APPELLATE COURT OPINIONS

This case is before us after remand by the Tennessee Supreme Court. The defendant, who was indicted on three counts of rape of a child, a Class A felony, pled guilty to one count of incest, a Class C felony, in exchange for a negotiated eight-year sentence as a Range II, multiple offender.  On direct appeal, this court originally vacated the judgment of conviction on the grounds that incest is not a lesser-included offense of rape, without reaching the merits of the defendant’s sentencing issues.  Thomas Poston Studdard v. State, No. W2003-01210-CCA-R3-PC, 2004 WL 370259 (Tenn. Crim. App. Feb. 27, 2004), perm. to appeal granted (Tenn. Sept. 7, 2004). Our supreme court, however, concluded that the trial court had jurisdiction to accept the defendant’s guilty plea and remanded the case to this court for consideration of the defendant’s sentencing issues. Studdard v. State, __ S.W.3d __, 2005 WL 3192279 (Tenn. 2005). Following our review, we affirm the judgment of the trial court.

This appeal involves a dispute between a prisoner and the Tennessee Department of Correction regarding the Department’s confirmation of the prisoner as a member of a Security Threat Group.  The prisoner filed a petition pursuant to Tenn. Code Ann. § 4-5-225 (2005) in the Chancery Court for Davidson County seeking a declaratory judgment that the Department’s Security Threat Group policies and their application to him were invalid. The trial court granted the Department’s Tenn.  R. Civ. P. 12.02(6) motion to dismiss, and the prisoner has appealed. We have determined that the prisoner failed to state a claim upon which relief can be granted because Tenn. Code Ann. § 4-5-225 petitions cannot be used to challenge the Department’s internal management policies.

A Rutherford County Circuit Court jury convicted the appellant, Letonio Swader, of first degree felony murder, second degree murder, attempted especially aggravated robbery, and possession of a deadly weapon during the commission of an offense. The trial court merged the murder convictions and sentenced the appellant to life. The trial court also sentenced the appellant to ten years for the attempted especially aggravated robbery conviction and two years for the possession of a weapon conviction. The trial court ordered the appellant to serve the life and ten-year sentences concurrently and ordered that the two-year sentence be served consecutively to the other two sentences. On appeal, the appellant claims (1) that the State committed reversible error by telling potential jurors during voir dire that the punishment for first degree murder in this case was life with the possibility of parole, (2) that the trial court erred by failing to suppress his statement to police, and (3) that the evidence is insufficient to support the convictions because there is no evidence to corroborate his statement to police that he intended to rob someone. Upon review of the record and the parties' briefs, we conclude that the State's comments during voir dire were improper but harmless error and affirm the judgments of the trial court.

Vernon Frye, a defendant, appeals the grant of a post-trial motion to alter or amend the judgment for the defendant, resulting in a judgment against him of $65,000. Plaintiffs, Tom and Hazel Albert, sued Vernon Frye on a check he signed and delivered to them but stopped payment on before it was presented to the bank. Following a bench trial, the trial court dismissed Plaintiffs’ claim against Vernon Frye upon the finding Plaintiffs had not proven fraud. In a post-trial motion to alter or amend, Plaintiffs contended they were entitled to relief pursuant to Tenn. Code Ann. § 47-3-414(b) because Frye, the drawer, was obliged to pay the draft according to its terms without proof of fraud. The trial court agreed and entered a new judgment awarding damages in the amount of the check against Vernon Frye. Finding the trial court did not abuse its discretion by granting the Tenn. R. Civ. P. 59.04 motion to amend the judgment, we affirm.

The Appellant, Travis Ray Wilkins, was convicted by a Cocke County jury of aggravated burglary and theft of property over $500. As a result of these convictions, Wilkins received an effective sentence of five years. On appeal, Wilkins argues that the evidence is insufficient to support either of his convictions. After review of the record, we conclude that the evidence supports the convictions.

This appeal involves a legal malpractice action. When the client discovered that her attorney had failed to file a personal injury complaint before the statute of limitations ran, she filed identical legal malpractice complaints in both the Circuit Court of Dickson County and the Circuit Court for Montgomery County. After the Montgomery County complaint was dismissed for failure to prosecute, the client's former attorney moved to dismiss the Dickson County complaint on the ground of res judicata. The trial court denied the motion, and the attorney filed an application for an extraordinary appeal in accordance with Tenn. R. App. P. 10. We granted the application and have now determined that the trial court properly denied the attorney's motion to dismiss.

The Appellant, Terry L. Tabor, was convicted by a Sullivan County jury of driving under the influence ("DUI"), speeding, and failure to use headlights. As a result of Tabor's conviction for DUI, he received a sentence of eleven months and twenty-nine days, with six months service in confinement. On appeal, Tabor raises two issues for our review: (1) whether the evidence is sufficient to support the conviction for DUI; and (2) whether the court erred in ordering him to serve six months in jail. After review, the judgment of conviction and resulting sentence are affirmed.

