Criminal Procedure FINAL

4-5-07: Limitations on Prosecution

TCA 40-2-101 Felonies: (a) 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. (b) 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.

(c) 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.

(d) 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.

(e) Prosecutions for any offense committed against a child prior to July 1, 1997, that constitutes a criminal offense
under the provisions of §§ 39-2- 601, 39-2-603, 39-2-604, 39-2-606, 39-2-607, 39-2-608, 39-2- 612, 39-4-306, 39-4-
307, 39-6-1137, or § 39-6-1138, or under the provisions of §§ 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 years next 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.

(f) For offenses committed prior to November 1, 1989, the limitation of prosecution in effect at that time shall govern.

(g) Prosecutions for any offense committed against a child on or after July 1, 1997, that constitutes a criminal offense
under the provisions of §§ 39-13- 502--39-13-505, § 39-13-522, § 39-15-302 or § 39-17-902 shall commence no later
than the date the child reaches twenty-one (21) years of age; provided, that if the provisions of subsection (a) or (b)
provide 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.

(h) 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 the provisions of §§ 39-13-502--39-13-505, § 39-13-522, § 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.

TCA 40-2-102 Misdemeanors: (a) 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.

(b) Prosecutions 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
non-expired driver license was last used to falsely impersonate the person in whose name the driver license was issued,
whichever is longer.
TCA 40-2-103Concealment 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.

TCA 40-2-104 Prosecution; commencement

A prosecution is commenced, within the meaning of this chapter, by finding an indictment or presentment, the issuing
of a warrant, 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.

TCA 40-2-105 Prosecution; irregularities; suspension

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.

TCA 40-2-106. Reversal; suspension

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.

TRCrP 48: Dismissal

Dismissal by the state: with the courts permission, the state may terminate a prosecution by filing a dismissal of an
indictment, presentment, information, or complaint. A dismissal may not be filed during the trial without the
defendant’s concent
By the court for unnecessary delay: the court may dismiss an indictment, presentment, information, or complaint if
unnecessary delay occurs in:
1.) Presenting to the GJ a charge against a ^ who has been held to answer to the trial court; or
2.) Bringing a ^ to trial.

Chapter 12 Speedy Trial and Other Speedy Disposition

The 6th Amendment to the Constitution declares that in all criminal prosecutions the accused shall enjoy the right to a
public and speedy trial.

Habeas corpus is a form of collateral attack. An independent proceeding initiated to determine whether a defendant is
being unlawfully deprived of his or her liberty.

Speedy Trial is a trial that the prosecution, with reasonable diligence, begins promptly and conducts expeditiously.

In determining if the right to a speedy trial has been deprived the court will usually look at:
1.) length of delay
2.) reason for the delay
3.) the defendant’s assertion of the right
4.) the prejudice suffered

Speedy Trial Act of 1974- federal law; specific time limits and enumerates what events toll the running of the
specified time.
Barker v. Wingo
FACTS: An elderly couple was beaten to death by intruders and Barker was not brought to trial for murder until more
than five years after he was arrested, during which time the prosecution obtained numerous continuances. He
ultimately filed a motion to dismiss the indictment asserting that his right to a speedy trial had been violated.

ISSUE: is a defendant deprived of his due process right to a speedy trial if he does not complain about the ensuing
delay and is not prejudiced there by?

HOLDING/REASONING: no, the right to speedy trial is a balancing act between the interest of the defendant and
societal interest.
RULE: When addressing speedy trial claims, courts must apply a balancing test in which the conduct of both the
prosecution and the ^ are weighed, including a consideration of:
(a) The length of delay,
(b) The reason for delay,
(c) The ^’s assertion of his right (his responsibility), and
(d) Prejudice to the defendant.

Prejudice is the damage or detriment to one’s legal rights or claims.

Presumption is a legal inference or assumption that a fact exist, based on the known or proven existence of some other
fact or group of facts. A presumption shifts the burden of production or persuasion to the opposing party, who can
then attempt to overcome the presumption.

Statute of Repose is a statute that bars a suit a fixed number of years after the defendant acts in some way, even if this
period ends before the P has suffered any injury.

Doggett v. United States

FACTS: In February 1980, Doggett was indicted for conspiracy to import and distribute cocaine. The Government did
not locate ^ until 1988. Doggett was arrested more than 8 years after an indictment for conspiracy to import cocaine
was issued.

ISSUE: when a lengthy delay between indictment and trial is caused by the Government’s negligence in locating the ^,
is the ^ entitled to dismissal of the indictment?

HOLDING: yes

RULE: Lengthy delays between indictment and trial caused by the Government’s negligence violate the 6th
Amendment right to a speedy trial.

Due Process is the conduct of legal proceedings according to established rules and principles for the protection and
enforcement of private rights, including notice and the right to a fair hearing before a tribunal with the power to hear
the case.

Indictment is the formal written accusation of a crime, made by a GJ (and prosecutor) and presented to the court for
prosecution against the accused person.

Whether delay was uncommonly long- double enquiry.

1. Accused must allege that the interval between accusation and trial has crossed the threshold dividing
ordinary from "presumptively prejudicial" delay, and
2. Court must then consider, among other factors, the extent to which the delay stretches beyond the bare
minimum needed to trigger judicial examination of the claim
The impairment of one's defense is the most difficult form of speedy trial prejudice to prove because time's erosion of
exculpatory evidence and testimony "can rarely be shown."

Negligence in the sense of speedy trial- middle ground between diligence and bad-faith delay

United States v. Lovasco

FACTS: In March of 1975 ^ was indicted for possession of stolen firearms from the US mail. The offense was
alleged to have occurred in 1973. The district court dismissed an indictment of Lovasco brought an allegedly
prejudicial seventeen months after the Government collected the evidence necessary to indict him.

ISSUE: does an unjust pre indictment delay violate the 6th amendment when the delay prejudices the ^’s defense?

HOLDING: no
RULE: To prosecute a ^ following investigative delay does not deprive him of due process, even if his defense might
have been somewhat prejudiced by the lapse of time.

Marion established the proof of prejudice is generally a necessary, but not sufficient element of due process claim, and
that the due process inquire must consider the reasons for the delay as well as the prejudice to the accused.

Investigative delay is wholly separate from delay to gain tactical advantage. The latter is bad-faith. Moreover,
investigative delay is rarely one-sided. The Due Process Clause does not require mere speed, but rather diligence and
orderly expedition of cases by prosecutors.

State v. Utley
Supreme Court of TN 1997
FACTS: On June 4, 1987, a criminal arrest warrant for armed robbery was issued for the defendant, Demetrius
Dewayne Utley, for an alleged offense committed on May 27, 1987, in Davidson County, Tennessee. The defendant
was not served with the warrant until June of 1992, even though he had been in the State's custody for unrelated
convictions for the majority of the five years. After the return of an indictment in September of 1992, the defendant
moved to dismiss the charge because he had been denied his constitutional right to a speedy trial. The motion was filed
in December of 1992 and granted in February of 1993.

Trial court held that the speedy trial right was triggered by the issuance of the arrest warrant in 1987, despite the fact
that the defendant was not arrested or indicted until 1992. The court found that the five and one-half year period was
“intolerable and egregious,” particularly since the defendant had been in the custody of the state. After concluding that
the defendant had been prejudiced, the trial court dismissed the armed robbery charge.
The Court of Criminal Appeals agreed that the issuance of the arrest warrant triggered the right to a speedy trial. Court
of Criminal Appeals concluded that the defendant's right to a speedy trial had been violated.

ISSUE: whether the defendant was denied his right to a speedy trial as required under the Sixth Amendment to the
United States Constitution and Tennessee Constitution. And, what type of state action which will engage the
defendant's right to a speedy trial.

HOLDING/REASONING: The defendant's right to speedy trial was not triggered when arrest warrant was issued, but
instead was triggered five years later, when defendant was served with arrest warrant and was arrested; The delay of
eight months between service of arrest warrant on defendant and argument on motion for speedy trial did not violate
defendant's speedy trial rights; and the remand was necessary to determine whether five-year delay between
commission of offense and defendant's arrest violated due process issue.

Reversed and remanded to trial court.

Speedy trial- TCA § 40-14-101 (1990) In all criminal prosecutions, the accused is entitled to a speedy trial.
Rule 4 is used in defendant motion. However, "neither Rule 4 nor the advisory comments address the right to a speedy
trial." p. 494.

US. v. Marion- prejudice to defendant caused by delay violates right to fair trial

TN. State v. Gray- Application of Marion rule for Pre-arrest Delay: "before an accused is entitled to relief based
upon the delay between the offense and the initiation of adversarial proceedings, the accused must prove that:
(a) There was a delay,
(b) The accused sustained actual prejudice as a direct and proximate result of the delay, and
(c) The State caused the delay in order to gain tactical advantage over or to harass the accused."

However, for pre-accusatorial delay during which the state was unaware of the commission of the crime, the trial court
must consider only:
(a) The length of delay,
(b) The reason for the delay, and
(c) The degree of prejudice to the accused. p. 495.

Case reversed b/c the lower court never gave any due process analysis, in regard to the 5 year delay from the
commission of the offense to the defendant's arrest. If the defendant shows that his right to due process was violated
under Marion, the trial court shall dismiss the charge; otherwise, the trial should proceed.

State v. Dykes
Court of Criminal Appeals 1990

FATCS: Bud Dykes, was convicted of selling more than one-half ounce of marijuana by a jury of his peers. The trial
judge, finding the appellant to be a Range I standard offender, sentenced the appellant to pay a fine of $5,000 and serve
one year and six months in the local jail.

ISSUE: The appellant raises five issues for our review. He contends that the evidence contained in the record is
insufficient to sustain his conviction. He further contends that the trial judge erred in overruling his motion to dismiss,
denying his motion for a continuance, refusing to suspend his sentence, and the sentence imposed by the trial judge is
excessive.

HOLDING/REASONING: The evidence was sufficient to support defendant's conviction; the delay of 16 months
between time of offense and initiation of adversarial proceedings did not violate defendant's due process rights; the
three months following return of indictment or presentment was insufficient, as matter of law, to trigger speedy trial
analysis; the defendant was not entitled to continuance due to missing defense witness; the since there were no
enhancement (and two mitigating) factors present, trial judge should have sentenced defendant to minimum sentence
within standard offender range for Class E felony; and the trial court properly refused to suspend defendant's sentence
and place him on probation.

Conviction affirmed; remanded for re-sentencing.

"When an accused seeks a continuance on the ground a witness is unavailable, the accused is required to file a written
motion which sets forth the grounds with particularity; and the motion must be supported by an affidavit. The affidavit
must allege:
(a) The substance of the facts that the accused expects to prove through the unavailable witness,
(b) Sufficient facts to establish the relevance and materiality of the testimony of the unavailable witness,
(c) The testimony would be admissible, if the witness was available,
(d) The testimony is not merely cumulative to other evidence,
(e) The witness will be available at a later date,
(f) Diligence was exercised to obtain the presence of the witness.
The failure to file a proper motion and/or a properly drafted affidavit, standing alone, will justify the denial of the
motion without a hearing." p. 256-57.

"Whether a criminal trial should be continued to a later date is matter which addresses itself to the sound discretion of
the trial judge." The appellate court won't intervene with the judge's decision unless it appears that "(a) the trial judge
has abused his discretion, and (b) prejudice endured to the accused as a result of the trial judge's ruling." p. 257.

Presumptive sentence- minimum sentence in the range, if not enhancing or mitigating factors

Enhancement factors-above the minimum, but still within range, if no mitigating factors

Both enhancement and mitigating factors- court must start at the min. sentence, enhance within the appropriate range,
and then reduce within the range as appropriate

Enhancement- TCA § 40-35-114

Mitigating- TCA 40-35-113

04-05-07
Warrant obtained and not served then the issue is due process and statute of limitations

Time issue after the formal charge and the motion are speedy trial issues

SOL
1st degree murder has no statute of limitations
Class A felony-15 years
Class B-8
Class C-4
Class E-2
Misdemeanor 12months

If the ^ conceals the crime the statute is tolled, this is different from due process

Due Process Test (government knows)

1) delay
2) actual prejudice
3) That the government intentionally caused the delay to gain tactical advantage or harass.

Due Process Test (When the Government did not know the crime occurred)
1) delay
2) actual prejudice
3) reason for the delay

Speedy Trial Test

1) length of delay (in TN no set time at least over a year and a half)
2) reason for delay
a. good reasons
i. witness missing
ii. still investigating
b. bad reasons
i. harassment
ii. tactical advantage
 iii. to punish someone by longer pretrial detention
iv. negligence
c. neutral reasons
i. crowded dockets
3) Assertion of rights
a. There is no duty to assert this but it will help in deciding speedy trial
4) Prejudice
a. Loss of defense witness
b. Lengthy pretrial detention
c. Anxiety
d. Public stigma
e. Loss of the possibility of concurrent jail time

Must have Delay before the courts will consider the other factors, after length of delay the most important thing to
show is that there was an actual prejudice

Doggett v. United States***

-sometimes the length is just so long that prejudice is assumed.

On a misdemeanor the Capias on a warrant has a 5 year life

Mitigating- TCA 40-35-113. Include, but not limited to:

(1) ^’s criminal conduct neither caused nor threatened serious bodily harm;
(2) ^ acted under strong provocation;
(3) substantial grounds exist tending to excuse or justify ^’s criminal conduct, though failing to establish a
defense;
(4) ^ played a minor role in the commission of the offense;
(5) before detection, ^ compensated or made a good faith attempt to compensate the victim of criminal conduct
for damage or injury the victim sustained.
(6) ^, because of youth or old age, lacked substantial judgment in committing the offense;
(7) ^ was motivated by desire to provide necessities for the ^’s family or the ^’s self;
(8) ^ was suffering from a mental or physical condition that significantly reduced the ^’s culpability for the
offense; however, the voluntary use of intoxicants does not fall within the purview of this factor;
(9) ^ assisted the authorities in uncovering offenses committed by other persons or in detecting or
apprehending other persons who had committed the offenses
(10) ^ assisted the authorities in locating or recovering any property or person involved in the crime;
(11) ^, 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;
(12) ^ 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; OR
(13) any other factor consistent with the purposes of this chapter
.
Examples. 1. Neither caused nor threatened harm- Violation of city ordinance. “Victimless crimes.” Theft (in limited
situations).
2. Provocation- Manslaughter.
3. Excuse, not a defense. Bar fight that doesn’t rise to level of self-defense.
4. Minor role. The argument used for “look outs” in burglary and robbery type cases.
5. Good faith effort to make restitution before the court forces him/her to. Any sort of vandalism, or violence
where the person puts the door back on the hinges, or pays his girlfriend’s hospital bill. (Bleh!)
6. Youth or old age caused lack of judgment. Like a minor tried as an adult for a serious violent crime. Or,
remember that guy I told you about- simple domestic assault that caused his wife to die a few weeks later. He pled to
the crime of SDA as charged, in part b/c the hospital failed to do the autopsy and the state didn’t want to exhume the
body, but also partly b/c he supposedly had Alzheimer’s.
 7. Necessity to provide for one’s self or family. Okay- so apparently poor have an argument in court for when
they steal food from Kroger.
8. Mental or physical condition that reduced culpability. Like if the person had a personality disorder that
didn’t rise to the level of insanity (like schizophrenia).
9. Help to convict others. You see this a lot with co-^, where one with the lesser charge might agree to snitch
on the others for like a 40-35 or low probationary period (or nolle). Nathaniel Ferris was happy to snitch on Perry
March. In return, we was given a bond on his multiple Aggravated Robbery charges. He’s just the average criminal,
and wound back up in jail 2 weeks later for Domestic Assault. He eventually got like 8 probation for his guilty plea
(which he’ll eventually serve after he violates some more). CI’s are also an example- and it sucks when they’re on
probation cuz they violate 15 times and never get revoked.
10. Helping the cops find the person or property in the crime. Remember the “Christian burial speech?”
Brewer v. Williams
11. Unlikely that intent to break the law motivated the crime. Maybe they can use this defense in DUI (but the
state could at least show the mens rea of recklessness).
12. Acted under duress or domination, but not rising to the level of a defense. Richardson v. Marsh. She was
still guilty, especially since she held that young woman from letting her and her son leave. However, she could have
been honest about being scared of her b/f, classic DV case where she buys into her man’s crap so deep that she do did
the wrong thing just to protect herself. Love over conscience.
13. Other factors too.

