Tennessee § 40-35-106 - Multiple offender.

§ 40-35-106. Multiple offender.

A multiple offender is a defendant who has received: A minimum of two (2) but not more than four (4) prior felony convictions within the conviction class, a higher class, or within the next two (2) lower felony classes, where applicable; or One (1) Class A prior felony conviction if the defendant's conviction offense is a Class A or B felony. In determining the number of prior convictions a defendant has received: “Prior conviction” means a conviction for an offense occurring prior to the commission of the offense for which the defendant is being sentenced; All prior felony convictions, including those occurring prior to November 1, 1989, are included; A finding or adjudication that a defendant committed an act as a juvenile that would constitute a felony if committed by an adult and that resulted in a transfer of the juvenile to criminal court pursuant to § 37-1-134, or similar statutes of other states or jurisdictions, shall not be considered as a prior conviction for the purposes of this section unless the juvenile was convicted of a felony in a criminal court; Notwithstanding subdivision (b)(3)(A), a finding or adjudication that a defendant committed an act as a juvenile that would constitute a Class A or Class B felony if committed by an adult shall be considered as a prior conviction for the purposes of this section, regardless of whether the juvenile was transferred to criminal court pursuant to § 37-1-134, or similar statutes of other states or jurisdictions; Except for convictions for which the statutory elements include serious bodily injury, bodily injury, threatened serious bodily injury or threatened bodily injury to the victim or victims, or convictions for the offense of aggravated burglary under § 39-14-403, convictions for multiple felonies committed within the same twenty-four-hour period constitute one (1) conviction for the purpose of determining prior convictions; and Prior convictions include convictions under the laws of any other state, government or country that, if committed in this state, would have constituted an offense cognizable by the laws of this state. In the event that a felony from a jurisdiction other than Tennessee is not a named felony in this state, the elements of the offense shall be used by the Tennessee court to determine what classification the offense is given. A defendant who is found by the court beyond a reasonable doubt to be a multiple offender shall receive a sentence within Range II. The finding that a defendant is or is not a multiple offender is appealable by either party. Acts 1989, ch. 591, § 6; 2005, ch. 353, § 2; 2009, ch. 603, § 1; 2010, ch. 861, § 1. Sentencing Commission Comments. As noted in the comments to § 40-35-101 , the various felony classifications are divided into one of three ranges so that the maximum and minimum sentence may be determined. The lowest range is Range I as set forth in § 40-35-105 . The next higher range is Range II which is available for defendants who have a certain number of prior convictions. The commission believes that longer sentences should be imposed on those who have previously violated the law, and this section sets forth the preconditions which must exist so as to impose these greater penalties. A Range II sentence not only requires greater penalties but has an increased release eligibility date of 35 percent. See § 40-35-501(d) . Subsection (a) provides for the numbers and types of prior felony convictions for the multiple offender category. If the offender has at least two prior felony convictions within the same or higher class or within the next two lower felony classes, then the defendant must be sentenced as a multiple offender. For example, if a defendant is convicted of a Class C felony and has at least two other Class E felony convictions, then that defendant must be sentenced as a multiple offender. However, if a defendant is convicted of a Class B felony and has two prior Class E felony convictions, then that defendant would be sentenced as a standard offender, since a Class E felony is not within the next two lower felony classifications. The prior Class E felonies would be counted as enhancement factors within Range I. Subdivision (a)(2) permits sentencing as a multiple offender if the defendant is convicted of a Class A or B felony and that defendant has one prior Class A felony conviction. This particular provision permits greater “weight” to be given to prior serious felony convictions where the defendant is also convicted for a serious offense. Subsection (b) sets forth the factors which must be considered in ascertaining the nature and type of prior felony convictions necessary to impose a Range II sentence. Prior law restricted the time frame in which a defendant's conviction record could be considered for enhanced sentencing of a subsequent offense. The commission believes that all prior felony convictions should be considered in determining eligibility for a multiple offender