TBALink Opinion-Flash

February 14, 1997 -- Volume #3 -- Number #020

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:
00-New Opinions From TSC
00-New Opinions From TSC-Rules
00-New Opinions From TSC-Workers Comp Panel
01-New Opinions From TCA
06-New Opinions From TCCA

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George Dean
TBALink Chief Editor


SHERRY DENISE THEARP ERVIN
vs.
DALE EDWARD ERVIN

Court:TCA

Attorneys:

Lloyd R. Tatum, Tatum and Tatum of Henderson
    For Appellant
Charles M. Cary, Denton and Cary of Bolivar
    For Appellee                          

Judge: CRAWFORD

First Paragraph:

This is an appeal from a Final Decree of Divorce entered January 5,
1996.  Plaintiff, Sherry Denise Thearp Ervin (Wife), appeals from the
order of the trial court granting her an absolute divorce from the
defendant, Dale Edward Ervin (Husband).  Wife appeals the trial
court's decision concerning the division of the marital property, the
amount of child support, and the denial of an award of attorneys'
fees. VACATED IN PART, AFFIRMED IN PART AND REMANDED.

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

STATE OF TENNESSEE
vs.
FREIDA DAWN DARNELL

Court:TCCA

Attorneys:     

FOR THE APPELLANT:              FOR THE APPELLEE:
B. CAMPBELL SMOOT               CHARLES W. BURSON
District Public Defender        Attorney General & Reporter

RACHEL E. WILLIS                JANIS L. TURNER
Assistant Public Defender       Assistant Attorney General                      
605 East Carroll Street         450 James Robertson Parkway
P. O. Box 260                   Nashville, TN 37243-0493
Tullahoma, TN 37388             
                                C. MICHAEL LANE
                                District Attorney General
                            
                                KENNETH SHELTON
                                Assistant District Attorney General
                                307 South Woodlawn
                                P. O. Box 147
                                Manchester, TN 37355                     

Judge: RILEY

First Paragraph:

The sole issue in this appeal is whether the defendant's misdemeanor
sentences are excessive.  Defendant pled guilty to nineteen (19)
counts of passing worthless checks under $500 in value and was
sentenced to eleven (11) months and twenty-nine (29) days on each
count.  The first three (3) counts were ordered to be served
consecutively in confinement in the county jail; the next ten (10)
counts were ordered to be served on probation consecutively to the
first three (3) counts and consecutively to each other; and the final
six (6) counts were ordered to be served on probation concurrent with
the first count.  Therefore, the total effective sentence was three
(3) consecutive terms of eleven (11) months and twenty-nine (29) days
to be served in confinement followed by almost ten (10) years
probation. AFFIRMED AS MODIFIED.

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

STATE OF TENNESSEE
vs.
NEFF JOSEPH LOUPE

Court:TCCA

Attorneys:                          

FOR THE APPELLANT:              FOR THE APPELLEE:

N. Reese Bagwell                Charles W. Burson
Attorney at Law                 Attorney General & Reporter
116 South Second Street         500 Charlotte Avenue
Clarksville, TN 37040           Nashville, TN 37243-0497

                                Michael J. Fahey, II
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                John W. Carney, Jr.
                                District Attorney General
                                204 Franklin Street, Suite 200
                                Clarksville, TN 37040

                                Steven L. Garrett
                                Assistant District Attorney General
                                204 Franklin Street, Suite 200
                                Clarksville, TN 37040
Judge: Jones

First Paragraph:

The appellant, Neff Joseph Loupe, was convicted of driving while under
the influence after a bench trial.  He presents three issues for this
Court to resolve.  He contends the trial court erred in considering
the testimony of a police officer regarding (a) the horizontal gaze
nystagmus test and (b) the effect of certain over-the-counter
medication, and (c) the trial court imposed an excessive sentence. 
Unfortunately, this Court is precluded from considering these issues
because the appellant failed to file either a verbatim transcript or
statement of the evidence of the proceedings in the trial court. 
Instead, this Court must conclusively presume the rulings of the trial
court and the sentence imposed by the trial court were correct.  Thus,
the judgment of the trial court is affirmed pursuant to Rule 20, Tenn.
Ct. Crim. App.

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

STATE OF TENNESSEE
vs.
PHILLIP DUANE ROBERTS

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:
H. MARSHALL JUDD                CHARLES BURSON
Assistant Public Defender       Attorney General & Reporter
215 Reagan Street                   
Cookeville, Tennessee 38501     DARYL J. BRAND
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, Tennessee 37243-0493
        
                                WILLIAM GIBSON
                                District Attorney General
    
                                OWEN BURNETT
                                Assistant District Attorney General
                                145 S. Jefferson Ave.
                                Cookeville, Tennessee 38501                         

Judge: RILEY

First Paragraph:

The defendant appeals as of right from a conviction for driving on a
revoked license, third offense and public intoxication.  For the
revoked license offense Roberts was sentenced to eleven months and
twenty-nine days with eight months to be served in jail and the
balance suspended.  For public intoxication Roberts was fined $25. 
The sole issue for review is whether the eight months of jail time is
excessive.  We affirm the sentence pursuant to Rule 20 of this Court.