Enhancement- TCA § 40-35-114. The enhancement factor can’t also be one of the elements that was proved in order
to meet the state’s burden as to that charge. The advisory factors in determining whether to enhance a ^’s sentence are:
(1) ^ has previous history of criminal convictions or criminal behavior, in addition to those necessary to
establish the appropriate range; [criminal background]
(2) ^ was a leader in the commission of an offense involving two (2) or more criminal actors; [leader of
conspiracy]
(3) offense involved more than one (1) victim;
(4) victim of the offense was particularly vulnerable because of age or physical or mental disability;
[especially vulnerable young or old victim]
(5) ^ treated, or allowed a victim to be treated, with exceptional cruelty during the commission of the offense;
(6) personal injuries inflicted upon, or the amount of damage to property sustained by or taken from, the victim
was particularly great; [much injury to victim or damage of his/her property]
(7) offense involved a victim and was committed to gratify the ^’s desire of pleasure or excitement; [sexual or
sadistic pleasure]
(8) ^, before trial or sentencing, has failed to comply with the conditions of a sentence involving release into
the community; [previous probation/parol/CC violations]
(9) ^ possessed or employed a firearm, explosive device, or other deadly weapon during the commission of the
offense;
(10) ^ had no hesitation about committing a crime when the risk to human life was high;
(11) felony resulted in death or serious bodily injury, or involved the threat of death or serious bodily injury to
another person, and the ^ has previously been convicted of a felony that resulted in death or serious bodily injury;
[death or threat of death, when ^ was previously convicted of murder or crime w/ serious bodily injury]
(12) during the commission of the felony, the ^ intentionally inflicted serious bodily injury upon another
person, or the actions of the ^ resulted in the death of or serious bodily injury to, a victim or a person other than the
intended victim; [this section sounds like felony murder is itself an enhancement factor]
(13) at the time the felony was committed, one of the following classifications was applicable to the ^:
(A) released on bail or pretrial release , if ^ is ultimately convicted of such prior misdemeanor or
felony; [committing another crime while out on bail or pretrial]
(B) released on parole;
(C)) on probation
(D) on work release; [ex. Ie. “furlough.” Darden v. Wainwright]
(E) on community corrections;
(F) on some form of judicially ordered release; [ROR, bond}
 (G) on any other type of release into the community under the direct or indirect supervision of any
state or local governmental authority or private entity contracting with the state or local government;
(H) on escape status; or
(I) incarcerated in any penal institution on a misdemeanor or felony charge or a misdemeanor or
felony conviction;
(14) ^ 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;
(15) ^ committed the offense on the grounds or facilities of a pre-kindergarten (pre-K) through grade (twelve
(12) public or private institution of learning when minors were present; [Drug Free Zone]
(16) ^ was adjudicated to have committed a delinquent act or acts as a juvenile that would constitute a felony if
committed by an adult; [juvenile record has a crime that constitutes a felony]
(17) ^ intentionally selected the person (victim) 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 ^’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; [Title VI- anti discrimination. Civil Rights Act
and Americans with Disabilities Act]
(18) offense was an act of terrorism, or was related to an act of terrorism;
(19) if ^ is convicted of aggravated assault pursuant to 39-13-102, the victim of the aggravated assault was a
LEO, firefighter, correctional officer, youth services officer, probation and parole officer, a state registered security
officer/guard, an employee of the TDOC or DCS, 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 ^ knew or should have known that the victim was such an officer or employee; [victim if a gov’t
or medical agent in pursuit of their job of public safety or health care]
(20) if ^ is convicted of the offenses of rape pursuant to 39-13-503, sexual battery pursuant to 39-13-05, or
rape of a child pursuant to 39-13-522, the ^ caused the victim to be mentally incapacitated or physically helpless by
use of a controlled substance; [while victim was incapacitated by C/S]
(21) if ^ 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 ^ knew or should have known that,
at the time of the offense, such ^ was HIV positive; OR
(22)(A) if ^ 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 ^ knew or should have known that it was a place of worship.
(B) as used in this subdivision (22), “place of worship” means any structure that is: (i) 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
(ii) utilized on a regular basis by such religious institution as the site of congregational service, rites or
activities communally undertaken for the purpose of worship.

[Sentencing Reform Act of 2006]

4-12-07. Joinder and Severance

TRCrP Rule 8. Joinder of Offenses and Defendants.
(a) Mandatory Joinder of Offenses.
(1) Criteria for Mandatory Joinder. Two or more offenses shall be joined in the same I/P/I with each offense
stated in a separate count, or the offenses consolidated pursuant to Rule 13, if the offenses are:
(A) Based on the same conduct OR arise from the same criminal episode. [Case note: US v. Dixon,
State v. Denton]
(B) Within the jurisdiction of a single court; AND
(C) Known to the appropriate prosecuting official at the time of the return of the I(s)/P(s)/I(s).
-this is designed to keep the state from holding back charges to try later.
(2) Failure to Join Such Offenses. A defendant shall not be subject to separate trials for multiple offenses
falling within Rule 8(a)(1) unless they are severed pursuant to Rule 14.
-The defendant has the right to a fair trial
-The decision to seek a joinder or severance is mostly strategy
-The state could put more than one crime into one trial to have a higher likelihood of conviction.
Advisory Footnote: part (a) for compulsory joinder of offenses against a single defendant. Designed to encouraged a
single trial for multiple offenses arising from same conduct and same criminal episode. To promote efficiency and
economy. When they give rise to injustice, Rule 14(b)(2) may be used by court to relax this rule. Another purpose- to
prevent DA’s from “saving back” any more charges arising from the same criminal episode. [See Ashe v. Swenson].
Such other charges are barred from future prosecution if known to the appropriate prosecuting official at the time that
the other prosecution is commenced, but deliberately not presented to a grand jury.

(b) Permissive Joinder of Offenses. Two or more offenses may be joined in the same I/P/P with each offense
stated in a separate count, or consolidated pursuant to Rule 13, if:
(1) The offenses constitute parts of a common scheme or plan; OR
(2) They are of the same or similar character.

Advisory Footnote: Permissive joinder of section (b) allows even unrelated offenses to be joined in the same I/P, when
they are offenses of the same/similar character. These charged may be severed by the defendant as a matter of right
under Rule 14(b), unless part of common scheme or plan, AND the evidence of one would be admissible upon the
trial of the others
.
-a ^ has an absolute right to severance, under 8b
(c) Joinder of Defendants. An I/P/I may charge two or more defendants:
(1) If each of the defendants is charged with accountability for each offense included;
(2) If each of the defendants is charged with conspiracy, and some of the defendants are also charged
with one or more offenses alleged to be in furtherance of the conspiracy; OR
(3) even if conspiracy is not charged and all of the defendants are not charged in each count, if the
several offenses charged:
(A) Were part of a common scheme or plan; OR
(B) Were so closely connected in time, place, and occasion that it would be difficult to separate
proof of one charge from proof of the others.

Advisory Footnote: Section (c) aims at achieving improved judicial economy and efficiency. Severance of defendants
is addressed in Rule 14(c).

TRCrP Rule 13. Consolidation of Severance.

(a) Consolidatioin. The court may order consolidation for trial of two or more I/P/I’s if the offenses and all
defendants could have been joined in a single I/P/I pursuant to Rule 8.
(b) Severance. The court may order a severance of offenses or defendants before trial if a severance could be
obtained on motion of a defendant or of the state pursuant to Rule 14.

Advisory Footnote: Rules 8, 13, and 14 are closely tied together. Rule 13 allows the court to consolidate or sever
O’s/D’s when the state or defense could have moved to do so. Ie, if a motion would have achieved that purpose, the
court can do it of its own initiative. When the court orders a consolidation under section (a), the case is then in the
“permissive joinder” status, and the defendant(s) may exercise options available under Rule 14 to sever. A severance
ordered by the court under section (b) is final.

Rule 14. Severance of Offenses and Defendants.

(a) Severance Motion.
(1) Timing.
(A) By Defendant. A defendant’s motion for severance of offenses or defendant shall be made before
trial, except that a motion for severance may be made before or at the close of all evidence if based on
a round not previously known. A defendant waives severance if the motion is not timely.
 (B) By State. The state’s motion for severance of counts or defendants may be granted by the court
only prior to trial, except with the consent of the defendant.
(2) Double Jeopardy. If during the trial the court grants a motion for severance made by the defendant or with
the defendant’s consent, the ruling does not bar a subsequent trial of that defendant on the offenses severed.
(b) Severance of Offenses.
(1) Involving Permission Joinder of Offenses. If two or more offenses are joined or consolidated for trial
pursuant to Rule 8(b), the defendant has the right to severance of the offenses unless the offenses are part of a
common scheme or plan AND the evidence of one would be admissible in the trial of the others.
(2) Involving Mandatory Joinder of Offenses. If two or more offenses are joined or consolidated for trial
pursuant to Rule 8(a), the court shall grant a severance of offenses in any of the following situations:
(A) Before Trial. Before trial on motion of the state or the defendant when the court finds a severance
appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense.
(B) During Trial. During trial, with consent of the defendant, when the court finds a severance
necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense. The
court shall consider whether-in light of the number of offenses charged and the complexity of the
evidence-the trier of fact will be able to distinguish the evidence and apply the law intelligently as to
each offense.
(C) Conflicting Positions on Continuance. When the court finds merit in both the district attorney
general’s motion for continuance based on exigent circumstances that temporarily prevent the state
from being ready for trial of the joined prosecution and in the defendant’s objection to the continuance
based on demand for speedy trial. A court granting severance under this subdivision shall also grant a
continuance of the prosecutions in which the exigent circumstances exist.
(c) Severance of Defendants.
(1) Because of the Out-of-Court Statement. If a defendant moves for severance because an out-of-court
statement by a co-^ makes reference to the defendant but is not admissible against the defendant, the court
shall determine whether the state intends to offer the statement in evidence at trial. If so, the court shall
require the prosecuting attorney to elect one of the following courses:
(A) a joint trial at which the statement is not admitted in evidence or at which, if admitted, the statement would
not constitute error;
(B) a joint trial at which the statement is admitted in evidence only after all references to the moving defendant
have been deleted and if the redacted confession will not prejudice the moving defendant; OR
(C) Severance of the moving defendant.
(2) Because of Speedy Trial or Fair Determination Concerns. On motion of the state or the defendant other
than under Rule 14(c)(1), the court shall grant a severance of defendants is:
(A) before trial, the court finds a severance necessary to protect a defendant’s right to speedy trial or
appropriate to promote a fair determination of the guilt or innocent of one or more defendants; OR
(B) during trial, with consent of the defendants to be severed, the court finds a severance necessary to
achieve a fair determination of the guilt or innocent of one or more defendants.
(3) Because of Failure to Prove Grounds for Joinder. The court shall grant a severance of defendants if:
(A) a defendant moves for severance at the conclusion of the state’s case or at the conclusion of all the
evidence;
(B) there is not sufficient evidence to support the allegation on which the moving defendant was joined for
trial with the other defendant or defendants; AND
(C) in view of this lack of evidence, severance is necessary to achieve a fair determination of the moving
defendant’s guilt or innocence.

Advisory Footnote: Offenses permissively joined by the prosecution (or by the court) may be severed upon
motion by the defendant as a matter of right, with one exception: where the offenses are part of a common
scheme or plan AND the evidence of one would be admissible upon the trial of the others
(b)(2) sets out when and under what circumstances there may be a severance of cases consolidated under the
compulsory joinder rule.
Section (c) deals with US v. Bruton. 391 US 123 (1968). (c)(1) provides that severance is unnecessary where
no Bruton violation, as would be true in cases like Richardson v. Marsh.
RECAP (Notes from Midterm Outline)-
Rule 13. Consolidation or Severance.

Consolidation. Court can consolidate trial of two or more indictments. This creates a “permissive joinder” status.

Severance. Court may sever offenses or defendants before trial, upon motion of state or defense. Severance by the
court is final.

Rule 14. Severance of Offenses and Defendants.

Defendants motion for severance shall be made before trial, unless grounds not previously shown during or right
before trial arise. Defendant waives severance if motion is not timely.

State’s motion to sever must be made before trial, or with defendant’s consent.

Defendant has the right to sever offenses, unless they are part of a common scheme or plan which would use the same
evidence.

If defendant moves for severance b/c of an incriminating statement by the co-defendant, the state must either not admit
or redact the statement. [Richardson v. Marsh, US Supreme Court. See also Bruton v. U.S.]

Court shall grant motion to sever if it is necessary to protect defendant’s right to speedy trial, or it is necessary for
defendant to receive a fair trial.

State v. Baird. Joinder of offenses or defendants (88sw3d617- Tenn.Crim.App. 2001)

Criminal Court Davidson County. Judge Norman. Defendants were indicted July 1999 for aggravated gambling
promotion (offenses Dec. 1998). At the time of that indictment, another investigation was underway by Metro PD for
same charge. A second indictment for that investigation was handed down in March 2000. Indictment alleged illegal
activity from Jan. 1990June 1999 (prior to first indictment). The officer that did the second investigation testified that
he was aware at that time that the first indictment for exact same charges was being pursued. Trial court found that the
two indictments were identical, except for the dates alleged. Judge Norman concluded that the 2nd indictment violated
Rule 8(a) and should be dismissed.

-rule 8a determines when cases must be charged together

Rule 8(a) reference: Two or more offenses must be joined or consolidated if
(1) The offenses arise from the same conduct or criminal episode;
(2) The conduct is known to the appropriate prosecuting official at the time of the return of the indictment;
AND
(3) The offenses fall within the jurisdiction of a single court.

Same conduct- refers to a single action which may be divisible into district offenses
[The Supreme court found that the alleged conduct was not a “single action”, and thus not the “same conduct”
in this case]

Same criminal episode- more difficult questions. Relates to several distinct offenses which arise out of separate
actions or conduct but which occur in a closely connected series of events in place and time.
American Bar Association Standards definition:
“Single criminal episode offenses normally are generated by separate physical actions. The actions may be committed
by separate defendants. In other respects, however, they are similar to same conduct offense: they occur
simultaneously or in close sequence, and they occur in the same place or in closely situated places. A critical
characteristic of single episode offenses, particularly in cases involving otherwise unrelated offense or offenders, is the
fact hat proof of one offense necessarily involves proof of the others.”
 ABA Standards relating to Joinder and Severance.
Criminal episode- “an occurrence or connected series of occurrences and developments which may be viewed as
distinctive and apart although part of a larger or more comprehensive series.”

HOLDING: Trial court was correct in dismissing the case under Rule 8(a), because the second period of time did not
terminate the “criminal episode,” even if separate convictions were possible. 2nd indictment alleges illegal activities
that arose from the same criminal episode as the subject of the 1st indictment. Thus, the 2nd indictment violated the
mandatory joinder rule.

Note: The purpose of Rule 8(a) is to prevent multiple trials on charges arising from the same conduct or same episode.
The rule does not necessarily prohibit a subsequent indictment, provided it is consolidated with the prior indictment
before trial or disposition.

RULE: Same conduct or criminal episode  consolidation of indictments into one trial

Severence of offenses or defendants

Bruton v. U.S. 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
FACTS: ^ and co-^ tried jointly before a jury, and convicted on federal armed postal robbery charge. A postal
inspector testified that the co-^ admitted to both his and ^'s involvement. Judge instructed the jury that the co-^'s
statements were inadmissible hearsay against ^, and to be disregarded as to his guilt was concerned.

ISSUE: Whether the conviction of a defendant at a joint trial should be set aside although the jury was instructed that a
codefendant's confession inculpating the defendant had to be disregarded in determining his guilt or innocence.

RULE(S): Delli Paoli rule, overturned in this case, had previously held that it was reasonably possible for a jury to
follow sufficiently clear instructions to disregard statements of a co-^ that implicate the ^.

This Court states that it may also be a denial of due process to rely on a jury's presumed ability to disregard a co-^'s
confession against another ^, in terms of guilt or innocence. To deprive an accused of the right to cross-examine the
witnesses against him is a denial of the Fourteenth Amendment guarantee of due process of law.

Rule 14 of Federal Rules of Crim. Pro authorizes a severance where it appears that a defendant might be prejudiced
by a joint trial. Joinder of defendants is governed by Rules 8(b) and 14 of the F.R.Cr.P. The rules are designed to
promote economy and efficiency and avoid a multiplicity of trials, but only where these objectives can be achieved
without substantial prejudice to the right of defendants to a fair trial.

-Co-^'s statement incriminating ^ may prejudice a defendant.

HOLDING: Because of the substantial risk that the jury, despite instructions to the contrary, looked at the
incriminating extrajudicial statements in determining ^'s guilt, admission of co-^'s confession violated ^'s right of
cross-examination secured by the Confrontation Clause of the Sixth Amendment. Prior rule of Delli Paoli
overturned. Case reversed. To hold otherwise would be completely contrary to the Rule of evidence, which would
require exclusion of the confession as to Bruton as "inadmissible hearsay". The effect of these jury instructions were
the same as if there had been no instruction at all.

Inadmissible hearsay- a presumptively unreliable out-of-court statement of a nonparty who was not a witness subject to
cross-examination.

Dissent- the idea that juries can effectively disregard inadmissible evidence against one co-^.

-Ways to fix admissions of guilt including codefendant’s name

1.) Severance
 2.) Redact the statement
3.) Not use the statement

State v. Shirley 6 S.W.3d 243 (Tenn. 1999).

FACTS: One indictment- four counts of armed robbery. Appellant moved to sever under Rule 14(b)(1). State argued
that the offenses were part of a common scheme or plan because of the similarities of the offenses. Trial court denied
appellant's motion. The only characteristics in each robbery that were identical were a black ski mask, gloves, and a
gun. Clothing items, methods of securing the money from registers, and whether or not the ski mask was removed
were not identical in each case. Jury found defendant guilty of 3 of the 4 counts of armed robbery. Concurrent
sentences, 12 years and fines.

ISSUE: What is the proper standard of appellate review of a trial court's denial of a motion to sever offenses under
TRCrP 14(b)(1)?

RULE(S): Mandatory Joinder- Consolidation of multiple offenses in a single trial is now mandatory when the
offenses are "based upon the same conduct or arise from the same criminal episode." TRCrP 8(a). Rule 8(b) covers
permissive joinder.

Defendant has an absolute right to a severance of offenses that are of the same or similar character under Rule 14(b)
(1), upon request.

