TBALink Opinion-Flash

October 01, 1996 -- Volume #2 -- Number #83

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:
02-New Opinons From TSC
00-New Opinons From TSC-Rules
01-New Opinons From TSC-Workers Comp Panel
24-New Opinons From TCA
21-New Opinons From TCCA

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TBALink Chief Editor


STATE OF TENNESSEE V. SHERYL L. PENDERGRASS

Court:TSC

For Appellant:                  For Appellee:

Lionel R. Barrett, Jr.          Charles W. Burson
Lionel R. Barrett, Jr., P.C     Attorney General & Reporter
Nashville, Tennessee
                                Michael E. Moore
John Pellegrin                  Solicitor General
Gallatin, Tennessee
                                Gordon W. Smith
                                Associate Solicitor General
                                Nashville, Tennessee
                          
Judge: ANDERSON, J.

First Paragraph:

The threshold issue in this appeal is whether the defendant, Sheryl L.
Pendergrass, in pleading guilty to a drug charge, explicitly reserved
the right to appeal a certified question of law that was dispositive
of the case, in accordance with the requirements of Tenn. R. Crim. P.
37(b)(2)(iv) as it was interpreted by this Court in State v. Preston,
759 S.W.2d 647 (Tenn. 1988).

URL:http://www.tba.org/tba_files/TSC/Pender.crt.WP6
Opinion-Flash

LEE R. WILKES
vs.
THE RESOURCE AUTHORITY OF SUMNER COUNTY, TENNESSEE and ROYAL INSURANCE
COMPANY

Court:TSC

For the Defendants:             For the Plaintiff:
Randolph A. Veazey              Thomas Jay Martin, Jr.
Connie Jones                    David Alan Simpson
GLASGOW & VEAZEY                Gallatin, TN
Nashville, TN
                          
Judge: WHITE, J.

First Paragraph:

In this workers compensation action, we granted the employees motion
for review pursuant to Tennessee Code Annotated Section 50-6
225(e)(1995 Supp.) to decide whether the employer is responsible for
medical expenses and temporary total disability benefits associated
with reconstructive surgery to the employees chin.  Also at issue is
the trial courts award of nine percent permanent partial disability
and attorneys fees.  For the reasons stated below, we affirm the
judgment of the trial court.

URL:http://www.tba.org/tba_files/TSC/Wilkes.tra.WP6
Opinion-Flash

FLOYD E. GRISHAM 
V.
REX NORD, INC., LINK BELT BEARING DIVISION, AND NATIONAL UNION FIRE
INS. CO., and HOME INS. COMPANY

Court:TSC - Workers Comp Panel

For Appellants:           For Appellee:
Roger L. Ridenour         Daryl  R. Fansler
Clinton, Tennessee        Knoxville, Tennessee
                          
Judge: Loser

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann. section 50-6 225(e)(3) for hearing and reporting
of findings of fact and conclusions of law.  In this appeal, the
claimant or employee, Grisham, questions the trial court's order
terminating permanent partial disability benefits.

URL:http://www.tba.org/tba_files/TSC_WCP/GRISVREX.DOC.WP6
Opinion-Flash

AABAKUS, INCORPORATED
VS.
JOE B. HUDDLESTON, Commissioner of Revenue, State of Tennessee

Court:TCA

For the Plaintiff/Appellant:        For the Defendant/Appellee:
Michael D. Sontag                   Charles W. Burson
Bass, Berry & Sims                  Attorney General and Reporter
Nashville, Tennessee        
                                    Sean P. Scally
                                    Assistant Attorney General

Judge: WILLIAM C. KOCH, JR.

First Paragraph:

This appeal involves the business tax liability of a human resource
support service.  The Tennessee Department of Revenue treated all
amounts paid by the services clients as gross receipts and assessed
the service $40,867 for unpaid taxes, penalties, and interest.  The
service paid the disputed amount and then filed suit in the Chancery
Court for Davidson County asserting that it was exempt from taxation
on the ground that it was merely providing bookkeeping services or, in
the alternative, that its gross receipts consisted only of the service
fees collected from its clients.  The trial court granted the
departments motion for summary judgment, and this appeal followed. 
We have determined that the service was not exempt from taxation but
that its gross receipts should be limited to the service fees
collected from its clients.  Accordingly, we modify the judgment.

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

FRANCES PEARL BELL VS. DANNY RAY BELL

Court:TCA

For the Plaintiff/Appellee:         For the Defendant/Appellant:
Terry J. Leonard                    P. Edward Schell
Camden, Tennessee                   Franklin, Tennessee
                          
Judge: ALAN E. HIGHERS

First Paragraph:

This case involves a petition for modification of a child support
order.  Danny Ray Bell (Husband) appeals the trial courts denial of
his petition to receive credit against child support arrearages owed
to Frances Pearl Bell (Wife) for support payments made after his
eldest child reached the age of majority.  We affirm.

URL:http://www.tba.org/tba_files/TCA/bellbell.WP6
Opinion-Flash

BELLSOUTH TELECOMMUNICATIONS,INC. d/b/a SOUTH CENTRAL BELL TELEPHONE
COMPANY
v.
KEITH BISSELL, CHAIRMAN; STEVE HEWLETT, COMMISSIONER; SARA  KYLE,
COMMISSIONER; Constituting the Tennessee Public Service Commission,

Court:TCA

SANDRA L. RANDLEMAN
CHARLES L. HOWORTH, JR. 
BellSouth Telecommunications, Inc.
333 Commerce Street, Suite 2101
Nashville, Tennessee 37201-3300
  ATTORNEYS FOR PETITIONER/APPELLANT

VAL SANFORD
JOHN KNOX WALKUP
Gullett, Sanford, Robinson & Martin
P.O. Box 198888
Nashville, Tennessee 37219-8888
  ATTORNEYS FOR AT? COMMUNICATIONS OF
    THE SOUTH CENTRAL STATES, INC. AND 
    MCI TELECOMMUNICATIONS CORPORATION

ROGER A. BRINEY, ESQ.
AT? Communications of the South Central States
1200 Peachtree Street, N.E.
Atlanta, Georgia 30309
  OF COUNSEL FOR AT? COMMUNICATIONS OF
  THE SOUTH CENTRAL STATES, INC. 

MARTHA P. MCMILLIN, ESQ.
MCI Telecommunications Corporation
780 Johnson Ferry Road, Suite 700
Atlanta, Georgia 30342
  OF COUNSEL FOR MCI TELECOMMUNICATIONS 
  CORPORATION

D. BILLYE SANDERS                   	DIANNE F. NEAL
Waller Lansden Dortch & Davis           General Counsel
Nashville City Center               	Tennessee Public Service
511 Union Street, Suite 2100            Commission
Nashville, Tennessee  37219             460 James Robertson Parkway
  ATTORNEY FOR SPRINT COMMUNICATIONS    Nashville, Tennessee  37243-0505
  COMPANY L.P.

BENJAMIN W. FINCHER
Sprint Communications Company L.P.  
3100 Cumberland Circle
Atlanta, Georgia  30339
  ATTORNEY FOR SPRINT COMMUNICATIONS
  COMPANY L.P.
                      
