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TBALink Opinion-Flash
April 27, 1997 -- Volume #3 -- Number #047
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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- 04-New Opinions From TSC
- 00-New Opinions From TSC-Rules
- 10-New Opinions From TSC-Workers Comp Panel
- 04-New Opinions From TCA
- 20-New Opinions From TCCA
- 04-New Opinions From TSC
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TBALink Chief Editor
STATE OF TENNESSEE vs. MICHAEL DEAN BUSH Court:TSC First Paragraph: A petition for rehearing has been filed on behalf of appellant. After consideration of the same, the Court is of the opinion that the petition should be and the same is hereby denied at the cost of appellant. URL:http://www.tba.org/tba_files/TSC/BUSH_ORD.WP6
ROBERT DALE COBB
vs.
DOUGLAS R. BEIER
Court:TSC
Attorneys:
FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE:
J. Randall Shelton James M. Davis
Morristown, Tennessee Morristown, Tennessee
Judge: DROWOTA
First Paragraph:
The sole issue on appeal is whether the Court of Appeals erred by
dismissing this appeal because of plaintiff-appellant's failure to
serve the clerk of the appellate court with a copy of the notice of
appeal in compliance with Rule 5(a) of the Tennessee Rules of
Appellate Procedure. Several cases with similar issues are currently
pending before this Court and the Court of Appeals. Because service
of the notice of appeal upon the clerk of the appellate court serves
no significant substantive purpose in the appellate process, failure
to effect such service is not a basis for dismissal of an appeal.
Therefore, the judgment of the Court of Appeals is reversed and this
cause remanded to that court for consideration of the merits of the
appeal. REVERSED & REMANDED.
URL:http://www.tba.org/tba_files/TSC/COBB_OPN.WP6
LAWRENCE MOORE
vs.
STATE OF TENNESSEE
Court:TSC
Attorneys:
For Appellee: For Appellant:
MARK E. STEPHENS JOHN KNOX WALKUP
Public Defender Attorney General and Reporter
PAULA R. VOSS MICHAEL E. MOORE
Assistant Public Defender Solicitor General
Knoxville, TN
GORDON W. SMITH
Associate Solicitor General
Nashville, TN
RANDALL E. NICHOLS
District Attorney General
ZANE SCARLETT
Assistant District Attorney
General
Knoxville, TN
Judge: BIRCH
First Paragraph:
In 1994, Lawrence Moore, the petitioner, filed a pro se petition for
habeas corpus relief alleging that his 1983 convictions for robbery
and kidnapping violated his due process rights under the state
constitution. Treating the petition as one for post-conviction
relief, the trial court concluded that the statute of limitations
barred consideration of the claim and dismissed the petition. The
Court of Criminal Appeals found that the petition raised a claim under
State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). In addition, the
intermediate court held that Anthony announced a new constitutional
rule that applied retroactively, and therefore, under Burford v.
State, 845 S.W.2d 204 (Tenn. 1992), and Sands v. State, 903 S.W.2d 297
(Tenn. 1995), Moore's petition was timely. We granted the State's
application for permission to appeal. JUDGMENT OF THE COURT OF
CRIMINAL APPEALS REVERSED; PETITION DISMISSED.
URL:http://www.tba.org/tba_files/TSC/MOORE_OPN.WP6
STATE OF TENNESSEE
vs.
BARRY L. SPECK
Court:TSC
Attorneys:
For Appellant: For Appellee:
C. Anne Tipton John Knox Walkup
Memphis, Tennessee Attorney General & Reporter
A. C. Wharton, Jr. Michael E. Moore
Public Defender Solicitor General
Walker Gwinn Gordon W. Smith
Assistant Public Defender Associate Solicitor General
Memphis, Tennessee Nashville, Tennessee
At Trial: John W. Pierotti
B. Alan Newport District Attorney General
Assistant Public Defender
Memphis, Tennessee Jennifer Nichols
Asst District Attorney General
Memphis, Tennessee
Judge: ANDERSON
First Paragraph:
We granted this appeal to review two issues: first, whether the bill
of particulars sufficiently informed the defendant of the charges
against him, and second, whether reversible error was committed when
the trial court, applying the "fresh complaint" doctrine, ruled that
the victim's out-of-court statements to his mother regarding sexual
acts committed by the defendant were admissible to corroborate his
in-court testimony. AFFIRMED.
URL:http://www.tba.org/tba_files/TSC/SPECK_OPN.WP6
MADIA J. BLANKEN
vs.
PHILIPS CONSUMER ELECTRONICS
CORPORATION
Court:TSC - Workers Comp Panel
Attorneys:
For the Appellant: For the Appellee:
Arthur G. Seymour, Jr. Lynn Bergwerk
Robert L. Kahn 713 Market Street, Suite 120
P. O. Box 39 Knoxville, TN 37902
Knoxville, TN 37901
Judge: BYERS
First Paragraph:
Plaintiff injured her left arm at work on February 28, 1992. When
surgery did not improve the condition or decrease her pain she became
markedly depressed. The trial court found that plaintiff's depression
was related to her arm injury and awarded her 100 percent permanent
total disability based on the two conditions. We affirm the judgment
of the trial court. AFFIRMED.
