 994, § 3; 2000, ch. 800, §§ 3, 4; 2009, ch. 379, §§ 1, 2.

Sentencing Commission Comments.

Subsection (a) requires a sentencing hearing in all felony cases except where the parties have agreed to the sentence and in capital cases. The prior law required the sentence hearing within 30 days after the finding of guilt. This has been expanded to 45 days to give the presentence officers additional time to complete their reports.

Subsection (b) is similar to prior law which sets forth the manner in which sentencing hearings are to be conducted. The commission intends to include within the concept of the “rules of evidence” the current common law evidentiary rules which are presently in force as well as the new Tennessee Rules of Evidence which took effect on January 1, 1990.

Subsection (c) provides that the sentencing hearing is part of the criminal process and that a full record of the hearing must be maintained. The trial judge must include “specific findings of fact upon which applications of the sentencing principles were based.” There is no requirement that the judge make his or her sentencing reasons in writing; however, such reasons must be stated on the record. These reasons for sentencing are important in the event of appellate review. See State v. Gauldin, 737 S.W.2d 795 (Tenn. Crim. App. 1987).

Subsection (d) provides for the transmission of the presentence reports to the department of correction or the local jails or workhouses where the defendant is incarcerated. The commission believes that the information contained in these reports is not only of value in making sentencing determinations but assists the authorities in classifying the offenders when they are incarcerated and in making release decisions.

Subsection (e) sets forth the required content of the judgment document which must be prepared for each offense. The district attorney's office must prepare this document. The commission believes that someone must be designated to prepare the document since inconsistencies have resulted from a lack of proper delegation of this duty. As required by subsection (g), if the judgment document does not include the required information, it will be returned to the sentencing court to be completed. Again, the sentencing judgment document is critical for purposes of calculation of sentencing and the monitoring of the system as a whole. This cannot be accomplished with accuracy if the judgment documents are incomplete.

Code Commission Notes.

The former first sentence in subdivision (e)(2) concerning former § 40-35-210(h) was deleted as obsolete by the code commission in 2006.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Cross-References. Alternative sentencing, title 40, ch. 36.

Enhancement factors, § 40-35-114.

Execution of judgment, title 40, ch. 23.

Mitigating factors, § 40-35-113.

Pretrial jail credit, § 40-23-101.

Repeat violent offenders, § 40-35-120.

Sentencing provisions applicable to persons committing crimes prior to July 1, 1982, title 40, ch. 20.

Rule Reference. This section is referred to in Rule 17 of the Rules of the Supreme Court of Tennessee.

This section is referred to in the Advisory Commission Comments under Rule 101 of the Tennessee Rules of Evidence.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 18.2, 19.20, 22.75, 22.104, 24.90, 31.50, 32.95, 32.96, 32.98, 32.99, 32.222, 32.224.

Tennessee Jurisprudence, 6A Tenn. Juris., Constitutional Law, § 44; 8 Tenn. Juris., Criminal Procedure, §§ 40, 41, 45; 10 Tenn. Juris., Double Jeopardy, § 3.

Tennessee Law of Evidence (2nd ed., Cohen, Paine and Sheppeard), Rule 101; § 802.2.

Law Reviews.

Judicial Nullification of Juries: Use of Acquitted Conduct at Sentencing (Eang Ngov), 76 Tenn. L. Rev. 235 (2009).

The Unfairness of the Fair Sentencing Act of 2010 (Tyler B. Parks) , 42 U. Mem. L. Rev. 1105 (2012).

NOTES TO DECISIONS

1. Application.

Trial court failed to comply with T.C.A. § 40-35-210 because it did not articulate the individual sentences for all of defendant's convictions; though the judgment forms reflected the individual sentences imposed in each conviction, the trial court failed to articulate the same at the sentencing hearing. State v. Swinford, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 292 (Tenn. Crim. App. Apr. 17, 2018).

Trial court did not abuse its discretion in finding defendant violated the terms of her community corrections sentence as she absconded from the halfway house, and she admitted to violating the terms of her community corrections sentence; however, the trial court erred in increasing defendant's sentence from five years, six months to eight years because the trial court did not conduct a sentencing hearing pursuant to the principles of the Sentencing Reform Act, and did not state on the record specific findings of fact upon which application of the sentencing principles was based. State v. Frye, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 619 (Tenn. Crim. App. Oct. 3, 2019).

2. Purpose.

The purpose of T.C.A. § 40-35-209(c) is to ensure that a proper record is made for appellate review. State v. Crook, 2 S.W.3d 238, 1998 Tenn. Crim. App. LEXIS 1321 (Tenn. Crim. App. 1998).

3. Enhancement and Mitigating Factors to be Placed in the Record.

The Sentencing Reform Act of 1989, T.C.A. § 40-35-101 et seq., requires the trial judge to place in the record, either orally or in writing, the enhancement and mitigating factors, or the absence of such factors, along with specific findings of fact upon which the principles of sentencing are based. These findings by the trial judge must be in the record for an adequate review on appeal and are required by the statute. State v. Dies, 829 S.W.2d 706, 1991 Tenn. Crim. App. LEXIS 954 (Tenn. Crim. App. 1991).

A trial court does not need to make findings on the record when fixing a percentage of a defendant's sentence to be served in incarceration, it need only consider the principles of sentencing and enhancement and mitigating factors in order to comply with the mandates of the misdemeanor sentencing statute. State v. Troutman, 979 S.W.2d 271, 1998 Tenn. LEXIS 665 (Tenn. 1998).

4. Hearsay.

An abstract of the defendant's driving record from New Jersey bearing a signed certification at the bottom of each page as well as an impression of the New Jersey seal on each page; identifying defendant by name, address, and driver license number on each sheet; and with each sheet containing the same abstract date, number, and unit number satisfied the reliable hearsay requirement of T.C.A. § 40-35-209. State v. Gilboy, 857 S.W.2d 884, 1993 Tenn. Crim. App. LEXIS 264 (Tenn. Crim. App. 1993).

A probation violation report was precisely the type of reliable hearsay contemplated under T.C.A. § 40-35-209. State v. Wall, 909 S.W.2d 8, 1994 Tenn. Crim. App. LEXIS 81 (Tenn. Crim. App. 1994).

Trial court was permitted to rely on the presentence report even though its author did not testify at the sentencing hearing. State v. Jackson, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 1003 (Tenn. Crim. App. Dec. 10, 2012), modified, 444 S.W.3d 554, 2014 Tenn. LEXIS 619 (Tenn. Aug. 22, 2014).

Trial court did not abuse its discretion by revoking defendant's probation because the record supported its finding that defendant violated the conditions of his probation; defendant confirmed that he failed a drug screen and that he failed to report to his probation officer, and that evidence alone was sufficient to support the trial court's finding that he had violated his probation. State v. Phelps, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 435 (Tenn. Crim. App. May 24, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 695 (Tenn. Oct. 3, 2017).

Trial court did not err in entering the Tennessee Bureau of Investigation report of defendant's blood test results showing drugs in his system into evidence and allowing a special agent to testify regarding those results because, although the special agent did not perform the testing, the report was reliable hearsay as the special agent was a supervisor who examined the report and determined the tester followed the appropriate protocol; defendant did not challenge the trial court's finding that the report constituted reliable hearsay nor did he maintain that he did not have a fair opportunity to rebut the evidence; and the results of the blood tests were included in the presentence report, and he did not challenge its admission on appeal. State v. Solomon, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 788 (Tenn. Crim. App. Oct. 23, 2018).

Evidence of prior convictions contained in the presentence report was admissible as reliable hearsay; defendant did not make a hearsay objection or any other objection concerning any of the offenses listed in the prior record section of the report, and defendant did not deny that he committed the prior offenses of which he was convicted, nor did he seek a continuance to obtain evidence to refute the accuracy of the information in the report. State v. Slappey, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 343 (Tenn. Crim. App. June 6, 2019).

5. Prior Criminal Record.

Evidence of defendant's prior crimes contained in presentence report was admissible where the defendant did not deny he committed the earlier crimes, nor did he seek a continuance for an opportunity to refute the accuracy of the information. State v. Richardson, 875 S.W.2d 671, 1993 Tenn. Crim. App. LEXIS 651 (Tenn. Crim. App. 1993).

Trial court did not err by permitting an officer to testify about defendant's previous juvenile delinquency adjudications because the officer's testimony regarding defendant's criminal history was reliable based upon his investigation and was relevant to the court's sentencing determinations; and defendant cross-examined the officer and was afforded an opportunity to rebut the evidence. State v. Taylor, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 1 (Tenn. Crim. App. Jan. 3, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 272 (Tenn. May 17, 2018).

6. Victim Impact Statements.

Consideration of written victim impact statements pursuant to § 40-35-209 does not violate the confrontation clause of the United States constitution, as long as the evidence is reliable and the defendant has a fair opportunity to rebut the statement. State v. Moss, 13 S.W.3d 374, 1999 Tenn. Crim. App. LEXIS 527 (Tenn. Crim. App. 1999).

Under T.C.A. § 40-35-209(b) and § 40-38-103(a)(2), a victim has a right to testify and provide impact information for consideration at a sentencing hearing after which the trial court should determine whether the victim's impact testimony contained any relevant and reliable evidence relating to enhancing or mitigating factors and/or any other sentencing consideration, and then decide what weight, if any, should be given to that evidence in fashioning an appropriate sentence. State v. Blackhurst, 70 S.W.3d 88, 2001 Tenn. Crim. App. LEXIS 682 (Tenn. Crim. App. 2001), review or rehearing denied, — S.W.3d —, 2002 Tenn. LEXIS 73 (Tenn. Feb. 11, 2002).

7. Judgment Form.

Defendant's convictions for animal cruelty were proper under Tenn. Sup. Ct. R. 17 and T.C.A. § 40-35-209(e) because the judgment entered by the trial court was a preliminary sentencing order, and not a final judgment, since it was not in the form of a uniform judgment document and did not contain much of the information required in a final judgment form; the trial court also specifically reserved the determination of the restitution owed to the county to a later date following an evidentiary hearing. State v. Siliski, 238 S.W.3d 338, 2007 Tenn. Crim. App. LEXIS 390 (Tenn. Crim. App. May 15, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 878 (Tenn. Sept. 17, 2007).

Defendant's motion for a new trial was timely filed because the order of sentence was entered on the date the uniform judgment document was filed with the court clerk, and the motion was filed less than one month later. State v. Stephens, 264 S.W.3d 719, 2007 Tenn. Crim. App. LEXIS 748 (Tenn. Crim. App. Sept. 21, 2007), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 300 (Tenn. Apr. 14, 2008), overruled in part, State v. Beaty, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 842 (Tenn. Crim. App. Nov. 8, 2016).

Effective date for entry of a judgment or order of sentence is the date of its filing with the court clerk after being signed by the judge. State v. Stephens, 264 S.W.3d 719, 2007 Tenn. Crim. App. LEXIS 748 (Tenn. Crim. App. Sept. 21, 2007), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 300 (Tenn. Apr. 14, 2008), overruled in part, State v. Beaty, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 842 (Tenn. Crim. App. Nov. 8, 2016).

When two jury verdicts are merged into a single conviction, the trial court should complete a uniform judgment document for each count with the merger noted in the “Special Conditions” box for each document. The judgment document for the greater (or surviving) conviction reflecting the jury verdict on the greater count and the sentence imposed by the trial court, while the judgment document for the lesser (or merged) conviction should reflect the jury verdict on the lesser count and the sentence imposed by the trial court. State v. Berry, 503 S.W.3d 360, 2015 Tenn. LEXIS 925 (Tenn. Nov. 16, 2015).

Judgment documents in defendant's case were correct because, when defendant's conviction of aggravated assault merged with his conviction for attempted second degree murder, the trial court correctly reflected the merged conviction on two separate uniform judgment documents. State v. Berry, 503 S.W.3d 360, 2015 Tenn. LEXIS 925 (Tenn. Nov. 16, 2015).

8. Polygraph Test Results.

9. Prejudice.

T.C.A. § 40-35-209 is merely directory and a sentence will not be reversed based upon a delay absent prejudice. Defendant did not prove that he was prejudiced by the delay in his sentencing hearing. State v. Bates, 313 S.W.3d 265, 2009 Tenn. Crim. App. LEXIS 764 (Tenn. Crim. App. Sept. 16, 2009).

Defendant failed to show that he was prejudiced by the trial court's granting the State a continuance beyond the 45-day limit for sentencing hearings because he was on notice of his offender status well before the 45-day delay. State v. Fisher, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 453 (Tenn. Crim. App. June 20, 2018).

40-35-210. Imposition of sentence — Evidence to be considered — Presumptive sentence — Sentence explanation.

At the conclusion of the sentencing hearing, the court shall first determine the appropriate range of sentence.
To determine the specific sentence and the appropriate combination of sentencing alternatives that shall be imposed on the defendant, the court shall consider the following:
1. The evidence, if any, received at the trial and the sentencing hearing;
2. The presentence report;
3. The principles of sentencing and arguments as to sentencing alternatives;
4. The nature and characteristics of the criminal conduct involved;
5. Evidence and information offered by the parties on the mitigating and enhancement factors set out in §§ 40-35-113 and 40-35-114;
6. Any statistical information provided by the administrative office of the courts as to sentencing practices for similar offenses in Tennessee;
7. Any statement the defendant wishes to make on the defendant's own behalf about sentencing; and
8. The result of the validated risk and needs assessment conducted by the department and contained in the presentence report.
The court shall impose a sentence within the range of punishment, determined by whether the defendant is a mitigated, standard, persistent, career or repeat violent offender. In imposing a specific sentence within the range of punishment, the court shall consider, but is not bound by, the following advisory sentencing guidelines:
1. The minimum sentence within the range of punishment is the sentence that should be imposed, because the general assembly set the minimum length of sentence for each felony class to reflect the relative seriousness of each criminal offense in the felony classifications; and
2. The sentence length within the range should be adjusted, as appropriate, by the presence or absence of mitigating and enhancement factors set out in §§ 40-35-113 and 40-35-114.
The sentence length within the range should be consistent with the purposes and principles of this chapter.
When the court imposes a sentence, it shall place on the record, either orally or in writing, what enhancement or mitigating factors were considered, if any, as well as the reasons for the sentence, in order to ensure fair and consistent sentencing.
A sentence must be based on evidence in the record of the trial, the sentencing hearing, the presentence report, the validated risk and needs assessment, and the record of prior felony convictions filed by the district attorney general with the court, as required by § 40-35-202(a).

Acts 1989, ch. 591, § 6; 1995, ch. 493, § 1; 1998, ch. 914, § 1; 2000, ch. 800, § 2; 2005, ch. 353, § 6; 2016, ch. 906, §§ 9, 10.

Sentencing Commission Comments.

This section sets forth the manner in which the trial judge is to determine the appropriate sentence and the manner in which that sentence is to be satisfied. The first determination is to ascertain the appropriate range of the sentence for the class of conviction in the case of a felony. A defendant may be sentenced within Range I, Range II, or Range III depending on the number and types of prior convictions. The comments to the standard, multiple, persistent and career offender provisions address how those convictions are to be considered in making the appropriate range determination. A defendant who is convicted of a Class C felony and has two prior Class C convictions would be sentenced as a Range II offender which carries a sentence of between six and ten years. See also, the sentencing grid accompanying the comments to § 40-35-101.

Having determined the potential span of years available, the court must then impose a specific determinate sentence and, in most instances, ascertain whether a defendant should be incarcerated or whether the defendant should receive full or partial probation. Except for the most serious felonies and, in the case of enhanced punishment based on prior felony convictions, the trial judge has numerous sentencing options.

The court must begin the sentencing determination at the statutory minimum which is called the “presumptive sentence” under subsection (c). If there are no enhancement or mitigating factors, then the court must impose the minimum sentence within the appropriate range.

Pursuant to subsection (d), if the court finds enhancing factors but no mitigating factors, then the court may set the sentence above the minimum but still within the appropriate range. Subsection (e) requires a weighing process based on the merits of the various enhancement and mitigating factors. The sentencing commission specifically did not designate any particular numeric value for the enhancement and mitigating factors. Other jurisdictions have given these factors numeric values but this removes the judicial discretion necessary to make individualized sentencing determinations. The provisions of this section which require that the judge begin a sentencing determination at the statutory minimum will promote a uniform sentencing procedure.

There may be instances where there are no enhancement factors but there are several mitigating factors. If the defendant has no prior felony convictions, the trial judge should designate the defendant as an especially mitigated offender with the sentencing options as provided in § 40-35-109.

Because the enhancement and mitigating factors are of great importance in sentencing determinations, subsection (f) requires that factual findings concerning the presence or absence of such factors must be made on a record either orally or in writing.

The provisions of subsection (b) require the court to consider all of the proof at the trial, the presentence report, the principles of sentencing, the nature and characteristics of the criminal conduct involved, evidence and information offered by the parties on the mitigating and enhancement factors, and any statement that the defendant desires to make in his own behalf about sentencing. This subsection permits the court the greatest latitude in considering all available information in imposing the appropriate sentence and sentence alternative. Lastly, subsection (g) restates that the sentence must be based on evidence in the record, the sentencing hearing, the presentence report, and the record of any prior felony convictions filed by the district attorney general as required by § 40-35-202(a). Implicit within this subsection (b) is that the judge may not consider matters other than those factors presented in open court.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Acts 2000, ch. 800, § 1 provided that § 2 of the act, which added former subsection (h), shall be known and may be cited as the “Criminal Sentence Explanation Act of 2000.”

Acts 2005, ch. 353, § 18 provided that the act, which rewrote this section, shall apply to sentencing for criminal offenses committed on or after June 7, 2005. Offenses committed prior to June 7, 2005, shall be governed by prior law, which shall apply in all respects. However, for defendants who are sentenced after June 7, 2005, for offenses committed on or after July 1, 1982, the defendant may elect to be sentenced under the provisions of the act by executing a waiver of such defendant's ex post facto protections. Upon executing such a waiver, all provisions of the act shall apply to the defendant.

Acts 2005, ch. 353, § 19 provided that the act, which rewrote this section, shall have no application to sentencing for persons convicted of murder in the first degree, which shall be governed by the provisions of §§ 39-13-202—39-13-208.

Acts 2016, ch. 906, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Public Safety Act of 2016.”

Cross-References. Alternative sentences, title 40, ch. 36.

Classification of offenses, § 40-35-110.

Enhancement factors, § 40-35-114.

Execution of judgment, title 40, ch. 23.

Mitigating factors, § 40-35-113.

Penalties for felonies and misdemeanors, § 40-35-111.

Presentence report, § 40-35-207.

Repeat violent offenders, § 40-35-120.

Sentence ranges, § 40-35-112.

Sentencing provisions applicable to persons committing crimes prior to July 1, 1982, title 40, ch. 20.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 32.80, 32.91, 32.121, 32.128, 32.160, 32.163, 32.165, 32.190, 32.221, 32.222, 33.11.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, §§ 40, 45, 47, 49; 10 Tenn. Juris., 10 Double Jeopardy, § 3.

Law Reviews.

Alternatives to Revocation of Judicial Diversion, 49 Tenn. B.J. 19 (2013).

Judicial Nullification of Juries: Use of Acquitted Conduct at Sentencing (Eang Ngov), 76 Tenn. L. Rev. 235 (2009).

Not-So-Sweet Sixteen: When Minor Convictions Have Major Consequences Under Career Offender Guidelines (Andrew Tunnard), 66 Vand. L. Rev. 1309 (2013).

Sentencing Lockdown: What Is the Impact of Blakely on Sentencing in Tennessee? (David L. Raybin), 40 No. 8 Tenn. B.J. 12 (2004).

The Court in Action: A summary of key cases from the U.S. Supreme Court 2000-2001 (Perry A. Craft and Arshad (Paku) Khan), 37 No. 9 Tenn. B.J. 18 (2001).

The Unfairness of the Fair Sentencing Act of 2010 (Tyler B. Parks) , 42 U. Mem. L. Rev. 1105 (2012).

NOTES TO DECISIONS

1. In General.

In determining the appropriate sentence for possession of a controlled substance, a class B felony, a court begins with the presumption that the appellant should receive the minimum in the range. If the court finds the presence of any enhancement or mitigating factors, the court should first increase the sentence within the range based upon the enhancement factors and then reduce the sentence as appropriate for any mitigating factors. State v. Ross, 49 S.W.3d 833, 2001 Tenn. LEXIS 563 (Tenn. 2001).

2. Double Jeopardy.

The use of defendant's probation status to enhance her sentence within the range did not bar the use of such status to justify the sentence being served in confinement, and such consideration did not place defendant in double jeopardy. State v. Elam, 7 S.W.3d 103, 1999 Tenn. Crim. App. LEXIS 768 (Tenn. Crim. App. 1999).

3. Proper Sentencing Considerations.

Trial court did not err in imposing a sentence over the minimum after considering the factors in T.C.A. § 40-35-210(b), including the presentence report, principles of sentencing, the nature and characteristics of the criminal conduct, information offered by the parties as to mitigation and enhancement factors, and the statement of defendant during the sentencing hearing. State v. Reyes, 505 S.W.3d 890, 2016 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. May 24, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 676 (Tenn. Sept. 23, 2016).

Defendant's sentence was not excessive because the trial court properly considered the enhancement and mitigating factors, imposed a sentence within the applicable range for defendant's offenses, and made the requisite findings in support of its ruling; defendant's presentence report reflected that defendant had prior convictions, and defendant did not testify or present any evidence. State v. Scott, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 16 (Tenn. Ct. App. Jan. 10, 2018).

Defendant was provided with a reasonable opportunity to be heard as to the length and manner of his misdemeanor sentence for simple possession of marijuana, and a defendant's penchant for truthfulness, or lack thereof, gathered from evidence presented at trial or at sentencing was a relevant consideration in fashioning a sentence, and the use of these established legal tenants at sentencing should not have been surprising to defendant. State v. Hampton, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 159 (Tenn. Crim. App. Mar. 12, 2019).

4. Improper Sentencing Considerations.

5. Presumptive Sentence.

The presumptive sentence for all class A felonies is the midpoint of the applicable sentencing range. State v. Chance, 952 S.W.2d 848, 1997 Tenn. Crim. App. LEXIS 92 (Tenn. Crim. App. 1997).

T.C.A. § 40-35-210 provides that the minimum sentence within the range is the presumptive sentence. If there are enhancing and mitigating factors, the court must start at the minimum sentence in the range and enhance the sentence as appropriate for the enhancement factors and then reduce the sentence within the range as appropriate for the mitigating factors; if there are no mitigating factors, the court may set the sentence above the minimum in that range but still within the range. The weight to be given each factor is left to the discretion of the trial judge. State v. Ealey, 959 S.W.2d 605, 1997 Tenn. Crim. App. LEXIS 563 (Tenn. Crim. App. 1997).

Application of presumptive sentence as a starting point for an offense committed prior to July 1, 1995, when this provision was not in effect, constituted an ex post facto violation of the defendant's constitutional rights. State v. Moss, 13 S.W.3d 374, 1999 Tenn. Crim. App. LEXIS 527 (Tenn. Crim. App. 1999).

The fact that the death of another results from the defendant's conduct does not, alone, make the offense sufficiently violent to justify a denial of probation, nor can it be viewed as sufficient evidence to overcome the presumption of alternative sentencing contained in T.C.A. § 40-35-102(6). State v. Batey, 35 S.W.3d 585, 2000 Tenn. Crim. App. LEXIS 293 (Tenn. Crim. App. 2000).

Comment to T.C.A. § 40-35-210, which provides that “the court must begin the sentencing determination at the statutory minimum which is called the ‘presumptive sentence' under § 40-35-210(c) and if there are no enhancement or mitigating factors, then the court must impose the minimum sentence within the appropriate range,” is in conflict with Blakely v. Washington, 124 S. Ct. 2531, 159 L. Ed. 2d 403, 542 U.S. 296, 2004 U.S. LEXIS 4573 (2004), and the 2005 amendments to the Tennessee Criminal Sentencing Reform Act of 1989, and therefore should be disregarded. State v. Bise, 380 S.W.3d 682, 2012 Tenn. LEXIS 645 (Tenn. Sept. 26, 2012).

Tennessee Criminal Sentencing Reform Act of 1989 fails to satisfy U.S. Const. amend. 6 insofar as it allows a presumptive sentence to be enhanced based on judicially determined facts; therefore, the judicial imposition of the aggravating factors under T.C.A. § 40-35-114 violates the sixth amendment, because a trial court could not have imposed the maximum sentence without the finding of aggravating factors. State v. Gomez, 239 S.W.3d 733, 2007 Tenn. LEXIS 884 (Tenn. Oct. 9, 2007).

In a child sexual abuse case, the trial court did not err in lengthening defendant's sentences from the presumptive, minimum sentence of eight years to the maximum of 12 years because the Tennessee Criminal Sentencing Reform Act, which, according to the Tennessee supreme court, comported with the strictures if Blakely and Booker afforded the trial judge discretion to select an appropriate sentence within a predetermined statutory range. State v. Schiefelbein, 230 S.W.3d 88, 2007 Tenn. Crim. App. LEXIS 138 (Tenn. Crim. App. Feb. 8, 2007), modified, 230 S.W.3d 88, 2007 Tenn. Crim. App. LEXIS 213 (Tenn. Crim. App. Mar. 7, 2007).

Where defendant was convicted of aggravated rape of an 82-year-old victim, the supreme court of Tennessee upheld trial court's imposition of the presumptive sentence for Class A felonies, 32 years and six months under T.C.A. § 40-35-210(c). State v. Cannon, 254 S.W.3d 287, 2008 Tenn. LEXIS 278 (Tenn. Apr. 29, 2008).

Record amply supported the four-year sentences imposed by the trial court, and defendant was not entitled to a presumptive sentence; the statute allows trial courts the discretion to select any sentence within the applicable range so long as the length of the sentence is consistent with the purposes and principles of the Sentencing Act. State v. Pompa, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 196 (Tenn. Crim. App. Mar. 15, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 453 (Tenn. July 28, 2017).

6. Allocution.

The trial judge, in determining the appropriate sentence in a noncapital case, shall consider, among several factors, any statement the defendant wishes to make in his own behalf about sentencing. There is no similar statute or rule in Tennessee mandating a capital defendant be allowed allocution before a capital sentencing jury. State v. Stephenson, 878 S.W.2d 530, 1994 Tenn. LEXIS 143 (Tenn. 1994), rehearing denied, — S.W.2d —, 1994 Tenn. LEXIS 203 (Tenn. June 20, 1994), overruled, State v. Mitchell, 137 S.W.3d 630, 2003 Tenn. Crim. App. LEXIS 670 (Tenn. Crim. App. 2003).

Because defendant was subjected to cross-examination after defendant read a statement to the trial court before sentencing, and because the trial court improperly relied on the testimony in fashioning a sentence for defendant, defendant was denied the statutory right to allocution under T.C.A. § 40-35-210 and the sentence was vacated. State v. Keathly, 145 S.W.3d 123, 2003 Tenn. Crim. App. LEXIS 438 (Tenn. Crim. App. 2003).

Reversible error may not always occur when a defendant is placed under oath and subjected to cross-examination. State v. Keathly, 145 S.W.3d 123, 2003 Tenn. Crim. App. LEXIS 438 (Tenn. Crim. App. 2003).

Contrary to defendant's claim, the trial court did not consider her failure to testify at the sentencing hearing in its decision to deny alternative sentencing, but rather, noted defendant's lack of honesty, failure to accept responsibility, and lack of remorse as weighing against imposing alternative sentencing. State v. Irizzary, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 242 (Tenn. Crim. App. Mar. 31, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 452 (Tenn. July 28, 2017).

Trial court did not plainly err by questioning defendant during his allocution because it did not reveal any evidence not already in the record and the trial court did not use defendant's statements against him. State v. Ketchum, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 427 (Tenn. Crim. App. May 23, 2017).

Trial court properly sentenced defendant because its written order specifically stated that it considered the “extensive proof” presented by both parties at the sentencing hearing, including Defendant's allocution State v. Morse, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 460 (Tenn. Crim. App. July 31, 2019).

7. Prior Criminal Record.

8. Multiple Convictions.

9. Enhancement Factors.

Because T.C.A. § 40-35-210 (amended) had permitted enhancement of petitioner state inmate's sentence based on judicially determined facts other than a prior conviction, it violated the Sixth Amendment under Apprendi, Blakely, and Cunningham; the error was not harmless due to the sentence enhancement for 4 aggravating factors, only one of which could possibly have been considered as found by a jury beyond a reasonable doubt. Lovins v. Parker, 712 F.3d 283, 2013 FED App. 82P, 2013 U.S. App. LEXIS 6163 (6th Cir. Mar. 28, 2013).

10. Weight Given to Enhancing and Mitigating Factors.

The weight afforded an existing enhancing or mitigating factor is left to the trial court's discretion based upon the record before it. State v. Shelton, 854 S.W.2d 116, 1992 Tenn. Crim. App. LEXIS 800 (Tenn. Crim. App. 1992).

The weight given to any existing factor is left to the trial court's discretion so long as it complies with the purposes and principles of sentencing and its findings are adequately supported by the record. State v. Shropshire, 874 S.W.2d 634, 1993 Tenn. Crim. App. LEXIS 575 (Tenn. Crim. App. 1993), rehearing denied, — S.W.2d —, 1993 Tenn. Crim. App. LEXIS 657 (Tenn. Crim. App. Sept. 23, 1993).

Weight to be given each sentencing factor at hearing is left to judge's discretion. State v. Gray, 960 S.W.2d 598, 1997 Tenn. Crim. App. LEXIS 544 (Tenn. Crim. App. 1997).

Imposition of the within-range sentences was not an abuse of discretion and was supported by the trial court's indication that it considered the enhancement and mitigating factors. State v. Brown, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 240 (Tenn. Crim. App. Mar. 29, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 456 (Tenn. July 19, 2018).

Trial court did not abuse its discretion in deciding to classify defendant as a Range I, standard offender, following defendant's conviction for aggravated child abuse because, although the court found defendant’s lack of criminal history to be a mitigating factor, the court found that applicable enhancement factors—the victim was a one-year-old child, exceptional cruelty, and defendant abusing a position of trust over the victim—precluded sentencing defendant as an especially mitigated offender. State v. Batiz, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 721 (Tenn. Crim. App. Nov. 1, 2019).

11. Sufficiency of Record.

Because of the importance of enhancing and mitigating factors under the sentencing guidelines, even the absence of these factors must be recorded if none are found. State v. Chrisman, 885 S.W.2d 834, 1994 Tenn. Crim. App. LEXIS 359 (Tenn. Crim. App. 1994).

Presence or absence of enhancing or mitigating sentencing factors must be placed on record. State v. Gray, 960 S.W.2d 598, 1997 Tenn. Crim. App. LEXIS 544 (Tenn. Crim. App. 1997).

Enhancement and mitigating factors are not used in determining the length of a DUI sentence and thus, T.C.A. § 40-35-210(f) is inapplicable to DUI sentencing. State v. Troutman, 979 S.W.2d 271, 1998 Tenn. LEXIS 665 (Tenn. 1998).

A judicially noticeable fact that is duly noticed by the trial court without timely objection is a part of the record as stated by the trial court and is in lieu of evidence that T.C.A. § 40-35-210 otherwise requires. State v. Nunley, 22 S.W.3d 282, 1999 Tenn. Crim. App. LEXIS 712 (Tenn. Crim. App. 1999).

A judicially noticeable fact that is duly noticed by the trial court without timely objection is a part of the record as stated by the trial court and is in lieu of “evidence” that § 40-35-210 otherwise requires. State v. Nunley, 22 S.W.3d 282, 1999 Tenn. Crim. App. LEXIS 712 (Tenn. Crim. App. 1999).

Where the defendants stole nearly half a million dollars from an employer over a two-year period by check forgery, they were properly sentenced to eight years of confinement for theft of property over sixty thousand dollars. The sentencing court considered probation, found that it was not appropriate in this case, and stated its reasons on the record: to avoid depreciating the seriousness of the offense and deterrence. State v. Trotter, 201 S.W.3d 651, 2006 Tenn. LEXIS 558 (Tenn. 2006).

12. —Record Insufficient.

Although defendant had a sentencing hearing, wherein the court heard testimony and argument and expressed concern over defendant's repeated DUI offenses, the record was insufficient as to specific findings with reference to enhancement and mitigation factors, and a remand for further sentencing proceedings was required. State v. Connors, 924 S.W.2d 362, 1996 Tenn. Crim. App. LEXIS 21 (Tenn. Crim. App. 1996), overruled, State v. Troutman, 979 S.W.2d 271, 1998 Tenn. LEXIS 665 (Tenn. 1998), overruled in part, State v. Troutman, 979 S.W.2d 271, 1998 Tenn. LEXIS 665 (Tenn. 1998).

Trial court failed to comply with the statute because it did not articulate the individual sentences for all of defendant's convictions; though the judgment forms reflected the individual sentences imposed in each conviction, the trial court failed to articulate the same at the sentencing hearing. State v. Swinford, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 292 (Tenn. Crim. App. Apr. 17, 2018).

13. Evidence Sufficient.

Based on factors set forth in T.C.A. § 40-35-114, the trial court imposed a life sentence without the possibility of parole for the first degree murder conviction of a gang member who killed another gang member and two consecutive twenty-two-year sentences for the especially aggravated kidnapping conviction of two fellow gang members. The trial court did not err in setting the length of defendant's sentences. State v. Mickens, 123 S.W.3d 355, 2003 Tenn. Crim. App. LEXIS 107 (Tenn. Crim. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 805 (Tenn. Sept. 2, 2003).

14. Appellate Review.

In conducting a de novo review, the reviewing court must consider the evidence at sentencing, the presentence report, the sentencing principles, the arguments of counsel, the statements of the defendant, the nature and characteristics of the offense, any mitigating and enhancement factors, and the defendant's amenability toward rehabilitation. State v. Byrd, 861 S.W.2d 377, 1993 Tenn. Crim. App. LEXIS 410 (Tenn. Crim. App. 1993).

Failure to include a transcript of the trial made it impossible for the reviewing court to conduct an appropriate de novo consideration of the case or to determine whether the trial court erred in its determinations. State v. Hayes, 894 S.W.2d 298, 1994 Tenn. Crim. App. LEXIS 643 (Tenn. Crim. App. 1994).

On appeal, the appellate court will uphold the ultimate sentence imposed by the trial court so long as it complies with the purposes and principles of the 1989 Sentencing Act and its findings are adequately supported by the record. State v. Ross, 49 S.W.3d 833, 2001 Tenn. LEXIS 563 (Tenn. 2001).

In reviewing defendant's sentence for an aggravated sexual battery conviction pursuant to T.C.A. § 40-35-401(d) and considering the appropriate sentencing factors under T.C.A. §§ 40-35-103(5) and 40-35-210, defendant's sentence of 12 years, which was within the sentencing range set out by T.C.A. § 40-35-112(a)(2), was appropriate because two sentencing enhancement factors applied to defendant as defendant had a previous history of sexual battery convictions which involved children, and defendant abused a position of private trust, since defendant was the victim's uncle to whom the parents had entrusted the victim's keeping on numerous occasions. State v. Jordan, 116 S.W.3d 8, 2003 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. 2003).

Trial court's misapplication of an enhancement or mitigating factor does not invalidate the sentence imposed unless the trial court wholly departed from the Tennessee Criminal Sentencing Reform Act of 1989, as amended in 2005; so long as there are other reasons consistent with the purposes and principles of sentencing, a sentence imposed within the appropriate range should be upheld. State v. Bise, 380 S.W.3d 682, 2012 Tenn. LEXIS 645 (Tenn. Sept. 26, 2012).

Under the 2005 amendments to the Tennessee Criminal Sentencing Reform Act of 1989, the sentence imposed by the trial court is reviewed for abuse of discretion and is granted a presumption of reasonableness if it is within the range of permissible sentences and its imposition reflects a proper application of the purposes and principles of the Act. State v. Bise, 380 S.W.3d 682, 2012 Tenn. LEXIS 645 (Tenn. Sept. 26, 2012).

Because the trial court did not say whether it considered defendant's request for alternative sentencing or explain why it denied the request, the court of criminal appeals reviewed the trial court's denial of alternative sentencing de novo. State v. Patton, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 322 (Tenn. Crim. App. May 7, 2020).

15. Presumption of Correctness.

If the trial court applies inappropriate factors or otherwise fails to follow this chapter, the sentence's presumption of correctness falls. State v. Shelton, 854 S.W.2d 116, 1992 Tenn. Crim. App. LEXIS 800 (Tenn. Crim. App. 1992).

Where the trial court failed to state the mitigating and enhancement factors relied upon, there is no presumption of correctness on appeal and review is de novo upon the record. State v. Jones, 883 S.W.2d 597, 1994 Tenn. LEXIS 259 (Tenn. 1994).

16. Sentence Held Proper.

The Court of Criminal Appeals erred in finding the existence of one statutory mitigating factor and no enhancement factors. Because the record contained two enhancement factors and no mitigating factors, the trial court properly sentenced defendant in excess of the statutory minimum. State v. Adams, 864 S.W.2d 31, 1993 Tenn. LEXIS 286 (Tenn. 1993).

Trial court did not err in denying defendant an alternative sentence under T.C.A. § 40-35-102(6) in light of the circumstances of the offense, including the illegal use of drugs and alcohol, along with the defendant's poor potential for rehabilitation. State v. Batey, 35 S.W.3d 585, 2000 Tenn. Crim. App. LEXIS 293 (Tenn. Crim. App. 2000).

Where defendant was convicted of possession of cocaine with intent to sell and the offense was committed in 1993, the trial court erred in applying the 1995 amendment to T.C.A. § 40-35-210 and beginning at the midpoint of the range in computing defendant's sentence; however, the 38-year sentence imposed was justified. State v. Blackmon, 78 S.W.3d 322, 2001 Tenn. Crim. App. LEXIS 895 (Tenn. Crim. App. 2001), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 611 (Tenn. June 30, 2003).

Where defendant was indicted for rape of a child after impregnating a 12-year-old girl, he pleaded guilty to attempted rape of a child and received a sentence of eight years. The trial court erred in relying on polygraph test results to deny defendant probation; however, the other factors showed that defendant was not suitable for probations: defendant had a sexual preference for minors, a poor work history, and a moderate risk for re-offending. State v. Pierce, 138 S.W.3d 820, 2004 Tenn. LEXIS 634 (Tenn. 2004).

Trial court did not err by ordering defendant's three-year sentences for theft and vehicular assault to be served concurrently to each other but consecutively to defendant's 21-year sentence for aggravated vehicular homicide, resulting in a 24-year sentence; upon de novo review of the sentencing factors pursuant to T.C.A. § 40-35-210, court of criminal appeals upheld defendant's sentence because he had a record of criminal activity that included over 20 prior convictions and the sentence was within the appropriate range. State v. Bowman, 327 S.W.3d 69, 2009 Tenn. Crim. App. LEXIS 35 (Tenn. Crim. App. Jan. 14, 2009), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 395 (Tenn. June 15, 2009), cert. denied, Bowman v. Tennessee, 175 L. Ed. 2d 388, 130 S. Ct. 559, 2009 U.S. LEXIS 8080 (U.S. 2009).

Defendant's sentence for four years each for the DUI, fourth offense conviction; the habitual traffic offender status conviction; and the felony evading arrest conviction, to be served consecutively for an effective 12-year sentence, was appropriate because the record supported the trial court's sentence, T.C.A. § 40-35-210(e). In part, the trial court considered the enhancement factors presented by the state and the mitigating factors presented by defendant; the trial court gave great weight to defendant's “substantial” history of criminal activity and convictions; and the trial court gave great weight to the fact that defendant had previously violated probation on several occasions. State v. Ralph, 347 S.W.3d 710, 2010 Tenn. Crim. App. LEXIS 1090 (Tenn. Crim. App. Dec. 10, 2010), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 285 (Tenn. Mar. 9, 2011).

After defendant was convicted of two counts of aggravated sexual battery involving a minor victim, the trial court did not abuse its discretion in sentencing defendant to the maximum term of twelve years, even though the trial court misapplied one enhancement factor because defendant was entrusted as the victim's caretaker and defendant admitted his criminal history. State v. Frausto, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 1130 (Tenn. Crim. App. Dec. 23, 2013), aff'd in part, rev'd in part, 463 S.W.3d 469, 2015 Tenn. LEXIS 272 (Tenn. Apr. 1, 2015).

Trial court did not err in imposing a sentence of confinement for voluntary manslaughter after finding that confinement was necessary to provide an effective deterrence to others likely to commit similar offenses, the crime was motivated by desire to profit or gain from the criminal behavior, and defendant failed to accept responsibility for her actions and lacked remorse. State v. Irizzary, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 242 (Tenn. Crim. App. Mar. 31, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 452 (Tenn. July 28, 2017).

Trial court properly sentenced defendant because the sentences were within the applicable range, and the trial court correctly applied all enhancement factors; the trial court identified several enhancement factors on the record and considered the principles and purposes of the Sentencing Act. State v. Armstrong, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 587 (Tenn. Crim. App. July 5, 2017).

Within-range sentence imposed was proper, as the evidence supported the trial court's application of an enhancement for previous history of criminal convictions or behavior. State v. Talley, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 658 (Tenn. Crim. App. Aug. 24, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 679 (Tenn. Nov. 16, 2018).

Trial court did not abuse its discretion in sentencing defendant as a Range II, multiple offender to an effective term of 29 years in the Tennessee Department of Correction for drug possession and transaction offenses because the court imposed a within-range sentence after consideration of all the evidence and the enhancement and mitigating factors. The court found that defendant had a number of prior convictions, including felony drug convictions, and had failed to comply with the conditions of a sentence involving release into the community. State v. Shelton, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 35 (Tenn. Crim. App. Jan. 24, 2020).

Trial court did not abuse its discretion by ordering that defendant serve his nine-month sentence for evading arrest with a release eligibility of 75 %, after finding that two enhancement factors were applicable to defendant's sentence, namely that defendant continued to violate the law and that measures less restrictive than confinement had been unsuccessful and defendant lacked rehabilitative potential. State v. Bonds, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 209 (Tenn. Crim. App. Mar. 31, 2020).

Trial court did not err in imposing within-range sentences after considering defendant's previous history of criminal convictions or criminal behavior and the great psychological injuries suffered by the victim, and rejecting defendant's proposed mitigating factors that he acted under strong provocation, suffered from a mental condition that reduced his culpability, and has a history of child abuse and chronic alcoholism. State v. Dean, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 267 (Tenn. Crim. App. Apr. 17, 2020).

17. Resentencing Proper.

18. Alternative Sentencing.

Trial court did not abuse its discretion in refusing judicial diversion because it considered the sentencing law and principles, weighed the required factors, and recited the relevant factors; the trial court explained on the record why it denied defendant's request for judicial diversion and why the circumstances of the offense, statutory rape and solicitation of a minor, outweighed the other factors and concluded judicial diversion would not serve the interests of the public or defendant. State v. Hodges, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 644 (Tenn. Crim. App. July 20, 2017).

Trial court properly ordered that defendant serve her sentences in confinement because it found that confinement was necessary to protect society from defendant and that she lacked potential for rehabilitation; the trial court was greatly troubled by defendant's likelihood to re-offend and her lack of potential for rehabilitation, and it stated defendant posed a threat to the public given her prior history and her continual disregard of conforming her conduct to the requirements of the law. State v. Hottiman, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 159 (Tenn. Crim. App. Feb. 28, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 455 (Tenn. July 19, 2018).

Trial court did not abuse its discretion when it denied defendant alternative sentencing following his guilty plea for five counts of aggravated sexual exploitation of a minor because, although the trial court did not expressly address this section, it went into great detail and explained why each factor weighed in favor of or against an alternative sentence. The trial court considered factors set out in T.C.A. §§ 40-35-113, 40-35-114, 40-35-103, and 40-35-303 and stated on the record the reasons for the sentence it imposed, and therefore its sentencing decisions were entitled to a presumption of reasonableness. State v. Beckham, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 673 (Tenn. Crim. App. Oct. 22, 2019).

19. Sentence Upheld.

Despite the order of protection, defendant entered the victim's place of work where others were present, approached the victim and shot her, and even after his arrest, continued to contact the victim, such that the trial court did not impose a sentence, 23 years for attempted first degree murder, that was greater than deserved for the offense committed; it was apparent that the trial court considered the purposes and principles of the Sentencing Act and did not abuse its discretion. State v. Talley, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 340 (Tenn. Crim. App. May 5, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 503 (Tenn. Aug. 16, 2017).

Even if the court agreed that the trial court misapplied one enhancement factor and should have considered defendant's mental illness, defendant would still not be entitled to relief, as the trial court found applicable four other enhancement factors that defendant did not contest, which was more than an adequate basis for enhancement; defendant agreed to a sentencing range of 18 - 23 years, and the trial court imposed a within-range sentence for attempted first degree murder consistent with the purposes and principles of the Sentencing Act. State v. Talley, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 340 (Tenn. Crim. App. May 5, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 503 (Tenn. Aug. 16, 2017).

Defendant's 10-year concurrent sentences for robbery and carjacking were not excessive given defendant's criminal history and the finding he was the leader in the commission of the offenses. State v. Perkins, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 677 (Tenn. Crim. App. Aug. 3, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 892 (Tenn. Dec. 6, 2017).

Trial court did not abuse its discretion in finding that defendant was a dangerous offender, that an extended sentence was necessary to protect the public from future criminal conduct, and that an extended sentence was reasonably related to the severity of the offenses, given that after taking the property of the victim, defendants shot seven or eight times at the victim's fleeing vehicle, and one of the slugs fired struck the victim in the back of his head, killing him. State v. Vance, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 827 (Tenn. Crim. App. Nov. 7, 2018).

For defendant's sentence for second-degree murder and other crimes, the trial court properly considered the sentencing principles and guidelines and meticulously reviewed each conviction and the statutory enhancement and mitigating factors applicable to each conviction, such that defendant failed to show how the trial court abused its discretion in sentencing him. State v. Campbell, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 294 (Tenn. Crim. App. Apr. 24, 2020).

40-35-211. Court to impose determinate sentences only.

In fixing a sentence for a felony or misdemeanor, the court shall impose a specific sentence length for each offense:

Specific sentences for a felony shall be for a term of years or months or life, if the defendant is sentenced to the department of correction; or a specific term of years, months or days if the defendant is sentenced for a felony to any local jail or workhouse. Specific sentences for a misdemeanor are for a specific number of months or days or hours or any combination thereof. There are no indeterminate sentences. Sentences for all felonies and misdemeanors are determinate in nature, and the defendant is responsible for the entire sentence undiminished by sentence credits of any sort, except for credits authorized by § 40-23-101 relative to pretrial jail credit, or §§ 33-5-406 and 33-7-102 relative to mental examinations and treatment, and prisoner sentence reduction credits authorized by § 41-21-236.
If the minimum punishment for any offense is imprisonment in the penitentiary for one (1) year, but in the opinion of the court the offense merits a lesser punishment, the defendant may be sentenced to the local jail or workhouse for any period less than one (1) year, except as otherwise provided.
If a defendant is convicted of an offense designated as a felony but the court imposes a sentence of less than one (1) year in the local jail or workhouse, the defendant shall be considered a felon but shall be sentenced as in the case of a misdemeanor, and, therefore, shall be entitled to sentence credits under § 41-2-111. Upon the defendant becoming eligible for work release, furlough, trusty status or related rehabilitative programs as specified in § 40-35-302(d), the defendant may be placed in the programs by the sheriff or administrative authority having jurisdiction over the local jail or workhouse.

Acts 1989, ch. 591, § 6; 2000, ch. 947, § 8J.

Sentencing Commission Comments.

This section requires that a determinate sentence be imposed in all felony and misdemeanor cases. Subdivision (1) permits a reduction of the sentence for certain types of pretrial jail credits and prisoner sentence reduction credits as provided in other sections.

Subdivision (2) continues the practice of prior law which permits the trial judge to reduce sentences to less than one year where the minimum statutory penalty is one year. Under the sentencing grid, this would be possible for a Class E, Range I, offender. The sentence is still considered a felony, but the court may impose a sentence of less than one year to be served in the local jail or workhouse. In such instances, subdivision (3) allows some aspects of misdemeanor sentencing to apply.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Cross-References. Execution of judgment, title 40, ch. 23.

Sentencing provisions applicable to persons committing crimes prior to July 1, 1982, title 40, ch. 20.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 27.194, 32.80, 32.81, 32.121, 32.132, 32.133, 32.224, 38.202.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 48; 24 Tenn. Juris., Verdict, § 12.

Attorney General Opinions. Sentence credits pursuant to § 41-2-111 for inmates in county jails or workhouses, OAG 00-051, 2000 Tenn. AG LEXIS 51 (3/20/00).

NOTES TO DECISIONS

1. Parole.

The fact that the board of paroles may grant or deny parole does not convert a determinate sentence into an indeterminate sentence in violation of T.C.A. § 40-35-211. Baker v. State, 951 S.W.2d 1, 1997 Tenn. Crim. App. LEXIS 165 (Tenn. Crim. App. 1997).

2. Applicability.

Reading T.C.A. § 40-35-211 (2014) as a whole, and particularly reading T.C.A. § 40-35-211(2) and (3) (2014) together in light of the Sentencing Commission Comments, the Supreme Court of Tennessee concludes that § 40-35-211(3) applies only to the circumstances described in § 40-35-211(2), i.e., where a defendant is convicted of a felony with a minimum one-year sentence and the trial court imposes a sentence of less than one year. Under current law, only Class E felonies meet the description provided in § 40-35-211(2). Ray v. Madison Cty., 536 S.W.3d 824, 2017 Tenn. LEXIS 473 (Tenn. Aug. 16, 2017).

40-35-212. Court to determine location and conditions of sentence — Probation — Retention of jurisdiction during sentence.

In imposing a sentence, the court shall determine under what conditions a sentence will be served as provided by law. A defendant may be sentenced to the department of correction unless prohibited by § 40-35-104(b).
A court may also order probation where a defendant is eligible by law either:
1. Immediately upon sentencing;
2. In conjunction with a specific period of confinement pursuant to § 40-35-306; or
3. In conjunction with a period of periodic confinement pursuant to § 40-35-307.
Unless the defendant receives a sentence in the department, the court shall retain full jurisdiction over the manner of the defendant's sentence service.
1. Notwithstanding subsection (c), the court shall retain full jurisdiction over a defendant sentenced to the department during the time the defendant is being housed in a local jail or workhouse awaiting transfer to the department. The jurisdiction shall continue until the defendant is actually transferred to the physical custody of the department.
2. The sheriff shall promptly transfer any inmate sentenced to the department of correction who is being housed in the sheriff's local jail awaiting transfer when called upon to do so by a department of correction official. The department shall notify the sheriff in writing of the date the department intends to take custody of the inmate for transfer to the department. The notice shall be given as soon as practicable before the transfer date. Failure to do so shall result in the state withholding any housing reimbursement allowance that might otherwise be due the county for housing the inmate for any day or portion of a day that the sheriff fails or refuses to transfer custody of the inmate to the department after being requested in writing to do so. The department shall notify each sheriff of the provisions of this subdivision (d)(2) and the consequences for failing to comply with it.

Acts 1989, ch. 591, § 6; 2005, ch. 174, § 2.

Sentencing Commission Comments.

This section is similar to prior law with one major exception. Subsection (a) requires felony sentences to be served in the department of correction unless prohibited by § 40-35-104(b), which contains the local county option for incarceration of certain types of felons.

Subsection (b) permits the court to sentence a defendant to probation supervision either immediately or as part of a periodic or split confinement.

Subsections (c) and (d) provide that the judge has full jurisdiction to modify the terms and conditions of any sentence unless the defendant has been sentenced to the department. There are two exceptions. First, the trial judge may modify the sentence for a defendant sentenced to the department where the defendant is awaiting transportation to the department. Second, as provided in § 40-35-319(b), sentences may be modified pursuant to Tenn. R. Crim. P. 35(b), which permits modifications within 120 days of sentencing.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Cross-References. Execution of judgment, title 40, ch. 23.

Housing state prisoners, reimbursement of costs, § 41-8-106.

Probation, paroles and pardons, title 40, ch. 28.

Reimbursement of jailer for keeping state prisoners, § 8-26-106.

Sentencing provisions applicable to persons committing crimes prior to July 1, 1982, title 40, ch. 20.

Rule Reference. This section is referred to in the Advisory Commission Comments under Rule 35 of the Tennessee Rules of Criminal Procedure.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 32.125, 32.250, 32.256.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, §§ 42, 45.

NOTES TO DECISIONS

1. Authority of Court.

Trial court was not authorized to impose special restrictions upon defendant's movement and use of the telephone as conditions of the defendant's serving the maximum sentence in confinement so as to obligate the sheriff to enforce them. State v. Smith, 909 S.W.2d 471, 1995 Tenn. Crim. App. LEXIS 566 (Tenn. Crim. App. 1995).

Where defendant initially received a 10-year sentence, the trial court lost jurisdiction when he was transferred to the department of correction, and, upon revocation of his suspended sentence for parole violation, the court had authority to commence execution of the original judgment or to modify the conditions of supervision and extend the probationary period up to two years, but it did not have authority to increase defendant's original sentence. State v. Bowling, 958 S.W.2d 362, 1997 Tenn. Crim. App. LEXIS 656 (Tenn. Crim. App. 1997).

Although a trial court loses jurisdiction over the sentence after a defendant is in the custody of the department of correction, T.C.A. § 40-35-212(d) does not prevent a reversal of the sentence and a remand for a new sentencing proceeding. State v. Blackstock, 19 S.W.3d 200, 2000 Tenn. LEXIS 168 (Tenn. 2000).

Trial court did not lose jurisdiction to modify defendant's sentence under Tenn. R. Crim. P. 35 as a result of defendant being in the physical custody of the Tennessee Department of Correction because his motion to modify was filed within 120 days after the date the sentence was imposed. In contrast to Tenn. R. Crim. P. 35, T.C.A. § 40-35-212 only permitted the trial court to modify a Tennessee Department of Correction sentence for a defendant who was held locally and had not been transferred to the penitentiary. State v. Edenfield, 299 S.W.3d 344, 2009 Tenn. Crim. App. LEXIS 290 (Tenn. Crim. App. Apr. 21, 2009).

2. Jurisdiction.

Trial court had full jurisdiction over defendant because she was originally incarcerated in the county, she remained incarcerated in the county through the time her petition for suspended sentence was filed, and her physical custody was never transferred to the Tennessee Department of Corrections. State v. Lloyd, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 776 (Tenn. Crim. App. Oct. 17, 2018).

3. Consecutive Sentences.

Running a sentence consecutively does not alter a condition of probation supervision, and does not make the sentence more onerous. State v. Malone, 928 S.W.2d 41, 1995 Tenn. Crim. App. LEXIS 883 (Tenn. Crim. App. 1995), rehearing denied, — S.W.2d —, 1995 Tenn. Crim. App. LEXIS 994 (Tenn. Crim. App. Dec. 15, 1995), overruled in part, State v. Cantrell, 1999 Tenn. Crim. App. LEXIS 1245 (Tenn. Crim. App. Dec. 16, 1999).

4. Transfer of Supervision Not Authorized.

T.C.A. § 40-35-212(c) does not permit a trial court to transfer supervision over probation to the department of correction. State v. Malone, 928 S.W.2d 41, 1995 Tenn. Crim. App. LEXIS 883 (Tenn. Crim. App. 1995), rehearing denied, — S.W.2d —, 1995 Tenn. Crim. App. LEXIS 994 (Tenn. Crim. App. Dec. 15, 1995), overruled in part, State v. Cantrell, 1999 Tenn. Crim. App. LEXIS 1245 (Tenn. Crim. App. Dec. 16, 1999).

5. Revocation While Inmate on Parole.

A trial court has the authority to revoke probation if a defendant commits another crime after the entry of judgment but before the probationary term begins. State v. Malone, 928 S.W.2d 41, 1995 Tenn. Crim. App. LEXIS 883 (Tenn. Crim. App. 1995), rehearing denied, — S.W.2d —, 1995 Tenn. Crim. App. LEXIS 994 (Tenn. Crim. App. Dec. 15, 1995), overruled in part, State v. Cantrell, 1999 Tenn. Crim. App. LEXIS 1245 (Tenn. Crim. App. Dec. 16, 1999).

40-35-213. Eligibility for work release program.

Notwithstanding any other law to the contrary, no person convicted of a sexual offense or violent sexual offense as defined in § 40-39-202, whether in the custody or control of the department of correction, a local government or a private prison contractor, shall be eligible for any work release program offered by or that may be offered by the correctional facility in which the offender is housed.
As used in subsection (a), “work release program” includes any assignment to a work crew in which a prisoner is permitted to go out into the community, whether supervised or unsupervised, but does not include a work assignment to TRICOR or any TRICOR facility.

Acts 2008, ch. 901, § 2.

40-35-214. Transfer from county for plea and sentence.

A defendant arrested, held or present in a county, other than that in which an indictment or information is pending against the defendant, may state in writing that the defendant wishes to plead guilty, to waive trial in the county in which the indictment or information is pending and to consent to the disposition of the case in the county in which the defendant was arrested, held or present, subject to the approval of the district attorney general and the court having criminal jurisdiction for each county. Upon receipt of the defendant's statement and of the written approval of the appropriate district attorneys general and courts, the clerk of the court in which the indictment or information is pending shall transmit the papers in the proceeding or certified copies of the papers to the clerk of the court for the county in which the defendant was arrested, held or present, and the prosecution shall continue in that county.
A defendant arrested, held or present in a county other than the county in which a charge is pending against the defendant may state in writing that the defendant wishes to plead guilty, to waive trial in the county in which the warrant was issued and to consent to the disposition of the case in the county in which the defendant was arrested, held or present, subject to the approval of the district attorney general and the court having criminal jurisdiction for each county. Upon receipt of the defendant's statement and the written approval of the appropriate district attorneys general and courts, the clerk of the court for the county in which the warrant was issued shall transmit the papers in the proceeding or certified copies thereof to the clerk of the court having jurisdiction over the offense charged in the warrant for the county in which the defendant was arrested, held or present, and the prosecution shall continue in that county. When the defendant is brought before the court to plead to a charge filed in the county where the warrant was issued, the defendant may at that time waive indictment and the prosecution may continue based upon the indictment or information originally filed.
If, after the proceeding has been transferred pursuant to subsection (a) or (b) the defendant pleads not guilty, the clerk shall return the papers to the court in which the prosecution was commenced, and the proceeding shall be restored to the docket of that court. The defendant's statement that the defendant wishes to plead guilty shall not be used against the defendant.

Acts 1989, ch. 591, § 6.

Sentencing Commission Comments.

This provision is identical to prior law and permits disposition of cases arising from several counties in a single county where the parties and respective courts agree. This section is similar to Rule 20, Federal Rules of Criminal Procedure.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Cross-References. Sentencing provisions applicable to persons committing crimes prior to July 1, 1982, title 40, ch. 20.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 16.57.

Attorney General Opinions. Fines and court costs collected after a transfer are paid to the county in which the indictment was found, i.e., the sending court, OAG 05-110, 2005 Tenn. AG LEXIS 112 (7/12/05).

40-35-215. Sentence calculation.

1. The chief administrator of any local jail, workhouse or other facility in which persons serve criminal sentences on nonconsecutive days or in any manner other than continuous confinement or day for day shall formulate and reduce to writing the method by which the facility calculates the service of an hour, day and month.
2. As used in this section “service of an hour, day or month” means the period of time a person must be incarcerated in the facility in order to reduce the person's court imposed sentence by an hour, day or month.
At the first meeting of the county or municipal legislative body in which the facility is located, conducted after July 1, 1995, the chief administrator shall submit the formulation of the method of sentence calculation required by subsection (a) to the legislative body for its approval. The legislative body shall approve or modify and approve the sentence calculation.
Upon the approval by the legislative body of the facility's sentence calculations, the chief administrator shall publish the sentence calculations and cause them to be prominently posted at the local jail, workhouse or facility for which they are applicable.

Acts 1995, ch. 440, § 1.

40-35-216. First hours served hour for hour.

Notwithstanding any other law or judgment of conviction to the contrary, the first forty-eight (48) hours of any sentence that a defendant is permitted to serve on nonconsecutive days, or in any manner other than continuous confinement or day for day, shall be served hour for hour. This section shall only apply to sentences imposed pursuant to § 55-10-402.

Acts 1995, ch. 440, § 1; 2013, ch. 154, § 37.

40-35-217. Sentence conditioned or based upon defendant submitting to birth control, sterilization, or family planning services prohibited.

As used in this section, “sterilization” means the process of rendering an individual incapable of sexual reproduction by castration, vasectomy, salpingectomy, or some other procedure and includes endoscopic techniques for female sterilization that can be performed outside of a hospital without general anesthesia such as culdoscopic, hysteroscopic, and laparoscopic sterilization.
No guilty plea agreement or plea of nolo contendere shall be accepted by the court nor shall any criminal sentence be imposed by a judge if any part of the plea or sentence is in whole or in part conditioned or based upon the criminal defendant submitting to any form of temporary or permanent birth control, sterilization, or family planning services, regardless of whether the defendant's consent is voluntarily given.
A sentencing court shall not make a sentencing determination that is based in whole or in part on the defendant's consent or refusal to consent to any form of temporary or permanent birth control, sterilization, or family planning services, regardless of whether the defendant's consent is voluntarily given.
This section shall not apply to the provision of educational services on the matters of temporary or permanent birth control, sterilization, or family planning services.

Acts 2018, ch. 917, § 1.

Compiler's Notes. Acts 2018, ch. 917, § 3 provided that the act, which enacted this section, shall apply to any plea agreement or plea of nolo contendere entered into or sentencing determination made on or after May 1, 2018.

Part 3
Sentences

40-35-301. Fixing of fine by court or jury.

Where the offense is punishable by a fine of fifty dollars ($50.00) or less, the court shall fix the fine in accordance with § 40-35-111.
In a case where the range of punishment includes a fine in excess of fifty dollars ($50.00), the jury finding the defendant guilty shall also fix the fine, if any, in excess of fifty dollars ($50.00). The jury shall report such fine with a verdict of guilty. When imposing sentence, after the sentencing hearing, the court shall impose a fine, if any, not to exceed the fine fixed by the jury. The defendant may waive the right to have a jury fix the fine and agree that the court fix it, in which case the court may lawfully fix the fine at any amount that the jury could have. If a plea agreement imposing a fine in excess of fifty dollars ($50.00) and the defendant's written waiver of the constitutional right to have a jury fix the fine are accepted by the court, the court may pronounce sentence, including the fine, without a jury. If the conviction is upon a guilty plea and there is no jury waiver as provided in this subsection (b), a jury shall be impaneled to fix the fine, if any, to be imposed by the court in an amount not to exceed the fine fixed by the jury.

Acts 1989, ch. 591, § 6.

Sentencing Commission Comments.

The Tennessee constitution provides that a trial judge may not impose a fine in excess of $50.00 unless the defendant waives this constitutional right or the parties waive a trial by jury. See State v. Sanders, 735 S.W.2d 856 (Tenn. Crim. App. 1987). This section implements this constitutional requirement.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

The code commission changed the reference from § 40-35-112 to § 40-35-111 in (a).

Cross-References. Execution of judgment, title 40, ch. 23.

Fines, title 40, ch. 24.

Penalties for felonies and misdemeanors, § 40-35-111.

Sentencing provisions applicable to persons committing crimes prior to July 1, 1982, title 40, ch. 20.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 7.7, 7.12, 22.74, 25.2, 25.4, 30.73, 32.21.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, §§ 43, 45; 20 Tenn. Juris., Pardon and Parole, § 7.

Attorney General Opinions. A defendant can waive, over the objection of the state, his or her right to have fines set by a jury, OAG 05-160, 2005 Tenn. AG LEXIS 162 (10/17/05).

NOTES TO DECISIONS

1. Fine Set by Jury.

Trial court imposed the mandatory minimum fine required by T.C.A. § 55-10-403(a)(1), but a remand was necessary for the empanelling of a jury to fix the fine; the fine in § 55-10-403(a)(1), which prescribes a minimum and maximum allowable fine, does not permit judicial discretion and may only be imposed by a jury. State v. Jaco, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 518 (Tenn. Crim. App. June 20, 2017).

40-35-302. Misdemeanor sentencing — Rehabilitative program credits — Probation — Supervision of defendants on probation.

In imposing a sentence for a misdemeanor, the court may conduct a separate sentencing hearing. If the court does not conduct a separate sentencing hearing, the court shall allow the parties a reasonable opportunity to be heard on the question of the length of any sentence and the manner in which the sentence is to be served.
In imposing a misdemeanor sentence, the court shall fix a specific number of months, days or hours, and the defendant shall be responsible for the entire sentence undiminished by sentence credits of any sort except for credits authorized by § 40-23-101, relative to pretrial jail credit, or §§ 33-5-406 and 33-7-102, relative to mental examinations and treatment, and credits awarded in accordance with either, but not both, § 41-2-111 or § 41-2-147. The court shall impose a sentence consistent with the purposes and principles of this chapter.
When a defendant is serving a misdemeanor sentence, the defendant shall be continuously confined for the duration of the sentence except as provided in subsections (d) and (e); provided, that nothing in this section shall be construed as prohibiting a defendant, in the discretion of the workhouse superintendent or sheriff, from participating in work crews during the time the defendant is to be continuously confined.
In imposing a misdemeanor sentence, the court shall fix a percentage of the sentence that the defendant shall serve. After service of such a percentage of the sentence, the defendant shall be eligible for consideration for work release, furlough, trusty status and related rehabilitative programs. The percentage shall be expressed as zero percent (0%), ten percent (10%), twenty percent (20%), thirty percent (30%), forty percent (40%), fifty percent (50%), sixty percent (60%), seventy percent (70%) but not in excess of seventy-five percent (75%). If no percentage is expressed in the judgment, the percentage shall be considered zero percent (0%). When the defendant has served the required percentage, the administrative authority governing the rehabilitative program shall have the authority, in its discretion, to place the defendant in the programs as provided by law. In determining the percentage of the sentence to be served in actual confinement, the court shall consider the purposes of this chapter, the principles of sentencing and the enhancement and mitigating factors set forth in this chapter and shall not impose such percentages arbitrarily.
The court has authority to place the defendant on probation either:
1. After service of a portion of the sentence in periodic confinement or continuous confinement; or
2. Immediately after sentencing.
1. The general sessions courts shall not place a defendant who is convicted of a misdemeanor on probation under the supervision of the state department of correction. Nothing in this subsection (f) is intended to restrict the use, where necessary, of any county or public probation service or private probation company established for the purpose of supervising defendants convicted of misdemeanors, unless the offender is currently being supervised by the state department of correction on a felony offense.
2. When a person employed to provide probation services to defendants convicted of a misdemeanor, whether employed by a municipality, county, public or a private probation company, is first assigned a new probationer, the person shall conduct a search of the Tennessee bureau of investigation's sexual offender and violent sexual offender registration, verification and tracking database to determine if the probationer is a sexual offender or violent sexual offender. If so, the probation officer shall inform the sentencing judge of the probationer's status, if the status is not already known. If the probationer remains on probation, the officer shall also monitor the probationer's compliance with the requirements of § 40-39-211.
1. Except as provided in subdivision (g)(2):
  1. A private entity that provides probation supervisory services shall be required to perform all of the following:
    1. Provide a report to the clerk of the criminal court and general sessions court in each judicial district in which the entity proposes to provide misdemeanor probation services on a quarterly basis in a form and manner as is specified by the clerk; provided, that the report shall contain all of the information required in subdivision (g)(1)(G);
    2. Provide an application form to all of the criminal court and general sessions court judges in each judicial district in which the entity proposes to provide misdemeanor probation services. The application shall be on a form and in a manner specified by the judges and shall contain all of the information required by subdivision (g)(1)(E);
    3. Supervise all misdemeanor defendants sentenced by a proper order of probation to be supervised by the entity and to assist the defendants so sentenced in completing all court-ordered conditions of probation;
    4. Maintain documentation on all misdemeanor defendants sentenced to be supervised by the entity. All books, records, and documentation maintained by the entity relating to work performed or money received for the supervision of misdemeanor defendants so sentenced must be maintained for a period of three (3) full years from the date of the final payment or audit. The books, records, and documentation are subject to a fiscal and performance audit and review at any reasonable time and upon reasonable notice by the court or courts in which the entity operates, or by their duly appointed representatives, and by the comptroller of the treasury as deemed necessary or appropriate. The comptroller of the treasury may appoint a certified public accountant to prepare the audit. The entity being audited by either the comptroller of the treasury or the comptroller's designee shall pay the cost of the audit. Officials of the entity shall cooperate fully with the comptroller of the treasury or its designee in the performance of the audit; and
    5. Any additional duties that the judge or judges of the courts for which the entity provides misdemeanor probation supervisory services may in writing require;
  2. The following minimum education standards are required for certain employees of an entity established for the purpose of supervising misdemeanor probationers:
    1. The chief executive officer of an entity offering probation supervision shall have a bachelor's degree from an accredited university in any of the following fields: criminal justice, administration, social work or the behavioral sciences and two (2) years of experience in criminal justice or social work; provided, that four (4) years of professional administrative experience with an organization providing services in criminal justice or social work may be substituted for the bachelor's degree; and
    2. An employee responsible for providing probation supervision and employed by an entity shall have at least four (4) years of experience in a criminal justice or a social services agency providing counseling services or shall have a bachelor's degree or associate's degree from an accredited college or university;
  3. Any entity providing probation supervisory services shall post a liability insurance policy and a performance bond in the amounts stated:
    1. A liability insurance policy in an amount at least equal to the limits of governmental liability established in the Governmental Tort Liability Act, compiled in title 29, chapter 20, that is in effect on the date the services are provided. Nothing in this subdivision (g)(1)(C)(i) shall be construed as prohibiting the entity from carrying a liability insurance policy in excess of the limits of liability provided in the Governmental Tort Liability Act. The policy shall be for the purpose of reimbursing an injured or aggrieved party for any damages or expenses for which the entity providing probation supervisory services is found liable by a court of competent jurisdiction;
    2. A performance bond issued by a corporate surety in the amount of twenty-five thousand dollars ($25,000). The bond shall be to provide recourse to the governmental entity for which the entity is providing probation supervisory services in the event of nonperformance, default, bankruptcy or failure of the entity to perform the required services;
    3. The comptroller of the treasury shall design a uniform performance bond form to be used by all private entities providing misdemeanor probation supervisory services in this state;
    4. A copy of the liability insurance policy and the performance bond shall be filed with the clerk of all courts in each county in which the entity proposes to provide probation supervisory services;
  4. Any entity providing or proposing to provide misdemeanor probation services shall investigate the criminal record for each employee and shall include in its application form any criminal conviction of each employee;
  5. The application form required by subdivision (g)(1)(A)(ii) shall contain the following information:
    1. The title of the entity;
    2. Its form of business organization;
    3. The office and mailing address of the entity;
    4. The names of the employees who will provide services and their position with the entity and their credentials;
    5. A sworn statement that the credentials of all employees meet the minimum standards under subdivision (g)(1)(B);
    6. A sworn statement that a criminal record search has been conducted and, if a criminal conviction has been discovered, the name of the employee and the criminal conviction;
    7. A credit history of the entity including any judgments or lawsuits; and
    8. A description of the services to be provided by the entity and the fee structure for the services to be provided;
  6. The application required by subdivision (g)(1)(A)(ii) shall also contain an affidavit filed under penalties of perjury that it is complete and accurate and contains all of the information required by subdivision (g)(1)(E). The application with the affidavit shall be filed with the clerk of the criminal court and general sessions court in each judicial district in which the entity proposes to provide misdemeanor probation services;
  7. The quarterly report required to be filed pursuant to subdivision (g)(1)(A)(i) shall include the following information:
    1. The caseload for the entity;
    2. The number of contact hours with offenders;
    3. The services provided;
    4. The number of filings for probation revocation and their dispositions;
    5. A financial statement including administrative costs and service costs; and
    6. Contributions, if any, to the criminal injuries compensation fund;
  8. 1. It is an offense for a governmental employee, including a judge, or the employee's immediate family, to have a direct or indirect personal interest in a private entity that provides probation supervisory services or to receive anything of value in an individual capacity from the entity;
    2. It is an offense for a private entity that provides probation supervisory services to give or offer to give anything of value to a governmental employee, including a judge, or the employee's immediate family, in the employee's individual capacity;
    3. A violation of subdivision (g)(1)(H)(i) or (g)(1)(H)(ii) is a Class C misdemeanor; and
    4. This section shall not be construed to amend or abridge any contract or operating agreement between any court or county government and any agency or individual presently supplying probation supervisory services to a court or county government pursuant to this chapter;
  9. No private corporation, enterprise, or agency contracting to provide probation services under this section shall engage in any of the following:
    1. Any employment, business or activity that interferes or conflicts with the duties and responsibilities under the contracts authorized by this section;
    2. No corporation, enterprise or agency shall have personal business dealings, including, but not limited to, lending money, with probationers under its supervision; and
    3. No corporation, enterprise or agency shall permit any person to supervise a probationer who is a member of the supervisory personnel's immediate family;
  10. As used in this subdivision (g)(1), “immediate family” means and includes the supervisor’s mother, father, siblings, adult children or maternal and paternal grandparents.
2. Except for fiscal and performance audits and reviews conducted by the comptroller of the treasury or the comptroller's designee in accordance with subdivision (g)(1)(A)(iv), subdivision (g)(1) does not apply in counties having a population, according to the 1990 federal census or any subsequent federal census, of:
  not less than nor more than
  
  4,700 4,750
  
  7,100 7,175
  
  27,500 27,750
  
  31,500 31,800
  
  31,900 32,200
  
  34,500 34,730
  
  40,200 40,500
As used in this section, the term “governmental employee” means employees and officials of the state and its political subdivisions who are employed as law enforcement employees or officials, probation and parole employees or officials, judicial employees or officials or correctional employees or officials, including employees and officials of jails and workhouses.
1. As used in this subsection (i), “sterilization” means the process of rendering an individual incapable of sexual reproduction by castration, vasectomy, salpingectomy, or some other procedure and includes endoscopic techniques for female sterilization that can be performed outside of a hospital without general anesthesia such as culdoscopic, hysteroscopic, and laparoscopic sterilization.
2. A sentencing court shall not make a sentencing determination that is based in whole or in part on the defendant's consent or refusal to consent to any form of temporary or permanent birth control, sterilization, or family planning services, regardless of whether the defendant's consent is voluntarily given.
3. This subsection (i) shall not apply to the provision of educational services on the matters of temporary or permanent birth control, sterilization, or family planning services.
A judge shall, at the time of sentencing, notify a person convicted of a misdemeanor offense that is eligible for expunction of:
1. The person's eligibility to have all public records of the conviction destroyed in the manner set forth in § 40-32-101; and
2. The time period after which the person can petition for expunction of the offense.

Acts 1989, ch. 591, § 6; 1990, ch. 1030, § 37; 1991, ch. 458, § 1; 1997, ch. 408, §§ 1-4; 2000, ch. 827, § 1; 2000, ch. 947, § 8J; 2001, ch. 359, § 1; 2002, ch. 802, § 1; 2007, ch. 158, § 1; 2009, ch. 124, § 1; 2011, ch. 319, §§ 1, 2; 2012, ch. 727, § 44; 2018, ch. 917, § 2; 2019, ch. 148, §§ 1, 2; 2019, ch. 244, § 1.

Sentencing Commission Comments.

This section is very similar to prior law and governs sentencing in misdemeanor cases. Subsection (a) permits the court to have a separate sentencing hearing with the option of a presentence report. See § 40-35-205(a). If the judge elects not to have a full sentencing hearing, the parties must still be given an opportunity to address the court as to the appropriate sentence. Subsection (b) requires determinate sentences for misdemeanors.

Felony sentences have specific authorized release eligibility dates. To achieve needed flexibility in misdemeanor sentencing, subsection (d) permits the trial judge a wide option in fixing the program eligibility percentage. After serving such a percentage of the sentence, the defendant is then eligible for consideration for certain rehabilitative programs. The percentages vary between zero percent and 75 percent.

Subsection (e) continues the practice of permitting the court to have continuing jurisdiction over the defendant's sentence in misdemeanor cases so that the sentence may be modified at a later time in the discretion of the court.

Subsection (f) authorizes and encourages the use of probation supervision by agencies other than the department of correction for those persons convicted of misdemeanors.

Code Commission Notes.

Former subdivision (g)(1)(B)(iii), concerning a person employed on July 1, 1997, was deemed obsolete by the code commission in 2006.

For the Preamble of the act concerning the transfer of certain functions relating to probation and parole services and the community correction grant program from the board of probation and parole to the department of correction, please refer to Acts 2012, ch. 727.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended subdivision (f)(1), shall be fully accomplished on or before January 1, 2013.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Acts 2018, ch. 917, § 3 provided that the act, which amended this section, shall apply to any plea agreement or plea of nolo contendere entered into or sentencing determination made on or after May 1, 2018.

Amendments. The 2019 amendment by ch. 148 rewrote (g)(1)(A)(iv) which read: “(iv) Maintain documentation on all misdemeanor defendants sentenced to be supervised by the entity. All books, records and documentation maintained by the entity relating to work performed or money received for the supervision of misdemeanor defendants so sentenced shall be maintained for a period of three (3) full years from the date of the final payment or audit. The records shall be subject to audit, both fiscal and performance, at any reasonable time and upon reasonable notice by the court or courts in which the entity operates or their duly appointed representatives. The records shall be maintained in accordance with generally accepted accounting principles; and”; and added “Except for fiscal and performance audits and reviews conducted by the comptroller of the treasury or the comptroller's designee in accordance with subdivision (g)(1)(A)(iv),” at the beginning of (g)(2).

The 2019 amendment by ch. 244 added (j).

Effective Dates. Acts 2019, ch. 148, § 3. April 17, 2019.

Acts 2019, ch. 244, § 2. July 1, 2019.

Cross-References. Certain prisoners in local jails or workhouses, release on work-related programs, § 41-2-147.

Criminal inquiries compensation fund, § 40-24-107.

Enhancement factors, § 40-35-114.

Execution of judgment, title 40, ch. 23.

Inmate release privileges, title 41, ch. 21, part 7.

Mitigating factors, § 40-35-113.

Penalty for Class C misdemeanor, § 40-35-111.

Prisoner Rehabilitation Act, title 41, ch. 21, part 5.

Probation, paroles, and pardons, title 40, ch. 28.

Sentencing provisions applicable to persons committing crimes prior to July 1, 1982, title 40, ch. 20.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 22.2, 32.122, 32.125, 32.133.

Tennessee Jurisprudence, 4 Tenn. Juris., Automobiles, § 33; 8 Tenn. Juris., Criminal Procedure, § 43.

Law Reviews.

Misdemeanor Decriminalization, 68 Vand. L. Rev. 1055 (2015).

Attorney General Opinions. Bill passed after its stated effective date, OAG 98-085, 1998 Tenn. AG LEXIS 85 (4/14/98).

Consecutive sentencing for misdemeanors requires compliance with § 40-35-115, OAG 98-150, 1998 Tenn. AG LEXIS 150 (8/12/98).

Judge's authority to contract for probation services, OAG 99-029, 1999 Tenn. AG LEXIS 22 (2/17/99).

Procedure where failure to appear in municipal court with general sessions jurisdiction charged, OAG 99-096, 1999 Tenn. AG LEXIS 96 (4/27/99).

Judges have wide discretion to determine which qualified entity will supervise a probationer, provided that the determination is made impartially and on the basis of merit, OAG 08-175, 2008 Tenn. AG LEXIS 205 (11/18/08).

Private act requirement that general sessions court use services of county probation office. OAG 13-70, 2013 Tenn. AG LEXIS 72 (9/4/13).

NOTES TO DECISIONS

1. Authority of Court.

The trial court has more flexibility in misdemeanor sentencing than in felony sentencing. State v. Johnson, 15 S.W.3d 515, 1999 Tenn. Crim. App. LEXIS 957 (Tenn. Crim. App. 1999).

One convicted of a misdemeanor, unlike one convicted of a felony, is not entitled to a presumption of a minimum sentence. State v. Johnson, 15 S.W.3d 515, 1999 Tenn. Crim. App. LEXIS 957 (Tenn. Crim. App. 1999).

In imposing a misdemeanor sentence for driving under the influence, the trial court was not required to make the same findings for imposing greater than the minimum sentence as would be required when imposing a felony sentence. State v. Humphreys, 70 S.W.3d 752, 2001 Tenn. Crim. App. LEXIS 553 (Tenn. Crim. App. 2001).

Given the wide range of discretion vested in trial judges in misdemeanor sentencing and the lack of anything in the record before the appellate court that demonstrated that the sentence imposed was patently unreasonable, the appellate court declined to reverse the trial court's sentencing determination. State v. McAnally, 209 S.W.3d 639, 2006 Tenn. Crim. App. LEXIS 365 (Tenn. Crim. App. 2006), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 788 (Tenn. Aug. 28, 2006).

Imposition of consecutive periods of probation after defendant was convicted of nine counts of animal cruelty was improper under T.C.A. § 40-35-302(a) because consecutive periods of probation were impermissible when the sentences themselves were to be served concurrently. State v. Siliski, 238 S.W.3d 338, 2007 Tenn. Crim. App. LEXIS 390 (Tenn. Crim. App. May 15, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 878 (Tenn. Sept. 17, 2007).

