Tennessee § 40-35-303 - Probation — Eligibility — Terms.

§ 40-35-303. Probation — Eligibility — Terms.

A defendant shall be eligible for probation under this chapter if the sentence actually imposed upon the defendant is ten (10) years or less; however, no defendant shall be eligible for probation under this chapter if convicted of a violation of § 39-13-213(a)(2), § 39-13-304, § 39-13-402, § 39-13-504, § 39-13-532, § 39-15-402, § 39-17-417(b) or (i), § 39-17-1003, § 39-17-1004 or § 39-17-1005. A defendant shall also be eligible for probation pursuant to § 40-36-106(e)(3). A court shall have authority to impose probation as part of its sentencing determination at the conclusion of the sentencing hearing. There shall be no petition for probation filed by the defendant and probation shall be automatically considered by the court as a sentencing alternative for eligible defendants; provided, that nothing in this chapter shall be construed as altering any provision of present statutory or case law requiring that the burden of establishing suitability for probation rests with the defendant. If the court determines that a period of probation is appropriate, the court shall sentence the defendant to a specific sentence but shall suspend the execution of all or part of the sentence and place the defendant on supervised or unsupervised probation either immediately or after a period of confinement for a period of time no less than the minimum sentence allowed under the classification and up to and including the statutory maximum time for the class of the conviction offense. Except as provided in subdivision (c)(2)(B), if probation is to be granted to a defendant convicted of any of the misdemeanor offenses set out in subdivision (c)(2)(C), subdivision (c)(1) shall govern the length of the term of probation. Notwithstanding subdivision (c)(2)(A), the judge may sentence a defendant convicted of any of the misdemeanor offenses set out in subdivision (c)(2)(C) to a period of probation not to exceed two (2) years, if the judge finds that the period of probation is necessary: For the defendant to complete any appropriate treatment program or programs, including, but not limited to, a sanctioned batterer's intervention program, an anger management program or any court-ordered drug or alcohol treatment program; To make restitution to the victim of the offense; To otherwise effect a change in the behavior of the defendant, including, but not limited to, imposing any of the conditions set forth in subsection (d); or To protect and better ensure the safety of the victim or any other member of the victim's family or household, as set out in subsections (m) and (n). The offenses to which this subdivision (c)(2) applies are: Domestic assault, as prohibited by § 39-13-111; Assault as prohibited by § 39-13-101, vandalism as prohibited by § 39-14-408, or false imprisonment as prohibited by § 39-13-302, where the victim of the offense is a person identified in § 36-3-601(5); Violation of a protective order, as prohibited by § 36-3-612; Stalking, as prohibited by § 39-17-315; and A second or third violation of § 55-10-401 if the judge orders a substance abuse treatment program as a condition of probation pursuant to § 55-10-402(a)(2)(B) or (a)(3)(B). Whenever a court sentences an offender to supervised probation, the court shall specify the terms of the supervision and may require the offender to comply with certain conditions that may include, but are not limited to: Meet the offender's family responsibilities; Devote the offender to a specific employment or occupation; Perform, without compensation, services in the community for charitable or governmental agencies; Undergo available medical or psychiatric treatment and enter and remain in a specified institution whenever required for that purpose by voluntary self-admission to the institution pursuant to § 33-6-201; Pursue a prescribed secular course of study or vocational training; Refrain from possessing a firearm or other dangerous weapon; Remain within prescribed geographical boundaries and notify the court or the probation officer of any change in the offender's address or employment; Submit to supervision by an appropriate agency or person and report as directed by the court; Satisfy any other conditions reasonably related to the purpose of the offender's sentence and not unduly restrictive of the offender's liberty or incompatible with the offender's freedom of conscience, or otherwise prohibited by this chapter; Make appropriate and reasonable restitution to the victim or the family of the victim involved pursuant to § 40-35-304; Undergo an alcohol and drug assessment or treatment, or both an assessment and treatment, if the court deems it appropriate and licensed treatment service is available; Unless the court makes a specific determination that the person is indigent, the expense of the assessment and treatment shall be the responsibility of the person receiving it. If the court finds that the person is indigent under the same standards as used in § 55-10-402(j), the expense or some portion of the expense may be paid from the alcohol and drug addiction treatment fund provided in § 40-33-211, pursuant to a plan and procedures developed by the department of mental health and substance abuse services; or Use a transdermal monitoring device or other alternative monitoring device if the court determines that the defendant's use of alcohol or drugs was a contributing factor in the defendant's unlawful conduct and the defendant is granted probation on or after July 1, 2014. If the defendant is granted probation on or after