TBALink Opinion-Flash

September 03, 1997 -- Volume #3 -- Number #081

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):
02-New Opinons From TSC
00-New Opinons From TSC-Rules
00-New Opinons From TSC-Workers Comp Panel
00-New Opinons From TCA
17-New Opinons From TCCA

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George Dean
TBALink Chief Editor


MARY BLAKE
vs.
PLUS MARK, INC., AND SUE ANN
HEAD, DIRECTOR OF THE
DIVISION OF WORKER'S 
COMPENSATION, TENNESSEE
DEPARTMENT OF LABOR

Court:TSC

Attorneys: 

For Plaintiff-Appellant:        For Defendant-Appellee Plus Mark:

Bob McDaniel Green              Gene P. Gaby    
Johnson City                    Milligan & Coleman
                                Greeneville

                                For Defendants-Appellees 
                                Sue Ann Head, Director of the 
                                Division of Worker's Compensation 
                                          
                                Anne T. Widseth
                                Tennessee Department of Labor
                                Knoxville

                                Sandra Keith
                                Tennessee Department of Labor
                                Nashville                         

Judge: REID

First Paragraph:

This is an appeal from the decision of the Chancery Court in a
workers' compensation case, in which the trial court granted the
employee's motion for non-suit and then entered a judgment of no
liability for the employer on its counterclaim.  The judgment of the
trial court is reversed, and the case is remanded.

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

JAMES R. FRUGE AND JANE FRUGE
vs.
JOHN DOE AND JANE DOE

Court:TSC

Attorneys:

For Plaintiffs-Appellants:          For Defendants-Appellees                                    
                                    State Farm Insurance Company:

R. Sadler Bailey, Jr.               Robert M. Fargarson
Memphis                             Memphis

C. Phillip M. Campbell              Martin W. Zummach
Memphis                             Memphis


                                    OF COUNSEL:

                                    Neely, Green, Fargarson,
                                    Brooke & Summers
                                    Memphis                          

Judge: REID

First Paragraph:

This case presents for review the decision of the Court of Appeals
affirming the trial court's award of summary judgment denying the
plaintiffs' claims under the uninsured motorist statute.  That
decision is reversed, and the case is remanded.

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

LARRY D. CARR
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT                   FOR THE APPELLEE

Harold D. Archibald                 John Knox Walkup
33 North Front Street, Suite 790    Attorney General and Reporter
Memphis, Tennessee 38103            450 James Robertson Parkway
                                    Nashville, Tennessee 37243 0493
                    
                                    Deborah A. Tullis                                       
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, Tennessee 37243 0493

                                    John W. Pierotti
                                    District Attorney General
                                    201 Poplar Avenue 
                                    Memphis, Tennessee 38103 1947

                                    Jennifer Nichols
                                    Asst District Attorney General
                                    201 Poplar Avenue 
                                    Memphis, Tennessee 38103 1947                         

Judge: Barker

First Paragraph:

The Appellant, Larry D. Carr, appeals as of right the Shelby County
Criminal Court's dismissal of his petition for post-conviction relief.
 He argues that his trial attorney provided ineffective assistance of
counsel.  We have reviewed the record on appeal and find that the
Appellant's trial attorney provided effective assistance of counsel
through the trial and the appeal to this Court, but failed to advise
the Appellant of his right to seek permission to appeal his case to
the Tennessee Supreme Court.  Accordingly, we vacate this Court's
opinion entered on February 16, 1994, and re-enter the opinion so that
the Appellant may file an application for permission to appeal to the
Tennessee Supreme pursuant to Rule 11 of the Tennessee Rules of
Appellate Procedure.  We affirm the trial court in all other respects.

