Tennessee § 40-35-302 - Misdemeanor sentencing — Rehabilitative program credits — Probation — Supervision of defendants on probation.

§ 40-35-302. Misdemeanor sentencing — Rehabilitative program credits — Probation — Supervision of defendants on probation.

In imposing a sentence for a misdemeanor, the court may conduct a separate sentencing hearing. If the court does not conduct a separate sentencing hearing, the court shall allow the parties a reasonable opportunity to be heard on the question of the length of any sentence and the manner in which the sentence is to be served. In imposing a misdemeanor sentence, the court shall fix a specific number of months, days or hours, and the defendant shall be responsible for the entire sentence undiminished by sentence credits of any sort except for credits authorized by § 40-23-101, relative to pretrial jail credit, or §§ 33-5-406 and 33-7-102, relative to mental examinations and treatment, and credits awarded in accordance with either, but not both, § 41-2-111 or § 41-2-147. The court shall impose a sentence consistent with the purposes and principles of this chapter. When a defendant is serving a misdemeanor sentence, the defendant shall be continuously confined for the duration of the sentence except as provided in subsections (d) and (e); provided, that nothing in this section shall be construed as prohibiting a defendant, in the discretion of the workhouse superintendent or sheriff, from participating in work crews during the time the defendant is to be continuously confined. In imposing a misdemeanor sentence, the court shall fix a percentage of the sentence that the defendant shall serve. After service of such a percentage of the sentence, the defendant shall be eligible for consideration for work release, furlough, trusty status and related rehabilitative programs. The percentage shall be expressed as zero percent (0%), ten percent (10%), twenty percent (20%), thirty percent (30%), forty percent (40%), fifty percent (50%), sixty percent (60%), seventy percent (70%) but not in excess of seventy-five percent (75%). If no percentage is expressed in the judgment, the percentage shall be considered zero percent (0%). When the defendant has served the required percentage, the administrative authority governing the rehabilitative program shall have the authority, in its discretion, to place the defendant in the programs as provided by law. In determining the percentage of the sentence to be served in actual confinement, the court shall consider the purposes of this chapter, the principles of sentencing and the enhancement and mitigating factors set forth in this chapter and shall not impose such percentages arbitrarily. The court has authority to place the defendant on probation either: After service of a portion of the sentence in periodic confinement or continuous confinement; or Immediately after sentencing. The general sessions courts shall not place a defendant who is convicted of a misdemeanor on probation under the supervision of the state department of correction. Nothing in this subsection (f) is intended to restrict the use, where necessary, of any county or public probation service or private probation company established for the purpose of supervising defendants convicted of misdemeanors, unless the offender is currently being supervised by the state department of correction on a felony offense. When a person employed to provide probation services to defendants convicted of a misdemeanor, whether employed by a municipality, county, public or a private probation company, is first assigned a new probationer, the person shall conduct a search of the Tennessee bureau of investigation's sexual offender and violent sexual offender registration, verification and tracking database to determine if the probationer is a sexual offender or violent sexual offender. If so, the probation officer shall inform the sentencing judge of the probationer's status, if the status is not already known. If the probationer remains on probation, the officer shall also monitor the probationer's compliance with the requirements of § 40-39-211. Except as provided in subdivision (g)(2): A private entity that provides probation supervisory services shall be required to perform all of the following: Provide a report to the clerk of the criminal court and general sessions court in each judicial district in which the entity proposes to provide misdemeanor probation services on a quarterly basis in a form and manner as is specified by the clerk; provided, that the report shall contain all of the information required in subdivision (g)(1)(G); Provide an application form to all of the criminal court and general sessions court judges in each judicial district in which the entity proposes to provide misdemeanor probation services. The application shall be on a form and in a manner specified