APPELLATE COURT OPINIONS

The petitioner, Terry Penny, appeals the post-conviction court's denial of his motion for a corrected judgment and his petition for post-conviction relief arguing his 1976 judgment should be corrected pursuant to Tennessee Rule of Criminal Procedure 36 and his post-conviction petition was not time- barred by the statute of limitations. Following our review, we affirm the post-conviction court.

The defendant, Charles Edward Greer, was convicted of three counts of sale of more than 0.5 grams of cocaine and three counts of delivery of more than 0.5 grams of cocaine, all Class B felonies. The trial court merged the three convictions for delivery of cocaine into the accompanying convictions for the sale of cocaine and imposed concurrent, Range I sentences of eight years on each. In this appeal as of right, the defendant challenges the sufficiency of the evidence. The judgments are affirmed.

The Appellant, Romelus Caraway, was convicted by a Shelby County jury of aggravated perjury.  On appeal, Caraway argues that the evidence is insufficient to support his conviction. After review, we conclude that the proof fails to establish that Caraway’s perjurious testimony was material to the proceeding at which the testimony was presented. Because materiality is an essential element of the offense of aggravated perjury, we reduce Caraway’s conviction to reflect a conviction for the lesser included offense of simple perjury.

The trial court terminated the parental rights of the incarcerated father of a seven year old boy. The father argues on appeal that he was deprived of due process because he was not notified of an earlier dependency and neglect proceeding and because he did not receive effective assistance of counsel during the termination proceeding. He also claims that the petitioners failed to prove by clear and convincing evidence that it was in his son's best interest that his parental rights be terminated. We affirm the trial court.

This appeal concerns a dispute among six siblings over the validity of their father's will. One month after his father's death, the youngest child filed a petition in the Chancery Court for Williamson County to probate a will his father had executed in July 1998. The testator's five older children contested this will on the grounds that their father lacked testamentary capacity and that the youngest child had procured the will by undue influence. Following a three day trial, a jury determined that the July 1998 will was invalid. After the trial court denied his post-trial motions, the youngest child appealed, taking issue with several evidentiary rulings, the adequacy of the instructions, and the evidentiary foundation for the verdict. We have determined that the trial court did not commit reversible error during the trial and that the record contains material evidence that the youngest child procured his father's July 1998 will by undue influence. We have also concluded that the trial court erred by requiring the estate to pay the youngest child's attorney's fees.

Petitioner, Joseph Hough, appeals from the post-conviction court's summary dismissal of his pro se petition for post-conviction relief because the petition did not include a proper verification under oath. After a thorough review, we conclude that the circumstances in this case warrant allowing Petitioner the opportunity to amend his petition pursuant to Tennessee Code Annotated section 40-30-106(d). The judgment of the trial court is reversed and the case remanded for further proceedings.

The defendant, Claude Francis Garrett, appeals his Davidson County Criminal Court jury conviction of first degree felony murder, which resulted in a sentence of life imprisonment. On appeal, he claims that (1) the convicting evidence was insufficient; (2) three prosecution witnesses presented false testimony; (3) the trial court erred in admitting expert testimony; (4) the trial court erroneously instructed the jury on various points of law; (5) the trial court erred in failing to require a witness to answer defense counsel's questions on cross-examination; (6) the trial court erred in denying the defendant's motion for the payment of travel expenses for a non-resident witness; (7) the state withheld exculpatory evidence; and (8) he was denied due process of law. Following our review, we affirm the conviction.

Aggrieved of the Davidson County Circuit Court's summary dismissal of his petition for habeas corpus relief, the petitioner, Danny Ray Meeks, appeals. The habeas corpus court dismissed the petition because the petitioner did not make a partial payment of the filing fee as required by Code section 41-21-807. Although we believe that the court acted precipitantly, we affirm the order of dismissal on the basis that the petition fails to establish a claim for habeas corpus relief.

The defendant, Kenneth Ray Brasher, was convicted of theft of property under $500, a Class A misdemeanor, and sentenced to eleven months, twenty-nine days to be served consecutively to a prior sentence. His sole issue on appeal is whether the trial court erred in denying his motion for judgment of acquittal. Following our review, we affirm the judgment of the trial court.

This is the second appeal of this legal malpractice action. The trial court initially denied appellee/attorney’s motion for summary judgment and this Court, in Crafton v. Van den Bosch, No. W2002-00679-COA-R9-CV, 2003 WL 327515 (Tenn. Ct. App. June 30, 2003), affirmed the trial court and remanded the matter for further proceedings. Upon remand, the appellee/attorney filed a second Motion for Summary Judgment on the grounds that appellant’s cause of action was time-barred based upon the applicable statute of limitations found at T.C.A. §28-3-104(a)(2). The trial
court granted appellee/attorney’s motion. We affirm.

