Tenn. Code § 40-35-501

Current through Acts 2019, ch. 513
Section 40-35-501 - Release eligibility status - Calculations
(a)
(1) A felony sentence to the department of correction or to a local jail or workhouse shall be served according to this chapter. An inmate shall not be eligible for parole until reaching the inmate's release eligibility date; provided, that nothing in this section shall be construed as prohibiting the offender, in the discretion of the commissioner or sheriff, from participating in work crews that are under direct guard supervision.
(2) Except for inmates who receive sentences of imprisonment for life without possibility of parole, only inmates with felony sentences of more than two (2) years or consecutive felony sentences equaling a term greater than two (2) years shall be eligible for parole consideration.
(3) Notwithstanding any other provision of law, inmates with felony sentences of two (2) years or less shall have the remainder of their original sentence suspended upon reaching their release eligibility date. The release shall not occur for sentences of two (2) years or less when the sentences are part of a consecutive sentence whose term is greater than two (2) years. The department of correction shall notify the district attorney general and the appropriate sheriff, jail administrator, workhouse superintendent or warden of the release eligibility date of all felons with sentences of two (2) years or less in the institution.
(4) No inmate shall be released under this section until at least ten (10) days after receipt of all sentencing documents by the department and ten (10) days after the department has sent notice of the release eligibility dates to the district attorney general and the appropriate sheriff, jail administrator, workhouse superintendent or warden.
(5) Suspension of sentence in this manner shall be to probation supervision under terms and conditions established by the department.
(6)
(A) The district attorney general or the appropriate sheriff, jail administrator, workhouse superintendent or warden acting through the district attorney general may file a petition with the sentencing court requesting denial of suspension of sentence based on disciplinary violations during time served in the institution. The district attorney general may file a petition with the sentencing court requesting denial of suspension of sentence based on the offender's threat to public safety as indicated by a pattern of prior violent or drug-related criminal behavior evidenced by convictions for at least two (2) crimes against the person or two (2) drug offenses under § 39-17-417. The district attorney general shall promptly send a copy of any petition filed under this subsection (a) to the appropriate sheriff, jail administrator, workhouse superintendent, warden and defense attorney.
(B) The court may deny suspension for the remainder of the sentence or any portion of the sentence after a hearing to determine the merits of the petition. The hearing shall be held within twenty (20) days of filing or the petition is deemed to be denied and may be continued by the court for reasonable cause. The inmate may petition the court for review of the denial of probation after sixty (60) days have elapsed since a hearing denying release under this subsection (a). There shall be no appeal from a court order or judgment under this subsection (a). Upon denial of suspension of sentence the clerk of the court shall promptly notify the department.
(7)
(A) For those individuals placed on probation pursuant to subdivision (a)(3), the court is authorized to revoke probation pursuant to the revocation proceedings of § 40-35-311. If the sentencing court revokes probation, the sentencing court may cause the defendant to commence the execution of the judgment as originally entered, less any credit for time served, plus any sentence credits earned and retained by the inmate. Any defendant who has been placed on probation pursuant to subdivision (a)(3), and whose probation is subsequently revoked on the same sentence, is no longer eligible for release on probation pursuant to subdivision (a)(3). However, a defendant who is placed on probation pursuant to § 40-35-303, § 40-35-306, or § 40-35-307, and whose probation is revoked pursuant to § 40-35-311, shall not be ineligible for release on that sentence pursuant to subdivision (a)(3).
(B) Nothing in subdivision (a)(7)(A) prohibits the sentencing court from:
(i) Suspending the original sentence at any time prior to its expiration, notwithstanding whether the offender is incarcerated in a local jail or a prison; or
(ii) Resentencing the defendant for the remainder of the unexpired sentence to any community-based alternative to incarceration authorized by chapter 36 of this title; provided, that the violation of probation is a technical one and does not involve the commission of a new offense.
(b) Release eligibility for each defendant sentenced as an especially mitigated offender shall occur after service of either twenty percent (20%) or thirty percent (30%) of the actual sentence imposed, less sentence credits earned and retained by the defendant. The percentage of service shall be stated on the judgment order. If the order is silent, release eligibility shall occur after service of twenty percent (20%) of the actual sentence imposed.
