TBALink Opinion-Flash

April 02, 1997 -- Volume #3 -- Number #036

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

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TBALink Chief Editor


MICHAEL EUGENE SMITH
vs.
GOODYEAR TIRE AND RUBBER COMPANY

Court:TSC

First Paragraph:

This case is before the Court upon a motion for review pursuant to
Tenn. Code Ann. S 50-6-225(e)(5)(B), the entire record, including the
order of referral to the Special Workers' Compensation Appeals Panel,
and the Panel's Memorandum Opinion setting forth its findings of fact
and conclusions of law, which are incorporated herein by reference;
Whereupon, it appears to the Court that the motion for review is not
well-taken and should be denied; and It is, therefore, ordered that
the Panel's findings of fact and conclusions of law are adopted and
affirmed, and the decision of the Panel is made the judgment of the
Court. Affirmed.

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

EVERLYN HICKS
vs. 
LARRY BRINTON, JR., DIRECTOR DIVISION OF WORKERS' COMPENSATION,
DEPARTMENT OF LABOR

Court:TSC - Workers Comp Panel

Attorneys:    

For Appellant:                      For Appellee:

Steve Taylor                        Charles W. Burson
Memphis, Tennessee                  Attorney General and Reporter
                                                                           
                                    Dianne Stamey Dycus
                                    Senior Counsel
                                    Nashville, Tennessee                      

Judge: Loser

First Paragraph:

The employee, Hicks, contends the evidence preponderates against the
trial court's finding that she is less than permanently and totally
disabled from her work-related accident and that the trial court erred
in not applying Tenn. Code Ann. section 50-6 208(a). This panel
concludes the trial court should be affirmed in both respects.
AFFIRMED.

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

MICHAEL EUGENE SMITH
vs.        
GOODYEAR TIRE AND RUBBER COMPANY

Court:TSC - Workers Comp Panel

Attorneys: 

For Appellant:                          For Appellee:

Randy N. Chism                          Jeffrey A. Garrety
Elam & Glasgow                          Garrety & Sanders
Union City, Tennessee                   Jackson, Tennessee                         

Judge: Loser

First Paragraph:

In this appeal, the employer contends the award of permanent partial
disability benefits is excessive and, particularly, that the award
exceeds the limitation contained in Tenn. Code Ann. section
50-6-241(a)(1).  As discussed below, the panel has concluded the award
should be affirmed. AFFIRMED.

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

CHARLIE BURKS
vs.
BRETT STEIN

Court:TCA

Judge: TOMLIN

First Paragraph:

In this cause, plaintiff, Pro Se, previously filed suit in the
Chancery Court of Shelby County against defendant seeking damages for
alleged failure of defendant to provide him with effective assistance
of counsel during a criminal trial, wherein plaintiff was convicted of
armed robbery.  Plaintiff is presently under the jurisdiction of the
Tennessee Department of Correction at its Lake County facility. 
Plaintiff appealed to this court which affirmed the trial court's
judgment, by Memorandum Opinion filed October 24, 1996.  Plaintiff's
petition to rehear was denied by this court on January 29, 1997.

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

STATE OF TENNESSEE
vs.
DONNA BEASLEY

Court:TCCA

Attorneys:                          

For the Appellant:                  For the Appellee:

Kevin W. Shepherd                   John Knox Walkup
404 Ellis Avenue                    Attorney General and Reporter
Maryville, TN  37804    
                                    Elizabeth T. Ryan   
                                    Assistant Attorney General                          
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493                
                        
                                    Michael L. Flynn
                                    District Attorney General

                                    Philip Morton
                                    Asst. District Attorney General
                                    363 Court Street
                                    Maryville, TN  37804
                                    
Judge: Hayes

First Paragraph:

On March 14, 1995, the appellant, Donna Beasley, pled guilty in the
Blount County Circuit Court to twenty-six counts of aggravated
burglary, a class C felony, one count of attempted aggravated
burglary, a class D felony, one count of burglary, a class D felony,
seventeen counts of theft of property worth more than one thousand
dollars, a class D felony, six counts of theft of property worth more
than five hundred dollars, a class E felony, and five counts of theft
of property worth less than five hundred dollars, a class A
misdemeanor.  The plea agreement provided that the appellant would
receive a sentence of five years for each class C felony, three years
for each class D felony, one year for each class E felony, and eleven
months and twenty-nine days for each class A misdemeanor.  The parties
additionally agreed that the appellant's effective sentence would be
ten years and that the trial court would determine the manner of
service of the sentence.  Following a sentencing hearing, the trial
court ordered that the appellant serve her sentence in the Department
of Correction.  The appellant contends that the trial court erred in
denying her an alternative sentence. AFFIRMED.

