APPELLATE COURT OPINIONS

Following a revocation hearing, the trial court revoked the probation of Defendant, Kendrick D. Hutton, and ordered him to serve the remainder of his sentence in confinement. On appeal, Defendant requests this Court to remand the matter for a new probation revocation hearing because the trial court failed to follow the statutory procedure governing probation revocations. After review, we affirm the judgment of the trial court.

I concur in the result reached by the majority in this case, i.e., that the search of the defendant's car was permissible. However, I dissent to the extent that the majority opinion implies that probable cause existed upon the arrival of the described vehicle. I would not find probable cause had the driver, in a similar vehicle, been an individual not associated with Bobby Perkins, the target of this operation.

This is an appeal of a modification of alimony. The parties were divorced in February 2003. In the decree, the trial court awarded the wife rehabilitative alimony for eighteen months, but reserved jurisdiction to evaluate and review the award at the end of the eighteen-month period based on competent medical proof, noting that the wife was expected to pursue disability benefits during that time. During the interim, the wife’s second application for Social Security disability benefits was denied on the grounds that she had not worked long enough to qualify for such benefits. Over a year after entry of the divorce decree, the wife filed a motion for the trial court to review the alimony award. The trial court conducted a hearing and the wife entered into evidence medical proof that she could not be rehabilitated. The trial court did not require the wife to show a material change in circumstances, explaining that it had mistakenly classified the original award as being “rehabilitative.” Therefore, based on the additional proof, the trial court reduced the monthly amount and designated the award as alimony in futuro. The husband now appeals, arguing that the wife was required to show a substantial and material change in circumstances to warrant a modification of the original rehabilitative alimony award. We affirm, finding that the trial court retained jurisdiction to hear the medical proof and did not err in changing the award to alimony in futuro.

In this appeal the defendant, Roxa Perkins, contests her conviction of possession of over .5 grams of a Schedule II controlled substance with the intent to sell or deliver same. She raises four (4) issues for review: (1) whether the warrantless seizure and detention of the defendant violated her constitutional rights; (2) whether probable cause and exigent circumstances existed which justified a warrantless search of the defendant’s vehicle; (3) whether the trial court erred in failing to instruct the jury with respect to lesser included offenses of facilitation, attempt, and facilitation of attempt to possess drugs with the intent to sell or deliver; and (4) whether the defendant received the effective assistance of counsel. After a thorough review of the record and the applicable legal authorities we find no reversible error or ineffective assistance of counsel and we therefore affirm the judgment of the trial court.

This appeal involves the courts' power to require a property owner to post a bond to regain possession of real property on which a public nuisance had been maintained. After the Metropolitan Government of Nashville and Davidson County filed suit in the Criminal Court for Davidson County seeking to enjoin the operation of a brothel at a Nashville address, the property owner conveyed the property to a Nevada corporation. Even though the new property owner agreed to the entry of an order permanently enjoining the operation of a house of prostitution on the premises, the city insisted that the new owner should also be required to post a $20,000 bond to assure compliance with the injunction. The trial court acceded to the city's request and conditioned the restoration of the property to the owner's control on the owner posting a $20,000 cash bond. The owner has appealed. We have determined that the trial court erred by conditioning the property owner's lawful use of its property on the filing of an open-ended bond.

This is a direct appeal as of right upon a certified question of law. See Tenn. R. Crim. P. 37(b)(2). The Defendant, Paul Dotterweich, was convicted of DUI and underage consumption, both Class A misdemeanors, following his entry of guilty pleas. The Defendant received concurrent sentences of eleven months, twenty-nine days and loss of driving privileges for one year. On appeal, the Defendant argues that the trial court erred by failing to suppress the evidence upon which his convictions were based because the evidence was obtained during an unlawful investigatory stop. We affirm the judgments of the trial court.

The Defendant, Preston Kiser, pled guilty to multiple counts of passing worthless checks, theft under $500, theft over $500, forgery, reckless driving, and driving on a suspended license. For these offenses, the Defendant received an effective sentence of three years as a Range I, standard offender. The Defendant was ordered to serve his sentence on community corrections. Following a subsequent revocation hearing, the Defendant's community corrections sentence was revoked and the trial court ordered him to serve his sentence in confinement. The Defendant now appeals the trial court's revocation order. We affirm the judgments of the trial court.