by the judges and shall contain all of the information required by subdivision (g)(1)(E); Supervise all misdemeanor defendants sentenced by a proper order of probation to be supervised by the entity and to assist the defendants so sentenced in completing all court-ordered conditions of probation; Maintain documentation on all misdemeanor defendants sentenced to be supervised by the entity. All books, records, and documentation maintained by the entity relating to work performed or money received for the supervision of misdemeanor defendants so sentenced must be maintained for a period of three (3) full years from the date of the final payment or audit. The books, records, and documentation are subject to a fiscal and performance audit and review at any reasonable time and upon reasonable notice by the court or courts in which the entity operates, or by their duly appointed representatives, and by the comptroller of the treasury as deemed necessary or appropriate. The comptroller of the treasury may appoint a certified public accountant to prepare the audit. The entity being audited by either the comptroller of the treasury or the comptroller's designee shall pay the cost of the audit. Officials of the entity shall cooperate fully with the comptroller of the treasury or its designee in the performance of the audit; and Any additional duties that the judge or judges of the courts for which the entity provides misdemeanor probation supervisory services may in writing require; The following minimum education standards are required for certain employees of an entity established for the purpose of supervising misdemeanor probationers: The chief executive officer of an entity offering probation supervision shall have a bachelor's degree from an accredited university in any of the following fields: criminal justice, administration, social work or the behavioral sciences and two (2) years of experience in criminal justice or social work; provided, that four (4) years of professional administrative experience with an organization providing services in criminal justice or social work may be substituted for the bachelor's degree; and An employee responsible for providing probation supervision and employed by an entity shall have at least four (4) years of experience in a criminal justice or a social services agency providing counseling services or shall have a bachelor's degree or associate's degree from an accredited college or university; Any entity providing probation supervisory services shall post a liability insurance policy and a performance bond in the amounts stated: A liability insurance policy in an amount at least equal to the limits of governmental liability established in the Governmental Tort Liability Act, compiled in title 29, chapter 20, that is in effect on the date the services are provided. Nothing in this subdivision (g)(1)(C)(i) shall be construed as prohibiting the entity from carrying a liability insurance policy in excess of the limits of liability provided in the Governmental Tort Liability Act. The policy shall be for the purpose of reimbursing an injured or aggrieved party for any damages or expenses for which the entity providing probation supervisory services is found liable by a court of competent jurisdiction; A performance bond issued by a corporate surety in the amount of twenty-five thousand dollars ($25,000). The bond shall be to provide recourse to the governmental entity for which the entity is providing probation supervisory services in the event of nonperformance, default, bankruptcy or failure of the entity to perform the required services; The comptroller of the treasury shall design a uniform performance bond form to be used by all private entities providing misdemeanor probation supervisory services in this state; A copy of the liability insurance policy and the performance bond shall be filed with the clerk of all courts in each county in which the entity proposes to provide probation supervisory services; Any entity providing or proposing to provide misdemeanor probation services shall investigate the criminal record for each employee and shall include in its application form any criminal conviction of each employee; The application form required by subdivision (g)(1)(A)(ii) shall contain the following information: The title of the entity; Its form of business organization; The office and mailing address of the entity; The names of the employees who will provide services and their position with the entity and their credentials; A sworn statement that the credentials of all employees meet the minimum standards under subdivision (g)(1)(B); A sworn statement that a criminal record search has been conducted and, if a criminal conviction has been discovered, the name of the employee and the criminal conviction; A credit history of the entity including any judgments or