2. Percentage of Sentence.

Although the provisions of T.C.A. § 40-35-302 pertaining to fixing the percentage of the sentence which a defendant will serve are mandatory as to misdemeanor offenders, they are neither mandatory nor applicable to sentences for driving under the influence in which their application would violate the express provisions of T.C.A. § 55-10-403(m) (see now § 55-10-402). State v. Conner, 919 S.W.2d 48, 1995 Tenn. Crim. App. LEXIS 501 (Tenn. Crim. App. 1995).

When the Tennessee Court of Criminal Appeals has been faced with a transcript of the sentencing hearing clearly indicating the trial court's intention that the defendant's percentage is not zero percent, it has deferred to the trial court's express pronouncement as reflected in the transcript. State v. Russell, 10 S.W.3d 270, 1999 Tenn. Crim. App. LEXIS 321 (Tenn. Crim. App. 1999), review or rehearing denied, — S.W.3d —, 1999 Tenn. LEXIS 480 (Tenn. Oct. 4, 1999).

Defendant was sentenced to concurrent terms of eleven months and twenty-nine days to be served at one-hundred percent release eligibility, but subject to furlough release after ninety days upon completion of an inpatient alcohol treatment program. However, the sentence did not comply with the restrictions of T.C.A. § 40-35-302(d) because, under the express terms of T.C.A. § 40-35-302(d), defendant was not eligible for rehabilitative programs until after the service of the designated release eligibility percentage of 100 percent. State v. Cooper, 336 S.W.3d 522, 2011 Tenn. LEXIS 191 (Tenn. Mar. 4, 2011).

3. Sufficiency of Record.

The record supported the trial court's decision to impose ten days' confinement for a vandalism conviction, where defendant had a criminal history of assault and based on the violent nature of the vandalism. State v. Bult, 989 S.W.2d 730, 1998 Tenn. Crim. App. LEXIS 1002 (Tenn. Crim. App. 1998).

Although defendant was correct that the trial court did not make explicit findings of enhancement and mitigating factors, it was not required to, and therefore, the lack of findings was no basis for holding the trial court in error. State v. Russell, 10 S.W.3d 270, 1999 Tenn. Crim. App. LEXIS 321 (Tenn. Crim. App. 1999), review or rehearing denied, — S.W.3d —, 1999 Tenn. LEXIS 480 (Tenn. Oct. 4, 1999).

Trial court considered the principles of sentencing by holding a sentencing hearing, at which evidence of enhancement and mitigating factors was presented; defendant's probation officer testified about defendant's prior criminal record, and defendant himself took the stand, discussed his medical problems, and admitted that he had twice violated his probation in the past; defendant's prior criminal history justified imposition of the sentence imposed by the court. State v. Flatt, 227 S.W.3d 615, 2006 Tenn. Crim. App. LEXIS 798 (Tenn. Crim. App. Oct. 3, 2006), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 253 (Tenn. 2007).

4. Suspended Sentence.

In sentencing defendant for driving under the influence (third offense) and driving without a license, the court erred in denying a suspended sentence based on the following factors: defendant's prior history of alcohol abuse; deterrence; and circumstances of the offense. State v. Combs, 945 S.W.2d 770, 1996 Tenn. Crim. App. LEXIS 550 (Tenn. Crim. App. 1996).

5. Defendant's Opportunity to Be Heard.

Remand for resentencing was in order where the trial court sentenced defendant immediately upon return of the jury's verdict, without giving him an opportunity to be heard, and where the court also failed to enunciate his consideration of sentencing principles and all relevant facts and circumstances. State v. Beck, 950 S.W.2d 44, 1997 Tenn. Crim. App. LEXIS 239 (Tenn. Crim. App. 1997).

By its terms, the statute confirms the common law rule by making the defendant responsible for her complete sentence regardless of any credits, save those specified. State v. Chapman, 977 S.W.2d 122, 1997 Tenn. Crim. App. LEXIS 1298 (Tenn. Crim. App. 1997).

6. Credits.

The doctrine of credit for time at liberty does not exist in Tennessee. State v. Chapman, 977 S.W.2d 122, 1997 Tenn. Crim. App. LEXIS 1298 (Tenn. Crim. App. 1997).

7. Contempt Arising Out of a Civil Matter.

The portions of the criminal code that require the court to set a percentage of the sentence that must be served and that allow a misdemeanant to earn good conduct credits while serving time in a local jail, pursuant to T.C.A. § 41-2-111(b) do not apply to a defendant convicted of criminal contempt arising out of a civil matter; the possible punishment is already so limited, pursuant to T.C.A. § 29-9-103(b), that the legislature could hardly have intended to mandate a further reduction. State v. Wood, 91 S.W.3d 769, 2002 Tenn. App. LEXIS 330 (Tenn. Ct. App. 2002), appeal denied, — S.W.3d —, 2002 Tenn. LEXIS 526 (Tenn. Nov. 12, 2002).

8. Confinement Proper.

Trial court did not err by denying defendant probation because the record established that the trial court complied with the requirements of this section relative to misdemeanor sentencing, defendant had prior misdemeanor convictions and a positive drug screen. State v. Miller, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 58 (Tenn. Crim. App. Feb. 3, 2020).

Trial court did not err in sentencing defendant to confinement in a misdemeanor case based on his prior misdemeanor convictions, particularly those dealing with obscene display, masturbation in public, possession of drugs, breaking and entering, and multiple assaults; and because he had violated the terms of previously-imposed probationary sentences. State v. Lambert, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 305 (Tenn. Crim. App. Apr. 28, 2020).

9. Sentence Proper.

Trial court did not abuse its discretion in sentencing defendant for theft of merchandise of $500 or less because the held a hearing and considered defendant's prior felony theft conviction and the facts of defendant's theft of merchandise from a retail store, defendant's problem with stealing things, and defendant's medical records and sentenced defendant to a within-range sentence of eleven months and twenty-nine days, ordering defendant to serve six months in incarceration. State v. Craig, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 282 (Tenn. Crim. App. Apr. 16, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 530 (Tenn. Aug. 13, 2018).

40-35-303. Probation — Eligibility — Terms.

A defendant shall be eligible for probation under this chapter if the sentence actually imposed upon the defendant is ten (10) years or less; however, no defendant shall be eligible for probation under this chapter if convicted of a violation of § 39-13-213(a)(2), § 39-13-304, § 39-13-402, § 39-13-504, § 39-13-532, § 39-15-402, § 39-17-417(b) or (i), § 39-17-1003, § 39-17-1004 or § 39-17-1005. A defendant shall also be eligible for probation pursuant to § 40-36-106(e)(3).
A court shall have authority to impose probation as part of its sentencing determination at the conclusion of the sentencing hearing. There shall be no petition for probation filed by the defendant and probation shall be automatically considered by the court as a sentencing alternative for eligible defendants; provided, that nothing in this chapter shall be construed as altering any provision of present statutory or case law requiring that the burden of establishing suitability for probation rests with the defendant.
1. If the court determines that a period of probation is appropriate, the court shall sentence the defendant to a specific sentence but shall suspend the execution of all or part of the sentence and place the defendant on supervised or unsupervised probation either immediately or after a period of confinement for a period of time no less than the minimum sentence allowed under the classification and up to and including the statutory maximum time for the class of the conviction offense.
2. 1. Except as provided in subdivision (c)(2)(B), if probation is to be granted to a defendant convicted of any of the misdemeanor offenses set out in subdivision (c)(2)(C), subdivision (c)(1) shall govern the length of the term of probation.
  2. Notwithstanding subdivision (c)(2)(A), the judge may sentence a defendant convicted of any of the misdemeanor offenses set out in subdivision (c)(2)(C) to a period of probation not to exceed two (2) years, if the judge finds that the period of probation is necessary:
    1. For the defendant to complete any appropriate treatment program or programs, including, but not limited to, a sanctioned batterer's intervention program, an anger management program or any court-ordered drug or alcohol treatment program;
    2. To make restitution to the victim of the offense;
    3. To otherwise effect a change in the behavior of the defendant, including, but not limited to, imposing any of the conditions set forth in subsection (d); or
    4. To protect and better ensure the safety of the victim or any other member of the victim's family or household, as set out in subsections (m) and (n).
  3. The offenses to which this subdivision (c)(2) applies are:
    1. Domestic assault, as prohibited by § 39-13-111;
    2. Assault as prohibited by § 39-13-101, vandalism as prohibited by § 39-14-408, or false imprisonment as prohibited by § 39-13-302, where the victim of the offense is a person identified in § 36-3-601(5);
    3. Violation of a protective order, as prohibited by § 36-3-612;
    4. Stalking, as prohibited by § 39-17-315; and
    5. A second or third violation of § 55-10-401 if the judge orders a substance abuse treatment program as a condition of probation pursuant to § 55-10-402(a)(2)(B) or (a)(3)(B).
Whenever a court sentences an offender to supervised probation, the court shall specify the terms of the supervision and may require the offender to comply with certain conditions that may include, but are not limited to:
1. Meet the offender's family responsibilities;
2. Devote the offender to a specific employment or occupation;
3. Perform, without compensation, services in the community for charitable or governmental agencies;
4. Undergo available medical or psychiatric treatment and enter and remain in a specified institution whenever required for that purpose by voluntary self-admission to the institution pursuant to § 33-6-201;
5. Pursue a prescribed secular course of study or vocational training;
6. Refrain from possessing a firearm or other dangerous weapon;
7. Remain within prescribed geographical boundaries and notify the court or the probation officer of any change in the offender's address or employment;
8. Submit to supervision by an appropriate agency or person and report as directed by the court;
9. Satisfy any other conditions reasonably related to the purpose of the offender's sentence and not unduly restrictive of the offender's liberty or incompatible with the offender's freedom of conscience, or otherwise prohibited by this chapter;
10. Make appropriate and reasonable restitution to the victim or the family of the victim involved pursuant to § 40-35-304;
11. 1. Undergo an alcohol and drug assessment or treatment, or both an assessment and treatment, if the court deems it appropriate and licensed treatment service is available;
  2. Unless the court makes a specific determination that the person is indigent, the expense of the assessment and treatment shall be the responsibility of the person receiving it. If the court finds that the person is indigent under the same standards as used in § 55-10-402(j), the expense or some portion of the expense may be paid from the alcohol and drug addiction treatment fund provided in § 40-33-211, pursuant to a plan and procedures developed by the department of mental health and substance abuse services; or
12. 1. Use a transdermal monitoring device or other alternative monitoring device if the court determines that the defendant's use of alcohol or drugs was a contributing factor in the defendant's unlawful conduct and the defendant is granted probation on or after July 1, 2014. If the defendant is granted probation on or after July 1, 2016, and the court orders a monitoring device but determines that the person is indigent, the court shall order that the portion of the costs of the device that the person is unable to pay be paid by the electronic monitoring indigency fund, established in § 55-10-419;
  2. As used in this subdivision (d)(12), “transdermal monitoring device” means any device or instrument that is attached to the person, designed to automatically test the alcohol or drug content in a person by contact with the person's skin at least once per one-half (½) hour regardless of the person's location, and which detects the presence of alcohol or drugs and tampering, obstructing, or removing the device.
Probation shall be granted, if at all, at the time of the sentencing hearing except for sentences served in a local jail or workhouse, or except during the time a defendant sentenced to the department of correction is being housed in a local jail or workhouse awaiting transfer to the department as provided in § 40-35-212(d).
The trial judge shall not have the authority to require that the defendant either secure or pay the costs accrued in the case at the instance of the state as a condition of conducting a hearing on the defendant's request for suspension of sentence and probation.
The powers granted in this section shall be exercised by the judge of the trial court presiding at the trial of original conviction or by any successor judge holding court in that jurisdiction.
No probationer shall be allowed to leave the jurisdiction of the probationer's probation officer without the express permission of the trial judge.
1. In misdemeanor cases, as a condition precedent, the defendant must pay not less than ten dollars ($10.00) nor more than forty-five dollars ($45.00) per month as part payment of expenses incurred by the agency, department, program, group or association in supervising the defendant. The payment shall be made to the clerk of the court in which proceedings against the defendant were pending, to be sent to the agency, department, program, group or association responsible for the supervision of the defendant, unless the defendant is found to be indigent and without anticipated future funds with which to make the payment. The clerk of the court collecting the payment is permitted to retain five percent (5%) of the proceeds collected for the handling and receiving of the proceeds. The court may order the payments to be made directly to the agency, department, program, group or association responsible for the supervision of the defendant in lieu of making the payments to the clerk of the court.
2. In addition to the costs imposed by subdivision (i)(1), the court may require the defendant to pay any or all costs for the defendant's supervision, counseling or treatment in a specified manner, based on the defendant's ability to pay.
3. Willful failure to pay the supervision fee imposed by this subsection (i) to the supervising entity shall be grounds for revocation of probation and the supervising entity shall report all instances of nonpayment to the sentencing court.
The provisions of this section relative to the payment of a supervision fee shall not apply to any person subject to chapter 28, part 2 of this title.
The commissioner of correction, sheriff, warden, superintendent or other official having authority and responsibility for convicted defendants may contract with any appropriate public or private agency not under the commissioner's, sheriff's, warden's, superintendent's or other official's control for custody, care, subsistence, education, treatment or training of the defendants. The cost of the contract services shall be paid by the appropriate state or local entity to the department or the local jail or workhouse.
A probation officer shall make reasonable and diligent effort to notify a victim of any felony that involved violence or the threat of violence that the defendant convicted of that offense is statutorily eligible for probation and that a hearing will be held to determine whether the defendant should be granted probation. The notice shall be given at least three (3) days prior to the hearing. If the victim is less than eighteen (18) years of age or is otherwise unavailable, the probation officer shall make all reasonable and diligent efforts to so notify the family, if any, of the victim.
In determining whether a person convicted of the offense of stalking, aggravated stalking or especially aggravated stalking, as defined in § 39-17-315, or any criminal offense defined in title 39, chapter 13, in which the victim falls within the definition set forth in § 36-3-601(5), should be granted probation, the court shall consider the safety and protection of the victim of the offense and of any other member of the victim's family or household.
If the court grants probation to a person convicted of an offense specified in subsection (m), it may condition the probation on compliance with one (1) or more orders of the court, including, but not limited to:
1. Enjoining the perpetrator from threatening to commit or committing acts of violence against the victim or other household members;
2. Prohibiting the perpetrator from harassing, annoying, telephoning, contacting or otherwise communicating, either directly or indirectly, with the victim;
3. Requiring the perpetrator to stay away from the residence, school, place of employment or a specified place frequented regularly by the victim and by any designated family or household member;
4. Prohibiting the perpetrator from possessing or consuming alcohol, controlled substances or controlled substance analogues; and
5. Prohibiting the perpetrator from using or possessing a firearm or any other specified weapon and requiring the perpetrator to surrender and forfeit any weapon currently possessed.
1. Probation officers meeting the requirements of this subsection (o) shall have the authority to serve warrants and make arrests solely relating to their duties as probation officers. A probation officer shall also have the authority to bring probationers before the court when directed by the court to do so. While acting in the performance of their duties as probation officers, the probation officers shall have the same authority as a peace officer while serving warrants and making arrests that relate solely to their duties as probation officers.
2. Subdivision (o)(1) shall only apply to a probation officer:
  1. In any county having a charter form of government with a population of less than five hundred thousand (500,000), according to the 2000 federal census or any subsequent federal census;
  2. Employed by a probation office operated by a governmental entity;
  3. Who has completed training equal to the training required by the standards of the peace officer's standards and training commission (POST); and
  4. Who successfully completes at least forty (40) hours of appropriate in-service training each year.
3. Because a probation officer meets the standards and requirements of subdivision (o)(2) does not mean the officer is eligible for the pay supplement for state certified officers authorized in § 38-8-111.
4. This subsection (o) shall not apply to a state probation officer employed by the department of correction and paid by the state of Tennessee.
1. If a defendant is granted probation pursuant to this section and is released to the department charged by law with the supervision of probationers, the department may contract with an approved private probation provider to furnish probation supervision and services to such defendant if:
  1. The defendant's conviction offense was for a Class E felony; and
  2. The caseloads of state probation officers where the defendant is being supervised are high, resulting in the likelihood that the probationer may receive increased supervision and services from a private probation provider; or
  3. The private probation provider offers specialized services, treatment or training that would be beneficial to a probationer but would not be available if the probationer is supervised by the department.
2. To contract with the department for the supervision of felons described in subdivision (p)(1)(A), a private probation provider shall:
  1. Meet all qualifications established by the private probation council for entities providing misdemeanor probation services;
  2. Keep all records in an electronic format that is accessible upon demand by an approved state agency;
  3. Maintain professional liability insurance of not less than one million dollars ($1,000,000) in addition to a general liability policy; and
  4. 1. Have been a private provider of misdemeanor probation services for courts exercising criminal jurisdiction in this state for at least fifteen (15) years; or
    2. Have been a private provider of misdemeanor probation services for courts exercising criminal jurisdiction in this state for at least two (2) years and a state probation officer for at least thirteen (13) years.
3. 1. A private probation provider who meets the requirements of subdivision (p)(2) and who wants to contract with the department to provide probation services to felons described in subdivision (p)(1)(A), may register with the department and the private probation council.
  2. At the time of registration, the private provider shall submit to the department and council:
    1. Such documentation as is necessary to demonstrate that it meets the requirements of subdivision (p)(2); and
    2. A specific plan demonstrating how the use of such provider to supervise and provide services to felons described in subdivision (p)(1)(A), who have been granted probation will further the overall goal of reducing the recidivism rate of probationers. Such plan shall also contain statistics for misdemeanor probation services provided by the private provider for the previous ten (10) years. At a minimum, the statistics contained in the plan shall contain the same information required to be maintained by subdivision (p)(5).
  3. If the documentation and recidivism rate reduction plan presented by the private provider demonstrates that it meets the requirements of subdivision (p)(2), the department and council shall approve the private provider and place such provider on a list of companies eligible to contract with the department pursuant to this subsection (p).
4. A supervision contract authorized by this section shall be between the private provider and the department. Once the court grants a person's petition for probation, the department shall be the sole entity that determines who supervises the probationer. No probationer meeting the criteria set out in subdivision (p)(1)(A) shall be placed under the supervision of or supervised by a private provider that has not contracted with the department and is not on the list of companies approved by the department and the council.
5. Any private provider who contracts with the department pursuant to this subsection (p) shall maintain statistics on the probationers supervised pursuant to this subsection (p) and shall submit a quarterly report of such statistics to the person or agency designated by the department. The statistics shall include, but not be limited to:
  1. The number of felony probationers described in subdivision (p)(1)(A) the private provider has contracted to supervise;
  2. The style of the case which resulted in the defendant being placed on probation;
  3. The number of felons described in subdivision (p)(1)(A), whose probation was revoked prior to the end of supervision; and
  4. The recidivism rate of the felony probationers supervised by the private provider under a contract authorized by this subsection (p).
6. 1. A private provider contracting to supervise felons described in subdivision (p)(1)(A) may charge a supervision fee not to exceed sixty dollars ($60.00) per month. However, if a probationer cannot afford all or part of the supervision fee, the probationer may go before the court placing the defendant on probation and petition that it be waived or reduced. For good cause shown, the court may waive or reduce the supervision fee in appropriate cases.
  2. Willful nonpayment of the supervision fee to the private probation provider shall be grounds for revocation and the provider shall report instances of nonpayment to the department in the manner specified in the contract.
7. No employee of a private provider of probation services shall supervise a felon described in subdivision (p)(1)(A) unless the employee has a bachelor of science degree from an accredited college or university or at least two (2) years of related work experience.
8. This subsection (p) shall not apply to offenders who are governed by the Interstate Compact for Supervision of Adult Offenders, codified in § 40-28-401. The supervision of those offenders shall be controlled by the compact.

Acts 1989, ch. 591, § 6; 1990, ch. 982, § 4; 1990, ch. 1030, § 32; 1991, ch. 458, § 2; 1992, ch. 1009, § 1; 1993, ch. 221, § 3; 1994, ch. 978, § 3; 1995, ch. 410, § 4; 1997, ch. 211, § 6; 2000, ch. 740, § 1; 2000, ch. 947, § 8E; 2003, ch. 408, § 1; 2005, ch. 353, § 7; 2005, ch. 433, § 1; 2005, ch. 455, § 1; 2005, ch. 482, § 7; 2006, ch. 973, § 2; 2007, ch. 311, § 1; 2007, ch. 528, § 1; 2009, ch. 186, § 6; 2010, ch. 981, §§ 4, 6; 2010, ch. 1100, § 66; 2012, ch. 575, § 1; 2012, ch. 652, § 1; 2012, ch. 727, § 44; 2012, ch. 848, § 35; 2013, ch. 33, § 1; 2013, ch. 154, § 38; 2014, ch. 567, § 3; 2014, ch. 902, § 5; 2016, ch. 993, § 14; 2016, ch. 1021, § 1; 2018, ch. 1046, § 3.

Sentencing Commission Comments.

This section deals with the eligibility criteria for probation and the procedural aspects of probation supervision.

Subsection (a) provides that, with certain exceptions, a defendant may be granted probation where the sentence imposed is eight years or less. Although prior law set this at 10 years, the present provisions will capture most of the same type of offenders because of the sentencing structure. Certain categories of felony classifications preclude probation eligibility since, by definition, they exceed eight years. Thus, all persons convicted of Class A felonies are ineligible for probation as a matter of law. Similarly, Class B felonies preclude probation where the defendant is a Range II or Range III offender. This is also the case for Class C felonies where the defendant is found to be a Range III offender. Some ranges permit probation eligibility depending on the number of years actually imposed. For example, a Range II, Class C, felony carries a sentence of between six and 10 years. If the judge imposes a sentence in excess of eight years, then the defendant may not be placed on probation. There are several specified exceptions to probation eligibility even where the defendant receives a sentence of eight years or less. Under subsection (a), a defendant convicted of certain drug offenses pursuant to § 39-17-417(b) or (i), aggravated kidnapping pursuant to § 39-13-304, aggravated robbery pursuant to § 39-13-402, aggravated child abuse pursuant to § 39-15-402, or aggravated sexual battery pursuant to § 39-13-504, is ineligible for probation. Subsection (a) was amended in 1993 to allow a defendant sentenced to community corrections to be placed on probation, including an offender originally ineligible for probation, after service of one (1) year on community corrections.

As noted, the provisions of subsection (a) provide that the defendant may be sentenced to probation if the sentence imposed is eight years or less. This is similar to language under prior law which looks to the length of the sentence in individual convictions to determine eligibility. In State v. Langston, 708 S.W.2d 830 (Tenn. 1986), the court found that where the defendant had multiple convictions and the total sentence structure exceeded that for probation eligibility, the defendant would still be eligible for probation consideration if the individual convictions fell within the probation eligibility criteria. The commission intends this interpretation to continue to apply to probation eligibility determinations.

Subsection (b) is similar to prior law and provides that the court must consider probation as a sentencing alternative for eligible defendants. The last sentence in subsection (b) provides that the defense must establish that the defendant is otherwise suitable for probation consideration. In other words, even though probation must be automatically considered as a sentencing option for eligible defendants, the defendant is not automatically entitled to probation as a matter of law. This subsection should be read in conjunction with § 40-35-102(6).

Subsection (c) provides that the judge must fix a specific sentence even where probation is granted. The judge must then fix the duration of the period of probation. There is no requirement that the duration of probation be the same as the length of the sentence imposed. However, the duration of the probation must be at least the length of the statutory minimum sentence. Further, even though the length of the actual sentence is restricted to that required by the particular range, the judge may fix the length of probation up to the statutory maximum for the class of the offense. For example, the judge could find that the defendant, convicted of a Class D felony, is a Range I, standard offender and impose a sentence of two years, which could be suspended for a period of time up to 12 years, because the statutory maximum for a Class D felony is 12 years. However, the probation period could not be less than two years. The commission believes that courts should have a great degree of latitude in fixing the length of probation since this might encourage the use of probation as a sentencing alternative. An extended time on probation supervision may be warranted where the defendant has to make a great deal of restitution to the victim. It should be noted that the trial judge may always modify the length of the terms of probation pursuant to § 40-35-308.

Subsection (d) sets forth some of the conditions which a court may impose upon a defendant sentenced to probation supervision. This list is intentionally non-exclusive since the court should have the discretion to design appropriate conditions of probation drafted to the individual defendant. Subsections (e)-(k) deal with administrative aspects of probation supervision and are similar to prior law on the subject.

Subsection (l ) provides that the victim of any felony involving violence or the threat of violence must be notified by the probation officer that the defendant might be statutorily eligible for probation. Prior law requires the judge to make this notification.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

The reference to § 55-10-402 in subdivision (d)(11)(B) has been changed from § 55-10-402(h)(2) to § 55-10-402(j) to reflect amendments to § 55-10-402 by Acts 2014, ch. 902, §§ 1-4, effective July 1, 2014.

Acts 2005, ch. 353, § 18, which amended subsection (a), provided that the act shall apply to sentencing for criminal offenses committed on or after June 7, 2005. Offenses committed prior to June 7, 2005, shall be governed by prior law, which shall apply in all respects. However, for defendants who are sentenced after June 7, 2005, for offenses committed on or after July 1, 1982, the defendant may elect to be sentenced under the provisions of the act by executing a waiver of such defendant’s ex post facto protections. Upon executing such a waiver, all provisions of the act shall apply to the defendant.

Acts 2005, ch. 353, § 19 provided that the act, which amended subsection (a), shall have no application to sentencing for persons convicted of murder in the first degree, which shall be governed by the provisions of §§ 39-13-202 — 39-13-208.

Acts 2007, ch. 311, § 3 provided that the act, which added subdivision (d)(11), shall apply to any conviction for conduct occurring on or after July 1, 2007.

For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Acts 2010, ch. 1100, § 153 provided that the commissioner of mental health and developmental disabilities, the commissioner of mental health, the commissioner of intellectual and developmental disabilities, and the commissioner of finance and administration are authorized to promulgate rules and regulations to effectuate the purposes of the act. All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended subdivision (o)(4), shall be fully accomplished on or before January 1, 2013.

Acts 2014, ch. 567, § 6 provided that the act, which added subdivision (d)(12), shall be known and may be cited as “Amelia's Law”.

Acts 2014, ch. 902, § 8 provided that the act shall apply to any person committing a second or third violation of § 55-10-401 on or after July 1, 2014. If a person commits a second or third violation of § 55-10-401 prior to July 1, 2014, but the conviction for such offense does not occur until after July 1, 2014, the person shall elect to the judge at the time of conviction whether to come within the provisions of the act or be sentenced in accordance with the law in effect at the time the offense was committed.

Acts 2018, ch. 1046, § 12 provided that the act, which amended this section, shall apply to offenses committed on or after July 1, 2018.

Cross-References. Community work projects for probationers, title 41, ch. 9, part 1.

County community work projects for probationers, title 41, ch. 9, part 2.

Determination of risk to victim or family members prior to release, § 40-11-150.

Penalty for Class E felony, § 40-35-111.

Prisoner Rehabilitation Act, title 41, ch. 21, part 5.

Probation, paroles, and pardons, title 40, ch. 28.

Purpose of chapter, § 40-35-102.

Restitution, title 41, ch. 6.

Sentencing considerations, § 40-35-103.

Sentencing provisions applicable to persons committing crimes prior to July 1, 1982, title 40, ch. 20.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 32.191, 32.192, 32.193, 32.197, 32.252, 32.253, 33.14.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 3-11-9.

Tennessee Jurisprudence, 4 Tenn. Juris., Automobiles and Other Vehicles, § 35.1; 8 Tenn. Juris., Criminal Procedure, § 43.

Law Reviews.

Judicial Discretion Under the New Tennessee Criminal Sentencing Reform Act of 1982 (Thomas A. Wiseman, Jr.), 18 No. 4 Tenn. B.J. 13 (1982).

Wealth-Based Penal Disenfranchisement, 72 Vand. L. Rev. 55 (January 2019).

Attorney General Opinions. Collection of supervision fee by private probation service, OAG 99-029, 1999 Tenn. AG LEXIS 22 (2/17/99).

Inclusion of medical expenses incurred on behalf of inmate as jail fees taxable in bill of costs such that reimbursement can be condition of probation pursuant to T.C.A. § 40-35-303(d), OAG 03-072, 2003 Tenn. AG LEXIS 90 (6/10/03).

NOTES TO DECISIONS

1. Construction.

When T.C.A. §§ 40-35-102(6) and 40-35-303(b) are read together, it is clear that the general assembly has provided in the Criminal Sentencing Reform Act of 1989 that, although probation is not a matter of automatic right, a defendant who meets the requirements of T.C.A. § 40-35-102(6) is vested with a rebuttable presumption that a sentence other than confinement would result in successful rehabilitation. State v. Hartley, 818 S.W.2d 370, 1991 Tenn. Crim. App. LEXIS 463 (Tenn. Crim. App. 1991).

Where a defendant pleaded guilty to violating an order under the Motor Vehicle Habitual Offenders (MVHO) Act, T.C.A. § 55-10-601 et seq., the trial court properly determined that it could consider probation because the Criminal Sentencing Reform Act of 1989, which stated in T.C.A. § 40-35-303(a) that defendants receiving a sentence of eight years or less were generally eligible for probation, repealed by implication the prohibition of probation contained in the MVHO Act at T.C.A. § 55-10-616(c). State v. Martin, 146 S.W.3d 64, 2004 Tenn. Crim. App. LEXIS 62 (Tenn. Crim. App. 2004).

2. Judicial Authority.

Trial court had the authority to suspend defendant's sentence and place her on probation because when she pleaded guilty, she was sentenced to less than 10 years, and she was eligible for probation at the time she was sentenced by the trial court. State v. Lloyd, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 776 (Tenn. Crim. App. Oct. 17, 2018).

Trial court presiding at the trial of original conviction has the authority to suspend a Tennessee Department of Correction (TDOC) sentence of an eligible defendant and to place that defendant on probation during the time a defendant sentenced to the TDOC is being housed in a local jail or workhouse awaiting transfer to the TDOC. The phrase “the judge of the trial court presiding at the trial” encompasses the judge of the trial court presiding over the guilty plea and sentencing of a defendant. State v. Lloyd, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 776 (Tenn. Crim. App. Oct. 17, 2018).

3. Factors.

It was not appropriate to affirmatively order that defendant be placed on probation because the record was not capable of meaningful appellate review, and thus, the proper remedy was a remand to the trial court for a new sentencing hearing; the trial court made no findings regarding the particular circumstances surrounding defendant's commission of vehicular homicide by intoxication, and it failed to explain on the record determinations it made regarding defendant's amenability to correction. State v. Trent, 533 S.W.3d 282, 2017 Tenn. LEXIS 710 (Tenn. Nov. 3, 2017).

Before a trial court can deny probation solely on the basis of the offense itself, the circumstances of the offense as particularly committed in the case under consideration must demonstrate the defendant committed the offense in some manner more egregious than is contemplated simply by the elements of the offense; ergo, that a defendant killed someone while driving intoxicated is not sufficient, in and of itself, to deny probation because this crime is probation-eligible. State v. Trent, 533 S.W.3d 282, 2017 Tenn. LEXIS 710 (Tenn. Nov. 3, 2017).

Defendant, because he was a standard offender convicted of a Class B felony, was entitled to be considered for probation in spite of the fact that he committed vehicular homicide by intoxication. State v. Trent, 533 S.W.3d 282, 2017 Tenn. LEXIS 710 (Tenn. Nov. 3, 2017).

4. No Right to Reject Sentence.

A defendant has no right to reject probation or any other means of alternative sentencing in order to accept the imposition of a department of correction sentence. State v. Estep, 854 S.W.2d 124, 1992 Tenn. Crim. App. LEXIS 930 (Tenn. Crim. App. 1992), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 116 (Tenn. Mar. 22, 1993).

5. Placement without Petition.

Trial courts have the authority to place defendants in a community corrections program whether there is a written application or not, particularly when the trial court is in possession of all information that might otherwise be contained in a formal request. State v. Estep, 854 S.W.2d 124, 1992 Tenn. Crim. App. LEXIS 930 (Tenn. Crim. App. 1992), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 116 (Tenn. Mar. 22, 1993).

6. Conditions of Probation.

A condition of probation requiring defendant to place a sign in his front yard stating: “Warning, all children. Defendant is an admitted and convicted child molester. Parents beware” was not authorized by statute. State v. Burdin, 924 S.W.2d 82, 1996 Tenn. LEXIS 359 (Tenn. 1996).

Condition that defendant legitimate her daughter did not fit under the enumerated conditions in T.C.A. § 40-35-303(d)(1), because her failure to do so did not show that she was not meeting her family responsibilities, and furthermore, the condition was not proper under the “catch-all” provision of § 40-35-303(d)(9). State v. Mathes, 114 S.W.3d 915, 2003 Tenn. LEXIS 724 (Tenn. 2003).

A probation condition that deprives a defendant of the opportunity to pursue lawful employment should be closely scrutinized, especially in the case of a professional whose conduct is regulated by a regulatory agency. The three-pronged test set forth in the case of State v. Graham, 91 Ohio App. 3d 751, 633 N.E.2d 622, 625, 1993 Ohio App. LEXIS 6212 (Ohio App. 1993), relating to a probation condition that restricts employment, is instructive; namely, it must: (1) Reasonably relate to rehabilitation; (2) Have a relationship to the crime committed; and (3) Relate to conduct that is criminal or reasonably relate to future criminality. State v. Robinson, 139 S.W.3d 661, 2004 Tenn. Crim. App. LEXIS 82 (Tenn. Crim. App. 2004).

Restricted of defendant's employment as a pharmacist as a condition of probation was improper, because the ban on the practice of pharmacy during the four-year probationary period was: (1) Punitive and not rehabilitative; (2) Not based upon concerns of future criminality; (3) Unnecessary and overbroad in light of the regulatory authority of the Tennessee board of pharmacy; and (4) Unduly restrictive in preventing lawful employment. State v. Robinson, 139 S.W.3d 661, 2004 Tenn. Crim. App. LEXIS 82 (Tenn. Crim. App. 2004).

Trial court did not err by imposing a special condition of probation for defendant's vehicular homicide conviction requiring defendant to at least three times per year during the period of probation speak to 10th, 11th and 12th grade students in various schools because the special condition complied with the language of Mathes and this section. State v. Oxendine, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 85 (Tenn. Crim. App. Feb. 12, 2020).

7. Community Corrections Sentence.

The legislature did not intend a community corrections sentence and a probation sentence to be equivalents for purposes of consecutive sentencing under T.C.A. § 40-35-115(b)(6). State v. Pettus, 986 S.W.2d 540, 1999 Tenn. LEXIS 44 (Tenn. 1999).

In order to be eligible for community correction under T.C.A. § 40-36-106(c), a defendant must first be eligible for probation under T.C.A. § 40-35-303. State v. Kendrick, 10 S.W.3d 650, 1999 Tenn. Crim. App. LEXIS 926 (Tenn. Crim. App. 1999).

8. Split Confinement.

Applicable legal standard a trial court must use to determine whether to suspend a Tennessee Department of Correction sentence and place a defendant on probation is whether post-sentencing information or developments have arisen that warrant an alteration in the interest of justice. A defendant must show that the post-sentencing information or developments were more than simply what was expected, for example a defendant could show that the post-sentencing information or developments were unexpected, unforeseen, or unanticipated. State v. Lloyd, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 776 (Tenn. Crim. App. Oct. 17, 2018).

Trial court did not abuse its discretion by suspending the balance of the sentence service and placing defendant on probation because it did not apply an incorrect legal standard, its decision was not illogical or unreasonable, and its decision did not cause an injustice to the State. The court inferred that the trial court did not expect defendant to be denied parole and the parole board, based on information that was available at the time the guilty plea was entered, effectively tripled the length of time defendant was required to serve in incarceration before she was eligible for release on parole. State v. Lloyd, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 776 (Tenn. Crim. App. Oct. 17, 2018).

9. Defendant Eligible For Probation.

Defendant was eligible for probation under T.C.A. § 40-35-303(a), but defendant was not entitled to a statutory presumption in favor of an alternative sentence under T.C.A. § 40-35-102(6) because defendant was sentenced as a Range II offender. The evidence was more than sufficient to justify the denial of probation under T.C.A. § 40-35-103(1), because to have done otherwise would have depreciated the seriousness of the offense. State v. Souder, 105 S.W.3d 602, 2002 Tenn. Crim. App. LEXIS 986 (Tenn. Crim. App. 2002), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 269 (Tenn. Mar. 17, 2003).

Defendant was eligible for probation because the sentence imposed following defendant's plea of guilty to reckless homicide was less than ten years. State v. Baysinger, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 801 (Tenn. Crim. App. Dec. 23, 2019).

10. Defendant Not Eligible for Probation.

In an aggravated burglary case in which defendant received a 14-year sentence, the trial court did not err in denying defendant's request for probation because defendant was statutorily ineligible for probation as the sentence he received was greater than 10 years. State v. Sanders, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 670 (Tenn. Crim. App. July 31, 2017).

Trial court did not err in ordering that defendant serve his 15-year sentence for one count of sale and one count of delivery of a Schedule II controlled substance, morphine, in confinement because the interests of society would be protected from possible future criminal conduct if defendant were incarcerated, and confinement was suited to provide an effective deterrence; defendant was not statutorily eligible for probation or community corrections under the special needs provision; and defendant was not eligible for community corrections as he had a past pattern of behavior indicating violence and he had demonstrated a pattern of committing violent offenses. State v. Shelton, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 832 (Tenn. Crim. App. Sept. 11, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 33 (Tenn. Jan. 17, 2018).

Since four of defendant's six properly ordered sentences exceeded the 10-year maximum sentence statutorily permitted for consideration of probation, the trial court did not abuse its discretion in finding that probation was inappropriate. State v. Hatmaker, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 439 (Tenn. Crim. App. June 8, 2018).

In a case in which defendant was convicted of robbery, theft, felony evading arrest, and misdemeanor evading arrest, the trial court did not err in denying him an alternative sentence because defendant had failed at probation on at least one prior occasion; and he was ineligible for community corrections as he committed robbery, a violent crime. State v. Derring, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 32 (Tenn. Crim. App. Jan. 16, 2019).

Trial court did not err in denying defendant's request for an alternative sentence because defendant admittedly was not eligible for probation based on the imposition of a 12-year sentence. State v. Dewalt, — S.W.3d —, (Tenn. Crim. App. July 12, 2019).

Trial court did not err in revoking defendant's probationary sentence because it maintained jurisdiction to correct defendant's original sentence at any time before its expiration since it was illegal; defendant was convicted of aggravated robbery, and, in consequence, was ineligible for probation despite having received a sentence of 10 years or less, and he was not eligible for any form of alternative sentencing. State v. Contreras, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 642 (Tenn. Crim. App. Oct. 9, 2019).

11. Defendant Not Entitled to Probation.

Although probation must be automatically considered in sentencing, the defendant is not automatically entitled to probation as a matter of law. State v. Fletcher, 805 S.W.2d 785, 1991 Tenn. Crim. App. LEXIS 54 (Tenn. Crim. App. 1991).

Defendant who pled guilty to driving under the influence, leaving the scene of an accident involving injury, and three counts of reckless aggravated assault, after striking another vehicle containing a driver and two children, injuring all three, who had previous convictions for driving under the influence and leaving the scene of an accident, was not entitled to full probation, as probation had been unsuccessful in altering defendant's criminal behavior pattern, would depreciate the offenses' seriousness, and was not in the best interests of defendant or the public. State v. Blackhurst, 70 S.W.3d 88, 2001 Tenn. Crim. App. LEXIS 682 (Tenn. Crim. App. 2001), review or rehearing denied, — S.W.3d —, 2002 Tenn. LEXIS 73 (Tenn. Feb. 11, 2002).

Trial court did not err in imposing a sentence of confinement and in denying defendant's request for probation because defendant had a long history of criminal conduct and measures less restrictive than confinement had been applied unsuccessfully to defendant. Furthermore, none of the treatment programs available in the community recommended defendant for enhanced probation. State v. Ray, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 162 (Tenn. Crim. App. Mar. 2, 2018).

12. Denial of Probation Proper.

In sentencing a 20-year-old defendant upon conviction of vehicular homicide by recklessness, even though the circumstances of the offense were not egregious enough by themselves to overcome the presumption of alternative sentencing, where the evidence revealed a callous indifference by the defendant for the safety of unsuspecting motorists at the time of the offense, denial of full probation was proper. State v. Bingham, 910 S.W.2d 448, 1995 Tenn. Crim. App. LEXIS 105 (Tenn. Crim. App. 1995), rehearing denied, — S.W.2d —, 1995 Tenn. Crim. App. LEXIS 407 (Tenn. Crim. App. May 15, 1995), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 592 (Tenn. Oct. 2, 1995), overruled in part, State v. Hooper, 29 S.W.3d 1, 2000 Tenn. LEXIS 535 (Tenn. 2000), overruled in part, State v. Walker, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 200 (Tenn. Crim. App. Mar. 16, 2017).

Defendant convicted of voluntary manslaughter was unsuitable for probation based on his criminal and social history, the circumstances of the crime, and his poor amenability to rehabilitation. State v. Goode, 956 S.W.2d 521, 1997 Tenn. Crim. App. LEXIS 785 (Tenn. Crim. App. 1997).

Although defendant was eligible for probation, the trial court did not err in refusing to grant defendant a sentence of full probation after determining that an alternative sentence would not serve the ends of justice or the interests of the public, as the public had a vested interest in ensuring individuals who serve in a public capacity, like a deputy clerk, conduct themselves honestly during the course of their employment. State v. Graham, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 1039 (Tenn. Crim. App. Nov. 27, 2013), review denied and ordered not published, — S.W.3d —, 2014 Tenn. LEXIS 379 (Tenn. May 15, 2014), overruled, State v. King, 432 S.W.3d 316, 2014 Tenn. LEXIS 351 (Tenn. Apr. 23, 2014).

Trial court did not err by denying defendant alternative sentencing because defendant's argument that the trial court failed to consider the factors of T.C.A. § 40-35-103 was not supported by the record, the trial court found that confinement was necessary to avoid depreciating the seriousness of the offense, it found that he was not truthful, T.C.A. § 40-35-113(7) was not applicable because the testimony about his son's health was offered to establish that defendant's absence from the household would create a hardship due to the need for a specialized caretaker, and the record did not show that the trial court denied probation based on defendant's release eligibility date. State v. Redden, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 193 (Tenn. Crim. App. Mar. 15, 2017).

Trial court did not err by denying defendant's request for alternative sentencing after he pleaded guilty to possession of contraband inside a penal institution because the trial court did not find that defendant's potential for rehabilitation was good and it found that he would not abide by the terms of another alternative sentence as he was serving his reckless homicide conviction on community corrections at the time he committed the contraband offense. State v. Chambers, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 385 (Tenn. Crim. App. May 16, 2017).

Trial court did not abuse its discretion in denying alternative sentencing after finding two enhancement factors applied to defendant, a long history of criminal behavior and that measures less than incarceration had been unsuccessful for defendant, and finding that defendant was not a credible witness, his testimony did not establish any justification for actions leading up to the offense, and society needed to be protected from defendant. State v. Altenhoff, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 856 (Tenn. Crim. App. Sept. 13, 2017).

Trial court considered the pertinent facts of this case and appropriate sentencing principles and denied alternative sentencing based on defendant's criminal record, past failed attempts at less restrictive measures, and lack of potential for rehabilitation. Defendant did not establish that the trial court abused its discretion by denying his request for an alternative sentence under T.C.A. § 40-35-303. State v. Nelson, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 990 (Tenn. Crim. App. Nov. 30, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 86 (Tenn. Feb. 14, 2018).

Trial court did not abuse its discretion by denying defendant probation because even though it stated that his criminal history was not bad, it relied heavily on his prior opportunities to serve an alternative sentence that were not successful. State v. Johnson, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 243 (Tenn. Crim. App. Apr. 16, 2019).

Trial court properly refused to grant an alternative sentence despite defendant's eligibility for probation because, despite defendant's desire to make his life better and promises that he would abide by the terms of a probationary sentence, he had a long history of criminal conduct and had been unsuccessful in completing an alternative sentence multiple times. State v. Crisp, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 409 (Tenn. Crim. App. June 15, 2020).

13. Denial of Probation Improper.

14. Denial of Full Probation Appropriate.

15. Denial of Alternative Sentencing Appropriate.

Trial court properly ordered that defendant serve her sentences in confinement because it found that confinement was necessary to protect society from defendant and that she lacked potential for rehabilitation; the trial court was greatly troubled by defendant's likelihood to re-offend and her lack of potential for rehabilitation, and it stated defendant posed a threat to the public given her prior history and her continual disregard of conforming her conduct to the requirements of the law. State v. Hottiman, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 159 (Tenn. Crim. App. Feb. 28, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 455 (Tenn. July 19, 2018).

In a voluntary manslaughter case, although defendant was eligible for probation because his sentence was 10 years or less and because the offense was not specifically excluded by statute, defendant was not deserving of an alternative sentence as the seriousness of the particular facts of his offense required confinement in order to deter similar behavior; there was no evidence of provocation and that the evidence adduced at trial could have supported a conviction of first degree murder; there was no evidence of self-defense; and defendant failed to prove that he was suitable for probation or that probation would serve the best interests of himself and the public. State v. Bell, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 539 (Tenn. Crim. App. July 19, 2018).

Trial court did not err in imposing a sentence of confinement after defendant pled guilty to possession with intent to sell, as the trial court engaged in a detailed and thorough analysis to determine that non-incarcerative options were not appropriate and defendant's disagreement with the weight given to his work history did not support the grant of relief. State v. Torres, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 534 (Tenn. Crim. App. July 18, 2018).

It was not an abuse of discretion to deny defendant alternative sentencing because the trial court considered defendant's prior felony convictions and unsuccessful probation. State v. Lane, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 600 (Tenn. Crim. App. Sept. 20, 2019).

16. Denial of Alternative Sentencing Inappropriate.

Trial court's denial of alternative sentencing had to be remanded for a new sentencing hearing because the trial court improperly considered some factors, neglected to consider others, and no psychosexual evaluation was conducted. The trial court did not consider mitigating or enhancement factors on the record and defendant did not have a long history of criminal conduct. State v. Reno, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 627 (Tenn. Crim. App. July 18, 2017).

17. Judicial Diversion Properly Denied.

40-35-304. Restitution as condition for probation — Petition to modify — Civil judgment for nonpayment — Procedure.

A sentencing court may direct a defendant to make restitution to the victim of the offense as a condition of probation.
Whenever the court believes that restitution may be proper or the victim of the offense or the district attorney general requests, the court shall order the presentence service officer to include in the presentence report documentation regarding the nature and amount of the victim's pecuniary loss.
The court shall specify at the time of the sentencing hearing the amount and time of payment or other restitution to the victim and may permit payment or performance in installments. The court may not establish a payment or performance schedule extending beyond the statutory maximum term of probation supervision that could have been imposed for the offense.
In determining the amount and method of payment or other restitution, the court shall consider the financial resources and future ability of the defendant to pay or perform.
For the purposes of this section, “pecuniary loss” means:
1. All special damages, but not general damages, as substantiated by evidence in the record or as agreed to by the defendant; and
2. Reasonable out-of-pocket expenses incurred by the victim resulting from the filing of charges or cooperating in the investigation and prosecution of the offense; provided, that payment of special prosecutors shall not be considered an out-of-pocket expense.
A defendant, victim or district attorney general at any time may petition the sentencing court to adjust or otherwise waive payment or performance of any ordered restitution or any unpaid or unperformed portion of the restitution. The court shall schedule a hearing and give the victim and the defendant notice of the hearing, including the date, place and time and inform the victim and defendant that each will have an opportunity to be heard. If the court finds that the circumstances upon which it based the imposition or amount and method of payment or other restitution ordered no longer exist or that it otherwise would be unjust to require payment or other restitution as imposed, the court may adjust or waive payment of the unpaid portion of the restitution or other restitution or modify the time or method of making restitution. The court may extend the restitution schedule, but not beyond the term of probation supervision.
The procedure for a defendant sentenced to pay restitution pursuant to § 40-35-104(c)(2), or otherwise, shall be the same as is provided in this section with the following exceptions:
1. If there is no sentencing hearing or presentence report because the defendant's sentence is agreed upon and the payment of restitution is a part of the sentence, the plea agreement shall include the amount of restitution and the other performance requirements set out in subsection (c);
2. A defendant sentenced in whole or in part to the payment of restitution pursuant to § 40-35-104(c)(2), or otherwise, shall be responsible for the payment of the restitution until the expiration of the sentence imposed by the court, and any payment or performance schedule established by the court shall not extend beyond the expiration date;
3. If the court sentences a defendant to payment of restitution and believes that payment to more than one (1) victim is proper, the court shall determine the pecuniary loss of each victim as provided in this section and shall order the amount of restitution to each victim;
4. If, as a result of the defendant's criminal conduct, the victim or victims of the offense are dead at the time of sentencing, the court may sentence the defendant to pay restitution to the victim's or victims' next-of-kin; and
5. Nothing in § 39-11-118, § 40-35-104(c)(2) or this subsection (g) shall be construed to prohibit or delay a victim from applying for and receiving any compensation to which the victim is entitled under the Criminal Injuries Compensation Act, compiled in title 29, chapter 13. If the court orders the defendant to pay restitution pursuant to § 39-11-118, § 40-35-104(c)(2) or this subsection (g), the state shall have a subrogation interest in the restitution payments for the full amount paid the victim under the Criminal Injuries Compensation Act.
1. Notwithstanding any law to the contrary, upon expiration of the time of payment or the payment schedule imposed pursuant to subsection (c) or (g), if any portion of restitution remains unpaid, then the victim or the victim's beneficiary may convert the unpaid balance into a civil judgment in accordance with the procedure set forth in this subsection (h).
2. Within the twelve-month period following expiration of the time of payment or the payment schedule imposed pursuant to subsection (c) or (g), the victim or the victim's beneficiary may file a certified copy of the restitution order with an appropriate civil court having jurisdiction over the total amount of restitution ordered.
3. At the same time the victim or victim's beneficiary files a certified copy of the restitution order with the civil court, the victim or victim's beneficiary shall have the defendant personally served in accordance with the Tennessee rules of civil procedure. The service shall give notice to the defendant of the victim's or victim's beneficiary's intent to convert the restitution order to a civil judgment, and include a copy of the restitution order and a statement as to the amount of unpaid restitution the victim or victim's beneficiary alleges the defendant still owes.
4. Upon being served, the defendant shall be permitted to file an answer in accordance with the Tennessee rules of civil procedure.
5. Upon service of the defendant and receipt of the defendant's answer, if any, the civil court shall conduct a hearing in order to take proof as to the amount of ordered restitution actually paid. Both the victim or victim's beneficiary and the defendant shall be permitted to offer proof at this hearing. If the court finds by a preponderance of the evidence presented that the amount of restitution actually paid is less than the total amount of restitution ordered pursuant to subsection (c) or (g), then the court shall enter a judgment in favor of the victim or the victim's beneficiary and against the defendant for the amount of the unpaid balance of the restitution.
6. At the hearing conducted in accordance with this subsection (h), the only issues over which the court shall have jurisdiction is whether the defendant was properly served in accordance with the Tennessee rules of civil procedure, whether the restitution order entered against the defendant pursuant to this section has been satisfied by the defendant and, if not, the amount of restitution still owed by the defendant.
7. A civil judgment entered pursuant to this subsection (h) shall remain in effect from the date of entry until it is paid in full or is otherwise discharged and shall be enforceable by the victim or the victim's beneficiary in the same manner and to the same extent as other civil judgments are enforceable.

Acts 1989, ch. 591, § 6; 1996, ch. 699, §§ 3, 4; 2000, ch. 833, § 1; 2014, ch. 596, § 2.

Sentencing Commission Comments.

This provision is similar to prior law and sets forth procedural aspects of restitution where imposed as a condition of probation. As provided in § 40-35-103(6), trial judges are encouraged to impose restitution in appropriate instances. The commission believes restitution to victims is an important part of public policy and these sections are intended to enhance that policy.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Acts 2014, ch. 596, § 3 provided that the act, which amended subdivision (h)(7), shall apply to all applicable civil judgments entered after July 1, 2014 and to such judgments entered before July 1, 2014 if the judgment is still valid and the person follows the procedure in § 28-3-110(c) and (d).

Cross-References. Probation, paroles, and pardons, title 40, ch. 28.

Restitution, title 41, ch. 6.

Sentencing provisions applicable to persons committing crimes prior to July 1, 1982, title 40, ch. 20.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 32.197.

Law Reviews.

Attorney General Opinions. Restitution under plea agreement exceeding monetary grade of offense, OAG 98-037, 1998 Tenn. AG LEXIS 37 (2/9/98).

A county which has provided and paid for medical services to an inmate of its county jail is not entitled to restitution for those expenses as a condition of probation as the county would not be considered a victim entitled to restitution under the statute, OAG 01-118, 2001 Tenn. AG LEXIS 109 (7/26/01).

NOTES TO DECISIONS

1. In General.

Court's failure under T.C.A. § 40-35-304 to order documentation regarding the nature and amount of the loss in the presentence report was harmless, since a subsequent hearing was specifically held to give the defendant full consideration under the law regarding restitution. State v. Moore, 814 S.W.2d 381, 1991 Tenn. Crim. App. LEXIS 242 (Tenn. Crim. App. 1991).

Defendant's appeal from the trial court restitution order on his reckless endangerment conviction was dismissed for lack of jurisdiction as the restitution order was incomplete and interlocutory in nature where the trial court intended to further adjudicate the particulars of payment at a future date. State v. Comer, 278 S.W.3d 758, 2008 Tenn. Crim. App. LEXIS 296 (Tenn. Crim. App. Apr. 21, 2008).

2. Amount of Restitution.

The amount of restitution a defendant is ordered to pay must be based upon the victim's pecuniary loss and the financial condition and obligations of the defendant; and the amount ordered to be paid does not have to equal or mirror the victim's precise pecuniary loss. Moreover, the sum must be reasonable. State v. Smith, 898 S.W.2d 742, 1994 Tenn. Crim. App. LEXIS 685 (Tenn. Crim. App. 1994).

An order for restitution of $92,111 “by making regular monthly payments as best as possible” was not reasonable where defendant's average take-home pay was $245 and he was paying $50.00 a week child support along with other items of expense. State v. Smith, 898 S.W.2d 742, 1994 Tenn. Crim. App. LEXIS 685 (Tenn. Crim. App. 1994).

Trial court's judgment setting restitution amount overturned where the presentence report contained nothing about the victim's losses, the court failed to consider defendant's ability to pay or perform, and the restitution award was to be offset by amount awarded to victim in civil suit against defendant. State v. Johnson, 968 S.W.2d 883, 1997 Tenn. Crim. App. LEXIS 483 (Tenn. Crim. App. 1997).

An animal cruelty case was remanded regarding the issue of restitution, because a hearing was necessary to determine how much was received from the sale of the dogs and the assets and abilities to pay restitution of defendants. State v. Webb, 130 S.W.3d 799, 2003 Tenn. Crim. App. LEXIS 567 (Tenn. Crim. App. 2003), appeal denied, — S.W.3d —, 2003 Tenn. LEXIS 1233 (Tenn. Dec. 15, 2003), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 119 (Tenn. Feb. 2, 2004).

3. “Pecuniary Loss.”

Hospital or medical expenses necessary for the treatment of a victim of an assault qualify as “special damages” within the definition of “pecuniary loss” and are, therefore, subject to an order of restitution as a condition of probation. State v. Lewis, 917 S.W.2d 251, 1995 Tenn. Crim. App. LEXIS 756 (Tenn. Crim. App. 1995).

4. Time of Payment.

The trial court could not order installment payments of restitution beyond the period of defendant's suspended sentence. State v. Lewis, 917 S.W.2d 251, 1995 Tenn. Crim. App. LEXIS 756 (Tenn. Crim. App. 1995).

5. “Victim.”

An insurer who seeks to recover for payments made under an insurance contract is not a “victim” for the purposes of Tennessee's restitution provisions. State v. Alford, 970 S.W.2d 944, 1998 Tenn. LEXIS 354 (Tenn. 1998).

Insurer's loss was the result of the fraudulent claim made directly against it by defendant; the insurer accepted the risk of loss relative to defendant's residence; but it did not accept the risk of fraud by its insured; as such, it was a victim of defendant and restitution was an appropriate remedy. State v. Cross, 93 S.W.3d 891, 2002 Tenn. Crim. App. LEXIS 678 (Tenn. Crim. App. 2002), review or rehearing denied, — S.W.3d —, 2002 Tenn. LEXIS 662 (Tenn. Dec. 9, 2002).

Regarding restitution in an animal cruelty case, the humane society was a victim within the meaning of T.C.A. § 40-38-203(1), because T.C.A. § 39-14-210(f), by requiring that victimized animals be placed with state-chartered humane societies, created an obligation that removed the humane society from the status of a volunteer or good Samaritan and resulted in costs and expenses to a society as a result of the mandated responsibility. State v. Webb, 130 S.W.3d 799, 2003 Tenn. Crim. App. LEXIS 567 (Tenn. Crim. App. 2003), appeal denied, — S.W.3d —, 2003 Tenn. LEXIS 1233 (Tenn. Dec. 15, 2003), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 119 (Tenn. Feb. 2, 2004).

Where defendant made fraudulent withdrawals from funds managed by the bank, the bank was a “victim” of defendant's crime for restitution purposes under T.C.A. § 40-35-304; upon defendant's plea of guilty to two counts of misdemeanor theft, trial court did not err by ordering him to pay $1,400 in restitution to the bank. State v. Poole, 279 S.W.3d 602, 2008 Tenn. Crim. App. LEXIS 499 (Tenn. Crim. App. May 29, 2008).

6. Modification.

If a trial court orders probation, and through oversight or otherwise, omits restitution as a condition, its authority to modify the conditions to include restitution ends upon such order becoming final. State v. Moore, 814 S.W.2d 381, 1991 Tenn. Crim. App. LEXIS 242 (Tenn. Crim. App. 1991).

Defendant could not appeal as of right trial court's denial of her motion to modify a condition of probation, and the Tennessee court of criminal appeals erred in granting defendant common-law writ of certiorari and in holding that trial court's decision was a plain and palpable abuse of discretion; record did not reflect that trial court exceeded its jurisdiction or acted illegally, fraudulently, or arbitrarily in denying defendant's motion to modify. State v. Lane, 254 S.W.3d 349, 2008 Tenn. LEXIS 365 (Tenn. May 20, 2008).

7. Ability to Pay.

Trial court considered defendant's financial resources and ability to pay as required, and while the monthly restitution amount was much higher than defendant's current surplus income, the trial court's allusion to defendant's work ethic and her ability to complete complex tasks was taken as a determination that she was perhaps deliberately under-employed or hiding resources in order to avoid the prospect of restitution. State v. Jewell, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 4 (Tenn. Crim. App. Jan. 6, 2017).

Trial court did not abuse its discretion in determining defendant's ability to pay restitution of $47,000 because it found that the company's loss was $ 341,122, it found that the affidavits of indigency and the letter demonstrating an offer of employment corroborated defendant's work ethic and her ability to devote herself to producing income through employment, and it concluded that she was able to pay restitution of $47,000 in monthly installments of $500 for the remaining 94 months of her probationary sentence. State v. Jewell, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 295 (Tenn. Crim. App. May 7, 2019).

8. Restitution Order Improper.

Forgiven amount of $ 25,000 could not be factored into the loss sustained by the victims, but it was unclear if the amount was included; in any event, the restitution award was reversed. State v. Jewell, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 4 (Tenn. Crim. App. Jan. 6, 2017).

Because the State failed to introduce adequate proof of the loss, the restitution award was reversed; the testimony of company employees was insufficient to sustain the finding of the value of the loss, given that there was an inadequate explanation as to how the figures were calculated, plus the State did not introduce the verification of the amount by the accounting firm nor any summary of the work done to calculate the loss. State v. Jewell, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 4 (Tenn. Crim. App. Jan. 6, 2017).

Trial court erred by ordering defendant to pay $500 per month toward his ordered restitution of $132,766 following his release from his five-year period of confinement because even if defendant fully complied with the payment plan, he will have paid only $102,000 by the end of his sentence and would not have satisfied the total amount of restitution before the expiration of sentence as required. State v. Burkes, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 371 (Tenn. Crim. App. May 14, 2018).

Trial court abused its discretion by ordering defendant to pay restitution following his guilty plea because the State offered no proof of the damages caused to the victim's truck by defendant's vandalism, the trial court did not specify the time of payment or establish a payment schedule, it failed to determine the amount and method of payment, and it did not consider defendant's financial resources or future ability to pay. State v. Dodson, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 505 (Tenn. Crim. App. Aug. 21, 2019).

9. Restitution Order Proper.

Trial court did not err in ordering defendant to pay restitution after considering his salary and ability to pay. State v. Summers, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 377 (Tenn. Crim. App. May 16, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 539 (Tenn. Sept. 14, 2018).

10. Evidence.

Defendant acknowledged she was provided with the binders that detailed the loss prior to the hearing, and she was able to prepare and contest any proof of loss that the State might offer at the subsequent hearing; the fact that the documentation was not included in the presentence report did not entitle her to relief. State v. Jewell, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 4 (Tenn. Crim. App. Jan. 6, 2017).

40-35-305. Appearance bond.

Upon the imposition of a sentence involving release into the community as provided in this chapter, the trial judge shall possess the power to require the defendant, the judgment against whom has been suspended, to execute an appearance bond in the sum deemed right and proper by the trial judge or, in the alternative, to execute a personal recognizance bond without sureties in the sum the trial judge may fix, both bail bond and recognizance, as the case may be, to contain conditions requiring the appearance of the defendant from court to court or, in the alternative, to appear before the trial judge at any regular or special term of the court.

Acts 1989, ch. 591, § 6.

Sentencing Commission Comments.

This section provides that the judge may require the defendant to execute a bond as a condition of probation. It should be observed that this section is permissive and not mandatory.

Compiler's Notes. The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

40-35-306. Split confinement — Probation following partial service of sentence.

A defendant receiving probation may be required to serve a portion of the sentence in continuous confinement for up to one (1) year in the local jail or workhouse, with probation for a period of time up to and including the statutory maximum time for the class of the conviction offense.
A violation of the terms of probation or of the rules of the institution where the defendant is confined shall authorize the court to revoke the sentence of split confinement and impose a sentence in a local jail or workhouse or, unless prohibited by § 40-35-104(b), in the department of correction. The imposed sentence shall not exceed the remainder of the full sentence.
At any time during the period of continuous confinement ordered pursuant to this section, the defendant may apply to the sentencing court to have the balance of the sentence served on probation supervision. The application may be made at no less than two-month intervals.

Acts 1989, ch. 591, § 6.

Sentencing Commission Comments.

This section permits the judge to direct that the defendant be incarcerated for up to one year in the local jail or workhouse followed by a term of probation supervision. This split confinement or “shock probation” is of value in combining both incarceration and rehabilitation as part of a sentencing program.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Cross-References. Certain prisoners in local jails or workhouses, release on work-related programs, § 41-2-147.

Execution of judgment, title 40, ch. 23.

Probation, § 40-35-303.

Probation, paroles, and pardons, title 40, ch. 28.

Release eligibility, § 40-35-501.

Release privileges, title 41, ch. 21, part 7.

Sentencing provisions applicable to persons committing crimes prior to July 1, 1982, title 40, ch. 20.

Rule Reference. This section is referred to in the Advisory Commission Comments under Rule 35 of the Tennessee Rules of Criminal Procedure.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 32.191, 32.198, 32.122, 32.256.

NOTES TO DECISIONS

1. Incarceration Upheld.

Appellate court's review of a trial court's grant or denial of a defendant's application to suspend the balance of his sentence, made pursuant to T.C.A. § 40-35-306(c), was conducted under an abuse of discretion standard, and in evaluating such applications courts had to consider whether the interests of justice would be served by the early release; the trial court did not abuse its discretion in denying defendant's application to suspend the balance of his sentence of confinement. State v. Ruiz, 204 S.W.3d 772, 2006 Tenn. LEXIS 810 (Tenn. 2006), overruled, State v. Patterson, — S.W.3d —, 2018 Tenn. LEXIS 735 (Tenn. Dec. 10, 2018), overruled in part, State v. Patterson, — S.W.3d —, 2018 Tenn. LEXIS 735 (Tenn. Dec. 10, 2018).

2. Revocation Improper.

Court erred by revoking defendant's probation as there was no proof of additional violations, punishment had already been imposed for previous, adjudicated violations through the additional one-year term in the correctional center, and the court based its order requiring the execution of the original judgment primarily upon the facts and circumstances of the crime. State v. Beard, 189 S.W.3d 730, 2005 Tenn. Crim. App. LEXIS 1110 (Tenn. Crim. App. 2005).

3. Violation of Conditions of Probation.

Where a probation officer discovered child pornography on defendant's computer during an inspection, the officer did not exceed the scope of the officer's authority under the terms of defendant's probation because it was irrelevant that the probation officer sought evidence of a probation violation rather than proof that defendant had engaged in universally proscribed activity. United States v. Herndon, 501 F.3d 683, 2007 FED App. 353P, 2007 U.S. App. LEXIS 20943 (6th Cir. Aug. 31, 2007).

4. Split Sentence.

T.C.A. § 41-2-150 must be read in light of T.C.A. § 40-35-314(g), which requires trial courts to order inmates serving felony split confinement sentences pursuant to T.C.A. § 40-35-306 in the local jail to participate in work programs as part of the sentence. Again, by affording trial courts authority to order split confinement inmates to participate in work programs, this statute implicitly affords trial courts authority to prescribe the conditions of that participation. Read together, the relevant statutes recognize that the trial court's judgment remains paramount in determining when a felony split confinement inmate may participate in a work program and earn work credits. Ray v. Madison Cty., 536 S.W.3d 824, 2017 Tenn. LEXIS 473 (Tenn. Aug. 16, 2017).

Trial court properly dismissed defendant's motion to correct an illegal sentence because defendant failed to state a colorable claim for relief inasmuch as the trial court's error in checking the “TDOC” (The Department of Correction)box on the uniform judgment document constituted a clerical error for which defendant was not entitled to relief, the plea agreement properly ordered the confinement part of the split confinement sentence to be served in the county jail, mentioning “TDOC” was actually surplusage, and defendant's sentence had since expired. State v. Johnson, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 265 (Tenn. Crim. App. Apr. 25, 2019).

6. Miscellaneous.

Trial court could not suspend defendant's sentence and order the balance of the sentence served on probation supervision under this section because she was not sentenced to a period of continuous confinement. State v. Lloyd, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 776 (Tenn. Crim. App. Oct. 17, 2018).

To successfully support an application under this section or a Tenn. R. Crim. P. 35 motion, a defendant must prove that more than expected post-sentencing circumstances or developments have occurred. A trial court must first determine whether an applicant or movant has presented sufficient proof to show that post-sentencing developments or circumstances that were not expected have occurred; then, the trial court must determine the interest of justice, if those unexpected post-sentencing developments or circumstances warrant an alteration of sentence service or a modification of the sentence. State v. Lloyd, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 776 (Tenn. Crim. App. Oct. 17, 2018).

Because the trial court stated no basis for its denial of defendant's motion to suspend the balance of his sentences, the court of criminal appeals reviewed de novo. State v. Montague, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 251 (Tenn. Crim. App. Apr. 22, 2019).

Trial court properly denied defendant's motion to suspend the balance of his sentences because defendant's motion was devoid of a basis for relief under subsection (c); defendant's motion could not rely on subsection (c) because he was not sentenced to split confinement, but instead, the trial court sentenced him to eleven-months and twenty-nine days in confinement and included that he could receive program or work release after serving seventy-five percent of his sentence. State v. Montague, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 251 (Tenn. Crim. App. Apr. 22, 2019).

40-35-307. Probation coupled with periodic confinement.

A defendant receiving probation may be required to serve a specific portion of the sentence in periodic confinement in the local jail or workhouse for up to one (1) year with probation for a period of time up to and including the statutory maximum time for the class of the conviction offense.
If the court sentences a defendant to a term of probation involving periodic confinement, it shall specify:
1. The total number of months or days to be served in periodic confinement, which shall not exceed one (1) year or the maximum term authorized for the offense, whichever is less; and
2. The days or parts of days the defendant is to be confined.
The court may include in the judgment of conviction suitable provisions to the officer to whose custody the defendant is committed as will ensure that the defendant will be allowed to serve the sentence on nonconsecutive days which may include, but are not limited to, weekends, between hours to be specified in the judgment, which provisions or directions may be revoked, suspended or amended from time to time by the sentencing court until the period of probation begins.
The sheriff, warden, superintendent or other official having responsibility for the safekeeping of the defendant in any local jail or workhouse shall adopt procedures for the release of the defendant at the time specified in the order of judgment and for receiving the defendant back into custody at the specified times. Willful failure of the official to comply with the directions of the court constitutes contempt of court, punishable as provided by law for contempt generally.
Failure of the defendant to surrender to the custody of the sheriff, warden, superintendent or other official responsible for the defendant's safekeeping in the local jail or workhouse within the time specified in the order of judgment constitutes grounds for the revocation or modification of probation in the discretion of the court. The defendant may elect to serve the defendant's entire sentence of confinement on consecutive days; provided, that a failure to comply with subsection (c) or (d) shall give the court the authority, upon a finding of a violation, to impose a sentence of continuous confinement in a local jail or workhouse or, unless prohibited by § 40-35-104(b), in the department of correction for the remainder of the full sentence originally imposed.
At any time during the period of periodic confinement, the defendant may apply to have the balance of the periodic confinement sentence served on probation without further confinement. The application may be made at no less than two-month intervals.

Acts 1989, ch. 591, § 6.

Sentencing Commission Comments.

In some instances, the court may desire to impose some period of incarceration followed by a term of probation. This section permits such incarceration on alternative periods of time, such as, for example, every other weekend. If the court chooses to impose continuous confinement rather than on alternate days, or weeks, such is available under § 40-35-306.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Cross-References. Certain prisoners in local jails or workhouses, release on work-related programs, § 41-2-147.

Contempt of court, title 29, ch. 9.

Execution of judgment, title 40, ch. 23.

Probation, pardons and paroles, title 40, ch. 28.

Release privileges, title 41, ch. 21, part 7.

Sentencing provisions applicable to persons committing crimes prior to July 1, 1982, title 40, ch. 20.

Rule Reference. This section is referred to in the Advisory Commission Comments under Rule 35 of the Tennessee Rules of Criminal Procedure.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 32.191, 32.199, 32.256.

NOTES TO DECISIONS

1. Time Limitation.

Sentence of husband for failure to pay child support to six months' incarceration to be served 24 hours at a time one day each month was not authorized; the maximum penalty for failure to pay support is six months' incarceration and any punishment imposed must be completed within a six-month period. Herrera v. Herrera, 944 S.W.2d 379, 1996 Tenn. App. LEXIS 656 (Tenn. Ct. App. 1996).

40-35-308. Modification, removal or release from conditions of probation.

During the term of probation supervision, the sentencing court, on its own motion, or on application of a probation and parole officer, district attorney general or the defendant, may:
1. Modify any condition;
2. Remove a condition; or
3. Release the defendant from further supervision; provided, that release from supervision shall not discharge the defendant from the remainder of the sentence, and the defendant shall remain within the jurisdiction and authority of the sentencing court until the sentence fully expires. During this period, the defendant's probation is subject to revocation.
The court may not make the conditions of supervision more onerous than those originally imposed, except pursuant to a revocation proceeding as provided by law.
Notwithstanding the actual sentence imposed, at the conclusion of a probation revocation hearing, the court shall have the authority to extend the defendant's period of probation supervision for any period not in excess of two (2) years.

Acts 1989, ch. 591, § 6; 1998, ch. 1049, § 43.

Sentencing Commission Comments.

This section gives the court the authority to modify or remove any condition of probation originally imposed. Subdivision (a)(3) permits the court to remove direct supervision conditions from probation but the defendant is still considered on probation until the length of the sentence has expired. Occasionally, the court might wish to impose additional conditions on probation. These may be imposed if a hearing is conducted on the issue. See subsection (b).

Subsection (c) addresses situations where a defendant violates his or her probation near the end of the term and, instead of ordering complete incarceration, a trial court might desire to extend the defendant's period of probation supervision. This subsection permits such an extension for a period up to two years.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Cross-References. Probation, paroles and pardons, title 40, ch. 28.

Release eligibility, § 40-35-501.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 32.252, 32.255.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 3-35-1.

Law Reviews.

Wealth-Based Penal Disenfranchisement, 72 Vand. L. Rev. 55 (January 2019).

Attorney General Opinions. Resentencing of one sentenced to community corrections, OAG 99-111, 1999 Tenn. AG LEXIS 111 (5/13/99).

A general sessions court that revokes a defendant’s probation has authority under T.C.A. § 40-35-308(c) to extend the probationary period for up to two years. OAG 15-79, 2015 Tenn. AG LEXIS 80 (12/15/2015).

NOTES TO DECISIONS

1. Trial Court Options.

At the conclusion of a probation revocation hearing, a trial court can: (1) Order incarceration; (2) Cause execution of the judgment as it was originally entered; or (3) Extend the remaining probationary period for a period not to exceed two years. State v. Hunter, 1 S.W.3d 643, 1999 Tenn. LEXIS 421 (Tenn. 1999).

2. Probation Revocation Hearing.

Defendant's due process rights were violated when conditions of her probation were made more onerous without affording her the protection of a revocation proceeding or assistance of counsel. State v. Merriweather, 34 S.W.3d 881, 2000 Tenn. Crim. App. LEXIS 621 (Tenn. Crim. App. 2000).

3. Modification for Indefinite Period of Time.

Extension of probation by trial court for an “indefinite” period until costs and restitution were paid in full was in clear violation of express provisions contained in T.C.A. § 40-35-308. State v. Merriweather, 34 S.W.3d 881, 2000 Tenn. Crim. App. LEXIS 621 (Tenn. Crim. App. 2000).

4. Revocation Proper.

Trial court properly revoked defendant's probation and ordered him to serve the balance of his sentence in confinement because defendant admitted that he violated his probation by not going to rehabilitation classes, by failing multiple drug screens, and by previously violating parole on multiple occasions. State v. Skaggs, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 604 (Tenn. Crim. App. July 10, 2017).

After revoking defendant's probation, the trial court did not abuse its discretion by ordering defendant to serve his sentence in confinement, regardless of the fact that it chose to hold a hearing to determine defendant's eligibility for community correction. State v. Bandy, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 693 (Tenn. Crim. App. Aug. 8, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 683 (Tenn. Oct. 3, 2017).

Record supported the trial court's finding that defendant violated the conditions of his community corrections supervision. The trial court did not abuse its discretion in revoking defendant's community corrections sentence and ordering him to serve the remainder of his sentence in confinement. State v. Dowlen, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 700 (Tenn. Crim. App. Aug. 8, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 760 (Tenn. Nov. 16, 2017).

Record provided substantial evidence to support the trial court's revocation of probation because defendant violated the terms of his probation; a requirement of defendant's probation was participation and compliance with the a day reporting center (DCR), but by his own admission, defendant failed to attend the meetings, and defendant failed a drug screen and was afforded the opportunity to continue attending the DRC but failed to do so. State v. Vaughn, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 905 (Tenn. Crim. App. Oct. 6, 2017).

Even without alleged improper hearsay, there was more than ample evidence supporting the trial court's revocation of defendant's sentences because defendant failed to pay restitution, to report to probation, to comply with the conditions of his GPS monitoring, and to pay court costs and supervision fees, and defendant illegally used methamphetamine. State v. Finley, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 953 (Tenn. Crim. App. Nov. 13, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 153 (Tenn. Mar. 14, 2018).

Trial court did not abuse its discretion when it revoked defendant's community corrections sentence because defendant failed to bring requested documents and items for prescribed medication to a class, attended the class exhibiting signs of intoxication and was asked to leave due to defendant's behavior, failed to appear when a probation violation warrant was issued, attempted to provide a false sample for a drug screen when apprehended, and tested positive for numerous substances, including opiates, upon proper screening. State v. Teffeteller, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 155 (Tenn. Crim. App. Feb. 28, 2018).

Trial court did not abuse its discretion in finding that defendant violated the terms of his probated sentence and acted well within its authority by revoking probation and ordering defendant to serve the balance of his sentence in confinement because defendant admitted that he was charged with and pleaded guilty to possession of marijuana and drug paraphernalia and that he was intentionally avoiding the system by not reporting to the probation office. State v. Ross, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 164 (Tenn. Crim. App. Mar. 5, 2018).

Trial court did not abuse its discretion by revoking defendant's probation because defendant violated the conditions of her probation as defendant admitted that she walked out of the facility where she was receiving treatment as she was upset with their policies; the program director testified that she spoke with defendant prior to her departure and attempted to assuage defendant's complaints, but to no avail; according to defendant's mother, defendant waited almost two weeks after learning that a warrant had been issued for her arrest before turning herself in to the jail; and defendant was untruthful with the presentence officer when she claimed she had not used drugs or alcohol since 2015. State v. Sims, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 214 (Tenn. Crim. App. Mar. 22, 2018).

Trial court did not abuse its discretion in fully revoking defendant's probation and imposing the original sentence because the testimony presented at the evidentiary hearing supported the finding by a preponderance of the evidence that defendant had violated the terms of his probation by failing to obey state laws and by engaging in assaultive behavior; defendant's wife testified that defendant assaulted and her son, and police officers corroborated her account. State v. Usrey, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 267 (Tenn. Crim. App. Apr. 9, 2018).

Trial court did not abuse its discretion in finding that defendant violated the terms of defendant's probated sentence and by revoking probation and ordering defendant to serve defendant's sentence in confinement because defendant admitted to violating the terms of judicial diversion, defendant admitted that defendant pleaded guilty to additional crimes and failed to report the arrests to the probation officer, and the trial court concluded that defendant failed to accept responsibility for defendant's actions and was not generally sincere. State v. Lambert, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 277 (Tenn. Crim. App. Apr. 13, 2018).

Erroneous admission of hearsay at defendant's community corrections sentence revocation hearing without finding good cause, when the witness's absence was unexplained and the hearsay's reliability was not shown, did not entitle defendant to relief because sufficient evidence supported revocation without the hearsay, as defendant did not meet with a supervising officer, obtained a new conviction, and did not prove defendant attended required counseling. State v. Clay, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 291 (Tenn. Crim. App. Apr. 17, 2018).

Trial court did not abuse its discretion by revoking defendant's probation and ordering defendant to serve defendant's sentence in confinement because the record supported the trial court's finding that defendant violated the conditions of defendant's probation by failing to report to defendant's probation officer, by engaging in criminal conduct while on probation, by failing to report defendant's arrest for criminal trespass to defendant's probation officer, and by failing to make payments toward restitution. State v. Smith, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 342 (Tenn. Crim. App. May 4, 2018).

Trial court did not abuse its discretion in revoking defendant's community corrections sentence and ordering him to serve the remainder of his sentence in prison because defendant admitted violating a condition of his community corrections sentence, and defendant's violation indicated an unwillingness to comply with the terms of alternative sentencing. State v. McMurray, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 383 (Tenn. Crim. App. May 16, 2018).

Trial court properly revoked defendant's probation and ordered him to serve the remainder of his effective eight-year sentence in confinement because the probation violation report and warrants alleged that defendant violated the conditions of his release by testing positive for controlled substances at his first drug screen and by providing diluted samples at two subsequent drug screens. State v. Hood, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 495 (Tenn. Crim. App. July 3, 2018).

Trial court did not abuse its discretion by revoking defendant's probation and ordering him to serve his sentence in confinement because defendant entered an open plea to his probation violations, including failing to prove a home address, failing to complete drug and alcohol treatment, testing positive for illegal drug use, admitted drug use, changing his residence and employment without notifying the probation office, and failing to report. State v. Stewart, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 506 (Tenn. Crim. App. July 9, 2018).

Trial court did not plainly err in revoking defendant's probation, and in ordering her to serve the remainder of her sentence in confinement because, although the trial court erred in revoking her probation based on her failure to report, and the record clearly showed that the allegations relied upon by the trial court were not included in the probation violation report or the warrant, defendant stipulated to a new conviction and conceded that it served as grounds to violate her probation during the hearing. State v. Graham, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 20 (Tenn. Crim. App. Jan. 11, 2019).

Trial court did not abuse its discretion by revoking defendant's probation after finding that he had violated its terms and ordering him to serve his sentence incarcerated, and defendant was not entitled to alternative sentencing or another grant of probation, because he admitted to a violation of probation after being on the run for two years, which was substantial evidence that a probation violation had occurred. State v. Hill, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 34 (Tenn. Crim. App. Jan. 17, 2019).

Trial court did not abuse its discretion in revoking defendant's community corrections sentence and in ordering defendant to serve the remainder of his sentence in incarceration because there was no dispute that defendant violated the conditions of defendant's community corrections as defendant on separate occasions signed acknowledgement forms on which defendant acknowledged illegal drug use. Furthermore, the trial court noted defendant's prior violations of community corrections. State v. Goostree, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 97 (Tenn. Crim. App. Feb. 15, 2019).