Judge: SAMUEL L. LEWIS

First Paragraph:

This appeal involves the judicial review of five Tennessee Public
Service Commission orders.  The orders approved tariffs filed by AT?
Communications of the South Central States, Inc., Sprint
Communications Company, L.P., and MCI Telecommunications Corporation. 
BellSouth Telecommunications Inc., d/b/a South Central Bell, has
appealed directly to this Court pursuant to Tenn.R.App.P. 12.  They
assert that the Tennessee Public Service Commission (Commission or
PSC) should have denied the tariffs, as they violated the Commissions
prior orders and policies.  Additionally, BellSouth contends that the
tariffs at issue in this proceeding violate the Tennessee
Telecommunications Reform Act of 1995.

URL:http://www.tba.org/tba_files/TCA/belsocrt.crt.WP6
Opinion-Flash

FRIEDA S. BISHOP VS. BERNIE E. BISHOP

Court:TCA

W. ALLEN BARRETT
176 Second Avenue, North
Suite 509
Nashville, Tennessee 37201
    Attorney for Plaintiff/Appellee

TERRY B. LARKIN
880 Highway 70 West, Suite 05
Dickson, Tennessee 37055
    Attorney for Defendant/Appellant
                          
Judge: BEN H. CANTRELL

First Paragraph:

In this divorce case, the husband appeals the trial judges award of
$50,000 to the wife as a division of the marital property.  The
husband asserts that the award was based on an alleged increase in the
value of his separate property but that the proof shows that the value
of his separate property decreased during the marriage. 
Unfortunately, we are unable to reach this issue because the husband
failed to file a transcript of the evidence.  Therefore, we affirm the
judgment below.

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

BRUCE ANTHONY BRITT and wife, LAURIE ANN BRITT
VS.
HOWARD JUNIOR LEGENS and son, WILLIAM H. LEGENS, d/b/a LEGENS & SON
CONTRACTORS

Court:TCA

H. MAX SPEIGHT
Martin, Tennessee
Attorney for Appellants

JEFFREY W. PARHAM
Martin, Tennessee
Attorney for Appellants

WILLIAM R. NEESE
THOMAS & NEESE
Dresden, Tennessee
Attorney for Appellees                          

Judge: ALAN E. HIGHERS

First Paragraph:

Plaintiffs brought this suit for property damages sustained when a
piece of  defendants construction equipment fell onto their house.
The trial court found that defendants employee was negligent in the
operation of the equipment and awarded judgment in favor of
plaintiffs.  Defendant has appealed, arguing that there was
insufficient evidence of negligence and that the trial court erred in
its calculation of damages.  We find these contentions to be without
merit and, for the reasons stated below, we affirm the trial courts
judgment.

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

RICHARD C. CANADA and wife SHARON CANADA
v.
ACE CODENT, ZAHN DENTAL COMPANY, INC., and HENRY SCHEIN, INC.,
and ACECODENT INCORPORATED

Court:TCA

For Appellants                      For Appellee
JIMMY W. BILBO                      DAVID F. HENSLEY
Logan, Thompson, Miller, Bilbo,     Milligan, Barry, Hensley
Thompson & Fisher, P.C.             & Evans
Cleveland, Tennessee                Chattanooga, Tennessee                  

Judge: Susano

First Paragraph:

This products liability action was dismissed by the trial court on
motion of Acecodent Incorporated.  The plaintiffs appeal, presenting
one narrow issue

URL:http://www.tba.org/tba_files/TCA/Canace.WP6
Opinion-Flash

HAZEL MAXINE COLN and husband CARL F. COLN VS. CITY OF SAVANNAH, TN

Court:TCA

JAMES A. HOPPER
Savannah, Tennessee
Attorney for Appellant

EDWARD L. MARTINDALE, JR.
DREW & MARTINDALE, P.C.
Jackson, Tennessee
Attorney for Appellees                          

Judge: ALAN E. HIGHERS

First Paragraph:

This appeal involves a suit filed by plaintiffs, Hazel Maxine Coln and
Carl F. Coln, against the City of Savannah, Tennessee (the city),
for personal injuries sustained when Mrs. Coln tripped and fell on a
city sidewalk.  The trial court ruled in favor of plaintiffs and
apportioned negligence at  70% to the city and 30% to Mrs. Coln.  The
city has appealed and has presented the following issues for our
consideration: (1) whether the trial court erred in finding that
sidewalk was in a defective or dangerous condition, thereby causing
governmental immunity to be removed; and (2) whether the trial court
erred in failing to find that Mrs. Coln was more than 50% negligent. 
We find the citys contentions to be well-taken; therefore, we reverse
the judgment of the trial court.

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

DAVID COLEMAN AND PAULENE A. COLEMAN vs. PRYOR OLDSMOBILE/GMC

Court:TCA

For the Plaintiffs/Appellees:           For the Defendant/Appellant:
William D. Massey                       Warren D. McWhirter
Price Harris                            Memphis, Tennessee
Memphis, Tennessee
                          
Judge:  HOLLY KIRBY LILLARD

First Paragraph:

This is a case involving the Tennessee Consumer Protection Act.  David
and Paulene Coleman claim that Pryor Oldsmobile/GMC violated the Act
by not informing them that the new demonstrator car it sold them had
received damage to the exterior paint and had been repainted.  The
trial court found for the Colemans. We affirm.

URL:http://www.tba.org/tba_files/TCA/colpry.WP6
Opinion-Flash

STATE OF TENNESSEE, ex rel., Davidson Chancery COMMISSIONER OF
COMMERCE AND INSURANCE
v.
PETROLEUM MARKETERS MUTUAL INSURANCE COMPANY, A RISK RETENTION GROUP,
(CYR OIL CORPORATION)

Court:TCA

JOHN L. NORRIS
HOLLINS, WAGSTER & YARBROUGH
Suite 2210, 424 Church Street
SunTrust Center
Nashville, Tenness
ee 37219
Attorneys for Appellant

RICHARD H. DINKINS
TAMMY L. KENNEDY
WILLIAMS & DINKINS
203 Second Avenue, North
Nashville, Tennessee 37201-1601
Attorneys for Appellee
                          
Judge:WILLIAM H. INMAN

First Paragraph:

The issue is whether an insureds purported failure to cooperate with
the insurer thereby forfeiting coverage was determinable by motion for
summary judgment.  We think the record reveals contested issues of
material facts and therefore reverse and remand the case for trial.

URL:http://www.tba.org/tba_files/TCA/CYR.WHI.WP6
Opinion-Flash

BENJAMIN L. DOTSON V. KNOXVILLE COLLEGE

Court:TCA

JAMES M. CRAIN, Knoxville, for Plaintiff-Appellant.

ROBERT S. STONE, MCCAMPBELL & YOUNG, P.C., Knoxville, for
Defendant-Appellee.
                          
Judge: Franks

First Paragraph:

In this action for damages for breach of contract, the Trial Judge
directed a verdict for the defendant, and plaintiff has appealed.

