Tennessee § 40-35-107 - Persistent offender.

§ 40-35-107. Persistent offender.

A persistent offender is a defendant who has received: Any combination of five (5) or more prior felony convictions within the conviction class or higher or within the next two (2) lower felony classes, where applicable; or At least two (2) Class A or any combination of three (3) Class A or Class B felony convictions if the defendant's conviction offense is a Class A or B felony. In determining the number of prior convictions a defendant has received: 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 includes convictions under the laws of any other state, government or country that, if committed in this state, would have constituted an offense cognizable by the laws of this state. In the event that a felony from a jurisdiction other than Tennessee is not a named felony in this state, the elements of the offense shall be used by the Tennessee court to determine what classification the offense is given. A defendant who is found by the court beyond a reasonable doubt to be a persistent offender shall receive a sentence within Range III. The finding that a defendant is or is not a persistent offender is appealable by either party. Acts 1989, ch. 591, § 6; 2005, ch. 353, § 3; 2009, ch. 603, § 2; 2010, ch. 861, § 2. Sentencing Commission Comments. This section sets forth the criteria for enhanced sentencing as a persistent offender. A finding that a defendant is a persistent offender requires sentencing within Range III which not only carries higher criminal penalties, but an increased release eligibility date of 45 percent. See § 40-35-501(e) . Subdivision (a)(1) permits sentencing as a persistent offender where the defendant has five or more felony convictions within the same or higher class or within the next two lower felony classes. In keeping with the commission's belief that prior felony convictions should be “weighted,” subdivision (a)(2) provides that multiple prior Class A or Class B felony convictions will trigger a Range III sentence if the defendant is being sentenced for a Class A or B felony. Thus, fewer numbers of prior convictions are necessary if the defendant commits a serious offense and has a prior record of serious crimes. Apart from the numbers of prior felony convictions, the provisions of this section are the same as § 40-35-106 concerning multiple offenders. 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. Mandatory consecutive sentences for felonies committed while on escape, Tenn. R. Crim. P. 32. Penalty for Class A or B felonies, § 40-35-111 . Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 15.17, 15.18, 32.82, 32.128, 32.129, 32.130, 32.272. Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, §§ 45, 49; 14 Tenn. Juris., Homicide, § 60, 26 Tenn. Juris., Words and Phrases, 235.5P. Law Reviews. Not-So-Sweet Sixteen: When Minor Convictions Have Major Consequences Under Career Offender Guidelines (Andrew Tunnard), 66 Vand. L. Rev. 1309 (2013).