APPELLATE COURT OPINIONS

The Appellant, Quentin Lewis, appeals from the dismissal of his petition for post-conviction relief following an evidentiary hearing in the Shelby County Criminal Court. In his petition, Lewis collaterally attacks his conviction for aggravated robbery upon grounds that his trial counsel was ineffective. After review of this issue on appeal, the judgment of the post-conviction court is affirmed.

The defendant, Darrell Presnell, who was indicted for especially aggravated robbery, was convicted of the lesser included offense of aggravated robbery. The trial court imposed a sentence of ten years. In this appeal of right, the defendant contends that (1) there was a fatal variance between the presentment and the proof at trial; (2) the trial court erred by instructing the jury on aggravated robbery as a lesser included offense; and (3) the trial court erred by not instructing the jury on the lesser included offense of robbery. Because the trial court failed to instruct on the lesser offense of robbery, the judgment must be reversed and the case must be remanded for a new trial.

The state appeals the trial court's dismissal of its prosecution of the defendant, Mark A. Shultz, for driving under the influence of an intoxicant (DUI). It contends that the trial court's conclusion that the case had been left unresolved too long could not lawfully justify dismissal. We reverse the trial court and remand the case for further proceedings.

The defendant, James L. Breeden, appeals from the one-year sentence to confinement imposed by the trial court for his driving a car in violation of an order under the Habitual Motor Vehicle Offender (HMVO) Act that barred him from driving. He contends that the trial court erred by not imposing a sentence of split confinement with inpatient substance abuse evaluation and treatment. We affirm the trial court.

The defendant was indicted for one count of extortion and one count of theft of property over $1000, both Class D felonies. The defendant requested pretrial diversion, which the prosecutor denied. The defendant then filed a writ of certiorari to the trial court alleging an abuse of prosecutorial discretion. The trial court affirmed the prosecutor's decision. The defendant now appeals, arguing that the trial court erred in ruling that the prosecutor did not abuse his discretion in denying pretrial diversion. Finding no error, we affirm the judgment of the trial court.

The defendant appeals her convictions for first degree felony murder and alleges four errors for our review: (1) insufficient evidence; (2) failing to take judicial notice of the definition of the word "gank;" (3) failing to determine the order of the verdicts; and (4) failing to instruct on the lesser-included offenses of felony murder. After review, we hold that sufficient evidence exists to support the defendant's convictions for first degree felony murder and that the trial court did not err in declining to take judicial notice of the definition of the word "gank." We further hold that the trial court did not err in failing to determine the order of the verdicts and there was no implied acquittal of the felony murder convictions. Finally, we hold, pursuant to the recent Tennessee Supreme Court opinion of State v. Ely, ___ S.W.3d ___ (Tenn. 2001), that the offense of first degree felony murder does have lesser-included offenses of second degree murder, reckless homicide, criminally negligent homicide, and facilitation of felony murder. Therefore, because the trial court failed to instruct on the lesser-included offense of facilitation of felony murder, we reverse the defendant's convictions and remand for a new trial.

A jury found the petitioner guilty of felony murder and attempted especially aggravated robbery. For these offenses he received sentences of life and ten years respectively, which were set to run concurrently. The petitioner unsuccessfully pursued a direct appeal. See State v. Kevin Taylor, No. 01C01-9707-CR-00263, 1998 WL 849324 at *1 (Tenn. Crim. App. at Nashville, Dec. 9, 1998). Following his unsuccessful direct appeal, the petitioner then filed for post-conviction relief. He was subsequently appointed counsel, and this attorney filed a "Supplemental Petition for Post-Conviction Relief" alleging ineffective assistance of counsel and the deprivation of the petitioner's right to due process. Following an evidentiary hearing on these matters, the trial court found that the petition did not merit relief. The petitioner now appeals this denial maintaining that his trial counsel provided ineffective assistance by failing to subpoena and introduce alleged telephone records; to interview and/or call certain potential witnesses; and to properly investigate and cross-examine two State witnesses. After reviewing the record and applicable case law, we find that these claims lack merit and, therefore, affirm the trial court's judgment.

The appellant, Edwin Milton Socall, was indicted by a Montgomery County Grand Jury for driving under the influence (DUI), reckless driving, violation of the implied consent law, and driving on a revoked license (DORL). Following a bench trial, Socall was found guilty of first offense DUI and second offense DORL. He was sentenced to eleven months, twenty-nine days, with all but thirty days suspended, for DUI, and eleven months, twenty-nine days, all suspended, for DORL, second offense. At the bench trial, Socall was represented by retained counsel; however, no court reporter was employed to transcribe the proceedings.

Following his conviction, Socall requested that he be found indigent for purposes of appeal and requested appointed appellate counsel. The trial court granted his request and appointed the public defender's office. Because the proceedings below were not transcribed, a statement of evidence pursuant to Tenn. R. App. P. 24(c) was prepared. On appeal, three issues are presented for our review: (1) Whether "the failure to preserve evidence through the use of a court reporter or tape recording" deprived Socall of an effective appeal; (2) whether the evidence was sufficient to support the convictions of first offense DUI and second offense DORL; and (3) whether the trial court erred by ordering Socall to serve thirty days in confinement. After review, we find issue (1) is without merit and issue (3) is waived. Moreover, we hold the evidence is sufficient to support Socall's convictions for DUI and DORL, second offense. Accordingly, the judgment is affirmed.

The defendant, Anthony Carpenter, was convicted by a jury of second degree murder. In this appeal as of right, he asserts that the evidence was insufficient to support his conviction and that the trial court erred by sentencing him to twenty-three years incarceration. We find no error; thus, we affirm the judgment of the trial court.

The appellant, Galen Dean Eidson, was indicted by a Sumner County Grand Jury for second degree murder. Pursuant to the terms of a plea agreement, Eidson pled guilty to the reduced offense of reckless homicide. Following a sentencing hearing, the trial court sentenced Eidson to four years confinement in the Department of Correction. On appeal, Eidson raises the following sentencing issues for our review: (1) Whether the length of the sentence imposed by the trial court was excessive; and (2) whether the trial court erred in sentencing him to total confinement in the Department of Correction. Upon de novo review, we find that a total confinement sentence of four years is justified in this case. Accordingly, the judgment of the Sumner County Criminal Court is affirmed.