APPELLATE COURT OPINIONS

The defendant, Rose Marie Hernandez, pled guilty to seventy counts of forgery, a Class E felony, which the trial court merged into thirty-five convictions of forgery, and the trial court sentenced her as a Range III, persistent offender to five years and six months for each conviction. The trial court ordered some of the sentences to run concurrently and others to run consecutively for an effective sentence of thirty-three years and six months in the Department of Correction. The defendant appeals, claiming the trial court erred in applying certain enhancement factors in violation of the rule announced in Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004), and in denying alternative sentencing. Although we conclude that the sentencing procedure violated the rule announced in Blakely, we hold it to be harmless beyond a reasonable doubt. We affirm the judgments of the trial court.

The issue in this case is whether an award of permanent total disability should commence when the employee reaches maximum medical improvement or on the last day that the employee is able to work due to the injury. The trial judge ordered permanent total benefits to be paid as of the day the employee last worked. The employee appealed, arguing that he was totally disabled from the time that he reached maximum medical improvement, and because he was only able to work in a limited capacity thereafter, he should be able to collect benefits for the period between his reaching maximum medical improvement and the time he ultimately stopped work. Because the employee was working during the three years at issue and because there was no evidence presented that he was unemployable in the general workforce, the evidence supports the trial court’s decision that he did  not meet the statutory definition of permanent total disability until he stopped work.

This case comes before us on petitions for habeas corpus relief. Although several arguments are
raised on appeal, the dispositive issue presented is whether the petitioner is “imprisoned or restrained of liberty” by the challenged judgments and thus eligible to seek habeas corpus relief, when the petitioner’s sentences expired prior to filing for relief. We hold that he is not. The petitioner was convicted of numerous criminal offenses from 1986 to 1993. In 2002, the petitioner filed three pro se habeas corpus petitions challenging the validity of these convictions. The trial court dismissed the petitions. Upon appeal to the Court of Criminal Appeals, the dismissal of the petitions was affirmed. In addition to affirming the trial court’s initial findings, the intermediate court also held that the petitioner was ineligible for habeas corpus relief because he was currently incarcerated on unrelated charges and thus had no standing to claim he was being illegally restrained by the challenged convictions. For the reasons stated herein, we affirm the judgment of the Court of Criminal Appeals. Applying the rule recently announced in Hickman v. State, — S.W.3d — (Tenn. 2004), we hold that the petitioner is not currently "imprisoned or restrained of liberty" by the challenged convictions because they expired prior to his filing for relief; therefore, he is not entitled to habeas corpus relief.

The Petitioner, Alonzo C. Williams, appeals the trial court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. Because Petitioner has failed to allege a ground for relief which would render the judgment void, we grant the State's motion and affirm the judgment of the lower court.

The petitioner, Orlando Crenshaw, convicted of attempted first degree murder, appeals the post-conviction court's denial of his petition for relief. He asserts that (1) the trial court erred by failing to provide jury instructions on the appropriate lesser included offenses and that his counsel was ineffective for failing to raise the issue on direct appeal; (2) that the trial court erred by failing to comply with the requirements of Momon v. State, 18 S.W.3d 152 (Tenn. 1999), and that his trial counsel was ineffective for failing to adequately prepare him to testify at trial; (3) that the state failed to prove that the offense occurred before the return of the indictment; (4) that the state engaged in prosecutorial misconduct by using false statements to secure the indictment and soliciting false testimony at trial; (5) that the trial court erred by providing a misleading jury instruction on the issue of criminal responsibility and that his counsel was ineffective for failing to present the issue as a ground for relief on direct appeal; (6) that the trial court erred by failing to provide a limiting instruction with regard to certain of the evidence; (7) that he was denied the right to a fair trial because the same jury pool used in the trial of his co-defendant was used for his trial and that his counsel was ineffective for failing to object to the jury pool; (8) that he was denied the right to a fair trial because of a violation of Brady v. Maryland, 373 U.S. 83 (1963); and (9) that the state denied his right to a fair trial by utilizing mutually exclusive theories in his trial and that of his co-defendant. For the reasons set forth in this opinion, the judgment of the post-conviction court is reversed, the conviction is set aside, and the cause is remanded for a new trial.

Defendant, William Cartwright, pled guilty to one count of attempt to manufacture methamphetamine, a Class D felony. Pursuant to the plea agreement, Defendant received a sentence of three years as a Range I standard offender with the manner of service of his sentence to be determined by the trial court. After a sentencing hearing, the trial court ordered Defendant to serve his sentence in confinement. Defendant appeals, arguing that the trial court erred in denying him alternative sentencing. We affirm the judgment of the trial court.