Rules 8(b) and 14(b) allow trial court wide discretion to join offenses for a single trial, when the offenses are part of a
common scheme or plan and when the offense sought to be severed would be admissible as evidence in the trial of the
other offenses.

In TN, there are three types of common scheme or plan evidence:

(1) offense that reveal a distinctive design or are so similar as to constitute "signature " crimes;
(2) offenses that are part of a larger, continuing plan or conspiracy; AND
(3) offense that are all part of the same criminal transaction.

The most common basis for offering evidence of a distinctive design (under part 1) is to establish the identity of a
perpetrator.

Before multiple offenses may be said to evince a distinctive design, the "modus operandi employed must be so unique
and distinctive as to be like a signature."
Modus operandi- unusual particularities, not likely to be employed by another person, substantially identical
and so unique that it tends to establish identity.

Black's Law definition- modus operandi is a method of operating or doing things. Used by police and criminal
investigators to describe the particular method of a criminal's activity.

The trial court must look for a distinctive method used to commit the crimes, and not simply for evidence tending to
show that the defendant was the offender.

HOLDING:
A denial of a severance will only be reversed for an abuse of discretion. This holding applies to decisions to
consolidate or sever offenses pursuant to Rules 8(b) and 14(b)(1). Trial court in this case abused its discretion in
denying a severance because the methods used to commit the offense were not so materially distinct or unique as to
rise to an inference of identity. Trial court applied an incorrect legal standard in finding that the offenses were parts of
a common scheme or plan. The result of not severing the cases invited the jury to infer the appellant's guilt from the
perceived propensity to commit armed robbery, with a result of unfair prejudice. Reversed and remanded.
Spicer v. State 12 S.W.3d 438 (Tenn. 2000).
FACTS: Defendant had two step-daughters. One daughter told her mother that defendant had been raping her. The
other daughter was confronted by the mother, and she advised that he had touched her sexually, but not raped her. The
mother reported this to the Sheriff's Department, who didn't want to get involved, because defendant was an employee
there. Mother then reported the incidents to the police, and sent the children for a rape kit. The results showed that the
rape of the one daughter had happened more than once, and that the other daughter's hymen was still intact. This was
consistent with the girls' stories. Two indictments were handed down- agg. sexual battery, and rape of a child. Both
alleged same time frame of July 1, 1993 to March 4, 1994. State moved to consolidate. Defendant objected.
Overruled and joined for trial. Defendant was convicted by a jury of misdemeanor assault and rape of a child. 11'29
concurrent with 18 years, plus fines.

ISSUE: 1. Whether this case is a consolidation case or a severance case. 2. Whether the trial court abused its
discretion by trying the offenses alleged in both indictments in a single trial. Ie. whether the evidence was admissible
at trial of both offenses.

RULE(S): 8(a)- mandatory joinder

8(b)- permissive joinder.
13(a)- consolidation of offenses in multiple indictments
14(b)(1)- absolute right of defendant to sever permissively joined cases. No such right if the cases are part of common
scheme or plan, and same evidence admissible for both offenses.

Review of decisions concerning permissive joinder and severance of offenses pursuant to Rules 8(b) and 14(b)(1) for
abuse of discretion. Trial court will be reversed if applied an incorrect legal standard.

Offenses may not be parts of a "common scheme or plan" although the offenses may be of the same or similar
character. Rule 14(b)(1) can be used to sever permissively joined offenses, if the evidence of each offense is not
admissible in the trial of the others. The trial court can overrule defendant's objection to consolidate, only when the
offenses are parts of a common scheme or plan and evidence of each offense is admissible in the trial of the others.

When a defendant objects to a pre-trial motion to consolidate by the state, the trial court must consider the
motion by the severance provisions of Rule 14(b)(1), not the "same or similar character" standard of Rule 8(b).

Purpose of severing (Rule 8 advisory comments)- to ensure that the defendant is insulated from the evidence of other
offenses when that evidence is not otherwise admissible.

When the state alleges that sexual offenses have occurred over a period of time against a single victim, then the state
may introduce supporting evidence of sexual misconduct during that time. The state is required to make an election at
the close of its proof-in-chief as to the particular offense or offenses for which it is seeking a conviction.

Common scheme or plan must be shown pre-trial. When the indictment is open-dated, and the state elects which
offense to prosecute after the case in chief, then there is no way to meet the burden of production of the evidence pre-
trial.

HOLDING:

The trial court overlooked the fact that a defendant has an absolute right to sever offenses that are merely of the "same
or similar character." State introduced no evidence of a common scheme or plan.

Issue 1- consolidation case

Issue 2- Rule 14(b)(1) may have the practical effect of requiring the state to elect the offense for conviction pre-trial,
when seeking permissive joinder of open-dated indictments. Otherwise there is no way to show the common scheme
or plan pre-trial.
"When the state seeks to consolidate offenses that are alleged in open-dated indictments, the state must introduce
sufficient proof at the pre-trial hearing to support a finding that specific acts constitute parts of a common scheme or
plan."

It was probable that the testimony from each victim in this case bolstered the credibility of the other, and invited the
jury's reliance on the appellant's perceived propensity to sexually abuse his daughters. This would have created an
unfair prejudice, affecting the outcome of the trial.

Consolidation was not harmless error. Especially in light of the fact that the jury actually convicted defendant of a
different type of assault than the state's proof alleged. This shows some spill-over effect from the other victim's case
was likely.

Tennessee Rules of Evidence (TRE) Rule 404

Character evidence not admissible to prove conduct; exceptions; other crimes.
(a) Character evidence generally. Evidence of a person’s character or a trait of character is not admissible
for the purpose of proving action in conformity with the character or trait on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent character trait offered by the accused OR by the
prosecution to rebut the same.
(2) Character of victim. Evidence of a pertinent character trait of the victim of crime offered by an
accused or by the prosecution to rebut the same, OR evidence of a character trait of peacefulness of the victim offered
by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor.
(3) Character of a witness. Evidence of the character of a witness as provided in Rules 607, 608, and
609.
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity with the character trait. It may, however, be admissible
for other purposes. The conditions which must be satisfied before allowing such evidence are:
(1) The court upon request must hold a hearing outside the jury’s presence;
(2) The court must determine that a material issue exists other than conduct conforming with the
character trait and must upon request state on the record the material issue, the ruling, and the reasons for admitting the
evidence;
(3) The court must find proof of the other crime, wrong, or act to be clear and convincing; AND
(4) The court must exclude the evidence if its probative value is outweighed by the danger of unfair
prejudice.

TRE Rule 607

Impeach. The credibility of a witness may be attacked by any party, including the party calling the witness.

TRE Rule 608

Evidence of character and conduct of witness.
(a) Opinion and reputation evidence of a character. The credibility of a witness may be attacked or supported
by evidence in the form of opinion or reputation, but subject to these limitations:
(1) the evidence may refer only to character for truthfulness or untruthfulness, AND
(2) the evidence of truthful character is admissible only after the character of the witness for
truthfulness has been attacked.
(b) Specific instances of conduct. Specific instances of conduct of a witness for the purpose of attacking or
supporting the witness’s character for truthfulness, other than convictions of crime as provided in Rule 609, may not be
proved by extrinsic evidence. They may, however, if probative or truthfulness (T) or untruthfulness (un-T) and under
the following conditions, be inquired into on cross-examination of the witness concerning the witness’s character for T
or Un-T or concerning the character fro T or un-T of another witness as to which the character witness being cross-
examined has testified. The conditions which must be satisfied before allowing inquiry on cross-examination about
such conduct probative solely of T or un-T are:
 (1) hearing outside jury’s presence to determine that the alleged conduct has probative value and that a
reasonable factual basis exists for the inquiry;
(2) conduct must have occurred no more than ten (10) years before commencement of the action or
prosecution; unless the evidence may be admissible if the adverse party gives sufficient advance notice of intent to use
such evidence for fair opportunity to contest use of such evidence; and court determines that the intesres of justice that
the probative value of that evidence, supported by specific facts and circumstances, substantially outweighs its
prejudicial effect; AND
(3) if the witness to be impeached is the accused, the State must give reasonable written notice of the
impeaching conduct before tiral, and the court finds itha the conduct’s probative value on credibility outweighs its
unfair prejudicial effect on substantive issues.
(c) Juvenile conduct. A witness’s juvenile background is not general permissible for impeachment of that
witness. The court may, however, allow evidence of such conduct if the conduct would be admissible to attack the
credibility of an adult and the court is satisfied that (unless) admission in evidence is necessary for a fair determination
of a civil action or criminal proceeding. [Case: Davis v. Alaska]

TRE Rule 609

Impeachment by evidence of conviction of crime.
(a) General rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been
convicted of a crime may be admitted if the following procedures and conditions are satisfied:
(1) The witness must be asked about the conviction on cross-examination. If the witness denied
having been convicted, the conviction may be established by public record. If the witness denies being the person
named in the public record, identity may be established by other evidence.
(2) The crime must be a felony which the witness was convicted, OR the crime must have involved
dishonesty or false statement.
(3) If the witness to be impeached is the accused, the State must give the accused reasonable written
notice of the impeaching conviction before trial, and the court upon request must determine that the conviction’s
probative value on credibility outweighs its unfair prejudicial effect on the substantive issues.
(b) Time limit. Evidence of a conviction is not admissible if a period of more than ten (10) years has elapsed
between the date of release from confinement and commencement of the action or prosecution; if the witness was not
confined, the ten (10) year period is measured for the date of conviction rather than release. Evidence of a conviction
not qualifying under the preceding sentence is admissible if the proponent gives to the adverse party sufficient advance
notice of intent to use such evidence to provide the adverse party with a fair opportunity to content the use of such
evidence and the court determines in the interests of justice that the probative value of the conviction, supported by
specific facts and circumstances, substantially outweighs it s prejudicial effect.
(c) Effect of pardon. Evidence of a conviction is not admissible under this rule if (1) the conviction ha been
subject of a pardon based on a finding of the rehabilitation of the person convicted and that person has not been
convicted of a subsequent felony, or (2) the conviction has been the subject of a pardon based on a finding of
innocence.
(d) Juvenile adjudications. Evidence of a juvenile adjudication is generally not admissible. The court may,
however, allow evidence of a witness other than the accused if the conviction of the offense would be admissible to
attack the credibility of an adult and the court is satisfied that the admission in evidence is necessary for a fair
determination in a civil or criminal proceeding.
(e) Pendency of appeal. The pendency of an appeal of a conviction does not render evidence of that conviction
inadmissible. Evidence of the pendency of an appeal is admissible.

4-19-07
There are 3 types of pleas
-Guilty
-not guilty
-No lo contendre
-no contest
-this plea cannot be brought in a civil case arising from the same actions b/c there is no
admission of guilt.
 -accepts the punishment.
-you must have the agreement from the judge for this plea.
-Alford Plea
-also known as a best interest plea
-waive trial and accept punishment that is in his best interest w/o admitting guilt.
-judge also must agree to this plea

-the judge must agree to this b/c the ^ is waiving their rights.

There are 3 situations in which a plea can be accepted

-An arrangement whereby the ^ and the prosecution agree that the ^ should be permitted to pled
guilty to a charge less serious than is supported by the evidence. Court must accept this and if they
do not then the plea can be withdrawn.
-An agreement whereby the ^ pleads “on the nose” (to the original charge), in exchange for some
kind of promise from the prosecutor concerning the sentence to be imposed. Court may not accept
but here the plea cannon be withdrawn.
-Where the ^ pleads “on the nose” in exchange for the prosecutor’s promise to drop or not file other
charges. If the judge does not accept this the ^ can withdraw his plea.

Things that must happen at a plea

-waiver of rights such as trial by jury
The plea must be made knowingly, intelligent, and voluntary
- to make sure this happens the court must question the ^
- failure to cover the things that the are suppose to negates the plea
- ^ must under stand the nature of the charge that he is charged with and the nature of the charge he
is pleading to if different.
- That they have a right to counsel
- The court must tell the ^ that the counsel will be w/ them at all stages of the case.
- That they have a right to plea not guilty
- Jury trial, cross examine
The state reads facts into record
-judge asks the ^ if these facts are correct
-judge then asks how do you plea
-the ^ is under oath for this
Post conviction
-lawsuit filed by the convicted, saying that something was not afforded to them, such as ineffective
counsel.

RULE 11. PLEAS

(a) Plea Alternatives.
(1) In General. A defendant may plead not guilty, guilty, or nolo contendere. The court shall enter a plea of not guilty
if a defendant refuses to plead or if a defendant corporation, limited liability company, or limited liability partnership
fails to appear.
(2) Nolo Contendere. A defendant may plead nolo contendere only with the consent of the court. Before accepting a
plea of nolo contendere, the court shall consider the views of the parties and the interest of the public in the effective
administration of justice.
(3) Conditional Plea. A defendant may enter a conditional plea of guilty or nolo contendere in accordance with Rule
37(b).
(b) Considering and Accepting a Guilty or Nolo Contendere Plea.
(1) Advising and Questioning the Defendant. Before accepting a guilty or nolo contendere plea, the court shall address
the defendant personally in open court and inform the defendant of, and determine that he or she understands, the
following:
(A) The nature of the charge to which the plea is offered;
(B) the maximum possible penalty and any mandatory minimum penalty;
(C) if the defendant is not represented by an attorney, the right to be represented by counsel--and if necessary have the
court appoint counsel--at trial and every other stage of the proceeding;
(D) the right to plead not guilty or, having already so pleaded, to persist in that plea;
(E) the right to a jury trial;
(F) the right to confront and cross-examine adverse witnesses;
(G) the right to be protected from compelled self-incrimination;
(H) if the defendant pleads guilty or nolo contendere, the defendant waives the right to a trial and there will not be a
further trial of any kind except as to sentence; and
(I) if the defendant pleads guilty or nolo contendere, the court may ask the defendant questions about the offense to
which he or she has pleaded. If the defendant answers these questions under oath, on the record, and in the presence of
counsel, the answers may later be used against the defendant in a prosecution for perjury or false statement.
(2) Insuring That Plea Is Voluntary. Before accepting a plea of guilty or nolo contendere, the court shall address the
defendant personally in open court and determine that the plea is voluntary and is not the result of force, threats, or
promises (other than promises in a plea agreement). The court shall also inquire whether the defendant's willingness to
plead guilty or nolo contendere results from prior discussions between the district attorney general and the defendant
or the defendant's attorney.
(3) Determining Factual Basis for Plea. Before entering judgment on a guilty plea, the court shall determine that there
is a factual basis for the plea.
(c) Plea Agreement Procedure.
(1) In General. The district attorney general and the defendant's attorney, or the defendant when acting pro se, may
discuss and reach a plea agreement. The court shall not participate in these discussions. If the defendant pleads guilty
or nolo contendere to a charged offense or a lesser or related offense, the plea agreement may specify that the district
attorney general will:
(A) move for dismissal of other charges;
(B) recommend, or agree not to oppose the defendant's request for, a particular sentence, with the understanding that
such recommendation or request is not binding on the court; or
(C) agree that a specific sentence is the appropriate disposition of the case.
(2) Disclosing a Plea Agreement.
(A) Open Court. The parties shall disclose the plea agreement in open court on the record, unless the court for good
cause allows the parties to disclose the plea agreement in camera.
(B) Timing of Disclosure. Except for good cause shown, the parties shall notify the court of a plea agreement at the
arraignment or at such other time before trial as the court orders.
(3) Judicial Consideration of a Plea Agreement.
(A) Rule 11(c)(1)(A) or (C) Agreement. If the agreement is of the type specified in Rule 11(c) (1)(A) or (C), the court
may accept or reject the agreement pursuant to Rule 11(c)(4) or (5), or may defer its decision until it has had an
opportunity to consider the presentence report.
(B) Rule 11(c)(1)(B) Agreement. If the agreement is of the type specified in Rule 11(c)(1)(B), the court shall advise
the defendant that the defendant has no right to withdraw the plea if the court does not accept the recommendation or
request.
(4) Accepting a Plea Agreement. If the court accepts the plea agreement, the court shall advise the defendant that it will
embody in the judgment and sentence the disposition provided in the plea agreement.
(5) Rejecting a Plea Agreement. If the court rejects the plea agreement, the court shall do the following on the record
and in open court (or, for good cause, in camera):
(A) advise the defendant personally that the court is not bound by the plea agreement;
(B) inform the parties that the court rejects the plea agreement and give the defendant an opportunity to withdraw the
plea; and
(C) advise the defendant personally that if the plea is not withdrawn, the court may dispose of the case less favorably
toward the defendant than provided in the plea agreement.
(d) Inadmissibility of Pleas, Offers of Pleas, and Related Statements. The admissibility of a plea, plea discussion,
or any related statement is governed by Tennessee Rule of Evidence 410.
(e) Record of Proceedings. There shall be a verbatim record of the proceedings at which the defendant enters a plea.
If there is a plea of guilty or nolo contendere, the record shall include the inquiries and advice to the defendant required
under Rule 11(b) and (c).

RULE 32. SENTENCE AND JUDGMENT

(f) Withdrawal of Guilty Plea.
(1) Before Sentence Imposed. Before sentence is imposed, the court may grant a motion to withdraw a guilty plea for
any fair and just reason.
(2) After Sentence But Before Judgment Final. After sentence is imposed but before the judgment becomes final, the
court may set aside the judgment of conviction and permit the defendant to withdraw the plea to correct manifest
injustice.

