Tennessee Code > Title 40 > Chapter 35 > Part 3 > § 40-35-302. Misdemeanor sentencing — Rehabilitative program credits — Probation — Supervision of defendants on probation
Current as of: 2010
(a) In imposing a sentence for a misdemeanor, the court may conduct a separate sentencing hearing. If the court does not conduct a separate sentencing hearing, the court shall allow the parties a reasonable opportunity to be heard on the question of the length of any sentence and the manner in which the sentence is to be served.
(b) In imposing a misdemeanor sentence, the court shall fix a specific number of months, days or hours, and the defendant shall be responsible for the entire sentence undiminished by sentence credits of any sort except for credits authorized by § 40-23-101, relative to pretrial jail credit, or §§ 33-5-406 and 33-7-102, relative to mental examinations and treatment, and credits awarded in accordance with either, but not both, § 41-2-111 or § 41-2-147. The court shall impose a sentence consistent with the purposes and principles of this chapter.
(c) When a defendant is serving a misdemeanor sentence, the defendant shall be continuously confined for the duration of the sentence except as provided in subsections (d) and (e); provided, that nothing in this section shall be construed as prohibiting a defendant, in the discretion of the workhouse superintendent or sheriff, from participating in work crews during the time the defendant is to be continuously confined.
(d) In imposing a misdemeanor sentence, the court shall fix a percentage of the sentence that the defendant shall serve. After service of such a percentage of the sentence, the defendant shall be eligible for consideration for work release, furlough, trusty status and related rehabilitative programs. The percentage shall be expressed as zero percent (0%), ten percent (10%), twenty percent (20%), thirty percent (30%), forty percent (40%), fifty percent (50%), sixty percent (60%), seventy percent (70%) but not in excess of seventy-five percent (75%). If no percentage is expressed in the judgment, the percentage shall be considered zero percent (0%). When the defendant has served the required percentage, the administrative authority governing the rehabilitative program shall have the authority, in its discretion, to place the defendant in the programs as provided by law. In determining the percentage of the sentence to be served in actual confinement, the court shall consider the purposes of this chapter, the principles of sentencing, and the enhancement and mitigating factors set forth in this chapter, and shall not impose such percentages arbitrarily.
(e) The court has authority to place the defendant on probation either:
(1) After service of a portion of the sentence in periodic confinement or continuous confinement; or
(2) Immediately after sentencing.
(f) (1) The general sessions courts shall not place a defendant who is convicted of a misdemeanor on probation under the supervision of the state board of probation and parole. Nothing in this subsection (f) is intended to restrict the use, where necessary, of any county probation service or private probation company established for the purpose of supervising defendants convicted of misdemeanors, unless the offender is currently being supervised by the state board of probation and parole on a felony offense.
(2) When a person employed to provide probation services to defendants convicted of a misdemeanor, whether employed by a municipality, county or a private probation company, is first assigned a new probationer, the person shall conduct a search of the Tennessee bureau of investigation's sexual offender and violent sexual offender registration, verification, and tracking database to determine if the probationer is a sexual offender or violent sexual offender. If so, the probation officer shall inform the sentencing judge of the probationer's status, if the status is not already known. If the probationer remains on probation, the officer shall also monitor the probationer's compliance with the requirements of § 40-39-211.
(g) (1) Except as provided in subdivision (g)(2):
(A) A private entity that provides probation supervisory services shall be required to perform all of the following:
(i) Provide a report to the clerk of the criminal court and general sessions court in each judicial district in which the entity proposes to provide misdemeanor probation services on a quarterly basis in a form and manner as is specified by the clerk, provided the report shall contain all of the information required in subdivision (g)(1)(G);
(ii) Provide an application form to all of the criminal court and general sessions court judges in each judicial district in which the entity proposes to provide misdemeanor probation services. The application shall be on a form and in a manner specified by the judges and shall contain all of the information required by subdivision (g)(1)(E);
(iii) Supervise all misdemeanor defendants sentenced by a proper order of probation to be supervised by the entity and to assist the defendants so sentenced in completing all court-ordered conditions of probation;
(iv) Maintain documentation on all misdemeanor defendants sentenced to be supervised by the entity. All books, records and documentation maintained by the entity relating to work performed or money received for the supervision of misdemeanor defendants so sentenced shall be maintained for a period of three (3) full years from the date of the final payment or audit. The records shall be subject to audit, both fiscal and performance, at any reasonable time and upon reasonable notice by the court or courts in which the entity operates or their duly appointed representatives. The records shall be maintained in accordance with generally accepted accounting principles; and
(v) Any additional duties that the judge or judges of the courts for which the entity provides misdemeanor probation supervisory services may in writing require.
(B) The following minimum education standards are required for certain employees of an entity established for the purpose of supervising misdemeanor probationers:
(i) The chief executive officer of an entity offering probation supervision shall have a bachelor's degree from an accredited university in any of the following fields: criminal justice, administration, social work, or the behavioral sciences and two (2) years of experience in criminal justice or social work; provided, that four (4) years of professional administrative experience with an organization providing services in criminal justice or social work may be substituted for the bachelor's degree; and
(ii) An employee responsible for providing probation supervision and employed by an entity shall have at least four (4) years of experience in a criminal justice or a social services agency providing counseling services or shall have a bachelor's degree or associate's degree from an accredited college or university.