Following a jury trial, the Defendant was convicted of aggravated burglary and misdemeanor theft. On appeal, he challenges the sufficiency of the convicting evidence. We affirm the judgments of the trial court.

The defendant, Jeffery D. Rhoades, appeals from the Dyer County Circuit Court’s 2004 revocation of his 1996 sentences for burglary and theft. We affirm the revocation of probation and the ordering of confinement for the balance of the original effective sentence, but we modify the provisions for sentence credits and remand.

The defendant, Darius Jones, was convicted of one count of felony murder, four counts of aggravated robbery, three counts of attempted especially aggravated robbery, two counts of attempted aggravated robbery, and one count of aggravated burglary. The trial court ordered consecutive sentences of life with the possibility of parole for the felony murder, ten years for each of the aggravated robberies and attempted especially aggravated robberies, and four years for each of the attempted aggravated robberies and the aggravated burglary, for an effective sentence of life plus eighty-one years ¹. In this appeal of right, the defendant argues that the evidence was insufficient, that the trial court erred by admitting photographs of the crime scene, that the trial court erred by limiting the defense cross-examination of a homicide detective, that the trial court erred by admitting the videotaped preliminary hearing testimony of one of the victims, that the trial court erred in its instructions to the jury, that the sentence was excessive, and that cumulative error requires reversal.  The conviction for felony murder and sentence of life with the possibility of parole are affirmed. The remaining judgments of conviction are affirmed, but the causes are remanded for resentencing.

The defendant, Jimmy Albert Warren, indicted for second offense driving under the influence and DUI per se, filed a pre-trial motion to suppress all evidence. The trial court granted the motion in part and denied it in part, holding that the field sobriety tests and the statements made by the defendant prior to his arrest were admissible, but that the blood alcohol content test results were not.  In this interlocutory appeal initiated by the state, each party claims that the trial court erred. The judgment of the trial court is affirmed.

Robert W. O'Neal ("Father") and Sandra K. O'Neal ("Mother") were granted a divorce by the Sumner County Circuit Court in 1986. There were two minor children born of the marriage, and Father was ordered to pay $650 per month in child support. After Mother passed away in June of 1990, the children's maternal grandparents, William and Marjorie Kirkpatrick, were awarded full custody of both children by the Sumner County Chancery Court. In 2001, Marjorie Kirkpatrick ("Petitioner") filed a petition in the Hamilton County Circuit Court seeking to have the previous order requiring Father to pay $650 per month in child support enforced. Petitioner also sought a substantial amount of arrearages. The Hamilton County Circuit Court determined that Father was in arrears a total of $55,063 covering from when Petitioner was awarded custody until June of 2002. Petitioner also was awarded her attorney fees. Father appeals, claiming the original order from the Sumner County Circuit Court requiring him to pay $650 per month in child support had no effect once Mother died. We modify the judgment of the Hamilton County Circuit Court, and affirm as modified.

The Defendant, Christopher A. Johnson, seeks to appeal as of right from the trial court's denial of his "Petition to Enforce the Plea Agreement." The State argues that this appeal should be dismissed because an appeal as of right does not lie from a trial court's denial of a petition to enforce a plea agreement. We agree with the State's argument and dismiss this appeal.

On this consolidated appeal, the defendant challenges the manner and consecutive nature of his sentences. After analyzing the issues properly before us, we conclude that the trial court did not err in revoking the defendant's probation on the former sentence or in denying him probation on the latter. Further, we hold the consecutive sentences to be warranted and proper in this instance. Therefore, we affirm.

This appeal involves a boundary line dispute between neighbors. The trial court found in favor of the plaintiffs' boundary line description, and defendants appeal. We affirm the decision of the trial court.

Plaintiff filed suit asserting that she was the owner by adverse possession of four acres of farmland in Maury County. Defendants, who purchased adjoining property in 2001, assert that they are by deed the true and rightful owners of the disputed parcel. The trial court ruled that Plaintiff was the owner of the property by adverse possession based on a finding that she and her predecessors in interest had possessed the property visibly, exclusively, actually, continuously, openly, and notoriously for twenty years. We affirm.

This is an appeal from denial of post-conviction relief. The Defendant, Martin Palmer Jones, was convicted of two counts of first degree felony murder upon entry of best-interest guilty pleas. He was sentenced to two terms of life imprisonment, which were to be served consecutively. The Defendant's sentences were affirmed on direct appeal. See State v. Martin Palmer Jones, No. 03C01-9803-CR-00084, 1999 WL 93144 (Tenn. Crim. App., Knoxville, Feb. 25, 1999). On petition for post-conviction relief, the Defendant claimed he received ineffective assistance of counsel in conjunction with his guilty pleas. The trial court denied the petition, and the Defendant appealed to this Court. We affirm the judgment of the trial court.

