The Tennessee Court of Criminal Appeals on Split Confinement

By Stevie Phillips

Harvey Brian Cochran was convicted of reckless homicide, a Class D felony.  On appeal, he argued that the trial court erred by failing to follow the sentencing guidelines before denying him an alternative sentence.  An alternative sentence is any sentence that does not involve complete confinement. 

The CCA determined that Cochran was a favorable candidate for alternative sentencing because he was convicted of a Class D felony.  Under T.C.A. § 40-35-101(6)(A), the burden therefore fell to the State to present “evidence to the contrary.”  In determining whether such evidence exists, the trial court should consider the factors set out in T.C.A. § 40-35-103(1)(A)(C):  whether confinement is necessary to protect society, avoid depreciating the seriousness of the offense, or deter others.  The trial court should also consider whether less restrictive sentences have been applied unsuccessfully to the defendant in the past. 

Here, the trial court explicitly found that these factors did not apply, and the CCA saw nothing in the record on appeal to refute this finding.  Nonetheless, the trial court denied alternative sentencing on the basis of lack of remorse or truthfulness as it related to Cochran’s potential for rehabilitation under T.C.A. § 40-35-103(5).  As the CCA explained, a defendant’s potential for rehabilitation should only be considered when determining the type and length of the alternative sentence once the court has ruled that complete confinement is improper. 

As a result, Cochran was still a candidate for alternative sentencing.  The CCA reversed and ordered a sentence of split confinement – ninety days in jail and the remainder on supervised probation. 

The full opinion can be found here.  

Tennessee’s New Expungement Statute Goes into Effect July 1

By Stevie Phillips

• Criminal Procedure - As enacted, this law authorizes persons to petition for expungement of records of conviction for certain non-violent, non-sexual misdemeanors and Class E felonies

A record of a criminal conviction can have wide-ranging consequences from difficulty securing employment to the loss of the right to vote or own a firearm.  When a conviction is expunged, the record of the conviction is no longer available to the public, and the person receiving the expungement may deny involvement in the underlying offense. 


Currently, under Tennessee Code Annotated section 40-32-101, a person can petition the court for expungement of public records involving a criminal offense, but the record will be expunged only if the charge was dismissed, no true bill was returned by the grand jury, or the person was arrested and released without being charged.  Pursuant to an amendment to this statute that will go into effect on July 1, a person may petition the court for expungement of an actual conviction. 

The person seeking the expungement must meet certain requirements, and not all offenses are eligible.  A person may not seek expungement if she has been convicted of any other offense at any time.  In addition, at least five years must have elapsed since the person seeking expungement fulfilled the requirements of her sentence.  Finally, the conviction is not eligible for expungement if the sentence imposed was a term of more than three years imprisonment. 

The amendment sets out separate but similar standards for convictions based on offenses committed before and after November 1, 1989.  For post-1989 offenses, there is a list of eligible Class E felonies, including but not limited to theft; fraudulent use of a credit or debit card; worthless checks; car burglary; vandalism; and some drug offenses.

Misdemeanors are also eligible for expungement subject to a long list of exceptions.  Offenses related to domestic violence are, notably, not eligible, including domestic assault, violation of a protective order, and possession of a firearm while a protective order is in effect.  Also excluded are a variety of offenses that involve minor victims, including child abuse, neglect, or endangerment.  Finally, a conviction for (DUI) driving under the influence of an intoxicant is also not eligible for expungement. 

Generally, convictions committed before November 1, 1989, are eligible.  Exceptions exist, however, for inerently dangerous offenses or those that require registration as a sex offender, involve intoxicants and a motor vehicle, involve the sale or distribution of some classes of drugs, or that result in serious bodily injury, harm to a minor, or damages in excess of $25,000. 

The legislature has directed the district attorneys general conference to create a simple form that lay people can use to petition for expungement.  A $350 filing fee is also required.  If the petition is granted, the conviction is deemed to have never occurred, and a copy of the expungement “shall be sufficient proof that the person named in the order is no longer under any disability, disqualification or other adverse consequence resulting from the expunged conviction.”  If the petition is denied, the petitioner may file again after two years. 


A summary of the bill can be found here.


Davis & Hoss attorneys practice criminal law in all courts of Tennessee.