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Posted by: Tanja Trezise on Feb 19, 2013

Court: TN Court of Criminal Appeals

Attorneys 1:

Jeanne L. Wiggins, Assistant Public Defender, Madisonville, Tennessee, for the appellant, Mark Zane Gibson.

Attorneys 2:

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Steven Bebb, District Attorney General; and Andrew Freiberg, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): SMITH

Appellant, Mark Zane Gibson, was indicted by the Monroe County Grand Jury for one count each of aggravated sexual battery, rape, and incest. At the conclusion of trial, the jury convicted Appellant of attempted aggravated sexual battery and rape. The trial court sentenced Appellant to an effective sentence of fifteen years. On appeal, Appellant argues that the evidence was insufficient to support his convictions and that the trial court erred in setting the length of his sentences by not applying any mitigating factors and in denying his request for alternative sentencing. We conclude that the evidence was sufficient to support the convictions. With regard to his sentence, Appellant committed the crime between July 1, 1982, and June 7, 2005. Therefore, the prior sentencing law should apply to his sentence unless Appellant executed an ex post facto waiver. There is no such waiver in the record, and it appears that the trial court applied the new sentencing act when sentencing Appellant. Therefore, Appellant’s sentence must be reversed and a new sentencing hearing must be held. For these reasons, we affirm Appellant’s convictions and reverse his sentence and remand for a new sentencing hearing.