APPELLATE COURT OPINIONS

I respectfully dissent from the majority opinion in this case. First, I am compelled to note that there is not a transcript of the guilty plea hearing in the record. It is well settled that when a defendant appeals a sentencing issue and fails to provide a transcript of the guilty plea hearing in the record, that this court presumes that the action of the trial court was correct. See State v. Keen, 996 S.W.2d 842, 844 (Tenn. Crim. App. 1999); State v. Griffis, 964 S.W.2d 577, 592-93 (Tenn. Crim. App. 1997).

At the conclusion of a probation revocation hearing, the trial court ordered Defendant to serve six (6) years at thirty percent (30%) in the Department of Correction for the sale of cocaine. In this appeal as of right, Defendant asserts that the trial court failed to sentence him in accordance with the Criminal Sentencing Reform Act of 1989. We conclude that the evidence was sufficient to support the revocation of Defendant's probation and the trial court did not abuse its discretion by ordering Defendant confined per his original sentence. Thus, we affirm the judgment of the trial court.

The Defendant, Hershell Lee Kinnaird, was convicted by a jury in 1989 of accessory before the fact to first degree murder and conspiracy to commit first degree murder. He was sentenced to life imprisonment for the former conviction and to a concurrent ten year term for the latter conviction. The Defendant's convictions were affirmed on direct appeal. See State v. Kinnaird, 823 S.W.2d 571, 572 (Tenn. Crim. App. 1991). In this post-conviction proceeding the Defendant contends that the State violated his constitutional rights by withholding exculpatory evidence; that the post-conviction court erred by not granting his motion for state-funded experts; that he received ineffective assistance of counsel at trial; and that the trial court committed several instances of plain error violating his right to a fair trial and/or due process. Finding the Defendant's allegations to be without merit, we affirm the judgment of the post-conviction court.

At the conclusion of a sentencing hearing, the trial court imposed a sentence of 11 months and 29 days in the Coffee County jail with Defendant to serve 90 days before being released to probation for the offense of simple possession of a controlled substance, to wit: methamphetamine, plus a fine of $1,000. In this appeal as of right, Defendant asserts: (1) That the trial court abused its discretion in failing to sentence the Defendant to judicial diversion provided by Tenn. Code Ann. § 40-35-313; (2) Whether the trial court properly weighed the mitigating factors presented by Defendant in the sentencing hearing?; and (3) Whether the trial court imposed an excessive sentence? After a review of the entire record, briefs of parties, oral arguments and applicable law, we find the trial court
abused its discretion in denying judicial diversion and remand for a judgment of judicial diversion.  Thus, the trial court’s judgment is reversed and remanded.

After a jury trial, Defendant was found guilty of the included offense of simple assault in two counts and the jury assessed fines of $5,000 for each count. Defendant was subsequently sentenced to 11 months and 29 days on each count to run concurrently. The sentence was suspended except for 12 days to be served consecutively or six consecutive weekends. The fines were remitted to $500 for each count. In this direct appeal as of right, Defendant asserts that the jury and court erred in finding Defendant guilty, beyond a reasonable doubt, in two counts of simple assault based upon the sufficiency of evidence. We conclude that the evidence was sufficient to support Defendant's two convictions for simple assault. Thus, we affirm the trial court's judgment.

The Defendant, Mario Lambert, appeals as of right from the trial court's dismissal of his petition for writ of habeas corpus. He asserts that his sentence is illegal because the trial court was without authority to sentence him as a Range I, standard offender with a release eligibility of thirty percent for the offense of second degree murder. We hold that the trial court was without authority to sentence the Defendant as a Range I, standard offender with a thirty percent release eligibility for the offense of second degree murder. Therefore, based on our review of the record on appeal, it appears that the sentence imposed is an illegal sentence. Accordingly, we remand this case to the criminal court of Shelby County for further proceedings consistent with this opinion.

This appeal involves a motorcycle rider who was seriously injured when his motorcycle crossed metal plates covering a portion of the highway surface that was under construction. After voluntarily dismissing his first suit, the rider filed a second suit in the Circuit Court for Lincoln County against the corporation he believed to be responsible for placing the metal plates across the highway. The rider insisted on proceeding against this corporation even after he was informed that he had sued the wrong party. The corporation moved for a directed verdict at the close of the motorcycle rider's case-in-chief, asserting that he had failed to prove that it was responsible for the road construction. The trial court granted the motion and dismissed the rider's complaint. The rider now challenges the directed verdict on two grounds. First, he asserts that he presented enough evidence of the contractor's responsibility for the construction to take the case to the jury. Second, he asserts that the corporation should not be permitted to argue that he sued the wrong party because it had not specifically identified or described this party in its answer as required by Tenn. R. Civ. P. 8.03. We have determined that the corporation's denial of involvement with the construction project at issue was was not asserting an affirmative defense governed by Tenn. R. Civ. P. 8.03 and that the trial court properly granted the directed verdict. Therefore, we affirm the judgment dismissing the motorcycle rider's complaint.