Lydia Ann Bishop Watkins ("Wife") filed for divorce from William C. Watkins, Jr., ("Husband") after thirty-five years of marriage. The Trial Court awarded Wife a divorce and distributed the marital property. The Trial Court also concluded that Wife was not economically disadvantaged and refused to award her any alimony. The Trial Court ordered each party to be responsible for his or her attorney fees. Wife appeals claiming the Trial Court's distribution of the marital property was inequitable, the Trial Court erred by not awarding her alimony in futuro, and the Trial Court erred by not requiring Husband to pay her attorney's fees. We affirm the judgment of the Trial Court.

The petitioner, Eric Thomas, appeals as of right from the dismissal of his petition for post-conviction relief by the Shelby County Criminal Court. He seeks relief from his Class C felony conviction for robbery and resulting sentence of eight years and one day in confinement. He contends that the post-conviction court erred in dismissing his petition and that he received the ineffective assistance of counsel. We affirm the judgment of the trial court.

Defendant, Charles Jackson, Jr., entered a plea of guilty to possession of cocaine of over 0.5 grams with intent to sell, a Class C felony. The trial court imposed the recommended sentence of eight years as a Range II multiple offender. As a part of the plea agreement, Defendant reserved two certified questions of law under Rule 37(b)(2)(i) of the Tennessee Rules of Criminal Procedure arguing that the trial court erred in not suppressing items found during a search of his vehicle. We affirm the judgment of the trial court.

The Petitioner, James W. Taylor (aka Lutfi S. Talal), filed a petition for writ of habeas corpus seeking relief from an allegedly void judgment, which the trial court dismissed. The Petitioner now appeals contending that the trial court erred when it dismissed his petition because: (1) his presentments were fatally defective which deprived the trial court of proper jurisdiction; (2) the trial judge violated his constitutional rights; (3) the trial court erred when it ordered that the Petitioner's sentences run consecutively; (4) the trial court erred when it found that the Petitioner was a Range II offender; (5) the trial court erred when it approved an illegal judgment of conviction; and (6) the habeas corpus court erred when it denied the Petitioner a right to respond to the State. Finding no error in the judgment of the trial court, we affirm the trial court's dismissal of the Petitioner's petition for habeas corpus relief.

The defendant, Larry E. Shannon, appeals the trial court's order extending his probation by an additional eighteen months. He contends that the trial court lacked jurisdiction because his sentence expired before the probation revocation warrant was issued. We affirm the judgment of the trial court.

The chancery court reversed the Assessment Appeals Commission and held that Youth Programs, a charitable organization, is entitled to a property tax exemption on real property in Shelby County used in conjunction with the FedEx/St. Jude Classic golf tournament. The trial court determined the disputed property is used exclusively for a charitable purpose and that an unusable area is used constructively and is likewise exempt. The Shelby County Assessor of Property and the State appeal. We affirm.
 

This case involves a custody dispute between the parents of one daughter. Mother lives in Belgium, and Father, the primary residential custodian, currently lives in Lewis County, Tennessee, although he has also lived with his daughter in Hawaii, Oregon, and Washington State at various times since the parties' separation in 1998. Father has refused to allow most of Mother's visitation since the divorce became final, has interfered with communication between Mother and Daughter, and has convinced Daughter to falsely accuse her maternal grandfather and stepfather of sexual abuse. The trial court found that these occurrences amounted to a material change in circumstances and found that it would be in the best interest of Daughter to make Mother her primary residential custodian and to allow Daughter to move to Belgium with Mother. We affirm the trial court.

Plaintiff-Appellant instituted a detainer action in general sessions court seekingpossession of property owned by Plaintiff-Appellant. From an adverse judgment in general sessions court, Plaintiff-Appellant appealed to the circuit court for a trial de novo. Defendant-Appellee filed a counter-claim in circuit court, alternatively requesting that if she is forced to vacate the premises, she should be awarded damages for improvements made to the premises. The trial court entered judgment for possession to the Defendant-Appellee. Plaintiff-Appellant appeals. We reverse.

I concur with Judge Smith’s lead opinion; however, I am writing separately for two reasons.  First, I have reconsidered, and upon further reflection, retreat from my earlier position that sentences found to be in violation of Blakely should be remanded for a new sentencing hearing in the trial court. Until such time as there is clear authority for our courts to deal with Blakely issues, whether by case law or by statute, judicial economy and sentencing considerations, including uniformity of application of sentencing factors, dictates that most sentences found to be in violation of Blakely should be modified, if at all, by the appellate courts. Clearly, the appellate courts have been given the authority to do so by the legislature Tenn. Code Ann. § 40-35-401(c).