URL:http://www.tba.org/tba_files/TCA/dotben.WP6
Opinion-Flash

HAROLD R. GUNN and PATSY R.GUNN v. JENNY FIELDS, d/b/a Q-MART STORES

Court:TCA

HAROLD R. GUNN
Humboldt, Tennessee
Attorney for Appellants

ROBERT KINTON
Trenton, Tennessee
Attorney for Appellee
                          
Judge:ALAN E. HIGHERS

First Paragraph:

In this unlawful detainer action, Plaintiffs, Harold R. Gunn and Patsy
R. Gunn, filed suit in general sessions court seeking possession of
the property in question and eviction of the Defendant, Jenny Fields. 
The general sessions court ruled in favor of the Defendant, holding
that the lease expired on July 31, 2000, and not on April 14, 1995 as
the Plaintiffs contend.  An appeal was filed in circuit court, and the
circuit court dismissed the Plaintiffs appeal from general sessions
court.  Plaintiffs have appealed the circuit courts dismissal of the
Plaintiffs appeal from general sessions court arguing that the lease
expired on April 14, 1995 because the Defendant did not exercise the
fourth option to extend the lease in writing within sixty days prior
to the expiration of the previous lease period.   For the reasons
stated hereafter, we affirm.

URL:http://www.tba.org/tba_files/TCA/gunnpat.WP6
Opinion-Flash

WILLIAM HOLLIFIELD, et ux v. CITY OF MORRISTOWN

Court:TCA

JAMES M. DAVIS, Morristown, for Plaintiffs-Appellees, William
Hollifield, et ux.

JOHN C. DUFFY, WATSON, HOLLOW and REEVES, P.L.C., Knoxville, for
Defendant-Appellant.
                          
Judge:Franks

First Paragraph:

In this wrongful death action against the City of Morristown (City)
filed pursuant to the Governmental Tort Liability Act, T.C.A.
29-20-101, et seq. (GTLA) the Trial Judge entered judgment against
the City and another defendant, finding the City 25% at fault for the
accident.  The Court also awarded discretionary costs to the
plaintiff, on the authority of Tennessee Rules of Civil Procedure
54.04.

URL:http://www.tba.org/tba_files/TCA/HOLLIFLD.OP.WP6
Opinion-Flash

JENKINS DENTAL ARTS, INC. 
v. 
ACE CODENT, ZAHN DENTAL COMPANY, INC., and HENRY SCHEIN, INC., and
ACECODENT INCORPORATED

Court:TCA

For Appellant                       For Appellee
RONALD HAYNES                       DAVID F. HENSLEY
Cleveland, Tennessee                Milligan, Barry, Hensley
                                    & Evans
                                    Chattanooga, Tennessee      

Judge:Susano

First Paragraph:

This case arose out of the same facts as those in the case of Richard
C. Canada and wife Sharon Canada v. Ace Codent, et al., C/A No.
03A01-9606-CV-00182.  The procedural history of the two cases is also
identical.  In this case, as in the Canada case, the appellant,
plaintiff below, argues that its amended complaint against Acecodent
Incorporated was filed within the applicable statute of limitations
under the relation back provisions of Rule 15.03, Tenn. R. Civ. P., as
amended effective July 1, 1995.  Also, as in the Canada case, the
appellee has filed a motion to dismiss the appeal predicated on the
failure of the appellant to serve a copy of its notice of appeal on
the clerk of this court as required by Rule 5(a), T.R.A.P.

URL:http://www.tba.org/tba_files/TCA/Jenkart.art.WP6
Opinion-Flash

JANET KAUFMAN and JESSE KAUFMAN v. OPRYLAND USA, INC.

Court:TCA

ROSEMARY E. PHILLIPS
P. O. Box 590
Goodlettsville, Tennessee 37070-0590
    Attorney for Plaintiffs/Appellants

Parks T. Chastain
BREWER, KRAUSE, BROOKS & MILLS
Suite 2600, The Tower
611 Commerce Street
Nashville, Tennessee 37203
    Attorney for Defendant/Appellee
                          
Judge:BEN H. CANTRELL

First Paragraph:

In this slip and fall case the jury returned a verdict for the
property owner.  On appeal, the plaintiffs assert that the trial
judges comments while overruling a motion for a new trial show that
she disagreed with the verdict; that in performing her duty as
thirteenth juror she should have set the verdict aside.  We affirm.

URL:http://www.tba.org/tba_files/TCA/Kaufmanj.xd.WP6
Opinion-Flash

SHEILA M. MAPPS vs. JIMMY H. MAPPS, JR.

Court:TCA

ROBERT H. MOYER, BOPR #13664
107 North Third Street
Clarksville, Tennessee 37040
ATTORNEY FOR PLAINTIFF/APPELLANT

KEVIN C. KENNEDY, B.O.P.R. #10793
127 South Third Street
Clarksville, Tennessee 37040
ATTORNEY FOR DEFENDANT/APPELLEE
                         
Judge:HENRY F. TODD

First Paragraph:

This is a post-divorce decree proceeding upon petition and
counter-petition regarding child custody, visitation and support. 
From an unsatisfactory result, the wife, Sheila M. Mapps, has appealed

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

LELA CUMMINGS (SWINDLE)
vs.
CITY OF MEMPHIS and MEMPHIS LIGHT, GAS & WATER DIV., CITY OF MEMPHIS, 
vs.
WHITE CONTRACTING, INC.

Court:TCA

Monice Moore Hagler
City Attorney

Dorothy Osradker
Sr. Asst. City Attorney

For Appellant City of Memphis
M. Scott Willhite
Attorney for Appellant White Contracting

Reed L. Malkin
Attorney for Appellee, Lela Cummings (Swindle)

Yvonne Chatman-Johnson
Attorney for Appellee MLGW

Judge:HIGHERS

First Paragraph:

In this action for personal injury, defendants appeal from the trial
courts judgment holding the defendants, City of Memphis (City) and
White Contracting, Inc., 100% negligent.

URL:http://www.tba.org/tba_files/TCA/memphwht.WP6
Opinion-Flash

CONNIE LOU MILLER, and husband JOHN G. MILLER, JR., and DARRYL
McLEMORE, a minor, by and through his parents and next of friends,
CONNIE LOU MILLER and JOHN G. MILLER
vs.
CECIL EDGAR BREEDEN, and the STEWART COUNTY HIGHWAY DEPARTMENT and
STEWART COUNTY

Court:TCA

GREGORY D. SMITH
TN BPR #013420
One Public Square, Suite 321
Clarksville, Tennessee 37040
ATTORNEY FOR PLAINTIFFS/APPELLANTS

MARK NOLAN #015859
121 South Third Street
Clarksville, Tennessee 37041
ATTORNEY FOR DEFENDANT/APPELLEE
                          
Judge:HENRY F. TODD

First Paragraph:

The captioned Plaintiffs have appealed from a non-jury judgment
dismissing their suit for personal injuries and property damage in a
highway collisi

URL:http://www.tba.org/tba_files/TCA/Millercb.op.WP6
Opinion-Flash

PAULA DEVEAU RECTOR vs. STEVEN ELY RECTOR

Court:TCA

For Appellant                       For Appellee
LEONARD MIKE CAPUTO                 TIMOTHY R. SIMONDS
Phillips & Caputo                   ERIC PAUL EDWARDSON
Chattanooga, Tennessee              Baker, Donelson, Bearman
                                    & Caldwell, P.C.
                                    Chattanooga, Tennessee
                          
Judge:Susano

First Paragraph:

This is a post-divorce case.  As later amended, the petition of Steven
Ely Rector (Father) filed March 3, 1995, seeks to prevent his former
wife, Paula Deveau Elliott (Mother), from relocating with the parties
two daughters, ages 7 and 8, to Florence, Kentucky.  The amended
petition asks the court to change the childrens custody from Mother
to Father.  The trial court refused to block Mothers move with the
children to Kentucky; denied Fathers petition for change of custody;
and established new visitation rights for Father.  Father
appeals, raising one issue.

