Tennessee § 40-35-104 - Sentencing alternatives.

§ 40-35-104. Sentencing alternatives.

A defendant convicted of a felony or a misdemeanor in this state shall be sentenced in accordance with this chapter. A defendant who is convicted of a felony after November 1, 1989, and who is sentenced to a total sentence of at least one (1) year but not more than three (3) years, shall not be sentenced to serve the sentence in the department of correction, if the legislative body for the county from which the defendant is being sentenced has either contracted with the department, or has passed a resolution that expresses an intent to contract for the purpose of housing convicted felons with such sentences. If the sentencing court concludes that incarceration is the appropriate sentencing alternative, the defendant must be sentenced to the local jail or workhouse and not to the department. A defendant who is convicted of a felony after November 1, 1989, and who is sentenced to at least one (1) year but not more than six (6) years, shall not be sentenced to serve the sentence in the department of correction if the defendant is being sentenced from a county with a population of not less than four hundred seventy-seven thousand eight hundred eleven (477,811), according to the 1980 federal census or any subsequent federal census, and the legislative body for the county has contracted with the department or has passed a resolution that expresses an intent to contract for the purpose of housing convicted felons with such sentences. If the sentencing court concludes that incarceration is the appropriate sentencing alternative, the defendant must be sentenced to the local jail or workhouse and not to the department. The following sentencing alternatives in any appropriate combination are authorized for defendants otherwise eligible under this chapter: Payment of a fine either alone or in addition to any other sentence authorized by this subsection (c); Payment of restitution to the victim or victims either alone or in addition to any other sentence authorized by this subsection (c); A sentence of confinement that is suspended upon a term of probation supervision that may include community service or restitution, or both; A sentence of periodic confinement that may be served in a local jail or workhouse in conjunction with a term of probation; A sentence of continuous confinement to be served in a local jail or workhouse in conjunction with a term of probation; A sentence of continuous confinement in a local jail or workhouse; Work release in accordance with § 40-35-315; A sentence of continuous confinement in the department of correction if the conviction is for a felony and the sentence is at least one (1) year, unless: The sentence is prohibited by subsection (b); or The defendant is convicted of a violation of § 39-14-103, involving property valued at less than two thousand five hundred dollars ($2,500), and the defendant is sentenced as an especially mitigated offender as defined in § 40-35-109 or a standard offender as defined in § 40-35-105; or A sentence to a community based alternative to incarceration in accordance with the provisions, including eligibility requirements, of chapter 36 of this title. This chapter does not deprive a court of any authority conferred by law, including, but not limited to, § 40-35-313, to decree a forfeiture of property, suspend or cancel a license, remove a person from office or impose costs and other monetary obligations if specifically authorized by law. This chapter does not prevent a court from imposing a sentence of death specifically authorized by law. Acts 1989, ch. 591, § 6; 1990, ch. 1030, § 36; 1991, ch. 374, §§ 1, 2; 1992, ch. 878, § 2; 1996, ch. 699, § 2; 2016, ch. 906, § 6. Sentencing Commission Comments. Subsection (a) requires that persons convicted of any felony or misdemeanor must be sentenced in accordance with this chapter. This section must be read in conjunction with § 40-35-117 dealing with the effective date and application of the chapter to persons convicted prior to certain dates. Subsection (b) provides for the available locations for incarceration. The trial judge can only sentence felony offenders to incarceration in the department of correction, unless the county contracts with the state to house certain felony offenders in the local correctional facility, or unless the defendant is eligible for local confinement under § 40-35-314 . The applicable contracts are at the option of local counties and the department of correction and until they are effective inmates must be sentenced to the department of correction. (See Attorney General's Opinion 90-66). When such contract exists between the county and the state, offenders sentenced under certain parameters shall be sentenced to the local facility. Those parameters are defined by sentence length and county population in this section, along with the provisions of the contract between the state and county. Subsection (c) is similar to prior law and sets forth the available sentencing options. Obviously, not every sentencing option is available since some felony classifications and ranges mandate incarceration in the department as the only available sentencing option. The 1992 amendment prohibits sentences of continuous confinement in the department for especially mitigated or standard offenders who are convicted of theft of property valued at less than $1,000. Subsection (d) indicates that the Sentencing Reform Act of 1989 does not remove any authority which a court might have to deal with forfeitures, license regulations, removal from office, imposition of costs, or other obligations which are specifically authorized by law. Subsection (e) makes clear that the death penalty is an available sentencing provision where permitted by the terms of § 39-13-203 et seq. Compiler's Notes. Former chapter 35, §§ 40-35-101 — 40-35-112 , 40-35-201 — 40-35-214 , 40-35-301 — 40-35-316 , 40-35-401 — 40-35-403 , 40-35-501 — 40-35-504 (Acts 1982, ch. 868, § 1; T.C.A., §§ 40-35-108 , 40-43-101 — 40-43-104 , 40-43-106 , 40-43-107 , 40-43-109 — 40-43-112 , 40-43-201 — 40-43-205 , 40-43-207 — 40-43-212 , 40-43-214 , 40-43-301 — 40-43-304 , 40-43-306 — 40-43-309 , 40-43-311 — 40-43-315 , 40-43-401 — 40-43-403 , 40-43-501 — 40-43-504 ), concerning the Tennessee Criminal Sentencing Reform Act of 1982, was repealed by Acts 1989, ch. 591, § 6. The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation. For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement. Acts 2016, ch. 906, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Public Safety Act of 2016.” Cross-References. Sentencing provisions applicable to persons committing crimes prior to July 1, 1982, title 40, ch. 20. Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 32.190. Tennessee Jurisprudence, 17 Tenn. Juris., Larceny and Theft, § 12. Law Reviews. Extralegal Punishment Factors: A Study of Forgiveness, Hardship, Good Deeds, Apology, Remorse, and Other Such Discretionary Factors in Assessing Criminal Punishment (Paul H. Robinson, Sean E. Jackowitz, and Daniel M. Bartels), 65 Vand. L. Rev. 737 (2012). Penile Polygraphy: The Admissibility of Penile-Plethysmograph Results at Sentencing in Tennessee, 72 Vand. L. Rev. 353 (January 2019). Attorney General Opinions. Applicability, OAG 90-64, 1990 Tenn. AG LEXIS 64 (6/4/90). Restitution under plea agreement exceeding monetary grade of offense, OAG 98-037, 1998 Tenn. AG LEXIS 37 (2/9/98).