APPELLATE COURT OPINIONS

The defendant, Joseph B. Thompson, was convicted of aggravated robbery and aggravated kidnapping. The trial court imposed consecutive sentences of twenty years for each offense for an effective sentence of forty years. In this appeal of right, the defendant asserts (1) that the trial court erred by denying his motion for judgment of acquittal; (2) that his convictions for both aggravated robbery and aggravated kidnapping violate the rule established in State v. Anthony; (3) that a pretrial photographic array was unduly suggestive; (4) that the trial court erred by the admission of photographs of the victim; (5) that the trial court erred by denying his motion for mistrial; (6) that the offenses should have been severed for trial; (7) that the trial court erred by refusing to dismiss the indictment when the state failed to disclose exculpatory information; (8) that the trial court erred by admitting a receipt that was not properly authenticated; (9) that the trial court impermissibly limited closing argument to forty minutes; and (10) that the sentence is excessive. The judgments of the trial court are affirmed.

The Appellant, Mario C. Estrada, appeals the sentencing decision of the Maury County Circuit Court imposing a sentence of twelve years incarceration in the Department of Correction. The sentence arose from guilty pleas by Estrada to one count of arson, eight counts of aggravated assault, and one count of possession of a prohibited weapon. The indictment returned against Estrada charged him with one count of aggravated arson, eight counts of attempted first degree murder, and one count of possession of a prohibited weapon. In this appeal, Estrada raises the issue of whether the trial court erred by ordering that his sentence be served in total confinement. After review, we find that plain error dictates that the convictions be vacated and the case remanded for further proceedings because aggravated assault is not a lesser included offense of attempted first degree murder.

The Appellant, Jason R. Garner, appeals his conviction by a Shelby County jury of second degree murder and especially aggravated robbery. The convictions arose from Garner's involvement in the robbery and shooting of Charles Bledsoe. Garner received consecutive sentences of twenty years for second degree murder and twenty years for especially aggravated robbery. On appeal, Garner argues that: (1) the evidence was insufficient to sustain his convictions; (2) the convictions are "irreconcilable;" (3) the trial court erred by allowing the State to file untimely notice of sentence enhancements; (4) the trial court erred by failing to submit an instruction with regard to accomplice testimony to the jury; and (5) his sentences were excessive and the imposition of consecutive sentences was error. After review, we find these issues without merit. Accordingly, the judgment of the trial court is affirmed.

On August 27, 2001, pursuant to a bench trial, the Circuit Court of Tipton County found the defendant, Raymond N. Wallace, guilty of driving under the influence, second offense. For this offense, he received an effective sentence of eleven months, twenty-nine (29) days, suspended on the service of forty-five (45) days. The court fined the defendant $600.00 and suspended his license to drive for two years. The defendant contends that the evidence presented at his trial was insufficient to support the conviction for driving under the influence of intoxicating beverages. After a thorough review of the record before this Court, we affirm the trial court’s judgment pursuant to Tennessee Court of Criminal Appeals Rule 20.

The petitioner, Reginol L. Walters, was convicted of aggravated robbery, aggravated burglary, and two counts of aggravated rape and, while his direct appeal was pending, filed a petition pursuant to Tennessee Code Annotated section 40-30-403 requesting forensic analysis of DNA evidence. The post-conviction court dismissed the petition, as well as a petition to reconsider, concluding that the petitioner could not proceed with his petition while his direct appeal was pending. Following our review, we conclude that the applicable statute does not prohibit the petitioner from proceeding simultaneously with a direct appeal and a petition for analysis of DNA evidence. Accordingly, we reverse the order of the post-conviction court and remand for consideration of the petition.

An Obion County jury convicted the defendant, Eric Gene Island, of attempt to commit robbery and conspiracy to commit robbery. The trial court sentenced him to concurrent sentences of four years for each conviction. On direct appeal, the defendant contends: (1) trial counsel was ineffective in failing to investigate the case and secure witnesses; and (2) he was denied his right to testify at trial. Upon reviewing the record, we conclude the failure to conduct a Momon hearing to determine whether the defendant personally waived his right to testify was plain error. Therefore, we remand the case to the trial court for a full hearing on the issue.

