Rule 12.3 Notice of Intent to Seek Increased Sentence

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. § 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.