APPELLATE COURT OPINIONS

This is an appeal from a judgment that was not final. This Court ordered that a final judgment be entered with a copy filed in the record before us, which the appellant has failed to do. Accordingly, the appeal is dismissed.

 This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this case, the employee, Gerald Amos, suffered a heart attack following a theft from his person while waiting at a truck stop for a scheduled pick-up. The trial court found the employee’s heart attack to be compensable and awarded benefits for permanent total disability. The trial court refused, however, to set off a portion of his social security benefits as provided in Tennessee Code Annotated section 50-6-207(4)(A)(i). The employer contends that the heart attack did not arise from or occur in the course of the employment. The employer also contends that the trial court erred by not setting off a portion of the employee’s social security old age benefits against the award. We affirm the trial court’s ruling on causation, but modify as to the set-off. Tenn. Code Ann. § 50-6-225(e) (Supp. 2006

The defendant, Charles Stan Martin, was convicted by a Sevier County jury of one count of reckless homicide, a Class D felony, and received a four-year sentence to be served on probation. On appeal, the defendant contends that: (1) the evidence was not sufficient to support his conviction, (2) the reckless homicide statute is unconstitutional as applied to him, (3) the trial court erred in admitting evidence of a prior incident, (4) the trial court erred in failing to instruct the jury on an alibi defense, and (5) the trial court abused its discretion in denying him judicial diversion. We affirm the judgment of the trial court.

This is a post-divorce case involving several issues stemming from a modification of child support and custody hearing and order resulting from that hearing. The parties were divorced in 2003, and the permanent parenting plan was filed on November 10, 2003. Wife retained custody of the parties’ two minor children. Husband was to pay Wife $1,250 a month child support. In 2005, Husband filed motions to review and revise both the custody and visitation arrangements contained in the permanent parenting plan and his child support obligation. The court treated Husband’s motions as a petition for modification of custody and child support. Husband represented himself pro se on July 17, 2006, at the petition hearing. The court entered an order on August 21, 2006, finding no material change of circumstance and thus, Wife retained custody of the two children. The order also increased Husband’s child support obligation. Finally, the court found Husband in contempt of court and sentenced him to five days in jail with $1,000 bond. Husband appeals, arguing that 1) the court erred in finding no material change of circumstance; 2) the court erred in the findings concerning both Husband and Wife’s income pertaining to the child support; and 3) the court erred in finding Husband in contempt. We affirm.

The petitioner, Michael Lindsey, appeals the denial of his petition for writ of error coram nobis and the denial of his petition for post-conviction relief. Because the petitioner has failed to allege appropriate grounds for coram nobis relief and because his petition for post-conviction relief is procedurally barred, the judgment of the trial court is affirmed.

The defendant, Lorenzo “Buster” Woods, pled guilty to one count of assault, a Class A misdemeanor, and received a sentence of eleven months and twenty-nine days suspended upon the service of six months in the local jail. On appeal, he argues that the trial court erred in denying him full probation. Following our review, we affirm the judgment of the trial court, but we remand the case for entry of a corrected judgment reflecting misdemeanor community corrections supervision for five months and twenty-nine days.

The Shelby County Grand Jury indicted Appellant for aggravated arson and vandalism over $10,000.00, but below $60,000.00. At the conclusion of a jury trial, Appellant was convicted as charged. The trial court sentenced Appellant to twenty-five years as a Range I Standard Offender for the aggravated arson conviction and eight years as a Range II Multiple Offender for the vandalism conviction. The trial court also ordered these sentences to be served consecutively. Appellant now appeals these judgments arguing that: (1) there was insufficient evidence to support his convictions; (2) evidence of impeachment by prior conviction was improperly admitted; (3) the trial court improperly allowed the amendment of the indictment; and that (4) the trial court erred in enhancing the sentence and in imposing consecutive sentences. We have thoroughly reviewed the record and affirm the judgments of the trial court.