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

STATE OF TENNESSEE
vs.     
GEORGE LORENZO CARTWRIGHT

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

Pamela E. Beck                      John Knox Walkup
Assistant Public Defender           Attorney General & Reporter
117 East Main Street, Suite 2C      500 Charlotte Avenue
Gallatin, TN 37066                  Nashville, TN 37243-0497
(Appeal Only)                   
                                    Sarah M. Branch
Nancy B. Meyers                     Assistant Attorney General
Assistant Public Defender           450 James Robertson Parkway
117 East Main Street, Suite 2C      Nashville, TN 37243-0493
Gallatin, TN 37066
(Trial Only)                        Lawrence Ray Whitley
                                    District Attorney General
OF COUNSEL:                         113 Main Street
                                    Gallatin, TN 37066-2803
David A. Doyle
District Public Defender            Dee D. Gay
117 East Main Street, Suite 2C      Asst District Attorney General
Gallatin, TN 37066                  113 Main Street
                                    Gallatin, TN 37066-2803                         

Judge: Jones

First Paragraph:

The appellant, George Lorenzo Cartwright (defendant), appeals as of
right from a judgment of the trial court revoking his community
corrections sentence and reinstating the sentence previously imposed
by the court.  The trial court found the defendant had violated the
terms of his house arrest, he admitted he had ingested marijuana, and
he had been arrested for the possession of cocaine. AFFIRMED.

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

STATE OF TENNESSEE
vs.
KELLY COLSON

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

JAMES D. WHITE, JR.                 JOHN KNOX WALKUP 
101 Green Street                    Attorney General & Reporter
Celina, TN  38551 
                                    PETER M. COUGHLAN
                                    Assistant Attorney General
                                    425 Fifth Avenue North 
                                    2nd Floor, Cordell Hull Building
                                    Nashville, TN  37243

                                    WILLIAM EDWARD GIBSON 
                                    District Attorney General

                                    DAVID A. PATTERSON
                                    Asst District Attorney General
                                    74 East Second Street 
                                    Crossville, TN  38555                          

Judge: WOODALL

First Paragraph:

In an indictment returned by the Cumberland County grand jury, the
Defendant, Kelly Colson, was charged with the offense of vehicular
homicide caused by the reckless killing of the victim as the proximate
result of conduct creating a substantial risk of death or serious
bodily injury, in violation of Tennessee Code Annotated section
39-13-213(a)(1), a Class C felony.  Defendant subsequently filed an
Application for Pre-Trial Diversion.  The District Attorney General
declined to agree to pre-trial diversion.  Subsequently, Defendant
filed a Petition for Writ of Certiorari to the trial court.  After a
hearing, the trial court entered an order denying the petition, from
which this court granted Defendant's Application for Permission to
Appeal pursuant to Rule 9, Tennessee Rules of Appellate Procedure.  We
affirm the judgment of the trial court.

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

STATE OF TENNESSEE
vs.
RODNEY CORLEY

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

MARTIN G. SZEIGIS                   JOHN KNOX WALKUP 
213 Third Avenue, North             Attorney General & Reporter
Nashville, TN  37201
                                    PETER M. COUGHLAN
                                    Assistant Attorney General
                                    425 Fifth Avenue North 
                                    2nd Floor, Cordell Hull Building
                                    Nashville, TN  37243

                                    VICTOR S. JOHNSON, III
                                    District Attorney General

                                    JOHN C. ZIMMERMAN
                                    Asst District Attorney General
                                    Washington Square, Suite 500
                                    222 Second Avenue North     
                                    Nashville, TN  37201-1649                         

Judge: WOODALL

First Paragraph:

The Petitioner appeals as of right, pursuant to Rule 3 of the
Tennessee Rules of Appellate Procedure, from the Davidson County
Criminal Court's denial of his Petition for Post-conviction Relief. 
The Petitioner argues that the trial court erred for two reasons: (1)
The Petitioner received ineffective assistance of counsel at trial by
trial counsel's failure to present testimony of a material witness;
and (2) the Petitioner was denied his right to due process of law
because the "reasonable doubt" jury instruction given in his case
allowed the jury to find guilt based on a lesser degree of proof than
is required by the Constitution.  We affirm the judgment of the trial
court.

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

LARRY DAWSON
vs.
STATE OF TENNESSEE

Court:TCCA

Judge: WOODALL

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 dismissal of the petitioner's petition for writ
of habeas corpus.

URL:http://www.tba.org/tba_files/TCCA/DAWSON1_ORD.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
JODY L. HAGER

Court:TCCA

First Paragraph:

Appellant Jody L. Hager pleaded guilty in the Williamson Circuit Court
to theft of property valued under five hundred dollars and failure to
appear.  He received consecutive sentences of eleven months and twenty
nine days for each offense.  The trial court suspended the sentence
and ordered immediate probation.  In this direct appeal, the State
presents the following issue for review:  whether the trial court
erred in ordering immediate probation.

