Tennessee § 40-35-120 - Repeat violent offenders — Three strikes.

§ 40-35-120. Repeat violent offenders — Three strikes.

A “repeat violent offender” is a defendant who: Is convicted in this state on or after July 1, 1994, of any offense classified in subdivision (b)(1) as a violent offense; and Has at least two (2) prior convictions for offenses classified in subdivision (b)(1) or (b)(2) as a violent offense; or Is convicted in this state on or after July 1, 1994, of any offense classified in subdivision (c)(1) as a violent offense; and Has at least one (1) conviction for an offense classified in subdivision (c)(1) or (c)(2) as a violent offense; or Is convicted in this state on or after July 1, 1995, of any offense classified in subdivision (d)(1) as a violent offense; and Has at least one (1) prior conviction for an offense classified in subdivision (d)(1) or (d)(2) as a violent offense with the exception of the prior offense of robbery by use of a deadly weapon as listed in § 40-35-118(a). For purposes of subdivisions (a)(1) and (a)(2), the following offenses are classified as violent offenses: First degree murder, including any attempt, solicitation or facilitation to commit first degree murder; Second degree murder and any attempt or facilitation to commit second degree murder; Especially aggravated kidnapping and any attempt or facilitation to commit especially aggravated kidnapping; Especially aggravated robbery and any attempt or facilitation to commit especially aggravated robbery; Aggravated rape and any attempt or facilitation to commit aggravated rape; Rape of a child and any attempt or facilitation to commit rape of a child; Aggravated arson and any attempt or facilitation to commit aggravated arson; Aggravated kidnapping; Aggravated robbery; Rape; Aggravated sexual battery; Especially aggravated burglary; Aggravated child abuse; Aggravated sexual exploitation of minor; and Especially aggravated sexual exploitation of a minor. For purposes of subdivision (a)(2), the offenses that were repealed on November 1, 1989, and are listed in § 40-35-118(a) as Class A or B felonies against a person are classified as violent offenses. For purposes of subdivisions (a)(3) and (a)(4), the following offenses are classified as violent offenses: First degree murder including any attempt, solicitation or facilitation to commit first degree murder; Second degree murder; Especially aggravated kidnapping; Especially aggravated robbery; Aggravated rape; Rape of a child; and Aggravated arson. For purposes of subdivision (a)(4), the offenses that were repealed on November 1, 1989, and are listed in § 40-35-118(a) as Class A felonies against a person are classified as violent offenses. For purposes of subdivisions (a)(5) and (a)(6), the following offenses are classified as violent offenses: First degree murder; Second degree murder; Especially aggravated kidnapping; Especially aggravated robbery; Aggravated rape; Rape of a child; Aggravated arson; Aggravated kidnapping; Rape; Aggravated sexual battery; Especially aggravated burglary; Aggravated child abuse; Aggravated sexual exploitation of a minor; and Especially aggravated sexual exploitation of a minor. For purposes of subdivision (a)(6), the offenses that were repealed on November 1, 1989, and are listed in § 40-35-118(a) as Class A or B felonies against a person, with the exception of the offense of robbery by use of a deadly weapon, are classified as violent offenses. In determining the number of prior convictions a defendant has received: “Prior conviction” means a defendant serves and is released from a period of incarceration for the commission of an offense or offenses so that a defendant must: To qualify under subdivision (a)(1) and (a)(2), have served two (2) separate periods of incarceration for the commission of at least two (2) of the predicate offenses designated in subdivision (b)(1) or (b)(2) before committing an offense designated in subdivision (b)(1); To qualify under subdivision (a)(3) and (a)(4), at least one (1) separate period of incarceration for the commission of a predicate offense designated in subdivision (c)(1) or (c)(2) before committing an offense designated in subdivision (c)(1); or To qualify under subdivision (a)(5) and (a)(6), at least one (1) separate period of incarceration for the commission of a predicate offense designated in subdivision (d)(1) or (d)(2), with the exception of the prior offense of robbery by use of a deadly weapon as listed in § 40-35-118(a), before committing an offense designated in subdivision (d)(1); “Separate period of incarceration” includes a sentence