APPELLATE COURT OPINIONS

The petitioner, Antonio Bonds, appeals the dismissal of his petition for post-conviction relief based upon its filing beyond the statute of limitations. He argues his petition was timely filed. We hold that for purposes of the post-conviction relief statute of limitations, the final action of the Tennessee Supreme Court is the date of its denial of an application for permission to appeal, not the date it denied the petition to rehear. Because the instant petition was filed more than one year from the date of denial of the application for permission to appeal, we affirm the judgment of the post-conviction court.

The Defendant, Calvin Lyons, Sr., appeals as of right from the judgment of the trial court, which revoked the Defendant’s probation and reinstated his original sentence. Finding no error, we affirm the judgment of the trial court.

I fully agree with my colleagues that the Tennessee Rules of Appellate Procedure do not recognize a petition to rehear the denial by our supreme court of an application for permission to appeal. In several instances, our supreme court had observed that there is no authority for such a petition. See, e.g., John Wayne Slate, Jr. v. State, No. 03C01-9201-CR-00014 (Tenn., at Knoxville, Feb. 6, 1995) (stating that “a petition to rehear the denial of a Rule 11 application for permission to appeal is unknown to the Tennessee Rules of Appellate Procedure”). In this case, however, as in some others, our supreme court “denied” the petition, thereby acting on the request. Tennessee Code Annotated section 40-30-202(a) requires a post-conviction petition within one year of “the final action of the highest state appellate court to which an appeal is taken.” In Lease v. Tipton, 722 S.W.2d 379 (Tenn. 1986), our high court issued an opinion resulting from a petition to rehear its denial of an application for permission to appeal. Further, the Advisory Commission Comments to Tennessee Rule of Appellate Procedure 39 provide that the court “generally disfavors petitions to rehear following denials of applications for permission to appeal.” (Emphasis added.) The Comments do not indicate that such petitions are prohibited.

The defendant pled guilty to aggravated burglary, theft over $1000, and vandalism and was sentenced to five years probation. Subsequently, after the defendant tested positive for marijuana and his probation officer filed a probation violation report, the trial court revoked his probation following a hearing. The defendant appeals, arguing that the trial court erred in relying upon a laboratory report showing marijuana in his urine because the accompanying affidavit had not been executed by the technician who performed the test but by the assistant laboratory director. Following our review, we affirm the order of the trial court revoking the defendant's probation.

The Appellant, Mitchell Wayne Hiles, was convicted of one count of aggravated sexual battery, a class B felony, following a jury trial. The trial court sentenced Hiles to an eight-year sentence in the Department of Correction. On appeal, Hiles raises the single issue of whether the evidence was sufficient to support the verdict. After review of the record, we affirm the conviction.

The defendant, Albert G. Gassaway, appeals his conviction for DUI, second offense. The trial court sentenced the defendant to eleven months, twenty-nine days, with six months to be served in the county workhouse and the remainder on probation, ordered him to pay a $600 fine, and suspended his driving privileges for two years. The defendant appeals, arguing that the evidence was insufficient to support his conviction for DUI, second offense, and that the court erred in imposing more than the minimum sentence. Following our review, we affirm the judgment of the trial court.

The defendant pled guilty to the sale of less than .5 gram of a Schedule II controlled substance, a Class C felony, and two counts of the sale of a Schedule VI controlled substance, Class E felonies, receiving an effective sentence of five years in the Department of Correction. Following a sentencing hearing, the trial court granted the defendant's request for judicial diversion, concluding he was eligible for diversion because he had not previously been convicted of a felony or a Class A misdemeanor and his history and circumstances demonstrated he was a suitable candidate for judicial diversion. The State appealed, arguing that the defendant was eligible for diversion only because the trial court modified his prior conviction from a Class A misdemeanor to a Class C misdemeanor. Following our review, we affirm the order of the trial court.

The defendant, Fredrequos Damon Neal, was convicted by a Madison County Circuit Court jury of attempted first degree murder, a Class A felony. The trial court sentenced him to twenty-two years as a Range I, standard offender. The defendant appeals, claiming that the evidence is insufficient to support his conviction and that his sentence is excessive. We affirm the judgment of the trial court.

Robert Michael Winters appeals his Hamilton County convictions of first-degree murder and aggravated robbery relative to events which culminated in the death of Vernise Sheffield, for which the defendant is serving concurrent sentences of life with the possibility of parole and 12 years, respectively. In this direct appeal, Winters alleges that his convictions are unsupported by sufficient evidence, that the trial court erroneously instructed the jury on criminal responsibility, that the trial court erroneously admitted a letter from the defendant to his wife which was properly subject to the marital communications privilege, and that the trial court erroneously admitted a prior consistent statement to rehabilitate a state's witness. Because we are unconvinced that harmful error occurred, we affirm the defendant's first-degree felony murder and aggravated robbery convictions. However, instructional error with respect to the first-degree premeditated murder conviction requires that we reverse that count and remand for a new trial.

