ex post facto clause in Tennessee

2025Even where these concerns are not directly implicated, however, the Clause also safeguards “a fundamental fairness interest . . . in having the government abide by the rules of law it establishes to govern the circumstances under which it can deprive a person of his or her liberty or life.” Carmell[ v. Texas, 529 U.S. 513, 533 , 120 S. Ct. 1620 , 146 L.Ed.2d 577 (2000)]. 569 U.S. 530, 543 (2013). 12 “In determining whether an ex post facto violation exists in the context of sentencing, the critical question under both the United States and Tennessee Constitutions is whether the law changes the

2021App. 2001) (aggregating offenses under common law when the defendant embezzled money from her employer over a period of three years by altering over 150 checks). “[I]n determining whether an ex post facto violation exists in the context of sentencing, the critical question under both the United States and Tennessee Constitutions is whether the law changes the punishment to the defendant’s disadvantage, or inflicts a greater punishment than the law allowed when the offense occurred.” Pruitt, 510 S.W.3d at 414 (quoting State v. Pearson, 858 S.W.2d 879, 883 (Tenn. 1993)).

2016App. July 1, 2013), no perm. app. filed, that- retroactive application of the Exclusionary Rule Reform Act, Tennessee Code Annotated section 40-6-108, would violate constitutional protections against ex post facto laws and to re-evaluate the ex post facto analysis in Miller v. State, 584 S.W.2d 758 (Tenn. 1979), in light of Collins v. Youngblood, 497 U.S. 37 , 110 S.Ct. 2715 , 111 L.Ed.2d 30 (1990).

2014“An ex post facto violation under article I, section 11 of the Tennessee Constitution occurs whenever a law (1) ‘provides for the infliction of punishment upon a person for an act done which, when it was committed, was innocent,’ (2) ‘aggravates a crime or makes it greater than when it was committed,’ (3) ‘changes punishment or inflicts a greater punishment than the law annexed to the crime when it was committed,’ (4) ‘changes the rules of evidence and receives (sic) less or different testimony than was required at the time of the commission of the offense in order to convict the offender,’ an

2016Nonetheless, merely labeling a law “procedural” does not prevent review under the ex post facto clause, see Collins, 497 U.S. at 46 , 110 S.Ct. 2715 , because “it is the effect, not the form, of the law that determines whether it is ex post facto,” Weaver, 450 U.S. at 31 , 101 S.Ct. 960 .

2016Nonetheless, merely labeling a law “procedural” does not prevent review under the ex post facto clause, see Collins, 497 U.S. at 46 , 110 S.Ct. 2715 , because “it is the effect, not the form, of the law that determines whether it is ex post facto,” Weaver, 450 U.S. at 31 , 101 S.Ct. 960 .

2014“An ex post facto violation under article I, section 11 of the Tennessee Constitution occurs whenever a law (1) ‘provides for the infliction of punishment upon a person for an act done which, when it was committed, was innocent,’ (2) ‘aggravates a crime or makes it greater than when it was committed,’ (3) ‘changes punishment or inflicts a greater punishment than the law annexed to the crime when it was committed,’ (4) ‘changes the rules of evidence and receives (sic) less or different testimony than was required at the time of the commission of the offense in order to convict the offender,’ an

2013An ex post facto violation under article I, section 11 of the Tennessee Constitution occurs whenever a law (1) “provides for the infliction of punishment upon a person for an act done which, when it was committed, was innocent,” (2) “aggravates a crime or makes it greater than when it was committed,” (3) “changes punishment or inflicts a greater punishment than the law annexed to the crime when it was committed,” (4) “changes the rules of evidence and receives (sic) less or different testimony than was required at the time of the commission of the offense in order to convict the offender,” and

2013An ex post facto violation under article I, section 11 of the Tennessee Constitution occurs whenever a law (1) “provides for the infliction of punishment upon a person for an act done which, when it was committed, was innocent,” (2) “aggravates a crime or makes it greater than when it was committed,” (3) “changes punishment or inflicts a greater punishment than the law annexed to the crime when it was committed,” (4) “changes the rules of evidence and receives (sic) less or different testimony than was required at the time of the commission of the offense in order to convict the offender,” and

2004This Court, in Miller v. State, 584 S.W.2d 758 (Tenn. 1979), rejected the ex post facto analysis of Dobbert as a matter of Tennessee constitutional law, and instead adopted an older ex post facto analysis found in State v. Rowe, 181 A. 706, 709-10 (N.J. 1935).