URL:http://www.tba.org/tba_files/TSC_WCP/BLANKEN_OPN.WP6
BLAINE BRACKINS
vs.
SEVIER COUNTY, TENNESSEE,
SEVIER COUNTY BOARD OF
EDUCATION and LOCAL
GOVERNMENT WORKERS'
COMPENSATION FUND
Court:TSC - Workers Comp Panel
Attorneys:
For the Appellant: For the Appellees:
Richard T. Wallace Elizabeth A. Townsend
Ogle & Wallace, P.C. Gerald L. Gulley, Jr.
121 Court Ave. Baker, McReynolds, Byrne, O'Kane,
Sevierville, TN 37862 Shea & Townsend
P.O. Box 1708
Knoxville, TN 37901-1708
Judge: BYERS
First Paragraph:
The trial judge found that plaintiff was 50% permanently partially
disabled as a result of his work-related injury by accident. He
further found that the workers' compensation carrier was entitled to a
credit of $104,430.64, plaintiff's net recovery for his third-party
tort settlement. He held that he could not exclude recovery for loss
of consortium from plaintiff's net recovery because no specific amount
of that recovery was apportioned to loss of consortium. He limited
the recovery for medical expenses to plaintiff's out-of-pocket
expenses. He granted the plaintiff's attorney a 20% fee from the
medical expenses awarded and stated that plaintiff's attorney may have
to look to plaintiff's attorney in the third-party action for the rest
of his fee. AFFIRMED IN PART, REVERSED IN PART and REMANDED.
URL:http://www.tba.org/tba_files/TSC_WCP/BRACKINS_OPN.WP6
BRUNSWICK MARINE
vs.
KENNETH W. MILLER
Court:TSC - Workers Comp Panel
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
DANIEL C. TODD LARRY D. CRAIG
219 Second Avenue North THOMAS J. DRAKE, JR.
Suite Three Hundred 305 Fourteenth Avenue, North
Nashville, Tennessee 37201 Nashville, Tennessee 37203
Judge: RUSSELL
First Paragraph:
Brunswick Marine, the employer of Kenneth w. Miller, filed a petition
seeking to have the court judge that Mr. Miller's work related injury
did not occur in the course and scope of his employment. AFFIRMED.
URL:http://www.tba.org/tba_files/TSC_WCP/BRUNSWIC_OPN.WP6
STONE CONTAINER CORPORATION
vs.
NEIL GRIFFITH
Court:TSC - Workers Comp Panel
Attorneys:
For the Appellant For the Appellee:
J. Bartlett Quinn Thomas L. Wyatt
Cynthia D. Hall Summers, McCrea & Wyatt
800 Vine Street 500 Lindsay St.
Chattanooga, TN 37403
Judge: THAYER
First Paragraph:
The employer, Stone Container Corporation, has perfected this appeal
from a decision of the trial court to award the employee, Neil
Griffith, 10% permanent partial disability benefits to the body as a
whole. AFFIRMED.
URL:http://www.tba.org/tba_files/TSC_WCP/GRIFFITH_OPN.WP6
CAROLYN F. HUMPHRIES
vs.
KFC USA INC.
WITH JUDGMENT ORDER
Court:TSC - Workers Comp Panel
Attorneys:
For the Appellant: For the Appellee:
Daniel C. Todd David Burlison
Evans & Todd Abbott & Burlison
Suite Three Hundred 6263 Poplar Avenue
219 Second Avenue North Suite 1130
Nashville, TN 37201 Memphis, TN 38119
Judge: THAYER
First Paragraph:
The trial court awarded the plaintiff 30% permanent partial disability
to the body as a whole. The plaintiff was also awarded medical
expenses she had to pay herself. Plaintiff's group insurance had paid
a part of the medical expenses regarding plaintiff's March, 1994 back
treatment, resulting in surgery and subsequent follow-up care. The
trial court did not award any amount for temporary total benefits.
AFFIRMED.
URL:http://www.tba.org/tba_files/TSC_WCP/HUMPHRIC_OPN.WP6
URL:http://www.tba.org/tba_files/TSC_WCP/HUMPHRIC_JDG.WP6
JOY G. JOHNSON
vs.
GOODWILL INDUSTRIES-KNOXVILLE, INC.
Court:TSC - Workers Comp Panel
Attorneys:
For the Appellant For the Appellee:
Garry W. Ferraris Elizabeth Townsend
P.O. Box 259 Gerald L. Gulley, Jr.
Knoxville, TN 37901-0259 P.O. Box 1708.
Knoxville, TN 37901-1708
Judge: THAYER
First Paragraph:
The appeal has resulted from the action of the trial court in
dismissing the employee's claim for benefits. The Circuit Judge found
plaintiff had failed to establish her injury was caused by an accident
which arose out of and in the course of her employment. The sole issue
on appeal is whether the evidence preponderates against the conclusion
of the trial court. AFFIRMED.
