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.

This Issue (IN THIS ORDER):
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

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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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

    
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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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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