Section 39-17-432 - Drug-Free School Zone - Enhanced criminal penalties for violations within zone(a) It is the intent of this section to create drug-free zones for the purpose of providing vulnerable persons in this state an environment in which they can learn, play and enjoy themselves without the distractions and dangers that are incident to the occurrence of illegal drug activities. The enhanced sentences authorized by this section for drug offenses occurring in a drug-free zone are necessary to serve as a deterrent to such unacceptable conduct.(b)(1) A violation of § 39-17-417, or a conspiracy to violate the section, may be punished one (1) classification higher than is provided in § 39-17-417(b)-(i) if the violation or the conspiracy to violate the section occurs: (A) On the grounds or facilities of any school; or(B) Within five hundred feet (500') of or within the area bounded by a divided federal highway, whichever is less, the real property that comprises a public or private elementary school, middle school, secondary school, preschool, child care agency, public library, recreational center, or park.(2) In addition to any other penalty imposed by this section, a person convicted of violating this subsection (b) may also be subject to the following:(A) Upon conviction of a Class E felony, a fine of not more than ten thousand dollars ($10,000);(B) Upon conviction of a Class D felony, a fine of not more than twenty thousand dollars ($20,000);(C) Upon conviction of a Class C felony, a fine of not more than forty thousand dollars ($40,000);(D) Upon conviction of a Class B felony, a fine of not more than sixty thousand dollars ($60,000); and(E) Upon conviction of a Class A felony, a fine of not more than one hundred thousand dollars ($100,000).(3) A person convicted of violating this subsection (b), who is within the prohibited zone of a preschool, childcare center, public library, recreational center or park shall not be subject to additional incarceration as a result of this subsection (b) but may be subject to the additional fines imposed by this section.(c)(1) Notwithstanding any other law or the sentence imposed by the court to the contrary, a defendant sentenced for a violation of subsection (b) may be required to serve at least the minimum sentence for the defendant's appropriate range of sentence.(2) There is a rebuttable presumption that a defendant is not required to serve at least the minimum sentence for the defendant's appropriate range of sentence. The rebuttable presumption is overcome if the court finds that the defendant's conduct exposed vulnerable persons to the distractions and dangers that are incident to the occurrence of illegal drug activity.(3) If the defendant is required to serve at least the minimum sentence for the defendant's appropriate range of sentence, any sentence reduction credits the defendant may be eligible for or earn must not operate to permit or allow the release of the defendant prior to full service of the minimum sentence.(d) Notwithstanding the sentence imposed by the court, title 40, chapter 35, part 5, relative to release eligibility status and parole does not apply to or authorize the release of a defendant sentenced for a violation of subsection (b), and required under subsection (c) to serve at least the minimum sentence for the defendant's appropriate range of sentence, prior to service of the entire minimum sentence for the defendant's appropriate range of sentence.(e) Nothing in title 41, chapter 1, part 5, shall give either the governor or the board of parole the authority to release or cause the release of a defendant sentenced for a violation of subsection (b), and required under subsection (c) to serve at least the minimum sentence for the defendant's appropriate range of sentence, prior to service of the entire minimum sentence for the defendant's appropriate range of sentence.(f) This section does not prohibit the judge from sentencing a defendant, who violated subsection (b) and is required under subsection (c) to serve at least the minimum sentence for the defendant's appropriate range of sentence, to any authorized term of incarceration in excess of the minimum sentence for the defendant's appropriate range of sentence.(g) The sentence of a defendant who, as the result of a single act, violates both subsection (b) and § 39-14-417(k), may be enhanced under both subsection (b) and § 39-17-417(k) for each act. The state may seek enhancement of the defendant's sentence under subsection (b), § 39-17-417(k), or both, and shall provide notice of the election pursuant to § 40-35-202.(h)(1) Notwithstanding subsection (d) or (e) or any other law to the contrary, the court that imposed a sentence for an offense committed under this section that occurred prior to September 1, 2020, may, upon motion of the defendant or the district attorney general or the court's own motion, resentence the defendant pursuant to subsections (a)-(g). The court shall hold an evidentiary hearing on the motion, at which the defendant and district attorney general may present evidence. The defendant shall bear the burden of proof to show that the defendant would be sentenced to a shorter period of confinement under this section if the defendant's offense had occurred on or after September 1, 2020. The court shall not resentence the defendant if the new sentence would be greater than the sentence originally imposed or if the court finds that resentencing the defendant would not be in the interests of justice. In determining whether a new sentence would be in the interests of justice, the court may consider: (A) The defendant's criminal record, including subsequent criminal convictions;(B) The defendant's behavior while incarcerated;(C) The circumstances surrounding the offense, including, but not limited to, whether the conviction was entered into pursuant to a plea deal; and(D) Any other factors the court deems relevant.(2) If the court finds that the defendant is indigent, using the criteria set out in § 40-14-202(c), the court shall appoint counsel to represent the defendant on such a motion.(3) The court shall not entertain a motion made under this subsection (h) to resentence a defendant if: (A) A previous motion made under this subsection (h) to reduce the sentence was denied after a review of the motion on the merits;(B) Resentencing the defendant to a shorter period of confinement for this offense would not reduce the defendant's overall sentence or lead to an earlier release; or(C) The defendant has previously applied to the governor for a grant of executive clemency on or after December 2, 2021, for the same offense and has been denied.(4) This subsection (h) does not require a court to reduce any sentence pursuant to this section.Amended by 2022 Tenn. Acts, ch. 927, s 1, eff. 4/29/2022.Amended by 2020 Tenn. Acts, ch. 803, Secs.s 2, s 3, s 4, s 5, s 6, s 7, s 8, s 9 eff. 9/1/2020.Amended by 2020 Tenn. Acts, ch. 803, s 1, eff. 9/1/2020.Acts 1995, ch. 515, § 1; 1998, ch. 1049, § 16; 2005, ch. 295, §§ 1 - 4.