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TBALink Opinion-Flash
October 02, 1997 -- Volume #3 -- Number #94
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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BELLSOUTH TELECOMMUNICATIONS, INC. d/b/a SOUTH CENTRAL BELL TELEPHONE COMPANY vs. H. LYNN GREER, Chairman, SARA KYLE, Director, and MELVIN J. MALONE, Director, Constituting the Tennessee Regulatory Authority BELLSOUTH TELECOMMUNICATIONS, INC. vs. TENNESSEE PUBLIC SERVICE COMMISSION STATE OF TENNESSEE, on relations of BELLSOUTH TELECOMMUNICATIONS, INC. vs. KEITH BISSELL, STEVE HEWLETT, and SARA KYLE, in their capacity as Commissioners of the Tennessee Public Service Commission Court:TCA Attorneys: For BellSouth Telecommunications, Inc.: Guy M. Hicks, III Bennett L. Ross Nashville, Tennessee James G. Harralson Atlanta, Georgia For AT&T Communications of the South Central States, Inc.: Val Sanford John Knox Walkup Gullett, Sanford, Robinson & Martin Nashville, Tennessee For Tennessee Public Service Comm.: Charles W. Burson Attorney General & Reporter Michael E. Moore Solicitor General Michael W. Catalano Associate Solicitor General Nashville, Tennessee For Tennessee Consumers: Charles W. Burson Attorney General & Reporter Michael E. Moore Solicitor General L. Vincent Williams Consumer Advocate Nashville, Tennessee Judge: KOCH First Paragraph: This consolidated appeal of three separate proceedings involves the efforts of BellSouth Telecommunications, Inc. to take advantage of the 1995 legislation easing the traditional regulatory burdens on telecommunications service providers. After making significant adjustments in BellSouth's reported operating results, the Tennessee Public Service Commission determined that BellSouth's current earned rate of return exceeded its authorized rate of return and that BellSouth was receiving $56.285 million in excess revenues. The Commission directed BellSouth to reduce its rates by $56.285 million and set the initial rates in the company's price regulation plan accordingly. On this appeal, BellSouth and another intervening party take issue with the procedures employed by the Commission to consider and act upon BellSouth's application for a price regulation plan. We have determined that these proceedings were not preempted by the federal Telecommunications Act of 1996. We have also determined that the General Assembly did not give the Commission authority to adjust BellSouth's reported operating results and that the Commission should have convened a contested case hearing when BellSouth took issue with the Commission's decision to adjust its reported operating results. Accordingly, we vacate the Commission's January 23, 1996 order and all earlier related orders. URL:http://www.tba.org/tba_files/TCA/bellsout_opn.WP6
GEORGE M. BOND
vs.
COM-THER, INC.
Court:TCA
Attorneys:
Ryan A. Kurtz
Trabue, Sturdivant & DeWitt
2500 Nashville City Center
511 Union Street
Nashville, TN 37219-1738
and
William P. Suriano
280 Shenstone Road
Riverside, Illinois 60546
ATTORNEYS FOR DEFENDANT/APPELLANT
J. Ross Pepper
222 Second Avenue North
Suite 360-M
Nashville, TN 37201
ATTORNEY FOR PLAINTIFF/APPELLEE
Judge: INMAN
First Paragraph:
The plaintiff and the defendant entered into a "Contract Services
Agreement" in 1994 which provided, as pertinent to this case, that
either party might terminate it at any time by giving 30 days notice
to the other. On May 19, 1995, the defendant informed the plaintiff
by letter that " . . . we are discontinuing our relationship with you
for Physical Therapy services, effective May 19, 1995.
URL:http://www.tba.org/tba_files/TCA/bondgm_opn.WP6
CHEROKEE HILLS UTILITY DISTRICT
vs.
