APPELLATE COURT OPINIONS

The defendant was convicted of especially aggravated robbery and was sentenced to eighteen years as a violent offender. He appealed, presenting as his single issue the claim that the evidence at trial was not sufficient for the finding of guilt. Based upon our review, we affirm the judgment of the trial court.

This is apparently a case of first impression. The appellant, W. Jess Waltman, filed a petition in the trial court seeking to probate a document purporting to be the last will and testament of Gloria Eleanor Franklin ("the decedent"). The will, dated "July 7 93," directs that the appellant and his wife, Terry Waltman, are to receive the decedent's estate "in case I die on my way to & from Jersey." The trial court held that the will was not eligible for probate because it was a conditional will and the specified condition or contingency, i.e., Ms. Franklin's demise "on the way to & from Jersey," had not occurred. We vacate the trial court's judgment and remand for further proceedings consistent with this opinion.

The petitioner was convicted of aggravated sexual battery by a Shelby County jury. The conviction was affirmed on direct appeal. The petitioner sought post-conviction relief on the ground that his trial counsel was ineffective for failing to protect his right to be tried within one hundred eighty days under the Interstate Compact on Detainers. The petition was denied by the post-conviction court. After a thorough review of the record, we conclude that the trial court correctly denied post-conviction relief.

The petitioner, currently represented by the Office of the Post-Conviction Defender, was originally convicted of felony murder and sentenced to death. The petitioner's conviction and sentence were affirmed on direct appeal. See State v. Burns, 979 S.W.2d 276 (Tenn. 1998). After the filing of a post-conviction relief petition, the post-conviction court granted the state's request to disqualify the Post-Conviction Defender since a member of the Post-Conviction Defender Commission was related to the victim of the crime. In this interlocutory appeal, the petitioner argues: (1) there is no conflict of interest; and (2) if a conflict exists, it can be waived. After a thorough review of the record, we conclude that (1) there is no actual conflict, and (2) any alleged impropriety may be waived by the petitioner after full disclosure. We reverse and remand for further proceedings.

A Shelby County jury convicted the defendant of rape of a child, a Class A felony. The sole issue in this appeal is the sufficiency of the evidence of unlawful sexual penetration of the victim. We affirm the judgment of the trial court.

The petitioner filed a petition for post-conviction relief, claiming that he had received ineffective assistance of counsel during the sentencing hearing following his trial in which he was convicted of second degree murder. Specifically, he argues that trial counsel should have presented evidence of his youth and mental condition. The petitioner appealed after being denied relief by the post-conviction court. Based upon our review, we affirm the judgment of the post-conviction court.

The defendant, Ricky R. Bowen, is charged with driving under the influence of an intoxicant (DUI). The state was granted an interlocutory appeal from the trial court's order dismissing the second "count" of the indictment by which the defendant was subjected to enhanced minimum sentencing as a second time offender. The issue presented is whether a conviction for the first DUI offense must precede the commission of the second offense before a defendant may be convicted of DUI, second offense. We hold that the conviction must only precede the second conviction, not the second offense.

After a jury trial, Defendant was found guilty of the included offense of simple assault in two counts and the jury assessed fines of $5,000 for each count. Defendant was subsequently sentenced to 11 months and 29 days on each count to run concurrently. The sentence was suspended except for 12 days to be served consecutively or six consecutive weekends. The fines were remitted to $500 for each count. In this direct appeal as of right, Defendant asserts that the jury and court erred in finding Defendant guilty, beyond a reasonable doubt, in two counts of simple assault based upon the sufficiency of evidence. We conclude that the evidence was sufficient to support Defendant's two convictions for simple assault. Thus, we affirm the trial court's judgment.

The Defendant, Mario Lambert, appeals as of right from the trial court's dismissal of his petition for writ of habeas corpus. He asserts that his sentence is illegal because the trial court was without authority to sentence him as a Range I, standard offender with a release eligibility of thirty percent for the offense of second degree murder. We hold that the trial court was without authority to sentence the Defendant as a Range I, standard offender with a thirty percent release eligibility for the offense of second degree murder. Therefore, based on our review of the record on appeal, it appears that the sentence imposed is an illegal sentence. Accordingly, we remand this case to the criminal court of Shelby County for further proceedings consistent with this opinion.

