APPELLATE COURT OPINIONS

The Appellant, Christopher Demotto Linsey, appeals from the judgment of the Montgomery County Circuit Court revoking his community corrections sentences. Linsey pled guilty to aggravated robbery, aggravated burglary, and theft of property over $1,000.00 and, for these convictions, he received an effective eight-year sentence to be served in the Community Corrections Program. On November 21, 2002, a warrant was issued, alleging that Linsey violated the terms of his community corrections agreement based upon new arrests for domestic assault and possession of illegal drugs for resale and of drug paraphernalia. Following a hearing, the trial court ordered revocation of his community corrections sentences, and further ordered that his sentence for aggravated robbery be increased to ten years and that he serve the remainder of his now effective ten-year sentence in the Department of Correction. On appeal, Linsey argues that (1) the evidence was insufficient to establish that a violation occurred, (2) the trial court, in resentencing him to ten years for aggravated robbery, failed to conduct a sentencing hearing as required by the 1989 Sentencing Act, and (3) his sentences are excessive in light of Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004). Finding no reversible error, the judgment of the trial court is affirmed.

I concur in the results of the opinion written by Judge Clement under the facts of this case and also concur in the holding that the method of presenting evidence to the trial court characterized as a “mediation” or an “Alternative Dispute Resolution Procedure” qualifies as neither under Tenn. S. Ct. R. 31.

I concur with the majority opinion in all respects save its treatment of the question whether the appellant waived his right to review alleged sentencing error vis-a-vis Blakely v. Washington, 542 U. S. ___, 124 S. Ct. 2531 (2004). First, a number of members of this Court, including the author of this concurring opinion, have concluded that Blakely review is not waived because the appellant failed to raise the issue at trial after Apprendi v. New Jersey, 530 U. S. 466, 120 S. Ct. 2348 (2000); was decided but before Blakely was decided, so long as the case was pending on direct appeal at the time of the Blakely decision. See e.g. State v. Ricky Grover Aaron, No. M2002-02288-CCA-R3-CD, 2004 WL 1533825 (Tenn. Crim. App. at Nashville, Jul. 8, 2004); State v. Charles Benson, No. M2003-02127-CCA-R3-CD, 2004WL2266801 (Tenn. Crim. App. at Nashville, Oct. 8,2 004); State v. Julius E. Smith, No. E2003-01059-CCA-R3-CD, 2004 WL 1606998 (Tenn. Crim. App. at Knoxville, July 19, 2004); State v. Michael Wayne Poe, No. E2003-00417-CCA-R3-CD, 2004 wl 1607002 (Tenn. Crim. App. at Knoxville, July 19, 2004). These cases rest on the proposition that Blakely establishes a new rule in this State with respect to sentencing, one that was not dictated by the existing precedent of Apprendi. State v. Ricky Gover Aaron, No. M2002-02288-
CCA-R3-CD, 2004 WL 1533825 (Tenn. Crim. App. at Nashville, Jul. 8, 2004); State v. Charles Benson, 2004 WL 2266801 at *8; see also Blakely v. Washington, 124 S. Ct at 2549-50 (O’Connor, J. Dissenting).

A Maury County Circuit Court jury convicted the defendant, Terrance Cecil, of possessing twenty-six grams or more of cocaine with intent to sell, a Class B felony, and the trial court sentenced him as a Range I, standard offender to ten years to be served in the Department of Correction. On appeal, the defendant contends that the evidence is insufficient to support his conviction. We affirm the judgment of the trial court.

In an appeal from a final decree of divorce, Wife challenges trial court’s classification,
valuation, and distribution of marital property, and husband challenges trial court’s award of alimony to wife. Wife contends that the trial court erred in several respects: in its classification and valuation of the parties’ marital residence; in failing to find that the appreciation of Husband’s separate property should be included in the marital estate; in its valuation of the automobile primarily driven by her; in failing to distribute certain marital assets and liabilities; and in failing to award her alimony in solido from husband’s separate estate. Husband contends that the court erred in awarding wife rehabilitative alimony for a period of seven years. Finding that the trial court erred in classifying and distributing themarital property, wecorrect the judgment of the trial court and make an equitable division of property.
 