The petitioner, Sidney Porterfield, pro se, seeks habeas corpus relief from his 1986 Shelby County first degree murder conviction and death sentence, alleging his indictment was void because it was returned by a grand jury from which women had been systematically excluded as grand jury forepersons.  He now appeals from the Davidson County dismissal of his petition.  The State contends that this court is without jurisdiction to hear this appeal because the petitioner filed an untimely notice of appeal and offered no explanation and, further, that the petition does not meet all the criteria set forth in Tennessee Code Annotated section 29-21-107.  Furthermore, the State contends that a void indictment does not deprive a trial court of jurisdiction, that the petitioner’s claim is not cognizable for habeas corpus relief because proof beyond the face of the judgment and record is required, and that our Supreme Court has rejected an identical claim regarding discrimination in the selection of a grand jury foreperson in State v. Bondurant, 4 S.W.3d 662 (Tenn. 1999).  After careful review, we conclude that the notice of appeal is not jurisdictional and may be waived in the interest of justice.  However, without explanation or request being filed, the interest of justice weighs against waiver; therefore, we dismiss this appeal. 

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this case, the trial court found the employee’s elbow injury to be compensable and awarded benefits for 25% permanent partial disability to the left arm. The employer contends that the injury did not arise from or occur in the course of the employment and that the employee did not give timely notice of her injury in accordance with Tennessee Code Annotated section 50-6-201. We reverse the trial court’s finding that the injury was compensable and dismiss the employee’s complaint.

The defendant was convicted by a Madison County jury of theft of property valued at $10,000 or more, a Class C felony, and sentenced to five years in prison as a Range I, standard offender. On appeal, the defendant contends that the evidence produced at trial was insufficient to support the jury’s guilty verdict, and he also contends that his sentence was excessive, both in the length of the sentence and the trial court’s failure to impose an alternative sentence. After reviewing the record, we conclude that the evidence produced at trial was sufficient to support the defendant’s conviction, and that the sentence imposed by the trial court was appropriate. Accordingly, we affirm the judgment of the trial court.

I fully concur in Judge Swiney’s Opinion but wish to elaborate on the fact that the Judge had custody of the file that the plaintiff sought and was charged with safekeeping and protection of the file.

John C. Kersey, Sr. (“Plaintiff”) sued John Bratcher, Clerk of the Chancery Court for Rutherford County, Tennessee (“Bratcher”); Beverly Raechelle Wilson, Deputy Clerk of the Chancery Court (“Wilson”); and Michelle Blaylock, Judicial Assistant to Circuit Judge Rogers (“Blaylock”), claiming, in part, that the defendants had violated Tenn. Code Ann. § 10-7-503 regarding records open to  public inspection. Blaylock filed a motion for summary judgment, and Bratcher and Wilson filed a motion to dismiss for failure to state a claim upon which relief can be granted. After a hearing, the Trial Court granted Blaylock’s motion for summary judgment and Bratcher’s and Wilson’s motion to dismiss. Plaintiff appeals to this Court. We affirm.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The issues on appeal involve whether weeks spent absent from work due to a strike are included when calculating an employee’s average weekly wage. We hold that the trial court erred in excluding the weeks spent on strike and modify the award to reflect the proper calculation of the employee’s average weekly wage.

This is an appeal as of right from a conviction on a jury verdict of aggravated robbery, and an appeal by the State from the sentencing decision. The Defendant originally received an enhanced sentence of eighteen years as a Range II, multiple offender, but his sentence was subsequently reduced to fifteen years by the trial court based upon Blakely v. Washington, 124 S.Ct. 2531 (2004). On appeal, the Defendant argues there is insufficient evidence to support his conviction for aggravated robbery. The State appeals the modified sentence, arguing the trial court erred in reducing the Defendant's sentence. We affirm the judgment of the trial court as to the conviction, but remand for re-sentencing in accordance with this opinion.

