        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
