Tennessee Criminal Lawyer Blog

Criminal trials can take months, years, or even decades from start to finish. Not surprisingly, laws can change mid-trial for many defendants for various reasons and can cause a great deal of confusion for defendants when laws change that directly affect the defendant’s case or sentencing. For an example of this, one can look to State v. Gholston, a case that recently came on appeal before the Tennessee Court of Criminal Appeals.

In Gholston, the defendant committed the offenses for which he was indicted in July of 2004. While the case was going through the trial process, the Tennessee legislature adopted the Sentencing Reform Act of 2005, which changed, in various ways, the procedures and methodology for sentencing defendants. Due to the fact that the defendant was sentenced in 2006, an issue arose at trial as to whether the defendant should be sentenced under the sentencing regime that existed prior to the 2005 Reform Act (at the time the defendant was charged) or under the 2005 Reform Act, which existed at the time the defendant was sentenced. The Court held that unless the defendant had signed a written waiver acknowledging that he wished to be sentenced under the new regime, the sentencing regime that was in effect at the time the defendant was charged would be the one that was applied in the defendant’s case.

This holding makes sense for many reasons, maybe most notably the fact that the criminal justice system places a great emphasis on making sure that defendants receive notice of the laws under which they are charged. It is this emphasis on notice that is evident in the United States Constitution, which forbids the government from passing any ex post facto law that would criminalize conduct or change the penalty for that conduct after the conduct has already happened. Simply put, it is unconstitutional for a defendant to be affected by any law that was not in effect and published at the time of the defendant’s alleged misconduct without the consent of the defendant.

Source: (State v. Gholston, 35 TAM 10-18, 1/5/10, Nashville, Tipton, 5 pages.)