CHAPTER 14 GUILTY PLEAS

PLEA BARGAINING
• The majority of criminal cases are disposed of by pleas of guilt rather than trial.
• The common forms of plea negotiation
o An arrangement whereby the ^ and the prosecution agree that the ^ should be permitted to pled guilty
to a charge less serious than is supported by the evidence.
o An agreement whereby the ^ pleads “on the nose” (to the original charge), in exchange for some kind
of promise from the prosecutor concerning the sentence to be imposed.
o Where the ^ pleads “on the nose” in exchange for the prosecutor’s promise to drop or not file other
charges.

Bordenkircher v. Hayes
FACTS: After being indicted on a charge of uttering a false instrument. Hayes was told by the prosecutor that if he
didn’t plea guilty to that charge the prosecutor would re-indict Hayes under the state’s Habitual Criminal Act, and if
convicted, he would be sentenced to life in prison, Hayes did not pled guilty and the prosecutor re-indicted him on the
more serious charge. Hayes was found guilty and, as required by the Act was sentenced to life in prison. After the
Kentucky Court of Appeals affirmed the sentence, Hayes petitioned the federal court for a writ of habeas corpus. The
federal court denied the writ, but the Sixth Circuit Court of Appeals reversed, holding that the prosecutor’s conduct
was a vindictive exercise of the prosecutor’s discretion.

ISSUE: Is a vindictive exercise of the prosecutor’s discretion and a violation of the Due Process Clause to carry out a
threat made during plea negotiations to re-indict a criminal ^ on more serious charges if the ^ does not pled to the
offenses with which he was originally charged?

HOLDING: No, reversed.

RULE OF LAW: It is not a vindictive exercise of the prosecutor’s discretion and a violation of the Due Process Clause
to carry out a threat made during plea negotiations to re-indict a criminal ^ on more serious charges if the ^ does not
pled to the offenses with which he was originally charged

REASONING: A prosecutor does not vindictively exercise his or her discretion, and therefore does not violate due
process, by carrying out a threat to re-indict a ^ on more serious charges if the ^ does not pled to the more original
offense. Hayes was fully informed of the terms of the plea offer and understood that he risked being re-indicted under
the Habitual Criminal Act if he did not pled guilty. As a practical matter, the case was no different than if Hayes had
initially been indicted as a recidivist and the prosecutor had offered to drop that charge as part of a plea agreement.
While it is a violation of the Due Process Clause to punish a person for legally attacking a conviction, there is no such
element of punishment or retaliation in plea bargaining so long as the ^ is free to accept to accept or reject the
prosecutor’s offer.

DISSENT: by Powell and Blackmun

Santobello v. New York
FACT: Santobello agreed to pled guilty to a lessor-included offense in exchange for the prosecutor’s promise that he
would dismiss the more serious charge and that he would not make a recommendation at the sentencing hearing. At
the sentencing hearing, the original prosecutor was replaced by a new prosecutor who recommended that Santobello
receive the maximum prison sentence, which the judge imposed. ^ sought to withdraw his guilty plea, but his request
was denied. His conviction was affirmed on appeal.

ISSUE: Is the prosecutor’s office bound by a promise not to make a sentencing recommendation when that promise
was the consideration for a plea of guilty.

HOLDING: Yes, vacated and remanded

RULE OF LAW: when a plea of guilty has been entered in consideration of a promise made by a prosecutor, the
prosecutor must fulfill that promise.

REASONING: Plea agreements presuppose a fairness in securing the agreement between the ^ and the prosecutor.
When a promise or agreement of the prosecutor is the inducement for the ^ to pled guilty, that promise must be
fulfilled. Here, the state failed to keep a commitment concerning a sentencing recommendation on the ^’s guilty plea,
so the case must be remanded to the state court to decide whether the circumstances require only that there be specific
performance of the agreement on the guilty plea, or whether the circumstances require that the petitioner be granted the
opportunity to withdraw his guilty plea.

CONCURRENCE: Douglas and Marshall in part.

Mabry v. Johnson
FACTS: Johnson was convicted of burglary, assault, and murder, but the Arkansas Supreme Court set aside the murder
conviction. As a result, ^ began serving concurrent twenty-one and twelve year sentences for burglary and assault.
During the retrial of the murder charges, the prosecutor proposed to recommend a concurrent 21 year sentence to the
judge if ^ would pled guilty to a charge of accessory to felony murder. When ^ accepted the plea bargain the next day,
however, the prosecutor claimed the offer was a mistake and that the recommendation would be a 21 year consecutive
sentence in exchange for the guilty plea. ^ declined the offer and went to trial. After a mistrial was declared, the
prosecutor made a second offer, which ^ accepted, and ^ was sentenced to another 21 year sentence to e served
consecutively. On habeas review, a federal court of appeals reversed the conviction, holding that the ^’s acceptance of
the plea proposal prevented the prosecutor from withdrawing it.

ISSUE: Does a ^’s acceptance of a prosecutor’s proposed plea bargain create a constitutional right to specific
enforcement of the bargain?

HOLDING: No, reversed.

RULE OF LAW: A voluntary and intelligent plea of guilty made by an accused person, who has been advised by
competent counsel, may not be collaterally attacked.

REASONING: A voluntary and intelligent plea of guilty made by an accused person, who has been advised by
competent counsel, may not be collaterally attacked. The validity of a plea is called into question only when its
voluntariness may be in debate. Here, ^ freely pleaded guilty knowing that the prosecutor would recommend a
consecutive sentence. His inability to enforce the prosecutor’s earlier mistaken offer has no constitutional
significance, for it does not affect the voluntariness of his acceptance of the second plea. ^ was not denied a liberty
interest in a fundamentally unfair way.

United States v. Benchimol

FACTS: ^ pled guilty to a mail fraud in exchange for the Government’s recommendation of probation conditioned on
restitution. The court disregarded the recommendation and sentenced ^ to 6 years of juvenile treatment and
supervision. He moved to withdraw his plea or vacate the sentence, claiming the Government did not comply w/ the
plea bargain. The court denied the motion. On appeal, the court of appeals reversed b/c the Government did not in
fact recommend probation to the court, but merely concurred in the ^’s counsel’s recommendation.

ISSUE: must the government explain the reasons underlying a sentencing recommendation to comply w/ a plea
bargain?

HOLDING: No, reversed.

RULE OF LAW: Each party must comply w/ the precise terms of a plea agreement.

REASONING: Under Rule 11(e) of the federal rules of criminal procedure, the government may agree to recommend
a particular sentence or to not oppose a ^’s recommended sentence as part of a plea bargain. The rule, however, does
not define the degree of enthusiasm w/ which the government must act. The government may, as part of the plea,
agree to explain to a court its reasoning for its recommendation, but the evidence here does not suggest it made such an
agreement.

Concurrence Stevens
Dissent Brennan

United States v. Ruiz

FACTS: ^ was offered a “fast track” plea bargain on drug possession charges. The bargain required ^ to waive
indictment, trial, and appeal. In return the U.S. would recommend a downward departure from the sentence that would
otherwise have been imposed on Ruiz. The agreement also contained a statement that the U.S. had turned over any
known information regarding the factual innocence of ^ and acknowledged the continuing duty of the U.S. to provide
such information, but required ^ to waive her right to receive impeachment information regarding any informants or
witnesses, as well as the right to receive information supporting any affirmative defense. ^ refused to agree w/ the
waiver of the right to receive impeachment information and the plea bargain was withdrawn. ^ pleaded guilty w/o an
agreement, and her request for a downward departure in her sentence was denied. The 9th Circuit vacated her sentence,
holding that the obligation to provide impeachment information is the same prior to a plea agreement as it is at trial.
The court held that the right to receive this information could not be waived.

ISSUE: Do the 5th and 6th Amendments require federal prosecutors, before entering into a binding plea agreement w/ a
criminal ^, to disclose impeachment information relating to any informants of other witnesses?

HOLDING: No, reversed.

RULE OF LAW: the Constitution does not require disclosure of impeaching information about witness testimony
before entry of a guilty plea.

REASONING: the constitution does not require disclosure of impeaching information about witness testimony before
entry of a guilty plea. Impeachment Information relates to the fairness of a trial, not whether a plea is voluntary. The
law ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the ^ fully understands the nature of
the right and how it would likely apply in general in the circumstances- even thought the ^ may not know the specific
detailed consequences of invoking it. The usefulness of impeachment information is not critical information required
to ensure someone a fair trial b/c it largely depends on the ^’s misapprehension about various factors, including the
penalties, the quality of the prosecution’s case, and constitutional flaws in the prosecution. Nor do due process
considerations support any right to receive impeachment information. Whether a process is constitutionally required
involves a consideration of:
1.) The nature of the private interest at stake,
 2.) the value of the additional safeguard, and
3.) the adverse impact of the requirement on the interest of the government.
As stated, the value of any pre-plea right to impeachment information would depend on the independent knowledge of
the ^ about the government’s case, and, in any event, even innocence of the ^. At the same time, a constitutional
obligation could interfere w/ the government’s interest in securing factually justified plea agreements and disrupt
ongoing criminal investigations.

Concurrence: Thomas

REQUISITES OF A VALID PLEA

• The Federal Rule of Criminal Procedure 11 requires the judge to

o Inform the ^ and determine that he understands the nature of the charge and the possible penalty and
various rights he is surrendering by pleading guilty
o Determine that the plea is voluntary
o Require disclosure of any plea agreement and accept or reject that agreement
o Make sufficient inquiry to ensure there is a factual basis for the plea.

Boykin v. Alabama

FACTS: ^ was arrested and indicted for five counts of common-law robbery, an offense punishable by death under
state law. B/c ^ was indigent, counsel was appointed. As his arraignment, ^ pleaded guilty to all 5 indictments. A
sentencing trial was thereafter conducted to hear evidence of the character of the offenses. After trial, the jury
sentenced ^ to death on all 5 indictments. At no time did the judge question ^ concerning his plea.

ISSUE: Did ^ voluntarily and knowingly waive his constitutional right to a trail by jury by his guilty plea?

HOLDING: No, Reversed.

RULE OF LAW: A waiver of constitutional rights through a guilty plea must be voluntarily and willingly made.

REASONING: A guilty plea involves the loss of several constitutional rights, including the right to trial by jury, the
right against self-incrimination, and the right to confront one’s accusers. Before a court accepts a guilty plea as a
waiver of those rights, it must be satisfied that the waiver is voluntary and willful. A waiver may not be presumed
from the ^’s silence. Instead, it must be established on the record and in order to evaluate the validity of the waiver on
review and to avoid collateral attacks. B/c the court dialed to question the ^ concerning his plea, his constitutional
rights may not be presumed to have been waived.

Dissent: Harlan

Henderson v. Morgan

FACTS: ^, who was mentally challenged, was charged with first-degree murder. His attorneys advised ^ to accept the
prosecutor’s offer to plea guilty to the lesser charge of second-degree murder. His attorney did not, however, advised
^ that the intent to cause the death of his victim was an element of that offense. When ^ appeared in court to enter his
guilty plea, there was no discussion of the elements of the offense of 2nd degree murder, no indication that the nature of
the offense had ever been discussed w/ him, and no reference of any kind to the requirement of intent to cause the
death of his victim. ^ petitioned for a writ of habeas corpus in federal court, and the court granted the writ b/c the
failure to explain the elements of the pleaded offense rendered the plea involuntary. The court of appeals affirmed

ISSUE: is a guilty plea voluntarily made if the ^ was not informed of the elements of the offense?
HOLDING: No, Affirmed.

RULE OF LAW: a guilty plea is not knowingly and intelligently made, and therefore not voluntarily made, if the ^ did
not receive adequate notice of the offense which he pleaded guilty.

REASONING: a plea of guilty cannot support a judgment of guilty unless it is voluntary in a constitutional sense. A
plea cannot be voluntary in the sense that it constituted a intelligent admission of an offense unless the ^ received real
notice of the true nature of the charge against him or her. ^’s plea of guilty to a second-degree murder was not
voluntary b/c he was not advised by either his attorney or the court that intent to cause the death of his victim was an
element of the offense that he pled guilty to. His plea was not voluntary and cannot support his conviction.

Concurrence: White
Dissent: Rehnquist

North Carolina v. Alford

FACTS: ^ was indicted for 1st degree murder, a crime punishable by death upon conviction by a jury of lie
imprisonment upon a guilty plea. The ^, after hearing the evidence against him, decided to plea guilty to a lesser
charge of 2nd degree murder. At the time ^ entered a plea, he maintained to the court that he was innocent of the
charge. The judge accepted the ^’s plea and sentenced him to prison. ^ argued in federal habeas proceedings that, b/c
he continued to maintain that he did not commit the murder, the judge should not have accepted his guilty plea. The
court denied the writ of habeas corpus, but the court of appeals reversed, finding that the plea was involuntary and
motivated by fear of the death penalty

ISSUE: should the court accept a plea of guilty when the ^ continues to profess his innocence at the time the plea is
entered?

HOLDING: Yes, vacated and remanded.

RULE OF LAW: A court may not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual
basis for the plea.

REASONING: although a ^ professes innocence, a guilty plea may be accepted when there is a factual basis
supporting the charge against the ^. Here, though ^’s plea included a disclaimer of guilt, the evidence demonstrates a
sufficient factual basis to support the plea. The state’s evidence shows that ^ took a gun from his house, stated his
intention to kill the victim, and returned home declaring that he had killed the victim. An express admission of guilt is
not a constitutional prerequisite to the imposition of a criminal penalty, and an individual accused of a crime may
voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling to
admit commission of the crime. There is also no “material difference” between a plea that refuses to admit the
commission of the criminal act and a plea containing a protestation of innocence when a ^ intelligently concludes that
his interest require entry of a guilty plea and that the record before the judge contains strong evidence of actual guilt.

(04-26-07) MANDATORY PRETRIAL NOTICES

Rule 12.3 Notice of Intent to Seek Enhanced Punishment

TCA 39-13-208. Notice of Intent to Seek the Death Penalty or Life Without Parole
First degree murder; life without parole; notice
(a) Written notice that the state intends to seek the death penalty, filed pursuant to Rule 12.3(b) of the Tennessee Rules
of Criminal Procedure, shall constitute notice that the state also intends to seek, as a possible punishment, a sentence of
imprisonment for life without possibility of parole.
(b) Where a capital offense is charged in the indictment or presentment and the district attorney general
intends to ask for the sentence of imprisonment for life without possibility of parole, written notice shall be filed not
less than thirty (30) days prior to trial. If the notice is filed later than this time, the trial judge shall grant the defendant,
upon motion by the defendant, a reasonable continuance of the trial. The notice shall specify that the state intends to
seek the sentence of imprisonment for life without possibility of parole, and the notice shall specify the aggravating
circumstance or circumstances the state intends to rely upon at a sentencing hearing. Specification may be complied
with by a reference to the citation of the circumstance or circumstances. Such notice shall be in writing and filed with
the court and served on counsel.
(c) If notice is not filed pursuant to subsection (a) or (b), the defendant shall be sentenced to imprisonment for
life by the court, if the defendant is found guilty of murder in the first degree.
(d) The defendant and the state of Tennessee may enter into a plea agreement whereby the defendant is
sentenced to imprisonment for life without possibility of parole, pursuant to the provisions of Rule 11 of the Tennessee
Rules of Criminal Procedure.

COMMENTS OF THE TENNESSEE SENTENCING COMMISSION

This section parallels Rule 12.3(b) of the Tennessee Rules of Criminal Procedure, which provides for written
notice that the state intends to seek the death penalty. Subsection (a) provides that written notice of intent to seek the
death penalty also serves as notice of intent to seek the sentence of life without the possibility of parole. Under
subsection (b), written notice of intent to seek the sentence of life without the possibility of parole, with the
aggravating factors on which the state intends to rely, must be filed within thirty (30) days of trial. Failure to file notice
will result in a sentence of life imprisonment, if the defendant is found guilty.

Affirmative Defenses- TCA 39-11-204

State must file notice of these:
1.) Insanity (12.2)
2.) Alibi (12.1)
3.) Entrapment
4.) Claim of right (when one believes that they would be allowed to take the property they took)
5.) Renunciation (only defense to preparatory crimes, soliciting , attempt or conspiracy.

(a) An affirmative defense in this title is so labeled by the phrase: "It is an affirmative defense to prosecution under...,
which must be proven by a preponderance of the evidence, that...," or words of similar import.
(b) The state is not required to negate the existence of an affirmative defense in the charge alleging
commission of the offense.
(c)(1) If a person intends to rely upon an affirmative defense, the person shall, no later than ten (10) days
before trial, notify the district attorney general in writing of the intention, or at such time as the court may direct
naming the affirmative defense(s) to be asserted, and file a copy of the notice with the clerk.
(2) Except as provided in this title, if there is a failure to comply with the provisions of this subsection (c), the
affirmative defense may not be raised; provided, that this shall not limit the right of the person to testify on the person's
own behalf.
(3) The court may, for cause shown, allow late filing of the notice or grant additional time to the parties to
prepare for trial or make other orders as may be appropriate.
(4) Evidence of an intention to raise an affirmative defense, which is later withdrawn, is not admissible in any
civil or criminal proceeding against the person who gave the notice of the intention.
(5) The provisions of this subsection (c) shall only apply in courts of record.
(d) The issue of the existence of an affirmative defense may not be submitted to the jury unless it is fairly raised
by the proof and notice has been provided according to subsection (c).
(e) If the issue of the existence of an affirmative defense is submitted to the jury, the court shall instruct the jury
that the affirmative defense must be established by a preponderance of the evidence.

