APPELLATE COURT OPINIONS

Petitioner failed to prove by clear and convincing evidence that he was denied effective assistance of counsel. We affirm the trial court's denial of petitioner's petition for post-conviction relief.

The defendant was convicted by a jury of reckless aggravated assault, a Class D felony, for cutting the victim's face with a razor blade. The trial court granted her judicial diversion, sentencing her as a Range I, standard offender to two years incarceration, but suspending the sentence and placing her on three years of probation under the supervision of the Department of Correction, including among the conditions that she pay restitution for the victim's medical bills and lost wages. Following extensive testimony as to the defendant's limited financial resources, the trial court ordered as a condition of probation that she legitimate her nine-month-old daughter to ensure that she could meet her financial obligations, including payment of restitution to the victim. In a timely appeal to this court, the defendant raises the sole issue of whether the trial court erred by requiring her to legitimate the younger of her two illegitimate children and seek child support payments for that child. We conclude that the legitimation requirement is a valid condition of probation. However, since a judgment of conviction, although not to be entered following judicial diversion, was entered in this matter, we remand for withdrawal of the judgment, the trial court to then clarify whether the defendant is to be sentenced with the sentence suspended or to be granted judicial diversion.

The Defendant was arrested in September 1996 for aggravated assault, being a felon in possession of a firearm, and fleeing. His case was not set for trial until July 2000. The Defendant moved for dismissal of the charges on the ground that he had been denied his constitutional right to a speedy trial. The trial court granted the Defendant's motion, and the State now appeals as of right. Concluding that the trial court did not abuse its discretion in finding that the Defendant was prejudiced by the delay, we affirm the judgment of the trial court.

The defendant, Connie Lee Arnold, appeals from the Carter County Criminal Court's denial of his motion for return of property by the state in its prosecution of him and for return of property and files in the possession of his former trial attorney. The trial court concluded that it had no jurisdiction to rule in the matter. The state agrees with the defendant that the trial court has jurisdiction to act on the motion relative to evidence used in the case and otherwise seized and possessed by the state, but it asserts that property and files possessed by the defendant's former attorney should be addressed by the Board of Professional Responsibility or a civil court. Although we hold that the trial court had jurisdiction relative to evidence presented in the case, we affirm the trial court.

The Appellant, Miko T. Burl, was convicted by a Shelby County jury of aggravated assault, aggravated burglary, and especially aggravated robbery. Burl received an effective twenty-five year sentence. On appeal, Burl raises the following issues: (1) whether the evidence was sufficient to support the verdicts; (2) whether the trial court erred in not suppressing the photographic identification; (3) whether the trial court erred in rejecting his special jury instruction relating to the suggestiveness of the photo identification procedure; and (4) whether his sentence was proper. After a review of the record, we find Burl's issues are without merit. We find, however, as plain error, that Burl's convictions for both aggravated assault and especially aggravated robbery violate double jeopardy principles. The conviction for aggravated assault is, therefore, vacated. The judgment of the trial court in all other respects is affirmed.

The defendant, Jessie James Austin, appeals as of right his convictions by a Weakley County Circuit Court jury for two counts of aggravated assault, a Class C felony. The trial court sentenced him as a Range III, persistent offender to twelve years in the Department of Correction for each count to be served concurrently. The defendant contends that the evidence is insufficient to prove either count of aggravated assault and that the trial court should have instructed the jury on the lesser included offense of reckless aggravated assault. We affirm the trial court's judgments of conviction.

The defendant appeals his conviction of aggravated robbery for the armed robbery of the Union Bank and Trust in Rickman, Tennessee. We conclude that the defendant did not prove his claim of ineffective assistance of counsel and the record supports the trial court's finding that the defendant personally waived his right to testify. Furthermore, the record reveals that the defendant introduced evidence about an uncharged crime in order to impeach testimony by a witness for the state and, therefore, cannot challenge the introduction of such evidence on appeal. The trial court properly fulfilled its duty to act as a thirteenth juror. In addition, there is sufficient evidence to support the defendant's conviction for aggravated robbery. The judgment of the trial court is affirmed.

