APPELLATE COURT OPINIONS

Defendant pled guilty to seventeen offenses and was subsequently sentenced to fourteen years in confinement. On appeal, defendant alleges that trial court committed error in (1) applying certain enhancing factors, (2) denying any form of alternative sentencing, and (3) ordering consecutive sentencing. We affirm the judgment.

The State of Tennessee appeals from the Shelby County Criminal Court's dismissal of its petition to declare Daniel Henley a motor vehicle habitual offender. Because the lower court erred in its determination that the state failed to prove the existence of three prior, qualifying convictions, we reverse and remand.

The defendant, James Michael Davis, was convicted of driving under the influence. The trial court imposed a sentence of 11 months, 29 days, with all but 48 hours suspended. In this appeal of right, the defendant asserts that because the police officers did not have "reasonable suspicion" to warrant an investigatory stop, the trial court erred by denying his motion to suppress. The judgment of the trial court is affirmed.

The Defendant, William Robert Posey, appeals as of right from the judgment of the trial court, which found him guilty of driving under the influence (DUI) as a third offender. The Defendant raises two central issues on appeal. First, the Defendant argues that the two preceding DUI convictions are invalid on their face and therefore cannot be used to enhance his punishment for the present conviction. Second, the Defendant argues that the trial court committed error by failing to hold a hearing pursuant to Momon v. State, 18 S.W.3d 152 (Tenn. 1999), to determine whether the Defendant personally waived his right to testify. Because the record is void of any evidence that the Defendant did personally waive his right to testify, we remand the case to the trial court for a hearing to determine whether the Defendant's right to testify was violated, and if so, whether the violation of the Defendant's right to testify was harmless beyond a reasonable doubt.

The defendant, Ernest Willie Mays, pled guilty to sale of cocaine, a Class C felony, and was sentenced as a Range I, standard offender to five years in the Tennessee Department of Correction. He appeals his sentence, arguing that it is excessive and that the trial court erred in (1) refusing to consider that less restrictive measures than incarceration had not been tried unsuccessfully, (2) not applying any mitigating factors, (3) finding that the offense constituted a criminal enterprise, and (4) considering the fact that he had four children out of wedlock. We affirm the sentence imposed by the trial court.

A Davidson County jury convicted the Appellant, Vernon Dewayne Waller, of sale of a counterfeit controlled substance, a class E felony. The trial court sentenced Waller as a career offender to six years in the Department of Correction. On appeal, Waller presents the following issues for review: (1) Did the trial court err in ruling that if the Defendant chose to testify, his prior felony drug convictions would be admissible to impeach his credibility; (2) Did the trial court err in allowing the State to introduce a substance alleged to be cocaine and a lab report identifying it as such through a witness other than the technician who tested the substance; and (3) Did the trial court err in finding the Defendant was a career offender. After a review of the record, we find that Waller's issues are without merit. Accordingly, the judgment of the trial court is affirmed.

Convicted at a jury trial of first-degree, premeditated murder and presently serving a life sentence, Wilson Neely appeals from the Shelby County Criminal Court. He claims that his conviction is improperly based upon uncorroborated and insufficient testimony of accomplices. Because we disagree, we affirm.

Pursuant to a negotiated plea agreement, the defendant pled guilty to possession of crack cocaine with the intent to resell, distribute or manufacture, possession of marijuana, possession of drug paraphernalia, and four counts of the sale of over .5 grams of crack cocaine. The defendant was sentenced as agreed to nine (9) years for each felony count and eleven months and twenty-nine days for each misdemeanor count. The agreement also provided that all of the sentences would be served concurrently for an effective nine-year sentence. Following a sentencing hearing, the trial court denied alternative sentencing. In this appeal, the defendant challenges the denial of alternative sentencing. We affirm.

Jimmy Lee King stands convicted of the attempted first-degree murder of Billy Dwayne Pace. King received his conviction at the conclusion of a jury trial in the Benton County Circuit Court, and he was sentenced to a 20-year incarcerative term. Claiming that the evidence is insufficient to support the conviction, he has appealed. Because we are unpersuaded, we affirm.

