5-4-301. Crimes for which suspension or probation prohibited — Criteria for suspension or probation in other cases.

5-4-301. Crimes for which suspension or probation prohibited — Criteria for suspension or probation in other cases. (a)(1) A court shall not suspend imposition of sentence as to a term of imprisonment or place a defendant on probation for the following offenses: (A) Capital murder, § 5-10-101; (B) Treason, § 5-51-201; (C) A Class Y felony, except to the extent suspension of an additional term of imprisonment is permitted in § 5-4-104(c); (D) Driving or boating while intoxicated, § 5-65-103; (E) Murder in the second degree, § 5-10-103, except to the extent suspension of an additional term of imprisonment is permitted in § 5-4-104(c); or (F) Engaging in a continuing criminal enterprise, § 5-64-405. (2) If it is determined pursuant to § 5-4-502 that a defendant has previously been convicted of two (2) or more felonies, the court shall not: (A) Suspend imposition of sentence; or (B) Place the defendant on probation. (b) In making a determination as to suspension or probation, the court shall consider whether: (1) There is undue risk that during the period of a suspension or probation the defendant will commit another offense; (2) The defendant is in need of correctional treatment that can be provided most effectively by his or her commitment to an institution; (3) Suspension or probation will discount the seriousness of the defendant's offense; or (4) The defendant has the means available or is so gainfully employed that restitution or compensation to the victim of the defendant's offense will not cause an unreasonable financial hardship and will be beneficial to the rehabilitation of the defendant. (c) While not controlling the discretion of the court, the following grounds shall be accorded weight in favor of suspension or probation: (1) The defendant's conduct neither caused nor threatened serious harm; (2) The defendant did not contemplate that his or her conduct would cause or threaten serious harm; (3) The defendant acted under strong provocation; (4) There was a substantial ground tending to excuse or justify the defendant's conduct, though failing to establish a defense; (5) The victim of the offense induced or facilitated its commission; (6) The defendant has compensated or will compensate the victim of the offense for the damage or injury that the victim sustained; (7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense; (8) The defendant's conduct was the result of circumstances unlikely to recur; (9) The character and attitude of the defendant indicate that he or she is unlikely to commit another offense; (10) The defendant is particularly likely to respond affirmatively to suspension or probation; (11) The imprisonment of the defendant would entail excessive hardship to the defendant or to a dependent of the defendant; (12) The defendant is elderly or in poor health; or (13) The defendant cooperated with law enforcement authorities in his or her own prosecution or in bringing another offender to justice. (d)(1) When the court suspends the imposition of sentence on a defendant or places him or her on probation, the court shall enter a judgment of conviction only if the court sentences the defendant to: (A) Pay a fine and suspends imposition of sentence as to imprisonment or places the defendant on probation; or (B) A term of imprisonment and suspends imposition of sentence as to an additional term of imprisonment. (2) The entry of a judgment of conviction does not preclude: (A) The modification of the original order suspending the imposition of sentence on a defendant or placing a defendant on probation following a revocation hearing held pursuant to § 16-93-307; and (B) A modification set within the limits of §§ 16-93-309 and 16-93-312.