APPELLATE COURT OPINIONS

The matter now before us finds its genesis in a divorce action brought by Ellen Hopson Bell ("Wife") against her husband, William Hall Bell ("Husband"). In her complaint for divorce, Wife sought, inter alia, reasonable attorney's fees. She renewed her request for fees at the conclusion of the divorce trial. Without conducting a hearing, the trial court ordered Husband to pay Wife $5,000, representing one half of her reasonable legal expenses incurred in the divorce. Husband appealed. We subsequently vacated the trial court's judgment, remanding the matter to the trial court for a hearing on the issue of Wife's entitlement to a fee award. The trial court conducted a hearing and subsequently ordered Husband to pay Wife $5,250 as an allowance on her legal expenses. Husband appeals. We affirm and hold that Wife is entitled to her fees and expenses incurred on appeal.

The state appeals from the Knox County Criminal Court's order granting Donald W. Streck's motion to receive jail credits toward his Tennessee sentence for time that he spent in federal custody serving federal sentences. Because the lower court did not have jurisdiction to entertain the motion, we reverse.

The Commissioner found defendant's physician breached the standard of care in the treatment of plaintiff, but refused to award damages. On appeal, we affirm Commissioner's finding of breach, but award damages and remand to enter Judgment.

Husband appeals property settlement award to wife in divorce action. On appeal, we affirm.

In this post-divorce case, Jeannette Cutrer Day Siniard ("Mother") sought to modify the parties' residential schedule pertaining to their children. That schedule provided that Caroline Siniard and Wesley Siniard (collectively "the children") would alternate weeks between Mother's home and the home of their father, Mark Alan Siniard ("Father"). The trial court granted Mother's request in part by designating her as the primary residential parent of Caroline. In a subsequent order granting Mother child support, the trial court went further and designated Mother as the primary residential parent of both children. Father appeals, contending, among other things, that Mother failed to show a material change in circumstances warranting a modification of the residential schedule. We affirm.

Action alleged retaliatory discharge for filing workers compensation claim. Employer defended termination on grounds employee was unable to perform his job due to disability. The Trial Court granted defendant summary judgment. We affirm.

In this dispute between attorney and client, a jury awarded the client damages against the attorney which award was approved by the Trial Court. On appeal, we affirm.

In this breach of contract action based on a policy of insurance, the Trial Court determined defendant had breached the contract and awarded compensatory damages, as well as punitive damages. On appeal, we reverse in part,  affirm in part, vacate and remand.

The petitioner appeals the dismissal of his petition for writ of habeas corpus, in which he contends that: (1) the State cannot maintain convictions on both murder and robbery when the murder was committed in the act of robbery; (2) the court lacked jurisdiction to sentence him because he did not plead to the charge of attempted second degree murder; and (3) the court erred in dismissing his petition without first appointing him counsel. After careful review, we affirm the dismissal of the petition.

The defendant, Roger Dale Cates, was convicted of driving under the influence, third offense. The trial court imposed a sentence of eleven months and twenty-nine days with one hundred twenty days to be served in jail and the balance to be served on probation. The defendant's driver's license was revoked for a period of three years. Because the trial court properly instructed the jury as to whether the defendant was in control of the vehicle, the judgment is affirmed.

The defendant, Allen Ken Kinney, III, entered pleas of guilt to two counts of sale of a controlled substance, .5 grams or more of a substance containing cocaine, a Schedule II drug. See Tenn. Code Ann. § 39-17-417(A)(3). The trial court imposed concurrent, Range I, eight-year sentences on each of the two Class B felonies, requiring twelve months in jail, less thirty-nine days of pretrial jail credit, with the balance to be served on probation.¹ The sentences were ordered to be served concurrently with a sentence imposed in Kentucky. In this appeal, the defendant complains that the term of incarceration was excessive. The judgments are affirmed.

The petitioner, Maria Maclin, was convicted by a Shelby County jury of second degree murder. The trial court sentenced the petitioner to twenty-two years in the Tennessee Department of Correction, and a ten thousand dollar fine was imposed. Following an unsuccessful appeal of her conviction, the petitioner filed a petition for post-conviction relief, alleging ineffective assistance of counsel at trial. The petitioner now brings this appeal challenging the post-conviction court’s denial of her petition. After reviewing the record and the parties’ briefs, we affirm the judgment of the postconviction court.

