APPELLATE COURT OPINIONS

I concur in the results reached in the majority opinion. However, I disagree with its conclusion that a sentence of split confinement fulfills the requirement of an alternative sentencing presumption. I believe an alternative sentence means one that is an alternative to confinement, as explained in my dissent in State v. Christina B. Jones, M2002-02428-CCA-R3-CD, Williamson County (Tenn. Crim. App. June 23, 2003), app. denied (Tenn. Oct. 27, 2003).

The defendant, Timothy E. Ballard, was convicted of DUI, a Class A misdemeanor, and driving on a revoked license, a Class B misdemeanor, and was sentenced to an effective sentence of eleven months, twenty-nine days, suspended except for sixty days, with the balance to be served on supervised probation. On appeal, he argues that his sentence is excessive and that the trial court erred in denying full probation or alternative sentencing. Following our review, we affirm the judgments of the trial court.

The Defendant, Robert Page, was convicted by a jury of the second degree murder of Roosevelt Burgess. The Defendant was subsequently sentenced as a Range II offender to thirty-eight years in the Department of Correction. In this direct appeal, the Defendant raises the following issues: 1) whether the evidence is sufficient to support the verdict; 2) whether the trial court improperly limited the impeachment of State witness Carrie Jones; 3) whether the trial court properly admitted a photograph of the victim; 4) whether the trial court committed error in providing supplemental jury instructions; 5) whether comments by the trial court compromised the Defendant’s right to a fair trial; and 6) whether the trial court erred in failing to instruct the jury on the lesser-included offense of facilitation to commit second degree murder. Because the trial court committed reversible error in omitting a jury instruction on facilitation of second degree murder, we reverse the Defendant’s conviction and remand this matter for a new trial.

I am unable to join with the majority in concluding that the waiver provision of Tennessee Code Annotated section 40-18-110 is unconstitutional. Because the Defendant did not request that the jury be instructed as to facilitation, he has waived his right to challenge this issue on appeal.  Accordingly, I would affirm the conviction.

The petitioner, Ricky Eugene Cofer, appeals the order of the Circuit Court for Anderson County dismissing his post-conviction relief petition. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petitioner's claim of ineffective assistance of trial counsel was previously determined on direct appeal. The petition was properly dismissed. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

The Appellant, Robert Walsh, appeals as of right from the judgment of the Shelby County Criminal Court denying his petition for post-conviction relief. Walsh was convicted in 1999 of aggravated sexual battery of a foster child who was in his care. On appeal, Walsh contends that: (1) he was denied the effective assistance of counsel based upon trial counsel’s cross-examination of the victim and (2) his right to a fair and impartial jury was violated by a deputy sheriff’s comments to the jury during deliberations. After review of the issues presented, the judgment is affirmed.

The Appellant, Anthony Antonio Anderson, was convicted by a Madison County jury of rape and was sentenced to nine years in the Department of Correction as a violent offender. On appeal, he argues that the evidence presented at trial was insufficient to support the verdict. After review, we find no error and affirm the judgment of the trial court.

The petitioner, Earl E. Haynes, appeals the dismissal of his petition for writ of habeas corpus relating to his felony murder conviction. We affirm the judgment of the trial court.

The defendant, Roger C. McAnally, appeals as of right from his convictions by a jury in the Henry County Circuit Court for especially aggravated kidnapping, a Class A felony; two counts of aggravated robbery, a Class B felony; kidnapping, a Class C felony; three counts of aggravated burglary, a Class C felony; theft of property over $500, a Class E felony; and sexual battery, a Class E felony. The trial court sentenced the defendant to twenty years for the especially aggravated kidnapping conviction, eight years for each aggravated robbery conviction, three years for the kidnapping conviction, and three years for each aggravated burglary conviction, to be served concurrently but consecutively to a one-year sentence for the sexual battery conviction, for an effective twenty-one-year sentence. In this appeal, he contends that his convictions for especially aggravated kidnapping and kidnapping violate his due process rights because his confinement of the victims was incidental to the robberies. We affirm the judgments of the trial court.

A Bedford County jury convicted the defendant, James Franklin Redden, of theft of property valued over $1,000. The trial court sentenced him to eight years incarceration as a multiple offender. On appeal, the defendant contends the evidence is insufficient to support his conviction. We dismiss the appeal due to the untimely filing of a notice of appeal.

The petitioner appeals the dismissal of his petition for post-conviction relief from his conviction for first degree murder, arguing that the post-conviction court erred in finding he received effective assistance of counsel at trial and on appeal. Following our review, we affirm the dismissal of the petition.

The petitioner, Eddie DePriest, seeks appellate review of the Shelby County Criminal Court’s summary denial of habeas corpus relief. We discern no habeas corpus cause of action in the petition
and affirm.

The defendant, Preston Young, appeals the Shelby County Criminal Court's denial of probation and imposition of a two-year sentence for his jury conviction of criminally negligent homicide. Because the record is insufficient for our statutorily mandated de novo review of the sentence, we affirm.

