TBALink Opinion-Flash

November 12, 1996 -- Volume #2 -- Number #100

Here is today's issue of TBALink Opinion-Flash. What follows is the document name, first paragraph and the names of the attorneys for the parties (If you know one of them you might want to give them a call, chances are they don't know about the opinion yet) of each electronic opinion/rules released TODAY from the three appellate courts.

This Issue IN THIS ORDER:
03-New Opinons From TSC
01-New Opinons From TSC-Rules
00-New Opinons From TSC-Workers Comp Panel
01-New Opinons From TCA
08-New Opinons From TCCA

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George Dean
TBALink Chief Editor


STATE OF TENNESSEE  v. NATHAN SMITH 
w/DISSENTING OPINION

Court:TSC

FOR THE APPELLANT:          FOR THE APPELLEE:

CHARLES W.B. FELS           CHARLES W. BURSON
KENNETH F. IRVINE, JR.      Attorney General and Reporter
Knoxville, TN
(On appeal)                 MICHAEL MOORE
                            Solicitor General

EDWARD L. HILAND            MICHAEL W. CATALANO
Nashville, TN               Associate Solicitor General
    
CHARLES I. POOLE            VICTOR S. JOHNSON, III
Sevierville, TN             District Attorney General
(At trial)                      
                            RENEE ERB
                            Asst. District Attorney General
                            Nashville, TN
                        
Judge: BIRCH

First Paragraph:

Nathan Smith, the defendant, appeals the judgment of the Court of
Criminal Appeals affirming his two convictions for aggravated sexual
battery.  In this appeal, Smith contends that the trial court
erroneously admitted incriminating statements he made to a mental
health counselor.  He insists that these statements should have been
suppressed because:  (1) they were elicited in violation of Miranda v.
Arizona, 384 U.S. 436 (1966); (2) they constituted an involuntary
confession; and (3) they were solicited under circumstances that
violated his due process rights under the Fourteenth Amendment to the
United States Constitution and Article I, S 8 of the Tennessee
Constitution.  Under the facts of this case, we find that the
admission of these statements did not violate the defendant's state or
federal constitutional rights; accordingly, we affirm the judgment.

URL:http://www.tba.org/tba_files/TSC/SMITHNAT.OPN.WP6
URL:http://www.tba.org/tba_files/TSC/SMITHNAT.DIS.WP6
URL:http://www.tba.org/tba_files/TSC/SMITHNAT.REI.WP6
Opinion-Flash

STATE LIST FOR PERMISSION TO APPEAL

Court:TSC - Rules

Attorneys: N/A                         

Judge: N/A

First Paragraph:

SUPREME COURT OF TENNESSEE
STATE LIST FOR PERMISSION TO APPEAL
November 12, 1996

URL:http://www.tba.org/tba_files/TSC_Rules/STATELST-11-12-96.WPD.WP6
Opinion-Flash

TY FARMING COMPANY, INC. ,  
v.
GEORGE BELEW and THE COUNTY OF DYER, TENNESSEE, 

Court:TCA

Ralph I. Lawson,
LAWSON & LANNON ATTORNEYS, Dyersburg, Tennessee
Attorney for Plaintiff/Appellant.

James S. Wilkes,
WILKES & DYER, Dyersburg, Tennessee
Attorney for Defendant/Appellee George Belew.

Douglas W. Wilkerson,
J. Michael Gauldin, 
WILKERSON GAULDIN & HAYES, Dyersburg, Tennessee
Attorneys for Defendant Appellee County of Dyer.
                      
Judge: FARMER

First Paragraph:

Plaintiff-Appellant, TY Farming Company, Inc. ("TY Farming"), appeals
the judgment of the trial court denying TY Farming's claims against
Defendants-Appellees Dyer County ("Dyer County") and George Belew
("Belew") relative to a dirt road which crossed properties owned by TY
Farming, Belew, and other landowners in Dyer County.  The trial court
found that the dirt road had been abandoned by the County and the
general public, that the road was no longer a public road, and,
therefore, that the County had no obligation to maintain the road. 
Accordingly, the judgment denied TY Farming's claim for damages
against the County and dismissed the County from the lawsuit.  With
regard to TY Farming's claim against Belew, the judgment granted TY
Farming an easement across the property of Belew.  The trial court
further found that Belew had deprived TY Farming of its previously
existing easement of ingress and egress to its property, but the court
found that TY Farming had suffered no damages because it had
continuous access to its property by another route.  Accordingly, the
trial court denied TY Farming's claim for damages against Belew and
dismissed TY Farming's complaint in its entirety.

