APPELLATE COURT OPINIONS

The defendant, Bobby Gene Tucker, appeals from the revocation of his probation received for his conviction for driving under the influence of an intoxicant (DUI) after having served fifteen days in confinement. He contends (1) that the revocation warrant and affidavit are void, thereby voiding his probation revocation and (2) that the trial court abused its discretion in sentencing him to serve the maximum term of eleven months, twenty-nine days with credit for time served. We affirm the trial court.

The petitioner appeals the denial of post-conviction relief on his second degree murder conviction, arguing that the post-conviction court erred in finding that he had effective assistance of trial counsel. Following his entry of a plea of guilty to second degree murder, the petitioner filed a petition for post-conviction relief, alleging ineffective assistance of counsel. Specifically, he alleged that trial counsel was ineffective for failing to thoroughly investigate and prepare his case, and that were it not for the deficiencies in counsel's representation, he would not have entered his plea of guilty. At the conclusion of an evidentiary hearing, the post-conviction court dismissed the petition, finding that the petitioner had failed to offer any proof to support his allegations. After a careful review, we affirm the judgment of the post-conviction court.

A Marshall County grand jury indicted the petitioner on two counts of aggravated burglary, two counts of theft, and one count of evading arrest. On October 29, 1997, the petitioner entered an open plea of guilt, reserving the determination of the length and manner of sentencing for the trial court.  Following a sentencing hearing, the trial court sentenced the petitioner to a total of thirty-four years as a Range III persistent offender. In making its sentencing determination, the trial court ran several of the offenses consecutively. On direct appeal, the petitioner challenged his sentence as excessive.  State v. Hayes, No. 01C01-9804-CC-00176, 1999 WL 126650 at *1 (Tenn. Crim. App. at Nashville, March 11, 1999). Finding that the record supported the trial court’s sentence determination, this Court affirmed the trial court’s judgment. Id. at *2. The petitioner then unsuccessfully applied for
permission to appeal the trial court’s sentence determination to the Tennessee Supreme Court.  Thereafter, the petitioner filed a pro se petition for post-conviction relief, alleging that he received ineffective assistance of counsel and that the trial court judge who imposed his sentence should have recused himself due to his personal knowledge of the facts of and victims in the case. The court
appointed counsel for the petitioner, and the petitioner’s newly appointed counsel then filed an amendment to the earlier petition, alleging ineffective assistance of counsel by both trial and appellate counsel. The trial court conducted an evidentiary hearing on the petition and dismissed the petition for post-conviction relief. The petitioner now appeals the trial court’s dismissal of his petition, alleging that he received both ineffective assistance of trial and appellate counsel and that the trial judge erred in denying his motion for recusal. After the reviewing the record and applicable case law, we find these issues to be without merit and therefore affirm the trial court’s denial of the petition for post-conviction relief.

Defendant entered pleas of guilty to the rape of a child in Counts 1, 6, and 7 of the indictment and in Count 3, a plea of guilty to aggravated sexual battery. At the conclusion of a sentencing hearing, the trial court imposed sentences of 24 years for each count of rape of a child and 12 years for the offense of aggravated sexual battery. The trial court ordered that the sentences be served consecutively, resulting in a sentence of 84 years. On direct appeal, Defendant asserts that the trial court erred in imposing an inappropriate sentence on each count and erred in imposing consecutive sentencing on all charges. After a review of the record, we affirm the trial court's judgment.

The Defendant was convicted of second offense driving under the influence and violation of the open container law. The trial court sentenced her to eleven months, twenty-nine days incarceration for the DUI conviction, suspended after service of ninety days, and to thirty days incarceration, suspended, for violation of the open container law. In this appeal as of right, the Defendant argues that the evidence presented at trial was insufficient to support her convictions. Having reviewed the record, we conclude that sufficient evidence was presented to support the jury’s findings of guilt and therefore affirm the judgment of the trial court.

The State of Tennessee has applied to this court for permission to pursue an interlocutory appeal pursuant to Tennessee Rule of Appellate Procedure 10. In its application, the State complains that because the grand jury had yet to take action to charge the respondents in connection with a homicide, the Greene County Circuit Court was not empowered to conduct pretrial conferences, to enter pretrial orders, to set a trial date, or to order the state to file its notice of intent to seek the death penalty or life without possibility of parole. We grant the Rule 10 appeal and generally vacate the lower court's pretrial conference orders.

The Appellant, Michael A. Foster, was indicted by a Shelby County Grand Jury for possession of cocaine in excess of .5 gram, a class B felony. Under the terms of a plea agreement, Foster pled guilty to criminal attempt to possess cocaine less than .5 gram, a class D felony. The plea agreement further provided that Foster would receive a sentence of two years with the manner of service of the sentence to be determined by the trial court. Following a sentencing hearing, the trial court ordered that Foster's two-year sentence be served in confinement in the Shelby County Correction Center. On appeal, Foster argues that the trial court erred in denying an alternative sentence. Finding no error, we affirm the judgment of the trial court.

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.