VII. JUDGMENT

217

Rule 32: Sentence and Judgment.

(a) Sentence for Offense Committed Before 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 convictions 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 for Offense Committed On or After July 1, 1982. After a verdict or plea of guilty, the court shall set the sentence except as to habitual criminal charges or capital cases where notice has previously been given. When the court imposes sentence, the sentence shall be fixed as provided by law.

(c) Concurrent or Consecutive Sentences.

(1) Multiple Sentences from One Trial. If the defendant pleads guilty or is convicted in one trial of more than one offense, the trial judge shall determine whether the sentences will be served concurrently or consecutively. The order shall specify the reasons for this decision and is reviewable on appeal. Unless it affirmatively appears that the sentences are consecutive, they are deemed to be concurrent.

(2) Prior Sentence Not Fully Served.

(A) Prior Tennessee Sentence.

(i) Prior Tennessee Sentence Known. If the defendant has additional sentences not yet fully served as the result of convictions in the same court or in other courts of Tennessee and if this fact is made known to the court prior to sentencing, the court shall recite this fact in the judgment setting sentence, and the sentence imposed is 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 to the prior sentence or sentences. The judgment to make the sentences consecutive or concurrent shall explicitly relate the judge's reasons and is reviewable on appeal.

(ii) Prior Tennessee Sentence Unknown. When prior unserved Tennessee sentences are not called to the attention of the trial judge by or on behalf of the defendant at the time of sentencing and are not included in the judgment setting the new sentence, the new sentence is deemed to be consecutive to any such undisclosed prior unserved sentence or sentences.

(iii) Parole Revocation. The new sentence is consecutive when the defendant is convicted of a misdemeanor while on parole from an undisclosed prior sentence, and the parole is subsequently revoked.

(B) Prior Non-Tennessee Sentence. If, as the result of conviction in another state or in federal court, the defendant has any additional sentence or portion thereof to serve, the court shall impose a sentence that is consecutive to any such unserved sentence unless the court determines in the exercise of its discretion that good cause exists to run the sentences concurrently and explicitly so orders.

(3) Mandatory Consecutive Sentences. When a defendant is convicted of multiple offenses from one trial or when the defendant has additional sentences not yet fully served as the result of convictions in the same or other courts 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 committed while the defendant was released on bail and the defendant is convicted of both offenses; and

(D) for any other ground provided by law.

(d) Release After Conviction, Pending Further Proceedings.

(1) Misdemeanor. A person convicted of a misdemeanor has a right to have bail set or to be released on recognizance pending the exhaustion of all direct appellate procedure in the case.

(2) Felony.

(A) Application Before Appeal Pending. When the law permits release on bail or recognizance after return of a guilty verdict for a felony, the trial judge may order such release pending further proceedings in a trial court or on direct appeal. If in a felony case the trial judge refuses to release the defendant who has applied for release, the trial judge shall enter in the minutes the reasons for the ruling. This decision is reviewable.

(B) Application When Appeal Pending. After the case is pending in an appellate court, the defendant may apply for release either to the trial court where the conviction was entered or to the appellate court where the appeal is pending.

(e) Judgment.

(1) Signed and Entered. A judgment of conviction shall be signed by the judge and entered by the clerk.

(2) Content of Judgment of Conviction. A judgment of conviction shall include:

(A) the plea;

(B) the verdict or findings; and

(C) the adjudication and sentence.

(3) Judgment of Not Guilty or Discharge. If the defendant is found not guilty or for any other reason is entitled to be discharged, the court shall enter judgment accordingly.

(f) Withdrawal of Guilty Plea.

(1) Before Sentence Imposed. Before sentence is imposed, the court may grant a motion to withdraw a guilty plea for any fair and just reason.

(2) After Sentence But Before Judgment Final. After sentence is imposed but before the judgment becomes final, the court may set aside the judgment of conviction and permit the defendant to withdraw the plea to correct manifest injustice.

(g) Revocation of Probation. The court may revoke probation only after a hearing conducted according to law. The losing party may appeal the judgment resulting from this hearing. The defendant may be released pursuant to applicable law pending such hearing and/or such appeal.

Advisory Commission Comment.

Subdivision (a) applies to cases arising under the law prior to the judge-sentencing provisions. Essentially, the defendant had a right to jury sentencing prior to 1982.

Subdivision (b) conforms to the judge sentencing laws of 1982 and 1989. A capital case requires notice under Rule 12.3(b). Fines are governed by T.C.A. Section 40-35-301.

Subdivision (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 40-35-402.

Subdivision (e) deals with judgments. Counsel should be aware that Rule 17 of the Rules of the Tennessee Supreme Court provides for a Uniform Judgment Document.

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