URL:http://www.tba.org/tba_files/TSC_WCP/JOHNSON_OPN.WP6
AGATHA LAWRENCE
vs.
FINDLAY INDUSTRIES, a division of
GARDNER MANUFACTURING
COMPANY
Court:TSC - Workers Comp Panel
Attorneys:
For the Appellant: For the Appellee:
Patrick A. Ruth Robert S. Peters
Julia J. Tate 100 First Avenue, S.W.
150 Second Avenue N, Suite 201 Winchester, Tennessee 37398
Nashville, Tennessee 37201
Judge: INMAN
First Paragraph:
The plaintiff alleged that she suffered a series of injuries in April,
June and August 1992 which aggravated an undescribed condition, and as
of January 13, 1993 suffers from bilateral hand pain and numbness with
cervical radiculopathy and carpal tunnel syndrome with specific thumb
involvement. MODIFIED and REMANDED.
URL:http://www.tba.org/tba_files/TSC_WCP/LAWRENCE_OPN.WP6
WILDA GAIL McCARTY
vs.
FAST FOOD MERCHANDISERS, INC.
and
SUE ANN HEAD, DIRECTOR,
DIVISION OF WORKERS'
COMPENSATION, TENNESSEE
DEPARTMENT OF LABOR
Court:TSC - Workers Comp Panel
Attorneys:
For the Appellant: For the Plaintiff-Appellee:
Charles W. Burson John T. March
Attorney General & Reporter 100 South Fifth Street
P.O. Box 231
Dianne Stamey Dycus LaFollette, TN 37766
1510 Parkway Towers
404 James Robertson Pky. For the Defendant-Appellee:
Nashville, TN 37243-0499
Walter S. Fitzpatrick, III
46 North Jefferson Avenue
P.O. Box 3347
Cookevillle, TN 38501
Judge: BYERS
First Paragraph:
The plaintiff sustained a work-related injury to her right arm, and
the trial court found she suffered a 33% vocational disability to the
right arm as a result of the injury or 16.5% to the body as a whole.
See Thompson v. Leon Russell Enterprises, 834 S.W.2d 927 (Tenn. 1992).
AFFIRMED AS MODIFIED AND REMANDED.
URL:http://www.tba.org/tba_files/TSC_WCP/MCCARTY_OPN.WP6
MARY W. SCOTT
vs.
KENNY PIPE & SUPPLY, INC.
and ROYAL INSURANCE
COMPANY OF AMERICA
Court:TSC - Workers Comp Panel
Attorneys:
For the Appellants: For the Appellee:
David T. Hooper M. Linda Hughes
HOOPER & HOOPER Nashville, Tennessee
Brentwood, Tennessee
Judge: Brandt
First Paragraph:
The only issue raised in this appeal is whether the evidence supports
the trial court's award of permanent partial disability. We conclude
that it does and affirm the decision. AFFIRMED.
URL:http://www.tba.org/tba_files/TSC_WCP/SCOTTMW_OPN.WP6
TRANSPORTATION INSURANCE
COMPANY and
THE STARR COMPANY, INC.
d/b/a ROCK HARBOR MARINA
vs.
CLAYTON B. REES
Court:TSC - Workers Comp Panel
Attorneys:
For the Appellant: For the Appellees:
Nader Baydoun Terry L. Hill
John I. Harris, III James H. Tucker, Jr.
BAYDOUN, HARRIS & REESE MANIER, HEROD, HOLLABAUGH
Nashville, Tennessee & SMITH
Nashville, Tennessee
Judge: Brandt
First Paragraph:
This case presents the question of whether an employee's possession or
business use of a portable telephone converts an otherwise
noncompensable injury into a compensable one. We conclude that it
does not and affirm the trial court's denial of benefits. AFFIRMED.
URL:http://www.tba.org/tba_files/TSC_WCP/TRANSPOR_OPN.WP6
CHARLOTTE BAUGUS
vs.
DOYLE BAUGUS
Court:TCA
Attorneys:
THEODORE KERN, KNOXVILLE LEGAL AID SOCIETY, Knoxville, for
Appellee-Petitioner.
ROLAND E. COWDEN, Knoxville, for Appellant-Respondent.
Judge: Franks
First Paragraph:
In this action appellee was granted an ex parte order of protection
pursuant to T.C.A. S36-3-601, et seq., but the order expired prior to
the mandated date of hearing. Subsequently, the Trial Judge, upon an
evidentiary hearing, issued an order of protection against appellant.
AFFIRMED AND REMANDED.
URL:http://www.tba.org/tba_files/TCA/BAUGUSC_OPN.WP6
SHARON O. GARDNER
vs.
INSURA PROPERTY & CASUALTY
INSURANCE COMPANY, THE CITY OF
CHATTANOOGA, A Municipality,
and d/b/a THE CHATTANOOGA
POLICE DEPARTMENT, and OFFICER
KEVIN SMITH, BADGE #737, and
ERNEST PATILLO
Court:TCA
Attorneys:
RICHARD A. SCHULMAN and SCOTT A. MILLER, SPEARS, MOORE, REBMAN &
WILLIAMS, Chattanooga, for Plaintiff-Appellant.