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

JERRY W. HARDIN
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT                   FOR THE APPELLEE

Shipp R. Weems                      John Knox Walkup
District Public Defender            Attorney General and Reporter
P.O. Box 160                        450 James Robertson Parkway
Charlotte, Tennessee 37036          Nashville, Tennessee 37243 0493
        
Robert H. Stovall, Jr.              Eugene J. Honea             
Assistant Public Defender           Assistant Attorney General
P.O. Box 160                        450 James Robertson Parkway
Charlotte, Tennessee 37036          Nashville, Tennessee 37243 0493
    
    (appeal only)                   Dan Mitchum Alsobrooks
                                    District Attorney General
                                    P.O. Box 580
                                    Charlotte, Tennessee 37036 0580

                                    George Sexton
                                    Asst District Attorney General
                                    Humphrey County Courthouse 
                                    Waverly, Tennessee 37185                         

Judge: Barker

First Paragraph:

The Appellant, Jerry W. Hardin, appeals as of right the Humphreys
County Circuit Court's dismissal of his petition for post-conviction
relief.  In 1977, the Appellant was convicted of robbery with a deadly
weapon and, pursuant to a plea agreement with the State, was sentenced
to ten years incarceration in the Tennessee Department of Correction.
AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/HARDNJW2_OPN.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
JAMES HARRIS

Court:TCCA

Attorneys:

FOR THE APPELLANT                   FOR THE APPELLEE

Ned J. Coleman                      John Knox Walkup
108 North Spring Street             Attorney General and Reporter
Suite 108                           450 James Robertson Parkway
Murfreesboro, Tennessee 37130       Nashville, Tennessee 37243 0493
        
                                    Peter M. Coughlan
                                    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, James Harris, appeals as of right the extension of his
probationary sentence and the court-ordered payment schedule for his
court costs and fine.  We have reviewed the record on appeal and find
that the trial court erred in extending the appellant's probation
beyond the length of the original sentence.  We also find that the
trial court acted well within its discretion when it ordered the
appellant to pay his court costs and fine on a payment schedule. 
Accordingly, we reverse the trial court's decision to extend the
appellant's probationary sentence and we affirm the trial court's
decision to instate a payment schedule for the appellant.

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

DARREL D. HAYES
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:  

For Appellant:                      For Appellee:
Robert J. Mendes                    Charles W. Burson
Stanton, Tidwell, & Mendes, PLLC    Attorney General & Reporter
Cummins Station 
Suite 507                           Daryl J. Brand  
209 Tenth Avenue South              Assistant Attorney General
Nashville, TN  37203                450 James Robertson Parkway
                                    Nashville, TN  37243-0493   
                                            
                                    Bill Reed    
                                    Asst District Attorney General
                                    Washington Square, Suite 500
                                    222 Second Avenue North 
                                    Nashville, TN  37201-1649                         

Judge: WADE

First Paragraph:

The petitioner, Darrel D. Hayes, appeals from the trial court's denial
of post-conviction relief from three counts of sexual battery and one
count of aggravated rape. AFFIRMED.

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

STATE OF TENNESSEE
vs.
JAMES A. HEARN

with CONCURRING OPINION

Court:TCCA

Attorneys: 

FOR THE APPELLEE                    FOR THE APPELLANT

Donald Dawson                       John Knox Walkup
First American Center, 20th Floor   Attorney General and Reporter
315 Deadrick Street                 450 James Robertson Parkway
Nashville, Tennessee 37238-2075     Nashville, Tennessee 37243-0493
                    
                                    Ellen H. Pollack
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, Tennessee 37243-0485

                                    Victor S. Johnson, III
                                    District Attorney General
                                    Washington Square, Ste 500
                                    222 Second Avenue, North
                                    Nashville, Tennessee 37201-1649

                                    Sharon Brox
                                    Asst District Attorney General
                                    Washington Square, Ste 500
                                    222 Second Avenue, North
                                    Nashville, Tennessee 37201-1649                         

Judge: Barker

First Paragraph:

The State of Tennessee appeals an order of the Davidson County
Criminal Court sustaining the appellee's motion to suppress evidence. 
The State argues on appeal that the trial court erred when it excluded
evidence obtained as a result of a valid search of the appellee's
home.  Having reviewed the record on appeal, we affirm the action of
the trial court.

