APPELLATE COURT OPINIONS

Pursuant to a negotiated plea agreement, the defendant pled guilty to two counts of selling 0.5 grams or more of cocaine, possession of marijuana, and the sale of counterfeit cocaine. He received an effective sentence of sixteen years. The manner of service of his sentences was left to the discretion of the trial court. Defendant now contends the trial court erred in denying his request for alternative sentencing. After a thorough review of the record, we affirm the judgment of the trial court.

The petitioner, James R. Britt, seeks correction of an alleged illegal sentence. He claims that he is serving an illegal and void sentence because he was sentenced as a Range III offender, even though he qualified for no more than Range I classification. Because we agree with the lower court that the petitioner's sentence is not illegal or void, we affirm the lower court's order dismissing the petition.

The defendant was indicted by a Blount County Grand Jury for casual exchange of a controlled substance, marijuana, and found guilty following a bench trial. Following a sentencing hearing, the trial court sentenced the defendant to eleven months and twenty-nine days in jail. As to the manner of service of the sentence, the first ninety days were ordered served in confinement with the option of serving the last thirty days in an inpatient drug abuse program. The balance of the sentence was ordered served on probation. In this appeal as of right, the defendant presents two issues for our review: (1) whether the evidence was sufficient to support his conviction; and (2) whether the manner of service of his sentence was appropriate. We affirm both the conviction and sentence.

This is an action where Kevin Green seeks to change custody of his son, Zachary Green, from Zachary's mother, Barbara Jean McCall. We find an order entered contended by Ms. McCall to be an agreed order was not in fact an agreed order, nor a valid one. We further find that the Trial Judge should have recused herself. We accordingly vacate the purported agreed order and direct that the Trial Judge recuse herself and another Judge be appointed by the Administrative Office of the Courts.

A Montgomery County jury convicted Defendant, David Pryor Gilliard, of theft of property under $500 in value, and burglary of an automobile. As a result of these convictions, the trial court found the Defendant was in violation of a previously imposed four-year Community Corrections sentence. Following a sentencing hearing, the trial court sentenced Defendant as a Range II multiple offender to four (4) years for the burglary and eleven (11) months and twenty-nine (29) days for the theft with the sentences to run concurrently. The trial court also ordered that the theft and burglary sentences run consecutively to Defendant's Community Corrections violation, for an effective sentence of eight years. Defendant appeals as of right and challenges the length and manner of service of his sentence. After a thorough review of the record, we affirm the judgment of the trial court.

Guy William Rush was indicted and tried for one count of attempt to commit second degree murder and one count of aggravated assault. On the attempted second degree murder count, the trial court instructed the jury on a number of lesser-included offenses, including attempted voluntary manslaughter; intentional or knowing aggravated assault accompanied by serious bodily injury; reckless aggravated assault accompanied by serious bodily injury; and assault accompanied by bodily injury. The jury convicted Rush of the lesser-included offense of reckless aggravated assault. Rush appealed, challenging the trial court's instructions on lesser-included offenses, and the Court of Criminal Appeals affirmed. Applying the lesser-included offense test established in State v. Burns, 6 S.W.3d 453 (Tenn. 1999), we conclude that neither reckless aggravated assault nor felony reckless endangerment are lesser-included offenses of attempted second degree murder. We conclude, however, that the offense of misdemeanor reckless endangerment is a lesser-included offense of attempted second degree murder and that the trial court erred in failing to so instruct the jury. Accordingly, we reverse the judgment of the Court of Criminal Appeals and remand the cause for a new trial in accordance with this opinion.

Young Sales Corporation, through counsel, has filed a petition to rehear this Court’s opinion released on March 1, 2001. We have reviewed the arguments raised in the petition and conclude that they are without merit. Accordingly, it is ORDERED that the petition to rehear is denied.

The Defendant was convicted by a Davidson County jury of aggravated robbery and sentenced by the trial court to twenty-two years in the Tennessee Department of Correction. On appeal, the Defendant argues that the trial court erred in failing to suppress the Defendant's confession. The confession had been videotaped by police detectives, but the video tape was accidentally erased prior to trial. Finding no error by the trial court, we affirm the Defendant's conviction.

The Defendant was convicted of DUI, fourth offense. He appeals, contending that the evidence is insufficient to support his conviction. We affirm the trial court’s judgment.