URL:http://www.tba.org/tba_files/TCA/RECTOR.OP.WP6
Opinion-Flash

ROBERT SHIVERS 
vs.
STONEY L. RAMSEY, JOHN R.CARNES, Individually and JOHN R. CARNES,
d/b/a CLINTON HIGHWAY WRECKER SERVICE

Court:TCA

JAMES W. VARNER, JR., and CARL W. ESHBAUGH, Esbaugh, Simpson and
Varner, Knoxville, for Appellant.

R. KIM BURNETT and RONALD C. NEWCOMB, Arnett, Draper and Hagood,
Knoxville, for Appellee.
                          
Judge:McMurray

First Paragraph:

This action arose from a motor vehicle accident that occurred on
Mehaffey Road in Knox County.  The case was tried before a jury and a
verdict was returned in favor of the defendants.  Judgment was duly
entered thereon.  A motion for a new trial was timely made and
overruled.  This appeal resulted.  We affirm the judgment of the trial
court.

URL:http://www.tba.org/tba_files/TCA/SHIVERS.C?.WP6
Opinion-Flash

SHARRON COGGINS SMITH vs. CHARLES STACEY SMITH

Court:TCA

MICHAEL E. GILMER
Columbia, Tennessee
Attorney for Appellant

JOE W.  HENRY, JR.
HENRY, HENRY, STACK, GARNER & SPEER, P.C.
Pulaski, Tennessee
Attorney for Appellee
                         
Judge:DAVID R. FARMER

First Paragraph:

Plaintiff-Appellant, Sharron Coggins Smith (Mother), appeals the
trial courts order denying her petition to modify the parties final
divorce decree.

URL:http://www.tba.org/tba_files/TCA/Smithsm.opn.WP6
Opinion-Flash

JEFFREY A. THOMPSON, a minor by his next friend and guardian, TREIVA
GRIFFIN
vs.
JOHN A. DYER

Court:TCA                         

Attorneys: N/A

Judge:HIGHERS

First Paragraph:

RULE 10 ORDER AND OPINION
This appears to be a proper matter for consideration pursuant to Court
of Appeals Rule 10(a).This is a personal injury action arising out of
an automobile accident.  Following a trial, the jury returned a
verdict in favor of defendant.  The sole issue raised by plaintiff is
whether the jury verdict was contrary to the weight of the evidence.

URL:http://www.tba.org/tba_files/TCA/Thompmin.opn.WP6
Opinion-Flash

JENNIFER TURNER 
vs.
BILLY S. STOKES, Commissioner of the Tennessee Department of
Employment Security, and WEST TENNESSEE BEHAVIORAL CENTER

Court:TCA

KRISTI R. REZABEK, Law Offices of Kristi R. Rezabek, Jackson, Attorney
for Petitioner.

CHARLES W. BURSON, Attorney General & Reporter, ROBERT W. STACK and
JAMES H. TUCKER, JR., Assistant Attorney General, Nashville, Attorneys
for Respondent Billy Stokes and DALE CONDER, JR., Rainey, Kizer,
Butler, Reviere & Bell, Jackson, Attorney for Respondent West
Tennessee Behavioral Center.
                          
Judge:TOMLIN, Sr.

First Paragraph:

Petitioner, Jennifer Turner, filed a petition for certiorari in the
Gibson County Chancery Court asking that court to review a decision of
the Board of Review of the Tennessee Department of Employment Security
(TDES), affirming that agencys denial of petitioners application
for unemployment benefits on the grounds that she was discharged for
work related misconduct.  The chancellor affirmed the Board.  On
appeal petitioner presented two issues for our consideration: (1)
whether there is substantial and material evidence in the record to
support the decision of the Board of Review, and (2) whether the Board
correctly held that petitioner committed work-related misconduct
within the meaning of the Employment Security Statutes.  We find no
error and affirm.


URL:http://www.tba.org/tba_files/TCA/turnbill.WP6
Opinion-Flash

CHARLES WILEY VS. STATE OF TENNESSEE

Court:TCA

CHARLES WILEY
North East Correctional Center
P. O. Box 5000
Mountain City, Tennessee 37683-5000
    Pro Se/Petitioner/Appellant

CHARLES W. BURSON
Attorney General and Reporter

CAROLINE R. KRIVACKA
Assistant Attorney General
404 James Robertson Parkway
Nashville, Tennessee 37243-0488
    Attorney for Respondent/Appellee                         

Judge:BEN H. CANTRELL

First Paragraph:

The appellant filed a claim for the value of personal property
allegedly lost through the negligence of state employees.  The
Tennessee Claims Commission dismissed his claim, and he appealed the
dismissal.  The Commissioner assigned to the case did not respond to
his appeal, and the appellant filed a Petition for Declaratory
Judgment with the Chancery Court of Davidson County.  This appeal
followed the chancery courts dismissal of the petition for lack of
jurisdiction.  We affirm the chancery court.

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

ROY ERNEST YOUNG vs. SANDRA LEE (RUPERT) YOUNG

Court:TCA

For the Plaintiff/Appellee:         For the Defendant/Appellant:
W. Lee Lackey                       Nan Barlow     
Savannah, Tennessee                 Savannah, Tennessee
                          
Judge:HOLLY KIRBY LILLARD

First Paragraph:

This is an action to set aside a divorce decree.  Defendant Sandra
Young appeals the trial courts denial of her Amended Motion to Set
Aside Final Decree of Divorce.  Because Roy Young failed to take
appropriate measures to give SandraYoung notice of the divorce
proceedings, we reverse the trial court, vacate the divorce decree and
the award of custody, and remand the case to the trial court.

URL:http://www.tba.org/tba_files/TCA/younsan.WP6
Opinion-Flash

STATE OF TENNESSEE VS. WILLIAM BRIAN BELSER

Court:TCCA

For Appellant:                  For Appellee:
Leroy Phillips, Jr.             Charles W. Burson
Phillips & Caputo               Attorney General and Reporter
312 Vine Street                 450 James Robertson Parkway
Chattanooga, TN  37403          Nashville, TN  37243-0493
(on appeal and at trial)
                                Amy L. Tarkington
Leonard Michael Caputo          Assistant Attorney General
Phillips & Caputo               Criminal Justice Division
312 Vine Street                 450 James Robertson Parkway
Chattanooga, TN  37403          Nashville, TN  37243-0493
(at trial)
                                Michael G. Nassios
                                and
                                Robert L. Jolley
                                Assistant District Attorneys General
                                City-County Building
                                Knoxville, TN  37902         
                      
Judge:GARY R. WADE

First Paragraph:

The defendant, William Brian Belser, was convicted of second degree
murder and sentenced to a Range I, twenty-five (25) year term in the
Department of Correction.  See Tenn. Code Ann.39-13-210 and
40-35-112(a)(1).

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

KENNETH A. BENTLEY VS. STATE OF TENNESSEE

Court:TCCA

FOR THE APPELLANT:                  FOR THE APPELLEE:
ARDENA J. GARTH                     CHARLES W. BURSON
District Public Defender            Attorney General & Reporter

DONNA ROBINSON MILLER               DARIAN B. TAYLOR
Asst. District Public Defender      Asst. Attorney General
701 Cherry St., Suite 300           450 James Robertson Pkwy.
Chattanooga, TN  37402              Nashville, TN  37243-0493

                                    GARY D. GERBITZ
                                    District Attorney General

                                    LELAND DAVIS
                                    Asst. District Attorney General
                                    600 Market St., Third Fl.
                                    Chattanooga, TN  37402
                          

Judge:JOHN H. PEAY

First Paragraph:

The petitioner pled guilty on June 15, 1994, to escape from a penal
institution in violation of T.C.A. 39-16-605 (1991).  At the time of
the alleged escape offense, the defendant was serving a ten year
Community Corrections sentence for previous drug offenses.  The trial
court sentenced him to one year in prison, with the sentence to run
consecutively to the sentences for which the defendant was on
Community Corrections.  The petitioner filed a petition for
post-conviction relief on October 14, 1994, and amended it with the
assistance of counsel on January 24, 1995, alleging that he received
ineffective assistance of counsel and that the trial court erred in
accepting his guilty plea because there was no factual basis to
support his conviction for escape.  The trial court dismissed the
petition on May 3, 1995, finding that the petitioner had escaped from
the custody of a Hamilton County Community Corrections Program
employee who was carrying out an order of the Hamilton County Criminal
Court.  After a review of the record and the arguments in the present
case, we reverse the judgment of the trial court and vacate the
petitioners conviction for escape from a penal institution.

URL:http://www.tba.org/tba_files/TCCA/Bentleyk.opn.WP6
Opinion-Flash

EDWARD D. COKER vs.STATE OF TENNESSEE

Court:TCCA

FOR THE APPELLANT:                  FOR THE APPELLEE:
J. Timothy Street                   Charles W. Burson
136 Fourth Avenue, South            Attorney General and Reporter
Franklin, Tennessee 37064           450 James Robertson Parkway
(Appeal only)                       Nashville, Tennessee 37243-0493

James A. Vick                       Karen M. Yacuzzo
300 James Robertson Parkway         Assistant Attorney General 
Court Square Building               450 James Robertson Parkway
Nashville, Tennessee 37201          Nashville, Tennessee 37243-0493
(Trial only)
                                    Joseph D. Baugh, Jr.
                                    District Attorney General

                                    Derek Keith Smith
                                    Assistant District Attorney General
                                    Williamson County Courthouse
                                    Suite G6
                                    P. O. Box 937
                                    Franklin, Tennessee 37065-0937
                         
Judge:William M. Barker

First Paragraph:

The appellant, Edward D. Coker, was indicted on two counts of theft of
services over $500, a class E felony, two counts of theft of services
over $1,000, a class D felony, and two counts of criminal
impersonation.  He pled guilty to one count of theft of services over
$500 and one count of theft of services over $1,000.  The other
charges were dismissed by the State in exchange for the plea.   He was
sentenced as a Range I standard offender to the maximum sentence for
each conviction, two and four years, respectively.  The sentences were
ordered to be served consecutively.  On appeal, the appellant
complains that the sentences are excessive and that the court erred
when it ordered the sentences to run consecutively.  After a  thorough
review of the record on appeal, we affirm the judgment of the trial
court.

URL:http://www.tba.org/tba_files/TCCA/Cokered.opn.WP6
Opinion-Flash

ARTHUR CUTSHALL vs. STATE OF TENNESSEE

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:
Arthur Cutshall, Pro Se         Charles W. Burson
Carter County Work Camp         Attorney General & Reporter
Caller #1                       500 Charlotte Avenue
Roan Mountain, TN 37687         Nashville, TN 37243-0497

                                Eugene J. Honea
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                David E. Crockett
                                District Attorney General
                                Route 19, Box 99
                                Johnson City, TN 37601
                         
Judge:Joe B. Jones

First Paragraph:

The appellant, Arthur Cutshall, appeals as of right from a judgment of
the trial court summarily dismissing his habeas corpus suit.  The
trial court ruled that the petition did not allege a ground that would
warrant the issuance of habeas corpus relief.  The petition alleged
that he was denied his constitutional right to the effective
assistance of counsel, that the assistant district attorney general
violated Rule 11, Tennessee Rules of Criminal Procedure, during plea
negotiations, that his guilty plea was illegally obtained, and that
the trial court did not inform him of the minimum sentence for the
offense in question.  The appellant contends in this Court that the
trial court erroneously dismissed his petition without an evidentiary
hearing.  After a thorough review of the record, the briefs submitted
by the parties, and the law governing the issue presented for review,
it is the opinion of this Court that the judgment of the trial court
should be affirmed pursuant to Rule 20, Tennessee Court of Criminal
Appeals.

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

LARRY VAN DAVIS vs. STATE OF TENNESSEE

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE (STATE):
DALE W. PETERSON                CHARLES W. BURSON
Attorney at Law                 Attorney General and Reporter
410 West Main Street                                         
Woodbury, Tennessee 37190       CHARLOTTE H. RAPPUHN           
                                Attorney General's Office                                         
                                450 James Robertson Parkway
                                Nashville, Tennessee 37243
                                  
                                LISA A. NAYLOR
                                Legal Assistant
                                Attorney General's Office
                              
                                DAVID L. PUCKETT
                                Assistant District Attorney
                                Rutherford County Judicial Bldg.
                                Murfreesboro, Tennessee 37130
 
Judge:WILLIAM S. RUSSELL

First Paragraph:

The appellant, Larry Van Davis, appeals the trial court's denial of
his motion to compel discovery in conjunction with his Petition for
Post Conviction Relief, and the subsequent denial of the relief
requested in the Post Conviction Petition.  We affirm the action of
the trial court in both respects.

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

JIMMY DALE HILL,v. STATE OF TENNESSEE,  

Court:TCCA

For the Appellant:              For the Appellee:

Andrew Jackson Dearing III      Charles W. Burson
117 South Main Street           Attorney General and Reporter
Suite 101   
Shelbyville, TN  37160          Mary Ann Queen
                                Legal Assistant
                                Christina S. Shevalier
                                Assistant Attorney General                          
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493                
                        
                                William Michael McCown
                                District Attorney General

                                Robert S. Crigler
                                Asst. District Attorney General
                                Moore County Courthouse
                                Lynchburg, TN  37354

Judge: David G. Hayes

First Paragraph:

The appellant, Jimmy Dale Hill, appeals the Moore County Circuit
Courts denial of his petition for post-conviction relief.  On
February 22, 1994, pursuant to a plea agreement, the appellant pled
guilty to vehicular assault and was sentenced as a Range 1 standard
offender to the Department of Correction for seven years.  The plea
agreement provided, and the trial court ordered, that this sentence be
served concurrently with three prior unserved sentences from Coffee
County.  On June 20, 1994, the appellant filed a petition for
post-conviction relief, alleging that the Department of Correction
refused to acknowledge the provision of the judgment of conviction
relating to concurrent service of the appellants sentences.

URL:http://www.tba.org/tba_files/TCCA/Hilljim.opn.WP6
Opinion-Flash

JONATHAN A. HYLER,  v. STATE OF TENNESSEE,

Court:TCCA

For the Appellant:              For the Appellee:

Terry J. Canady                 Charles W. Burson
211 Printers Alley Building     Attorney General of Tennessee
Suite 400                       and
Nashville, TN 37201             William David Bridges
                                Asst Attorney General of Tennessee                                  
                                450 James Robertson Parkway     
                                Nashville, TN 37243-0493

                                Victor S. Johnson, III
                                District Attorney General
                                and 
                                Jon Seaborg
                                Assistant District Attorney General
                                Washington Square
                                222 2nd Avenue North
                                Nashville, TN 37201-1649

Judge: Joseph M. Tipton

First Paragraph:

The petitioner, Jonathan A. Hyler, appeals as of right from the
Davidson County Criminal Courts denying him post-conviction relief
from his 1989 convictions for one count of aggravated rape and two
counts of rape with an effective sentence of thirty years.  See State
v. Jonathan A. Hyler, No. 01C01-9010-CR-00267, Davidson Co. (Tenn.
Crim. App. Sept. 5, 1991).  The petitioner states that the issue he
raises is whether the trial court erred in denying him post-conviction
relief on the ground of ineffective assistance of counsel.  We glean
from the argument portion of his brief that his particular contentions
are as follows: (1) trial counsel was ineffective for failure to
address the fact that the victims testimony indicated that a 911 tape
would have been made, but was not produced; (2) appellate counsel,
retained before the motion for new trial was decided, was ineffective
by failing to present the 911 tape issue; (3) appellate counsel was
ineffective by failing to file an application for permission to appeal
to the Tennessee Supreme Court.

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

STATE OF TENNESSEE, v. HUBERT JOHNSON,

Court:TCCA

FOR THE APPELLANT               FOR THE APPELLEE

Ronald P. Smith                 Charles W. Burson
P.O. Box 1627.                  Attorney General & Reporter  
Knoxville, TN  37901
On appeal                       Elizabeth T. Ryan
                                Assistant Attorney General      
Ellery E. Hill, Jr.             450 James Robertson Parkway
1103 Venido Dr.                 Nashville, TN  37243-0493
Concord, TH  37932                  
At trial                        Randall Nichols
                                District Attorney General
                               
                                Michael Nassios
                                Robert Jolley
                                Assistant District Attorney General
                                City-County Bldg.
                                Knoxville, TN  37902

Judge: JOHN K. BYERS

First Paragraph:

The defendant was convicted by a jury of first-degree murder and
attempted first-degree murder.  On the first count, he was sentenced
to life imprisonment; on the second, he was sentenced to 15 years in
prison to run consecutively to his serving his sentence on count one.

URL:http://www.tba.org/tba_files/TCCA/Johnsh.opn.WP6
Opinion-Flash

STATE OF TENNESSEE, v. EDWARD THOMAS KENDRICKS, III, alias EDWARD
THOMAS KENDRICK, III

Court:TCCA

FOR THE APPELLANT:               FOR THE APPELLEE:


JERRY H. SUMMERS                CHARLES W. BURSON
500 Lindsay St.                 Attorney General & Reporter
Chattanooga, TN   37402
       (On Appeal)              HUNT S. BROWN
                                Asst. Attorney General
                                450 James Robertson Pkwy.
ARDENA GARTH                    Nashville, TN   37243-0493
Public Defender                         
                        
HIRAM G. HILL                   WILLIAM H. COX, III
Asst. Public Defender           District Attorney General
701 Cherry
Chattanooga, TN 37402           C. LELAND DAVIS
       (At Trial)               DEE ANNE IRWIN
                                Asst. District Attorneys General
                                Courts Bldg.
                                Chattanooga, TN 37402 
                                

Judge: JOHN H. PEAY

First Paragraph:

The defendant was indicted for and convicted by a jury of first-degree
murder.  He was sentenced to life imprisonment.  He now appeals as of
right raising the following issues: 1.  The evidence was
insufficient to support his conviction; 2.  The trial court erred
when it found a child witness to have been properly qualified to
testify; 3. The trial court erred when it limited the defendants
attempt to introduce prior statements of a witness; 4.  The trial
court erred when it allowed the prosecution to cross examine the
defendant about prior convictions; 5.   The trial court erred when it
allowed the State to produce a witness whose identity had not been
disclosed to the defendant; 6.  The trial court erred when it
allowed hearsay testimony under the excited utterance exception;
7.  The State violated Brady v. Maryland when it failed to disclose
exculpatory information to the defendant; 8.    The trial court erred
when it did not give a limiting instruction on the use of an excited
utterance; and 9.   The trial court erred when it included an
instruction on flight in its charge to the jury.

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

STATE OF TENNESSEE, v. OLIVER LOWE,

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

JOHN G. MITCHELL, JR.       CHARLES W. BURSON
P.O. Box 1336               Attorney General and Reporter
Murfreesboro, TN 37133
                            GLENN ERIKSON
MICHAEL J. FLANAGAN         Assistant Attorney General
95 White Bridge Road        450 James Robertson Parkway
Nashville, TN 37205         Nashville, TN 37243-0488

                            C. MICHAEL LAYNE
                            District Attorney General
                            Manchester, TN 37355
                                
Judge: DAVID H. WELLES

First Paragraph:

The Defendant was convicted on a jury verdict of possession of a
Schedule II substance, methamphetamine, with the intent to sell or
deliver, and possession of drug paraphernalia.  The basis of this
appeal is the trial judges denial of the Defendants motion to suppress
evidence obtained pursuant to a search warrant.  The Defendant argues
that this warrant was improperly served, and was issued without
probable cause.  We find the search warrant was legally sufficient and
properly served, and affirm the decision of the trial court.

URL:http://www.tba.org/tba_files/TCCA/Loweol.opn.WP6
Opinion-Flash


STATE OF TENNESSEE, v. AMY RENEE MARCUM,

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

Hiram G. Hill                   Charles W. Burson
Attorney at Law                 Attorney General & Reporter
701 Cherry Street, Suite 200    500 Charlotte Avenue
Chattanooga, TN 37402           Nashville, TN 37243-0497

                                Elizabeth T. Ryan
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                Gary D. Gerbitz
                                District Attorney General
                                600 Market Street, Suite 310
                                Chattanooga, TN 37402

                                William H. Cox, III
                                Assistant District Attorney General
                                600 Market Street, Suite 310
                                Chattanooga, TN 37402

Judge: Joe B. Jones

First Paragraph:

The appellant, Amy Renee Marcum, was convicted of solicitation to
commit murder in  the first degree, a Class B felony, after her plea
of guilty to the offense.  The trial court found that the appellant
was a standard offender and imposed a Range I sentence consisting of
confinement for ten (10) years in the Department of Correction.  In
this Court, the appellant challenges the length and manner of service
of the sentence imposed by the trial court.  After a thorough review
of the record, the briefs submitted by the parties, and the law that
controls 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/MARCUM.OPN.WP6
Opinion-Flash

STATE OF TENNESSEE, v. GREGORY MUSE,

Court:TCCA

FOR THE APPELLANT:      FOR THE APPELLEE:

Kevin W. Shepherd       Charles W. Burson
Attorney at Law         Attorney General & Reporter 
404 Ellis Avenue
Maryville, TN 37804     Eugene J. Honea
                        Assistant Attorney General
                        Criminal Justice Division
                        450 James Robertson Parkway
                        Nashville, TN 37243-0493

                        Michael L. Flynn
                        District Attorney General

                        Philip H. Morton
                        Asst. Dist. Attorney General
                        363 Court Street
                        Maryville, TN 37804
                
Judge: PAUL G. SUMMERS,

First Paragraph:

A jury convicted the appellant, Gregory Muse, of aggravated assault.
He was sentenced to four years with all but the first thirty days
suspended.  On appeal, he argues that: 1.  The trial court committed
reversible error by impaneling the jury without his presence, and 2.
That his sentence was excessive.

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

STATE OF TENNESSEE, v. DWAYNE WILLARD PHILLIPS,

Court:TCCA

For the Appellant:              For the Appellee:

William C. Talman               Charles W. Burson
P.O. Box 506                    Attorney General of Tennessee
Knoxville, TN 37901             and
                                Merrilyn Feirman 
                                Asst Attorney General of Tennessee
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                Randall Nichols     
                                District Attorney General   
                                and
                                Fred Bright       
                                Assistant District Attorney General
                                City-County Building
                                Knoxville, TN 37901-1468

Judge: Joseph M. Tipton

First Paragraph:

The defendant, Dwayne Willard Phillips, appeals as of right from the
order of the Knox County Criminal Court requiring his hospitalization
for a minimum of sixty days in a mental health facility pursuant to
T.C.A.  33-7-303(a) for the purpose of diagnosis and evaluation after
he was found not guilty by reason of insanity.  The defendant contends
that his mandatory hospitalization pursuant to T.C.A.  33-7 303(a)
violates equal protection and due process.  We disagree.

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

STATE OF TENNESSEE, v. JAMES MICHAEL PITTS,

Court:TCCA

For the Appellant:              For the Appellee:
On Appeal                       Charles W. Burson
Michael J. Flanagan             Attorney General & Reporter
Dale M. Quillen
95 White Bridge Road            Charlotte H. Rappuhn
Suite 208                       Assistant Attorney General
Nashville, TN 37205             450 James Robertson Parkway
                                Nashville, TN 37243-0493
At Trial            
Lionel R. Barrett, Jr.          Victor S. Johnson III
Attorney at Law                 District Attorney
222 Second Avenue North
Nashville, Tennessee 37201      John Zimmerman      
                                Assistant District Attorney
                                Washington Square Bldg.
                                222 2nd Ave., North
                                Nashville, Tennessee 37201-1649

Judge: REX HENRY OGLE

First Paragraph:

On March 18, 1993, James Michael Pitts was indicted by a Davidson
County Grand Jury, as follows: Counts One, Two, and Three, Delivery in
excess of .5 grams of cocaine; Counts Four, Five, Six, and Seven,
Delivery in excess of 26 grams of cocaine; and Count Eight, Delivery
in excess of 300 grams of cocaine.  The case was tried before a jury
on December 1, 1993, and the jury returned a verdict of guilty on all
counts of the Indictment.

URL:http://www.tba.org/tba_files/TCCA/Pittmik.op.WP6
Opinion-Flash

STATE OF TENNESSEE, v. TIMOTHY R. POWELL,

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

Thomas D. Steele                Charles W. Burson
Attorney at Law                 Attorney General & Reporter
211 Union Street                500 Charlotte Avenue
Nashville, TN 37201             Nashville, TN 37243-0497

                                Charlotte H. Rappuhn
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                Victor S. Johnson, III
                                District Attorney General
                                222 Second Avenue, Suite 500
                                Nashville, TN 37201-1649

                                Ronald E. Miller
                                Assistant District Attorney General
                                222 Second Avenue, Suite 500
                                Nashville, TN 37201-1649

                                Bernard F. McEvoy
                                Assistant District Attorney General
                                222 Second Avenue, Suite 500
                                Nashville, TN 37201-1649

Judge: Joe B. Jones

First Paragraph:

The appellant, Timothy R. Powell, was found guilty of vehicular
homicide by intoxication, a Class C felony, and reckless endangerment,
a Class E felony, by a jury of his peers.  The trial court, finding
that the appellant was a standard offender, imposed a Range I sentence
consisting of confinement for six (6) years in the Department of
Correction for vehicular homicide and confinement for two (2) years in
the Department of Correction for reckless endangerment.  The two
sentences are to be served consecutively.  The effective sentence
imposed is eight (8) years.  In this Court, the appellant contends
that the trial court committed error of prejudicial dimensions by
ordering the two sentences to be served consecutively.  After a
thorough review of the record, the briefs submitted by the parties,
and the law that controls the issue 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/Powell.tim.WP6
Opinion-Flash

STATE OF TENNESSEE, v. JERRY D. REECE,

Court:TCCA

For the Appellant:              For the Appellee:

Carey J. Thompson               Charles W. Burson
Assistant Public Defender       Attorney General of Tennessee
P.O. Box 160                    and             
Charlotte, TN 37036             M. Allison Thompson
(AT TRIAL AND ON APPEAL)        Counsel for the State                               
                                450 James Robertson Parkway     
Ron Cosgrove                    Nashville, TN 37243-0493
Assistant Public Defender
P.O. Box 160                    Dan Mitchum Alsobrooks
Charlotte, TN 37036             District Attorney General
(AT TRIAL)                      Court Square
                                P.O. Box 580
                                Charlotte, TN 37036-0580
                                and
                                James W. Kirby
                                Assistant District Attorney General
                                105 Sycamore Street
                                Ashland City, TN 37015

Judge: Joseph M. Tipton

First Paragraph:

The defendant, Jerry D. Reece, was convicted in a jury trial in
Cheatham County Circuit Court of two counts of attempted aggravated
sexual battery, a Class C felony.  He received concurrent three-year
sentences as a Range I, standard offender.  In this appeal as of
right, the defendants sole contention is that the evidence was
insufficient to convict him.  We disagree.