JEFF STANLEY, Individually,
and Jeff Stanley, d/b/a
Wahoo's
Court:TCA
Attorneys:
H. FRANKLIN CHANCEY OF CLEVELAND FOR APPELLANT
B. PRINCE MILLER, JR., OF CLEVELAND FOR APPELLEE
Judge: Goddard
First Paragraph:
Jeff Stanley, Individually, and d/b/a Wahoo's, appeals a judgment of
the Circuit Court for Polk County which mandatorily enjoined him to
remove a cabin he was constructing and a concrete pad from an easement
for a water line which the Trial Judge found was owned by Cherokee
Hills Utility District and was an encumbrance on property conveyed to
Mr. Stanley.
URL:http://www.tba.org/tba_files/TCA/cherokee_opn.WP6
RALPH MOORE CRESWELL
vs.
BILLIE CRESWELL DUFF
Court:TCA
Attorneys:
Karl D. Warden
2000 First Union Tower
150 Fourth Avenue North
Nashville, TN 37219-2425
ATTORNEY FOR DEFENDANT/APPELLANT
James L. Woodard
408 Main Street
P. O. Box 708
Franklin, TN 37064
ATTORNEY FOR PLAINTIFF/APPELLEE
Judge: INMAN
First Paragraph:
This complaint was filed July 17, 1978, by a Conservator seeking an
accounting from a Trustee - Executrix. The defendant was appointed
guardian of Ralph Moore Creswell ["Creswell"] in 1973 and Trustee in
1974 by the County Court of Williamson County. Her accounting to the
County Court is challenged in this action. The case languished for
eighteen (18) years and was finally heard on October 10, 1996.
Creswell was awarded $15,412.74 and pre-judgment interest from July
17, 1978 at 10% per annum.
URL:http://www.tba.org/tba_files/TCA/creswrm_opn.WP6
MARK EDWARD KINSLER
vs.
CARL BAKER, et ux
EDITH BAKER
Court:TCA
Attorneys:
WILLIAM E. PHILLIPS OF ROGERSVILLE FOR APPELLANT
FLOYD W. RHEA OF SNEEDVILLE FOR APPELLEE
Judge: Goddard
First Paragraph:
In this suit, the Plaintiff seeks a determination that he owns a
right-of-way from his property located in the Fourth District of
Hancock County over the adjoining property of the Defendants.
URL:http://www.tba.org/tba_files/TCA/kinslerm_opn.WP6
LIONS HEAD HOMEOWNERS'
ASSOCIATION, A not for profit Tennessee
Corporation, WHITE BRIDGE
NEIGHBORHOOD ASSOCIATION, INC.,
FRIENDS OF RICHLAND CREEK, INC.,
MIKE LAMB, and THE DOMINICAN
CAMPUS
vs.
METROPOLITAN BOARD OF ZONING
APPEALS, METROPOLITAN
GOVERNMENT OF NASHVILLE,
DAVIDSON COUNTY, TENNESSEE,
and THE MARTIN COMPANIES, INC
Court:TCA
Attorneys:
For the Plaintiffs/Appellants: For Metropolitan Board of Zoning
Appeals and Metropolitan Government
George E. Barrett of Nashville and Davidson County:
Phillip A. Purcell
Barrett, Johnston & Parsley Thomas G. Cross
Nashville, Tennessee Nashville, Tennessee
For The Martin Companies, Inc.:
Hugh C. Howser, Jr.
Trabue, Sturdivant & DeWitt
Nashville, Tennessee
Judge: KOCH
First Paragraph:
This appeal stems from a decision of the Metropolitan Board of Zoning
Appeals to grant a conditional use permit for a medical office
building and parking garage adjacent to St. Thomas Hospital. The
homeowners' association of a neighboring condominium development and
other parties who opposed the project filed a petition for a writ of
certiorari in the Chancery Court for Davidson County. The trial court
heard the case without a jury and upheld the Board's decision to grant
the conditional use permit. On this appeal, the project's opponents
take issue with the procedures followed by the Board in granting the
conditional use permit and also assert that the project does not
comply with the Zoning Ordinances for the Metropolitan Government of
Nashville and Davidson County. We affirm.
URL:http://www.tba.org/tba_files/TCA/lionshea_opn.WP6
JOHN WAYNE SLATE, SR.
vs.