to a community correction program pursuant to chapter 36 of this title, a sentence to split confinement pursuant to § 40-35-306 or a sentence to a periodic confinement pursuant to § 40-35-307. Any offense designated as a violent offense pursuant to subsection (b), (c) or (d) that is committed while incarcerated or committed while the prisoner is assigned to a program whereby the prisoner enjoys the privilege of supervised release into the community, including, but not limited to, work release, educational release, restitution release, medical furlough or that is committed while on escape status from any correctional institution shall be considered as a separate period of incarceration; A finding or adjudication that a defendant committed an act as a juvenile that is designated a predicate offense under subsection (b), (c) or (d) 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 a prior conviction for the purposes of this section unless the juvenile was convicted of the predicate offense in a criminal court and sentenced to confinement in the department of correction; and “Prior convictions” include convictions under the laws of any other state, government or country that, if committed in this state, would have constituted a predicate offense in subsection (b), (c) or (d) if there are separate periods of incarceration in the other state as required by subdivision (e)(1). If a felony from a jurisdiction other than Tennessee is not a named predicate offense specified in subsection (b), (c) or (d) in this state and if the elements of the felony are the same as a designated predicate offense, it shall be considered a prior conviction; provided, that there are separate periods of incarceration in the other state as required in subdivision (e)(1). The court shall refuse to accept a plea agreement that fails to recommend that a defendant with a sufficient number of designated prior convictions be sentenced as a repeat violent offender. If the judge refuses to accept the plea agreement, this does not prevent the district attorney general, in accordance with Rule 7 of the Tennessee Rules of Criminal Procedure, from amending the indicted offense to an offense that is not designated as a violent offense in subsection (b) or (c). The court shall sentence a defendant who has been convicted of any offense listed in subdivision (b)(1), (c)(1) or (d)(1) to imprisonment for life without possibility of parole if the court finds beyond a reasonable doubt that the defendant is a repeat violent offender as defined in subsection (a). The finding that a defendant is or is not a repeat violent offender is appealable by either party. A charge as a repeat violent offender shall be tried within one hundred eighty (180) days of the arraignment on the indictment pursuant to Rule 10 of the Tennessee Rules of Criminal Procedure unless delay is caused by: The defendant; An examination for competency; A competency hearing; An adjudication of incompetency for trial; A continuance allowed after a court's determination of the defendant's physical incapacity for a trial; or An interlocutory appeal. A continuance may be granted to any party, including the court, for good cause shown. The district attorney general shall file a statement with the court and the defense counsel within forty-five (45) days of the arraignment pursuant to Rule 10 of the Rules of Criminal Procedure that the defendant is a repeat violent offender. The statement, which shall not be made known to the jury determining the guilt or innocence of the defendant, shall set forth the dates of the prior periods of incarceration, as well as the nature of the prior conviction offenses. If the notice is not filed within forty-five (45) days of the arraignment, the defendant shall be granted a continuance so that the defendant will have forty-five (45) days between receipt of notice and trial. Failure to comply with this subsection (i) does not require release of a person from custody or a dismissal of charges. Acts 1994, ch. 994, § 1; 1995, ch. 499, §§ 1-9. Compiler's Notes. Acts 1994, ch. 994, § 6 provided that this section applies to all persons committing offenses under subdivisions (b)(1) or (c)(1) on or after July 1, 1994. Cross-References. Penalty for Class A or B felonies, § 40-35-111 . Law Reviews. Criminal Procedure—Tennessee v. Carter: The Strict Requirement of Notice Under Tennessee's Recidivist Sentencing Statutes (David Demar Ayliffe) 35 U. Mem. L. Rev. 145 (2004). Not-So-Sweet Sixteen: When Minor Convictions Have Major Consequences Under Career Offender Guidelines (Andrew Tunnard), 66 Vand. L. Rev. 1309 (2013).