APPELLATE COURT OPINIONS

The defendant pled guilty to driving under the influence and was sentenced as a multiple offender. In this appeal as of right, the defendant alleges that (1) the trial court erred in finding that he was a third offender for purposes of sentencing, and (2) the DUI sentencing statute is unconstitutional because it is vague and has an ex post facto effect. After careful review, we affirm the defendant's conviction and sentence.

This is an appeal by the State of Tennessee from an order granting the defendant judicial diversion for the offense of sexual battery. This order was the result of a Tenn. R. Crim. P. 35 motion to reduce a previously ordered sentence of one year in the county jail with all time suspended and supervised probation for one year. Although the Tenn. R. Crim. P. 35 motion was timely filed, the trial court did not act upon the motion until after the original probated sentence had been fully served and expired. Two issues of first impression are presented in this appeal. We conclude that (1) judicial diversion is not a “sentence” and, therefore, may not be granted as Rule 35 relief; and (2) a trial court may not modify a sentence under Rule 35 after the sentence has been fully served and expired. Accordingly, we reverse the judgment of the trial court.

I join with the majority in concluding that the trial court was without authority to modify the defendant’s sentence after the sentence had expired. I write separately because I also find that the trial court was without authority to grant judicial diversion in this case even if the sentence had not expired. Absent appropriate legislation, the trial court is without authority to invent its own sentencing programs.

Petitioner appeals the order of the Shelby County Criminal Court dismissing his petition for post-conviction relief. Following an evidentiary hearing, the court held that the petition was time-barred by the statute of limitations. After a thorough review of the record, we conclude that the petition was filed timely, and reverse the decision of the post-conviction court.

The defendant, Jon Goodale, was convicted of first degree premeditated murder, felony murder, and especially aggravated robbery in the Criminal Court of Davidson County. The first conviction was merged into the felony murder conviction and the defendant was sentenced to life. The trial court then conducted a sentencing hearing and imposed a twenty-five year sentence for the especially aggravated robbery to be served consecutive to the life sentence. In his appeal as of right pursuant to Rule 3(b) of the Tennessee Rules of Appellate Procedure, the defendant argues that (1) the evidence presented at trial was insufficient to support his convictions, (2) the trial court erred in failing to instruct the jury concerning accessory after the fact as a lesser-included offense to all charges, and (3) the sentence imposed by the trial court is excessive. We affirm the judgment of the trial court.

The defendant appeals his conviction for aggravated robbery and sentence of eight years and six months, arguing: (1) there was insufficient evidence to support his conviction; (2) the trial court erred in allowing hearsay into evidence under the excited utterance exception; (3) the trial court erroneously failed to charge the jury on lesser-included offenses; and (4) his sentence is excessive. After a thorough review of the record, we affirm the judgment of the trial court.

In July of 1999, a Fayette County Grand Jury indicted the appellant, Eric Terrell Glover, for the following offenses: (1) first-degree premeditated murder; (2) first-degree felony murder; (3) especially aggravated kidnapping; and (4) especially aggravated robbery. Following a jury trial, Glover was convicted on all charges and, in accordance with the jury's verdict, was sentenced to life imprisonment for first-degree premeditated murder. For his convictions of especially aggravated kidnapping and especially aggravated robbery, Glover was sentenced, as a violent offender, to concurrent twenty year sentences on each charge, with these sentences running concurrently to his life sentence. On appeal, Glover challenges the sufficiency of the evidence supporting his convictions as a principal offender under a theory of criminal responsibility for the conduct of another. He argues that the proof, at best, supports only the subordinate criminal responsibility of "facilitating." After review, we find no error and affirm the judgments of the trial court.

The appellant, Quincy Bledsoe, appeals from the dismissal of his petition for post-conviction relief by the Fayette County Circuit Court. In 1997, Bledsoe pled guilty to aggravated kidnapping and attempted felony escape and received an effective nine-year Department of Correction sentence as a violent offender. On appeal, Bledsoe seeks to set aside his convictions upon grounds that his pleas were "based upon an uncounseled statement that was not knowingly and voluntarily given." Finding this issue without merit, the judgment of the post-conviction court is affirmed.

