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.
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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 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 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 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 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 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 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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