RANDALL L. NELSON, City Attorney by PHILLIP A. NOBLETT, Special
Counsel, City Attorney's Office, Chattanooga, for Defendants
Appellees, The City of Chattanooga and Officer Kevin Smith.
Judge: Franks
First Paragraph:
In this action for damages for personal injuries suffered in a motor
vehicle accident, the Trial Court granted summary judgment to the City
of Chattanooga, Chattanooga Police Department and Officer Kevin Smith.
Plaintiff has appealed. AFFIRMED AND REMANDED.
URL:http://www.tba.org/tba_files/TCA/GARDNER_OPN.WP6
TERRY NORRIS and wife,
MELISA NORRIS
vs.
JON P. SEABORG, DON W. POOLE,
PHILLIP C. LAWRENCE, HERBERT
A. THORNBURY, W. LLOYD
STANLEY, JR., and JOHN R.
MORGAN, individually and as
partners doing business under
the name and style of POOLE,
LAWRENCE & THORNBURY; POOLE,
LAWRENCE, THORNBURY & STANLEY;
and POOLE, LAWRENCE,
THORNBURY, STANLEY & MORGAN
Court:TCA
Attorneys:
TAYLOR W. JONES, and LINDA R. GREER, JONES COPELAND LEFKOWITZ & GREER,
Atlanta, and EDWIN Z. KELLY, JR., KELLY, KELLY & GOUGER, P.C., Jasper,
for Plaintiffs-Appellants.
E. BLAKE MOORE and JOHN B. BENNETT, SPEARS, MOORE, REBMAN & WILLIAMS,
Chattanooga, for Defendants-Appellees.
Judge: Franks
First Paragraph:
In this legal malpractice action, the Trial Court granted defendants
summary judgment and plaintiffs have appealed. AFFIRMED AND REMANDED.
URL:http://www.tba.org/tba_files/TCA/NORRIS_OPN.WP6
EVELYN OGLE, DeWITT R.
SHELTON
vs.
REALTY WORLD-BARNES REAL
ESTATE COMPANY and DOTTIE
WOOD
Court:TCA
Attorneys:
DOUGLAS S. YATES, BRABSON, YATES AND HAMILTON, P.L.C., Sevierville,
for Plaintiffs-Appellees.
JEFF D. RADER, OGLE, WYNN & RADER, Sevierville, for Defendant
Appellant, Realty World-Barnes.
STEVEN E. MARSHALL, Sevierville, for Defendant-Appellant, Dottie Wood.
Judge: Franks
First Paragraph:
In this action the dispute is between plaintiff owners of property and
the defendant real estate agents who held earnest money in escrow for
the sale of plaintiffs' property, which the buyer, Wayne Connelly, did
not purchase as agreed. AFFIRMED IN PART, MODIFIED IN PART, AND
REMANDED.
URL:http://www.tba.org/tba_files/TCA/OGLE_OPN.WP6
STATE OF TENNESSEE
vs.
JIMMIE L. ALLEN,
a/k/a JIMMIE L. ALEXANDER
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
MICHAEL J. GATLIN CHARLES W. BURSON
P. O. Box 27331 Attorney General and Reporter
Memphis, TN 38167-0331
CLINTON J. MORGAN
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
WILLIAM L. GIBBONS
District Attorney General
REGINALD R. HENDERSON
Assistant District Attorney
201 Poplar Avenue
3rd Floor
Memphis, TN 38103
Judge: SMITH
First Paragraph:
Appellant Jimmie L. Allen appeals the trial court's denial of his
petition for a placement in a community correction program. After a
careful review of the record we find no reversible error and affirm
the judgment of the trial court. Appellant was originally indicted
for 14 counts of cocaine possession and sales allegedly occurring in
August and September of 1994. Pursuant to a negotiated plea agreement
Appellant pled guilty to a charge of solicitation to commit a felony
and four charges of felony possession of more than .5 grams of
cocaine. As part of the plea agreement Appellant accepted an
effective sentence of nine years in the Department of Correction as a
Range I standard offender. The issue of suspension of the sentence
was submitted to the trial court. Appellant was denied a suspended
sentence and requested in the alternative that he be placed on
community corrections pursuant to Tenn. Code Ann. Sec. 40-36-101, et
seq. The trial judge declined to place Appellant on community
corrections and ordered him to serve his sentence in the penitentiary.
AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/ALLENJ_OPN.WP6
STEVE L. BRYANT
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
PARRISH B. STANTON CHARLES W. BURSON
209 Tenth Avenue South Attorney General and Reporter
Nashville, TN 37203
LISA A. NAYLOR
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
VICTOR S. JOHNSON
District Attorney General
KATRIN N. MILLER
Assistant District Attorney General
Washington Square, Suite 500
222 Second Avenue North
Nashville, TN 37209-1649
Judge: WELLES
First Paragraph:
This is an appeal pursuant to Rule 3 of the Tennessee Rules of
Appellate Procedure. The Defendant filed a petition seeking habeas
corpus relief on the grounds that Tennessee's sentencing laws violate
the separation of powers clause of the Tennessee Constitution and that
the sentences authorized are indeterminate in nature and thus contrary
to law. The trial court denied habeas corpus relief. We affirm the
judgment of the trial court. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/BRYANTSL_OPN.WP6
STATE OF TENNESSEE
vs.
