Tennessee § 40-35-205 - Presentence investigation — Physical or mental examination of defendant.

§ 40-35-205. Presentence investigation — Physical or mental examination of defendant.

Upon acceptance of a guilty plea or upon a verdict or finding of guilty, the court shall, in the case of a felony, and may, in the case of a misdemeanor, direct the presentence service officer to make a presentence investigation and report, except as provided in § 40-35-203 and subsection (b). The presentence service officer shall conduct the investigation necessary to prepare a presentence report, meeting the requirements of § 40-35-207 and any other investigation the officer deems appropriate or the court directs and shall independently determine the factual basis for any enhancement or mitigating factors asserted by the parties. With the concurrence of a defendant, a court may direct the presentence service officer to begin the presentence investigation before the adjudication of the guilt of the defendant. Nothing discovered by the presentence investigation may be disclosed to the district attorney general, the court or the jury before acceptance of a plea of guilty or a verdict or finding of guilty unless the defendant concurs. If the presentence investigation is begun before the adjudication of guilt, the information discovered shall be disclosed to the defendant or defendant's counsel, upon request, after the court's acceptance of a plea of guilty or a verdict or finding of guilt. The court may order a physical or mental examination of the defendant. If the court determines that an examination should be made, it shall issue an order that the defendant submit to examination at a time and place designated by the court and that the examination be conducted by a physician, psychiatrist, licensed psychologist, licensed psychological examiner, licensed senior psychological examiner or certified psychological assistant designated by the court. Upon the court's written determination that the defendant is indigent, the court may direct that any physical or mental examination provided for in this section shall be performed by the department of correction or mental health and substance abuse services. The examination shall be performed on an outpatient basis if appropriate. The costs of the examination shall be taxed as other costs in cases of indigency. If the district attorney general and defendant agree on a specific sentence as to the offense classification, length or manner of service of sentence and the court accepts the sentence agreement as the appropriate disposition in the case, no presentence report or hearing shall be required unless so ordered by the court. 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. No sentence agreement shall be binding on the court, which may either accept or reject the agreement pursuant to Rule 11 of the Tennessee Rules of Criminal Procedure. If the court rejects the sentence agreement, the defendant may elect to have a sentencing hearing with a presentence report. Acts 1989, ch. 591, § 6; 1999, ch. 157, § 1; 2001, ch. 334, § 8; 2010, ch. 1100, § 68; 2012, ch. 575, § 1; 2012, ch. 727, § 44. Sentencing Commission Comments. This section is similar to prior law. Subsection (a) requires the preparation of a presentence report in all felony cases except where the judge finds that such is unnecessary where the parties have agreed on all aspects of the sentence. Presentence reports are discretionary with the court in misdemeanor cases. Subsection (b) permits the court to direct the preparation of the presentence report prior to trial where the defendant agrees that such should be done. This is of value in instances where the defendant desires to plead guilty and a presentence report might be necessary for a particular sentencing issue. This provision continues the prior practice of making such presentence reports confidential where they are prepared prior to an adjudication of guilt. Subsection (c) permits the court authority to direct a physical or mental examination of the defendant where such is necessary. Subsection (d) also provides that any defendants sentenced to a period of incarceration of one year or more must have a presentence report prepared. Subsection (d) states that presentence reports are not required where the parties agree to the terms of the sentence. However, the trial judge always has the authority to accept or reject any sentence agreement. The trial court may defer sentencing until after receipt of the presentence report, pursuant to Tenn. R. Crim. P. 11. 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 2010, ch. 1100, § 153 provided that the commissioner of mental health and developmental disabilities, the commissioner of mental health, the commissioner of intellectual and developmental disabilities, and the commissioner of finance and administration are authorized to promulgate rules and regulations to effectuate the purposes of the act. All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. For the Preamble to the act concerning the transfer of certain functions relating to probation and parole services and the community correction grant program from the board of probation and parole to the department of correction, please refer to Acts 2012, ch. 727. Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended subsection (c), shall be fully accomplished on or before January 1, 2013. Cross-References. Classification of offenses, § 40-35-110 . Confidentiality of public records, § 10-7-504 . Determination of indigency, § 8-14-105 . Penalties for felonies and misdemeanors, § 40-35-111 . Sentence ranges, § 40-35-112 . Sentencing provisions applicable to persons committing crimes prior to July 1, 1982, title 40, ch. 20. Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 22.103, 32.93, 32.96, 32.97, 32.98. Law Reviews. Judicial Nullification of Juries: Use of Acquitted Conduct at Sentencing (Eang Ngov), 76 Tenn. L. Rev. 235 (2009). The Unfairness of the Fair Sentencing Act of 2010 (Tyler B. Parks), 42 U. Mem. L. Rev. 1105 (2012).