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

STATE OF TENNESSEE, v. BILLY ALLEN REED,

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

William H. Leibrock             Charles W. Burson
Attorney at Law                 Attorney General & Reporter
339 East Main Street            500 Charlotte Avenue
Newport, TN 37821               Nashville, TN 37243-0497
(Appeal Only)
                                Elizabeth T. Ryan
Susanna L. Thomas               Assistant Attorney General
Assistant Public Defender       450 James Robertson Parkway
102 Mims Avenue                 Nashville, TN 37243-0497
Newport, TN 37821-3614
(Trial Only)                    Alfred C. Schmutzer, Jr.
                                District Attorney General
                                125 Court Avenue, Suite 301-E
                                Sevierville, TN 37862

                                Edward P. Bailey, Jr.
                                Assistant District Attorney General
                                339A Main Street
                                Newport, TN 37821

Judge: Joe B. Jones

First Paragraph:

The appellant, Billy Allen Reed, was convicted of aggravated robbery
and aggravated kidnapping, both Class B felonies, by a jury of his
peers.  The trial court found the appellant to be a multiple offender
and imposed a Range II sentence consisting of confinement for twenty
(20) years in the Department of Correction in both cases.  In this
Court, the appellant contends that the facts in this case do not
support a separate conviction for aggravated kidnapping and the trial
court committed error of prejudicial dimensions by permitting the
state to introduce identification evidence which was impermissibly
suggestive.  After a thorough review of the record, the briefs
submitted by the parties, and the law that controls 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/Reedbill.WP6
Opinion-Flash

GARVIN T. SHEPHERD, v. JAMES M. DAVIS, Warden, & STATE OF
TENNESSEE,

Court:TCCA

For the Appellant:              For the Appellee:

Garvin T. Shepherd, Pro Se      Charles W. Burson
TDOC No. 70426                  Attorney General of Tennessee
Wayne County Boot Camp          and             
Geriatrics Unit                 Eugene J. Honea
P.O. Box 182                    Asst Attorney General of Tennessee         
Clifton, TN 38425               450 James Robertson Parkway     
                                Nashville, TN 37243-0493
                    
                                T. Michael Bottoms
                                District Attorney General
                                and
                                James G. White
                                Assistant District Attorney General
                                P.O. Box 459
                                Lawrenceburg, TN 38464

Judge: Joseph M. Tipton

First Paragraph:

The petitioner, Garvin T. Shepherd, appeals as of right from the Wayne
County Circuit Courts dismissing his petition for a writ of habeas
corpus.  In 1972, the petitioner was sentenced to ninety-nine years
imprisonment for the offense of rape.  In 1984, the sentence was
conditionally commuted to twenty years.  In 1987, the petitioner was
again convicted of rape, sentenced to twelve years imprisonment, and
his commutation was revoked.  The petitioner now claims that his
commuted sentence of twenty years expired before the commutation was
revoked, thereby making the revocation void, and that the subsequent
sentence of twelve years received in 1987 has now expired after his
service of eight years and eleven months.

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

STATE OF TENNESSEE v. DANNY W. SOLOMON

Court:TCCA

FOR THE APPELLANT:

William H. Bell
Attorney at Law
114 Main Street
Greenville, Tn. 37743
    
FOR THE APPELLEE:

Charles W. Burson
Attorney General and
Eugene J. Honea
Assistant Attorney General
450 James Robertson Parkway
Nashville, Tn. 37243  

C. Berkeley Bell, Jr.
District Attorney General
    and
Cecil C. Mills, Jr.
Assistant District Attorney
113 West Church Street
Greenville, Tn. 37743
Judge: CHARLES LEE

First Paragraph:

This appeal presents a certified question of law under Tennessee Rule
of Criminal Procedure 37(b)(2)(i). The Defendant's certified question
is whether the trial court erred in failing to dismiss the second
count of an indictment because it did not allege the court of first
conviction. The Defendant pleaded guilty to D.U.I. and reserved this
issue for appeal. He received a sentence of eleven (11) months and
twenty-nine (29) days of which forty-five were to be served in the
county jail.  We affirm the judgment of the trial court.

URL:http://www.tba.org/tba_files/TCCA/Solomond.opn.WP6
Opinion-Flash

STATE OF TENNESSEE,  v. KIMBERLY SUTTON STREET,

Court:TCCA

FOR THE APPELLANT:                FOR THE APPELLEE (STATE):

LIONEL R. BARRETT, JR.            CHARLES W. BURSON
Washington Square Two             Attorney General & Reporter
Suite 417
222 Second Avenue, North                                     
Nashville, TN 37065               ROBIN L. HARRIS               
                                  Assistant Attorney General
JOHN D. PELLEGRIN                 450 James Robertson Parkway
113 West Main St.                 Nashville, TN 37243-0943
Gallatin, TN 37066           
                                  WILLIAM WHITESELL
                                  District Attorney General
                                  3rd Floor Judicial Bldg.
                                  Murfreesboro, TN 37130
                                 
                                  JOHN PRICE
                                  Assistant District Atty. General
                                  303 Rutherford County 
                                  Judicial Bldg.
                                  Murfreesboro, TN 37130
Judge: WILLIAM S. RUSSELL

First Paragraph:

Kimberly Sutton Street appeals her convictions for possessions of
marijuana, valium and drug paraphernalia; plus a conviction for
driving under the influence of an intoxicant, second offense.  Her
sentence is not at issue.

URL:http://www.tba.org/tba_files/TCCA/street.kim.WP6
Opinion-Flash

STATE OF TENNESSEE, v. CHARLES DAVID WAGNER,

Court:TCCA

FOR THE APPELLANT:                  FOR THE APPELLEE:


CHARLES W. BURSON                   DONALD E. SPURRELL
Attorney General & Reporter         128 E. Market St.
                                    Johnson City, TN   37604
HUNT S. BROWN
Asst. Attorney General
450 James Robertson Pkwy.                               
Nashville, TN  37243-0493
                
GREELEY WELLS
District Attorney General

GREG NEWMAN
Asst. District Attorney General
P.O. Box 526            
Blountville, TN   37617

Judge: JOHN H. PEAY

First Paragraph:

The defendant was indicted for selling LSD, a schedule I controlled
substance.  Prior to the indictment, the police had seized the
defendants car under Tennessees forfeiture statute, T.C.A. 53-11-451. 
Proceedings for forfeiture were then commenced pursuant to T.C.A. 
53-11-201 and the defendant eventually entered into a compromise
agreement with the State whereby he could keep his vehicle upon
payment of three hundred fifty dollars ($350.00).

http://www.tba.org/tba_files/TCCA/Wagnercd.opn.WP6
URL:http://www.tba.org/tba_files/TCCA/Wagnercd.opn.WP6

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