2010 Tennessee Code
Title 40 - Criminal Procedure
Chapter 35 - Criminal Sentencing Reform Act of 1989
Part 3 - Sentences
40-35-303 - Probation Eligibility Terms.

40-35-303. Probation Eligibility Terms.

(a)  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 § 39-13-304, § 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).

(b)  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.

(c)  (1)  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 thereof 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.

     (2)  (A)  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), the provisions of subdivision (c)(1) shall govern the length of the term of probation.

          (B)  Notwithstanding the provisions of 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:

                (i)  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;

                (ii)  To make restitution to the victim of the offense;

                (iii)  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

                (iv)  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).

          (C)  The offenses to which this subdivision (c)(2) applies are:

                (i)  Domestic assault, as prohibited by § 39-13-111;

                (ii)  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(8);

                (iii)  Violation of a protective order, as prohibited by § 36-3-612; and

                (iv)  Stalking, as prohibited by § 39-17-315.

(d)  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:

     (1)  Meet the offender's family responsibilities;

     (2)  Devote the offender to a specific employment or occupation;

     (3)  Perform, without compensation, services in the community for charitable or governmental agencies;

     (4)  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;

     (5)  Pursue a prescribed secular course of study or vocational training;

     (6)  Refrain from possessing a firearm or other dangerous weapon;

     (7)  Remain within prescribed geographical boundaries and notify the court or the probation officer of any change in the offender's address or employment;

     (8)  Submit to supervision by an appropriate agency or person, and report as directed by the court;

     (9)  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;

     (10)  Make appropriate and reasonable restitution to the victim or the family of the victim involved pursuant to § 40-35-304; or

     (11)  (A)  Undergo an alcohol and drug assessment, treatment, or both an assessment and treatment, if the court deems it appropriate and licensed treatment service is available;

          (B)  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 § 55-10-403(a)(4)(B), 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 developmental disabilities.

(e)  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).

(f)  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.

(g)  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.

(h)  No probationer shall be allowed to leave the jurisdiction of the probationer's probation officer without the express permission of the trial judge.

(i)  (1)  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.

     (2)  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.

(j)  The provisions of this section relative to the payment of a supervision fee shall not apply to any person subject to the provisions of chapter 28, part 2 of this title.

(k)  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.

(l)  A probation officer shall make reasonable and diligent effort to notify a victim of any felony which 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.

(m)  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(8), 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.

(n)  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:

     (1)  Enjoining the perpetrator from threatening to commit or committing acts of violence against the victim or other household members;

     (2)  Prohibiting the perpetrator from harassing, annoying, telephoning, contacting or otherwise communicating, either directly or indirectly, with the victim;

     (3)  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;

     (4)  Prohibiting the perpetrator from possessing or consuming alcohol or controlled substances; and

     (5)  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.

(o)  (1)  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.

     (2)  The provisions of subdivision (o)(1) shall only apply to a probation officer:

          (A)  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;

          (B)  Employed by a probation office operated by a governmental entity;

          (C)  Who has completed training equal to the training required by the standards of the peace officer's standards and training commission (POST); and

          (D)  Who successfully completes at least forty (40) hours of appropriate in-service training each year.

     (3)  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.

     (4)  The provisions of this subsection (o) shall not apply to a state probation officer employed by the board of probation and parole and paid by the state of Tennessee.

[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.]  
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