The Defendant was convicted of theft of property valued between $1,000 and $10,000, a Class D felony, and criminal trespass. The trial court sentenced him as a Range II, multiple offender to six years incarceration for the theft conviction and to thirty days incarceration for the criminal trespass conviction, with the sentences to be served concurrently. The Defendant argues that insufficient evidence was presented at trial to convict him of theft or criminal trespass. We affirm the judgment of the trial court.

The defendant, Kenneth Lee Kendrick, appeals the Sullivan County Criminal Court's revocation of his probation. We affirm the trial court.

I concur in the results reached in the majority opinion. However, I disagree with its implicit conclusion that legislative action regarding pretrial procedure in cases before the courts does not infringe upon the separation of powers doctrine.

The appellant, Speedy Release Bail Bonds, appeals the order of the Madison County Circuit Court denying its motion for reimbursement of a forfeited bail bond. Following a review of the record and the parties’ briefs, we reverse the judgment of the trial court and remand this case for proceedings consistent with this opinion.

The petitioner in this post-conviction matter was originally convicted of theft of property over $10,000 in value, a Class C felony, and sentenced to 15 years imprisonment as a Range III persistent offender. After his conviction was affirmed on direct appeal, he sought post-conviction relief which was denied by the post-conviction court. In this appeal, the petitioner alleges trial counsel was ineffective for failing to (1) recommend he accept the state's plea offer, and (2) challenge an erroneous jury instruction on the range of punishment. After a thorough review of the record, we conclude the petitioner received ineffective assistance of counsel based upon counsel's failure to object to the erroneous range of punishment jury charge at trial and failure to argue the error on direct appeal. Accordingly, we reverse and remand for a new trial.

I concur in the majority’s conclusion that Tenn. Code Ann. § 40-11-204(a) (1997) must govern any reimbursement of the conditionally forfeited bail bond in this case. As noted by the majority, Tenn. Code Ann. § 40-11-201(b) (1997) does prohibit the rendering of a conditional or final judgment of forfeiture, and therefore the entry of and execution on a final judgment of forfeiture, when a surety is unable to surrender a defendant due to the defendant’s incarceration in a jail, workhouse, or penitentiary and the surety furnishes the trial court with an affidavit of the jailer, warden, or other responsible officer. As also noted by the majority, the appellant did not provide the requisite affidavit to the trial court. Of course, the Madison County Sheriff’s Department has since obtained custody of the defendant, and a final judgment of forfeiture has yet to be entered in this case. Still, Tenn. Code Ann. § 40-11-201 places no affirmative obligation on the trial court to order reimbursement of money paid pursuant to a bail bond agreement following a defendant’s failure to appear. Cf. Blankenship v. State, 443 S.W.2d 442, 445-446 (Tenn. 1969)(interpreting the different language of Tenn. Code Ann. § 40-11-201’s predecessor statute).

The appellant, Jeffrey L. Marcum, appeals his convictions by a jury in the Madison County Circuit Court of one count of rape of a child, one count of aggravated sexual battery, and one count of incest. In this appeal, the appellant raises the following issues for our consideration: (1) whether the trial court erred under Tenn. R. Evid. 412 in limiting his cross-examination of the victim concerning her "sexual history and knowledge;" (2) whether the evidence adduced at trial is sufficient to support the jury's "verdict" of guilt; and (3) whether the trial court erred in failing to instruct the jury on the lesser-included offense of attempt to commit rape of a child. Following a careful review of the record and the parties' briefs, we affirm the judgments of the trial court for the offenses of aggravated sexual battery and incest, but we reverse the judgment for the offense of rape of a child and remand the case for a new trial on that charge.

