APPELLATE COURT OPINIONS

The appellant, Douglas C. Carr, pled guilty in the Shelby County Criminal Court to one count of driving while an habitual motor vehicle offender. Pursuant to the plea agreement, the petitioner was sentenced as a standard Range I offender to eighteen months incarceration in the Shelby County Correction Center with the manner of service to be determined by the trial court. The trial court denied the appellant alternative sentencing, and, on appeal, the appellant raises the following issue for our review: whether the trial court erred in denying the appellant alternative sentencing. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

The defendant appeals, via certified question of law, the trial court's denial of his motion to suppress cocaine seized as a result of a warrantless search of the defendant's pockets. Because the officer made a lawful full custodial arrest of the defendant and searched the defendant incident to this lawful full custodial arrest, we affirm the trial court's denial of the defendant's motion to suppress.

The petitioner, Marcus D. Polk, pled guilty in the Shelby County Criminal Court to criminal attempt to commit first degree murder, especially aggravated robbery, and first degree murder and received a total effective sentence of life imprisonment plus twenty years. Subsequently, the petitioner filed a petition for post-conviction relief alleging the ineffective assistance of his plea counsel, which petition was denied by the post-conviction court. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

The petitioner was originally convicted by a Shelby County jury of rape of a child. The conviction was affirmed on direct appeal. The petitioner sought post-conviction relief, which was denied by the post-conviction court. In this appeal as a matter of right, the petitioner contends that his trial counsel provided ineffective assistance of counsel. After a thorough review of the record, we conclude that the trial court correctly denied post-conviction relief.

The defendant appeals his convictions for first degree felony murder, especially aggravated kidnapping, and conspiracy to commit felony murder. After careful review, we conclude that the evidence is sufficient to support the defendant's convictions for first degree felony murder and especially aggravated kidnapping. Further, we hold that conspiracy to commit felony murder is not a recognizable offense in Tennessee. Therefore, we affirm the defendant's convictions for first degree felony murder and especially aggravated kidnapping. We reverse and dismiss the defendant's conviction for conspiracy to commit felony murder.

Petitioner, James Richard Bishop, was convicted of felony murder, especially aggravated kidnapping and aggravated burglary. Following a sentencing hearing, Petitioner was sentenced to life imprisonment for the felony murder and concurrent sentences of twenty years and five years respectively for the especially aggravated kidnapping and aggravated burglary. On appeal, this Court affirmed the judgment of the trial court. State v. James Richard Bishop, No. 03C01-9308-CR-00268, 1994 Tenn. Crim. App. LEXIS 536, at *1, Knox County (Tenn. Crim. App., Knoxville, August 18, 1994), perm. to appeal denied (Tenn. 1994). Petitioner filed a Petition for Post-Conviction Relief in the Knox County Criminal Court, which the post-conviction court subsequently denied. He challenges the denial of his petition, raising the following issue: whether the trial court erred in dismissing his Petition for Post-Conviction Relief, based upon a ruling that Petitioner's allegations of ineffective assistance of counsel were without merit. Based upon our review of the record and the parties' briefs, we affirm the judgment of the trial court.

The Defendant, Laverne Long, entered a guilty plea to reckless homicide, a Class D felony, in exchange for a two year sentence as a Range I, standard offender. Following an evidentiary hearing on the Defendant's motion to suspend her sentence, the trial court denied alternative sentencing. The Defendant now appeals as of right from the denial of alternative sentencing. We find no error; thus, we affirm the judgment of the trial court.

The petitioner was originally convicted by a Shelby County jury of first degree murder and received a sentence of life imprisonment. His conviction was affirmed on direct appeal. The petitioner filed a pro se post-conviction petition, counsel was appointed, and the petition was denied. In this appeal, the petitioner alleges that this matter should be remanded to the post-conviction court for a new hearing since he was unable to present his claim for relief. After a thorough review of the record, we conclude that the petitioner is entitled to a new post-conviction hearing.