The defendant, Stephen Michael Ware, pled guilty to driving under the influence (third offense), driving on a revoked license (second offense), felony evading arrest, resisting arrest and felony failure to appear. The plea agreement provided for consecutive sentences of one year each for felony evading arrest and felony failure to appear. All other sentences were to be served concurrently, for an effective sentence of two years. The trial court ordered a sentence of split confinement, consisting of 270 days in jail, two years of house arrest, on one felony and a consecutive sentence of two years' house arrest for the second felony. In this appeal of right, the defendant argues that the trial court imposed sentences in contravention of the plea agreement and contends that the jail sentence of 270 days, day-for-day, is excessive. The felony evading arrest sentence is vacated and the cause is remanded to the trial court for resentencing in conformance with the plea agreement

At the conclusion of a probation revocation hearing, the trial court ordered Defendant to serve six (6) years at thirty percent (30%) in the Department of Correction for the sale of cocaine. In this appeal as of right, Defendant asserts that the trial court failed to sentence him in accordance with the Criminal Sentencing Reform Act of 1989. We conclude that the evidence was sufficient to support the revocation of Defendant's probation and the trial court did not abuse its discretion by ordering Defendant confined per his original sentence. Thus, we affirm the judgment of the trial court.

The Defendant, Hershell Lee Kinnaird, was convicted by a jury in 1989 of accessory before the fact to first degree murder and conspiracy to commit first degree murder. He was sentenced to life imprisonment for the former conviction and to a concurrent ten year term for the latter conviction. The Defendant's convictions were affirmed on direct appeal. See State v. Kinnaird, 823 S.W.2d 571, 572 (Tenn. Crim. App. 1991). In this post-conviction proceeding the Defendant contends that the State violated his constitutional rights by withholding exculpatory evidence; that the post-conviction court erred by not granting his motion for state-funded experts; that he received ineffective assistance of counsel at trial; and that the trial court committed several instances of plain error violating his right to a fair trial and/or due process. Finding the Defendant's allegations to be without merit, we affirm the judgment of the post-conviction court.

At the conclusion of a sentencing hearing, the trial court imposed a sentence of 11 months and 29 days in the Coffee County jail with Defendant to serve 90 days before being released to probation for the offense of simple possession of a controlled substance, to wit: methamphetamine, plus a fine of $1,000. In this appeal as of right, Defendant asserts: (1) That the trial court abused its discretion in failing to sentence the Defendant to judicial diversion provided by Tenn. Code Ann. § 40-35-313; (2) Whether the trial court properly weighed the mitigating factors presented by Defendant in the sentencing hearing?; and (3) Whether the trial court imposed an excessive sentence? After a review of the entire record, briefs of parties, oral arguments and applicable law, we find the trial court
abused its discretion in denying judicial diversion and remand for a judgment of judicial diversion.  Thus, the trial court’s judgment is reversed and remanded.

At the conclusion of a post-conviction evidentiary hearing, the trial court denied the Petitioner, Quinton Cage's, petition for post-conviction relief. The Petitioner presents one appellate issue: Whether the trial court erred in finding that the Petitioner received effective assistance of counsel at trial? After a review of the entire record, briefs of the parties, and applicable law, we affirm the trial court's judgment.

I respectfully dissent from the majority opinion in this case. First, I am compelled to note that there is not a transcript of the guilty plea hearing in the record. It is well settled that when a defendant appeals a sentencing issue and fails to provide a transcript of the guilty plea hearing in the record, that this court presumes that the action of the trial court was correct. See State v. Keen, 996 S.W.2d 842, 844 (Tenn. Crim. App. 1999); State v. Griffis, 964 S.W.2d 577, 592-93 (Tenn. Crim. App. 1997).

The petitioner was originally convicted by a Henry County jury of first degree felony murder and sentenced to life without the possibility of parole. The conviction was affirmed on direct appeal. The petitioner sought post-conviction relief, which was denied by the post-conviction court. In this appeal, the petitioner contends she is entitled to post-conviction relief based on (1) newly discovered evidence and (2) ineffective assistance of counsel. After a thorough review of the record, we conclude that the post-conviction court correctly denied post-conviction relief.

This case involves a dispute over the scope of the right of the defendant to use the plaintiffs' property as a means of ingress and egress to various sections of the defendant's property. The deed to defendant's 1,600 acre tract, which surrounds plaintiffs' 151 acre tract on 3 sides, included a 26 foot wide north-south easement over plaintiffs' property. Plaintiffs alleged that defendant refused to confine his activities within the easement, thereby trespassing and committing waste upon their land. The trial court determined that defendant was entitled to use the 26 foot wide easement running in a north and south direction on the Conatsers' property and a second 20 foot wide route of ingress and egress branching off of the 26 foot easement in a northwesterly direction. The court rejected defendant's claim that he was entitled to a third easement along another east and west direction route and awarded plaintiffs $2,500 in damages for trespass. We affirm the trial court's rulings on the scope of defendant's easement and modify the damages to the $5000 originally awarded by the trial court.