lawsuits; and A description of the services to be provided by the entity and the fee structure for the services to be provided; The application required by subdivision (g)(1)(A)(ii) shall also contain an affidavit filed under penalties of perjury that it is complete and accurate and contains all of the information required by subdivision (g)(1)(E). The application with the affidavit shall be filed with the clerk of the criminal court and general sessions court in each judicial district in which the entity proposes to provide misdemeanor probation services; The quarterly report required to be filed pursuant to subdivision (g)(1)(A)(i) shall include the following information: The caseload for the entity; The number of contact hours with offenders; The services provided; The number of filings for probation revocation and their dispositions; A financial statement including administrative costs and service costs; and Contributions, if any, to the criminal injuries compensation fund; It is an offense for a governmental employee, including a judge, or the employee's immediate family, to have a direct or indirect personal interest in a private entity that provides probation supervisory services or to receive anything of value in an individual capacity from the entity; It is an offense for a private entity that provides probation supervisory services to give or offer to give anything of value to a governmental employee, including a judge, or the employee's immediate family, in the employee's individual capacity; A violation of subdivision (g)(1)(H)(i) or (g)(1)(H)(ii) is a Class C misdemeanor; and This section shall not be construed to amend or abridge any contract or operating agreement between any court or county government and any agency or individual presently supplying probation supervisory services to a court or county government pursuant to this chapter; No private corporation, enterprise, or agency contracting to provide probation services under this section shall engage in any of the following: Any employment, business or activity that interferes or conflicts with the duties and responsibilities under the contracts authorized by this section; No corporation, enterprise or agency shall have personal business dealings, including, but not limited to, lending money, with probationers under its supervision; and No corporation, enterprise or agency shall permit any person to supervise a probationer who is a member of the supervisory personnel's immediate family; As used in this subdivision (g)(1), “immediate family” means and includes the supervisor’s mother, father, siblings, adult children or maternal and paternal grandparents. Except for fiscal and performance audits and reviews conducted by the comptroller of the treasury or the comptroller's designee in accordance with subdivision (g)(1)(A)(iv), subdivision (g)(1) does not apply in counties having a population, according to the 1990 federal census or any subsequent federal census, of: not less than nor more than 4,700 4,750 7,100 7,175 27,500 27,750 31,500 31,800 31,900 32,200 34,500 34,730 40,200 40,500 As used in this section, the term “governmental employee” means employees and officials of the state and its political subdivisions who are employed as law enforcement employees or officials, probation and parole employees or officials, judicial employees or officials or correctional employees or officials, including employees and officials of jails and workhouses. As used in this subsection (i), “sterilization” means the process of rendering an individual incapable of sexual reproduction by castration, vasectomy, salpingectomy, or some other procedure and includes endoscopic techniques for female sterilization that can be performed outside of a hospital without general anesthesia such as culdoscopic, hysteroscopic, and laparoscopic sterilization. A sentencing court shall not make a sentencing determination that is based in whole or in part on the defendant's consent or refusal to consent to any form of temporary or permanent birth control, sterilization, or family planning services, regardless of whether the defendant's consent is voluntarily given. This subsection (i) shall not apply to the provision of educational services on the matters of temporary or permanent birth control, sterilization, or family planning services. A judge shall, at the time of sentencing, notify a person convicted of a misdemeanor offense that is eligible for expunction of: The person's eligibility to have all public records of the conviction destroyed in the manner set forth in § 40-32-101; and The time period after which the person can petition for expunction of the offense. Acts 1989, ch. 591, § 6; 1990, ch. 1030, § 37; 1991, ch. 458, § 1; 1997, ch. 408, §§ 1-4; 2000, ch. 827, § 1; 2000, ch. 947, § 8J; 2001, ch. 359, § 1; 2002, ch. 802, § 1; 2007, ch. 158, § 1; 2009, ch. 124, § 