(c) Release eligibility for each defendant sentenced as a Range I standard offender shall occur after service of thirty percent (30%) of the actual sentence imposed less sentence credits earned and retained by the defendant.
(d) Release eligibility for each defendant sentenced as a Range II multiple offender shall occur after service of thirty-five percent (35%) of the actual sentence imposed less sentence credits earned and retained by the defendant.
(e) Release eligibility for each defendant sentenced as a Range III persistent offender shall occur after service of forty-five percent (45%) of the actual sentence imposed less sentence credits earned and retained by the defendant.
(f) Release eligibility for each defendant sentenced as a career offender shall occur after service of sixty percent (60%) of the actual sentence imposed less sentence credits earned and retained by the defendant.
(g) There shall be no release eligibility for a defendant receiving a sentence of imprisonment for life without parole as a repeat violent offender.
(h)
(1) Release eligibility for each defendant receiving a sentence of imprisonment for life for first degree murder shall occur after service of sixty percent (60%) of sixty (60) years less sentence credits earned and retained by the defendant, but in no event shall a defendant sentenced to imprisonment for life be eligible for parole until the defendant has served a minimum of twenty-five (25) full calendar years of the sentence, notwithstanding the governor's power to reduce prison overcrowding pursuant to title 41, chapter 1, part 5, any sentence reduction credits authorized by § 41-21-236 or any other provision of law relating to sentence credits. A defendant receiving a sentence of imprisonment for life for first degree murder shall be entitled to earn and retain sentence credits, but the credits shall not operate to make the defendant eligible for release prior to the service of twenty-five (25) full calendar years.
(2) There shall be no release eligibility for a defendant receiving a sentence of imprisonment for life without possibility of parole for first degree murder or aggravated rape of a child.
(i)
(1) There shall be no release eligibility for a person committing an offense, on or after July 1, 1995, that is enumerated in subdivision (i)(2). The person shall serve one hundred percent (100%) of the sentence imposed by the court less sentence credits earned and retained. However, no sentence reduction credits authorized by § 41-21-236 or any other provision of law, shall operate to reduce the sentence imposed by the court by more than fifteen percent (15%).
(2) The offenses to which subdivision (i)(1) applies are:
(A) Murder in the first degree;
(B) Murder in the second degree;
(C) Especially aggravated kidnapping;
(D) Aggravated kidnapping;
(E) Especially aggravated robbery;
(F) Aggravated rape;
(G) Rape;
(H) Aggravated sexual battery;
(I) Rape of a child;
(J) Aggravated arson;
(K) Aggravated child abuse;
(L) Sexual exploitation of a minor involving more than one hundred (100) images;
(M) Aggravated sexual exploitation of a minor involving more than twenty-five (25) images; or
(N) Especially aggravated sexual exploitation of a minor.
(3) Nothing in this subsection (i) shall be construed as affecting, amending or altering § 39-13-523, which requires child sexual predators, aggravated rapists, child rapists and multiple rapists to serve the entire sentence imposed by the court undiminished by any sentence reduction credits.
(j) There shall be no release eligibility for a person committing a violation of § 39-17-1324(a) or (b) on or after January 1, 2008, until the person has served one hundred percent (100%) of the minimum mandatory sentence established in § 39-17-1324(a) or (b) and imposed by the court less sentence credits earned and retained; however, no sentence reduction credits authorized by § 41-21-236 or any other law shall operate to reduce the mandatory minimum sentence imposed by the court by more than fifteen percent (15%).
(k)
(1) There shall be no release eligibility for a person committing aggravated robbery, as defined in § 39-13-402(a)(1), on or after July 1, 2010, until the person has served eighty-five percent (85%) of the sentence imposed by the court less sentence credits earned and retained. However, no sentence reduction credits authorized by § 41-21-236, or any other provision of law, shall operate to reduce below seventy percent (70%) the percentage of sentence imposed by the court such person must serve before becoming release eligible.
(2) There shall be no release eligibility for a person committing aggravated robbery, as defined in § 39-13-402, on or after January 1, 2008, if the person has at least one (1) prior conviction for aggravated robbery, as defined in § 39-13-402, or especially aggravated robbery, as defined in § 39-13-403. The person shall serve one hundred percent (100%) of the sentence imposed by the court less sentence credits earned and retained; however, no sentence reduction credits authorized by § 41-21-236 or any other provision of law shall operate to reduce the sentence imposed by the court by more than fifteen percent (15%).