The defendant was declared a motor vehicle habitual offender in Benton County Circuit Court. On appeal, he argues that the trial court erred because the first qualifying underlying conviction occurred more than five years before the date the state's petition was filed. Because no statute of limitations applies under the Motor Vehicle Habitual Offenders Act, we affirm the trial court's judgment.

The Monroe County grand jury indicted the defendant on two counts of selling or delivering over .5 grams of cocaine. At the conclusion of a bench trial, the trial court found beyond a reasonable doubt that the defendant had sold cocaine in the alleged amounts on the dates in question. However, immediately after making this determination, the trial court sua sponte announced that it was dismissing the indictment because of a fatal wording error. Through this appeal the State contends that the dismissal was erroneous and asks that the case be remanded for sentencing. Following our review of the record and applicable caselaw, we find the State's issue to have merit and, therefore, reverse the trial court's dismissal and grant the requested remand for sentencing.

This appeal involves a motorcycle rider who was seriously injured when his motorcycle crossed metal plates covering a portion of the highway surface that was under construction. After voluntarily dismissing his first suit, the rider filed a second suit in the Circuit Court for Lincoln County against the corporation he believed to be responsible for placing the metal plates across the highway. The rider insisted on proceeding against this corporation even after he was informed that he had sued the wrong party. The corporation moved for a directed verdict at the close of the motorcycle rider's case-in-chief, asserting that he had failed to prove that it was responsible for the road construction. The trial court granted the motion and dismissed the rider's complaint. The rider now challenges the directed verdict on two grounds. First, he asserts that he presented enough evidence of the contractor's responsibility for the construction to take the case to the jury. Second, he asserts that the corporation should not be permitted to argue that he sued the wrong party because it had not specifically identified or described this party in its answer as required by Tenn. R. Civ. P. 8.03. We have determined that the corporation's denial of involvement with the construction project at issue was was not asserting an affirmative defense governed by Tenn. R. Civ. P. 8.03 and that the trial court properly granted the directed verdict. Therefore, we affirm the judgment dismissing the motorcycle rider's complaint.

In 1997, pursuant to a negotiated plea agreement, the Defendant pled guilty to possession of more than seventy pounds of marijuana with the intent to sell, a Class B felony, and received a twelve-year sentence as a Range II multiple offender, to be served in the Tennessee Department of Correction. On March 3, 2000, the Defendant filed a motion to correct an illegal sentence, alleging that he should have been sentenced as a Range I standard offender rather than a Range II multiple offender because two prior Pennsylvania convictions that were the basis for his Range II sentencing were misdemeanors rather than felonies. Following a hearing on the Defendant's motion, the trial court dismissed the motion, finding that "the Defendant may plead outside the range" and that the Defendant had sufficient qualifying felonies. Finding no error by the trial court, we affirm the judgment of the trial court dismissing the Defendant's motion.

The petitioner appeals the denial of post-conviction relief on his conviction for the sale of .5 grams of cocaine, a Schedule II controlled substance. In his pro se petition for post-conviction relief, the petitioner alleged that his trial counsel was ineffective for failing to thoroughly investigate and keep him informed of vital information regarding his case. After the appointment of post-conviction counsel and a hearing on the petition, the court denied the petition for post-conviction relief. The petitioner filed a timely appeal to this court, raising the sole issue of whether the post-conviction court erred in finding that he had effective assistance of trial counsel. Based upon a careful review of the record, we affirm the judgment of the post-conviction court.

The defendant, James Kevin Underwood, was convicted of evading arrest, a Class E felony; driving on a revoked license, fourth offense; and possession of drug paraphernalia, the sentences to be served concurrently. Germane to this appeal, the defendant was sentenced for the evading arrest as a Range I offender either to two years in "house arrest" under a community corrections alternative program of which six months are to be served in jail, "day for day," or to six months in jail, day for day, followed by two years in a community corrections alternative program. Either way, the defendant contends (1) that the sentence exceeded the one-year sentence in his plea agreement and (2) that, in any event, the trial court cannot order him to serve six months day for day. We affirm the judgments for the two misdemeanor offenses, but we remand the evading arrest case for resentencing.