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TBALink Opinion-Flash
August 25, 1997 -- Volume #3 -- Number #077
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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- 01-New Opinons From TSC
- 01-New Opinons From TSC-Rules
- 02-New Opinons From TSC-Workers Comp Panel
- 00-New Opinons From TCA
- 12-New Opinons From TCCA
- 01-New Opinons From TSC
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George Dean
TBALink Chief Editor
====================================================================== TBALink Opinion Flash August 25, 1997 Vol. #3 -- No. #077 ====================================================================== What follows is the Opinion name, first paragraph and the names of the attorneys for the parties of each electronic opinion/rules released TODAY from the three appellate courts. This Issue: 1 New Opinions From TSC 1 New Opinions From TSC-Rules 2 New Opinions From TSC-Workers Comp Panel 0 New Opinions From TCA 12 New Opinions From TCCA See the bottom of this Opinion-Flash for details on how to get the full text of each opinion via e-mail or WWW. George Dean TBALink Chief Editor ====================================================================== LAMAR FLETCHER vs. STATE OF TENNESSEE Court:TSC Attorneys: FOR LAMAR FLETCHER/APPELLANT FOR STATE/APPELLEE: J. Russell Heldman John Knox Walkup 320 Main Street Attorney General & Reporter Franklin, Tennessee Michael E. Moore Solicitor General Kathy Morante Deputy Attorney General 450 James Robertson Pkwy. Nashville, Tennessee Judge: DROWOTA First Paragraph: The appellant, Lamar Fletcher, filed a motion to reopen his first petition for post-conviction relief. The trial court denied the motion to reopen and the Court of Criminal Appeals affirmed the denial, finding that the trial court did not abuse its discretion. Fletcher, pro se, filed an application for permission to appeal in this Court challenging the decision of the intermediate court. The State responded, asserting that Fletcher has no right under the Post-Conviction Procedure Act to seek review in this Court of the trial court and Court of Criminal Appeals' denial of his motion to reopen. We granted Fletcher permission to appeal to determine whether this Court has jurisdiction to review the denial of a motion to reopen. AFFIRMED. URL:http://www.tba.org/tba_files/TSC/FLETCHRL_OPN.WP6
EBASCO CONSTRUCTORS, INC.
and INSURANCE COMPANY OF
NORTH AMERICA
vs.
DONALD RICE
Court:TSC - Workers Comp Panel
Attorneys:
For the Appellants: For the Appellee:
F.R. Evans James S. Thompson
Milligan, Barry, Hensley & Evans Logan, Thompson, Miller, Bilbo,
800 First Tennessee Bldg. Thompson & Fisher, P.C.
Chattanooga, TN 37402 30 Second St.
P.O. Box 191
Cleveland, TN 37354-0191
Judge: INMAN
First Paragraph:
The paraphrased issue in this case is whether the finding of 15%
permanent partial disability is supported by a preponderance of the
evidence under our standard of review as mandated by Rule 13(d),
T.R.A.P. and T.C.A. S 50-6 225(e)(2). It is not disputed that the
appellee suffered a job-related accidental back injury on August 12,
1993, while using a 20-pound drill with one hand because of close
working quarters. AFFIRMED.
URL:http://www.tba.org/tba_files/TSC_WCP/EBASCO_OPN.WP6
ELEANOR McDANIEL
vs.
UNIVERSAL BEDROOM FURNITURE, LTD.
Court:TSC - Workers Comp Panel
Attorneys:
For the Appellant: For the Appellee:
Douglas R. Beier Joseph J. Doherty
P. O. Box 1754 Wimberly & Lawson, PLLC
Morristown, TN 37816 Liberty Center
P. O. Box 1066
Morristown, TN 37816-1066
Judge: INMAN
First Paragraph:
T. C. A. S 50-6-241(a)(2) authorizes the Court to "reconsider upon the
filing of a new cause of action the issue of industrial disability"
and enlarge a previous award in appropriate cases where the employee
is no longer employed by the pre injury employer and files a timely
application for an increase in benefits. AFFIRMED.
URL:http://www.tba.org/tba_files/TSC_WCP/MCDANIELE_OPN.WP6
IN RE: AMENDMENT TO RULE 28, S10
RULES OF THE SUPREME COURT OF TENNESSEE
ORDER
Court:TSC - Rules
Judge: ANDERSON
First Paragraph:
Supreme Court Rule 28, delineating the procedure governing appeals in
post-conviction actions is amended.
http://www.tba.org/tba_files/TSC_Rules/
----------------------------------------------------------------------
[ ] Get file "TSC Rules:amdru28_ord.WP6"
----------------------------------------------------------------------
URL:http://www.tba.org/tba_files/TSC_Rules/amdru28_ord.WP6
STATE OF TENNESSEE
vs.