URL:http://www.tba.org/tba_files/TCA/TY-FARM.OPN.WP6
Opinion-Flash

JEFF ARWOOD,v. STATE OF TENNESSEE,  

Court:TCCA

For Appellant:                  For Appellee:
Curtis H. Gann                  Charles W. Burson
Assistant Public Defender       Attorney General & Reporter 
Seventeenth Judicial District 
P.O. Box 1119                   Sarah M. Branch 
Fayetteville, TN  37334         Counsel for the State 
(on appeal)                     450 James Robertson Parkway
                                Nashville, TN 37243 0493        
Robert H. Marlow    
Assistant Public Defender       Weakley E. Barnard 
218 North Main Street           Assistant District Attorney General
Shelbyville, TN  37160          Seventeenth Judicial District 
(at trial)                      Lincoln County Courthouse   
                                Fayetteville, TN  37334
                         
Judge: GARY R. WADE

First Paragraph:

The petitioner, Jeff Arwood, appeals the trial court's denial of his
petition for post-conviction relief.  The single issue presented for
review is whether the petitioner received the effective assistance of
counsel.  We affirm the judgment of the trial court.

URL:http://www.tba.org/tba_files/TCCA/ARWOOD2.OPN.WP6
Opinion-Flash

JAMES J. BENSON,v. STATE OF TENNESSEE,  

Court:TCCA

For the Appellant:                  For the Appellee:

William M. Leech, Jr.               Charles W. Burson
William H. Farmer                   Attorney General of TN
511 Union Street                    and
Nashville, TN 37219-1760            Amy L. Tarkington
                                    Asst Attorney General of TN
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    Joseph D. Baugh, Jr.
                                    District Attorney General   
                                    Williamson County Courthouse
                                    P.O. Box 937      
                                    Franklin, TN 37065-0937            
                             

Judge: Joseph M. Tipton

First Paragraph:

The petitioner, James J. Benson, appeals as of right from the
Williamson County Circuit Court's denial of post-conviction relief. 
He is presently in the custody of the Department of Correction,
serving as a Range II, multiple offender, an effective sentence of one
hundred and twenty-eight years for convictions of two counts of
aggravated kidnaping and one count each of armed robbery, conspiracy,
and accessory before the fact to armed robbery, receiving a sentence
of sixty years for each of the crimes except the conspiracy, for which
he received a sentence of eight years.  The convictions and sentences
were affirmed on direct appeal on September 7, 1987, and reaffirmed on
a petition to rehear on February 16, 1990.  State v. Bobby Mitchell,
Richard Cook, and James Benson, Williamson County, No. 87-185-III
(Tenn. Crim. App. Sept. 27, 1989), app. denied, (Tenn. April 2, 1990).

URL:http://www.tba.org/tba_files/TCCA/BENSONJ.OPN.WP6
Opinion-Flash

STATE OF TENNESSEE, v.TERRANCE FRANKLIN, a/k/a "BUBBA"  

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:


DAVID DOYLE                 CHARLES W. BURSON
Public Defender             Attorney General & Reporter

PAMELA E. BECK              CLINTON J. MORGAN
Asst. Public Defender       Counsel for the State
117 East Main St.           450 James Robertson Pkwy.   
Gallatin, TN   37066        Nashville, TN  37243-0493
                
                            DENT MORRISS
                            Asst. District Attorney General
                            (By Special Designation)                                
                            500 S. Main St.
                            Springfield, TN   37172
                      
Judge: JOHN H. PEAY

First Paragraph:

The defendant was indicted for attempted first-degree murder with a
deadly weapon.  He pled guilty to aggravated assault, a class C
felony, and after a hearing was sentenced to six years in the
Tennessee Department of Correction.  This was the maximum sentence
available for a Range I standard offender.  T.C.A. S 40-35-112(a)(3)
(1990 Repl.).  The defendant now appeals as of right, alleging that
the sentencing court misapplied enhancing factors, failed to apply
mitigating factors, erred by refusing to grant him an alternative
sentence, and erred by continuing the determination of restitution to
a later hearing.  Finding no error, we affirm the sentence set by the
court below.

