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Tennessee Rules of Criminal Procedure, Rule 12.3
RULE 12.3 NOTICE OF INTENT TO SEEK INCREASED SENTENCE
(a) Notice in Noncapital Cases. Written statements of the district attorney giving notice that the defendant should be sentenced to an enhanced punishment, for an especially aggravated offense, and/or as a persistent offender shall be filed not less than ten (10) days prior to trial. If the notice is filed later than this time, the trial judge shall grant the defendant, upon motion, a reasonable continuance of the trial.
(b) Notice in Capital Cases. Where a capital offense is charged in the indictment or presentment and the district attorney intends to ask for the death penalty, written notice thereof shall be filed not less than thirty (30) days prior to trial. If the notice is filed later than this time, the trial judge shall grant the defendant, upon motion, a reasonable continuance of the trial. The notice shall specify that the State intends to seek the death penalty and the notice shall specify those aggravating circumstances the State intends to rely upon at a sentence hearing. Specification may be complied with by a reference to the citation of the circumstance.
(c) Manner of Giving Notice. Notice under (a) or (b) shall be in writing and filed with the court and served on counsel. Where the notice contains reference to a prior conviction or other sensitive matters the notice may be filed under seal in the discretion of the court.
[Adopted effective August 22, 1984.]
This rule is entirely new and implements the notice provisions of the judge sentencing law.
Subsection (a) requires that written notice under T.C.A. Section 40-35-202(a) be filed within ten (10) days of trial. This time limitation will allow defense lawyers an opportunity to plan their trial strategy or engage in appropriate plea negotiations. Nevertheless, since the notice requirement is based to a large extent on a defendant's prior record, this record may only come to light shortly before trial. Under this and related circumstances, it would be unfair for the State to proceed to trial unable to establish proof at the sentencing hearing. Consequently, the State may provide notice in less than ten (10) days but the defendant is entitled to a continuance to rechart a course of action. If the defendant does not request a continuance, the written notice shall be valid.
Subsection (b) requires that the State give notice in capital cases. While perhaps not constitutionally required, it has been the recommended procedure. State v. Berry, 592 S.W.2d 553 (Tenn.1980). It is also helpful to know prior to jury selection if the State will ask for the death penalty. Jury selection procedures will obviously be affected by notice of a capital offense, see Witherspoon v. Illinois, 391 U.S. 510 (1968). Moreover, the number of challenges will also vary, see Rule 24(d), as well as the number of allowed appointed counsel, see Rule 13(1)(B), Rules of the Tennessee Supreme Court. The time limitation under this subsection is thirty (30) days although there is a safeguard as in the case of notice under subsection (a).
Subsection (c) provides that notices may be under seal, in the discretion of the court, if public notice may be prejudicial to the defendant such as disclosing a prior record.
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