This appeal arises out of homosexual conduct in the workplace between an adult employee and a sixteen-year-old, part-time employee. After the adult employee was arrested and charged with statutory rape and contributing to the delinquency of a minor, the minor employee and his parents filed suit in the Circuit Court for Sumner County seeking damages from the adult employee and the owner of the restaurant where the minor employee and the supervisor had worked. The restaurant denied liability and among its affirmative defenses asserted the defense of consent with regard to the minor's claims and the defense of comparative fault with regard to the claims of the minor's parents. The trial court denied the minor's and his parents' motions to strike these defenses but granted the minor and his parents permission to apply for an interlocutory appeal. We granted the interlocutory appeal and now hold that the trial court correctly denied the motions to strike the restaurant's defenses.

This is post-divorce custody dispute. In the original divorce decree, the mother was awarded custody of the parties' two minor children. Subsequently, when the mother was required to undergo brain surgery, the mother and father agreed, and the trial court ordered, that the father would have custody of the children until each child reached the age of twelve, at which point the child would decide with which parent he wished to live. After recovering from the surgery, the mother filed a petition to change custody citing, inter alia, the children's desire to live with her and the children's worsening behavior, which included running away from the father's home. The trial court denied the mother's petition, finding no material change in circumstances warranting a change of custody. From this order, the mother now appeals. We reverse and remand, finding that the trial court applied the incorrect standard in light of the prior agreed order.

The Metropolitan Board of Zoning Appeals granted a special use exception to the Metropolitan Government of Nashville and Davidson County for the construction of a tower for a new emergency response system. The appellants, South Harpeth Farms, LLC, James A. Webb, III and William H. Freeman appeal the trial court's order. The trial court held that the granting of the special use exception was supported by material evidence and that the Board of Zoning Appeals did not act illegally, arbitrarily or fraudulently. The appellants appeal on the grounds that: (1) The Metropolitan Government of Nashville and Davidson County was not a proper applicant for a special use exception under the Metropolitan Zoning Regulations; (2) the Metropolitan Government of Nashville and Davidson County misrepresented to the Board of Zoning Appeals that the proposed site for the project was the only possible location for the radio tower; and (3) the Board of Zoning Appeals arbitrarily and capriciously granted the special use exception in the absence of any material evidence to support its decision. We affirm the decision of the trial court.

On August 5, 1998, Richard M. Far, Jr., the Defendant and Appellant, was indicted by a Rutherford County Grand Jury for one count of arson and one count of setting fire to personal property. The Defendant was tried in absentia. At the close of the State's proof, the trial court granted the Defendant's motion for acquittal regarding setting fire to personal property. Following trial, the jury convicted the defendant of arson. After a subsequent sentencing hearing, also conducted in absentia, the trial court sentenced the defendant as a Range III, persistent offender to fourteen years incarceration. On appeal, the Defendant argues (1) that the trial court erred in excluding him from his trial, and (2) that the trial court erroneously sentenced the defendant. Because we find that rule 43 of the Tennessee Rules of Criminal Procedure prohibits trial in absentia when the defendant is not present at the beginning of trial, we reverse the judgement of the trial court and remand for a new trial.

This is a personal injury action arising from a boating accident in the Bahamas. At trial, the jury returned a verdict for the defendants. The plaintiffs appealed, alleging that the jury's verdict was not supported by any material evidence as well as alleging error with the trial court's function as thirteenth juror and with its evidentiary rulings concerning an expert witness and admission of testimony concerning non-use of life preservers by the plaintiffs. We affirm.

Thorsten John Boger appeals from the sentencing decision of the Montgomery County Circuit Court following his guilty pleas to two counts of class B felony sale of cocaine. Boger was sentenced to nine years in the Department of Correction on each count, with the sentences to be served concurrently. On appeal, he argues that he should have received the minimum sentence of eight years. Finding no error, we affirm.

The State appeals from the Putnam County Criminal Court’s order granting the Defendant’s motion to suppress. The Defendant, Perry Thomas Randolph, was charged by indictment with one count of theft, one count of aggravated assault, one count of burglary, and one count of resisting arrest.  The Defendant filed a motion to suppress, challenging his initial stop and seizure by the police. The trial court found the Defendant’s seizure illegal because it failed to meet the minimal requirements of Terry v. Ohio. After review, we find it unnecessary to examine the issue of whether the officer had sufficient articulable facts to justify stopping the Defendant because we find no such stop occurred. The judgment of the trial court is reversed and the case remanded for further proceedings in accordance with this opinion.

The defendants, Carl Johnson and Derrick Sutton, were each convicted by a jury of especially aggravated robbery. Johnson raises three issues on appeal: (1) whether the evidence was sufficient to support his conviction for especially aggravated robbery; (2) whether the trial court erred in denying his motion for severance; and (3) whether the trial court erred in sentencing him to the maximum sentence of twenty-five years. Sutton challenges the sufficiency of the convicting evidence. We affirm the judgments of the trial court.