The defendant, Adrian S. Lennox, was convicted by a jury of aggravated burglary, vandalism, felony evading arrest and driving on a revoked license. The defendant was then sentenced as a Range II offender to nine years on the aggravated burglary conviction, three years on the vandalism conviction, five years on the felony evading arrest conviction, and six months on the conviction for driving on a revoked license. The trial court ordered that the aggravated burglary and the felony evading sentences run consecutively. On appeal, the defendant argues that (1) the evidence is insufficient to support the defendant's convictions, (2) the trial court improperly denied the defendant's motion for the preparation of trial transcripts prior to his motion for new trial hearing, and (3) the trial court improperly sentenced the defendant. We affirm the judgment of the trial court.

The defendant, Larry Mitchel Watson, appeals his conviction and sentence for felony reckless endangerment in the Cumberland County Criminal Court. On appeal, the defendant argues that the evidence was insufficient to sustain his felony reckless endangerment conviction and that the trial court improperly sentenced him. Because the jury was erroneously instructed on felony reckless endangerment as a lesser-included offense of aggravated assault, we reverse his conviction for that offense and remand the cause for a new trial in accordance with this opinion.

The appellant, Jonathan Trice, pled guilty in the Chester County Circuit Court to five counts of theft and was sentenced to a total of four years incarceration in the Tennessee Department of Correction. The appellant's sentence was then suspended, and the appellant was granted service in a community corrections program. Due to the appellant's failure to comply with the terms of community corrections, the trial court revoked the appellant's suspended sentence and ordered that the appellant serve his sentence in confinement as originally ordered. The appellant appeals this ruling. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

The defendant was indicted on twelve counts of aggravated rape and six counts of statutory rape. He pled guilty to four counts of statutory rape, a Class E felony, with an agreed sentence of two years on each count, to be suspended upon service of thirty days. The trial court ordered the sentences to run consecutively, which ruling the defendant now appeals. The defendant also appeals the court's denial of his application for judicial diversion. We affirm the judgment of the trial court.

The defendant appeals his premeditated first degree murder conviction for which he received a life sentence, arguing: (1) the evidence was not sufficient to convict him of first degree murder; (2) he should have been granted a mistrial due to the prosecutor's improper statements during closing arguments; and (3) he was entitled to a special jury instruction regarding diminished capacity. After reviewing the record, we affirm the judgment of the trial court.

The defendant, Rickie Boyd, was convicted by a Shelby County, Tennessee jury of the offense of aggravated robbery. He was sentenced to 18 years incarceration as a Range II, multiple offender. In this appeal he maintains the trial court erred in failing to instruct the jury with respect to the lesser included offense of theft of property. We conclude that is was error to fail to instruct the jury with respect to theft of property. However, we also conclude that this error was harmless beyond a reasonable doubt, and we therefore affirm the judgment of the trial court.

Charles Goode was convicted by a jury of aggravated rape, and was sentenced to twenty-five (25) years in the Department of Correction. He challenges the sufficiency of the evidence and the actions of the judge in sentencing him to serve the maximum sentence. We affirm the judgment of the trial court.

The petitioner appeals the dismissal of his petition for post-conviction relief, arguing that the post-conviction court erred in finding that he had effective assistance of trial counsel. After a careful review of the record, we conclude that the petitioner failed to meet his burden of proving ineffective assistance of counsel. Accordingly, we affirm the post-conviction court's dismissal of the petition for post-conviction relief.

The defendant pled guilty to two counts of introduction of drugs into a penal institution. Her plea agreement required her to serve two concurrent six-year sentences for the offenses, but left the manner of service to the discretion of the trial court. Following a sentencing hearing, the trial court ordered the defendant to serve her sentences in the Tennessee Department of Correction. The defendant appeals this decision, arguing that the trial court erred by not ordering an alternative sentence. Because we conclude that the record in this case supports the denial of alternative sentencing, we affirm the judgment of the trial court.

The petitioner, Lawrence A. Strickland, appeals the Bledsoe County Circuit Court’s dismissal of his petition for habeas corpus relief, which challenged his 1997 guilty-plea-based, Roane County conviction of aggravated sexual battery. Based upon our de novo review of matters of law, we conclude that the sentence imposed by the conviction court was void, although we reject the petitioner’s claim that the indictment is invalid. We reverse the judgment of the lower court and grant habeas corpus relief in the form of declaring the petitioner’s Roane County sentence void.  Because the conviction rests upon a guilty plea that, in turn, was premised upon the agreed sentence being valid, we vacate the petitioner’s conviction and sentence. The conviction court shall afford the petitioner the opportunity to withdraw his guilty plea pursuant to Tennessee Rule of Criminal Procedure 11(e)(4).