Homeowner’s insurance policyholders filed a complaint against an insurance carrier seeking benefits under policy and a declaratory judgment that policy language was ambiguous. Homeowners filed a motion seeking certification as a class action. The insurance carrier filed a motion for summary judgment, asserting that plaintiff Beckwith’s claim for benefits was time barred and plaintiff Simmons’s claim was non-justiciable. The insurance carrier filed separate motions to stay discovery and defer the class certification hearing until after the hearing on the motion for summary judgment, which the trial court granted. The trial court granted the insurance carrier summary judgment against all plaintiffs, thereby disposing of the class certification issue. Homeowners appeal from the order granting summary judgment. We affirm.
 

The defendant, Monty Earl Pickelsimer, entered negotiated pleas of guilt to theft of property having a value of more than $10,000.00 or more but less than $60,000.00 and theft of property having a value of more than $1000.00 more but less than $10,000.00. The plea agreement included concurrent Range I sentences of three years on each offense and certified a question of law for appeal as to whether the defendant was denied a speedy trial under the state and federal constitutions. Because the defendant was denied his right to a speedy trial, the judgment is reversed, the conviction is set aside, and the cause is dismissed.

The defendant, Earice Roberts, was convicted by a Shelby County Criminal Court jury of simple possession of marijuana, a Class A misdemeanor; possession of heroin with the intent to sell, a Class B felony; possession of heroin with the intent to deliver, a Class B felony; and two counts of assault, a Class A misdemeanor. After merging the possession of heroin with intent to sell conviction with the possession of heroin with the intent to deliver conviction, the trial court sentenced the defendant as a Range I, standard offender to twelve years for possession of heroin with the intent to deliver; eleven months, twenty-nine days for possession of marijuana; and eleven months, twenty-nine days for each assault. The trial court ordered that the marijuana sentence be served concurrently to the heroin sentence, but that the sentences for assault be served consecutively to each other and consecutively to the twelve-year sentence for possession of heroin, for a total effective sentence of thirteen years, eleven months, and twenty-nine days in the Department of Correction. The sole issue the defendant raised on appeal was whether the trial court erred in admitting the heroin into evidence because of the State’s alleged failure to establish a proper chain of custody. However, while the case was still pending, the defendant filed a motion requesting that we consider an additional issue on appeal; namely, the impact of the United States Supreme Court’s recently released Blakely v. Washington, 542 U.S. ___,124 S. Ct. 2531 (2004), opinion on the enhanced heroin sentence imposed as well as on the consecutive sentencing ordered in the case. Following our review, we conclude that the trial court did not err in admitting the heroin into evidence; that three of the four enhancement factors were inappropriately applied under Blakely, but that the remaining applicable enhancement factor, to which the trial court assigned heavy weight, justifies an enhanced sentence of ten years, six months; and that Blakely does not affect the trial court’s imposition of consecutive sentencing. Accordingly, we modify the defendant’s sentence for possession of heroin with the intent to deliver from twelve years to ten years, six months, but in all other respects affirm the judgments of the trial court.

The defendant, Lamar Ross, was indicted by the Shelby County Grand Jury on two counts of aggravated rape, a Class A felony, under alternate theories, for one offense. Following a jury trial, he was convicted of both counts, which were merged into a single judgment of conviction, and sentenced by the trial court as a Range I, violent offender to twenty-four years in the Department of Correction. In a timely appeal to this court, he challenges the sufficiency of the evidence and the sentencing imposed. Based on our review, we modify the conviction in Count 2 to rape, a Class B felony, in accordance with the offense with which the defendant was charged. Further, we conclude that two of the four enhancement factors are inapplicable, in light of the United States Supreme Court’s subsequent opinion in Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004).  Accordingly, we modify the aggravated rape conviction in Count 2 to rape, which merges into the conviction for aggravated rape in Count 1, and reduce the defendant’s sentence to twenty-two years in the Department of Correction.

The defendant, Michael K. Massengill, appeals the revocation of his probation, arguing that the trial court erred in failing to place him back on intensive probation or in the community corrections program after he violated his probation. Following our review, we affirm the order of the trial court.