classification. Thus, subdivision (b)(2) permits consideration of all felony convictions occurring any time during the defendant's life. Subdivision (b)(3) permits felony convictions to be considered if such were committed while the defendant was a juvenile if the adjudication was under the provisions which permit juveniles to be tried as adults. Prior felony convictions obviously include those committed in Tennessee but also include felony convictions occurring in other states or countries. In those instances where the conviction occurs in some other jurisdiction, the elements of the offense, as set forth in the statute of the other jurisdiction, are used to determine the classification the prior felony offense is to be given. See State v. Duffel, 631 S.W.2d 455 (Tenn. Crim. App. 1981), appealed after remand, 665 S.W.2d 402 (1983). See § 40-35-118 for the classification of offenses committed in Tennessee prior to November 1, 1989. Under Tennessee law, a single course of criminal conduct may sometimes be divided into discreet parts for purposes of separate statutory violations. See State v. Black, 524 S.W.2d 913 (Tenn. 1975). The commission believes that even though multiple convictions might result from a “crime spree,” such activity should only be considered as one conviction for purposes of sentencing enhancement for a subsequent violation of the law. Under subdivision (b)(4), common criminal activity which occurs within a 24-hour period must be considered as one prior conviction for purposes of sentence enhancement. The time limitation is also part of the definitional concept of a “single course of conduct.” Although the commission believes that multiple convictions occurring in a connected series of transactions should be considered as a single “conviction,” an exception is made for prior convictions which involve bodily injury or threaten bodily injury to the person. Thus, if a defendant is convicted of two homicides, even though the homicides occurred at the same moment, such would constitute separate convictions for a subsequent violation of the law. As another example, if the defendant was convicted of robbing several people in the same store, such would constitute separate convictions for enhancement purposes for a new violation of the law. This is in accord with the policy of giving greater “weight” to crimes of violence. The prior felony convictions used to trigger the multiple offender status must have occurred prior to the commission of the offense for which the defendant is being sentenced. In this sense, the multiple offender classification is a recidivist provision designed to punish persons who have been previously convicted and then commit new crimes. It should be observed that the provisions of subsection (b) require only “convictions” in that the commission intentionally omitted the concept of “final convictions” for purposes of a defendant's prior criminal history. There is no requirement that the “prior conviction” has been subject to appellate review or that such review is pending when the defendant is sentenced for the subsequent offense. See Beard v. State, 542 S.W.2d 389 (Tenn. Crim. App 1976). In other words, prior convictions still on appeal may be used for sentencing purposes. Subsection (c) makes clear that it is mandatory that the trial judge designate the defendant as a multiple offender when the defendant has the required number of prior convictions. 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. Acts 2005, ch. 353, § 18 provided that the act, which amended subdivision (b)(4), shall apply to sentencing for criminal offenses committed on or after June 7, 2005. Offenses committed prior to June 7, 2005, shall be governed by prior law, which shall apply in all respects. However, for defendants who are sentenced after June 7, 2005, for offenses committed on or after July 1, 1982, the defendant may elect to be sentenced under the provisions of the act by executing a waiver of such defendant's ex post facto protections. Upon executing such a waiver, all provisions of the act shall apply to the defendant. Acts 2005, ch. 353, § 19 provided that the act, which amended subdivision (b)(4), shall have no application to sentencing for persons convicted of murder in the first degree, which shall be governed by the provisions of §§ 39-13-202 — 39-13-208 . Acts 2009, ch. 603, § 4 provided that any and all convictions for the offense of aggravated burglary under § 39-14-403 , occurring on or after August 17, 2009, shall count as prior convictions for the purposes enumerated in this act. Acts 2010, ch. 861, § 5 provided that the act, which added subdivision (b)(3)(B), shall apply to all defendants committing offenses on or after July 1, 2010. Cross References. Penalty for Class A or B felonies, § 40-35-111 . Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 15.15, 15.16, 32.82, 32.128, 32.130, 32.165. Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, §§ 45, 47, 49. Law Reviews. 1985 Tennessee Survey: Selected Developments in Tennessee Law, 53 Tenn. L. Rev. 351 (1986).