URL:http://www.tba.org/tba_files/TCCA/FRANKLNT.OPN.WP6
Opinion-Flash

STATE OF TENNESSEE, v. MICHAEL GENTRY,  

Court:TCCA

For Appellant:                  For Appellee:
Ernest W. Williams and          Charles W. Burson
J. Russell Heldman              Attorney General & Reporter
Attorneys at Law
320 Main Street, Suite 101      Elizabeth T. Ryan
Franklin, TN  37064             Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493
                                            
                                Joseph D. Baugh
                                District Attorney General
                                P.O. Box 937 
                                Franklin, TN  37065-0937

                                Ronald L. Davis
                                Assistant District Attorney General 
                                P.O. Box 937
                                Franklin, TN  37065-0937
                          
Judge: GARY R. WADE

First Paragraph:

The defendant, Michael Gentry, entered a plea of guilt to one count of
official misconduct.  Tenn. Code Ann. S 39-16-402(a)(5).  Pursuant to
a plea agreement, the trial court imposed a Range I sentence of two
years and granted probation but denied the defendant's request for
judicial diversion.  Tenn. Code Ann. S 40-35-313; State v. Dishman,
915 S.W.2d 458 (Tenn. Crim. App. 1995).  In this appeal, the defendant
claims that the trial court abused its discretion by refusing to grant
judicial diversion; he also insists that the district attorney general
was guilty of prosecutorial vindictiveness.

URL:http://www.tba.org/tba_files/TCCA/GENTRYM.OPN.WP6
Opinion-Flash

STATE OF TENNESSEE, v. MARIO A. LAVENDER and ERIC L. HOBBS,

Court:TCCA

FOR THE APPELLANTS:             FOR THE APPELLEE:

FOR LAVENDER:                   Charles W. Burson
                                Attorney General & Reporter
Deanna C. Bell                  500 Charlotte Avenue
Attorney at Law                 Nashville, TN 37243-0497
211 Third Avenue, North
Nashville, TN 37201             Darian B. Taylor
                                Assistant Attorney General
FOR HOBBS:                      450 James Robertson Parkway
                                Nashville, TN 37243-0493
Jeffrey A. DeVasher
Assistant Public Defender       Victor S. Johnson, III
211 Union Street, Suite 1202    District Attorney General
Nashville, TN 37201-5066        222 Second Avenue, South
(Appeal Only)                   Nashville, TN 37201-1649

Joan A. Lawson                  Nicholas D. Bailey
Assistant Public Defender       Assistant District Attorney General
211 Union Street, Suite 1202    222 Second Avenue, South
Nashville, TN 37201-5066        Nashville, TN 37201-1649
(Trial Only)
                                Charles Carpenter
OF COUNSEL:                     Assistant District Attorney General
                                222 Second Avenue, South
Karl Dean                       Nashville, TN 37201-1649
Metropolitan Public Defender
211 Union Street
Nashville, TN 37201-5066
                    

Judge: Joe B. Jones

First Paragraph:

The appellants, Mario A. Lavender and Eric Hobbs, were found guilty of
two counts of robbery, a Class C felony, and one count of theft over
$1,000, a Class D felony, by a jury of their peers.  The trial court
found that Lavender was a standard offender and imposed Range I
sentences as follows:  (1) count 1, robbery, confinement for six (6)
years in the Department of Correction, (2) count 2, robbery,
confinement for six (6) years in the Department of Correction, and (3)
count 4, theft, confinement for four (4) years in the Department of
Correction.  The trial court found that Hobbs was a multiple offender
and imposed the following Range II sentences:  (1) count 1, robbery,
confinement for ten (10) years in the Department of Correction, (2)
count 2, robbery, confinement for ten (10) years in the Department of
Correction, and (3) count 4, theft, confinement for four (4) years in
the Department of Correction.  The trial court ordered that the
sentences are to be served consecutively.  The effective sentence for
Lavender is sixteen (16) years, and the effective sentence for Hobbs
is twenty-four (24) years.  In this Court, both Lavender and Hobbs
contend that the sentences imposed by the trial court are excessive. 
Hobbs also contends that the trial court committed error of
prejudicial dimensions by (a) denying his motion to suppress a
statement he made to police and (b) denying his motion in limine,
which sought to deny the State of Tennessee the right to use his prior
convictions to impeach him if he opted to testify.  After a thorough
review of the record, the briefs submitted by the parties, and the law
applicable to the issues presented for review, it is the opinion of
this Court that the judgment of the trial court should be affirmed.