July 1, 2016, and the court orders a monitoring device but determines that the person is indigent, the court shall order that the portion of the costs of the device that the person is unable to pay be paid by the electronic monitoring indigency fund, established in § 55-10-419; As used in this subdivision (d)(12), “transdermal monitoring device” means any device or instrument that is attached to the person, designed to automatically test the alcohol or drug content in a person by contact with the person's skin at least once per one-half (½) hour regardless of the person's location, and which detects the presence of alcohol or drugs and tampering, obstructing, or removing the device. Probation shall be granted, if at all, at the time of the sentencing hearing except for sentences served in a local jail or workhouse, or except during the time a defendant sentenced to the department of correction is being housed in a local jail or workhouse awaiting transfer to the department as provided in § 40-35-212(d). The trial judge shall not have the authority to require that the defendant either secure or pay the costs accrued in the case at the instance of the state as a condition of conducting a hearing on the defendant's request for suspension of sentence and probation. The powers granted in this section shall be exercised by the judge of the trial court presiding at the trial of original conviction or by any successor judge holding court in that jurisdiction. No probationer shall be allowed to leave the jurisdiction of the probationer's probation officer without the express permission of the trial judge. In misdemeanor cases, as a condition precedent, the defendant must pay not less than ten dollars ($10.00) nor more than forty-five dollars ($45.00) per month as part payment of expenses incurred by the agency, department, program, group or association in supervising the defendant. The payment shall be made to the clerk of the court in which proceedings against the defendant were pending, to be sent to the agency, department, program, group or association responsible for the supervision of the defendant, unless the defendant is found to be indigent and without anticipated future funds with which to make the payment. The clerk of the court collecting the payment is permitted to retain five percent (5%) of the proceeds collected for the handling and receiving of the proceeds. The court may order the payments to be made directly to the agency, department, program, group or association responsible for the supervision of the defendant in lieu of making the payments to the clerk of the court. In addition to the costs imposed by subdivision (i)(1), the court may require the defendant to pay any or all costs for the defendant's supervision, counseling or treatment in a specified manner, based on the defendant's ability to pay. Willful failure to pay the supervision fee imposed by this subsection (i) to the supervising entity shall be grounds for revocation of probation and the supervising entity shall report all instances of nonpayment to the sentencing court. The provisions of this section relative to the payment of a supervision fee shall not apply to any person subject to chapter 28, part 2 of this title. The commissioner of correction, sheriff, warden, superintendent or other official having authority and responsibility for convicted defendants may contract with any appropriate public or private agency not under the commissioner's, sheriff's, warden's, superintendent's or other official's control for custody, care, subsistence, education, treatment or training of the defendants. The cost of the contract services shall be paid by the appropriate state or local entity to the department or the local jail or workhouse. A probation officer shall make reasonable and diligent effort to notify a victim of any felony that involved violence or the threat of violence that the defendant convicted of that offense is statutorily eligible for probation and that a hearing will be held to determine whether the defendant should be granted probation. The notice shall be given at least three (3) days prior to the hearing. If the victim is less than eighteen (18) years of age or is otherwise unavailable, the probation officer shall make all reasonable and diligent efforts to so notify the family, if any, of the victim. In determining whether a person convicted of the offense of stalking, aggravated stalking or especially aggravated stalking, as defined in § 39-17-315, or any criminal offense defined in title 39, chapter 13, in which the victim falls within the definition set forth in § 36-3-601(5), should be granted probation, the court shall consider the safety and protection of the victim of the offense and of any other member of the victim's family or household. If the court grants probation to a person convicted of an offense specified in subsection (m), it may condition the probation on compliance with one (1) or more orders of the court, including, but not limited to: Enjoining the perpetrator from threatening to commit or committing acts of violence against the victim or other household members; Prohibiting the perpetrator from harassing, annoying, telephoning, contacting or otherwise communicating, either directly or indirectly, with the victim; Requiring the perpetrator to stay away from the residence, school, place of employment or a specified place frequented regularly by the victim and by any designated family or household member; Prohibiting the perpetrator from possessing or consuming alcohol, controlled substances or controlled substance analogues; and Prohibiting