1; 2011, ch. 319, §§ 1, 2; 2012, ch. 727, § 44; 2018, ch. 917, § 2; 2019, ch. 148, §§ 1, 2; 2019, ch. 244, § 1. Sentencing Commission Comments. This section is very similar to prior law and governs sentencing in misdemeanor cases. Subsection (a) permits the court to have a separate sentencing hearing with the option of a presentence report. See § 40-35-205(a) . If the judge elects not to have a full sentencing hearing, the parties must still be given an opportunity to address the court as to the appropriate sentence. Subsection (b) requires determinate sentences for misdemeanors. Felony sentences have specific authorized release eligibility dates. To achieve needed flexibility in misdemeanor sentencing, subsection (d) permits the trial judge a wide option in fixing the program eligibility percentage. After serving such a percentage of the sentence, the defendant is then eligible for consideration for certain rehabilitative programs. The percentages vary between zero percent and 75 percent. Subsection (e) continues the practice of permitting the court to have continuing jurisdiction over the defendant's sentence in misdemeanor cases so that the sentence may be modified at a later time in the discretion of the court. Subsection (f) authorizes and encourages the use of probation supervision by agencies other than the department of correction for those persons convicted of misdemeanors. Code Commission Notes. Former subdivision (g)(1)(B)(iii), concerning a person employed on July 1, 1997, was deemed obsolete by the code commission in 2006. 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. For the Preamble of 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 subdivision (f)(1), shall be fully accomplished on or before January 1, 2013. The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation. For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement. Acts 2018, ch. 917, § 3 provided that the act, which amended this section, shall apply to any plea agreement or plea of nolo contendere entered into or sentencing determination made on or after May 1, 2018. Amendments. The 2019 amendment by ch. 148 rewrote (g)(1)(A)(iv) which read: “(iv) Maintain documentation on all misdemeanor defendants sentenced to be supervised by the entity. All books, records and documentation maintained by the entity relating to work performed or money received for the supervision of misdemeanor defendants so sentenced shall be maintained for a period of three (3) full years from the date of the final payment or audit. The records shall be subject to audit, both fiscal and performance, at any reasonable time and upon reasonable notice by the court or courts in which the entity operates or their duly appointed representatives. The records shall be maintained in accordance with generally accepted accounting principles; and”; and added “Except for fiscal and performance audits and reviews conducted by the comptroller of the treasury or the comptroller's designee in accordance with subdivision (g)(1)(A)(iv),” at the beginning of (g)(2). The 2019 amendment by ch. 244 added (j). Effective Dates. Acts 2019, ch. 148, § 3. April 17, 2019. Acts 2019, ch. 244, § 2. July 1, 2019. Cross-References. Certain prisoners in local jails or workhouses, release on work-related programs, § 41-2-147 . Criminal inquiries compensation fund, § 40-24-107 . Enhancement factors, § 40-35-114 . Execution of judgment, title 40, ch. 23. Inmate release privileges, title 41, ch. 21, part 7. Mitigating factors, § 40-35-113 . Penalty for Class C misdemeanor, § 40-35-111 . Prisoner Rehabilitation Act, title 41, ch. 21, part 5. Probation, paroles, and pardons, title 40, ch. 28. Sentencing provisions applicable to persons committing crimes prior to July 1, 1982, title 40, ch. 20. Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 22.2, 32.122, 32.125, 32.133. Tennessee Jurisprudence, 4 Tenn. Juris., Automobiles, § 33; 8 Tenn. Juris., Criminal Procedure, § 43. Law Reviews. Misdemeanor Decriminalization, 68 Vand. L. Rev. 1055 (2015). Attorney General Opinions. Bill passed after its stated effective date, OAG 98-085, 1998 Tenn. AG LEXIS 85 (4/14/98). Consecutive sentencing for misdemeanors requires compliance with § 40-35-115 , OAG 98-150, 1998 Tenn. AG LEXIS 150 (8/12/98). Judge's authority to contract for probation services, OAG 99-029, 1999 Tenn. AG LEXIS 22 (2/17/99). Procedure where failure to appear in municipal court with general sessions jurisdiction charged, OAG 99-096, 1999 Tenn. AG LEXIS 96 (4/27/99). Judges have wide discretion to determine which qualified entity will supervise a probationer, provided that the determination is made impartially and on the basis of merit, OAG 08-175, 2008 Tenn. AG LEXIS 205 (11/18/08). Private act requirement that general sessions court use services of county probation office. OAG 13-70, 2013 Tenn. AG LEXIS 72 (9/4/13).