APPELLATE COURT OPINIONS

The pro se petitioner, Larry C. Strong, appeals the dismissal of his petition for post-conviction relief as time-barred, arguing that he should have been afforded an evidentiary hearing to present proof of his timely filing of the petition. Following our review, we affirm the post-conviction court's summary dismissal of the petition.

Grantors erected a house and driveway over an easement which was then sold to grantees. Grantees brought an action for damages to encumbered property and the Trial Court awarded grantees damages. We affirm.

After a bench trial, the Williamson County Criminal Court convicted the petitioner, Johnnie M. Talley, III, of five counts of making a false report and sentenced him to an effective sentence of eight years in the Department of Correction (DOC). Subsequently, the petitioner filed a petition for post-conviction relief, alleging (1) that his counsel was ineffective for failing to have him evaluated by a psychologist and (2) that he did not knowingly and voluntarily waive his rights to a jury trial or to testify. After an evidentiary hearing, the post-conviction court dismissed the petition, and the petitioner now appeals. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

In this action for personal injuries allegedly due to defendant's negligence, the Trial Court granted defendant summary judgment on the grounds that plaintiffs had executed a Waiver and Release of Liability which was required by defendant prior to plaintiffs' participation in white water rafting. Plaintiffs have appealed, insisting the Release is void as against the public policy of this State. We affirm.

The defendant, Shawnta Lamont Marsh, pled guilty to six counts of sale or delivery of cocaine over .5 grams. The trial court merged all but three of the convictions and ordered the defendant to serve consecutive sentences of eight years and one month for each offense. The effective sentence is twenty-four years and three months. In this appeal of right, the defendant contends that the trial court erred by ordering consecutive sentencing. The judgments of the trial court are affirmed.

The Petitioner, Gregory Eidson, filed a petition for wit of habeas corpus seeking relief from allegedly void judgments, which the trial court summarily dismissed. On appeal, the Petitioner contends that the habeas corpus court erred when it dismissed his petition. Finding that there exists reversible error in the judgment of the habeas corpus court, we reverse its dismissal of the Petitioner's petition for habeas corpus relief, and we remand the case for the appointment of counsel and an evidentiary hearing.

The Defendant, Paul Friedman, pled guilty to one count of promoting prostitution. Pursuant to Tennessee Rule of Criminal Procedure 37, the Defendant reserved as a certified question of law the issue of whether Tennessee Code Annotated section 39-13-512 (2003), et seq., under which he was indicted, was unconstitutional. We conclude that this statute is constitutional, and the judgment of the trial court is therefore affirmed.

The appellant, William Harlon Adams, appeals his convictions for vandalism of less than five hundred dollars ($500) and criminal attempt to commit resisting arrest. The following issues are presented for our review: (1) whether the trial court erred in denying the motion to suppress; (2) whether the trial court erred in instructing the jury on the offense of attempt to resist arrest; (3) whether the trial court erred in denying the motion to dismiss; (4) whether the evidence was sufficient to support the conviction for vandalism; and (5) whether the trial court correctly sentenced the appellant. After a thorough review, we determine that attempt to resist arrest is not a crime, thus, we reverse the appellant's conviction and remand the case for any further proceedings which may be necessary. We affirm the remainder of the judgment of the trial court, including the conviction for vandalism.

The petitioner appeals from the post-conviction court's dismissal of his petition for post-conviction relief. He contends that the post-conviction court erred in concluding that his petition was untimely filed without appointing counsel and conducting an evidentiary hearing to determine whether due process considerations tolled the statute of limitations. Following our review, we affirm the dismissal of the petition.

The defendant, Donald Solomon, pled guilty to theft of property valued at $1,000, but less than $10,000, a Class D felony. After conducting a sentencing hearing, the trial court classified the defendant as a Range I, standard offender and sentenced him to four years in the Department of Correction. The trial court ordered the defendant to serve the sentence consecutive to a sentence in another case for which the defendant was on probation at the time. In this direct appeal, the defendant presents the single issue of whether the trial court erred in sentencing. We affirm the judgment of the trial court.

A Bedford County jury convicted the defendant, John Thomas Bingham, of robbery, a Class C felony. Following a sentencing hearing, the trial court sentenced him as a Range I, standard offender to five years and six months in the Department of Correction. In this appeal, the defendant argues that the evidence is insufficient to support the conviction and that the trial court erred in sentencing. We affirm the judgment of the trial court.

Following the decedent’s death, his estate was not admitted to probate until well over one year from the date of his death. A creditor filed a claim against the estate over twenty-one months after the decedent’s date of death. The executors filed an exception to the creditor’s claim arguing that it was barred since it was not filed within one year of the decedent’s date of death. The probate court, relying on a previous decision rendered by this Court, held that the creditor’s claim was not barred by the applicable statutes. After reviewing the applicable statutory language and the decisions rendered by this Court interpreting those statutes, we reverse.

This appeal arises out of a divorce between the parties. In its decree, the trial court declared the parties were divorced, divided the marital property and the debts of the parties, ordered the husband to pay the entire balance of the guardian ad litem fees, named the wife the primary residential parent, and ordered the husband to pay wife child support. The husband now appeals to this Court. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.

An Obion County Circuit Court jury convicted the defendant, Anthony Shearer, of possession with intent to deliver one-half gram or more of cocaine, a Class B felony, and the trial court sentenced him to nine years in the Department of Correction. The defendant appeals, claiming that the evidence is insufficient and that his sentence is excessive. We affirm the trial court.