The appellant, John Earl Scales, was convicted by a Davidson County jury of felony murder and attempted aggravated robbery. He was sentenced to life imprisonment for the murder with a concurrent three-year term for the attempted aggravated robbery conviction. On direct appeal this Court affirmed the convictions and sentences. State v. John Earl Scales, No. 01C01-9709-CR-00412 (Tenn. Crim. App., at Nashville Feb. 24, 1999), 1999 Tenn. Crim. App. LEXIS 168, at *28. On November 20, 2000, Scales filed a petition for post-conviction relief. On December 19, 2000, the post-conviction court summarily dismissed the petition. From that dismissal the appellant perfected the instant appeal. We find that the post-conviction court erred in summarily dismissing the appellant's claims regarding the alleged ineffectiveness of his appellate counsel on the grounds of waiver or previous determination. Moreover, we find that the post-conviction court's order indicating that such allegations do not state "colorable claims" does not set forth with sufficient specificity the court's findings with regard to the allegations concerning the alleged ineffectiveness of appellate counsel. We therefore remand this case for entry of an appropriate order in accordance with this opinion.

Defendant, Robert Andrew Lewis, pled guilty to two counts of driving under the influence of an intoxicant, first offense, in the General Sessions Court of Knox County. The trial court imposed concurrent sentences of confinement for 11 months and 29 days, with all but 10 days of the sentences suspended. In addition, the trial court suspended Defendant's driving privileges for one year, and ordered him to pay a fine of $350.00 and attend DUI school. Within one year, a violation of probation warrant was issued, alleging that Defendant was driving on a revoked license, arrested for DUI, and had failed to complete DUI school. The General Sessions Court of Knox County revoked Defendant's probation and reinstated his sentences for both offenses. Defendant appealed to the Criminal Court of Knox County. On the date that his case was to be heard, Defendant's trial counsel did not appear in court. As a result, the criminal court dismissed the appeal for failure to prosecute and affirmed the judgment of the Knox County General Sessions Court revoking Defendant's probation. After a review of the record and applicable law, we reverse the judgment of the criminal court and remand this case for a de novo hearing on the probation revocation warrant.

Petitioner appeals the trial court's denial of post-conviction relief. On appeal, petitioner alleges (1) ineffective assistance of trial counsel, (2) ineffective assistance of appellate counsel, (3) he was unconstitutionally denied bail, and (4) the indictment against him for first degree murder was unconstitutionally amended. We grant petitioner a delayed appeal, and we stay further proceedings on his remaining post-conviction claims.

The appellant, Christopher Lynn Brabson, was convicted by a jury in the McMinn County Criminal Court of one count of the sale of .5 grams or more of cocaine, a Class B felony. The jury also assessed a fine of $80,000. Following a sentencing hearing, the trial court imposed a sentence of ten years incarceration in the Tennessee Department of Correction. On appeal, the appellant alleges: (1) the evidence is insufficient to support a verdict of guilt beyond a reasonable doubt, (2) the trial court erred in sentencing, and (3) the jury imposed an excessive fine. We affirm the judgment of the trial court but reduce the fine to $25,000.

The Sevier County Grand Jury returned a two count presentment alleging the defendant committed a vehicular homicide by intoxication for the death of one victim and a vehicular assault by intoxication for the serious bodily injury of another victim. The defendant pled guilty to the amended charges of vehicular homicide by recklessness and aggravated assault by recklessness for agreed concurrent sentences of six years and three years, respectively, with the issue of alternative sentencing to be determined by the trial court. The trial court sentenced the defendant to split confinement and ordered the defendant to serve nine months "day-for-day" in the county jail with the remainder of his six-year effective sentence on supervised probation. In this appeal, the defendant alleges he should have received community corrections, or alternatively, he received excessive confinement. We conclude the trial court improperly ordered the defendant to serve his nine months of confinement "day-for-day," thereby depriving him of the opportunity to earn good conduct credits. We remand for deletion of the day-for-day requirement; however, we affirm the trial court in all other respects.

