IV. ARRAIGNMENT AND PRETRIAL

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Rule 12.3: Notice of Intent to Seek Increased Sentence.

(a) Noncapital Cases. If the district attorney general intends to seek an enhanced punishment as a multiple, persistent, or career offender, the district attorney general shall file notice of this intention not less than ten (10) days before trial. If the notice is untimely, the trial judge shall grant the defendant, on motion, a reasonable continuance of the trial.

(b) Capital Cases.

(1) Timing. When the indictment or presentment charges a capital offense and the district attorney general intends to ask for the death penalty, he or she shall file notice of this intention not less than thirty (30) days before trial. If the notice is untimely, the trial judge shall grant the defendant, on motion, a reasonable continuance of the trial.

(2) Content. The notice shall specify that the state intends to seek the death penalty and shall specify the aggravating circumstances the state intends to rely on at the sentence hearing. The state may specify by referring to the statutory citation of the aggravating circumstance.

(c) Manner of Giving Notice. Notice under Rule 12.3(a) or (b) shall be in writing, filed with the court, and served on counsel. If the notice refers to a prior conviction or other sensitive matters, the court may permit the notice to be filed under seal.

Advisory Commission Comment.

This rule implements the notice provisions of the Tennessee Criminal Sentencing Reform Act of 1989. Subdivision (a) requires that written notice under T.C.A. ยง 40-35-202(a) be filed not less than ten (10) days before 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 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.

Subdivision (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(e), as well as the number of allowed appointed counsel, see Rule 13, Section 3, Rules of the Tennessee Supreme Court. The time limitation under this subdivision is thirty (30) days although there is a safeguard as in the case of notice under subdivision (a).

Subdivision (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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