The Defendant, Jonathan Malcolm Malone, pled guilty to several offenses in two separate cases, the second of which was for an offense committed while he was out on bail for the first offenses. The trial court sentenced him to consecutive sentences, and awarded pretrial jail credit towards the sentences in the first case. The Defendant petitioned for the jail credit to be applied toward the sentence in his second case, and the trial court denied his request. The Defendant now appeals. Because we have concluded that the Tennessee Rules of Appellate Procedure do not provide the Defendant a Rule 3 Appeal as of Right, we dismiss the Defendant's appeal.

A Shelby County Criminal Court jury convicted the defendant, Clarence Mabon, of two counts of aggravated robbery, a Class B felony. The trial court merged the two offenses and sentenced him as a Range I, standard offender to eight years in the Department of Correction. On appeal, the defendant contends that the evidence is not sufficient to support his conviction and that a fatal variance exists between the indictment and the proof presented at trial. We affirm the judgment of the trial court.

The appellant, Ellis J. Burnett, was convicted by a jury in the Cannon County Circuit Court of aggravated arson. He received a sentence of twenty-three years incarceration in the Tennessee Department of Correction. On appeal, the appellant challenges the sufficiency of the evidence, the jury instructions, the prosecutor's closing argument, the trial court's evidentiary rulings, and alleges the ineffective assistance of counsel. Upon our review of the record and the parties' briefs, we affirm the judgment of the trial court.

The defendant, Charles Drake, stands convicted of aggravated assault with a deadly weapon and DUI. For the aggravated assault conviction, the trial court sentenced the defendant to four years, split confinement with supervised probation after service of six months' confinement. For the DUI conviction, the trial court imposed a sentence of 11 months and 29 days with a release eligibility at 75 percent. On appeal, the defendant asserts (1) that the evidence is insufficient to support his conviction of aggravated assault; (2) that the trial court committed reversible error in prohibiting the defense from presenting to the jury an animation of the automobile collision giving rise to the charges against the defendant; (3) that the trial court committed reversible error in admitting the results of a blood toxicology test; and (4) that his sentence is excessive. After thoroughly reviewing the record and applicable authorities, we find sufficient evidence to support the conviction, no error in the admission or exclusion of evidence at trial, and appropriate sentencing. We, therefore, affirm the convictions and sentences.

The Defendant, Patrick Lamont Barker, pled guilty to two counts of the sale of .5 grams or more of a schedule II controlled substance. The trial court sentenced him to eight years on each conviction and ordered that the sentences run concurrently and be served in community corrections. The Defendant violated the terms of his community corrections sentence, and the trial court ordered the Defendant to serve the remainder of his sentence in prison. The Defendant now appeals. Finding no error in the judgment of the trial court, we affirm the Defendant's sentence.

The petitioner, Kelvin Wade Cloyd, appeals the Johnson County Criminal Court's summary dismissal of his petition for habeas corpus relief. Following our review upon the record, we vacate the order and remand for further proceedings.

After entering a plea of guilty, the Defendant, Dave Long, was convicted of one count of burglary, a Class D felony. Pursuant to a plea agreement, the Defendant was to be sentenced to six years as a Range II, multiple offender, with the trial court to establish the manner of service. Following a sentencing hearing, the trial court ordered the Defendant serve his entire sentence with the Tennessee Department of Correction (TDOC). On appeal, the Defendant argues that the trial court erred in denying him probation or other alternative sentencing. We affirm the judgment of the trial court.

The defendant, Courtney Means, was convicted by a Shelby County Criminal Court jury of eight counts of aggravated robbery, a Class B felony, based on three separate incidents involving four victims. After merging the separate counts involving the same victim, the trial court sentenced the defendant as a Range I, standard offender to nine years for each of the remaining four convictions, with two of the sentences to be served consecutively, for an effective sentence of eighteen years in the Department of Correction. In this timely appeal as of right, the defendant challenges both the trial court’s application of enhancement factors to increase his sentences beyond the eight-year minimum for his range and its imposition of consecutive sentencing. Following our review, we affirm the judgments of the trial court.

The appellant, Joann White Pogue, pled guilty in the Marshall County Circuit Court to five counts of delivery of morphine and five counts of selling morphine, Class C felonies. The trial court merged each delivery conviction into a conviction for selling morphine and sentenced the appellant to an effective nine-year sentence in the Department of Correction (DOC). On appeal, the appellant claims the trial court improperly enhanced her sentences and improperly concluded that she was not entitled to the presumption that she was a favorable candidate for alternative sentencing. We agree that the trial court improperly applied enhancement factors and that the appellant was entitled to the presumption. Upon review of the record and the parties' briefs, we conclude that the trial court erred in its sentencing determinations and remand for resentencing.

This case is about a motion to set aside an order of dismissal. In 1997, the plaintiff sued the defendant for damages resulting from a 1996 car accident. On February 18, 2002, the trial court signed an order dismissing the lawsuit for failure to prosecute. That order was not filed by the court clerk until two years later, on February 18, 2004. During the two years between the time the dismissal order was signed until it was filed, both parties continued discovery and negotiation. After discovering the dismissal in 2004, the plaintiff asserted that neither party had received notice of the dismissal. The plaintiff then filed motions under Rules 59 and 60 of the Tennessee Rules of Civil Procedure, asking the trial court to set aside the order of dismissal. The motions were denied, and the plaintiffs appeal. We reverse, finding that under the circumstances of this case, the order of dismissal should have been set aside.

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.  The employee asserts he is permanently and totally disabled and appeals a finding of 80 percent permanent partial disability. We modify the award.