Tennessee Code Annotated
Tenn. Code Ann. § 40-35-402 (2026)
Appeal of sentence by state - Standard
✓ current as of May 2026
- (a) The district attorney general in a criminal case may appeal from the length, range or manner of the service of the sentence imposed by the sentencing court. The district attorney general may also appeal the imposition of concurrent sentences. In addition, the district attorney general may also appeal the amount of fines and restitution imposed by the sentencing court. An appeal pursuant to this section shall be taken within the same time and in the same manner as other appeals in criminal cases. The right of the appeal of the state is independent of the defendant's right of appeal.
- (b) An appeal from a sentence is limited to one (1) or more of the following conditions:
- (1) The court improperly sentenced the defendant to the wrong sentence range;
- (2) The court granted all or part of the sentence on probation;
- (3) The court ordered all or part of the sentences to run concurrently;
- (4) The court improperly found the defendant to be an especially mitigated offender;
- (5) The court failed to impose the fines recommended by the jury;
- (6) The court failed to order the defendant to make reasonable restitution; or
- (7) The sentence is inconsistent with the purposes or considerations of sentencing set out in §§ 40-35-102 and 40-35-103.
- (c) If the sentence is appealed by the state, the appellate court may affirm, vacate, set aside, increase or reduce the sentence imposed or remand the case or direct the entry of an appropriate order.
- (d) When reviewing sentencing issues raised pursuant to this section, the appellate court shall conduct a de novo review on the record of the issues. The review shall be conducted with a presumption that the determinations made by the court from which the appeal is taken are correct.
Acts 1989, ch. 591, § 6; 1998, ch. 796, §§ 1, 2; 2005, ch. 353, § 9.
Notes of Decisions
Cited in 140
cases (3 in the last 5 years), 1984–2022 · leading case: State of Tennessee v. Susan Renee Bise, 380 S.W.3d 682 (Tenn. 2012).
State of Tennessee v. Susan Renee Bise, 380 S.W.3d 682 (Tenn. 2012). “2d at 238 -39 (quoting Tenn. Code Ann. § 40-35-402 (d) (Supp.1986) (repealed)).”
State v. Bryant, 805 S.W.2d 762 (Tenn. 1991). “Tenn. Code Ann. § 40-35-402 (Supp. 1987) (emphasis added).”
State v. Harkins, 811 S.W.2d 79 (Tenn. 1991). “The Defendant takes the position that the de novo review by the intermediate court was appropriate, consistent with precedent, and reflective of legislative intent considering the mandates of T.C.A. § 40-35-402. Parenthetically, we should point out that the underlying motivation…”
State v. Carter, 254 S.W.3d 335 (Tenn. 2008). “§ 40-35-402(b)(5). Significantly, the 2005 amendments deleted as grounds for appeal a claim that the trial court did not weigh properly the enhancement and mitigating factors.”
State v. Smith, 735 S.W.2d 859 (Tenn. Crim. App. 1987). “T.C.A. § 40-35-402(d). In conducting a de novo review of a sentence, this Court must consider (a) any evidence received at the trial and/or sentencing hearing, (b) the presentence report, (c) the principles of sentencing, (d) the arguments of counsel relative to sentencing…”
State v. Moss, 727 S.W.2d 229 (Tenn. 1986). “As part of Defendant’s appeal as of right, the Court of Criminal Appeals conducted a de novo review of the sentence under the authority of T.C.A. § 40-35-402(d) (Supp.1986). The intermediate court concluded that the approach adopted by the trial court failed to consider certain…”
State v. Electroplating, Inc., 990 S.W.2d 211 (Tenn. Crim. App. 1998). “See Tenn. Code Ann. § 40-35-402 (1997). Finding no error warranting reversal of Cunningham’s conviction or any modification of his sentence, we affirm the judgment of the trial court.”
State v. Jenkins, 733 S.W.2d 528 (Tenn. Crim. App. 1987). “See T.C.A. § 40-35-402(c)(2) While the offense is a felony, and subject to be served in the Department of Corrections, the actual place of Black's confinement, like the sentence of Jenkins, will be served in the Cocke County Jail rather than the Department of Corrections as…”
State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987). “Also, the Tennessee General Assembly created the de novo review standard, T.C.A. § 40-35-402(d), and the Community Corrections Act during the 1985 extraordinary session, which was convened for the purpose of addressing the pressing issues of overcrowding in our prisons.”