(3)
(A) "Prior conviction" means, for purposes of this section, unless the context otherwise requires, that the person serves and is released or discharged from, or is serving, a separate period of incarceration or supervision for the commission of an aggravated robbery or especially aggravated robbery prior to or at the time of committing an aggravated robbery on or after January 1, 2008.
(B) "Prior conviction" includes convictions under the laws of any other state, government or country that, if committed in this state, would constitute the offense of aggravated robbery. If an offense involving a robbery accomplished by use of a firearm in a jurisdiction other than this state is not identified as aggravated robbery or especially aggravated robbery in this state, it shall be considered a prior conviction if the elements of the felony are the same as the elements for aggravated robbery or especially aggravated robbery.
(4) "Separate period of incarceration or supervision" includes a sentence to any of the sentencing alternatives set out in § 40-35-104(c)(3)-(9). An aggravated robbery shall be considered as having been committed after a separate period of incarceration or supervision if the aggravated robbery is committed while the person was:
(A) On probation, parole or community correction supervision for an aggravated robbery or especially aggravated robbery;
(B) Incarcerated for an aggravated robbery or especially aggravated robbery;
(C) Assigned to a program whereby the person enjoys the privilege of supervised release into the community, including, but not limited to, work release, educational release, restitution release or medical furlough for an aggravated robbery or especially aggravated robbery; or
(D) On escape status from any correctional institution when incarcerated for an aggravated robbery or especially aggravated robbery.
(5) There shall be no release eligibility for a person committing attempted first degree murder as defined in § 39-13-202 where the victim suffers serious bodily injury as defined in § 39-11-106, on or after July 1, 2013, until the person has served eighty-five percent (85%) of the sentence imposed by the court less sentence credits earned and retained. However, no sentence reduction credits authorized by § 41-21-236, or any other provision of law, shall operate to reduce below seventy-five percent (75%) the percentage of sentence imposed by the court such person must serve before becoming release eligible.
(6)
(A) There shall be no release eligibility for a person committing aggravated child neglect or endangerment as defined in § 39-15-402, on or after July 1, 2013, and before July 1, 2014, until the person has served seventy percent (70%) of the sentence imposed by the court less sentence credits earned and retained. However, no sentence reduction credits authorized by § 41-21-236, or any other provision of law, shall operate to reduce below fifty-five percent (55%) the percentage of sentence imposed by the court such person must serve before becoming release eligible.
(B) There shall be no release eligibility for a person committing aggravated child neglect or endangerment as defined in § 39-15-402, on or after July 1, 2014, until the person has served eighty-five percent (85%) of the sentence imposed by the court less sentence credits earned and retained. However, no sentence reduction credits authorized by § 41-21-236, or any other law, shall operate to reduce below seventy (70%) the percentage of sentence imposed by the court such person must serve before becoming release eligible.
(7) There shall be no release eligibility for a person committing aggravated assault as defined in § 39-13-102, that results in death of another, on or after July 1, 2013, until the person has served seventy-five percent (75%) of the sentence imposed by the court less sentence credits earned and retained. However, no sentence reduction credits authorized by § 41-21-236, or any other provision of law, shall operate to reduce below sixty percent (60%) the percentage of sentence imposed by the court such person must serve before becoming release eligible.
(8)
(A) There shall be no release eligibility for a person committing aggravated vehicular homicide, as defined in § 39-13-218(a), on or after July 1, 2015, until the person has served sixty percent (60%) of the sentence imposed by the court less sentence credits earned and retained. However, no sentence reduction credits authorized by § 41-21-236, or any other law, shall operate to reduce below forty-five percent (45%) the percentage of sentence such person must serve before becoming release eligible.
(B) For purposes of determining if conduct occurring on or after July 1, 2015, constitutes a violation of § 39-13-218, and if that violation is governed by this subdivision (k)(8), prior convictions for predicate offenses required by § 39-13-218 may be used regardless of when they occurred.
(l)