COMMENTS OF THE TENNESSEE SENTENCING COMMISSION

This section prescribes the form, and the procedural and evidentiary consequences of an affirmative defense. A
defense is an "affirmative defense" only if so designated in the criminal code.
Since the matters at issue in affirmative defenses are peculiarly within the defendant's knowledge, the defendant
has the burden of raising the issue and proving, by a preponderance of evidence, the existence of the affirmative
defense. To ensure that the prosecution is not surprised by the defendant's use of an affirmative defense, subsection (d)
requires the defendant to provide the prosecutors with written notice of the intent to use an affirmative defense. Under
subsection (c), good cause for late filing is intended to include failure of or delays in discovery.

TRCrP Rule 12.1 Alibi

TRCrP Rule 12.2(a) Insanity Defense

TCA 39-11-501
(a) It is an affirmative defense to prosecution that, at the time of the commission of the acts constituting the
offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature or
wrongfulness of the defendant's acts. Mental disease or defect does not otherwise constitute a defense. The defendant
has the burden of proving the defense of insanity by clear and convincing evidence.
(b) As used in this section, mental disease or defect does not include any abnormality manifested only by
repeated criminal or otherwise antisocial conduct.
(c) No expert witness may testify as to whether the defendant was or was not insane as set forth in subsection
(a). Such ultimate issue is a matter for the trier of fact alone.

COMMENTS OF THE TENNESSEE SENTENCING COMMISSION

This section codifies the criteria of criminal insanity or mental responsibility which has been followed in
Tennessee since the ruling in Graham v. State, 547 S.W.2d 531 (Tenn. 1977). The commission explicitly recognizes a
distinction between those defendants who are capable of controlling their conduct and those who are not. The finder of
fact must determine not only whether the defendant suffered from a mental disease or defect but also whether the
defendant's condition rendered him or her incapable of conforming his or her conduct to lawful standards or of
appreciating the wrongfulness of that conduct. Thus, offenders who have the capacity and reason to control their
behavior or appreciate the distinctions between lawful and unlawful conduct are responsible for their criminal acts.
Subsection (b) follows the Graham rule by denying the defense to psychopaths, i.e., those repeat offenders
without other medically discernible symptoms.

TRCRP Rule 12.2(b) Expert Testimony of Defendant’s Mental Condition

Renunciation TCA 39-12-104

It is an affirmative defense to a charge of criminal attempt, solicitation or conspiracy that the person, after committing
the criminal attempt, solicitation or conspiracy, prevented the successful commission of the offense attempted,
solicited or conspired, under circumstances manifesting a complete and voluntary renunciation of the person's criminal
purpose.

COMMENTS OF THE TENNESSEE SENTENCING COMMISSION

This defense applies to charges of criminal attempt, solicitation, and conspiracy. Since this is an affirmative
defense, the defendant has the burden to raise the defense and establish it by a preponderance of the evidence. See §
39-11-204.
This defense applies only to the preparatory offenses of attempt, solicitation, and conspiracy.
The renunciation defense is designed to provide an incentive for offenders to abandon their criminal purpose
before they accomplish their criminal goal. This section provides a defense only when the offender: (1) prevents
successful completion of the ultimate offense; and (2) voluntarily renunciates the criminal purpose.

Claim of Right TCA 39-14-107

It is an affirmative defense to prosecution under §§ 39-14-103, 39-14-104 and 39-14-106 that the person:
(1) Acted under an honest claim of right to the property or service involved;
(2) Acted in the honest belief that the person had the right to obtain or exercise control over the property or
service as the person did; or
(3) Obtained or exercised control over property or service honestly believing that the owner, if present, would
have consented.
COMMENTS OF THE TENNESSEE SENTENCING COMMISSION
The 1990 amendment made this section an affirmative defense to the offenses of theft of property, theft of
services and joyriding.

Chapter 15 Trial by Jury

In TN there is no set # of times that there can be a hung jury.

There is no right to not have a jury trial, there is no right to a plea bargain.

Steps in a trial
1.) Motions in limine, address any issues that can come in trial (pretrial)
2.) Jury selection. You get 15 and each defendant gets 15(death Pen) (8 felony ) (3 misd)
3.) Swear in jury
4.) Judge asks the state to read the charges
5.) State reads the charges
6.) Opening statements to help the jury to understand what they are about to hear.
7.) State then starts calling there witnesses
8.) Jencks material- the verbatim statement of the witness Rule 26.2
9.) Can review this material before cross examine
10.) Cross- can be about anything that is relevant.
11.) Redirect- limited to matters already addressed
12.) Re-cross –“”
13.) At the close of the states proof
14.) Defense can make a motion for dismissal (rarely granted)
15.) Defense proof
16.) Jury instructions
17.) Jury deliberates
18.) Foreman is chosen
19.) Verdict, in TN there is a written verdict form

Duncan v. Louisiana, 391 U.S. 145 (1968).

Appellant was convicted of simple battery, a misdemeanor (punishable by 2 years in jail in LA). Appellant sought jury
trial, which was not granted under LA law for misdemeanors.
HOLDING: 14th Amendment Due Process Clause guarantees right to Jury Trial within the 6th Amendment in
all (non-petty) criminal cases.
Purpose of jury trial: to make judicial or prosecutorial unfairness less likely

Blanton v. City of North Las Vegas, 489 U.S. 538 (1989).

DUI in Nevada at that time carried a maximum sentence of six months and a $1,000 fine.
HOLDING: That crime was not considered "serious" because under the Baldwin rule, a defendant was entitled
to a jury trial when an offense carried a sentence of greater than six months. 18 U.S.C. § 1 set the level of "petty"
offense at anything below a $5,000 fine.

Burch v. Louisiana, 441 U.S. 130 (179).

Issue: whether a nonunanimous six-person jury conviction for a nonpetty offense was constitutional (under 6th and
14th).
Rule: Court held in Williams v. Florida that six person jury is sufficient, but that anything less than that is
inadequate.
HOLDING: Conviction by a non-unanimous six-member jury trial for a non-petty offense does deprive an
accused of his constitutional right to a trial by jury. The effect is a requirement that six-person jury convictions must
be unanimous.

Singer v. United States, 380 U.S. 24 (1965).

Rule 23(a) of the Federal Rules of Criminal Procedure provides:
"Cases required to be tried by jury shall be so tried unless the defendant waived a jury trial in writing with the
approval of the court and the consent of the government."
Defendant was charged with 30 counts of mail fraud. On the opening day of trial, defendant attempted to
waive his right to jury trial. The court was willing, but the prosecution refused. Defendant was convicted on 29
counts.
ISSUE: Whether a defendant in a criminal case has a constitutional right to waive his right to a jury, and have
a judge decide the case instead.
HOLDING: No federally recognized right to a criminal trial before a judge.

Jury Selection

Carter v. Jury Commission, 396 U.S. 320 (1970).

Black citizens of Greene County, Alabama brought class action, alleging discriminatory exclusion of blacks from
grand and petit juries by the jury commission. Complaint sought: (1) a declaration that qualified blacks were
systematically excluded from grand and petit juries; (2) a permanent injunction forbidding the exclusion and requiring
that all eligible blacks be placed on the jury roll; and (3) an order vacating the appointments of the jury commissioners.
District Court found that the commission and the selection pr4ocess had departed from the statutory mandate
in several respects. In practice the system operate exactly opposite of state. Names were personally submitted by the
clerk and commision members, created a small group of selected or recommended names for consideration. Because
these were white people, they either did not know or did not desire to offer black people's names. 1960 census showed
that 3/4 of the county's population was black. Only 7% of the jury roster were black. That trend had gotten only
somwhat better before the time of this case before the US.S.Ct. District Court found that the exclusion of black was
invalid and racially discriminatory.
The appellants too direct appeal to US.S.Ct., arguing that the entire jury selection statute was unconstitutional
because he allowed such discrimination to occur.
HOLDING: District Court affirmed. County jury commission had applied the statute inappropriately, but the
statute itself was devoid of any mention of race, and was not inherently unconstitutional.

Taylor v. Loiuisiana, 419 U.S. 522 (1975).

LA Constitution and Criminal Procedure Code provided that a woman should not be selected for jury service until she
had first file a written declaration of her desire to be selected. Apparently the same rule did not apply to men. Issue of
constitutionality.The impact of that rule was that very few women were on the rosters for eligibilisty.
In this case, no women were on the venire from which the petit jury was selected. Taylor, a male, claimed this
constituted an unfair cross section of the community.
RULE: The selection of a petit jury from a representative cross section of the community is an essential
component of the 6th Amendment Right to a Jury Trial.
HOLDING: A law which systematically eliminated women from jury panels violated the 6th Amendment's
fair cross section requirement.
Note: Court imposed no requirement that petit juries actually chosen must mirror the community and reflect
the various distinctive groups, but merely that the jury pools, panels, or venires from which juries are drawn must not
systematically exclude distinctive groups and prevent reasonable representation.

Turner v. Murray, 476 U.S. 28 (1986).

Petitioner, a black man, was indicted for murder for fatally shooting a white jewelry store owner. Trial judge would
not allowed the jury pool to be questioned about racial prejudice. He was convicted, and sentenced to death. Sought
habeas corpus relief.
HOLDING: A capital defendant accused of an interracial crime is entitled to have prospective jurors informed
of the race of the victim and questioned on the issue of racial bias. Death sentence vacated.
Note: Holding only applies to the capital sentencing proceeding, and does not affect the verdict of his guilt.

Lockhart v. McCree, 476 U.S. 176 (1986).

Issue: Does the Constitution allow the prosecution the right to dismiss prospective jurors for cause who oppose the
death penalty on moral grounds, such that it would prevent or substantially impair them from considering that as a
possible sentence at the sentencing phase of trial?
Defendant was charged with capital felony murder. Trial judge removed at voir dire any prospective jurors
who stated that they could not under any circumstances vote for the death penalty. Jury, as selected, convicted
defendant, and sentenced him to LWOP. Filed habeas corpus petition.
Persons who are excluded on the basis of their moral repugnance of the death penalty are called
"Witherspoon-excludable" jurors.
RULE: Purposes of the fair cross section requirement:
(1) guard against the exercise of arbitrary power, and ensure commonsense judgment of the community will
act as a hedge against the overzealous or mistaken prosecutor,
(2) preserve public confidence in the fairness of the criminal justice system, AND
(3) share the belief that administration of justice is a phase of civic responsibility
HOLDING: "Witherspoon-excludable" jurors are not a distinct group subject to constitutional protections, or entitling
a right to the defendant as a particular cross section of the community. Rather than a racial or gender group, they are a
group that retain a similar attribute that is wholly within their control.
Reasoning: The risk of racial prejudice infecting a capital sentencing proceeding is especially serious. The
qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny.
Nonetheless, "Witherspoon-excludables" serve the State's entirely proper interest in obtaining a single jury that could
impartially decide all of the issues in capital cases.

Batson v. Kentucky, 476 U.S. 79 (1986).

Petitioner, a black man, was indicted on second-degree burglary and receipt of stolen goods. The prosecutor used his
peremptory challenges to strike all four black persons on the venire, and a jury composed of only whites heard the trial.
He was convicted of both counts.
Issue: Whether the removal of the black veniremen violated petitioner's rights under the 6th and 14th to jury
drawn from a cross-section of the community under 14th Amend. equal protection clause.
RULE: In Swain v. Alabama, U.S.S.Ct. recognized that a "State's purposeful or deliberate denial of Negroes on
account of race of participation as jurors in the administration of justice violates the Equal Protection Clause."
This precedent forbids a prosecutor from challenging potential jurors solely on account of their race.
RULE: A Swain violation requires defendant to establish a prima facie case of purposeful discrimination in
selection of the petit jury, solely on evidence of the prosecutor's exercise of peremptory challenges. The requires:
(1) defendant show he is a member of a cognizable racial group, and that the prosecutor has exercised
peremptory challenges to remove from the venire members of the defendant's race,
(2) defendant may rely on the fact that peremptory challenges constitute a jury selection practice that permits
"those to discriminate who are of a mind to discriminate."
(3) defendant show that these facts and any other relevant circumstances raise an inference that the prosecutor
used that practice to exclude the veniremen from the petit jury on account of their race
Ex. of relevant circumstances: -pattern of strikes against black jurors
-prosecutor's questions and statements during voir dire
Once prima facie case is established, burden shifts to the prosecutor to produce a neutral explanation for the
challenges.
HOLDING: The Equal Protection Clause forbids the States to exclude black person from the venire, so it
forbids the States to strike black veniremen on the assumption that they will be biased because the defendant is black.
Conviction reversed.

J.E.B. v. Alabama Ex Rel. T.B., 511 U.S. 127 (1994).

State filed complaint against JEB on behalf of TB, mother of minor child, for paternity and child support. The State
used 9 of its 10 peremptory strikes to remove male jurors. All jurors selected were female. Petitioner objected to
strikes on the sole basis of gender. Court rejected his objection. Jury found petitioner to be the father, and order child
support. The State argued before the U.S.S.Ct. that its decision to strike men from the jury was based on the
perception, supported by history, that men might be more sympathetic to a man, while women might be more
sympathetic to a woman in a child custody case.
 Issue: Whether the Equal Protection Clause forbids peremptory challenges on the basis of gender (as well as
race).
HOLDING: Intentional discrimination on the basis of gender by state actors violates the Equal Protection
Clause, particularly where the discrimination serves to ratify and perpetuate stereotypes about the relative abilities of
men and women.
"We shall not accept as a defense to gender-based peremptory challenges the very stereotype the law
condemns." Such discrimination violates right of litigants, communities, and jurors.
Because gender and race are overlapping categories, gender can be used as a pretext for racial discrimination.

TRCrP Rule 23
(a) Right to Jury Trial. In all criminal prosecutions except for small offenses, the defendant is entitled to a jury
trial unless waived.
(b) Waiver.
(1) Timing. The defendant may waive a jury trial at any time before the jury is sworn.
(2) Procedures. A waiver of jury trial must:
(A) be in writing;
(B) have the consent of the district attorney general; and
(C) have the approval of the court.

Advisory Commission Comment

While the state does not have a constitutional right to a trial by jury, this rule requires the consent of the
district attorney general to any waiver of the defendant's right. The court must also approve the waiver. This rule is
applicable in general sessions court, in the context of a defendant's offer to waive trial by jury.