the perpetrator from using or possessing a firearm or any other specified weapon and requiring the perpetrator to surrender and forfeit any weapon currently possessed. Probation officers meeting the requirements of this subsection (o) shall have the authority to serve warrants and make arrests solely relating to their duties as probation officers. A probation officer shall also have the authority to bring probationers before the court when directed by the court to do so. While acting in the performance of their duties as probation officers, the probation officers shall have the same authority as a peace officer while serving warrants and making arrests that relate solely to their duties as probation officers. Subdivision (o)(1) shall only apply to a probation officer: In any county having a charter form of government with a population of less than five hundred thousand (500,000), according to the 2000 federal census or any subsequent federal census; Employed by a probation office operated by a governmental entity; Who has completed training equal to the training required by the standards of the peace officer's standards and training commission (POST); and Who successfully completes at least forty (40) hours of appropriate in-service training each year. Because a probation officer meets the standards and requirements of subdivision (o)(2) does not mean the officer is eligible for the pay supplement for state certified officers authorized in § 38-8-111. This subsection (o) shall not apply to a state probation officer employed by the department of correction and paid by the state of Tennessee. If a defendant is granted probation pursuant to this section and is released to the department charged by law with the supervision of probationers, the department may contract with an approved private probation provider to furnish probation supervision and services to such defendant if: The defendant's conviction offense was for a Class E felony; and The caseloads of state probation officers where the defendant is being supervised are high, resulting in the likelihood that the probationer may receive increased supervision and services from a private probation provider; or The private probation provider offers specialized services, treatment or training that would be beneficial to a probationer but would not be available if the probationer is supervised by the department. To contract with the department for the supervision of felons described in subdivision (p)(1)(A), a private probation provider shall: Meet all qualifications established by the private probation council for entities providing misdemeanor probation services; Keep all records in an electronic format that is accessible upon demand by an approved state agency; Maintain professional liability insurance of not less than one million dollars ($1,000,000) in addition to a general liability policy; and Have been a private provider of misdemeanor probation services for courts exercising criminal jurisdiction in this state for at least fifteen (15) years; or Have been a private provider of misdemeanor probation services for courts exercising criminal jurisdiction in this state for at least two (2) years and a state probation officer for at least thirteen (13) years. A private probation provider who meets the requirements of subdivision (p)(2) and who wants to contract with the department to provide probation services to felons described in subdivision (p)(1)(A), may register with the department and the private probation council. At the time of registration, the private provider shall submit to the department and council: Such documentation as is necessary to demonstrate that it meets the requirements of subdivision (p)(2); and A specific plan demonstrating how the use of such provider to supervise and provide services to felons described in subdivision (p)(1)(A), who have been granted probation will further the overall goal of reducing the recidivism rate of probationers. Such plan shall also contain statistics for misdemeanor probation services provided by the private provider for the previous ten (10) years. At a minimum, the statistics contained in the plan shall contain the same information required to be maintained by subdivision (p)(5). If the documentation and recidivism rate reduction plan presented by the private provider demonstrates that it meets the requirements of subdivision (p)(2), the department and council shall approve the private provider and place such provider on a list of companies eligible to contract with the department pursuant to this subsection (p). A supervision contract authorized by this section shall be between the private provider and the department. Once the court grants a person's petition for probation, the department shall be the sole entity that determines who supervises the probationer. No probationer meeting the criteria set out in subdivision (p)(1)(A) shall be placed under the supervision of or supervised by a private provider that has not contracted with the department and is not on the list of companies approved by the department and the council. Any private provider who contracts with the department pursuant to this subsection (p) shall maintain statistics on the probationers supervised pursuant to this subsection (p) and shall submit a quarterly report of such statistics to the person or agency designated by the department. The statistics shall include, but not be limited to: The number of felony probationers described in subdivision (p)(1)(A) the private provider has contracted to supervise; The style of the case which resulted in the defendant being placed on