2003California Dep’t of Corr. v. Morales, 514 U.S. at 509 , 115 S.Ct. at 1603 ; Wilson v. State, 980 S.W.2d 196, 199-200 (Tenn.Ct.App.1998).

2001See Wilson v. State, 980 S.W.2d 196 (Tenn. Ct. App. 1998); California Department of Corrections v. Morales, 514 U.S. 499 (1995).

2004In Kaylor, 912 S.W.2d at 732 , the Tennessee Court of Appeals noted that the ex post facto clause is implicated only if the effect of the repeal is to impose a greater or more severe punishment than was proscribed by law at the time of the offense.

2000In Kaylor, 912 S.W.2d at 732 , the Tennessee Court of Appeals noted that the ex post facto clause is implicated only if the effect of the repeal is to impose a greater or more severe punishment than was proscribed by law at the time of the offense.

2021App. 2001) (aggregating offenses under common law when the defendant embezzled money from her employer over a period of three years by altering over 150 checks). “[I]n determining whether an ex post facto violation exists in the context of sentencing, the critical question under both the United States and Tennessee Constitutions is whether the law changes the punishment to the defendant’s disadvantage, or inflicts a greater punishment than the law allowed when the offense occurred.” Pruitt, 510 S.W.3d at 414 (quoting State v. Pearson, 858 S.W.2d 879, 883 (Tenn. 1993)).

2021We note that “the ex post facto clause of the Tennessee Constitution has the same definition and scope as the federal clause.” Pruitt, 510 S.W.3d at 416 .

2016App. July 1, 2013), no perm. app. filed, that- retroactive application of the Exclusionary Rule Reform Act, Tennessee Code Annotated section 40-6-108, would violate constitutional protections against ex post facto laws and to re-evaluate the ex post facto analysis in Miller v. State, 584 S.W.2d 758 (Tenn. 1979), in light of Collins v. Youngblood, 497 U.S. 37 , 110 S.Ct. 2715 , 111 L.Ed.2d 30 (1990).

2016App. July 1, 2013), no perm. app. filed, that- retroactive application of the Exclusionary Rule Reform Act, Tennessee Code Annotated section 40-6-108, would violate constitutional protections against ex post facto laws and to re-evaluate the ex post facto analysis in Miller v. State, 584 S.W.2d 758 (Tenn. 1979), in light of Collins v. Youngblood, 497 U.S. 37 , 110 S.Ct. 2715 , 111 L.Ed.2d 30 (1990).

2015Smith v. Doe, 538 U.S. 84, 92 (2003).

2013The court noted that “[t]he United States Supreme Court has upheld the retroactive application of Alaska’s registration law against an ex post facto challenge.” Id. n.6 (citing Smith v. Doe, 538 U.S. 84, 105-06 (2003)). -4- (a) While mandated to comply with the requirements of this chapter, no sexual offender, as defined in § 40-39-202, or violent sexual offender, as defined in § 40-39-202, whose victim was a minor, shall knowingly establish a primary or secondary residence or any other living accommodation, knowingly obtain sexual offender treatment or attend a sexual offender treatment progr

2010See Collins v. Youngblood, 497 U.S. at 46-52 (expressly overruling Kring v. Missouri, 107 U.S. 221 , 2 S.Ct. 443 , 27 L.Ed. 506 (1883), and Thompson v. Utah, 170 U.S. 343 , 18 S.Ct. 620 , 42 L.Ed. 1061 (1898), both of which had relied on the more lenient standard of defining an ex post facto law as one that merely disadvantaged a defendant).

2010See Collins v. Youngblood, 497 U.S. at 46-52 (expressly overruling Kring v. Missouri, 107 U.S. 221 , 2 S.Ct. 443 , 27 L.Ed. 506 (1883), and Thompson v. Utah, 170 U.S. 343 , 18 S.Ct. 620 , 42 L.Ed. 1061 (1898), both of which had relied on the more lenient standard of defining an ex post facto law as one that merely disadvantaged a defendant).