NATHAN ALLEN CALLAHAN
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
STEPHEN M. WALLACE CHARLES W. BURSON
District Public Defender Attorney General and Reporter
DARIAN B. TAYLOR
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
H. GREELEY WELLS
District Attorney General
NANCY S. HARR
Asst District Attorney General
Blountville, TN 37617
Judge: WELLES
First Paragraph:
This is an appeal as of right pursuant to Rule 3, Tennessee Rules of
Appellate Procedure. The Defendant, Nathan Allen Callahan, was
convicted by a Sullivan County jury of one count of first-degree
murder and one count of second-degree murder, respectively, for the
shooting deaths of his mother and younger sister. The jury set
punishment for the first-degree murder conviction at life imprisonment
and fined the Defendant $47,000.00 for the count of second-degree
murder. The trial court ordered twenty-two years imprisonment on the
conviction for second-degree murder to be served concurrently with the
life sentence. The Defendant appeals his convictions and raises the
following issues: (1) That the evidence is insufficient to support the
conviction for murder in the first degree; (2) that the trial court
erred in denying the Defendant's special jury request; (3) that the
trial court erred in failing to suppress his confession; and (4) that
the trial court erred by not suspending the fine imposed by the jury.
After careful review of the issues and the record, we affirm the
judgment of the trial court. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/CALLAHAN_OPN.WP6
JACKIE LEE CHILDS
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
ROBERT J. MENDES CHARLES W. BURSON
209 10th Ave. South Attorney General and Reporter
Nashville, TN 37203
DARYL J. BRAND
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
VICTOR S. JOHNSON
District Attorney General
KATRIN N. MILLER
Asst District Attorney General
Washington Square, Suite 500
222 Second Avenue North
Nashville, TN 37209-1649
Judge: WELLES
First Paragraph:
This is an appeal pursuant to Rule 3 of the Tennessee Rules of
Appellate Procedure. The Defendant filed a petition seeking habeas
corpus relief on the grounds that Tennessee's sentencing laws violate
the separation of powers clause of the Tennessee Constitution and that
the sentences authorized are indeterminate in nature and thus contrary
to law. The trial court denied habeas corpus relief. We affirm the
judgment of the trial court. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/CHILDSJL_OPN.WP6
KENNY D. COVINGTON
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
ROBERT J. MENDES CHARLES W. BURSON
209 Tenth Avenue South Attorney General and Reporter
Suite 511
Nashville, TN 37203 CLINTON J. MORGAN
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
VICTOR S. JOHNSON
District Attorney General
CHERYL BLACKBURN
Asst District Attorney General
Washington Square, Suite 500
222 Second Avenue North
Nashville, TN 37201-1649
Judge: WELLES
First Paragraph:
The Petitioner appeals the trial court's denial of his petition for
post conviction relief pursuant to Rule 3 of the Tennessee Rules of
Appellate Procedure. He was convicted by a guilty plea of three
counts of selling over .5 grams of cocaine, one count of selling over
26 grams of cocaine, one count of possession for sale of over 26 grams
of cocaine, one count of possession for sale of over .5 grams of
cocaine, one count of possession of drug paraphernalia, and one count
of a felon possessing a weapon. He was sentenced by the trial court
as a Range I offender to thirty (30) years imprisonment. In this
appeal, the Petitioner contends that counsel rendered ineffective
assistance and that his guilty plea was not entered voluntarily,
knowingly, or understandingly. We affirm the judgment of the trial
court. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/COVINGKD_OPN.WP6
LARRY RAY FULLER
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLEE: FOR THE APPELLANT:
LARRY RAY FULLER, PRO SE CHARLES BURSON
L.C.R.C.F. Attorney General & Reporter
Route 1, Box 330
Tiptonville, TN 38079 CLINTON J. MORGAN
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
JOHN W. PIEROTTI
District Attorney General
C. ALANDA HORNE
Asst District Attorney General
Third Floor
Criminal Justice Complex
201 Poplar
Memphis, TN 38103
Judge: WOODALL
First Paragraph:
The Appellant appeals as of right pursuant to Rule 3 of the Tennessee
Rules of Appellate Procedure from the trial court's denial of his pro
se "Motion for Amended Judgment Order Granting Pre-trial Jail Credit
and Correcting Sentence Effective Date for Concurrent Sentence." The
Appellant's sole issue is that the trial court erred in denying his
motion for pre trial jail credit. We affirm the judgment of the trial
court. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/FULLERLR_OPN.WP6
TONY LYNN HICKS
vs.