The appellant pled guilty to simple burglary. At sentencing, the trial court imposed a two-year sentence with sixty days to be served in the county jail followed by probation. In this appeal, the appellant argues the trial court erred: (1) in denying judicial diversion; and (2) in denying full probation. We affirm the judgment of the trial court.

The Johnson County Grand Jury indicted the Defendant, Tammy Hart, for child endangerment, vehicular homicide, and aggravated vehicular homicide after the Defendant's car collided "head-on" with another car, killing the other driver. A Johnson County jury convicted the Defendant of child endangerment and vehicular homicide. The Defendant waived her right to a jury trial on the third count of the indictment, and the trial court found the Defendant guilty of aggravated vehicular homicide and merged the vehicular homicide conviction with the aggravated vehicular homicide conviction. The trial court sentenced the Defendant to eleven months, twenty-nine days for child endangerment, all of which was suspended except for thirty days, and twenty-three years for the aggravated vehicular homicide conviction and ordered the sentences to run consecutively. On appeal, the Defendant contends the following: (1) that the trial court erred by denying the Defendant's motion to suppress her medical records; (2) that the trial court erred in admitting the Defendant's medical records into evidence; (3) that the Defendant's constitutional right of confrontation was violated by the admission of her medical records into evidence; and (4) that the evidence presented at trial was insufficient to sustain her convictions. Finding no reversible error and concluding that sufficient evidence exists in the record to support the Defendant's convictions, we affirm the trial court's judgments.

A Shelby County Grand Jury indicted the Defendant, Terrance Heard, along with fourteen other members of the "Gangster Disciples" street gang, for first degree premeditated murder, murder in the perpetration of a kidnapping, murder in the perpetration of a robbery, and especially aggravated kidnapping after two men were kidnapped and beaten by the gang, leaving one victim dead. A Shelby County jury convicted the Defendant of first degree premeditated murder, murder in the perpetration of a kidnapping, and two counts of especially aggravated kidnapping, and the trial court merged the murder convictions, imposed a life sentence with the possibility of parole for the murder conviction and twenty-five years for each count of especially aggravated kidnapping, and ordered all the sentences to run consecutively. The Defendant now appeals, contending the following: (1) that the trial court erred by denying the Defendant's motion to suppress the pre-trial identification of the Defendant made by a witness and by limiting cross-examination of the witness regarding this identification; (2) that the assistant district attorney improperly commented on the state of mind of the victim and a co-defendant during his opening statement to the prejudice of the Defendant; (3) that the trial court erred by allowing a witness to testify as to the victim's state of mind just prior to his murder concerning the Gangster Disciples; (4) that the trial court erred by denying the Defendant's request for a special jury instruction addressing the theories of duress and mere presence; and (5) that the evidence presented at trial was insufficient for a rational trier of fact to find the Defendant guilty beyond a reasonable doubt. We find no reversible error and conclude that sufficient evidence exists in the record to support the Defendant's convictions. Accordingly, we affirm the trial court's judgments.

The appellant, Richard Phillip Mather, pled guilty in the Anderson County Circuit Court to criminally negligent homicide. The trial court sentenced the appellant as a Range I standard offender to two years incarceration. On appeal, the appellant contends: (1) the trial court erred by failing to recuse himself from the proceedings; and (2) the trial court erred by rejecting the initial plea agreement. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

The defendant was found guilty of first degree premeditated murder and sentenced to life imprisonment. The defendant now appeals contending that (1) the trial court erred by allowing the defendant’s impeachment with  inadmissible evidence, and (2) he was denied a fundamentally fair trial because of improper questions and argument by the prosecution. We hold that (1) the defendant’s impeachment was improper, however, the  error was harmless, and (2) the State’s questions and argument were  not improper, and even if they were improper, they did not rise to the level of plain error.

The defendant, Russell Dale Oliver, was convicted by a jury in the Johnson County Circuit Court of murder in the first degree and sentenced to life in prison. In this appeal as of right, the defendant contends that the trial court erred by overruling his motion to dismiss the indictment based on the violation of his right to a speedy prosecution and trial and that the evidence is insufficient to convict him of murder in the first degree. We affirm the judgment of the trial court.

The post-conviction petitioner, Kelvin Wade Cloyd, was convicted of two counts of vehicular homicide and possession of a controlled substance. After appointment of counsel and a hearing, the post-conviction court denied relief. In this appeal of right, he asserts that he was denied the effective assistance of counsel at trial and on appeal and that the state withheld evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). The judgment of the trial court is affirmed.