2010See Collins v. Youngblood, 497 U.S. at 46-52 (expressly overruling Kring v. Missouri, 107 U.S. 221 , 2 S.Ct. 443 , 27 L.Ed. 506 (1883), and Thompson v. Utah, 170 U.S. 343 , 18 S.Ct. 620 , 42 L.Ed. 1061 (1898), both of which had relied on the more lenient standard of defining an ex post facto law as one that merely disadvantaged a defendant).

2010See Collins v. Youngblood, 497 U.S. at 46-52 (expressly overruling Kring v. Missouri, 107 U.S. 221 , 2 S.Ct. 443 , 27 L.Ed. 506 (1883), and Thompson v. Utah, 170 U.S. 343 , 18 S.Ct. 620 , 42 L.Ed. 1061 (1898), both of which had relied on the more lenient standard of defining an ex post facto law as one that merely disadvantaged a defendant).

2010Id. at 241 (“[L]aws which change a rule of evidence, but which do not increase the punishment nor change the elements of the offense or the ultimate facts necessary to establish guilt, but only remove existing restrictions on the competency of certain classes of evidence or of persons as witnesses do not constitute ex post facto laws.”).

2008Id. at 241 (“[L]aws which change a rule of evidence, but which do not increase the punishment nor change the elements of the offense or the ultimate facts necessary to establish guilt, but only remove existing restrictions on the competency of certain classes of evidence or of persons as witnesses do not constitute ex post facto laws.”).

2003Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995); In re Jackson, 216 CaLRptr. 760, 703 P.2d at 108 ; Johnson v. Commissioner of Corr., 258 Conn. 804 , 786 A.2d 1091, 1099 (2002).

2000Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995); In re Jackson, 703 P.2d at 108 ; Johnson v. Commissioner of Corr., 786 A.2d 1091, 1099 (Conn. 2002).

2003Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995); In re Jackson, 216 CaLRptr. 760, 703 P.2d at 108 ; Johnson v. Commissioner of Corr., 258 Conn. 804 , 786 A.2d 1091, 1099 (2002).

2003Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995); In re Jackson, 216 CaLRptr. 760, 703 P.2d at 108 ; Johnson v. Commissioner of Corr., 258 Conn. 804 , 786 A.2d 1091, 1099 (2002).

2003Accordingly, a change in a statute, rule, or policy that governs the parole or early release of prisoners may, in some instances, violate the Ex Post Facto Clauses, Garner v. Jones, 529 U.S. at 250, 120 S.Ct. at 1367 ; Lynce v. Mathis, 519 U.S. at 445 , 117 S.Ct. at 898 ; Weaver v. Graham, 450 U.S. at 32 , 101 S.Ct. at 966 , but only insofar as it retroactively increases the extent of the punishment that could have been imposed on the day the prisoner committed the underlying crime. 2 Nowak & Rotunda, § 15.9(b), at 678 n. 67. *717 The bulk of the ex post facto analysis focuses on the effect of

2003Accordingly, a change in a statute, rule, or policy that governs the parole or early release of prisoners may, in some instances, violate the Ex Post Facto Clauses, Garner v. Jones, 529 U.S. at 250, 120 S.Ct. at 1367 ; Lynce v. Mathis, 519 U.S. at 445 , 117 S.Ct. at 898 ; Weaver v. Graham, 450 U.S. at 32 , 101 S.Ct. at 966 , but only insofar as it retroactively increases the extent of the punishment that could have been imposed on the day the prisoner committed the underlying crime. 2 Nowak & Rotunda, § 15.9(b), at 678 n. 67. *717 The bulk of the ex post facto analysis focuses on the effect of

2025Even where these concerns are not directly implicated, however, the Clause also safeguards “a fundamental fairness interest . . . in having the government abide by the rules of law it establishes to govern the circumstances under which it can deprive a person of his or her liberty or life.” Carmell[ v. Texas, 529 U.S. 513, 533 , 120 S. Ct. 1620 , 146 L.Ed.2d 577 (2000)]. 569 U.S. 530, 543 (2013). 12 “In determining whether an ex post facto violation exists in the context of sentencing, the critical question under both the United States and Tennessee Constitutions is whether the law changes the

2016In addition, the nature of the statute also lends itself to a conclusion that it is a procedural/remedial statute because the exclusionary rule itself “is a judicially created remedy designed to safeguard Fourth Amendment *418 rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved,” United States v. Calandra, 414 U.S. 338, 348 , 94 S.Ct. 613 , 38 L.Ed.2d 561 (1974), whereas the ex post facto clause provides “fair warning of applicable laws and guards against vindictive legislative action,” Peugh, 133 S.Ct. at 2085 .