FRED J. RANEY, WARDEN
Court:TCCA
First Paragraph:
This matter is before the Court upon the state's motion to affirm the
judgment of the trial court under Rule 20, Rules of the Court of
Criminal Appeals. This case represents an appeal from the trial
court's denial of the petitioner's petition for writ of habeas corpus.
The record was filed on February 12, 1997, and the petitioner filed
his brief on March 7, 1997. The state filed the present motion on
April 16, 1997, accompanied by a motion to accept the late filed
motion. Having reviewed the motion, the Court hereby finds good cause
to allow the state to late-file its motion to affirm the judgment of
the trial court under Rule 20.
URL:http://www.tba.org/tba_files/TCCA/HICKS_ORD.WP6
CARL ED LEMING
vs.
STATE OF TENNESSEE,
JAMES A. BOWLEN, Warden
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
Carl Ed Leming, Pro Se John Knox Walkup
STSRCF Rt. 4, Box 600 Attorney General of Tennessee
Pikeville, TN 37367 and
Elizabeth T. Ryan
Asst Attorney General of Tennessee
450 James Robertson Parkway
Nashville, TN 37243-0493
James Michael Taylor
District Attorney General
and
James W. Pope, III
Asst District Attorney General
265 Third Avenue, Suite 300
Dayton, TN 37321
Judge: Tipton
First Paragraph:
The petitioner, Carl Ed Leming, appeals as of right from the dismissal
of his petition for habeas corpus relief by the Bledsoe County Circuit
Court for failure to state grounds justifying the issuance of a writ
of habeas corpus. The petitioner is in the custody of the Department
of Correction serving an effective sentence of forty-three years for
his 1983 convictions of two counts of aggravated rape and one count of
grand larceny. The convictions were based upon the petitioner
entering guilty pleas. The petitioner was sentenced on December 13,
1983, as a Range I, standard offender to concurrent sentences of forty
years for each aggravated rape conviction to be served consecutively
to a three-year sentence for the grand larceny conviction. On appeal,
the petitioner essentially contends that the trial court erred by
dismissing his petition for habeas corpus relief without appointing
counsel or conducting an evidentiary hearing because he has served the
minimum term required for release eligibility. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/LEMINGCE_OPN.WP6
MARVIN ANTHONY MATHEWS
vs.
STATE OF TENNESSEE,
FRED RANEY, WARDEN
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
MARVIN ANTHONY MATHEWS JOHN KNOX WALKUP
Pro Se Attorney General and Reporter
Cold Creek Correctional Facility
P. O. Box 1000
Henning, TN 38041-1000 EUGENE J. HONEA
Assistant Attorney General
LISA A. NAYLOR
Legal Assistant
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
AT TRIAL:
CHARLOTTE H. RAPPUHN
Assistant Attorney General
LISA A. NAYLOR
Legal Assistant
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
Judge: Hayes
First Paragraph:
The appellant, Marvin Anthony Mathews, appeals the summary dismissal
by the Lauderdale County Circuit Court of his pro se petition for a
writ of habeas corpus. The appellant is currently incarcerated at the
Cold Creek Correctional Facility in Lauderdale County. In his pro se
petition, the appellant states that, in 1984, he was convicted of
third degree burglary in the Criminal Court of Shelby County. The
appellant alleges that, following his conviction, he was sentenced as
a "persistent offender and an especially aggravated offender" to ten
years imprisonment in the Tennessee Department of Correction "at fifty
(50) percent." He further alleges that his status as a "persistent
offender and an especially aggravated offender" was based upon eight
prior convictions that have been "set aside" by this court. Thus, the
appellant contends that he is serving an "excessive sentence."
AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/MATHEWS3_OPN.WP6
STATE OF TENNESSEE
vs.
BOBBY KENNETH NASH, JR.
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
Sam E. Wallace, Jr. John Knox Walkup
227 Second Avenue, N. Attorney General of Tennessee
Nashville, TN 37201 and
Darian B. Taylor
Asst Attorney General of Tennessee
450 James Robertson Parkway
Nashville, TN 37243-0493
Victor S. Johnson, III
District Attorney General
and
Kimberly Hattaway
Washington Square
222 2nd Avenue North
Nashville, TN 37201-1649
Judge: Tipton
First Paragraph:
The defendant, Bobby Kenneth Nash, Jr., appeals from his jury
conviction in the Davidson County Criminal Court for first degree
murder. He received a sentence of life in prison. In this appeal as
of right, he contends that the evidence is insufficient to support his
first degree murder conviction. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/NASHBK_OPN.WP6
STATE OF TENNESSEE
vs.
