Tennessee § 40-35-203 - Court to impose sentence — Exceptions.

§ 40-35-203. Court to impose sentence — Exceptions.

Except as provided in subsection (c) and with respect to fines as provided in § 40-35-301, sentences in felony and misdemeanor cases shall be imposed by the court. Upon a verdict or plea of guilty, the court shall set and conduct a sentencing hearing except as provided in subsection (b). Evidence may, but need not, be presented by both the defendant and the district attorney general on any matter relevant to the issue of sentencing. The sentencing hearing may occur immediately after guilt is determined, subject to the rights of the parties to postpone the hearing under § 40-35-209(a). Where the sentence is agreed upon by the district attorney general and the defendant and accepted by the court, the court may immediately impose sentence as provided in § 40-35-205(d) and no specific sentencing hearing or presentence reports shall be required. The judge may, in the judge's discretion, direct that a complete presentence report be prepared. No defendant sentenced to the custody of the department of correction shall be committed or conveyed to the department unaccompanied by the completed presentence report or investigation and report required by § 40-35-209(d)(1). Furthermore, a presentence report or investigation and report shall be prepared on all defendants sentenced to a period of continuous confinement of one (1) year or greater in a local jail or workhouse. This requirement shall not be cause for delay in conveying the defendant to the local institution to which the defendant has been committed. There shall be a presentence report and hearing on any issue of sentencing not agreed upon by the parties and accepted by the court. If a capital offense is charged and the jury returns a verdict where death is a possibility, the jury shall fix the punishment in a separate sentencing hearing as otherwise provided by law, unless the jury is waived as to punishment. If the trial judge who presided at the trial on the merits is unavailable because of death, resignation, retirement, ill health or loss of jurisdiction, another judge appointed by the chief justice of the Tennessee supreme court may impose the sentence. If the criminal offense for which the defendant is charged carries an enhanced punishment for a second or subsequent violation of the same offense, the indictment in a separate count shall specify and charge that fact. If the defendant is convicted of the offense, then the jury must find that beyond a reasonable doubt the defendant has been previously convicted the requisite number of times for the same offense. Upon such finding, the defendant shall be subject to the authorized terms of imprisonment for the felonies and misdemeanors as set forth in § 40-35-111. Acts 1989, ch. 591, § 6; 1990, ch. 980, § 24. Sentencing Commission Comments. This section requires that the judge impose the sentence except in the area of fines over $50.00 and in capital cases. Subsection (a) provides that in any sentencing hearing both sides may introduce evidence on matters relevant to sentencing questions. The sentencing hearing may occur immediately after the guilt phase of the trial, but normally the hearing is postponed for the preparation of a sentencing report. Subsection (b) provides that if the parties are agreed as to all aspects of sentencing, the judge may immediately impose sentence, but the judge always has the discretion to direct that a pre-sentence report be prepared. The remaining provisions of this subsection (b) require that such reports be prepared for all persons who are incarcerated in the department of correction or in a local facility in excess of one year. Obviously, if the judge has already imposed sentence, such as in a plea situation, the report contemplated by this section is in the nature of a “post-sentence” report but should contain the same information as those prepared prior to any sentencing. For an example of an application of subsection (e), see § 39-17-418 . 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. Execution of judgment, title 40, ch. 23. Sentencing provisions applicable to persons committing crimes prior to July 1, 1982, title 40, ch. 20. Rule Reference. This section is referred to in the Advisory Commission Comments under Rule 11 of the Tennessee Rules of Criminal Procedure. Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 22.75, 22.98, 22.103, 22.104, 24.12, 25.2, 32.30, 32.60, 32.63, 32.80, 32.92, 32.93. Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 45. 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). Attorney General Opinions. District attorney not authorized to modify court order sentencing misdemeanant, OAG 98-0170, 1998 Tenn. AG LEXIS 170 (8/28/98).