APPELLATE COURT OPINIONS

Petitioner was originally convicted by a Shelby County jury of aggravated rape, a Class A felony, and sentenced to thirty-seven years as a Range II offender. Petitioner now appeals the denial of his petition for writ of habeas corpus in which he alleged his indictment was void. Upon our review of the record, we affirm the judgment of the trial court.

The petitioner appeals from the Knox County Criminal Court's dismissal of his petition for post-conviction relief, by which he sought to set aside his earlier guilty pleas. On appeal, the petitioner presses his claim that because he received ineffective assistance of counsel, his guilty pleas were not voluntary and knowing. Finding that the services of the petitioner's trial counsel were below the range of competence demanded of attorneys in criminal cases and that the petitioner was thereby prejudiced, we reverse the judgment of the post-conviction court, vacate the petitioner's convictions, and set aside the petitioner's guilty pleas without prejudice to further proceedings on the underlying charges.

The Defendant, Winslow B. Roberts, was found guilty by a Shelby County jury of two counts of especially aggravated kidnapping and two counts of aggravated robbery. The Defendant was sentenced to twenty years on each count of especially aggravated kidnapping, with the terms to be served concurrently, and ten years on each count of aggravated robbery, with the terms to be served concurrently. The trial court ordered that the Defendant's sentences for especially aggravated kidnapping be served consecutively to his sentences for aggravated robbery, for an effective sentence of thirty years. The Defendant now appeals, arguing that there was insufficient evidence presented at trial to convict him of especially aggravated kidnapping and aggravated robbery. Finding no error, we affirm the judgment of the trial court.

The defendant, Charles Roy Cole, was charged with aggravated assault and rape of a child. He was acquitted on the first charge and convicted on the second. The trial court imposed a sentence of 20 years. In this appeal of right, the defendant challenges the sufficiency of the evidence and argues that the trial court erred in its jury instructions regarding admissions against interest. The judgment is affirmed.

Pursuant to a negotiated plea agreement, the defendant pled guilty to contributing to the delinquency of a minor, a Class A misdemeanor, and unlawful use of an altered vehicle registration plate, a Class E felony. He received concurrent sentences of eleven months, twenty-nine days and two years, respectively, to be served on probation. The defendant appeals the trial court's denial of his request for judicial diversion. Upon our review of the record, we affirm the judgment of the trial court.

Following a jury trial, Defendant, Jacob Lee Davis, was convicted of premeditated first degree murder, reckless endangerment, and carrying a weapon on school property. The trial court sentenced him to life imprisonment for the first degree murder conviction and one year each for the reckless endangerment and carrying a weapon on school property convictions. The trial court ordered that the latter sentences be served concurrent to the sentence for life imprisonment. On appeal, the Defendant challenges the sufficiency of the evidence to sustain each of the convictions and argues that the trial court erred in failing to strike six potential jurors for cause. After a review of the record, we affirm the judgment of the trial court.

The petitioner filed a petition for writ of habeas corpus, contending that the two sentences for which he was incarcerated were being served concurrently and that both had expired, resulting in his being held illegally by the Tennessee Department of Correction for the second sentence. However, the Court of Appeals, presented previously with this same issue by the petitioner, determined that the sentences were to be served consecutively. Thus, the second sentence has not expired. We reverse the order of the post-conviction court that the two sentences were served concurrently and that the second sentence has expired. The petition for writ of habeas corpus is dismissed.

The defendant was indicted for driving under the influence (DUI), driving while his alcohol concentration was .10% or more (DUI per se), and DUI, second offense. After a jury trial on DUI and DUI per se, the jury acquitted the defendant of DUI and was unable to reach a verdict on DUI per se. A second trial was held, and the jury convicted the defendant of DUI per se. The trial judge then found this conviction to be a second offense. In this appeal, the defendant alleges (1) the defendant's retrial for DUI per se violated the principles of double jeopardy; (2) the trial court erroneously admitted the results of the breath test and related evidence; (3) the trial court erroneously admitted testimony of the arresting officer concerning his encounters with other motorists charged with DUI; (4) the trial court improperly considered a prior conviction for enhancement of the defendant's sentence; and (5) the trial judge erroneously failed to recuse himself. Upon review of the record, we reduce the defendant's conviction to DUI, first offense, remand for resentencing, and affirm the trial court in all other respects.

The defendant was convicted in the Cumberland County Criminal Court of aggravated sexual battery of a seven-year-old boy. Following the trial court's denial of his motion for a new trial, the defendant filed an appeal as of right to this court, raising three issues: (1) whether the evidence was sufficient for a rational trier of fact to find him guilty beyond a reasonable doubt of aggravated sexual battery; (2) whether the trial court abused its discretion in denying his motion for a new trial, based upon newly discovered evidence; and (3) whether the trial court erred in failing to instruct the jury on lesser-included offenses. Based upon our review, we affirm the judgment of the trial court.

