Tennessee § 40-35-115 - Multiple convictions.

§ 40-35-115. Multiple convictions.

If a defendant is convicted of more than one (1) criminal offense, the court shall order sentences to run consecutively or concurrently as provided by the criteria in this section. The court may order sentences to run consecutively if the court finds by a preponderance of the evidence that: The defendant is a professional criminal who has knowingly devoted the defendant's life to criminal acts as a major source of livelihood; The defendant is an offender whose record of criminal activity is extensive; The defendant is a dangerous mentally abnormal person so declared by a competent psychiatrist who concludes as a result of an investigation prior to sentencing that the defendant's criminal conduct has been characterized by a pattern of repetitive or compulsive behavior with heedless indifference to consequences; The defendant is a dangerous offender whose behavior indicates little or no regard for human life and no hesitation about committing a crime in which the risk to human life is high; The defendant is convicted of two (2) or more statutory offenses involving sexual abuse of a minor with consideration of the aggravating circumstances arising from the relationship between the defendant and victim or victims, the time span of defendant's undetected sexual activity, the nature and scope of the sexual acts and the extent of the residual, physical and mental damage to the victim or victims; The defendant is sentenced for an offense committed while on probation; or The defendant is sentenced for criminal contempt. The finding concerning the imposition of consecutive or concurrent sentences is appealable by either party. Sentences shall be ordered to run concurrently if the criteria noted in subsection (b) are not met, unless consecutive sentences are specifically required by statute or the Tennessee Rules of Criminal Procedure. Acts 1989, ch. 591, § 6; 1990, ch. 980, §§ 31, 32. Sentencing Commission Comments. This statute is essentially a codification of two Tennessee supreme court cases dealing with concurrent and consecutive sentencing: Gray v. State, 538 S.W.2d 391 (Tenn. 1976) and State v. Taylor, 739 S.W.2d 227 (Tenn. 1987). In Taylor , the court held that consecutive sentences should not routinely be imposed in criminal cases and the aggregate maximum of consecutive terms must be reasonably related to the severity of the offenses involved. While this section permits consecutive sentencing, the trial judge has other available options, such as increasing the length of the sentence within the appropriate range depending on the presence of enhancing factors. However, where appropriate, consecutive sentences are authorized in the discretion of the court if the court finds one or more of the criteria as set forth in subsection (b). The first four criteria were taken directly from Gray v. State , supra, and the fifth was derived from State v. Taylor . The sixth and seventh criteria were added by the general assembly in 1990. In addition, the court is permitted to order consecutive sentencing where the defendant is convicted of “failure to appear” pursuant to § 39-16-609(f) . It should be noted that Gray v. State , supra, contained an additional category based on the numbers of prior felony convictions. This additional category has been built into the sentencing structure which enhances the sentence ranges depending on the types and severity of the prior felony convictions. Subsection (d) provides that while consecutive sentences are discretionary, in a few instances, consecutive sentences are mandated either by statute or by Tenn. R. Crim. P. 32. For example, see § 39-16-605 , which requires consecutive sentences for escape from a penal institution, and § 40-20-111(b) , which requires consecutive sentences for felonies committed while the defendant was released on bail. Compiler's Notes. The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation. Attorney General Opinions. Applicability to felony and misdemeanor sentencing, OAG 98-0150, 1998 Tenn. AG LEXIS 150 (8/12/98).