Following a jury trial, Petitioner was convicted of second degree murder and sentenced to twentythree years in the Department of Correction. On direct appeal, this Court affirmed his conviction. State v. Derry Lavelle Lovins, No. W2003-00309-CCA-R3-CD, 2004 WL 224482, at *1 -7 (Tenn. Crim. App., at Jackson, Feb. 4, 2004), perm. app. denied (Tenn. Mar. 5, 2007). Petitioner then filed a pro se petition for post-conviction relief. Petitioner was appointed counsel and an evidentiary hearing was held. The trial court subsequently denied the petition and a timely notice of appeal was filed. After a review of the record, this Court determined that Petitioner was entitled to a delayed appeal to our supreme court pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure. The remaining post-conviction proceedings were stayed pending the delayed appeal. On March 5, 2007, the supreme court denied Petitioner’s delayed appeal. We now address Petitioner’s remaining claims for post-conviction relief. Petitioner argues that he is entitled to post-conviction relief because (1) he received ineffective assistance of counsel, (2) his constitutional rights were violated by the State’s failure to disclose physical evidence during discovery, (3) he was prejudiced by the trial judge’s facial expressions, and (4) the jury reached a compromised verdict. After a thorough review of the record, we affirm the judgment of the post-conviction court.

I respectfully dissent from the majority’s opinion in this Public Records Act case. I would reverse the trial court’s dismissal of the claim against the Clerk and Master and the deputy clerk and vacate the grant of summary judgment as to the judge’s assistant.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The trial court found that the employee did not sustain a permanent disability and was not entitled to temporary total disability benefits. The employee has appealed, contending that the trail court erred by giving more weight to the opinion of the treating physician than to the evaluating physician and by finding that he did not sustain a permanent injury. We affirm the trial court’s ruling in all respects.

We first decided this appeal in 2005. Our decision was vacated by the United States Supreme Court and the case was remanded to us for reconsideration in light of Cunningham v. California, 549 U.S. --, 127 S. Ct. 856 (2007). We requested and received supplemental briefing from the parties addressing any Cunningham issues. When this case was previously before this Court, the Defendant challenged the sufficiency of the evidence to sustain his aggravated robbery conviction. The Defendant received an enhanced sentence of eighteen years as a Range II, multiple offender for this conviction, but the trial court subsequently reduced his sentence to fifteen years based upon Blakely v. Washington, 542 U.S. 296 (2004). Originally, the State appealed the modified sentence, arguing that the trial court erred in reducing the Defendant’s sentence, and we agreed. Upon further consideration of the matter, we conclude, and the State now concedes, that sentencing was proper and affirm the judgment in its entirety. We reissue our previous opinion as follows with a new section dealing with the Cunningham issues.

A Shelby County jury found the Appellant, Demario Tabb, guilty of the first degree felony murder of Floricelda Reynoso Ambrocio; the first degree felony murder of the unnamed, viable fetus of Floricelda Ambrocio; and the attempted aggravated robbery of Rodrigo Ramirez. At the penalty phase of the trial, the jury fixed Tabb’s punishment at life without the possibility of parole for each murder conviction. Following a separate sentencing hearing, the trial court sentenced Tabb to five years imprisonment for his Class C felony conviction for attempted aggravated robbery and ordered that all sentences be served concurrently. On appeal, Tabb presents the following issues for ourreview: (1) whether his statement to police should have been suppressed because it was obtained inviolation of his constitutional right to counsel; (2) whether the statement was properly admitted asrebuttal proof; and (3) “whether [the trial] court erred in its use of curative instructions to [the] jury.”Following review, we find no error and affirm the judgments of conviction.