Defendant, charged with possession with intent to sell and/or deliver a controlled substance and possession of drug paraphernalia, filed a motion to suppress over 300 grams of cocaine, paraphernalia, and U.S. currency discovered during a search of his vehicle. The trial court, Dickson County, granted Defendant's motion to suppress the evidence on the ground that the search impermissibly exceeded the scope of Defendant's consent. The State appealed. After a review of the record, we reverse the judgment of the trial court.

The Defendant pleaded guilty to sexual battery by an authority figure, a Class C felony. The Defendant was sentenced as an especially mitigated offender to two years and seven months in the Tennessee Department of Correction. The Defendant now appeals, arguing that the trial court erred in denying him alternative sentencing. Finding no error, we affirm the judgment of the trial court.

The Defendant pleaded guilty to theft of property valued over sixty-thousand dollars, a Class B felony. The trial court sentenced the Defendant as a Range I, standard offender to the minimum eight-year sentence, to be served in the Tennessee Department of Correction. The Defendant now appeals, arguing that the trial court erred in denying her alternative sentencing. We affirm the judgment of the trial court.

The defendant appeals from the revocation of his probation, contesting the trial court's jurisdiction. We affirm the judgment of the trial court.

This is an appeal from the denial of post-conviction relief. Petitioner pled guilty to selling cocaine over 0.5 grams and received a sentence of eight years. He contends the trial court erred in denying his petition for post-conviction relief, alleging (1) ineffective assistance of trial counsel leading to his guilty plea, (2) an involuntary guilty plea, and (3) failure of trial counsel to perfect an appeal of the sentence. We affirm the post-conviction court with regard to the validity of the guilty plea; however, we grant a delayed appeal based upon trial counsel's failure to take any action regarding an appeal of the sentence.

The defendant, Robert Lee Pattee, appeals as of right following his conviction by a jury in the Sumner County Criminal Court for first degree murder. The trial court sentenced Defendant to life imprisonment in the Department of Correction. Defendant raises the following issues in this appeal: (1) whether the trial court erred by refusing to instruct the jury on the lesser-included offense of voluntary manslaughter; (2) whether the trial court erred when it determined Defendant’s suicide note was inadmissible at trial; and (3) whether the evidence of premeditation was sufficient to convict him of first degree murder. After a thorough review of the record, we affirm the judgment of the trial court.

I concur in the result reached and most of the reasoning in the majority opinion. However, I believe that the evidence was sufficient to warrant the jury being instructed regarding voluntary manslaughter. I agree, though, that the failure to instruct the jury was harmless.

Linda Gail Philpot entered “best interest” pleas to forty-one counts of forgery. Pursuant to the negotiated plea agreement, Philpot received an effective sentence of fourteen years. The manner of service, including entitlement to probation, was submitted to the trial court. The trial court denied all forms of alternative sentencing based upon its finding of lack of remorse and poor prospects for rehabilitation. On appeal, Philpot argues that the trial court erred in denying an alternative sentence.  After review, we conclude that a sentence of split confinement will best serve the interests of the public and the Appellant. The judgment, accordingly, is reversed and remanded for entry of a sentence of split confinement reflecting a period of thirty-five days confinement in the local jail or workhouse with the remainder of the effective fourteen-year sentence to be served on supervised probation.

I concur that a sentencing alternative of split confinement should be utilized in the present case; however, I respectfully disagree that confinement for 35 days is appropriate. A consecutive sentence of 20 days confinement for each count would be more in line with the sentence approved by this court in the remarkably similar case of State v. Cynthia D. Stacey, No. 03C01-9803-CC-00091 (Tenn. Crim. App., Knoxville, May 24, 1999) (approving 180 days of confinement followed by two years of community corrections, for defendant who, as a home health care worker, stole money from an elderly couple in her care). The cases are very similar, and in light of Cynthia D. Stacey, the present case, on its own facts, suggests a more punitive, deterrent sentence than 35 days in confinement. Thus, I would extend the confinement portion of the sentence to an aggregate of 140 days.

