de novo standard in Tennessee

2020This court will review the post-conviction court’s findings of fact “under a de novo standard, accompanied with a presumption that those findings are correct unless the preponderance of the evidence is otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R.

2019On appeal, this Court will review the post-conviction court’s findings of fact “under a de novo standard, accompanied with a presumption that those findings are correct unless the preponderance of the evidence is otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R.

2020Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993) (citing Estate of Adkins v. White Consol.

2017We review a trial court‟s conclusions of law under a de novo standard with no presumption of correctness. -3- Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

2020App. P. 13(d); Henley, 960 S.W.2d at 578 ).

2004Burns, 6 S.W.3d at 461 . “[A] trial court’s findings of fact underlying a claim of ineffective assistance of counsel are reviewed on appeal under a de novo standard, accompanied with a presumption that those findings are correct unless the preponderance of the evidence is otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. -2- App. P. 13(d); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)).

2017State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).

2015State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).

2025This Court reviews “a trial court’s application of law to the facts under a de novo standard of review with no presumption of correctness.” McKinney, 669 S.W.3d at 764 (citing State v. Echols, 382 S.W.3d 266, 277 (Tenn. 2012); State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001)).

2014“Our review of a trial court’s application of law to the facts, however, is conducted under a de novo standard of review.” Walton, 41 S.W.3d at 81 (citing State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999); Yeargan, 958 S.W.2d at 629 .

2018For example, citing Tennessee Code Annotated section 40-35-401(d), the Defendant states that our review is “de novo . . . with a presumption that the trial court’s determinations are correct if the record shows the trial judge considered the sentencing principles and all relevant facts and circumstances.” However, our supreme court in Bise specifically stated, “[A]lthough the statutory language continues to describe appellate review as de novo with a presumption of correctness,” the 2005 revisions to the Sentencing Act “effectively abrogated the de novo standard of appellate review.” 380 S.W.3

2017Tenn. Code Ann. § 40-35-401 , Sentencing Comm’n Cmts.; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). 1 Citing Tennessee Code Annotated section 40-35-401(d), the Defendant states that our review “is de novo on the record with a presumption that the trial court’s determinations are correct.” However, our supreme court in Bise specifically stated, “[A]lthough the statutory language continues to describe appellate review as de novo with a presumption of correctness,” the 2005 revisions to the Sentencing Act “effectively abrogated the de novo standard of appellate review.” 380 S.W.3d at 707 . -

2014“Our review of a trial court’s application of law to the facts, however, is conducted under a de novo standard of review.” Walton, 41 S.W.3d at 81 (citing State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999)); Yeargan, 958 S.W.2d at 629 .

2014“Our review of a trial court’s application of law to the facts, however, is conducted under a de novo standard of review.” Walton, 41 S.W.3d at 81 (citing State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999); Yeargan, 958 S.W.2d at 629 .

2012State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). “[A] trial court’s findings of fact underlying a claim of ineffective assistance of counsel are reviewed on appeal under a de novo standard, accompanied with a presumption that those findings are correct unless the preponderance of the evidence is otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R.

2011Burns, 6 S.W.3d at 461 . “[A] trial court’s findings of fact underlying a claim of ineffective assistance of counsel are reviewed on appeal under a de novo standard, accompanied with a presumption that those findings are correct unless the preponderance of the evidence is otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R.

2023See id. at 791 (“Because the application of Ferguson . . . presents a constitutional issue, we will apply a de novo standard of review to the trial court’s decision concerning the fundamental fairness of the trial.”).

2021Id. at 791 (“Because the application of Ferguson . . . presents a constitutional issue, we will apply a de novo standard of review to the trial court’s decision concerning the fundamental fairness of the trial.”).

2020See Melton v. City of Lakeland, No. W2018-01237-COA- R3-CV, 2019 WL 2375431 , at *2 (Tenn. Ct. App. June 5, 2019) (citing Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996)); State ex rel.

2017We review a trial court‟s conclusions of law under a de novo standard with no presumption of correctness. -3- Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

2025Id. (citing Tenn. Code Ann. § 37-1 - 107(d) (2022)). -6- not free to alter, amend, or depart from the words of the statute” (citing Gleaves v. Checker Cab Transit Corp., 15 S.W.3d 799, 803 (Tenn. 2000))).