The defendant appeals her conviction for first degree premeditated murder. On appeal, the defendant challenges the sufficiency of the evidence to support the conviction and contends that the trial court erred in disallowing cross-examination of an unavailable witness. We affirm the conviction.

The Appellant, David Ivy, appeals as of right his sentence of death resulting from the June 2001 murder of Lakisha Thomas. On January 10, 2003, a Shelby County jury found Ivy guilty of premeditated first-degree murder. Following a separate sentencing hearing, the jury unanimously found the presence of two statutory aggravating circumstances, i.e., Ivy had previously been convicted of a violent felony offense and the murder was committed to avoid prosecution. The jury further determined that these aggravating circumstances outweighed any mitigating circumstances and imposed a sentence of death. The trial court approved the sentencing verdict. Ivy appeals, as of right, presenting for our review the following issues: (1) whether the evidence was sufficient to establish his identity as the perpetrator, (2) whether the trial court improperly permitted hearsay statements of the victim to be admitted into evidence, (3) whether the trial court erred by impaneling an anonymous jury, (4) whether the trial court erred in refusing to permit the defense, during closing argument, to discuss the rationale behind the hearsay exclusion, (5) whether the trial court erred by preventing defense counsel from arguing “residual doubt” as a non-statutory mitigating circumstance, (6) whether the trial court erred by permitting the State to introduce evidence that Ivy had previously been charged with first degree murder, (7) whether the trial court’s instruction that Ivy’s prior offenses were offenses whose statutory elements involved the use of violence violated his right to trial by jury, (8) whether the death penalty imposed in this case violated due process because the indictment failed to allege the aggravators relied upon by the State, (9) whether the trial court erred in refusing to answer the jury’s questions as to the consequences if they were unable to reach an unanimous verdict as to punishment, and (10) whether Tennessee’s death penalty statutory scheme is unconstitutional. Finding no error requiring reversal, we affirm Ivy’s conviction and sentence of death.

This is a medical malpractice case. Appellants appeal from the trial court’s grant of summary judgment in favor of Appellees, a doctor and her employer. The trial court found that the affidavit of Plaintiffs/Appellants’ expert was inadmissible because it was filed after the deadline for identifying experts and that such late filing was not excusable neglect under Tenn. R. Civ. P. 6.02. We affirm.

The defendant, Anthony Davidson, appeals the trial court's order revoking his probation. The single issue presented for review is whether the trial court abused its discretion by ordering the remainder of the sentence to be served. The judgment is affirmed.

This case involves involuntary commitment to a mental institution. Paramedics were called to the plaintiff’s home by her roommate, and she was brought involuntarily to the hospital for evaluation. She was admitted to the emergency room and examined by the physician on duty. She was interviewed by a mental health clinician. The physician then went off duty and the defendant physician took charge. The defendant physician examined the patient’s chart, reviewed the history taken by the prior physician and the mental health clinician, and then signed a form committing the plaintiff to a mental institution. The form stated that the defendant physician had examined the plaintiff, but the plaintiff was examined only by the prior physician, who was no longer on duty. The plaintiff then sued the defendant physician for involuntarily committing her to a mental institution without personally examining her. The trial court granted summary judgment to the defendant physician, classifying the action as medical malpractice and finding that the plaintiff failed to offer competent expert proof as required under T.C.A. § 29-26-115. We affirm the grant of summary judgment as to claims of medical malpractice, and reverse the grant of summary judgment for the claims of negligence and false imprisonment, finding that T.C.A. § 36-6-402 requires that a physician or designated professional who commits a patient to a mental institution must first personally examine the patient, rather than relying exclusively on medical records or someone else’s examination of the patient. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed in Part and Reversed in Part
 

The Defendant, Jon Seiler, pled guilty to driving under the influence of an intoxicant (“DUI”), second offense. Pursuant to Tennessee Rule of Criminal Procedure 37, the Defendant reserved as a certified question of law the issue of whether the trial court erred when it denied his motion to suppress. Finding no error, we affirm the judgment of the trial court.