The defendant was found guilty of driving under the influence, fifth offense. The defendant filed a motion to suppress the evidence obtained as a result of the roadblock, contending that the officer lacked reasonable suspicion to detain the defendant, the roadblock guidelines are unconstitutional, and the police did not substantially comply with the roadblock guidelines. The defendant also made a motion in limine to keep out testimony regarding the defendant's use of a racial slur. Both motions were denied. We affirm the judgment of the trial court as to all issues.

The defendant, Christopher Lovin, was convicted of felony murder in the perpetration of aggravated child abuse. In this appeal of right, the defendant argues that the evidence was insufficient and submits that the trial court erred by failing to exclude cumulative medical testimony. The judgment is affirmed.

A Knox County jury convicted the juvenile defendant, Edward L. Williams, of premeditated first degree murder and especially aggravated robbery. The trial court imposed consecutive sentences of life for the premeditated murder conviction and twenty-two years for the especially aggravated robbery conviction. On appeal, the defendant contends: (1) the evidence is insufficient to support the conviction for premeditated murder; and (2) the trial court erred in imposing consecutive sentences. We remand for entry of an amended judgment reflecting a sentence of life with the possibility of parole and deleting any reference to a merger of the premeditated murder count and the felony murder count. We further order that the sentences run concurrently rather than consecutively. We otherwise affirm the judgments of the trial court.

The appellant, Clay A. Thompson, pled guilty to theft of property valued over $1,000. The McNairy County trial court sentenced him as a Range II multiple offender to seven years incarceration. On appeal, the appellant contends his sentence is excessive. We affirm the judgment of the trial court.

A Shelby County jury convicted the defendant, Leonard Franklin, of simple assault. The trial court sentenced him to seven months in the Shelby County Correctional Center with sixty days incarceration followed by eleven months and twenty-nine days probation. On appeal, the defendant contends the trial court erred in: (1) denying the defendant’s motion for a continuance; (2) limiting the defendant’s cross-examination of the victim concerning her civil lawsuit against him; (3) admitting evidence of the defendant’s suspension from his place of employment; (4) improperly commenting on the evidence; and (5) imposing a period of confinement. We reduce the probationary term to ten months but otherwise affirm the judgment of the trial court.

The Henry County Grand Jury indicted the fifteen-year-old Defendant for first degree murder for the stabbing death of his aunt. The Defendant was tried as an adult and convicted of the charged offense, after a jury rejected his insanity defense. The trial court sentenced the Defendant to life imprisonment. The Defendant appealed, arguing that his insanity defense was established by clear and convincing evidence. In an opinion filed August 9, 2002, a majority of this Court reversed the judgment of conviction, modified the judgment to “Not Guilty by Reason of Insanity,” and remanded the case for further proceedings pursuant to Tennessee Code Annotated section 33-7-303. State v. Ramon, No. W2001-00389-CCA-R3-CD, 2002 WL 1841608, at *1 (Tenn. Crim. App. Aug. 9, 2002). The State filed an application for permission to appeal with the Tennessee Supreme Court pursuant to Rule 11(a) of the Tennessee Rules of Appellate Procedure. On December 23, 2002, the Tennessee Supreme Court granted the State’s application for the purpose of remanding the case to this Court for reconsideration in light of State v. Flake, 88 S.W.3d 540 (Tenn. 2002). On remand, we find that a rational jury could have found that the Defendant failed to establish by clear and convincing evidence that, as a result of a severe mental illness or defect, the Defendant was unable to appreciate the wrongfulness of his act of stabbing his aunt to death so as to entitle him to the insanity defense. Accordingly, we affirm the Defendant’s conviction for first degree murder and his sentence of life imprisonment.

The Defendant, Paul Charles Carnahan, was indicted by the Grand Jury of Morgan County for unlawfully, knowingly, and intentionally failing to provide support for a minor child pursuant to Tennessee Code Annotated section 39-15-101. After the Defendant waived his right to a jury trial, the trial judge found him guilty of the Class E felony "Flagrant Nonsupport" and sentenced the Defendant to one year imprisonment and six years of probation. Further, the court ordered that the Defendant pay $64,041.19 in restitution. The Defendant now appeals that order contending: (1) that the evidence was insufficient to sustain his conviction; and (2) that the indictment contained a fatal flaw. Finding reversible error in the judgment of the trial court below, we reverse the Defendant's conviction and dismiss the indictment.

On October 29, 1997, the Hamblen County Grand Jury returned an indictment against the appellant, Christopher Allen Harris for rape of a child in violation of Tennessee Code Annotated section 39-13-522. On January 19, 2000, the appellant entered a guilty plea to attempted rape of a child. He received a sentence of eight years to be served as a work-release sentence for 11 months and 29 days in the county workhouse with the balance on intensive probation. The appellant raises the following issues in this appeal: (1) whether he was properly subject to revocation of a Community Corrections sentence, and (2) whether the record preponderates against a determination that he had violated the terms of his Community Corrections sentence. After a review the record, we affirm the judgment of the trial court.