Aggrieved of his Davidson County Criminal Court conviction of driving under the influence (DUI), a class A misdemeanor, the defendant, Robert G. Laney, appeals and claims only that the evidence of his physical control of the motor vehicle was insufficient to support his conviction. We disagree and affirm the conviction.

This is a quiet title and ejectment action. The plaintiff filed this lawsuit to quiet title to residential property and obtain a court order requiring the defendant to vacate the premises. The defendant asserted adverse possession as an affirmative defense, and filed a counter-claim arguing the existence of a constructive trust. During the trial, the plaintiff testified about a conversation with the defendant’s grandmother, deceased by the time of trial, in which the plaintiff agreed to permit the defendant’s grandmother to stay in the house if she paid the note and maintained the property. The trial court entered a judgment in favor of the plaintiff and dismissed the defendant’s countercomplaint.  The trial court found that the plaintiff filed the lawsuit within the applicable limitations period, and that the evidence did not support the imposition of a constructive trust or any other equitable relief. The defendant appeals. We affirm.

The Petitioner, Charles Damien Darden, appeals the lower court’s denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner has failed to allege any ground that would render the judgment of conviction void. Accordingly, we affirm the trial court’s dismissal.

The Petitioner, Vanory Askew, pled guilty to intent to sell or deliver 300 grams or more of cocaine, and one count of possession of a deadly weapon with intent to employ it in the commission of an offense, and he was sentenced to eighteen years. Subsequently, the Petitioner pled guilty to possession of cocaine in an amount under .5 grams and was sentenced to four years in the Department of Correction to be served concurrently with his previous sentence. The Petitioner filed a petition for a writ of habeas corpus, alleging that: (1) the trial court erred by summarily dismissing the his pro se petition for writ of habeas corpus and denying his request for the appointment of counsel; and (2) the concurrent sentence he received for his 2003 conviction was illegal, because he was on parole at the time of the offense. The trial court dismissed the petition, and we reverse the judgment of the trial court, and remand the case for the appointment of counsel, and for further proceedings consistent with this opinion.

We granted this interlocutory appeal prior to the defendant's retrial for felony murder to address the following issue: whether the defendant may contest his guilt as to the felony underlying the felony murder charge where the felony conviction for aggravated burglary was affirmed on direct appeal but the felony murder conviction was reversed. The trial court found that the defendant was prohibited from challenging his guilt as to the underlying felony of aggravated burglary because that conviction was final. The Court of Criminal Appeals concluded, however, that the doctrine of collateral estoppel does not prevent the defendant from contesting his guilt as to the underlying felony of aggravated burglary during the retrial for the charge of felony murder. After reviewing the record and applicable authority, we conclude that the use of collateral estoppel by the prosecution against the defendant to establish an essential element of the charged offense violates the right to trial by jury under article I, section 6 of the Tennessee Constitution. We further conclude, however, that the prosecution is permitted to introduce evidence of the prior conviction of aggravated burglary if the trial court determines that its probative value is not substantially outweighed by the risk of unfair prejudice to the defendant. Accordingly, we affirm the Court of Criminal Appeals' judgment, and we remand to the trial court to hold the retrial consistent with the principles in this opinion.

We accepted review of this cause under the Tennessee Rules of Appellate Procedure, Rule 11, in order to address a question properly preserved and certified pursuant to the provisions of the Tennessee Rules of Criminal Procedure, Rule 37(b)(2). The question, as certified, is: "Whether the search warrant and accompanying affidavit that led to the search of the defendant's residence violated the United States and Tennessee Constitutions as well as Tennessee Rule of Criminal Procedure 41(c), so as to render all of the evidence seized pursuant thereto, illegal and inadmissible."

In our painstaking review of the record, we have determined that the search warrant was not issued in accordance with the requirements of the Tennessee Rules of Criminal Procedure, specifically Rule 41(c). Thus, we are constrained to hold the search conducted pursuant to the warrant unreasonable and the evidence obtained as a result inadmissible. Accordingly, the judgment of the Court of Criminal Appeals, affirming the trial court's judgment on other grounds is reversed, and the indictment in this case is dismissed.

Stockholders of an insolvent corporation sought disbursement of corporate funds remaining on deposit with the trial court. The trial court determined that stockholder-creditor should be repaid prior to splitting the excess funds equally between stockholders. Stockholder appealed and we affirm the decision of the trial court in all respects.