This is a post-divorce case. The parties were divorced in 1999. The judgment of divorce awarded Gloria J. Bevill ("Wife") alimony in futuro of $1,750, subject to provisions pertaining to the retirement of her then-former spouse, Ellis M. Bevill, Sr. ("Husband"). In specific terms, the judgment provided that upon Husband's retirement, he was entitled to reduce the amount of his alimony payment to $1,300, subject, however, to a stipulation in the judgment providing that Husband's post-retirement earnings could affect the amount of his obligation. Husband retired and, pursuant to the divorce judgment, unilaterally reduced the amount of his monthly alimony payments. In response, Wife filed a petition to interpret the divorce judgment and/or modify the spousal support award. The trial court interpreted the divorce judgment as permitting an upward modification of Husband's alimony obligation. Upon review of the evidence, the trial court subsequently increased Wife's alimony award to $1,900 per month, in addition to awarding her attorney's fees. It is from this order that Husband appeals. We affirm.

This appeal arises from a divorce action. Defendant/Dr. Halkaides appeals the trial court’s order dividing the parties’ property and debt and awarding Wife/Ms. Stohl alimony. He also asserts the trial court erred in finding Dr. Halkaides had dissipated the parties’ marital assets. We affirm as modified.

The majority concludes that modification of the defendant’s sentences for aggravated assault and theft are required in light of Blakely v. Washington, 542 U.S.___, 124 S. Ct. 2531 (2004).

Pamela K. Ginn ("Plaintiff") purchased a $50,000 life insurance policy on her husband through American Heritage Life Insurance Company ("American Heritage"). When applying for the insurance, Plaintiff told the insurance salesman, Daryle Gross ("Gross"), that her husband was in "basic good health." Plaintiff's husband died a few weeks after the life insurance went into effect. American Heritage denied Plaintiff's demand for the life insurance proceeds, claiming Plaintiff had materially misrepresented her husband's health. Plaintiff sued American Heritage and Gross ("Defendants"). The jury found Defendants breached their contract with Plaintiff. The jury also found that the refusal to pay was done in bad faith, assessing a 25% bad faith penalty. The jury also concluded Defendants had violated the Tennessee Consumer Protection Act ("TCPA") and assessed compensatory damages under the TCPA at $110,000, which was remitted by the Trial Court to $73,855.15. Pursuant to the TCPA, the Trial Court then trebled the damages and awarded attorney fees. When all was said and done, the amount of the judgment awarded to Plaintiff totaled $284,980.60. Both Plaintiff and Defendants appeal various aspect of the Trial Court's Judgment. The Judgment of the Trial Court is reversed in part and affirmed in part, and judgment is entered in favor of Plaintiff in the total amount of $73,415.15.

This case involves the demotion of an Air Crash Chief employed by the City of Memphis Fire Department following the revocation of his security clearance and driving privileges by the Memphis-Shelby County Airport Authority. Following his demotion, the Chief appealed the city’s decision to the City of Memphis Civil Service Commission. The civil service commission reversed the city’s ruling and held that the Chief must be reinstated. The city filed a common law writ of certiorari in the Chancery Court of Shelby County to appeal the finding of the civil service commission. The chancery court reversed, finding that the civil service commission exceeded its authority in reversing the city’s decision and reinstating the Chief. We affirm.
 

Defendant, Jeffery D. Hostetter, pled guilty to one count of furnishing intoxicating alcoholic beverages to a person under twenty-one years of age in violation of Tennessee Code Annotated section 39-15-404, a Class A misdemeanor, without a recommendation as to sentencing. Following a sentencing hearing, the trial court sentenced Defendant to eleven months, twenty-nine days, with fifty percent of the sentence to be served in confinement. On appeal, Defendant argues that the period of confinement imposed by the trial court is excessive and inconsistent with sentencing principles, and the trial court improperly applied enhancement factors and failed to apply appropriate mitigating factors. After a thorough review of the record, we affirm the judgment of the trial court.

