Tennessee Code Annotated
Tenn. Code Ann. § 40-35-104 (2026)
Sentencing alternatives
✓ current as of May 2026
- (a) A defendant convicted of a felony or a misdemeanor in this state shall be sentenced in accordance with this chapter.
- (b)
- (1) A defendant who is convicted of a felony after November 1, 1989, and who is sentenced to a total sentence of at least one (1) year but not more than three (3) years, shall not be sentenced to serve the sentence in the department of correction, if the legislative body for the county from which the defendant is being sentenced has either contracted with the department, or has passed a resolution that expresses an intent to contract for the purpose of housing convicted felons with such sentences. If the sentencing court concludes that incarceration is the appropriate sentencing alternative, the defendant must be sentenced to the local jail or workhouse and not to the department.
- (2) A defendant who is convicted of a felony after November 1, 1989, and who is sentenced to at least one (1) year but not more than six (6) years, shall not be sentenced to serve the sentence in the department of correction if the defendant is being sentenced from a county with a population of not less than four hundred seventy-seven thousand eight hundred eleven (477,811), according to the 1980 federal census or any subsequent federal census, and the legislative body for the county has contracted with the department or has passed a resolution that expresses an intent to contract for the purpose of housing convicted felons with such sentences. If the sentencing court concludes that incarceration is the appropriate sentencing alternative, the defendant must be sentenced to the local jail or workhouse and not to the department.
- (c) The following sentencing alternatives in any appropriate combination are authorized for defendants otherwise eligible under this chapter:
- (1) Payment of a fine either alone or in addition to any other sentence authorized by this subsection (c);
- (2) Payment of restitution to the victim or victims either alone or in addition to any other sentence authorized by this subsection (c);
- (3) A sentence of confinement that is suspended upon a term of probation supervision that may include community service or restitution, or both;
- (4) A sentence of periodic confinement that may be served in a local jail or workhouse in conjunction with a term of probation;
- (5) A sentence of continuous confinement to be served in a local jail or workhouse in conjunction with a term of probation;
- (6) A sentence of continuous confinement in a local jail or workhouse;
- (7) Work release in accordance with § 40-35-315;
- (8) A sentence of continuous confinement in the department of correction if the conviction is for a felony and the sentence is at least one (1) year, unless:
- (A) The sentence is prohibited by subsection (b); or
- (B) The defendant is convicted of a violation of § 39-14-103, involving property valued at less than two thousand five hundred dollars ($2,500), and the defendant is sentenced as an especially mitigated offender as defined in § 40-35-109 or a standard offender as defined in § 40-35-105; or
- (9) A community-based alternative to incarceration as a condition of probation, such as participation in a day reporting center program, a recovery and treatment program, or another appropriate community-based program. A defendant may be ordered to participate in a recovery and treatment program only if such a program is indicated by the results of a clinical assessment.
- (d) This chapter does not deprive a court of any authority conferred by law, including, but not limited to, § 40-35-313, to decree a forfeiture of property, suspend or cancel a license, remove a person from office or impose costs and other monetary obligations if specifically authorized by law.
- (e) This chapter does not prevent a court from imposing a sentence of death specifically authorized by law.
- (f) The court shall strongly consider utilizing available and appropriate sentencing alternatives for any defendant who, as appropriately documented, including through a validated risk and needs assessment under § 40-35-207(a)(10), has a behavioral health need, such as a mental illness as defined in § 33-1-101, or is chemically dependent as defined in § 16-22-103. The court has sole discretion whether to utilize available sentencing alternatives under this subsection (f).
Amended by 2021 Tenn. Acts, ch. 409, s 10, eff. 7/1/2021.
Amended by 2021 Tenn. Acts, ch. 409, s 9, eff. 7/1/2021.
Amended by 2016 Tenn. Acts, ch. 906, s 6, eff. 1/1/2017.
Acts 1989, ch. 591, § 6; 1990, ch. 1030, § 36; 1991, ch. 374, §§ 1, 2; 1992, ch. 878, § 2; 1996, ch. 699, § 2.