probation; The number of felons described in subdivision (p)(1)(A), whose probation was revoked prior to the end of supervision; and The recidivism rate of the felony probationers supervised by the private provider under a contract authorized by this subsection (p). A private provider contracting to supervise felons described in subdivision (p)(1)(A) may charge a supervision fee not to exceed sixty dollars ($60.00) per month. However, if a probationer cannot afford all or part of the supervision fee, the probationer may go before the court placing the defendant on probation and petition that it be waived or reduced. For good cause shown, the court may waive or reduce the supervision fee in appropriate cases. Willful nonpayment of the supervision fee to the private probation provider shall be grounds for revocation and the provider shall report instances of nonpayment to the department in the manner specified in the contract. No employee of a private provider of probation services shall supervise a felon described in subdivision (p)(1)(A) unless the employee has a bachelor of science degree from an accredited college or university or at least two (2) years of related work experience. This subsection (p) shall not apply to offenders who are governed by the Interstate Compact for Supervision of Adult Offenders, codified in § 40-28-401. The supervision of those offenders shall be controlled by the compact. Acts 1989, ch. 591, § 6; 1990, ch. 982, § 4; 1990, ch. 1030, § 32; 1991, ch. 458, § 2; 1992, ch. 1009, § 1; 1993, ch. 221, § 3; 1994, ch. 978, § 3; 1995, ch. 410, § 4; 1997, ch. 211, § 6; 2000, ch. 740, § 1; 2000, ch. 947, § 8E; 2003, ch. 408, § 1; 2005, ch. 353, § 7; 2005, ch. 433, § 1; 2005, ch. 455, § 1; 2005, ch. 482, § 7; 2006, ch. 973, § 2; 2007, ch. 311, § 1; 2007, ch. 528, § 1; 2009, ch. 186, § 6; 2010, ch. 981, §§ 4, 6; 2010, ch. 1100, § 66; 2012, ch. 575, § 1; 2012, ch. 652, § 1; 2012, ch. 727, § 44; 2012, ch. 848, § 35; 2013, ch. 33, § 1; 2013, ch. 154, § 38; 2014, ch. 567, § 3; 2014, ch. 902, § 5; 2016, ch. 993, § 14; 2016, ch. 1021, § 1; 2018, ch. 1046, § 3. Sentencing Commission Comments. This section deals with the eligibility criteria for probation and the procedural aspects of probation supervision. Subsection (a) provides that, with certain exceptions, a defendant may be granted probation where the sentence imposed is eight years or less. Although prior law set this at 10 years, the present provisions will capture most of the same type of offenders because of the sentencing structure. Certain categories of felony classifications preclude probation eligibility since, by definition, they exceed eight years. Thus, all persons convicted of Class A felonies are ineligible for probation as a matter of law. Similarly, Class B felonies preclude probation where the defendant is a Range II or Range III offender. This is also the case for Class C felonies where the defendant is found to be a Range III offender. Some ranges permit probation eligibility depending on the number of years actually imposed. For example, a Range II, Class C, felony carries a sentence of between six and 10 years. If the judge imposes a sentence in excess of eight years, then the defendant may not be placed on probation. There are several specified exceptions to probation eligibility even where the defendant receives a sentence of eight years or less. Under subsection (a), a defendant convicted of certain drug offenses pursuant to § 39-17-417(b) or (i), aggravated kidnapping pursuant to § 39-13-304 , aggravated robbery pursuant to § 39-13-402 , aggravated child abuse pursuant to § 39-15-402 , or aggravated sexual battery pursuant to § 39-13-504 , is ineligible for probation. Subsection (a) was amended in 1993 to allow a defendant sentenced to community corrections to be placed on probation, including an offender originally ineligible for probation, after service of one (1) year on community corrections. As noted, the provisions of subsection (a) provide that the defendant may be sentenced to probation if the sentence imposed is eight years or less. This is similar to language under prior law which looks to the length of the sentence in individual convictions to determine eligibility. In State v. Langston, 708 S.W.2d 830 (Tenn. 1986), the court found that where the defendant had multiple convictions and the total sentence structure exceeded that for probation eligibility, the defendant would still be eligible for probation consideration if the individual convictions fell within the probation eligibility criteria. The commission intends this interpretation to continue to apply to probation eligibility determinations. Subsection (b) is similar to prior law and provides that the court must consider probation as a sentencing alternative for eligible defendants. The last sentence in subsection (b) provides that the defense must establish that the defendant is otherwise suitable for probation consideration. In other words, even though probation must be automatically considered as a sentencing option for eligible defendants, the defendant is not automatically entitled to probation as a matter of law. This subsection should be read in conjunction with § 40-35-102(6) . Subsection (c) provides that the judge must fix a specific sentence even where probation is granted. The judge must then fix the duration of the period of probation. There is no requirement that the duration of probation be the same as the length of the sentence imposed. However, the duration of the probation must be at least the length of the statutory minimum sentence. Further, even though the length of the actual sentence