Trial court did not abuse its discretion in revoking defendant's probation and in ordering defendant to serve the balance of defendant's sentence incarcerated because the evidence established that, while on probation, defendant was observed exiting a stolen car, and, upon exiting the car, was searched and found to possess bullets, which matched the caliber of the gun later found in the glove box of the stolen car. While this evidence was circumstantial, it was sufficient to show that defendant was in possession of the gun. State v. Herring, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 221 (Tenn. Crim. App. Apr. 9, 2019).

Trial court acted within its discretion in revoking defendant's probation, after finding that defendant had violated its terms, and in ordering defendant to serve the balance of defendant's sentence incarcerated because defendant's own admission of probation violations by defendant's failed drug tests, failure to report to her probation officer, failure to visit a forensic social worker, failure pay court costs and fines was sufficient to establish the requisite substantial evidence. State v. Jenkins, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 246 (Tenn. Crim. App. Apr. 17, 2019).

Trial court did not err in revoking defendant's probation for his conviction for attempt to commit second degree murder and ordering him to serve the remainder of his 10-year sentence in confinement because defendant admitted he violated the conditions of his release by engaging in criminal conduct, which resulted in two convictions during his 10-year sentence; and, once defendant's probation was revoked, the trial court had the authority to order defendant to serve the remainder of his sentence in confinement. State v. Pryor, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 82 (Tenn. Crim. App. Feb. 11, 2020).

Trial court did not abuse its discretion in revoking defendant's probation and in ordering defendant to serve defendant's sentence because defendant violated the terms of probation by testing positive for cocaine, failing to report to his probation officer, and failing to communicate with and participate in a required project. The trial court noted that defendant had been given a previous reprieve following a probation violation and had no confidence that defendant would comply with the terms of probation if given a further reprieve. State v. Smith, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 181 (Tenn. Crim. App. Mar. 12, 2020).

Trial court properly revoked defendant's probation and reinstated the remainder of his sentence in confinement because defendant conceded that he violated the terms of his probation—pleading guilty to multiple crimes and failing to pay the required restitution—and defendant failed to provide supplemental medical records or affidavits regarding his alleged cancer. State v. Ginther, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 359 (Tenn. Crim. App. May 21, 2020).

Trial court properly revoked defendant's supervised probation and ordered her to serve the remainder of her sentence incarcerated because she conceded to violating her probation terms, and an accused, already on probation, was not entitled to a second grant of probation or another form of alternative sentencing. State v. Eads, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 407 (Tenn. Crim. App. June 15, 2020).

There was substantial evidence to support the trial court's finding that defendant violated the conditions of his probation and thus the trial court did not abuse its discretion by revoking his probation and ordering him to serve his sentence; an officer testified that defendant was arrested for possession of a Schedule II substance for resale, and the rules of his probation prohibited him from using drugs and/or getting arrested, plus the trial court noted a prior violation that had formed the basis of the partial revocation a few months prior. State v. Young, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 467 (Tenn. Crim. App. July 7, 2020).

5. Revocation Improper.

Trial court erred in revoking defendant's probation on the ground that defendant failed to complete the “Jericho Project Program,” which was required in his conditions of probation, because failure to complete the program was not alleged as a ground to revoke probation. State v. Washington, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 817 (Tenn. Crim. App. Sept. 5, 2017).

Trial court erred in revoking defendant's probation because it improperly allowed statements by the victim to an officer, which were hearsay; the trial court failed to make any finding of good cause to justify the denial of defendant's confrontation rights, and the State offered no explanation as to why the alleged victim was not present as a witness. State v. Washington, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 817 (Tenn. Crim. App. Sept. 5, 2017).

Trial court did not abuse its discretion in revoking defendant's probation and sentencing him to confinement because he stipulated that he had violated the conditions of his probation; and, although the trial court considered renewing defendant's probation, in its discretion, it opted to order him to serve the sentence in confinement. State v. Mason, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 514 (Tenn. Crim. App. Aug. 23, 2019).

6. Reinstatement of Sentence.

Trial court did not err in revoking defendant's probation and in ordering defendant to serve his four-year sentence in confinement, instead of ordering split confinement, because, based upon defendant's testimony, defendant violated the conditions of his probation by possessing marijuana and by admitting during his testimony that he had not been employed since beginning his probation; and, once the trial court revoked defendant's probation, it had the authority to order defendant to serve his sentence in confinement. State v. Johnson, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 187 (Tenn. Crim. App. Mar. 13, 2017).

Trial court did not abuse its discretion in revoking defendant's probation and ordering that he serve his effective four-year sentence in confinement because once the trial court revoked defendant's probation, it had the authority to order defendant to serve his sentence in confinement. State v. Phelps, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 435 (Tenn. Crim. App. May 24, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 695 (Tenn. Oct. 3, 2017).

Once the court revoked defendant's probation, it had the authority to order defendant to serve the remainder of defendant's sentence in confinement. State v. Summers, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 698 (Tenn. Crim. App. Aug. 8, 2017).

Trial court did not abuse its discretion in revoking defendant's probation and ordering that defendant serve defendant's sentence in confinement because, although successful completion of a faith-based rehabilitation program was a condition of defendant's probation, the testimony at the probation violation hearing showed that defendant repeatedly violated the program's policies and rules, even after being allowed to restart the program, which ultimately resulted in defendant's termination from the program. State v. Gossage, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 875 (Tenn. Crim. App. Sept. 26, 2017).

Trial court properly revoked defendant's probation and ordered incarceration for the remainder of his 10-year sentence because defendant did not dispute that he was in violation of the terms of his sentence by testing positive for cocaine, the trial court's concluded that defendant needed more structured mental health treatment, that he was unable to provide for himself during probation, that less-restrictive means had recently been applied unsuccessfully, and that defendant had violated the terms of his probation only six months into his sentence. State v. Moore, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 220 (Tenn. Crim. App. Mar. 23, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 326 (Tenn. June 6, 2018).

Trial court did not abuse its discretion by revoking defendant's probation and ordering defendant to serve the remainder of defendant's effective sentence in confinement because the court found that defendant violated the conditions of defendant's probation by consuming morphine and oxycodone without a valid prescriptions. Once the court revoked defendant's probation, it had the authority to order defendant to serve the remainder of defendant's effective sentence in confinement. State v. Haynes, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 341 (Tenn. Crim. App. May 4, 2018).

Trial court did not err in revoking defendant's probation because the record supports its finding that defendant violated the conditions of his probation since defendant conceded that he failed to report to probation within the time required by the conditions of his release; once the trial court revoked defendant's probation, it had the authority to order defendant to serve his sentence in confinement. State v. Howe, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 478 (Tenn. Crim. App. June 28, 2018).

Trial court properly revoked defendant's probation and ordered him to serve the remainder of his four-year sentence in confinement because the record supported the trial court's finding that defendant violated the conditions of his probation where he admitted on direct examination that he knew he was required to speak with his probation officer about a potential change of address before moving, that he did not contact and obtain approval from his probation officer as required, that he stayed at a hotel several days after he was told to leave, which resulted in his arrest for violating the sexual offender registry, and that he lied to his probation officer about his release date from police custody after his arrest. State v. Hutchins, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 574 (Tenn. Crim. App. Aug. 1, 2018).

Trial court did not err in revoking defendant's probationary sentence and in ordering incarceration for the remainder of his 12-year sentence because defendant violated the terms of his probation when he failed to notify his probation officer of his relocation of residence, and he committed new offenses; the trial court was not required to reevaluate defendant's original sentencing and could, within its discretion, decide to commence the execution of defendant's judgment as originally entered; and it was apparent that defendant did not comply with his original community corrections sentence, and his criminal record was not suggestive of compliance in the future. State v. Murphy, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 641 (Tenn. Crim. App. Aug. 21, 2018).

Criminal court properly revoked defendant's community corrections sentence and ordered him to serve the balance of his sentence in the Department of Correction because, regardless of the fact that he presented no evidence of a medicinal use for marijuana and knew that substance use violated the rules of his community corrections sentence, he also violated his sentence by lying to his probation officer and failing to attend mandatory meetings. State v. Pulliam, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 245 (Tenn. Crim. App. Apr. 17, 2019).

Trial court did not err in revoking defendant's probation and in ordering him to serve the balance of his sentences in two cases in confinement because he violated the terms of his probation by testing positive for methamphetamine; although defendant complained that the trial court should have been lenient because it was the first time he had violated probation in case number 304632, the trial court reinstated defendant to probation four times in a period of nine months in case number 297896, only to have defendant violate his probation a fifth time; and there was substantial evidence in the record to show that defendant violated his probation yet again and repeatedly failed at community based alternatives to incarceration. State v. Skyles, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 271 (Tenn. Crim. App. Apr. 29, 2019).

Trial court properly revoked defendant's probation and ordered him to serve the remainder of his effective 10-year sentence in confinement because the appellate record did not contain evidence related to his ineffective assistance claims, defendant admitted at the revocation hearing that he violated the conditions of his release, and the court had the authority to order him to serve the remainder of his sentence in confinement. State v. McAdoo, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 363 (Tenn. Crim. App. June 25, 2019).

Defendant's probation was properly revoked and the trial court did not err in ordering her to serve her sentence in confinement because the first officer testified that defendant used abusive, threatening, or intimidating behavior and that defendant left without receiving permission from the second officer; and defendant admitted that she did not receive permission from the second officer to leave before the drug screening was complete. State v. Silcox, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 509 (Tenn. Crim. App. Aug. 22, 2019).

Evidence supported the trial court's finding that defendant violated the conditions of his probation, and therefore the trial court did not abuse its discretion by revoking his probation, because defendant testified that he failed to report to his probation officer and conceded that his failure to report violated the conditions of his release. Because the trial court revoked defendant's probation, it had the authority to order defendant to serve the remainder of his sentence in confinement. State v. Dadfar, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 566 (Tenn. Crim. App. Sept. 11, 2019).

Trial court did not abuse its discretion when it ordered defendant to serve one year before returning to supervised probation for the remainder of defendant's sentence because the court found that defendant had violated defendant's probation. Defendant failed to report for a probation appointment, moved without providing the new address to a probation officer, failed to seek or obtain employment, failed to pay court-ordered payments, failed to take an alcohol and drug assessment, and had multiple prior violations of probation sentences. State v. Paul, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 653 (Tenn. Crim. App. Oct. 15, 2019).

Trial court did not abuse its discretion when it revoked defendant's probation and when it ordered him to serve his sentence in confinement because defendant admitted to the probation violations; the current violation was defendant's fourth probation violation for this sentence; and defendant had previously been confined for his last violation and, while on house arrest, he tested positive for drugs. State v. Elrod, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 172 (Tenn. Crim. App. Mar. 6, 2020).

Once the court properly revoked defendant's probation, it had the authority to order defendant to serve the remainder of his sentence in confinement. State v. Jerger, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 323 (Tenn. Crim. App. May 7, 2020).

Trial court did not abuse its discretion in revoking defendant's probation and in ordering defendant to serve the balance of the sentence in confinement as defendant admitted to violating the terms of probation and, following release after defendant's first violation, defendant did not attend a drug treatment program, was transient, missed appointments with a social worker and the probation officer, and failed to appear for admission into a residential treatment program. Defendant also tested positive for methamphetamine and marijuana. State v. Brennan, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 395 (Tenn. Crim. App. June 9, 2020).

Trial court did not abuse its discretion in revoking defendant's community corrections sentence and ordering him to serve the remainder of his sentence in confinement because the trial court considered that defendant had a prior reprieve following a violation of the terms of community corrections, that he had absconded from the program within months of being returned to community corrections, that he returned to an itinerant lifestyle, and that he had continued to commit criminal offenses; defendant had a long history of criminal convictions which predated the present offense; and, although defendant had made recent progress in obtaining housing and disability benefits, the court saw little prospect of his long-term success. State v. Orr, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 479 (Tenn. Crim. App. July 14, 2020).

40-35-309. Probation authorized outside jurisdiction of court — Transfer or retention of jurisdiction.

Whenever a court authorizes a defendant sentenced to supervised probation to reside in this state but outside the jurisdiction of the sentencing court, the court may:

Retain jurisdiction over the defendant; or
Transfer jurisdiction over the defendant to an appropriate court in the jurisdiction in which the defendant will reside. A court to which jurisdiction is transferred shall have the same powers as the sentencing court.

Acts 1989, ch. 591, § 6.

Sentencing Commission Comments.

This section addresses those instances where a defendant is to be on probation supervision in Tennessee but outside the jurisdiction of the sentencing court.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 22.60.

40-35-310. Revocation of suspension of sentence — Resentence to community-based alternative to incarceration.

The trial judge shall possess the power, at any time within the maximum time that was directed and ordered by the court for the suspension, after proceeding as provided in § 40-35-311, to revoke and annul the suspension; and in such cases the trial judge may order the original judgment so rendered to be in full force and effect from the date of the revocation of the suspension, and that it be executed accordingly; provided, that in any case of revocation of suspension on account of conduct by the defendant that has resulted in a judgment of conviction against the defendant during the defendant's period of probation, the trial judge may order that the term of imprisonment imposed by the original judgment be served consecutively to any sentence that was imposed upon the conviction.
In addition to the power to restore the original judgment when suspension of sentence is revoked, the trial judge may also resentence the defendant for the remainder of the unexpired term to any community-based alternative to incarceration authorized by chapter 36 of this title; provided, that the violation of the defendant's suspension of sentence is a technical one and does not involve the commission of a new offense.

Acts 1989, ch. 591, § 6; 2009, ch. 203, § 2.

Sentencing Commission Comments.

This section grants the court the authority to revoke probation if the defendant violates the terms of probation. Revocation may occur at any time during the period of probation. Upon revocation, the original sentence imposed can be placed into effect. The trial judge retains the authority to direct that the original sentence be served consecutively or concurrently to any sentence which was imposed for a conviction while placed on probation supervision.

Compiler's Notes. The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Cross-References. Probation, paroles and pardons, title 40, ch. 28.

Release eligibility, § 40-35-501.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 32.174, 32.253, 32.255.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 3-11-9.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 43.

Attorney General Opinions. Resentencing of one sentenced to community corrections, OAG 99-111, 1999 Tenn. AG LEXIS 111 (5/13/99).

NOTES TO DECISIONS

1. Constitutionality of Proceeding.

2. Trial Court Options.

3. Reinstatement of Sentence.

Upon revocation of probation, the trial court has the discretionary authority to reinstate the original sentence. State v. Duke, 902 S.W.2d 424, 1995 Tenn. Crim. App. LEXIS 223 (Tenn. Crim. App. 1995).

The time a defendant spends on probation is not counted toward the completion of his or her sentence unless the defendant successfully completes the entire term of probation, and if the defendant violates the terms of the probation within the maximum time ordered by the court, the court can revoke the probation and reinstate the entire original sentence. State v. Taylor, 992 S.W.2d 941, 1999 Tenn. LEXIS 295 (Tenn. 1999).

Even though the court's revocation of probation was proper, the court had no authority to increase the defendant's original sentence. When a probation violation has occurred, the court can only cause execution of the original judgment as it was entered. State v. Taylor, 992 S.W.2d 941, 1999 Tenn. LEXIS 295 (Tenn. 1999).

Trial court properly revoked defendant's probation and imposed the remaining 16 years of his original sentence because the testimony presented at the probation revocation hearing provided the trial court with substantial evidence to determine that defendant violated three rules of his probation--he was arrested for possession of cocaine for resale, failed to notify his probation officer of his change of residence, and failed to contact his probation officer--defendant acknowledged that he violated his probation, and ordering defendant to serve his sentence was one of the options available to the trial court. State v. Wilson, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 610 (Tenn. Crim. App. July 11, 2017).

Trial court properly revoked defendant's probation and ordered him to serve the remainder of his sentence in confinement because defendant admitted that he violated probation and measures less restrictive than confinement had been applied unsuccessfully on at least two prior occasions. State v. Reynolds, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 630 (Tenn. Crim. App. July 19, 2017).

Trial court did not err in ordering total incarceration after defendant's second violation of his six-year probationary sentence because defendant's drug issues would best be treated in a correctional facility rather than in the community; it was within the trial court's authority to order defendant to serve the remainder of his sentence in confinement upon revoking his probation with credit for time served. State v. Taylor, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 639 (Tenn. Crim. App. July 20, 2017).

Circuit court properly ordered defendant to serve his sentence in confinement for violating the terms of his probation because defendant admitted that he was charged with possession of cocaine for resale, which was the same offense for which he was on probation. State v. Hooper, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1025 (Tenn. Crim. App. Dec. 13, 2017).

Trial court did not abuse its discretion in ordering defendant to serve his original sentence in confinement following the revocation of his probation, as defendant failed to comply with the Jericho Program. State v. Prather, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 236 (Tenn. Crim. App. Mar. 29, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 423 (Tenn. July 18, 2018).

Circuit court properly revoked defendant's probation and ordered him to serve the balance of his original sentence incarcerated because there was substantial evidence in the record that defendant had violated his probation by failing to report to his probation supervisors, by being convicted of a new crime, and by engaging in additional criminal conduct, defendant had numerous opportunities to continue the probation program, but instead continuously failed to adhere to the conditions of his probation, and the public would be protected from any future offenses committed by defendant. State v. Johnson, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 707 (Tenn. Crim. App. Sept. 19, 2018).

Trial court did not abuse its discretion by ordering that defendant serve the balance of his sentence in confinement after revoking his probation because he admitted that he violated his probation, it was his third probation violation, and at the time of the revocation hearing he was still serving a three-year sentence that he had received eight years previously because he could not abide by the terms of alternative sentencing. State v. Harris, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 262 (Tenn. Crim. App. Apr. 24, 2019).

4. Incarceration After Revocation.

After the trial court found that defendant violated the terms of probation, it retained discretionary authority, pursuant to T.C.A. § 40-35-310(b), to order defendant to serve her sentence in incarceration, particularly given that the drug court director could think of no alternative treatment that defendant was likely to comply with. State v. Bright, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 304 (Tenn. Crim. App. Apr. 20, 2017).

Trial court did not err by revoking defendant's probation and ordering defendant to serve the remainder of defendant's original sentence in confinement because defendant did not dispute that defendant had violated defendant's community corrections and probation in the past and defendant admitted to continuing to commit crimes by driving on a revoked license and using marijuana and to having failed on numerous occasions to report as scheduled to defendant's probation officer. State v. Ogg, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 577 (Tenn. Crim. App. June 29, 2017).

Trial court properly revoked defendant's probation and ordered him to serve his six-year sentence in confinement because, inter alia, he pleaded guilty while on probation to possession of a controlled substance and solicitation to make false reports, failed to report as instructed to his probation officer, tested positive for cocaine, violated his curfew 34 times, failed to complete any job assistance program, and removed his GPS monitoring device without permission. State v. Gillespie, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1005 (Tenn. Crim. App. Dec. 5, 2017).

It was not an abuse of discretion to impose a prison sentence, rather than allowing defendant to continue with drug treatment, because (1) defendant had numerous prior parole violations for drug-related offenses, and, (2) with the possible exception of drug court, defendant failed to complete the requirements of lesser sanctions, so it was not unreasonable to doubt defendant would succeed under lesser sanctions, since defendant previously had access to treatment but willfully failed to take advantage of it. State v. Clark, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1046 (Tenn. Crim. App. Dec. 21, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 294 (Tenn. May 17, 2018).

Circuit court properly required defendant to serve his sentence in confinement after the revocation of his probation because the trial court noted its concern about defendant endangering the public and himself by drinking and driving, especially since he was not supposed to be driving at all. State v. Goodman, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 140 (Tenn. Crim. App. Feb. 23, 2018).

After the trial court found that defendant had violated the terms of her probation, it retained discretionary authority to order defendant to serve her sentence in incarceration, and doing so was not improper in this case. State v. Juvinall, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 460 (Tenn. Crim. App. June 22, 2018).

Defendant acknowledged that he violated his probation, and thus the trial court did not abuse its discretion by revoking his probation; furthermore, the trial court properly ordered that defendant serve his effective four-year sentence in confinement. State v. Rucker, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 679 (Tenn. Crim. App. Sept. 5, 2018).

It was not an abuse of discretion to sentence defendant to the rest of defendant's sentence on revocation of probation, instead of an alternative sentence, because (1) the court considered defendant's criminal record, continued probation violations, and prior opportunities to comply with probation, (2) defendant admitted the violations, and (3) the court permissibly found defendant was not a good alternative sentencing candidate. State v. Harris, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 717 (Tenn. Crim. App. Sept. 21, 2018).

It was not an abuse of discretion to order defendant to serve the balance of defendant's misdemeanor sentences in confinement, upon a revocation of defendant's probation, because the trial court had such statutory discretion when defendant admitted violating probation. State v. Ford, — S.W.3d —, 2018 Tenn. App. LEXIS 737 (Tenn. Ct. App. Dec. 17, 2018).

Trial court properly revoked defendant's sentence of probation and ordered him to serve the balance of his sentence in confinement because the victim testified that defendant followed her out of the bar and across the street to a parking lot, “slammed her in the back of the head,” and choked her until she nearly lost consciousness, defendant had previously violated probation, and, although evidence of defendant's additional violations was presented at the revocation hearing, it did not form the basis of the trial court's determination that he violated his probation. State v. Fleming, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 917 (Tenn. Crim. App. Dec. 26, 2018).

Trial court properly revoked defendant's probation and ordered him to serve the balance of his sentence in confinement because defendant admitted to violating the terms of his probation, he had long history of probation violations, and the trial judge had discretionary authority to order defendant to serve the original sentence. State v. Jordan, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 115 (Tenn. Crim. App. Feb. 22, 2019).

Trial court properly revoked defendant's probation and ordered him to serve the balance of his sentence in confinement because the parties stipulated that defendant violated the terms of his probation, and defendant acknowledged that he had previously been unsuccessful on probation. State v. Gentry, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 172 (Tenn. Crim. App. Mar. 15, 2019).

Trial court did not abuse its discretion in revoking defendant's probation and in the imposition of defendant's sentence because defendant violated the terms of defendant's probation as defendant was dishonest about defendant's employment, which led to defendant's expulsion from drug court. State v. Crafton, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 219 (Tenn. Crim. App. Apr. 9, 2019).

After revoking defendant's probation, the trial court did not abuse its discretion when it ordered him to serve the balance of his sentence in confinement because he used marijuana and cocaine shortly after being released from confinement and placed on supervised probation; he thereafter failed to report for approximately 22 months until officers arrested him pursuant to an outstanding arrest warrant; and he knew of the outstanding warrant, but he chose not to contact his probation office. State v. Crayton, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 347 (Tenn. Crim. App. June 10, 2019).

Trial court did not abuse its discretion in ordering confinement for defendant's sentence upon revocation of his probation because there was evidence to support this decision and it was within the trial court's authority; defendant had multiple instances of probation violations, and while defendant was entitled to have the trial court consider enhanced probation in light of defendant's history of issues with substance abuse and PTSD, the trial court was within its discretion to determine the appropriate disposition. State v. Johnson, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 738 (Tenn. Crim. App. Nov. 15, 2019).

Although the probation violation in this case was defendant's first violation, defendant had a history of violating probation. Accordingly, the trial court did not err by ordering defendant to serve the balance of his sentence in confinement State v. Kilgore, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 792 (Tenn. Crim. App. Dec. 20, 2019).

Sufficient evidence supported the trial court's decision to revoke probation and order defendant to serve the original sentence in confinement; he violated the terms of his probation three times and the trial court was under no obligation to comply with his request for another chance on probation. State v. Nattress, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 794 (Tenn. Crim. App. Dec. 20, 2019).

Trial court did not abuse its discretion in finding that defendant violated the conditions of defendant's community corrections sentence and in ordering defendant to serve the remainder of defendant's sentence in confinement because defendant failed to report to defendant's case officer as ordered, failed to pay fines and costs, and failed two separate drug screenings. State v. Phillips, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 67 (Tenn. Crim. App. Feb. 5, 2020).

Defendant's claim that the trial court erred by ordering that he serve the balance of his sentence in confinement, following the determination that he violated probation, lacked merit because incarceration was an available option after the finding that defendant violated probation. State v. Ballard, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 90 (Tenn. Crim. App. Feb. 13, 2020).

Trial court acted well within its discretion in revoking defendant's probation and in ordering him to serve the balance of his sentence in the Tennessee Department of Correction after defendant admitted to violating the terms of probation, was given an opportunity to complete a rehabilitation program, was dismissed from two rehabilitation centers for failure to comply with the centers' rules. State v. Smith, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 96 (Tenn. Crim. App. Feb. 18, 2020).

5. Consecutive Sentences.

6. Acts Committed Prior to Commencement of Term.

A court may revoke a term of probation based on acts committed after the imposition of a sentence but before the commencement of a probationary term. State v. Conner, 919 S.W.2d 48, 1995 Tenn. Crim. App. LEXIS 501 (Tenn. Crim. App. 1995).

7. Revocation Warrant After Original Term Would Have Expired.

The filing of a probation violation warrant prior to the expiration of the original term of probation stays the expiration of the original term such that the defendant remains subject to all of the terms and conditions of probation and the court may revoke the defendant's probation for a violation occurring after the original term would have expired. State v. Clark, 970 S.W.2d 516, 1998 Tenn. Crim. App. LEXIS 222 (Tenn. Crim. App. 1998).

The trial court's authority to revoke a sentence was fully available after defendant's original probationary period would have expired had a revocation warrant not issued, effectively interrupting the probationary period and extending the trial court's authority over the defendant. State v. Shaffer, 45 S.W.3d 553, 2001 Tenn. LEXIS 234 (Tenn. 2001).

Since defendant already served a six-year sentence for aggravated assault before the final probation revocation warrant was issued, the trial court only had authority to revoke probation for the remaining two-year sentence for the weapons conviction when the defendant was originally ordered to serve the sentences consecutively. State v. Anthony, 109 S.W.3d 377, 2001 Tenn. Crim. App. LEXIS 510 (Tenn. Crim. App. 2001).

Defendant's probation in two cases had already expired by the time of the probation violation warrants at issue in the current case; because when a defendant successfully completed a probationary sentence, the trial court was without authority to revoke probation and order service of the original sentence, the trial court's revocation orders related to the two cases were reversed. State v. Myatt, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 34 (Tenn. Crim. App. Jan. 24, 2020).

8. Revocation Proper.

Trial court properly revoked defendant's probation and suspension of sentence for conviction of assault and battery when defendant, without permission, married victim during term of defendant's probation, and where terms of his probation expressly prohibited him from having any contact with the victim and required him to obtain written permission from his probation officer before establishing a date for marriage. State v. Mitchell, 810 S.W.2d 733, 1991 Tenn. Crim. App. LEXIS 41 (Tenn. Crim. App. 1991).

Trial court acted within its discretion in revoking defendant's probation because the proof adduced at the revocation hearing showed that defendant violated the terms of his probation by failing to report within 48 hours of his release from incarceration to update the sexual offender registry and to receive his GPS monitoring device. State v. Baldwin, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 2 (Tenn. Crim. App. Jan. 5, 2017).

Undisputed proof at trial was that defendant's probation officer ordered defendant to report on the afternoon of January 27, 2015, and that defendant did not report on that day. It was within the trial court's authority to order defendant to serve his original sentence upon revoking his probation. State v. Presley, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 126 (Tenn. Crim. App. Feb. 24, 2017).

Trial court properly revoked defendant's probation and imposed his original sentence of eight years in confinement because the record contained sufficient evidence that defendant violated the terms of his probation; he was involved in additional criminal activity and charged with possession of marijuana and firearms, engaged in intimidating behavior, and failed to comply with a referral to a resource center program; and defendant offered no proof to dispute the State's evidence. State v. Somerville, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 140 (Tenn. Crim. App. Feb. 28, 2017).

Trial court did not abuse its discretion in revoking defendant's community corrections sentence and ordering him to serve the remainder of his sentence in confinement where it found that he had paid other debts in lieu of paying restitution and used his income to purchase drugs, and any error as to the sufficiency of the evidence of wilfulness was harmless given that revocation was supported by defendant's failure to pass a drug screen, attend required therapy, and enter a halfway house. State v. Weaver, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 381 (Tenn. Crim. App. May 15, 2017).

Trial court was within its discretion to determine that defendant violated the conditions of his probation by a preponderance of the evidence, which showed that defendant had a baggie of narcotics in his lap when the officer stopped a vehicle he was riding in, and it was within the trial court's authority to order defendant to serve the balance of his previously imposed nine-year sentence in confinement upon revoking his probation. State v. Little, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 811 (Tenn. Crim. App. Sept. 6, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 35 (Tenn. Jan. 18, 2018).

Trial court did not err in revoking defendant's probation sentence and in ordering that he serve his sentence in confinement as substantial evidence supported the trial court's revocation of probation because defendant's counsel informed the trial court that defendant agreed that he had violated the terms of his probation; defendant violated the probation condition that he would obey all laws and ordinances and that he would report all new arrests to his probation officer as he failed to report his arrest and conviction for attempted burglary; and the failure to report his arrest and conviction for attempted burglary was not his first probation violation. State v. Dobbs, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 989 (Tenn. Crim. App. Nov. 30, 2017).

Trial court properly revoked defendant's probation and ordered him to serve his sentence, rather than ordering him to participate in a drug treatment program because defendant acknowledged his failure to report to his probation officer, as well as the facts surrounding his recent convictions, and, although he professed a motivation to participate in drug treatment and to be a responsible parent to his children, his criminal behavior spanned a period of years, and he had been afforded two prior opportunities to serve the present sentence on probation. State v. Woods, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 90 (Tenn. Crim. App. Feb. 9, 2018).

Trial court did not err in revoking defendant's probation, because defendant admitted that he violated the terms of his probation by using methamphetamine and failing to appear and not submitted to and alcohol and drug assessment, and, upon that admission, the trial court acted within its authority when it ordered incarceration for the remainder of defendant's sentence. State v. Ibarra, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 96 (Tenn. Crim. App. Feb. 12, 2018).

Trial court did not abuse its discretion by revoking defendant's probation and ordering that defendant serve the balance of sentence in confinement because defendant violated the probationary sentence by absconding from a halfway house. Although defendant argued that the deaths of defendant's grandchild and child in close succession led defendant to leave the halfway house without permission and drove defendant to use drugs and alcohol, a finding of willfulness was not required as to the failure to adhere to the terms of probation. State v. Mullins, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 123 (Tenn. Crim. App. Feb. 20, 2018).

Revocation of defendant's probationary sentence was justified because defendant's probation supervisor testified that defendant violated the terms of defendant's probation by failing to attend scheduled meetings with defendant's probation supervisor. Moreover, the trial court determined that the State of Tennessee sufficiently established that defendant had pleaded guilty to joyriding, driving on a revoked license, possession without a prescription, and driving an unlicensed and unregistered vehicle. State v. Kirkland, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 226 (Tenn. Crim. App. Mar. 26, 2018).

Substantial evidence supported the revocation of defendant's probation and the order to serve defendant's original term of sentence in confinement because defendant admitted to violating the terms of probation, by twice failing to report to the probation officer. Moreover, the probation officer testified that, when conducting a home visit, the officer learned that defendant no longer lived at defendant's reported address. State v. Taylor, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 276 (Tenn. Crim. App. Apr. 12, 2018).

Trial court did not abuse its discretion by revoking defendant's probation after finding defendant violated the terms of probation, as defendant had ample opportunity to cross-examine all three witnesses called by the State and did, and none of the witnesses offered any hearsay testimony and defendant made no hearsay objections during the hearing. State v. Wolford, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 347 (Tenn. Crim. App. May 8, 2018).

Trial court did not abuse its discretion by revoking defendant's probation because it found that he had failed to observe his curfew, failed to reside at his approved address, and failed to pay court fees. Defendant's probation supervisor stated that defendant was not at either his approved address or another address after curfew, he told defendant at least twice to move back to his approved address but he failed to do so, and defendant was employed but failed to pay court fees. State v. Fason, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 349 (Tenn. Crim. App. May 4, 2018).

Trial court failed to place on the record the precise basis for revoking defendant's community corrections placement. Given, however, that defendant admitted that he violated the terms of his community corrections placement by using cocaine, the record fully supported the trial court's decision to revoke the community corrections placement. State v. Wade, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 587 (Tenn. Crim. App. Aug. 6, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 718 (Tenn. Nov. 14, 2018).

Trial court properly revoked defendant's probation after finding he violated probation by committing a domestic assault and by being intoxicated and, contrary to defendant's claim the trial court did not rely on a witness's hearsay statements to support the revocation. State v. Gibson, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 653 (Tenn. Crim. App. Aug. 24, 2018).

Trial court did not err by revoking defendant's probation in two cases based on his new convictions because the evidence supported the trial court's finding that the judge was unaware of the drug buys when she ordered split confinement in the two cases. State v. Robertson, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 688 (Tenn. Crim. App. Sept. 12, 2018).

Trial court did not abuse its discretion by revoking defendant's probation for his conviction for conspiracy to commit aggravated robbery because defendant admitted that he violated his probation by testing positive for marijuana and failing to report to his probation supervisor for five months. State v. Davis, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 846 (Tenn. Crim. App. Nov. 14, 2018).

Trial court did not abuse its discretion by revoking defendant's probation and ordering her to serve the balance of her sentence in confinement because defendant admitted to the facts presented and to the probation violation. After refusing the trial court's instruction to attend long-term rehabilitation, defendant relapsed and violated her probation. State v. Doles, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 851 (Tenn. Crim. App. Nov. 16, 2018).

Trial court did not err in revoking defendant's probationary sentence and in ordering him to serve the remainder of his sentence in confinement because the trial court found that defendant failed to report as he was supposed to for a period of 10 months, moved without informing his probation officer of his whereabouts, and was arrested on new charges; defendant did not dispute that he violated his probation; and the appellate court had repeatedly cautioned that an accused, already on probation, was not entitled to a second grant of probation or another form of alternative sentencing. State v. Gourley, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 873 (Tenn. Crim. App. Nov. 30, 2018).

Trial court did not abuse its discretion in revoking defendant's probation after defendant admitted that he moved to another county without the permission of his probation supervisor and admitted that he did not report as scheduled on at least three occasions, and the trial court did not abuse its discretion in choosing incarceration after defendant violated his probation. State v. Henry, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 65 (Tenn. Crim. App. Feb. 1, 2019).

Trial court did not abuse its discretion by revoking defendant's probation and imposing the 180-day period of incarceration because defendant's stipulation that on February 1, 2017 she failed to report visually but talked to her probation officer and rescheduled for February 5, but she failed to report on that date or any other date since then provided an adequate basis for the revocation. State v. Brinkman, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 94 (Tenn. Crim. App. Feb. 14, 2019).

Trial court did not abuse its discretion by revoking defendant's probation and imposing a sentence of confinement because the terms of his probation specifically required him to obey all laws and to not possess any illegal drugs, defendant did not dispute his two arrests, officers found cocaine in defendant's car, and sufficient evidence showed that he had provided a correctional officer with drugs to smuggle into the correctional facility. State v. Edwards, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 312 (Tenn. Crim. App. May 15, 2019).

Trial court did not err in revoking defendant's probation because defendant agreed that he had violated the terms of his probation by both using cocaine and marijuana and by absconding from supervision. State v. Crayton, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 347 (Tenn. Crim. App. June 10, 2019).

Trial court did not abuse its discretion in revoking a probationer's probation and in ordering the probationer to serve the probationer's original sentence in confinement because the trial court was presented with sufficient evidence to find that the probationer was in violation of the terms of the probationer's probation by committing the theft of a vehicle. Furthermore, the probationer's willingness to commit a crime so soon after being released on probation revealed that the probationer was a poor candidate for rehabilitation. State v. Cook, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 433 (Tenn. Crim. App. July 16, 2019).

Shooting victim's testimony that defendant shot her causing her paralysis and evidence defendant continued to violate the terms of his probation despite prior attempts to bring defendant into compliance through periods of incarceration was sufficient to support the determination that defendant violated the terms of his probation and the imposition of the 16-year sentence. State v. Lindsey, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 495 (Tenn. Crim. App. Aug. 16, 2019).

Circuit court properly revoked defendant's probation and ordered him to serve his original five-year sentence in confinement because the record contained sufficient evidence to sustain the trial court's revocation order inasmuch as the terms of probation required, in part, that defendant to report to his probation officer and to follow all instructions given by his probation officer, and defendant stipulated to the fact that he failed to report to his probation officer upon his release from jail and failed to appear at his initial intake meetings. State v. Ogle, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 599 (Tenn. Crim. App. Sept. 24, 2019).

Defendant acknowledged at the probation revocation hearing that after being placed on probation in Tennessee, he pleaded guilty in New York to attempted second degree robbery, a felony, and the trial court noted that the conviction resulted from a violent offense, such that defendant failed to show that he was entitled to relief from the revocation of his probation. Kemp v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 648 (Tenn. Crim. App. Oct. 11, 2019).

Trial court properly revoked defendant's probation, ordering him to serve the balance of his sentence in confinement, because defendant's probation required that he report all arrests and new charges to his probation officer, he admitted that he did not do so, it was defendant's third violation of his probation for this sentence, and he had previously been confined for increasing durations in the previous two violations. State v. Kilgore, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 73 (Tenn. Crim. App. Feb. 6, 2020).

Trial court properly revoked defendant's probation and ordered him to serve his original four-year sentence in confinement because, inter alia, defendant admitted to having a drug problem, the trial court expressed concern that he had no plan about where he was going to live or do, and previous attempts at rehabilitation had been unsuccessful. State v. Cook, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 76 (Tenn. Crim. App. Feb. 7, 2020).

Trial court acted within its discretion when it revoked defendant's probation and ordered him to serve the balance of his sentence in confinement after, having given him abundant opportunities to succeed, defendant admitted to repeated violations of probation. State v. Freeny, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 306 (Tenn. Crim. App. Apr. 28, 2020).

Trial court did not abuse its discretion when it revoked defendant's probation and ordered his original sentence into execution; the trial court found that defendant had committed a felony while on probation and he admitted to using controlled substances while on probation, plus the trial court found that defendant's prior attempts at community-based mental health treatments were unsuccessful. The trial court retained discretionary authority to order defendant to serve his sentence in incarceration. State v. Covington, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 354 (Tenn. Crim. App. May 20, 2020).

Any error by the trial court in relying upon hearsay evidence regarding defendant's discharge from the mental health court program was not fatal to the trial court's decision to revoke his probation; the record was clear that the trial court did not rely on the report and instead primarily relied on the fact that defendant had committed a felony while on probation, and only one basis for revocation was necessary. State v. Covington, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 354 (Tenn. Crim. App. May 20, 2020).

Trial court did not abuse its discretion in revoking defendant's probation and ordering defendant to serve defendant's original sentence in confinement because there was sufficient evidence that defendant violated the terms of defendant's probation as defendant stipulated to and testified to using methamphetamine, amphetamine, and cocaine while serving defendant's sentence as a result of defendant's first violation of probation, which resulted in a positive drug screen upon defendant's release from jail. State v. Terry, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 390 (Tenn. Crim. App. June 5, 2020).

Trial court properly revoked defendant's probation and judicial diversion because defendant's action of pulling his vehicle in front of the victim's car, which forced the victim to stop and prevented his escape, showed that he knew his passengers were planning to rob the victim. State v. Reynolds, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 425 (Tenn. Crim. App. June 19, 2020).

Trial court properly revoked defendant's probation and ordered her to serve the balance of her effective 10-year sentence in confinement because defendant was not denied due process where defendant did not deny that she violated her probation, the trial court did not prohibit defense counsel or defendant from arguing mitigation, the trial court has been more than patient with defendant—it was defendant's fourth probation violation. State v. Daniels, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 484 (Tenn. Crim. App. July 16, 2020).

Trial court did not abuse its discretion when it revoked defendant's probation and ordered her original sentence into execution, where the trial court found that defendant failed a drug test, failed to report to her probation officer, and failed to complete a day reporting center program while on probation. Defendant also admitted that she violated probation by using drugs, which alone was substantial evidence to support the trial court's revocation of probation. State v. Thompson, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 541 (Tenn. Crim. App. Aug. 3, 2020).

There was sufficient evidence to establish by a preponderance of the evidence that defendant violated the terms of his probation, including testimony from a detective supporting the trial court's finding that defendant sold cocaine to a criminal informant. And the fact that the weapon was found in a safe within defendant's bedroom and defendant had a key to that safe, allowed the trial court to determine that defendant constructively possessed the weapon. State v. Meriweather, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 544 (Tenn. Crim. App. Aug. 6, 2020).

Trial court did not abuse its discretion by revoking defendant's probation and ordering him to serve his original three-year sentence in confinement because the record indicated that defendant failed to report to his probation officer, tested positive for marijuana, and failed to complete any community service hours. Defendant admitted to each of the violations at the revocation hearing. State v. Taylor, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 586 (Tenn. Crim. App. Aug. 27, 2020).

9. Revocation Improper.

Evidence was insufficient to show that defendant violated a condition of his probation where the evidence did not preponderate in favor of a finding that defendant violated any criminal laws; under T.C.A. § 66-11-138(a), the state did not prove in its case how defendant used any misapplied funds, if there were any, and there was not evidence in the record to establish the crime of theft. State v. Kendrick, 178 S.W.3d 734, 2005 Tenn. Crim. App. LEXIS 685 (Tenn. Crim. App. 2005).

Defendant contended that counsel at the probation revocation hearing was ineffective, but as one could not attack the effectiveness of counsel at a probation revocation hearing even in a post-conviction proceeding, defendant was not entitled to relief on this basis. Kemp v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 648 (Tenn. Crim. App. Oct. 11, 2019).

In order to preserve the public's confidence in judicial neutrality, the judgment had to be reversed, and the case remanded for a new probation revocation hearing before a different trial judge, because the trial court performed an independent internet search of the facts; the trial court's finding that it did not have the jurisdiction to hear a motion to reconsider after defendant was transferred to the department of correction was erroneous and deprived defendant of the ability to seek relief. State v. Murphy, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 679 (Tenn. Crim. App. Oct. 23, 2019).

10. Denial of Alternative Sentence Proper.

11. Community Corrections Program.

12. Continuance.

Trial court did not abuse its discretion in revoking probation by denying a probationer's request for a continuance—until the disposition of new pending criminal charges against the probationer—because the probationer's right to due process was not violated. State v. Cook, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 433 (Tenn. Crim. App. July 16, 2019).

40-35-311. Procedure to revoke suspension of sentence or probation — Use of validated risk and needs assessment.

Whenever it comes to the attention of the trial judge that any defendant who has been released upon suspension of sentence has been guilty of any breach of the laws of this state or has violated the conditions of probation, the trial judge shall have the power to cause to be issued under the trial judge's hand a warrant for the arrest of the defendant as in any other criminal case. Regardless of whether the defendant is on probation for a misdemeanor or felony or whether the warrant is issued by a general sessions court judge or the judge of a court of record, the warrant may be executed by a probation officer or any peace officer of the county in which the probationer is found.
Whenever any person is arrested for the violation of probation and suspension of sentence, the trial judge granting the probation and suspension of sentence, the trial judge's successor, or any judge of equal jurisdiction who is requested by the granting trial judge to do so shall, at the earliest practicable time, inquire into the charges and determine whether or not a violation has occurred and, at the inquiry, the defendant must be present and is entitled to be represented by counsel and has the right to introduce testimony in the defendant's behalf.
1. A laboratory report regarding a defendant's drug test may be admissible in probation revocation proceedings, even though the laboratory technician who performed the test is not present to testify, when accompanied by an affidavit containing at least the following information:
  1. The identity of the certifying technician;
  2. A statement of qualifications from the certifying technician;
  3. A specific description of the testing methodology;
  4. A statement that the method of testing was the most accurate test for this particular drug;
  5. A certification that the test results were reliable and accurate;
  6. A declaration that all established procedures and protocols were followed; and
  7. A statement of acknowledgment that submission of false information in the affidavit may subject the affiant to prosecution for the criminal offense of perjury pursuant to § 39-16-702.
2. Notwithstanding subdivision (c)(1), the judge shall, upon seasonable objection and for good cause shown, require that the laboratory technician appear and testify at the probation revocation hearing.
3. If the state intends to introduce a laboratory report and affidavit in lieu of the live testimony of the laboratory technician as authorized by this subsection (c), it shall provide the defendant or the defendant's attorney, if known, with a copy of the report and affidavit at least five (5) days prior to the revocation hearing.
The trial judge may enter judgment upon the question of the charges as the trial judge may deem right and proper under the evidence adduced before the trial judge.
1. If the trial judge finds that the defendant has violated the conditions of probation and suspension by a preponderance of the evidence, the trial judge shall have the right by order duly entered upon the minutes of the court to revoke the probation and suspension of sentence, and:
  1. Cause the defendant to commence the execution of the judgment as originally entered, or otherwise, in accordance with § 40-35-310; or
  2. Resentence the defendant for the remainder of the unexpired term to any community-based alternative to incarceration authorized by chapter 36 of this title; provided, that the violation of probation and suspension is a technical one and does not involve the commission of a new offense.
2. If the trial judge does revoke the defendant's probation and suspension, the defendant has the right to appeal.
The court may consider the results of an offender's validated risk and needs assessment in determining the appropriate disposition of the probation violation charge and may request an updated validated risk and needs assessment be performed.

Acts 1989, ch. 591, § 6; 1995, ch. 51, § 1; 1997, ch. 506, § 1; 1998, ch. 1065, § 1; 2009, ch. 203, § 3; 2016, ch. 906, § 11.

Sentencing Commission Comments.

This section addresses the procedure for revocation proceedings. Prior law was not explicit as to the standard of proof necessary to sustain a violation. Subsection (d) (now (e)) adopts the law in the majority of the jurisdictions by providing that a revocation must be found by a “preponderance of the evidence.”

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Acts 2016, ch. 906, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Public Safety Act of 2016.”

Cross-References. Offenders eligible for community corrections, § 40-36-106.

Release eligibility, § 40-36-106.

Rule Reference. This section is referred to in the Advisory Commission Comments under Rule 35 of the Tennessee Rules of Criminal Procedure.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 32.253, 32.255.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 3-11-

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, §§ 43, 45.

Law Reviews.

Cheating the Constitution (Pamela R. Metzger), 59 Vand. L. Rev. 475 (2006).

Wealth-Based Penal Disenfranchisement, 72 Vand. L. Rev. 55 (January 2019).

Attorney General Opinions. Duty to set bond on misdemeanant's appeal of probation revocation or denial, OAG 98-0142, 1998 Tenn. AG LEXIS 142 (8/7/98), OAG 98-0170, 1998 Tenn. AG LEXIS 170 (8/28/98).

Direct appeal of revocation of probationary sentence, OAG 99-080, 1999 AG LEXIS 111 (4/5/99).

Resentencing of one sentenced to community corrections, OAG 99-111, 1999 Tenn. AG LEXIS 111 (5/13/99).

On a de novo appeal of a general sessions court judgment in a revocation proceeding, the circuit court does not become “the trial judge” by entering a judgment either revoking or denying revocation of a suspended sentence or probation; instead, the general sessions court remains “the trial judge,” and future proceedings to revoke the suspended sentence or probation are properly initiated in the general sessions court, rather than the circuit court, OAG 01-079, 2001 Tenn. AG LEXIS 153 (9/14/01).

T.C.A § 40-6-215 does not apply to the issuance of probation violation warrants; the issuance of such warrants is governed by T.C.A. § 40-35-311(a), OAG 04-054, 2004 Tenn. AG LEXIS 54 (3/26/04).

Right to appointed counsel for probation revocation. OAG 12-16, 2012 Tenn. AG LEXIS 16 (2/17/12).

NOTES TO DECISIONS

1. Constitutionality.

The procedures to revoke suspension of sentence or probation contained in T.C.A. § 40-35-311 are fundamental to our system of justice because a defendant who is granted probation has a liberty interest that must be protected by due process. State v. Merriweather, 34 S.W.3d 881, 2000 Tenn. Crim. App. LEXIS 621 (Tenn. Crim. App. 2000).

2. Jurisdiction.

Because a probation violation warrant was filed before defendant's sentencing term was set to expire, the sentence did not expire and the trial court retained jurisdiction to enter an order of conviction and sentence defendant to community corrections as the probation revocation warrant tolled the limitation of time in which the trial court had to act to revoke probation. State v. Teffeteller, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 155 (Tenn. Crim. App. Feb. 28, 2018).

3. Issuance of Warrant.

Issuance of a warrant for the arrest of probationer was authorized on the basis of his failure to pay fines, court costs, and taxes, a condition of his probation. Massey v. State, 929 S.W.2d 399, 1996 Tenn. Crim. App. LEXIS 185 (Tenn. Crim. App. 1996).

4. Conduct of Proceedings.

A proceeding for revocation of probation must be conducted by the sentencing judge, or his successor, unless it is shown that the judge is unavailable. State v. Duke, 902 S.W.2d 424, 1995 Tenn. Crim. App. LEXIS 223 (Tenn. Crim. App. 1995).

Exclusionary rule was not applicable in a probation revocation hearing because the evidence found in the probationer's car and bedroom was obtained lawfully under the terms of the probationer's conditions of probation permitting searches. Furthermore, the evidence was not obtained as the result of police harassment or in an offensive manner, so that the trial court properly considered the evidence in determining that the probationer violated the conditions of probation. State v. Summers, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 698 (Tenn. Crim. App. Aug. 8, 2017).

5. Procedure for Revocation of Judicial Diversion.

6. Discretion of Court.

Because the court of criminal appeals concluded that the record supported the trial court's finding that defendant violated the conditions of his probation, it likewise concluded that the trial court did not abuse its discretion by revoking defendant's probation, which was agreed upon by the parties. State v. Swann, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 716 (Tenn. Crim. App. Nov. 8, 2019).

In a case in which defendant appealed from the revocation of his community corrections sentence, the court of criminal appeals concluded the trial court did not abuse its discretion in ordering defendant to serve the balance of his sentence in confinement. Defendant admitted that he “shot dope” and failed to report while on a community corrections sentence. State v. Mason, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 153 (Tenn. Crim. App. Feb. 28, 2020).

7. Trial Court Options.

8. Judicial Recusal.

Judge did not abuse discretion in refusing to recuse himself from defendant's probation revocation hearing where the record does not establish that the trial judge was biased or prejudiced in any way; the judge stated on the record that the remarks deemed inappropriate by the defendant were made to the jury in reference to the judge's disagreement with the law, not the defendant, and the judge stated that he had no personal animosity against the defendant. State v. Lyons, 29 S.W.3d 48, 1999 Tenn. Crim. App. LEXIS 1009 (Tenn. Crim. App. 1999).

9. Revocation Proper.

From the entry date of a judgment which includes sentencing to both confinement and probation, a trial court has the authority to revoke probation if a defendant commits another crime after entry of the judgment, but before the probationary term begins. State v. Stone, 880 S.W.2d 746, 1994 Tenn. Crim. App. LEXIS 265 (Tenn. Crim. App. 1994).

From the date of entry of the judgment of conviction, a trial court had the authority to revoke probation for the violation of a probationary condition whose application the defendant was aware of, even if the probationary term had not yet begun. State v. Smith, 909 S.W.2d 471, 1995 Tenn. Crim. App. LEXIS 566 (Tenn. Crim. App. 1995).

Trial court had authority to revoke defendant's suspended sentence for aggravated assault based on offenses he committed before he was convicted and sentenced to split confinement for the aggravated assault. State v. Stubblefield, 953 S.W.2d 223, 1997 Tenn. Crim. App. LEXIS 569 (Tenn. Crim. App. 1997).

Where 20-day probation sentence was stayed pending defendant's appeal, the trial court had authority to issue revocation warrant three years after defendant's 20-day sentence was imposed because defendant's sentence had not yet expired due to stay. State v. Lyons, 29 S.W.3d 48, 1999 Tenn. Crim. App. LEXIS 1009 (Tenn. Crim. App. 1999).

The trial court had the authority to revoke defendant's sentence after the defendant's original three year probationary period would have expired, because a revocation warrant had been issued three months after the sentence was imposed, effectively interrupting the probationary period and extending the trial court's authority over the defendant. State v. Shaffer, 45 S.W.3d 553, 2001 Tenn. LEXIS 234 (Tenn. 2001).

Because the trial court had substantial evidence to support its conclusion that defendant violated her probation, the trial court properly exercised its discretion by revoking defendant's probation and ordering her to serve her sentence in confinement; there was nothing in the record to preponderate against the trial court's finding that defendant tested positive for methamphetamine while on probation. State v. Lacommare, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 606 (Tenn. Crim. App. May 11, 2017).

Trial court did not err in revoking defendant's community corrections sentence and in ordering defendant to serve the balance of his sentence in confinement because defendant violated the terms of his community corrections by violating his curfew, failing to notify his supervision officer about a change in his employment, and failing to timely pay supervision fees and had a remaining outstanding balance; and this was defendant's second violation. State v. Pallaria, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 89 (Tenn. Crim. App. Feb. 9, 2017).

Defendant's community corrections sentence was properly revoked as he violated a rule of his community corrections sentence by getting arrested because a preponderance of the evidence showed that defendant was intoxicated when the detective arrived on the scene, and that he was arrested based on his actions; and defendant's due process rights were not violated through insufficient notice as defendant was provided with a written notice outlining the violation of the rule of his community corrections sentence that he not be arrested, and, in addition to the other violations of his community corrections sentence, a preponderance of the evidence supported the revocation on the basis of the violation of which he had notice. State v. Sherrod, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 116 (Tenn. Crim. App. Feb. 22, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 320 (Tenn. May 18, 2017).

In a case in which defendant pled guilty to aggravated assault and was sentenced to eight years on probation, the trial court did not err in revoking defendant's probation and ordering him to serve his sentence in prison because, during the violation of probation hearing, the trial court noted the underlying facts of defendant's 2016 guilty plea convictions for theft and unlawful possession of a firearm, and found that defendant was in possession of a firearm, and had violated his probation; and there was nothing in the record to preponderate against the trial court's finding that defendant was in possession of a firearm and had violated his probation as he pled guilty to that charge. State v. Davis, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 366 (Tenn. Crim. App. May 11, 2017).

Because the trial court had substantial evidence to support its conclusion that defendant violated his probation by assaulting his fiance, the trial court properly exercised its discretion by revoking defendant's probation and ordering defendant to serve his sentence in confinement under T.C.A. § 40-35-311(e). State v. Ogle, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 596 (Tenn. Crim. App. July 7, 2017).

Trial court did not err in revoking defendant's community corrections sentence because the trial court did not rely on defendant's prior criminal record as she had failed to enter a drug treatment program and to meet with her community corrections officer as required by the trial court's March 8, 2016, order, and she continued to use drugs; defendant was convicted of shoplifting from one store, and involved in shoplifting from another store; and defendant had been given several attempts at rehabilitation and to complete her community corrections sentence, but those attempts had failed. State v. Britton, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 680 (Tenn. Crim. App. Aug. 3, 2017).

Defendant waived any argument regarding the admission of any alleged improper hearsay during the hearing regarding the revocation of his probation because defendant never objected to the trial court's questions to an investigator and a probation officer and declined to ask any follow-up questions in response. State v. Finley, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 953 (Tenn. Crim. App. Nov. 13, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 153 (Tenn. Mar. 14, 2018).

Revocation of defendant's probation was supported by the trial court's finding that defendant violated the conditions of his probation by not completing the Jericho Program, as the evidence showed that defendant continued to drink alcohol and failed to follow the treatment programs recommended to him. State v. Prather, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 236 (Tenn. Crim. App. Mar. 29, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 423 (Tenn. July 18, 2018).

Trial court did not err in revoking defendant's community corrections sentence and in ordering defendant to serve the remainder of his sentence in confinement because defendant did not dispute that he was in violation of the terms of his sentence as defendant admitted that he did not report to his community corrections officer for over four years; and, having revoked defendant's community corrections sentence, it was within the trial court's discretion to order defendant to serve the remainder of his sentence in confinement. State v. Spears, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 459 (Tenn. Crim. App. June 22, 2018).

Trial court did not violate defendant's due process rights by revoking his judicial diversion; the trial court was not required to inform the defendant that he would be required to admit the elements of his criminal conduct as a part of his sexual offender treatment plan. State v. Albright, — S.W.3d —, 2018 Tenn. LEXIS 743 (Tenn. Dec. 11, 2018).

Defendant's probation was properly revoked as he violated the conditions of his probation because he failed to report to his probation officer; defendant's claims that he was reporting to and acting with the permission of his Davidson County probation officer was rebutted by that probation officer; and defendant failed to properly maintain his GPS monitor by failing to properly charge it, causing the monitor to die. State v. Parker, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 148 (Tenn. Crim. App. Mar. 8, 2019).

Trial court did not err in revoking defendant's probation because defendant conceded that he tested positive for a plethora of drugs and completed only a small fraction of his required community service hours; and any error by the trial court in relying upon hearsay evidence regarding the shooting incident and defendant's possession of a firearm would not be fatal to its decision to revoke his probation as only one basis for revocation was necessary. State v. Johnson, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 218 (Tenn. Crim. App. Apr. 9, 2019).

Trial court did not abuse its discretion in revoking defendant's community corrections sentence and ordering him to serve the remainder of his sentence in confinement. The record reflected that defendant admitted using heroin and failing to report to his community corrections officer. State v. Caldwell, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 586 (Tenn. Crim. App. Sept. 19, 2019).

10. —Proof of Violation.

While exclusion of evidence obtained as a result of police harassment or obtained in particularly offensive manner is consistent with T.C.A. § 40-35-311(d), which permits the trial judge to enter such judgment as is deemed right and proper, defendant was not entitled to suppression of cocaine found during consensual search following illegal detention, there was nothing in the record to establish that officer knew defendant was a probationer, but only that he knew defendant had prior convictions, and the exclusionary rule did not apply. State v. Hayes, 190 S.W.3d 665, 2005 Tenn. Crim. App. LEXIS 645 (Tenn. Crim. App. 2005).

Where a probation officer discovered child pornography on defendant's computer during an inspection, the officer did not exceed the scope of the officer's authority under the terms of defendant's probation, because it was irrelevant that the probation officer sought evidence of a probation violation rather than proof that defendant had engaged in universally proscribed activity. United States v. Herndon, 501 F.3d 683, 2007 FED App. 353P, 2007 U.S. App. LEXIS 20943 (6th Cir. Aug. 31, 2007).

Trial court did not err by revoking defendant's community corrections sentence and ordering him to serve the remainder of his sentence in confinement because he pleaded guilty to violating the conditions of his release by bringing narcotics into the jail when he reported to begin serving six months in confinement. State v. Chambers, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 385 (Tenn. Crim. App. May 16, 2017).

Trial court did not abuse its discretion by revoking defendant's probation because the record supported its finding that defendant violated the conditions of his probation; the evidence supported a finding that defendant committed a new criminal offense by possessing a controlled substance while inside a detention facility because the State showed that he possessed marijuana. State v. Phelps, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 435 (Tenn. Crim. App. May 24, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 695 (Tenn. Oct. 3, 2017).

Trial court did not abuse its discretion by revoking defendant's probation because the State of Tennessee sufficiently established that defendant possessed methamphetamine, drug paraphernalia, and a firearm, violating the conditions of defendant's probation. This evidence alone was sufficient to support the court's finding that defendant violated defendant's probation. State v. Summers, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 698 (Tenn. Crim. App. Aug. 8, 2017).

An error in admitting an officer's hearsay testimony was harmless beyond a reasonable doubt because the evidence offered at the probation revocation hearing was sufficient to prove by a preponderance of the evidence that defendant violated the terms of his probation by failing to pay fees, failing to provide verification of lawful occupation of work-seeking efforts, failing to report to report to probation as required, and leaving the state. State v. Hill, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 773 (Tenn. Crim. App. Aug. 29, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 14 (Tenn. Jan. 18, 2018).

Trial court did not abuse its discretion in revoking defendant's probation because by singing a voluntary admission of his illegal substance usage, defendant did not dispute that he was in violation of the terms of his probationary sentence by testing positive for marijuana and methamphetamine; defendant had a pattern of almost immediately violating the substance abuse clause of his probation agreement each time he was released from incarceration. State v. Akins, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 263 (Tenn. Crim. App. Apr. 6, 2018).

There was substantial evidence to support the trial court's finding that defendant violated the terms of her probation and thus, to revoke her probation, as defendant missed five of her required appointments with her probation officer and failed to present any proof to rebut a representative's testimony that defendant was discharged from a mental health treatment program before completion. State v. Moses, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 389 (Tenn. Crim. App. May 18, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 543 (Tenn. Sept. 14, 2018).

Revocation of defendant's probation was appropriate because the trial court did not abuse its discretion in concluding that defendant had violated the terms of defendant's probation in that the GPS records reflected that defendant was staying overnight at the coffee shop where defendant worked while defendant's address was listed as “homeless” on the sex offender registry. State v. Janyja, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 399 (Tenn. Crim. App. May 21, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 590 (Tenn. Sept. 13, 2018).

There was substantial evidence to support the trial court's revocation of probation, as defendant pleaded guilty to the violations, plus the State presented adequate proof that she did violate her probation by using intoxicants. State v. Juvinall, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 460 (Tenn. Crim. App. June 22, 2018).

Trial court properly revoked defendant's probation after finding he violated probation by committing a domestic assault and by being intoxicated, and placing defendant's eight-year sentence into effect was proper, as this was defendant's fourth probation violation. State v. Gibson, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 653 (Tenn. Crim. App. Aug. 24, 2018).

Trial court did not abuse its discretion by revoking defendant's probation because the evidence did not preponderate against a determination that defendant failed to stay away from his wife and violated the terms and conditions of his probation. Even though defendant's initial encounter with his wife at a store was happen-stance, he then approached her and her boyfriend, made multiple comments, and took a photograph that he later posted on a social media website for the purpose of intimidating the wife. State v. Caraker, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 860 (Tenn. Crim. App. Nov. 26, 2018).

Trial courts finding that defendant violated multiple rules of his probation by being arrested and failing to report the arrest to his probation officer, failing to notify his probation officer of his change in hotel rooms, not being at home for curfew, and owing court costs and fees was a proper basis upon which to revoke defendant's probation and order that he serve a portion of his sentence. State v. Kincaid, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 88 (Tenn. Crim. App. Feb. 11, 2019).

Trial court did not abuse its discretion in revoking defendant's probation and ordering him to serve the remainder of his sentence in confinement after finding that defendant was aware he was on supervised probation and required to report to his probation officer but failed to do so for nearly three years. State v. Hufford, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 92 (Tenn. Crim. App. Feb. 13, 2019).

Trial court did not abuse its discretion in revoking defendant's probation and ordering defendant's sentence into execution because it was established by a preponderance of the evidence—through the testimony of defendant's then probation officer, court records, and defendant's admission to never reporting to defendant's original probation officer—that for a period of time defendant failed to report to defendant's probation officer and failed to make any payments toward defendant's court costs. State v. Wilson, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 356 (Tenn. Crim. App. June 21, 2019).

Trial court did not abuse its discretion by revoking defendant's probation and ordering that he serve his four-year sentence in confinement because defendant admitted that he violated the terms of his probation by being absent from home or not answering the door during each of the weekly curfew checks that occurred over six months while defendant was on house arrest and did not have his probation officer's permission to leave the house. State v. Murrell, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 722 (Tenn. Crim. App. Nov. 8, 2019).

Trial court did not abuse its decision in revoking defendant's community corrections sentences and in ordering defendant to serve the balance of the sentence in confinement because defendant violated the conditions of the community corrections behavior contract, failed to complete a mandatory drug program, failed to complete classes, did not do her community service, and tested positive for drugs numerous times. Furthermore, defendant removed defendant's house arrest band, absconded, and was arrested on new charges. State v. Smith, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 225 (Tenn. Crim. App. Apr. 7, 2020).

Trial court did not abuse its discretion by revoking defendant's probation because the record reflected that defendant admitted he violated the conditions of his probation by failing to report as directed and failing to notify his probation officer of his change of address. State v. Jerger, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 323 (Tenn. Crim. App. May 7, 2020).

Trial court did not abuse its discretion when it revoked defendant's community corrections sentence because there was overwhelming evidence presented during the revocation hearing to prove that he violated the conditions of his community corrections sentence, as he tested positive for numerous drugs numerous times and was arrested for possession of crystal methamphetamine, he had been given alternative sentences and had been admitted to a rehabilitation facility numerous times, and by his own admission, defendant had been unable to comply with multiple opportunities to complete an alternative sentence. State v. Milam, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 333 (Tenn. Crim. App. May 12, 2020).

11. Revocation Improper.

12. Reinstatement of Sentence.

Trial court did not abuse its discretion by imposing a sentence to be served in confinement because defendant had twice before violated the terms of his probation and had it reinstated, and he had previously violated the requirements that he remain at home after curfew and continue to reside at his approved address, the same requirements that caused his probation to be revoked in the instant case. State v. Fason, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 349 (Tenn. Crim. App. May 4, 2018).

13. Laboratory Report.

It was no error to admit an in-house drug screen report at a hearing on revocation of defendant's community corrections sentence because (1) the report's custodian and the person who administered the screen testified, (2) the report was not a laboratory report, (3) nothing showed the report contained unreliable information, and (4) defendant's statement that defendant did not dispute the report's results and admission to consuming a controlled substance were admissible as an admission by a party-opponent. State v. Sharp, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1050 (Tenn. Crim. App. Dec. 22, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 158 (Tenn. Mar. 14, 2018).

15. Denial of Alternative Sentence Proper.

Trial court did not abuse its discretion in revoking defendant's supervised probation and ordering him to serve the balance of his sentence incarcerated, after defendant violated his probation, as defendant had three prior probation violations for which he received sentences alternative to incarceration and defendant had little regard for the probation conditions imposed. State v. Skettini, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 538 (Tenn. Crim. App. July 18, 2018).

16. Right to Counsel.

Trial court erred in revoking defendant's probation as he was denied the right to counsel during the revocation hearing because there was no written waiver of defendant's right to counsel in the record, and the trial court did not determine whether there had been a competent and intelligent waiver of that right by inquiring into the background, experience, and conduct of the accused; and defendant did not implicitly waive or forfeit his right to counsel as there was no evidence that defendant acted so egregiously as to warrant the forfeiture of counsel, and the trial court did not make any findings that defendant's conflict with counsel was designed to delay or manipulate the probation revocation proceedings. State v. Jones, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 567 (Tenn. Crim. App. July 30, 2018).

40-35-312. Costs of revocation proceeding.

In case of a revocation of a suspension, the costs of the revocation shall be adjudged against the defendant, and the defendant shall be required to pay or secure the costs; provided, that no state and county tax nor attorney general's fee shall accrue upon hearings for the purpose of revoking the suspension. In case the suspension is not revoked upon the hearing, the costs shall be taxed against the county, if the defendant was originally convicted of a misdemeanor, and against the state, if originally convicted of a felony; provided, that, if the trial judge is of the opinion that the proceedings for revocation are not made in good faith, the judge shall have the power to disallow all the costs of the case or, in the alternative, to tax them against the party making the charges against the defendant.

Acts 1989, ch. 591, § 6.

Cross-References. Perjury, § 39-16-702.

Probation, paroles and pardons, title 40, ch. 28.

Rule Reference. This section is referred to in the Advisory Commission Comments under Rule 35 of the Tennessee Rules of Criminal Procedure.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 45.

40-35-313. Probation — Conditions — Discharge and dismissal — Expunction from official records — Fee.

1. 1. The court may defer further proceedings against a qualified defendant and place the defendant on probation upon such reasonable conditions as it may require without entering a judgment of guilty and with the consent of the qualified defendant. The deferral shall be for a period of time not less than the period of the maximum sentence for the misdemeanor with which the person is charged or not more than the period of the maximum sentence of the felony with which the person is charged. The deferral is conditioned upon the defendant paying an amount to be determined by the court of not less than ten dollars ($10.00) nor more than thirty-five dollars ($35.00) per month as part payment of expenses incurred by the agency, department, program, group or association in supervising the defendant, and upon the defendant paying any or all additional costs of the defendant's supervision, counseling or treatment in a specified manner, based upon the defendant's ability to pay. The payments shall be made to the clerk of the court in which proceedings against the defendant were pending, who shall send the payments to the agency, department, program, group or association responsible for the supervision of the defendant, unless the defendant is found to be indigent and without anticipated future funds with which to make the payment. The clerk of the court collecting the payment is permitted to retain five percent (5%) of the proceeds collected for the handling and receiving of the proceeds as provided in this subdivision (a)(1)(A).
  2. 1. As used in this subsection (a), “qualified defendant” means a defendant who:
      1. Is found guilty of or pleads guilty or nolo contendere to the offense for which deferral of further proceedings is sought;
      2. Is not seeking deferral of further proceedings for any offense committed by any elected or appointed person in the executive, legislative or judicial branch of the state or any political subdivision of the state, which offense was committed in the person's official capacity or involved the duties of the person's office;
      3. Is not seeking deferral of further proceedings for a sexual offense, a violation of § 39-15-502, § 39-15-508, § 39-15-511, or § 39-15-512, driving under the influence of an intoxicant as prohibited by § 55-10-401, vehicular assault under § 39-13-106 prior to service of the minimum sentence required by § 39-13-106, or a Class A or B felony;
      4. Has not previously been convicted of a felony or a Class A misdemeanor for which a sentence of confinement is served; and
      5. Has not previously been granted judicial diversion under this chapter or pretrial diversion.
    2. As used in subdivision (a)(1)(B)(i)(c) , “sexual offense” means conduct that constitutes:
      1. Aggravated prostitution, as described in § 39-13-516;
      2. Aggravated rape, as described in § 39-13-502;
      3. Aggravated sexual battery, as described in § 39-13-504;
      4. Aggravated sexual exploitation of a minor, as described in § 39-17-1004;
      5. Attempt, as described in § 39-12-101, solicitation, as described in § 39-12-102 or conspiracy, as described in § 39-12-103, to commit any of the offenses enumerated in this subdivision (a)(1)(B)(ii);
      6. Especially aggravated sexual exploitation of a minor, as described in § 39-17-1005;
      7. Rape, as described in § 39-13-503;
      8. Rape of a child, as described in § 39-13-522;
      9. Sexual battery by an authority figure, as described in § 39-13-527;
      10. Sexual exploitation of a minor, as described in § 39-17-1003;
      11. Statutory rape by an authority figure, as described in § 39-13-532;
      12. Incest, as described in § 39-15-302;
      13. Patronizing prostitution from a person who is younger than eighteen (18) years of age or has an intellectual disability, as described in § 39-13-514(b)(3);
      14. Promoting the prostitution of a minor, as described in § 39-13-515(c)(1); or
      15. Continuous sexual abuse of a child, as described in § 39-13-518.
    3. (a) As used in this subsection (a), “reasonable conditions” includes, but is not limited to, the use of a transdermal monitoring device or other alternative monitoring device for all qualified defendants granted deferral pursuant to this section on or after July 1, 2014, if the court determines that the defendant's use of alcohol or drugs was a contributing factor in the defendant's unlawful conduct. If the court requires a qualified defendant to use a transdermal monitoring device or other alternative monitoring device on or after July 1, 2016, as a condition of the defendant's release, and the court determines the defendant is indigent, the court shall order that the portion of the costs of the device that the person is unable to pay be paid by the electronic monitoring indigency fund, established in § 55-10-419. “Transdermal monitoring device” means any device or instrument that is attached to the person, designed to automatically test the alcohol or drug content in a person by contact with the person's skin at least once per one-half (½) hour regardless of the person's location, and which detects the presence of alcohol or drugs and tampering, obstructing, or removing the device.
      1. (iii) (a) As used in this subsection (a), “reasonable conditions” includes, but is not limited to, the use of a transdermal monitoring device or other alternative monitoring device for all qualified defendants granted deferral pursuant to this section on or after July 1, 2014, if the court determines that the defendant's use of alcohol or drugs was a contributing factor in the defendant's unlawful conduct. If the court requires a qualified defendant to use a transdermal monitoring device or other alternative monitoring device on or after July 1, 2016, as a condition of the defendant's release, and the court determines the defendant is indigent, the court shall order that the portion of the costs of the device that the person is unable to pay be paid by the electronic monitoring indigency fund, established in § 55-10-419. “Transdermal monitoring device” means any device or instrument that is attached to the person, designed to automatically test the alcohol or drug content in a person by contact with the person's skin at least once per one-half (½) hour regardless of the person's location, and which detects the presence of alcohol or drugs and tampering, obstructing, or removing the device.
      2. As used in this subsection (a), “reasonable conditions” also includes, but is not limited to, the requirement that a qualified defendant serve a period or periods of confinement in the local jail or workhouse not to exceed a total of thirty (30) days.
2. The provisions of this subsection (a) relative to the payment of a supervision fee shall not apply to any person subject to chapter 28, part 2 of this title. Upon violation of a condition of the probation, the court may enter an adjudication of guilt and proceed as otherwise provided. If, during the period of probation, the person does not violate any of the conditions of the probation, then upon expiration of the period, the court shall discharge the person and dismiss the proceedings against the person. Discharge and dismissal under this subsection (a) is without court adjudication of guilt, but a nonpublic record of the discharge and dismissal is retained by the court solely for the purpose of use by the courts in determining whether or not, in subsequent proceedings, the person qualifies under this subsection (a) or for the limited purposes provided in subsections (b) and (c). The discharge and dismissal shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime or for any other purpose, except as provided in subsections (b) and (c). Discharge and dismissal under this subsection (a) may occur only once with respect to any person.
3. 1. No order deferring further proceedings and placing the defendant on probation as authorized by this subsection (a) may be entered by the court on or after July 1, 1998, unless there is attached to it a certificate from the Tennessee bureau of investigation stating that the defendant does not have a prior felony or Class A misdemeanor conviction. No order deferring further proceedings and placing the defendant on probation as authorized by this subsection (a) may be entered by the court if the defendant was charged with a violation of a criminal statute the elements of which constitute abuse, neglect or misappropriation of the property of a vulnerable person as defined in § 68-11-1002 on or after July 1, 2004, and prior to July 1, 2018, or charged with a violation of § 39-15-507 on or after January 1, 2019, or § 39-15-510 on or after July 1, 2019, unless the order contains a provision that the defendant agrees without contest or any further notice or hearing that the defendant's name shall be permanently placed on the registry governed by § 68-11-1003 a copy of which shall be forwarded to the department of health.
  2. The certificate provided by the bureau pursuant to subdivision (a)(3)(A) is only a certification that according to its expunged criminal offender and pretrial diversion database the defendant is not disqualified from deferral and probation under this section by virtue of a prior felony or Class A misdemeanor conviction. The certificate is not a certification that the defendant is eligible for the deferral and probation, and it shall continue to be the duty of the district attorney general, and judge to make sufficient inquiry into the defendant's background to determine eligibility.
Upon the dismissal of the person and discharge of the proceedings against the person under subsection (a), the person may apply to the court for an order to expunge from all official records, other than the nonpublic records to be retained by the court under subsection (a) and the public records that are defined in § 40-32-101(b), all recordation relating to the person's arrest, indictment or information, trial, finding of guilty and dismissal and discharge pursuant to this section; provided, that no records of a person who is dismissed from probation and whose proceedings are discharged pursuant to this section shall be expunged if the offense for which deferral and probation was granted was a sexual offense as defined by § 40-39-202. Each application shall contain a notation by the clerk evidencing that all court costs are paid in full, prior to the entry of an order of expunction. If the court determines, after hearing, that the person was dismissed and the proceedings against the person discharged, it shall enter the order. The effect of the order is to restore the person, in the contemplation of the law, to the status the person occupied before the arrest or indictment or information. No person as to whom the order has been entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of the person's failures to recite or acknowledge the arrest, or indictment or information, or trial in response to any inquiry made of the person for any purpose, except when the person who has been availed of the privileges of expunction then assumes the role of plaintiff in a civil action based upon the same transaction or occurrence as the expunged criminal record. In that limited situation, notwithstanding this section or § 40-32-101(a)(3)-(c)(3) to the contrary, the nonpublic records are admissible for the following purposes:
1. A plea of guilty is admissible into evidence in the civil trial as a judicial admission; and
2. A verdict of guilty by a judge or jury is admissible into evidence in the civil trial as either a public record or is admissible to impeach the truthfulness of the plaintiff. In addition, the nonpublic records retained by the court, as provided in subsection (a), shall constitute the official record of conviction and are subject to the subpoena power of the courts of civil jurisdiction.
Notwithstanding this section or § 40-32-101(a)(3)-(c)(3) to the contrary, a plea of guilty or a verdict of guilty by a judge or jury for a criminal felony offense involving an act of terrorism or any other felony offense involving violence, coercion, dishonesty or the disruption of the operations of a state or local government is admissible into evidence in a civil action for the purpose of impeaching the truthfulness, veracity or credibility of a witness if the plea or verdict occurred within ten (10) years of the date the evidence is sought to be admitted and the witness is a party to the civil action. The plea or verdict is admissible for the purposes set out in this subsection (c) notwithstanding the fact that the public records of the plea or verdict have been expunged pursuant to this section either prior to or after the commencement of the civil action at which the plea or verdict is sought to be admitted. In addition, the nonpublic records retained by the court, Tennessee bureau of investigation or a local law enforcement agency shall constitute official records of plea or verdict and are subject to the subpoena power of the courts of civil jurisdiction.
1. Any court dismissing charges against a person and ordering the expunction of a person's public records following the discharge of proceedings pursuant to this section after October 1, 1998, shall send or cause to be sent a copy of the dismissal and expunction order to the Tennessee bureau of investigation for entry into its expunged criminal offender and pretrial diversion database; provided, however, that the court shall not be required to send to the bureau a copy of any dismissal and expunction order dated on or after July 1, 1999, if the charge dismissed is classified as a Class B or C misdemeanor. The order shall contain the name of the person seeking dismissal and expunction, the person's date of birth and social security number, the offense that was dismissed and the date the dismissal and expunction order is entered.
2. [Deleted by 2019 amendment.]

Acts 1989, ch. 591, § 6; 1990, ch. 980, §§ 25, 26; 1995, ch. 349, § 1; 1996, ch. 997, § 1; 1997, ch. 455, § 2; 1997, ch. 456, § 2; 1998, ch. 1099, §§ 8-10; 2000, ch. 645, § 2; 2000, ch. 813, § 7; 2002, ch. 849, §§ 14-16; 2003, ch. 323, § 2; 2004, ch. 780, § 9; 2006, ch. 973, § 3; 2007, ch. 528, § 2; 2007, ch. 536, § 1; 2011, ch. 484, § 2; 2012, ch. 766, § 2; 2012, ch. 1041, § 4; 2014, ch. 567, § 4; 2015, ch. 125, § 1; 2016, ch. 993, § 15; 2016, ch. 1026, § 1; 2017, ch. 466, § 4; 2018, ch. 951, § 1; 2018, ch. 1046, § 3; 2018, ch. 1050, §§ 8, 9; 2019, ch. 200, § 4; 2019, ch. 474, §§ 14, 15; 2020, ch. 607, § 1; 2020, ch. 741, § 1.

Sentencing Commission Comments.

This section permits disposition of misdemeanors and certain felonies to include probation with the possibility of dismissal and expungement if the defendant successfully complies with the terms of probation. The eligibility criteria are set forth in subdivision (a)(1) and provide that the defendant cannot have a prior record for any felony conviction or for any Class A misdemeanor convictions. The provisions of this section apply to all misdemeanors except for driving under the influence and driving on a cancelled, suspended or revoked license. See §§ 55-10-403(b)(1) and 55-50-504(e).

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 subsequent legislation.

Acts 2014, ch. 567, § 6 provided that the act, which added subdivision (a)(1)(B)(iii), shall be known and may be cited as “Amelia's Law”.

Acts 2017, ch. 466, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Elderly and Vulnerable Adult Protection Act.”

Acts 2018, ch. 951, § 2 provided that the act, which amended this section, shall apply to orders of deferral entered on or after July 1, 2018.

Acts 2018, ch. 1046, § 12 provided that the act, which amended this section, shall apply to offenses committed on or after July 1, 2018.

Acts 2018, ch. 1050, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Elderly and Vulnerable Adult Protection Act of 2018.”

Acts 2018, ch. 1050, § 17 provided that the act, which amended this section, shall apply to acts committed on or after January 1, 2019.

Amendments. The 2019 amendment by ch. 200 deleted (d)(2) which read, “(2) Beginning July 1, 2012, a defendant applying to a court for expunction of the defendant's records following successful completion of the diversion program authorized by this section shall be assessed a three-hundred-fifty-dollar fee. The fee shall be transmitted by the clerk of the court to the state treasurer for deposit in the special fund established in § 40-32-101(d)(2).”

The 2019 amendment by ch. 474, in (a), substituted “§ 39-15-502, § 39-15-508, § 39-15-511, or § 39-15-512” for “§ 39-15-502, § 71-6-117, § 71-6-119, or § 39-15-508” in (a)(1)(B)(i)(c); and substituted “a violation of § 39-15-507 on or after January 1, 2019, or § 39-15-510 on or after July 1, 2019” for “a violation of § 39-15-507 or § 71-6-117 on or after July 1, 2018” in (a)(3)(A).

The 2020 amendment by ch. 607 added (a)(1)(B)(ii)(m) and (a)(1)(B)(ii)(n) .