ROBERT K. BOOHER
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
ROBERT KENNETH BOOHER CHARLES W. BURSON
Pro Se Attorney General and Reporter
104 Capps Hill
Waverly, TN 37185 MICHAEL J. FAHEY II
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
DAN MITCHUM ALSOBROOKS
District Attorney General
GEORGE C. SEXTON
Asst. District Attorney General
Room 206
Humphreys Co. Courthouse
Waverly, TN 37185
Judge: Hayes
First Paragraph:
The appellant, Robert K. Booher, appeals, as of right, his class C
misdemeanor convictions in the Circuit Court of Humphreys County for
driving without a license and driving without vehicle registration.
AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/BOOHERRK_OPN.WP6
STATE OF TENNESSEE
vs.
ANDREW WILLIAM BYERS
a/k/a LARRY WAYNE KING
Court:TCCA
Attorneys:
FOR THE APPELLANT BYERS: FOR THE APPELLEE:
JOHN HENDERSON CHARLES W. BURSON
District Public Defender Attorney General & Reporter
P.O. Box 68
Franklin, TN 37065-0068 DARIAN B. TAYLOR
Assistant Attorney General
Criminal Justice Division
FOR THE APPELLANT KEY: 450 James Robertson Parkway
Nashville, TN 37243-0493
D. STUART CAULKINS
Attorney at Law JOSEPH D. BAUGH, JR.
212 E. Main St. District Attorney General
Franklin, TN 37064
MARK PURYEAR
Asst. District Attorney General
P.O. Box 937
Franklin, TN 37065-0937
Judge: WITT
First Paragraph:
The defendants, Andrew William Byers and Larry Wayne Key, were
convicted of aggravated burglary and theft of property by a jury of
their peers in the Williamson County Criminal Court. Byers received a
24 year effective sentence for his crimes -- 12 years for aggravated
burglary, a Class C felony, at Range 3, and 12 years for theft of
property, a Class D felony, at Career Offender status. These
sentences were imposed consecutively, for an effective 24 year
sentence. Key received a 27 year effective sentence -- 15 years for
aggravated burglary, a Class C felony, at Range 3, and 12 years for
theft of property, a Class D felony, at Career Offender status. Both
defendants' sentences were imposed consecutively to each other and to
the sentences they were serving at the time of the convictions. In
this appeal, both defendants raise issues pertaining to the
sufficiency of the convicting evidence. Byers also raises an issue
pertaining to the trial court's denial of his pre-trial motion to
suppress evidence seized from his home. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/BYERSKEY_OPN.WP6
THOMAS V. CASE
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
THOMAS V. CASE, PRO SE JOHN KNOX WALKUP
South Central Corrections Center Attorney General and Reporter
P.O. Box 279
Clifton, Tennessee 38425-0279 LISA A. NAYLOR
Assistant Attorney General
450 James Robertson Parkway
Nashville, Tennessee 37243-0493
DAN ALSOBROOKS
District Attorney General
P.O. Box 580
Charlotte, Tennessee 37036
Judge: WALKER
First Paragraph:
Petitioner, Thomas V. Case, appeals the order of the Circuit Court of
Dickson County summarily dismissing his petition for post-conviction
relief. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/CASE-T_OPN.WP6
STATE OF TENNESSEE
vs.
ARTHUR EDWARD CHANDLER
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
ROBERT S. PETERS JOHN KNOX WALKUP
SWAFFORD, PETERS & PRIEST Attorney General & Reporter
100 First Avenue, S.W.
Winchester, TN 37398 JANIS L. TURNER
Assistant Attorney General
425 Fifth Avenue North
2nd Floor, Cordell Hull Building
Nashville, TN 37243
C. MICHAEL LAYNE
District Attorney General
STEPHEN E. WEITZMAN
Asst District Attorney General
P.O. Box 147
Manchester, TN 37355
Judge: WOODALL
First Paragraph:
Following a jury trial in the Circuit Court of Coffee County, the
Defendant, Arthur Edward Chandler, was convicted of DUI, 3rd offense,
driving on a revoked license, resisting arrest, and was found by the
trial court to be in violation of the implied consent law. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/CHNDRLRAE_OPN.WP6
MORRIS R. DONEGAN
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT FOR THE APPELLEE
David A. Doyle John Knox Walkup
District Public Defender Attorney General and Reporter
117 East Main Street 450 James Robertson Parkway
Gallatin, Tennessee 37066 Nashville, Tennessee 37243 0493
Lisa A. Naylor
Assistant Attorney General
450 James Robertson Parkway
Nashville, Tennessee 37243 0493
Lawrence Ray Whitley
District Attorney General
113 West Main Street
Gallatin, Tennessee 37066
Judge: Barker
First Paragraph:
The Appellant, Morris R, Donegan, appeals as of right the Sumner
County Criminal Court's dismissal of his petition for post-conviction
relief. In 1983, the Appellant was convicted of three counts of
aggravated rape and is currently serving a sixty-year sentence in the
Tennessee Department of Correction. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/DONEGANM_OPN.WP6
STATE OF TENNESSEE
vs.