(1) There shall be no release eligibility for a person committing continuous sexual abuse of a child as defined § 39-13-534 on or after July 1, 2014, until the person has served the entire sentence imposed by the court undiminished by any sentence reduction credits the person may be eligible for or earn. Such person shall be permitted to earn any credits for which the person is eligible and the credits may be used for the purpose of increased privileges, reduced security classification, or for any purpose other than the reduction of the sentence imposed by the court.
(2) In addition to the punishment authorized by tills section, a person sentenced under § 39-13-534 shall, upon release, receive a sentence of community supervision for life pursuant to § 39-13-524.
(m) The release eligibility date provided for in this section is separately calculated for each offense for which a defendant is convicted. For consecutive sentences, the periods of ineligibility for release are calculated for each sentence and are added together to determine the release eligibility date for the consecutive sentences.
(n) The release eligibility date provided for in this section is the earliest date an inmate convicted of a felony is eligible for parole. The date is conditioned on the inmate's good behavior while in prison. For a violation of any of the rules of the department of correction or institution in which the inmate is incarcerated or while on any release program other than parole, the commissioner or the commissioner's designees may defer the release eligibility date so as to increase the total amount of time an inmate must serve before becoming eligible for parole. This increase may, in the discretion of the commissioner, be in any amount of time not to exceed the full sentence originally imposed by the court and shall be imposed pursuant to regulations promulgated by the commissioner that give notice of the length of discretionary increases that may be imposed for a violation of each of the rules of the department or institution.
(o)
(1) The department of correction shall not certify an inmate for a parole grant hearing, other than an initial grant hearing, if, at the time the department of correction would otherwise have certified the inmate as eligible, the inmate is classified as close custody. The decertification shall continue for the duration of the classification and for a period of one (1) year thereafter.
(2) The department of correction shall not certify an inmate for a parole grant hearing, other than an initial grant hearing, if, at the time the department of correction would otherwise have certified the inmate as eligible, the inmate is classified as maximum custody. The decertification shall continue for the duration of the classification and for a period of two (2) years thereafter.
(p) Extensions in the release eligibility date provided for in this section and in other sections of this chapter shall only be imposed following a hearing conducted in accordance with due process of law.
(q) Notwithstanding any other provision of this chapter relating to release eligibility and when acting pursuant to the Tennessee Contract Sentencing Act of 1979, compiled in chapter 34 of this title, the board of parole is authorized to grant a prisoner parole as specified in a sentence agreement entered into by the prisoner and the board. In granting the parole, the board may impose any conditions and limitations that the board deems necessary.
(r) Notwithstanding any other provision of the law to the contrary, the department is responsible for calculating the sentence expiration date and the release eligibility date of any felony offender sentenced to the department and any felony offender sentenced to confinement in a local jail or workhouse for one (1) or more years.
(s) To assist the department in fulfilling the duty specified in subsection (o), the clerk of the court shall send a copy of each judgment document for a felony conviction to the department. These copies shall be forwarded to the department no less than one (1) time each month so that all judgments rendered in one (1) calendar month have been received by the department by the fifteenth day of the following month.
(t) There shall be no release eligibility for a person committing the offense of carjacking under § 39-13-404, on or after July 1, 2016, until such person has served seventy-five percent (75%) of the sentence imposed by the court less sentence credits earned and retained. However, no sentence reduction credits authorized by § 41-21-236 or any other provision of law, shall operate to reduce the sentence imposed by the court by more than fifteen percent (15%).
(u)
(1) For the offenses listed in subdivision (t)(2) committed on or after January 1, 2017, there shall be no release eligibility until the person has served eighty-five percent (85%) of the sentence imposed by the court, less sentence credits earned and retained. However, no sentence reduction credits authorized by § 41-21-236, or any other law, shall operate to reduce below seventy percent (70%) the percentage of sentence imposed by the court such person must serve before becoming release eligible.
(2) The offenses to which this subsection (t) is applicable are:
(A) The manufacture, delivery, or sale of a controlled substance, pursuant to § 39-17-417, where the instant offense is classified as a Class A, B, or C felony and the person has two (2) or more prior convictions for the manufacture, delivery, or sale of a controlled substance classified as a Class A, B, or C felony, pursuant to § 39-17-417, prior to or at the time of committing the instant offense; and
(B) Aggravated burglary, pursuant to § 39-14-403, or especially aggravated burglary, pursuant to § 39-14-404, if the person has two (2) or more prior convictions for either aggravated burglary, pursuant to § 39-14-403, especially aggravated burglary, pursuant to § 39-14-404, or a combination of the two (2) offenses prior to or at the time of committing the instant offense.
(3) For purposes of this subsection (t):
(A)
(i) "Prior conviction" means, unless the context otherwise requires, that the person serves and is released or discharged from, or is serving, a separate period of incarceration or supervision for the commission of the applicable offense listed in subdivision (t)(2)(A) or (t)(2)(B);
(ii) "Prior conviction" includes convictions under the laws of any other state, government, or country that, if committed in this state, would constitute the applicable offense listed in subdivision (t)(2)(A) or (t)(2)(B). If a relevant offense in a jurisdiction other than this state is not identified as the applicable offense listed in subdivision (t)(2)(A) or (t)(2)(B) in this state, it shall be considered a prior conviction if the elements of the felony are the same as the elements in this state; and
(B) "Separate period of incarceration or supervision" includes a sentence to any of the sentence alternatives set out in § 40-35-104(c)(3)-(9). The applicable offense listed in subdivision (t)(2)(A) or (t)(2)(B) shall be considered as having been committed after a separate period of incarceration or supervision if it is committed while the person was:
(i) On probation, parole, community correction supervision, or supervised release for the applicable offense listed in subdivision (t)(2)(A) or (t)(2)(B);
(ii) Incarcerated for the applicable offense listed in subdivision (t)(2)(A) or (t)(2)(B);
(iii) Assigned to a program where the person enjoys the privilege of supervised release into the community, including, but not limited to, work release, education release, restitution release, or medical furlough for the applicable offense listed in subdivision (t)(2)(A)or(t)(2)(B); or
(iv) On escape status from any correctional institution when incarcerated for the applicable offense listed in subdivision (t)(2)(A)or(t)(2)(B).
(4) For purposes of this subsection (t), a prior conviction shall not be considered if ten (10) or more years have elapsed between the date of the instant conviction and the date of any immediately preceding conviction for the relevant offense. If, however, the date of a prior conviction is within ten (10) years of the date of the instant conviction, and the instant conviction is for an offense that occurs on or after January 1, 2017, then every conviction for such offense occurring within ten (10) years of the date of the immediately preceding conviction shall be considered in determining the number of prior offenses. However, in no event shall a conviction occurring more than twenty (20) years from the date of the instant conviction be considered a prior offense for the purposes of this subsection (t).
(v) There shall be no release eligibility for a person committing the offense of driving under the influence, as defined in § 55-10-401, on or after January 1, 2019, if the person has at least six (6) prior convictions for driving under the influence, as determined under § 55-10-405. The person shall serve one hundred percent (100%) of the sentence imposed by the court less sentence credits earned and retained; however, no sentence reduction credits authorized by § 41-21-236 or any other law shall operate to reduce the sentence imposed by the court by more than fifteen percent (15%).
(w) Notwithstanding this section, a defendant sentenced under this chapter shall be authorized to earn and retain any sentence reduction credits authorized by § 41-21-236 or any other provision of law relating to sentence reduction credits. However, no sentence reduction credits earned or retained by a defendant sentenced for committing a Class A, B, or C felony against a person under title 39, chapter 13, shall operate to permit the defendant's release on parole, probation, or community correction supervision until the defendant has served the applicable percentage of the actual sentence imposed, as specified in subsections (b)-(f) and without consideration of sentence credits earned and retained by the defendant. Any sentence reduction credits earned and retained during that time shall be credited towards the defendant's expiration of sentence.

T.C.A. § 40-35-501

Amended by 2019 Tenn. Acts, ch. 488,s 1, eff. 7/1/2019.

Amended by 2019 Tenn. Acts, ch. 486,s 12, eff. 7/1/2019.

Amended by 2019 Tenn. Acts, ch. 211,s 3, eff. 7/1/2019.

Amended by 2019 Tenn. Acts, ch. 211,s 2, eff. 7/1/2019.

Amended by 2016 Tenn. Acts, ch. 906,s 12, eff. 1/1/2017.

Amended by 2016 Tenn. Acts, ch. 876,s 2, eff. 7/1/2016.

Amended by 2016 Tenn. Acts, ch. 899,s 1, eff. 4/27/2016.