This is an appeal from the denial of post-conviction relief. The Petitioner, Shawn Donzell Anglin, pled guilty to and was convicted of facilitation of possession for resale of more than 0.5 grams of cocaine. Pursuant to a plea agreement, the Petitioner was sentenced to ten years to be served in Community Corrections and was fined $2,000. The Petitioner filed for and was denied post-conviction relief. The Petitioner now appeals the trial court's order denying post-conviction relief, claiming his trial counsel provided ineffective assistance of counsel which resulted in an involuntary guilty plea. We affirm the judgment of the trial court.

This is a claim filed against the State by a minor-decedent’s father for the wrongful death of the minor-decedent based on T.C.A. 9-8-307 (a)(1)(E) (Negligent Care, Custody and Control of Person). Claims Commissioner found that the State did not have care, custody and control of the minor child and, therefore, the Claims Commission is without jurisdiction to consider the claim.  Father appeals. We affirm.

A repairer sold equipment at auction to enforce its lien and collect its charges for repairs. It also attempted to collect storage charges that had not been agreed to. The trial court found the repairer was not entitled to storage charges, and we agree under the facts of this case. The trial court also awarded the owner of the equipment damages for the difference in the fair market value of the equipment and the amount received at auction. We modify that award to the measure authorized by statute in the absence of a challenge to the auction procedures. The trial court found the repairer violated the Tennessee Consumer Protection Act, and we reverse that holding.

Taxpayer insurance companies brought suit in consolidated cases for refund of franchise and excise taxes which taxpayers had paid under protest. The taxes were assessed as a result of an audit conducted by the Tennessee Department of Revenue's field audit division and covering tax years 1995 through 1998. The taxpayers assert that they are allowed to take credit against the franchise and excise taxes for the amount they actually paid in gross premiums tax plus the credit they were granted against said tax by virtue of Tennessee investments. The Commissioner asserts that they are only entitled to credit on the franchise and excise taxes for the amount of gross premiums tax actually paid. The Chancery Court of Maury County entered judgment granting taxpayers motion for summary judgment holding that the commissioner's interpretation of the statutes defeated the incentives for investment in Tennessee securities provided under the gross premiums tax statutes. The revenue commissioner appealed. Finding that Commissioner of the Department of Revenue is not estopped from assessing franchise and excise taxes against the Appellee, either by statute or by equity, and that the credit against franchise and excise taxes includes only the amount of gross premiums taxes paid and collected by the Department of Commerce and Insurance, we vacate the summary judgment granted to the Appellees and grant summary judgment for Appellant.

This appeal involves a dispute between the developers of the site of a former commercial laundry and dry cleaning plant located in a residential neighborhood and a group of neighboring residents and property owners. Following two public hearings, the Metropolitan Board of Zoning Appeals approved a mixed-use development that included renovating two of the existing structures and constructing a new structure containing underground parking and additional retail and residential space. The neighboring property owners filed a petition for a common-law writ of certiorari and a writ of supersedeas in the Chancery Court for Davidson County challenging the Board’s decision. Following a review of the record of the Board’s proceedings, the trial court upheld the Board’s decision, and the property owners appealed. We have determined that the Board followed the proper procedures and did not act arbitrarily, and that its decision is supported by material evidence.

The defendant, Tim Flood, appeals from his Knox County Criminal Court jury convictions of four counts of rape of a child, for which he received an effective sentence of 40 years in the Department of Correction. On appeal, the defendant claims that the convictions are unsupported by the evidence and that the trial court erred in refusing to allow a proposed defense witness to testify. Because the refusal to permit the defendant to call a witness was error, we reverse the convictions and remand the case.

The Petitioner, Charles Dewayne Moore, appeals from the trial court's summary dismissal of his petition seeking habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The State's motion is granted. The judgment of the trial court is affirmed.

This appeal arises from the last of many petitions and counter-petitions by both parties to change custody of the parties' only child, to modify child support, to acquire arrearage judgments for non-paid child support, and for contempt of court. The order from which this appeal arose awarded custody of the child to the mother and dismissed the father's petition for contempt. Prior to this order, custody had been awarded to the father; however, he had not provided financial support for the child, and the child had not lived with him since the entry of the order awarding him custody. The dismissal of the father's petition was based upon the trial court's finding the father had failed to comply with the previous order he was seeking to enforce. Finding no error, we affirm.