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

STATE OF TENNESSEE
vs.
DAVID W. SEIBER

Court:TCCA

Attorneys:  

For the Appellant:              For the Appellee:

John H. Henderson               Charles W. Burson
District Public Defender        Attorney General of Tennessee
        and                             and
Larry D. Drolsum                William David Bridgers
Assistant Public Defender       Assist Attorney General of Tennessee
407 C Main Street               450 James Robertson Parkway     
P.O. Box 68                     Nashville, TN 37243-0493
Franklin, TN 37065-0068
                                Joseph D. Baugh
                                District Attorney General
                                        and
                                Emily Walker
                                Assistant District Attorney General
                                P.O. Box 937
                                Franklin, TN 37065-0937                        

Judge: Tipton

First Paragraph:

The defendant, David W. Seiber, was convicted by a jury in the
Williamson County Circuit Court for second offense driving under the
influence of an intoxicant (D.U.I.), a Class A misdemeanor, and for
driving after having been declared an habitual motor vehicle offender,
a Class E felony.  See T.C.A. SS 55-10-401 (1993), -616.  For the
D.U.I. conviction, he received a sentence of eleven months and twenty
nine days to be suspended after the service of one hundred and twenty
days in the Williamson County Jail and a fine of $1,000.  For the
habitual motor vehicle offender offense, he received a sentence of
fifteen months as a Range I, standard offender to be served in the
custody of the Department of Correction.  The sentences are to be
served concurrently. AFFIRMED.

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

STATE OF TENNESSEE
vs.
PENNY L. STEPHENS

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:

PHILIP A. CONDRA                CHARLES W. BURSON
District Public Defender        Attorney General and Reporter
204 Betsy Pack Drive
P.O. Box 220                    JANIS L. TURNER
Jasper, TN 37347                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                JAMES MICHAEL TAYLOR
                                District Attorney General

                                STEVEN M. BLOUNT
                                Assistant District Attorney General
                                1 South Jefferson Street
                                Winchester, TN 37398                         
    
Judge: RILEY

First Paragraph:

The appellant, Penny Stephens, was convicted by a jury of her second
offense of driving under the influence of an intoxicant and driving on
a revoked license.  She was sentenced to eleven (11) months and 29
days with all but 180 days suspended for the second offense DUI.  On
the charge of driving on a revoked license, she received a sentence of
48 hours in the county jail to run concurrently with the other charge.
 On appeal, Stephens raises two issues for our review: (1) whether the
evidence was sufficient for the jury to find her guilty beyond a
reasonable doubt; and (2) whether the trial court imposed a proper
sentence.  We affirm the judgment of the trial court. AFFIRMED.

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

STATE OF TENNESSEE
vs.
JEANNE GAIL WHITEAKER

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:
Lionel R. Barrett, Jr.              Charles W. Burson
Attorney at Law                     Attorney General & Reporter
222 Second Avenue, North            500 Charlotte Avenue
Nashville, TN 37201                 Nashville, TN 37243-0497
(Appeal Only)
                                    Caroline R. Krivacka
Charles S. Ramsey, Jr.              Assistant Attorney General
Attorney at Law                     404 James Robertson Parkway
113 West Court Square               Nashville, TN 37243-0488
McMinnville, TN 37110
(Trial Only)                        William M. Locke
                                    District Attorney General
                                    P.O. Box 410
                                    McMinnville, TN 37110-0410

                                    Larry G. Ross
                                    Assist District Attorney General
                                    P.O. Box 410
                                    McMinnville, TN 37110-0410                        

Judge: Jones

First Paragraph:

The appellant, Jeanne Gail Whiteaker, was convicted of theft in excess
of $10,000, a Class C felony, after pleading guilty to the offense. 
The trial court found that the appellant was a standard offender and
imposed a Range I sentence of confinement for five (5) years and three
(3) months in the Department of Correction.  The trial court denied
the appellant's request for an alternative sentence.  In this Court,
the appellant contends the trial court imposed an excessive sentence,
erroneously applied certain enhancement factors, and abused its
discretion by denying her request for an alternative sentence.  After
a thorough review of the record, the briefs submitted by the parties,
and the authorities which control the issues, it is the opinion of
this Court that the judgment of conviction should be affirmed, and the
sentence imposed be modified. 

URL:http://www.tba.org/tba_files/TCCA/WHITEAKE_OPN.WP6

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