TRCrP Rule 24 TRIAL JURORS

(a) Initial Actions in Jury Selection.
(1) By Court. The court shall:
(A) cause the prospective jurors to swear or affirm to answer truthfully the questions they will be asked during the
selection process;
(B) identify the parties and their counsel; and
(C) briefly outline the nature of the case.
(2) By Counsel. At or near the beginning of jury selection, the court shall permit counsel to introduce themselves
and make brief, non-argumentative remarks that inform the potential jurors of the general nature of the case.
(b) Questioning Potential Jurors.
(1) Questioning Jurors by Court and Counsel. The court may ask potential jurors appropriate questions regarding
their qualifications to serve as jurors in the case. It shall permit the parties to ask questions for the purpose of
discovering bases for challenge for cause and intelligently exercising peremptory challenges.
(2) Questioning Outside Presence of Other Jurors. On motion of a party or its own initiative, the court may direct
that any portion of the questioning of a prospective juror be conducted out of the presence of the tentatively selected
jurors and other prospective jurors.
(c) Challenges for Cause.
(1) Procedures. After examination of any juror, the judge shall excuse that juror from the trial of the case if the
court is of the opinion that there are grounds for challenge for cause. After the court has tentatively determined that
the jury meets the prescribed qualifications, counsel may conduct further examination and, alternately, may exercise
challenges for cause.
(2) Grounds. Any party may challenge a prospective juror for cause if:
(A) Cause Provided by Law. There exists any ground for challenge for cause provided by law;
(B) Exposure to Information. The prospective juror's exposure to potentially prejudicial information makes the
person unacceptable as a juror. The court shall consider both the degree of exposure and the prospective juror's
testimony as to his or her state of mind. A prospective juror who states that he or she will be unable to overcome
preconceptions is subject to challenge for cause no matter how slight the exposure. If the prospective juror has seen or
heard and remembers information that will be developed in the course of trial, or that may be inadmissible but is not
so prejudicial as to create a substantial risk that his or her judgment will be affected, the prospective juror's
acceptability depends on whether the court believes the testimony as to impartiality. A prospective juror who admits
to having formed an opinion about the case is subject to challenge for cause unless the examination shows
unequivocally that the prospective juror can be impartial.
(d) Exercising Peremptory Challenge. After the court conducts its initial examination and seats a tentative group of
jurors not excluded for cause, the following procedure shall be followed until a full jury has been selected from those
jurors and accepted by counsel:
(1) At each round of peremptory challenges, counsel shall submit simultaneously to the court either a blank sheet of
paper or a sheet of paper challenging one or more jurors in the group of the first twelve (or more if additional jurors
are seated under the single entity process of Rule 24(f)(2)(A)) jurors who have been seated. Neither party shall make
known the fact that the party has not challenged a juror.
(2) Replacement jurors will be seated in the panel of twelve (or more if additional jurors are seated under the single
entity process of Rule 24(f)(2)(A)) in the order of their selection.
(3) If necessary, additional replacement jurors will be examined for cause and, after passed, counsel will again
submit simultaneously, and in writing, the name of any juror in the group of twelve (or more if additional jurors are
seated under the single entity process of Rule 24(f)(2)(A)) that counsel elects to challenge peremptorily. Peremptory
challenges may be directed to any member of the jury; counsel are not limited to using such challenges against
replacement jurors.
(4) Alternate jurors are selected in the same manner, unless the single entity process of Rule 24(f)(2)(A) is used.
(5) The trial judge shall keep a list of those challenged. If the same juror is challenged by both parties, each party is
charged with the challenge. The trial judge shall not disclose to any juror the identity of the party challenging the
juror.
(e) Number of Peremptory Challenges.
(1) Death Penalty. If the offense charged is punishable by death, each defendant is entitled to fifteen peremptory
challenges and the state is entitled to fifteen peremptory challenges for each defendant.
(2) Imprisonment More Than Year. If the offense charged is punishable by imprisonment for more than one year,
each defendant is entitled to eight peremptory challenges and the state is entitled to eight peremptory challenges for
each defendant.
(3) Imprisonment Less Than Year or Fine. If the offense charged is punishable by imprisonment for less than one
year or by fine or both, each side is entitled to three peremptory challenges for each defendant.
(4) Additional Jurors. For each additional juror selected pursuant to Rule 23(f), each side is entitled to one
peremptory challenge for each defendant. Such additional peremptory challenges may be used against any regular or
additional juror.
(f) Additional Jurors. Before jury selection begins, the court may call and impanel one or more jurors in addition to
the regular jury of twelve persons. The following procedures apply:
(1) Same as Regular Jurors. The additional jurors shall be drawn in the same manner, have the same qualifications,
be subject to the same examination and challenges, take the same oath, and have the same functions, powers,
facilities, and privileges as the regular jurors.
(2) Methods of Impaneling Additional Jurors. The trial court may use either of the following methods to select and
impanel additional jurors:
(A) Single Entity. During jury selection and trial of the case, the court shall make no distinction as to which jurors
are additional jurors and which jurors are regular jurors. Before the jury retires to consider its verdict, the court shall
select by lot the names of the requisite number of jurors to reduce the jury to a body of twelve or such other number
as the law provides. A juror who is not selected to be a member of the deliberating jury shall be discharged when that
jury retires to consider its verdict.
(B) Separate Entities. Following the selection of the jury of twelve regular jurors, the additional jurors shall be
selected and impaneled as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors
who become unable or disqualified to perform their duties prior to the time the jury retires to consider its verdict. An
alternate juror who does not replace a regular juror shall be discharged when the jury retires to consider its verdict.
(g) Admonitions. The court shall give the prospective jurors appropriate admonitions regarding their conduct during
the selection process. After jurors are sworn, the court shall also give them appropriate admonitions regarding their
conduct during the case. In both situations these shall include admonitions:
(1) not to communicate with other jurors or anyone else regarding any subject connected with the trial;
(2) not to form or express any opinion about the case until it is finally submitted to the jury;
 (3) to report promptly to the court:
(A) any incident involving an attempt by any person improperly to influence any jury member; or
(B) a juror's violation of any of the court's admonitions;
(4) not to read, hear, or view any news reports concerning the case; and
(5) to decide the case solely on the evidence introduced in the trial.
(h) List of Prospective Jurors. On request, the parties shall be furnished with a list indicating for each member of the
jury panel:
(1) the member's name, address, occupation, spouse's name and occupation; and
(2) whether each member has served previously on a criminal court jury. Information about previous jury
experience need not be provided prior to the day of trial.

Advisory Commission Comment

This rule assures counsel the right to conduct at least part of the voir dire examination of prospective jurors.

A prospective juror who has formed or expressed an opinion as to the merits of the case may still be qualified
to serve, but only upon an unequivocal showing of impartiality. The commission disapproves of questions tending to
lead the prospective juror or suggest partiality in the first instance, and also disapproves of that procedure in
"rehabilitating" the prospective juror into vocalizing impartiality.

Subdivision (d) permits trial judges to seat more than twelve prospective jurors for purposes of voir dire--possibly but
not necessarily a number equal to twelve plus the number of peremptories to each side and the number of alternates
available. All of these persons in the jury "universe" could be questioned at once. Note that if the "separate entities"
procedure of Rule 24(f)(2)(B) is used, challenges are initially made to only the first twelve seated. Note also that under
this procedure "replacement jurors will be seated in the panel of twelve in the order of their selection."
For example, a judge might chose to impanel thirty-two prospects. Each would be assigned a number. If during the
initial round of peremptory challenges jurors number 3 and 6 are excused, juror 13 would replace 3 and juror 14 would
replace 6. By this method lawyers would know who is coming up next.
Subdivision (e) gives the state the same number of challenges as the accused. For example, in most felony trials each
side would have eight strikes. This amendment conforms the rule to T.C.A. § 40-18-118.
Subdivision (f) deletes the earlier limitation on the number of alternate jurors. Now more than four alternates can be
selected, which may be necessary for protracted trials.
Rule 24(a)(2) gives counsel the right to make brief, non-argumentative statements near the beginning of the jury
selection process. These may be made before selection begins or when counsel is first permitted to ask questions of
prospective jurors. During these remarks counsel should introduce themselves and briefly describe the nature of the
case. This process should give jurors a better sense of the participants in the trial and the nature of the responsibility
the jurors may be chosen to undertake.
Rule 24(f)(2)(A) gives the court the option of using a procedure that eliminates the distinction between regular and
alternate jurors. This procedure should facilitate juror attention to the evidence. If the court decides to use extra jurors
in case a regular juror becomes unable to serve, the additional juror is combined with the other jurors for all purposes
during the trial. Thus, if a court decides to use twelve jurors plus two additional jurors, all fourteen jurors are
considered to be the jurors during the entire trial. Under this new rule, before the jury retires to deliberate the court will
randomly deselect the additional jurors, leaving the desired number of jurors, ordinarily twelve. The deselected jurors
are then discharged when the remaining jurors retire to deliberate.
Each side is given one peremptory challenge for each additional juror. Since under this model both regular and
additional jurors are considered as part of a single jury, peremptory challenges may be used against any such juror, a
process commonly known as "backstriking." This procedure provides counsel with considerable flexibility in the
exercise of peremptory challenges.

TRCrP Rule 25 DISABILITY OF JUDGE

(a) During Trial. Any judge regularly presiding in or who is assigned to a court may complete a jury trial if:
(1) the judge before whom a jury trial has commenced is unable to proceed because of death, sickness, or other
disability; and
(2) the judge completing the trial certifies that he or she has become familiar with the record of the trial.
(b) After Verdict of Guilt.
(1) In General. After a verdict of guilty, any judge regularly presiding in or who is assigned to a court may complete
the court's duties if the judge before whom the trial began cannot proceed because of absence, death, sickness, or other
disability.
(2) Granting a New Trial. The successor judge may grant a new trial when that judge concludes that he or she
cannot perform those duties because of the failure to preside at the trial or for any other reason.

TRCrP Rule 26

RULE 26.2 PRODUCTION OF STATEMENTS OF WITNESSES

(a) Motion for Production. After a witness other than the defendant has testified on direct examination, the court,
on motion of a party who did not call the witness, shall order the attorney for the state or the defendant and the
defendant's attorney to produce, for the examination and use of the moving party, any statement of the witness that is
in their possession and that relates to the subject matter of the witness's testimony.
(b) Production of Statement.
(1) Entire Statement. If the entire statement relates to the subject matter of the witness's testimony, the court shall
order that the statement be delivered to the moving party.
(2) Redacted Statement.
(A) Delivery to Court. If the other party claims that the statement contains matter that does not relate to the
subject matter of the witness's testimony, the court shall order that it be delivered to the court in camera.
(B) Redaction of Unrelated Portions. Upon inspection, the court shall redact the portions of the statement that do
not relate to the subject matter of the witness's testimony. The remaining parts of the statement shall be delivered to
the moving party. Any portion of the statement that is withheld from the defendant over the defendant's objection
must be preserved by the attorney for the state. In the event of a conviction and an appeal by the defendant, this
preserved portion shall be made available to the appellate court for the purpose of determining the correctness of the
decision to excise the portion of the statement.
(c) Recess for Examination of Statement. The court may recess the proceedings to allow time for a party to
examine the statement and prepare for its use.
(d) Sanction for Failure to Produce Statement. If the party who called the witness disobeys an order to deliver a
statement, the court shall strike the witness's testimony from the record and order the trial to proceed. If the attorney
for the state disobeys the order, the court shall declare a mistrial if required in the interest of justice.
(e) Production of Statements at Pretrial Hearing. Except as otherwise provided by law, this rule shall apply at a
motion hearing under Rule 12(b).
(f) Definition of "Statement." As used in this rule, a witness's "statement" means:
(1) A written statement that the witness makes and signs, or otherwise adopts or approves; or
(2) A substantially verbatim, contemporaneously recorded recital of the witness's oral statement that is contained in
a stenographic, mechanical, electrical, or other recording or a transcription of such a statement.

Advisory Commission Comment

The language of Rule 26.2 is similar to the language in Rule 26.2 of the Federal Rules of Criminal Procedure. There
are, however, two differences that deserve comment.
First, the Committee deliberately did not incorporate that provision of subdivision (e)(3) of the federal Jenck's Act, 18
U.S.C. § 3500, which applies to statements of witnesses before a grand jury, and such statements are not meant to be
obtainable simply because a grand jury witness testifies for the state. Such statements may only be obtained under the
limited provisions of existing law now contained in Rule 6(k)(2).
Second, Rule 26.2(e) now makes it clear that this rule applies not only to trial situations, but also to pretrial testimony
such as might be given at a suppression hearing. There would be little logic in requiring statement production only at
trial, and not at pretrial hearings where testimony as to the facts of the case is being given under oath. This provision is
similar to language found in Rule 12(i) of the Federal Rules of Criminal Procedure, but the Tennessee rules
commission elected to treat all witness statements in one rule. However, the Tennessee rule applies to all pretrial
motions under Rule 12(b). Further, the Federal rule treats law enforcement officials as witnesses called by the state,
but the commission elected not to adopt this provision. Obviously, Rule 26.2(b) applies to such pretrial motion
hearings. Thus, only part of a witness' statement may be relevant to the hearing. The remainder may then be disclosed
at trial under the provisions of Rule 26.2(a).
The commission desires to make clear that this entire rule in no way applies to a preliminary hearing or any other
hearing conducted in general sessions court. Rather, Rule 26.2 applies only in criminal court.

RULE 26.3 ORDER OF EXPERT TESTIMONY

In a trial involving conflicting expert testimony and with the consent of all parties, the court may reorder the
ordinary proof process to increase the likelihood that jurors will be able to comprehend and evaluate expert
testimony.

Advisory Commission Comment

This rule is designed to assist jurors in understanding conflicting expert testimony by providing judges and lawyers
with considerable flexibility in the scheduling and mode of that testimony. There are many possible methods that can
be used pursuant to this rule. On rare occasions, it may be helpful if expert testimony on the same subject be given in
the same block of time rather than separated by days or weeks and given during each party's proof process. For
example, in a criminal homicide case where both sides will present expert testimony on causation, jurors may benefit if
the prosecution's causation experts testify, followed immediately by the defendant's causation experts. This procedure
may give the jurors a better way of resolving the critical issue of causation. Because of the tactical, financial,
scheduling, and procedural issues raised by this new procedure, it can only be utilized with the consent of the court and
all parties.

TRCrP Rule 28 INTERPRETERS

The court may appoint an interpreter pursuant to section 3 of Tennessee Supreme Court Rule 42. Reasonable costs
associated with an interpreter's services may be assessed against the indigent defense fund pursuant to Tennessee
Supreme Court Rule 13 if the party is indigent and is involved in a proceeding in which he or she has a statutory or
constitutional right to appointed counsel. In all other proceedings the court may fix the reasonable compensation of
an interpreter, and such compensation shall be taxed as costs.

Advisory Commission Comment for 2006 Amendment

This revised rule distinguishes between indigent and other litigants. It also cross-references the procedure judges
should follow in selecting interpreters pursuant to Supreme Court Rule 42.

TRCrP Rule 29 MOTION FOR JUDGMENT OF ACQUITTAL

(a) Directed Verdict Abolished. Motions for directed verdict are abolished and are replaced by motions for
judgment of acquittal.
(b) Grounds for Judgment of Acquittal. On defendant's motion or its own initiative, the court shall order the entry
of judgment of acquittal of one or more offenses charged in the indictment, presentment, or information after the
evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.
(c) Proof After Denial of Motion. If--at the close of the state's proof--the court denies a defendant's motion for
judgment of acquittal, the defendant may offer evidence without having reserved the right to do so.
(d) Reserving Decision on Motion at Close of Evidence. If a motion for judgment of acquittal is made at the close
of all the evidence, the court may reserve decision on the motion, submit the case to the jury, and decide the motion:
(1) before the jury returns a verdict;
(2) after it returns a verdict of guilty; or
(3) after it is discharged without having returned a verdict.
(e) Motion After Guilty Verdict or Discharge of Jury.
 (1) Timing of Motion. If the jury returns a verdict of guilty, a defendant may move for a judgment of acquittal, or
renew such a motion, within 30 days of the date the order of sentence is entered or within such further time as the
court sets during the 30-day period. If the jury is discharged without having returned a verdict, the 30-day period
begins to run from the date the jury is discharged.
(2) Setting Aside Guilty Verdict. If the defendant moves for a judgment of acquittal after the jury returns a verdict
of guilty, the court may set aside the guilty verdict, dispose of a motion for new trial, and grant the judgment of
acquittal. The state may appeal when the court sets aside a verdict of guilty and enters a judgment of acquittal.

Advisory Commission Comment

Thirty days are allowed after the date the order of sentence is entered within which to move for a judgment of
acquittal. This time period was selected to conform to that allowed for filing a motion for a new trial, and it is
permissible to file the two together; indeed, the commission anticipates that this will be the case. The same time
period of thirty days applies to motions for judgment of acquittal, motions for new trials, and motions in arrest of
judgment. They may be filed in any order or together, without any waiver, but all must come within the thirty days
after the date the order of sentence is entered.

RULE 29.1. CLOSING ARGUMENT

(a) State's First Closing Argument; Waiver.
(1) State's First Closing Argument. At the close of the evidence, the state has the right to make the first closing
argument to the trier of facts.
(2) Waiver. If the state desires that all closing argument be waived, it may offer to waive such argument. If the
defendant agrees, then no argument will be made. The state may not waive the first closing argument unless all
closing argument is waived.
(3) Scope of State's Opening Argument. The state's first closing argument shall cover the entire scope of the state's
theory.
(b) Defendant's Closing Argument; Waiver
(1) Defendant Argues after State. Each defendant shall be allowed to make a closing argument following the state's
first closing argument. If the defendant waives this closing argument, the state is not permitted to make a final
closing argument.
(2) Scope of Defendant's Argument. Defendant's closing argument may address any relevant and proper subject and
is not limited to matters actually argued by the state.
(c) State's Final Closing Argument.
(1) State's Final Closing Argument. The state shall be allowed a final closing argument following the defendant's
closing arguments, unless the defendant has waived closing argument or the state has waived all argument or its final
argument.
(2) Scope of State's Final Closing Argument. The state's final closing argument is limited to the subject matter
covered in the state's first closing argument and the defendant's intervening argument.
(d) Court's Discretion to Control Closing Arguments.
(1) Discretion to Regulate Arguments. The court has discretion to set:
(A) the number of closing arguments permitted on behalf of the state beyond the first and final closing arguments;
(B) the number of closing arguments in excess of one permitted each defendant; and
(C) the order and length of closing arguments.
(2) Policies. The court shall allow adequate but not excessive time for closing arguments to make a full
presentation of the theory of the case. If more than two arguments are made for the state, the court shall ensure that
no defendant is deprived of the opportunity to answer a new argument made by the state against that defendant. It is
the purpose of this rule to ensure that all argument be waived only with the consent of both sides; that the defendant
shall be permitted to waive all remaining argument after the state's first closing argument; and that while the state,
having the burden of proof, has the right to open and close the argument, this right shall not be exercised in such way
as to deprive the defendant of the opportunity to fully answer all state argument. The court, on motion, shall enforce
this purpose.

Advisory Commission Comment

This rule reflects the generally-followed philosophy of controlling summation in this state. However, the commission
is aware of variances in local practice and therefore deems it necessary to spell out both the philosophy and the
mechanics in order to assure fairness and uniformity of procedure.

RULE 29.2 INTERIM COMMENTARY

During the course of the trial, the court may permit counsel to address the jury to assist jurors in understanding the
evidence that has been presented or will be presented. The trial court may place reasonable time limits on such
statements and shall permit all counsel to respond to the remarks of any one lawyer.

Advisory Commission Comment

This rule gives the court the discretion to allow counsel to speak directly to the jury during the trial in order to assist
the jurors in understanding the context of the evidence. For example, the court may allow counsel to make a short
explanation of what legal issue the next two witnesses will address. The court is given the discretion to place time
and content limits on these statements, but each counsel must be given a chance to respond to the interim
commentary of any lawyer.

