Tennessee § 40-35-402 - Appeal of sentence by state — Standard.

§ 40-35-402. Appeal of sentence by state — Standard.

The district attorney general in a criminal case may appeal from the length, range or manner of the service of the sentence imposed by the sentencing court. The district attorney general may also appeal the imposition of concurrent sentences. In addition, the district attorney general may also appeal the amount of fines and restitution imposed by the sentencing court. An appeal pursuant to this section shall be taken within the same time and in the same manner as other appeals in criminal cases. The right of the appeal of the state is independent of the defendant's right of appeal. An appeal from a sentence is limited to one (1) or more of the following conditions: The court improperly sentenced the defendant to the wrong sentence range; The court granted all or part of the sentence on probation; The court ordered all or part of the sentences to run concurrently; The court improperly found the defendant to be an especially mitigated offender; The court failed to impose the fines recommended by the jury; The court failed to order the defendant to make reasonable restitution; or The sentence is inconsistent with the purposes or considerations of sentencing set out in §§ 40-35-102 and 40-35-103. If the sentence is appealed by the state, the appellate court may affirm, vacate, set aside, increase or reduce the sentence imposed or remand the case or direct the entry of an appropriate order. When reviewing sentencing issues raised pursuant to this section, the appellate court shall conduct a de novo review on the record of the issues. The review shall be conducted with a presumption that the determinations made by the court from which the appeal is taken are correct. Acts 1989, ch. 591, § 6; 1998, ch. 796, §§ 1, 2; 2005, ch. 353, § 9. Sentencing Commission Comments. This section changes prior law relating to the state's right of appeal of sentencing determinations. Under this chapter, the state may now appeal from the length of the sentence imposed by asserting that the enhancement and mitigating factors were not properly weighed. The appellate court now has the authority to increase the length of a sentence. The standard of review is the same as where the defendant takes the appeal in that there is a presumption that the determination made by the trial court was correct. Thus, the state has the burden of establishing that the trial court imposed an improper sentence. 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 2005, ch. 353, § 18 provided that the act, which amended subsection (b), 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 (b), 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 . Cross-References. Appeal as of right by state, T.R.A.P. 3. Classification of offenses, § 40-35-110 . Enhancement factors, § 40-35-114 . Mitigating factors, § 40-35-113 . Penalties and misdemeanors, § 40-35-111 . Probation, paroles and pardons, title 40, ch. 28. Restitution, § 40-35-304 , title 41, ch. 6. Sentence ranges, § 40-35-112 . Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 12.41, 16.118, 22.2, 32.80, 32.271, 32.272, 32.163. Tennessee Forms (Robinson, Ramsey and Harwell), No. 3-37-1. Tennessee Jurisprudence, 4 Tenn. Juris., Automobiles, § 45; 8 Tenn. Juris., Criminal Procedure, § 51. Law Reviews. The Tennessee Court of Criminal Appeals: A Study and Analysis (Daniel J. Foley), 66 Tenn. L. Rev. 427 (1999).