         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON

                STATE OF TENNESSEE v. JASON M. WEISKOPF

                      Appeal from the Criminal Court for Shelby County
                          No. 95-02362    Arthur T. Bennett, Judge



                   No. W2000-02308-CCA-RM-CD - Filed October 11, 2000


This case is before the court upon remand from the Supreme Court of Tennessee for reconsideration
in light of State v. Nichols, ___ S.W.3d ___ (Tenn. 2000). Previously, this court found the "weigh
and consider" jury instruction to be in violation of due process. Nichols reached a contrary
conclusion; therefore, we now affirm the judgment of the trial court.

     Tenn R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOE G. RILEY, J., delivered the opinion of the court, in which GARY R. WADE, P. J., and DAVID G.
HAYES, J., joined.

Leslie I. Ballin and Mark A. Mesler, Memphis, Tennessee, for the appellant, Jason M. Weiskopf.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Thomas D. Henderson, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                             OPINION

       Defendant was convicted by a Shelby County jury of premeditated first degree murder and
sentenced to life imprisonment. In the direct appeal, this court found all issues to be without merit
except for the jury instruction relating to parole eligibility. Specifically, this court concluded that
the jury instruction authorizing the jury to "weigh and consider the meaning of a sentence of
imprisonment" was in violation of due process. State v. Jason M. Weiskopf, No. 02C01-9611-CR-
00381, 1998 WL 40672 (Tenn. Crim. App. filed February 4, 1998, at Jackson). Subsequently, the
Supreme Court of Tennessee remanded to this court for reconsideration in light of State v. King, 973
S.W.2d 586 (Tenn. 1998). State v. Jason M. Weiskopf, No. 02C01-9611-CR-00381, Shelby County
(Tenn. filed November 2, 1998, at Jackson). Upon remand, this court found King to be
distinguishable and again concluded the "weigh and consider" jury instruction was in violation of
due process. State v. Jason M. Weiskopf, No. 02C01-9611-CR-00381, 1998 WL 840000 (Tenn.
Crim. App. filed December 4, 1998, at Jackson). The Supreme Court of Tennessee has now
remanded to this court for reconsideration in light of State v. Nichols, ___ S.W.3d ___ (Tenn. 2000),
which was filed after this court's last opinion.

        The trial judge instructed the jury, pursuant to statute, that the jury could "weigh and consider
the meaning of a sentence of imprisonment." See Tenn. Code Ann. § 40-35-201(b)(2)(A)(i)(Supp.
1994).1 The Supreme Court of Tennessee has now specifically declared that this instruction is not
in violation of due process. Nichols, ___ S.W.3d at ___.

         Thus, in accordance with the holding of Nichols, the judgment of the trial court is affirmed
in all respects.



                                                                     ___________________________________
                                                                     JOE G. RILEY, JUDGE




          1
              The present statute d isallows an instruc tion on po ssible penaltie s. See Tenn. Code Ann. § 40-35-201(b)(Supp.
1999) .

                                                              -2-
