APPELLATE COURT OPINIONS

A Gibson County jury convicted Patricia White of theft of property valued over $10,000, a Class C felony; the trial court sentenced her to a term of four years, suspended, and fifteen years’ probation. The same jury also convicted Patricia White’s husband, Craig White, of facilitation of theft of property valued over $10,000; the trial court sentenced him to a term of two years suspended, and two years’ probation. As a condition of probation, the trial court held the couple jointly liable for $124,000 in restitution. On appeal the defendants contend that the trial evidence is insufficient to support their convictions. They also contest the amount of restitution they have been ordered to pay. After an exhaustive review of the record, the briefs of the parties, and applicable law, we conclude that the evidence is sufficient to support Patricia White’s conviction, but we are unable to reach the same conclusion for Craig White’s facilitation conviction. Accordingly, we affirm Patricia White’s conviction; the conviction of Craig White is reversed, and the charge is dismissed. Finding that the trial court made inadequate findings in assessing restitution, we further remand that issue for determination based on the required statutory findings. Finally, we take notice that based on three statutory enhancement factors (none of which involved prior criminal history), the trial court set the length of Patricia White’s sentence at one year above the presumptive minimum sentence of three years; pursuant to Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004), we modify her sentence to three years but leave undisturbed the length and terms of her probation.

The majority concludes that modification of the defendant, Patricia White’s, sentence is
required in light of the United States Supreme Court’s recent decision in Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004). For the following reasons, I must respectfully dissent.

Following a jury trial, Defendant, Ronnie W. Salmon, was convicted of driving under the influence of an intoxicant, second offense, a Class A misdemeanor. The trial court sentenced Defendant to eleven months, twenty-nine days, all suspended but sixty days. Defendant does not appeal his sentence. Defendant argues on appeal that the evidence was insufficient to support his conviction, that certain remarks made by the prosecutor during closing argument were improper, and that the trial court erred in not granting Defendant a mistrial on the basis of the prosecutor’s comments during closing argument. We affirm the judgment of the trial court.

The petitioner, Anthony K. Goods, appeals the Lake County Circuit Court’s dismissal of his petition for habeas corpus relief. We affirm in part and reverse in part.

The petitioner, Alfonzo Williams, appeals the post-conviction court’s summary dismissal of his petition for post-conviction relief, alleging that the post-conviction court erroneously found that his petition was barred by the statute of limitations. Upon our review of the record and the parties’ briefs, we reverse the post-conviction court’s summary dismissal of the petition and remand for further proceedings consistent with this opinion.

The Petitioner, Leslie Lamont Coleman, appeals the trial court's dismissal of his petition for post conviction 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. The Petitioner filed his petition outside the statute of limitations. Accordingly, the State's motion is granted, and the judgment of the trial court is affirmed.

The Petitioner, Joe Bobby Yarbro, appeals the trial court's denial of his petition for postc-onviction 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 the petition for post-conviction relief is time-barred by the statute of limitations, we grant the State's motion and affirm the judgment of the lower court.

The Petitioner, Donzel A. Watson, appeals the trial court's dismissal of his petition for post conviction 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. The Petitioner filed his petition outside the statute of limitations. Accordingly, the State's motion is granted, and the judgment of the trial court is affirmed.

The Petitioner, Johnny Proffitt, appeals the trial court's dismissal of his petition for post conviction 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. The Petitioner cannot collaterally attack his probation revocation order. Moreover, the petitioner filed his petition outside the statute of limitations. Accordingly, the State's motion is granted, and the judgment of the trial court is affirmed.

The petitioner, James Marvin Martin, appeals the denial of his petition for post-conviction relief, arguing that the post-conviction court erred in finding that his claim was beyond the statute of limitations. After careful review, we affirm the denial of the petition.

The petitioner appeals theMadison County Circuit Court’s denial of post-conviction relief. Because the post-conviction court had no jurisdiction to rescind its earlier grant of post-conviction relief, we reverse.

The defendant, Christopher David Hodge, appeals his conviction of second degree murder. The defendant alleges that the evidence was insufficient to support the conviction and that the trial court erred in disallowing discovery of certain information relevant to preparation of a defense. From our review, we conclude there is no reversible error and affirm the conviction.

The Defendant, Lalon R. Davenport, pled guilty to one count of violating the Motor Vehicle Habitual Offender Act. Pursuant to Tennessee Rule of Criminal Procedure 37, the Defendant reserved as a certified question of law the issue of whether the three-year time period articulated in the Habitual Offender Act bars prosecution for violating the Act after the time period has expired. We conclude that such prosecution is not barred by the Act, and the judgment of the trial court is therefore affirmed.

The Petitioner, David E. Garrison, appeals the trial court's dismissal of his petition for post conviction 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. The Petitioner filed his petition outside the statute of limitations. Accordingly, the State's motion is granted, and the judgment of the trial court is affirmed.

The majority concludes that modification of the defendant’s ten-year sentence is required in light of Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004). I must respectfully dissent.

The defendant, Jonathan B. Cutshaw, pleaded guilty in the Cocke County Criminal Court to one count of burglary, in violation of Tennessee Code Annotated section 39-14-402, and to one count of vandalism, in violation of Tennessee Code Annotated section 39-14-408. Pursuant to his plea agreement with the state, he accepted joint and several liability for restitution, along with others involved in the vandalism, and he received an effective sentence of three years, with the manner of service of the sentences to be determined by the trial court. After a sentencing hearing, the trial court ordered the defendant to serve his sentences in confinement and to pay restitution. It is from this order that the defendant appeals. We modify the judgment of the trial court as to manner of service of the sentences and remand for further findings regarding the appropriate amount of restitution.