The defendant, Charles M. Thomas, appeals his conviction for possession of greater than .5 grams of cocaine with the intent to sell and the trial court's order requiring his resulting ten-year sentence to be served consecutively to prior sentences. This case presents three issues for our determination: (1) whether evidence against the defendant was the fruit of an illegal detention and search; (2) whether the evidence was sufficient to support the defendant's conviction; and (3) whether the trial court erred by ordering the defendant's sentence to be served consecutively to his prior sentences. For the reasons set forth below, we conclude there is no reversible error; therefore, we affirm the judgment of the trial court.

The defendant was indicted by a Davidson County Grand Jury on one count of premeditated first degree murder and two counts of attempted first degree murder. Following a jury trial, the defendant was convicted of the indicted premeditated first degree murder count and two counts of the lesser-included offense of attempted second degree murder. The defendant was sentenced to life imprisonment for premeditated first degree murder and two 11-year terms for the two counts of attempted second degree murder, with all sentences to run consecutively, for a total effective sentence of life plus 22 years. In this appeal, the defendant contends (1) the evidence was insufficient to sustain the convictions; (2) the trial court erroneously refused to charge reckless endangerment as a lesser-included offense of attempted first degree murder; and (3) the trial court erroneously sentenced the defendant to consecutive sentences. After a thorough review of the record, we conclude the trial court erroneously failed to charge reckless endangerment as a lesser-included offense of attempted first degree murder and remand for a new trial on these two counts. We affirm the conviction and life sentence for premeditated first degree murder.

The defendant appeals from his McMinn County Criminal Court convictions and sentences for second degree murder and facilitation of attempted second degree murder. The trial court sentenced the defendant to 25 years in the Department of Correction as a Range I offender for the second degree murder conviction and to five years incarceration for the facilitation of attempted second degree murder conviction. In this direct appeal, the defendant complains that the evidence is insufficient; that photographs and expert testimony were improperly admitted; that prosecutorial misconduct taints the verdict; that the state improperly questioned the defendant about his post-arrest exercise of his right to remain silent; that the jury instructions regarding intoxication were prejudicially inadequate; and that the sentences imposed are excessive. Unpersuaded by the defendant's assignments of errors, we affirm the trial court's judgment and sentence.

A Knox County jury found the Defendant guilty of voluntary manslaughter, a Class C felony; and the trial court sentenced him as a Range I, standard offender to five years, four of which were to be served on probation. The Defendant now appeals, arguing the following: (1) that the trial court failed to properly consider enhancement and mitigating factors during sentencing, and (2) that the trial court erred in failing to grant judicial diversion. Finding that the trial court properly sentenced the Defendant, we affirm the judgment of the trial court.

A Shelby County jury convicted the Petitioner of rape, and the trial court sentenced him as a Range I violent offender to eight years and one day in the Tennessee Department of Correction. The Petitioner subsequently filed a petition for post-conviction relief. The trial court conducted a post-conviction hearing and denied relief. The Petitioner now appeals the denial of post-conviction relief, arguing that he received ineffective assistance of counsel at trial. Specifically, he contends that his counsel (1) failed to aggressively question the victim regarding consent; (2) failed to object to the admission of expert testimony; (3) failed to aggressively cross-examine the prosecution's expert witness concerning her qualifications and her testimony in chief; (4) failed to prepare or investigate the case; (5) failed to object to "prejudicial witness examination and argument regarding the swapping of" a car battery; (6) failed to discuss defense strategy with the Petitioner; (7) failed to question the Petitioner about his knowledge of the victim's previous sexual behavior; (8) failed to review the transcript from the Petitioner's preliminary hearing; (9) failed to offer evidence of an injury to the Petitioner's hand; (10) failed to argue in closing the weight the jury should give testimony by the State's expert witness and failed to object to the State's definition of reasonable doubt in closing arguments; and (11) "failed to raise all probable issues on appeal." Having reviewed the record, we conclude that the Petitioner's representation was not deficient and therefore affirm the judgment of the trial court denying post-conviction relief.