This is a consolidation of three appeals involving three tariffs filed by BellSouth Telecommunications, Inc. with the Tennessee Regulatory Authority. All three tariffs contained bundled offerings of telecommunications services and non-telecommunications services. The Consumer Advocate Division of the Office of the Attorney General was allowed to intervene in these proceedings in order to address the question of BellSouth’s obligation, under the Federal Telecommunications Act of 1996, to offer for resale the telecommunications services contained in the bundled offerings. The Tennessee Regulatory Authority entered orders allowing the tariffs to go into effect without the telecommunications service portions thereof being offered for resale. The Consumer Advocate appealed and the cases were consolidated for that purpose. In 2005, during the pendency of this appeal, the Tennessee General Assembly enacted T.C.A.§65-37-103 (Supp. 2005).  This statute specifically exempts retail offerings of combinations or bundles of products or services from the jurisdiction of the Tennessee Regulatory Authority. In addition, all three of the tariffs at issue in this case expired, by their own terms, during the pendency of this appeal, rendering the appeal moot. Because we do not find that these appeals fall within any of the exceptions to the mootness doctrine, we dismiss the appeal as moot.

This is a direct appeal as of right from convictions entered on a jury verdict of guilty of two first degree premeditated murders. The jury sentenced the Defendant to life without the possibility of parole for one conviction, and he received a life sentence for the other. On appeal, the Defendant advances five arguments: (1) the state violated his equal protection rights by striking three African Americans during jury selection; (2) the court erred by admitting into evidence a photograph of one of the victims; (3) the court erred by admitting into evidence a threatening statement made by the Defendant three years prior to the date of the crimes at issue in this case; (4) the court erred by failing to declare a mistrial when the State made a statement during closing argument which was unsupported by the evidence; and (5) the evidence was insufficient to support the jury's guilty verdicts. We affirm the judgments of the court.

The defendant was charged with two counts of vehicular homicide and one count of driving under the influence. He pled nolo contendere to one count of vehicular homicide. The defendant was on probation for prior convictions at the time of his plea and sentencing. A subsequent warrant for violation of probation was issued for his probationary sentence. The trial court sentenced the defendant to six years on his vehicular homicide plea to run consecutively to his probationary terms. On appeal, the defendant argues that the trial court should not have ordered the vehicular homicide sentence to be served consecutively to his probationary sentence. We conclude that the trial court did not err, and affirm the judgment of the trial court.

The wife sued for back child support on the basis that the parties' Marital Dissolution Agreement provided for a percentage of the husband's income which had not been paid. The Trial Court refused to award back support. On appeal, we affirm the Judgment of the Trial Court.

The petitioner, Larry Dotson, appeals from the lower court’s summary dismissal of his pro se petition for writ of habeas corpus. Following our review of the parties’ briefs and applicable law, we reverse the court’s dismissal of the petition and remand for further proceedings consistent with this opinion.

The majority concludes that the trial court committed reversible error by failing to grant a mistrial. I respectfully dissent. The majority opines that trial counsel’s overreaching remarks made during his opening statement, informing the jury that it was the victim who first struck the defendant, so tilted the scales of justice as to require the granting of a mistrial for reasons of manifest necessity.  See generally Millbrooks, 819 S.W.2d at 443; Zimmerman, 823 S.W.2d at 226.

The defendant appeals his conviction for theft of property, contending that the evidence failed to establish that he took the property without the owner's effective consent. However, upon review, we conclude that the evidence was sufficient to support the verdict and affirm the judgment of the trial court.

The Petitioner, Freddy Lee Parrish, Jr., appeals the trial court’s denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The State’s motion is granted. The judgment of the trial court is affirmed.

The petitioner, Ronnie Finch, was convicted by a jury of facilitation of first degree murder, two counts of attempted first degree murder and two counts of aggravated assault. As a result, the petitioner was sentenced to a total of forty-nine years in incarceration. The petitioner's convictions and sentence were affirmed by this Court on appeal. See State v. Frank E. Huey, et al, No. M2000-02793-CCA-R3-CD, 2002 WL 517132 (Tenn. Crim. App. at Nashville, Apr. 5, 2002), perm. app. denied, (Tenn. Oct. 14, 2002). The petitioner subsequently filed a pro se petition for post-conviction relief, alleging inter alia ineffective assistance of counsel. After an evidentiary hearing, the post-conviction court denied the petition. On appeal, the petitioner challenges the post-conviction court's denial of the petition. For the following reasons, the judgment on post-conviction petition is reversed; the judgment of acquittal is entered; and verdicts of guilt are vacated and dismissed.

The defendant, Kervin Collins, was involved in an altercation with his father, the victim. The defendant hit the victim several times with a shovel. After an indictment for aggravated assault, a Davidson County jury found the defendant guilty as charged. The trial court sentenced the defendant to five years as a Range I standard offender, and the defendant appealed. We reverse the judgment of the trial court with regard to the denial of the defendant’s motion for mistrial and remand for a new trial.