STATE OF TENNESSEE BOARD OF
PAROLES, ET AL.
Court:TCA
Attorneys:
JOHN KNOX WALKUP
Attorney General and Reporter
TERESA S. THOMAS #12788
Counsel for the State
404 James Robertson Parkway
Suite 2000
Nashville, TN 37243
ATTORNEYS FOR DEFENDANTS/APPELLEES
John Wayne Slate #123012
N.E.C.C.
P.O. Box 5000
Mountain City, TN 37683-5000
ATTORNEY FOR PLAINTIFF/APPELLANT
Judge: TODD
First Paragraph:
The captioned plaintiff, a prisoner in custody of the Department of
Correction awaiting execution has appealed from a decision of the
Board of Paroles denying his request for parole. His death sentence
has been stayed by a federal court which ordered a retrial of the
issue of punishment. This retrial has not yet taken place.
URL:http://www.tba.org/tba_files/TCA/slatejw_opn.WP6
JAMES SLYMAN
vs.
NATIONAL KNIFE COLLECTORS
ASSOCIATION
Court:TCA
Attorneys:
WILLIAM R. HANNAH OF CHATTANOOGA FOR APPELLANT
ERSKINE P. MABEE OF CHATTANOOGA FOR APPELLEE
Judge: Goddard
First Paragraph:
In this jury case, National Knife Collectors Association appeals a
$5000 judgment rendered against it in favor of James Slyman, raising
the following two issues on appeal, neither of which questions the
amount of the award: 1. Whether the Trial Court erred in failing to
hold as a matter of law that plaintiff could not recover against
defendant for defamation. 2. Whether the Trial Court erred in
failing to hold as a matter of law that the 90/10 rule was not
selectively enforced.
URL:http://www.tba.org/tba_files/TCA/slymanj_opn.WP6
STATE OF TENNESSEE
vs.
AAA AARON'S ACTION AGENCY
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
THOMAS L. WHITESIDE JOHN KNOX WALKUP
Attorney at Law Attorney General & Reporter
172 Second Avenue North
Suite 214 KATHY A. MORANTE
Nashville, TN 37201-1908 Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243
VICTOR S. JOHNSON, III
District Attorney General
DAN HAMM
Asst District Attorney General
200 Washington Square
222 Second Avenue North
Suite 500
Nashville, TN 37201-1649
Judge: WOODALL
First Paragraph:
AAA Aaron's Action Agency appeals as of right from the Davidson County
Criminal Court's "Order Granting Approval to Write Bonds under
Specific Conditions." The Appellant argues one issue in this appeal:
Whether the Davidson County Criminal Court, sitting en banc, was
arbitrary and capricious in imposing a requirement that Appellant post
either a Deed of Trust to unencumbered real estate located in
Nashville, Davidson County, Tennessee, or cash, certificate of
deposit, letter of credit, or other liquid assets before authorizing
Appellant to perform as a professional bondsman. We affirm the
judgment of the trial court.
URL:http://www.tba.org/tba_files/TCCA/aaronaaa_opn.WP6
STATE OF TENNESSEE
vs.
MICHAEL AMOS
Court:TCCA
Attorneys:
FOR THE APPELLANT FOR THE APPELLEE
Michael D. Noel John Knox Walkup
2400 Crestmoor Road, Ste. 318 Attorney General and Reporter
Nashville, Tennessee 37215 450 James Robertson Parkway
Nashville, Tennessee 37243-0493
L. Robert Grefseng
28 Public Square John R. Collier
Columbia, Tennessee 38401 Assistant Attorney General
450 James Robertson Parkway
Nashville, Tennessee 37243-0493
T. Michael Bottoms
District Attorney General
P.O. Box 459
Lawrenceburg, Tennessee 38464
Jesse Durham
Asst District Attorney General
P.O. Box 1619
Columbia, Tennessee 38402
J. Lee Bailey, III
Asst District Attorney General
P.O. Box 1619
Columbia, Tennessee 38402
Judge: BARKER
First Paragraph:
The appellant, Michael Amos, appeals as of right his convictions
following a jury trial for the offenses of attempted second degree
murder and especially aggravated robbery. He argues on appeal that:
(1) The trial judge erred when he did not grant the appellant a
continuance when a material alibi witness failed to appear on the day
of the trial; (2) The trial judge erred when he did not allow the
appellant to read prior recorded testimony of the missing alibi
witness into evidence; (3) The trial judge erred when he refused to
allow the appellant to use a prior recorded statement to impeach the
State's "eyewitness" to the crimes; (4) The trial judge erred when he
refused to allow a photograph of the appellant wearing rings on his
left hand into evidence; and (5) The evidence was insufficient to
support the conviction of especially aggravated robbery.