State v. Ashby, 823 S.W.2d 166 (Tenn. 1991). “De novo review with a presumption of correctness, mandated by T.C.A. § 40-35-402(d), requires application of the sentencing principles stated in T.”
State v. Taylor, 739 S.W.2d 227 (Tenn. 1987). “T.C.A. § 40-35-402(d). The relevant portions of Gray are as follows: Essentially, a consecutive sentence should be imposed only after a finding by the trial judge that confinement for such a term is necessary in order to protect the public from further criminal conduct by the…”
State v. Rhoden, 739 S.W.2d 6 (Tenn. Crim. App. 1987). “In conducting the de novo review mandated by the Tennessee Criminal Sentencing Reform Act of 1982 this Court must consider (a) any evidence received at the trial and/or sentencing hearing, (b) the presentence report, (c) the principles of sentencing, (d) the arguments of counsel…”
— Tenn. Code Ann. § 40-35-402(a) — 19 cases
State of Tennessee v. Susan Renee Bise, 380 S.W.3d 682 (Tenn. 2012). “2d at 238 -39 (quoting Tenn. Code Ann. § 40-35-402 (d) (Supp.1986) (repealed)).”
State v. Harkins, 811 S.W.2d 79 (Tenn. 1991). “The Defendant takes the position that the de novo review by the intermediate court was appropriate, consistent with precedent, and reflective of legislative intent considering the mandates of T.C.A. § 40-35-402. Parenthetically, we should point out that the underlying motivation…”
State v. Bryant, 805 S.W.2d 762 (Tenn. 1991). “Tenn. Code Ann. § 40-35-402 (Supp. 1987) (emphasis added).”
State of Tennessee v. James Allen Pollard, 432 S.W.3d 851 (Tenn. 2013).
David Cantrell v. Joe Easterling, Warden, 346 S.W.3d 445 (Tenn. 2011).
— Tenn. Code Ann. § 40-35-402(b) — 8 cases
State of Tennessee v. Susan Renee Bise, 380 S.W.3d 682 (Tenn. 2012). “2d at 238 -39 (quoting Tenn. Code Ann. § 40-35-402 (d) (Supp.1986) (repealed)).”
State v. Electroplating, Inc., 990 S.W.2d 211 (Tenn. Crim. App. 1998). “See Tenn. Code Ann. § 40-35-402 (1997). Finding no error warranting reversal of Cunningham’s conviction or any modification of his sentence, we affirm the judgment of the trial court.”
State of Tennessee v. Ashley N. Menke (Tenn. 2019).
State of Tennessee v. Charles Keese (Tenn. 2019).
State v. Curtis, 743 S.W.2d 195 (Tenn. Crim. App. 1987).
— Tenn. Code Ann. § 40-35-402(b)(1) — 5 cases
State of Tennessee v. Charles Keese (Tenn. 2019).
State of Tennessee v. Charles Keese (Tenn. Crim. App. 2018).
State of Tennessee v. Ashley N. Menke (Tenn. 2019).
State of Tennessee v. Michael Eugene Tolle (Tenn. Crim. App. 2018).
State of Tennessee v. Harley Crosland - Dissent (Tenn. Crim. App. 2018).
— Tenn. Code Ann. § 40-35-402(b)(2) — 5 cases
State v. Seaton, 914 S.W.2d 129 (Tenn. Crim. App. 1995).
State of Tennessee v. Chastity Coleman (Tenn. Crim. App. 2018).
State of Tennessee v. Harley Crosland - Dissent (Tenn. Crim. App. 2018).
State of Tennessee v. Jeremy Mulkey (Tenn. Crim. App. 2013).
State of Tennessee v. Charles Bradford Stewart (Tenn. Crim. App. 2011).
— Tenn. Code Ann. § 40-35-402(b)(4) — 1 case
David Cantrell v. Joe Easterling, Warden, 346 S.W.3d 445 (Tenn. 2011).
