Life Time Supervision for Certain Sex Offenses is Punishment
September 29, 2010 By Brent Horst, Attorney at Law
Tennessee Supreme Court sex offense ruling opens the door for possible challenges.
In Tennessee individuals convicted of sex offenses must register as a sex offender with the State and are subjected to various living and working restrictions pursuant to the registration statute, T.C.A. 40-39-201.
In addition to the registry statute Tennessee also enacted a separate lifetime supervision statute, T.C.A. 39-13-524 with additional life time restrictions for any one convicted of certain classified violent sexual offenses.
On July 7, 2010 the Tennessee Supreme Court issued a ruling in Marcus v. State , 04-06910, which held that the Sex Offender Registration Statute, T.C.A. 40-39-201 may be applied retroactively to individuals convicted of their offense prior to the enactment of the statute because the legislature did not intend for the registration statute to serve as additional punishment but was meant to only “regulate” those previously convicted. The basis for the ruling was that the Ex Post Facto Clause of the Tennessee Constitution only prohibits retroactive application of laws enacted for punishment.
However, the Court also ruled in Marcus that the lifetime supervision statute, T.C.A. 39-13-524 was meant to be “punitive”. This ruling could have important ramifications and could open the door to the challenge of some lifetime supervision sentences thru the application of the U.S. Supreme Court decisions in Blakely v. Washington and Apprendi v. New Jersey. T.C.A. 39-13-524 requires that before a person convicted of certain listed sex offenses may be subjected to life time supervision the sex offense must have been committed on or after July 1, 1996. Apprendi and Blakely held that facts other than a prior conviction that increase the penalty for a crime beyond the statutory proscribed maximum must be submitted to a jury. Maximum sentence was defined as the sentence a judge may impose without any additional findings. Due to the fact that T.C.A. 39-13-524 requires the additional finding of the date of the offense to be on or after July 1, 1996, unless the date of the offense was submitted to the jury and the date of the offense was found by the jury to be on or after July 1, 1996 there is an argument that life time supervision may not be imposed. I would submit that the simple allegation in the indictment of the date of the offense is insufficient to constitute a submission of the date to the jury. In most cases the date of the offense is not an element of the crime, and in most cases the jury will not be instructed that they must determine the date, nor will their verdict reflect a determination of the date they found the offense to have been committed. In such instances even if there was an allegation of the date in the indictment or even testimony as to dates, unless the jury was instructed to determine a date and the verdict reflects a finding of the date, it seems clear that a sentence of lifetime supervision would be in violation of the rulings in Apprendi and Blakely and would therefore be unlawful.
ABOUT THE AUTHOR: Brent Horst
Brent Horst is Board Certified as a Criminal Trial Specialist by the National Board of Trial Advocacy, and is certified as a Specialist in Criminal Law by the Tennessee Commission on Continuing Legal Education and Specialization. Board Certification is achieved by a small number of attorneys who complete vigorous training and educational requirements, receive positive references from judges and other criminal attorneys, and demonstrate competence in criminal trials.
Copyright Brent Horst, Attorney at Law
More information about Brent Horst, Attorney at Law
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
In addition to the registry statute Tennessee also enacted a separate lifetime supervision statute, T.C.A. 39-13-524 with additional life time restrictions for any one convicted of certain classified violent sexual offenses.
On July 7, 2010 the Tennessee Supreme Court issued a ruling in Marcus v. State , 04-06910, which held that the Sex Offender Registration Statute, T.C.A. 40-39-201 may be applied retroactively to individuals convicted of their offense prior to the enactment of the statute because the legislature did not intend for the registration statute to serve as additional punishment but was meant to only “regulate” those previously convicted. The basis for the ruling was that the Ex Post Facto Clause of the Tennessee Constitution only prohibits retroactive application of laws enacted for punishment.
However, the Court also ruled in Marcus that the lifetime supervision statute, T.C.A. 39-13-524 was meant to be “punitive”. This ruling could have important ramifications and could open the door to the challenge of some lifetime supervision sentences thru the application of the U.S. Supreme Court decisions in Blakely v. Washington and Apprendi v. New Jersey. T.C.A. 39-13-524 requires that before a person convicted of certain listed sex offenses may be subjected to life time supervision the sex offense must have been committed on or after July 1, 1996. Apprendi and Blakely held that facts other than a prior conviction that increase the penalty for a crime beyond the statutory proscribed maximum must be submitted to a jury. Maximum sentence was defined as the sentence a judge may impose without any additional findings. Due to the fact that T.C.A. 39-13-524 requires the additional finding of the date of the offense to be on or after July 1, 1996, unless the date of the offense was submitted to the jury and the date of the offense was found by the jury to be on or after July 1, 1996 there is an argument that life time supervision may not be imposed. I would submit that the simple allegation in the indictment of the date of the offense is insufficient to constitute a submission of the date to the jury. In most cases the date of the offense is not an element of the crime, and in most cases the jury will not be instructed that they must determine the date, nor will their verdict reflect a determination of the date they found the offense to have been committed. In such instances even if there was an allegation of the date in the indictment or even testimony as to dates, unless the jury was instructed to determine a date and the verdict reflects a finding of the date, it seems clear that a sentence of lifetime supervision would be in violation of the rulings in Apprendi and Blakely and would therefore be unlawful.
ABOUT THE AUTHOR: Brent Horst
Brent Horst is Board Certified as a Criminal Trial Specialist by the National Board of Trial Advocacy, and is certified as a Specialist in Criminal Law by the Tennessee Commission on Continuing Legal Education and Specialization. Board Certification is achieved by a small number of attorneys who complete vigorous training and educational requirements, receive positive references from judges and other criminal attorneys, and demonstrate competence in criminal trials.
Copyright Brent Horst, Attorney at Law
More information about Brent Horst, Attorney at Law
View all articles published by Brent Horst, Attorney at Law
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