2002Because “issues of statutory construction are questions of law,” Stewart v. State, 33 S.W.3d 785, 791 (Tenn.2000); see also State v. Williams, 38 S.W.3d 532, 535 (Tenn.2001); Gleaves v. Checker Cab Transit Corp., 15 S.W.3d 799, 802 (Tenn.2000), we review the issues in this case under a de novo standard of review, according no presumption of correctness to the conclusions reached by the trial court, see Walker v. Board of Prof'l Responsibility, 38 S.W.3d 540, 544 (Tenn.2001); Reeves v. Granite State Ins.

2018Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

2012Kendrick v. Shoemake, 90 S.W.3d 566, 569-70 (Tenn. 2002); Southern Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

2018In re Estate of Tanner, 295 S.W.3d 610, 613 (Tenn. 2009) (citing Gleaves v. Checker Cab Transit Corp., 15 S.W.3d 799, 802 (Tenn. 2000); Myint v. Allstate Ins.

2018In re Estate of Tanner, 295 S.W.3d 610, 613 (Tenn. 2009) (citing Gleaves v. Checker Cab Transit Corp., 15 S.W.3d 799, 802 (Tenn. 2000)); Myint v. Allstate Ins.

2024In applying the de novo standard, “we are mindful that ‘[t]rial courts are vested with wide discretion in matters of child custody’ and that ‘the appellate courts will not interfere except upon a showing of erroneous exercise of that discretion.’” Johnson v. Johnson, 165 S.W.3d 640, 645 (Tenn. Ct. App. 2004) (quoting Koch v. Koch, 874 S.W.2d 571, 575 (Tenn. Ct. App. 1993)).

2012In applying the de novo standard, we acknowledge that “[t]rial courts are vested with wide discretion in matters of child custody” and that “appellate courts will not interfere -4- except upon a showing of erroneous exercise of that discretion.” Koch v. Koch, 874 S.W.2d 571, 575 (Tenn. Ct. App. 1993).

2016See Kelly v. Evans, 43 S.W.3d 514, 515 (Tenn. Ct. App. 2000) (“[T]he language in the Statute, „shall allow a hearing‟ contemplates a traditional de novo hearing.”).

2009May 18, 2006), no perm, app., and Kelly v. Evans, 43 S.W.3d 514 (Tenn.Ct.App.2000), both of which hold that a de novo review of the record is not equivalent to a de novo hearing.

2010App. P. 13(d); Kendrick, 90 S.W.3d at 570 . -4- In applying the de novo standard, "we are mindful that ‘[t]rial courts are vested with wide discretion in matters of child custody’ and that ‘the appellate courts will not interfere except upon a showing of erroneous exercise of that discretion.'" Johnson v. Johnson, 169 S.W.3d 640, 645 (Tenn. Ct. App. 2004) (quoting Koch v. Koch, 874 S.W.2d 571, 575 (Tenn. Ct. App. 1993)).

2010App. P. 13(d); Kendrick, 90 S.W.3d at 570 . -4- In applying the de novo standard, "we are mindful that ‘[t]rial courts are vested with wide discretion in matters of child custody’ and that ‘the appellate courts will not interfere except upon a showing of erroneous exercise of that discretion.'" Johnson v. Johnson, 169 S.W.3d 640, 645 (Tenn. Ct. App. 2004) (quoting Koch v. Koch, 874 S.W.2d 571, 575 (Tenn. Ct. App. 1993)).

2012“Because ‘[c]ustody and visitation determinations often hinge on subtle factors, including the parents’ demeanor and credibility during . . . proceedings themselves,’ appellate courts are ‘reluctant to second-guess a trial court’s decisions.’” Johnson v. Johnson, 165 S.W.3d 640, 645 (Tenn. Ct. App. 2004) (quoting Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996)).

2008In applying the de novo standard, “we are mindful that ‘[t]rial courts are vested with wide discretion in matters of child custody’ and that ‘the appellate courts will not interfere except upon a showing of erroneous exercise of that discretion.’” Johnson v. Johnson, 169 S.W.3d 640, 645 (Tenn. Ct. App. 2004) (quoting Koch v. Koch, 874 S.W.2d 571, 575 (Tenn. Ct. App. 1993)). -4- “Because ‘[c]ustody and visitation determinations often hinge on subtle factors, including the parents’ demeanor and credibility during...proceedings themselves,’ appellate courts ‘are reluctant to second-guess a trial

2014“Our review of a trial court’s application of law to the facts, however, is conducted under a de novo standard of review.” Walton, 41 S.W.3d at 81 (citing State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999)); Yeargan, 958 S.W.2d at 629 .