This case involves a post-divorce custody dispute between the natural father and maternal grandparents and aunt of three children. The issue presented is whether the trial court erred in awarding custody to the grandparents and aunt when it made no finding in its order that an award of custody to the father posed a risk of substantial harm to the children. We hold that the record does not support such a finding of substantial harm, reverse the trial court's award of custody, and, pursuant to the father's constitutional right of privacy to rear and have custody of his children, we award the natural father custody and remand to the trial court to set appropriate visitation and support for the mother.

As part of a divorce, the trial court granted custody of the parties’ child to the mother, with visitation by the father. The father appealed, and this court affirmed the trial court. The father subsequently filed a petition to change custody. After lengthy proceedings brought on by various filings by the parties, the trial court ruled that it no longer had jurisdiction over the child’s custody. We affirm the jurisdictional ruling, making all other issues moot.

 

This appeal involves a dispute over the payment for leased construction equipment used on two sewer projects for the City of Gallatin. The general contractor was required to take over and complete the work after a subcontractor and sub-subcontractor defaulted. Thereafter, the company that had leased three pieces of construction equipment to the subcontractor and sub-subcontractor submitted claims for payment to the general contractor and the contractor's bonding company. The general contractor declined to pay for the equipment and filed suit for breach of contract against the subcontractor in the Circuit Court for Sumner County. The contractor also sought a declaratory judgment regarding its rights, as well as those of its bonding company, the subcontractor, and the City, under the construction contract, the subcontracts, and the payment bond. Following a two-day bench trial, the trial court awarded the equipment leasing company a $38,399 judgment against the bonding company and the sub-subcontractor and a $29,232 judgment against the subcontractor. The court also denied the equipment leasing company's request for pre-judgment interest because it had intentionally falsified documents during the collection process. The bonding company appealed. We have determined that the trial court erred by failing to dismiss all of the equipment leasing company's claims against the payment bond after expressly finding that the leasing company had committed fraud during the claims process. Accordingly, we reverse the judgment against the contractor's surety.

The petitioner, James William Parsons, Jr., appeals the summary dismissal of his petition for writ of habeas corpus. In 1999, he pled guilty to theft of property over $1000, arson, consuming alcohol while under the age of twenty-one, and possession of a weapon in the commission of an offense and was sentenced to an effective sentence of two years and one day, with all but 120 days to be served on probation. He was subsequently convicted on separate charges in federal court and sentenced to the federal penitentiary. The petitioner filed a petition for writ of habeas corpus in the Greene County Criminal Court, claiming that his state plea agreement was illegal and void and therefore it was improper for the federal court to use the state convictions to enhance his federal sentence. The trial court dismissed the petition without a hearing on the matter, and the petitioner appealed. Based upon our review, we affirm the judgment of the trial court.

The issue in this case is whether the Counter-Plaintiff may testify at trial regarding transactions and conversations with the deceased Counter-Defendant when the deceased Counter-Defendant's pre-trial discovery deposition had been taken, but was incomplete. We hold that the trial court, pursuant to the Dead Man's Statute, properly prohibited the Counter-Plaintiff from testifying about transactions and conversations with the deceased Counter-Defendant. Therefore, we affirm the ruling of the trial court and remand.

The defendant, Stacy McKinley Taylor, was convicted of aggravated assault, criminal impersonation, theft, speeding, and evading arrest he received following a jury trial in the Sullivan County Criminal Court. On appeal, he claims that the aggravated assault conviction is unsupported by sufficient evidence and that the trial court erred in sentencing him. Following our review of the record, the parties’ briefs, and the applicable law, we affirm the conviction of aggravated assault but modify the sentences.

Appellant/Homeowner appeals from the trial court’s grant of summary judgment in favor of Appellee/Homebuilder. Appellant/Homeowner sued Appellee/Homebuilder on theories of faulty installation and construction of Appellant/Homeowner’s roof and under the Tennessee Consumer Protection Act. The trial court found that Appellant/Homeowner’s claims were time barred under both T.C.A. §28-3-202 and T.C.A. §47-18-110. We affirm.

The Defendant, Jeffrey A. Utley, appeals from the dismissal of his petition for writ of habeas corpus. The trial court found that the petition did not set forth grounds which would entitle the Defendant to habeas corpus relief. The judgment of the trial court is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals.