APPELLATE COURT OPINIONS

I am unable to join with my colleagues in holding that a trial judge may not modify a misdemeanant’s “program eligibility” percentage following revocation of the misdemeanant’s suspended sentence. Our sentencing laws provide that “in imposing a misdemeanor sentence, the court shall fix a specific number of months, days or hours and the defendant shall be responsible for the entire sentence . . .,” subject to various authorized sentencing credits. Tenn. Code Ann. § 40-35-302(b). The program eligibility percentage, as provided by subsection 302(d), has no bearing upon the misdemeanant’s length of sentence or when the sentence expires; rather, as noted above, every non-suspended misdemeanor sentence is served at one hundred percent. Moreover, as observed by the majority, program eligibility percentage is distinguished from probation, which is authorized in subsection 302(e). Program eligibility, which is viewed under our sentencing law as a rehabilitative measure, relates only to placement in “rehabilitative programs” for service of the sentence as
imposed. The fixing of a percentage for program eligibility, as with probation, must be determined at sentencing. Tenn. Code Ann. § 40-35-302(d).

The defendant appeals from his conviction for driving under the influence, third offense, contending that the trial court erred by denying his motion to sever. We affirm the judgment of the trial court.

The defendant, Michael Ray Swan, was convicted for simple assault, driving on a revoked, suspended, or cancelled license, and violating the implied consent law. The trial court sentenced the defendant to 11 months, 29 days for the assault; ordered a term of six months on the revoked license conviction; and revoked the defendant's license for one year for violating the implied consent law. In this appeal of right, the defendant presents the following issues: (1) whether there was sufficient evidence to support the convictions; (2) whether the trial court properly charged the jury; (3) whether the trial court erred by allowing the state to submit a statement of evidence; (4) whether the trial court erred by denying defendant's motion to stay the suspension of his license; and (5) whether the trial court erred by revoking the defendant's license. After a review of the record, we reverse and dismiss the conviction for driving on a revoked, suspended, or cancelled license; the judgment for the implied consent violation is modified to a one-year suspension rather than revocation. The conviction for simple assault is affirmed.

The Defendant, Kenneth Anthony, was convicted by a Davidson County jury of first degree pre-meditated murder and attempted second degree murder. For these offenses, the Defendant received a sentence of imprisonment for life and a concurrent sentence of ten years in the Tennessee Department of Correction, respectively. On appeal, the Defendant challenges the sufficiency of the evidence with regard to the first degree premeditated murder conviction. Finding sufficient evidence in the record to support the Defendant's convictions, we affirm the judgment of the trial court.

The petitioner originally pled guilty to felony reckless endangerment, evading arrest in a motor vehicle, and two counts of theft over $1,000. The petitioner sought post-conviction relief, which was denied by the post-conviction court. In this appeal, the petitioner contends his trial counsel provided ineffective assistance of counsel. After a thorough review of the record, we conclude that the post-conviction court correctly denied post-conviction relief.

The Defendant, Lillie Fran Ferguson, pled guilty to possession with intent to sell or deliver less than .5 grams of a Schedule II controlled substance and to failure to obey a stop sign. As part of her plea agreement, she expressly reserved with the consent of the trial court and the State the right to appeal certain certified questions of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2) relating to the frisk of her person and the subsequent seizure of contraband. In this appeal, the Defendant asserts that the trial court erred by refusing to suppress the evidence obtained against her as the result of an unlawful frisk. She claims that the officer did not have reasonable suspicion that she was armed and dangerous, thereby warranting a Terry pat-down, and that the incriminating nature of the crack pipe felt by the officer during the pat-down was not immediately apparent within the meaning of the "plain feel" doctrine. However, because the Defendant failed to properly certify her issues for review, we are unable to reach the merits of her case. Accordingly, this appeal is dismissed.

The defendant was indicted for first degree murder and convicted by a Lawrence County jury of second degree murder. In this appeal as of right, the defendant presents two issues for our review: (1) whether the evidence was sufficient to support his conviction; and (2) whether the trial court erred in failing to charge the jury on the lesser-included offenses of criminally negligent homicide and reckless homicide. The trial court charged the jury as to first degree murder, second degree murder, and voluntary manslaughter. The defendant received a sentence of twenty years to be served at 100% in the Tennessee Department of Correction. Having reviewed the entire record, we conclude that the evidence was sufficient to convict the defendant of second degree murder. We further conclude that the trial court did not err in failing to instruct on two additional lesser-included offenses. The judgment of the trial court is affirmed.

While I concur in the result, I write separately because I believe that the trial court erred by failing to instruct the jury on the lesser included offenses of criminally negligent homicide and reckless homicide.

The defendant was convicted by a Davidson County Criminal Court jury of aggravated burglary, aggravated assault, and kidnapping, for which he received an effective sentence of eighteen years. In this appeal as of right, he raises the following issues: 1) whether the trial court erred in allowing the victim's son to testify about the defendant's prior assault on the victim; 2) whether the convictions for aggravated assault and kidnapping should have been merged; and 3) whether the trial court erred in imposing consecutive sentencing. Based upon our review, we affirm the judgment of the trial court.

I find that I must respectfully depart from Judge Hayes’s opinion. I concur in the reversal of the fine of $27,500, but I disagree that the fine provision of Code section 55-50–504(a) should be declared unconstitutional and that we should impose a fine pursuant to the provisions of Tennessee Code Annotated section 40-35-111(e)(1). I have concluded that we should hold that the particular fine in this case is excessive via our sentencing law but that we may, and should, stop short of declaring the statutory provision unconstitutional. On de novo review, we should impose a fine of $3,000, as is authorized by Code section 55-50-504(a).

Alvin Ray Taylor was convicted by a jury of driving on a revoked license, second offense. The jury fixed his fine at $27,500. Taylor argues on appeal that the fine provisions of TENN. CODE ANN. § 55-50-504(a)(2) permit the imposition of a fine with no maximum limit violating the Eighth Amendment protection against excessive fines. After review, we find the penalty provisions of the statute, as it relates to the amount of fine which may be fixed, unconstitutional and the fine imposed in this case excessive. Accordingly, that portion of the judgment imposing a fine of $27,500 is vacated. The Appellant’s fine is modified to reflect a fine of $2,500 pursuant to TENN.CODE ANN. § 40-35-111 (e)(1) ( maximum authorized fine for class A misdemeanor).