The defendant was indicted for attempted first degree murder. A Shelby County jury convicted the defendant of the lesser-included offense of attempted voluntary manslaughter, and the trial court sentenced him to four years imprisonment. In this appeal, the defendant alleges: (1) his insanity defense was established by clear and convincing evidence; (2) the trial court erroneously admitted statements made by the defendant and a weapon seized from his vehicle; (3) the trial court erroneously restricted the testimony of a psychiatrist by disallowing his statement that the defendant was committable if found not guilty by reason of insanity, while allowing him to testify that the defendant stated he believed he would be free to go home within 60 to 90 days if adjudicated not guilty by reason of insanity; (4) the trial court erroneously allowed the state to call a psychiatrist because the defense was not notified pre-trial that he would be an expert witness; (5) the trial court improperly found that a psychiatrist was qualified to testify as an expert; and (6) the trial court erroneously refused the defendant's request to have the opening and rebuttal closing arguments.  After a through review of the record, we reverse the judgment of conviction, modify the judgment to “Not Guilty by Reason of Insanity,” and remand for further proceedings pursuant to Tenn. Code Ann. § 33-7-303.

After a jury trial, Defendant, Darrin Bryant, was convicted of attempted first degree murder. Subsequently, he was sentenced to twenty-five (25) years, Range I, Standard Offender in the Department of Corrections. In this appeal as of right, Defendant asserts that the trial court erred in sentencing Defendant to the maximum sentence of twenty-five (25) years by inappropriately applying an enhancement factor; and the State failed to present sufficient evidence to justify a rational trier of fact in finding beyond a reasonable doubt, that the assault was an attempt to commit premeditated murder. We conclude that the evidence was sufficient to support the conviction and that the trial court did not err in sentencing Defendant to the maximum of twenty-five (25) years in the Department of Corrections.

The defendant was convicted of second degree murder by a Shelby County jury in the shooting death of his girlfriend. He was sentenced to twenty years as a standard offender, with his sentence to be served without parole eligibility in the Tennessee Department of Correction. In this appeal as of right, the defendant raises one issue: whether the trial court erred in admitting the testimony of the mother of the victim concerning a prior alleged assault on the victim by the defendant. We conclude that the evidence was admissible, having satisfied all three conditions for admissibility of evidence of prior bad acts pursuant to Tennessee Rule of Evidence 404(b)(1)-(3). The judgment of the trial court is affirmed.

I join with Judge Ogle in concluding that the Appellant's double jeopardy rights were not violated. I would also make the observation that, similar in purpose to the DUI statute, the stated public policy purpose in enacting the Motor Vehicle Habitual Offender Act was to remove from the highways those offenders who have "demonstrated their indifference to the safety and welfare of others." Tenn. Code Ann. § 55-10-602(2).

The defendant, David Scarbrough, was convicted of two counts of felony murder, two counts of theft, and aggravated burglary. The trial court imposed sentences of life imprisonment with the possibility of parole for each of the murders, a sentence of six years for the aggravated burglary and sentences of 11 months, 29 days for each of the thefts. All sentences are to be served consecutively. In this appeal of right, the defendant presents the following issues for review: (1) Whether the evidence was sufficient to support the convictions; (2) whether the defendant's statement to police was made knowingly and voluntarily; (3) whether the trial court erred by denying the defendant's challenge for cause of a juror; (4) whether the trial court erred by denying defendant's motion for continuance; (5) whether the trial court erred by refusing a jury instruction on facilitation of felony murder; (6) whether the trial court erred by admitting photographs of the crime scene; (7) whether the trial court erred by refusing to permit a private investigator to testify; (8) whether the trial court properly refused to allow the testimony of a psychologist during the guilt phase of trial; (9) whether the sentences were excessive; and (10) whether the trial court erred by denying the defendant's motion for a writ of error coram nobis based on newly discovered evidence. Because the trial court erred by failing to instruct on the lesser included offense of facilitation of felony murder and because such error was not harmless beyond a reasonable doubt, the felony murder convictions are reversed and the causes are remanded for a new trial. The remaining convictions are affirmed.

Daniel Thomason appeals from the aggravated robbery conviction he received at a jury trial in the Davidson County Criminal Court. Thomason is serving an eight-year sentence in the Department of Correction for his crime. In this appeal, he challenges the sufficiency of the convicting evidence that he accomplished the robbery “by display of any article used or fashioned to lead the victim to reasonably believe it to be a deadly weapon.” Because the record before us is does not contain all of the relevant evidence presented at trial, we are precluded from reviewing the sufficiency of the evidence and therefore affirm.

The Defendant, Michael Thomas, appeals as of right from the denial of post-conviction relief after an evidentiary hearing. On appeal, he asserts that his guilty plea was not knowing and voluntary and that he was denied the effective assistance of counsel. We find no merit to the Defendant's assertions; thus, we affirm the judgment of the trial court.

