Tennessee § 40-35-109 - Especially mitigated offender.

§ 40-35-109. Especially mitigated offender.

The court may find the defendant is an especially mitigated offender, if: The defendant has no prior felony convictions; and The court finds mitigating, but no enhancement factors. If the court finds the defendant an especially mitigated offender, the court shall reduce the defendant's statutory Range I minimum sentence by ten percent (10%) or reduce the release eligibility date to twenty percent (20%) of the sentence, or both reductions. If the court employs both reductions, the calculation for release eligibility shall be made by first reducing the sentence and then reducing the release eligibility to twenty percent (20%). If the defendant is found to be an especially mitigated offender, the judgment of conviction shall so reflect. The finding that a defendant is or is not an especially mitigated offender is appealable by either party. Acts 1989, ch. 591, § 6. Sentencing Commission Comments. As noted in the comments to § 40-35-101 , sentences have been divided into one of three ranges. The sentencing ranges are governed by the presence or absence of prior convictions. If a defendant has little or no prior criminal record, such defendant would normally be sentenced within Range I as a standard offender. See § 40-35-105 . However, there are instances where the trial judge may desire to depart from even the minimum sentence for a Range I offender and impose lesser penalties. In such instances, the judge may designate the defendant as an “especially mitigated offender” under the provisions of this section. If the judge designates the defendant for this category, the judge has the option of reducing the minimum sentence by 10 percent or reducing the release eligibility date to 20 percent or both options. For example, a standard offender convicted of a Class C felony is normally subject to a three year minimum sentence as a standard Range I offender. The 10 percent reduction in the minimum sentence would result in a sentence of 2.7 years. The judge may further alter the normal 30 percent release eligibility date to 20 percent. While the other types of offenders, such as multiple, persistent or career mandate sentences within their required ranges, a finding of an especially mitigated offender is discretionary with the trial court. The criteria for such a finding is set forth in subsection (a) and requires that the defendant have no prior felony convictions and that the trial judge finds “mitigating factors but no enhancement factors.” It should be observed that this definition is different from prior law which required that the court could only consider mitigating factors which existed in the “commission of the offense.” This limiting language has been removed since the commission believes that all mitigating factors should be considered in ascertaining whether the defendant should receive a sentence within this category. A prior misdemeanor record no longer prohibits sentencing as an especially mitigated offender. A defendant convicted of any offense other than first degree murder may be sentenced as an especially mitigated offender given the absence of prior felony convictions and the presence of mitigating factors. Compiler's Notes. Former chapter 35, §§ 40-35-101 — 40-35-112 , 40-35-201 — 40-35-214 , 40-35-301 — 40-35-316 , 40-35-401 — 40-35-403 , 40-35-501 — 40-35-504 (Acts 1982, ch. 868, § 1; T.C.A., §§ 40-35-108 , 40-43-101 — 40-43-104 , 40-43-106 , 40-43-107 , 40-43-109 — 40-43-112 , 40-43-201 — 40-43-205 , 40-43-207 — 40-43-212 , 40-43-214 , 40-43-301 — 40-43-304 , 40-43-306 — 40-43-309 , 40-43-311 — 40-43-315 , 40-43-401 — 40-43-403 , 40-43-501 — 40-43-504 ), concerning the Tennessee Criminal Sentencing Reform Act of 1982, was repealed by Acts 1989, ch. 591, § 6. The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation. Cross-References. Eligibility of certain drug offenders for special alternative incarceration unit, § 40-20-207 . Sentence ranges, § 40-35-112 . Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 32.82, 32.127, 32.237, 32.272. Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, §§ 49, 51. Law Reviews. Sentencing Lockdown: What Is the Impact of Blakely on Sentencing in Tennessee? (David L. Raybin), 40 No. 8 Tenn. B.J. 12 (2004).