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

STATE OF TENNESSEE
vs.
TERRY LYNN KIRBY

Court:TCCA

Attorneys:

FOR THE APPELLANT                   FOR THE APPELLEE

Ricky L.  Jenkins                   John Knox Walkup
115 S. Main Street                  Attorney General and Reporter
Sparta, Tennessee 38583             450 James Robertson Parkway
                                    Nashville, Tennessee 37243 0493
                    
                                    Peter M. Coughlan                                       
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, Tennessee 37243 0493

                                    William E. Gibson
                                    District Attorney General
                                    145 S. Jefferson Avenue
                                    Cookville, Tennessee 38501 3424

                                    Anthony J. Craighead
                                    Asst District Attorney General
                                    145 S. Jefferson Avenue
                                    Cookville, Tennessee 38501 3424         
                          
Judge: Barker

First Paragraph:

The Appellant, Terry Lynn Kirby, appeals as of right his convictions
for one count of burglary and one count of theft of less than $500.00.
 He also appeals the sentence for his burglary conviction. AFFIRMED.

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

STATE OF TENNESSEE
vs.
SHANNON KNIGHT

Court:TCCA

Attorneys:

For Appellant:                      For Appellee:
Comer L. Donnell                    Charles W. Burson
District Public Defender            Attorney General & Reporter

Karen G. Chaffin                    Sarah M. Branch
Assistant Public Defender           Counsel for the State
213 North Cumberland Street         450 James Robertson Parkway
P.O. Box 888                        Nashville, TN  37243-0493
Lebanon, TN  37087
(on appeal)                         John D. Wootten, Jr. 
                                    Asst. District Attorney General 
Bobby Ellis                         203 Greentop Street
Assistant Public Defender           P.O. Box 178
(at sentencing)                     Hartsville, TN  37074-0178 

Lisa C. Cothron
Assistant Public Defender
(at trial)                          

Judge: WADE

First Paragraph:

The defendant, Shannon Knight, originally charged with four counts of
passing forged checks and one count of theft over $1,000, was found
guilty of one count of forgery and one count of theft under $500.  The
trial court determined that the defendant was a multiple offender and
imposed Range II sentences of four years and eleven months,
twenty-nine days respectively.  While the sentences were ordered to be
served concurrently, they are consecutive to a prior six-year
sentence. REVERSED AND DISMISSED.

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

MICHAEL P. MEEHAN
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:

MICHAEL P. MEEHAN, pro se       JOHN KNOX WALKUP 
Turney Center #120852           Attorney General & Reporter
Route 1, Unit 1A/25 
Only, TN  37140-9709            LISA A. NAYLOR 
                                Assistant Attorney General
                                425 Fifth Avenue North 
                                2nd Floor, Cordell Hull Building
                                Nashville, TN  37243

                                JOSEPH D. BAUGH, JR. 
                                District Attorney General

                                RONALD L. DAVIS  
                                Asst District Attorney General
                                Williamson County Courthouse Ste. G-6
                                P.O. Box 937 
                                Franklin, TN  37065                          

Judge: WOODALL

First Paragraph:

The Petitioner appeals as of right pursuant to Rule 3 of the Tennessee
Rules of Appellate Procedure from the trial court's dismissal of his
"Application for Writ of Habeas Corpus Relief."  The Petitioner argues
four issues in this appeal: (1) The trial court erred in dismissing
his Application for Writ of Habeas Corpus Relief without having an
evidentiary hearing; (2) whether Petitioner's sentence as imposed by
the trial court has expired as provided by law; (3) whether the TDOC
can apply an inmate's earned and awarded sentence credits to reduce
the earliest release eligibility date; (4) whether there is statutory
authority that would allow the TDOC to award the amount of sentence
reduction credits claimed by the Petitioner.  We affirm the judgment
of the trial court. 