2014“Our review of a trial court’s application of law to the facts, however, is conducted under a de novo standard of review.” Walton, 41 S.W.3d at 81 (citing State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999); Yeargan, 958 S.W.2d at 629 .

2013See generally State v. Robert Fusco, No. M2012-01068-CCA-RM-CD, 2012 WL 6062856, at *38-39 (Tenn. Crim.

2013See generally State v. Robert Fusco, No. M2012-01068-CCA-RM-CD, 2012 WL 6062856, at *38-39 (Tenn. Crim.

2012T.C.A. § 40-35-401(d) (2006); State v. Johnson, 968 S.W.2d 883, 884 (Tenn. Crim.

2012T.C.A. § 40-35-401(d); State v. Johnson, 968 S.W.2d 883, 884 (Tenn. Crim.

2016Moore argues that this court should review his case under the de novo standard applied in State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000), because the trial court‟s ruling “involves a question of law and credibility is really not an issue.” Significantly however, Binette applies only “when a trial court‟s findings of fact on a motion to suppress are based solely on evidence that does not involve issues of witness credibility.” Id.

2016Moore argues that this court should review his case under the de novo standard applied in State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000), because the trial court‟s ruling “involves a question of law and credibility is really not an issue.” Significantly however, Binette applies only “when a trial court‟s findings of fact on a motion to suppress are based solely on evidence that does not involve issues of witness credibility.” Id.

2024In applying the de novo standard, “we are mindful that ‘[t]rial courts are vested with wide discretion in matters of child custody’ and that ‘the appellate courts will not interfere except upon a showing of erroneous exercise of that discretion.’” Johnson v. Johnson, 165 S.W.3d 640, 645 (Tenn. Ct. App. 2004) (quoting Koch v. Koch, 874 S.W.2d 571, 575 (Tenn. Ct. App. 1993)).

2012“Because ‘[c]ustody and visitation determinations often hinge on subtle factors, including the parents’ demeanor and credibility during . . . proceedings themselves,’ appellate courts are ‘reluctant to second-guess a trial court’s decisions.’” Johnson v. Johnson, 165 S.W.3d 640, 645 (Tenn. Ct. App. 2004) (quoting Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996)).

2022Duke v. Duke, 398 S.W.3d 665, 668 (Tenn. Ct. App. 2012). “[W]e review the denial of a motion for recusal under a de novo standard of review.” Id. (citing Tenn. Sup. Ct. R. 10B, § 2.06).

2022Duke v. Duke, 398 S.W.3d 665, 668 (Tenn. Ct. App. 2012). “[W]e review the denial of a motion for recusal under a de novo standard of review.” Id. (citing Tenn. Sup. Ct. R. 10B, § 2.06).

2017State v. Williams, 185 S.W.3d 311, 315 (Tenn. 2006).

2016State v. Williams, 185 S.W.3d 311, 315 (Tenn. 2006).

2014See State v. Hester, 324 S.W.3d 1 (Tenn. 2010).

2013See State v. Hester, 324 S.W.3d 1 (Tenn. 2010).

2013See State v. Gilley, 297 S.W.3d 739, 760 (Tenn. Crim.

2013I write separately to express my belief that in Pylant v. State, 263 S.W.3d 854 , 871 n.26 (Tenn. 2008), the Tennessee Supreme Court indeed “repudiated”or rejected the de novo standard for review of hearsay issues adopted by the Court of Criminal Appeals in State v. Gilley, 297 S.W.3d 739, 759-60 (Tenn. Crim.

2016ANALYSIS The defendant first argues that, on review, this court should utilize a de novo with a presumption of correctness standard of review, rather than the abuse of discretion with a presumption of reasonableness standard enunciated in State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012) and State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012), for sentencing decisions.

2013On September 26, 2012, the Tennessee Supreme Court issued State v. Bise, 380 S.W.3d at 707 , which abrogated the de novo standard of review with a presumption of correctness and held that the appropriate standard of appellate review for sentencing issues is “an abuse of discretion standard of review, granting a presumption of reasonableness to within-range sentencing decisions that reflect a proper application of the purposes and principles of our Sentencing Act.” On October 9, 2012, the State filed in Graham’s case a Rule 11 application for permission to appeal to the Tennessee Supreme Court,