The petitioner, James D. L. Perry, appeals pro se from the Johnson County Criminal Court's dismissal of his petition for habeas corpus relief. The petitioner attacks his two convictions for possession with intent to sell one-half or more grams of cocaine within one thousand feet of a school for which he received concurrent twenty-year terms. He contends that the first cocaine conviction is void because he was entrapped, that the second cocaine conviction is void because he was convicted of a crime for which he was not indicted, and that both convictions are void because he was convicted under a statute which he claims was inapplicable. We affirm the trial court's dismissal of the petition.

I write separately because, in my view, Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), precludes the application of enhancement factor (5). While I agree with the majority that the jury's verdict in count two necessarily includes a finding that the victim is mentally defective, the verdict does not include a finding that the victim was particularly vulnerable because of his mental disability, which is required by the statute. See Tenn. Code Ann. § 40-35-114(5) (2003). Our supreme court has held that factor (5) may be used only "if the circumstances show that the victim, because of his age or physical ormental condition, was in fact 'particularly vulnerable,' i.e., incapable of resisting, summoning help, or testifying against the perpetrator." State v. Adams, 864 S.W.2d 31, 35 (Tenn. 1993). In my view, the verdict of the jury does not necessarily reflect that fact. In consequence, factor (5) would not be applicable under the rule established in Blakely. Because only one enhancement factor remains, I would have modified the sentence to twenty-one years, one year above the presumptive sentence.

The Defendant, Arthur Southern, pled guilty to two counts of sale of a schedule II controlled substance. The trial court sentenced the Defendant to four years and three months on each count and ordered that the sentences run consecutively, for an effective sentence of eighty years and six months. The Defendant filed a motion to withdraw his guilty plea, which the trial court denied. The Defendant then filed a motion for a new sentencing hearing or a sentence reduction, which the trial court denied. On appeal the Defendant contends that the trial court erred when it: (1) denied his motion to withdraw his guilty plea; and (2) ordered that his sentences run consecutively. Finding no reversible error, we affirm the judgments of the court.

This is a direct appeal in an attorney discipline case. For seven years, the appellant, an experienced bankruptcy attorney, collected post-confirmation attorney’s fees from his debtor clients using a creditors’ procedure which the Bankruptcy Court for the Western District of Tennessee found improper. Following the bankruptcy court’s ruling, the Board of Professional Responsibility (“BPR”) filed a petition for discipline alleging that the appellant had violated a number of ethical rules. A BPR hearing panel agreed and ordered a public censure, disgorgement of certain fees, and suspension until such time as disgorgement was made. Both the attorney and the Board appealed to the chancery court, which affirmed the public censure, modified the disgorgement order, and reversed the suspension. Both parties appealed to this Court. After our review of the record and applicable authority, we conclude that the chancery court properly affirmed the hearing panel’s findings with regard to the appellant’s violation of the disciplinary rules and that it correctly required disgorgement of post-confirmation attorney’s fees, but that it erred in declining to impose a suspension. Accordingly, we affirm the chancery court’s judgment in part, but we modify the judgment to vacate the public censure and instead impose a ninety-day suspension.

The sole issue before the court in this protracted domestic relations litigation is the finding by the trial court that Appellant was in criminal contempt for failure to make mortgage and tax payments on the marital residence. Appellant asserts on appeal that the trial court did not set a specific deadline for payment and that the uncontested proof shows that Appellant lacked the ability to pay when the debt became due. We reverse the trial court action finding that the evidence does not establish beyond a reasonable doubt that Appellant had the ability to pay.

The trial court terminated the parental rights of the Mother and alleged Fathers of two children under the age of 18. Mother appeals. We affirm.
 

Randel P. Carlton, and Julie S. Carlton ("Plaintiffs") purchased a house from Mark L. Williams and Sandra Kay Williams ("Defendants"). Plaintiffs later sued Defendants claiming, among other things, that Defendants knew and failed to disclose that the swimming pool was not in good working order and that the swimming pool encroached onto a sewer easement and neighboring property. Plaintiffs also claimed that Defendants had warranted that all fixtures, including the swimming pool, were free of liens and encumbrances and had breached this warranty. The case was tried on the issue of whether Defendants had warranted that all fixtures, including the pool, were free of liens and encumbrances. The Trial Court found and held, inter alia, that the paragraph of the sales contract relied upon by Plaintiffs contained no warranty and that the owner's affidavit also contained no warranty because it merged into the deed at closing. The Trial Court dismissed the case against Defendants. Plaintiffs appeal. We affirm, in part, reverse, in part, and remand for further proceedings.