The 2020 amendment by ch. 741 added (a)(1)(B)(ii)(o) .

Effective Dates. Acts 2019, ch. 200, § 10. July 1, 2019.

Acts 2019, ch. 474, § 18. January 1, 2020; provided that for administrative and rulemaking purposes, the act took effect May 24, 2019.

Acts 2020, ch. 607, § 2. March 20, 2020.

Acts 2020, ch. 741, § 2. June 22, 2020.

Cross-References. Confidentiality of public records, § 10-7-504.

Destruction or release of records, § 40-32-101.

Penalty for Class A, B or C misdemeanor, § 40-35-111.

Penalty for Class A or B felony, § 40-35-111.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 11.3, 11.4, 22.103.

Law Reviews.

Alternatives to Revocation of Judicial Diversion, 49 Tenn. B.J. 19 (2013).

Attorney General Opinions. Effective date of subdivision (a)(3)(A) as October 1, 1998, OAG 98-166 (8/28/98), 1998 Tenn. AG LEXIS 166.

Collection of supervision fee by private probation service, OAG 99-029, 1999 Tenn. AG LEXIS 22 (2/17/99).

Peace officers standards and training (POST) pre-employment requirements, OAG 00-026, 2000 Tenn. AG LEXIS 26 (2/15/00).

A trial judge may not entertain any ex parte actions regarding judicial diversion or expungement pursuant to T.C.A. § 40-35-313, OAG 02-099, 2002 Tenn. AG LEXIS 106 (9/16/02).

While a trial court may retain the power to alter or amend a defendant's sentence after 30 days, it has no authority to expunge a defendant's criminal record pursuant to T.C.A. § 40-35-313 if the defendant has not been sentenced pursuant to the terms of that section and a valid judgment of conviction is in effect, OAG 02-099, 2002 Tenn. AG LEXIS 106 (9/16/02).

A court is not authorized to enter an order of diversion without first receiving a certificate from the Tennessee bureau of investigation stating that defendant does not have a prior felony or Class A misdemeanor conviction, OAG 04-009, 2004 Tenn. AG LEXIS 9 (1/27/04).

The date the order is entered with the Tennessee bureau of investigation certificate attached is the effective date of the diversion, OAG 04-009, 2004 Tenn. AG LEXIS 9 (1/27/04).

DUI conviction cannot be expunged through a pretrial diversion program or through judicial diversion, OAG 04-009, 2005 Tenn. AG LEXIS 41.

Pretrial diversion and judicial diversion are available to defendants only as prejudgment procedures, OAG 06-008, 2006 Tenn. AG LEXIS 10.

Constitutionality of amendments by Acts 2012, ch. 766 regarding exclusion of public officials from pretrial or judicial diversion. OAG 12-76, 2012 Tenn. AG LEXIS 72 (7/25/12).

Under T.C.A. § 62-35-130(e) licensed armed and unarmed security guards/officers are required to notify the Commissioner of Commerce and insurance only of “conviction[s],” and a guilty plea entered as a condition of judicial diversion is not a “conviction” under T.C.A. § 40-35-313. OAG 16-17, 2016 Tenn. AG LEXIS 18 (5/6/2016).

NOTES TO DECISIONS

1. In General.

Tennessee Sentencing Act never contemplated that a contingency type of plea agreement would be attached to the judicial diversion, which would usurp the sentencing authority of the trial judge following a termination of diversion; the term “proceed as otherwise provided” following revocation of judicial diversion probation meant that a sentencing hearing should be held pursuant to the considerations of T.C.A. § 40-35-210 and principles of sentencing. State v. Judkins, 185 S.W.3d 422, 2005 Tenn. Crim. App. LEXIS 730 (Tenn. Crim. App. 2005).

In a nurse's disciplinary action where the nurse abandoned patients by leaving the hospital before the end of her shift without notifying her supervisor, while the nurse testified that the records regarding the vandalism and resisting arrest charges had been expunged, she failed to present evidence supporting her claim; in the absence of the corroborating evidence that the records regarding her two convictions had been lawfully expunged, the nurse's testimony that she had pled guilty to vandalism and resisting arrest provided the substantial and material evidence needed to support the Tennessee board of nursing's conclusion that the nurse was “guilty of a crime” for the purpose of T.C.A. § 63-7-115(a)(1)(B). Miller v. Tenn. Bd. of Nursing, 256 S.W.3d 225, 2007 Tenn. App. LEXIS 613 (Tenn. Ct. App. Sept. 26, 2007), rehearing denied, 256 S.W.3d 225, 2007 Tenn. App. LEXIS 826 (Tenn. Ct. App. Oct. 22, 2007), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 214 (Tenn. Apr. 7, 2008).

2. Purpose.

Judicial diversion is similar in purpose to pretrial diversion and is to be imposed within the discretion of the trial court, subject only to the same constraints applicable to prosecutors in applying pretrial diversion under T.C.A. § 40-15-105. State v. Anderson, 857 S.W.2d 571, 1992 Tenn. Crim. App. LEXIS 712 (Tenn. Crim. App. 1992).

Judicial diversion is similar in purpose to the pretrial diversion program; the grant or denial is, therefore, discretionary with the trial court. If there is “any substantial evidence to support the refusal,” the trial court's decision will be upheld and the conclusion can be overturned only if the trial court abused their discretion. State v. Kyte, 874 S.W.2d 631, 1993 Tenn. Crim. App. LEXIS 569 (Tenn. Crim. App. 1993).

State v. Alberd, 908 S.W.2d 414, 1995 Tenn. Crim. App. LEXIS 516 (Tenn. Crim. App. 1995) does not govern cases involving judicial diversion because judicial diversion follows a determination of guilt. State v. Johnson, 980 S.W.2d 410, 1998 Tenn. Crim. App. LEXIS 851 (Tenn. Crim. App. 1998).

“Judicial diversion” is merely an appellation supplied by the courts, probably to distinguish T.C.A. § 40-35-313 from T.C.A. § 40-15-105 pretrial diversion; in actuality, T.C.A. § 40-35-313 is a “probation” statute. State v. Norris, 47 S.W.3d 457, 2000 Tenn. Crim. App. LEXIS 437 (Tenn. Crim. App. 2000).

3. Applicability.

T.C.A. § 55-10-403 (see now § 55-10-402), the penalty provision for conviction of driving under the influence of an intoxicant (DUI), prohibits the application of this section. State v. Vasser, 870 S.W.2d 543, 1993 Tenn. Crim. App. LEXIS 555 (Tenn. Crim. App. 1993).

The fact that an accused meets certain prerequisites does not entitle the accused to judicial diversion as a matter of right; whether an accused should be granted judicial diversion is a question which addresses itself to the sound discretion of the trial court. State v. Parker, 932 S.W.2d 945, 1996 Tenn. Crim. App. LEXIS 167 (Tenn. Crim. App. 1996), overruled in part, State v. King, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 192 (Tenn. Crim. App. Mar. 4, 2013), overruled in part, State v. King, 432 S.W.3d 316, 2014 Tenn. LEXIS 351 (Tenn. Apr. 23, 2014).

Judicial diversion is not available as Tenn. R. Crim. P. 35(b) relief after an adjudication of guilt, entry of judgment of conviction, and sentence of incarceration. State v. Turco, 108 S.W.3d 244, 2003 Tenn. LEXIS 574 (Tenn. 2003).

When a trial court accepts a plea agreement pursuant to Tenn. R. Crim. P. 11, such agreement represents the full and complete agreement between the parties and cannot be altered by the trial court to include judicial diversion; thus, the trial court may entertain the issue of judicial diversion only when the court rejects the agreement or when such an option is reflected in the 11 plea agreement. State v. Soller, 181 S.W.3d 645, 2005 Tenn. LEXIS 1045 (Tenn. 2005).

Although defendant appeared to be statutorily “qualified” for judicial diversion because prior diversions in other states did not serve to disqualify a defendant from judicial diversion under T.C.A. § 40-35-313, judicial diversion was not included in the plea agreement, and therefore trial court lacked authority to alter the plea agreement; when the trial court accepted the plea agreement pursuant to Tenn. R. Crim. P. 11, such agreement represented the full and complete agreement between parties and could not be altered by the trial court to include judicial diversion. State v. Soller, 181 S.W.3d 645, 2005 Tenn. LEXIS 1045 (Tenn. 2005).

Under T.C.A. § 40-35-313 and T.C.A. § 38-8-106, police officer was wrongly decertified on the basis of a guilty plea that was of no legal effect, as the officer qualified as a law enforcement officer and was qualified for certification; under T.C.A. § 40-32-101(b)(1), a history of arrests, investigations, and/or police intelligence about the officer's alleged conduct was not sufficient to disqualify him. Wright v. Tenn. Peace Officer Stds. & Training Comm'n, 277 S.W.3d 1, 2008 Tenn. App. LEXIS 251 (Tenn. Ct. App. Apr. 29, 2008), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 890 (Tenn. Dec. 8, 2008).

In judicial diversion cases, no judgment of conviction is entered, and a sentence is imposed only in the instance that the defendant fails to successfully complete the period of probation pursuant to the grant of judicial diversion; therefore, the plain meaning of the mandatory minimum service requirement of the Drug-Free School Zone Act, applicable only to those who have been “sentenced” under the Act, does not preclude the possibility of judicial diversion. State v. Dycus, 456 S.W.3d 918, 2015 Tenn. LEXIS 16 (Tenn. Jan. 23, 2015).

4. Eligibility.

Defendant was a qualified defendant for judicial diversion purposes as, contrary to the State's contention, the judicial diversion statute did not conflict with T.C.A. § 39-17-432, of which defendant was convicted. It was within the legislature's discretion to determine which offenses it deemed ineligible for diversion, and it had not deemed the offense of possession of marijuana within 1,000 feet of a school zone ineligible. State v. Dycus, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 822 (Tenn. Crim. App. Sept. 25, 2013), rehearing denied, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 973 (Tenn. Crim. App. Nov. 12, 2013), aff'd in part, rev'd in part, 456 S.W.3d 918, 2015 Tenn. LEXIS 16 (Tenn. Jan. 23, 2015).

Mandatory minimum service requirement of the Drug-Free School Zone Act does not render offenses under that Act ineligible for judicial diversion. State v. Dycus, 456 S.W.3d 918, 2015 Tenn. LEXIS 16 (Tenn. Jan. 23, 2015).

Defendant was “qualified” for judicial diversion because the presentence report, entered into evidence at the sentencing hearing, indicated that defendant had no prior criminal convictions preceding those underlying the case. State v. Dycus, 456 S.W.3d 918, 2015 Tenn. LEXIS 16 (Tenn. Jan. 23, 2015).

Because the record did not contain a Tennessee Bureau of Investigation certification showing that defendant was qualified to receive judicial diversion, appellate consideration of the issue of whether defendant qualified for judicial diversion was precluded. However, consideration of judicial diversion was renewable upon remand if a Tennessee Bureau of Investigation certification showing that defendant was qualified to receive judicial diversion was filed with the court before or during an ordered new sentencing hearing. State v. Baysinger, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 801 (Tenn. Crim. App. Dec. 23, 2019).

5. Discretion of Trial Court.

Trial court did not abuse its discretion by denying defendant's request for judicial diversion because there was substantial evidence to support that decision, as the record showed that the trial court considered and weighed all of the required factors in arriving at its decision. State v. Finch, 465 S.W.3d 584, 2013 Tenn. Crim. App. LEXIS 1016 (Tenn. Crim. App. Nov. 22, 2013), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 548 (Tenn. June 24, 2014).

6. Grounds for Judicial Diversion.

In consideration of the issue of diversion, the trial court may consider, as a factor, that the circumstances surrounding the offense indicate that it was not impulsively committed; yet, the fact that the circumstances of the offense reflect a planned crime does not always justify the denial of diversion. State v. Anderson, 857 S.W.2d 571, 1992 Tenn. Crim. App. LEXIS 712 (Tenn. Crim. App. 1992).

7. Procedure for Revocation of Judicial Diversion.

Revocation warrant put defendant on notice of the charges against defendant, and, as demonstrated by defendant's simultaneous request to be relieved of the requirement that defendant attend sex offender treatment for the duration of defendant's probation, defendant undoubtedly knew in advance of the revocation hearing that defendant's untimely discharge from treatment was the basis for defendant's alleged probation violation. State v. Albright, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 407 (Tenn. Crim. App. May 16, 2017), aff'd, — S.W.3d —, 2018 Tenn. LEXIS 743 (Tenn. Dec. 11, 2018).

7.5. — Revocation Proper.

Revocation of defendant's deferred diversion and extension of defendant's probation to allow for defendant's completion of therapeutic treatment program was appropriate because defendant was sufficiently on notice that defendant had to participate in sexual offender treatment for the duration of probation or until satisfactory completion of treatment, the revocation warrant notified defendant of the charges, and defendant violated probation when defendant was discharged from the program for failing to meet program goals. State v. Albright, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 407 (Tenn. Crim. App. May 16, 2017), aff'd, — S.W.3d —, 2018 Tenn. LEXIS 743 (Tenn. Dec. 11, 2018).

8. Factors on the Record.

In denying defendant's request for diversion, the trial court did not err in its conclusion of defendant's failure to acknowledge wrongdoing after entering an Alford plea. State v. Brooks, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 132 (Tenn. Crim. App. Feb. 27, 2017).

In denying defendant's request for diversion, the trial court substantially complied with the procedures outlined in King where it could be inferred from the discussion in the record that it weighed defendant's unwillingness to take responsibility for her offense, the circumstances of the crime, her social history, and her mental health against the granting of diversion. State v. Brooks, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 132 (Tenn. Crim. App. Feb. 27, 2017).

Trial court erred in granting defendant's request for judicial diversion and placing him on probation for 18 months because the trial court did not consider the factors set out in the case law for granting judicial diversion or identify those specifically applicable to defendant's case; and it did not explain why the factors supporting the granting of diversion outweighed the factors supporting the denial of diversion. State v. Pate, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 128 (Tenn. Crim. App. Feb. 24, 2020).

9. Conditions of Diversion.

The imposition of a fine or contribution of a monetary amount, not exceeding the maximum statutory fine, is a reasonable condition of judicial diversion. State v. Johnson, 980 S.W.2d 410, 1998 Tenn. Crim. App. LEXIS 851 (Tenn. Crim. App. 1998).

9.5 Registration As A Sex Offender.

Trial court did not abuse its discretion by not ordering defendant to register as a sexual offender after it placed him on judicial diversion because any conviction was diverted until he completed his probationary period, and therefore he was not a convicted sex offender and was not required to register under the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004. State v. Townsend, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 277 (Tenn. Crim. App. Apr. 13, 2017).

Language of T.C.A. § 40-39-202 defining a conviction as including persons placed on judicial diversion was confusing, vague, and ambiguous and therefore principles of notice, legality, and due process supported the trial court's decision not to require defendant to register as a sex offender. State v. Townsend, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 277 (Tenn. Crim. App. Apr. 13, 2017).

10. Minimum Period of Probation.

The trial court did not have the authority to dismiss a case under judicial diversion until the defendant had successfully been on probation for, at least, the period of time required for the minimum sentence or the felony involved. State v. Porter, 885 S.W.2d 93, 1994 Tenn. Crim. App. LEXIS 531 (Tenn. Crim. App. 1994).

The minimum period of probation which must be imposed by law for a felony if judicial diversion is not granted constitutes the minimum period of probation allowable for judicial diversion for that felony offense. State v. Porter, 885 S.W.2d 93, 1994 Tenn. Crim. App. LEXIS 531 (Tenn. Crim. App. 1994).

11. Prior Diversions.

Evidence of prior diversions in other states may be considered in determining whether a defendant is a suitable candidate for judicial diversion. State v. Schindler, 986 S.W.2d 209, 1999 Tenn. LEXIS 66 (Tenn. 1999).

The judicial diversion statute does not preclude consideration of subsequent witness admissions or public records compiled after the expungement that reveal the fact of a prior grant of diversion. State v. Schindler, 986 S.W.2d 209, 1999 Tenn. LEXIS 66 (Tenn. 1999).

In a subsequent prosecution of a defendant for a separate crime, testimony and evidence of criminal acts preceding a prior arrest are admissible as evidence of social history even if expungement as to the prior arrest is later obtained. State v. Schindler, 986 S.W.2d 209, 1999 Tenn. LEXIS 66 (Tenn. 1999).

Even if the conviction has been expunged, expunction returns the person to the position occupied before such arrest or indictment or information, not to the position occupied prior to committing the offense. State v. Kelley, 34 S.W.3d 471, 2000 Tenn. Crim. App. LEXIS 166 (Tenn. Crim. App. 2000), review or rehearing denied, — S.W.3d —, 2000 Tenn. LEXIS 667 (Tenn. Nov. 20, 2000).

12. Subsequent Convictions.

The criminal acts underlying an expunged conviction may properly be considered to determine whether a defendant convicted of a later offense is a suitable candidate for alternative sentencing. State v. Lane, 3 S.W.3d 456, 1999 Tenn. LEXIS 430 (Tenn. 1999).

13. Impeachment of Witnesses.

14. Official Records.

Neither teacher's admission to the personnel director that he had committed sexual battery, nor information reported in a local newspaper detailing teacher's plea of guilty and the diversion agreement, constituted an “official record” within the definition of T.C.A. § 40-35-313(b); therefore, the expungement provisions of subsection (b) were not violated where school board terminated teacher based on this evidence. Canipe v. Memphis City Schs. Bd. of Educ., 27 S.W.3d 919, 2000 Tenn. LEXIS 548 (Tenn. 2000).

15. Judicial Diversion Properly Denied.

The trial court did not abuse its discretion in denying diversion. State v. Anderson, 857 S.W.2d 571, 1992 Tenn. Crim. App. LEXIS 712 (Tenn. Crim. App. 1992); State v. Bingham, 910 S.W.2d 448, 1995 Tenn. Crim. App. LEXIS 105 (Tenn. Crim. App. 1995), rehearing denied, — S.W.2d —, 1995 Tenn. Crim. App. LEXIS 407 (Tenn. Crim. App. May 15, 1995), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 592 (Tenn. Oct. 2, 1995), overruled in part, State v. Hooper, 29 S.W.3d 1, 2000 Tenn. LEXIS 535 (Tenn. 2000), overruled in part, State v. Walker, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 200 (Tenn. Crim. App. Mar. 16, 2017).

Based upon the circumstances of the offense, the defendant's past history of reprimands and suspension from the practice of law, the need for deterrence, and his continuous efforts to fabricate an alibi, the defendant was not entitled to an alternative sentence; moreover, the trial court did not abuse its discretion in refusing to grant him judicial diversion. State v. Parker, 932 S.W.2d 945, 1996 Tenn. Crim. App. LEXIS 167 (Tenn. Crim. App. 1996), overruled in part, State v. King, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 192 (Tenn. Crim. App. Mar. 4, 2013), overruled in part, State v. King, 432 S.W.3d 316, 2014 Tenn. LEXIS 351 (Tenn. Apr. 23, 2014).

In sentencing a defendant convicted of violating the Water Quality Control Act of 1977, compiled in T.C.A. § 69-3-101 et seq., the defendant's past disregard of the regulations controlling the disposal of contaminated liquid outweighed his positive social history, and his unwillingness to accept responsibility and his efforts to disguise his assets reflected unfavorably on his amenability to correction. Judicial diversion would not serve the public interest. State v. Electroplating, Inc., 990 S.W.2d 211, 1998 Tenn. Crim. App. LEXIS 618 (Tenn. Crim. App. 1998), rehearing denied, — S.W.2d —, 1998 Tenn. Crim. App. LEXIS 799 (Tenn. Crim. App. Aug. 7, 1998), overruled in part, State v. King, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 192 (Tenn. Crim. App. Mar. 4, 2013), overruled in part, State v. King, 432 S.W.3d 316, 2014 Tenn. LEXIS 351 (Tenn. Apr. 23, 2014).

Trial court properly denied defendant's request for judicial diversion, because defendant illegally distributed medication to a woman with whom he was romantically involved, he continued to commit the offenses for an extended period of time, he violated a position of private trust placed in him by his employer, and the trial court properly considered evidence of prior criminal conduct. State v. Robinson, 139 S.W.3d 661, 2004 Tenn. Crim. App. LEXIS 82 (Tenn. Crim. App. 2004).

Trial court's denial of judicial diversion under T.C.A. § 40-35-313 was supported by substantial evidence in the case of a county jail nurse who called in prescriptions for prisoners, billed the county, then took the pills herself or gave them to her husband to sell. The defendant had abused her position of public trust, abused substances, and defrauded the county for 18 months; additionally, the public interest and justice supported the denial of diversion. State v. Robinson, 328 S.W.3d 513, 2010 Tenn. Crim. App. LEXIS 268 (Tenn. Crim. App. Mar. 30, 2010).

Trial court did not abuse its discretion in denying defendant's petition for judicial diversion, T.C.A. § 40-35-313(a), after defendant pleaded guilty to, aggravated burglary because a co-defendant used a firearm during commission of the crime, defendant acted as the getaway driver for her co-defendants and had full knowledge of their intentions, and defendant did not take responsibility for her actions; the trial court imposed an in-range sentence. State v. King, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 192 (Tenn. Crim. App. Mar. 4, 2013), aff'd, 432 S.W.3d 316, 2014 Tenn. LEXIS 351 (Tenn. Apr. 23, 2014).

Trial court did not abuse its discretion in denying judicial diversion despite defendant's eligibility for it, as the court wanted to send a message to the community and defendant that leaving the scene of an accident involving death would not be tolerated and defendant's speeding violation five months after the incident showed a lack of respect for the rules of the road. State v. Sihapanya, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 968 (Tenn. Crim. App. Nov. 8, 2013), aff'd in part, rev'd in part, 516 S.W.3d 473, 2014 Tenn. LEXIS 366 (Tenn. Apr. 30, 2014).

Court properly denied defendant's request for judicial diversion because defendant's marijuana usage both prior to and subsequent to his conviction for possession with intent to sell marijuana supported the court's finding of criminal behavior. State v. Rutherford, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 1061 (Tenn. Crim. App. Dec. 3, 2013), overruled, State v. King, 432 S.W.3d 316, 2014 Tenn. LEXIS 351 (Tenn. Apr. 23, 2014).

It was no error to deny defendant judicial diversion because (1) defendant falsely denied knowing of co-defendants' plan to use defendant's car to commit a crime in which a gun was used, (2) judicial diversion would depreciate the crime's seriousness, and (3) defendant did not contact authorities defendant knew sought defendant and gave the authorities conflicting statements. State v. King, 432 S.W.3d 316, 2014 Tenn. LEXIS 351 (Tenn. Apr. 23, 2014).

Substantial evidence supported denying defendant judicial diversion because (1) relevant factors were weighed against each other and placed on the record, (2) the eight-month-old victim's serious bodily injuries while in defendant's care resulted in the victim's permanent disability, (3) defendant's plea agreement granted defendant great leniency, as defendant was allowed to plead guilty to a greatly reduced charge, and (4) defendant's sentence of two years' full probation was not formidable. State v. Tollison, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 144 (Tenn. Crim. App. Feb. 28, 2017).

Trial court did not err by denying defendant judicial diversion because it considered the Parker and Electroplating factors, it found that the offense involved a position of highest public trust, defendant was the chief of police, and it found that he was not a credible witness and that he lacked candor and was untruthful during his testimony. State v. Redden, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 193 (Tenn. Crim. App. Mar. 15, 2017).

Denial of judicial diversion was supported by a finding that defendant, who lacked remorse and lied to police, was not amenable to correction, defendant was living with a man on parole and had been fired from one job, and there was a need for deterrence. State v. Taylor, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 387 (Tenn. Crim. App. May 16, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 630 (Tenn. Sept. 21, 2017).

Trial court did not abuse its discretion by denying defendant's request for judicial diversion after he pleaded guilty to attempted aggravated robbery, attempted robbery, and theft of property because it properly considered the Parker and Electroplating factors and found that diversion was unacceptable due to defendant's criminal activity and his long history of social and mental instability. State v. Potter, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 714 (Tenn. Crim. App. Aug. 14, 2017).

In a case in which defendant pled guilty to aggravated burglary and theft of property valued at less than $500, the trial court did not err in denying defendant judicial diversion because he committed two thefts within months of each other and caused his victims to change their lives based on their fear and feeling of lack of security in their homes; defendant testified that his drug use was a factor when he committed the offenses and that he had a drug problem; and the trial court's decision was largely based on the seriousness of the offenses, to which it gave great weight in light of the victims' testimony and statements that they were unable to continue with their normal lives because of defendant's actions. State v. Thomas, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 760 (Tenn. Crim. App. Aug. 24, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 877 (Tenn. Dec. 6, 2017).

Trial court's denial of judicial diversion was supported by substantial evidence, including the seriousness and aggravated circumstances of the offenses, the fact that defendant was arrested for a second offense after being release following the first offense, making him not amenable to correction, and his past criminal behavior, drug use, and the deterrence factor. State v. Watkins, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 829 (Tenn. Crim. App. Sept. 8, 2017).

It was not an abuse of discretion to deny defendant judicial diversion because (1) improper evidence that did not show defendant's prior criminal conduct was not considered, and (2) the court properly considered defendant's crime and a concern that defendant would again point a gun at someone if granted diversion. State v. Howard, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 839 (Tenn. Crim. App. Sept. 13, 2017).

While defendant was a qualified defendant, the trial court did not abuse its discretion in denying judicial diversion after considering the circumstances of the offense, the interests of the public and defendant, and the deterrent factor of a conviction. State v. Miller, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 912 (Tenn. Crim. App. Sept. 13, 2017).

Trial court did not abuse its discretion by denying defendant judicial diversion for his criminally negligent homicide conviction because his amenability to correction as evidenced by his failure to see that he did anything wrong, the egregious circumstances of the offense of his driving a fully-loaded tractor trailer with very little sleep and under the influence, and the deterrence value to other similarly-situated individuals, as well as the interests of justice, substantially outweighed the factors in favor of judicial diversion. State v. Maupin, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 879 (Tenn. Crim. App. Sept. 28, 2017).

Trial court properly denied defendant's application for judicial diversion because the trial court the trial court considered the case-law factors, identified those that were relevant to the case, discussed at length the circumstances of the offense–especially the fact that the offense directly involved defendant's duties as a law enforcement officer, that he violated the public trust placed in him to handle money owed to the city, and that he did not have a specific need for the money–and placed its reasoning on the record, and defendant agreed to the six-year probationary sentence in the event the trial court denied diversion. State v. Hurt, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1038 (Tenn. Crim. App. Dec. 18, 2017).

There was substantial evidence to support the trial court's denial of judicial diversion for defendant's conviction of facilitation to possess with intent to sell marijuana and marijuana wax, as her facilitation of the transfer of drugs, given her role in the community as a drug and alcohol counselor, outweighed the factors favoring the grant of judicial diversion. State v. Hart, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 160 (Tenn. Crim. App. Mar. 1, 2018).

In a case in which defendant pled guilty to, inter alia, aggravated assault, holding a gun to the victim's chest in front of the victim's 15-year-old son, the trial court did not err in denying defendant's request for judicial diversion because the circumstances of the aggravated assault were very serious as it involved the use of a deadly weapon; the assault was not just traumatizing to the victim, but also to his family; and the trial court emphasized the need for deterrence. State v. Cupp, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 213 (Tenn. Crim. App. Mar. 21, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 445 (Tenn. July 18, 2018).

Trial court did not abuse its discretion by denying defendant's request for judicial diversion because it considered all of the Parker and Electroplating factors, the trial court placed great weight on the circumstances of the case, which showed that after a confrontation with a neighbor defendant fired a weapon into the neighbor's house, and the trial court concluded that the deterrent effect of the sentencing decision weighed against granting defendant judicial diversion, given the recent uptick in gun violence in the county. State v. Lee, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 225 (Tenn. Crim. App. Mar. 27, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 431 (Tenn. July 18, 2018).

Trial court did not err in denying defendant's request for judicial diversion because it found that defendant lacked credibility; defendant insisted under oath that he had not committed three offenses to which he had pleaded guilty, and his blatant lack of candor strongly indicated that he was not worthy of the largess of judicial diversion. State v. Collins, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 255 (Tenn. Crim. App. Apr. 5, 2018).

Because defendant failed to establish that he was statutorily qualified for judicial diversion, having a theft charge pending which led to questions about whether the Tennessee Bureau of Investigation would have certified defendant's eligibility for judicial diversion, the trial court did not err by failing to consider judicial diversion. State v. Smith, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 265 (Tenn. Crim. App. Apr. 6, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 346 (Tenn. June 6, 2018).

Trial court did not abuse its discretion by denying defendant's request for judicial diversion because it determined that the testimony and defendant's email correspondence showed that the steroid operation had been ongoing for a number of years and was a global operation, he went to great lengths to continue the operation by “laying low” when someone involved became entangled with law enforcement, he took efforts near the time of his arrest to expand the operation, and his home adjoined the property of a daycare facility. State v. Hartwell, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 307 (Tenn. Crim. App. Apr. 24, 2018).

In a voluntary manslaughter case, the trial court did not err in denying defendant's request for judicial diversion because, although defendant asserted that he was the perfect candidate, the record reflected that several factors weighed against defendant, including the seriousness of the offense, amenability to correction, and deterrence value; and those factors outweighed the other factors considered by the court. State v. Bell, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 539 (Tenn. Crim. App. July 19, 2018).

Trial court did not err by denying defendant's request for judicial diversion following his conviction of criminally negligent homicide because it extensively considered all of the Parker and Electroplating factors and explained on the record which factors it relied on. The record showed that defendant was traveling almost 90 miles per hour downhill, defendant's truck lifted off the ground high into the air as it collided with the victim's vehicle, an investigator testified that the accident would not have occurred except for defendant's speeding, and defendant failed to accept responsibility for his behavior and he lacked remorse, as he did not believe he was speeding at the time of the accident and he consistently focused on the victim's actions rather than his own. State v. Young, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 608 (Tenn. Crim. App. Aug. 13, 2018).

In a case in which defendant was convicted of aggravated perjury and sentenced to two years, six months to be served as six months in confinement and the remainder on supervised probation, the trial court did not abuse its discretion by denying judicial diversion because defendant was not amenable to correction, as she did not think that she had done anything wrong; a party's lying in court to gain a tactical advantage over another party, particularly in a child custody case, needed to be deterred; and the needs of the public and defendant would not be served by judicial diversion. State v. Riner, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 676 (Tenn. Crim. App. Sept. 4, 2018).

Trial court did not abuse its discretion by denying defendant, a police officer, judicial diversion for his convictions of evidence tampering and filing false claims because the record supported the trial court's conclusion that defendant's lack of candor and refusal to accept responsibility reflected poorly on his amenability to correction and that a need for general and specific deterrence existed in the community. State v. Millan, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 810 (Tenn. Crim. App. Nov. 1, 2018).

Defendant was not a qualified defendant for the purposes of judicial diversion after committing theft while the mayor of the city. State v. Loveless, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 905 (Tenn. Crim. App. Dec. 14, 2018).

Even though the trial court erred by failing to consider the relevant factors for determining eligibility for judicial diversion as enumerated in State v. Electroplating, the record supported its denial of judicial diversion because defendant committed an additional offense after the two theft of property offenses in this case, her repeated pattern of deceptive acts of theft from her employers weighed heavily against her being judicial diversion, she took more than $3,050 from her employer, she took advantage of her position of trust as a bookkeeper for two different companies, and she took advantage of the fact that one of the company's partners was sick and unable to oversee her work more closely. State v. Shaffer, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 50 (Tenn. Crim. App. Jan. 24, 2019).

Denial of judicial diversion for defendant's conviction of simple possession of marijuana was proper; although the risk and needs assessment determined that his risk of reoffending was low, the trial court was concerned with his untruthful trial testimony, finding that he perjured himself to avoid a Class A felony drug conviction, and the fact that he was found in possession of 324.49 pounds of marijuana in 329 one-pound, vacuum-sealed bags was not indicative of simple possession. State v. Hampton, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 159 (Tenn. Crim. App. Mar. 12, 2019).

Trial court properly exercised its discretion in denying judicial diversion because the court extensively considered all of the factors in the case law and explained on the record which factors it relied upon in denying the request. Furthermore, despite defendant's positive social history and family support, defendant's actions were indicative of a well-thought plan to systemically violate the law of Tennessee by a pattern of conduct in transporting, storing, and distributing marijuana, and a criminal conviction was more likely to deter others. State v. Kellar, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 211 (Tenn. Crim. App. Apr. 3, 2019).

Trial court did not err—when defendant pleaded guilty to soliciting sexual exploitation of a minor by exchanging nude photographs with a teenager—in denying judicial diversion because the court found that defendant was not amenable to correction and was at risk of committing another crime, the court was concerned by defendant's social history and the importance of deterring others, and the court questioned whether judicial diversion would have served the interest of the public as well as defendant. State v. Gantt, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 213 (Tenn. Crim. App. Apr. 4, 2019).

Trial court did not abuse its discretion by denying defendant's request for judicial diversion following his indictment for two counts of child abuse and neglect because the trial court carefully considered the Parker and Electroplating factors, and it determined that three factors weighed against defendant, namely his amenability to correction, his criminal history, and whether diversion would serve the ends of justice. State v. Long, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 225 (Tenn. Crim. App. Apr. 9, 2019).

Trial court did not err in denying defendant's request for judicial diversion given that the record supported the trial court's conclusion that defendant's spate of criminal activity and continued drug usage reflected poorly on his amenability to correction, plus he committed other crimes after the offense in this case and had multiple brushes with the law prior to the offense, albeit for minor infractions. State v. Kiser, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 340 (Tenn. Crim. App. June 6, 2019).

Presumption of reasonableness applied, and the court of criminal appeals would uphold the trial court's decision so long as there was any substantial evidence to support the decision because the trial court considered all of the factors and made a determination regarding whether each weighed in favor of or against judicial diversion; the trial court gave more weight to the factors weighing against judicial diversion than to those that weighed in favor of judicial diversion. State v. Ward, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 437 (Tenn. Crim. App. July 19, 2019).

Because the record was not void of any substantial evidence to support the denial of judicial diversion, the trial court did not abuse its discretion; the trial court relied on defendant's lack of amenability to correction, as evinced by his failure to accept responsibility, as well as deterrence in denying judicial diversion, and defendant's failure to acknowledge the criminality of his conduct reflected on his amenability to correction. State v. Ward, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 437 (Tenn. Crim. App. July 19, 2019).

Trial court did not abuse its discretion by denying defendant judicial diversion because it engaged in a very detailed and thorough examination of the Electroplating factors and it was within the trial court's discretion to conclude that the circumstances of the offense outweighed the factors in favor of diversion. As result of the school bus crash, during which defendant was the driver and used his cell phone, six children died and at least 22 suffered physical injuries ranging from bruises to severed limbs. State v. Walker, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 574 (Tenn. Crim. App. Sept. 17, 2019).

Trial court's error in noting the case was highly publicized did not warrant reversal because the trial court based its decision on the appropriate factors, the proof in the record, and the purposes and principles of sentencing; the trial court did not rely upon the publicity in denying defendant judicial diversion but denied it based upon the circumstances of the offense, defendant's failure to accept responsibility, her violation of public trust, and the interests of the public. State v. Hill, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 46 (Tenn. Crim. App. Jan. 29, 2020).

Record included substantial evidence to support the trial court's decision to deny judicial diversion because defendant had a long-term, sustained intent to violate the law; defendant's continued criminal behavior for a long period of time weighed heavily against the potential deterrence value of judicial diversion on defendant. State v. Hill, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 46 (Tenn. Crim. App. Jan. 29, 2020).

Substantial evidence supported the trial court's decision to deny judicial diversion because the record supported the trial court's finding that defendant violated public trust in committing the offense; defendant took an active role in soliciting donations and otherwise raising money from members of the general public, representing to the public that the funds would be used to benefit those in need, and then taking the money for her own personal use. State v. Hill, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 46 (Tenn. Crim. App. Jan. 29, 2020).

Trial court did not abuse its discretion in denying diversion based on an irrelevant factor because consideration of the profession in which defendant was engaged at the time of the crimes, teaching and coaching, was relevant to the circumstances of the crime, which was committed against one of his students on school grounds. State v. Lampkin, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 249 (Tenn. Crim. App. Apr. 15, 2020).

Substantial evidence supported the trial court's decision to deny judicial diversion when defendant was convicted of voluntary manslaughter because the circumstances of the offense, particularly the seriousness of defendant's conduct in escalating a family squabble to lethal violence, defendant's immediate disregard of the court's instructions to abstain from alcohol and illegal drugs, and the need to deter the public from engaging in similar behavior weighed strongly against granting diversion in the case. State v. Manis, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 375 (Tenn. Crim. App. May 27, 2020).

While defendant was qualified for judicial diversion following his guilty plea to aggravated assault and reckless endangerment, the trial court did not err in denying it based on the circumstances of the offense, defendant's prior criminal record, which included misdemeanor assault against the victim, his wife, and the need for deterrence. Defendant by his own admission became incensed when his wife refused his sexual advances and fled their marital home in a car. Defendant got into his vehicle, ran her car down and rammed it, and got out a baseball bat and beat the victim with the bat. State v. Tosie, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 417 (Tenn. Crim. App. June 17, 2020).

In a reckless homicide case in which defendant smothered her newborn baby by placing her hand over the baby's mouth and nose after she was born, the trial court did not err in denying defendant judicial diversion because the trial court was particularly concerned with defendant's lack of remorse, which the trial court obviously believed militated against defendant's potential for rehabilitation. State v. Brown, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 441 (Tenn. Crim. App. June 25, 2020).

After defendant entered a best interest plea to statutory rape, the trial court properly considered defendant's failure to accept responsibility for defendant's actions when determining that defendant's amenability to correction weighed against diversion. It also was within the trial court's discretion to conclude that the egregious nature of the offense―including posting nude photos of the victim on social media―and defendant's lack of amenability to correction outweighed the factors in favor of diversion. State v. Rankins, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 589 (Tenn. Crim. App. Sept. 1, 2020).

Trial court did not abuse its discretion in denying diversion after defendant pleaded guilty to facilitation of attempted especially aggravated robbery and possession of marijuana with intent to sell because the court concluded that defendant's lack of amenability to correction, the circumstances of the offense, defendant's social history, the deterrence value of the punishment, and public interests weighed against diversion. Defendant's charges resulted from the death of one participant and the hospitalization of others with gunshot wounds. State v. Thomas, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 590 (Tenn. Crim. App. Sept. 1, 2020).

Trial court did not abuse its discretion in denying judicial diversion after defendant pled guilty to aggravated statutory rape where it engaged in a very detailed and thorough examination of the Electroplating factors prior to denying diversion primarily on the basis of the circumstances of the offense, having been entrusted a member of the family and using that position to sexually abuse the victim, who suffered unfathomable mental anguish. State v. Gambrell, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 595 (Tenn. Crim. App. Sept. 2, 2020).

16. Judicial Diversion Improperly Denied.

Trial court properly denied defendant's request to be placed on judicial diversion because defendant repeatedly continued to commit marijuana-related offenses while she had pending charges at various stages in the criminal process; defendant's convictions were more than isolated instances of criminal behavior, but rather, they constituted a pattern of drug activity taking place over the course of a significant period of time and in spite of multiple arrests. State v. Dycus, 456 S.W.3d 918, 2015 Tenn. LEXIS 16 (Tenn. Jan. 23, 2015).

Trial court abused its discretion by denying defendant diversion because it improperly relied on evidence outside the record in reaching its decision. The trial judge's reliance on her own memory of media reports of defendant's assault and her remarks at a commission meeting was improper because the events were not subject to judicial notice under Tenn. R. Evid. 201, and relied on extraneous evidence and expertise it acknowledged she lacked in analyzing defendant's mental health. State v. Brooks, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 132 (Tenn. Crim. App. Feb. 27, 2017).

Factors weighed in favor of a granting defendant judicial diversion under T.C.A. § 40-35-313(a) in connection with her conviction of abuse of a corpse under T.C.A. § 39-17-312(a)(1); she had a miscarriage, there was no evidence that she caused the death of her infant, and defendant believed the infant was dead when she put it in the dumpster, plus the trial court's conducting independent research into facts outside the case was improper and nothing suggested that the defendant's actions significantly exceeded those required to satisfy the elements of the offense. State v. Lacy, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 375 (Tenn. Crim. App. May 12, 2017).

Inherent dangers of strangulation cannot form the basis of a finding that the circumstances of the offense are particularly exaggerated when the conviction offense is assault by strangulation; the legislature has seen fit to make aggravated assault by strangulation, even of one's romantic partner, an offense eligible for judicial diversion, and thus the fact of a defendant's having committed that offense cannot support a denial of judicial diversion. The record did not support the denial in this case. State v. Hatfield, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 4 (Tenn. Crim. App. Jan. 3, 2019).

17. Judicial Diversion Not Properly Considered.

Case had to be remanded for a new sentencing hearing for reconsideration of the trial court's denial of diversion because the record showed that the trial court relied heavily on improper factors and determinations that were not supported by the record, including the commission of statutory rape for which there was insufficient evidence and defendant's relationships with younger adult women. State v. Reno, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 627 (Tenn. Crim. App. July 18, 2017).

Trial court erred in denying defendant's request for judicial diversion because the trial court placed undue weight on the victim's death, did not review all of the relevant factors, failed to explain whether the factors that were reviewed weighed in favor of or against the granting of diversion, and how those factors were weighed in reaching the decision. State v. White, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 492 (Tenn. Crim. App. July 3, 2018).

Matter was remanded for a hearing to properly consider defendant's application for judicial diversion because the technical record on appeal did not include defendant's application for judicial diversion or the certificate of eligibility issued by the Tennessee Bureau of Investigation. State v. Norris, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 357 (Tenn. Crim. App. June 21, 2019).

Trial court erred when it denied defendant's request for judicial diversion because it failed to consider and weigh the applicable factors for determining the issue of judicial diversion; defendant's request for judicial diversion was somewhat ambiguous, but the trial court clearly understood the request and rather cursorily denied it, failing to expressly address all of the relevant factors. State v. Norris, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 357 (Tenn. Crim. App. June 21, 2019).

18. Appeal.

An appeal may be taken after entry of judgment when the trial court denies judicial diversion. State v. George, 830 S.W.2d 79, 1992 Tenn. Crim. App. LEXIS 215 (Tenn. Crim. App. 1992).

The rule provisions for a rightful appeal based upon a judgment of conviction do not authorize an appeal of a certified question where defendant entered a best interest guilty plea and was judicially diverted pursuant to T.C.A. § 40-35-313. State v. Norris, 47 S.W.3d 457, 2000 Tenn. Crim. App. LEXIS 437 (Tenn. Crim. App. 2000).

When a trial court placed on the record the court's considerations for the grant or denial of judicial diversion, the determination should be given a presumption of reasonableness on appeal and reviewed for an abuse of discretion, but, in the absence of appropriate considerations on the record, an appellate court should either remand for reconsideration or perform a de novo review. State v. King, 432 S.W.3d 316, 2014 Tenn. LEXIS 351 (Tenn. Apr. 23, 2014).

Trial court's denial of judicial diversion was reviewed de novo because the trial court did not consider applicable common law factors on the record. State v. King, 432 S.W.3d 316, 2014 Tenn. LEXIS 351 (Tenn. Apr. 23, 2014).

18.5. Appellate Review.

Trial court did not mention any of the applicable factors and focused exclusively on the circumstances of the offense, plus the trial court conducted independent research and weighed this research heavily in the decision to deny judicial diversion under T.C.A. § 40-35-313; thus, the ruling was not entitled to a presumption of reasonableness, and the abuse of discretion standard of review was not appropriate, and because the record was sufficient for de novo review, the court addressed the issue. State v. Lacy, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 375 (Tenn. Crim. App. May 12, 2017).

Trial court considered and weighed all applicable factors when justifying its decision on the record, and thus a presumption of reasonableness was applied on appeal to the denial of judicial diversion in this case. State v. Hatfield, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 4 (Tenn. Crim. App. Jan. 3, 2019).

Defendant, who was convicted of two counts of aggravated assault, failed to overcome the presumption of reasonableness afforded to the trial court's decision denying him judicial diversion. The record reflected that the trial court considered the Parker and Electroplating factors in rendering its decision and that it identified the specific factors applicable to the case before it. State v. Ailey, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 499 (Tenn. Crim. App. Aug. 19, 2019).

Because the trial court's heavy focus on defendant's failure to accept responsibility and her violation of public trust in reaching its decision regarding diversion satisfied the requirement that it place on the record its reasons for granting or denying judicial diversion, the presumption of reasonableness applied. State v. Hill, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 46 (Tenn. Crim. App. Jan. 29, 2020).

19. Post-conviction Relief Not Available.

20. Revocation of Judicial Diversion Proper.

21. Tolling.

40-35-314. Confinement in local jail or workhouse — Eligibility — Jurisdiction of sentencing court — Transfer for violation of jail rules — Participation in Work Program.

If confinement is directed, the court shall designate the place of confinement as a local jail or workhouse if required pursuant to § 40-35-104(b) or, if the sentence is eight (8) years or less and combined with periodic or split confinement not to exceed one (1) year, the court shall designate the place of confinement as a local jail or workhouse. If confinement in a local jail or workhouse is not mandated by § 40-35-104(b), § 40-35-306 or § 40-35-307, all convicted felons sentenced after November 1, 1989, to continuous confinement for a period of one (1) year or more shall be sentenced to the department of correction. After November 1, 1989, if a court sentences or has sentenced a defendant to a local jail or workhouse when the court was not authorized to do so by this chapter, it shall be deemed that the sentence was a sentence to the department, and the commissioner of correction shall have the authority to take the defendant into the custody of the department.
1. When imposing the sentence to the local jail or workhouse, the defendant is eligible for release classification status as provided in this chapter; however, the court may specify an earlier percentage of eligibility for all programs except parole. This percentage shall be expressed in one (1) of the following numeric percentages: zero percent (0%), ten percent (10%), twenty percent (20%), thirty percent (30%), forty percent (40%) or fifty percent (50%); provided, that the percentage shall be no higher than the release eligibility percentage under § 40-35-501.
2. In the event the judgment does not specify a percentage as provided in subdivision (b)(1), the defendant shall be eligible for the programs, except parole, six (6) months prior to release eligibility date under § 40-35-501.
The court shall retain full jurisdiction over the defendant during the term of the sentence and may reduce or modify the sentence or may place the defendant on probation supervision where otherwise eligible. Following the first application, applications to reduce or to alter the manner of the service of the sentence may be made at no less than two (2) month intervals.
If a defendant serving a felony sentence violates any condition or rule of the local jail or workhouse, the court shall have full authority to sentence the defendant to continuous confinement in the department of correction for a period not to exceed the remainder of the full sentence originally imposed.
If a defendant serving a felony sentence in a local jail or workhouse develops medical problems that the local jail or workhouse is not equipped to treat, the court shall have full authority to transfer the defendant to the department of correction. If transfer is ordered under this subsection (e), the court shall retain full jurisdiction over the defendant to reduce or modify the sentence.
Subsection (b) also applies to defendants sentenced to the department during the time the defendants are being housed in a local jail or workhouse awaiting transfer to the department as provided in § 40-35-212(d).
1. Any defendant convicted of a felony and sentenced to serve such sentence in a local jail or workhouse pursuant to this section, § 40-35-104(b), § 40-35-306, or § 40-35-307 shall be ordered, as a part of the sentence, to participate in any work program operated by the jail or workhouse in which the defendant is incarcerated.
2. The sheriff may opt the county out of the requirements of this subsection (g) if the sheriff's local jail or workhouse does not operate a work program or, if it does operate such a program, the increased number of inmates participating would exceed the sheriff's ability to provide security, transportation, or requested work projects.
3. The sheriff may excuse any one (1) or more individual inmates sentenced to the work program if, in the judgment of the sheriff:
  1. The inmate would pose a security or escape risk to the public or other inmates if allowed to participate in a work program outside the facility;
  2. The inmate has physical or mental health conditions that would preclude the inmate from successfully participating in a work program or would endanger others if allowed to participate; or
  3. The county cannot afford to provide the security or transportation for one (1) or more inmates sentenced to the work program pursuant to this section.
4. Any inmate who knowingly refuses to participate in a work program after being sentenced to do so pursuant to this section shall be considered to have violated a rule of the local jail or workhouse and the court may act upon such violation as provided in subsection (d).
5. The liability of any county whose local jail or workhouse operates a work program shall not be increased or changed solely because the work program uses inmates sentenced to the program pursuant to this subsection (g).

Acts 1989, ch. 591, § 6; 1991, ch. 374, § 3; 2013, ch. 168, § 1.

Sentencing Commission Comments.

This section contains a major alteration in prior law regarding the availability of local facilities for continuous incarceration purposes. Section 40-35-212 provides that, with certain exceptions, all felony sentences, where incarceration is directed, must be served in the department of correction. Under the philosophy of this chapter, local facilities should be reserved for incarceration of sentences of less than one year, with certain exceptions. Local jails and workhouses are not prisons and, in many cases, do not have adequate facilities for housing offenders for extended periods of time.

There are certain exceptions to this policy. First, as set forth in subsection (a), if the sentence is eight years or less and the defendant receives split or periodic confinement in conjunction with probation, then the defendant must be sentenced to a local jail or workhouse to serve this period of one year of less. Second, as provided in subsection (a), certain felons must be sentenced to local facilities if required pursuant to § 40-35-104(b), which is the “local option” incarceration provision. As noted in the comments to that section, counties may contract with the state to house felons. The third exception exists under § 40-35-211(2) for felony sentences which carry a minimum of one year and the judge imposes a sentence of less than one year; such sentences must be served in the local jail or workhouse.

If the defendant is sentenced to the local jail or workhouse as addressed above, the remaining provisions of this section deal with the administrative aspects of incarceration in a local facility. Subsection (b) follows prior law and permits the trial judge to specify an earlier eligibility date for all rehabilitative programs except for parole. Subsection (c) allows the court to modify the sentence at any time and to retain full jurisdiction for such purposes.

Subsection (d) provides that, even though a defendant may be sentenced to a local facility, if the defendant becomes disruptive, the judge has the authority to sentence such defendant to the department. This is an exception to those other statutory provisions which prohibit incarceration in the department under the local option provisions.

In some instances a felon sentenced to a local facility may require transfer to the department for medical reasons. In such cases, it would be unfair to the defendant to deprive the court of the authority to later modify his or her sentence which is usually prohibited for sentences to the department. Consequently, a prisoner transferred to the department under this subsection may apply to the court for modification of his or her sentence.

Subsection (f) permits the court to specify an earlier percentage of eligibility for rehabilitative programs, other than parole, for prisoners sentenced to the department but who are housed in local facilities awaiting transportation to the department. The trial court may modify the sentence of a defendant sentenced to the department and housed in the local facility awaiting transportation. See § 40-35-212(d).

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Acts 2013, ch. 168, § 2 provided that the act, which added subsection (g), shall apply to any person sentenced to a local jail or workhouse pursuant to this section, § 40-35-104(b), § 40-35-306 or § 40-35-307 on or after July 1, 2013.

Cross-References. Certain prisoners in local jails or workhouses, release on work-related programs, § 41-2-147.

Court to determine location and conditions of sentence, § 40-35-212.

Court to impose determinate sentences only, § 40-35-211.

Execution of judgment, title 40, ch. 23.

Probation, paroles, and pardons, title 40, ch. 28.

Release privileges, title 41, ch. 21, part 7.

Sentencing provisions applicable to persons committing crimes prior to July 1, 1982, title 40, ch. 20.

Work programs, title 41, ch. 22.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 32.82, 32.122, 32.132, 32.200, 32.256.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 45.

Attorney General Opinions. Applicability, OAG 90-66, 1990 Tenn. AG LEXIS 66 (6/12/90).

40-35-315. Jurisdiction of sentencing court to order work release.

In any case in which a defendant has been sentenced to a local jail or workhouse or is at a local jail or workhouse subject to § 40-35-212, and the administrative authority of the institution has not formulated a program for work release, the sentencing court shall have jurisdiction to order work release as a part of a sentence, either at the time of sentencing or as a part of any subsequent sentence modification, upon conditions to be set by the sentencing court. This section shall apply to convictions under § 55-10-401 after the mandatory minimum sentences have been served.
1. Notwithstanding subsection (a), the sentencing court shall not be authorized to order work release as part of the sentence of a person convicted of a sexual offense or violent sexual offense as defined in § 40-39-202.
2. As used in subdivision (b)(1), “work release” includes any assignment to a work crew in which a prisoner is permitted to go out into the community, whether supervised or unsupervised, but does not include a work assignment to TRICOR or any TRICOR facility.

Acts 1989, ch. 591, § 6; 1990, ch. 980, § 27; 2008, ch. 901, § 1.

Sentencing Commission Comments.

This section is new to Tennessee law and permits the judge to direct that the defendant be allowed to participate in work release. Judicially authorized work release is not permitted for convictions for driving under the influence until the mandatory minimum sentence has been served. However, see § 41-2-128 for the provisions of work release for certain DUI offenders in Shelby County. Work release is permitted only if the local facility has not already formulated a program for work release. See § 41-2-133. This exception does not conflict with § 40-35-307 dealing with periodic confinement, since that provision deals with intermittent confinement coupled with probation supervision.

Compiler's Notes. Former chapter 35, §§ 40-35-101 — 40-35-112, 40-35-201 — 40-35-214, 40-35-301 — 40-35-316, 40-35-401 — 40-35-403, 40-35-501 — 40-35-504 (Acts 1982, ch. 868, § 1; T.C.A., §§ 40-35-108, 40-43-101 — 40-43-104, 40-43-106, 40-43-107, 40-43-109 — 40-43-112, 40-43-201 — 40-43-205, 40-43-207 — 40-43-212, 40-43-214, 40-43-301 — 40-43-304, 40-43-306 — 40-43-309, 40-43-311 — 40-43-315, 40-43-401 — 40-43-403, 40-43-501 — 40-43-504), concerning the Tennessee Criminal Sentencing Reform Act of 1982, was repealed by Acts 1989, ch. 591, § 6.

Cross-References. Driving under the influence, § 55-10-401.

Misdemeanor sentencing, § 40-35-302.

Prisoner Rehabilitation Act, title 41, ch. 21, part 5.

Sentencing alternatives, § 40-35-104.

Textbooks. Tennessee Forms (Robinson, Ramsey and Harwell), No. 3-32-4.

40-35-316. Jurisdiction of sentencing court to grant furloughs.

In any case in which a defendant has been sentenced to a local jail or workhouse or is at a local jail or workhouse subject to § 40-35-212, the sentencing court shall have jurisdiction to grant furlough for any medical, penological, rehabilitative or humane reason, upon conditions to be set by the sentencing court. This section shall apply to convictions under § 55-10-401 after the mandatory minimum sentences have been served.
The sentencing court shall have no authority to grant a furlough to a defendant pursuant to the authority of subsection (a) for the purpose of allowing the defendant to work unless the defendant is held to and meets all of the eligibility and supervision requirements, testing standards and other criteria imposed by or pursuant to state law.

Acts 1989, ch. 591, § 6; 1990, ch. 980, § 28; 1997, ch. 514, § 1.

Sentencing Commission Comments.

This section provides that the judge may authorize a furlough for persons sentenced to the local jail or workhouse upon specific conditions set by the court. A furlough is not permitted for persons convicted of driving under the influence until they have served their mandatory minimum sentence.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Attorney General Opinions. Refusal to reinstate probation or grant furlough not appealable, OAG 98-0142, 1998 Tenn. AG LEXIS 142 (8/7/98).

40-35-317. Institutional disciplinary rules — Punishment for violations.

Nothing contained in § 40-35-302, § 40-35-306, § 40-35-307 or § 40-35-314 shall prevent the official having responsibility for the custody and safekeeping of the defendant, as an alternative to the judicial remedy provided in those sections, from duly promulgating and enforcing reasonable disciplinary rules and procedures that provide for appropriate punishments for violations of any condition or rule of the institution in which the defendant is incarcerated, such as increasing the amount of time the defendant must serve in confinement or by changing the conditions of the defendant's confinement, or both. Any increase in the amount of time to be served shall not exceed the full sentence originally imposed by the court.
Officials having responsibility for the custody and safekeeping of defendants may promulgate and enforce reasonable disciplinary rules and procedures requiring all able-bodied inmates to participate in work programs. The rules and procedures may provide appropriate punishments for inmates who refuse to work, including, but not limited to, increasing the amount of time the defendant must serve in confinement or changing the conditions of the defendant's confinement, or both. Any increase in the amount of time a defendant must serve for refusing to participate in a work program shall not exceed the sentence originally imposed by the court.

Acts 1989, ch. 591, § 6.

Sentencing Commission Comments.

This section permits the administrative authority of local facilities to promulgate reasonable disciplinary rules for persons sentenced to the local jails and workhouses.

Compiler's Notes. The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Cross-References. Punishment of inmates, title 41, ch. 21, part 4.

Regulation and care of inmates, title 41, ch. 21, part 2.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 32.122.

40-35-318. Institutional rehabilitation programs — Eligibility.

If a defendant is sentenced to confinement in a local jail or workhouse, the sheriff or other authority having jurisdiction of the institution shall be empowered and may place the defendant on the rehabilitative programs for which the defendant is eligible under rules and regulations adopted by the institution.
If a defendant is sentenced to confinement in an institution of the department of correction, the commissioner or the commissioner's designee having jurisdiction of the institution shall be empowered and may place the defendant on the rehabilitation program for which the defendant is eligible under the policies and procedures of the department.

Acts 1989, ch. 591, § 6.

Sentencing Commission Comments.

Subsection (a) permits the administrative authority for local jails and workhouses to place defendants in rehabilitation programs. Subsection (b) follows prior law and permits the department of correction to create policies and procedures for eligibility for persons sentenced to state facilities.

Compiler's Notes. The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Cross-References. Execution of judgment, title 40, ch. 23.

Prisoner Rehabilitation Act, title 41, ch. 21, part 5.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 32.122.

40-35-319. Place of confinement if not otherwise provided for — Finality of judgment.

If a defendant convicted of a felony does not receive another type of sentence authorized by this chapter or if a defendant convicted of a felony is either not granted or is ineligible for another sentence authorized by this chapter, the place of confinement shall be designated as the department of correction unless prohibited by other statutes.
Except as provided in § 40-35-212(d) or Rule 35(b) of the Tennessee Rules of Criminal Procedure, once the judgment becomes final in the trial court, the court shall have no jurisdiction or authority to change the sentence in any manner.

Acts 1989, ch. 591, § 6.

Sentencing Commission Comments.

If incarceration is ordered, felony sentences must be served in the department of correction. As noted in the comments to § 40-35-314, certain felony sentences, under local option contracts, must be served in local facilities. Further, felony sentences of one year and split confinement sentences must also be served in local jails or workhouses.

Subsection (b) provides that defendants sentenced to the department are eligible for sentence modification while awaiting transportation to the department pursuant to § 40-35-212(d). Sentencing modification may also occur within 120 days of sentence imposition as set forth in Rule 35(b) of the Tennessee Rules of Criminal Procedure.

Compiler's Notes. The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Cross-References. Execution of judgment, title 40, ch. 23.

Sentencing provisions applicable to persons committing crimes prior to July 1, 1982, title 40, ch. 20.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 38.202, 32.257.

40-35-320. Restitution to the state by adult defendant for confinement costs of juvenile involved in same or related criminal act.

Whenever an adult defendant is convicted of an offense arising from the same criminal act or conduct or a related criminal act or conduct that resulted in an adjudication of delinquency against a juvenile and resulted in the treatment and confinement of the juvenile in a department of correction facility for a period that is anticipated to be in excess of ninety (90) days, the sentencing court may order the adult defendant to make restitution to the state in an amount not greater than sixteen thousand five hundred fifty-eight dollars ($16,558) or an amount at least equal to the average daily cost of treating and confining a juvenile in this state multiplied by the average length of time a juvenile in this state is treated and confined by the department, whichever figure is greater. The average daily cost and average stay in the department shall be determined on an annual basis by the commissioner. If it is anticipated that the period of treatment and confinement will be less than ninety (90) days or that the juvenile may receive an alternative form of treatment, including, but not limited to, probation, the sentencing court may order the adult defendant to make restitution to the state in an amount at least equal to the anticipated cost of classifying, treating, confining or supervising the juvenile for the period of time the juvenile is anticipated to be within the custody and control of the department. If the court finds that because of the adult defendant's conduct, the juvenile's period of treatment and rehabilitation will be substantially longer than the average or will require special services such as drug or alcohol rehabilitation, the judge may order the adult defendant to make restitution in an amount not to exceed the estimated cost of providing the necessary treatment and rehabilitation services for the juvenile for the period of time that the services will be required. The estimated costs shall be based upon evidence presented at the sentencing hearing concerning the disposition of the juvenile, the anticipated length of the juvenile's rehabilitation and any special treatment services the juvenile may require.
Before determining whether an order of restitution as authorized by this section is appropriate and the amount of the order if one is appropriate, the sentencing court shall conduct a separate hearing on the issues at which both the adult defendant and the state shall be allowed to be heard and present evidence. The hearing may be held in conjunction with or at the same time as the adult defendant's regular sentencing hearing.
Any order of restitution entered pursuant to this section is in addition to any other fine or penalty imposed by the court for the offense for which the adult defendant was convicted.
Restitution ordered pursuant to this section shall be paid to the clerk of the sentencing court who shall remit the money to the state treasurer for deposit into the state general fund. Funds collected pursuant to this section shall be used to improve the department of children's services' treatment and rehabilitation services. The clerk is allowed to retain one percent (1%) of all funds collected pursuant to this section for administrative costs.
The state may collect a restitution order entered pursuant to this section in the same manner as a judgment in a civil action.

Acts 1989, ch. 591, § 6.

40-35-321. Collection of biological specimens for DNA analysis — Persons convicted of certain offenses — Condition of release from imprisonment.

As used in this section, unless the context otherwise requires, “DNA analysis” means the process through which deoxyribonucleic acid (DNA) in a human biological specimen is analyzed and compared with DNA from another biological specimen for identification purposes.
When a court sentences a person convicted of violating or attempting to violate § 39-13-502, § 39-13-503, § 39-13-504, § 39-13-505, § 39-13-522, § 39-13-531 or § 39-15-302 or when a juvenile court adjudicates a person to be a delinquent child for violating or attempting to violate § 39-13-502, § 39-13-503, § 39-13-504, § 39-13-505, § 39-13-522, § 39-13-531 or § 39-15-302, it shall order the person to provide a biological specimen for the purpose of DNA analysis as defined in subsection (a). If the person is not incarcerated at the time of sentencing, the order shall require the person to report to the probation division of the department charged by law with the supervision of probationers, which shall gather the specimen. If a probation officer is not available to gather the specimen, the court may designate a person to do so. The cost of taking, processing and storing the specimen shall be paid by the defendant and shall be collected by the probation officer in the same manner as other fees. If the person is incarcerated at the time of sentencing, the order shall require the chief administrative officer of the institution of incarceration to designate a qualified person to gather the specimen. The biological specimen shall be forwarded by the approved agency or entity collecting the specimen to the Tennessee bureau of investigation, which shall maintain it as provided in § 38-6-113. The court shall make the providing of the specimen a condition of probation or community correction if either is granted.
If a person convicted of violating or attempting to violate § 39-13-502, § 39-13-503, § 39-13-504, § 39-13-505, § 39-13-522 or § 39-15-302 and committed to the custody of the commissioner of correction for a term of imprisonment has not provided a biological specimen for the purpose of DNA analysis as defined in subsection (a), the commissioner or the chief administrative officer of a local jail shall order the person to provide a biological specimen for the purpose of DNA analysis before completion of the person's term of imprisonment. The biological specimen shall be forwarded by the approved agency or entity collecting the specimen to the Tennessee bureau of investigation which shall maintain it as provided in § 38-6-113. No person shall be released on parole or otherwise unless and until the person has provided the specimen required by this subsection (c).
1. When a court sentences a person convicted of any felony offense committed on or after July 1, 1998, or any misdemeanor offense, the conviction for which requires the defendant to register as a sexual offender pursuant to chapter 39, part 2 of this title, on or after July 1, 2007, it shall order the person to provide a biological specimen for the purpose of DNA analysis as defined in subsection (a). If the person is not incarcerated at the time of sentencing, the order shall require the person to report to the probation division of the department charged by law with the supervision of probationers, which shall gather the specimen. If a probation officer is not available to gather the specimen, the court may designate a person to do so. The cost of taking, processing and storing the specimen shall be paid by the defendant and shall be collected by the probation officer in the same manner as other fees. If the person is incarcerated at the time of sentencing, the order shall require the chief administrative officer of the institution of incarceration to designate a qualified person to gather the specimen. The biological specimen shall be forwarded by the approved agency or entity collecting the specimen to the Tennessee bureau of investigation, which shall maintain it as provided in § 38-6-113. The court shall make the providing of the specimen a condition of probation or community correction if either is granted.
2. If a person convicted of any felony offense or any applicable misdemeanor offense and committed to the custody of the commissioner of correction for a term of imprisonment or sentenced to a period of confinement in a county jail or workhouse has not provided a biological specimen for the purpose of DNA analysis as defined in subsection (a), the commissioner or the chief administrative officer of a local jail may order the person to provide a biological specimen for the purpose of DNA analysis before completion of the person's term of imprisonment. The biological specimen shall be forwarded by the approved agency or entity collecting the specimen to the Tennessee bureau of investigation, which shall maintain it as provided in § 38-6-113.
1. When a person is arrested on or after January 1, 2008, for the commission of a violent felony as defined in subdivision (e)(3), the person shall have a biological specimen taken for the purpose of DNA analysis to determine identification characteristics specific to the person as defined in subsection (a). After a determination by a magistrate or a grand jury that probable cause exists for the arrest, but prior to the person's release from custody, the arresting authority shall take the sample using a buccal swab collection kit for DNA testing. The biological specimen shall be collected by the arresting authority in accordance with the uniform procedures established by the Tennessee bureau of investigation, pursuant to § 38-6-113 and shall be forwarded by the arresting authority to the Tennessee bureau of investigation, which shall maintain the sample as provided in § 38-6-113. The court or magistrate shall make the provision of a specimen a condition of the person's release on bond or recognizance if bond or recognizance is granted.
2. The clerk of the court in which the charges against a person described in subdivision (e)(1) are disposed of shall notify the Tennessee bureau of investigation of final disposition of the criminal proceedings. If the charge for which the sample was taken is dismissed or the defendant is acquitted at trial, then the bureau shall destroy the sample and all records of the sample; provided, that there is no other pending qualifying warrant or capias for an arrest or felony conviction that would otherwise require that the sample remain in the data bank.
3. As used in this subsection (e), “violent felony” means:
  1. First or second degree murder;
  2. Aggravated kidnapping or especially aggravated kidnapping;
  3. Aggravated assault;
  4. Aggravated child abuse;
  5. Robbery, aggravated robbery or especially aggravated robbery;
  6. Aggravated burglary or especially aggravated burglary;
  7. Carjacking;
  8. Sexual battery, sexual battery by an authority figure or aggravated sexual battery;
  9. Statutory rape by an authority figure or aggravated statutory rape;
  10. Rape, aggravated rape, rape of a child or aggravated rape of a child;
  11. Aggravated arson;
  12. Attempt, under § 39-12-101, to commit any of the offenses enumerated in this subdivision (e)(3);
  13. Solicitation, under § 39-12-102, to commit any of the offenses enumerated in this subdivision (e)(3);
  14. Conspiracy, under § 39-12-103, to commit any of the offenses enumerated in this subdivision (e)(3);
  15. Criminal responsibility, under § 39-11-402(2), for any of the offenses enumerated in this subdivision (e)(3);
  16. Facilitating the commission, under § 39-11-403, of any of the offenses enumerated in this subdivision (e)(3);
  17. Being an accessory after the fact, under § 39-11-411, to any of the offenses enumerated in this subdivision (e)(3);
  18. Aggravated vehicular homicide;
  19. Criminally negligent homicide;
  20. Reckless homicide;
  21. Vehicular homicide; or
  22. Voluntary manslaughter.

Acts 1991, ch. 480, § 2; 1995, ch. 11, §§ 1, 2; 1995, ch. 131, §§ 2, 3; 1995, ch. 382, § 1; 1998, ch. 1028, §§ 1, 2; 2007, ch. 77, §§ 1, 2; 2007, ch. 225, § 2; 2010, ch. 964, § 2; 2012, ch. 965, § 1; 2012, ch. 996, §§ 1, 2.

Compiler's Notes. Acts 2007, ch. 225, § 1 provided that the act, which added subsection (e), shall be known and may be cited as the “Johnia Berry Act of 2007.”

Acts 2007, ch. 225, § 4 provided that the DNA office within the Knoxville regional crime laboratory of the Tennessee bureau of investigation shall be named and known as the “Johnia Berry DNA Office.”

Acts 2007, ch. 225, § 5 provided that the act, which added subsection (e), shall apply to any person arrested for an applicable offense on or after January 1, 2008.

Cross-References. DNA analysis, admissibility in evidence, § 24-7-118.

Post-conviction DNA Analysis Act of 2001, title 40, ch. 30, part 4.

Attorney General Opinions. Duty to destroy DNA samples and records of samples. OAG 10-117, 2010 Tenn. AG LEXIS 123 (12/21/10).

The plain language of T.C.A. §§ 40-35-321(b) and (d)(1), as amended by Chapter 996, makes those provisions applicable to persons who are not incarcerated at the time of sentencing and who provide DNA specimens on or after May 10, 2012, the effective date of the amendments. The application of the statute as amended to such persons convicted before the effective date of the amendments is not prohibited by either the Tennessee or the United States Constitution. OAG 13-06, 2013 Tenn. AG LEXIS 6 (1/17/13).

NOTES TO DECISIONS

1. Collection and Maintenance of DNA Samples.

T.C.A. § 40-35-321 was constitutional as applied to defendant, and therefore the trial court did not err by denying his motion to suppress, because the blood draw and its subsequent analysis were reasonable under all of the circumstances, which included the facts that, inter alia: (1) The gravity of the public concern served by the searches was significant, given that DNA more accurately identified those who committed and were convicted of felonies; and (2) § 40-35-321 clearly and unambiguously specified who was subject to the searches. State v. Scarborough, 201 S.W.3d 607, 2006 Tenn. LEXIS 758 (Tenn. 2006).

Taking of a blood sample from a convicted and incarcerated felon pursuant to T.C.A. § 40-35-321 is a search, but it does not violate the U.S. Const. amend. 4 or Tenn. Const. art. I, § 7 when it is reasonable under the totality of the circumstances. State v. Scarborough, 201 S.W.3d 607, 2006 Tenn. LEXIS 758 (Tenn. 2006).

Defendant validly consented the taking of his blood and subsequent DNA testing while incarcerated because, inter alia: (1) Defendant was verbally informed that he could refuse to consent to the blood draw; (2) Defendant was provided with a written form on which he could indicate his consent or refusal to consent; and (3) Defendant admitted that he was aware that T.C.A. § 40-35-321 did not apply to him as he had not been convicted of any of the predicate offenses. State v. Scarborough, 201 S.W.3d 607, 2006 Tenn. LEXIS 758 (Tenn. 2006).

Where defendant submitted to blood draw and signed a consent form while imprisoned on an attempted theft charge, and a report indicated a DNA match between defendant and DNA evidence collected in an aggravated rape case, trial court did not err by denying his motion to suppress; warrantless taking of defendant's blood pursuant to T.C.A. § 40-35-321 while in custody for an unrelated offense did not violate his fourth amendment rights against search and seizures. State v. Cannon, 254 S.W.3d 287, 2008 Tenn. LEXIS 278 (Tenn. Apr. 29, 2008).

40-35-322. Preservation of evidence in death penalty cases.

For purposes of this section:
1. “Biological evidence” is any identifiable biological material that was collected as part of a criminal investigation or that may reasonably be used to incriminate or exculpate a person charged with a criminal offense;
2. “Biological evidence” includes the contents of a sexual assault examination kit or any item that contains blood, semen, hair, saliva, skin tissue, fingernail scrapings, bone, bodily fluids, or other identifiable biological material, and applies whether the material is catalogued separately or is present on other evidence collected; and
3. “Biological evidence” does not include perishable liquid or tissue specimens collected for toxicological analysis.
All biological evidence collected for a criminal offense or offenses in which one (1) or more of the defendants received a sentence of death based upon the same criminal acts, whether the defendants were tried separately or together, shall be preserved until all defendants receiving a death sentence based on the same conduct are executed, otherwise die, or all related charges for which the defendants were convicted are dismissed.
Biological evidence required to be preserved by this section shall be preserved as follows:
1. By the investigating law enforcement agency or agencies for biological evidence that was collected for the case but never introduced at a trial; and
2. By the clerk of the court in which any biological evidence was introduced at the defendant's trial.
If the origin of a biological sample is well documented through photographs or case files, and the sample was taken from a larger piece of evidence, only the documented biological sample is required to be preserved.
This section shall apply to:
1. All applicable biological evidence that is collected on or after April 27, 2016; and
2. All applicable biological evidence that was collected prior to April 27, 2016, and is in the custody of, and being preserved by, a court clerk or law enforcement agency or agencies.

Acts 2016, ch. 988, § 1.

Cross-References. Execution of judgment, § 40-23-101.

Official misconduct, § 39-16-402.

40-35-323. Grants to fund reentry programs — Grant proposals.

The department of correction shall make four (4) grants in the amount of two hundred fifty thousand dollars ($250,000) each to local county sheriff or probation departments to fund reentry programs that reduce recidivism and probation revocations. The department shall set the guidelines for the request for grant proposals. Priority shall be given to grant proposals that include one (1) or more of the following characteristics:
1. Programs that seek a targeted reduction in recidivism or probation revocations;
2. Programs that identify potential participants by use of a validated risk assessment tool designed for its intended use and target the most intensive supervision and treatment for people at a high risk of reoffending;
3. Programs that use evidence-based rehabilitative services designed to address primarily criminogenic needs;
4. Programs that must be evaluated annually for effectiveness using a nationally recognized assessment, such as the correctional program checklist and correctional program assessment inventory; and
5. Programs that advance interventions that are tailored to fit the learning styles, motivation, and strengths of individual participants.
No more than seventy-five percent (75%) of available grant funds shall be provided upfront to the recipient to continue or establish a program that meets the requirements of this section. The remaining amount of grant funds shall be awarded only if the recipient meets clearly measurable outcomes aimed at reducing recidivism or probation revocations as agreed upon between the department and the grant recipient.
1. For county sheriff department recipients, the measureable outcomes shall include a percentage reduction in recidivism among those who are incarcerated in the county jail at the time the grant is awarded.
2. For the purposes of this section, “recidivism” means the percentage of convicted misdemeanants, locally-sentenced felons, or state-sentenced felons, who are incarcerated in a state or local facility within three (3) years of the year in which such persons were released from incarceration from the recipients' facility.
3. The baseline for this rate shall be an average of the three (3) fiscal years immediately preceding the fiscal year in which the grant is awarded.
1. For county probation department recipients, the measureable outcomes shall include a percentage reduction in probation revocations among those persons under the probation department's supervision at the time the grant is awarded.
2. For purposes of this subsection, “percentage reduction in probation revocations” means the percentage of people on supervised probation in the county who are subsequently admitted to the local jail or state department of correction after revocation of their supervision.
3. The baseline for this rate shall be an average of the three (3) fiscal years immediately preceding the fiscal year in which the grant is awarded.
The monies appropriated to fund this section shall be used to supplement, not supplant, any other state or county appropriation for the recipient.
No later than December 31 of each year, the department of correction shall report to the speaker of the house of representatives and speaker of the senate the grants awarded pursuant to this section and the results of the measurable outcomes agreed upon between the department and recipients for the previous fiscal year. The report shall be made available publicly on the department of correction's website.
For the purposes of this section, “probation department” does not mean the department of correction probation department or its offices.
For the purposes of this section, an eligible program participant is a convicted misdemeanant, locally-sentenced felon, or state-sentenced felon who will be incarcerated for such a period of time that will allow for completion of the program before release from incarceration or expiration of sentence; provided, that the offender must not be transported to serve their sentence in a state prison in the custody of the department of correction after successful completion of the program.

Acts 2018, ch. 1051, § 1; 2019, ch. 249, §§ 1, 2.

Compiler's Notes. For the Preamble to the act concerning probation reentry programs, see Acts 2018, ch. 1051.

Amendments. The 2019 amendment, in (c)(2), substituted “For the purposes” for “For purposes”, inserted “, locally-sentenced felons, or state-sentenced felons,”, substituted “a state or local” for “any state or local”, and substituted “such persons were” for “they were”; and added (h).

Effective Dates. Acts 2019, ch. 249, § 3. July 1, 2019.

Part 4
Appeal of Sentence

40-35-401. Appeal of sentence by defendant — Time for filing — Grounds — Determination — Standard.

The defendant in a criminal case may appeal from the length, range or the manner of service of the sentence imposed by the sentencing court. The defendant may also appeal the imposition of consecutive sentences. An appeal pursuant to this section shall be taken within the same time and in the same manner as other appeals in criminal cases. If there is an appeal of the conviction, the appeal of the sentence shall be taken at the same time. There is no appellate review of the sentence in a postconviction or habeas corpus proceeding.
An appeal from a sentence may be on one (1) or more of the following grounds:
1. The sentence was not imposed in accordance with this chapter;
2. The sentence is excessive under the sentencing considerations set out in §§ 40-35-103 and 40-35-210; or
3. The sentence is inconsistent with the purposes of sentencing set out in §§ 40-35-102 and 40-35-103.
If a sentence is appealed, the appellate court may:
1. Dismiss the appeal;
2. Affirm, reduce, vacate or set aside the sentence imposed;
3. Remand the case or direct the entry of an appropriate sentence or order; or
4. Direct any further proceedings appropriate or required under the circumstances.
When reviewing sentencing issues raised pursuant to subsection (a), including the granting or denial of probation and the length of sentence, the appellate court shall conduct a de novo review on the record of the issues. The review shall be conducted with a presumption that the determinations made by the court from which the appeal is taken are correct.

Acts 1989, ch. 591, § 6; 2005, ch. 353, § 8.

Sentencing Commission Comments.

This section permits appellate review of all sentencing determinations. The primary change from prior law is that appellate review, while still de novo, must be conducted with “a presumption that the determinations made by the court from which the appeal is taken are correct.” Therefore, the burden of showing that the sentence is improper is upon the appealing party.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Acts 2005, ch. 353, § 18 provided that the act, which amended subsection (b), shall apply to sentencing for criminal offenses committed on or after June 7, 2005. Offenses committed prior to June 7, 2005, shall be governed by prior law, which shall apply in all respects. However, for defendants who are sentenced after June 7, 2005, for offenses committed on or after July 1, 1982, the defendant may elect to be sentenced under the provisions of the act by executing a waiver of such defendant’s ex post facto protections. Upon executing such a waiver, all provisions of the act shall apply to the defendant.

Acts 2005, ch. 353, § 19 provided that the act, which amended subsection (b), shall have no application to sentencing for persons convicted of murder in the first degree, which shall be governed by the provisions of §§ 39-13-202 — 39-13-208.

Cross-References. Appeals, T.R.A.P. 3, 4, title 40, ch. 26.

Classification of offenses, § 40-35-110.

Enhancement factors, § 40-35-114.

Mitigating factors, § 40-35-113.

Penalties and misdemeanors, § 40-35-111.

Post-conviction procedure, title 40, ch. 30.

Sentence ranges, § 40-35-112.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 12.41, 22.134, 32.80, 32.163, 32.221, 32.272.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 3-37-1.

Law Reviews.

Judicial Discretion Under the New Tennessee Criminal Sentencing Reform Act of 1982 (Thomas A. Wiseman, Jr.), 18 No. 4 Tenn. B.J. 13 (1982).

NOTES TO DECISIONS

1. Constitutionality.

There is no authority for the position that legislative changes in the standard of review by appellate courts are ex post facto law. This chapter does not increase the punishment beyond that provided when the offense was created, nor does it meet any other category of ex post facto law as found in Davis v. Beeler, 185 Tenn. 638, 207 S.W.2d 343 (1947). State v. Ashby, 823 S.W.2d 166, 1991 Tenn. LEXIS 489 (Tenn. 1991).

2. Applicability.

State's reliance on T.C.A. § 40-35-401(c)(4) was misplaced and the statute did not restrict the jurisdiction of the court of criminal appeals in the manner suggested; § 40-35-401 simply limited the relief that the appellate court may offer when reviewing appeals of sentences and did not prevent the court from considering issues besides those related to sentencing, and the provision applied equally to situations in which the defendant pleaded guilty and appealed his sentences and to those in which he pleaded not guilty, was found guilty, and appealed the sentence and conviction. State v. Yoreck, 133 S.W.3d 606, 2004 Tenn. LEXIS 330 (Tenn. 2004).

3. Burden of Proof.

Burden is upon the appealing party to demonstrate that a sentence is improper. State v. Cooper, 336 S.W.3d 522, 2011 Tenn. LEXIS 191 (Tenn. Mar. 4, 2011).

Party appealing a sentence has the burden of demonstrating its impropriety. State v. Sims, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 814 (Tenn. Crim. App. Sept. 5, 2017).

Defendant bears the burden of establishing that defendant's sentence is improper. State v. Odum, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 973 (Tenn. Crim. App. Nov. 20, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 112 (Tenn. Feb. 15, 2018).

4. Proper Sentencing Considerations.

5. Review.

The burden of showing that a sentence is improper is upon the defendant; however, the presumption of correctness which accompanies the trial court's action is conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 1991 Tenn. LEXIS 489 (Tenn. 1991); State v. Butler, 900 S.W.2d 305, 1994 Tenn. Crim. App. LEXIS 585 (Tenn. Crim. App. 1994).

State, as appellee, may raise a sentencing issue even though defendant was the only party to file a notice of appeal; however, the right to raise such issue without filing a notice of appeal does not end the state's obligation to delineate the issue as a separate issue for review, to submit supporting argument, and to identify the appropriate relief. State v. Hayes, 894 S.W.2d 298, 1994 Tenn. Crim. App. LEXIS 643 (Tenn. Crim. App. 1994).

Where the trial judge failed to state enhancement and mitigating factors upon which he relied before sentencing and failed to accord defendant the presumption that she was entitled to a nonincarcerative sentence, the sentencing decision was not presumed to be correct and was reviewed de novo. State v. Grissom, 956 S.W.2d 514, 1997 Tenn. Crim. App. LEXIS 676 (Tenn. Crim. App. 1997).

6. —Standard of Review.

In contrast to the de novo standard of review applicable to sentencing appeals perfected under T.C.A. § 40-35-401, appellate review of Tenn. R. Crim. P. Rule 35(b) rulings is governed by the “abuse of discretion” standard. State v. Irick, 861 S.W.2d 375, 1993 Tenn. Crim. App. LEXIS 322 (Tenn. Crim. App. 1993), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 299 (Tenn. Aug. 2, 1993).

Review of a finding that the defendant was a “dangerous offender,” and an order that each of the two 10-year sentences be consecutive to each other and to the sentence of life imprisonment, is de novo, with a presumption that the determinations of the trial judge are correct. State v. Adams, 859 S.W.2d 359, 1992 Tenn. Crim. App. LEXIS 829 (Tenn. Crim. App. 1992).

Where the trial court failed to state the mitigating and enhancement factors relied upon, there was no presumption of correctness on appeal and review was de novo upon the record. State v. Jones, 883 S.W.2d 597, 1994 Tenn. LEXIS 259 (Tenn. 1994).

The presumption of correctness does not apply to the legal conclusions reached by the trial court in sentencing the accused or to the determinations made by the trial court which are predicated upon uncontroverted facts. State v. Smith, 891 S.W.2d 922, 1994 Tenn. Crim. App. LEXIS 455 (Tenn. Crim. App. 1994).

The presumption that determinations made by the trial court are correct is conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances. State v. Smith, 898 S.W.2d 742, 1994 Tenn. Crim. App. LEXIS 685 (Tenn. Crim. App. 1994).

The presumption does not apply to the legal conclusions reached by the trial court in sentencing the accused. State v. Smith, 898 S.W.2d 742, 1994 Tenn. Crim. App. LEXIS 685 (Tenn. Crim. App. 1994).

The presumption does not apply when the determinations made by the trial court are predicated upon uncontroverted facts or a document, such as a presentence report or medical report. State v. Smith, 898 S.W.2d 742, 1994 Tenn. Crim. App. LEXIS 685 (Tenn. Crim. App. 1994).

Where the record failed to show that the lower court considered the sentencing principles and all relevant facts and circumstances, the standard of review was de novo without a presumption of correctness. State v. Connors, 924 S.W.2d 362, 1996 Tenn. Crim. App. LEXIS 21 (Tenn. Crim. App. 1996), overruled, State v. Troutman, 979 S.W.2d 271, 1998 Tenn. LEXIS 665 (Tenn. 1998), overruled in part, State v. Troutman, 979 S.W.2d 271, 1998 Tenn. LEXIS 665 (Tenn. 1998).

Where there is a complaint of improper sentencing, court must conduct de novo review with presumption of correctness, and burden of proof lies with complaining party. State v. Gray, 960 S.W.2d 598, 1997 Tenn. Crim. App. LEXIS 544 (Tenn. Crim. App. 1997).

A review to determine whether sufficient aggravating circumstances exist under T.C.A. § 40-35-115(b)(5) (regarding sexual abuse of a minor) is governed by T.C.A. § 40-35-401(d). State v. Lane, 3 S.W.3d 456, 1999 Tenn. LEXIS 430 (Tenn. 1999).

When there is a challenge to the length, range or manner of service of a sentence, it is the duty of the Tennessee court of criminal appeals to conduct a de novo review with a presumption that the determinations made by the trial court are correct; this presumption is conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances. State v. Kilpatrick, 52 S.W.3d 81, 2000 Tenn. Crim. App. LEXIS 497 (Tenn. Crim. App. 2000).

Review of the evidence from the “law of the case” perspective by the Tennessee court of criminal appeals is fundamentally different than appellate review when there is a challenge to the length, range or manner of service of a sentence; in the latter situation, the court conducts a de novo review of the record with a presumption that the determinations made by the trial court are correct, provided that there is an affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances. State v. Williams, 52 S.W.3d 109, 2001 Tenn. Crim. App. LEXIS 20 (Tenn. Crim. App. 2001).

Where defendant appealed from a four-year sentence imposed for violation of an order under the Motor Vehicle Habitual Offenders Act, T.C.A. 55-10-601 et seq., under T.C.A. § 40-35-401(d) the sentence was reviewed de novo. State v. Martin, 146 S.W.3d 64, 2004 Tenn. Crim. App. LEXIS 62 (Tenn. Crim. App. 2004).

When a defendant challenges the length, range, or manner of service of a sentence, it is the duty of an appellate court to conduct a de novo review on the record with a presumption that the determinations made by the court from which the appeal is taken are correct. T.C.A. § 40-35-401(d); however, this presumption is conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances. If review reflects that the trial court failed to consider the sentencing principles and all relevant facts and circumstances, then review of the challenged sentence is purely de novo without the presumption of correctness. State v. Moore, 309 S.W.3d 512, 2009 Tenn. Crim. App. LEXIS 645 (Tenn. Crim. App. Aug. 10, 2009), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 191 (Tenn. Feb. 22, 2010), cert. denied, Moore v. Tennessee, 562 U.S. 919, 131 S. Ct. 290, 178 L. Ed. 2d 190, 2010 U.S. LEXIS 7450 (U.S. 2010).

7. —Factors for Consideration.

In conducting a de novo review of a sentence, the appellate court must consider: (1) Any evidence received at the trial and/or sentencing hearing; (2) The presentence report; (3) The principles of sentencing; (4) The arguments of counsel relative to sentencing alternatives; (5) The nature and characteristics of the offense; (6) Any mitigating or enhancing factors; (7) Any statements made by the defendant in his own behalf; and (8) The defendant's potential or lack of potential for rehabilitation or treatment. State v. Roberts, 755 S.W.2d 833, 1988 Tenn. Crim. App. LEXIS 172 (Tenn. Crim. App. 1988), rehearing denied, 755 S.W.2d 833, 1988 Tenn. Crim. App. LEXIS 384 (Tenn. Crim. App. 1988); State v. Brown, 832 S.W.2d 594, 1992 Tenn. Crim. App. LEXIS 69 (Tenn. Crim. App. 1992).

In conducting review of a sentencing order, the court is obliged to consider the evidence, the presentence report, sentencing principles, counsel's argument, the nature and character of the offense, the mitigating and enhancement factors, defendant's statements, if any, and his potential for rehabilitation. State v. Holland, 860 S.W.2d 53, 1993 Tenn. Crim. App. LEXIS 288 (Tenn. Crim. App. 1993); State v. Smith, 898 S.W.2d 742, 1994 Tenn. Crim. App. LEXIS 685 (Tenn. Crim. App. 1994).

8. —Sentence Upheld on Appeal.

The risk of erroneous deprivation of the defendant's liberty interest as a result of the procedures employed — namely, the appellate court's decision to apply a statutory enhancement factor of previous criminal history rather than remand to the trial court for a hearing — was at most slight, where the record was clearly developed and the defendant's own criminal record and behavior which supported the enhancement factor were well known to the defendant. Thus, the defendant was not deprived of his due process rights by that procedure. State v. Pearson, 858 S.W.2d 879, 1993 Tenn. LEXIS 240 (Tenn. 1993).

The record clearly supported the trial judge's findings in sentencing defendant for aggravated burglary. State v. Holland, 860 S.W.2d 53, 1993 Tenn. Crim. App. LEXIS 288 (Tenn. Crim. App. 1993).

The trial judge did not abuse his discretion at sentencing as to the issues of enhancement, consecutive sentences or refusal to suspend part of defendant's sentence. State v. Irick, 861 S.W.2d 375, 1993 Tenn. Crim. App. LEXIS 322 (Tenn. Crim. App. 1993), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 299 (Tenn. Aug. 2, 1993).

The evidence did not preponderate against the sentence imposed by the trial court, especially considering the nature and characteristics of the offenses involved. State v. Gregory, 862 S.W.2d 574, 1993 Tenn. Crim. App. LEXIS 295 (Tenn. Crim. App. 1993).

Following conviction of the defendant for disorderly conduct, even though no enhancing factors were filed by the attorney general's office and none were discovered by the investigating officer, where the presentence report indicated that the defendant had a somewhat lengthy criminal history, including two convictions for disorderly conduct, sentencing him to 30 days in jail at 75 percent, the maximum sentence allowed, was not excessive. State v. Creasy, 885 S.W.2d 829, 1994 Tenn. Crim. App. LEXIS 282 (Tenn. Crim. App. 1994).

Where defendant had been given an opportunity to complete sentences on probation for two separate felony convictions, had been a allowed a sentence alternative in the form of split confinement two separate times, and, at the time of the probation revocation hearing, had a new charge pending, the trial court did not err in ordering that defendant be incarcerated for the balance of his sentences. State v. Leach, 914 S.W.2d 104, 1995 Tenn. Crim. App. LEXIS 442 (Tenn. Crim. App. 1995).

A two-year sentence on defendant's conviction of arson was justified where he had a prior felony conviction, multiple misdemeanors, and was on community corrections at the time of the offenses. State v. Robinson, 930 S.W.2d 78, 1995 Tenn. Crim. App. LEXIS 972 (Tenn. Crim. App. 1995).

A mid-range sentence of 20 years was appropriate where the defendant was convicted of aggravated rape and sentenced as a multiple rapist and where there were three aggravating factors and no mitigating factors. State v. Johnson, 970 S.W.2d 500, 1996 Tenn. Crim. App. LEXIS 587 (Tenn. Crim. App. 1996).

In reviewing defendant's sentence for an aggravated sexual battery conviction pursuant to T.C.A. § 40-35-401(d) and considering the appropriate factors under T.C.A. §§ 40-35-103(5) and 40-35-210(b), defendant's sentence of 12 years, which was within the sentencing range set out by T.C.A. § 40-35-112(a)(2), was appropriate because two sentencing enhancement factors applied to defendant as defendant had a previous history of sexual battery convictions which involved children, and defendant abused a position of private trust, since defendant was the victim's uncle to whom the parents had entrusted the victim's keeping on numerous occasions. State v. Jordan, 116 S.W.3d 8, 2003 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. 2003).

Court's sentence was proper where the court applied the following enhancement factors to the felony reckless endangerment conviction: the injuries inflicted upon the victim were particularly great, defendant had no hesitation about committing a crime when the risk to human life was high, and the crime was committed under circumstances in which the potential for bodily injury to the victim was great; as mitigating factors, the trial court found that defendant committed the crimes under such unusual circumstances that it was unlikely that he had a sustained intent to violate the law. State v. Goodwin, 143 S.W.3d 771, 2004 Tenn. LEXIS 552 (Tenn. 2004), rehearing denied, — S.W.3d —, 2004 Tenn. LEXIS 696 (Tenn. 2004).

Trial court did not err by ordering defendant's three-year sentences for theft and vehicular assault to be served concurrently to each other but consecutively to defendant's 21-year sentence for aggravated vehicular homicide, resulting in a 24-year sentence; upon de novo review pursuant to T.C.A. § 40-35-401(d), court of criminal appeals upheld defendant's sentence because he had a record of criminal activity that included over 20 prior convictions and the sentence was within the appropriate range. State v. Bowman, 327 S.W.3d 69, 2009 Tenn. Crim. App. LEXIS 35 (Tenn. Crim. App. Jan. 14, 2009), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 395 (Tenn. June 15, 2009), cert. denied, Bowman v. Tennessee, 175 L. Ed. 2d 388, 130 S. Ct. 559, 2009 U.S. LEXIS 8080 (U.S. 2009).

Defendant failed to show that the trial court erred by ordering two of defendant's sentences for aggravated child abuse to be served consecutively because the court found, by a preponderance of the evidence, that defendant had an extensive record of criminal activity by committing numerous acts of abuse against defendant's children over a period of years by beating, starving, and waterboarding the victims and by forcing the victims to kneel on uncooked rice or handcuffing them in uncomfortable positions for several hours. State v. McIntosh, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 379 (Tenn. Crim. App. Mar. 27, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 571 (Tenn. Sept. 13, 2018).

Defendant did not show that the trial court abused its discretion in sentencing defendant to the maximum term available for defendant's voluntary manslaughter conviction because the court did not err in its application of the enhancement and mitigation factors. Any errors were harmless in light of existing enhancement factors, particularly that defendant was on probation at the time the offense was committed and that defendant had a history of criminal behavior in addition to the felonies used to establish defendant's sentencing range. State v. Davidson, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 14 (Tenn. Crim. App. Jan. 14, 2020).

9. —Denial of Probation Affirmed.

11. Denial of Alternative Sentencing Proper.

Defendant did not show that a trial court erred in denying defendant an alternative sentence, when defendant pleaded guilty to burglary and counts of forgery, because the court considered defendant's criminal history, defendant was facing additional charges at the time of sentence, and previous attempts at alternative sentencing had failed. While defendant testified to being addicted to drugs and alcohol, there was no evidence that treatment of defendant's issues was best served in the community rather than in a correctional institution. State v. Shields, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 70 (Tenn. Crim. App. Jan. 30, 2018).

Defendant failed to show that the trial court erred when it denied defendant's request for an alternative sentence and ordered defendant to serve the sentence in the Tennessee Department of Correction because the court considered the purposes and principles of sentencing. Defendant had an extensive history of criminal offenses, measures less restrictive than confinement had on multiple occasions been unsuccessfully applied to defendant, and defendant was released on community corrections at the time when defendant committed the offenses. State v. Andrews, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 568 (Tenn. Crim. App. July 30, 2018).

13. Reversal or Resentencing.

Denial of full probation was reversed where defendant did not match the profile of the criminal for whom incarceration is the first priority as provided in § 40-35-102(5), he had not been the subject of failed rehabilitative measures, his criminal conduct was nonviolent, and he showed good potential for rehabilitation. State v. Beverly, 894 S.W.2d 292, 1994 Tenn. Crim. App. LEXIS 414 (Tenn. Crim. App. 1994).

Although defendant arrived at the scene of a truck theft with the truck thief and fled the scene of the theft at a high rate of speed closely behind the truck thief, there was simply no evidence to show that he assisted or encouraged the thief to break into the pick-up truck or drive it away from the lot. State v. Ball, 973 S.W.2d 288, 1998 Tenn. Crim. App. LEXIS 329 (Tenn. Crim. App. 1998).

As defendant committed the crime of rape of a child prior to the 2005 amendments to Tennessee's Sentencing Reform Act, and there was no ex post facto waiver in the record, he was subject to sentencing under the 1989 Criminal Sentencing Act in accordance with Blakely v. Washington, 124 S. Ct. 2531, 159 L. Ed. 2d 403, 542 U.S. 296, 2004 U.S. LEXIS 4573, and State v. Gomez, 239 S.W.3d 733, 2007 Tenn. LEXIS 884 (Tenn. 2007). Because of the error in sentencing, his sentences had to be reduced to the presumptive term of 20 years. State v. Kelley, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 548 (Tenn. Crim. App. July 12, 2012).

Trial court did not err in declining to conduct an additional evidentiary hearing before entering a sentencing order because the judgment and mandate was limited, and there was ample support in the record to support its imposition of a sentence without conducting a new sentencing hearing; the judgment and mandate did not contemplate further proceedings and did not direct the trial court to conduct additional evidentiary hearings. State v. Henderson, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 254 (Tenn. Crim. App. Apr. 18, 2019).

40-35-402. Appeal of sentence by state — Standard.

The district attorney general in a criminal case may appeal from the length, range or manner of the service of the sentence imposed by the sentencing court. The district attorney general may also appeal the imposition of concurrent sentences. In addition, the district attorney general may also appeal the amount of fines and restitution imposed by the sentencing court. An appeal pursuant to this section shall be taken within the same time and in the same manner as other appeals in criminal cases. The right of the appeal of the state is independent of the defendant's right of appeal.
An appeal from a sentence is limited to one (1) or more of the following conditions:
1. The court improperly sentenced the defendant to the wrong sentence range;
2. The court granted all or part of the sentence on probation;
3. The court ordered all or part of the sentences to run concurrently;
4. The court improperly found the defendant to be an especially mitigated offender;
5. The court failed to impose the fines recommended by the jury;
6. The court failed to order the defendant to make reasonable restitution; or
7. The sentence is inconsistent with the purposes or considerations of sentencing set out in §§ 40-35-102 and 40-35-103.
If the sentence is appealed by the state, the appellate court may affirm, vacate, set aside, increase or reduce the sentence imposed or remand the case or direct the entry of an appropriate order.
When reviewing sentencing issues raised pursuant to this section, the appellate court shall conduct a de novo review on the record of the issues. The review shall be conducted with a presumption that the determinations made by the court from which the appeal is taken are correct.

Acts 1989, ch. 591, § 6; 1998, ch. 796, §§ 1, 2; 2005, ch. 353, § 9.

Sentencing Commission Comments.

This section changes prior law relating to the state's right of appeal of sentencing determinations. Under this chapter, the state may now appeal from the length of the sentence imposed by asserting that the enhancement and mitigating factors were not properly weighed. The appellate court now has the authority to increase the length of a sentence. The standard of review is the same as where the defendant takes the appeal in that there is a presumption that the determination made by the trial court was correct. Thus, the state has the burden of establishing that the trial court imposed an improper sentence.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Cross-References. Appeal as of right by state, T.R.A.P. 3.

Classification of offenses, § 40-35-110.

Enhancement factors, § 40-35-114.

Mitigating factors, § 40-35-113.

Penalties and misdemeanors, § 40-35-111.

Probation, paroles and pardons, title 40, ch. 28.

Restitution, § 40-35-304, title 41, ch. 6.

Sentence ranges, § 40-35-112.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 12.41, 16.118, 22.2, 32.80, 32.271, 32.272, 32.163.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 3-37-1.

Tennessee Jurisprudence, 4 Tenn. Juris., Automobiles, § 45; 8 Tenn. Juris., Criminal Procedure, § 51.

Law Reviews.

The Tennessee Court of Criminal Appeals: A Study and Analysis (Daniel J. Foley), 66 Tenn. L. Rev. 427 (1999).

NOTES TO DECISIONS

1. Evidence.

In the absence of a transcript of the sentencing hearing, the court of criminal appeals was precluded from considering the denial of probation by the trial court. State v. Meeks, 779 S.W.2d 394, 1988 Tenn. Crim. App. LEXIS 643 (Tenn. Crim. App. 1988).

2. When Remand Required.

Under ordinary circumstances, where it is apparent from the record that the trial judge misapprehended eligibility for community correction, the appellate court will remand for the trial judge to order a report and consider the issue on its merits. However, no remand is necessary where the appellate court is unconvinced that sentencing under the Community Corrections Act, compiled in T.C.A. § 40-36-101 et seq., would accomplish the desired amount of rehabilitation and deterrence. State v. Mencer, 798 S.W.2d 543, 1990 Tenn. Crim. App. LEXIS 432 (Tenn. Crim. App. 1990).

3. Standard of Review.

When a defendant challenges the length, range or manner of service of his sentence, it is the duty of the court of criminal appeals to conduct a de novo review without a presumption of correctness. State v. Boling, 806 S.W.2d 202, 1990 Tenn. Crim. App. LEXIS 612 (Tenn. Crim. App. 1990), appeal denied, — S.W.2d —, 1990 Tenn. LEXIS 434 (Tenn. Nov. 19, 1990).

De novo review, with a presumption of correctness, requires the appellate court to consider the evidence received at the trial and sentencing hearing, the presentence report, the principles of sentencing, argument of counsel, the nature and characteristics of the offense, any mitigating and/or enhancing factors, statements made by the offender, and the potential for rehabilitation. State v. Ashby, 823 S.W.2d 166, 1991 Tenn. LEXIS 489 (Tenn. 1991).

Based on specific language in T.C.A. § 40-35-402, the state does not have the right to appeal a trial court's failure to order restitution. State v. Electroplating, Inc., 990 S.W.2d 211, 1998 Tenn. Crim. App. LEXIS 618 (Tenn. Crim. App. 1998), rehearing denied, — S.W.2d —, 1998 Tenn. Crim. App. LEXIS 799 (Tenn. Crim. App. Aug. 7, 1998), overruled in part, State v. King, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 192 (Tenn. Crim. App. Mar. 4, 2013), overruled in part, State v. King, 432 S.W.3d 316, 2014 Tenn. LEXIS 351 (Tenn. Apr. 23, 2014).

The presumption of correctness which accompanies a trial court's action is conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances. State v. Kelley, 34 S.W.3d 471, 2000 Tenn. Crim. App. LEXIS 166 (Tenn. Crim. App. 2000), review or rehearing denied, — S.W.3d —, 2000 Tenn. LEXIS 667 (Tenn. Nov. 20, 2000).

4. Mitigation Factors.

5. Appeal Allowed.

Although no right of direct appeal lied for the State of Tennessee, because a trial court's application of an amended sentencing statute to defendant's case and the resulting modification of defendant's sentence exceeded the court's authority, the appellate court elected to treat the State of Tennessee's improperly-filed appeal as of right as a petition for the common law writ of certiorari and reviewed the matter. State v. Tolle, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 203 (Tenn. Crim. App. Mar. 19, 2018).

6. Jurisdiction.

Although the State of Tennessee could not appeal its claim that the trial court erred by applying the amended version of a sentencing statute, appellate jurisdiction existed over the claim because, once defendant filed a notice of appeal, the court acquired jurisdiction of the entire case and any properly-preserved, cognizable claims. Because the determination of the appropriate version of the statute to be applied qualified as a question of law, it was permitted to be raised by either party, regardless of which party initiated the appeal. State v. Keese, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 193 (Tenn. Crim. App. Mar. 15, 2018).

When a trial judge altered a plea agreement, containing an agreed-upon sentence, after an ex parte meeting with defendant, the appellate court had jurisdiction to review the trial court's decision because the court granted probation on all of the sentences. When the State of Tennessee challenged the imposition of a probationary term that was at odds with the plea agreement entered into by the parties, an appeal as a matter of right was available to the State of Tennessee when probation was granted. State v. Coleman, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 259 (Tenn. Crim. App. Apr. 6, 2018).

7. No Right to Appeal.

State had no statutory right to appeal because it did not appeal a probationary sentence, a concurrent sentence, or a finding that the Defendant is a mitigated offender, and it did not appeal the trial court's failure to impose fines or restitution and or claimed that the trial court failed to sentence defendant; the State did not contend that the trial court sentenced the Defendant to an improper sentencing range. State v. Cross, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 335 (Tenn. Crim. App. May 3, 2018).

Amendment to T.C.A. § 39-14-105 altered only the relationship between the value of property taken during a theft and the class of the resulting offense and did not alter the law setting sentencing ranges; therefore, the State had no statutory right to appeal. State v. Cross, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 335 (Tenn. Crim. App. May 3, 2018).

Part 5
Release and Parole

40-35-501. Release eligibility status — Calculations.

1. A felony sentence to the department of correction or to a local jail or workhouse shall be served according to this chapter. An inmate shall not be eligible for parole until reaching the inmate's release eligibility date; provided, that nothing in this section shall be construed as prohibiting the offender, in the discretion of the commissioner or sheriff, from participating in work crews that are under direct guard supervision.
2. Except for inmates who receive sentences of imprisonment for life without possibility of parole, only inmates with felony sentences of more than two (2) years or consecutive felony sentences equaling a term greater than two (2) years shall be eligible for parole consideration.
3. Notwithstanding any other law, inmates with felony sentences of two (2) years or less shall have the remainder of their original sentence suspended upon reaching their release eligibility date. The release shall not occur for sentences of two (2) years or less when the sentences are part of a consecutive sentence whose term is greater than two (2) years. The department of correction shall notify the district attorney general and the appropriate sheriff, jail administrator, workhouse superintendent or warden of the release eligibility date of all felons with sentences of two (2) years or less in the institution.
4. No inmate shall be released under this section until at least ten (10) days after receipt of all sentencing documents by the department and ten (10) days after the department has sent notice of the release eligibility dates to the district attorney general and the appropriate sheriff, jail administrator, workhouse superintendent or warden.
5. Suspension of sentence in this manner shall be to probation supervision under terms and conditions established by the department.
6. 1. The district attorney general or the appropriate sheriff, jail administrator, workhouse superintendent or warden acting through the district attorney general may file a petition with the sentencing court requesting denial of suspension of sentence based on disciplinary violations during time served in the institution. The district attorney general may file a petition with the sentencing court requesting denial of suspension of sentence based on the offender's threat to public safety as indicated by a pattern of prior violent or drug-related criminal behavior evidenced by convictions for at least two (2) crimes against the person or two (2) drug offenses under § 39-17-417. The district attorney general shall promptly send a copy of any petition filed under this subsection (a) to the appropriate sheriff, jail administrator, workhouse superintendent, warden and defense attorney.
  2. The court may deny suspension for the remainder of the sentence or any portion of the sentence after a hearing to determine the merits of the petition. The hearing shall be held within twenty (20) days of filing or the petition is deemed to be denied and may be continued by the court for reasonable cause. The inmate may petition the court for review of the denial of probation after sixty (60) days have elapsed since a hearing denying release under this subsection (a). There shall be no appeal from a court order or judgment under this subsection (a). Upon denial of suspension of sentence the clerk of the court shall promptly notify the department.
7. 1. For those individuals placed on probation pursuant to subdivision (a)(3), the court is authorized to revoke probation pursuant to the revocation proceedings of § 40-35-311. If the sentencing court revokes probation, the sentencing court may cause the defendant to commence the execution of the judgment as originally entered, less any credit for time served, plus any sentence credits earned and retained by the inmate. Any defendant who has been placed on probation pursuant to subdivision (a)(3), and whose probation is subsequently revoked on the same sentence, is no longer eligible for release on probation pursuant to subdivision (a)(3). However, a defendant who is placed on probation pursuant to § 40-35-303, § 40-35-306, or § 40-35-307, and whose probation is revoked pursuant to § 40-35-311, shall not be ineligible for release on that sentence pursuant to subdivision (a)(3).
  2. Nothing in subdivision (a)(7)(A) prohibits the sentencing court from:
    1. Suspending the original sentence at any time prior to its expiration, notwithstanding whether the offender is incarcerated in a local jail or a prison; or
    2. Resentencing the defendant for the remainder of the unexpired sentence to any community-based alternative to incarceration authorized by chapter 36 of this title; provided, that the violation of probation is a technical one and does not involve the commission of a new offense.
Release eligibility for each defendant sentenced as an especially mitigated offender shall occur after service of either twenty percent (20%) or thirty percent (30%) of the actual sentence imposed, less sentence credits earned and retained by the defendant. The percentage of service shall be stated on the judgment order. If the order is silent, release eligibility shall occur after service of twenty percent (20%) of the actual sentence imposed.
Release eligibility for each defendant sentenced as a Range I standard offender shall occur after service of thirty percent (30%) of the actual sentence imposed less sentence credits earned and retained by the defendant.
Release eligibility for each defendant sentenced as a Range II multiple offender shall occur after service of thirty-five percent (35%) of the actual sentence imposed less sentence credits earned and retained by the defendant.
Release eligibility for each defendant sentenced as a Range III persistent offender shall occur after service of forty-five percent (45%) of the actual sentence imposed less sentence credits earned and retained by the defendant.
Release eligibility for each defendant sentenced as a career offender shall occur after service of sixty percent (60%) of the actual sentence imposed less sentence credits earned and retained by the defendant.
There shall be no release eligibility for a defendant receiving a sentence of imprisonment for life without parole as a repeat violent offender.
1. Release eligibility for a defendant committing the offense of first degree murder on or after November 1, 1989, but prior to July 1, 1995, who receives a sentence of imprisonment for life occurs after service of sixty percent (60%) of sixty (60) years less sentence credits earned and retained by the defendant, but in no event shall a defendant sentenced to imprisonment for life be eligible for parole until the defendant has served a minimum of twenty-five (25) full calendar years of the sentence, notwithstanding the governor's power to reduce prison overcrowding pursuant to title 41, chapter 1, part 5, any sentence reduction credits authorized by § 41-21-236, or any other provision of law relating to sentence credits.
2. There shall be no release eligibility for a person committing first degree murder, on or after July 1, 1995, and receiving a sentence of imprisonment for life. The person shall serve one hundred percent (100%) of sixty (60) years less sentence credits earned and retained. However, no sentence reduction credits authorized by § 41-21-236 or any other law, shall operate to reduce the sentence imposed by the court by more than fifteen percent (15%).
3. There shall be no release eligibility for a defendant receiving a sentence of imprisonment for life without possibility of parole for first degree murder or aggravated rape of a child.
1. There shall be no release eligibility for a person committing an offense, on or after July 1, 1995, that is enumerated in subdivision (i)(2). The person shall serve one hundred percent (100%) of the sentence imposed by the court less sentence credits earned and retained. However, no sentence reduction credits authorized by § 41-21-236 or any other provision of law, shall operate to reduce the sentence imposed by the court by more than fifteen percent (15%).
2. The offenses to which subdivision (i)(1) applies are:
  1. [Deleted by 2020 amendment.]
  2. Murder in the second degree;
  3. Especially aggravated kidnapping;
  4. Aggravated kidnapping;
  5. Especially aggravated robbery;
  6. Aggravated rape;
  7. Rape;
  8. Aggravated sexual battery;
  9. Rape of a child;
  10. Aggravated arson;
  11. Aggravated child abuse;
  12. [Deleted by 2019 amendment.]
  13. Sexual exploitation of a minor involving more than one hundred (100) images;
  14. Aggravated sexual exploitation of a minor involving more than twenty-five (25) images; or
  15. Especially aggravated sexual exploitation of a minor.
3. Nothing in this subsection (i) shall be construed as affecting, amending or altering § 39-13-523, which requires child sexual predators, aggravated rapists, child rapists and multiple rapists to serve the entire sentence imposed by the court undiminished by any sentence reduction credits.
There shall be no release eligibility for a person committing a violation of § 39-17-1324(a) or (b) on or after January 1, 2008, until the person has served one hundred percent (100%) of the minimum mandatory sentence established in § 39-17-1324(g) or (h) and imposed by the court less sentence credits earned and retained; however, no sentence reduction credits authorized by § 41-21-236 or any other law shall operate to reduce the mandatory minimum sentence imposed by the court by more than fifteen percent (15%).
1. There shall be no release eligibility for a person committing aggravated robbery, as defined in § 39-13-402(a)(1), on or after July 1, 2010, until the person has served eighty-five percent (85%) of the sentence imposed by the court less sentence credits earned and retained. However, no sentence reduction credits authorized by § 41-21-236, or any other provision of law, shall operate to reduce below seventy percent (70%) the percentage of sentence imposed by the court such person must serve before becoming release eligible.
2. There shall be no release eligibility for a person committing aggravated robbery, as defined in § 39-13-402, on or after January 1, 2008, if the person has at least one (1) prior conviction for aggravated robbery, as defined in § 39-13-402, or especially aggravated robbery, as defined in § 39-13-403. The person shall serve one hundred percent (100%) of the sentence imposed by the court less sentence credits earned and retained; however, no sentence reduction credits authorized by § 41-21-236 or any other provision of law shall operate to reduce the sentence imposed by the court by more than fifteen percent (15%).
3. 1. “Prior conviction” means, for purposes of this section, unless the context otherwise requires, that the person serves and is released or discharged from, or is serving, a separate period of incarceration or supervision for the commission of an aggravated robbery or especially aggravated robbery prior to or at the time of committing an aggravated robbery on or after January 1, 2008.
  2. “Prior conviction” includes convictions under the laws of any other state, government or country that, if committed in this state, would constitute the offense of aggravated robbery. If an offense involving a robbery accomplished by use of a firearm in a jurisdiction other than this state is not identified as aggravated robbery or especially aggravated robbery in this state, it shall be considered a prior conviction if the elements of the felony are the same as the elements for aggravated robbery or especially aggravated robbery.
4. “Separate period of incarceration or supervision” includes a sentence to any of the sentencing alternatives set out in § 40-35-104(c)(3)-(9). An aggravated robbery shall be considered as having been committed after a separate period of incarceration or supervision if the aggravated robbery is committed while the person was:
  1. On probation, parole or community correction supervision for an aggravated robbery or especially aggravated robbery;
  2. Incarcerated for an aggravated robbery or especially aggravated robbery;
  3. Assigned to a program whereby the person enjoys the privilege of supervised release into the community, including, but not limited to, work release, educational release, restitution release or medical furlough for an aggravated robbery or especially aggravated robbery; or
  4. On escape status from any correctional institution when incarcerated for an aggravated robbery or especially aggravated robbery.
5. There shall be no release eligibility for a person committing attempted first degree murder as defined in § 39-13-202 where the victim suffers serious bodily injury as defined in § 39-11-106, on or after July 1, 2013, until the person has served eighty-five percent (85%) of the sentence imposed by the court less sentence credits earned and retained. However, no sentence reduction credits authorized by § 41-21-236, or any other provision of law, shall operate to reduce below seventy-five percent (75%) the percentage of sentence imposed by the court such person must serve before becoming release eligible.
6. 1. There shall be no release eligibility for a person committing aggravated child neglect or endangerment as defined in § 39-15-402, on or after July 1, 2013, and before July 1, 2014, until the person has served seventy percent (70%) of the sentence imposed by the court less sentence credits earned and retained. However, no sentence reduction credits authorized by § 41-21-236, or any other provision of law, shall operate to reduce below fifty-five percent (55%) the percentage of sentence imposed by the court such person must serve before becoming release eligible.
  2. There shall be no release eligibility for a person committing aggravated child neglect or endangerment as defined in § 39-15-402, on or after July 1, 2014, until the person has served eighty-five percent (85%) of the sentence imposed by the court, less sentence credits earned and retained. However, no sentence reduction credits authorized by § 41-21-236, or any other law, shall operate to reduce below seventy percent (70%) the percentage of sentence imposed by the court such person must serve before becoming release eligible.
7. There shall be no release eligibility for a person committing aggravated assault as defined in § 39-13-102, that results in death of another, on or after July 1, 2013, until the person has served seventy-five percent (75%) of the sentence imposed by the court less sentence credits earned and retained. However, no sentence reduction credits authorized by § 41-21-236, or any other provision of law, shall operate to reduce below sixty percent (60%) the percentage of sentence imposed by the court such person must serve before becoming release eligible.
8. 1. There shall be no release eligibility for a person committing aggravated vehicular homicide, as defined in § 39-13-218(a), on or after July 1, 2015, until the person has served sixty percent (60%) of the sentence imposed by the court less sentence credits earned and retained. However, no sentence reduction credits authorized by § 41-21-236, or any other law, shall operate to reduce below forty-five percent (45%) the percentage of sentence such person must serve before becoming release eligible.
  2. For purposes of determining if conduct occurring on or after July 1, 2015, constitutes a violation of § 39-13-218, and if that violation is governed by this subdivision (k)(8), prior convictions for predicate offenses required by § 39-13-218 may be used regardless of when they occurred.
1. There shall be no release eligibility for a person committing continuous sexual abuse of a child as defined in § 39-13-518 on or after July 1, 2014, until the person has served the entire sentence imposed by the court undiminished by any sentence reduction credits the person may be eligible for or earn. Such person shall be permitted to earn any credits for which the person is eligible and the credits may be used for the purpose of increased privileges, reduced security classification, or for any purpose other than the reduction of the sentence imposed by the court.
2. In addition to the punishment authorized by this section, a person sentenced under § 39-13-518 shall, upon release, receive a sentence of community supervision for life pursuant to § 39-13-524.
The release eligibility date provided for in this section is separately calculated for each offense for which a defendant is convicted. For consecutive sentences, the periods of ineligibility for release are calculated for each sentence and are added together to determine the release eligibility date for the consecutive sentences.
The release eligibility date provided for in this section is the earliest date an inmate convicted of a felony is eligible for parole. The date is conditioned on the inmate's good behavior while in prison. For a violation of any of the rules of the department of correction or institution in which the inmate is incarcerated or while on any release program other than parole, the commissioner or the commissioner's designees may defer the release eligibility date so as to increase the total amount of time an inmate must serve before becoming eligible for parole. This increase may, in the discretion of the commissioner, be in any amount of time not to exceed the full sentence originally imposed by the court and shall be imposed pursuant to regulations promulgated by the commissioner that give notice of the length of discretionary increases that may be imposed for a violation of each of the rules of the department or institution.
1. The department of correction shall not certify an inmate for a parole grant hearing, other than an initial grant hearing, if, at the time the department of correction would otherwise have certified the inmate as eligible, the inmate is classified as “close custody”. The decertification shall continue for the duration of the classification and for a period of one (1) year thereafter.
2. The department of correction shall not certify an inmate for a parole grant hearing, other than an initial grant hearing, if, at the time the department of correction would otherwise have certified the inmate as eligible, the inmate is classified as “maximum custody”. The decertification shall continue for the duration of the classification and for a period of two (2) years thereafter.
Extensions in the release eligibility date provided for in this section and in other sections of this chapter shall only be imposed following a hearing conducted in accordance with due process of law.
Notwithstanding any other provision of this chapter relating to release eligibility and when acting pursuant to the Tennessee Contract Sentencing Act of 1979, compiled in chapter 34 of this title, the board of parole is authorized to grant a prisoner parole as specified in a sentence agreement entered into by the prisoner and the board. In granting the parole, the board may impose any conditions and limitations that the board deems necessary.
Notwithstanding any other law to the contrary, the department is responsible for calculating the sentence expiration date and the release eligibility date of any felony offender sentenced to the department and any felony offender sentenced to confinement in a local jail or workhouse for one (1) or more years.
To assist the department in fulfilling the duty specified in subsection (p), the clerk of the court shall send a copy of each judgment document for a felony conviction to the department. These copies shall be forwarded to the department no less than one (1) time each month so that all judgments rendered in one (1) calendar month have been received by the department by the fifteenth day of the following month.
There shall be no release eligibility for a person committing the offense of carjacking under § 39-13-404, on or after July 1, 2016, until such person has served seventy-five percent (75%) of the sentence imposed by the court less sentence credits earned and retained. However, no sentence reduction credits authorized by § 41-21-236 or any other law, shall operate to reduce the sentence imposed by the court by more than fifteen percent (15%).
1. For the offenses listed in subdivision (u)(2) committed on or after January 1, 2017, there shall be no release eligibility until the person has served eighty-five percent (85%) of the sentence imposed by the court, less sentence credits earned and retained. However, no sentence reduction credits authorized by § 41-21-236, or any other law, shall operate to reduce below seventy percent (70%) the percentage of sentence imposed by the court such person must serve before becoming release eligible.
2. The offenses to which this subsection (u) is applicable are:
  1. The manufacture, delivery, or sale of a controlled substance, pursuant to § 39-17-417, where the instant offense is classified as a Class A, B, or C felony and the person has two (2) or more prior convictions for the manufacture, delivery, or sale of a controlled substance classified as a Class A, B, or C felony, pursuant to § 39-17-417, prior to or at the time of committing the instant offense; and
  2. Aggravated burglary, pursuant to § 39-14-403, or especially aggravated burglary, pursuant to § 39-14-404, if the person has two (2) or more prior convictions for either aggravated burglary, pursuant to § 39-14-403, especially aggravated burglary, pursuant to § 39-14-404, or a combination of the two (2) offenses prior to or at the time of committing the instant offense.
3. For purposes of this subsection (u):
  1. 1. “Prior conviction” means, unless the context otherwise requires, that the person serves and is released or discharged from, or is serving, a separate period of incarceration or supervision for the commission of the applicable offense listed in subdivision (u)(2)(A) or (u)(2)(B);
    2. “Prior conviction” includes convictions under the laws of any other state, government, or country that, if committed in this state, would constitute the applicable offense listed in subdivision (u)(2)(A) or (u)(2)(B). If a relevant offense in a jurisdiction other than this state is not identified as the applicable offense listed in subdivision (u)(2)(A) or (u)(2)(B) in this state, it shall be considered a prior conviction if the elements of the felony are the same as the elements in this state; and
  2. “Separate period of incarceration or supervision” includes a sentence to any of the sentence alternatives set out in § 40-35-104(c)(3)-(9). The applicable offense listed in subdivision (u)(2)(A) or (u)(2)(B) shall be considered as having been committed after a separate period of incarceration or supervision if it is committed while the person was:
    1. On probation, parole, community correction supervision, or supervised release for the applicable offense listed in subdivision (u)(2)(A) or (u)(2)(B);
    2. Incarcerated for the applicable offense listed in subdivision (u)(2)(A) or (u)(2)(B);
    3. Assigned to a program where the person enjoys the privilege of supervised release into the community, including, but not limited to, work release, education release, restitution release, or medical furlough for the applicable offense listed in subdivision (u)(2)(A) or (u)(2)(B); or
    4. On escape status from any correctional institution when incarcerated for the applicable offense listed in subdivision (u)(2)(A) or (u)(2)(B).
4. For purposes of this subsection (u), a prior conviction shall not be considered if ten (10) or more years have elapsed between the date of the instant conviction and the date of any immediately preceding conviction for the relevant offense. If, however, the date of a prior conviction is within ten (10) years of the date of the instant conviction, and the instant conviction is for an offense that occurs on or after January 1, 2017, then every conviction for such offense occurring within ten (10) years of the date of the immediately preceding conviction shall be considered in determining the number of prior offenses. However, in no event shall a conviction occurring more than twenty (20) years from the date of the instant conviction be considered a prior offense for the purposes of this subsection (u).
There shall be no release eligibility for a person committing the offense of driving under the influence, as defined in § 55-10-401, on or after January 1, 2019, if the person has at least six (6) prior convictions for driving under the influence, as determined under § 55-10-405. The person shall serve one hundred percent (100%) of the sentence imposed by the court less sentence credits earned and retained; however, no sentence reduction credits authorized by § 41-21-236 or any other law shall operate to reduce the sentence imposed by the court by more than fifteen percent (15%).
Notwithstanding this section, a defendant sentenced under this chapter shall be authorized to earn and retain any sentence reduction credits authorized by § 41-21-236 or any other provision of law relating to sentence reduction credits. However, no sentence reduction credits earned or retained by a defendant sentenced for committing a Class A, B, or C felony against a person under title 39, chapter 13, shall operate to permit the defendant's release on parole, probation, or community correction supervision until the defendant has served the applicable percentage of the actual sentence imposed, as specified in subsections (b)-(f) and without consideration of sentence credits earned and retained by the defendant. Any sentence reduction credits earned and retained during that time shall be credited towards the defendant's expiration of sentence.

Acts 1989, ch. 591, § 6; 1990, ch. 729, § 1; 1991, ch. 374, § 6; 1993, ch. 221, § 1; 1993, ch. 473, §§ 3, 9; 1994, ch. 994, § 4; 1995, ch. 492, § 1; 1998, ch. 743, §§ 3, 4; 1999, ch. 516, § 6; 2001, ch. 53, § 3; 2006, ch. 890, § 24; 2007, ch. 525, § 2; 2007, ch. 528, § 3; 2007, ch. 594, § 4; 2009, ch. 203, § 1; 2010, ch. 1090, § 3; 2012, ch. 727, §§ 44, 45; 2012, ch. 1073, § 6; 2013, ch. 425, § 1; 2013, ch. 426, § 1; 2013, ch. 461, § 4; 2014, ch. 867, §§ 1, 2; 2014, ch. 940, § 3; 2015, ch. 433, § 2; 2016, ch. 876, § 2; 2016, ch. 899, § 1; 2016, ch. 906, § 12; 2019, ch. 211, §§ 2, 3; 2019, ch. 486, § 12; 2019, ch. 488, § 1; 2020, ch. 765, §§ 1, 2.

Sentencing Commission Comments.

This section governs the percentages a defendant must serve prior to becoming eligible for release classification status in all ranges. See comment to § 40-35-101 for division of ranges.

Subsection (h) provides that a life sentence for first degree murder requires that the defendant serve 60 percent of 60 years, but in no event less than twenty-five (25) calendar years. Pursuant to subsections (g) and (h), there is no release eligibility for a sentence of life without the possibility of parole.

Compiler's Notes. For the Preamble to the act regarding criminal penalties, procedure and sentencing, please refer to Acts 2007, ch. 594.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Acts 2010, ch. 1090, § 1 provided that the general assembly finds and declares that deterrence and punishment of violent crime is a matter of compelling public interest that requires the highest priority when allocating scarce public resources for the purpose of imprisoning criminals. To ensure that sufficient prison space is available for certain violent offenders to serve a sentence of sufficient length to longer remove them as a threat to society and to deter others from committing these offenses, it is in the public's best interest that certain nonviolent property offenders currently serving prison sentences for less serious offenses be given alternative sentences not involving continuous confinement. By doing so, these property offenders are able to work in order to pay restitution to the victims of their crimes without using scarce prison beds thereby permitting longer sentences for those offenders who do threaten public safety.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended subdivision (a)(3) and subsection (p), shall be fully accomplished on or before January 1, 2013.

Acts 2012, ch. 1073, § 1 provided that act, which amended subdivision (i)(3), shall be known and may be cited as “Kimberlee's Law.”

Acts 2013, ch. 425, § 2 provided that the act, which added subdivision (k)(5), shall apply to all offenses committed on or after July 1, 2013.

Acts 2013, ch. 426, § 2 provided that the act, which added subdivision (k)(6), shall apply to all offenses committed on or after July 1, 2013.

Acts 2013, ch. 461, § 5 provided that the act, which added subdivision (k)(7), shall apply to all offenses committed on or after July 1, 2013.

Acts 2014, ch. 940, § 1 provided that the act, which added subsection (l ) and redesignated former subsections (l )-(r) to be subsections (m)-(s), shall be known and may be cited as the “Child Protection Act.”

Acts 2015, ch. 433, § 1 provided that the act, which added (k)(8), shall be known and may be cited as the “Ben Woodruff and Mike Locke Act.”

Acts 2016, ch. 899, § 2, provided that the act, which amended paragraph (a)(7), shall apply to persons sentenced before, on, or after April 27, 2016.

Acts 2016, ch. 906, § 1 provided that the act, which added subsection (u), shall be known and may be cited as the “Public Safety Act of 2016.”

Acts 2019, ch. 211, § 4 provided that the act, which amended this section, shall apply to violations occurring on or after July 1, 2019.

Acts 2019, ch. 488, § 3 provided that the act, which amended this section, shall apply to offenses committed on or after July 1, 2019.

Amendments. The 2019 amendment by ch. 211 added “or aggravated rape of a child” at the end of (h)(2); and deleted former (i)(2)(L) which read: “(L) Aggravated rape of a child;”.

The 2019 amendment by ch. 486 added (v).

The 2019 amendment by ch. 488 added (w).

The 2020 amendment, in (h)(1), substituted “a defendant committing the offense of first degree murder on or after November 1, 1989, but prior to July 1, 1995, who receives a sentence” for “each defendant receiving a sentence”, “occurs” for “for first degree murder shall occur” and deleted the former second sentence which read: “A defendant receiving a sentence of imprisonment for life for first degree murder shall be entitled to earn and retain sentence credits, but the credits shall not operate to make the defendant eligible for release prior to the service of twenty-five (25) full calendar years.”; added (h)(2) and redesignated former (h)(2) as present (h)(3); and deleted former (i)(2)(A) which read: “Murder in the first degree;”.

Effective Dates. Acts 2019, ch. 211, § 4. July 1, 2019.

Acts 2019, ch. 486, § 15. July 1, 2019.

Acts 2019, ch. 488, § 3. July 1, 2019.

Acts 2020, ch. 765, § 3. July 15, 2020.

Cross-References. Career offender, § 40-35-108.

Inmate release privileges, title 41, ch. 21, part 7.

Multiple offender, § 40-35-106.

Penalty for Class A, B, or C felony, § 40-35-111.

Persistent offender, § 40-35-107.

Probation, paroles, and pardons, title 40, ch. 28.

Repeat violent offenders, § 40-35-120.

Sentence credits, § 41-21-236.

Sentence ranges, § 40-35-112.

Standard offender, § 40-35-105.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 15.17, 32.80, 32.82, 32.122, 32.126, 32.127, 32.128, 32.129, 32.130, 32.161.

Law Reviews.

Crime & Punishment: Preventing Ineffective Assistance of Counsel: Advice Regarding Plea Offers (Wade V. Davies), 49 Tenn. B.J. 28 (2013).

Attorney General Opinions. Minimum length of service for life sentences after July 1, 1995, OAG 97-098, 1997 Tenn. AG LEXIS 105 (7/1/97).

Effect of trial court judgment contrary to release eligibility statutes, OAG 98-0126, 1998 Tenn. AG LEXIS 126 (7/20/98).

Department of correction authority to alter illegal court judgment, OAG 98-0126, 1998 Tenn. AG LEXIS 126 (7/20/98).

Modification of judgment orders by the Tennessee department of correction, OAG 99-197, 1999 Tenn. AG LEXIS 201 (9/28/99).

NOTES TO DECISIONS

1. Constitutionality.

The authority to grant paroles is not judicial in nature but administrative, and the fact that the board of paroles determines the granting or denial of parole does not violate the separation of powers doctrine. Baker v. State, 951 S.W.2d 1, 1997 Tenn. Crim. App. LEXIS 165 (Tenn. Crim. App. 1997).

Department of correction's policy promulgated under T.C.A. § 40-35-501 which permitted extension of inmate's release eligibility date by thirty percent for assaulting a prison officer did not retroactively inflict a greater punishment on the inmate than was provided for in his original sentence, and was thus not an ex post facto law. Ogburn v. Tennessee Dep't of Correction, 983 S.W.2d 677, 1998 Tenn. App. LEXIS 26 (Tenn. Ct. App. 1998).

Because an inmate's challenge to the constitutionality of the statute was an “as applied” challenge, proceeding through the Uniform Administrative Procedure Act was proper. Davis v. Tenn. Dep't of Corr., — S.W.3d —, 2018 Tenn. App. LEXIS 631 (Tenn. Ct. App. Oct. 30, 2018).

Inmate's vagueness argument lacked merit because any question as to the proper interpretation of the statute had already been resolved. Davis v. Tenn. Dep't of Corr., — S.W.3d —, 2018 Tenn. App. LEXIS 631 (Tenn. Ct. App. Oct. 30, 2018).

Any statute in place before the effective date of ch. 492, with a release eligibility other than a minimum of 51 years for a life sentence is repealed as to offenses committed on or after that date and the caption of ch. 492 does not violate Tenn. Const. art. II, § 17; this is not an express repeal, but rather a repeal by implication, and both T.C.A. §§ 40-35-501(h)(1) and 39-13-204(e)(2) are repealed by implication to the extent they require a release eligibility other than a minimum. Davis v. Tenn. Dep't of Corr., — S.W.3d —, 2018 Tenn. App. LEXIS 631 (Tenn. Ct. App. Oct. 30, 2018).

2. Due Process Requirement.

The portion of T.C.A. § 40-35-501 stating that extensions in an inmate's release eligibility date shall only be imposed following a hearing conducted in accordance with due process of law merely enunciates a law procedural requirement, not the existence of a liberty interest such as must be established for an inmate to be entitled to habeas relief. Frazier v. Hesson, 40 F. Supp. 2d 957, 1999 U.S. Dist. LEXIS 5813 (W.D. Tenn. 1999).

3. Right to Parole.

Tennessee laws and regulations create no right to parole, or to due process in the conduct of a parole hearing. Hinds v. Tennessee, 888 F. Supp. 854, 1995 U.S. Dist. LEXIS 8121 (W.D. Tenn. 1995).

When a prisoner committed the crimes of murder, T.C.A. § 39-13-202, and armed robbery, T.C.A. § 39-13-402, in 1986, the prisoner knew that violations of the prison disciplinary rules could put the prisoner at risk of serving a longer period of time before becoming eligible to be considered for parole and, accordingly, neither the 1989 nor the 1996 changes in the prison's disciplinary policy deprived the prisoner of a pre-existing right or enhanced the punishment for the prisoner's 1986 crimes beyond the punishment authorized by T.C.A. § 40-35-501(h); thus, applying the 1989 and 1996 versions of prison policy to the prisoner for the disciplinary offenses of escape and assault committed in 1989 and 1997 did not run afoul of the federal or ex post facto clauses, U.S. Const., Art. I. § 10, cl. 1 and Tenn. Const., art. I, § 11 and the trial court properly granted the Tennessee department of correction's motion to dismiss the prisoner's complaint for failure to a claim for which relief could be granted, Tenn. R. Civ. P. 12.02(6). Utley v. Tenn. Dep't of Corr., 118 S.W.3d 705, 2003 Tenn. App. LEXIS 325 (Tenn. Ct. App. 2003).

Protected liberty interest in parole existed only where the statute created an expectation of parole, such that T.C.A. § 40-35-501, the statute addressing parole eligibility dates, did not provide a certainty of parole for sentences greater than two years; rather, it simply provided no more than a mere hope that the benefit would be obtained, such that defendant had no “right” to be released on parole after 10.8 months in confinement. State v. Sutton, 166 S.W.3d 686, 2005 Tenn. LEXIS 609 (Tenn. 2005).

Where defendant's four judgment orders designated him as a Multiple 35 percent Range 2 offender, not a Multiple Rapist, defendant's sentences on four aggravated rape convictions, were illegal and void. Pursuant to T.C.A. § 39-13-523(b), (c), defendant's convictions of multiple counts of aggravated rape rendered him ineligible for early release on parole. The Multiple Rapist classification was mandatory rather than discretionary. Thus, defendant's four judgment orders did not correctly reflect his statutorily-required sentencing status, and the error was not clerical. Cantrell v. Easterling, 346 S.W.3d 445, 2011 Tenn. LEXIS 746 (Tenn. Aug. 1, 2011).

4. Determinate Versus Indeterminate Sentence.

The fact that the board of paroles may grant or deny parole does not convert a determinate sentence into an indeterminate sentence in violation of § 40-35-211. Baker v. State, 951 S.W.2d 1, 1997 Tenn. Crim. App. LEXIS 165 (Tenn. Crim. App. 1997).

5. Inappropriate Sentence.

As referenced in T.C.A. § 40-35-501(i)(3), T.C.A.§ 39-13-523 provides that defendants convicted of rape of a child are ineligible to receive the benefit of sentence reduction credits and have to serve their entire sentences undiminished by credits of up to 15 percent; per Acts 1992, ch. 878, § 1, the effective date of § 39-13-523 was July 1, 1992, and one of petitioner's crimes occurred after that date, while a second straddled the date; however, the “Special Conditions” portion of each judgment specified, in relevant part, that “no sentence reduction credits authorized would exceed 15 percent,” possible under former law, where child rape was indistinguishable from aggravated rape; thus, the ultra vires provisions for sentence reduction credits in the promulgated child rape convictions voided the judgments, petitioner demonstrated a basis for issuance of the writ of habeas corpus, and the matter was remanded for new proceedings to ensure that petitioner was advised of a factual basis for any guilty pleas. Coleman v. Morgan, 159 S.W.3d 887, 2004 Tenn. Crim. App. LEXIS 695 (Tenn. Crim. App. 2004), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 1182 (Tenn. Dec. 20, 2004).

Supreme court granted inmate's petition for writ of habeas corpus because the inmate's sentence was illegal and void; the inmate entered a guilty plea to child rape, and he could not be granted early release; the sentence was required to be served day by day. Smith v. Lewis, 202 S.W.3d 124, 2006 Tenn. LEXIS 837 (Tenn. 2006).

Because aggravated child neglect was not an enumerated offense included in this section, the trial court erred by applying the statute and sentencing defendant as a violent offender at 100% release eligibility. State v. Johnson, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 744 (Tenn. Crim. App. Aug. 21, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 886 (Tenn. Dec. 8, 2017).

6. Determination of Sentence.

Modification of defendant's sentence from life without the possibility of parole to life imprisonment with the possibility of parole after she was convicted of first-degree murder and the facilitation of first-degree murder was appropriate because lack of written notice by the pursuant to T.C.A. § 39-13-208 mandated a sentence of life with the possibility of parole. State v. Dych, 227 S.W.3d 21, 2006 Tenn. Crim. App. LEXIS 823 (Tenn. Crim. App. 2006), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 191 (Tenn. Feb. 26, 2007).

Tennessee Claims Commission properly dismissed an inmate's complaint for lack of subject matter jurisdiction because the statutory scheme did not grant a private right of action for the State's negligent deprivation; the inmate's claim that the State failed to comply with statutes in calculating his sentence fell within a claim for negligent deprivation of statutory rights, and he cited no cases holding that a claim involving a duty conferred by statute fell within subsection (a)(1)(E). Mosley v. State, 475 S.W.3d 767, 2015 Tenn. App. LEXIS 518 (Tenn. Ct. App. June 10, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 982 (Tenn. Nov. 24, 2015).

7. Release Eligibility Date.

Where two defendants were convicted of a first degree murder that took place on July 2, 1995, counsel was ineffective for failing to object to the trial court's erroneous jury instruction which required the prisoner to serve a minimum of twenty-five years before becoming eligible for parole under T.C.A. § 40-35-501(h); however, at the time of trial, the amended statute, § 40-35-501(i) provided that a person convicted of first degree murder and sentenced to life in prison must serve at least fifty-one years before becoming eligible for parole; while the amendment raised the question as to which section of the statute applied to these cases at the time of trial, that did not excuse counsel in these cases. Vaughn v. State, 202 S.W.3d 106, 2006 Tenn. LEXIS 843 (Tenn. 2006), overruled in part, Brown v. Jordan, 563 S.W.3d 196, 2018 Tenn. LEXIS 728 (Tenn. Dec. 6, 2018).

With respect to inmates serving consecutive determinate sentences under the Criminal Sentencing Reform Act of 1989, T.C.A. § 40-35-501(l), provides the method for calculating release eligibility dates; furthermore, the clear and unambiguous language of § 40-35-501(l ) contemplates that inmates serving consecutive determinate sentences will be assigned a single release eligibility date, making the concept of custodial parole irrelevant. Stewart v. Schofield, 368 S.W.3d 457, 2012 Tenn. LEXIS 376 (Tenn. May 25, 2012).

Appellate court exceeded its authority by determining the date the prisoner could be considered for parole because the Department of Correction was solely responsible for calculating a prisoner's release eligibility date under this section, and the appellate court's calculation was flawed. Brennan v. Bd. of Parole for Tenn., 512 S.W.3d 871, 2017 Tenn. LEXIS 2 (Tenn. Jan. 10, 2017).

Chancery court properly ruled against an inmate in his action challenging the calculation of his eligibility for release and the constitutionality of the statute because subsection (i) established the legal release date for someone sentenced to life and was constitutional. Davis v. Tenn. Dep't of Corr., — S.W.3d —, 2018 Tenn. App. LEXIS 631 (Tenn. Ct. App. Oct. 30, 2018).

In a certified question of law from a federal court of appeals, the state supreme court concluded that a defendant convicted of first-degree murder committed on or after July 1, 1995, and sentenced to life in prison could be released, at the earliest, after 51 years of imprisonment because, for first-degree murders committed on or after July 1, 1995, a defendant must serve 100% of 60 years less any sentence credits received, but the sentence credits could not operate to reduce the sentence imposed by more than 15 %, and 15% of 60 years was nine years, thus resulting in service of a minimum 51 years. Brown v. Jordan, 563 S.W.3d 196, 2018 Tenn. LEXIS 728 (Tenn. Dec. 6, 2018).

To the extent Vaughn v. State, 202 S.W.3d 106, 2006 Tenn. LEXIS 843 (Tenn. 2006), affirms the attorney general's opinion that an irreconcilable conflict exists between T.C.A. § 40-35-501(h) and (i), that portion of the opinion is abrogated, as the supreme court has determined that no conflict exists between those statutory provisions; both subsections remain in full effect and are not irreconcilable, and no part of T.C.A. § 40-35-501(h) is repealed by implication. Vaughn, however, correctly held that a defendant convicted of first-degree murder committed on or after July 1, 1995, may be released after serving at least 51 years in confinement. Brown v. Jordan, 563 S.W.3d 196, 2018 Tenn. LEXIS 728 (Tenn. Dec. 6, 2018).

Defendant did not show defendant's sentence for a murder committed as a juvenile violated Miller v. Alabama because defendant was sentenced to life with the possibility of parole. State v. Williams, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 518 (Tenn. Crim. App. Aug. 23, 2019), appeal denied, State v. Johnson, — S.W.3d —, 2019 Tenn. LEXIS 573 (Tenn. Dec. 9, 2019).

8. Guilty Pleas.

Because both counsel and the trial court advised petitioner about his charges and the specific penalties to be imposed, including the fact that his sentences had a release eligibility of 85%, his guilty plea was not unknowing and involuntary. Nabi v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 274 (Tenn. Crim. App. Apr. 30, 2019).

9. Inaccurate Sentencing Information From Counsel.

Postconviction relief was properly granted because counsel was ineffective in failing to properly inform petitioner of his potential sentence if convicted of first degree murder; the evidence did not preponderate against the postconviction court's decision to give credibility to petitioner's testimony, which was bolstered by a letter from petitioner to counsel that was personal in nature and motivated out of genuine concern, that he rejected a plea offer of twenty years based on the assertions of trial counsel as to the definition of a life sentence. Granderson v. State, 197 S.W.3d 782, 2006 Tenn. Crim. App. LEXIS 304 (Tenn. Crim. App. Apr. 13, 2006).

10. Motion to Correct Illegal Sentence.

11. Sentence Proper.

Trial court properly granted the Tennessee Department of Correction summary judgment dismissing an inmate's petition alleging his sentence was calculated incorrectly, and he was entitled to custodial parole and safety valve hearings, because the inmate's sentences were calculated in accordance with the statute; the inmate did not qualify for custodial parole consideration because it applied only to determinate sentences imposed prior to the Tennessee Criminal Reform Act of 1982. Taylor v. Tenn. Dep't of Corr., — S.W.3d —, 2017 Tenn. App. LEXIS 170 (Tenn. Ct. App. Mar. 3, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 376 (Tenn. June 9, 2017).

Defendant's sentence of life imprisonment was proper because the sentence was not the functional equivalent of a sentence of life imprisonment without parole; the court of appeals consistently rejected the claim that a juvenile's mandatory life sentence, which required service of fifty-one years before release, constitutes an effective sentence of life without parole. State v. Collins, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 295 (Tenn. Crim. App. Apr. 18, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 489 (Tenn. Aug. 8, 2018), cert. denied, Collins v. Tennessee, — L. Ed. 2d —, — S. Ct. —, — U.S. —, 2018 U.S. LEXIS 7182 (U.S. Dec. 10, 2018).

12. Ineffective Assistance Not Shown.

It was proper to deny petitioner post-conviction relief because petitioner's guilty plea was not involuntarily and unknowingly entered on the ground that trial counsel was ineffective; trial counsel did not misinform petitioner about the amount of time he would actually have to serve before he could be released from prison because petitioner was properly informed by trial counsel and the trial court that he could receive sentencing credits to reduce his sentence by fifteen percent. Shade v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 154 (Tenn. Crim. App. Feb. 27, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 327 (Tenn. June 6, 2018).

13. Appellate Jurisdiction.

40-35-502. Conversion of fractions in calculations.

For purposes of calculating the release eligibility date, a fraction of a month is construed to mean:
1. For one tenth (0.1) of a month, three (3) days;
2. For two tenths (0.2) of a month, six (6) days;
3. For three tenths (0.3) of a month, nine (9) days;
4. For four tenths (0.4) of a month, twelve (12) days;
5. For five tenths (0.5) of a month, fifteen (15) days;
6. For six tenths (0.6) of a month, eighteen (18) days;
7. For seven tenths (0.7) of a month, twenty-one (21) days;
8. For eight tenths (0.8) of a month, twenty-four (24) days; and
9. For nine tenths (0.9) of a month, twenty-seven (27) days.
For purposes of calculating the release eligibility date for a sentence of less than one (1) year, a fraction of a day is construed to mean that the next day is the release eligibility date.

Acts 1989, ch. 591, § 6.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 32.122.

40-35-503. Authority to determine release status of felon — Grounds for denying release status — Hearings — Parole potential.

The board of parole has the authority to parole inmates with felony sentences of more than two (2) years or consecutive felony sentences equaling a term greater than two (2) years.
Release on parole is a privilege and not a right, and no inmate convicted shall be granted parole if the board finds that:
1. There is a substantial risk that the defendant will not conform to the conditions of the release program;
2. The release from custody at the time would depreciate the seriousness of the crime of which the defendant stands convicted or promote disrespect for the law;
3. The release from custody at the time would have a substantially adverse effect on institutional discipline; or
4. The defendant's continued correctional treatment, medical care or vocational or other training in the institution will substantially enhance the defendant's capacity to lead a law-abiding life when given release status at a later time.
No person convicted of a sex crime shall be released on parole unless a psychiatrist or licensed psychologist designated as a health service provider has examined and evaluated the inmate and certified that, to a reasonable medical certainty, the inmate does not pose the likelihood of committing sexual assaults upon release from confinement. The examination and evaluation shall be provided by psychiatrists or licensed psychologists designated as health service providers whose services are contracted or funded by the department of correction or the board of parole. The board shall consider any other evaluation by a psychiatrist or licensed psychologist designated as a health service provider that may be provided by the defendant.
1. The board shall conduct a hearing within a reasonable time prior to a defendant's release eligibility date to determine a defendant's fitness for parole.
2. At the hearing, the board shall permit the video testimony of the immediate family members of the victim of a defendant's criminal offense relative to the fitness of the defendant for parole, if the family members are unable to attend the hearing. The board may, by rule, establish reasonable guidelines as to what constitutes a family member being unable to attend a hearing.
The board shall notify the district attorney general and the sentencing court or their successors of the eligibility hearing in the manner provided for in § 40-28-107(c).
If the board determines that a defendant should be released on parole, it shall furnish reasons for that decision to the district attorney general who prosecuted the defendant, the chief law enforcement official of the agency that prosecuted the case and the judge who tried that defendant or to their successors, upon their request.
In determining whether an inmate should be granted parole, the board shall consider as a factor the extent to which the inmate has attempted to improve the inmate's educational, vocational or employment skills through available department of correction programs while the inmate was incarcerated. The board shall have the right to deny parole to an inmate who has made no attempt to improve such skills while incarcerated.
Notwithstanding subsection (b), there is a presumption that an inmate convicted of a Class E or Class D nonviolent felony offense, as defined in § 40-36-102, is to be released on parole upon the inmate reaching the inmate's release eligibility date unless good cause is shown as to why the inmate should not be released.

Acts 1989, ch. 591, § 6; 1990, ch. 729, § 2; 1990, ch. 980, § 34; 1992, ch. 991, § 18; 1993, ch. 235, § 1; 1994, ch. 730, § 2; 2012, ch. 727, § 58; 2019, ch. 488, § 2.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended subsections (a) and (c), shall be fully accomplished on or before January 1, 2013

Acts 2019, ch. 488, § 3 provided that the act, which amended this section, shall apply to offenses committed on or after July 1, 2019.

Amendments. The 2019 amendment added (h).

Effective Dates. Acts 2019, ch. 488, § 3. July 1, 2019.

Cross-References. Education and vocational training plan, § 41-21-238.

Inmate release privileges, title 41, ch. 21, part 7.

Probation, paroles, and pardons, title 40, ch. 28.

Sentencing provisions applicable to persons committing crimes prior to July 1, 1982, title 40, ch. 20.

Penalty for Class D and E felonies, § 40-35-111.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 32.122, 32.132.

NOTES TO DECISIONS

1. Constitutionality.

Denial of the inmate's petition for postconviction relief was proper where he did not need to be informed of all criteria that affect his possible release on parole in order for his guilty plea to be constitutionally sound, including the fact that he was not informed of the psychiatric certification mandated by T.C.A. § 40-35-503(c). Jaco v. State, 120 S.W.3d 828, 2003 Tenn. LEXIS 1175 (Tenn. 2003).

2. Application.

Where defendant appealed a sentencing issue, the court of criminal appeals erred in vacating defendant's conviction of incest on the grounds that incest was not a lesser included offense of child rape and because the record failed to reflect that the indictment had been amended from “rape of a child.” Studdard v. State, 182 S.W.3d 283, 2005 Tenn. LEXIS 1046 (Tenn. 2005), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 518 (Tenn. 2006).

3. Release Properly Denied.

There was no illegality in board's determination that it would depreciate the seriousness of defendant's offense to release him after he had served only two years for engaging in prohibited sexual contact with children. South v. Tennessee Bd. of Paroles, 946 S.W.2d 310, 1996 Tenn. App. LEXIS 794 (Tenn. Ct. App. 1996).

4. Parole Properly Denied.

Board of Parole appropriately considered and denied the prisoner parole based on its finding that release would depreciate the seriousness of the crime, attempted rape of a child. Brennan v. Bd. of Parole for Tenn., 512 S.W.3d 871, 2017 Tenn. LEXIS 2 (Tenn. Jan. 10, 2017).

Trial court properly affirmed the Board of Parole's decision to rescind its earlier grant of parole and deny parole to an inmate because, while both the district attorney and sheriff received notice of the inmate's parole hearing, their opposition was not known to the Board prior to the inmate's hearing, the district attorney's opposition was characterized as “adamant,” the Board was bound by law to consider the opposition inasmuch as it constituted “significant new information,” rescission of the inmate's parole was authorized by the regulations, the opposition was not due to any action or inaction by the Board, and the inmate had no protectable interest in any particular application of the regulations at issue. Stone v. Tenn. Bd. of Parole, — S.W.3d —, 2017 Tenn. App. LEXIS 636 (Tenn. Ct. App. Sept. 20, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 879 (Tenn. Dec. 6, 2017).

Trial court did not err by denying the inmate's petition for writ of certiorari challenging the Tennessee Board of Parole's denial of parole because the seriousness of the offense was a proper, independent basis for denying parole. Ferguson v. Tenn. Bd. of Parole, — S.W.3d —, 2019 Tenn. App. LEXIS 341 (Tenn. Ct. App. July 9, 2019).

5. Parole Hearing.

Inmate's release eligibility date was April 3, 2015, and the parole board was required to conduct a hearing within a reasonable time prior to that date to determine the inmate's fitness for parole; the board could not deprive the inmate of a parole hearing that he otherwise would have been eligible to receive by determining that he was not ready to be released two years prior to that time, the Board should have considered his fitness for release within a reasonable time prior to his original eligibility date, and the inmate was to be granted a new hearing. Brennan v. Bd. of Parole, — S.W.3d —, 2015 Tenn. App. LEXIS 861 (Tenn. Ct. App. Oct. 21, 2015), rev'd, Brennan v. Bd. of Parole for Tenn., 512 S.W.3d 871, 2017 Tenn. LEXIS 2 (Tenn. Jan. 10, 2017).

Based on the Department of Correction's determination of the prisoner's release eligibility date, the Board of Parole conducted the parole hearing within a reasonable time before his release eligibility date under this section, and it did not abuse its discretion by conducting a parole hearing in March 2013 and deferring the next parole hearing until 2018. Brennan v. Bd. of Parole for Tenn., 512 S.W.3d 871, 2017 Tenn. LEXIS 2 (Tenn. Jan. 10, 2017).

Inmate's contention that the Tennessee Board of Parole failed to consider his completion of education, vocational, and employment skills programs in making the decision to deny parole was not supported by the record because the transcript of the parole hearing showed that the Board received and considered the inmate's accomplishments while in prison and gave no indication that he would be paroled if the psychological evaluation was favorable. Ferguson v. Tenn. Bd. of Parole, — S.W.3d —, 2019 Tenn. App. LEXIS 341 (Tenn. Ct. App. July 9, 2019).

40-35-504. Release classification status programs — Parole — Penalty for violation of parole.

When the board of parole determines that an eligible inmate should be granted parole, the inmate may be placed on supervised parole under the prescribed conditions and in accordance with § 40-28-118. If it is determined that an eligible inmate should not be granted parole, the board shall thereupon inform the inmate, in writing, of the date the inmate will be reconsidered for parole.
A defendant convicted of a felony who has been admitted to parole shall be supervised by the department of correction and shall make periodic reports to an assigned parole officer for not less than one (1) year. Thereafter, the defendant may be relieved from making any further periodic reports if the parole officer, with the consent of the director of probation and parole, determines that:
1. The defendant has abided by the terms of parole in a satisfactory manner;
2. There is a reasonable likelihood that the defendant will remain at liberty without violating the law; and
3. Relief from further periodic reporting is not incompatible with the welfare of society.
A defendant relieved from reporting shall still be considered to be within the jurisdiction of the board and the department of correction or the local jail or workhouse authorities and shall be subject to termination of parole status for the remainder of the sentence originally imposed. The director of probation and parole may reinstitute required periodic reporting at any time.
A defendant who violates the terms of parole is subject to the terms of §§ 40-28-121 — 40-28-123, which shall govern the termination of parole.
If a defendant who has been placed on parole is convicted of a felony committed while on parole, the board, in its discretion, may revoke the defendant's parole and require the defendant to serve the remainder of the sentence originally imposed, or a portion of the original sentence as the board may determine, before the defendant begins serving the sentence for the crime committed while on parole.
Upon revocation of supervised or unsupervised parole by the board under subsection (d) or (e), the time a defendant spent on parole shall not be considered as service of the sentence unless the board determines to grant all or part of the time to the defendant.

Acts 1989, ch. 591, § 6; 2012, ch. 727, § 59.

Sentencing Commission Comments.

This section addresses administrative aspects of parole determinations. All persons placed on parole must initially be on supervised status. If an eligible inmate is denied parole, the board must inform the inmate of the date that he or she will be reconsidered for parole.

Subsection (b) provides that the board may remove the direct supervision requirement after the defendant has been on parole for one year. Prior law was two years. As provided in subsection (c) even though a parolee may be relieved from direct supervision, the parolee is still under the jurisdiction of the board and the agency from which he was paroled for purposes of potential revocation of parole.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended subsections (a)-(c), shall be fully accomplished on or before January 1, 2013.

Cross-References. Inmate release privileges, title 41, ch. 21, part 7.

Probation, paroles, and pardons, title 40, ch. 28.

Sentencing provisions applicable to persons committing crimes prior to July 1, 1982, title 40, ch. 20.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 32.122, 32.125, 32.174, 32.224.

40-35-505. Orientation to post-release or parole issues.

Before the release of an inmate under this chapter, the department of correction shall conduct an orientation for the inmate concerning relevant post-release or parole issues. As a part of the department's existing orientation program, the orientation shall address issues of restoration of citizenship, voting and the availability of services relating to education, employment, family and child support. Specific attention shall be given to, but not limited to, general equivalency diplomas and adult education, access to health care and health insurance, reinstatement of licenses and voting rights and food stamps.

Acts 2004, ch. 752, § 1.

Cross-References. Restoration of citizenship, title 40, ch. 29.

40-35-207. Presentence report — Contents — Validated risk and needs assessment defined.

Chapter 36
Community Corrections

Part 1
General Provisions

40-36-101. Short title.

This chapter shall be known and may be cited as the “Tennessee Community Corrections Act of 1985.”

Acts 1985 (1st Ex. Sess.), ch. 3, § 2.

Cross-References. Special alternative incarceration, § 40-28-630.

Textbooks. Tennessee Forms (Robinson, Ramsey and Harwell), No. 3-32-6.

Law Reviews.

Long-term Residential Substance Abuse Treatment and its Effect on Recidivism (Hon. Seth Norman), 36 No. 6 Tenn. B.J. 20 (2000).

Attorney General Opinions. Applicability to defendants ineligible for probation, OAG 90-37, 1990 Tenn. AG LEXIS 40 (3/19/90).

NOTES TO DECISIONS

1. Construction.

The former Tennessee Criminal Sentencing Reform Act of 1982 (replaced by Criminal Sentencing Reform Act of 1989) and the Tennessee Community Corrections Act of 1985 are in pari materia. State v. Taylor, 744 S.W.2d 919, 1987 Tenn. Crim. App. LEXIS 2404 (Tenn. Crim. App. 1987); State v. Wagner, 753 S.W.2d 145, 1988 Tenn. Crim. App. LEXIS 192 (Tenn. Crim. App. 1988).

2. Review.

Issues concerning the Community Corrections Act must be reviewed de novo pursuant to § 40-35-402(d). State v. Taylor, 744 S.W.2d 919, 1987 Tenn. Crim. App. LEXIS 2404 (Tenn. Crim. App. 1987); State v. Huff, 760 S.W.2d 633, 1988 Tenn. Crim. App. LEXIS 483 (Tenn. Crim. App. 1988).

Trial court found that appellant used cocaine while in community corrections, and the test results and subsequent report supported that finding, even though the amount of cocaine in appellant's system was low. Accordingly, the trial court did not abuse its discretion by revoking appellant's community corrections sentence. State v. Hill, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 376 (Tenn. Crim. App. May 15, 2017).

3. Standard of Proof.

Proof of a community corrections sentence violation need not be established beyond a reasonable doubt, and is sufficient if it allows the trial judge to make a conscientious and intelligent judgment. State v. Harkins, 811 S.W.2d 79, 1991 Tenn. LEXIS 197 (Tenn. 1991), superseded by statute as stated in, State v. Verner, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 382 (Tenn. Crim. App. May 31, 2016).

An abuse of discretion method of appellate review is applicable to issues which address the revocation of a community corrections sentence. State v. Harkins, 811 S.W.2d 79, 1991 Tenn. LEXIS 197 (Tenn. 1991), superseded by statute as stated in, State v. Verner, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 382 (Tenn. Crim. App. May 31, 2016).

40-36-102. Chapter definitions.

As used in this chapter, unless the context otherwise requires:

“Application process and procedures” means the criteria and guidelines developed by the department of correction for the establishment of community corrections plans, the granting of funds for programs authorized by this chapter and the monitoring, evaluation and review of programs funded under this chapter;
“Board” means a local community corrections advisory board as established in this chapter;
“Commissioner” means the commissioner of correction;
“Community” includes the county or counties comprising a judicial district as provided in title 16, chapter 2, part 5;
“Community-based alternatives to incarceration” means services and programs provided in local jurisdictions for eligible offenders in lieu of incarceration in state penal institutions or local jails and workhouses. The alternatives include noncustodial community corrections options, short-term community residential treatment options and individualized evaluation and treatment services as provided in § 40-36-302;
“Community corrections plan” means a document prepared by a local community corrections advisory board, endorsed by the county legislative body and submitted to the department of correction in accordance with the requirements set forth in the application process and procedures, which identifies proposed community based programs to be implemented within the county in accordance with the terms of this chapter and justifies the funding of the programs with regard to local need and community support;
“County legislative body” includes the governing legislative body of any county organized under Article XI, § 9 of the Tennessee Constitution and any county commission authorized by private act;
“County mayor” includes the chief executive officer of any county organized under Article XI, § 9 of the Tennessee Constitution and any county mayor authorized by private act;
“Court” means the trial judge exercising sentencing jurisdiction over an eligible offender under this chapter and includes any successor of the trial judge;
“Nonprofit human service agency” means a not-for-profit organization that provides treatment, guidance, training or other rehabilitation services to individuals, families or groups in such areas as health, education, vocational training, special education, social services, psychological counseling and alcohol and drug treatment;
“Nonviolent felony offender”/“nonviolent felony offense” means a person committing a felony offense, or a felony offense, that does not involve serious bodily injury, as that term is defined in § 39-11-106, or death to a victim or bystander, does not involve threats reasonably calculated to produce such results and does not involve sexual contact or sexual penetration as those terms are defined in § 39-13-501;
“Plan” means the “community corrections plan” defined in subdivision (6);
“Recipient” includes any entity receiving, directly or indirectly, any financial aid under this chapter;
“Renovation” means the repair, remodeling, alteration or expansion of existing buildings or structures to make them habitable or suitable for program operations and includes the acquisition and installation of necessary initial equipment; and
“Violent felony offender”/“violent felony offense” means a person committing a felony offense, or a felony offense, that does involve the criteria mentioned in subdivision (11).

Acts 1985 (1st Ex. Sess.), ch. 3, § 5; 1998, ch. 1049, §§ 44-47; 2003, ch. 90, § 2; 2012, ch. 727, § 46.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended the definitions of “application process and procedures” and “community corrections plan”, shall be fully accomplished on or before January 1, 2013.

NOTES TO DECISIONS

1. Sentence Served Outside Community.

2. Eligibility for Community Corrections.

Aggravated sexual battery is considered a violent offense to the person, thus ineligible for community corrections consideration under the general criteria. State v. Cowan, 40 S.W.3d 85, 2000 Tenn. Crim. App. LEXIS 412 (Tenn. Crim. App. 2000).

40-36-103. Purposes of chapter.

The purposes of this chapter are to:

Establish a policy within the state to punish selected, nonviolent felony offenders in front-end community based alternatives to incarceration, thereby reserving secure confinement facilities for violent felony offenders; and
Establish a mechanism whereby state funds are granted to local governments and qualified private agencies to develop a range of front-end community based punishments and services for eligible offenders under this chapter.

Acts 1985 (1st Ex. Sess.), ch. 3, § 3.

NOTES TO DECISIONS

2. Petition for Revocation.

Whether a defendant has absconded, failed to report, or failed to comply with the program's requirements in some other manner, the onus is on the community corrections case officers, charged with the supervision of program participants, to file a petition for revocation because requiring the supervising authority to file a warrant before credits cease promotes diligence in oversight of the program participants, requires timely compliance by the offenders with their conditions of release, and otherwise serves the societal interests that the community corrections program was designed to achieve; the purpose of community corrections is to promote accountability yet serve legitimate societal purposes, and a bright-line rule of this nature entrusts supervisors of the community corrections program with the authority to determine when credits for time served should appropriately end by simply filing a revocation petition. State v. McNack, 356 S.W.3d 906, 2011 Tenn. LEXIS 1147 (Tenn. Dec. 13, 2011).

3. Alternative Sentencing.

Trial court did not abuse its discretion by ordering defendant to serve her total effective sentence of two years in confinement because she had been convicted under the Drug-Free School Zone Act and was ineligible for community corrections. State v. Barrett, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 500 (Tenn. Crim. App. Aug. 20, 2019).

Trial court did not abuse its discretion by denying community corrections on the grounds that defendant had been convicted under the Drug-Free School Zone (DFSZ) Act because it properly applied precedent to defendant's case; previous panels of the court of appeals concluded that a defendant convicted of violating the DFSZ Act had to serve the sentence in confinement. State v. Barrett, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 500 (Tenn. Crim. App. Aug. 20, 2019).

40-36-104. Goals of this chapter.

This chapter is intended to accomplish the following goals:

Maintain safe and cost efficient community correctional programs that also involve close supervision of offenders;
Promote accountability of offenders to their local community by requiring direct financial restitution to victims of crimes and community service restitution to local governments and community agencies;
Fill gaps in the local correctional system through the development of a range of sanctions and services available for the judge at sentencing;
Reduce the number of nonviolent felony offenders committed by participating counties to correctional institutions and jails by punishing these offenders in noncustodial options as provided in this chapter;
Provide opportunities for offenders demonstrating special needs to receive services that enhance their ability to provide for their families and become contributing members of their community;
Encourage the involvement of local officials and leading citizens in their local correctional system; and
Promote the development of community corrections programs which are tailored to the specific needs of each participating county, and which are creative and innovative, within this state.

Acts 1985 (1st Ex. Sess.), ch. 3, § 4.

Cross-References. Restitution, § 40-35-304, title 41, ch. 6.

NOTES TO DECISIONS

1. Legislative Intent.

The underlying motivation of the general assembly was obviously to direct the trial courts of this state to help alleviate the overcrowded conditions in the state prison system. State v. Wagner, 753 S.W.2d 145, 1988 Tenn. Crim. App. LEXIS 192 (Tenn. Crim. App. 1988).

2. Applicability.

Where defendant demonstrated special need, namely, the treatment of his mental illness, and sentencing pursuant to this chapter would permit the defendant to receive some form of vocational training to enhance his skills, increase his opportunity for employment, and, thus, permit him to become a contributing member of society, defendant should have been sentenced pursuant to the Community Corrections Act. State v. Taylor, 744 S.W.2d 919, 1987 Tenn. Crim. App. LEXIS 2404 (Tenn. Crim. App. 1987).

Defendant convicted for writing bad checks should have been sentenced under the Community Corrections Act where defendant had made restitution for all checks, was drug-free and receiving counseling for her addiction, had two young children, one of whom had cerebral palsy and required institutional care, was described as a “model prisoner”, and had an offer of employment from a former employer. State v. Huff, 760 S.W.2d 633, 1988 Tenn. Crim. App. LEXIS 483 (Tenn. Crim. App. 1988).

Release eligibility statute does not apply to a community corrections sentence where sentences which are solely performed in a community corrections program do not involve a period of confinement and thus do not affect the overcrowded conditions in the state prison system. State v. Sutton, 166 S.W.3d 686, 2005 Tenn. LEXIS 609 (Tenn. 2005).

3. Sentence Served Outside District.

4. Credits.

Court of criminal appeals did not err in ruling that defendant was entitled to credit for time served until the date of issuance of the revocation warrant because the filing of the revocation warrant began the tolling of sentence credits in a community corrections program; the legislative objectives of the Community Corrections Act, T.C.A. § 40-36-104, contemplated intensive supervision of the offenders as essential to a successful program. State v. McNack, 356 S.W.3d 906, 2011 Tenn. LEXIS 1147 (Tenn. Dec. 13, 2011).

5. Petition for Revocation of Alternative Sentence.

40-36-105. Duties of the department of correction.

In addition to those otherwise provided by law, the department of correction has the following powers, duties and responsibilities:

Administer this chapter within the goals and mandates of this chapter;
Conduct statewide public education concerning the purposes and goals of this chapter and make a report to the committee of the house of representatives having oversight over corrections, judiciary committee of the senate, and fiscal review committee regarding the effectiveness of diversion of offenders from state correctional institutions;
Provide technical assistance and training to local governments, private agencies and local community corrections advisory boards regarding community corrections and this chapter;
Facilitate the development of local community corrections plans;
Develop minimum standards, policies and administrative rules in accordance with the requirements of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, for the statewide implementation of this chapter;
Develop and implement an application process and procedures;
Review community corrections plans and provide grant funding; and
Conduct an annual program evaluation of all programs once per year or as often as needed to ensure program accountability.

Acts 1985 (1st Ex. Sess.), ch. 3, § 14; 1998, ch. 1049, § 45; 2012, ch. 727, § 46; 2013, ch. 236, § 44; 2019, ch. 345, § 61.

Compiler's Notes. For the Preamble to the act concerning the transfer of certain functions relating to probation and parole services and the community correction grant program from the board of probation and parole to the department of correction, please refer to Acts 2012, ch. 727.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended the introductory paragraph, shall be fully accomplished on or before January 1, 2013.

Amendments. The 2016 amendment substituted “the committee of the house of representatives having oversight over corrections” for “the criminal justice committee of the house of representatives” in (2).

The 2019 amendment substituted “the committee of the house of representatives having oversight over corrections” for “the criminal justice committee of the house of representatives” in (2).

Effective Dates. Acts 2019, ch. 345, § 148. May 10, 2019.

Attorney General Opinions. The Tennessee Department of Correction has the sole authority to supervise and direct the community corrections program and establish standards according to which community corrections grantees and their employees must operate. Under the current standards, community corrections officers do not have authority to conduct searches. A court may impose conditions on an individual who is sentenced to community corrections, including requiring the individual to consent to searches of his home or property., but a court may not order or authorize a community corrections officer to conduct a search of an offender if the officer lacks authority to do so. OAG 18-08, 2018 Tenn. AG LEXIS 7 (3/8/2018).

NOTES TO DECISIONS

1. Petition for Writ.

2. Petition Properly Denied.

Trial court properly denied petitioner a writ of error coram nobis because he failed to present newly discovered evidence to establish a reasonable basis for concluding that had the evidence been presented at trial, the result of the proceedings might have been different; because petitioner's trial counsel possessed the information prior to petitioner's trial, the reports generated by a forensics laboratory could not qualify as newly discovered evidence. Nunley v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 162 (Tenn. Crim. App. Mar. 3, 2017), aff'd, 552 S.W.3d 800, 2018 Tenn. LEXIS 382 (Tenn. July 19, 2018).

Tennessee Bureau of Investigation (TBI) report could not qualify as newly discovered evidence because petitioner was aware prior to his trial that the TBI would not perform any testing; petitioner testified at the hearing on his petition for post-conviction relief that his original attorney informed him that the TBI could not do a comparison because the sample was too small. Nunley v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 162 (Tenn. Crim. App. Mar. 3, 2017), aff'd, 552 S.W.3d 800, 2018 Tenn. LEXIS 382 (Tenn. July 19, 2018).

Even if two letters from the assistant district attorney to the Tennessee Bureau of Investigation requesting testing qualified as newly discovered evidence, the letters would not entitle petitioner to coram nobis relief because no reasonable basis existed for concluding that had the evidence been presented at trial, the result of the proceedings might have been different; neither letter contained any information that touched upon petitioner's guilt or innocence. Nunley v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 162 (Tenn. Crim. App. Mar. 3, 2017), aff'd, 552 S.W.3d 800, 2018 Tenn. LEXIS 382 (Tenn. July 19, 2018).

Information contained in a memo from an assistant district attorney general did not qualify as newly discovered evidence because the memo did not exonerate petitioner; testing performed by a forensics laboratory did not determine that there was no match between petitioner and the victim but rather that only the victim's slacks were positive for any of the components of semen, and the results were no different than those available to petitioner prior to trial. Nunley v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 162 (Tenn. Crim. App. Mar. 3, 2017), aff'd, 552 S.W.3d 800, 2018 Tenn. LEXIS 382 (Tenn. July 19, 2018).

Denial of defendant's petition for writ of error coram nobis was appropriate because the allegedly newly discovered evidence, a police recording of a statement made by a witness before defendant's trial, was not in any way exculpatory and, in light of the incriminatory information contained within the statement, had the statement by the witness been presented at trial it could not have been said that the result of the proceedings might have been different. State v. Johnson, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 329 (Tenn. Crim. App. May 1, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 505 (Tenn. Aug. 8, 2018).

40-36-106. Eligible offenders.

1. An offender who meets all of the following minimum criteria shall be considered eligible for punishment in the community under this chapter:
  1. Persons who, without this option, would be incarcerated in a correctional institution;
  2. Persons who are convicted of property-related or drug- or alcohol-related felony offenses or other felony offenses not involving crimes against the person as provided in title 39, chapter 13, parts 1-5;
  3. Persons who are convicted of nonviolent felony offenses;
  4. Persons who are convicted of felony offenses in which the use or possession of a weapon was not involved;
  5. Persons who do not demonstrate a present or past pattern of behavior indicating violence; and
  6. Persons who do not demonstrate a pattern of committing violent offenses.
2. Persons who are sentenced to incarceration or are on escape at the time of consideration will not be eligible for punishment in the community.
Offenders shall not be excluded from the program on the basis of prior convictions for nonviolent felony offenses, but may, at the discretion of the court and local community corrections advisory board, be excluded on the basis of prior convictions for felony offenses that would not meet the eligibility criteria provided in subsection (a).
Felony offenders not otherwise eligible under subsection (a), and who would be usually considered unfit for probation due to histories of chronic alcohol or drug abuse or mental health problems, but whose special needs are treatable and could be served best in the community rather than in a correctional institution, may be considered eligible for punishment in the community under this chapter.
The eligibility criteria established in this section shall be interpreted as minimum state standards, guiding the determination of eligibility of offenders under this chapter.
1. Notwithstanding any law to the contrary, the court is authorized to sentence an eligible defendant as defined in this section to any appropriate community-based alternative to incarceration provided in accordance with the terms of this chapter, and under the additional terms and conditions as the court may prescribe, in lieu of incarceration in a state penal institution or local jail or workhouse.
2. In sentencing an eligible defendant to any community-based alternative to incarceration, the court shall possess the power to set the duration of the sentence for the offense committed at any period of time up to the maximum sentence within the appropriate sentence range and shall retain the authority to alter or amend at any time the length, terms or conditions of the sentence imposed.
3. 1. The court also has the power to terminate an offender from the program and to place the offender on supervised or unsupervised probation upon a showing that the offender did abide by the conditions imposed on the original sentence and that the offender's placement on probation presents no substantial risk to public safety. This authority of the court extends to offenders not originally eligible for probation after service of at least one (1) year.
  2. Failure to comply with the terms of probation subjects the offender to revocation proceedings conducted by the court pursuant to § 40-35-311. If incarcerated, the offender receives credit only for actual time served in the community-based alternative program.
4. The court shall also possess the power to revoke the sentence imposed at any time due to the conduct of the defendant or the termination or modification of the program to which the defendant has been sentenced, and the court may resentence the defendant to any appropriate sentencing alternative, including incarceration, for any period of time up to the maximum sentence provided for the offense committed, less any time actually served in any community-based alternative to incarceration. The resentencing shall be conducted in compliance with § 40-35-210.
5. The district attorney general, victim, defense attorney and probation and parole officer should be consulted regarding potential referrals to the program; however, the court shall have the final decision.
Nothing in this section shall prevent a court from permitting an eligible defendant to participate in a community-based alternative to incarceration as a condition of probation in conjunction with a suspended sentence, split confinement or periodic confinement as provided in chapter 35 of this title.

Acts 1985 (1st Ex. Sess.), ch. 3, § 6; 1993, ch. 221, § 2; 1996, ch. 675, § 38; 1998, ch. 1049, § 48; 2005, ch. 353, § 17.

Compiler's Notes. Acts 2005, ch. 353, § 18 provided that the act, which added the last sentence of subdivision (e)(4), shall apply to sentencing for criminal offenses committed on or after June 7, 2005. Offenses committed prior to June 7, 2005, shall be governed by prior law, which shall apply in all respects. However, for defendants who are sentenced after June 7, 2005, for offenses committed on or after July 1, 1982, the defendant may elect to be sentenced under the provisions of the act by executing a waiver of such defendant's ex post facto protections. Upon executing such a waiver, all provisions of the act shall apply to the defendant.

Acts 2005, ch. 353, § 19 provided that the act, which added the last sentence of subdivision (e)(4), shall have no application to sentencing for persons convicted of murder in the first degree, which shall be governed by the provisions of §§ 39-13-202 — 39-13-208.

Cross-References. Consecutive sentences, § 40-35-115.

Eligibility for parole, § 40-28-115.

Eligibility for probation, § 40-35-303.

Enhancement factors, § 40-35-114.

Mitigating factors, § 40-35-113.

Sentence ranges, § 40-35-112.

Sentencing alternatives, § 40-35-104.

Textbooks. Tennessee Forms (Robinson, Ramsey and Harwell), No. 3-32-6.

Law Reviews.

Long-term Residential Substance Abuse Treatment and its Effect on Recidivism (Hon. Seth Norman), 36 No. 6 Tenn. B.J. 20 (2000).

Attorney General Opinions. Resentencing of one sentenced to community corrections, OAG 99-111, 1999 Tenn. AG LEXIS 111 (5/13/99).

No credit as actual time served for time spent on probation, OAG 99-111, 1999 Tenn. AG LEXIS 111 (5/13/99).

An offender is ineligible for community corrections if, at the time of consideration, the offender is already serving a sentence of incarceration or has already been sentenced to incarceration, even if the community corrections sentence is proposed to run consecutively to the sentence of incarceration or if the intent is for the community corrections sentence to begin at the expiration of the existing sentence of incarceration; further, it is immaterial whether the period of incarceration which disqualifies an offender is to be served in the department of correction, is a part of a judgment ordering split confinement or periodic confinement, or is for a misdemeanor sentence, OAG 00-078, 2000 Tenn. AG LEXIS 81 (4/27/00).

The Tennessee Department of Correction has the sole authority to supervise and direct the community corrections program and establish standards according to which community corrections grantees and their employees must operate. Under the current standards, community corrections officers do not have authority to conduct searches. A court may impose conditions on an individual who is sentenced to community corrections, including requiring the individual to consent to searches of his home or property., but a court may not order or authorize a community corrections officer to conduct a search of an offender if the officer lacks authority to do so. OAG 18-08, 2018 Tenn. AG LEXIS 7 (3/8/2018).

NOTES TO DECISIONS

1. Construction.

The Tennessee Criminal Sentencing Reform Act, compiled in title 40, chapter 35, and the Community Corrections Act are in pari materia. Consequently, when a trial court opts to resentence a defendant to a sentence more severe than the original, the trial court must conduct a sentencing hearing pursuant to the principles of the Sentencing Reform Act. State v. Crook, 2 S.W.3d 238, 1998 Tenn. Crim. App. LEXIS 1321 (Tenn. Crim. App. 1998).

2. Applicability.

Where a defendant contends he should have been sentenced pursuant to the Community Corrections Act, the appellate court must consider the eligibility criteria of T.C.A. § 40-36-106(a) as well as the report of the entity administering the Community Corrections Act in the particular county. State v. Taylor, 744 S.W.2d 919, 1987 Tenn. Crim. App. LEXIS 2404 (Tenn. Crim. App. 1987).

Defendant convicted for writing bad checks should have been sentenced under the Community Corrections Act where defendant had made restitution for all checks, was drug-free and receiving counseling for her addiction, had two young children, one of whom had cerebral palsy and required institutional care, was described as a “model prisoner,” and had an offer of employment from a former employer. State v. Huff, 760 S.W.2d 633, 1988 Tenn. Crim. App. LEXIS 483 (Tenn. Crim. App. 1988).

Defendant, a respiratory technician, convicted of eight counts of fraudulently obtaining a controlled substance should have been sentenced to community corrections rather than incarceration since he met the eligibility criteria of T.C.A. § 40-36-106. State v. Cummings, 868 S.W.2d 661, 1992 Tenn. Crim. App. LEXIS 310 (Tenn. Crim. App. 1992).

3. Purpose.

The purpose of T.C.A. § 40-36-106 is to permit a trial court to impose a new sentence if the nature, circumstances, and frequency of the accused's violations warrant a different type of alternative sentence or incarceration. However, the statute does not permit a trial court to arbitrarily establish the length of the new sentence, and it should not be used by the trial courts for the sole and exclusive purpose of punishing an accused for violating provisions of a community corrections sentence. State v. Cooper, 977 S.W.2d 130, 1998 Tenn. Crim. App. LEXIS 427 (Tenn. Crim. App. 1998).

The purpose of allowing a trial court to impose a new sentence is that the nature, circumstances and frequency of the defendant's violations may warrant a different type of alternative sentence or incarceration. The trial court may not, however, use the statute for the sole purpose of punishing a defendant for violating the community corrections sentence. State v. Crook, 2 S.W.3d 238, 1998 Tenn. Crim. App. LEXIS 1321 (Tenn. Crim. App. 1998).

4. Policy.

T.C.A. § 40-36-106(e)(2) and (3) reflect the policy that the sentencing of a defendant to a community based alternative to incarceration is not final, but is designed to provide a flexible alternative that can be of benefit both to the defendant and to society and allows the court to monitor the defendant's conduct while in the community corrections program. State v. Griffith, 787 S.W.2d 340, 1990 Tenn. LEXIS 156 (Tenn. 1990).

The “front-end community based alternative,” as provided in T.C.A. § 40-36-106, was designed to provide a degree of flexibility consistent with societal aims not previously available under the more traditional methods of correction. State v. Kendrick, 10 S.W.3d 650, 1999 Tenn. Crim. App. LEXIS 926 (Tenn. Crim. App. 1999).

5. Nonviolent Offense.

Bank robbery is clearly a felony offense involving a “crime against the person,” and by definition it cannot be considered a “nonviolent offense” for purposes of T.C.A. § 40-36-106, even where the perpetrator is unarmed and makes no physical contact with the victim. State v. Staten, 787 S.W.2d 934, 1989 Tenn. Crim. App. LEXIS 727 (Tenn. Crim. App. 1989).

6. Relation to Probation.

In order to qualify under the special needs provision of T.C.A. § 40-36-106, the defendant must be statutorily eligible for probation; because one convicted of aggravated sexual battery is not eligible for probation, the defendant is not eligible for community corrections. State v. Cowan, 40 S.W.3d 85, 2000 Tenn. Crim. App. LEXIS 412 (Tenn. Crim. App. 2000).

7. Escape.

Community corrections does not qualify as a penal institution for purposes of T.C.A. § 39-16-605, and a violation of the conditions of a community corrections sentence is not included in the criminal offense of escape from a penal institution. Bentley v. State, 938 S.W.2d 706, 1996 Tenn. Crim. App. LEXIS 569 (Tenn. Crim. App. 1996), overruled in part, State v. West, 19 S.W.3d 753, 2000 Tenn. LEXIS 244 (Tenn. 2000).

8. Requirement of a Written Application.

While submitting a written application for a sentence under this chapter may be preferable, it is not mandatory. State v. Estep, 854 S.W.2d 124, 1992 Tenn. Crim. App. LEXIS 930 (Tenn. Crim. App. 1992), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 116 (Tenn. Mar. 22, 1993).

Trial courts have the authority to place defendants into a community corrections program whether or not the defendant has made a written application, particularly when the trial court is in possession of all information that might otherwise be contained in a formal request. State v. Estep, 854 S.W.2d 124, 1992 Tenn. Crim. App. LEXIS 930 (Tenn. Crim. App. 1992), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 116 (Tenn. Mar. 22, 1993).

9. Conditions of Sentence.

The trial court abused its discretion in requiring a defendant to liquidate his business as a condition of his participation in the Community Corrections Program. State v. Matheny, 884 S.W.2d 480, 1994 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. 1994).

A reasonableness test is used in order to determine if the trial court abused its discretion in imposing additional terms or conditions under the Community Corrections Act. State v. Matheny, 884 S.W.2d 480, 1994 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. 1994).

Trial court did not abuse its discretion by revoking defendant's community corrections sentence and ordering him to serve his sentence for aggravated domestic assault in confinement because defendant admitted at the revocation hearing, and acknowledged on appeal, that he violated the terms of community corrections by testing positive for marijuana, failing to pay his fines and court costs every month, failing to pay a donation, and failing to complete an outpatient program from drug and alcohol treatment and anger management. State v. Maness, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 755 (Tenn. Crim. App. Oct. 4, 2018).

10. Alternative Sentencing Denied.

Trial court correctly held that defendant did not qualify for sentencing pursuant to the Tennessee Community Corrections Act of 1985 where defendant entered guilty pleas to the offenses of second degree murder and aggravated assault. State v. Birge, 792 S.W.2d 723, 1990 Tenn. Crim. App. LEXIS 69 (Tenn. Crim. App. 1990), appeal denied, 1990 Tenn. LEXIS 248 (Tenn. June 11, 1990).

Trial judge properly denied defendant's petition for community corrections where the record showed that he was a drug dealer and that he kept a 9mm pistol at his stash house for the purpose of protecting himself, his drugs or the money acquired as a result of his drug business. State v. Grandberry, 803 S.W.2d 706, 1990 Tenn. Crim. App. LEXIS 829 (Tenn. Crim. App. 1990).

Trial court properly denied defendant's request for a community corrections sentence where he had eight prior convictions for aggravated burglary and past efforts at rehabilitation had failed. State v. Grigsby, 957 S.W.2d 541, 1997 Tenn. Crim. App. LEXIS 21 (Tenn. Crim. App. 1997).

Aggravated sexual battery is considered a violent offense to the person; thus, a defendant convicted of this offense is ineligible for community corrections under T.C.A. § 40-36-106. State v. Cowan, 40 S.W.3d 85, 2000 Tenn. Crim. App. LEXIS 412 (Tenn. Crim. App. 2000).

In a case in which a plea agreement was entered into by which defendant would plead guilty to one count of violating T.C.A. § 39-17-417(i) for an eight-year sentence and to petition the trial court for placement in a community corrections program, and, pursuant to T.R.A.P. 9, the appellate court granted defendant's application for an interlocutory appeal of the trial court's rejection of the agreement based on defendant's ineligibility for probation and consequent ineligibility for placement in a community corrections program, the trial court erred in withholding its approval of the plea agreement upon a finding that defendant was ineligible for consideration of community corrections under T.C.A. § 40-36-106(a) because he was ineligible for probation. State v. Johnson, 342 S.W.3d 520, 2009 Tenn. Crim. App. LEXIS 877 (Tenn. Crim. App. Oct. 19, 2009).

Trial court properly denied a community corrections sentence based on the circumstances of the defendant's offense, including defendant's abuse of a position of public trust, the need for deterrence, and the best interests of the public. State v. Graham, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 1039 (Tenn. Crim. App. Nov. 27, 2013), review denied and ordered not published, — S.W.3d —, 2014 Tenn. LEXIS 379 (Tenn. May 15, 2014), overruled, State v. King, 432 S.W.3d 316, 2014 Tenn. LEXIS 351 (Tenn. Apr. 23, 2014).

Record supported the trial court's conclusion that confinement was necessary to avoid depreciating the serious nature of defendant's convictions, including the repeated sale of heroin, a Schedule I substance, and defendant's continuing to possess a firearm despite having been previously convicted of several felonies. Nothing in the record suggested that defendant should have been placed on community corrections. State v. Lewis, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 745 (Tenn. Crim. App. Aug. 22, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 880 (Tenn. Dec. 6, 2017).

Trial court had more than substantial evidence to order defendant to serve her sentence in confinement, as defendant admitted to taking drugs from the hospital over 483 times and to being intoxicated while working with patients in the emergency room, after pleading guilty to one count of theft or more and six counts of obtaining a controlled substance by fraud, she obtained and pled guilty to three new charges, and she repeatedly lied to her probation officer and she lied to her co-workers. State v. Reynolds, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 812 (Tenn. Crim. App. Sept. 6, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 38 (Tenn. Jan. 18, 2018).

Trial court did not err by denying defendant's request for an alternative sentence because defendant was statutorily ineligible for community corrections as defendant's convictions for reckless endangerment and aggravated burglary were crimes against a person. Furthermore, defendant was not an appropriate candidate for release on community corrections under the special needs exception because none of the programs available in the community to treat defendant recommended defendant for enhanced probation. State v. Ray, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 162 (Tenn. Crim. App. Mar. 2, 2018).

Trial court properly denied probation for defendant, who had a history of committing drug distribution offenses and had been granted probation multiple times, only to violate his probation and be incarcerated. The trial court thoroughly considered all of the evidence before it prior to denying probation and ordering incarceration, and the trial court stated its reasons for doing so. State v. Keith, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 252 (Tenn. Crim. App. Apr. 22, 2019).

When the trial court revoked defendant's probation and sentenced defendant to incarceration, defendant was not entitled to alternative sentencing, or another grant of probation, because the trial court noted that based on defendant's very poor history on probation—defendant's failed drug tests, failure to report to her probation officer, failure to visit a forensic social worker, failure pay court costs and fines—it did not believe that there was any alternative less restrictive than confinement that was justice in the case. State v. Jenkins, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 246 (Tenn. Crim. App. Apr. 17, 2019).

Trial court did not err in denying defendant's request for an alternative sentence because defendant admittedly was not eligible for probation and community correction was not appropriate given that defendant was on release sentence when he was charged with delivery of cocaine, had been tried multiple times on release status without being able to comply, and had multiple convictions for delivery of cocaine. State v. Dewalt, — S.W.3d —, (Tenn. Crim. App. July 12, 2019).

11. Petition for Revocation

12. Revocation of Sentence.

County revocation procedures violated due process where there was a lack of proper notice and a hearing prior to the revocation to determine whether a violation of the defendant's sentence actually occurred and what modification best served the purposes of criminal sentencing. Bentley v. State, 938 S.W.2d 706, 1996 Tenn. Crim. App. LEXIS 569 (Tenn. Crim. App. 1996), overruled in part, State v. West, 19 S.W.3d 753, 2000 Tenn. LEXIS 244 (Tenn. 2000).

When a trial court revokes a community corrections sentence, it has authority to resentence the accused, however, if the court opts to impose a sentence which exceeds the length of the initial sentence, it must conduct a sentencing hearing pursuant to the Criminal Sentencing Reform Act of 1989. State v. Ervin, 939 S.W.2d 581, 1996 Tenn. Crim. App. LEXIS 685 (Tenn. Crim. App. 1996).

Where defendant was placed on community corrections and not probation, the trial court had the authority upon revocation of the community corrections sentence to resentence defendant pursuant to T.C.A. § 40-36-106(e)(4). State v. Samuels, 44 S.W.3d 489, 2001 Tenn. LEXIS 384 (Tenn. 2001).

When resentencing a defendant following the revocation of the community corrections, the trial court must conduct a sentencing hearing in accordance with the principles and procedures of the Criminal Sentencing Reform Act T.C.A. § 40-35-101 et seq., which obviously addresses consecutive sentencing. State v. Samuels, 44 S.W.3d 489, 2001 Tenn. LEXIS 384 (Tenn. 2001).

Defendant was advised that obtaining advance permission to leave the residence was mandatory, yet she left five times without permission; defendant had been given repeated chances to comply and the record clearly supported the trial court's conclusion that defendant violated this condition of her community corrections supervision by being absent from her home, and thus the trial court properly revoked defendant's community corrections sentence and ordered her to serve her concurrent, eight-year terms in confinement. State v. Nix, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 656 (Tenn. Crim. App. Sept. 1, 2016).

Trial court did not abuse its discretion by revoking defendant's community corrections sentences; defendant violated the terms of his community corrections, he was not impeded from reporting to his case officer, he failed to pay supervision fees, and he continued to sell drugs. State v. Hardison, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 249 (Tenn. Crim. App. Apr. 6, 2017).

In revoking defendant's community corrections supervision pursuant to T.C.A. § 40-36-106(e)(4) for violating the terms of supervision, the trial court properly ordered defendant to serve his sentence in confinement. There was overwhelming evidence supporting the trial court's judgment requiring defendant to serve the balance of the sentence. State v. Burris, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 417 (Tenn. Crim. App. May 19, 2017).

Trial court did not abuse its discretion by ordering defendant to serve the remainder of his eight-year sentence in confinement after finding that he violated the terms of his community corrections sentence by giving his community corrections officer a fake prescription form as he knew that he would test positive on his drug screen because it was the fourth time defendant violated the terms of community corrections sentence, the trial court gave defendant numerous opportunities to abide by its requirements, and the trial court found that his actions were far worse than testing positive for the drugs because he actively misrepresented information to the officer. State v. Norris, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 877 (Tenn. Crim. App. Sept. 28, 2017).

Trial court acted well within its proper authority in revoking defendant's community corrections sentence given defendant's pattern of repeatedly violating the rules of supervision, involvement in drugs, and failure to complete various court-ordered drug treatment programs. The trial court's partial reliance on a curfew violation that was not alleged in the violation warrant was harmless given the additional violations alleged in the warrant that were supported by the evidence. State v. Franklin, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 228 (Tenn. Crim. App. Mar. 27, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 442 (Tenn. July 18, 2018).

Trial court did not abuse its discretion in revoking community corrections and imposing defendant's original sentence of confinement; defendant admitted to two violations of his community corrections and the trial court did not abuse its discretion in finding those violations, and the trial court properly credited defendant with time served in community corrections. State v. Wilson, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 456 (Tenn. Crim. App. June 21, 2018).

Trial court did not err in revoking defendant's community corrections sentence, and in ordering defendant to serve the remainder of his sentence in confinement because defendant did not dispute that he was in violation of the terms of his sentence as defendant admitted that he did not report to his community corrections officer for over four years; and, having revoked defendant's community corrections sentence, it was within the trial court's discretion to order defendant to serve the remainder of his sentence in confinement. State v. Spears, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 459 (Tenn. Crim. App. June 22, 2018).

Defendant was properly ordered to serve the rest of defendant's sentence in confinement, upon revocation of defendant's community corrections sentence, because (1) defendant's violation was shown by a preponderance of the evidence, and (2) this was the third time defendant violated the conditions of defendant's community corrections sentence. State v. Bateman, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 367 (Tenn. Crim. App. June 26, 2019).

Sufficient evidence supported the trial court's revocation of defendant's community corrections sentence; defendant conceded that his federal conviction for illegally reentering the country violated the terms of his suspended sentence. State v. Espinoza, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 81 (Tenn. Crim. App. Feb. 11, 2020).

In connection with the revocation of defendant's community corrections sentence, defendant cited no law that his detention by immigration authorities was an invalid basis for a violation warrant, but despite any waiver, the detention itself was not the sole or primary violation alleged, the trial court seemed to rely exclusively on his federal conviction in revoking his sentence, he waived any due process challenge related to the lack of an amended warrant, and he had actual notice of the alleged violation. State v. Espinoza, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 81 (Tenn. Crim. App. Feb. 11, 2020).

13. Incarceration and Extension of Probation.

14. Finality and Severity of Sentence.

A defendant sentenced under the Tennessee Community Corrections Act has no legitimate expectation of finality in the severity of the sentence, but is placed on notice by the Act itself that upon revocation of the sentence due to the conduct of the defendant, a greater sentence may be imposed. This being so, the decision to resentence a defendant to a sentence greater than his original sentence does not subject the defendant to multiple punishments for the same offense. State v. Griffith, 787 S.W.2d 340, 1990 Tenn. LEXIS 156 (Tenn. 1990).

Upon termination of defendant's participation in a community corrections program for failure to comply with conditions thereof, T.C.A. § 40-36-106 did not authorize resentencing within a higher range than that of the original sentence. State v. Patty, 922 S.W.2d 102, 1995 Tenn. LEXIS 153 (Tenn. 1995).

15. Credits.

Petitioner was entitled to a writ of habeas corpus and immediate release because the sentencing court failed to give him mandatory credit for time served on community corrections, pursuant to T.C.A. § 40-36-106(e)(3)(B), following revocation of community corrections. Petitioner was not required to follow administrative procedures. Jackson v. Parker, 366 S.W.3d 186, 2011 Tenn. Crim. App. LEXIS 300 (Tenn. Crim. App. Apr. 27, 2011).

Appellate court agreed with the State's concession that defendant was entitled to credit toward his sentence for time spent in community corrections from the time after an amended judgment was entered until the warrant for a violation was issued. State v. Colligan, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 410 (Tenn. Crim. App. July 12, 2019).

16. Postconviction Challenge to Revocation.

Trial court erred in dismissing inmate's postconviction petition, because the inmate could challenge the revocation of a community corrections sentence in a postconviction proceeding on the ground of ineffective assistance of counsel, when an attorney's ineffectiveness in the “revocation portion” of a community corrections revocation hearing could affect the “resentencing portion” of the same proceeding in the form of a sentence that was greater than the sentence originally imposed. Carpenter v. State, 136 S.W.3d 608, 2004 Tenn. LEXIS 575 (Tenn. 2004).

Part 2
Local Community Corrections Advisory Board

40-36-201. Creation and composition of local community corrections advisory board.

1. To qualify for funding under this chapter, a local community corrections advisory board shall be established by the county legislative body. The board shall represent a cross-section of the local population, shall ensure minority and female representation and shall consist, at a minimum, of the following representatives or their designees:
  1. A representative of county government nominated by the county mayor and confirmed by the county legislative body;
  2. The sheriff of the county;
  3. The district attorney general of the judicial district in which the county is located;
  4. A criminal defense attorney residing in the county, nominated by the presiding judge of the judicial district in which the county is located and confirmed by the county legislative body;
  5. A representative of a nonprofit human service agency, nominated by the county mayor and the other local community corrections advisory board members who serve by virtue of their elected office and confirmed by the county legislative body;
  6. Two (2) state probation and parole officers assigned to work in the county, nominated by the department of correction and confirmed by the county legislative body; and
  7. At a minimum, three (3) private citizens residing in the county, nominated by the county mayor and other local community corrections advisory board members who serve by virtue of their elected office and confirmed by the county legislative body. If a city participates, a citizen shall be nominated by the mayor and confirmed by the council.
2. Confirmations by the county legislative body of the appropriate representatives shall be by majority vote. The size of the local community corrections advisory board shall be determined locally but must meet the minimum number and type of representatives.
The sheriff and district attorney general shall serve on the local community corrections advisory board during their terms of office. In order to provide staggered terms on the local community corrections advisory board, the positions on the board identified as the county government representative, the criminal defense attorney, one (1) of the probation and parole officers and one (1) private citizen representative shall be initially appointed to a term of three (3) years, and thereafter to terms of two (2) years. The remaining members of the board shall be appointed for a term of two (2) years. Vacancies shall be filled in the same manner as original appointments for any unexpired term. Members of the local community corrections advisory board may be reappointed to the board in accordance with the procedures set forth in subsection (a).
Where two (2) or more counties within a single judicial district combine and apply for funds under this chapter, they may establish one (1) community corrections advisory board serving the jurisdictions involved. At a minimum, this board shall include all of the positions set forth in subsection (a). The representatives to fill the positions may come from any of the participating counties and may be selected as determined by agreement of the legislative bodies of the counties involved.

Acts 1985 (1st Ex. Sess.), ch. 3, § 7; 1987, ch. 449, § 1; 1998, ch. 1049, §§ 44, 49-51; 2003, ch. 90, § 2; 2012, ch. 727, § 46.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended subdivision (a)(1)(F), shall be fully accomplished on or before January 1, 2013.

40-36-202. Duties of local community corrections advisory board — Staff — Meetings and officers.

The local community corrections advisory board is empowered by resolution of the county legislative body to perform the following duties:
1. Assess community-wide needs and advise the county legislative body regarding specific program options;
2. Participate in the establishment of local eligibility standards for local community corrections programs that meet the local needs of the community;
3. Adopt the local community corrections plan for submission to the county legislative body;
4. Adopt program policies;
5. Recommend to the county legislative body the awarding of subcontracts to proprietary, nonprofit or governmental entities to provide community corrections services, in their discretion;
6. Monitor the effectiveness of local community correctional services and advise the county legislative body regarding needed modifications;
7. Inform and educate the general public regarding the need for diversion of selected nonviolent offenders from confinement in correctional institutions in order to gain greater public support for corrections; and
8. Make an annual report to the county legislative body of the progress of the programs.
The county legislative body may authorize either the local community corrections advisory board or the county mayor to employ, supervise and/or terminate the program staff, who shall be deemed county employees.
Employees hired by the county to administer this chapter in the community shall meet minimum qualifications as set forth by the department of correction in statewide administrative regulations. The local community corrections advisory board or the county mayor, as designated by the county legislative body, shall review and confirm all potential candidates for employment.
Any local community corrections advisory board initially created under this chapter shall receive an orientation developed and conducted by the local government with the assistance of the department of correction within thirty (30) days after the last initial appointment to the board is made.
Each local community corrections advisory board shall meet on a regular basis to transact business, and each local community corrections advisory board shall elect its own chair, vice chair, secretary and necessary committees.

Acts 1985 (1st Ex. Sess.), ch. 3, § 8; 1986, ch. 731, § 1; 1994, ch. 819, §§ 1, 2; 1998, ch. 1049, §§ 44, 45; 2003, ch. 90, § 2; 2012, ch. 727, § 46.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended subsections (c) and (d), shall be fully accomplished on or before January 1, 2013.

Part 3
Finances

40-36-301. Eligibility for financial aid.

A single county or a group of counties within a single judicial district shall be eligible for direct financial aid under this chapter.
A private agency may be eligible for direct financial aid under this chapter only in a county that has not established a local community corrections advisory board, and only after the county legislative body in the county has received notice that an application for direct financial aid has been made by a private agency and fails to establish a local community corrections advisory board within thirty (30) days; however, nothing in this chapter shall prohibit a private agency from receiving indirect financial aid for such a program through a local community corrections advisory board once the board is established by the county legislative body.
1. Entities eligible for financial aid under this chapter and entering into agreements for the aid shall receive one hundred percent (100%) state funding with no local matching funds required for the estimated cost of the program; provided, that this section shall not prohibit the use of federal funds. In order to receive the funding, each eligible entity shall submit an application to the county commission in a form to be determined by the department of correction.
2. Agreements for the aid must contain a statement of the agreed to amount representing one hundred percent (100%) of the estimated cost of the program, or in lieu thereof, the specific formula or method or methods as to how the amount of the one hundred percent (100%) funding will be calculated.
Where a group of counties combine and submit a joint application for funds, the application shall contain a cooperative agreement indicating each jurisdiction's willingness to collaborate in the proposed program and to meet specific objectives. In addition, the multijurisdictional applications shall provide for the appointment of one (1) fiscal agent to coordinate the financial activities of the grant award.
A county legislative body that does not establish a local community corrections advisory board may request that the department of correction operate the program in that county. The department of correction shall establish an advisory council substantially similar in composition to the council described in § 40-36-201, which shall advise the department of correction on program operations within that county.

Acts 1985 (1st Ex. Sess.), ch. 3, § 9; 1986, ch. 731, § 2; 1988, ch. 552, § 1; 1994, ch. 820, § 1; 1998, ch. 1049, §§ 44-46; 2012, ch. 727, § 46.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended subdivision (c)(1) and subsection (e), shall be fully accomplished on or before January 1, 2013.

40-36-302. Community-based options and services.

Community corrections funds can be used to develop or expand the range of community punishments and services at the local level. Community-based program options may include, but are not limited to, the following:
1. Noncustodial community corrections options that involve close supervision but that do not involve housing of the offender in a jail, workhouse or community facility. Examples include, but are not limited to:
  1. Community service supervision;
  2. Victim restitution supervision and victim-offender mediation;
  3. Alcohol or drug outpatient treatment;
  4. House arrest; and
  5. Psychiatric counseling;
2. 1. Short-term community residential treatment options that involve close supervision in a residential setting. Examples include, but are not limited to:
    1. Emergency shelters;
    2. Detoxification centers;
    3. Community residential restitution centers for nonviolent offenders and probation and parole violators;
    4. Community residential treatment centers for special needs offenders and probation and parole violators; and
    5. Inpatient drug or alcohol treatment;
  2. The residential options are not intended to create overcrowding in the local jail, but rather to develop additional small community-based facilities whose focus is on treatment rather than detention;
3. Enrolling community corrections participants in residential in-house drug and alcohol treatment for detoxification and counseling. Enrollments shall be based upon an objective assessment that a participant is alcohol or drug dependent and requires detoxification. Awards for detoxification services shall only be made for inpatient services; and
4. Individualized services that evaluate and treat the special needs of the population served under this chapter. Services to the court to assist in the evaluation and screening of eligible candidates may include the purchase of psychological, medical, educational or vocational, drug or alcohol urine screening and client specific plan diagnostic evaluations. Other services that may be purchased on an individualized basis may include job training, alcohol or drug counseling, individual or family counseling, GED(R) or transportation subsidies. These services are intended to fill gaps in the local community correctional system and to enable the nonviolent offender to be treated near the offender's home.
The options set out in subsection (a) may be used in conjunction with a period of shock incarceration or in conjunction with a term of probation and/or a term of split confinement or periodic confinement as provided in chapter 35 of this title.
Community corrections funds may also be used to acquire, renovate and operate community facilities established to provide the options and services set forth in subsection (a).
Counties may provide or contract with qualified proprietary, nonprofit or governmental entities for the provision of services under this chapter.
Any options or services established under this chapter shall serve offenders from the entire judicial district in which the county is located.
Any community-based program set out in subsection (a) that provides housing for alternatively sentenced criminal offenders shall notify the chief law enforcement officer of the county and the chief law enforcement officer of the municipality in which the housing facilities exist of the identity, criminal record and location of the alternatively sentenced criminal offenders proposed to be located at the facilities. The notices shall be in compliance with the confidentiality provisions of title 33 and shall also meet the privacy requirements of the federal Health Insurance Portability and Accountability Act of 1996, (42 U.S.C. § 1320d et seq.)

Acts 1985 (1st Ex. Sess.), ch. 3, § 10; 1986, ch. 731, § 3; 2003, ch. 287, § 1.

Cross-References. Confidentiality of public records, § 10-7-504.

40-36-303. Prohibited use of funds — Administrative costs — Accounting system — Annual audit.

Recipients of community corrections funds shall not use these funds to supplant existing funds from the state or the local government for existing correctional programs. In addition, the funds shall not be utilized for the following purposes:
1. Construction, renovation or operation of county or municipal jails;
2. Construction, renovation or operation of state facilities; or
3. Salaries of state probation and parole officers.
Administrative costs connected with the expenditure of community corrections funds under this chapter shall not exceed a percentage amount established by the department of correction.
The comptroller of the treasury is directed to develop a uniform accounting system conforming to generally accepted accounting principles for the boards operating under this chapter. The uniform accounting system shall be subject to the approval of the commissioner of finance and administration. Upon the approval of the commissioner of finance and administration, each local community corrections advisory board shall establish and maintain the uniform accounting system.
1. The annual reports and all books of accounts and financial records of all funds received by grant, contract or otherwise from state, local or federal sources shall be subject to audit annually by the comptroller of the treasury or the department of correction, or both. The audit may be performed by a licensed independent public accountant selected by the local community corrections advisory board and approved by the comptroller of the treasury. The cost of any audit shall be paid by the local community corrections advisory board.
2. The comptroller of the treasury shall ensure that audits are prepared in accordance with generally accepted governmental auditing standards and determine if the audits meet minimum audit standards prescribed by the comptroller of the treasury. No audit may be accepted as meeting the requirements of this section until approved by the comptroller of the treasury.
3. All audits shall be completed as soon as practicable after the end of the fiscal year of the local community corrections advisory board. One (1) copy of each audit shall be furnished to each member of the local community corrections advisory board and the comptroller of the treasury. Copies of each audit shall also be made available to the press.

Acts 1985 (1st Ex. Sess.), ch. 3, § 11; 1998, ch. 1049, §§ 44-46; 2012, ch. 727, § 46.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended subsection (b) and subdivision (d)(1), shall be fully accomplished on or before January 1, 2013.

40-36-304. Community corrections plan — Funding criteria — Participation in and withdrawal from chapter.

A community corrections plan shall be developed by the local community corrections advisory board that sufficiently documents the local need and support for the proposed programs. The local community corrections advisory board's plan shall also have the written endorsement of the county legislative body prior to its submission to the department of correction.
The format for any community corrections plan shall be specified by the department of correction in its application process and procedures.
1. Funding under this chapter shall be granted on an annual basis, with the disbursement of funds on a quarterly basis at the beginning of each quarter after the submission and approval of an expenditure monitoring report and program monitoring report. At the end of the fiscal year, any unspent moneys by the program shall be returned to the department of correction to be used for reallocation to other programs administered by the department of correction as authorized under this chapter; provided, that counties are eligible to apply for any unspent funds that exist at the beginning of the fourth quarter.
2. The department of correction has the discretion and authority to award contracts for a period not exceeding three (3) years. The department of correction may require that a duly adopted and endorsed community corrections plan covering the full term of the contract be submitted to the department of correction. Funding and conditions of funding for the length of the contract will be negotiated between the department of correction and the grantee. Nothing in this section shall prejudice the rights of the department of correction to suspend, modify or terminate grants under § 40-36-305.
Funding under this chapter shall be granted to counties on the basis of a documentation of local need, together with consideration of whether the local community corrections advisory board's community corrections plan, including budget requests, is consistent with the goals of this chapter, the geographical and program considerations of the state and funding availability. In addition, the department of correction shall consider the following criteria pertaining to the jurisdiction in question when granting funds under this chapter:
1. Number of nonviolent felony commitments to the department of correction;
2. Population and existing conditions at the local jail;
3. Rate of felony commitments per one thousand (1,000) population within the judicial district;
4. Population of the judicial district and percent of population between eighteen (18) and twenty-nine (29) years of age;
5. Availability of local correctional services;
6. Sufficient local service capability to support the community corrections programs; and
7. Demonstrated involvement and support from the judiciary, local criminal justice or correctional officials and local government in the development of the community corrections plan.
Funding and grant evaluation criteria shall be outlined in the application process and procedures to be developed by the department of correction in order that each applicant may know the basis upon which funds will be granted.
Participation in the programs set forth in this chapter is voluntary. Any participating county may, by written authorization of its county legislative body, notify the department of correction of its intention to withdraw from the Community Corrections Act. The withdrawal will become effective on the last day of the grant year.

Acts 1985 (1st Ex. Sess.), ch. 3, § 12; 1990, ch. 616, § 1; 1998, ch. 1049, §§ 44-46; 2012, ch. 727, § 46.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended this section, shall be fully accomplished on or before January 1, 2013.

40-36-305. Continued grant funding — Additional incentive funding — Noncompliance with plan.

In order to remain eligible for continued grant funding, a recipient must substantially comply with the standards and administrative regulations of the department of correction defining program effectiveness. Each recipient will participate in an evaluation to determine local and state program effectiveness. The form of this evaluation will be determined by the department of correction.
Continued grant funding shall be based on demonstrated effectiveness in reducing the number of commitments that would likely have occurred without the programs funded under this chapter and also on evidence that the programs are not dealing with persons who otherwise would have been on regular probation; provided, that each recipient, having been deemed eligible for continued grant funding by the department of correction and having entered into an agreement with the department of correction for direct financial aid under this chapter, shall have exclusive authority to provide the contracted services within the agreed upon jurisdiction for the duration of the contract. Nothing in this subsection (b) shall be construed to diminish the department of correction's authority under this section.
Subject to funding availability, each participating county is eligible to receive additional incentive funding for extending programs to other eligible offenders or for adding new programs if it exceeds the objectives of its community corrections plan.
If the department of correction determines that there are reasonable grounds to believe that a participating county is not complying with its plan or the minimum standards, the department of correction shall give thirty (30) days' written notice to the county legislative body, the local community corrections advisory board and the administrator of the program. If the department of correction finds that the participating county is not complying with its plan or the minimum standards established in this chapter, the department of correction shall require the county legislative body to provide a written agreement as to how and when the specific deficiencies identified by the department of correction will be corrected. If no agreement is submitted to the department of correction within the time limit the department of correction has specified or if the deficiencies are not corrected within forty-five (45) days after the agreement has been approved by the department of correction, the department of correction may suspend any part or all of the funding until compliance is achieved.

Acts 1985 (1st Ex. Sess.), ch. 3, § 13; 1996, ch. 871, § 1; 1998, ch. 1049, §§ 44-46; 2012, ch. 727, § 46.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended this section, shall be fully accomplished on or before January 1, 2013.

40-36-306. Supervision fee.

A supervision fee in the amount of fifteen dollars ($15.00) per month is imposed upon every offender serving a sentence under the supervision of a community corrections grantee. The fee may be waived in those cases determined to be hardship cases, as defined in § 40-28-202.
The grantee shall be responsible for collecting and accounting for the fees.
Any fees collected pursuant to this section shall be retained by the grantee and reported to the department of correction.
The department of correction shall offset the amount of any fees collected under this section against any sums due under the grant contract with the grantee.
The grantee shall make an investigation of the financial and other circumstances of any person under its supervision and, based upon the person's ability to pay, shall require the person to pay thirty dollars ($30.00) for each month or portion of a month the person remains under the supervision of the grantee to the general fund beginning thirty (30) days from the date the offender is placed under the supervision of the grantee or, in the case of an offender, the date of employment. The payment required under this subsection (e) shall not exceed ten percent (10%) of the offender's net income. In cases of hardship as defined in § 40-28-202, the department of correction may modify the payment required by this subsection (e) to an appropriate amount given the nature and magnitude of the hardship.
In addition to any other fees imposed by this section, the trial court may assess an additional fee against any offender sentenced to participate in a community corrections program, either as a community corrections sentence or as a condition of probation, to offset the cost of the program; provided, that the program is one that has been certified by the department of correction as meeting promulgated criteria relating to achievement of goals and cost of the program.

Acts 1990, ch. 616, § 2; 1996, ch. 871, §§ 2, 3; 1996, ch. 951, § 1; 1998, ch. 1049, § 45; 2012, ch. 727, § 46.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended subsections (c)-(f), shall be fully accomplished on or before January 1, 2013.

Cross-References. Contributions required by parolees, probationers and employed releases, § 40-28-201.

Chapter 37
[Reserved]

Chapter 38
Victims' Rights

Part 1
Victims' Bill of Rights

40-38-101. Legislative intent — Short title.

The general assembly finds and declares that victims and witnesses shall have certain rights in this state and that they shall be made aware of these rights.
This part shall be known and may be cited as the “Victims' Bill of Rights.”

Acts 1990, ch. 957, § 1; 1993, ch. 527, § 1.

Cross-References. Victim-witness coordinator, § 8-7-206.

Victims of crime assistance fund, § 9-4-205.

40-38-102. Rights of crime victims and prosecution witnesses.

All victims of crime and prosecution witnesses have the right to:
1. Be treated with dignity and compassion; and
2. Protection and support with prompt action in the case of intimidation or retaliation from the defendant and the defendant's agents or friends.
1. Without requiring the expenditure of additional funds or additional construction or renovation whenever possible, victims of crime and prosecution witnesses should be provided waiting areas that are separate and secure from the defendant or defense witnesses during all stages of the judicial process.
2. In order to accomplish the goals of this section, the court security committee established by § 16-2-505(d)(2) shall have among its duties the responsibility to assess existing facilities to determine where space could be allocated to provide the secure waiting areas described in subdivision (b)(1). A report of this assessment shall be included in the findings provided to the county legislative body and the administrative office of the courts pursuant to § 16-2-505(d)(3)(B). In cases where the committee determines that existing facilities cannot accommodate the goals of this section, the committee shall include in its report recommendations as to how a secure waiting area could be provided for in new construction and renovation projects. In a jurisdiction where existing facilities cannot meet the goals of this section, the local government should consider the recommendation of the committee's report in planning for any new construction or renovation of courtroom facilities.
All victims of crime shall have the right to collect court-ordered restitution in the same manner as a civil judgment, as authorized pursuant to § 37-1-131(b)(2) or § 40-35-304(h).

Acts 1990, ch. 957, § 2; 1993, ch. 527, § 2; 1996, ch. 1044, § 1; 2001, ch. 370, § 1.

Cross-References. Restitution, § 40-35-304, title 41, ch. 6.

Law Reviews.

Closing the Crime Victims Coverage Gap: Protecting Victims’ Private Records from Public Disclosure Following Tennessean v. Metro, 11 Tenn. J. L. & Pol'y 129 (2016).

Redeeming An Empty Promise: Procedural Justice, The Crime Victims' Rights Act, And The Victim's Right to be Reasonably Protected from the Accused (Mary Margaret Giannini), 78 Tenn. L. Rev. 47 (2010).

Attorney General Opinions. Crime victim's notice and opportunity to object to release of personal information, OAG 99-069, 1999 Tenn. AG LEXIS 69 (3/22/99).

40-38-103. Rights of crime victims — Generally.

All victims of crime shall, upon their request, have the right to:
1. Be fully informed orally, in writing or by video tape by the office of the district attorney general, acting through the appropriate victim-witness coordinator, of the following:
  1. The various steps and procedures involved in the criminal justice system;
  2. The procedure and basis for continuances in the proceedings;
  3. The procedure involved in the plea-bargaining process and how to request input into the process;
  4. The times, dates and locations of all pertinent stages in the proceedings following presentment or indictment by the grand jury;
  5. The methods by which the victim may have input into a convicted defendant's sentence, including the presentence report and the sentencing hearing;
  6. The stages in the appellate process and how to obtain information concerning appellate action that has an effect on the defendant's conviction or sentence and the date a defendant's sentence becomes final;
  7. How to obtain pertinent information relating to the possible release of an appropriate inmate, including notification of any department of correction decision permitting the inmate's release into the community or any scheduled hearing by the board of parole concerning the inmate's parole or application for executive clemency;
  8. The methods by which the victim may obtain restitution directly from the defendant and information about obtaining assistance in obtaining restitution; and
  9. The methods by which the victim may obtain a monetary award or other benefits from the criminal injuries compensation fund and information about obtaining assistance in securing the award or benefits;
2. Whenever possible, be advised and informed of plea bargaining discussions and agreements prior to the entry of any plea agreement where the victim is a victim of violent crime involving death of a family member or serious bodily injury, speak at parole hearings, submit a victim impact statement to the courts and the board of parole and give impact testimony at court sentencing hearings;
3. Be informed that § 41-21-240 requires the department to notify them, upon their request, at least ninety (90) days prior to the date an inmate with a sentence of two (2) years or more is scheduled to be released by reason of expiration of the inmate's sentence and be informed how the request of the department is made; and
4. Be compensated for expenses actually and reasonably incurred as the result of traveling to and from the trial of the defendant or defendants and traveling to and from appellate, postconviction or habeas corpus proceedings resulting from the trial of the defendant or defendants alleged to have committed a compensable offense subject to title 29, chapter 13, part 1, and the availability of funds in the criminal injuries compensation fund.
Upon the request of a victim of violent crime involving serious bodily injury or death of a relative, the victim shall be supplied information and a request form by the law enforcement agency responsible for the investigation of the crime or the arrest of the defendant, the sheriff or other custodian of the defendant, or the victim-witness coordinator as to how the victim or relative of a victim may request and secure notification of the release from custody of an offender from a jail or detention facility prior to trial. The jailer, sheriff, or other custodian of criminal offenders shall maintain a physical or electronic record or file of the victim's request for notification and, prior to the release of an offender about whom a notification request has been made, give immediate and prompt notice of the release to the requesting victim or family member of a victim by the most direct means available, including telephone, messenger, or telegram; provided, that if the victim or family member of a victim is registered with the state's electronic victim notification system, the notice required by this section shall be communicated by the method or methods indicated by the registration in the system. Any identifying information contained in the request forms shall be confidential. For purposes of this subsection (b), “identifying information” means the name, home and work addresses, telephone numbers, email address, and social security number of the person being notified or requesting that notification be provided.
In a prosecution for any criminal homicide, an appropriate photograph of the victim while alive shall be admissible evidence when offered by the district attorney general to show the general appearance and condition of the victim while alive.

Acts 1990, ch. 957, § 3; 1993, ch. 527, §§ 3, 9-11; 1996, ch. 709, § 2; 1997, ch. 509, § 3; 1998, ch. 1037, § 2; 1998, ch. 1049, § 52; 2009, ch. 176, § 5; 2015, ch. 527, § 1; 2018, ch. 598, § 3.

Cross-References. Confidentiality of public records, § 10-7-504.

Criminal injuries compensation fund, § 40-24-107.

Criminal injuries compensation law, title 29, ch. 13.

Restitution, § 40-35-304, title 41, ch. 6.

Victim impact statement, title 40, ch. 38, part 2.

Victim-witness coordinator, § 8-7-206.

Law Reviews.

I See Dead People: Examining the Admissibility of Living-Victim Photographs in Murder Trials, 69 Vand. L. Rev. 1423 (2016).

The Payne of Allowing Victim Impact Statements at Capital Sentencing Hearings, 45 Vand. L. Rev. 1621 (1992).

The Troubling Influence of Equality in Constitutional Criminal Procedure: From Brown to Miranda, Furman and Beyond, 54 Vand. L. Rev. 359 (2001).

NOTES TO DECISIONS

1. Application.

Under T.C.A. §§ 40-35-209(b) and 40-38-103(a)(2), the victim had the right to testify and provide impact information for consideration at the sentencing hearing after which the trial court was to determine whether the victim's impact testimony contained any relevant and reliable evidence relating to enhancing or mitigating factors and/or any other sentencing consideration, and then decide what weight, if any, should be given to that evidence in fashioning an appropriate sentence. State v. Blackhurst, 70 S.W.3d 88, 2001 Tenn. Crim. App. LEXIS 682 (Tenn. Crim. App. 2001), review or rehearing denied, — S.W.3d —, 2002 Tenn. LEXIS 73 (Tenn. Feb. 11, 2002).

2. Victim Photographs.

Photo of a victim was admissible because (1) the photo was statutorily admissible, and (2) the photo was not overly sympathetic. State v. Toles, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 315 (Tenn. Crim. App. May 17, 2019).

Even if the admission via the victim's parent of multiple photographs of the victim taken during the victims' life was error in defendants' trial for first degree premeditated murder and aggravated assault, the error was harmless. State v. Ponder, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 504 (Tenn. Crim. App. Aug. 21, 2019).

Trial court did not err by admitting the life photograph of the victim because the statute was constitutional, the photograph was relevant to show the victim's general appearance while alive, and nothing in the photograph, which showed the victim standing alone in a suit and smiling, was prejudicial to defendant. State v. Donaldson, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 342 (Tenn. Crim. App. May 14, 2020).

40-38-104. Death of child or primary wage earner — Compensation — Preferences.

If a child is the victim of a homicide not committed by the parents, the parents of the child shall be able to apply to the criminal injuries compensation fund for reimbursement to the parents for expenses incurred in obtaining necessary grief counseling.
All vocational schools and technical institutes operated by the board of regents shall, if there are limitations as to the number of persons who may be admitted to a particular school or institute or in a particular class or program, give preference in making the admissions to victims of violent crime. For purposes of this subsection (b), “victim” means the person who will become the primary wage earner in the victim's family if the victim was the primary wage earner and the crime resulted in the victim's death or permanent disability.

Acts 1990, ch. 957, § 4; 1993, ch. 527, § 4.

Cross-References. Criminal injuries compensation fund, § 40-24-107.

Criminal injuries compensation law, title 29, ch. 13.

40-38-105. Criminal cases — Prompt disposal — Priority of cases involving crimes against the person.

All parties affected by a criminal offense, including the victim, survivors of the victim and witnesses to the offense, shall be able to expect that the operation of the criminal justice system will not be unnecessarily delayed and that they will be able to return to normal lives as soon as possible. To this end, all persons involved in the criminal justice system shall make every effort to dispose of any charges against a defendant within one hundred eighty (180) days of the date of the defendant's indictment and, in those cases in which the defendant is charged with a crime of violence involving death or serious bodily injury to a victim, all applications for continuance of any court date by any party shall be in writing setting out the reasons for the continuance. If, at any time during the proceeding, the court grants a continuance to the defendant and the defendant is not represented by an attorney, the court shall file an order in the records setting out the reasons why the court granted the continuance. If, for any reason, the case is not tried or otherwise disposed of in one hundred eighty (180) days of the indictment, the court shall set out in a certificate the reasons why the case is still pending before the court.
All parties affected by a criminal offense shall be able to expect that cases involving crimes against the person are given judicial and prosecutorial priority over cases involving property crimes.

Acts 1990, ch. 957, § 5; 1993, ch. 527, §§ 5, 6, 12.

40-38-106. Property offenses — Rights of victims.

Victims of crimes involving offenses against property shall have the right to:

Recover property in the custody of the police or the court as soon as is reasonably possible;
Restitution ordered as a condition of probation or a suspended sentence or parole and the swift revocation of the privileges for failure to make the ordered restitution; and
Once a claim under the criminal injuries compensation fund has been filed with the state, the claim shall be disposed of expeditiously and any award or other benefit to which a victim may be entitled shall be paid promptly.

Acts 1990, ch. 957, § 6; 1993, ch. 527, §§ 7, 8.

Cross-References. Criminal injuries compensation fund, § 40-24-107.

Criminal injuries compensation law, title 29, ch. 13.

Restitution, § 40-35-304, title 41, ch. 6.

Revocation of probation, §§ 40-35-310, 40-35-311.

Victim-witness coordinator, § 8-7-206.

40-38-107. Communication of rights and resources to victim.

The state treasurer, in consultation with the executive director of the district attorneys general conference, shall prepare and distribute to each district attorney general a booklet, pamphlet, brochure, handout or other publication that sets forth all of the provisions of this chapter and a summary of any other provision of law or regulation that pertains to victims or that would be of assistance to victims. It is the duty of the office of district attorney general to deliver free of charge to each victim, assisted by the victim-witness coordinator, a copy of the publication setting out the provisions of this chapter and other pertinent provisions.
It also is the duty of the appropriate victim-witness coordinator to distribute to the victim a listing of all appropriate referral services that are available in that particular area to victims of crime.

Acts 1990, ch. 957, § 7.

40-38-108. Immunity for failure to comply.

Failure to comply with any provision of this part shall not create a cause of action or claim for damages against the state, a political subdivision of the state, a government employee or other official or entity, and no such cause of action shall be maintained. No defendant or person charged with a criminal offense may claim any prejudice or assign any error based upon the failure to comply with any provision of this part by the court or any other official of the state.

Acts 1993, ch. 527, § 13.

Attorney General Opinions. Crime victim's notice and opportunity to object to release of personal information, OAG 99-069, 1999 Tenn. AG LEXIS 69 (3/22/99).

NOTES TO DECISIONS

1. Immunity from Prosecution.

Trial court did not err by granting the nonprofit organization's motion for summary judgment on the grounds that it was immune from prosecution under T.C.A. § 40-38-108; T.C.A. § 40-38-108 provides immunity for failure to comply with any provision of the Victims' Bill of Rights, which would include a victim's right to be fully informed, and under T.C.A. § 40-38-108, the nonprofit was immune from prosecution for any failure to properly inform the citizen of his rights. Hawkins v. Case Mgmt., Inc., 165 S.W.3d 296, 2004 Tenn. App. LEXIS 593 (Tenn. Ct. App. 2004), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 78 (Tenn. Jan. 24, 2005).

40-38-109. Notice to crime victims of eligibility for compensation.

The office of the district attorney general shall notify, in writing, each victim of a violent crime who may be eligible for compensation under the Criminal Injuries Compensation Act, compiled in title 29, chapter 13, of the methods by which the victim may obtain compensation. The written notice shall be substantially in the form and content as prescribed by the state treasurer. In cases involving the death of a victim, the notification shall be given to the closest relative to the deceased victim. For purposes of this section, “closest relative” has the same meaning as that given in § 34-1-101.

Acts 1998, ch. 785, § 30.

40-38-110. Victim's right to notification of proceedings — Confidentiality.

A victim of crime has the right to be informed of the following proceedings or occurrences by the appropriate agency at the earliest practicable opportunity:
1. Cancelled or rescheduled hearings;
2. Bail hearing for the defendant;
3. Dismissal of the defendant's case;
4. Pardon of the defendant;
5. Defendant's recapture;
6. Defendant's release from a mental institution under § 33-5-410 or § 33-6-708; and
7. Defendant's transfer to a different correctional complex if the complex has a lower security designation.
This section shall not be construed as limiting rights already in existence under Tennessee statute and shall be construed as working in conjunction with existing statutes.
The victim has a duty to keep current information regarding the victim's location so that the appropriate agency may be able to contact the victim.
1. Any identifying information concerning a crime victim received pursuant to this section shall be confidential.
2. For purposes of subdivision (d)(1), “identifying information” means the name, home and work addresses, telephone numbers and social security number.

Acts 2000, ch. 859, § 1; 2009, ch. 176, § 6.

Cross-References. Confidentiality of public records, § 10-7-504.

40-38-111. Notifying victim of rights — Definitions — Confidentiality.

Victims, under the Tennessee Constitution, Article I, § 35, have the right to be informed of proceedings and the right to be informed of each of the rights conferred upon the victims.
When a victim appears before a judicial commissioner, magistrate or general sessions court clerk or one of the clerk's duly sworn deputies to obtain an arrest warrant, the commissioner, magistrate, general sessions court clerk or the clerk's duly sworn deputy shall notify the victim of the victim's rights under the Tennessee Constitution, Article I, § 35. The victims of crime state coordinating council will provide, upon request, sufficient copies of the form or brochure to be used to provide notice to victims under this subsection (b).
If a law enforcement officer obtains an arrest warrant on behalf of a victim, the agency employing the officer shall notify the victim of the victim's rights under the Tennessee Constitution, Article I, § 35 and of the first court date at which the defendant will be required to appear. The victims of crime state coordinating council will provide, upon request, sufficient copies of the form or brochure to be used to provide notice to victims under this subsection (c).
At the defendant's initial court appearance, the judge shall inform the victim, if the victim is present, of the victim's rights under the Tennessee Constitution, Article I, § 35. The judge shall also inform the victim that the clerk of the court will have a form on which the rights are listed and a telephone number that the victim can call for further information regarding future proceedings involving the defendant.
Following the indictment or presentment being returned by a grand jury against the defendant for a violent crime, the district attorney general of the district in which the indictment or presentment was returned shall notify the victim of the offense of that victim's rights under the Tennessee Constitution, Article I, § 35, and of the dates of all future trial court proceedings involving the defendant.
Following the indictment or presentment being returned by a grand jury against the defendant for a nonviolent crime, the district attorney general of the district in which the indictment or presentment was returned shall notify the victim of the offense of that victim's rights under the Tennessee Constitution, Article I, § 35 and shall give the victim a telephone number to call for further information regarding future trial court proceedings involving the defendant.
As used in this section, “violent crime” means any of the following offenses:
1. Aggravated arson, as defined in § 39-14-302;
2. Aggravated assault, as defined in § 39-13-102 which results in serious bodily injury;
3. Aggravated child abuse and neglect, as defined in § 39-15-402;
4. Aggravated kidnapping, as defined in § 39-13-304;
5. Aggravated rape, as defined in § 39-13-502;
6. Aggravated robbery, as defined in § 39-13-402;
7. Aggravated sexual battery, as defined in § 39-13-504;
8. Aggravated vehicular homicide, as defined in § 39-13-218;
9. Carjacking, as defined in § 39-13-404;
10. Criminally negligent homicide, as defined in § 39-13-212;
11. Especially aggravated burglary, as defined in § 39-14-404;
12. Especially aggravated kidnapping, as defined in § 39-13-305;
13. Especially aggravated robbery, as defined in § 39-13-403;
14. First degree murder, as defined in § 39-13-202;
15. Incest, as defined in § 39-15-302;
16. Kidnapping, as defined in § 39-13-303;
17. Rape, as defined in § 39-13-503;
18. Rape of a child, as defined in § 39-13-522;
19. Reckless homicide, as defined in § 39-13-215;
20. Second degree murder, as defined in § 39-13-210;
21. Sexual battery by an authority figure, as defined in § 39-13-527;
22. Sexual battery, as defined in § 39-13-505;
23. Stalking, as defined in § 39-17-315;
24. Statutory rape, as defined in § 39-13-506;
25. Vehicular assault, as defined in § 39-13-106;
26. Vehicular homicide, as defined in § 39-13-213; or
27. Voluntary manslaughter, as defined in § 39-13-211.
As used in this section, “nonviolent crime” means any crime not defined as a “violent crime” in subsection (g).
1. Any identifying information concerning a crime victim obtained pursuant to this section shall be confidential.
2. For purposes of subdivision (i)(1), “identifying information” means the name, home and work addresses, telephone numbers and social security number.

Acts 2000, ch. 790, § 1; 2004, ch. 547, § 2; 2009, ch. 176, § 7.

Code Commission Notes.

Former subdivision (f)(8), concerning aggravated spousal rape, spousal rape and spousal sexual battery as defined in § 39-13-507 [repealed], was deemed obsolete and was deleted by the code commission in 2006.

Compiler's Notes. The victims of crime state coordinating council, referred to in this section, was repealed by Acts 2008, ch. 1077, § 2, effective May 28, 2008.

Cross-References. Confidentiality of public records, § 10-7-504.

40-38-112. Responsibilities of office of the prosecuting attorney — Duty of victim.

After indictment, presentment or information, the office of the prosecuting attorney, through the victim witness coordinator, shall provide the victim with the following information:
1. The procedural steps involved in a criminal prosecution;
2. Dates, times and places of all proceedings involving the victim's case;
3. The availability of victim's compensation benefits; and
4. Forms to invoke compensation benefits and other rights.
The victim has a duty to keep current information regarding the victim's location so that the victim-witness coordinator may be able to contact the victim, if necessary.

Acts 2000, ch. 790, § 2.

Cross-References. Criminal injuries compensation fund, § 40-24-107.

Criminal injuries compensation law, title 29, ch. 13.

Victim-witness coordinator, § 8-7-206.

40-38-113. Information required to be provided to victim by law enforcement agencies.

Law enforcement agencies shall provide notice of the following information to any victim of crime:

The victim's rights under the Tennessee Constitution, Article I, § 35, to be free from intimidation, harassment and abuse throughout the criminal justice system;
The availability, if any, of crisis intervention services and emergency and medical services;
The name of the law enforcement agency and telephone number;
In cases of domestic violence, the procedures and resources available for protection of the victim;
The names and telephone numbers of public and private victim assistance programs, including the state criminal injuries compensation program and programs that provide counseling, treatment and other support services; and
The procedural steps involved in a criminal prosecution.

Acts 2000, ch. 801, § 1.

Cross-References. Criminal injuries compensation law, title 29, ch. 13.

Criminal injuries compensation fund, § 40-24-107.

Senator Tommy Burks victim assistance academy, title 40, ch. 38, part 4.

40-38-114. Conference between victim and prosecuting attorney prior to final disposition of case.

The prosecuting attorney shall confer with the victim prior to the final disposition of a criminal offense, including the views of the victim regarding a decision not to proceed with a criminal prosecution or a decision to dismiss a charge or to enter into plea or sentencing agreements or the victim's views regarding a decision to enter a pretrial or other type of diversion program.
The prosecuting attorney shall confer with the victim before the commencement of a trial. Any information received by the victim relating to the substance of the case shall be confidential, unless otherwise authorized by law or required by the courts to be disclosed.
The rights of the victim do not include the authority to direct the prosecution of the case.
Failure of the prosecuting attorney to confer with the victim does not affect the validity of an agreement between the prosecutor and the defendant in the case, a pretrial diversion of the defendant, a dismissal of an indictment or complaint filed against the defendant, a plea entered by the defendant or any other disposition in the case.
Under this section, the victim has a duty to keep current information regarding the victim's location so the prosecuting attorney may be able to contact the victim. If the prosecuting attorney is unable to contact the victim due to the victim's failure to keep current information regarding the victim's location, the prosecuting attorney may only confer with the victim if practical under the circumstances.

Acts 2000, ch. 802, § 1.

Cross-References. Confidentiality of public records, § 10-7-504.

NOTES TO DECISIONS

1. In General.

Hearings concerning plea agreements and nolle prosequis were notably absent from the list of proceedings at which victims had a right to be heard; the mere fact that the plea agreement may have ordered payment of restitution was insufficient to bring these hearings within the scope of T.C.A. § 40-38-302(2)(C) (now (2)(D)), and thus § 40-38-302(2) provided victims no right to be heard at the pretrial hearings and the participation of the victim's family's attorney in the pretrial hearing exceeded the right to confer granted to victims under Tenn. Const. art. I, § 35. State v. Layman, 214 S.W.3d 442, 2007 Tenn. LEXIS 35 (Tenn. 2007).

40-38-115. Crime victim advocate.

Any victim of crime may have a crime victim advocate from a crime assistance program or a victim-witness coordinator as provided for in § 8-7-206 present at any defense interviews with the victim. This section applies if practical and if the presence of the crime victim advocate or victim-witness coordinator does not cause any unnecessary delay in the investigation or prosecution of the case. The role of the crime victim advocate or victim-witness coordinator is to provide emotional support to the victim.
As used in subsection (a), “crime assistance program” includes, but is not limited to, programs that provide appropriate counseling and support to victims.

Acts 2000, ch. 803, § 1.

40-38-116. Victim's right to a speedy trial.

In any criminal proceeding in which a continuance is requested, the court shall consider the victim's views and the victim's right to a speedy trial. If the continuance is granted over the victim's objection, the court shall state on the record the reason for the continuance and the procedures that have been taken to avoid further delays.
In determining a date for any criminal trial or other important criminal hearing, the court shall consider the interests of the victim's right to a speedy trial.

Acts 2000, ch. 804, § 1.

Cross-References. Right to speedy trial, Tenn. Const., art. I. § 9, § 40-14-101.

40-38-117. Victim's right to refuse interview with defendant.

Any victim of crime has the right to refuse a request by the defendant, the defendant's attorney or any other person acting on behalf of the defendant for an interview or other communication with the victim.

Acts 2000, ch. 785, § 1.

40-38-118. Informing victim of Tennessee statewide automated victim information and notification services.

When a law enforcement officer responds to a report of a crime, and the crime is one (1) of the crimes listed in subsection (b), the officer shall inform the alleged victim of the Tennessee statewide automated victim information and notification service created by part 5 of this chapter, provided by the Tennessee sheriffs' association. The officer shall provide written informational materials, if available, and briefly explain the purpose of the program and the requirements for participating. If the alleged victim is injured or otherwise unable to understand the officer, the officer shall leave materials, if available, regarding the notification system with the alleged victim.
The offenses to which this section applies are:
1. Domestic assault, as prohibited by § 39-13-111;
2. Vandalism, as prohibited by § 39-14-408, or false imprisonment, as prohibited by § 39-13-302, where the victim of the offense is a domestic abuse victim, as defined in § 36-3-601;
3. Violation of an order of protection or restraining order, as prohibited by § 39-13-113; and
4. Stalking, as prohibited by § 39-17-315.
Any law enforcement agency that does not already have written informational materials regarding the Tennessee statewide automated victim information and notification service shall, by July 1, 2016, obtain a supply, if available, from the victim witness coordinator in the district attorneys general office or from the Tennessee sheriffs' association.

Acts 2016, ch. 1073, § 1.

Part 2
Victim Impact Statement Act

40-38-201. Short title.

This part shall be known and may be cited as the “Victim Impact Statement Act.”

Acts 1993, ch. 438, § 1.

NOTES TO DECISIONS

1. Application.

The Victim Impact Statement Act, T.C.A. § 40-38-201 et seq., does limit a sentencing court's consideration of a victim's testimony to that testimony reflected in the victim's previously submitted written victim impact statement, as it applies only to the written victim impact statement prepared by the department of correction as part of the defendant's presentence report, and not live testimony by a victim. State v. Blackhurst, 70 S.W.3d 88, 2001 Tenn. Crim. App. LEXIS 682 (Tenn. Crim. App. 2001), review or rehearing denied, — S.W.3d —, 2002 Tenn. LEXIS 73 (Tenn. Feb. 11, 2002).

40-38-202. Sentencing judge to consider impact statement prior to sentencing.

The sentencing judge shall solicit and consider a victim impact statement prior to sentencing a convicted offender who has caused physical, emotional or financial harm to a victim, as defined in § 40-38-203.

Acts 1993, ch. 438, § 2.

Cross-References. Presentence report, § 40-35-207.

40-38-203. Part definitions.

As used in this part, unless the context otherwise requires:

“Victim” means an individual who suffers direct or threatened physical, emotional or financial harm as the result of the commission of a crime or an immediate family member of a minor victim or a homicide victim;
“Victim impact statement” means a statement providing information about the financial, emotional and physical effects of the crime on the victim and the victim's family and specific information about the victim, the circumstances surrounding the crime and the manner in which it was perpetrated; and
“Victim representative” means a spouse, parent, child, sibling or other relative of a deceased or incapacitated victim or of a victim who is under eighteen (18) years of age or a person who has had a close personal relationship with the victim and who is designated by the court to be a victim representative.

Acts 1993, ch. 438, § 3.

NOTES TO DECISIONS

1. Statement Admissible.

Victim statements were properly considered by the trial court where the source of the information was readily identifiable and the statements bore the author's signature and were responsive to the questionnaire. State v. Moss, 13 S.W.3d 374, 1999 Tenn. Crim. App. LEXIS 527 (Tenn. Crim. App. 1999).

2. Statement Not Admissible.

A poster with a handwritten notation, a letter to the victim's child from the victim's employer, and an excerpt from the employer's newsletter should not have been admitted or considered by the sentencing court because they were not identifiable statements of the victim's immediate family. State v. Moss, 13 S.W.3d 374, 1999 Tenn. Crim. App. LEXIS 527 (Tenn. Crim. App. 1999).

3. “Victim”.

Regarding restitution in an animal cruelty case, the humane society was a victim within the meaning of T.C.A. § 40-38-203(1), because T.C.A. § 39-14-210(f), by requiring that victimized animals be placed with state-chartered humane societies, created an obligation that removed the humane society from the status of a volunteer or Good Samaritan and resulted in costs and expenses to a society as a result of the mandated responsibility. State v. Webb, 130 S.W.3d 799, 2003 Tenn. Crim. App. LEXIS 567 (Tenn. Crim. App. 2003), appeal denied, — S.W.3d —, 2003 Tenn. LEXIS 1233 (Tenn. Dec. 15, 2003), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 119 (Tenn. Feb. 2, 2004).

40-38-204. Notification of opportunity to present impact statement — Policy — Development of impact statement form.

If a defendant is convicted of a felony involving one (1) or more identifiable victims who suffered death or physical, emotional, or financial injury, the department of correction shall ensure notification of the victim or the victim representative and advise the victim or victim representative of the opportunity to present a victim impact statement.
The department shall establish a policy concerning the victim impact statement. This policy shall include the development of a uniform victim impact statement form. In developing the form, the department shall first consult with the executive director of the district attorneys general conference.

Acts 1993, ch. 438, § 4.

40-38-205. Impact statement to be part of presentence report — Contents — Number of statements.

Prior to imposition of sentence in a felony case, the department of correction shall prepare a written victim impact statement as part of the presentence report on the defendant. The statement shall include applicable information obtained during consultation with the victim or the victim representative. If the victim or victim representative cannot be located or declines to participate in the preparation of the statement, the department shall include a notation to that effect in the statement. If there are multiple victims and preparation of individual victim impact statements is not feasible, the department may submit one (1) or more representative statements.

Acts 1993, ch. 438, § 5.

Cross-References. Presentence report, § 40-35-207.

NOTES TO DECISIONS

1. Constitutionality.

Consideration of written victim impact statements pursuant to T.C.A. § 40-38-205 does not violate the confrontation clause of the United States Constitution.State v. Moss, 13 S.W.3d 374, 1999 Tenn. Crim. App. LEXIS 527 (Tenn. Crim. App. 1999).

In order to be constitutional, victim impact evidence must be reliable and the defendant must have a fair opportunity to rebut the statement. State v. Moss, 13 S.W.3d 374, 1999 Tenn. Crim. App. LEXIS 527 (Tenn. Crim. App. 1999).

40-38-206. Filing of presentence report.

The presentence report shall be filed with the clerk of the court within ten (10) days prior to the sentencing hearing as provided in § 40-35-208.

Acts 1993, ch. 438, § 6.

Cross-References. Presentence report, § 40-35-207.

40-38-207. Impact statement to be considered as evidence.

Any victim impact statement submitted to the court under § 40-38-205 shall be considered as evidence in determining whether the mitigating factors in § 40-35-113 and the enhancement factors in § 40-35-114 apply.

Acts 1993, ch. 438, § 7.

NOTES TO DECISIONS

1. Application.

A victim's statement at sentencing is not limited to determining the applicability of the enhancement and mitigating factors in T.C.A. §§ 40-35-113 and 40-35-114. State v. Blackhurst, 70 S.W.3d 88, 2001 Tenn. Crim. App. LEXIS 682 (Tenn. Crim. App. 2001), review or rehearing denied, — S.W.3d —, 2002 Tenn. LEXIS 73 (Tenn. Feb. 11, 2002).

40-38-208. Submission of statement or cooperation in preparation of statement not required.

This part shall not be construed to require a victim or victim representative to submit a victim impact statement or to cooperate in the preparation of a victim impact statement.

Acts 1993, ch. 438, § 8.

Part 3
Constitutional Rights of Victims

40-38-301. Intent of general assembly.

It is the intent of the general assembly by enactment of this part to implement and make fully operational the provisions of Constitution of Tennessee, Article I, § 35 , relative to the rights of victims of crime. The proposed amendment that became the Constitution of Tennessee, Article I, § 35 was ratified by the voters of Tennessee at the November 3, 1998, general election, but there was some question as to whether it required the general assembly to define certain terms before the amendment could be implemented and in full force and effect.
It is the further intent of the general assembly that this part only govern the implementation of the Constitution of Tennessee, Article I, § 35. If any other provision of law confers additional, enhanced or more expansive rights upon victims of crime than are set out in this part or the Constitution of Tennessee, Article I, § 35, a victim shall also be entitled to the additional, enhanced or expansive statutory rights.
If any other provision of law contains a broader definition of “crime,” “victim” or “critical stages of the criminal justice process” for any purpose other than implementation of the Constitution of Tennessee, Article I, § 35, the broader definition shall control for such purpose.

Acts 2000, ch. 577, § 1.

NOTES TO DECISIONS

1. Ex Post Facto Clause.

40-38-302. Part definitions.

As used in this part, unless the context otherwise requires:

“Crime” means:
1. Any offense the punishment for which is a Class A, B, C, D or E felony;
2. First degree murder; or
3. Assault under § 39-13-101(a)(1);
“Critical stages of the criminal justice process” are:
1. Bond hearings or bond reduction hearings if hearing from the victim is deemed relevant by the appropriate district attorney general;
2. Any hearing on a motion to dismiss or on a plea agreement requiring approval by the trial court;
3. The defendant's sentencing hearing;
4. Any hearing at which the issue of whether the defendant should pay restitution or the amount of restitution that should be paid is discussed;
5. Any parole hearing at which the defendant's release on parole will be discussed or determined; and
6. Any other hearing that proposes a final disposition of the case;
“Family member” means the victim's spouse, natural parent, child, adopted child, grandparent, grandchild, stepparent, adoptive parent, or brother or sister of the whole or half-blood or by adoption. If a “family member” is a minor, the minor may be represented by a guardian where appropriate; and
1. “Victim” means:
  1. A natural person against whom a crime was committed;
  2. If the victim is a minor, then the parent or legal guardian of the minor; or
  3. If the victim is deceased or is physically or emotionally unable to exercise the victim's rights, then the following persons, or their designees, in the order of preference in which they are listed:

A family member; or
A person who resided with the victim;

“Victim” does not include any person charged with or alleged to have committed the crime or who is charged with some form of criminal responsibility for commission of the crime.

Acts 2000, ch. 577, § 1; 2008, ch. 1163, § 1.

Cross-References. Penalty for Class A, B, C, D, or E felonies, § 40-35-111.

NOTES TO DECISIONS

1. Exceeding Right to Confer.

2. Right of Crime Victim to Be Present.

It was no error to allow a victim's family to be present at an inmate's parole hearing by videoconference because (1) family members of a deceased victim had a statutory right to be present at critical stages of the criminal justice process, including any parole hearing, and (2) the Board of Probation and Parole was not required to adopt a rule restricting such participation to cases of medical necessity. Morris v. Tenn. Bd. of Prob. & Parole, — S.W.3d —, 2019 Tenn. App. LEXIS 347 (Tenn. Ct. App. July 15, 2019).

40-38-303. Victim's immunity from suit except for testimony that is intentionally and maliciously false and defamatory.

In order for a victim of crime to meaningfully exercise the victim's constitutional right to be heard, when relevant, at all critical stages of the criminal justice process, a victim is immune from civil liability or any civil cause of action brought by the offender that arises from the victim's testimony at the offender's hearing before the board of parole or a panel of the board. The immunity from suit shall not apply if the victim's testimony is intentionally and maliciously false and defamatory.
1. If the offender brings a cause of action against the victim based upon the victim's testimony before the board of parole or a panel of the board, in spite of the immunity conferred by subsection (a), as an attachment to the complaint, the offender shall proffer all statements made by the victim alleged to be intentionally and maliciously false and defamatory. Within five (5) days the court shall examine the offender's complaint to determine if the statements of the victim proffered by the offender could reasonably be construed as sufficient to overcome the victim's immunity conferred by this section.
2. If the court finds that the victim's statements to the board of parole or a panel of the board may reasonably be construed as intentionally and maliciously false and defamatory, it shall allow the cause of action to proceed.
3. If the court finds that the offender has not produced sufficient evidence to overcome the victim's immunity conferred by subsection (a), it shall dismiss the cause of action with prejudice.
4. If the court finds that, not only was the action without merit but was brought for the purpose of intimidating, harassing or abusing the victim in violation of the Constitution of Tennessee, Article I, § 35, it:
  1. Shall notify the appropriate warden of the offender's institution and recommend disciplinary action against the offender, including the loss of sentence reduction credits; and
  2. May prohibit the offender from filing any future actions of a similar nature in the court.

Acts 2009, ch. 50, § 1.

Compiler's Notes. Acts 2009, ch. 50, § 2 provided that the act, which enacted this section, shall apply to all applicable causes of action.

Part 4
Senator Tommy Burks Victim Assistance Academy

40-38-401. Creation.

There is created the Senator Tommy Burks victim assistance academy, referred to in this part as the “academy”, to be organized and administered in accordance with this part.

Acts 2008, ch. 1077, § 2.

Compiler's Notes. Former part 4, §§ 40-38-401 — 40-38-406 (Acts 2002, ch. 834, §§ 2-7; 2003, ch. 89, § 1; 2003, ch. 258, § 1), concerning the victims of crime state coordinating council, was repealed by Acts 2008, ch. 1077, § 2, effective May 28, 2008.

Cross-References. Domestic abuse, title 36, ch. 3, part 6.

Domestic violence state coordinating council, title 38, ch. 12.

40-38-402. Expenses — Grants.

The academy shall be attached to the Tennessee Coalition Against Domestic and Sexual Violence. All administrative expenses incurred by the academy shall be paid from grants and funds the academy or the Tennessee Coalition Against Domestic Sexual Violence receives pursuant to § 40-38-405.

Acts 2008, ch. 1077, § 2.

Cross-References. Domestic violence state coordinating council, title 38, ch. 12.

40-38-403. Purpose.

Notwithstanding its association with the Tennessee Coalition Against Domestic and Sexual Violence, the purpose of the academy is to improve services to victims of all types of crime by making available a comprehensive, basic-level victim assistance curriculum and training program to victim services providers and allied professionals.

Acts 2008, ch. 1077, § 2.

40-38-404. Funding.

Funding for the academy shall come from grants, donations, gifts and appropriations made for that purpose.

Acts 2008, ch. 1077, § 2.

40-38-405. Use of state funds.

The department of finance and administration, office of criminal justice programs, is authorized to make an annual grant from the fund created under § 40-24-107, to the Tennessee Coalition Against Domestic and Sexual Violence for the purpose of supporting the activities of the academy; provided, however, that no such grant shall be issued unless the coalition submits to the department of finance and administration, office of criminal justice programs, a plan specifying the use of the moneys and the plan is approved by the office of criminal justice programs. In determining whether to approve the plan for any given year, the office of criminal justice programs shall ensure the plan specifies that the money shall be used to benefit victims of all types of crime as provided in § 40-38-403. The grant authorized in this section shall not exceed one hundred thousand dollars ($100,000) and is subject to authorization contained in the general appropriations act.

Acts 2008, ch. 1077, § 2.

Part 5
Statewide Automated Victim Information and Notification System

40-38-501. Creation.

There is created the statewide automated victim information and notification system, referred to as the “victim notification system” in this part, to be organized and administered in accordance with this part and to make the statewide automated victim information and notification system operational.

Acts 2009, ch. 488, § 2.

40-38-502. System attached to Tennessee sheriffs’ association — Payment of administrative expenses out of the statewide automated victim information and notification system fund.

The victim notification system shall be attached to the Tennessee sheriffs' association. All administrative expenses incurred by the program shall be paid from grants and funds the Tennessee sheriffs' association receives pursuant to § 40-38-504 and grants authorized by § 40-38-505 from the statewide automated victim information and notification system fund established in § 67-4-602(h).

Acts 2009, ch. 488, § 2.

40-38-503. Purpose.

Notwithstanding its association with the Tennessee sheriffs' association, the purpose of the victim notification system is to increase the safety of victims of crime by providing access to timely and reliable information about the custody status of offenders in county jails. This information in the victim notification system shall be available twenty-four (24) hours a day over the telephone, through the internet or by e-mail. Victims of crime and other concerned citizens can register to be notified immediately in the event of an offender's release, transfer or escape.

Acts 2009, ch. 488, § 2.

Compiler's Notes. Victims can register with the Statewide Automated Victim Information Notification (SAVIN) system by phone at 1-888-868-4631 or at the TN SAVIN website, https://www.vinelink.com/#/home/site/43000.

40-38-504. Funding.

Funding for the victim notification system shall come from grants, including grants authorized by § 40-38-505, donations, gifts and appropriations made for that purpose.

Acts 2009, ch. 488, § 2.

40-38-505. Grants from the statewide automated victim information and notification system fund — Plan for use of the moneys.

The department of finance and administration, office of criminal justice programs, is authorized to make an annual grant from the fund created in § 67-4-602(h)(2), to the Tennessee sheriffs' association for the purpose of supporting implementation and management of the victim notification system; provided, however, that no such grant shall be issued unless the association submits to the department of finance and administration, office of criminal justice programs, a plan specifying the use of the moneys and the plan is approved by the office of criminal justice programs. The grant authorized in this section is subject to authorization contained in the general appropriations act.

Acts 2009, ch. 488, § 2; 2019, ch. 261, § 1.

Amendments. The 2019 amendment deleted “shall not exceed six hundred fifty thousand dollars ($650,000) and” preceding “is subject to” in the last sentence.

Effective Dates. Acts 2019, ch. 261, § 3. April 30, 2019.

40-38-506. Computer related expenses.

Upon the initial deposit of thirty-four thousand dollars ($34,000) into the victim notification fund from the one dollar ($1.00) additional privilege tax on litigation imposed by § 67-4-602(h), thirty-four thousand dollars ($34,000) shall be allocated to the department of revenue for defrayal of computer-related expenses required by implementation of this part.

Acts 2009, ch. 488, § 2.

Part 6
Home Address Confidentiality Program

40-38-601. Part definitions.

As used in this part:

“Address confidentiality program” or “program” means the program created under this part to protect the confidentiality of the confidential address of a relocated victim of domestic abuse, stalking, human trafficking, rape, sexual battery, or any other sexual offense;
“Administrator of elections” means the chief county election administrative officer appointed by the county election commission and such official's designee or designees;
“Application” means the form or forms submitted, in the manner prescribed by the secretary of state, by an individual requesting certification for the address confidentiality program;
“Application assistant” means an employee or volunteer at an agency or organization that serves victims of domestic abuse, stalking, human trafficking, rape, sexual battery, or any other sexual offense, who has received training and certification from the secretary of state to help individuals complete applications to be program participants;
“Confidential address” means the actual address of a program participant's residence, school, institution of higher education, business, or place of employment, as specified on an application to be a program participant or on a notice of change of address filed under this part;
“Coordinator of elections” means the official appointed by the secretary of state in accordance with § 2-11-201 as the chief administrative election officer of the state and such official's designee or designees;
“Domestic abuse” has the same meaning as defined in § 36-3-601;
“Domestic abuse victim” has the same meaning as defined in § 36-3-601;
“Fiduciary” has the same meaning as defined in § 34-1-101;
“Governmental entity” means the state, a political subdivision of the state, or any department, agency, board, commission, or other instrumentality of the state or a political subdivision of the state;
“Human trafficking” has the same meaning as used in § 39-13-314;
“Minor” has the same meaning as defined in § 34-1-101;
“Parent” includes biological and adoptive parents, as defined in § 36-1-102;
“Person with a disability” has the same meaning as defined in § 34-1-101;
“Process” means judicial process and all orders, demands, notices, or other papers required or permitted by law to be served on a program participant;
“Program participant” means a person who is certified by the secretary of state as a program participant;
“Secretary of state” or “secretary” means the secretary of state of Tennessee and any designee of the secretary;
“Sexual offender” has the same meaning as defined in § 40-39-202;
“Sexual offense” means a sexual offense or violent sexual offense as defined in § 40-39-202;
“Stalking” has the same meaning as defined in § 39-17-315; and
“Substitute address” means an address designated by the secretary of state under the address confidentiality program that is used instead of a confidential address as set forth by this part.

Acts 2018, ch. 1004, § 1; 2020, ch. 577, § 1.

Compiler's Notes. Acts 2018, ch. 1004, § 4 provided that the secretary of state is authorized to promulgate rules in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to implement the provisions of this act.

Amendments. The 2020 amendment added “and such official's designee or designees” to the definition of “Administrator of elections”.

Effective Dates. Acts 2020, ch. 577, § 6. March 19, 2020.

Cross-References. Confidentiality of public records, § 10-7-504.

40-38-602. Crime victim address confidentiality program.

The secretary of state shall establish a crime victim address confidentiality program, which must be open to all Tennessee residents who are victims of domestic abuse, stalking, human trafficking, rape, sexual battery, or any other sexual offense who satisfy the requirements of this part, at no cost to the program participant.
This program shall provide the participant with the use of a substitute address for the participant and the participant's minor children and shall not disclose the participant's name, confidential address, phone number, or any other information contained within the program participant's file except as otherwise provided by this part.
Whenever a program participant is required by law to swear to or affirm the participant's address, the participant may use the participant's substitute address. Wherever a program participant is required by law to establish residency, the participant may present evidence of program participation and use the participant's substitute address. Where residency must be verified in order to establish eligibility for public benefits, the governmental entity requiring verification shall submit a written request to the secretary of state, on a form prescribed by the secretary of state, whereby the secretary of state shall provide the governmental entity with a statement as to whether the program participant, or the program participant's minor child, or a person with a disability on whose behalf the person is applying, is eligible for benefits, based on the information known to the secretary of state.
The substitute address shall not be used:
1. For purposes of listing, appraising, or assessing property taxes and collecting property taxes; or
2. On any document related to real property recorded with a county clerk and recorder.
Notwithstanding any other applicable law, the substitute address may be used for motor vehicle records and may be printed on a person's driver or photo identification license.
Except as otherwise provided in this part, a program participant's confidential address, and any other information contained within a program participant's file, maintained by a state or local government agency, or disclosed by the secretary of state under this part, is not a public record. This subsection (f) shall not apply:
1. To any public record created more than thirty (30) days prior to the date that the program participant applied to be certified in the program; or
2. If a program participant voluntarily requests that a state or local government agency use the participant's confidential address or voluntarily gives the confidential address to the state or local government agency, except voter registration records and absentee ballot requests shall be confidential for purposes of this part.
For any public record created within thirty (30) days prior to the date that a program participant applied to be certified in the program, a state or local governmental agency shall redact the confidential address from a public record or change the confidential address to the substitute address in the public record, if a program participant presents evidence of program certification and requests the agency that maintains the public record to use the substitute address instead of the confidential address on the public record.
Except as provided in this part, where a program participant has provided evidence of program participation to a governmental entity, any record that includes a program participant's confidential address pursuant to this part shall be confidential and not available for inspection by anyone other than the program participant.
Notwithstanding any other applicable law, documentation concerning any tool of designation or identification or internal processes implemented by a governmental entity in documenting program participation within the governmental entity's records shall be confidential and not available for inspection.
An application or voter registration form completed under this part, along with any supporting materials, is not a public record that is subject to inspection and shall be kept confidential.

Acts 2018, ch. 1004, § 1; 2020, ch. 577, § 2.

Amendments. The 2020 amendment, in (a), substituted “must” for “shall”, “all Tennessee residents who are victims” for “a victim” and “satisfy” for “satisfies”.

Effective Dates. Acts 2020, ch. 577, § 6. March 19, 2020.

Cross-References. Confidentiality of public records, § 10-7-504.

40-38-603. Eligibility to participate in address confidentiality program.

A person who is required by law to be registered under any of the following is not eligible to participate in the address confidentiality program:

Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004, compiled in chapter 39, part 2 of this title;
Tennessee Animal Abuser Registration Act, compiled in chapter 39, part 1 of this title;
Registry of persons who have abused, neglected, or misappropriated the property of vulnerable individuals, compiled in title 68, chapter 11, part 10; or
Drug offender registry under § 39-17-436.

Acts 2018, ch. 1004, § 1.

Cross-References. Confidentiality of public records, § 10-7-504.

40-38-604. Application for substitute address.

Except for a person described in § 40-38-603, an adult person, or a parent or fiduciary acting on behalf of a minor or person with a disability, may apply to the secretary of state with the assistance of an application assistant to have an address designated by the secretary of state serve as the person's substitute address, or the substitute address of the minor or person with a disability on whose behalf the application is filed, where the applicant, or the individual on whose behalf the application is filed, has either relocated to a new residence within the preceding thirty (30) calendar days or presently intends to relocate to a new residence within ninety (90) calendar days from the date of the application. The application shall be made on a form prescribed by the secretary of state and filed in the office of the secretary of state in the manner prescribed by the secretary of state.
The application must contain all of the following:
1. The mailing address and telephone number or numbers at which the secretary of state may contact the applicant;
2. The address or addresses of the applicant's residence, school, institution of higher education, business, or place of employment that the applicant requests not be disclosed for the reason that disclosure will increase the risk that the applicant, or the minor or person with a disability on whose behalf the application is made, will be threatened or physically harmed by another person;
3. Documentary evidence that, either:
  1. There exists an ongoing criminal case that may result or a criminal case that has resulted in a conviction by a judge or jury or by a defendant's guilty plea, in which the applicant, or the minor or person with a disability on whose behalf the application was filed, was a victim of domestic abuse, stalking, human trafficking, rape, sexual battery, or any other sexual offense; or
  2. A court of competent jurisdiction has granted an order of protection to the applicant, or the minor or person with a disability on whose behalf the application is made, and which is in effect at the time of application;
4. In the absence of an ongoing criminal case that may result or has resulted in a conviction or an order of protection granted by a court of competent jurisdiction within this state which is in effect at the time of application, a notarized statement by a licensed professional with knowledge of the circumstances, such as an attorney, social worker, or therapist, confirming that such individual believes that the applicant, or the minor or person with a disability on whose behalf the application is made, is in danger of further harm;
5. A sworn statement by the applicant that disclosure of the confidential address or addresses would endanger the safety of the applicant or the minor or person with a disability on whose behalf the application is made;
6. 1. Documentary evidence, in the form and manner prescribed by rule by the secretary of state, that the applicant, or the minor or person with a disability on whose behalf the application is made, has moved to a new residence unknown to the offender within the previous thirty (30) calendar days; or
  2. A sworn statement by the applicant that the applicant, or the minor or person with a disability on whose behalf the application is made, has the present intent to move to a new address unknown to the offender within the following ninety (90) calendar days. If the applicant does not move to a new address within the following ninety (90) calendar days or fails to provide documentary evidence of the new residence address to the secretary of state within this time frame, in the form and manner prescribed by rule by the secretary of state, the program participant's certification shall be cancelled;
7. A voter registration form to be completed if the applicant is eligible to vote and wishes to register to vote or update a current voter registration;
8. A sworn statement that the program participant understands all of the following:
  1. That during the time the program participant chooses to have a confidential voter registration record, the program participant may vote only by absentee ballot;
  2. That the program participant may provide a program participant identification number instead of the residence address on an application for an absentee ballot or on an absentee voter's ballot identification envelope statement of voter with the applicant's signature;
  3. That casting any ballot in person will reveal the program participant's precinct and residence address to precinct election officials and employees of the county election commission and may reveal the program participant's precinct or residence address to members of the public; and
  4. That if the program participant signs an election petition, the program participant's residence address will be made available to the public;
9. A knowing and voluntary designation of the secretary of state as the agent for the purposes of receiving service of process and the receipt of mail;
10. A knowing and voluntary release and waiver of all future claims against the state for any claim that may arise from participation in the address confidentiality program, except for a claim based on the performance or nonperformance of a public duty that was manifestly outside the scope of the officer's or employee's office or employment or in which the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner;
11. The notarized signature of the applicant, the name and notarized signature of the application assistant who assisted the applicant, and the date on which the applicant and the application assistant signed the application; and
12. If at the time of application, the applicant, or the minor or person with a disability on whose behalf the application is made, is subject to a court order or is involved in court action related to the dissolution of marriage proceedings, child support, or the allocation of parental responsibilities or parenting time, the name of the court, contact information for the court, and the case number associated with those proceedings.
Upon receiving a properly completed application under subsection (a), the secretary of state shall:
1. Certify the applicant, or the minor or person with a disability on whose behalf the application is filed, as a program participant and provide evidence of such certification to the program participant;
2. Designate each eligible address listed in the application as a confidential address;
3. Issue the program participant a unique substitute address;
4. Issue the program participant a unique program participant identification number;
5. Provide information to the program participant concerning the manner in which the program participant may use the secretary of state as the program participant's agent for the purposes of receiving mail and receiving service of process;
6. Provide information to the program participant concerning the process to vote as a program participant, if the program participant is eligible to vote; and
7. Forward all first class mail, legal documents, and certified mail received by the secretary of state to the program participant.

Acts 2018, ch. 1004, § 1; 2020, ch. 577, § 3.

Amendments. The 2020 amendment deleted “or an ex parte protection order” following “order of protection” in (b)(4).

Effective Dates. Acts 2020, ch. 577, § 6. March 19, 2020.

Cross-References. Confidentiality of public records, § 10-7-504.

40-38-605. Notification of change of program participant's address — Renewal of certification.

A program participant shall notify the office of the secretary of state of any change in the participant's residence address and application information within thirty (30) days after any change has occurred by submitting a notice of change to the office of the secretary of state on a form prescribed by the secretary of state. If registered to vote, the applicant shall also complete a change of address form for voter registration purposes.
The certification of a program participant shall be valid for four (4) years after the date of the filing of the application for the program participant, unless the certification is withdrawn or invalidated before the end of that four-year period.
A program participant who continues to be eligible to participate in the program may renew the program participant's certification by submitting a renewal application to the secretary of state with the assistance of an application assistant. The renewal application shall be on a form prescribed by the secretary of state and shall contain all of the information described in § 40-38-604.
When a program participant renews the program participant's certification, the program participant shall continue to use the program participant's original program participant identification number and substitute address.

Acts 2018, ch. 1004, § 1.

Cross-References. Confidentiality of public records, § 10-7-504.

40-38-606. Request that governmental and private entities use substitute address — Registration as voter — Service of process.

A program participant may request that a governmental entity use the address designated by the secretary of state as the program participant's substitute address. Except as otherwise provided by this part, if the program participant requests that a governmental entity use the substitute address and provides evidence of certification as a program participant, the governmental entity shall accept the substitute address.
If a program participant's employer, school, or institution of higher education is not a governmental entity, the program participant may request that the employer, school, or institution of higher education use the substitute address designated by the secretary of state as the program participant's address.
The program participant may also request that private businesses and other non-governmental entities use the substitute address designated by the secretary of state as the program participant's address.
Program participants shall not be required to provide their confidential address to any public school for purposes of enrollment for themselves or their minor children, but rather shall be permitted to provide the public school with evidence of certification as a program participant and the participant's substitute address. Where residency must be verified in order to enroll a student in a public school, the individual responsible for verifying eligibility for enrollment shall submit a written request to the secretary of state, on a form prescribed by the secretary of state, whereby the secretary of state shall provide that individual with a statement as to whether the program participant, or the program participant's minor child, is eligible for enrollment, based on the information known to the secretary of state.
A program participant may be required to provide the program participant's residence address for purposes of obtaining utility services. Notwithstanding any contrary law, and except as otherwise provided by this part, if a program participant provides a utility service provider with evidence of certification as a program participant, the utility service provider shall treat the program participant's residence address and identifying information as confidential in accordance with the procedures established at § 10-7-504(a)(15). In such instances, the program participant may also request that the utility service provider use the substitute address.
Except as otherwise provided in this part, it shall be the responsibility of the program participant to provide the program participant's substitute mailing address to all governmental and private entities to ensure the confidentiality of the program participant's confidential address.
A participant shall be registered as a voter of the precinct in which the person is a resident.
1. The office of the secretary of state shall place all first class mail, legal documents, and certified mail received by the secretary of state on behalf of a program participant into an envelope or package and mail that envelope or package to the program participant at the mailing address the program participant provided to the secretary of state for that purpose within three (3) business days of receipt. The secretary of state may contract with the United States postal service to establish special postal rates for the envelopes or packages used in mailing a program participant's first class mail, legal documents, and certified mail under this section.
2. 1. Upon receiving service of process on behalf of a program participant, the office of the secretary of state shall immediately forward the process by certified mail, return receipt requested, to the program participant at the mailing address the program participant provided to the secretary of state for that purpose. Service of process upon the office of the secretary of state on behalf of a program participant shall constitute service upon the program participant under the Rules of Civil Procedure.
  2. The secretary of state may prescribe by rule the manner in which process may be served on the secretary of state as the agent of a program participant.
  3. Upon request by a person who intends to serve process on an individual, the secretary of state shall confirm whether the individual is a program participant but shall not disclose any other information concerning a program participant.

Acts 2018, ch. 1004, § 1.

Cross-References. Confidentiality of public records, § 10-7-504.

40-38-607. Confidentiality of program participant's voter registration record — Voter registration and absentee deadlines applicable — Exemption from jury duty.

The coordinator of elections and the administrator of elections shall keep a program participant's voter registration record confidential.
The form shall be stored in a secure manner and the coordinator of elections and administrator of elections shall have access to the form and to the residence address contained in the form.
The coordinator of elections and administrator of elections shall record the program participant's program participant identification number in a separate voter registration database with the participant's name, residence address, and precinct. This list shall be confidential. Only the participant identification number shall be included in the statewide official voter registration list, which contains all active and inactive voters.
The coordinator of elections and administrator of elections shall, as appropriate, direct that the program participant's name, address, and precinct information, as well as any other contact information, be removed from the program participant's voter registration record, voter registration databases, and the official registration list, as well as any pollbook, poll list, or signature pollbook in which it appears and from any publicly available registration list in which it appears.
If the program participant is registered to vote in another state, the coordinator of elections or administrator of elections shall notify the appropriate authority in that state to cancel the program participant's voter registration.
The coordinator of elections shall inform the program participant:
1. That the program participant is being placed on the absentee list pursuant to § 40-38-602;
2. That if the program participant wishes to vote in an election and keep their residence address confidential, the program participant shall cast an absentee ballot by mail;
3. Of the procedure for the program participant to cast an absentee ballot;
4. That appearing in person will reveal the program participant's precinct and residence address to precinct election officials and employees of the election commission and may reveal the program participant's precinct or residence address to members of the public; and
5. That if the program participant appears in person, the individual must cast a provisional ballot.
If the program participant submits an absentee ballot, such ballot shall be processed by the administrator of elections in order to ensure the highest level of confidentiality and protection of the voting process.
All applicable voter registration and absentee deadlines shall apply. The coordinator of elections may establish procedures for the submission and processing of absentee ballots for such participants in accordance with this part and other applicable law.
Program participants will be exempt from selection for state and municipal jury duty.

Acts 2018, ch. 1004, § 1.

Cross-References. Confidentiality of public records, § 10-7-504.

40-38-608. Cancellation of program participant's certification — Notice of cancellation — Request to withdraw from program — Responsibility to notify others that substitute address is no longer valid.

The secretary of state shall cancel the certification of a program participant if any of the following are true:
1. The program participant's application contained one or more false statements;
2. The program participant failed to relocate to a new address or failed to provide documentary evidence of the new residence address to the secretary of state, in the form and manner prescribed by the secretary of state, within ninety (90) days from the date of application, unless the secretary of state determines that the program participant is currently residing at a shelter, as defined by § 71-6-202, or a similar facility;
3. The program participant obtains a name change, unless the program participant provides the secretary of state with documentation of a legal name change within ten (10) business days of the name change;
4. The program participant's certification has expired and the program participant has not renewed the certification in accordance with § 40-38-605;
5. The program participant is found by the secretary of state, after proper notice, to be unreachable for a period of twenty (20) days or more, as defined by rules promulgated by the secretary of state;
6. The secretary of state becomes aware that circumstances have changed such that the participant no longer meets the criteria set forth under this part that would allow participation in the program; or
7. The participant submits to the secretary of state a written, notarized request to cease being a program participant on a form prescribed by the secretary of state.
The secretary of state shall send notice of certification cancellation to the program participant setting out the reasons for cancellation. The program participant has the right to appeal the cancellation and request, within thirty (30) days from the date of the notice of cancellation, a contested case hearing before an administrative law judge, in accordance with rules promulgated by the secretary of state and the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
A program participant may request to withdraw the program participant's participation in the program by submitting a written, notarized request, on a form prescribed by the secretary of state that includes all of the following:
1. The person's program participant identification number;
2. A statement that the participant wishes to cease being a program participant;
3. An acknowledgement that by withdrawing their participation, the person's address will no longer be kept confidential, the secretary of state will no longer accept or process mail received on the person's behalf, and the person's voter registration will no longer be kept confidential; and
4. A statement that the administrator of elections will either:
  1. Treat the person's existing voter registration form in the same manner as other voter registration forms; or
  2. Purge the participant's voter registration.
If an individual ceases to be a program participant, by reason of either cancellation or withdrawal, it shall be the responsibility of the individual to notify persons and entities that use the substitute address that the substitute address is no longer valid.

Acts 2018, ch. 1004, § 1; 2020, ch. 577, §§ 4, 5.

Amendments. The 2020 amendment substituted “, unless the secretary of state determines that the program participant is currently residing at a shelter, as defined by § 71-6-202, or a similar facility” for “as sworn on the application” in (a)(2); and substituted “twenty (20) days” for “sixty (60) days” in (a)(5).

Effective Dates. Acts 2020, ch. 577, § 6. March 19, 2020.

Cross-References. Confidentiality of public records, § 10-7-504.

40-38-609. Disclosure of substitute address or other information by secretary of state — Requests for disclosure.

Except as otherwise provided by this part, the secretary of state shall not disclose the confidential address or any other information contained within a program participant's file, other than the substitute address designated by the secretary of state, except under the following circumstances:
1. If directed by a court order signed by a judge of a court of competent jurisdiction;
2. Upon written request, on a form prepared by the secretary of state, by the chief law enforcement officer of a county or municipality, or an authorized representative of the Tennessee bureau of investigation, Tennessee highway patrol, or a federal law enforcement agency, if related to an ongoing official investigation; or
3. Upon written request, on a form prepared by the secretary of state, by a director of a state or federal agency, if the secretary of state determines that there exists a bona fide legal or administrative requirement of the use of the program participant's confidential address such that the director is unable to fulfill legal duties and obligations without the confidential address.
Upon written request by the director of a state or federal agency, the chief law enforcement officer of a county or municipality, or an authorized representative of the Tennessee bureau of investigation, Tennessee highway patrol, or a federal law enforcement agency who intends to request access to an individual's confidential address under this section, or any other information contained within a program participant's file, the secretary of state shall confirm whether the individual is a program participant but shall not disclose any additional information concerning the program participant until such time as a written request for disclosure as described in this section is granted. Subject to subsections (d) and (e), a determination regarding such a written request shall be made by the secretary within three (3) business days following receipt of a completed request for disclosure.
When making a request for the disclosure of the program participant's confidential address, or any other information contained within a program participant's file, whether before a court of law or by written request to the secretary of state, the party or parties requesting the disclosure must show by clear and convincing evidence that the disclosure of the confidential address or other records is necessary for a legitimate governmental purpose that cannot otherwise be accomplished and which outweighs the risk of harm to the program participant.
Written requests for disclosure of the program participant's confidential address, or any other information contained within a program participant's file, shall be submitted to the office of the secretary of state, on a form prescribed by the secretary of state, for consideration by the secretary or the secretary's designee. Except for a request from a law enforcement agency under subdivision (a)(2), the secretary shall provide the program participant with notice of the requested disclosure and an opportunity to respond in writing to the request stating any objections to the disclosure. The secretary shall issue a determination in writing, which shall be provided to both the requesting party and the program participant, setting out the information that is to be disclosed and the reason for the disclosure.
Any party may, within ten (10) business days of the date of the secretary's decision, appeal the secretary's decision by filing with the office of the secretary of state a written request for a contested case hearing before an administrative law judge under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, on a form prescribed by the secretary of state. The program participant, or the program participant's parent or fiduciary if applicable, shall have an opportunity to present evidence at the contested case hearing regarding the potential harm to the safety of the program participant if the program participant's confidential address, or any other information contained in the program participant's file, is disclosed. If no request for appeal is filed within ten (10) business days of the secretary's decision, then the secretary's decision shall be implemented according to its terms.
Disclosure of a participant's confidential address, or any other information contained within a program participant's file, under this section shall be limited under the terms of the court's order or the secretary's determination to ensure that the disclosure and dissemination of the confidential address will be no greater than necessary for the specific purpose for which it was requested.
Individuals granted access to the program participant's confidential information, whether by court order or by virtue of the individual's position as an employee of a governmental entity, are prohibited from knowingly disclosing such information to unauthorized individuals, except as otherwise required by law.
No person shall knowingly obtain a program participant's confidential address or telephone number from any governmental agency knowing that the person is not authorized to obtain the address information.
Nothing in this section shall be construed as to prevent the secretary of state from granting a request for disclosure to a state or local government agency pursuant to this part upon receipt of a program participant's written and notarized consent to do so.

Acts 2018, ch. 1004, § 1.

Cross-References. Confidentiality of public records, § 10-7-504.

40-38-610. Unlawful acts.

A person who falsely attests in an application that disclosure of the confidential address would endanger the safety of the applicant, or the minor or person with a disability on whose behalf the application is made, or who knowingly provides false or incorrect information upon making an application commits perjury.
Any individual who knowingly discloses a program participant's confidential address, or any other confidential information belonging to a program participant, in violation of this part commits a Class A misdemeanor. Where the disclosure resulted in harm to the program participant, the resulting harm shall be considered an enhancement factor when determining any punishment imposed.
Any individual who knowingly obtains a program participant's confidential address, or any other confidential information belonging to a program participant, in violation of this part, knowing that the individual is not authorized to obtain the information, commits a Class A misdemeanor. Where the disclosure resulted in harm to the program participant, the resulting harm shall be considered an enhancement factor when determining any punishment imposed.

Acts 2018, ch. 1004, § 1.

Cross-References. Confidentiality of public records, § 10-7-504.

Penalty for Class A misdemeanor, § 40-35-111.

40-38-611. List of agencies that provide services to victims of domestic abuse or a sexual offense to assist persons applying to be program participants.

The secretary of state shall establish a list of state and local agencies and nonprofit agencies that provide counseling and shelter services to victims of domestic abuse or a sexual offense to assist persons applying to be program participants.
Notwithstanding any contrary law, a state, local, or nonprofit agency or application assistant that provides counseling, shelter, or any other services to a program participant shall not be required to disclose the confidential address or any other information concerning the program participant for any reason.
The secretary of state is authorized to promulgate rules under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, pertaining to application assistants and shall provide training and certification as application assistants to representatives of state, local, and nonprofit agencies that provide counseling and shelter services to victims of domestic abuse or a sexual offense. The secretary of state may partner with nonprofit agencies, or other governmental agencies, to provide training or other services in connection with the program.
Any assistance or counseling rendered to an applicant by the office of the secretary of state shall in no way be construed as legal advice.

Acts 2018, ch. 1004, § 1.

Cross-References. Confidentiality of public records, § 10-7-504.

40-38-612. Effect of program participation on custody or visitation orders.

Nothing in this part, including participation in the program created by this part, shall affect custody or visitation orders in effect prior to or during program participation.
Program participation does not constitute evidence of domestic abuse, stalking, human trafficking, or any sexual offense and shall not be considered for purposes of making an order allocating parental responsibilities or parenting time, except that a court may consider practical measures to keep a program participant's confidential address confidential when making an order allocating parental responsibilities or parenting time.

Acts 2018, ch. 1004, § 1.

Cross-References. Confidentiality of public records, § 10-7-504.

40-38-613. Effect of negligent disclosure of program participant's confidential address — Notification of disclosure.

No actionable duty or any right of action shall accrue against the state, a county, a municipality, an agency of the state or county or municipality, or an employee of the state or county or municipality in the event of negligent disclosure of a program participant's confidential address.
In the event that the state, a county, a municipality, an agency of the state or county or municipality, or an employee of the state or county or municipality negligently or otherwise unlawfully discloses the program participant's confidential address, such entity must immediately upon learning of the disclosure notify the program participant of the disclosure and the full extent of the disclosure.

Acts 2018, ch. 1004, § 1.

Cross-References. Confidentiality of public records, § 10-7-504.

Chapter 39
Offender Registration and Monitoring

Part 1
Tennessee Animal Abuser Registration Act

40-39-101. Short title.

This part shall be known and may be cited as the “Tennessee Animal Abuser Registration Act.”

Acts 2015, ch. 413, § 1.

40-39-102. Part definitions.

As used in this part:

“Abuser” or “animal abuser” means a person who has been convicted in this state of committing an animal abuse offense;
“Animal” means a companion animal, and a “non-livestock animal”, as defined in § 39-14-201. “Animal” does not mean “livestock”, as defined in § 39-14-201, or “wildlife”, as defined in § 70-1-101;
“Animal abuse offense” means:
1. Aggravated cruelty to animals, under § 39-14-212;
2. Animal fighting, under § 39-14-203, where the defendant's act constitutes a felony; and
3. A criminal offense against animals, under § 39-14-214;
“Companion animal” means any dog, defined as any live dog of the species Canis familiaris, or cat, defined as any live cat of the species Felis catus;
“Conviction” means a judgment entered by a Tennessee court upon a plea of guilty, a plea of nolo contendere, or a finding of guilt by a jury or the court, notwithstanding any pending appeal or habeas corpus proceeding arising from the judgment. Conviction includes a disposition of pretrial diversion under § 40-15-105, a disposition of judicial diversion under § 40-35-313, or the equivalent dispositions from other jurisdictions;
“Director” means the director of the TBI; and
“TBI” means the Tennessee bureau of investigation.

Acts 2015, ch. 413, § 1.

40-39-103. Publication of list of persons convicted of animal abuse on TBI website — Length of time name maintained on list — Removal of name.

Beginning January 1, 2016, the TBI shall post a publicly accessible list on its website of any person convicted of an animal abuse offense on and after that date.
1. The list shall include a photograph taken of the convicted animal abuser as part of the booking process, the animal abuser's full legal name, and other identifying data as the TBI determines is necessary to properly identify the animal abuser and to exclude innocent persons.
2. The list shall not include the abuser's social security number, driver license number, or any other state or federal identification number.
The court clerks shall forward a copy of the judgment and date of birth of all persons convicted of an animal abuse offense to the TBI within sixty (60) calendar days of the date of judgment.
1. Upon a person's first conviction for an animal abuse offense, the TBI shall maintain the person's name and other identifying information, described in subsection (b), on the list published under subsection (a) for two (2) years following the date of conviction, after which time the TBI shall remove the person's name and identifying information from the list; provided, that the person is not convicted of another animal abuse offense during that two-year period.
2. Upon a person's subsequent conviction for an animal abuse offense, the TBI shall maintain the person's name and other identifying information, described in subsection (b), on the list published under subsection (a) for five (5) years following the date of the most recent conviction, after which time the TBI shall remove the person's name and identifying information from the list; provided, that the person is not convicted of another animal abuse offense during that five-year period.
The list shall remain on the TBI website for such time as determined by the director.
The TBI shall remove the person's name and identifying information from the registry list if the sole offense for which the person is required to be subject to the mandates of the registry is expunged, pursuant to § 40-32-101.

Acts 2015, ch. 413, § 1.

Law Reviews.

Animal Abuse and Domestic Violence: Why the Connection Justifies Increased Protection, 47 U. Mem. L. Rev. 359 (2016).

40-39-104. Promulgation of rules.

The TBI may promulgate rules to effectuate the purposes of this part. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2015, ch. 413, § 1.

Part 2
Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004

40-39-201. Short title — Legislative findings.

This part shall be known as and may be cited as the “Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004.”
The general assembly finds and declares that:
1. Repeat sexual offenders, sexual offenders who use physical violence and sexual offenders who prey on children are violent sexual offenders who present an extreme threat to the public safety. Sexual offenders pose a high risk of engaging in further offenses after release from incarceration or commitment and protection of the public from these offenders is of paramount public interest;
2. It is a compelling and necessary public interest that the public have information concerning persons convicted of sexual offenses collected pursuant to this part, to allow members of the public to adequately protect themselves and their children from these persons;
3. Persons convicted of these sexual offenses have a reduced expectation of privacy because of the public's interest in public safety;
4. In balancing the sexual offender's and violent sexual offender's due process and other rights against the interests of public security, the general assembly finds that releasing information about offenders under the circumstances specified in this part will further the primary governmental interest of protecting vulnerable populations from potential harm;
5. The registration of offenders, utilizing complete and accurate information, along with the public release of specified information concerning offenders, will further the governmental interests of public safety and public scrutiny of the criminal and mental health systems that deal with these offenders;
6. To protect the safety and general welfare of the people of this state, it is necessary to provide for continued registration of offenders and for the public release of specified information regarding offenders. This policy of authorizing the release of necessary and relevant information about offenders to members of the general public is a means of assuring public protection and shall not be construed as punitive;
7. The offender is subject to specified terms and conditions that are implemented at sentencing or, at the time of release from incarceration, that require that those who are financially able must pay specified administrative costs to the appropriate registering agency, which shall retain one hundred dollars ($100) of these costs for the administration of this part and shall be reserved for the purposes authorized by this part at the end of each fiscal year, with the remaining fifty dollars ($50.00) of fees to be remitted to the state treasury to be deposited into the general fund of the state; provided, that a juvenile offender required to register under this part shall not be required to pay the administrative fee until the offender reaches eighteen (18) years of age; and
8. The general assembly also declares, however, that in making information about certain offenders available to the public, the general assembly does not intend that the information be used to inflict retribution or additional punishment on those offenders.

Acts 2004, ch. 921, § 1; 2005, ch. 316, § 1; 2008, ch. 1164, § 1; 2011, ch. 483, § 4; 2020, ch. 668, § 3.

Compiler's Notes. Acts 2004, ch. 921, § 4 provided that all sexual offenders who were, prior to August 1, 2004, subject to the provisions of title 40, chapter 39, part 1, shall, on and after August 1, 2004, be subject to the provisions of title 40, chapter 39, part 2, created by that act.

Acts 2005, ch. 316, § 2, provided that, if the provisions of that act are declared to be invalid, the provisions of title 40, chapter 39, part 1, as such part existed on July 31, 2004, shall be revived and take full force and effect. It is the intent of the General Assembly that, if this act is declared invalid, the prior law shall immediately govern and regulate the registration, verification and tracking of sexual offenders in this state.

Amendments. The 2020 amendment substituted “state treasury to be deposited into the general fund of the state” for “Tennessee bureau of investigation’s sex offender registry” in (b)(7).

Effective Dates. Acts 2020, ch. 668, § 6. April 2, 2020.

Cross-References. Prohibition against residency of registered sexual offenders, § 49-7-162.

Law Reviews.

Criminal Law--A Plea of Guilty-A Criminal Defendant's Right to Withdraw a Guilty Plea Before Sentencing (Chris Rowe), 79 Tenn. L. Rev. 669 (2012).

Attorney General Opinions. Constitutionality of proposed legislation regarding registration and reporting requirements for sex offenders, OAG 04-069, 2004 Tenn. AG LEXIS 72 (4/21/04).

Termination of sexual offender registration and residency requirements, OAG 07-013, 2007 Tenn. AG LEXIS 13 (2/12/07).

NOTES TO DECISIONS

1. Constitutionality.

Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking Act of 2004, T.C.A. § 40-39-201 et seq., and the Tennessee Serious and Violent Sex Offender Monitoring Pilot Project Act, T.C.A. § 40-39-301 et seq., do not violate the ex post facto clause of the U.S. Constitution. Doe v. Bredesen, 507 F.3d 998, 2007 FED App. 456P, 2007 U.S. App. LEXIS 26630 (6th Cir. Nov. 16, 2007), rehearing denied, 521 F.3d 680, 2008 FED App. 131P (6th Cir.), 2008 U.S. App. LEXIS 5907 (6th Cir. 2008), cert. denied, 555 U.S. 921, 172 L. Ed. 2d 210, 129 S. Ct. 287, — U.S. —, 77 U.S.L.W. 3206, 2008 U.S. LEXIS 6350 (U.S. 2008).

Plaintiff's conclusory allegation, that the registration requirements and work restrictions of the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking Act of 2004 were facially unconstitutional because they failed to provide adequate procedures for the determination of whether or not their effect was punishment, simply did not allege facts; the motion to dismiss was properly granted with respect to plaintiff's challenge that the Act violated ex post facto provisions. King v. State, — S.W.3d —, 2018 Tenn. App. LEXIS 663 (Tenn. Ct. App. Nov. 15, 2018).

Plaintiff's petition alleged sufficient facts which could support a holding that, as applied to him, the requirements and restrictions were not rationally connected to a non-punitive purpose or were excessive relative to that purpose, and thus the dismissal of his petition with respect to his as-applied ex post facto challenge was reversed. King v. State, — S.W.3d —, 2018 Tenn. App. LEXIS 663 (Tenn. Ct. App. Nov. 15, 2018).

Sex offender did not show application of the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004 (Act) to the offender was an ex post facto violation because (1) the legislature did not so intend the Act, (2) binding precedent held the Act was not punitive in effect, and (3) the offender did not show by clearest proof how the Act punished the offender or that the Act imposed an impermissible punishment. Clark v. Gwyn, — S.W.3d —, 2019 Tenn. App. LEXIS 176 (Tenn. Ct. App. Apr. 11, 2019).

Petitioner's constitutional rights were not violated by the registration requirement; his ex post facto claim failed, he suffered no criminal penalty because the registration requirement was remedial and regulatory and not punitive in nature, the registration restrictions were not cruel and unusual punishment, and he was not being punished twice for one offense. Woodson v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 36 (Tenn. Crim. App. Jan. 24, 2020).

2. Collateral Consequence of Guilty Plea.

Trial court's failure to advise defendant of the sex offender registration requirement of the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking Act, T.C.A. §§ 40-39-201 to 215, did not render defendant's guilty plea constitutionally invalid; the registration requirements imposed by the act were nonpunitive and therefore a collateral consequence of a guilty plea. Ward v. State, 315 S.W.3d 461, 2010 Tenn. LEXIS 635 (Tenn. July 7, 2010).

3. Judicial Diversion.

4. Legislative Intent.

Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking Act of 2004 imposes responsibilities on the Tennessee Bureau of Investigation (TBI) to collect biographical information, to maintain the sex offender registry, to report current registry information to the Federal Bureau of Investigation, and to consider requests for termination of registration requirements; these responsibilities are appropriate guidelines and provide sufficient standards to enable the TBI to carry out the Act's legislative intent. King v. State, — S.W.3d —, 2018 Tenn. App. LEXIS 663 (Tenn. Ct. App. Nov. 15, 2018).

5. Construction.

If due process does not require a defendant pleading guilty to a sex offense to be informed about the requirements of the Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking Act and the potential penalties for failing to comply with the Act, it makes no sense to require a trial court to inform a defendant pleading guilty or nolo contendere to a sex offense that failing to comply with the requirements of his required sex offender therapy may lead to the revocation of his probation. State v. Albright, — S.W.3d —, 2018 Tenn. LEXIS 743 (Tenn. Dec. 11, 2018).

40-39-202. Part definitions.

As used in this part, unless the context otherwise requires:

“Conviction” means a judgment entered by a Tennessee court upon a plea of guilty, a plea of nolo contendere, a finding of guilt by a jury or the court notwithstanding any pending appeal or habeas corpus proceeding arising from the judgment. “Conviction” includes, but is not limited to, a conviction by a federal court or military tribunal, including a court-martial conducted by the armed forces of the United States, and a conviction, whether upon a plea of guilty, a plea of nolo contendere or a finding of guilt by a jury or the court in any other state of the United States, other jurisdiction or other country. A conviction, whether upon a plea of guilty, a plea of nolo contendere or a finding of guilt by a jury or the court for an offense committed in another jurisdiction that would be classified as a sexual offense or a violent sexual offense if committed in this state shall be considered a conviction for the purposes of this part. An adjudication in another state for a delinquent act committed in another jurisdiction that would be classified as a violent juvenile sexual offense under this section, if committed in this state, shall be considered a violent juvenile sexual offense for the purposes of this part. “Convictions,” for the purposes of this part, also include a plea taken in conjunction with § 40-35-313 or its equivalent in any other jurisdiction. “Conviction” also includes a juvenile delinquency adjudication for a violent juvenile sexual offense if the offense occurs on or after July 1, 2011;
“Designated law enforcement agency” means any law enforcement agency that has jurisdiction over the primary or secondary residence, place of physical presence, place of employment, school or institution of higher education where the student is enrolled or, for offenders on supervised probation or parole, the department of correction or court ordered probation officer;
“Employed or practices a vocation” means any full-time or part-time employment in the state, with or without compensation, or employment that involves counseling, coaching, teaching, supervising, volunteering or working with minors in any way, regardless of the period of employment, whether the employment is financially compensated, volunteered or performed for the purpose of any government or education benefit;
“Institution of higher education” means a public or private:
1. Community college;
2. College;
3. University; or
4. Independent postsecondary institution;
“Law enforcement agency of any institution of higher education” means any campus law enforcement arrangement authorized by § 49-7-118;
“Local law enforcement agency” means:
1. Within the territory of a municipality, the municipal police department;
2. Within the territory of a county having a metropolitan form of government, the metropolitan police department; or
3. Within the unincorporated territory of a county, the sheriff's office;
“Minor” means any person under eighteen (18) years of age;
“Month” means a calendar month;
“Offender” means sexual offender, violent sexual offender and violent juvenile sexual offender, unless otherwise designated. An offender who qualifies both as a sexual offender and a violent sexual offender or as a violent juvenile sexual offender and as a violent sexual offender shall be considered a violent sexual offender;
“Offender against children” means any sexual offender, violent sexual offender or violent juvenile sexual offender if the victim in one (1) or more of the offender's crimes was a child of twelve (12) years of age or less;
“Parent” means any biological parent, adoptive parent or step-parent, and includes any legal or court-appointed guardian or custodian; however, “parent” shall not include step-parent if the offender's victim was a minor less than thirteen (13) years of age;
“Primary residence” means a place where the person abides, lodges, resides or establishes any other living accommodations in this state for five (5) consecutive days;
“Register” means the initial registration of an offender, or the re-registration of an offender after deletion or termination from the SOR;
“Registering agency” means a sheriff's office, municipal police department, metropolitan police department, campus law enforcement agency, the Tennessee department of correction, a private contractor with the Tennessee department of correction or the board;
“Relevant information deemed necessary to protect the public” means that information set forth in § 40-39-206(d)(1)-(15);
“Report” means appearance before the proper designated law enforcement agency for any of the purposes set out in this part;
“Resident” means any person who abides, lodges, resides or establishes any other living accommodations in this state, including establishing a physical presence in this state;
“Secondary residence” means a place where the person abides, lodges, resides or establishes any other living accommodations in this state for a period of fourteen (14) or more days in the aggregate during any calendar year and that is not the person's primary residence; for a person whose primary residence is not in this state, a place where the person is employed, practices a vocation or is enrolled as a student for a period of fourteen (14) or more days in the aggregate during any calendar year; or a place where the person routinely abides, lodges or resides for a period of four (4) or more consecutive or nonconsecutive days in any month and that is not the person's primary residence, including any out-of-state address;
“Sexual offender” means a person who has been convicted in this state of committing a sexual offense or has another qualifying conviction;
“Sexual offense” means:
1. The commission of any act that, on or after November 1, 1989, constitutes the criminal offense of:
  1. Sexual battery, under § 39-13-505;
  2. Statutory rape, under § 39-13-506, if the defendant has one (1) or more prior convictions for mitigated statutory rape under § 39-13-506(a), statutory rape under § 39-13-506(b) or aggravated statutory rape under § 39-13-506(c), or if the judge orders the person to register as a sexual offender pursuant to § 39-13-506(d);
  3. Aggravated prostitution, under § 39-13-516, provided the offense occurred prior to July 1, 2010;
  4. Sexual exploitation of a minor, under § 39-17-1003;
  5. False imprisonment where the victim is a minor, under § 39-13-302, except when committed by a parent of the minor;
  6. Kidnapping, where the victim is a minor, under § 39-13-303, except when committed by a parent of the minor;
  7. Indecent exposure, under § 39-13-511, upon a third or subsequent conviction;
  8. Solicitation of a minor, under § 39-13-528 when the offense is classified as a Class D felony, Class E felony or a misdemeanor;
  9. Spousal sexual battery, for those committing the offense prior to June 18, 2005, under former § 39-13-507 [repealed];
  10. Attempt, under § 39-12-101, to commit any of the offenses enumerated in this subdivision (20)(A);
  11. Solicitation, under § 39-12-102, to commit any of the offenses enumerated in this subdivision (20)(A);
  12. Conspiracy, under § 39-12-103, to commit any of the offenses enumerated in this subdivision (20)(A);
  13. Criminal responsibility, under § 39-11-402(2), to commit any of the offenses enumerated in this subdivision (20)(A);
  14. Facilitating the commission, under § 39-11-403, to commit any of the offenses enumerated in this subdivision (20)(A);
  15. Being an accessory after the fact, under § 39-11-411, to commit any of the offenses enumerated in this subdivision (20)(A);
  16. Aggravated statutory rape, under § 39-13-506(c);
  17. Soliciting sexual exploitation of a minor — exploitation of a minor by electronic means, under § 39-13-529;
  18. Promotion of prostitution, under § 39-13-515;
  19. Patronizing prostitution where the victim is a minor, under § 39-13-514;
  20. Observation without consent, under § 39-13-607, upon a third or subsequent conviction;
  21. Observation without consent, under § 39-13-607 when the offense is classified as a Class E felony;
  22. Unlawful photographing under § 39-13-605 when the offense is classified as a Class E or Class D felony;
  23. Sexual contact with inmates, under § 39-16-408;
  24. Unlawful photographing, under § 39-13-605, when convicted as a misdemeanor if the judge orders the person to register as a sexual offender pursuant to § 39-13-605; or
  25. Aggravated unlawful photography, under § 39-13-611;
2. The commission of any act, that prior to November 1, 1989, constituted the criminal offense of:
  1. Sexual battery, under § 39-2-607 [repealed];
  2. Statutory rape, under § 39-2-605 [repealed], only if the facts of the conviction satisfy the definition of aggravated statutory rape;
  3. Assault with intent to commit rape or attempt to commit sexual battery, under § 39-2-608 [repealed];
  4. Incest, under § 39-4-306 [repealed];
  5. Use of a minor for obscene purposes, under § 39-6-1137 [repealed];
  6. Promotion of performance including sexual conduct by a minor, under § 39-6-1138 [repealed];
  7. Criminal sexual conduct in the first degree, under § 39-3703 [repealed];
  8. Criminal sexual conduct in the second degree, under § 39-3704 [repealed];
  9. Criminal sexual conduct in the third degree, under § 39-3705 [repealed];
  10. Kidnapping where the victim is a minor, under § 39-2-303 [repealed], except when committed by a parent of the minor;
  11. Solicitation, under § 39-1-401 [repealed] or § 39-118(b) [repealed], to commit any of the offenses enumerated in this subdivision (20)(B);
  12. Attempt, under § 39-1-501 [repealed], § 39-605 [repealed], or § 39-606 [repealed], to commit any of the offenses enumerated in this subdivision (20)(B);
  13. Conspiracy, under § 39-1-601 [repealed] or § 39-1104 [repealed], to commit any of the offenses enumerated in this subdivision (20)(B); or
  14. Accessory before or after the fact, or aider and abettor, under title 39, chapter 1, part 3 [repealed], to any of the offenses enumerated in this subdivision (20)(B);
“Social media” means websites and other online means of communication that are usually used by large groups of people to share information, to develop social and professional contacts, and that customarily require an identifying password and user identification to participate;
“SOR” means the TBI's centralized record system of offender registration, verification and tracking information;
“Student” means a person who is enrolled on a full-time or part-time basis in any public or private educational institution, including any secondary school, trade or professional institution or institution of higher learning;
“TBI” means the Tennessee bureau of investigation;
“TBI registration form” means the Tennessee sexual offender registration, verification and tracking form;
“TDOC” means the Tennessee department of correction;
“TIES” means the Tennessee information enforcement system;
1. “Violent juvenile sexual offender” means a person who is adjudicated delinquent in this state for any act that constitutes a violent juvenile sexual offense; provided, that the person is at least fourteen (14) years of age but less than eighteen (18) years of age at the time the act is committed;
2. Upon an adjudication of delinquency in this state for an act that constitutes a violent juvenile sexual offense, the violent juvenile sexual offender shall also be considered a violent sexual offender under this part, unless otherwise set out in this part;
1. “Violent juvenile sexual offense” means an adjudication of delinquency, for any act committed on or after July 1, 2011, that, if committed by an adult, constitutes the criminal offense of:
  1. Aggravated rape, under § 39-13-502;
  2. Rape, under § 39-13-503;
  3. Rape of a child, under § 39-13-522, provided the victim is at least four (4) years younger than the offender;
  4. Aggravated rape of a child, under § 39-13-531; or
  5. Criminal attempt, under § 39-12-101, to commit any of the offenses enumerated in this subdivision (29)(A);
2. “Violent juvenile sexual offense” also means an adjudication of delinquency, for any act committed on or after July 1, 2014, that, if committed by an adult, constitutes the criminal offense of:
  1. Aggravated sexual battery, under § 39-13-504;
  2. Criminal attempt, under § 39-12-101, to commit any of the offenses enumerated in this subdivision (29)(B);
“Violent sexual offender” means a person who has been convicted in this state of committing a violent sexual offense or has another qualifying conviction;
“Violent sexual offense” means the commission of any act that constitutes the criminal offense of:
1. Aggravated rape, under § 39-2-603 [repealed] or § 39-13-502;
2. Rape, under § 39-2-604 [repealed] or § 39-13-503;
3. Aggravated sexual battery, under § 39-2-606 [repealed] or § 39-13-504;
4. Rape of a child, under § 39-13-522;
5. Attempt to commit rape, under § 39-2-608 [repealed];
6. Aggravated sexual exploitation of a minor, under § 39-17-1004;
7. Especially aggravated sexual exploitation of a minor under § 39-17-1005;
8. Aggravated kidnapping where the victim is a minor, under § 39-13-304, except when committed by a parent of the minor;
9. Especially aggravated kidnapping where the victim is a minor, under § 39-13-305, except when committed by a parent of the minor;
10. Sexual battery by an authority figure, under § 39-13-527;
11. Solicitation of a minor, under § 39-13-528 when the offense is classified as a Class B or Class C felony;
12. Spousal rape, under § 39-13-507(b)(1) [repealed];
13. Aggravated spousal rape, under § 39-13-507(c)(1) [repealed];
14. Criminal exposure to HIV, under § 39-13-109(a)(1);
15. Statutory rape by an authority figure, under § 39-13-532;
16. Criminal attempt, under § 39-12-101, § 39-12-501 [repealed], § 39-605 [repealed], or § 39-606 [repealed], to commit any of the offenses enumerated in this subdivision (31);
17. Solicitation, under § 39-12-102, to commit any of the offenses enumerated in this subdivision (31);
18. Conspiracy, under § 39-12-103, to commit any of the offenses enumerated in this subdivision (31);
19. Criminal responsibility, under § 39-11-402(2), to commit any of the offenses enumerated in this subdivision (31);
20. Facilitating the commission, under § 39-11-403, to commit any of the offenses enumerated in this subdivision (31);
21. Being an accessory after the fact, under § 39-11-411, to commit any of the offenses enumerated in this subdivision (31);
22. Incest, under § 39-15-302;
23. Aggravated rape of a child under § 39-13-531;
24. Aggravated prostitution, under § 39-13-516; provided, that the offense occurs on or after July 1, 2010;
25. Trafficking for a commercial sex act, under § 39-13-309;
26. Promotion of prostitution, under § 39-13-515, where the person has a prior conviction for promotion of prostitution; or
27. Continuous sexual abuse of a child, under § 39-13-518; and
“Within forty-eight (48) hours” means a continuous forty-eight-hour period, not including Saturdays, Sundays or federal or state holidays.

Acts 2004, ch. 921, § 1; 2005, ch. 316, § 1; 2006, ch. 890, §§ 6-9; 2007, ch. 262, §§ 1, 2; 2007, ch. 465, §§ 1, 4; 2007, ch. 594, § 6; 2008, ch. 714, § 1; 2008, ch. 1164, § 2; 2010, ch. 1138, §§ 1-5; 2011, ch. 483, §§ 5-9; 2012, ch. 727, §§ 47, 60; 2012, ch. 753, §§ 1, 2; 2012, ch. 883, § 2; 2012, ch. 1075, § 4; 2014, ch. 722, § 1; 2014, ch. 729, § 1; 2014, ch. 744, § 1; 2014, ch. 770, §§ 1, 5, 6; 2014, ch. 977, § 3; 2015, ch. 284, § 1; 2015, ch. 316, § 1; 2015, ch. 516, § 6; 2016, ch. 941, § 2; 2018, ch. 719, § 1; 2019, ch. 437, § 2.

Compiler's Notes. Acts 2004, ch. 921, § 3 provided that, if the provisions of that act are declared to be invalid, the provisions of former part 1 (§§ 40-39-101 — 40-39-111), as such part existed on July 31, 2004, shall be revived and take full force and effect; and further provided that:

“It is the intent of the general assembly that, if this act is declared invalid, the prior law shall immediately govern and regulate the registration, verification and tracking of sexual offenders in this state.”

Acts 2004, ch. 921, § 4 provided that all sexual offenders who were, prior to August 1, 2004, subject to the provisions of title 40, chapter 39, part 1, shall, on and after August 1, 2004, be subject to the provisions of title 40, chapter 39, part 2, created by that act.

Acts 2005, ch. 316, § 2 provided that, if the provisions of that act are declared to be invalid, the provisions of title 40, chapter 39, part 1, as such part existed on July 31, 2004, shall be revived and take full force and effect. It is the intent of the General Assembly that, if this act is declared invalid, the prior law shall immediately govern and regulate the registration, verification and tracking of sexual offenders in this state.

Acts 2007, ch. 262, § 3 provided that the act shall apply to all offenders committing the offense of incest on or after May 30, 2007.

For the Preamble to the act regarding criminal penalties, procedure and sentencing, please refer to Acts 2007, ch. 594.

Acts 2008, ch. 714, § 1 purported to amend this section by adding subdivision (25)(V), effective July 1, 2008. Acts 2008, ch. 1164, § 2 amended this section by adding the same provisions as subdivision (28)(W), effective July 1, 2008; therefore, the amendment by ch. 714 was not given effect.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which deleted the definition of “board” and amended the definition of “designated law enforcement agency”, shall be fully accomplished on or before January 1, 2013.

Pursuant to Article III, Section 18 of the Constitution of Tennessee, Acts 2014, ch. 744 took effect on April 21, 2014.

Acts 2014, ch. 977, § 4 provided that the act, which added (A)(xxi) and (xxii) in the definition of “sexual offense”, shall apply only to offenses occurring on or after July 1, 2014.

Title 39, ch. 1, part 3, §§ 39-1-401, 39-1-501, 39-1-601, 39-2-303, 39-2-603 — 39-2-608, 39-4-306, 39-6-1137, 39-6-1138, referred to in this section, were repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989.

Section 39-13-507, referred to in this section, was repealed by Acts 2005, ch. 456, § 2, effective June 18, 2005.

Acts 2015, ch. 284, § 4 provided that the act, which added (20)(A)(xxiii), shall apply to acts committed on or after July 1, 2015.

Acts 2018, ch. 719, § 3 provided that the act, which amended this section, shall apply to offenses committed on or after July 1, 2018.

Amendments. The 2019 amendment added (20)(A)(xxv).

Effective Dates. Acts 2019, ch. 437, § 3. May 22, 2019.

Cross-References. Penalties for Class B, C, D and E felonies, § 40-35-111.

Law Reviews.

Crime & Punishment: Preventing Ineffective Assistance of Counsel: Advice Regarding Plea Offers (Wade V. Davies), 49 Tenn. B.J. 28 (2013).

Criminal Law--A Plea of Guilty-A Criminal Defendant's Right to Withdraw a Guilty Plea Before Sentencing (Chris Rowe), 79 Tenn. L. Rev. 669 (2012).

Let's Talk About Sexting, Baby: A Mens Rea-Centered Approach to the Sexting Issue in Tennessee (Emily Long), 42 U. Mem. L. Rev. 1139 (2012).

Attorney General Opinions. T.C.A. § 40-39-202(17)(A)(vii) (now § 40-39-202(20)(A)(vii)) is not unconstitutionally vague, OAG 07-164, 2007 Tenn. AG LEXIS 164 (12/13/07).

A person who has been convicted of three or more counts of indecent exposure in violation of T.C.A. § 39-13-511 is a sexual offender as defined in T.C.A. § 40-39-202(20)(A)(vii) and is therefore required to register pursuant to T.C.A. § 40-39-203, OAG 07-164, 2007 Tenn. AG LEXIS 164 (12/13/07).

Juveniles on sex offender registry. OAG 14-15, 2014 Tenn. AG LEXIS 16 (2/3/14).

NOTES TO DECISIONS

1. Registration Not Required.

Language of this section defining a conviction as including persons placed on judicial diversion was confusing, vague, and ambiguous and therefore principles of notice, legality, and due process supported the trial court's decision not to require defendant to register as a sex offender. State v. Townsend, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 277 (Tenn. Crim. App. Apr. 13, 2017).

2. Constitutionality.

In a case in which defendant was required to register as a sexual offender and to report monthly to a probation and parole officer, the registration and reporting requirements of the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking Act of 2004 did not violate the ex post facto clause as the requirements were non-punitive and intended to protect the general welfare of the State of Tennessee; and defendant did not show how his circumstances prevented the non-punitive purpose from applying to him, made the requirement more excessive than it would be for any other homeless resident of Tennessee, or imposed some unique disability or restraint on him. State v. Hoss, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1033 (Tenn. Crim. App. Dec. 15, 2017), review denied and ordered not published, — S.W.3d —, 2018 Tenn. LEXIS 205 (Tenn. Apr. 18, 2018).

3. Sex Offender.

Evidence was sufficient to find defendant guilty of violating the sexual offender registry's requirements because he was convicted of aggravated sexual battery in Kansas, which was classified in Tennessee as a violent sexual offense; as he was homeless, he was required to report to a probation and parole officer monthly; after five months, he quit reporting to the officer; he provided written acknowledgment that he was aware of and understood the requirements of the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking Act of 2004; and, based on his signature on the registration and forms, the law presumed he had knowledge of the Act's registration, verification, and tracking requirements. State v. Hoss, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1033 (Tenn. Crim. App. Dec. 15, 2017), review denied and ordered not published, — S.W.3d —, 2018 Tenn. LEXIS 205 (Tenn. Apr. 18, 2018).

40-39-203. Offender registration — Registration forms — Contents.

1. Within forty-eight (48) hours of establishing or changing a primary or secondary residence, establishing a physical presence at a particular location, becoming employed or practicing a vocation or becoming a student in this state, the offender shall register or report in person, as required by this part. Likewise, within forty-eight (48) hours of release on probation or any alternative to incarceration, excluding parole, the offender shall register or report in person, as required by this part.
2. Regardless of an offender's date of conviction, adjudication or discharge from supervision, an offender whose contact with this state is sufficient to satisfy the requirements of subdivision (a)(1) is required to register in person as required by this part, if the person was required to register as any form of sexual offender, juvenile offender or otherwise, in another jurisdiction prior to the offender's presence in this state.
3. An offender who resides and is registered in this state and who intends to move out of this state shall, within forty-eight (48) hours after moving to another state or within forty-eight (48) hours of becoming reasonably certain of the intention to move to another state, register or report to the offender's designated law enforcement agency the address at which the offender will reside in the new jurisdiction.
4. Within forty-eight (48) hours of a change in any other information given to the registering agency by the offender that is contained on the registration form, the offender must report the change to the registering agency.
5. Within forty-eight (48) hours of being released from probation or parole, an offender must report to the proper law enforcement agency, which shall then become the registering agency and take over registry duties from the department of correction.
6. Within forty-eight (48) hours of a material change in employment or vocation status, the offender shall report the change to the person's registering agency. For purposes of this subdivision (a)(6), “a material change in employment or vocational status” includes being terminated involuntarily from the offender's employment or vocation, voluntarily terminating the employment or vocation, taking different employment or the same employment at a different location, changing shifts or substantially changing the offender's hours of work at the same employment or vocation, taking additional employment, reducing the offender's employment or any other change in the offender's employment or vocation that differs from that which the offender originally registered. For a change in employment or vocational status to be considered a material one, it must remain in effect for five (5) consecutive days or more.
7. Within three (3) days, excluding holidays, of an offender changing the offender's electronic mail address information, any instant message, chat or other internet communication name or identity information that the person uses or intends to use, whether within or without this state, the offender shall report the change to the offender's designated law enforcement agency.
1. An offender who is incarcerated in this state in a local, state or federal jail or a private penal institution shall, within forty-eight (48) hours prior to the offender's release, register or report in person, completing and signing a TBI registration form, under penalty of perjury, pursuant to § 39-16-702(b)(3), as follows:
  1. If incarcerated in a state, federal or private penal facility, with the warden or the warden's designee; or
  2. If incarcerated in a local jail, with the sheriff or the sheriff's designee.
2. After registering or reporting with the incarcerating facility as provided in subdivision (b)(1), an offender who is incarcerated in this state in a local, state or federal jail or a private penal institution shall, within forty-eight (48) hours after the offender's release from the incarcerating institution, report in person to the offender's registering agency, unless the place of incarceration is also the person's registering agency.
3. Notwithstanding subdivisions (b)(1) and (2), an offender who is incarcerated in this state in a local, state or federal jail or a private penal institution and who has not registered pursuant to § 40-39-212(a) or any other law shall, by August 1, 2011, be required to report in person, register, complete and sign a TBI registration form, under penalty of perjury, pursuant to § 39-16-702(b)(3), as follows:
  1. If incarcerated in a state, federal or private penal facility, with the warden or the warden's designee; or
  2. If incarcerated in a local jail, with the sheriff or the sheriff's designee.
An offender from another state, jurisdiction or country who has established a primary or secondary residence within this state or has established a physical presence at a particular location shall, within forty-eight (48) hours of establishing residency or a physical presence, register or report in person with the designated law enforcement agency, completing and signing a TBI registration form, under penalty of perjury, pursuant to § 39-16-702(b)(3).
1. An offender from another state, jurisdiction or country who is not a resident of this state shall, within forty-eight (48) hours of employment, commencing practice of a vocation or becoming a student in this state, register or report in person, completing and signing a TBI registration form, under penalty of perjury, pursuant to § 39-16-702(b)(3), with:
  1. The sheriff in the county or the chief of police in the municipality within this state where the offender is employed or practices a vocation; or
  2. The law enforcement agency or any institution of higher education, or if not applicable, the designated law enforcement agency with jurisdiction over the campus, if the offender is employed or practices a vocation or is a student.
2. Within forty-eight (48) hours of an offender from another state, jurisdiction or country who is not a resident of this state making a material change in the offender's vocational or employment or vocational status within this state, the offender shall report the change to the person's registering agency. For purposes of this subdivision (d)(2), “a material change in employment or vocational status” includes being terminated involuntarily from the offender's employment or vocation, voluntarily terminating the employment or vocation, taking different employment or the same employment at a different location, changing shifts or substantially changing the offender's hours of work at the same employment or vocation, taking additional employment, reducing the offender's employment or any other change in the offender's employment or vocation that differs from that which the offender originally registered. For a change in employment or vocational status to be considered a material one, it must remain in effect for five (5) consecutive days or more.
An offender from another state, jurisdiction or country who becomes a resident of this state, pursuant to the Interstate Compact for Supervision of Adult Offenders, compiled in title 40, chapter 28, part 4, shall, within forty-eight (48) hours of entering the state, register or report in person with the board, completing and signing a TBI registration form, under penalty of perjury, pursuant to § 39-16-702(b)(3), in addition to the requirements of title 40, chapter 28, part 4 and the specialized conditions for sex offenders from the board.
Offenders who do not maintain either a primary or secondary residence, as defined in this part, shall be considered homeless and are subject to the registration requirements of this part. Offenders who do not maintain either a primary or secondary residence shall be required to report to their registering agency monthly for so long as they do not maintain either a primary or secondary residence.
Offenders who were previously required to register or report under former title 40, chapter 39, part 1 [repealed], shall register or report in person with the designated law enforcement agency by August 31, 2005. Offenders who reside in nursing homes and assisted living facilities and offenders committed to mental health institutions or continuously confined to home or health care facilities due to mental or physical disabilities are exempt from this requirement, as otherwise provided by this part.
An offender who indicates to a designated law enforcement agency on the TBI registration form the offender's intent to reside in another state, jurisdiction or country and who then decides to remain in this state shall, within forty-eight (48) hours of the decision to remain in the state, report in person to the designated law enforcement agency and update all information pursuant to subsection (i).
TBI registration forms shall require the registrant's signature and disclosure of the following information, under penalty of perjury, pursuant to § 39-16-702(b)(3):
1. Complete name and all aliases, including, but not limited to, any names that the offender may have had or currently has by reason of marriage or otherwise, including pseudonyms and ethnic or tribal names;
2. Date and place of birth;
3. Social security number;
4. A photocopy of a valid driver license, or if no valid driver license has been issued to the offender, a photocopy of any state or federal government issued identification card;
5. For an offender on supervised release, the name, address and telephone number of the registrant's probation or parole officer or other person responsible for the registrant's supervision;
6. Sexual offenses or violent sexual offenses for which the registrant has been convicted, the date of the offenses and the county and state of each conviction; or the violent juvenile sexual offense for which the registrant has been adjudicated delinquent, the date of the act for which the adjudication was made and the county and state of each adjudication;
7. Name of any current employers and length of employment, including physical addresses and phone numbers;
8. Current physical address and length of residence at that address, which shall include any primary or secondary residences. For the purpose of this section, a post office box number shall not be considered an address;
9. Mailing address, if different from physical address;
10. Any vehicle, mobile home, trailer or manufactured home used or owned by an offender, including descriptions, vehicle information numbers and license tag numbers;
11. Any vessel, live-aboard vessel or houseboat used by an offender, including the name of the vessel, description and all identifying numbers;
12. Name and address of each institution of higher education in this state where the offender is employed or practices a vocation or is a student;
13. Race and gender;
14. Name, address and phone number of offender's closest living relative;
15. Whether victims of the offender's convictions are minors or adults, the number of victims and the correct age of the victim or victims and of the offender at the time of the offense or offenses, if the ages are known;
16. Verification by the TBI or the offender that the TBI has received the offender's DNA sample;
17. A complete listing of the offender's electronic mail address information, including usernames, any social media accounts the offender uses or intends to use, instant message, other internet communication platforms or devices, and the offender's username, screen name, or other method by which the offender accesses these accounts or websites;
18. Whether any minors reside in the primary or secondary residence;
19. 1. Any other registration, verification and tracking information, including fingerprints and a current photograph of the offender, vehicles and vessels, as referred to in subdivisions (i)(10) and (i)(11), as may be required by rules promulgated by the TBI, in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5;
  2. By January 1, 2007, the TBI shall promulgate and disseminate to all applicable law enforcement agencies, correctional institutions and any other agency that may be called upon to register an offender, rules establishing standardized specifications for the photograph of the offender required by subdivision (i)(19)(A). The rules shall specify that the photograph or digital image submitted for each offender must conform to the following compositional specifications or the entry will not be accepted for use on the registry and the agency will be required to resubmit the photograph:
    1. Head Position:
      1. The person being photographed must directly face the camera;
      2. The head of the person should not be tilted up, down or to the side; and
      3. The head of the person should cover about fifty percent (50%) of the area of the photo;
    2. Background:
      1. The person being photographed should be in front of a neutral, light-colored background; and
      2. Dark or patterned backgrounds are not acceptable;
    3. The photograph must be in focus;
    4. Photos in which the person being photographed is wearing sunglasses or other items that detract from the face are not permitted; and
    5. Head Coverings and Hats:
      1. Photographs of applicants wearing head coverings or hats are only acceptable due to religious beliefs, and even then, may not obscure any portion of the face of the applicant; and
      2. Photos of applicants with tribal or other headgear not specifically religious in nature are not permitted;
20. Copies of all passports and immigration documents; and
21. Professional licensing information that authorizes an offender to engage in an occupation or carry out a trade or business.
1. Notwithstanding the registration deadlines otherwise established by this section, any person convicted of a sexual offense or violent sexual offense in this state or who has another qualifying conviction as defined in § 40-39-202, but who is not required to register for the reasons set out in subdivision (j)(2), shall have until August 1, 2007, to register as a sexual offender or violent sexual offender in this state.
2. Subdivision (j)(1) shall apply to offenders:
  1. Whose convictions for a sexual offense or violent sexual offense occurred prior to January 1, 1995;
  2. Who were not on probation, parole or any other alternative to incarceration for a sexual offense or prior sexual offense on or after January 1, 1995;
  3. Who were discharged from probation, parole or any other alternative to incarceration for a sexual offense or violent sexual offense prior to January 1, 1995; or
  4. Who were discharged from incarceration without supervision for a sexual offense or violent sexual offense prior to January 1, 1995.
No later than the third day after an offender's initial registration, the registration agency shall send by the United States postal service or by electronic means the original signed TBI registration form containing information required by subsection (i) to TBI headquarters in Nashville.
The offender's signature on the TBI registration form creates the presumption that the offender has knowledge of the registration, verification and tracking requirements of this part.
Registry information regarding all registered offender's electronic mail address information, any instant message, chat or other internet communication name or identity information may be electronically transmitted by the TBI to a business or organization that offers electronic communication or remote computing services for the purpose of prescreening users or for comparison with information held by the requesting business or organization. In order to obtain the information from the TBI, the requesting business or organization that offers electronic communication or remote computing services shall agree to notify the TBI forthwith when a comparison indicates that any such registered sex offender's electronic mail address information, any instant message, chat or other internet communication name or identity information is being used on their system. The requesting business or organization shall also agree that the information will not be further disseminated.
If the offender's DNA sample has not already been collected pursuant to § 40-35-321 or any other law and received by the TBI, the offender's DNA sample shall be taken by the registering agency at the time the offender registers or at the offender's next scheduled registration or reporting and sent to the TBI.
An offender who registers or reports as required by this section prior to July 1, 2008, shall provide the additional information on the registration form required by this section at the offender's next scheduled registration or reporting date.
An offender who is housed in a halfway house or any other facility as an alternative to incarceration where unsupervised contact is permitted outside of the facility is required to register or report with the registering agency as set out in § 40-39-204 in the city or county of the facility in which the offender is housed. The registering agency shall be responsible for the duties set out in § 40-39-205(b) during the time that the offender is housed in the facility.
Any court exercising juvenile jurisdiction that adjudicates a juvenile as delinquent for conduct that qualifies such juvenile as a violent juvenile sexual offender shall transmit the information set out in subsection (i) pertaining to such violent juvenile sexual offender to the TBI for inclusion on the SOR within forty-eight (48) hours of the offender's adjudication for the qualifying offenses set out in § 40-39-202(29).