WILLIAM L. POSEY
a.k.a LEM POSEY
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
F. Michie Gibson, Jr. John Knox Walkup
1416 Parkway Towers Attorney General of Tennessee
404 James Robertson Parkway and
Nashville, TN 37219 Anthony D. Miller
Asst Attorney General of Tennessee
450 James Robertson Parkway
Nashville, TN 37243-0493
Victor S. Johnson, III
District Attorney General
and
Nicholas Bailey
Pam Anderson
Asst District Attorneys General
Washington Square
222 2nd Avenue North
Nashville, TN 37201-1649
Judge: Tipton
First Paragraph:
The defendant, William L. Posey a.k.a. Lem Posey, was convicted in a
jury trial in Davidson County Criminal Court of seven counts of
aggravated robbery, a Class B felony. As a Range II, multiple
offender, he received an effective sentence of sixty-four years in the
Department of Correction consecutive to a previous life sentence
imposed in Georgia. In this appeal as of right, his only issue is
whether the trial court abused its discretion by refusing to sever the
various charges for separate trials. We hold that the trial court's
refusal was proper. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/POSEYWL_OPN.WP6
STATE OF
vs.
JEFFERY L. RIGNEY and
HERMAN EUGENE HALE
Court:TCCA
Attorneys:
FOR APPELLANT RIGNEY: FOR THE APPELLEE:
JEFFREY K. SECKLER CHARLES W. BURSON
Seckler, Bramlett & Durard Attorney General and Reporter
724 North Main Street
P.O. Box 967 MERRILYN FEIRMAN (brief)
Shelbyville, TN 37160 Assistant Attorney General
500 Charlotte Avenue
Nashville, TN 37243
FOR APPELLANT HALE:
LISA NAYLOR (oral argument)
ROBERT S. PETERS Assistant Attorney General
Swafford, Peters & Priest 450 James Robertson Parkway
100 First Avenue, S.W. Nashville, TN 37243-0493
Winchester, TN 37398
C. MICHAEL LAYNE
District Attorney General
KENNETH SHELTON
Asst District Attorney General
307 S. Woodland
P.O. Box 147
Manchester, TN 37355
Judge: RILEY
First Paragraph:
The appellants, Jeffery L. Rigney and Herman Eugene Hale, appeal the
sentences imposed by the Circuit Court of Coffee County following
their guilty plea to theft of property over $1,000. Both defendants
were sentenced to four years, provided that upon the expiration of
Rigney's service of nine (9) months and Hale's service of twelve (12)
months in the county jail, they could serve the remainder of their
sentences in the community corrections program. Both appeal the manner
in which they are to serve their sentences, claiming that they should
not be confined for any period of time. Appellant Rigney also asserts
that a sentence of four (4) years is excessive and inappropriate under
the 1989 Criminal Sentencing Reform Act. We disagree and affirm the
judgment of the trial court. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/RIGNEYJL_OPN.WP6
STATE OF TENNESSEE
vs.
ALBERT SEALS, JR.
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
HAROLD D. BALCOM, JR. CHARLES W. BURSON
350 E., Race St., Suite 1 Attorney General and Reporter
P. O. Box 487
Kingston, TN 37763 HUNT S. BROWN
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
CHARLES HAWK
District Attorney General
D. ROGER DELP
Assistant District Attorney
Ninth Judicial District
P. O. Box 703
Kingston, TN 37763
Judge: SMITH
First Paragraph:
Appellant Albert Seals Jr. pled guilty in the Roane County Criminal
Court to driving under the influence of an intoxicant. He received a
sentence of eleven months and twenty-nine days. The trial court
ordered that he serve four days in the county jail with the balance of
the sentence served on probation. Pursuant to Rule 37(b)(2)(i) of the
Tennessee Rules of Criminal Procedure, Appellant reserved the
following certified question of law: whether the investigatory stop of
his vehicle was based upon a reasonable suspicion supported by
specific and articulable facts. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/SEALS_OPN.WP6
STATE OF TENNESSEE
vs.
CECIL SKIDMORE
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
Mack Garner John Knox Walkup
District Public Defender Attorney General and Reporter
318 Court Street
Maryville, TN 37804 Eugene J. Honea
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
Mike Flynn
District Attorney General
363 Court Street
Maryville, TN 37804-5906
Judge: Hayes
First Paragraph:
The appellant, Cecil D. Skidmore, was convicted by a Blount County
jury of attempted first degree murder, a class A felony. The trial
court sentenced the appellant as a standard, range I offender to
twenty-three years imprisonment in the Tennessee Department of
Correction. In this appeal, the appellant challenges the trial
court's refusal to instruct the jury concerning the offense of
attempted voluntary manslaughter, the sufficiency of the evidence
supporting the jury's verdict, and the trial court's imposition of a
sentence of twenty-three years. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/SKIDMORE_OPN.WP6
RICKEY G. SMITH
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
David C. Stebbins John Knox Walkup
330 South High Street Attorney General and Reporter
Columbus, OH 43215
Merrilyn Feirman
John G. Oliva Assistant Attorney General
222 Second Avenue North, 417 450 James Robertson Parkway
Nashville, TN 37201 Nashville, TN 37243-0493
John W. Pierrotti
District Attorney General
James M. Lammey, Jr.