URL:http://www.tba.org/tba_files/TCCA/amosm_opn.WP6
ARTHUR L. ARMSTRONG
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT FOR THE APPELLEE
Michael D. Noel John Knox Walkup
2400 Crestmoor Road, Ste. 318 Attorney General and Reporter
Nashville, Tennessee 37215 450 James Robertson Parkway
Nashville, Tennessee 37243-0493
L. Robert Grefseng
28 Public Square John R. Collier
Columbia, Tennessee 38401 Assistant Attorney General
450 James Robertson Parkway
Nashville, Tennessee 37243-0493
T. Michael Bottoms
District Attorney General
P.O. Box 459
Lawrenceburg, Tennessee 38464
Jesse Durham
Asst District Attorney General
P.O. Box 1619
Columbia, Tennessee 38402
J. Lee Bailey, III
Asst District Attorney General
P.O. Box 1619
Columbia, Tennessee 38402
Judge: WOODALL
First Paragraph:
The Petitioner, Arthur L. Armstrong, appeals as of right the dismissal
of his petition for post-conviction relief by the Criminal Court of
Davidson County, Tennessee. This is Petitioner's second petition for
post-conviction relief. He was originally convicted in 1978 for
multiple offenses which resulted in Petitioner receiving consecutive
sentences for two (2) life imprisonment sentences, two (2) sentences
of not less than ten (10) nor more than fifteen (15) years, and one
(1) sentence of twenty (20) years. The facts of the case can be found
in this court's opinion affirming the convictions in Arthur L.
Armstrong v. State, No. C-2854, Davidson County (Tenn. Crim. App.,
Nashville, February 27, 1980). The first post-conviction petition was
dismissed and this court affirmed. Arthur Armstrong v. State, No.
01C01 9003-CC-00069, Davidson County (Tenn. Crim. App., Nashville,
Oct. 25, 1990), perm. to appeal denied (Tenn. 1991).
URL:http://www.tba.org/tba_files/TCCA/armstrng_opn.WP6
IMOTHY ASHBURN
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
L. Jeffrey Hagood John Knox Walkup
Attorney at Law Attorney General & Reporter
Riverview Tower, Suite 2100
900 S. Gay Street Sandy Copous Patrick
Knoxville, TN 37902 Assistant Attorney General
Criminal Justice Division
Kenneth F. Irvine, Jr. 450 James Robertson Parkway
Attorney at Law Nashville, TN 37243-0493
606 W. Main Street, Suite 350
P.O. Box 84 H. Greeley Wells, Jr.
Knoxville, TN 37901-0084 District Attorney General
Frank Harvey
Asst. Dist. Attorney General
P.O. Box 703
Kingston, TN 37763
Judge: SUMMERS
First Paragraph:
The appellant, Timothy Ashburn, was convicted of three counts of
aggravated rape and two counts of aggravated kidnaping. He received
an effective sentence of seventeen years. On appeal, this Court
affirmed the appellant's convictions and sentence. Thereafter, the
appellant filed a petition for post-conviction relief alleging that
the indictments against him failed to sufficiently allege the mens rea
for aggravated rape. He also alleged that the Tennessee Department of
Correction (TDOC) improperly classified him as a multiple rapist.
After a hearing, the appellant's petition was denied and dismissed.
He appeals this dismissal. We affirm.
