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Tennessee Rules of Criminal Procedure, Rule 32

RULE 32. SENTENCE AND JUDGMENT

(a) Sentence in Cases Where Offense Was Committed Prior to July 1, 1982. Upon a verdict or plea of guilty, sentence shall be set as provided by law. In any case wherein an appeal lies, and the law permits a suspended sentence, if the defendant desires to petition for a suspended sentence, the defendant may do so within five (5) days after the overruling of his or her motion for a new trial or motion in arrest of judgment, whichever comes last. A record shall be made of the hearing upon the petition. The filing of the petition is no waiver of the right of appeal, whether the petition be granted or not. The judgment of the trial judge upon the petition is reviewable upon appeal by either the defendant or the state. A petition for a suspended sentence may not be filed after appeal. The trial judge shall hear all petitions for suspended sentences which have already been filed before the notice of appeal, and, in those cases wherein a notice of appeal of the conviction is filed before a petition for a suspended sentence is filed, the trial judge shall hold a hearing upon the petition within the time previously allowed for the filing of the transcript so as to make possible the inclusion in the transcript upon the petition for a suspended sentence.

(b) Sentence in Cases Where Offense Was Committed On or After July 1, 1982. Upon a verdict or plea of guilty, sentence shall be set by the court except as to habitual criminal charges or capital cases where notice has previously been given. Where the court is to impose sentence, the sentence shall be fixed as provided by law.

(c) Concurrent or Consecutive Sentences.

(1) Multiple Sentences From One Trial. If the defendant is convicted upon one trial of more than one offense, the trial judge shall determine whether the sentences shall be served concurrently or consecutively. Unless it is made to affirmatively appear that the sentences are consecutive, they shall be deemed to be concurrent. If the court orders that the sentences be served consecutively or concurrently, the order shall specifically recite the reasons for such ruling and such judgment is reviewable on appeal.

(2) Sentence When Defendant Has Prior Sentence Not Fully Served. If the defendant has additional sentences not yet fully served as the result of convictions in the same court or in other courts of this state and if this fact is made known to the court prior to sentencing, the court shall recite this in the judgment setting sentence, and the sentence imposed shall be deemed to be concurrent with the prior sentence or sentences, unless it affirmatively appears that the new sentence being imposed is to be served consecutively with the prior sentence or sentences. The judgment to make the sentences consecutive or concurrent shall explicitly recite the judge's reasons therefore, and is reviewable on appeal. Should prior unserved in-state sentences not be called to the attention of the trial judge by or on behalf of the defendant at the time of sentencing, and set out in judgment setting the new sentence, the new sentence shall be deemed to be consecutive to any such undisclosed prior unserved sentence or sentences; and this rule shall also apply when the defendant is convicted of a misdemeanor while on parole from a prior sentence, and the parole is subsequently revoked. If the defendant has additional sentences or portions thereof to serve, as the result of conviction in other states or in federal court, the sentence imposed shall be consecutive thereto unless the court shall determine in the exercise of its discretion that good cause exists to run the sentences concurrently and explicitly so orders.

(3) Mandatory Consecutive Sentences. Where a defendant is convicted of multiple offenses from one trial or where the defendant has additional sentences not yet fully served as the result of the convictions in the same or other court and the law requires consecutive sentences, the sentence shall be consecutive whether the judgment explicitly so orders or not. This rule shall apply:

(A) to a sentence for a felony committed while on parole for a felony;

(B) to a sentence for escape or for a felony committed while on escape;

(C) to a sentence for a felony where the defendant was released on bail and the defendant is convicted of both offenses; and

(D) any other ground provided by law.