URL:http://www.tba.org/tba_files/TCCA/LAVENDER.OPN.WP6
Opinion-Flash

RONALD E. THOMAS, v. STATE OF TENNESSEE,

Court:TCCA

FOR THE APPELLANT:      FOR THE APPELLEE:

J. ROBERT HAMILTON      CHARLES W. BURSON
225 East Market Street  Attorney General and Reporter
Lebanon, TN 37087
                        EUGENE J. HONEA
                        Assistant Attorney General
                        450 James Robertson Parkway
                        Nashville, TN 37243-0493

                        TOM. P. THOMPSON, JR.
                        District Attorney General

                        ROBERT HIBBETT
                        Assistant District Attorney General
                        111 Cherry Street
                        Lebanon, TN 37087
                      
Judge: DAVID H. WELLES

First Paragraph:

The Petitioner appeals as of right pursuant to Rule 3 of the Tennessee
Rules of Appellate Procedure from the trial court's denial of his
petition for post conviction relief.  The Petitioner pleaded guilty to
five counts of aggravated child abuse on December 6, 1991.  In
accordance with the plea agreement, he was sentenced to eight (8)
years on each count as a Range I Standard Offender, with the sentences
to run consecutively.  In this appeal, the Petitioner contends that he
was denied effective assistance of counsel at the guilty plea hearing.
 We affirm the judgment of the trial court.

URL:http://www.tba.org/tba_files/TCCA/THOMASRE.OPN.WP6
Opinion-Flash

ALFONZO TOWNSEND, v. STATE OF TENNESSEE

Court:TCCA

For Appellant:              For Appellee:
Roger K. Smith, Attorney    Charles W. Burson
104 Woodmont Boulevard      Attorney General & Reporter 
Suite 115
Nashville, TN  37205        Janis L. Turner 
                            Counsel for the State 
                            450 James Robertson Parkway
                            Nashville, TN 37243-0493            

                            Roe Ellen Coleman 
                            and
                            Deb U. Smith 
                            Assistant District Attorneys General
                            Washington Square, Suite 500
                            222 Second Avenue North 
                            Nashville, TN  37201
                      
Judge: GARY R. WADE

First Paragraph:

The petitioner, Alfonzo Townsend, appeals the trial court's denial of
his petition for post-conviction relief.  The single issue presented
for review is whether the petitioner was denied the effective
assistance of counsel.

URL:http://www.tba.org/tba_files/TCCA/TOWNSEND.OPN.WP6
Opinion-Flash

ERIC RUSSELL WILSON, v. STATE OF TENNESSEE

Court:TCCA

For Appellant:              For Appellee:
Anthony A. Adgent           Charles W. Burson
and                         Attorney General & Reporter
Lionel R. Barrett, Jr. 
Attorneys  at Law           Michael J. Fahey, II 
Washington Square Two       Assistant Attorney General
Suite 417                   450 James Robertson Parkway
222 Second Avenue North     Nashville, TN 37243-0493        
Nashville, TN  37201    
                            Roger D. Moore
                            Assistant District Attorney General
                            Washington Square, Suite 500
                            222 Second Avenue North
                            Nashville, TN  37201-1649
                       
Judge: GARY R. WADE

First Paragraph:

The petitioner, Eric R. Wilson, appeals the trial court's denial of
his petition for post-conviction relief.  The single issue presented
for review is whether the petitioner was denied the effective
assistance of counsel at trial.

URL:http://www.tba.org/tba_files/TCCA/WILSONE.OPN.WP6

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