matter of plain error in Tennessee

2024In order for an appellate court to grant plain error relief, (a) the record must clearly establish what occurred in the trial court; (b) a clear and unequivocal rule of law must have been breached; (c) a substantial right of the accused must have been adversely affected; (d) the accused did not waive the issue for tactical reasons; and (e) consideration of the error is “necessary to do substantial justice.” State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim.

2019See State v. Adkisson, 899 S.W.2d 626 , 641- 42 (Tenn. Crim.

2015To establish a claim of plain error, “(a) the record must clearly establish what occurred in the trial court; (b) a clear and unequivocal rule of law must have been breached; (c) a substantial right of the accused must have been adversely affected; (d) the accused did not waive the issue for tactical reasons; and (e) consideration of the error is ‘necessary to do substantial justice.’” State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim.

2014Our supreme court has adopted the factors developed by this court to be considered when deciding whether an error constitutes “plain error” in the absence of an objection at trial: “(a) the record must clearly establish what occurred in the trial court; (b) a clear and unequivocal rule of law must have been breached; (c) a substantial right of the accused must have been adversely affected; (d) the accused did not waive the issue for tactical reasons; and (e) consideration of the error is ‘necessary to do substantial justice.’” State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. A

2010App. P. 36(b); State v. Lewis, 958 S.W.2d 736, 738 (Tenn. 1997), we hold that principles of double jeopardy bar the defendant’s multiple convictions of aggravated sexual battery and his multiple convictions of aggravated rape.

2010App. P. 36(b); State v. Lewis, 958 S.W.2d 736, 738 (Tenn. 1997), we hold that principles of double jeopardy bar the defendant’s multiple convictions of robbery and theft, see State v. Hayes, 7 S.W.3d 52, 56 (Tenn. Crim.

2021This is not a matter of plain error and the failure to object precludes the defendant from relying on this as grounds for upsetting the verdict.” State v. Davidson, 606 S.W.2d 293, 298 (Tenn. Crim.

2021See State v. Comer, 278 S.W.3d 758 (Tenn. 2008) (holding that, in determining restitution, the sentencing court must consider a defendant’s financial resources and ability to pay); see also State v. Lane, 254 S.W.3d 349, 353 (Tenn. 2008) (holding that the failure to consider a defendant’s financial ability to pay restitution was a “plain and palpable abuse of discretion[.]”); State v. Tyson B.

2021See State v. Comer, 278 S.W.3d 758 (Tenn. 2008) (holding that, in determining restitution, the sentencing court must consider a defendant’s financial resources and ability to pay); see also State v. Lane, 254 S.W.3d 349, 353 (Tenn. 2008) (holding that the failure to consider a defendant’s financial ability to pay restitution was a “plain and palpable abuse of discretion[.]”); State v. Tyson B.

2017This court has previously held that DUI is a lesser included offense of vehicular assault and that “for double jeopardy purposes, a person cannot be punished separately for DUI and vehicular assault for one act of driving under the influence that causes serious bodily injury.” State v. Rhodes, 917 S.W.2d 708, 713 (Tenn. Crim.

2015The trial court in a criminal case is required to give “a complete charge of the law applicable to the facts of the case[.]” State v. Thompson, 519 S.W.2d 789, 792 (Tenn. 1975). “[T]he defendant has a right to have every issue of fact raised by the evidence and material to his defense submitted to the jury upon proper instructions by the judge.” Id.

2015The trial court in a criminal case is required to give “a complete charge of the law applicable to the facts of the case[.]” State v. Thompson, 519 S.W.2d 789, 792 (Tenn. 1975). “[T]he defendant has a right to have every issue of fact raised by the evidence and material to his defense submitted to the jury upon proper instructions by the judge.” Id.

2014See, e.g., State v. Kendrick, 38 S.W.3d 566, 570 (Tenn. 2001) (reversing conviction, as a matter of plain error, on election issue).

2013When a Defendant is convicted under alternative theories, “a merger and imposition of a single judgment of conviction protects against double jeopardy and preserves the validity of the jury verdicts for future avoidance of problems related to unnecessarily dismissed ‘charges’ or ‘convictions.’” State v. Addison, 973 S.W.2d 260, 267 (Tenn. Crim.

2011State v. Brittman, 639 S.W.2d 652, 654 (Tenn. 1982); William Hackworth v. State, No. M2003-02148-CCA-R3-PC, [Davidson County] (Tenn. Crim.

2011Modification of Especially Aggravated Burglary Conviction Pursuant to Rule 13 of the Tennessee Rules of Appellate Procedure, this court notes as a matter of plain error that the State’s prosecution of the Defendant for especially aggravated burglary in addition to his prosecution for first degree murder and especially aggravated robbery was precluded by Tennessee Code Annotated section 39-14-404(d), which states that “[a]cts which constitute an offense under this section may be prosecuted under this section or any other applicable section, but not both.” See, e.g., State v. Oller, 851 S.W.2d 8

2010App. P. 36(b); State v. Lewis, 958 S.W.2d 736, 738 (Tenn. 1997), we hold that principles of double jeopardy bar the defendant’s multiple convictions of robbery and theft, see State v. Hayes, 7 S.W.3d 52, 56 (Tenn. Crim.

2005Alternatively, the Defendant argues that this is an “exceptional circumstance[]” wherein this Court can address the issue on its own accord as a matter of plain error, citing State v. Manning, 500 S.W.2d 913, 914 (Tenn. 1973).5 The State argues that the Defendant has waived this issue for failure to include it in the post-conviction petition or raise it at prior proceedings. 5 Manning was a direct appeal, not an appeal of a post-conviction judgment. -7- We begin our analysis by noting that the Defendant’s conviction would be at most voidable, and not void.