JEFFREY EUGENE DUNLAP
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
William C. Talman John Knox Walkup
P. O. Box 506 Attorney General & Reporter
Knoxville, TN 37901-0506 500 Charlotte Avenue
(On Appeal and At Trial) Nashville, TN 37243-0497
Leslie M. Jeffress Clinton J. Morgan
1776 Riverview Tower Assistant Attorney General
900 South Gay Street 450 James Robertson Parkway
Knoxville, TN 37902 Nashville, TN 37243-0493
(At Trial)
Randall E. Nichols
District Attorney General
P. O. Box 1468
Knoxville, TN 37901-1468
Robert L. Jolley, Jr.
Asst District Attorney General
P. O. Box 1468
Knoxville, TN 37901-1468
Sally Jo Helm
Asst District Attorney General
P. O. Box 1468
Knoxville, TN 37901-1468
Judge: Jones
First Paragraph:
The appellant, Jeffrey Eugene Dunlap (defendant), was convicted of
burglary, a class D felony, by a jury of his peers. The trial court
sentenced the defendant to confinement for twelve (12) years in the
Department of Correction as a career offender. In this appeal, the
defendant claims the evidence was insufficient to support his
conviction and the sentence imposed was excessive. As both
contentions are without merit, the judgment of the trial court is
affirmed. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/DUNLAPJE_OPN.WP6
DELMER RAY HALL
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
DELMER RAY HALL, Pro Se CHARLES W. BURSON
Riverbend Max. Security Inst. Attorney General and Reporter
Unit 6-A-114
7475 Cockrill Bend Ind. Rd. JANIS L. TURNER
Nashville, TN 37209-1010 Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
JOSEPH D. BAUGH
District Attorney General
JOHN BARRINGER
Assistant Attorney General
Post Office Box 937
Franklin, TN 37065-0937
Judge: Hayes
First Paragraph:
This is a pro se appeal in which the appellant, Delmer Ray Hall,
appeals the Williamson County Circuit Court's dismissal of his
petition to expunge public records. The trial court dismissed the
appellant's petition finding the petition barred by the ten year
statute of limitations, Tenn. Code Ann. S 28-3-110 (1980) (limitations
of actions other than real). In this Rule 4(a) appeal, the appellant
contends that the language of Tenn. Code Ann. S 40-32-101 (1990),
regarding the expunction of dismissed misdemeanor charges, is
mandatory and, therefore, the trial court improperly denied his
petition. REVERSED AND REMANDED.
URL:http://www.tba.org/tba_files/TCCA/HALLDR_OPN.WP6
STATE OF TENNESSEE
vs.
CALVIN EUGENE HEAD
Court:TCCA
Attorneys:
For the Appellee: For the Appellant:
MICHAEL R. JONES CHARLES W. BURSON
District Public Defender Attorney General and Reporter
110 Sixth Avenue, West
Springfield, TN 37172 LISA A. NAYLOR
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
JOHN WESLEY CARNEY, JR.
District Attorney General
ARTHUR BIEBER
Asst. District Attorney General
204 Franklin Street
Suite 200
Clarksville, TN 37040
Judge: Hayes
First Paragraph:
The State of Tennessee appeals, pursuant to Tenn. R. App. P. 10, from
the order entered by the Montgomery County Circuit Court requiring
that the State provide the defendant, Calvin Eugene Head, the same
plea agreement offered to Head's co-defendants. The State contends
that the trial court wrongfully usurped the plea bargaining power
expressly granted to the district attorney general's office. We agree
with the State and vacate the order of the trial court. REMANDED.
URL:http://www.tba.org/tba_files/TCCA/HEADCE_OPN.WP6
JAMES EDWARD HUGHES
a.k.a. LARRY WAYNE HUGHES
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT FOR THE APPELLEE
Cheryl J. Skidmore John Knox Walkup
629 East Main Street Attorney General and Reporter
Hendersonville, Tennessee 37075 450 James Robertson Parkway
Nashville, Tennessee 37243 0493
(appeal only)
Eugene J. Honea
Assistant Attorney General
450 James Robertson Parkway
Nashville, Tennessee 37243 0493
William C. Whitesell
District Attorney General
Judicial Building, Third floor
Murfreesboro, Tennessee 37130
Judge: Barker
First Paragraph:
The Appellant, James Edward Hughes, appeals as of right the Rutherford
County Circuit Court's dismissal of his petition for post-conviction
relief. On July 10, 1985, the Appellant pled guilty to robbery with
the use of a deadly weapon. On December 9, 1993, the Appellant was
convicted of possession of a firearm by a convicted felon in the
United States District Court for the Middle District of Tennessee.