TRCrP Rule 30 INSTRUCTIONS

(a) Special Requests.
(1) Filing Request. At the close of the evidence or at such earlier time during the trial as the court reasonably
directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The
court may also entertain requests for instructions at any time before the jury retires to consider its verdict.
(2) Copy to Adversary Counsel. Counsel requesting a jury instruction shall furnish a copy to adversary counsel at
the same time the request is filed with the court.
(3) Decision on Request. Prior to counsels' closing jury arguments, the court shall inform counsel of its proposed
action on:
(A) the requests for jury instructions; and
(B) any other portion of the instructions concerning which inquiries are made.
(b) Objections to Instructions. After the court instructs the jury, the parties shall be given an opportunity to object--
out of hearing of the jury--to the content of an instruction that was given or to the failure to give a requested
instruction. Counsel's failure to object does not prejudice the right of a party to assign the basis of the objection as
error in a motion for a new trial.
(c) Form, Use, and Disposition of Instructions. In the trial of all felonies--except where pleas of guilty have been
entered--every word of the judge's instructions shall be reduced to writing before being given to the jury. The written
charge shall be read to the jury and taken to the jury room by the jury when it retires to deliberate. The jury shall
have possession of the written charge during its deliberations. After the jury's deliberations have concluded, the
written charge shall be returned to the judge and filed with the record, but it need not be copied in the minutes.
(d) Timing of Jury Instructions.
(1) At beginning of trial. Immediately after the jury is sworn, the court shall instruct the jury concerning its duties,
its conduct, the order of proceedings, the general nature of the case, and the elementary legal principles that will
govern the proceeding.
(2) Before and After Closing Argument. The court may instruct the jury on the applicable law before or after
closing argument. After closing argument the court may repeat all or part of the instructions that were given before
closing argument. The court may also give additional instructions concerning organizational and related matters after
closing argument.
Advisory Commission Comment

This rule generally assures that counsel will know what the charge will contain before making the summation
argument to the jury.
The requirement that a written charge be used in felony cases, which must be taken by the jury to the jury room,
returned to the judge, and filed with the other papers, reiterates present law.
Rule 30(d) deals with the timing of jury instructions.
Rule 30(d)(1) requires the court to give basic instructions on procedures and law at the beginning of the trial. This
requirement should better enable jurors to understand the evidence and apply the proof to the applicable law. With
this background, jurors will be able to put the proof in the context of the legal rules involved in the dispute.
Rule 30(d)(2) provides the court the option of giving the bulk of the final jury instructions before closing argument.
This procedure may improve the utility of counsel's closing argument by enabling the lawyers to make specific
reference to the law at issue in the case. This option should greatly assist jurors in their efforts to apply the facts to
the law. If such instructions are given before closing argument, the court should provide additional housekeeping
instructions after that argument. The court may also repeat some of the substantive instructions already given before
the closing argument.

Burden of Proof

TCA 39-11-201
(a) No person may be convicted of an offense unless each of the following is proven beyond a reasonable doubt:
(1) The conduct, circumstances surrounding the conduct, or a result of the conduct described in the definition of the
offense;
(2) The culpable mental state required;
(3) The negation of any defense to an offense defined in this title if admissible evidence is introduced supporting the
defense; and
(4) The offense was committed prior to the return of the formal charge.
(b) In the absence of the proof required by subsection (a), the innocence of the person is presumed.
(c) A person charged with an offense has no burden to prove innocence.
(d) Evidence produced at trial, whether presented on direct or cross-examination of state or defense witnesses, may
be utilized by either party.
(e) No person may be convicted of an offense unless venue is proven by a preponderance of the evidence.
(f) If the issue is raised in defense, no person shall be convicted of an offense unless jurisdiction and the
commission of the offense within the time period specified in title 40, chapter 2 are proven by a preponderance of the
evidence.

COMMENTS OF THE TENNESSEE SENTENCING COMMISSION

Under subsection (e), proof of venue by a preponderance of the evidence is required in every case. Subsection (f)
states that jurisdiction and time limitations need be proven only in cases where those issues are raised by the defendant.
Once these issues are raised, the state must prove proper jurisdiction and timely prosecution by a preponderance of the
evidence.

Requirement of Culpable Mental State

TCA 39-11-301 Mental state
(a)(1) A person commits an offense who acts intentionally, knowingly, recklessly or with criminal negligence, as the
definition of the offense requires, with respect to each element of the offense.
(2) When the law provides that criminal negligence suffices to establish an element of an offense, that element is also
established if a person acts intentionally, knowingly or recklessly. When recklessness suffices to establish an element,
that element is also established if a person acts intentionally or knowingly. When acting knowingly suffices to
establish an element, that element is also established if a person acts intentionally.
(b) A culpable mental state is required within this title unless the definition of an offense plainly dispenses with a
mental element.
(c) If the definition of an offense within this title does not plainly dispense with a mental element, intent, knowledge or
recklessness suffices to establish the culpable mental state.
COMMENTS OF THE TENNESSEE SENTENCING COMMISSION

Subsection (a) reduces the number of mental elements to four. Section 39-11-302 defines each of the four. The former
confusing distinction between general and specific intent has been abandoned.
The four mental elements are in a hierarchy. While each of the four elements is unique, subdivision (a)(2) provides that
lesser levels of culpability are included in greater levels. For example, a person who acts "intentionally" also acts
knowingly, recklessly and with criminal negligence.
Subsection (b) creates a presumption that at least one of the four mental states is required for offenses within the
criminal code
An intent to punish without the requirement of a culpable mental state must be clear from the language of the statute
creating the offense
Under subsection (c), offenses within this title which are silent regarding whether a culpable mental state is required
will be presumed to require at least recklessness. The better reasoned cases from other jurisdictions have reached this
result in interpreting common law authorities.

(5-3-07) VERDICT, JUDGEMENT, SENTENCING, and APPEAL

Probation is available for any person with a sentence of 10 years or less.
-serious crimes do not get probation
-no class A felony will get probation
-if you use a gun in your robbery then you are not eligible for probation
Conditions of probation
-Rules
Community Corrections sentence can be increased upon revocation
-Probation can not
Split Confinement
- cant exceed one year confinement then street
Pre-Trial Diversion (40-15-105)
-PUTTING THE CASE IN LIMBO for up to 2 years
-never DUI/ vehicular crime
-the charge will be expunged if you are successful
-not successful case starts back at the beginning
Post-Trial (Judicial Diversion 40-35-313)
-never DUI/ vehicular crime
-the charge will be expunged if you are successful
-plea Guilty but the judge withholds disposition

RULE 31. VERDICT:

(a) Unanimity. The jury's verdict shall be unanimous.
(b) Return in Open Court. The jury shall return the verdict to the judge in open court.
(c) Multiple Defendants. If there are multiple defendants, the jury may return a verdict at any time during its
deliberations as to any defendant about whom it has agreed. If the jury cannot agree on all defendants, the state may try
again any defendant on whom the jury was not in agreement.
(d) Conviction of Lesser Offense.
(1) Definition of Lesser Included Offense. The defendant may be found guilty of:
(A) an offense necessarily included in the offense charged; or
(B) an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an
offense.
(2) Procedures When No Unanimous Verdict. If the court instructs the jury on one or more lesser included offenses and
the jury reports that it cannot unanimously agree on a verdict, the court shall address the foreperson and inquire
whether there is disagreement as to the charged offense and each lesser offense on which the jury was instructed. The
following procedures apply:
(A) The court shall begin with the charged offense and, in descending order, inquire as to each lesser offense until the
court determines at what level of the offense the jury has disagreed;
(B) The court shall then inquire if the jury has unanimously voted not guilty to the charged offense.
(i) If so, at the request of either party, the court shall poll the jury as to their verdict on the charged offense.
(ii) If it is determined that the jury found the defendant not guilty of the charged offense, the court shall enter a not
guilty verdict for the charged offense.
(C) The court shall then inquire if the jury unanimously voted not guilty as to the next, lesser instructed offense.
(i) If so, at the request of either party the court shall poll the jury as to their verdict on this offense.
(ii) If it is determined that the jury found the defendant not guilty of the lesser offense, the court shall enter a not guilty
verdict for that offense.
(D) The court shall continue this inquiry for each lesser instructed offense in descending order until the inquiry comes
to the level of the offense on which the jury disagreed.
(E) The court may then declare a mistrial as to that lesser offense, or the court may direct the jury to deliberate further
as to that lesser offense as well as any remaining offenses originally instructed to the jury.
(e) Poll of Jury. After a verdict is returned but before the verdict is recorded, the court shall--on a party's request or on
the court's own initiative--poll the jurors individually. If the poll indicates that there is not unanimous concurrence in
the verdict, the court may discharge the jury or direct the jury to retire for further deliberations.

RULE 32. SENTENCE AND JUDGMENT

(a) Sentence for Offense Committed Before July 1, 1982. Upon a verdict or plea of guilty, sentence shall be set as
provided by law. In any case wherein an appeal lies, and the law permits a suspended sentence, if the defendant desires
to petition for a suspended sentence, the defendant may do so within five (5) days after the overruling of his or her
motion for a new trial or motion in arrest of judgment, whichever comes last. A record shall be made of the hearing
upon the petition. The filing of the petition is no waiver of the right of appeal, whether the petition be granted or not.
The judgment of the trial judge upon the petition is reviewable upon appeal by either the defendant or the state. A
petition for a suspended sentence may not be filed after appeal. The trial judge shall hear all petitions for suspended
sentences which have already been filed before the notice of appeal, and, in those cases wherein a notice of appeal of
the convictions is filed before a petition for a suspended sentence is filed, the trial judge shall hold a hearing upon the
petition within the time previously allowed for the filing of the transcript so as to make possible the inclusion in the
transcript upon the petition for a suspended sentence.
(b) Sentence for Offense Committed On or After July 1, 1982. After a verdict or plea of guilty, the court shall set
the sentence except as to habitual criminal charges or capital cases where notice has previously been given. When the
court imposes sentence, the sentence shall be fixed as provided by law.
(c) Concurrent or Consecutive Sentences.
(1) Multiple Sentences from One Trial. If the defendant pleads guilty or is convicted in one trial of more than one
offense, the trial judge shall determine whether the sentences will be served concurrently or consecutively. The order
shall specify the reasons for this decision and is reviewable on appeal. Unless it affirmatively appears that the
sentences are consecutive, they are deemed to be concurrent.
(2) Prior Sentence Not Fully Served.
(A) Prior Tennessee Sentence.
(i) Prior Tennessee Sentence Known. If the defendant has additional sentences not yet fully served as the result of
convictions in the same court or in other courts of Tennessee and if this fact is made known to the court prior to
sentencing, the court shall recite this fact in the judgment setting sentence, and the sentence imposed is deemed to be
concurrent with the prior sentence or sentences, unless it affirmatively appears that the new sentence being imposed is
to be served consecutively to the prior sentence or sentences. The judgment to make the sentences consecutive or
concurrent shall explicitly relate the judge's reasons and is reviewable on appeal.
(ii) Prior Tennessee Sentence Unknown. When prior unserved Tennessee sentences are not called to the attention of
the trial judge by or on behalf of the defendant at the time of sentencing and are not included in the judgment setting
the new sentence, the new sentence is deemed to be consecutive to any such undisclosed prior unserved sentence or
sentences.
(iii) Parole Revocation. The new sentence is consecutive when the defendant is convicted of a misdemeanor while on
parole from an undisclosed prior sentence, and the parole is subsequently revoked.
(B) Prior Non-Tennessee Sentence. If, as the result of conviction in another state or in federal court, the defendant has
any additional sentence or portion thereof to serve, the court shall impose a sentence that is consecutive to any such
unserved sentence unless the court determines in the exercise of its discretion that good cause exists to run the
sentences concurrently and explicitly so orders.
(3) Mandatory Consecutive Sentences. When a defendant is convicted of multiple offenses from one trial or when the
defendant has additional sentences not yet fully served as the result of convictions in the same or other courts and the
law requires consecutive sentences, the sentence shall be consecutive whether the judgment explicitly so orders or not.
This rule shall apply:
(A) to a sentence for a felony committed while on parole for a felony;
(B) to a sentence for escape or for a felony committed while on escape;
(C) to a sentence for a felony committed while the defendant was released on bail and the defendant is convicted of
both offenses; and
(D) for any other ground provided by law.
(d) Release After Conviction, Pending Further Proceedings.
(1) Misdemeanor. A person convicted of a misdemeanor has a right to have bail set or to be released on recognizance
pending the exhaustion of all direct appellate procedure in the case.
(2) Felony.
(A) Application Before Appeal Pending. When the law permits release on bail or recognizance after return of a guilty
verdict for a felony, the trial judge may order such release pending further proceedings in a trial court or on direct
appeal. If in a felony case the trial judge refuses to release the defendant who has applied for release, the trial judge
shall enter in the minutes the reasons for the ruling. This decision is reviewable.
(B) Application When Appeal Pending. After the case is pending in an appellate court, the defendant may apply for
release either to the trial court where the conviction was entered or to the appellate court where the appeal is pending.
(e) Judgment.
(1) Signed and Entered. A judgment of conviction shall be signed by the judge and entered by the clerk.
(2) Content of Judgment of Conviction. A judgment of conviction shall include:
(A) the plea;
(B) the verdict or findings; and
(C) the adjudication and sentence.
(3) Judgment of Not Guilty or Discharge. If the defendant is found not guilty or for any other reason is entitled to be
discharged, the court shall enter judgment accordingly.
(f) Withdrawal of Guilty Plea.
(1) Before Sentence Imposed. Before sentence is imposed, the court may grant a motion to withdraw a guilty plea for
any fair and just reason.
(2) After Sentence But Before Judgment Final. After sentence is imposed but before the judgment becomes final, the
court may set aside the judgment of conviction and permit the defendant to withdraw the plea to correct manifest
injustice.
(g) Revocation of Probation. The court may revoke probation only after a hearing conducted according to law. The
losing party may appeal the judgment resulting from this hearing. The defendant may be released pursuant to
applicable law pending such hearing and/or such appeal.

RULE 33. NEW TRIAL

(a) Motion for a New Trial. On its own initiative or on motion of a defendant, the court may grant a new trial as
required by law. If trial was by the court without a jury, the court on motion of a defendant for new trial may vacate the
judgment if entered, take additional testimony, and direct the entry of a new judgment.
(b) Time for Motion; Amendments. A motion for a new trial shall be in writing or, if made orally in open court, be
reduced to writing, within thirty days of the date the order of sentence is entered. The court shall liberally grant
motions to amend the motion for new trial until the day of the hearing on the motion for a new trial.
(c) Procedures.
(1) Testimony. The court may allow testimony in open court on issues raised in the motion for a new trial.
(2) Affidavits.
(A) Affidavits in Support of Motion. Affidavits in support of a motion for a new trial may be filed with the motion or
an amended motion. The court shall consider any such affidavits as evidence.
(B) Opposing Affidavits. The state shall have ten days after the filing of affidavits within which to file opposing
affidavits. This period may be extended for not more than an additional twenty days by the court for good cause or by
the parties' written stipulation. The court shall also consider opposing affidavits as evidence.
(C) Reply Affidavits. The court may permit reply affidavits.
(3) Findings and Conclusions. In ruling on the motion for a new trial, the court--on motion by either party--shall make
and state in the record findings of fact and conclusions of law to explain its ruling on any issue not determined by the
jury.
(d) New Trial Where Verdict Is Against the Weight of the Evidence. The trial court may grant a new trial
following a verdict of guilty if it disagrees with the jury about the weight of the evidence. Upon request of either party,
the new trial shall be conducted by a different judge.
(e) Motion in Arrest of Judgment Not Waived. A motion for a new trial is not a waiver of the right to make a motion
in arrest of judgment.

RULE 34. ARREST OF JUDGMENT

(a) Grounds. The court on motion of a defendant shall arrest judgment if:
(1) the indictment, presentment or information does not charge an offense; or
(2) the court was without jurisdiction of the charged offense.
(b) Procedures. The motion to arrest judgment may be made orally in open court, but it shall be reduced to writing
and filed within thirty days of the date the order of sentence is entered.
(c) Motion for New Trial Not Waived. A motion to arrest judgment is not a waiver of the right to make a motion for
a new trial.

RULE 35. REDUCTION OF SENTENCE

(a) Timing of Motion. The trial court may reduce a sentence upon motion filed within 120 days after the date the
sentence is imposed or probation is revoked. No extensions shall be allowed on the time limitation. No other actions
toll the running of this time limitation.
(b) Limits of Sentence Modification. The court may reduce a sentence only to one the court could have originally
imposed.
(c) Hearing Unnecessary. The trial court may deny a motion for reduction of sentence under this rule without a
hearing.
(d) Appeal. The defendant may appeal the denial of a motion for reduction of sentence but shall not be entitled to
release on bond unless already under bond. If the court modifies the sentence, the state may appeal as otherwise
provided by law.

RULE 36. CLERICAL MISTAKES

After giving any notice it considers appropriate, the court may at any time correct clerical mistakes in judgments,
orders, or other parts of the record, and errors in the record arising from oversight or omission.