URL:http://www.tba.org/tba_files/TCCA/ashburnt_opn.WP6
STATE OF TENNESSEE
vs.
MICHAEL A. BASKETTE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
PHILIP A. CONDRA JOHN KNOX WALKUP
District Public Defender Attorney General and Reporter
12th Judicial District
P. O. Box 220 M. ALLISON THOMPSON
Jasper, TN 37347 Counsel for the State
450 James Robertson Parkway
Nashville, TN 37243-0493
J. MICHAEL TAYLOR
District Attorney General
WILLIAM COPELAND
Assistant District Attorney
1 South Jefferson Street
Winchester, TN 37398
Judge: SMITH
First Paragraph:
A Franklin County Circuit Court jury convicted Appellant Micheal B.
Baskette of driving on a revoked license. As the result of two prior
convictions in Davidson County for driving on a revoked license,
Appellant was subsequently convicted in a bench trial for driving on a
revoked license third offense. Appellant was sentenced to sixty days
in the county jail and a fine imposed. In this appeal, Appellant
claims that his conviction for driving on a revoked license third
offense was improperly based upon a prior guilty plea in which there
was no effective waiver of counsel. For the reasons set forth, the
judgment of the trial court is affirmed.
URL:http://www.tba.org/tba_files/TCCA/baskettm_opn.WP6
STATE OF TENNESSEE
vs.
DWJUAN L. BRADFORD
Court:TCCA
Attorneys:
For Appellant: For Appellee:
Roger K. Smith, Attorney Charles W. Burson
104 Woodmont Boulevard Attorney General & Reporter
Suite 115
Nashville, TN 37205 Lisa A. Naylor
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
Kymberly Hattaway Haas
Asst. District Attorney General
Washington Square, Suite 500
222 Second Avenue North
Nashville, TN 37201-1649
Judge: WADE
First Paragraph:
The defendant, Dwjuan L. Bradford, was convicted of especially
aggravated robbery. Tenn. Code Ann. S 39-13-403. The trial court
imposed a Range I sentence of nineteen years.
URL:http://www.tba.org/tba_files/TCCA/bradfodl_opn.WP6
STATE OF TENNESSEE
vs.
RANDY CALDWELL and
STEVIE W. CALDWELL
Court:TCCA
Attorneys:
FOR THE APPELLANT RANDY FOR THE APPELLEE:
CALDWELL:
JOHN KNOX WALKUP
JAMES D. WHITE, JR. Attorney General & Reporter
Route 3, Box 1
Celina, TN 38551 DARYL J. BRAND
(On appeal) Asst. Attorney General
450 James Robertson Pkwy.
CHRISTOPHER L. CANTRELL Nashville, TN 37243-0493
3301 North Public Square
Smithville, TN 37166 WILLIAM E. GIBSON
(At trial) District Attorney General
FOR THE APPELLANT STEVIE W. ANTHONY J. CRAIGHEAD
CALDWELL: -and-
BEN FANN
MARTELIA T. CRAWFORD Asst. District Attorneys General
310A E. Broad St., Suite 1 145 S. Jefferson Ave.
Cookeville, TN 38501 Cookeville, TN 38501
(On appeal)
J. HILTON CONGER
200 South Third
Smithville, TN 37166
(At trial)
Judge: PEAY
First Paragraph:
The defendants were indicted in January 1995 on charges of felony
murder, aggravated arson, and conspiracy to commit arson against
personal property. On August 29, 1995, a jury convicted each of the
defendants on all three counts. They each received a life sentence
for the felony murder conviction, nineteen years for the aggravated
arson conviction, and six months for the conspiracy to commit arson
against personal property.
URL:http://www.tba.org/tba_files/TCCA/caldwelr_opn.WP6
STATE OF TENNESSEE
vs.
