Felony simple possession modified to misdemeanor simple possession because of a change in the law

This past week, the Tennessee Court of Criminal Appeals modified a conviction for felony simple possession to misdemeanor simple possession because a change in the law provided for a more lenient sentence.  In the case, the defendant had four prior convictions for drug possession, and at the time he committed the crime, Tennessee Code Annotated section 39-17-418(e) (2014) provided that “[a] violation under this section is a Class E felony where the person has two (2) or more prior convictions under this section.”  Applying the above statute, the trial court determined that the conviction was a Class E felony, and the court sentenced the defendant as a career offender to six years.

However, before the defendant was sentenced, Tennessee Code Annotated section 39-17-418(e) was amended to provide that “[a] violation under this section is a Class E felony where the person has two (2) or more prior convictions under this section and the current violation involves a Schedule I controlled substance classified as heroin.”  Under Tennessee Code Annotated section 39-11-112, when a penal statute is amended and the subsequent version “provides for a lesser penalty, any punishment imposed shall be in accordance with the subsequent act.”  Since the statute was amended before the defendant was sentenced and the defendant’s current conviction did not involve heroin, the Tennessee Court of Criminal Appeals reversed the trial court’s decision and remanded the case for the imposition of a sentence of eleven months and twenty-nine days for a Class A misdemeanor.

State v. Hester, No. W2016-01822-CCA-R3-CD (Tenn. Crim. App. Nov. 21, 2017)

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