The petitioner, William Ronald Jordan, was convicted by a jury in the Giles County Circuit Court of driving under the influence of an intoxicant ("DUI") and attempted robbery. The trial court sentenced Petitioner as a multiple Range II offender to six years for the attempted robbery conviction and to eleven months and twenty-nine days for the DUI conviction, with the sentences to be served concurrently. This court affirmed Petitioner's convictions on direct appeal, and Petitioner subsequently filed a pro se petition, with two amendments, for post-conviction relief alleging ineffective assistance of counsel. The post-conviction court denied Petitioner relief. In this appeal, Petitioner asserts that he received ineffective assistance of counsel on the following grounds: (1) counsel failed to submit adequate evidence at the hearing on his motion to dismiss based upon denial of his right to a speedy trial; (2) counsel's advice to Petitioner not to testify at trial deprived him of a jury instruction on renunciation as a defense; and (3) counsel failed to object when the State filed an untimely motion for enhanced punishment under Tenn. R. Crim. P. 12.3. After a review of the record and applicable law, we affirm the post-conviction court's judgment.

Michael Shawn Shofner appeals from the Knox County Criminal Court's denial of his "Motion to Void Judgment," in which he seeks relief under Rule of Civil Procedure 60.02 from an order declaring that he is an habitual motor vehicle offender. He claims on appeal that the habitual motor vehicle offender order is void because (1) no summons was attached to the show cause order served upon him to notify him of the habitual motor vehicle offender proceedings, and (2) the state failed to obtain an alias summons after process was not returned within thirty days of entry of the show cause order. We hold that Shofner's motion for relief under Rule 60.02 is untimely. Therefore, the judgment of the trial court is affirmed.

The defendant appeals the trial court's six-year sentence of total confinement and denial of any form of an alternative sentence. After review, we reverse the trial court's order of total confinement and denial of any form of an alternative sentence. We remand the case to the trial court to order the defendant to serve a sentence of split confinement with one (1) year of incarceration and the remaining five (5) years on supervised probation with restitution as a condition of probation.

The Defendant, Clarence Davis, was convicted by a jury of premeditated first degree murder and sentenced to a term of life imprisonment. On direct appeal, this Court reduced the Defendant's conviction to second degree murder and remanded the case for re-sentencing. State v. Clarence Davis, No. 01C01-9811-CR-00451, 1999 WL 737873, at *1, Davidson County (Tenn. Crim. App., Nashville, September 22, 1999). After a sentencing hearing, the Defendant was sentenced to the maximum term of twenty-five years. The trial court further ordered the Defendant to serve this sentence consecutively to a previously imposed sentence in a case wherein Defendant's sentence to community corrections had been revoked. The Defendant now appeals contending: 1) the trial court erred in imposing the maximum sentence for second degree murder and 2) the trial court erred in ordering his sentence to run consecutively to a previously imposed sentence in an unrelated case. After a review of the record and applicable law, we affirm the length of the sentence and the order of consecutive sentencing, but remand for a determination of the amount of pretrial jail credit to which the Defendant is entitled.

I am unable to join with my colleagues in holding that a trial judge may not modify a misdemeanant’s “program eligibility” percentage following revocation of the misdemeanant’s suspended sentence. Our sentencing laws provide that “in imposing a misdemeanor sentence, the court shall fix a specific number of months, days or hours and the defendant shall be responsible for the entire sentence . . .,” subject to various authorized sentencing credits. Tenn. Code Ann. § 40-35-302(b). The program eligibility percentage, as provided by subsection 302(d), has no bearing upon the misdemeanant’s length of sentence or when the sentence expires; rather, as noted above, every non-suspended misdemeanor sentence is served at one hundred percent. Moreover, as observed by the majority, program eligibility percentage is distinguished from probation, which is authorized in subsection 302(e). Program eligibility, which is viewed under our sentencing law as a rehabilitative measure, relates only to placement in “rehabilitative programs” for service of the sentence as
imposed. The fixing of a percentage for program eligibility, as with probation, must be determined at sentencing. Tenn. Code Ann. § 40-35-302(d).

The defendant appeals from his conviction for driving under the influence, third offense, contending that the trial court erred by denying his motion to sever. We affirm the judgment of the trial court.

The defendant, Michael Ray Swan, was convicted for simple assault, driving on a revoked, suspended, or cancelled license, and violating the implied consent law. The trial court sentenced the defendant to 11 months, 29 days for the assault; ordered a term of six months on the revoked license conviction; and revoked the defendant's license for one year for violating the implied consent law. In this appeal of right, the defendant presents the following issues: (1) whether there was sufficient evidence to support the convictions; (2) whether the trial court properly charged the jury; (3) whether the trial court erred by allowing the state to submit a statement of evidence; (4) whether the trial court erred by denying defendant's motion to stay the suspension of his license; and (5) whether the trial court erred by revoking the defendant's license. After a review of the record, we reverse and dismiss the conviction for driving on a revoked, suspended, or cancelled license; the judgment for the implied consent violation is modified to a one-year suspension rather than revocation. The conviction for simple assault is affirmed.