Around the Community

AROUND THE COMMUNITY By: Mitch Eisenberg

Assistant District Attorney Knox County

ALTERNATIVE SENTENCING UPDATE

Alternative sentencing is a recognized part of Tennessee law.1 There have been recent changes to the Sentencing Reform Act that significantly affect judicial authority for probationary sentences and revocations of probation. This article will highlight three of those changes that reduce the amount of time authorized for probationary sentences and alter judicial discretion to extend or revoke a defendant’s probationary sentence in certain situations

Changes to the Maximum Time Period of Probation

A change to T.C.A. § 40-35-303(c)(1), effective July 1, 2021, limits a sentence to probation to eight years for one conviction and ten years for more than one conviction. Prior to this change, there was no limit to the total period of probation, only that each guilty offense must be a probation eligible offense with an individual sentence of 10 years or less.2

The new law applies a time limit per “conviction” and not “sentence.” Conviction, as used throughout the Tennessee code, likely means the final cumulative result of a single criminal court case.3 Therefore, the 8 or 10 year limit is a ceiling per total cumulative sentence, either for an individual conviction of 8 years on probation for one or more sentences in a single case or 10 years for more than one conviction across separate cases with possible separate counts.

It’s not clear what is allowed when a defendant picks up a new conviction while already on probation. Arguably, when a court “imposes a period of probation” for a conviction, they are acting on the new case before them. Therefore, with a prior conviction where probation has already been imposed, the court is instead acting on a revocation of probation and not imposing a period of probation. So, if a new conviction is ordered consecutive to a revocation of probation sentence, it’s possible the effective period on probation could exceed the 10 year limit imposed on new convictions under this change.

Extensions of Probation

A change to T.C.A. § 40-35-308(c), effective July 1, 2021, significantly changed the substance and procedure for court-ordered extensions of probation. This is the process whereby a court, after a revocation hearing, instead of revoking a probationer to serve a sentence in custody or restarting the sentence, can choose to extend a defendant’s probation.

Prior law allowed this extension “for any period not in excess of two (2) years” and was silent as to any process for determining when an extension was warranted, only stating the court “shall have the authority.” Now, courts are guided by a process with required findings on the record prior to extending probation. Extensions are now limited to one-year, BUT subsequent one-year extensions are authorized for subsequent violations of probation. Lastly, extensions under this section are only authorized when the defendant fails to comply with court-ordered treatment programming, has unlawfully contacted a victim or victim’s family, or has willfully failed to pay restitution.

The failure to comply with treatment must be more than a single instance as the law states “repeatedly” and must be intentional. In addition, the treatment must be court-ordered. Victim contact must be intentional and have violated “conditions of probation regarding contact.” Lastly, the failure to pay restitution must be intentional, the defendant must have the ability to pay, and extending the period of probation would be more effective than other available options to ensure the defendant pays the restitution.

Revocations of Probation

Multiple changes were made to the substance and process for revocations of probation under T.C.A. § 40-25-310 and 311. Two important changes include providing judicial discretion to grant sentence credit for time served successfully while on probation and a limitation on revocations for technical violations.

First, the change to T.C.A. § 40-25-310(a), effective July 1, 2021, allows a trial court to exercise their discretion to give credit against the original judgment by the amount of time a defendant successfully served on probation. The law is silent as to the process and procedure for such a finding, only stating the court “may” grant credit for time “successfully served.” These credits could significantly reduce the amount of time a probationer is ordered to serve should they be revoked to serve a sentence.

Second, changes to T.C.A. § 40-25-311, effective July 1, 2021, limits a judge’s authority to revoke probation for purely “technical violations.” A “technical violation” is defined as an act that violates the terms and conditions of probation but does not include a new felony, a new Class A Misdemeanor, a zero tolerance violation as defined by the department of correction community supervision sanction matrix, or absconding.

Importantly, with this change, a judge is prohibited from revoking probation based upon one instance of a technical violation. The language is a little confusing for second or subsequent violations since the code switches between violation and revocation. However, for technical violations, the court is limited to a specific maximum time of temporarily revoking probation to incarceration as follows: fifteen days (15) for a first revocation (the second violation since for the first purely technical violation the judge would have been prohibited from any revocation); thirty (30) days for a second revocation (the third violation); ninety (90) days for a third revocation (the fourth violation); and the remainder of the sentence for a fourth or subsequent revocation (the fifth or greater violation).

The important things to consider in these situations is what type of violation is before the court – technical or non-technical? If purely technical – how many technical violations have been found by the court previously? Lastly, in any situation, if there are non-technical violations, among other options, a judge may revoke probation and suspension of the sentence and make the defendant serve that sentence.

The changes highlighted above are significant and alter the allowable terms and conditions of alternative sentencing. These are not the only changes recently made and history shows us the process and procedure of alternative sentencing will continue to change. The newly amended sections discussed above are worth reading in their entirety, as is the current Sentencing Reform Act in order to get a sense of the general nature of how the parts all work together.

1 This was not always the case. In 1911, the Tennessee Supreme Court found courts had no authority to suspend sentences. See, Spencer v. State, 125 Tenn. 64, 140 S.W. 597 at 599 (1911). In 1931, the legislature granted trial judges some authority to suspend sentences and that authority has continued to evolve. Public Acts of 1931, Chapter 76. 2 State v. Langston, 708 S.W.2d 830 (Tenn. 1986)(“sentence” refers to each individual offense defendant was guilty of and not the cumulation of all charges). 3 See e.g., T.C.A. § 40-30-101 et al. Post-Conviction Procedure; T.C.A. § 40-35-106 to 108 discussing prior convictions which qualify for defender classification in sentencing; and T.C.A. §40-35-115 discussing sentencing for multiple convictions.