STATE OF TENNESSEE v. MICHAEL LEE ARTHUR MORENO (2023)

ORDER

Based on the record before us, Michael Lee Arthur Moreno was indicted on the following four counts: Count 1—attempted first-degree murder; Count 2—attempted first-degree murder; Count 3—employing a firearm during the commission of a dangerous felony referencing Count 1; and Count 4—employing a firearm during the commission of a dangerous felony referencing Count 2. The jury convicted Mr. Moreno on three counts: Count 1—the lesser-included offense of attempted voluntary manslaughter; Count 2—the lesser-included offense of reckless endangerment; and Count 3—employment of a firearm during the commission of a dangerous felony referencing Count 1. However, the trial court entered five judgment forms: Count 1—attempted voluntary manslaughter; Count 2—reckless endangerment; Count 3—reckless endangerment with a deadly weapon (notation stating, “Count nolle pros prior to trial”); Count 4—employment of a firearm during the commission of a dangerous felony (notation stating, “Consecutive to Count 1”); and Count 5—employment of a firearm during the commission of a dangerous felony (notation stating, “not presented because Ct. 2 not a trigger”).

There is no corresponding indictment for Count 3 in the judgment forms in the record before us. The addition of a judgment form for the nolle prossed Count 3 resulted in the corresponding judgment forms for Counts 3 and 4 in the indictments to be modified to Counts 4 and 5 in the judgment forms. Thus, Count 3 in the judgment forms does not have a corresponding count in the indictments. Moreover, Counts 4 and 5 in the judgment forms do not correspond to the counts as charged in the indictments.

Because we must base our review on the record presented to us, a remand is warranted to correct the judgment forms to correspond with the indictments in the record. Therefore, upon consideration of the application for permission to appeal of Michael Lee Arthur Moreno and the record before us, the application is summarily granted and remanded to the Court of Criminal Appeals for the sole purpose of instructing the trial court to enter corrected judgment forms that correspond with the indictments in the record.

PER CURIAM