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

STATE OF TENNESSEE
vs.
VAUGHN MIXON

with DISSENTING OPINION

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

GEORGE MORTON GOOGE                 JOHN KNOX WALKUP
District Public Defender            Attorney General and Reporter
  
PAMELA J. DREWERY                   WILLIAM DAVID BRIDGERS
Assistant District Public Defender  Assistant Attorney General
26th Judicial District              450 James Robertson Parkway
227 West Baltimore St.              Nashville, TN  37243
Jackson, TN 38301
                                    JERRY WOODALL
                                    District Attorney General

                                    DON ALLEN
                                    Assistant District Attorney
                                    P. O. Box 2825
                                    Jackson, TN  38301                         

Judge: SMITH

First Paragraph:

On November 16, 1994, Appellant Vaughn Mixon was found guilty by a
Chester County Circuit Court jury of attempted rape, attempted incest,
sexual battery, public intoxication, and evading arrest. REVERSED AND
REMANDED.

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

JAMES DAVID PACK
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:

James David Pack, Pro Se            Charles W. Burson
F.C. I. Beckley                     Attorney General & Reporter 
P.O. Box 305
Beaver, WV 25813                    Marvin E. Clements, Jr.  
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    William H. Cox III 
                                    District Attorney General
                                    600 Market Street, Suite 310
                                    Chattanooga, TN 37402                          

Judge: SUMMERS

First Paragraph:

In February 1979 the appellant, James David Pack, pled guilty to four
counts of second degree burglary, two counts of passing a forged
document, and one count of grand larceny.  He received an effective
sentence of three years incarceration. AFFIRMED.

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

STATE OF TENNESSEE
vs.
MELVIN E. WISDOM

Court:TCCA

Attorneys:

FOR THE APPELLANT                   FOR THE APPELLEE

Michael R. Jones                    John Knox Walkup
District Public Defender            Attorney General and Reporter
109 South Second Street             450 James Robertson Parkway
Clarksville, Tennessee 37040        Nashville, Tennessee 37243 0493
        
Charles F. Bloodworth               Daryl J. Brand
Assistant Public Defender           Assistant Attorney General
109 South Second Street             450 James Robertson Parkway
Clarksville, Tennessee 37040        Nashville, Tennessee 37243 0493

                                    John W. Carney, Jr. 
                                    District Attorney General
                                    204 Franklin Street, Suite 200
                                    Clarksville, Tennessee 37040 3420
                            
                                    Helen O. Young
                                    Asst District Attorney General
                                    204 Franklin Street, Suite 200
                                    Clarksville, Tennessee 37040 3420                          

Judge: Barker

First Paragraph:

The appellant, Melvin E. Wisdom, appeals as of right his conviction of
automobile burglary and theft of property valued at less than five
hundred dollars.  He argues on appeal that the evidence presented at
trial was insufficient to sustain his conviction.  We have reviewed
the record on appeal and find that the evidence was more than
sufficient to convict the appellant.  Accordingly, we affirm the trial
court's judgment.

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

STATE OF TENNESSEE
vs.
BRENDA FAYE WORLEY

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:

STEPHEN M. WALLACE                  JOHN KNOX WALKUP
District Public Defender            Attorney General & Reporter

LESLIE S. HALE                      MICHAEL J. FAHEY, II
Assistant Public Defender           Assistant Attorney General
P.O. Box 839                        Criminal Justice Division
Blountville, TN  37617              450 James Robertson Parkway
                                    Nashville, TN 37243-0493    

                                    H. GREELEY WELLS, JR.
                                    District Attorney General

                                    TERESA M. SMITH
                                    Asst. District Attorney General
                                    P.O. Box 526
                                    Blountville, TN  37617                          

Judge: WITT 

First Paragraph:

The appellant, Brenda Faye Worley, appeals the Sullivan County
Criminal Court's revocation of her Community Corrections sentence and
order that she serve her original three year effective sentence in the
Department of Correction for convictions of possession of cocaine for
resale and possession of drug paraphernalia.  In her appeal to this
court, the appellant contends the lower court abused its discretion in
revoking her non-incarcerative sentence because (1) she was not
provided with written notice of the conduct that was used as a basis
for the violation finding, (2) the court had no jurisdiction over her
because the term of her original sentence had expired, and (3)
imposition of the original sentence was not warranted.  We fail to
find merit in the appellant's issues and affirm the judgment of the
lower court.

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

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