On October 19, 2000, the Defendant entered "best interest" guilty pleas to two counts of child abuse and neglect and three counts of indecent exposure. Pursuant to his plea agreement, the Defendant received five sentences of 11 months and 29 days to be served at 75%. The plea agreement apparently contemplated a hearing to determine the manner of service of the sentence. Following a hearing, the trial court ordered the Defendant to serve a split sentence on the first count with three months to be served on county work release and the balance of the sentence to be served on supervised probation. The court ordered each of the remaining sentences to be served on probation and consecutive to the split sentence, for an effective sentence of five years. It is from this order the Defendant now appeals as of right. We affirm the judgment of the trial court.

The defendant, Terry DeWayne Ogle, indicted for one count of aggravated assault, was convicted of the lesser included offense of assault. The trial court imposed a sentence of 11 months and 29 days. In this appeal of right, the defendant challenges the sufficiency of the evidence. The judgment of the trial court is affirmed.

A Hamilton County jury found the defendant guilty of DUI, third offense. On appeal, the sole issue is whether the trial court erred in not allowing the defendant to present testimony from a local health department nurse regarding the health department's procedures for storing and transporting blood samples, which are procured by the local health department for reasons unrelated to blood alcohol testing. We affirm the judgment of the trial court.

The Defendant, Janet Huffine Dykes, was convicted by a jury of one count of reckless aggravated assault and one count of aggravated child abuse through neglect. The trial court merged the assault conviction into the child abuse conviction and sentenced the Defendant as a Range I standard offender to fifteen years in the Department of Correction. The Defendant now appeals as of right, challenging the sufficiency of the evidence in support of her convictions. We find the evidence is not sufficient to support the Defendant's conviction of aggravated child abuse through neglect and therefore reverse that conviction. We find the evidence sufficient to support the reckless aggravated assault conviction, and affirm that conviction. Because the Defendant was not sentenced for reckless aggravated assault, we remand this case for sentencing on the Defendant's conviction for reckless aggravated assault.

The defendant was convicted of two counts of rape of a child pursuant to a jury trial. He was charged with a total of four counts of rape of a child, with two counts per indictment. The trial court consolidated these two indictments for trial. However, the trial court dismissed one indictment due to certain improprieties that occurred during the testimony of one of the victims. For the aforementioned convictions, the trial court sentenced the defendant to serve an aggregate sentence of forty years, which was comprised of two consecutive twenty-year sentences. The defendant now brings the instant appeal challenging the sufficiency of the evidence supporting the defendant's conviction, the trial court's decision to consolidate the defendant's two indictments, and the trial court's failure to declare a mistrial at the close of the prosecutor's closing argument. After reviewing the record, we find that the trial court improperly consolidated the two indictments for trial and therefore reverse and remand this case for a new trial.

A Davidson County grand jury indicted the defendant on one count of class A felony aggravated child abuse. A trial jury subsequently convicted him as charged. For this conviction the trial court sentenced him as a violent offender to serve twenty-one years. He next unsuccessfully pursued a motion for a judgment of acquittal or in the alternative a new trial. Through this appeal the defendant continues to assert that the trial court erred in not properly instructing the jury on lesser-included offenses and by admitting contested medical testimony. While the second contention merits no relief, we must reverse the conviction and remand the matter based upon error in instructing lesser-included offenses.

Appellant, Gregory Thompson, was convicted for the first degree murder of Brenda Lane. The murder occurred on January 1, 1985. The jury imposed the death penalty. Our supreme court affirmed the conviction and sentence of death. State v. Thompson, 768 S.W.2d 239 (Tenn. 1989). Appellant subsequently filed a petition for post-conviction relief. The petition was denied by the trial court, and the trial court's denial was subsequently affirmed by our Court. Thompson v. State, 958 S.W.2d 156 (Tenn. Crim. App. 1997). Later, in 2001, Appellant filed a petition for writ of error coram nobis, which the trial court dismissed without an evidentiary hearing because it was filed after expiration of the applicable one-year statute of limitations. This appeal followed. We affirm the judgment of the trial court.