(d) Release After Conviction, Pending Further Proceedings. The setting of bail or release upon recognizance is a matter of right for one convicted of a misdemeanor, pending the exhaustion of all direct procedure in the case. In those convictions for felonies where the law permits release on bail or recognizance after the verdict of guilty has been returned, the trial judge may order such release pending further proceedings in a trial court or upon direct appeal. If such release is applied for in a felony case and refused, the trial judge shall enter upon the minutes the reasons for the ruling, and this action is reviewable. If no such application is made in the trial court pending appeal until after the case is pending in an appellate court, application may still be made in the trial court wherein the conviction was entered or in the appellate court at a time when it is sitting in the Grand Division of the state wherein the appeal is pending.

(e) Judgment. A judgment of conviction shall set forth the plea, the verdict or findings, and the adjudication and sentence. If the defendant is found not guilty or for any other reason is entitled to be discharged, judgment shall be entered accordingly. The judgment shall be signed by the judge and entered by the clerk.

(f) Withdrawal of Plea of Guilty. A motion to withdraw a plea of guilty may be made upon a showing by the defendant of any fair and just reason only before sentence is imposed; but to correct manifest injustice, the court after sentence, but before the judgment becomes final, may set aside the judgment of conviction and permit the defendant to withdraw the plea.

(g) Revocation of Probation. Probation shall only be revoked after a hearing conducted according to law, and the judgment upon such a hearing is appealable by the losing party. The defendant may be released pursuant to applicable law pending such hearing and/or such appeal.

[Amended effective August 1, 1979; August 22, 1984.]

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Committee Comment

The matters of release after conviction reflect present law, although it has not been generally recognized that the trial court retains such jurisdiction even after appeal. Holcomb v. State, 74 Tenn. 668. Subsection (c) was written before the General Assembly made the setting of bail pending appeal a matter of right in most felony convictions in which the sentence set is less than one year. See Chapter 578, Public Acts 1978, effective March 9, 1978.

The provisions regarding multiple sentencing should have the effect of clarifying existing law.

An important change from present law has to do with petitions for suspended sentences. The fact that such petitions may now be filed and heard after appeal with the judgment reviewable makes two appeals possible in each such case. Furthermore, penal authorities have no way of anticipating what a trial court may do after a final judgment in the appellate courts, and often convicts have been sent for by corrections officials only to be found to be on probation. The Commission intends that all such petitions should be heard before appeal; any necessary review can then cover all facets of the case, there being only one appeal under this rule. The time frame for filing the petition was designed to permit an immediate filing, in the event that counsel desires to get the question settled before prosecuting a motion for a new trial or in arrest of judgment. But, in those cases in which it might be considered inconsistent or otherwise undesirable to petition prior to a hearing upon those procedures, it is provided that counsel may delay filing for up to five days after the overruling of these motions. Filing a petition for a suspended sentence does not toll the running of the time for praying an appeal, which must be done before the judgment of conviction becomes final. Such a petition for probation, regardless of when filed or when judgment is entered, is no waiver of the right to appeal. Appellate review of action upon petitions for probation requires that the trial judge make clear upon the record the reasons for the ruling made.

Comment to 1984 Amendment

The new judge sentencing law has dictated a complete revision of Rule 32. It should be noted that the original draft of the rules in 1977 contemplated judge sentencing.

Subsection (a) applies to cases arising under the law prior to the judge sentencing provisions. Essentially, the defendant had a right to jury sentencing. The provisions regarding probation are the same as prior Rule 32(f)(1) and requires a petition for probation be filed prior to direct appeal. The prior committee comments are applicable.

Subsection (b) conforms to the judge sentencing law. A capital case requires notice under Rule 12.3(b). Fines are governed by T.C.A. Section 40-35-301.

Subsection (c) deals with circumstances where sentences are to run concurrently or consecutively. The former rule is retained except that the state may appeal concurrent sentences as provided in T.C.A. Section 40-35-403.

Subsection (d) is identical to former Rule 32(c).

Subsection (e) is the same as former Rule 32(d). Rule 17 of the Rules of the Tennessee Supreme Court provides for a judgment form for cases arising under the judge sentencing law.

Subsection (f) is similar to former Rule 32(e).

Subsection (g) is identical to former Rule 32(f)(2).

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