The defendant, Bryant Dunn, pled guilty to theft over one thousand dollars, a Class D felony, and the Sullivan County Criminal Court sentenced him to two years incarceration in the Department of Correction. The defendant appeals, claiming that the trial court erred by denying him probation or alternative sentencing. We affirm the trial court.

The defendant, Robbie Chet Walley, was convicted of possession of drug paraphernalia and was sentenced to eleven months, twenty-nine days, all suspended except for sixty days. On appeal, he argues that the trial court erred in denying alternative sentencing. Based upon our review, we affirm the judgment of the trial court.

The Defendant, Bobby Northcutt, pled guilty to two counts of rape of a child, and the trial court sentenced him to twenty-five years in prison on each count, ordering the sentences to run consecutively. The Defendant appeals his sentence, contending that the trial court: (1) improperly failed to apply one mitigating factor; (2) improperly applied two enhancement factors; and (3) erred when it ordered that his sentences run consecutively. Finding that reversible error exists, we reverse the judgments of the trial court and remand the case for resentencing.

The defendant was convicted of driving under the influence ("DUI"), first offense, and sentenced to eleven months, twenty-nine days in the county jail, with all but forty-eight hours suspended and the balance to be served on probation. In addition, his driver's license was suspended for one year and he was ordered to pay a fine of $350. In his appeal, the defendant argues that the trial court should not have allowed the jury to compare his signature from the morning of the arrest with his signature from another day for the purpose of inferring impairment. Following our review, we affirm the judgment of the trial court.

The appellant, Larry F. Litton, was indicted on charges of rape in violation of Tennessee Code Annotated section 39-13-503. A jury found the appellant guilty of the lesser-included offense of sexual battery and recommended a $3,000 fine. The appellant was sentenced to a one-year sentence as a Range I Standard Offender, but the trial court ordered the appellant to serve two years on probation in lieu of incarceration. The trial court also imposed the $3,000 fine recommended by the jury. After the denial of a motion for new trial, this appeal ensued. The appellant challenges: (1) the trial court's decision to allow the testimony of Dr. Scott Levine in which he recounted a conversation with the victim that occurred several weeks after the incident; (2) the trial court's instruction to the jury that a tape-recorded conversation between the victim and the appellant was an "alleged admission;" and (3) the sufficiency of the evidence. For the following reasons, we affirm the decision of the trial court.

The petitioner, Steve Edward Leach, entered pleas of guilt to first degree murder and rape of a child. The trial court imposed consecutive sentences of life imprisonment without the possibility of parole and 25 years, respectively. There was no direct appeal of the conviction or sentence. Later, the petitioner was denied his application for post-conviction relief. This court affirmed. Steven Edward Leach v. State, No. M1999-00774-CCA-R3-PC (Tenn. Crim. App., at Nashville, Feb. 16, 2001). Counsel for the petitioner failed to make a timely application for permission to appeal to the supreme court and our supreme court denied a request to waive the 60-day period of limitation as prescribed by Tennessee Rule of Appellate Procedure 11. By motion, the petitioner then applied for relief in the post-conviction court. The post-conviction court found that the petitioner was not at fault for failing to timely file a Rule 11 application but denied relief based upon lack of jurisdiction. In this appeal, the petitioner has asked this court to vacate and re-enter its judgment filed February 16, 2001, in Cause No. M1999-00774-CCA-R3-PC. Because our supreme court has ruled under similar circumstances that the petitioner was not entitled to the effective assistance of counsel and was not denied due process of law, the judgment is affirmed.

The defendant, Gregory Fairbetter, was charged with driving under the influence and violating the implied consent law. The defendant filed a motion to dismiss, arguing that because the videotape of his arrest had been destroyed by the state, he could not receive a fair trial. The trial court agreed and dismissed the driving under the influence charge. In this appeal, the state asserts that the trial court erred. The judgment of the trial court is reversed and the cause is remanded.

The defendant, Randy David Miles, was convicted by a Franklin County Circuit Court jury of two counts of aggravated rape, a Class A felony, and aggravated kidnapping, a Class B felony, for his participation with a codefendant, Gary Allen Phillips, Jr., in grabbing a woman from the street in Northern Alabama and transporting her by car to the defendant's grandmother's abandoned farmhouse in Huntland, Tennessee, where the defendant raped her while his codefendant watched. The defendant was sentenced by the trial court as a Range I, standard offender to concurrent terms of eleven years, nine months for the aggravated kidnapping conviction and twenty-four years, six months for each of the aggravated rape convictions, for an effective sentence of twenty-four years, six months. His Tennessee sentences were ordered to be served concurrently to his Alabama sentence for kidnapping. On appeal, he challenges the sufficiency of the evidence, the State's failure to make a proper election of offenses, and the sentences imposed by the trial court. Following our review, we conclude that one of the aggravated rape convictions is invalid because the facts upon which the State relied to support the separate convictions constitute only one offense. Accordingly, we reverse one of the defendant's convictions for aggravated rape. We affirm the judgments as to the other aggravated rape conviction and the aggravated kidnapping conviction but modify the sentences to twenty-two years and nine years, respectively.

This is a direct appeal from a conviction of facilitation to commit felony murder. The defendant, Zina Beth Finnell, was indicted for felony murder by a Davidson County Grand Jury in connection with the murder of her step-father during the commission of an aggravated burglary. A jury convicted the defendant of facilitation to commit felony murder, and the trial court sentenced her to 21 years. On appeal, the defendant argues two issues: (1) the trial court erred in denying the defendant's motion to suppress her statement to the police, and (2) there was insufficient evidence to find the defendant guilty of facilitation to commit felony murder. We affirm the judgment of the trial court.