A Shelby County jury convicted the Defendant, Jason C. Polston, of reckless aggravated assault.  The trial court sentenced the Defendant to two years in the workhouse, suspended except for 60 days to serve on weekends, a $500.00 fine, and 200 hours of community service. On appeal, the Defendant contends that: (1) insufficient evidence exists to support his conviction; (2) the trial court erred by failing to suppress the Defendant’s statement made in a telephone conversation with a police officer because the State did not disclose the statement prior to trial; (3) the trial court erred by instructing the jury on flight; (4) the trial court erred by failing to charge the defenses of necessity and duress; (5) the trial court erred bydenying the Defendant’s application for judicial diversion; and (6) the trial court erred by ordering the Defendant to serve sixty days in jail. We conclude that the trial court erred by failing to suppress the Defendant’s telephone conversation with a police officer because the State did not disclose the statement to the Defendant prior to trial in violation of Tennessee Rule of Criminal Procedure 16. Therefore, we reverse the Defendant’s conviction and remand for a new trial.

The petitioner, Monroe Brown, appeals the trial court's order denying his petition for writ of habeas corpus. The state has filed a motion requesting that this court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petition fails to establish either a void judgment or an expired sentence. Accordingly, the state's motion is granted and the judgment of the trial court is affirmed.

The Defendant, William J. Parker, Jr., was indicted for driving under the influence and driving on a revoked license. A jury acquitted him of the DUI charge, but found him guilty of driving on a revoked license, a Class B misdemeanor. The trial court imposed a sentence of six months, with sixty days to be served in confinement and the balance to be served on probation. In this appeal, the Defendant raises three issues: 1) whether the State’s failure to provide him with a copy of his driving record constitutes a violation of his due process rights; 2) whether the trial court erred by admitting into evidence a sworn affidavit; and 3) whether the sentence imposed by the trial court is excessive.  We conclude that the trial court erred by admitting the affidavit into evidence. Because we are unable to conclude that the error was harmless, the judgment of the trial court is reversed and the case remanded for a new trial.

I respectfully dissent from that portion of the majority opinion which finds reversible error in this case due to the erroneous admission into evidence of Mr. Birdwell’s affidavit. While I agree that admission of the affidavit was error, under the particularly unique facts of this case, I conclude that it is harmless error.

The petitioner, James Clark, appeals the trial court's dismissal of his motion to correct an illegal sentence. Because the petitioner has no appeal as of right under Tennessee Rule of Appellate Procedure 3(b), the appeal is dismissed.

The pro se petitioner, James P. Hyde, appeals from the trial court's order denying the petitioner's motion to reopen his post-conviction petition. The states moves the court to affirm the judgment of the trial court pursuant to Rule 20 of this court's rules. The motion was properly denied for lack of merit. Accordingly, the state's motion is granted and the judgment of the trial court is affirmed.

The defendant entered a guilty plea to driving under the influence. The trial court imposed a sentence of eleven months and twenty-nine days to be served forty-eight hours of confinement followed by probation. As a part of the guilty plea, the defendant reserved for appeal the trial court's denial of his motion to suppress. See Tenn. R. Crim. P. 37(b)(2)(i). The judgment is affirmed.

The Appellant, Johnnie Darrell Rice, was convicted by a Davidson County jury of driving under the influence (DUI), first offense. Following a sentencing hearing, Rice was ordered to serve twenty days in periodic confinement. Rice appeals both his conviction and sentence arguing that: (1) the arresting officer had no reasonable suspicion to stop his vehicle; (2) the trial court erred in ruling that Sergeant Ben Cook was an "expert" witness; and (3) his twenty-day sentence was excessive. Finding no reversible error, the judgment of conviction and sentence are affirmed.

This is a habeas corpus appeal. A jury convicted the petitioner of seven counts of rape of a child, one count of incest, and three counts of aggravated sexual battery. He received an effective sentence of twenty-two years incarceration. In April 2003, the petitioner submitted a pro se petition for habeas corpus relief, alleging the sentences for child rape committed in 1992 are illegal because the record is unclear as to whether these offenses were committed before or after July 1, 1992, the effective date of the child rape statute. The trial court dismissed the petition, and the petitioner appeals the dismissal. We affirm the judgment of the trial court.

The appellant, Terry Wayne Perkins, was indicted on charges of driving under the influence, fourth offense, operating a motor vehicle after being declared an habitual motor vehicle offender, violation of the implied consent law, and driving on a revoked license. He was acquitted of the D.U.I. charge. A jury convicted him of violation of the implied consent law and driving on a revoked license. He was sentenced to an 11- month-and-29-day sentence at 75% for the violation of the implied consent law and six months at 75% for the driving on a revoked license conviction. The two sentences were ordered to run concurrently and the trial court ordered the appellant to serve 15 days of the sentence in the county jail, after which he would be released on probation, and assessed a $100 fine for each conviction. On appeal, the appellant challenges the trial court's decision to order him to serve 15 days in jail. For the following reasons, we affirm the judgment of the trial court.

The petitioner, James C. Murray, appeals the denial of post-conviction relief relating to his convictions for premeditated first degree murder and conspiracy to commit first degree murder. On appeal, the petitioner contends: (1) he received ineffective assistance of counsel at trial; and (2) the post-conviction court erred in refusing to admit Leonard Rowe's testimony. We affirm the judgment of the post-conviction court.

The Defendant, Anthony Carrier, pled guilty to aggravated burglary, felony theft, and misdemeanor vandalism. Pursuant to his plea agreement, he received an effective sentence of three years, with the manner of service of the sentences to be determined by the trial court. After a sentencing hearing, the trial court ordered the Defendant to serve his sentences in confinement. It is from this order that the Defendant appeals. We affirm the judgment of the trial court.