The defendant, Kelly Layne, appeals his conviction for selling a counterfeit controlled substance, a Class E felony, for which he was sentenced to one year, eight months, all but ninety days to be served in a community corrections program, and fined $2,500. He contends that venue was not proven and that his sentence is excessive. We affirm the conviction and sentence, except we reduce the fine to $1,500.

The appellant, Russell Allen, was convicted in the Maury County Circuit Court of one count of aggravated sexual battery and was sentenced as a Range I offender to eight years incarceration in the Tennessee Department of Correction. On appeal, the appellant raises the following issue for our review: whether the trial court erred in failing to grant the appellant a new trial based upon newly discovered evidence. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

The Defendant pled guilty without a plea agreement to theft of property valued at more than $500.00 and to identity theft. Following a sentencing hearing, the trial court sentenced her to concurrent sentences of one year incarceration for the theft of property conviction and three years incarceration for the identity theft conviction. In this appeal as of right, the Defendant argues that the trial court should have granted her some form of alternative sentencing. Because we conclude that the sentence imposed is adequately supported by the record, we affirm the judgment of the trial court.

The defendant, James L. Hunsaker, was charged with ten counts of rape of a mentally defective victim, Class B felonies, in violation of Tenn. Code Ann. § 39-13-503. The defendant filed a motion to dismiss the first nine counts of the indictment, involving offenses alleged to have occurred between the autumn of 1992 and the spring of 1994, as barred by the statute of limitations. The trial court ruled that concealment was inherent in the victim’s mental defect and that the statute of limitations was tolled. See Tenn. Code Ann. § 40-2-101. The defendant filed a motion for interlocutory appeal to this court. Because the first nine counts of the indictment are barred by the statute of limitations, the judgment of the trial court is reversed. Each of the nine counts is dismissed.

The Appellant, Jeffrey Scott Petty, was indicted by a Bedford County Grand Jury for one count of driving under the influence. On May 30, 2000, a jury convicted the Appellant of DUI, first offense, a class A misdemeanor. On that same day, the trial court sentenced the Appellant to eleven months, twenty-nine days, all suspended except for thirty days incarceration. The trial court further ordered that the thirty days be served periodically on weekends. On appeal, the Appellant raises one issue for our review: Whether the trial court properly ordered the Appellant to serve thirty days of his eleven month, twenty-nine day sentence in periodic incarceration. Upon review, we find no error. Thus, the judgment of the Bedford County Circuit Court is affirmed.

The petitioner, Daniel M. Banks, appeals the trial court's denial of his petition for post-conviction relief. Because the petitioner was provided the effective assistance of counsel and knowingly and voluntarily entered his pleas of guilt to possession of marijuana with intent to sell, possession of over 0.5 grams of cocaine with intent to sell, and possession of drug paraphernalia, the judgment is affirmed.

The defendant appeals from the trial court's denial of probation or some other form of alternative sentencing. After a review of the record, we affirm the trial court's judgment.

The defendant, Latroy W. Askew, appeals from the order of the Knox County Criminal Court which revoked Defendant's probation and required him to serve his sentence in the Tennessee Department of Correction. Having reviewed the record and the briefs submitted by the parties, we affirm the judgment of the trial court.

The sole issue in this appeal is whether the trial court erred when it admitted into evidence a booking record purportedly containing the defendant's fingerprints. The defendant contends that the booking record is hearsay and not admissible under the business records exception to the hearsay rule. After a thorough review of the record, we conclude that the introduction of the defendant's booking record into evidence was proper as a business record. The judgment of the trial court is affirmed.

In September 1991, the Defendant pled guilty to aggravated assault and possession of a weapon with intent to employ it in the commission of aggravated assault. The Defendant was sentenced to six years for the aggravated assault conviction and to two years for the weapon conviction. The sentences were to run consecutively, for an effective sentence of eight years, with six months to be served in jail and the remainder to be served on intensive probation. Following several probation violation reports, the trial court revoked the Defendant's probation. The Defendant now appeals, arguing that the trial court erred in revoking his entire eight-year probated sentence when his six-year sentence had expired prior to the issuance of the probation revocation warrant. Finding that the probation revocation warrant was not timely filed as to the aggravated assault conviction, we reverse the judgment of the trial court revoking the Defendant's probation for that count. Finding that the probation revocation warrant was timely filed as to the weapons conviction, we affirm the judgment of the trial court revoking the Defendant's probation for that count.