The District Court used the robbery conviction to enhance the
Appellant's sentence. The Appellant filed this post conviction relief
petition to overturn the Rutherford County robbery conviction in order
to have his sentence in the federal penitentiary reduced. On March
21, 1996, without an evidentiary hearing, the trial court dismissed
the petition, ruling that it was barred by the statute of limitations.
AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/HUGHESJE_OPN.WP6
STATE OF TENNESSEE
vs.
DOUGLAS MATTES
Court:TCCA
Attorneys:
FOR THE APPELLANT FOR THE APPELLEE
Douglas Mattes John Knox Walkup
South Central Correctional Center Attorney General and Reporter
Apollo AA-207 450 James Robertson Parkway
P.O. Box 279 Nashville, Tennessee 37243-0493
Clifton, Tennessee 38425-5346
Georgia Blythe Felner
Assistant Attorney General
450 James Robertson Parkway
Nashville, Tennessee 37243 0493
William Whitesell
District Attorney General
Third Floor Judicial Building
Murfreesboro, Tennessee 37130
Judge: Barker
First Paragraph:
The Appellant, Douglas Mattes, appeals as of right the Rutherford
County Circuit Court's dismissal of his petition for post-conviction
relief. On February 21, 1995, the Appellant pled guilty to two counts
of aggravated sexual battery. Pursuant to the plea agreement, he
received a mitigated sentence of 7.2 years with a 20% release
eligibility. On April 24, 1996, the Board of Paroles reviewed the
Appellant's parole eligibility and found that the Appellant should
remain incarcerated because of the seriousness of the underlying
offense and because he was participating in sex offender treatment.
On August 14, 1996, the Appellant filed a petition requesting post
conviction relief. On August 19, 1996, without an evidentiary
hearing, the trial court entered an order dismissing the petition
because it was time barred. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/MATTESD_OPN.WP6
STATE OF TENNESSEE
vs.
CHARLES E. MILLER
Court:TCCA
Attorneys:
FOR THE APPELLANT FOR THE APPELLEE
Thomas H. Miller John Knox Walkup
P.O. Box 681662 Attorney General and Reporter
Franklin, Tennessee 37068-1662
Clinton J. Morgan
Assistant Attorney General
450 James Robertson Parkway
Nashville, Tennessee 37243 0493
Victor S. Johnson, III
District Attorney General
John C. Zimmerman
Asst District Attorney General
Pamela Anderson
Asst District Attorney General
Washington Square
222 Second Avenue N., Suite 500
Nashville, Tennessee 37201 1649
Judge: Barker
First Paragraph:
The appellant, Charles E. Miller, appeals as of right the sentences he
received following his nolo contendere pleas to one count of forgery
and one count of theft. He argues on appeal that the trial court
erred in ordering his incarceration in the Department of Correction,
rather than ordering alternative sentencing. We have reviewed the
record on appeal, and finding no reversible error, we affirm the trial
court's judgment as modified herein. AFFIRMED AS MODIFIED.
URL:http://www.tba.org/tba_files/TCCA/MILLER-CE_OPN.WP6
STATE OF TENNESSEE
vs.
RONNIE O. ROWLETT
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
DENTY CHEATHAM CHARLES W. BURSON
Cheatham & Palermo Attorney General and Reporter
43 Music Square West
Nashville, TN 37203 KAREN M. YACUZZO
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
DAN MITCHUM ALSOBROOKS
District Attorney General
GEORGE C. SEXTON
Asst. District Attorney General
Post Office Box 580
Charlotte, TN 37036
Judge: Hayes
First Paragraph:
The appellant, Ronnie O. Rowlett, appeals from the Stewart County
Circuit Court's order declaring him a motor vehicle habitual offender
pursuant to Tenn. Code Ann. S 55-10-601 et seq. (1993). The grounds
for declaring the appellant a motor vehicle habitual offender are not
in dispute. The appellant concedes that he was convicted of reckless
driving in 1989; driving on a revoked license in 1990; driving without
a license in 1992; and driving under the influence in 1994. The sole
issue presented for review is whether the adjudication of a defendant
as an habitual motor vehicle offender and the resulting revocation of
his driver's license constitutes double jeopardy. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/ROWLETTR_OPN.WP6
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© Copyright 1998 Tennessee Bar Association - This Issue (IN THIS ORDER):