This case involves a dispute over the scope of the right of the defendant to use the plaintiffs' property as a means of ingress and egress to various sections of the defendant's property. The deed to defendant's 1,600 acre tract, which surrounds plaintiffs' 151 acre tract on 3 sides, included a 26 foot wide north-south easement over plaintiffs' property. Plaintiffs alleged that defendant refused to confine his activities within the easement, thereby trespassing and committing waste upon their land. The trial court determined that defendant was entitled to use the 26 foot wide easement running in a north and south direction on the Conatsers' property and a second 20 foot wide route of ingress and egress branching off of the 26 foot easement in a northwesterly direction. The court rejected defendant's claim that he was entitled to a third easement along another east and west direction route and awarded plaintiffs $2,500 in damages for trespass. We affirm the trial court's rulings on the scope of defendant's easement and modify the damages to the $5000 originally awarded by the trial court.

The Monroe County grand jury indicted the defendant on two counts of selling or delivering over .5 grams of cocaine. At the conclusion of a bench trial, the trial court found beyond a reasonable doubt that the defendant had sold cocaine in the alleged amounts on the dates in question. However, immediately after making this determination, the trial court sua sponte announced that it was dismissing the indictment because of a fatal wording error. Through this appeal the State contends that the dismissal was erroneous and asks that the case be remanded for sentencing. Following our review of the record and applicable caselaw, we find the State's issue to have merit and, therefore, reverse the trial court's dismissal and grant the requested remand for sentencing.

In 1997, pursuant to a negotiated plea agreement, the Defendant pled guilty to possession of more than seventy pounds of marijuana with the intent to sell, a Class B felony, and received a twelve-year sentence as a Range II multiple offender, to be served in the Tennessee Department of Correction. On March 3, 2000, the Defendant filed a motion to correct an illegal sentence, alleging that he should have been sentenced as a Range I standard offender rather than a Range II multiple offender because two prior Pennsylvania convictions that were the basis for his Range II sentencing were misdemeanors rather than felonies. Following a hearing on the Defendant's motion, the trial court dismissed the motion, finding that "the Defendant may plead outside the range" and that the Defendant had sufficient qualifying felonies. Finding no error by the trial court, we affirm the judgment of the trial court dismissing the Defendant's motion.

The petitioner was originally convicted by a Henry County jury of first degree felony murder and sentenced to life without the possibility of parole. The conviction was affirmed on direct appeal. The petitioner sought post-conviction relief, which was denied by the post-conviction court. In this appeal, the petitioner contends she is entitled to post-conviction relief based on (1) newly discovered evidence and (2) ineffective assistance of counsel. After a thorough review of the record, we conclude that the post-conviction court correctly denied post-conviction relief.

The petitioner appeals the denial of post-conviction relief on his conviction for the sale of .5 grams of cocaine, a Schedule II controlled substance. In his pro se petition for post-conviction relief, the petitioner alleged that his trial counsel was ineffective for failing to thoroughly investigate and keep him informed of vital information regarding his case. After the appointment of post-conviction counsel and a hearing on the petition, the court denied the petition for post-conviction relief. The petitioner filed a timely appeal to this court, raising the sole issue of whether the post-conviction court erred in finding that he had effective assistance of trial counsel. Based upon a careful review of the record, we affirm the judgment of the post-conviction court.

The defendant was declared a motor vehicle habitual offender in Benton County Circuit Court. On appeal, he argues that the trial court erred because the first qualifying underlying conviction occurred more than five years before the date the state's petition was filed. Because no statute of limitations applies under the Motor Vehicle Habitual Offenders Act, we affirm the trial court's judgment.

The Defendant, Jackie F. Curry, appeals as of right his conviction for three counts of aggravated rape. The trial court sentenced the Defendant to twenty-two (22) years for each count. The sentences were ordered to run consecutively to each other and consecutively to a prior eight-year sentence for which the Defendant was on probation at the time of this incident. The Defendant raises the following three issues in this appeal: 1) whether the evidence was sufficient to sustain his convictions for aggravated rape; 2) whether the trial court erred in permitting the State to impeach him with two prior convictions for the sale of cocaine; and 3) whether the trial court erred in sentencing the Defendant. The judgment of the trial court is hereby affirmed.