is restricted to that required by the particular range, the judge may fix the length of probation up to the statutory maximum for the class of the offense. For example, the judge could find that the defendant, convicted of a Class D felony, is a Range I, standard offender and impose a sentence of two years, which could be suspended for a period of time up to 12 years, because the statutory maximum for a Class D felony is 12 years. However, the probation period could not be less than two years. The commission believes that courts should have a great degree of latitude in fixing the length of probation since this might encourage the use of probation as a sentencing alternative. An extended time on probation supervision may be warranted where the defendant has to make a great deal of restitution to the victim. It should be noted that the trial judge may always modify the length of the terms of probation pursuant to § 40-35-308 . Subsection (d) sets forth some of the conditions which a court may impose upon a defendant sentenced to probation supervision. This list is intentionally non-exclusive since the court should have the discretion to design appropriate conditions of probation drafted to the individual defendant. Subsections (e)-(k) deal with administrative aspects of probation supervision and are similar to prior law on the subject. Subsection (l ) provides that the victim of any felony involving violence or the threat of violence must be notified by the probation officer that the defendant might be statutorily eligible for probation. Prior law requires the judge to make this notification. 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. The reference to § 55-10-402 in subdivision (d)(11)(B) has been changed from § 55-10-402(h)(2) to § 55-10-402(j) to reflect amendments to § 55-10-402 by Acts 2014, ch. 902, §§ 1-4, effective July 1, 2014. Acts 2005, ch. 353, § 18, which amended subsection (a), provided that the act shall apply to sentencing for criminal offenses committed on or after June 7, 2005. Offenses committed prior to June 7, 2005, shall be governed by prior law, which shall apply in all respects. However, for defendants who are sentenced after June 7, 2005, for offenses committed on or after July 1, 1982, the defendant may elect to be sentenced under the provisions of the act by executing a waiver of such defendant’s ex post facto protections. Upon executing such a waiver, all provisions of the act shall apply to the defendant. Acts 2005, ch. 353, § 19 provided that the act, which amended subsection (a), shall have no application to sentencing for persons convicted of murder in the first degree, which shall be governed by the provisions of §§ 39-13-202 — 39-13-208 . Acts 2007, ch. 311, § 3 provided that the act, which added subdivision (d)(11), shall apply to any conviction for conduct occurring on or after July 1, 2007. For an Order transferring the bureau of alcohol and drug abuse services from the department of health to the department of mental health and developmental disabilities, except for functions related to the licensing of alcohol and drug abuse counselors, see Executive Order No. 44 (February 23, 2007). For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement. 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 subdivision (o)(4), shall be fully accomplished on or before January 1, 2013. Acts 2014, ch. 567, § 6 provided that the act, which added subdivision (d)(12), shall be known and may be cited as “Amelia's Law”. Acts 2014, ch. 902, § 8 provided that the act shall apply to any person committing a second or third violation of § 55-10-401 on or after July 1, 2014. If a person commits a second or third violation of § 55-10-401 prior to July 1, 2014, but the conviction for such offense does not occur until after July 1, 2014, the person shall elect to the judge at the time of conviction whether to come within the provisions of the act or be sentenced in accordance with the law in effect at the time the offense was committed. Acts 2018, ch. 1046, § 12 provided that the act, which amended this section, shall apply to offenses committed on or after July 1, 2018. Cross-References. Community work projects for probationers, title 41, ch. 9, part 1. County community work projects for probationers, title 41, ch. 9, part 2. Determination of risk to victim or family members prior to release, § 40-11-150 . Penalty for Class E felony, § 40-35-111 . Prisoner Rehabilitation Act, title 41, ch. 21, part 5. Probation, paroles, and pardons, title 40, ch. 28. Purpose of chapter, § 40-35-102 . Restitution, title 41, ch. 6. Sentencing considerations, § 40-35-103 . Sentencing provisions applicable to persons committing crimes prior to July 1, 1982, title 40, ch. 20. Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 32.191, 32.192, 32.193, 32.197, 32.252, 32.253, 33.14. Tennessee Forms (Robinson, Ramsey and Harwell), No. 3-11-9. Tennessee Jurisprudence, 4 Tenn. Juris., Automobiles and Other Vehicles, § 35.1; 8 Tenn. Juris., Criminal Procedure, § 43. Law Reviews. Judicial Discretion Under the New Tennessee Criminal Sentencing Reform Act of 1982 (Thomas A. Wiseman, Jr.), 18 No. 4 Tenn. B.J. 13 (1982). Wealth-Based Penal Disenfranchisement, 72 Vand. L. Rev. 55 (January 2019). Attorney General Opinions. Collection of supervision fee by private probation service, OAG 99-029, 1999 Tenn. AG LEXIS 22 (2/17/99). Inclusion of medical expenses incurred on behalf of inmate as jail fees taxable in bill of costs such that reimbursement can be condition of probation pursuant to T.C.A. § 40-35-303(d) , OAG 03-072, 2003 Tenn. AG LEXIS 90 (6/10/03).