We granted permission to appeal in this case pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure to determine whether the Court of Criminal Appeals erred in vacating the defendant’s conviction. The defendant, Thomas Poston Studdard, was indicted for three counts of rape of a child. To this original indictment he entered a negotiated plea of guilty to the charge of incest and was sentenced to a term of eight years as a Range II multiple offender. Pursuant to Rule 35(b) of the Tennessee Rules of Criminal Procedure, he filed a motion seeking correction or reduction of his sentence. Following a hearing, the trial court overruled the motion, and he appealed. Without addressing the defendant’s stated concern, the Court of Criminal Appeals, ostensibly using the plain error doctrine, vacated the judgment of conviction on the grounds that incest is not a lesser included offense of child rape and because the record failed to reflect that the indictment had been amended. The intermediate court reinstated the original indictment and remanded the case. Because we conclude that the trial court had jurisdiction to accept the plea and because the criteria for plain error have not been met, we reverse the judgment of the Court of Criminal Appeals, reinstate the conviction for incest, and remand the case to the Court of Criminal Appeals for consideration of the defendant’s sentencing issues.

The Petitioner, Marvin Anthony Matthews, appeals the lower court’s denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner has failed to allege any ground that would render the judgment of conviction void. Accordingly, we affirm the trial court’s dismissal.

This is a Title IV child support case. The State appeals from the trial court’s Order forgiving  Father/Appellee’s child support arrears because Father/Appellee allegedly made support payments directly to the mother. The trial court made no findings to support a deviation from the child support guidelines as required by T.C.A. §36-2-311 (Supp. 2004). Consequently, we reverse and remand.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. § 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff alleges that his employment subjected him to heavy metal dust which decreased his pulmonary function. The defendant says that the decreased pulmonary function, if any, was caused by smoking forty cigarettes a day for forty-five years, and pleads the statute of limitation of one year, and lack of proof of causation. The trial court awarded benefits based on a finding of 40 percent permanent partial disability. We reverse and dismiss.

The petitioner, James T. Spurling, appeals the post-conviction court's summary dismissal of his pro se petition as untimely. Because the petitioner's claims, when taken as true, allege attorney misrepresentation concerning the filing of a post-conviction petition, we conclude that an evidentiary hearing is necessary to determine: (1) whether due process tolled the limitations period because counsel did, in fact, assure the petitioner that he would continue his representation through the filing of a post-conviction petition; and if so, (2) whether the petitioner was within the reasonable opportunity afforded him by due process. Therefore, we reverse the post-conviction court's dismissal of the petition and remand the matter for an evidentiary hearing.

We have before us the defendant's appeal in this case pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure, and we granted the application in order to determine whether the trial court had authority, following imposition of an agreed sentence, to grant the defendant judicial diversion. Because judicial diversion was not included in the agreement, we conclude that the trial court lacked authority to alter the plea agreement. Additionally, once the judgments of "guilty" were entered, the trial court was precluded from granting judicial diversion because judicial diversion must be granted, if at all, "without entering a judgment of guilty." Accordingly, we affirm the judgment of the Court of Criminal Appeals.

The defendant, Ronnie Misher, was convicted of three counts of burglary of a vehicle and three counts of theft under $500. See Tenn. Code Ann. § 39-14-402(a)(4), - 103, -105(1) (2003). The trial court imposed a sentence of six years for each burglary conviction and a sentence of eleven months
and twenty-nine days for each theft conviction. The trial court ordered that two of the burglary sentences be served consecutively and the remainder of the sentences be served concurrently, for an effective sentence of twelve years. In this appeal, the defendant asserts that the evidence was insufficient and that the trial court erred by imposing consecutive sentences. The judgments of the trial court are affirmed.

This appeal involves the Tennessee Regulatory Authority’s consideration of a tariff filed by BellSouth Telecommunications, Inc. A group of competing telecommunications providers and the Consumer Advocate and Protection Division of the Office of the Attorney General filed petitions to suspend the proposed tariff and to open a contested case proceeding because the tariff was discriminatory and anti-competitive. The Authority considered the proposed tariff and the requests for a contested case proceeding at three conferences. After BellSouth amended the tariff to meet several of the objections of its competitors and the Consumer Advocate and Protection Division, the Authority, by divided vote, declined to suspend the tariff or to convene a contested case proceeding and permitted the revised tariff to take effect. On this appeal, the Consumer Advocate Division and the competing telecommunications providers assert that the Authority erred by refusing to open a contested case proceeding regarding their objections to the revised tariff. They also insist that the Authority’s approval of the tariff is not supported by substantial and material evidence. We have determined that the Authority abused its discretion by refusing to open a contested case proceeding to resolve the contested issues regarding whether the revised tariff was discriminatory and anticompetitive.