Tennessee § 40-36-106 - Eligible offenders.

§ 40-36-106. Eligible offenders.

An offender who meets all of the following minimum criteria shall be considered eligible for punishment in the community under this chapter: Persons who, without this option, would be incarcerated in a correctional institution; Persons who are convicted of property-related or drug- or alcohol-related felony offenses or other felony offenses not involving crimes against the person as provided in title 39, chapter 13, parts 1-5; Persons who are convicted of nonviolent felony offenses; Persons who are convicted of felony offenses in which the use or possession of a weapon was not involved; Persons who do not demonstrate a present or past pattern of behavior indicating violence; and Persons who do not demonstrate a pattern of committing violent offenses. Persons who are sentenced to incarceration or are on escape at the time of consideration will not be eligible for punishment in the community. Offenders shall not be excluded from the program on the basis of prior convictions for nonviolent felony offenses, but may, at the discretion of the court and local community corrections advisory board, be excluded on the basis of prior convictions for felony offenses that would not meet the eligibility criteria provided in subsection (a). Felony offenders not otherwise eligible under subsection (a), and who would be usually considered unfit for probation due to histories of chronic alcohol or drug abuse or mental health problems, but whose special needs are treatable and could be served best in the community rather than in a correctional institution, may be considered eligible for punishment in the community under this chapter. The eligibility criteria established in this section shall be interpreted as minimum state standards, guiding the determination of eligibility of offenders under this chapter. Notwithstanding any law to the contrary, the court is authorized to sentence an eligible defendant as defined in this section to any appropriate community-based alternative to incarceration provided in accordance with the terms of this chapter, and under the additional terms and conditions as the court may prescribe, in lieu of incarceration in a state penal institution or local jail or workhouse. In sentencing an eligible defendant to any community-based alternative to incarceration, the court shall possess the power to set the duration of the sentence for the offense committed at any period of time up to the maximum sentence within the appropriate sentence range and shall retain the authority to alter or amend at any time the length, terms or conditions of the sentence imposed. The court also has the power to terminate an offender from the program and to place the offender on supervised or unsupervised probation upon a showing that the offender did abide by the conditions imposed on the original sentence and that the offender's placement on probation presents no substantial risk to public safety. This authority of the court extends to offenders not originally eligible for probation after service of at least one (1) year. Failure to comply with the terms of probation subjects the offender to revocation proceedings conducted by the court pursuant to § 40-35-311. If incarcerated, the offender receives credit only for actual time served in the community-based alternative program. The court shall also possess the power to revoke the sentence imposed at any time due to the conduct of the defendant or the termination or modification of the program to which the defendant has been sentenced, and the court may resentence the defendant to any appropriate sentencing alternative, including incarceration, for any period of time up to the maximum sentence provided for the offense committed, less any time actually served in any community-based alternative to incarceration. The resentencing shall be conducted in compliance with § 40-35-210. The district attorney general, victim, defense attorney and probation and parole officer should be consulted regarding potential referrals to the program; however, the court shall have the final decision. Nothing in this section shall prevent a court from permitting an eligible defendant to participate in a community-based alternative to incarceration as a condition of probation in conjunction with a suspended sentence, split confinement or periodic confinement as provided in chapter 35 of this title. Acts 1985 (1st Ex. Sess.), ch. 3, § 6; 1993, ch. 221, § 2; 1996, ch. 675, § 38; 1998, ch. 1049, § 48; 2005, ch. 353, § 17. Compiler's Notes. Acts 2005, ch. 353, § 18 provided that the act, which added the last sentence of subdivision (e)(4), 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 added the last sentence of subdivision (e)(4), 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. Consecutive sentences, § 40-35-115 . Eligibility for parole, § 40-28-115 . Eligibility for probation, § 40-35-303 . Enhancement factors, § 40-35-114 . Mitigating factors, § 40-35-113 . Sentence ranges, § 40-35-112 . Sentencing alternatives, § 40-35-104 . Textbooks. Tennessee Forms (Robinson, Ramsey and Harwell), No. 3-32-6. Law Reviews. Long-term Residential Substance Abuse Treatment and its Effect on Recidivism (Hon. Seth Norman), 36 No. 6 Tenn. B.J. 20 (2000). Attorney General Opinions. Resentencing of one sentenced to community corrections, OAG 99-111, 1999 Tenn. AG LEXIS 111 (5/13/99). No credit as actual time served for time spent on probation, OAG 99-111, 1999 Tenn. AG LEXIS 111 (5/13/99). An offender is ineligible for community corrections if, at the time of consideration, the offender is already serving a sentence of incarceration or has already been sentenced to incarceration, even if the community corrections sentence is proposed to run consecutively to the sentence of incarceration or if the intent is for the community corrections sentence to begin at the expiration of the existing sentence of incarceration; further, it is immaterial whether the period of incarceration which disqualifies an offender is to be served in the department of correction, is a part of a judgment ordering split confinement or periodic confinement, or is for a misdemeanor sentence, OAG 00-078, 2000 Tenn. AG LEXIS 81 (4/27/00). The Tennessee Department of Correction has the sole authority to supervise and direct the community corrections program and establish standards according to which community corrections grantees and their employees must operate. Under the current standards, community corrections officers do not have authority to conduct searches. A court may impose conditions on an individual who is sentenced to community corrections, including requiring the individual to consent to searches of his home or property., but a court may not order or authorize a community corrections officer to conduct a search of an offender if the officer lacks authority to do so. OAG 18-08, 2018 Tenn. AG LEXIS 7 (3/8/2018).