A Grundy County jury convicted the defendant, James Larry Cox, for the attempted second degree murder of Jimmy Sweeton. Subsequently, the trial court sentenced the defendant as a Range I offender to ten (10) years of incarceration. On appeal, the defendant questions whether he was denied a fair trial due to the trial court's exclusion of evidence relating to the victim's reputation for violence, and whether he was improperly denied the right to question the victim about a prior conviction. After a thorough review of the record, we affirm the judgment of the trial court.

The petitioner was originally convicted by a Lincoln County jury of criminal responsibility for first degree murder and sentenced to life imprisonment. The petitioner's conviction was affirmed on direct appeal. The petitioner sought post-conviction relief, which was denied by the post-conviction court. In this appeal, the petitioner contends her trial counsel provided ineffective assistance of counsel. After a thorough review of the record, we conclude that the post-conviction court correctly denied post-conviction relief.

The defendant, Kenneth Chambly, appeals his convictions for three charges of aggravated sexual battery for which he received an effective sentence of ten years without parole. He raises various issues on appeal. We reverse the convictions and remand the case for a new trial because of the failure of the state to elect offenses and the failure of the trial court to instruct the jury regarding the need for offense unanimity in the verdict. We also conclude that the trial court imposed an improper sentence of ten years for one of the convictions.

The defendant appeals his conviction of theft of property valued at $1,000 or more, but under $10,000. He contends that the trial court erred in denying his motion to suppress a showup identification of him at the crime scene. He further contends that the evidence was insufficient to support his conviction and that the trial court erred by instructing the jury on flight. After review, we affirm the judgment of the trial court.

The appellant, Steven Lee Whitehead, was convicted by a jury in the Madison County Circuit Court of three counts of rape. Pursuant to the appellant's convictions, the trial court imposed concurrent sentences of ten years incarceration in the Tennessee Department of Correction. On appeal, the appellant presents the following issues for our review: (1) whether the trial court erred in excluding at the appellant's trial evidence of other sexual behavior by the victim; (2) whether the trial court erred in excluding evidence of prior false testimony by the victim; (3) whether the trial court erred in failing to either exclude DNA evidence or, in the alternative, grant the appellant a continuance of the trial date; (4) whether the trial court erred in excluding evidence concerning the appellant's character; (5) whether the evidence adduced at trial is sufficient to support the appellant's convictions of rape; and (6) whether the trial court erred in failing to instruct the jury on sexual battery as a lesser-included offense of each count of rape. Following a thorough review of the record and the parties' briefs, we reverse the judgments of the trial court due to the court's failure to instruct the jury on sexual battery, and we remand these cases for a new trial.

Defendant, Richard L. Thompson, was accused by the Wilson County grand jury of incest of his stepdaughter, in three counts, all occurring between May and August 1999. On January 13, 2000, defendant agreed to plead guilty to one count of incest for a sentence of six (6) years in the Department of Correction. As part of the plea agreement, defendant requested a sentencing hearing for the trial court to consider an alternative sentence and probation. At the conclusion of the sentencing hearing, the trial court denied defendant's request for an alternative sentence and probation and confined Defendant in the Department of Correction for six (6) years. On direct appeal, defendant raises five (5) issues: (1) Whether the trial court improperly considered a 1989 Pennsylvania conviction for an undetermined offense in finding defendant was not an appropriate candidate for full probation or split confinement; (2) Whether the trial court erred by finding certain statutory enhancement factors applicable to the determination of how the sentence should be served, where length of sentence was determined in the guilty plea; (3) Whether the trial court erred in finding that the sentence of confinement was necessary to avoid depreciating the seriousness of the offense; (4) Whether the trial court erred in failing to consider whether measures less restrictive than confinement had been applied to this offender; and (5) Whether the trial court erred in failing to consider defendant's special needs into consideration as a factor that made alternative sentencing (community corrections) particularly appropriate in this case. Upon a review of the record, legal arguments, the briefs of the parties, and applicable law, we find no error. Thus, the judgment of the trial court is affirmed.

The appellant, Freddy Allen Perry, pled guilty in the Giles County Circuit Court to four counts of aggravated assault and was sentenced as a standard Range I offender to a total effective sentence of ten years incarceration in the Tennessee Department of Correction. On appeal, the appellant challenges the trial court's denial of full probation and judicial diversion. Upon review of the record and the parties' briefs, we conclude that the trial court erred in failing to state on the record its reasons for denying full probation and judicial diversion; therefore, we reverse the judgment of the trial court and remand for further proceedings.