The petitioner, Michael Anthony Scruggs, pled guilty to forgery and theft under $500. The trial court ordered concurrent sentences of six years for the forgery and eleven months, twenty-nine days, for the theft. No appeal was taken. Later, the petitioner filed a petition for post-conviction relief alleging ineffective assistance of counsel. After a hearing, the post-conviction court denied relief, finding that the petitioner had failed to prove that his appointed counsel fell below the required level of competency. The judgment of the post-conviction court is affirmed.

The defendant appeals his effective ten-year community corrections sentence with a requirement of 160 days of jail time after pleading guilty to violating a habitual motor vehicle offender order, driving under the influence - 4th offense, and resisting arrest. The defendant filed no transcripts of the guilty plea submission hearing or sentencing hearing. These hearings are essential for appellate review. Therefore, we must presume that the trial court is correct. We affirm the judgments of the trial court.

Petitioner, Sharon R. Hurt, was convicted by a jury of first degree murder and conspiracy to commit first degree murder. The trial court sentenced Petitioner to serve consecutive sentences of life imprisonment and twenty-four years. On direct appeal, this court affirmed Petitioner's convictions and sentences. State v. James Murray, Marcie Murray and Sharon R. Hurt, No. 01C01-9702-CR-00066, 1998 Tenn. Crim. App. LEXIS 1323, 1998 WL 934578 (Tenn. Crim. App., filed at Nashville, Dec. 30, 1998), perm. to app. denied (Tenn., June 28, 1999). On September 4, 2001, Petitioner filed a petition for post-conviction relief, in which she alleged the existence of new scientific evidence establishing her actual innocence. The State sought to dismiss the petition. The trial court dismissed the petition, finding that Petitioner failed to show the existence of new scientific evidence, and the petition was therefore barred by the statute of limitations. After a review of the record, we affirm the judgment of the trial court.

The defendant was convicted of aggravated assault, a Class C felony, and was sentenced by the trial court as a Range I, standard offender to three years in the Department of Correction, with the sentence to be suspended and the defendant placed on probation after one year in the county workhouse. She raises two issues on appeal: (1) whether the evidence was sufficient to support her conviction; and (2) whether the trial court erred in ordering that she serve one year of her sentence in the county workhouse. Based on our review, we affirm the judgment of the trial court.

The petitioner, Thomas J. McKee, appeals the Knox County Criminal Court's denial of his petition for post-conviction relief from his conviction for first degree premeditated murder and resulting life sentence. He contends that he received the ineffective assistance of counsel because his trial attorney failed (1) to request a mental evaluation for him; (2) to make a contemporaneous objection to the state's improper closing argument; and (3) to object to the inclusion of the phrase "moral certainty" in the jury's instruction on reasonable doubt. We affirm the trial court's denial of the petition.

The defendant appeals her sentence of three years imprisonment for the sale of less than .5 grams of cocaine, a Class C felony. The defendant argues she is a favorable candidate for alternative sentencing. The record supports the defendant's assertion that she is entitled to an alternative sentence. The defendant is sentenced to three years in split confinement, with thirty (30) days incarceration and the remainder on supervised probation. We remand this judgment to determine if the defendant continues to hold full-time employment. If the defendant is employed full-time, she is to serve her thirty (30) days in periodic confinement.

The Appellant, James Mario Starnes, was indicted by the Bedford County Grand Jury for first degree murder and especially aggravated robbery. Starnes pled guilty to attempted second degree murder and especially aggravated robbery. Following a sentencing hearing, Starnes received concurrent sentences of ten years, nine months for attempted second degree murder and twenty-five years for especially aggravated robbery. Starnes now appeals his especially aggravated robbery conviction, contending that the evidence is insufficient to establish his guilt for that offense. Because the error complained of was waived as a matter of law by Starnes’ plea of guilty, this issue is not reviewable upon direct appeal. Accordingly, this appeal is dismissed.