Acts 2004, ch. 921, § 1; 2005, ch. 316, § 1; 2006, ch. 890, §§ 10-14; 2007, ch. 126, § 1; 2007, ch. 465, §§ 2, 3; 2008, ch. 979, §§ 1-3; 2008, ch. 1164, § 3; 2010, ch. 1138, §§ 6, 7; 2011, ch. 222, § 1; 2011, ch. 267, § 1; 2011, ch. 483, §§ 10-12; 2012, ch. 727, § 48; 2015, ch. 516, §§ 3, 7.

Compiler's Notes. Former title 40, ch. 39, part 1, referred to in this section, was repealed, effective August 1, 2004, by Acts 2004, ch. 921, § 4.

Acts 2011, ch. 483, § 12 added a new subsection (p). Acts 2011, ch. 222, § 1 added a new subsection (p); therefore, the new subsection by ch. 483 was added as subsection (q).

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended subdivision (a)(5), shall be fully accomplished on or before January 1, 2013.

Cross-References. Probation, paroles, and pardons, title 40, ch. 28.

Law Reviews.

Criminal Law—A Plea of Guilty-A Criminal Defendant's Right to Withdraw a Guilty Plea Before Sentencing (Chris Rowe), 79 Tenn. L. Rev. 669 (2012).

Attorney General Opinions. A person who has been convicted of three or more counts of indecent exposure in violation of T.C.A. § 39-13-511 is a sexual offender as defined in T.C.A. § 40-39-202(17)(A)(vii) (now § 40-39-202(20)(A)(vii)) and is therefore required to register pursuant to T.C.A. § 40-39-203, OAG 07-164, 2007 Tenn. AG LEXIS 164 (12/13/07).

Requirements for registered out-of-state sex offenders with expunged convictions, OAG 09-01, 2009 Tenn. AG LEXIS 1 (1/8/09).

Requirement for sex offenders to register within forty-eight hours excludes weekends and holidays, OAG 09-05, 2009 Tenn. AG LEXIS 5 (1/23/09).

NOTES TO DECISIONS

1. Constitutionality.

2. Failure to Report.

Evidence supported defendant's conviction for violation of the sex offender registry, based on defendant's failure to disclose within 48 hours that defendant was maintaining a secondary residence, because, after defendant completed an updated sex offender registration form, a police investigator attempted to make contact with defendant via telephone but was only able to exchange voice-mail messages, defendant was at a parent's residence in Mississippi for seven days, and defendant's extrajudicial confession was sufficiently corroborated. State v. Tywan Montrease Sykes, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 771 (Tenn. Crim. App. Oct. 15, 2018).

3. Appeal Dismissed.

When defendant, after pleading guilty to aggravated statutory rape, completed judicial diversion and charges were dismissed with prejudice, defendant's appeal of an order finding no jurisdiction to order defendant's removal from the sexual offender registry was dismissed because, upon dismissal, there was no criminal case for an appellate court to review, as the trial court then had no subject matter or personal jurisdiction, and defendant had no appeal as of right. State v. Seymour, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 253 (Tenn. Crim. App. Apr. 22, 2019).

40-39-204. Entering required data on SOR for verification, identification, and enforcement — Reporting to update information or registration form — Administrative costs — TBI as central repository — Tolling of registration requirements — Exemptions.

The TBI shall maintain and make available a connection to the SOR for all criminal justice agencies with TIES internet capabilities, by which registering agencies shall enter original, current and accurate data required by this part. The TBI shall provide viewing and limited write access directly to the SOR through the TIES internet to registering agencies for the entry of record verification data, changes of residence, employment or other pertinent data required by this part and to assist in offender identification. Registering agencies should immediately, but in no case to exceed twelve (12) hours from registration, enter all data received from the offender as required by the TBI and § 40-39-203(i), into the TIES internet for the enforcement of this part by TBI, designated law enforcement agencies, TDOC, and private contractors with TDOC.
1. Violent sexual offenders shall report in person during the months of March, June, September, and December of each calendar year, to the designated law enforcement agency, on a date established by such agency, to update the offender's fingerprints, palm prints and photograph, as determined necessary by the agency, and to verify the continued accuracy of the information in the TBI registration form. Offenders who reside in nursing homes and assisted living facilities and offenders committed to mental health institutions or continuously confined to home or health care facilities due to mental or physical disabilities are exempt from the in-person reporting and fingerprinting, as otherwise provided by this part. At the time of the violent offender's initial registration or initial reporting date for the calendar year, the violent sexual offender shall pay the specified administrative costs, not to exceed one hundred fifty dollars ($150), one hundred dollars ($100) of which shall be retained by the designated law enforcement agency to be used for the purchase of equipment, to defray personnel and maintenance costs and any other expenses incurred as a result of the implementation of this part. The remaining fifty dollars ($50.00) shall be remitted by the registering agency to the state treasury to be deposited into the general fund of the state. Offenders who reside in nursing homes and assisted living facilities and offenders committed to mental health institutions or continuously confined to home or health care facilities due to mental or physical disabilities are exempt from paying the administrative cost as otherwise provided by this part.
2. At least once during the months of March, June, September, and December of each calendar year, all violent juvenile sexual offenders shall report in person to the offender's registering agency to update the offender's fingerprints, palm prints and photograph, as determined necessary by the agency, and to verify the continued accuracy of the information transmitted to the TBI by the registering agency as defined in § 40-39-202. Offenders in custody shall register as set out in § 40-39-203(b)(1).
Once a year, all sexual offenders shall report in person, no earlier than seven (7) calendar days before and no later than seven (7) calendar days after the offender's date of birth, to the designated law enforcement agency to update the offender's fingerprints, palm prints and photograph, as determined necessary by the agency, to verify the continued accuracy of the information in the TBI registration form and to pay the specified administrative costs, not to exceed one hundred fifty dollars ($150), one hundred dollars ($100) of which shall be retained by the designated law enforcement agency to be used for the purchase of equipment, to defray personnel and maintenance costs and any other expenses incurred as a result of the implementation of this part. The remaining fifty dollars ($50.00) shall be submitted by the registering agency to the state treasury to be deposited in the general fund of the state. Offenders whose initial registration occurs after the annual reporting period shall be required to pay the administrative costs at the time of the initial registration. Offenders who reside in nursing homes and assisted living facilities and offenders committed to mental health institutions or continuously confined to home or health care facilities due to mental or physical disabilities are exempt from the in-person reporting and fingerprinting and administrative cost as otherwise provided by this part. However, if an offender is released or discharged from a nursing home, assisted living facility or mental health institution or is no longer continuously confined to home or a health care facility due to mental or physical disabilities, the offender shall, within forty-eight (48) hours, register in person with the designated law enforcement agency, completing and signing a TBI registration form, under penalty of perjury, pursuant to § 39-16-702(b)(3). If the offender has previously registered prior to the release or discharge, the offender shall, within forty-eight (48) hours, report in person to the designated law enforcement agency and update all information pursuant to this section.
Within three (3) days after the offender's verification, the designated law enforcement agency with whom the offender verified shall send by United States postal service or by electronic means the original signed TBI registration form containing information required by § 40-39-203(i) to TBI headquarters in Nashville. The TBI shall be the state central repository for all original TBI registration forms and any other forms required by § 40-39-207 that are deemed necessary for the enforcement of this part. The designated law enforcement agency shall retain a duplicate copy of the TBI registration form as a part of the business records for that agency.
If a person required to register under this part is reincarcerated for another offense or as the result of having violated the terms of probation, parole, conditional discharge or any other form of alternative sentencing, the offender shall immediately report the offender's status as a sexual offender or violent sexual offender to the facility where the offender is incarcerated or detained and notify the offender's appropriate registering agency, if different, that the offender is currently being detained or incarcerated. Registration, verification and tracking requirements for such persons are tolled during the subsequent incarceration. Within forty-eight (48) hours of the release from any subsequent reincarcerations, the offender shall register with the appropriate designated law enforcement agency. Likewise, if a person who is required to register under this part is deported from this country, the registration, verification and tracking requirements for such persons are tolled during the period of deportation. Within forty-eight (48) hours of the return to this state after deportation, the offender shall register with the appropriate designated law enforcement agency.
Offenders who reside in nursing homes and assisted living facilities and offenders committed to mental health institutions or continuously confined to home or health care facilities due to mental or physical disabilities shall be exempted from the in-person reporting, fingerprinting and administrative cost requirements; however, it shall be the responsibility of the offender, the offender's guardian, the person holding the offender's power of attorney or, in the absence thereof, the administrator of the facility, to report any changes in the residential status to TBI headquarters in Nashville by United States postal service. Further, if an offender is released or discharged from a nursing home, assisted living facility, mental health institution or is no longer continuously confined to home or a health care facility due to mental or physical disabilities, the offender shall, within forty-eight (48) hours, register in person with the designated law enforcement agency, completing and signing a TBI registration form, under penalty of perjury, pursuant to § 39-16-702(b)(3). If the offender has previously registered prior to the release or discharge, the offender shall, within forty-eight (48) hours, report in person to the designated law enforcement agency and update all information pursuant to this section.
Offenders who do not maintain either a primary or secondary residence, as defined in this part, shall be considered homeless, and are subject to the reporting requirements of this part. The offenders who are considered homeless shall be required to report to their registering agency monthly. By the authority established in § 40-39-206(f), the TBI shall develop tracking procedures for the continued verification and tracking of these offenders in the interest of public safety.
Each offender shall report to the designated law enforcement agency at least twenty-one (21) days before traveling out of the country; provided, that offenders who travel out of the country frequently for work or other legitimate purpose, with the written approval of the designated law enforcement agency, and offenders who travel out of the country for emergency situations shall report to the designated law enforcement agency at least twenty-four (24) hours before traveling out of the country.

Acts 2004, ch. 921, § 1; 2005, ch. 316, § 1; 2006, ch. 890, §§ 15, 16; 2008, ch. 1164, §§ 4, 16; 2010, ch. 1138, §§ 16-18; 2011, ch. 266, § 1; 2011, ch. 483, § 13; 2012, ch. 727, § 61; 2015, ch. 516, § 5; 2020, ch. 668, §§ 4, 5.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended subsection (a), shall be fully accomplished on or before January 1, 2013.

Amendments. The 2020 amendment substituted “state treasury to be deposited into the general fund of the state.” for “TBI for maintenance, upkeep and employment costs, as well as any other expenses incurred as a result of the implementation of this part.” in the next to last sentence of (b)(1) and made a nearly identical substitution in the second sentence of (c); and substituted “remitted” for “submitted” in the next to last sentence of (b)(1).

Effective Dates. Acts 2020, ch. 668, § 6. April 2, 2020.

Cross-References. Alternative sentencing, § 40-35-104.

Probation, paroles, and pardons, title 40, ch. 28.

Revocation of probation, §§ 40-35-310, 40-35-311.

NOTES TO DECISIONS

1. In General.

Defendant's appeal of an order allowing the Tennessee Bureau of Investigation (TBI) to intervene in proceedings to designate defendant a violent sexual offender and vacating a provision of a prior order reclassifying defendant as only a sexual offender, which the criminal trial court lacked jurisdiction to enter, was dismissed because (1) these were not actions from which a defendant could appeal, as the TBI determined a sex offender's status and eligibility for classification change or removal from the registry, which could only be appealed to chancery court, (2) the trial court's order did not mention prior judgments, which became final 30 days after entry, and (3) the State did not seek to reinstate indictments, so there was no longer a criminal case to review. State v. Allen, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 899 (Tenn. Crim. App. Dec. 13, 2018).

2. Homeless Reporting Requirements.

3. Constitutionality.

40-39-205. Creation and distribution of forms — Acknowledgement forms.

TBI registration forms shall be designed, printed and distributed by and at the expense of the TBI. These forms shall include instructions for compliance with this part and a statement of understanding and acknowledgment of those instructions to be signed by the offender. TBI registration forms shall be available from registering agencies, parole officers, probation officers and other public officers and employees assigned responsibility for the supervised release of convicted felons into the community.
It shall be the duty of the offender's designated registering agency, its representatives and designees, including any district attorney general's criminal investigator, to verify the accuracy and completeness of all information contained in the offender's SOR.
The officer or employee responsible for supervising an offender who has been released on probation, parole or any other alternative to incarceration shall:
1. Promptly obtain the offender's signed statement acknowledging that the named officer or employee has:
  1. Fully explained, and the offender understands, the registration, verification and tracking requirements and sanctions of this part and the current sex offender directives established by the department of correction;
  2. Provided the offender with a blank TBI registration form and assisted the offender in completing the form; and
  3. Obtained fingerprints, palm prints and photographs of the offender, and vehicles and vessels, as determined necessary by the agency;
2. Immediately, but in no case to exceed twelve (12) hours from registration, enter all data received from the offender, as required by the TBI and § 40-39-203(i), into the TIES internet. The officer or employee shall, within three (3) days, send by United States postal service or by electronic means the signed and completed TBI registration form to TBI headquarters in Nashville. The photographs of the offender, vehicles and vessels, and the fingerprints should also be sent by United States postal service within three (3) days, if not electronically submitted to TBI headquarters in Nashville. The registering agency shall retain a duplicate copy of the TBI registration form as a part of the business records for that agency.
Not more than forty-eight (48) hours prior to the release of an offender from incarceration, with or without supervision, the warden of the correctional facility or the warden's designee, or sheriff of the jail or the sheriff's designee, shall obtain the offender's signed statement acknowledging that the official has fully explained, and the offender understands, the registration, verification and tracking requirements and sanctions of this part. If the offender is to be released with or without any type of supervision, the warden of the correctional facility or the warden's designee, or sheriff of the jail or the sheriff's designee, shall assist the offender in completing a TBI registration form. The warden or the warden's designee, or the sheriff or the sheriff's designee, shall also obtain fingerprints, palm prints and photographs of the offender, vehicles and vessels, as determined necessary by the agency. The official shall send by United States postal service the signed and completed TBI registration form to TBI headquarters in Nashville within three (3) days of the release of the offender. The photographs of the offender, vehicles and vessels, and the fingerprints should also be sent by United States postal service within three (3) days, if not electronically submitted to TBI headquarters in Nashville.
If the offender is placed on unsupervised probation, the court shall fully explain to the offender, on the court record, the registration, verification and tracking requirements and sanctions of this part. The court shall then order the offender to report within forty-eight (48) hours, in person, to the appropriate registering agency to register as required by this part.
Through press releases, public service announcements or through other appropriate public information activities, the TBI shall attempt to ensure that all offenders, including those who move into this state, are informed and periodically reminded of the registration, verification and tracking requirements and sanctions of this part.

Acts 2004, ch. 921, § 1; 2005, ch. 316, § 1; 2006, ch. 890, § 17; 2012, ch. 727, § 62; 2015, ch. 516, § 4.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended subdivision (c)(1)(A), shall be fully accomplished on or before January 1, 2013.

Cross-References. Probation, paroles and pardons, title 40, ch. 28.

40-39-206. Centralized record system — Reporting — Violations — Confidentiality of certain registration information — Immunity from liability — Public information regarding offenders.

Using information received or collected pursuant to this part, the TBI shall establish, maintain and update a centralized record system of offender registration, verification and tracking information. The TBI may receive information from any credible source and may forward the information to the appropriate law enforcement agency for investigation and verification. The TBI shall promptly report current sexual offender registration, verification and tracking information to the identification division of the federal bureau of investigation.
Whenever there is a factual basis to believe that an offender has not complied with this part, pursuant to the powers enumerated in subsection (e), the TBI shall make the information available through the SOR to the district attorney general, designated law enforcement agencies and the probation officer, parole officer or other public officer or employee assigned responsibility for the offender's supervised release.
Notwithstanding any law to the contrary, officers and employees of the TBI, local law enforcement, law enforcement agencies of institutions of higher education, courts, probation and parole, the district attorneys general and their employees and other public officers and employees assigned responsibility for offenders' supervised release into the community shall be immune from liability relative to their good faith actions, omissions and conduct pursuant to this part.
For any offender convicted in this state of a sexual offense or violent sexual offense, as defined by this part, that requires the offender to register pursuant to this part, the information concerning the registered offender set out in subdivisions (d)(1)-(16) shall be considered public information. If an offender from another state establishes a residence in this state and is required to register in this state pursuant to § 40-39-203, the information concerning the registered offender set out in subdivisions (d)(1)-(16) shall be considered public information regardless of the date of conviction of the offender in the other state. In addition to making the information available in the same manner as public records, the TBI shall prepare and place the information on the state's internet home page. This information shall become a part of the Tennessee internet criminal information center when that center is created within the TBI. The TBI shall also establish and operate a toll-free telephone number, to be known as the “Tennessee Internet Criminal Information Center Hotline,” to permit members of the public to call and inquire as to whether a named individual is listed among those who have registered as offenders as required by this part. The following information concerning a registered offender is public:
1. The offender's complete name, as well as any aliases, including, but not limited to, any names that the offender may have had or currently has by reason of marriage or otherwise, including pseudonyms and ethnic or tribal names;
2. The offender's date of birth;
3. The sexual offense or offenses or violent sexual offense or offenses of which the offender has been convicted;
4. The primary and secondary addresses, including the house number, county, city and ZIP code in which the offender resides;
5. The offender's race and gender;
6. The date of last verification of information by the offender;
7. The most recent photograph of the offender that has been submitted to the TBI SOR;
8. The offender's driver license number and issuing state or any state or federal issued identification number;
9. The offender's parole or probation officer;
10. The name and address of any institution of higher education in the state at which the offender is employed, carries on a vocation or is a student;
11. The text of the provision of law or laws defining the criminal offense or offenses for which the offender is registered;
12. A physical description of the offender, including height, weight, color of eyes and hair, tattoos, scars and marks;
13. The criminal history of the offender, including the date of all arrests and convictions, the status of parole, probation or supervised release, registration status and the existence of any outstanding arrest warrants for the sex offender;
14. The address of the offender's employer or employers;
15. The license plate number and a description of all of the offender's vehicles; and
16. Whether the offender is an offender against children, as defined by § 40-39-202.
For any violent juvenile sexual offender who is adjudicated for a violent juvenile sexual offense, the information concerning the violent juvenile sexual offender set out in (d) shall be confidential, except as otherwise provided under § 40-39-207(j) and any other provision of law.
The TBI has the authority to promulgate any necessary rules to implement and administer this section. These rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2004, ch. 921, § 1; 2005, ch. 316, § 1; 2007, ch. 531, §§ 1, 2; 2008, ch. 1164, §§ 5, 6, 15; 2010, ch. 1138, §§ 8-10; 2011, ch. 483, § 14; 2014, ch. 770, § 4.

Compiler's Notes. The Tennessee Internet Criminal Information Center Hotline phone number is 1-888-837-4170. The sex offender registry may be found at http://www.tbi.tn.gov/sex_ofender_reg/sex_ofender_reg.shtml.

Acts 2004, ch. 921, § 3 provided that, if the provisions of that act are declared to be invalid, the provisions of former part 1 (§§ 40-39-101 — 40-39-111), as such part existed on July 31, 2004, shall be revived and take full force and effect; and further provided that:

Cross-References. Confidentiality of public records, § 10-7-504.

40-39-207. Request for termination of registration requirements — Tolling of reporting period — Review of decisions to deny termination of reporting requirements — Lifetime registration.

1. Except as otherwise provided in subdivision (a)(3), unless a plea was taken in conjunction with § 40-35-313, no sooner than ten (10) years after termination of active supervision on probation, parole, or any other alternative to incarceration, or no sooner than ten (10) years after discharge from incarceration without supervision, an offender required to register under this part may file a request for termination of registration requirements with TBI headquarters in Nashville. If the person is required to register under this part due to a plea taken in conjunction with § 40-35-313, an offender required to register under this part may file a request for termination of registration upon successful completion of a term of judicial diversion pursuant to § 40-35-313 and upon receiving an order from a court of competent jurisdiction signifying the successful completion of the term of judicial diversion and the dismissal of charges pursuant to § 40-35-313.
2. Notwithstanding subdivision (a)(1), if a court of competent jurisdiction orders that an offender's records be expunged pursuant to § 40-32-101, and the offense being expunged is an offense eligible for expunction under § 40-32-101, the TBI shall immediately remove the offender from the SOR and the offender's records shall be removed as provided in § 40-39-209.
3. Notwithstanding subdivision (a)(1), no sooner than three (3) years after termination of active supervision on probation, parole, or any other alternative to incarceration, or no sooner than three (3) years after discharge from incarceration without supervision, an offender required to register under this part due to conviction under § 39-16-408 may file a request for termination of registration requirements with TBI headquarters in Nashville.
4. Notwithstanding subdivision (a)(1), if a court of competent jurisdiction grants an offender's petition, filed pursuant to § 40-39-218, for termination of the requirements imposed by this part based on the offender's status as a victim of a human trafficking offense, as defined by § 39-13-314, sexual offense, under title 39, chapter 13, part 5, or domestic abuse, as defined by § 36-3-601, the Tennessee bureau of investigation shall, immediately upon receiving a copy of the order, remove the offender from the SOR.
Upon receipt of the request for termination, the TBI shall review documentation provided by the offender and contained in the offender's file and the SOR, to determine whether the offender has complied with this part. In addition, the TBI shall conduct fingerprint-based state and federal criminal history checks, to determine whether the offender has been convicted of any additional sexual offenses, as defined in § 40-39-202, or violent sexual offenses, as defined in § 40-39-202.
The TBI shall remove an offender's name from the SOR and notify the offender that the offender is no longer required to comply with this part if it is determined that:
1. The offender has successfully completed a term of judicial diversion, pursuant to § 40-35-313, for an offense under § 39-13-505 or § 39-13-506(a) or (b), for which the person is required to register under this part;
2. The offender previously entered a term of judicial diversion, pursuant to § 40-35-313, prior to May 24, 2019, for the offense for which the person is required to register under this part and subsequently successfully completes the term of judicial diversion; or
3. The offender has not been convicted of any additional sexual offense or violent sexual offense during the ten-year period and the offender has substantially complied with this part and former part 1 of this chapter [repealed].
If it is determined that the offender has been convicted of any additional sexual offenses or violent sexual offenses during the ten-year period or has not substantially complied with this part and former part 1 of this chapter [repealed], the TBI shall not remove the offender's name from the SOR and shall notify the offender that the offender has not been relieved of the provisions of this part.
If an offender is denied a termination request based on substantial noncompliance, the offender may petition again for termination no sooner than five (5) years after the previous denial.
Immediately upon the failure of a sexual offender to register or otherwise substantially comply with the requirements established by this part, the running of the offender's ten-year reporting period shall be tolled, notwithstanding the absence or presence of any warrant or indictment alleging a violation of this part.
1. An offender whose request for termination of registration requirements is denied by a TBI official may petition the chancery court of Davidson County or the chancery court of the county where the offender resides, if the county is in Tennessee, for review of the decision. The review shall be on the record used by the TBI official to deny the request. The TBI official who denied the request for termination of registration requirements may submit an affidavit to the court detailing the reasons the request was denied.
2. An offender required to register under this part shall continue to comply with the registration, verification and tracking requirements for the life of that offender, if that offender:
  1. Has one (1) or more prior convictions for a sexual offense, as defined in § 40-39-202, regardless of when the conviction or convictions occurred;
  2. Has been convicted of a violent sexual offense, as defined in § 40-39-202; or
  3. Has been convicted of an offense in which the victim was a child of twelve (12) years of age or less.
    For purposes of subdivision (g)(2)(A):
  4. “Prior conviction” means that the person serves and is released or discharged from, or is serving, a separate period of incarceration or supervision for the commission of a sexual offense prior to or at the time of committing another sexual offense;
  5. “Prior conviction” includes convictions under the laws of any other state, government or country that, if committed in this state, would constitute a sexual offense. If an offense in a jurisdiction other than this state is not identified as a sexual offense in this state, it shall be considered a prior conviction if the elements of the offense are the same as the elements for a sexual offense; and
  6. “Separate period of incarceration or supervision” includes a sentence to any of the sentencing alternatives set out in § 40-35-104(c)(3)-(9). A sexual offense shall be considered as having been committed after a separate period of incarceration or supervision if the sexual offense is committed while the person was:
    1. On probation, parole or community correction supervision for a sexual offense;
    2. Incarcerated for a sexual offense;
    3. Assigned to a program whereby the person enjoys the privilege of supervised release into the community, including, but not limited to, work release, educational release, restitution release or medical furlough for a sexual offense; or
    4. On escape status from any correctional institution when incarcerated for a sexual offense.
1. Any offender required to register pursuant to this chapter because the offender was convicted of the offense of statutory rape under § 39-13-506 and the offense was committed prior to July 1, 2006, may file a request for termination of registration requirements with TBI headquarters in Nashville, if the offender would not be required to register if the offense was committed on or after July 1, 2006.
2. Upon receipt of the request for termination, the TBI shall review documentation provided by the offender and contained in the offender's file and the SOR, to determine whether the offender would not be required to register if the offender committed the same offense on or after July 1, 2006. In addition, the TBI shall conduct fingerprint-based state and federal criminal history checks, to determine whether the offender has been convicted of any additional sexual offenses, as defined in § 40-39-202, or violent sexual offenses, as defined in § 40-39-202.
3. If it is determined that the offender would not be required to register if the offense was committed on or after July 1, 2006, that the offender has not been convicted of any additional sexual offenses or violent sexual offenses and that the offender has substantially complied with this part and any previous versions of this part, the TBI shall remove the offender's name from the SOR and notify the offender that the offender is no longer required to comply with this part.
4. If it is determined that the offender would still be required to register even if the statutory rape had been committed on or after July 1, 2006, or that the offender has been convicted of any additional sexual offenses or violent sexual offenses during the period of registration or has not substantially complied with this part and the previous versions of this part, the TBI shall not remove the offender's name from the SOR and shall notify the offender that the offender has not been relieved of this part.
5. An offender whose request for termination of registration requirements is denied by a TBI official may petition the chancery court of Davidson County or the chancery court of the county where the offender resides, if the county is in this state, for review of the decision. The review shall be on the record used by the TBI official to deny the request. The TBI official who denied the request for termination of registration requirements may submit an affidavit to the court detailing the reasons the request was denied.
1. 1. If a person convicted of an offense was not required to register as an offender prior to August 1, 2007, because the person was convicted, discharged from parole or probation supervision or discharged from incarceration without supervision prior to January 1, 1995, for an offense now classified as a sexual offense, the person may file a request for termination of registration requirements with TBI headquarters in Nashville, no sooner than five (5) years from August 1, 2007, or the date the person first registered with the SOR, whichever date is later.
  2. The procedure, criteria for removal and other requirements of this section shall otherwise apply to an offender subject to removal after five (5) years as specified in subdivision (i)(1)(A).
2. If a person convicted of an offense was not required to register as an offender prior to August 1, 2007, because the person was convicted, discharged from parole or probation supervision or discharged from incarceration without supervision prior to January 1, 1995, for an offense now classified as a violent sexual offense, the person shall continue to comply with the registration, verification and tracking requirements for the life of that offender.
3. 1. If a person convicted of an offense was not required to register as an offender prior to July 1, 2010, for an offense now classified as a sexual offense, the person may file a request for termination of registration requirements with TBI headquarters in Nashville, no sooner than five (5) years from July 1, 2010, or the date the person first registered with the SOR, whichever date is later.
  2. The procedure, criteria for removal and other requirements of this section shall otherwise apply to an offender subject to removal after five (5) years as specified in subdivision (i)(3)(A).
  3. If a person convicted of an offense was not required to register as an offender prior to July 1, 2010, for an offense now classified as a violent sexual offense, the person shall continue to comply with the registration, verification and tracking requirements for the life of that offender.
4. Unless otherwise authorized by law, a person required to register as any form of a sexual offender in this state due to a qualifying offense from another jurisdiction which is classified as a sexual offense in this state may apply for removal from the registry pursuant to subdivision (a)(1) following the later of:
  1. Ten (10) years from the date of termination of active supervision or probation, parole or any other alternative to incarceration, or after discharge from incarceration without supervision; or
  2. Five (5) years after being added to the Tennessee sexual offender registry.
1. Violent juvenile sexual offenders who are currently registered as such and who receive a subsequent adjudication in juvenile court or a court having juvenile court jurisdiction for one of the offenses listed in § 40-39-202(29) or a crime that if committed in this state would require registration shall be required to register for life. Information concerning the violent juvenile sexual offender who commits a subsequent offense listed in § 40-39-202(29), which was formerly considered confidential under § 40-39-206(e), shall be deemed public information once the offender reaches the offender’s eighteenth birthday.
2. Violent juvenile sexual offenders who are currently registered as such and who, upon reaching the age of eighteen (18), are convicted of a sexual offense as set out in § 40-39-202(20) or a violent sexual offense as set out in § 40-39-202(31) shall be required to register for life. Information concerning the violent juvenile sexual offender who commits a subsequent offense listed in § 40-39-202(20) or § 40-39-202(31), which was formerly considered confidential under § 40-39-206(e), shall be deemed public information.
3. Violent juvenile sexual offenders who reach the age of twenty-five (25), and who have not been adjudicated or convicted of a subsequent qualifying offense as set out in subdivisions (j)(1) and (2) or any offense set out in subdivision (g)(2)(C), shall be eligible for termination from the SOR. Upon reaching the age of twenty-five (25), the violent juvenile sexual offender may apply for removal from the SOR by use of a form created by the TBI. The form will contain a statement, sworn to by the offender under the penalty of perjury, that the offender has not been convicted of or adjudicated delinquent of any of the offenses set out in subdivisions (j)(1) and (2) or any offense set out in subdivision (g)(2)(C).
4. TBI shall also conduct fingerprint-based state and federal criminal history checks to determine whether the violent juvenile sexual offender has been convicted of or adjudicated on any prohibited crimes as set out in subdivisions (j)(1) and (2) or any offense set out in subdivision (g)(2)(C), including crimes committed in other jurisdictions.
5. If the violent juvenile sexual offender has not been convicted or adjudicated delinquent in any of the prohibited crimes, the offender shall be removed from the sex offender registry.

Acts 2004, ch. 921, § 1; 2005, ch. 316, § 1; 2006, ch. 890, § 18; 2008, ch. 1164, § 7; 2010, ch. 1138, § 11; 2011, ch. 483, § 15; 2014, ch. 744, § 2; 2014, ch. 770, §§ 2, 3; 2015, ch. 284, §§ 2, 3; 2015, ch. 469, § 2; 2019, ch. 502, §§ 1, 2.

Pursuant to Article III, Section 18 of the Constitution of Tennessee, Acts 2014, ch. 744 took effect on April 21, 2014.

Acts 2015, ch. 284, § 4 provided that the act, which amended (a)(1) and added (a)(3), shall apply to acts committed on or after July 1, 2015.

Acts 2019, ch. 502, § 3 provided that the act, which amended this section, is declared to be remedial in nature and to that end applies to any person sentenced pursuant to § 40-35-313 prior to May 24, 2019. The act does not create an affirmative duty for the Tennessee bureau of investigation (TBl) to review its records or notify any person to whom this act applies; however, upon request, the TBI shall verify the record of any person to whom the act applies and, if appropriate, shall remove the person's name from the registry and notify the person that the person is no longer required to comply with the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004.

Amendments. The 2019 amendment, in (a)(1), inserted “unless a plea was taken in conjunction with § 40-35-313,” preceding “no sooner than”, inserted a comma following “parole”, and added the second sentence; and in (c), deleted “If it is determined that the offender has not been convicted of any additional sexual offenses or violent sexual offenses during the ten-year period and that the offender has substantially complied with this part and former part 1 of this chapter [repealed],” from the beginning, substituted “an” for “the” preceding “offender’s name”, substituted “if it is determined that:” for a period at the end; and added (c)(1)–(c)(3).

Effective Dates. Acts 2019, ch. 502, § 4. May 24, 2019.

Cross-References. Alternative sentencing, § 40-35-104.

Perjury, title 39, ch. 16, part 7.

Prior conviction, defined, § 40-35-108.

Probation, paroles and pardons, title 40, ch. 28.

NOTES TO DECISIONS

1. Appeal Dismissed.

2. Procedure.

Record suggested that petitioner's probation for attempted promotion of prostitution ended in 2005 and unless he was convicted of subsequent sexual offenses, he would be eligible to seek termination from the sex offender registry; it also appeared that T.C.A. § 40-39-207(i)(3)(A) was directly applicable as the offense for which he pleaded guilty in 2004 was not classified a sexual offense until 2012. If his request was denied, he could still petition the chancery court for review and thus post-conviction relief was not available. Woodson v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 36 (Tenn. Crim. App. Jan. 24, 2020).

40-39-208. Violations — Penalty — Venue — Providing records for prosecution.

It is an offense for an offender to knowingly violate any provision of this part. Violations shall include, but not be limited to:
1. Failure of an offender to timely register or report;
2. Falsification of a TBI registration form;
3. Failure to timely disclose required information to the designated law enforcement agency;
4. Failure to sign a TBI registration form;
5. Failure to pay the annual administrative costs, if financially able;
6. Failure to timely disclose status as a sexual offender or violent sexual offender to the designated law enforcement agency upon reincarceration;
7. Failure to timely report to the designated law enforcement agency upon release after reincarceration;
8. Failure to timely report to the designated law enforcement agency following reentry in this state after deportation;
9. Failure to timely report to the offender's designated law enforcement agency when the offender moves to another state; and
10. Conviction of a new sexual offense, violent sexual offense, or violent juvenile sexual offense.
A violation of this part is a Class E felony. No person violating this part shall be eligible for suspension of sentence, diversion or probation until the minimum sentence is served in its entirety.
The first violation of this part is punishable by a fine of not less than three hundred fifty dollars ($350) and imprisonment for not less than ninety (90) days.
A second violation of this part is punishable by a fine of not less than six hundred dollars ($600) and imprisonment for not less than one hundred eighty (180) days.
A third or subsequent violation of this part is punishable by a fine of not less than one thousand one hundred dollars ($1,100) and imprisonment for not less than one (1) year.
A violation of this part is a continuing offense. If an offender is required to register pursuant to this part, venue lies in any county in which the offender may be found or in any county where the violation occurred.
In a prosecution for a violation of this section, upon the request of a district attorney general, law enforcement agency, the department of correction or its officers or a court of competent jurisdiction and for any lawful purpose permitted by this part, the records custodian of SOR shall provide the requesting agency with certified copies of specified records being maintained in the registry.
The records custodian providing copies of records to a requesting agency, pursuant to subsection (g), shall attach the following certification:
I, , HAVING BEEN APPOINTED BY THE DIRECTOR OF THE TENNESSEE BUREAU OF INVESTIGATION AS CUSTODIAN OF THE BUREAU'S CENTRALIZED RECORDS SYSTEM OF SEXUAL AND VIOLENT SEXUAL OFFENDERS, REGISTRATION, VERIFICATION AND TRACKING INFORMATION (SOR), HEREBY CERTIFY THAT THIS IS A TRUE AND CORRECT COPY OF THE RECORDS MAINTAINED WITHIN SAID REGISTRY.

SIGNATURE TITLE DATE

AFFIX THE BUREAU SEAL HERE
Sexual offender, violent sexual offender and violent juvenile sexual offender registry files and records maintained by the TBI may be digitized. A digitized copy of any original file or record in the TBI's possession shall be deemed to be an original for all purposes, including introduction into evidence in all courts or administrative agencies.
Notwithstanding any law to the contrary, a violent juvenile sexual offender who knowingly violates this part commits a delinquent act as defined by the juvenile code.

Acts 2004, ch. 921, § 1; 2005, ch. 316, § 1; 2006, ch. 890, § 19; 2008, ch. 1164, § 8; 2009, ch. 145, § 1; 2011, ch. 483, §§ 16, 17; 2012, ch. 727, § 49; 2019, ch. 232, § 1.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended subsection (g), shall be fully accomplished on or before January 1, 2013.

Amendments. The 2019 amendment added (a)(10).

Effective Dates. Acts 2019, ch. 232, § 2. July 1, 2019.

Cross-References. Delinquent act under juvenile code, § 37-1-102.

Penalty for Class E felony, § 40-35-111.

Probation, paroles and pardons, title 40, ch. 28.

NOTES TO DECISIONS

1. Failure To Report as Sexual Offender.

Where defendant admitted he failed to report, stated that he did not believe he was required to report but acknowledged that he had never participated in an official proceeding to have his registration terminated, and testified that he spoke with a woman at the state registry but did not confirm that he had been removed from the sexual offender registry the evidence was sufficient to support defendant's conviction for violating the sexual offender registry. State v. Lynch, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 266 (Tenn. Crim. App. Apr. 17, 2020).

2. Evidence Insufficient.

Without the admission of the bills of sale or temporary tags, which were improperly admitted, the proof showed that defendant reported as required; without any proof to show that the actual information on the form was false or that defendant had the intent to deceive, the evidence was insufficient to support his conviction for perjury, and there was no proof that he failed to report a change in information or that he falsified any information on the form, and thus his convictions were vacated. State v. Hicks, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 698 (Tenn. Crim. App. Sept. 13, 2018).

3. Jurisdiction.

Criminal court exercised criminal, not civil, jurisdiction when it granted defendant's pretrial motion to dismiss indictments because the indictments were pleadings in criminal proceedings and charged defendant with Class E felony criminal offenses, and the order was a permissible adjudication of his motion to dismiss; defendant remained classified as a sexual offender until the Tennessee Bureau of Investigation received his request for termination of the registration requirements. State v. Allen, — S.W.3d —, 2020 Tenn. LEXIS 15 (Tenn. Jan. 29, 2020).

40-39-209. Removing records from SOR.

Except as otherwise provided in § 40-39-207(a)-(d), no record shall be removed from the SOR, unless ordered by a court of competent jurisdiction as part of an expunction order pursuant to § 40-32-101, so long as the offense is eligible for expunction under § 40-32-101.

Acts 2004, ch. 921, § 1; 2005, ch. 316, § 1; 2008, ch. 1164, § 9.

40-39-210. Death of offender.

Upon receipt of notice of the death of a registered offender, verified through the registering agency or TBI officials by obtaining a copy of the offender's certificate of death, by checking the social security death index or by obtaining a copy of an accident report, the TBI shall remove all data pertaining to the deceased offender from the SOR.

Acts 2004, ch. 921, § 1; 2005, ch. 316, § 1; 2008, ch. 1164, § 10.

40-39-211. Residential and work restrictions.

1. While mandated to comply with the requirements of this chapter, no sexual offender, as defined in § 40-39-202, or violent sexual offender as defined in § 40-39-202, shall knowingly establish a primary or secondary residence or any other living accommodation or knowingly accept employment within one thousand feet (1,000') of the property line of any public school, private or parochial school, licensed day care center, other child care facility, public park, playground, recreation center, or public athletic field available for use by the general public.
2. For purposes of this subsection (a), “playground” means any indoor or outdoor facility that is intended for recreation of children and owned by the state, a local government, or a not-for-profit organization, and includes any parking lot appurtenant to the indoor or outdoor facility.
No sexual offender, violent sexual offender, or violent juvenile sexual offender, as those terms are defined in § 40-39-202, shall knowingly:
1. Reside within one thousand feet (1,000') of the property line on which the offender's former victims or the victims' immediate family members reside;
2. Come within one hundred feet (100') of any of the offender's former victims, except as otherwise authorized by law; or
3. Contact any of the offender's former victims or the victims' immediate family members without the consent of the victim or consent of the victim's parent or guardian if the victim is a minor being contacted by telephone, in writing, by electronic mail, internet services or any other form of electronic communication, unless otherwise authorized by law.
1. While mandated to comply with the requirements of this part, no sexual offender or violent sexual offender, whose victim was a minor, shall knowingly reside or conduct an overnight visit at a residence in which a minor resides or is present. Notwithstanding this subsection (c), the offender may reside, conduct an overnight visit, or be alone with a minor if the offender is the parent of the minor, unless:
  1. The offender's parental rights have been or are in the process of being terminated as provided by law;
  2. Any minor or adult child of the offender was a victim of a sexual offense or violent sexual offense committed by the offender; or
  3. The offender has been convicted of a sexual offense or violent sexual offense and the following conditions have been satisfied:
    1. The victim of the sexual offense or violent sexual offense was a minor twelve (12) years of age or less; and
    2. A circuit court, exercising its jurisdiction over civil matters, has found by clear and convincing evidence that the offender presents a danger of substantial harm to the minor.
2. For purposes of subdivision (c)(1)(C):
  1. The district attorney general for the judicial district in which the minor resides may petition the court to make a finding described in subdivision (c)(1)(C)(ii) at any time the offender is required to register pursuant to this part;
  2. The offender must be provided notice and an opportunity to be heard;
  3. When determining whether the offender poses a danger of substantial harm to a minor, the court may consider the facts and circumstance of the offense, the offender's most recent efforts to rehabilitate, compliance with community supervision as provided in § 39-13-524 if applicable, any violations of this part as specified in § 40-39-208, and other relevant evidence;
  4. All files and records of the court in the proceeding must be treated as confidential and shall not be open to the public or disclosed to the public, but are open to:
    1. The judge, officers, and professional staff of the court;
    2. The parties to the proceeding and their counsel and representatives;
    3. Any parent or legal guardian of the minor other than the offender;
    4. The offender's registering agency; and
    5. With permission of the court, any other person or agency having a legitimate interest in the proceeding;
  5. The court must enter a written order stating its findings. If the court finds that the offender presents a danger of substantial harm to the minor, the district attorney general shall provide the court's finding to the offender's registering agency;
  6. No sooner than two (2) years after the date of entry of the circuit court's order, the offender may petition the court for reconsideration of a finding that the offender presents a danger of substantial harm to the minor. The offender must show, by clear and convincing evidence, that the offender no longer presents a danger of substantial harm to the minor; and
  7. An appeal from a final order or judgment under subdivision (c)(1)(C)(ii) may be made to the court of appeals. A finding that the offender presents a danger of substantial harm to the minor shall remain in effect pending the outcome of the appeal.
1. No sexual offender, as defined in § 40-39-202, or violent sexual offender, as defined in § 40-39-202, shall knowingly:
  1. Be upon or remain on the premises of any building or grounds of any public school, private or parochial school, licensed day care center, other child care facility, public park, playground, recreation center or public athletic field available for use by the general public in this state when the offender has reason to believe children under eighteen (18) years of age are present;
  2. Stand, sit idly, whether or not the offender is in a vehicle, or remain within one thousand feet (1,000') of the property line of any building owned or operated by any public school, private or parochial school, licensed day care center, other child care facility, public park, playground, recreation center or public athletic field available for use by the general public in this state when children under eighteen (18) years of age are present, while not having a reason or relationship involving custody of or responsibility for a child or any other specific or legitimate reason for being there; or
  3. Be in any conveyance owned, leased or contracted by a school, licensed day care center, other child care facility or recreation center to transport students to or from school, day care, child care, or a recreation center or any related activity thereof when children under eighteen (18) years of age are present in the conveyance.
2. Subdivision (d)(1) shall not apply when the offender:
  1. Is a student in attendance at the school;
  2. Is attending a conference with school, day care, child care, park, playground or recreation center officials as a parent or legal guardian of a child who is enrolled in the school, day care center, other child care center or of a child who is a participant at the park, playground or recreation center and has received written permission or a request from the school's principal or the facility's administrator;
  3. Resides at a state licensed or certified facility for incarceration, health or convalescent care; or
  4. Is dropping off or picking up a child or children and the person is the child or children's parent or legal guardian who has provided written notice of the parent's offender status to the school's principal or a school administrator upon enrollment.
3. The exemption provided in subdivision (d)(2)(B) shall not apply if the victim of the offender's sexual offense or violent sexual offense was a minor at the time of the offense and the victim is enrolled in the school, day care center, recreation center or other child care center that is participating in the conference or other scheduled event.
Changes in the ownership or use of property within one thousand feet (1,000') of the property line of an offender's primary or secondary residence or place of employment that occur after an offender establishes residence or accepts employment shall not form the basis for finding that an offender is in violation of the residence restrictions of this section.
A violation of this part is a Class E felony. No person violating this part shall be eligible for suspension of sentence, diversion or probation until the minimum sentence is served in its entirety.
1. The first violation of this part is punishable by a fine of not less than three hundred fifty dollars ($350) and imprisonment for not less than ninety (90) days.
2. A second violation of this part is punishable by a fine of not less than six hundred dollars ($600) and imprisonment for not less than one hundred eighty (180) days.
3. A third or subsequent violation of this part is punishable by a fine of not less than one thousand one hundred dollars ($1,100) and imprisonment for not less than one (1) year.
4. A violation of this part due solely to a lack of the written permission required pursuant to subdivision (d)(2) shall be punishable by fine only.
1. 1. While mandated to comply with the requirements of this part, it is an offense for three (3) or more sexual offenders, as defined in § 40-39-202, or violent sexual offenders, as defined in § 40-39-202, or a combination thereof, to establish a primary or secondary residence together or inhabit the same primary or secondary residence at the same time.
  2. Each sexual offender or violent sexual offender who establishes or inhabits a primary or secondary residence in violation of subdivision (h)(1)(A) commits a violation of this section.
  3. Subdivision (h)(1)(A) shall not apply if the residence is located on property that is, according to the relevant local, county, or municipal zoning law, zoned for a use other than residential or mixed-use.
2. 1. No person, corporation, or other entity shall knowingly permit three (3) or more sexual offenders, as defined in § 40-39-202, violent sexual offenders, as defined in § 40-39-202, or a combination thereof, while such offenders are mandated to comply with the requirements of this part, to establish a primary or secondary residence in any house, apartment or other habitation, as defined by § 39-14-401(1)(A), owned or under the control of such person, corporation, or entity.
  2. Subdivision (h)(2)(A) shall not apply if the residence is located on property that is, according to the relevant local, county, or municipal zoning law, zoned for a use other than residential or mixed-use.
3. This subsection (h) shall not apply to any residential treatment facility in which more than three (3) sexual offenders, as defined in § 40-39-202, violent sexual offenders, as defined in § 40-39-202, or combination thereof, reside following sentencing to such facility by a court or placement in such facility by the board of parole for the purpose of in-house sexual offender treatment; provided, the treatment facility complies with the guidelines and standards for the treatment of sexual offenders established by the sex offender treatment board pursuant to § 39-13-704.
The restrictions set out in subsections (a)-(d) and (k) shall not apply to a violent juvenile sexual offender required to register under this part unless otherwise ordered by a court of competent jurisdiction.
Notwithstanding any law to the contrary, a violent juvenile sexual offender who knowingly violates this section commits a delinquent act as defined by the juvenile code.
1. As used in this subsection (k), unless the context otherwise requires:
  1. 1. “Alone with” means one (1) or more offenders covered by this subsection (k) is in the presence of a minor or minors in a private area; and
      1. There is no other adult present in the area;
      2. There is another adult present in the area but the adult is asleep, unconscious, or otherwise unable to observe the offender and the minor or minors;
      3. There is another adult present in the area but the adult present is unable or unwilling to come to the aid of the minor or minors or contact the proper authorities, if necessary; or
      4. There is another adult present in the area but the adult is also a sexual offender or violent sexual offender mandated to comply with the requirements of this part;
    2. If the offender is in a private area where the offender has the right to be, the offender is not “alone with” a minor or minors if the offender is engaged in an otherwise lawful activity and the presence of the minor or minors is incidental, accidental, or otherwise unrelated to the offender's lawful activity; and
  2. 1. “Private area” means in or on any real or personal property, regardless of ownership, where the conduct of the offender is not readily observable by anyone but the minor or minors alone with the offender;
    2. If the private area contains multiple rooms, such as a hotel, motel, or other place of temporary lodging, any room, rooms, or other area that the offender occupies with a minor or minors and that otherwise meets the requirements of this definition shall be considered a private area.
2. Unless otherwise permitted by subsection (c), while mandated to comply with the requirements of this part, no sexual offender, as defined in § 40-39-202, or violent sexual offender, as defined in § 40-39-202, shall be alone with a minor or minors in a private area.

Acts 2004, ch. 921, § 1; 2005, ch. 316, § 1; 2006, ch. 890, § 20; 2008, ch. 1164, § 11; 2009, ch. 597, § 1; 2010, ch. 750, §§ 1, 2; 2010, ch. 1145, § 1; 2011, ch. 308, § 1; 2011, ch. 483, §§ 18-20; 2014, ch. 992, § 1; 2015, ch. 516, §§ 1, 2, 8; 2018, ch. 643, § 1; 2018, ch. 898, § 1; 2019, ch. 374, § 1; 2020, ch. 636, § 1.

Acts 2012, ch. 727, § 1 amended § 4-3-104, which concerns name changes of departments and divisions, to provide that references to the board of probation and parole, formerly referred to in subdivision (h)(3), are deemed references to the board of parole.

Amendments. The 2019 amendment, in (c), deleted “as defined in § 40-39-202,” following “sexual offender” and following “violent sexual offender”, substituted “or conduct an overnight visit at a residence in which a minor resides or is present” for “with a minor”, and inserted “, conduct an overnight visit,” preceding “or be alone”; and added (c)(3).

The 2020 amendment rewrote (c) which read: “(c) While mandated to comply with the requirements of this part, no sexual offender or violent sexual offender, whose victim was a minor, shall knowingly reside or conduct an overnight visit at a residence in which a minor resides or is present. Notwithstanding this subsection (c), the offender may reside, conduct an overnight visit, or be alone with a minor if the offender is the parent of the minor, unless one (1) of the following conditions applies:“(1) The offender's parental rights have been or are in the process of being terminated as provided by law;“(2) Any minor or adult child of the offender was a victim of a sexual offense or violent sexual offense committed by the offender; or“(3) The offender has been convicted of a sexual offense or violent sexual offense the victim of which was a child under twelve (12) years of age.”

Effective Dates. Acts 2019, ch. 374, § 2. July 1, 2019.

Acts 2020, ch. 636, § 2. April 1, 2020.

Cross-References. Delinquent act under juvenile code, § 37-1-102.

Penalty for Class E felony, § 40-35-111.

Attorney General Opinions. The monitoring of sex offenders done by probation and parole officers to ensure compliance with the conditions of probation and parole does not fit the definition of treatment in T.C.A. § 40-39-211, OAG 06-134, 2006 Tenn. AG LEXIS 151 (08/21/06).

A sex offender may not attend a school function, such as a school sporting event, as the parent or legal guardian of a child enrolled in the school. OAG 14-37, 2014 Tenn. AG LEXIS 38 (3/27/14).

T.C.A. § 40-39-211(a)(2) (as amended by Acts 2014, ch. 992, § 1) does not regulate the conduct of employers and does not prohibit a sexual offender hired before July 1, 2014, from maintaining employment within a prohibited zone. OAG 14-94, 2014 Tenn. AG LEXIS 97 (10/27/14).

T. C. A. § 40-39-211(b) prohibits a sexual offender from residing within 1,000 feet of the offender’s victim even if the offender had established that residence before the sexual offense was committed. OAG 15-73, 2015 Tenn. AG LEXIS 74 (11/6/2015).

Depending entirely on the particular facts in any given case, the “any other legitimate reason” exception in T.C.A. § 40-39-211(d)(1)(B) may apply to allow a sex offender to visit a government office to seek or receive services from that office, even if the office is located within 1,000 feet of a prohibited location. OAG 16-35, 2016 Tenn. AG LEXIS 35 (8/30/2016).

40-39-212. Registration requirement.

Upon the court's acceptance of a defendant's entry of a plea of guilty or a finding of guilt by a jury or judge after trial, and, notwithstanding the absence of a final sentencing and entry of a judgment of conviction, any defendant who is employed or practices a vocation, establishes a primary or secondary residence or becomes a student in this state and who enters a plea of guilty to a sexual offense as defined by § 40-39-202 or a violent sexual offense as defined by § 40-39-202, shall be required to register with a registering agency.
Notwithstanding the absence of a final sentencing and entry of a judgment of conviction, any defendant who is employed or practices a vocation, establishes a primary or secondary residence or becomes a student in this state and who enters a plea of guilty to an offense in another state, county or jurisdiction that may result in a conviction of a sexual offense as defined by § 40-39-202 or a violent sexual offense as defined by § 40-39-202, shall be required to register with a registering agency.
Upon the court's acceptance of a defendant's entry of a plea of guilty, and notwithstanding the absence of a final sentencing and entry of a judgment of conviction, any defendant from another state who enters a plea of guilty to an offense in this state that may result in a conviction of a sexual offense as defined by § 40-39-202 or a violent sexual offense as defined by § 40-39-202, shall be required to register with a registering agency.
This part shall apply to offenders who received diversion under § 40-35-313 or its equivalent in any other jurisdiction.

Acts 2007, ch. 451, § 1; 2008, ch. 1164, § 12; 2010, ch. 1138, § 12.

40-39-213. Possession of offender identification required.

Every offender required to register pursuant to this part who is a resident of this state, and who is eligible, shall be responsible for obtaining a valid driver license or photo identification card that has been properly designated by the department of safety pursuant to § 55-50-353. Every offender eligible to receive the license or identification card shall always have the license or identification card in the offender's possession. If the offender is ineligible to be issued a driver license or photo identification card, the department shall provide the offender some other form of identification card or documentation that, if it is kept in the offender's possession, will satisfy the requirements of this section and § 55-50-353; such identification must be kept in the offender's possession at all times. If any offender is determined to be indigent, an identification card or other documentation in lieu of an identification card shall be issued to the offender at no cost.
A violation of this section is a Class E felony punishable by fine only of not less than two hundred fifty dollars ($250).
Every offender required to register pursuant to this part shall have obtained the documentation required by this section and presented it to the offender's registering agency no later than sixty (60) days from the date in which such person is required to register pursuant to this part.
Notwithstanding any provision of this section to the contrary, no violent juvenile sexual offender shall be required to obtain a photo identification card or a valid driver license that has been properly designated by the department of safety pursuant to § 55-50-353, until such violent juvenile sexual offender attains eighteen (18) years of age.

Acts 2008, ch. 1143, § 1; 2010, ch. 1138, §§ 13-15; 2011, ch. 483, § 21.

Cross-References. Penalty for Class E felony, § 40-35-111.

40-39-214. Providing information in registry.

Except as provided in subsection (c), immediately after an offender registers or updates a registration, TBI shall provide all information in the registry about the offender that is made public pursuant to § 40-39-206(d) to the following:
1. The United States attorney general, who shall include that information in the national sex offender registry or other appropriate databases;
2. Appropriate law enforcement agencies, including probation and parole offices, and each school and public housing agency, in each area in which the individual resides, is an employee, establishes a physical presence or is a student;
3. Each jurisdiction where the sex offender resides, is an employee, establishes a physical presence or is a student and each jurisdiction from or to which a change of residence, employment or student status occurs;
4. Any agency responsible for conducting employment-related background checks;
5. Social service entities responsible for protecting minors in the child welfare system;
6. Volunteer organizations in which contact with minors or other vulnerable individuals might occur; and
7. Any organization, company or individual who requests such notifications pursuant to procedures established by TBI.
In addition to the information provided pursuant to subsection (a), TBI shall provide all information in the registry about the offender, regardless of whether the information is made public pursuant to § 40-39-206(d), to the organization described in subdivision (a)(1) and appropriate law enforcement agencies.
Notwithstanding subsection (a), TBI is not required to provide information to an organization or individual described in subdivision (a)(6) or (a)(7) more frequently than once every five (5) business days and an organization in subdivision (a)(6) or (a)(7) may elect to receive notification less frequently than five (5) business days.

Acts 2008, ch. 1164, § 13; 2011, ch. 483, § 22.

40-39-215. Offenses — Sexual offenders, violent sexual offenders, or violent juvenile sexual offenders — Defense.

While mandated to comply with the requirements of this chapter, it is an offense for a sexual offender, violent sexual offender or a violent juvenile sexual offender, as those terms are defined in § 40-39-202, whose victim was a minor, to knowingly:
1. Pretend to be, dress as, impersonate or otherwise assume the identity of a real or fictional person or character or a member of a profession, vocation or occupation while in the presence of a minor or with the intent to attract or entice a minor to be in the presence of the offender;
2. Engage in employment, a profession, occupation or vocation, regardless of whether compensation is received, that the offender knows or should know will cause the offender to be in direct and unsupervised contact with a minor; or
3. Operate, whether authorized to do so or not, any vehicle or specific type of vehicle, including, but not limited to, an ice cream truck or emergency vehicle, for the purpose of attracting or enticing a minor to be in the presence of the offender.
It is a defense to a violation of this section that the offender was the parent of the minor in the offender's presence.
A violation of this section is a Class A misdemeanor.

Acts 2008, ch. 1164, § 13; 2011, ch. 483, § 23.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

40-39-216. Restricting access to public library.

Public library boards shall have the authority to reasonably restrict the access of any person listed on the sexual offender registry. Such authority may be delegated by the board to a library administrator.
In determining the reasonableness of the restrictions, the board shall consider the following criteria:
1. The likelihood of children being present in the library at the times and places to be restricted;
2. The age of the victim of the offender; and
3. The chilling effect of the use of the library by other patrons if the offender is not restricted.
Nothing in this section shall prevent the board from imposing a total ban of the offender's access to a public library so long as the criteria in subsection (b) are considered.
The restrictions of this section shall be effective upon the mailing of notice to the address of the offender as listed on the sexual offender registry. The notice shall state with specificity, the time and space restrictions. The board, or if so delegated, the library administrator, shall state in the notice that the criteria in subsection (b) have been considered.
A registered sex offender who enters upon the premises of a public library in contravention of the restrictions five (5) days after mailing of the notice may, at the discretion of the library administrator, be prosecuted for criminal trespass pursuant to § 39-14-405.

Acts 2011, ch. 287, § 1; 2017, ch. 126, § 15.

40-39-217. Community notification system.

1. Any county, metropolitan form of government or municipality may, by a two-thirds (2/3) vote of the legislative body, choose to establish a community notification system whereby certain residences, schools and child-care facilities within the county, metropolitan form of government or municipality are notified when a person required to register pursuant to this part as a sexual offender or violent sexual offender resides, intends to reside, or, upon registration, declares to reside within a certain distance of such residences, schools and child-care facilities.
2. The legislative body of any county, metropolitan form of government or municipality that enacts a community notification system pursuant to this subsection (a) may, at the same time as the system is established, enact a notification fee of not more than fifty dollars ($50.00) per year from each offender in the county, metropolitan form of government or municipality for the purpose of defraying the costs of the community notification. The notification fee shall be collected at the same time as the one-hundred-fifty-dollar administrative fee collected pursuant to § 40-39-204(b).
Forms of notification a county, metropolitan form of government or municipality may elect to establish include:
1. Notification by the sheriff's office or police department to residents, schools and child-care facilities located within a specified number of feet from the offender's residence;
2. A community notification flyer, whether made by regular mail or hand delivered, to all legal residences within the specified area;
3. Posting a copy of the notice in a prominent place at the office of the sheriff and at the police station closest to the declared residence of the offender;
4. Publicizing the notice in a local newspaper, or posting electronically, including the internet;
5. Notifying homeowners associations within the immediate area of the declared residence of the offender; or
6. Any other method reasonably expected to provide notification.
Nothing in this section shall be construed as prohibiting the Tennessee bureau of investigation, a sheriff, or a chief of police from providing community notification under this section electronically or by publication or periodically to persons whose legal residence is more than the applicable distance from the residence of an offender.

Acts 2014, ch. 751, § 1.

Compiler's Notes. Pursuant to Article III, Section 18 of the Constitution of Tennessee, Acts 2014, ch. 751 took effect on April 21, 2014.

40-39-218. Termination of registration requirements based on status as victim of human trafficking, sexual offenses or domestic abuse.

A person who is mandated to comply with the requirements of this part, based solely upon a conviction for aggravated prostitution, under § 39-13-516, may petition the sentencing court for termination of the registration requirements based on the person's status as a victim of a human trafficking offense, as defined by § 39-13-314, a sexual offense, under title 39, chapter 13, part 5, or domestic abuse, as defined by § 36-3-601.
1. Upon receiving a petition, the court shall, at least thirty (30) days prior to a hearing on the petition, cause the office of the district attorney general responsible for prosecuting the person to be notified of the person's petition for release from the registration requirements. Upon being notified, the district attorney general shall conduct a criminal history check on the person to determine if the person has been convicted of a sexual offense or violent sexual offense during the period the person was required to comply with the requirements of this part. The district attorney general shall report the results of the criminal history check to the court, together with any other comments the district attorney general may have concerning the person's petition for release. The district attorney general may also appear and testify at the hearing in lieu of, or in addition to, submitting written comments.
2. Notwithstanding subdivision (b)(1), a petition for termination of the registration requirements mandated by this part may be filed at any time following a verdict or finding of guilty. If the petition is filed prior to the sentencing hearing required by § 40-35-209, the court shall combine the hearing on the petition with the sentencing hearing. When the petition is filed prior to the sentencing hearing, the thirty-day notice requirement imposed pursuant to subdivision (b)(1) shall not apply; provided, however, that the district attorney general's office shall be given notice of the petition and reasonable time to comply with the requirements of subdivision (b)(1).
1. If the report of the district attorney general indicates that the petitioner has been convicted of a sexual offense or violent sexual offense while mandated to comply with the requirements of this part, the court shall deny the petition without conducting a hearing.
2. If the report of the district attorney general indicates that the petitioner has not been convicted of a sexual offense or violent sexual offense while mandated to comply with the requirements of this part, the court shall conduct a hearing on the petition. At the hearing, the court shall call such witnesses, including, if applicable, an examining psychiatrist or licensed psychologist with health service designation or the prosecuting district attorney general, as the court deems necessary to reach an informed and just decision on whether the petitioner should be released from the requirements of this part. The petitioner may offer such witnesses and other proof at the hearing as is relevant to the petition.
3. If a petition for release from the requirements of this part is denied by the court, the person may not file another such petition for a period of three (3) years.
4. If the court determines that the petitioner has been a victim of a human trafficking offense, as defined by § 39-13-314, sexual offense, under title 39, chapter 13, part 5, or domestic abuse, as defined by § 36-3-601, and that the person should not be required to comply with the requirements of this part, the court shall grant the petition.
Upon the court's order granting the petition, the petitioner shall file a request for termination of registration requirements with the Tennessee bureau of investigation headquarters in Nashville, pursuant to § 40-39-207.

Acts 2015, ch. 469, § 1.

Part 3
Tennessee Serious and Violent Sex Offender Monitoring Pilot Project Act

40-39-301. Part definitions.

As used in this part, unless the context otherwise requires:

“Serious offender” means any person who is convicted in this state, on or after July 1, 2004, of any offense that may cause “serious bodily injury” as defined in § 39-11-106. “Serious offender” includes any person who is convicted in any other jurisdiction of any offense that would constitute a serious offense as defined in this part. “Serious offender” also includes any person who has been released on probation or parole following a conviction for any serious offense, as defined in this part, to the extent that the person continues to be subject to active supervision by the department of correction;
“Sexual offense” means any of the crimes enumerated in § 40-39-202(20), including specifically:
1. The commission of any act that constitutes the criminal offense of:
  1. Aggravated rape, under § 39-13-502;
  2. Rape, under § 39-13-503;
  3. Aggravated sexual battery, under § 39-13-504;
  4. Sexual battery, under § 39-13-505;
  5. Statutory rape, under § 39-13-506;
  6. Sexual exploitation of a minor, under § 39-17-1003;
  7. Aggravated sexual exploitation of a minor, under § 39-17-1004;
  8. Especially aggravated sexual exploitation of a minor, under § 39-17-1005;
  9. Incest, under § 39-15-302;
  10. Rape of a child, under § 39-13-522;
  11. Sexual battery by an authority figure, under § 39-13-527;
  12. Solicitation of a minor, under § 39-13-528;
2. Criminal attempt, under § 39-12-101, solicitation, under § 39-12-102, or conspiracy, under § 39-12-103, to commit any of the offenses enumerated within subdivision (2)(A); or
3. Criminal responsibility under § 39-11-402(2) for facilitating the commission under § 39-11-403 of, or being an accessory after the fact under, § 39-11-411 to any of the offenses enumerated in subdivision (2)(A); and
“Violent sexual offender” means any person who is convicted in the state, on or after July 1, 2004, of any sexual offense, as defined in subdivision (2) or § 40-39-202; or any person who is convicted in any other jurisdiction of any offense that would constitute a sexual offense in Tennessee. “Violent sexual offender” also includes any person who has been released on probation or parole following a conviction for any sexual offense, as defined in subdivision (2), to the extent that the person continues to be subject to active supervision by the department of correction as defined in law. For the purposes of this section, “violent sexual offender” may include offenders whose sexual offense was reduced by virtue of a plea agreement.

Acts 2004, ch. 899, § 5; 2006, ch. 890, § 21; 2012, ch. 727, § 50.

Compiler's Notes. Acts 2004, ch. 899, § 1 provided that the act shall be known and may be cited as the “Tennessee Serious and Violent Sex Offender Monitoring Pilot Project Act.”

Acts 2004, ch. 899, § 2 provided that:

“(a) It is the intent of the general assembly in enacting the ‘Tennessee Serious and Violent Sex Offender Monitoring Pilot Project Act’ to utilize the latest technological solutions to monitor and track serious criminal offenders and violent sex offenders in a limited number of counties selected for the purpose of providing a cross-section of Tennessee in terms of location, population and geography.

“(b) In addition to providing this state with a more efficient and accurate method of monitoring and tracking these serious and predatory criminals, the purpose of the pilot project is to collect at least twelve (12) months of data on the experience of such a monitoring and tracking system in this state. This data will better enable the governor and general assembly to accurately determine the success or failure of such a program, whether it is worth the expenditure necessary to administer it and whether to expand the pilot project into a statewide program.”

Acts 2004, ch. 899, § 3 provided that:

“The general assembly hereby finds and declares the following:

“(a) The United States department of justice has published confirmed statistics that over sixty percent (60%) of serious and violent sex offenders in state prisons have a prior conviction history and that the number of prisoners convicted for violent sexual assault has increased by an annual percentage of fifteen percent (15%) each year since 1980;

“(b) Criminals who commit serious and violent sexual crimes have shown unusually high recidivism rates, thereby posing an unacceptable level of risk to the community;

“(c) Intensive supervision of serious offenders and violent sex offenders is a crucial element to both the rehabilitation of the released convict and the safety of the surrounding community;

“(d) Mature technological solutions now exist to provide improved supervision and behavioral control of serious offenders and violent sex offenders following their release;

“(e) These solutions can now also provide law enforcement and correctional professionals with significant new tools for electronic correlation of the constantly-updated geographic location of supervised serious offenders and violent sexual offenders following their release with the geographic location of reported crimes, both to possibly link released offenders to crimes or to possibly exclude released offenders from ongoing criminal investigations; and

“(f) Continuous twenty-four (24) hours a day, seven (7) days a week electronic monitoring of those convicted of serious and violent sexual offenses is a valuable and reasonable requirement for those convicts who are placed on probation; who have failed to register as a sexual offender as required by law; or who have been released from incarceration while they remain under the active supervision of the department of correction, the board of probation and parole, or other state and local agencies.”

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended the definitions of “serious offender” and “violent sexual offender”, shall be fully accomplished on or before January 1, 2013.

Cross-References. Probation, paroles and pardons, title 40, ch. 28.

Law Reviews.

GPS Monitoring of Domestic Violence Offenders in Tennessee: Generating Problems Surreptitiously (Natalie Fox Malone), 43 U. Mem. L. Rev. 171 (2012).

NOTES TO DECISIONS

1. Constitutionality.

40-39-302. Establishment of program — Promulgation of guidelines — Duties.

The department of correction is authorized to establish a serious offender and violent sexual offender monitoring program and to promulgate guidelines governing it, consistent with this part.
The department of correction shall carry out the following duties:
1. By December 31, 2004, in consultation with all participating state and local law enforcement, the department of correction shall develop implementing guidelines for the continuous satellite-based monitoring of serious offenders and violent sexual offenders. The system may provide:
  1. Time-correlated and continuous tracking of the geographic location of the subject using a global positioning system based on satellite and other location tracking technology;
  2. Reporting of subject's violations of prescriptive and proscriptive schedule or location requirements. Frequency of reporting may range from once-a-day (passive) to near real-time (active); and
  3. An automated system that provides local and state law enforcement with alerts to compare the geographic positions of monitored subjects with reported crime incidents and whether the subject was at or near the reported crime incidents. These alerts will enable authorities to include or exclude monitored subjects from an ongoing investigation;
2. 1. Prior to June 30, 2005, the department of correction shall contract with a single vendor for the hardware services needed to monitor subject offenders and correlate their movements to reported crime incidents using a system meeting the requirements described in subdivision (b)(1)(C);
  2. The department of correction's contract with this vendor may provide for services necessary to implement or facilitate any of this part including the collection and disposition of the charges and fees provided for in this part and § 40-28-201(a)(2) and to allow for the reasonable cost of collection of the proceeds.

Acts 2004, ch. 899, § 5; 2005, ch. 179, §§ 1, 2; 2012, ch. 727, § 51.

Code Commission Notes.

Former subdivision (b)(4), concerning the report due April 1, 2006, regarding the implementation and results of the program created by this part, was deleted as obsolete by the code commission in 2014.

Compiler's Notes. Acts 2004, ch. 899, § 1 provided that the act shall be known and may be cited as the “Tennessee Serious and Violent Sex Offender Monitoring Pilot Project Act.”

Acts 2004, ch. 899, § 2 provided that:

Acts 2004, ch. 899, § 3 provided that:

“The general assembly hereby finds and declares the following:

“(b) Criminals who commit serious and violent sexual crimes have shown unusually high recidivism rates, thereby posing an unacceptable level of risk to the community;

“(c) Intensive supervision of serious offenders and violent sex offenders is a crucial element to both the rehabilitation of the released convict and the safety of the surrounding community;

“(d) Mature technological solutions now exist to provide improved supervision and behavioral control of serious offenders and violent sex offenders following their release;

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended this section, shall be fully accomplished on or before January 1, 2013.

Cross-References. Probation, paroles and pardons, title 40, ch. 28.

Law Reviews.

GPS Monitoring of Domestic Violence Offenders in Tennessee: Generating Problems Surreptitiously (Natalie Fox Malone), 43 U. Mem. L. Rev. 171 (2012).

40-39-303. Enrollment in satellite-based monitoring programs as mandatory condition of release.

Notwithstanding any other law, the board of parole may require, as a mandatory condition of release for any person convicted of a sexual offense as defined in § 40-39-301, that any person so released be enrolled in a satellite-based monitoring program for the full extent of the person's term of parole, consistent with the requirements of § 40-39-302.
The board of parole may require, as a mandatory condition of release for any person convicted of a serious offense as defined in this chapter or for other offenders as the board deems appropriate, that the person be enrolled in a satellite-based monitoring program for the full extent of the person's term of parole, consistent with the requirements of § 40-39-302.
Offender participation in a location tracking and crime correlation based monitoring and supervision program under this section shall be at the discretion of the department or as mandated by the board of parole and shall conform to the participant payment requirements stated in § 40-39-305 and be based upon the person's ability to pay.
Notwithstanding any other law, the court shall require any person who is, on or after July 1, 2017, placed on probation for an offense that would qualify the person as a child rapist or a child sexual predator under § 39-13-523(a) and who does not maintain either a primary or secondary residence, to enroll in a satellite-based monitoring and supervision program for the full extent of the person's term of probation.

Acts 2004, ch. 899, § 5; 2012, ch. 727, § 52; 2017, ch. 311, § 1.

Compiler's Notes. Acts 2004, ch. 899, § 1 provided that the act shall be known and may be cited as the “Tennessee Serious and Violent Sex Offender Monitoring Pilot Project Act.”

Acts 2004, ch. 899, § 2 provided that:

Acts 2004, ch. 899, § 3 provided that:

“The general assembly hereby finds and declares the following:

“(b) Criminals who commit serious and violent sexual crimes have shown unusually high recidivism rates, thereby posing an unacceptable level of risk to the community;

“(c) Intensive supervision of serious offenders and violent sex offenders is a crucial element to both the rehabilitation of the released convict and the safety of the surrounding community;

“(d) Mature technological solutions now exist to provide improved supervision and behavioral control of serious offenders and violent sex offenders following their release;

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended this section, shall be fully accomplished on or before January 1, 2013.

Cross-References. Probation, paroles and pardons, title 40, ch. 28.

Law Reviews.

GPS Monitoring of Domestic Violence Offenders in Tennessee: Generating Problems Surreptitiously (Natalie Fox Malone), 43 U. Mem. L. Rev. 171 (2012).

40-39-304. Offense of intentional tampering with, removal of, or vandalism to device — Aiding, abetting or assisting.

Intentional tampering with, removal of, or vandalism to a device issued pursuant to a location tracking and crime correlation based monitoring and supervision program described in § 40-39-302 by a person duly enrolled in the program is a Class A misdemeanor for the first offense, punishable by confinement in the county jail for not less than one hundred eighty (180) days. The minimum one hundred eighty-day sentence provided for this Class A misdemeanor offense is mandatory, and no person committing the offense shall be eligible for suspension of sentence, diversion, or probation until the minimum sentence is served in its entirety. A second or subsequent violation under this section is a Class E felony. Additionally, if the person violating this section is on probation, parole or any other alternative to incarceration, then the violation shall also constitute sufficient grounds for immediate revocation of probation, parole or other alternative to incarceration. Any violation of this section shall result in the imposition of the mandatory release condition specified in § 40-39-303(a) and (b).
Any person who knowingly aids, abets, or assists a person duly enrolled in a location tracking and crime correlation based monitoring and supervision program described in § 40-39-302 in tampering with, removing or vandalizing a device issued pursuant to the program commits a Class A misdemeanor.

Acts 2004, ch. 899, § 5.

Compiler's Notes. Acts 2004, ch. 899, § 1 provided that the act shall be known and may be cited as the “Tennessee Serious and Violent Sex Offender Monitoring Pilot Project Act.”

Acts 2004, ch. 899, § 2 provided that:

Acts 2004, ch. 899, § 3 provided that:

“The general assembly hereby finds and declares the following:

“(b) Criminals who commit serious and violent sexual crimes have shown unusually high recidivism rates, thereby posing an unacceptable level of risk to the community;

“(c) Intensive supervision of serious offenders and violent sex offenders is a crucial element to both the rehabilitation of the released convict and the safety of the surrounding community;

“(d) Mature technological solutions now exist to provide improved supervision and behavioral control of serious offenders and violent sex offenders following their release;

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

Penalty for Class E felony, § 40-35-111.

Probation, paroles and pardons, title 40, ch. 28.

Revocation of probation, §§ 40-35-310, 40-35-311.

Law Reviews.

GPS Monitoring of Domestic Violence Offenders in Tennessee: Generating Problems Surreptitiously (Natalie Fox Malone), 43 U. Mem. L. Rev. 171 (2012).

40-39-305. Fees — Waiver of fees.

The department of correction is authorized to assess a daily or monthly fee, as the department deems reasonable and necessary to effectuate the purposes of this program, from serious offenders and violent sexual offenders who are required by the board or the department to participate in the sexual offender monitoring program described in § 40-39-302. This fee is intended to offset only the costs associated with the time-correlated tracking of the geographic location of subjects using the location tracking crime correlation system. Fees assessed by the department pursuant to this program may be collected in accordance with § 40-39-302(b)(2)(A).
The department may waive all or any portion of the fees required by this section if it determines that an offender is indigent or financially unable to pay all or any portion of the fee. The department shall waive only that portion of the surcharge which the offender is financially unable to pay.

Acts 2004, ch. 899, § 5; 2012, ch. 727, § 53.

Compiler's Notes. Acts 2004, ch. 899, § 1 provided that the act shall be known and may be cited as the “Tennessee Serious and Violent Sex Offender Monitoring Pilot Project Act.”

Acts 2004, ch. 899, § 2 provided that:

Acts 2004, ch. 899, § 3 provided that:

“The general assembly hereby finds and declares the following:

“(b) Criminals who commit serious and violent sexual crimes have shown unusually high recidivism rates, thereby posing an unacceptable level of risk to the community;

“(c) Intensive supervision of serious offenders and violent sex offenders is a crucial element to both the rehabilitation of the released convict and the safety of the surrounding community;

“(d) Mature technological solutions now exist to provide improved supervision and behavioral control of serious offenders and violent sex offenders following their release;

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended this section, shall be fully accomplished on or before January 1, 2013.

Law Reviews.

GPS Monitoring of Domestic Violence Offenders in Tennessee: Generating Problems Surreptitiously (Natalie Fox Malone), 43 U. Mem. L. Rev. 171 (2012).

40-39-306. Sharing of criminal incident information across state agencies and with vendor — Correlation reports.

Notwithstanding any other provision of law, the department of correction, the board of parole, the Tennessee bureau of investigation and all local law enforcement agencies are specifically authorized to share criminal incident information, limited to the time, place and nature of the crime, with each other and the vendor selected by the department to carry out the purposes of this part, and the department is authorized to direct the vendor so chosen to use data collected pursuant to § 40-39-302(b) in preparing correlation reports as described in that subsection for distribution to and use by state and local law enforcement agencies.

Acts 2004, ch. 899, § 5.

Compiler's Notes. Acts 2004, ch. 899, § 1 provided that the act shall be known and may be cited as the “Tennessee Serious and Violent Sex Offender Monitoring Pilot Project Act.”

Acts 2004, ch. 899, § 2 provided that:

Acts 2004, ch. 899, § 3 provided that:

“The general assembly hereby finds and declares the following:

“(b) Criminals who commit serious and violent sexual crimes have shown unusually high recidivism rates, thereby posing an unacceptable level of risk to the community;

“(c) Intensive supervision of serious offenders and violent sex offenders is a crucial element to both the rehabilitation of the released convict and the safety of the surrounding community;

“(d) Mature technological solutions now exist to provide improved supervision and behavioral control of serious offenders and violent sex offenders following their release;

Law Reviews.

GPS Monitoring of Domestic Violence Offenders in Tennessee: Generating Problems Surreptitiously (Natalie Fox Malone), 43 U. Mem. L. Rev. 171 (2012).

Let's Talk About Sexting, Baby: A Mens Rea-Centered Approach to the Sexting Issue in Tennessee (Emily Long), 42 U. Mem. L. Rev. 1139 (2012).

Chapter 1 Jurisdiction and Venue

40-1-101 — 40-1-103. [Reserved.]

40-1-105. False affidavit to obtain parole or pardon.

40-1-106. Officials defined as magistrates.

40-1-107. Courts vested with original jurisdiction.

NOTES TO DECISIONS

1. Municipal Courts.

2. Subject Matter Jurisdiction.

40-1-108. Original jurisdiction of circuit and criminal courts.

NOTES TO DECISIONS

1. Soldiers — Civil War.

2. Jurisdiction.

40-1-109. Jurisdiction of general sessions courts.

NOTES TO DECISIONS

1. Reducing Charge.

2. Waiver of Constitutional Rights.

3. Facially Valid Judgments.

Decisions Under Prior Law

1. Constitutionality.

2. Waiver of Right to Jury — Extent.

3. Waiver of Presentment, Indictment or Impeachment.

40-1-110. Judicial acts of general sessions judges.

NOTES TO DECISIONS

1. Facially Valid Judgments.

40-1-111. Appointment of judicial commissioners or magistrates — Duties — Terms — Compensation — Continuing education.

NOTES TO DECISIONS

1. In General.

2. Constitutionality.

3. Duties.

4. —Jurisdiction.

40-1-104. Fraudulent sale of pledged property.

Chapter 2 Limitation of Prosecutions

40-2-101. Felonies.

NOTES TO DECISIONS

1. Construction.

2. Pleading Limitations.

3. Allegations of Indictment.

4. Return of Indictment.

5. Concealment of Crime.

6. Prosecution Untimely.

7. Waiver of Defense.

8. Competence of Counsel.

9. Purpose.

10. Statute of Limitations.

40-2-102. Misdemeanors.

NOTES TO DECISIONS

1. Indictment.

2. —Sufficiency.

3. —Defective.

4. Misdemeanors Included in Felonies.

5. —Bribery of Peace Officer.

6. —Gambling Device Possession.

7. Violation of Injunction.

8. Civil Actions by State.

9. Tolling Statute.

10. Pleading Limitations.

11. Case Timely Commenced.

12. Case Not Timely Commenced.

40-2-103. Period of concealment of crime or absence from state.

NOTES TO DECISIONS

1. Facts Avoiding Bar — Necessity in Indictment.

2. Concealment.

3. Prosecution Untimely.

40-2-104. Commencement of prosecution.

NOTES TO DECISIONS

1. Running of Statute.

2. Timeliness.

3. Case Timely Commenced.

4. Case Not Properly Commenced.

40-2-105. Suspension of statute because of irregularities in prosecution.

NOTES TO DECISIONS

1. Application and Scope.

40-2-106. Suspension on reversal.

NOTES TO DECISIONS

1. Application and Scope.

Chapter 3 Methods of Prosecution

Part 1 General Provisions

40-3-101. Methods enumerated.

NOTES TO DECISIONS

1. Form of Presentment.

Chapter 1
Jurisdiction and Venue

Chapter 2
Limitation of Prosecutions

Chapter 3
Methods of Prosecution

Part 1
General Provisions

Part 2
Fraud and Economic Crimes Prosecution Act

Chapter 4
Proceedings Before General Sessions Courts