Notes of Decisions
Cited in 234
cases (15 in the last 5 years), 1986–2025 · leading case: State v. Davis, 940 S.W.2d 558 (Tenn. 1997).
State v. Davis, 940 S.W.2d 558 (Tenn. 1997). “We recognize that, effective July 1, 1996, Tenn. Code Ann. § 40-35-104 (c)(2) was amended to include the following sentencing alternative: "Payment of restitution to the victim or victims either alone or in addition to any other sentence authorized by this subsection.”
State v. Moss, 727 S.W.2d 229 (Tenn. 1986). “T.C.A. § 40-35-104 enumerates a series of combinations of confinement, fines, and rehabilitative probation; these vary from a fine to continuous confinement in the penitentiary.”
State v. Bottoms, 87 S.W.3d 95 (Tenn. Crim. App. 2001). “” Effective July 1, 1996, restitution is available where a defendant has been sentenced pursuant to Section 40-35-104(c)(2) (authorizing restitution in addition to a sentence of continuous confinement in the jail or workhouse).”
State v. Fletcher, 805 S.W.2d 785 (Tenn. Crim. App. 1991). “See T.C.A. § 40-35-104(b). The rebuttable presumption at issue in this case, though, does not appear to restrict the trial court’s discretion to the extent the defendant claims in her appeal.”
State v. Palmer, 902 S.W.2d 391 (Tenn. 1995). “Tenn.Code Ann. §§ 40-35-104, -117 & -302 (1990 Supp.”
State v. Hartley, 818 S.W.2d 370 (Tenn. Crim. App. 1991). “These sentencing alternatives to confinement are specifically provided by the legislature in T.C.A. § 40-35-104(c) to meet the goals of the 1989 Act and their application is controlled by the Act.”
State of Tennessee v. Kevin E. Trent, 533 S.W.3d 282 (Tenn. 2017). “See Tenn. Code Ann. § 40-35-104 (c) (2010). The availability of an alternative sentence depends upon the conviction offenses and the defendant’s prior convictions, if any.”
Shorts v. Bartholomew, 278 S.W.3d 268 (Tenn. 2009). “7 See Tenn.Code Ann. §§ 40-35-104, Sentencing Comm’n Cmts; 40-35-212, Sentencing Comm’n Cmts; 40-35-314(a).”
State v. Anderson, 857 S.W.2d 571 (Tenn. Crim. App. 1992). “Also, the sentencing alternatives provided by the legislature in T.C.A. § 40-35-104 do not include judicial diversion.”
State v. Williams, 52 S.W.3d 109 (Tenn. Crim. App. 2001). “The first reason why we cannot accept the state’s argument is based on the alternative sentencing options enumerated in Code section 40-35-104. Full probation is listed as one option.”
Thomas v. Haslam, 303 F. Supp. 3d 585 (M.D. Tenn. 2018). “Tenn. Code Ann. § 40-35-104 (c)(1). "[T]he defendant's ability to pay the fine is a factor in the establishment of the fine," but "it is not a controlling factor.”
State of Tennessee v. Susan Renee Bise, 380 S.W.3d 682 (Tenn. 2012). “If the appeal was by the State, the appellate court could affirm, vacate, set aside, or reduce the sentence or remand, but it could not “increase the specific length of the sentence by the trial court if the sentence was imposed within the proper range and if the defendant was…”
— Tenn. Code Ann. § 40-35-104(4) — 3 cases
State of Tennessee v. Jeannie Hudson (Tenn. Crim. App. 2002).
State v. Alexander Lee (Tenn. Crim. App. 2000).
State v. Stephen T. Mays a/k/a Stephen T. Mayes (Tenn. Crim. App. 2000).
— Tenn. Code Ann. § 40-35-104(6) — 1 case
State of Tennessee v. William E. Ross (Tenn. Crim. App. 2004).
— Tenn. Code Ann. § 40-35-104(a) — 6 cases
State v. Palmer, 902 S.W.2d 391 (Tenn. 1995). “Tenn.Code Ann. §§ 40-35-104, -117 & -302 (1990 Supp.”