2017The copy of the Sex Offender Directives signed by Nunn 46 expressly states that the listed conditions are “guidelines” established for sex offenders that will apply “until my Officer and treatment provider, or the Board determines otherwise.” Thus, the Sex Offender Directives were in the nature of “guidelines intended to provide a framework for the [agency’s] exercise of pre-existing statutory discretion,” Utley, 118 S.W.3d at 719 , and their adoption did not run afoul of the ex post facto clause.

2011This Court has recognized that, in order “to prevail with an ex post facto claim, a prisoner must show more than a speculative or attenuated possibility that the new statute, rule, or policy may result in more time in prison.” Utley v. TDOC, 118 S.W.3d 705, 717 (Tenn. Ct. App. 2003).

2013App. 2d 342 , 744 P.2d 143 (1987) (stating that retroactive application of change in expungement statute to deny defendant the opportunity to expunge his criminal record disadvantaged him and constituted punishment, and thus, was an ex post facto violation); but see State v. T.P.M., 460 A.2d 167 , 189 N.J.

2007See Adler, 92 S.W.3d at 402 (noting that the purpose of the expungement statute is “to prevent a citizen from bearing the stigma of having been charged with a criminal offense, where he was acquitted of the charge”); Doe, 588 S.W.2d at 552 (stating that “[i]t is common knowledge that the preferment of charges against a citizen can have a severe impact upon his reputation, regardless of whether or not a conviction results”); see State v. Anderson, 12 Kan.App.2d 342 , 744 P.2d 143 (1987) (stating that retroactive application of change in expungement statute to deny defendant the opportunity to e

2007However, as the Wyrick court noted in rejecting an ex post facto challenge to the statute, a person who has committed one of the violent offenses specified in the statute is “presumed to be on notice that any subsequent convictions for violent offenses could subject him to a life sentence under the repeat violent offenders statute.” Id. at 794 .

2002See State v. Wyrick, 62 S.W.3d 751 (Tenn. Crim.

2003Accordingly, a change in a statute, rule, or policy that governs the parole or early release of prisoners may, in some instances, violate the Ex Post Facto Clauses, Garner v. Jones, 529 U.S. at 250, 120 S.Ct. at 1367 ; Lynce v. Mathis, 519 U.S. at 445 , 117 S.Ct. at 898 ; Weaver v. Graham, 450 U.S. at 32 , 101 S.Ct. at 966 , but only insofar as it retroactively increases the extent of the punishment that could have been imposed on the day the prisoner committed the underlying crime. 2 Nowak & Rotunda, § 15.9(b), at 678 n. 67. *717 The bulk of the ex post facto analysis focuses on the effect of

2003Accordingly, a change in a statute, rule, or policy that governs the parole or early release of prisoners may, in some instances, violate the Ex Post Facto Clauses, Garner v. Jones, 529 U.S. at 250, 120 S.Ct. at 1367 ; Lynce v. Mathis, 519 U.S. at 445 , 117 S.Ct. at 898 ; Weaver v. Graham, 450 U.S. at 32 , 101 S.Ct. at 966 , but only insofar as it retroactively increases the extent of the punishment that could have been imposed on the day the prisoner committed the underlying crime. 2 Nowak & Rotunda, § 15.9(b), at 678 n. 67. *717 The bulk of the ex post facto analysis focuses on the effect of

2022See State v. Johnson, 970 S.W.2d 500, 508 (Tenn. Crim.

2021Federal courts have held that “where the conduct is a ‘continuing offense’ spanning a period before and after a Guidelines Manual revision, the later Guidelines Manual applies without violating the ex post facto clause.” United States v. Wijegoonaratna, 922 F.3d 983, 992-93 (9th Cir. 2019).

2021See Wijegoonaratna, 922 F.3d at 992-93 (concluding that, because health care fraud could be charged as multiple discrete offenses or a continuing offense and because the government chose to charge multiple offenses rather than a continuing offense, the application of the enacted sentencing change would be an ex post facto violation).