Jennifer S. Nichols
Assistant District Attorneys
201 Poplar - Third Floor
Criminal Justice Complex
Memphis, TN 38103
Judge: Barker
First Paragraph:
The appellant, Rickey G. Smith, appeals as of right the denial in the
Shelby County Criminal Court of his fourth petition for
post-conviction relief. Finding no error in the trial court's order,
we affirm the denial of relief. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/SMITHRG_OPN.WP6
ROOSEVELT JOHN SMITH
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
SHAWN A. TIDWELL CHARLES W. BURSON
209 Tenth Avenue, South Attorney General and Reporter
Suite 511
Nashville, TN 37203 LISA A. NAYLOR
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
VICTOR S. JOHNSON
District Attorney General
SHARON L. BROX
Asst District Attorney General
Washington Square, Suite 500
222 Second Avenue North
Nashville, TN 37201
Judge: WELLES
First Paragraph:
The Petitioner appeals as of right pursuant to Rule 3 of the Tennessee
Rules of Appellate Procedure from the trial court's denial of his
petition for post conviction relief. On September 8, 1994, the
Petitioner pleaded guilty to six counts of aggravated burglary and one
count of possession of cocaine with intent to sell or deliver. As
specified in the plea agreement, the trial court sentenced him to
fifteen years imprisonment for each aggravated burglary conviction,
all running concurrently, and to twenty years for the drug conviction.
The drug sentence was ordered to run consecutively to the burglary
sentences, resulting in an effective sentence of thirty-five years in
the Department of Correction. The Petitioner was classified as a
Range III Persistent Offender. He filed a pro se petition for
post-conviction relief on July 11, 1995, which was amended with the
assistance of counsel on October 20, 1995. In his petition for
post-conviction relief, the Petitioner argued that he was denied
effective assistance of counsel at his guilty plea proceeding. After
conducting an evidentiary hearing, the trial court found that the
Petitioner had received effective assistance of counsel and denied the
petition. We affirm the judgment of the trial court. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/SMITHRJ_OPN.WP6
GARY STEPHEN STOTTS
vs.
STATE OF TENNESSEE
Court:TCCA
First Paragraph:
It appears that the final judgment in the petitioner's case was
entered on May 4, 1995. Subsequently, on September 24, 1996, the
petitioner filed his petition for post-conviction relief. Upon the
state's motion, the trial court dismissed the petition without a
hearing upon a finding that the petition was barred by the one-year
statute of limitation. We agree.
URL:http://www.tba.org/tba_files/TCCA/STOTTS_ORD.WP6
WILLIAM LEE TOLLETT
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
DEANNA C. BELL CHARLES W. BURSON
211 Third Avenue, North Attorney General and Reporter
Nashville, TN 37201
DARYL J. BRAND
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
VICTOR S. JOHNSON
District Attorney General
ON SEABORG
Asst District Attorney General
Washington Square, Suite 500
222 Second Avenue North
Nashville, TN 37209-1649
Judge: WELLES
First Paragraph:
This is an appeal pursuant to Rule 3 of the Tennessee Rules of
Appellate Procedure. The Defendant filed a petition seeking habeas
corpus relief on the grounds that Tennessee's sentencing laws violate
the separation of powers clause of the Tennessee Constitution and that
the sentences authorized are indeterminate in nature and thus contrary
to law. The trial court denied habeas corpus relief. We affirm the
judgment of the trial court. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/TOLLETWL_OPN.WP6
JOSEPH VERES
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
DOUGLAS A. TRANT CHARLES W. BURSON
900 S. Gay Street Attorney General and Reporter
Suite 1502
Knoxville, TN 37902 EUGENE J. HONEA
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
BILL GIBSON
District Attorney General
BEN FANN
Assistant District Attorney
145 S. Jefferson Avenue
Cookeville, TN 38501
Judge: WELLES
First Paragraph:
Appellant Joseph Veres appeals from the dismissal of his petition for
post-conviction relief. On August 24, 1995, Appellant filed a
petition for post conviction relief, alleging ineffective assistance
of counsel and several other constitutional violations. The
post-conviction court dismissed his petition as time-barred. The
issue before this Court is whether Appellant's petition is barred by
the statute of limitations found in Tennessee Code Annotated Section
40-30-102 (1990) (Repealed). For the reasons stated below, we affirm
the decision of the post-conviction court. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/VERES_OPN.WP6
RICKY GENE WILLIAMS
vs.
FRED RANEY, WARDEN
Court:TCCA
First Paragraph:
This matter is before the Court upon the state's motion to affirm the
judgment of the trial court under Rule 20, Rules of the Court of
Criminal Appeals. The case before this Court represents an appeal
from the trial court's denial of the petitioner's petition for writ of
habeas corpus. The record was filed on January 14, 1997, and the
petitioner filed his brief on February 27, 1997. The petitioner was
originally indicted on four counts aggravated rape in August 1983, and
was subsequently found guilty of the same. In the present appeal, the
petitioner, relying in part upon State v. Roger Dale Hill, No.
01C01-9508-CC-00267 (Tenn. Crim. App. June 20, 1996), contends the
judgment entered against him is void because the indictment failed to
allege the mens rea of the offense charged.
URL:http://www.tba.org/tba_files/TCCA/WILLIA-R_ORD.WP6
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