State v. Martin, 146 S.W.3d 64 (Tenn. Crim. App. 2004).
State v. Lane, 56 S.W.3d 20 (Tenn. Crim. App. 2000).
State of Tennessee v. Carl R. Greene (Tenn. Crim. App. 2020).
State of Tennessee v. Michael Broyles (Tenn. Crim. App. 2021).
— Tenn. Code Ann. § 40-35-104(b) — 11 cases
State v. Fletcher, 805 S.W.2d 785 (Tenn. Crim. App. 1991). “See T.C.A. § 40-35-104(b). The rebuttable presumption at issue in this case, though, does not appear to restrict the trial court’s discretion to the extent the defendant claims in her appeal.”
Shorts v. Bartholomew, 278 S.W.3d 268 (Tenn. 2009). “7 See Tenn.Code Ann. §§ 40-35-104, Sentencing Comm’n Cmts; 40-35-212, Sentencing Comm’n Cmts; 40-35-314(a).”
Kevin D. McMillan v. State of Tennessee (Tenn. Crim. App. 2013).
State of Tennessee v. Preston Rashad Royal (Tenn. Crim. App. 2016).
State of Tennessee v. Jerry Reginald Burkes (Tenn. Crim. App. 2018).
— Tenn. Code Ann. § 40-35-104(b)(1) — 2 cases
State of Tennessee v. Randy G. McDaniel (Tenn. Crim. App. 2002).
State of Tennessee v. Lamour Ashleigh Sligh (Tenn. Crim. App. 2013).
— Tenn. Code Ann. § 40-35-104(c) — 26 cases
State v. Moss, 727 S.W.2d 229 (Tenn. 1986). “T.C.A. § 40-35-104 enumerates a series of combinations of confinement, fines, and rehabilitative probation; these vary from a fine to continuous confinement in the penitentiary.”
State v. Hartley, 818 S.W.2d 370 (Tenn. Crim. App. 1991). “These sentencing alternatives to confinement are specifically provided by the legislature in T.C.A. § 40-35-104(c) to meet the goals of the 1989 Act and their application is controlled by the Act.”
Shorts v. Bartholomew, 278 S.W.3d 268 (Tenn. 2009). “7 See Tenn.Code Ann. §§ 40-35-104, Sentencing Comm’n Cmts; 40-35-212, Sentencing Comm’n Cmts; 40-35-314(a).”
State of Tennessee v. Nicholas Cole (Tenn. Crim. App. 2016).
State of Tennessee v. Preston Rashad Royal (Tenn. Crim. App. 2016).
— Tenn. Code Ann. § 40-35-104(c)(1) — 4 cases
State of Tennessee v. Nicholas Cole (Tenn. Crim. App. 2016).
State of Tennessee v. Andrew Young Kim (Tenn. Crim. App. 2018).
State of Tennessee v. Dana Ray Davison (Tenn. Crim. App. 2019).
State of Tennessee v. Kevin Anthony Graham (Tenn. Crim. App. 2013).
— Tenn. Code Ann. § 40-35-104(c)(2) — 27 cases
State v. Bottoms, 87 S.W.3d 95 (Tenn. Crim. App. 2001). “” Effective July 1, 1996, restitution is available where a defendant has been sentenced pursuant to Section 40-35-104(c)(2) (authorizing restitution in addition to a sentence of continuous confinement in the jail or workhouse).”
State v. Davis, 940 S.W.2d 558 (Tenn. 1997). “We recognize that, effective July 1, 1996, Tenn. Code Ann. § 40-35-104 (c)(2) was amended to include the following sentencing alternative: "Payment of restitution to the victim or victims either alone or in addition to any other sentence authorized by this subsection.”
State v. Alford, 970 S.W.2d 944 (Tenn. 1998).
State of Tennessee v. Aaron Joseph Van Arsdale (Tenn. Crim. App. 2025).
State of Tennessee v. Douglas Beauregard (Tenn. Crim. App. 2018).