RULE 37. APPEAL

(a) Definition of an Appeal. An "appeal" refers to direct appellate review available as a matter of right, appeals in the
nature of writs of error, and all other direct appeals in criminal cases.
(b) When an Appeal Lies. The defendant or the state may appeal any order or judgment in a criminal proceeding
when the law provides for such appeal. The defendant may appeal from any judgment of conviction:
(1) on a plea of not guilty; or
(2) on a plea of guilty or nolo contendere, if:
(A) the defendant entered into a plea agreement under Rule 11(a)(3) but explicitly reserved--with the consent of the
state and of the court--the right to appeal a certified question of law that is dispositive of the case, and the following
requirements are met:
(i) the judgment of conviction or other document to which such judgment refers that is filed before the notice of
appeal, contains a statement of the certified question of law that the defendant reserved for appellate review;
(ii) the question of law is stated in the judgment or document so as to identify clearly the scope and limits of the legal
issue reserved;
(iii) the judgment or document reflects that the certified question was expressly reserved with the consent of the state
and the trial court; and
(iv) the judgment or document reflects that the defendant, the state, and the trial court are of the opinion that the
certified question is dispositive of the case; or
(B) the defendant seeks review of the sentence and there was no plea agreement under Rule 11(c); or
(C) the errors complained of were not waived as a matter of law by the guilty or nolo contendere plea, or otherwise
waived, and if such errors are apparent from the record of the earlier proceedings; or
(D) the defendant--with the consent of the court--explicitly reserved the right to appeal a certified question of law that
is dispositive of the case, and the requirements of Rule 37(b)(2) are met, except the judgment or document need not
reflect the state's consent to the appeal or the state's opinion that the question is dispositive.
(c) Procedure for Advising Defendant of Appellate Rights. After overruling a motion for a new trial or a motion in
arrest of judgment, whichever comes last, the trial judge shall do the following:
(1) Advise of Right to Appeal. Advise the defendant of the right to appeal; and
(2) Determine Indigency; Ensure Counsel. Determine--from evidence or stipulation--for the record whether the
defendant is indigent. If the defendant is indigent, the court shall advise the defendant that, if he or she has not already
retained appellate counsel or if counsel has not previously been appointed, the court will appoint appellate counsel and
that a transcript or statement of the evidence will be furnished at state expense.
(d) Pursuing or Waiving an Appeal. Before the judgment on the guilty verdict becomes final, the following shall be
done:
(1) Seeking Appeal. If an appeal is sought, the defendant in person or by counsel shall file a timely notice of appeal
with the clerk in accordance with Rule 4(a), Tennessee Rules of Appellate Procedure; or
(2) Waiving Appeal. If an indigent or nonindigent defendant who has the right to appeal a conviction chooses to waive
the appeal, counsel for the defendant shall file with the clerk, during the time within which the notice of appeal could
have been filed, a written waiver of appeal, which must:
(A) clearly reflect that the defendant is aware of the right to appeal and voluntarily waives it; and
(B) be signed by the defendant and the defendant's counsel of record.
(e) Duties of Counsel Regarding Appeal.
(1) Counsel Retained for Trial But Not Appeal. An attorney retained by the defendant to represent the defendant for the
trial but not for appeal, shall timely advise the trial court of this fact at the hearing on the motion for a new trial.
Thereupon, such counsel will be permitted to withdraw as counsel of record, except as provided in Rule 37(e)(2).
(A) Appellate Counsel for Non-Indigent Defendant. If the defendant is not indigent at the time counsel is permitted to
withdraw, the court shall advise the defendant of the right of appeal and the time for filing the notice of appeal.
(B) Appellate Counsel for Indigent Defendant. If the defendant is indigent at the time counsel is permitted to withdraw,
the court shall appoint appellate counsel for the defendant.
(2) Retained Counsel Filing Notice of Appeal. Retained counsel--whether or not fully paid--who files a notice of
appeal shall represent the defendant on appeal. Such retained counsel shall fully comply with all appellate rules as to
timely filing and appearances. Retained counsel shall be allowed to withdraw as counsel of record only for good cause
and only if application is made when not delinquent in his or her duties.
(3) Appointed Counsel for Indigent Defendant. Pursuant to Tenn. Sup. Ct. Rule 13, § 1(e)(5), counsel appointed in the
trial court to represent an indigent defendant shall continue to represent the defendant throughout the proceedings,
including any appeals, until the case has been concluded or counsel has been allowed to withdraw by a court.

SENTENCE RANGES
RELEASE ELIGIBILITY DATES
_________________________________________________________________________
FELONY MITIGATED STANDARD MULTIPLE PERSISTENT CAREER
CLASS RANGE I RANGE II RANGE III
_________________________________________________________________________
A
15-60 YRS (13.5 years) (15-25 years) (25-40 years) (40-60 years) (60 years)

RED % (20%) (30%) (35%) (45%) (60%)

RED YRS (2.7 years) (4.5-7.5 yrs) (8.8-14 yrs) (18-27 yrs) (36 years)
_________________________________________________________________________
B
8-30 YRS (7.2 years) (8-12 years) (12-20 years) (20-30 years) (30 years)
RED % (20%) (30%) (35%) (45%) (60%)
RED YRS (1.4 years) (2.4-3.6 yrs) (4.2-7 yrs) (9-13.5 yrs) (18 years)
__________________________________________________________________________
C
3-15 YRS (2.7 years) (3-6 years) (6-10 years) (10-15 years) (15 years)
RED % (20%) (30%) (35%) (45%) (60%)
RED YRS (.5 years) (.9-1.8 yrs) (2.1-3.5 yrs) (4.5-6.8 yrs) (9 years)
__________________________________________________________________________
D
2-12 YRS (1.8 years) (2-4 years) (4-8 years) (8-12 years) (12 years)
RED % (20%) (30%) (35%) (45%) (60%)
RED YRS (.4 years) (.6-1.2 yrs) (1.4-2.8 yrs) (3.6-5.4 yrs) (7.2 yrs)
__________________________________________________________________________
E
1-6 yrs (.9 years) (1-2 years) (2-4 years) (4-6 years) (6 years)
RED % (20%) (30%) (35%) (45%) (60%)
RED YRS (.2 years) (.3-.6 yrs) (.7-1.4 yrs) (1.8-2.7 yrs) (3.6 yrs)
__________________________________________________________________________

-Property committed w/ in 24 hrs count as one crime

-Violent crimes count separate
-Can plea outside your range

40-35-102. Purpose and intent

(1) Every defendant shall be punished by the imposition of a sentence justly deserved in relation to the seriousness of
the offense;
(2) 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;
(3) Punishment shall be imposed to prevent crime and promote respect for the law by:(A) Providing an effective
general deterrent to those likely to violate the criminal laws of this state;(B) Restraining defendants with a lengthy
history of criminal conduct;(C) 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(D) Encouraging restitution to victims where appropriate; (4) Sentencing should exclude all considerations
respecting race, gender, creed, religion, national origin and social status of the individual;
(5) 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
(6) 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. A court shall consider, but is not bound by, this advisory
sentencing guideline.

40-35-103. Principles
To implement the purposes of this chapter, the following principles apply:
(1) Sentences involving confinement should be based on the following considerations:(A) Confinement is necessary to
protect society by restraining a defendant who has a long history of criminal conduct; (B) 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 (C) Measures less restrictive than confinement have
frequently or recently been applied unsuccessfully to the defendant; (2) The sentence imposed should be no greater
than that deserved for the offense committed; (3) Inequalities in sentences that are unrelated to a purpose of this
chapter should be avoided; (4) The sentence imposed should be the least severe measure necessary to achieve the
purposes for which the sentence is imposed; (5) 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; and (6) Trial judges are encouraged to use alternatives to incarceration that include
requirements of reparation, victim compensation or community service or all of these.

-If you commit a new crime while you are on bond then it is necessary for that crime to be consecutive to the
charge you are on bond for.
-Can be sentenced to a misdemeanor sentence for a class E Felony (serve 6 months)

40-35-104. Alternative sentences

(a) A defendant convicted of a felony or a misdemeanor in this state shall be sentenced in accordance with this chapter.
(b)(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 which 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 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 the 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.
(c) 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 if the conviction is for a felony and the sentence is at least
one (1) year, unless: (A) The sentence is prohibited by subsection (b); or (B) The defendant is convicted of a violation
of § 39-14-103, involving property valued at less than one thousand dollars ($1,000), 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.
(d) 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.
(e) This chapter does not prevent a court from imposing a sentence of death specifically authorized by law.

40-35-111. Authorized sentences; prison terms or fines

(a) A sentence for a felony is a determinate sentence.
(b) 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.
(c) 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.
If a special fine for a corporation is expressly specified in the statute which defines an offense, the fine fixed shall be
within the limits specified in the statute.
(d) A sentence for a misdemeanor is a determinate sentence.
(e) 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.

40-35-112. Sentence ranges

(a) 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.
(b) 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.
(c) 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.

40-35-109. Especially mitigated offenders

(a) 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.
(b) 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%).
(c) If the defendant is found to be an especially mitigated offender, the judgment of conviction shall so reflect.
(d) The finding that a defendant is or is not an especially mitigated offender is appealable by either party.

40-35-113. Mitigating factors (can add to these)

If appropriate for the offense, mitigating factors may include, but are not limited to:
(1) The defendant's criminal conduct neither caused nor threatened serious bodily injury;
(2) The defendant acted under strong provocation;
(3) Substantial grounds exist tending to excuse or justify the defendant's criminal conduct, though failing to establish a
defense;
(4) The defendant played a minor role in the commission of the offense;
(5) 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;
(6) The defendant, because of youth or old age, lacked substantial judgment in committing the offense;
(7) The defendant was motivated by a desire to provide necessities for the defendant's family or the defendant's self;
(8) 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;
(9) The defendant assisted the authorities in uncovering offenses committed by other persons or in detecting or
apprehending other persons who had committed the offenses;
(10) The defendant assisted the authorities in locating or recovering any property or person involved in the crime;
(11) 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;
(12) 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; or
(13) Any other factor consistent with the purposes of this chapter.

40-35-114. Enhancement factors (only ones that the Judge can consider)

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:
(1) The defendant has a previous history of criminal convictions or criminal behavior, in addition to those necessary to
establish the appropriate range;
(2) The defendant was a leader in the commission of an offense involving two (2) or more criminal actors;
(3) The offense involved more than one (1) victim;
(4) A victim of the offense was particularly vulnerable because of age or physical or mental disability;
(5) The defendant treated, or allowed a victim to be treated, with exceptional cruelty during the commission of the
offense;
(6) The personal injuries inflicted upon, or the amount of damage to property sustained by or taken from, the victim
was particularly great;
(7) The offense involved a victim and was committed to gratify the defendant's desire for pleasure or excitement;
(8) The defendant, before trial or sentencing, failed to comply with the conditions of a sentence involving release into
the community;
(9) The defendant possessed or employed a firearm, explosive device, or other deadly weapon during the commission
of the offense;
(10) The defendant had no hesitation about committing a crime when the risk to human life was high;
(11) 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;
(12) 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;
(13) At the time the felony was committed, one (1) of the following classifications was applicable to the defendant:

(A) Released on bail or pretrial release, if the defendant is ultimately convicted of the prior misdemeanor or felony;

(B) Released on parole;

(C) Released on probation;

(D) On work release;
(E) On community corrections;
(F) On some form of judicially ordered release;
(G) 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;
(H) On escape status; or
(I) Incarcerated in any penal institution on a misdemeanor or felony charge or a misdemeanor or felony conviction;
(14) 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;
(15) The defendant committed the offense on the grounds or facilities of a pre-kindergarten (pre-K) through grade
twelve (12) public or private institution of learning when minors were present;
(16) 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;
(17) 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;
(18) The offense was an act of terrorism, or was related to an act of terrorism;
(19) 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 officer/guard, an employee of the department of correction or the department
of children's services, 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;
(20) 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;
(21) 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; or
(22)(A) 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;

(B) As used in this subdivision (22), "place of worship" means any structure that is:
(i) 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
(ii) 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.
40-35-210. Imposition of sentence; evidence
(a) At the conclusion of the sentencing hearing, the court shall first determine the appropriate range of sentence.
(b) 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; and
(7) Any statement the defendant wishes to make in the defendant's own behalf about sentencing.
(c) 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.
(d) The sentence length within the range should be consistent with the purposes and principles of this chapter.
(e) 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.
(f) A sentence must be based on evidence in the record of the trial, the sentencing hearing, the presentence report, and
the record of prior felony convictions filed by the district attorney general with the court, as required by § 40-35-
202(a).

40-35-211. Imposition of sentence; determinate sentences

In fixing a sentence for a felony or misdemeanor, the court shall impose a specific sentence length for each offense:
(1) 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.
(2) 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.
(3) 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.

40-35-303. Probation
(a) A defendant shall be eligible for probation under the provisions of 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 the provisions
of this chapter, if convicted of a violation of § 39-13-304, § 39-13-402, § 39-13-504, § 39-13-532, § 39-15-402, or §
39-17-417(b) or (i). A defendant shall also be eligible for probation pursuant to § 40-36-106(e)(3).
(b) 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.
(c)(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 thereof 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)(A) 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), the provisions of subdivision (c)(1) shall govern the length of
the term of probation.

(B) Notwithstanding the provisions of 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:
(i) 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;
(ii) To make restitution to the victim of the offense;
(iii) 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
(iv) 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).
(C) The offenses to which this subdivision (c)(2) applies are:
(i) Domestic assault, as prohibited by § 39-13-111;
(ii) 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(8);
(iii) Violation of a protective order, as prohibited by § 36-3-612; and
(iv) Stalking, as prohibited by § 39-17-315.
(d) 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; or
(10) Make appropriate and reasonable restitution to the victim or the family of the victim involved pursuant to § 40-35-
304.
(e) 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).
(f) 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.
(g) 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.
(h) No probationer shall be allowed to leave the jurisdiction of the probationer's probation officer without the express
permission of the trial judge.
(i)(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.
(j) The provisions of this section relative to the payment of a supervision fee shall not apply to any person subject to
the provisions of chapter 28, part 2 of this title.
(k) 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.
(l) A probation officer shall make reasonable and diligent effort to notify a victim of any felony which 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.
(m) 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(8), 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.
(n) 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 or controlled substances; 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.
(o)(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) The provisions of subdivision (o)(1) shall only apply to a probation officer:

(A) 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;
(B) Employed by a probation office operated by a governmental entity;
(C) Who has completed training equal to the training required by the standards of the peace officer's standards and
training commission (POST); and
(D) 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) The provisions of this subsection (o) shall not apply to a state probation officer employed by the board of probation
and parole and paid by the state of Tennessee.

40-35-306. Probation following confinement

(a) 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.
(b) 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.
(c) 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.

40-35-307. Probation and periodic confinement

(a) 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.
(b) 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.
(c) 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 non-consecutive 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.
(d) 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.
(e) 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.
(f) 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.

40-35-310. Suspension of sentence; revocation

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 original judgment so rendered by the trial judge shall be in full force and effect from the date of the
revocation of the suspension, and shall 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.

40-35-311. Suspension of sentence; revocation; procedure

(a) 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.
(b) 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.
(c)(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:

(A) The identity of the certifying technician;

(B) A statement of qualifications from the certifying technician;
(C) A specific description of the testing methodology;
(D) A statement that the method of testing was the most accurate test for this particular drug;
(E) A certification that the test results were reliable and accurate;
(F) A declaration that all established procedures and protocols were followed; and
(G) 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 the provisions of 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.
(d) 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.
(e) If the trial judge should find 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 cause the defendant to commence the execution of the
judgment as originally entered, or otherwise in accordance with § 40-35-310; provided, that in case of the revocation
of probation and suspension, the defendant has the right to appeal.

40-35-313. Probation; conditions; discharge and expungement (a)(1)(A) 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).

(B)(i) As used in this subsection (a), "qualified defendant" means a defendant who:
(a) Is found guilty of or pleads guilty or nolo contendere to the offense for which deferral of further proceedings is
sought;
(b) Is not seeking deferral of further proceedings for a sexual offense or a Class A or Class B felony; and
(c) Has not previously been convicted of a felony or a Class A misdemeanor.
(ii) As used in subdivision (a)(1)(B)(i), "sexual offense" means conduct that constitutes:
(a) Aggravated prostitution, as described in § 39-13-516;
(b) Aggravated rape, as described in § 39-13-502;
(c) Aggravated sexual battery, as described in § 39-13-504;
(d) Aggravated sexual exploitation of a minor, as described in § 39-17-1004;
(e) 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).
(f) Especially aggravated sexual exploitation of a minor, as described in § 39-17-1005;
(g) Rape, as described in § 39-13-503;
(h) Rape of a child, as described in § 39-13-522;
(i) Sexual battery by an authority figure, as described in § 39-13-527; or
(j) Statutory rape by an authority figure, as described in § 39-13-532.
(2) The provisions of this subsection (a) relative to the payment of a supervision fee shall not apply to any person
subject to the provisions of 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 non-public record thereof 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 or 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)(A) 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 § 68-11-1004(a) on or after
JUly 1, 2004, 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 § 68-11-1004 a copy of
which shall be forwarded to the department of health.

(B) 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 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.
(b) 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 non-public 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 § 40-39-102(5). 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 any provision of this section or § 40-32-101(a)(3)-(c)(3) to the contrary, the non-
public 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 non-public 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. (c) Notwithstanding the provisions of 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 non-public 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.
(d)(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, 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) 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 fifty dollar ($50.00) 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).

40-35-401. Defendants (a) 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 post-conviction or habeas corpus proceeding.
(b) 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.
(c) 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.
(d) 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.

40-35-402. State (a) 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.
(b) 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.
(c) 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.
(d) 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.