APPELLATE COURT OPINIONS

ORDER DENYING PETITION FOR REHEARING
Appellant Edmund George Zagorski has filed a petition to rehear this cause
pursuant to Tenn. R. App. P. 39 contending that our opinion conflicts with and/or
overlooks principles of law regarding trial counsel’s duties to investigate mitigation
evidence and fully advise a defendant regarding a potential mitigation defense. We
have reviewed all of the arguments raised in the petition, and we find them to be
without merit.

This case concerns a dispute over the division of marital property, alimony, and attorney’s fees. Appellant, Donald F. McCormick (Husband), appeals from the Final Decree of Divorce that, inter alia, awarded Appellee, Margaret Ann McCormick (Wife), proceeds from a 1 Husband’s W-2 form from the Frigidaire Company reveals that his wages for 1996 were $94,063.26. 2 In 1996, Wife’s gross annual earnings were approximately $9,000.00. 2 401K account, rehabilitative alimony, and attorney’s fees.

We granted this appeal to address whether a trial court can consider prior grants of diversion or previously expunged offenses in determining a defendant's suitability for diversion. In the case now before us, the trial court denied the defendant's request for judicial diversion because the defendant had previously been placed on diversion on two different occasions. The appellate court affirmed the trial court's decision to deny the defendant's application for judicial diversion. Upon review, we hold that evidence of prior diversions may be considered in determining whether a defendant is a suitable candidate for diversion.

The Tennessee Civil Service Commission upheld the termination of a veteran supervisory employee for sexual harassment, conduct unbecoming a state employee, and failure to maintain a satisfactory and harmonious working relationship with fellow employees. The Chancery Court of Davidson County affirmed the Commission’s order. On appeal the employee asserts that he was denied progressive discipline prior to termination, and that he was denied due process of law. On the strength of the proof, he also claims that his conduct does not fit the definition of “conduct unbecoming” or support a conclusion that he failed to maintain a harmonious working relationship, and that his conduct was constitutionally protected. We affirm the trial court.

We granted this appeal to determine whether the probate rule of ademption by extinction applies to the specific bequest of a house, where the house is sold at foreclosure before the testator’s death and sales proceeds representing the testator’s interest are identifiable after his death.

The appellee, Robby McCurry, filed a second motion to rehear on December 28, 1998, petitioning this Court to reconsider our decision in the above styled case. The appellee filed this petition without first seeking permission from this Court as prescribed in Rule 39(f) of the Tennessee Rules of Appellate Procedure. Accordingly, the motion is not well taken.

This appeal involves the fundamental fairness of the procedures used by the Tennessee Board of Paroles to revoke the parole of a person accused of committing child sexual abuse. The Board revoked the parole based solely on hearsay testimony concerning statements made by his alleged victim. The parolee filed a petition for a common-law writ of certiorari in the Chancery Court for Davidson County seeking judicial review of the Board’s decision-making process. After the trial court denied the petition, the parolee appealed to this court. We have determined that the Board’s hearing officer acted arbitrarily and illegally by applying an incorrect standard to determine whether good cause existed for not allowing the parolee to confront or to cross-examine his only accuser.  Accordingly, we reverse the trial court’s denial of the parolee’s petition for a common-law writ of certiorari and remand the case to the trial court for the entry of an order directing the Board either to conduct a proper parole revocation hearing forthwith or to return the parolee to parole status.