APPELLATE COURT OPINIONS

The petitioner, Jose D. Holmes, appeals the denial of post-conviction relief by the Criminal Court of Shelby County from his conviction of especially aggravated robbery. In this appeal, the petitioner claims that he received ineffective assistance of counsel. Following a review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

The petitioner, Michael M. Taylor, has filed a petition for post-conviction relief to challenge his 1997 second degree murder conviction imposed after a jury trial in the Davidson County Criminal Court. The petition alleges the ineffective assistance of trial counsel and two trial court errors. After the appointment of counsel and counsel's amendment of the post-conviction petition, the post-conviction court conducted an evidentiary hearing. Subsequently, the post-conviction court made findings of fact and on November 13, 2000 entered an order denying post-conviction relief. The petitioner filed a notice of appeal on February 23, 2001. Because the notice of the appeal was untimely and because the record contains no for basis for excusing the untimely filing of notice of appeal, we dismiss the appeal.

Petitioner failed to prove by clear and convincing evidence that he was denied effective assistance of counsel. We affirm the trial court's denial of petitioner's petition for post-conviction relief.

The Petitioner was convicted of felony murder and sentenced to life in prison. This Court affirmed the conviction on direct appeal. The Petitioner subsequently filed a petition for post-conviction relief, alleging that her trial attorney was ineffective. The post-conviction court denied relief, and this appeal ensued. Finding no error, we affirm the judgment of the post-conviction court denying relief.

The Defendant was arrested in September 1996 for aggravated assault, being a felon in possession of a firearm, and fleeing. His case was not set for trial until July 2000. The Defendant moved for dismissal of the charges on the ground that he had been denied his constitutional right to a speedy trial. The trial court granted the Defendant's motion, and the State now appeals as of right. Concluding that the trial court did not abuse its discretion in finding that the Defendant was prejudiced by the delay, we affirm the judgment of the trial court.

The defendant, Connie Lee Arnold, appeals from the Carter County Criminal Court's denial of his motion for return of property by the state in its prosecution of him and for return of property and files in the possession of his former trial attorney. The trial court concluded that it had no jurisdiction to rule in the matter. The state agrees with the defendant that the trial court has jurisdiction to act on the motion relative to evidence used in the case and otherwise seized and possessed by the state, but it asserts that property and files possessed by the defendant's former attorney should be addressed by the Board of Professional Responsibility or a civil court. Although we hold that the trial court had jurisdiction relative to evidence presented in the case, we affirm the trial court.

The defendant was convicted by a jury of reckless aggravated assault, a Class D felony, for cutting the victim's face with a razor blade. The trial court granted her judicial diversion, sentencing her as a Range I, standard offender to two years incarceration, but suspending the sentence and placing her on three years of probation under the supervision of the Department of Correction, including among the conditions that she pay restitution for the victim's medical bills and lost wages. Following extensive testimony as to the defendant's limited financial resources, the trial court ordered as a condition of probation that she legitimate her nine-month-old daughter to ensure that she could meet her financial obligations, including payment of restitution to the victim. In a timely appeal to this court, the defendant raises the sole issue of whether the trial court erred by requiring her to legitimate the younger of her two illegitimate children and seek child support payments for that child. We conclude that the legitimation requirement is a valid condition of probation. However, since a judgment of conviction, although not to be entered following judicial diversion, was entered in this matter, we remand for withdrawal of the judgment, the trial court to then clarify whether the defendant is to be sentenced with the sentence suspended or to be granted judicial diversion.

The Appellant, Miko T. Burl, was convicted by a Shelby County jury of aggravated assault, aggravated burglary, and especially aggravated robbery. Burl received an effective twenty-five year sentence. On appeal, Burl raises the following issues: (1) whether the evidence was sufficient to support the verdicts; (2) whether the trial court erred in not suppressing the photographic identification; (3) whether the trial court erred in rejecting his special jury instruction relating to the suggestiveness of the photo identification procedure; and (4) whether his sentence was proper. After a review of the record, we find Burl's issues are without merit. We find, however, as plain error, that Burl's convictions for both aggravated assault and especially aggravated robbery violate double jeopardy principles. The conviction for aggravated assault is, therefore, vacated. The judgment of the trial court in all other respects is affirmed.

The defendant, Jessie James Austin, appeals as of right his convictions by a Weakley County Circuit Court jury for two counts of aggravated assault, a Class C felony. The trial court sentenced him as a Range III, persistent offender to twelve years in the Department of Correction for each count to be served concurrently. The defendant contends that the evidence is insufficient to prove either count of aggravated assault and that the trial court should have instructed the jury on the lesser included offense of reckless aggravated assault. We affirm the trial court's judgments of conviction.

The Defendant was convicted of theft of property valued between $1,000 and $10,000, a Class D felony, and criminal trespass. The trial court sentenced him as a Range II, multiple offender to six years incarceration for the theft conviction and to thirty days incarceration for the criminal trespass conviction, with the sentences to be served concurrently. The Defendant argues that insufficient evidence was presented at trial to convict him of theft or criminal trespass. We affirm the judgment of the trial court.

The defendant appeals his conviction of aggravated robbery for the armed robbery of the Union Bank and Trust in Rickman, Tennessee. We conclude that the defendant did not prove his claim of ineffective assistance of counsel and the record supports the trial court's finding that the defendant personally waived his right to testify. Furthermore, the record reveals that the defendant introduced evidence about an uncharged crime in order to impeach testimony by a witness for the state and, therefore, cannot challenge the introduction of such evidence on appeal. The trial court properly fulfilled its duty to act as a thirteenth juror. In addition, there is sufficient evidence to support the defendant's conviction for aggravated robbery. The judgment of the trial court is affirmed.