JOHN ALLEN CHAPMAN
with CONCURRING OPINION
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
PHILLIP A. CONDRA CHARLES W. BURSON
District Public Defender Attorney General and Reporter
P. O. Box 220
204 Betsy Pack Drive MICHAEL J. FAHEY, II
Jasper, TN 37347 Assistant Attorney General
Criminal Justice Division
(AT TRIAL AND ON APPEAL) 450 James Robertson Parkway
Nashville, TN 37243-0493
ROBERT S. PETERS
Attorney at Law J. MICHAEL TAYLOR
3rd National Bank Building District Attorney General
100 1st. Avenue, S.W. 1st American National Bank Bldg
Winchester, TN 37398 Dayton, TN 37321
(AT TRIAL ONLY) THOMAS D. HEMBREE
Asst. District Attorney General
Lawyer's Building
Jasper, TN 37347
Judge: Hayes
First Paragraph:
The appellant, John Allen Chapman, appeals from the April 2, 1994,
Grundy County jury verdict finding him guilty of first degree murder,
aggravated kidnapping, and aggravated sexual battery. The jury fixed
the appellant's sentence at life imprisonment for first degree murder
and the trial court imposed maximum sentences of twelve years each for
the remaining offenses and ordered all sentences to be served
consecutively.
URL:http://www.tba.org/tba_files/TCCA/chapmaja_opn.WP6
URL:http://www.tba.org/tba_files/TCCA/chapmaja_con.WP6
WILLIAM DAVID CLAPP
VS.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
William David Clapp, Pro Se Charles W. Burson
Reg. No. 04405-084 Attorney General of Tennessee
P.O. Box 4000 Knox-A and
Manchester, KY 40962-4000 Sarah M. Branch
(AT TRIAL & ON APPEAL) Asst Attorney General of Tennessee
450 James Robertson Parkway
Kenneth F. Irvine, Jr. Nashville, TN 37243-0493
606 W. Main Street, Suite 350
P.O. Box 84 H. Greeley Welles, Jr.
Knoxville, TN 37901-0084 District Attorney General
(ON APPEAL) and
Barry P. Staubus
Asst District Attorney General
P.O. Box 526
Blountville, TN 37617-0526
Judge: Tipton
First Paragraph:
The petitioner, William David Clapp, appeals as of right from the
Sullivan County Criminal Court's dismissal of his petition for
post-conviction relief. The trial court dismissed the petition,
concluding that it was barred by the statute of limitations. We
affirm the judgment of the trial court.
URL:http://www.tba.org/tba_files/TCCA/clappdc_opn.WP6
SHONIE WARDELL CRISP
VS.
STATE OF TENNESSEE
Court:TCCA
First Paragraph:
This matter is before the Court upon the state's motion requesting
that the judgment in the above-styled cause be affirmed pursuant to
Rule 20, Tennessee Court of Criminal Appeals Rules. Based on our
review, we affirm the judgment of the trial court pursuant to Rule 20.
URL:http://www.tba.org/tba_files/TCCA/crispsw1_ord.WP6
MICHAEL B. DAVIS
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
John B. Blair, III John Knox Walkup
Attorney at Law Attorney General & Reporter
176 2nd Avenue North
Suite 406 Sandy Copous Patrick
Nashville, TN 37201 Assistant Attorney General
2d Floor Cordell Hull Bldg.
425 Fifth Avenue North
Nashville, TN 37243-0943
Randall E. Nichols
District Attorney General
Fred Bright
Asst District Attorney General
City-County Bldg.
Knoxville, TN 37902
Judge: SUMMERS
First Paragraph:
The appellant, Michael B. Davis, appeals the denial of his petition
for post-conviction relief, arguing that his guilty plea was not
entered knowingly and voluntarily because he received ineffective
assistance from his attorney and because he was coerced into pleading
guilty due to the possibility of federal gun charges. The appellant
pled guilty to second degree murder, possession of cocaine for resale,
and possession of a weapon in the commission of a felony. He was
sentenced as a Range I, standard offender to the minimum sentence of
fifteen years on the murder charge, six years on the drug charge, and
one year on the weapons charge. The six-year sentence and the
one-year sentence were to be served concurrently to each other, but
consecutively to the murder charge. Thus, the appellant received a
total sentence of twenty-one years to be served in the Department of
Correction. We affirm.