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

SANDALOS A. BLAIR
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:     

FOR THE APPELLANT:                  FOR THE APPELLEE:

STEPHEN R. LEFFLER, ESQ.            CHARLES W. BURSON
50 North Front Street               Attorney General and Reporter
Suite 1075, Morgan Keegan Tower
Memphis, TN  38103                  CHARLOTTE H. RAPPUHN
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN  37243

                                    JOHN W. PIEROTTI
                                    District Attorney General

                                    REGINALD R. HENDERSON
                                    Assistant District Attorney
                                    201 Poplar Avenue, 3rd Floor
                                    Memphis, TN  38103                     

Judge: SMITH

First Paragraph:

Appellant Sandalos Arnez Blair appeals the trial court's denial of his
petition for post-conviction relief.  He presents the following issues
for review:  (1) whether the trial court erred in failing to appoint
new post-conviction counsel; (2) whether the trial court erred in
finding that trial counsel provided effective assistance at trial; and
(3) whether trial counsel was ineffective in failing to file an
application for permission to appeal to the Tennessee Supreme Court or
in failing to take appropriate steps to comply with Tenn. Sup. Ct. R.
14 regarding the withdrawal of counsel following first tier review of
Appellant's case in this Court. VACATED AND REINSTATED.

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

ROBERT GLEN COE
vs.
STATE OF TENNESSEE

Court:TCCA                         

Judge: RILEY

First Paragraph:

Petitioner has filed a petition to rehear.  He alleges the Court did
not address the exceptions to the statute of limitations with regard
to Issues 3, 6, 7, 8, 9, 10, 11, and 14. Firstly, the judgment of the
trial court was affirmed pursuant to Rule 20, Tennessee Court of
Criminal Appeals; therefore, there was not an in-depth analysis of the
various issues.  The petition is respectfully DENIED.

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

LARRY C. CORUM
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

BRANDT DAVIS                        CHARLES W. BURSON
1707 Cove Creek                     Attorney General and Reporter
Knoxville, TN  37919
                                    ELIZABETH T. RYAN
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN  37243

                                    RANDALL E. NICHOLS
                                    Distirct Attorney General

                                    ZANE SCARLETT
                                    Assistant District Attorney
                                    City-County Building, Ste. 168
                                    400 Main Street
                                    Knoxville, TN  37902-2405                         

Judge: SMITH

First Paragraph:

Appellant Larry C. Corum appeals from the dismissal of his petition
for post-conviction relief.  On October 7, 1993, Appellant pled guilty
to two counts of burglary and one count of robbery.  Appellant
received a sentence of four years imprisonment for each count of
burglary and eight years imprisonment for robbery.  The sentences were
ordered to be served consecutively for an effective sentence of
sixteen years.  On July 12, 1994, Appellant filed a petition for
post-conviction relief, alleging ineffective assistance of counsel and
that he involuntarily entered his guilty plea.  The post-conviction
court dismissed his petition, finding it meritless.  For the reasons
discussed below, we reject Appellant's claims and affirm the decision
of the post-conviction court. AFFIRMED.

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

STATE OF TENNESSEE
vs.    
JOSEPH LEBRON DERRICK

Court:TCCA

Attorneys:  

FOR THE APPELLANT:          		FOR THE APPELLEE:

GREGORY D. SMITH                    CHARLES W. BURSON
Attorney for Appellant              Attorney General & Reporter
One Public Square, Ste. 321
Clarksville, TN  37040              M. ALLISON THOMPSON
(On Appeal)                         Assistant Attorney General
                                    450 James Robertson Parkway
ARDENA J. GARTH                     Nashville, TN  37243-0493
District Public Defender
                                    BILL COX 
WILLIAM A. DOBSON, JR.              District Attorney General
Assistant Public Defender
701 Cherry Street, Ste. 300         YOLANDA MITCHELL
Chattanooga, TN  37402-1910         Asst District Attorney General
(At Trial)                          600 Market Street 
                                    Courts Building 
                                    Chattanooga, TN  37402                              

Judge: WOODALL

First Paragraph:

The Appellant appeals as of right pursuant to Rule 3 of the Tennessee
Rules of Appellate Procedure from his conviction for second degree
murder.  The Appellant was indicted for first degree murder in
Hamilton County.  A jury found him guilty of second degree murder. 
The trial court sentenced the Appellant to twenty (20) years as a
Range I Standard Offender.  The Appellant argues three issues in his
appeal: (1) The trial court abused its discretion by not allowing a
State witness to be fully cross examined regarding inconsistent
statements; (2) the evidence was insufficient to support a conviction
for second degree murder; (3) the Appellant's sentence was excessive. 
We affirm the judgment of the trial court.  AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/DERRICK1_OPN.WP6
Opinion-Flash

SIDNEY PORTERFIELD
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:

C. Michael Robbins                  Charles W. Burson
Attorney at Law                     Attorney General & Reporter
202 South Maple, Suite C            500 Charlotte Avenue
Covington, TN  38019                Nashville, TN 37243-0497
(Argued Case)
                                    Amy L. Tarkington
William D. Massey                   Assistant Attorney General
Attorney at Law                     450 James Robertson Parkway
3074 East Street                    Nashville, TN 37243-0493
Memphis, TN  38128      
(At Trial and On Brief)             John W. Pierotti
                                    District Attorney General
                                    201 Poplar Avenue, Suite 3-01
                                    Memphis, TN 38103

                                    J. Robert Carter, Jr.
                                    Asst District Attorney General
                                    201 Poplar Avenue, Suite 3-01
                                    Memphis, TN 38103                        

Judge: Jones

First Paragraph:

The appellant, Sidney Porterfield, (petitioner), appeals as of right
from a judgment of the trial court summarily dismissing his suit for
post-conviction relief.  The trial court found the petitioner's suit
was barred by the statute of limitations.  The court further found the
issues raised had been either previously determined or waived.  One
issue is presented for review, namely,  "Did the trial court err in
dismissing the petition for post conviction relief on the ground it
was time barred and that all claims had been previously determined or
waived?"  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 the judgment of the trial court should
be affirmed. AFFIRMED.

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

JIMMY E. SPRAGUE
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

ROBERT G. HINTON                    CHARLES W. BURSON
Attorney at Law                     Attorney General & Reporter
Sproul & Hinton
205 E. Broadway                     DARIAN B. TAYLOR
Lenoir City, TN  37771              Assistant Attorney General
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493    

                                    CHARLES E. HAWK
                                    District Attorney General
                            
                                    ROGER DELP
                                    Asst District Attorney General
                                    P.O. Box 703
                                    Kingston, TN 37763-0703                         

Judge: WITT 

First Paragraph:

Appellant, Jimmy E. Sprague, appeals the dismissal of his petition for
post-conviction relief.  Appellant pleaded guilty to sexual
exploitation of a minor and was sentenced to a one year prison term on
January 10, 1992.  This conviction was not appealed.  Thereafter,
appellant filed this post-conviction petition on January 19, 1995,
contending he received ineffective assistance of counsel in the prior
proceeding and his guilty plea was not made knowingly and voluntarily.
 In his petition, appellant alleged his attorneys did not conduct a
thorough investigation and gave him erroneous legal advice which
rendered his subsequent guilty plea unknowing and involuntary.  After
an evidentiary hearing, the court below found appellant failed to
prove his allegations by a preponderance of the evidence and dismissed
the petition.  Appellant has presented this court with the ineffective
assistance of counsel issue but not the voluntariness of the plea
issue.  However, we elect to address both issues.   See Tenn. R. App.
P. 13(b).  Upon review of the record, we affirm the judgment below.
AFFIRMED.

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

WILLIE C. TAYLOR
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:


VANEDDA PRINCE                      CHARLES W. BURSON
P.O. Box 26                         Attorney General & Reporter
Union City, TN  38261   
                                    M. ALLISON THOMPSON                             
                                    Counsel for the State
                                    450 James Robertson Pkwy.                               
                                    Nashville, TN  37243-0493
                
                                    C. PHILLIP BIVENS
                                    District Attorney General
                                    P.O. Box E
                                    Dyersburg, TN  38025                             

Judge: PEAY

First Paragraph:

The petitioner pled guilty on October 6, 1994, to one count of selling
less than .5 grams of cocaine on April 21, 1994.  He was sentenced to
ten years as a Range III persistent offender for this crime.  On March
21, 1995, the petitioner pled guilty to another count of selling less
than .5 grams of cocaine; this offense occurred on September 10, 1994.
 In exchange for his plea, he received a ten year sentence as a Range
III persistent offender, to be served concurrently with the prior
sentence.  On April 17, 1995, the petitioner filed the instant
petition for post-conviction relief, alleging that he received
ineffective assistance of counsel such that his guilty pleas should be
set aside.  He also alleges that his second guilty plea was in
exchange for an illegal sentence and should therefore be set aside. 
After an evidentiary hearing, the court below denied the petition.  We
affirm the court. AFFIRMED.

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

BENJAMIN WOLFENBARGER
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:

BENJAMIN WOLFENBARGER               CHARLES W. BURSON
Pro se                              Attorney General and Reporter
                        
                                    DARIAN B. TAYLOR
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    C. BERKELEY BELL
                                    District Attorney General

                                    VICTOR J. VAUGHN
                                    Asst District Attorney General
                                    510 Allison Street
                                    Morristown, TN 37814                          

Judge: WELLES

First Paragraph:

This is an appeal pursuant to Rule 3 of the Tennessee Rules of
Appellate Procedure.  The Defendant filed his pro se "Two-Headed
Petition" on October 20, 1995.  The petition sought either
post-conviction relief or habeas corpus relief.  The trial court
treated the petition as one for post conviction relief and summarily
dismissed it as barred by the statute of limitations.  It is from the
order of dismissal that the Defendant appeals.  We affirm the judgment
of the trial court. AFFIRMED.

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

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