— Tenn. Code Ann. § 40-35-104(c)(2)(1990) — 1 case
State v. Davis, 940 S.W.2d 558 (Tenn. 1997). “We recognize that, effective July 1, 1996, Tenn. Code Ann. § 40-35-104 (c)(2) was amended to include the following sentencing alternative: "Payment of restitution to the victim or victims either alone or in addition to any other sentence authorized by this subsection.”
— Tenn. Code Ann. § 40-35-104(c)(3) — 16 cases
State v. Williams, 52 S.W.3d 109 (Tenn. Crim. App. 2001). “The first reason why we cannot accept the state’s argument is based on the alternative sentencing options enumerated in Code section 40-35-104. Full probation is listed as one option.”
State of Tennessee v. Hollis Fisk, Jr. (Tenn. Crim. App. 2016).
State of Tennessee v. Gary Allen Taylor (Tenn. Crim. App. 2017).
State of Tennessee v. Christopher Allen (Tenn. Crim. App. 2017).
State of Tennessee v. Kristie Louis Mclerran (Tenn. Crim. App. 2017).
— Tenn. Code Ann. § 40-35-104(c)(4) — 1 case
State of Tennessee v. Nicholas Cole (Tenn. Crim. App. 2016).
— Tenn. Code Ann. § 40-35-104(c)(5) — 10 cases
State v. Williams, 52 S.W.3d 109 (Tenn. Crim. App. 2001). “The first reason why we cannot accept the state’s argument is based on the alternative sentencing options enumerated in Code section 40-35-104. Full probation is listed as one option.”
State v. Millsaps, 920 S.W.2d 267 (Tenn. Crim. App. 1995).
State of Tennessee v. Matthew I. Tart (Tenn. Crim. App. 2010).
State of Tennessee v. Devon Elliott Cruze (Tenn. Crim. App. 2015).
State of Tennessee v. Preston Rashad Royal (Tenn. Crim. App. 2016).
— Tenn. Code Ann. § 40-35-104(c)(8) — 4 cases
State v. Fletcher, 805 S.W.2d 785 (Tenn. Crim. App. 1991). “See T.C.A. § 40-35-104(b). The rebuttable presumption at issue in this case, though, does not appear to restrict the trial court’s discretion to the extent the defendant claims in her appeal.”
State v. Hartley, 818 S.W.2d 370 (Tenn. Crim. App. 1991). “These sentencing alternatives to confinement are specifically provided by the legislature in T.C.A. § 40-35-104(c) to meet the goals of the 1989 Act and their application is controlled by the Act.”
State v. Nail, 963 S.W.2d 761 (Tenn. Crim. App. 1997).
State of Tennessee v. Jerry Reginald Burkes (Tenn. Crim. App. 2019).
— Tenn. Code Ann. § 40-35-104(c)(8)(B) — 1 case
State v. Elam, 7 S.W.3d 103 (Tenn. Crim. App. 1999).
— Tenn. Code Ann. § 40-35-104(c)(9) — 11 cases
State v. Anderson, 7 S.W.3d 100 (Tenn. Crim. App. 1999).
State of Tennessee v. Mark Oden Potts (Tenn. Crim. App. 2017).
State of Tennessee v. Rafael Moreno, Jr. (Tenn. Crim. App. 2017).
State of Tennessee v. Scottie R. Buckles (Tenn. Crim. App. 2017).
State of Tennessee v. Antwain Deshun Coleman, AKA Antwain Mackey (Tenn. Crim. App. 2017).
— Tenn. Code Ann. § 40-35-104(d) — 1 case
State of Tennessee v. Marty Ray Harris (Tenn. Crim. App. 2010).
— Tenn. Code Ann. § 40-35-104(e) — 1 case
State v. Davis, 940 S.W.2d 558 (Tenn. 1997). “We recognize that, effective July 1, 1996, Tenn. Code Ann. § 40-35-104 (c)(2) was amended to include the following sentencing alternative: "Payment of restitution to the victim or victims either alone or in addition to any other sentence authorized by this subsection.”
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