The appellant, Daniel Lee Cook, pled guilty in the Williamson County Circuit Court to reckless burning, and the trial court sentenced him to eleven months, twenty-nine days to be served as thirty days in jail and the remainder on probation. The trial court also ordered the appellant to pay restitution in the amount of one hundred fifty dollars per month for five years. On appeal, the appellant claims that the State failed to prove the fair market value of the destroyed property and that the trial court erred by ordering a payment schedule that extended beyond the maximum statutory term of probation supervision that could have been imposed for the offense. We conclude that the evidence was sufficient for the trial court to determine the amount of the victim's loss. However, the trial court erred regarding the restitution payment schedule. Therefore, we reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.

The petitioner, Randy L. May, sought a writ of habeas corpus from the Wayne County Circuit Court, claiming that his 1981 life sentence had been rendered void by the Board of Probation and Parole's order that not only denied parole but also mandated, according to the petitioner, that he serve the balance of his sentence. The circuit court granted the state's motion to dismiss the petition without a hearing, and the petitioner appealed. We affirm the dismissal of the petition.

The Defendant, Robert Riggs, was convicted by a jury of three counts of misapplication of contract funds. His convictions were affirmed by this Court on direct appeal. See State v. Robert B. Riggs, No. E2000-01983-CCA-R3-CD, 2002 WL 1364031 (Tenn. Crim. App., Knoxville, June 25, 2002). The Tennessee Supreme Court denied the Defendant's application for permission to appeal. The Defendant subsequently filed a pro se petition for post-conviction relief, while he remained incarcerated. The State responded by filing a motion to dismiss on the grounds that the petition had been filed outside the statute of limitations. The Defendant contested the State's motion but the trial court granted it without a hearing. The Defendant now appeals the summary dismissal of his petition for post-conviction relief. We reverse the trial court's ruling and remand this matter for an evidentiary hearing on the timeliness of the Defendant's petition.

A Marshall County Circuit Court jury convicted the appellant, Dwayne Tyrone Simmons, of aggravated burglary and theft of property valued less than $500. The trial court sentenced the appellant to concurrent sentences of eight years, ten months for the aggravated burglary conviction and nine months, eighteen days for the theft conviction. In this appeal, the appellant raises various issues, including that the evidence is insufficient to support his aggravated burglary conviction and that he was unable to present photographs of the home in question to the jury. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.

This matter is before the Court upon the State's motion to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petitioner, Cumecus R. Cates, has appealed the trial court's order summarily dismissing his petition for the writ of habeas corpus. In that petition, the petitioner sought a writ of habeas corpus to release him from various sentences. We are persuaded that the trial court was correct in summarily dismissing the habeas corpus petition and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the State's motion is granted, and the judgment of the trial court is affirmed.

The defendant, Michael E. Raines, pled guilty in the Davidson County Criminal Court to attempt to commit second degree murder, a Class B felony. Pursuant to the plea agreement, the trial court sentenced the defendant as a Range I, standard offender to eight years with the trial court to determine the manner of service of the sentence. After a sentencing hearing, the trial court ordered that the defendant serve his sentence in confinement. The defendant appeals, claiming that he should have received alternative sentencing. We affirm the judgment of the trial court.

The pro se Appellant has asked this Court to review the lower court's denial of his petition contesting the manner in which the executrix administered the estate. Specifically, the Appellant seeks certain personal property from his father's estate he argues the Appellee, his sister, is unlawfully withholding as executrix. The Appellant filed a statement of the evidence with this Court in lieu of filing transcripts of the testimony. After the Appellee objected to the statement of the evidence, the trial court ruled that the Appellant's statement of the evidence was inaccurate or incomplete. Without a sufficient record, we cannot adequately review the trial court's decision to dismiss the Appellant's petition. We affirm.

On May 24, 2004, the petitioner, Patrick S. Riley, filed a petition for post-conviction relief that challenged his January 11, 2002 conviction of aggravated burglary. The post-conviction court dismissed the petition as being barred by the statute of limitations set forth in Tennessee Code Annotated section 40-30-102(a) (2003). The petitioner now appeals. We affirm the dismissal of the petition.

Mother appeals the termination of her parental rights to her child, J.L. The trial court terminated the mother's parental rights on the grounds of abandonment, persistence of conditions, and substantial noncompliance with the permanency plan. The trial court also found the termination of the mother's parental rights was in the child's best interest. We affirm.