Appellant, Milica Wilson, was indicted for one count of attempted especially aggravated robbery. After a jury trial, Appellant was found guilty of facilitation of attempted especially aggravated robbery. He was found not guilty of felony murder and first degree murder. As a result, Appellant was sentenced on August 13, 2003, to serve eight years as a Range II, multiple offender in the Department of Correction. Appellant filed an untimely motion for new trial on September 25, 2003. Subsequently, Appellant filed two amended motions for new trial. The trial court conducted a hearing on the motions on February 27, 2006, at the conclusion of which the trial court denied the motion for new trial. Appellant filed an untimely notice of appeal. On appeal, Appellant contends: (1) the evidence was insufficient to support the conviction; (2) the trial court erred in admitting the testimony of co-defendant Frank Dowdy as there was no corroboration of the testimony; and (3) the trial court erred in giving a jury instruction on flight. Because Appellant filed an untimely motion for new trial, which resulted in the filing of an untimely notice of appeal, we must dismiss Appellant’s appeal.

The defendant, Sandra Evans, was convicted of first degree felony murder in the perpetration of theft and voluntary manslaughter (a Class C felony). The conviction for voluntary manslaughter was merged with the felony murder conviction, and the defendant was sentenced to life imprisonment. On appeal, the defendant challenges the admissibility of hearsay testimony under the exceptions for excited utterances, and medical diagnosis and treatment. The defendant also contends that certain testimony violated her right to confrontation and that the evidence, as a whole, was insufficient to support the convictions. Upon review, we reverse the conviction and remand for a new trial.

The defendant, William Joe Murphy, was convicted by a McNairy County Jury of aggravated assault, a Class C felony. Subsequently, he was sentenced to five years in confinement as a Range I offender. On appeal, the defendant presents two issues for review: (1) whether the evidence was sufficient to sustain his conviction; and (2) whether the trial court improperly enhanced his sentence. Upon review of the full record and the applicable law, we affirm the judgment of the trial court.

The appellant, Kevin Rudd, was indicted for the first degree murder of his wife. After a jury trial, the appellant was found guilty of first degree murder and sentenced to life in prison. On appeal, the appellant argues: (1) the trial court improperly admitted propensity evidence in violation of Tennessee Rule of Evidence 404(b); (2) the trial court improperly denied a mistrial; and (3) the trial court improperly denied a motion in limine to exclude testimony that indicated the appellant engaged in shooting at other people. Because we determine that the trial court improperly admitted evidence in violation of Tennessee Rule of Evidence 404(b), we reverse the judgment of the trial court and remand for a new trial. The remaining issues are without merit.

The defendant, Maurice Emery, appeals from his Gibson County Circuit Court convictions of possession with intent to sell one-half gram or more of cocaine, a Class B felony, possession of marijuana, a Class A misdemeanor, and possession of drug paraphernalia, a Class A misdemeanor. See T.C.A. §§ 39-17-417, -418, -425. The defendant, a Range II multiple offender, is serving an effective twelve-year sentence in the Department of Correction for these convictions. He claims (1) that the trial court erred in denying his motion to sever his case from that of his co-defendant, (2) that his arrest was not supported by probable cause, and (3) that he was denied the effective assistance of counsel. We hold that the defendant is not entitled to relief and affirm.

The Petitioner, Cornell Poe, proceeding pro se, appeals the Madison County Circuit Court’s denial of his petition for post-conviction relief. In February 2006, the Petitioner filed a petition for postconviction relief collaterally attacking his convictions for aggravated burglary and Class D felony theft. The post-conviction court appointed counsel, and counsel filed an amended petition. Following an evidentiary hearing, the post-conviction court denied relief. Because the record before this court fails to indicate that the Petitioner’s court-appointed counsel was allowed to withdraw or that the Petitioner has waived his right to counsel on appeal, the judgment of the post-conviction court is vacated, and this case is remanded to the post-conviction court for reinstatement of the order denying post-conviction relief. Appointed counsel shall continue in her representation of the Petitioner on appeal, and the case shall proceed in accordance with the Tennessee Rules of Appellate Procedure.