— Tenn. Code Ann. § 40-35-402(b)(5) — 2 cases
State v. Carter, 254 S.W.3d 335 (Tenn. 2008). “§ 40-35-402(b)(5). Significantly, the 2005 amendments deleted as grounds for appeal a claim that the trial court did not weigh properly the enhancement and mitigating factors.”
State of Tennessee v. Aaron Duchesne (Tenn. Crim. App. 2009).
— Tenn. Code Ann. § 40-35-402(b)(7) — 5 cases
State of Tennessee v. Susan Renee Bise, 380 S.W.3d 682 (Tenn. 2012). “2d at 238 -39 (quoting Tenn. Code Ann. § 40-35-402 (d) (Supp.1986) (repealed)).”
State v. Carter, 254 S.W.3d 335 (Tenn. 2008). “§ 40-35-402(b)(5). Significantly, the 2005 amendments deleted as grounds for appeal a claim that the trial court did not weigh properly the enhancement and mitigating factors.”
State of Tennessee v. James Nelson (Tenn. Crim. App. 2009).
State of Tennessee v. Aaron Duchesne (Tenn. Crim. App. 2009).
State of Tennessee v. Jerome Emmett Huntley (Tenn. Crim. App. 2009).
— Tenn. Code Ann. § 40-35-402(b)(l) — 1 case
State v. Bryant, 805 S.W.2d 762 (Tenn. 1991). “Tenn. Code Ann. § 40-35-402 (Supp. 1987) (emphasis added).”
— Tenn. Code Ann. § 40-35-402(c) — 12 cases
State of Tennessee v. Susan Renee Bise, 380 S.W.3d 682 (Tenn. 2012). “2d at 238 -39 (quoting Tenn. Code Ann. § 40-35-402 (d) (Supp.1986) (repealed)).”
State v. Carter, 254 S.W.3d 335 (Tenn. 2008). “§ 40-35-402(b)(5). Significantly, the 2005 amendments deleted as grounds for appeal a claim that the trial court did not weigh properly the enhancement and mitigating factors.”
State v. Harvey, 700 S.W.2d 571 (Tenn. Crim. App. 1985).
Joe Clark Mitchell v. Debra Johnson, Warden (Tenn. Crim. App. 2018).
State of Tennessee v. Teresa C. Graves (Tenn. Crim. App. 2005).
— Tenn. Code Ann. § 40-35-402(c)(2) — 2 cases
State v. Jenkins, 733 S.W.2d 528 (Tenn. Crim. App. 1987). “See T.C.A. § 40-35-402(c)(2) While the offense is a felony, and subject to be served in the Department of Corrections, the actual place of Black's confinement, like the sentence of Jenkins, will be served in the Cocke County Jail rather than the Department of Corrections as…”
State v. Mynatt, 684 S.W.2d 103 (Tenn. Crim. App. 1984).
— Tenn. Code Ann. § 40-35-402(d) — 73 cases
State v. Smith, 735 S.W.2d 859 (Tenn. Crim. App. 1987). “T.C.A. § 40-35-402(d). In conducting a de novo review of a sentence, this Court must consider (a) any evidence received at the trial and/or sentencing hearing, (b) the presentence report, (c) the principles of sentencing, (d) the arguments of counsel relative to sentencing…”
State v. Moss, 727 S.W.2d 229 (Tenn. 1986). “As part of Defendant’s appeal as of right, the Court of Criminal Appeals conducted a de novo review of the sentence under the authority of T.C.A. § 40-35-402(d) (Supp.1986). The intermediate court concluded that the approach adopted by the trial court failed to consider certain…”
State of Tennessee v. Susan Renee Bise, 380 S.W.3d 682 (Tenn. 2012). “2d at 238 -39 (quoting Tenn. Code Ann. § 40-35-402 (d) (Supp.1986) (repealed)).”
State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987). “Also, the Tennessee General Assembly created the de novo review standard, T.C.A. § 40-35-402(d), and the Community Corrections Act during the 1985 extraordinary session, which was convened for the purpose of addressing the pressing issues of overcrowding in our prisons.”
State v. Ashby, 823 S.W.2d 166 (Tenn. 1991). “De novo review with a presumption of correctness, mandated by T.C.A. § 40-35-402(d), requires application of the sentencing principles stated in T.”
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