APPELLATE COURT OPINIONS

I must respectfully depart from the lead opinion in this case. I cannot conclude that the misdemeanor offense of casually exchanging a controlled substance is a lesser-included offense of felony possession with the intent to sell or deliver. Compare Tenn. Code Ann. § 39-17-417(a)(4) (1997) with Tenn. Code Ann. § 39-17-418(a) (1997).

I, like Judge Witt, respectfully disagree with Judge Welles’ conclusion that the trial court committed reversible error by failing to charge “casual exchange” as a lesser-included offense of possession with intent to sell. However, I also respectfully disagree with Judge Witt’s conclusion that the failure to give the casual exchange inference instruction was plain error. I would affirm.

The defendant, Thomas E. Cowan, Jr., was found guilty of contempt. The trial court imposed a jail sentence of 10 days, six of which were suspended. In this appeal of right, the defendant argues that the evidence was insufficient; that the trial judge should not have acted as a witness; and that the sentence was excessive. Because the evidence was insufficient, the judgment is reversed and the cause dismissed.

The defendant, Neil Friedman, was convicted of driving under the influence, third offense, and driving on a revoked license. The trial court imposed a sentence of 11 months and 29 days, six months of which was to be served in the county jail, for driving under the influence. A consecutive sentence of six months, 30 days of which was to be served, was imposed for driving on a revoked license. This court affirmed the judgment on direct appeal. State v. Neil M. Friedman, No. 03C01-9704-CR-00140 (Tenn. Crim. App., at Knoxville, Apr. 14, 1998). The application for permission to appeal to the supreme court was denied December 21, 1998. In a hearing conducted on the following day, the trial court reduced the DUI sentence to 120 days, which the defendant has since served, followed by seven months and 29 days of probation. Over one year later, the trial court revoked the probation and ordered service of the remainder of the sentence. In this appeal, the defendant contends that the trial court no longer had authority to revoke the probation. Because the sentence had been fully served and the probationary term had ended when the probation revocation warrant was issued, the judgment must be reversed and the cause dismissed.

The appellant was convicted by a jury in the Shelby County Criminal Court of second degree murder and was sentenced as a violent offender to twenty-one years incarceration in the Tennessee Department of Correction. On appeal, the appellant raises the following issues for our review: (1) whether the evidence was sufficient to convict the appellant of second degree murder; and (2) whether the trial court erred by refusing to grant a mistrial because of improper jury instructions characterizing the appellant's statement as a confession. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

The Defendant, Matthew Patrick Frontera, pleaded guilty to criminal impersonation, a Class B misdemeanor. Sentencing was left to the discretion of the trial court. As part of his plea agreement, the Defendant attempted to reserve the right to appeal a certified question of law relating to the legality of his stop, detention and questioning by police officers. In this appeal, the Defendant asserts that the trial court erred by refusing to suppress the evidence obtained against him due to an unlawful stop and detention. He also argues that the trial court erred by sentencing him to serve six months in the county jail with release eligibility at seventy-five percent. Because the Defendant failed to properly reserve his issue concerning his stop and detention, we are unable to reach the merits of that issue. We affirm the sentence imposed by the trial court.

In July 1999, the Defendant pled guilty to evading arrest and possession of marijuana, both Class A misdemeanors, and received concurrent sentences of eleven months and twenty-nine days supervised probation. In December 1999, the Defendant was indicted for assault and aggravated criminal trespass, both of which are also Class A misdemeanors. In January 2000, a violation of probation warrant was issued against the Defendant, alleging that he had violated his probation in the first two cases. In March 2000, the Defendant pled guilty to the assault and aggravated criminal trespass charges, and a combined sentencing hearing and probation violation hearing was held by the trial court. The trial court revoked the Defendant's probation in the first two cases and imposed concurrent sentences of eleven months and twenty-nine days incarceration. The court also imposed sentences of eleven months and twenty-nine days incarceration in the second two cases, to run concurrently with each other but consecutively to the sentences imposed in the first two cases. On appeal, the Defendant argues that the trial court erred in imposing sentences of incarceration in each case. Because our review of the record reveals that the sentences were proper, we affirm the judgment of the trial court.

The petitioner, King David Johnson, appeals the trial court's denial of his petition for post-conviction relief. The issue presented for review is whether the petitioner was denied the effective assistance of counsel at trial. The judgment is affirmed.

The appellant, Morris Jason Pepper, was convicted by a jury in the Lincoln County Circuit Court of one count of first degree premeditated murder and was sentenced to life imprisonment. On appeal, the appellant raises the following issues for our review: (1) whether the evidence is sufficient to sustain his conviction; and (2) whether the trial court erred by failing to grant the appellant's motion to suppress. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

In an indictment returned by the Morgan County Grand Jury, defendant, Charles R. Francis, was charged with fourth offense DUI. Count 1 of the indictment alleged that the triggering offense of DUI occurred on December 10, 1998. Count 2 of the indictment alleged that he had previously been convicted of DUI on three separate occasions in Morgan County, Tennessee. The defendant entered a "blind plea" to DUI, fourth offense, and sentencing was submitted to the trial court for a later hearing. At the sentencing hearing, the trial court ruled that defendant was convicted of the Class E felony of DUI, fourth offense, ordered a sentence of two (2) years, with service by split confinement of 150 days in the county jail, and the balance of the sentence to be served in the Community Corrections program. Asserting that he should have been sentenced for commission of a Class A misdemeanor DUI, fourth offense, rather than a Class E felony, defendant has appealed. The original judgment entered by the trial court reflected conviction of a Class A misdemeanor, but the judgment was later amended to reflect conviction of a Class E felony, in accord with the trial court's ruling at the conclusion of the sentencing hearing. We affirm the amended judgment of the trial court.

The appellant, Terry A. Rogier, by means of an interlocutory appeal seeks review of the trial court's decision affirming the district attorney general's denial of pre-trial diversion. Rogier was indicted by a Madison County Grand Jury for the offenses of reckless endangerment, a class E felony, and reckless driving, a class B misdemeanor. After review, we find that the prosecutor failed to consider all the relevant factors in denying diversion. Accordingly, we reverse the trial court's finding that the prosecutor did not abuse his discretion and remand to the trial court for further proceedings.