URL:http://www.tba.org/tba_files/TCCA/davismb_opn.WP6
STATE OF TENNESSEE
vs.
DOUGLAS RUSSELL DELOIT
Court:TCCA
Attorneys:
For Appellant: For Appellee:
C. Edward Fowlkes Charles W. Burson
Fowkles & Whiteside Attorney General & Reporter
172 Second Avenue, North
Suite 214 Lisa A. Naylor
Nashville, TN 37201 Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
George R. Bonds
Assistant District Attorney General
Washington Square, Suite 500
Nashville, TN 37201-1649
Judge: WADE
First Paragraph:
The defendant, Douglas Russell Deloit, was convicted of driving under
the influence. The trial court imposed a jail sentence of eleven
months and twenty-nine days, suspended all but forty-eight hours, and
barred the defendant from driving for one year. In this appeal of
right, the defendant challenges the admission into evidence of breath
test results and argues that the evidence is otherwise insufficient to
sustain the conviction. We agree that the trial court erred by
admitting the test results. The judgment is, therefore, reversed and
the cause remanded for a new trial.
URL:http://www.tba.org/tba_files/TCCA/deloitdr_opn.WP6
ROBERT FINNEY, JR.
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
On appeal (Pro Se) JOHN KNOX WALKUP
ROBERT FINNEY, JR. Attorney General & Reporter
SCCF/CCA
P.O. Box 279 CLINTON J. MORGAN
Clifton, TN 38425 Counsel for the State
Criminal Justice Division
At the hearing: 450 James Robertson Parkway
GEOFFREY COSTON Nashville, TN 37243-0493
2813 West End Bldg.
Nashville, TN 37203 VICTOR S. JOHNSON, III
District Attorney General
NICHOLAS BAILEY
MARY HAUSMAN
PAMELA ANDERSON
Asst District Attorney Generals
Washington Square
222 Second Ave. N.
Nashville, TN. 37201-1649
Judge: WITT
First Paragraph:
The petitioner, Robert Finney, Jr., appeals pursuant to Rule 3(b) of
the Tennessee Rules of Appellate Procedure from the Davidson County
Criminal Court's alleged dismissal of his petition for post-conviction
relief. The petitioner was convicted in 1985 of felony-murder, first
degree burglary, aggravated assault, assault with the intent to commit
first degree murder, and malicious shooting. He received a life
sentence for the murder conviction and five-year and two-year
sentences for the other convictions. All sentences run concurrently.
URL:http://www.tba.org/tba_files/TCCA/finneyr_opn.WP6
STATE OF TENNESSEE
vs.
JAMES EDWARD GATES
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
KARL DEAN JOHN KNOX WALKUP
Public Defender Attorney General & Reporter
JEFFERY DeVASHER PETER M. COUGHLAN
Asst. Public Defender Asst. Attorney General
1202 Stahlman Bldg. 450 James Robertson Pkwy.
Nashville, TN 37201 Nashville, TN 37243-0493
(On Appeal)
VICTOR S. JOHNSON, III
WENDY S. TUCKER District Attorney General
-and-
JOAN A. LAWSON
Asst. Public Defenders KYMBERLY HAAS
12th Floor Stahlman Bldg. Asst. District Attorney General
Nashville, TN 37201 Washington Square Bldg.,Suite 500
(At Trial) 222 Second Ave., North
Nashville, TN 37201
Judge: PEAY
First Paragraph:
The defendant was indicted in February 1995 for especially aggravated
robbery. A jury convicted him of this offense and after a hearing, he
was sentenced to nineteen years in the Tennessee Department of
Correction. In this appeal as of right, the defendant raises the
following issues: 1. Whether the trial court erred in denying the
defendant's motion to suppress statements made by the defendant to
police officers. 2. Whether the trial court erred in refusing to
grant a mistrial after the State allowed the jury to hear a portion of
the defendant's tape recorded statement that should have been
redacted. 3. Whether the trial court erred in denying the defendant's
request for a special jury instruction regarding the applicable range
of punishment and further erred in instructing the jury on the number
of years the defendant would have to serve before becoming eligible
for parole. After a review of the record and applicable law, we find
that these issues are without merit. Thus, we affirm the judgment of
the court
URL:http://www.tba.org/tba_files/TCCA/gatesje_opn.WP6
JOE GLASGOW, JR.
vs.