Pursuant to Tennessee Code Annotated sections 55-10-601 to 55-10-617, the State of Tennessee filed a "petition and notice" to have the Appellant/Respondent, Ben Warren Miller, declared an Habitual Motor Vehicle Offender. The Appellant filed, in one pleading, an "Answer and Motion to Dismiss." In the answer, the Appellant admitted all material allegations which would support a judgment declaring him to be an habitual motor vehicle offender. In his motion to dismiss, the Appellant argued that no summons was issued with the petition, and the trial court violated the Tennessee Rules of Civil Procedure in signing an order which required, in part, that Appellant "may be held in violation of this order" if he did not appear and defend the petition to be declared an habitual motor vehicle offender. The trial court denied the motion to dismiss and rendered a judgment declaring Appellant to be an habitual motor vehicle offender. On appeal, the Appellant does not challenge the substantive grounds for having him declared an habitual motor vehicle offender. However, in three issues, he argues that the judgment should be reversed and the petition dismissed because: (1) The trial court's order entered subsequent to the filing of the petition required Appellant to appear and defend or "he may be held in violation of this order," (2) the trial court's order giving notice of the hearing on the petition was not signed by an assistant district attorney, (3) the trial court did not have the authority to issue an order directing the Appellant to appear at a hearing on the petition and did not have the authority to state in the order that he might be held in violation of the order if he did not appear and defend the petition. We affirm the judgment of the trial court.

The petitioner, Donald Mitchell Green, appeals the trial court's denial of post-conviction relief. In this appeal of right, the petitioner contends that the trial court erred by ordering a dismissal without an evidentiary hearing. The judgment is reversed and remanded to the trial court for the appointment of counsel and an evidentiary hearing.

The Defendant, Daniel Wade Wilson, appeals as of right his convictions for second degree murder, first degree felony murder and especially aggravated robbery in the Sullivan County Criminal Court. The trial court merged the second degree murder conviction into the felony murder conviction, and the jury sentenced the Defendant to life imprisonment for the felony murder. The trial court sentenced the Defendant to twenty-three (23) years for the especially aggravated robbery conviction. The sentences were ordered to run consecutively. The Defendant raises the following four issues in this appeal: 1) whether the trial court erred in failing to charge all applicable lesser-included offenses; 2) whether the trial court erred in failing to instruct the jury on the natural and probable consequences rule; 3) whether the evidence was sufficient to sustain Defendant's convictions for first degree felony murder and especially aggravated robbery; and 4) whether the trial court erred in sentencing the Defendant. The judgment of the trial court is hereby affirmed in part and reversed in part, and remanded to the trial court for a new trial on the felony murder charge in Count II and the especially aggravated robbery charge in Count III of the indictment. The case is further remanded for sentencing on the second degree murder conviction in Count I of the indictment

The defendant, James Kevin Underwood, was convicted of evading arrest, a Class E felony; driving on a revoked license, fourth offense; and possession of drug paraphernalia, the sentences to be served concurrently. Germane to this appeal, the defendant was sentenced for the evading arrest as a Range I offender either to two years in "house arrest" under a community corrections alternative program of which six months are to be served in jail, "day for day," or to six months in jail, day for day, followed by two years in a community corrections alternative program. Either way, the defendant contends (1) that the sentence exceeded the one-year sentence in his plea agreement and (2) that, in any event, the trial court cannot order him to serve six months day for day. We affirm the judgments for the two misdemeanor offenses, but we remand the evading arrest case for resentencing.

The petitioner, Kenneth Stomm, appeals the trial court's denial of his petition for writ of habeas corpus. The single issue presented for review is whether the petition was properly dismissed without an evidentiary hearing. The judgment is affirmed.

The Defendant, Lewis Woody, filed a notice of appeal which we construe to appeal the judgments of conviction for two forgeries resulting from a negotiated plea agreement, and he also included within the notice, an appeal from the trial court's order denying his motion to tax costs to the State and to "quash execution of garnishment." For the reasons set forth herein, we dismiss his appeal.

This appeal arises from the trial court's granting of a motion of summary judgment. The court ruled that Shop had violated an Agreement which incorporated in its entirety a previous lease of certain property. As a result, Owner was awarded the repair costs for certain repairs that Shop had been responsible for under the lease. Owner was also awarded attorney's fees and expenses. Shop appealed, arguing that certain material facts were in dispute and thus summary judgment was inappropriate. We affirm in part and reverse in part.