IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs August 3, 2004 STATE OF TENNESSEE v. CHRISTOPHER KIRKENDALL Appeal from the Criminal Court for Shelby County Nos. 02-02068, 69 Chris Craft, Judge

No. W2004-00784-CCA-R3-CD - Filed September 16, 2004

THOMAS T. WOODALL, J., concurring in part and dissenting in part.

I agree that under Blakely v. Washington, 542 U.S. _____, 124 S.Ct. 2531 (2004), enhancement factors (3), (10), and (21) of Tennessee Code Annotated section 40-35-114 cannot be applied in sentencing Defendant. However, instead of modifying the sentence, I would remand for a new sentencing hearing. In light of Blakely, I feel that the trial court should be given the opportunity to impose the appropriate punishment upon the only valid enhancement factor in this case: proof of a prior conviction(s) of defendant as an adult.

___________________________________ THOMAS T. WOODALL, JUDGE