Plaintiffs filed a declaratory judgment action seeking a declaration that they had not been "made whole" in a settlement agreement with third-party tortfeasors and that any subrogation claim by Defendant insurer should be denied. The trial court awarded Plaintiffs summary judgment. Defendant insurer appeals. We reverse the award of summary judgment and remand for further proceedings.

This appeal comes from the trial court’s dismissal of the plaintiff’s governmental tort liability claim
and its denial of the plaintiff’s Motion to Alter or Amend based on newly discovered evidence. We
affirm the trial court in all respects.

Defendant, Samuel Eugene Webster, was charged with aggravated kidnapping and aggravated rape. Pursuant to a negotiated plea agreement, he pled guilty to simple rape, a Class B felony, with a sentence of eight years and the manner of service to be decided by the trial court following a sentencing hearing. The charge of aggravated kidnapping was dismissed. Following a sentencing hearing, he was sentenced to serve eight years in the Department of Correction. On appeal, Defendant argues that the trial court erred in denying his request for alternative sentencing. After a thorough review of the record, we affirm the judgment of the trial court.

The Petitioner, Lavely Brown, was convicted of first degree murder, armed robbery, and aggravated kidnapping, and the trial court sentenced him, as a Range II offender, to life imprisonment for the murder conviction, and two concurrent sentences of forty years for the armed robbery and aggravated kidnapping convictions. On appeal, this Court affirmed the Petitioner's convictions and sentences. The Petitioner filed a petition for post-conviction relief, which the post-conviction court denied after a hearing. On appeal, the Petitioner contends the post-conviction court erred when it dismissed his petition because: (1) the State withheld exculpatory information from him; (2) the State committed prosecutorial misconduct in its closing arguments; (3) the trial court conducted an improper ex parte conference with an appellate court judge; (4) the trial court improperly instructed the jury; and (5) he received ineffective assistance counsel. After thoroughly reviewing the record and the applicable law, we conclude that there exists no reversible error in the judgment of the post-conviction court.

This is a divorce case. The husband filed a petition for divorce after five years of marriage. Following a trial, the trial court entered a final decree detailing the equitable distribution of the parties' property. The wife filed a motion to alter or amend the decree, arguing, among other things, that some of the property awarded to the husband was not marital property. The trial court denied that motion. The wife now appeals. We affirm, noting that, in the absence of a transcript or a statement of the evidence, we must presume that the evidence supported the trial court's rulings related to the equitable distribution of the parties' property.

This case arises out of a dispute between adjacent landowners regarding whether an easement can be obstructed by a locked gate. The plaintiff placed a locked gate across the easement and asserts that it is necessary for the protection of her person and property. The defendants disagree and argue that the locked gate unreasonably interferes with ingress and egress to their property. The trial court found in favor of the plaintiff. We find that the plaintiff has failed to present sufficient evidence that her person or property is at risk and that she has unsuccessfully attempted alternate means of protecting same and, therefore, it is our determination that plaintiff has failed to prove that the locked gate is necessary. We further find that the locked gate unreasonably interferes with the defendants' use of the easement. Based upon these findings, we reverse the judgment of the trial court in part, affirm in part, and remand.

The petitioner, Timothy Dewayne Gardner, was convicted by a jury in the Robertson County Circuit Court of possessing over 300 grams of cocaine with intent to sell. The petitioner received a sentence of seventeen years incarceration in the Tennessee Department of Correction. Subsequently, the petitioner filed for post-conviction relief, alleging that he received ineffective assistance of counsel. The post-conviction court denied the petition, and the petitioner now appeals. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

The defendant appeals his conviction for second degree murder on the grounds of (1) insufficient evidence to support the verdict and (2) the sentence, pursuant to Blakely issues. After review, we find sufficient evidence to support the verdict. The Tennessee sentencing structure is not impacted by Blakely, therefore, the sentence is affirmed.

In this appeal we are called upon to evaluate a juvenile court’s decision regarding a petition to
modify a previous custody order. The original custody order awarded custody of the minor child to
the maternal grandparents over the objection of the natural father. At the conclusion of the hearing on the father’s petition to modify custody, the juvenile court found that a material change in circumstances warranted a change in custody from the maternal grandparents to the natural father. The juvenile court also awarded the grandparents liberal visitation. The grandparents filed an appeal to this Court. We vacate the decision of the juvenile court and hold that the superior parental rights doctrine, not a material change in circumstances, is the standard which the juvenile court should have applied to the father’s petition for a change of custody.