(C) Any entity providing probation supervisory services shall post a liability insurance policy and a performance bond in the amounts stated:
(i) A liability insurance policy in an amount at least equal to the limits of governmental liability established in the Governmental Tort Liability Act, compiled in title 29, chapter 20, that is in effect on the date the services are provided. Nothing in this subdivision (g)(1)(C)(i) shall be construed as prohibiting the entity from carrying a liability insurance policy in excess of the limits of liability provided in the Governmental Tort Liability Act. The policy shall be for the purpose of reimbursing an injured or aggrieved party for any damages or expenses for which the entity providing probation supervisory services is found liable by a court of competent jurisdiction.
(ii) A performance bond issued by a corporate surety in the amount of twenty-five thousand dollars ($25,000). The bond shall be to provide recourse to the governmental entity for which the entity is providing probation supervisory services in the event of nonperformance, default, bankruptcy or failure of the entity to perform the required services.
(iii) The comptroller of the treasury shall design a uniform performance bond form to be used by all private entities providing misdemeanor probation supervisory services in this state.
(iv) A copy of the liability insurance policy and the performance bond shall be filed with the clerk of all courts in each county in which the entity proposes to provide probation supervisory services.
(D) Any entity providing or proposing to provide misdemeanor probation services shall investigate the criminal record for each employee and shall include in its application form any criminal conviction of each employee.
(E) The application form required by subdivision (g)(1)(A)(ii) shall contain the following information:
(i) The title of the entity;
(ii) Its form of business organization;
(iii) The office and mailing address of the entity;
(iv) The names of the employees who will provide services and their position with the entity, and their credentials;
(v) A sworn statement that the credentials of all employees meet the minimum standards under subdivision (g)(1)(B);
(vi) A sworn statement that a criminal record search has been conducted and, if a criminal conviction has been discovered, the name of the employee and the criminal conviction;
(vii) A credit history of the entity including any judgments or lawsuits; and
(viii) A description of the services to be provided by the entity and the fee structure for the services to be provided.
(F) The application required by subdivision (g)(1)(A)(ii) shall also contain an affidavit filed under penalties of perjury that it is complete and accurate and contains all of the information required by subdivision (g)(1)(E). The application with the affidavit shall be filed with the clerk of the criminal court and general sessions court in each judicial district in which the entity proposes to provide misdemeanor probation services.
(G) The quarterly report required to be filed pursuant to subdivision (g)(1)(A)(i) shall include the following information:
(i) The caseload for the entity;
(ii) The number of contact hours with offenders;
(iii) The services provided;
(iv) The number of filings for probation revocation and their dispositions;
(v) A financial statement including administrative costs and service costs; and
(vi) Contributions, if any, to the criminal injuries compensation fund.
(H) (i) It is an offense for a governmental employee, including a judge, or the employee's immediate family, to have a direct or indirect personal interest in a private entity that provides probation supervisory services or to receive anything of value in an individual capacity from the entity.
(ii) It is an offense for a private entity that provides probation supervisory services to give or offer to give anything of value to a governmental employee, including a judge, or the employee's immediate family, in the employee's individual capacity.
(iii) A violation of subdivision (g)(1)(H)(i) or (ii) is a Class C misdemeanor; and
(iv) The provisions of this section shall not be construed to amend or abridge any contract or operating agreement between any court or county government and any agency or individual presently supplying probation supervisory services to a court or county government pursuant to this chapter.
(I) No private corporation, enterprise, or agency contracting to provide probation services under the provisions of this section shall engage in any of the following:
(i) Any employment, business, or activity that interferes or conflicts with the duties and responsibilities under the contracts authorized by this section;
(ii) No corporation, enterprise or agency shall have personal business dealings, including but not limited to, lending money, with probationers under its supervision; and
(iii) No corporation, enterprise, or agency shall permit any person to supervise a probationer who is a member of the supervisory personnel's immediate family. As used in this subdivision (g)(1), "immediate family" shall mean and include the supervisor's mother, father, siblings, adult children or maternal and paternal grandparents.
(2) This subsection (g) does not apply in counties having a population, according to the 1990 federal census or any subsequent federal census, of:
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(h) As used in this section, the term "governmental employee" means employees and officials of the state and its political subdivisions who are employed as law enforcement employees or officials, probation and parole employees or officials, judicial employees or officials or correctional employees or officials, including employees and officials of jails and workhouses.
[Acts 1989, ch. 591, § 6; 1990, ch. 1030, § 37; 1991, ch. 458, § 1; 1997, ch. 408, §§ 1-4; 2000, ch. 827, § 1; 2000, ch. 947, § 8J; 2001, ch. 359, § 1; 2002, ch. 802, § 1; 2007, ch. 158, § 1; 2009, ch. 124, § 1.]
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