STATE OF TENNESSEE
with SEPARATE OPINION CONCURRING IN
PART AND DISSENTING IN PART
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
Kenneth F. Scott Charles W. Burson
First American Center Attorney General of Tennessee
Nashville, TN 37238 and
(AT TRIAL AND ON APPEAL) Michael J. Fahey, II
Ass Attorney General of Tennessee
David A. Collins 450 James Robertson Parkway
211 Printers Alley Bldg. Nashville, TN 37243-0493
Nashville, TN 37201
(ON APPEAL) Victor S. Johnson, III
District Attorney General
and
Kymberly Haas
Asst District Attorney General
Washington Square
222 2nd Avenue North
Nashville, TN 37201-1649
Judge: Tipton
First Paragraph:
The petitioner, Joe Glasgow, Jr., appeals as of right from the
Davidson County Circuit Court's denial of his petition for
post-conviction relief. He contends that he is entitled to
post-conviction relief because he received ineffective assistance of
counsel during the hearing on his motion for new trial and on direct
appeal and because the trial court violated his due process rights
when it failed to hold a full and fair hearing before it ruled that he
did not have "standing" to challenge a search. Because we conclude
that the trial court unduly limited the petitioner's proof at the
post-conviction hearing, we remand the case for another hearing. We
also grant the petitioner a delayed appeal.
URL:http://www.tba.org/tba_files/TCCA/gatesje_opn.WP6
URL:http://www.tba.org/tba_files/TCCA/gatesje_opn.WP6
MARVIN GOODMAN
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
For Appellant: For Appellee:
James G. King Charles W. Burson
222 Second Avenue Attorney General & Reporter
Suite 416 450 James Robertson Parkway
Nashville, TN 37201 Nashville, TN 37243
Lisa Naylor
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
Katie Miller
Assistant District Attorney General
222 Second Avenue North
Washington Square, Suite 500
Nashville, TN 37201-1649
Judge: WADE
First Paragraph:
In 1991, the petitioner, Marvin Goodman, was convicted of two separate
drug offenses and received concurrent sentences of six and eight
years. In 1993, after a conviction for escape, he received a two-year
sentence to be served consecutively to the 1991 sentences. In this
action, the petitioner sought relief on two different grounds: (1)
that the 1989 Sentencing Reform Act violates the Separation of Powers
Clause of the Tennessee Constitution; and (2) that the 1989
Sentencing Reform Act violates the determinate sentencing law. After
an evidentiary hearing, the trial court denied the petition. We
affirm.
URL:http://www.tba.org/tba_files/TCCA/goodmanm_opn.WP6
RICKY D. HULSEY
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
HERSHELL D. KOGER JOHN KNOX WALKUP
Attorney at Law Attorney General & Reporter
P.O. Box 1148
Pulaski, TN 384781 EUGENE J. HONEA
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
MICHAEL W. McCOWN
District Attorney General
WEAKLEY E. BARNARD
Assistant District Attorney General
P.O. Box 904
Fayetteville, TN 37334
Judge: WITT
First Paragraph:
The petitioner, Ricky D. Hulsey, appeals the Lincoln County Circuit
Court's dismissal of his petition for post-conviction relief. The
petitioner was sentenced to a five year incarcerative term following
his guilty pleas to the offenses of aggravated assault and vandalism.
After the petitioner filed his post conviction petition, the lower
court appointed counsel, conducted a hearing, and denied the requested
relief in a well-drafted order setting forth the detailed findings of
fact and conclusions of law. In this appeal, the petitioner
challenges the lower court's determinations he did not enter his
guilty pleas knowingly and voluntarily and that he received the
effective assistance of counsel. Having reviewed the record, we
affirm the judgment of the lower court pursuant to Rule 20 of the
rules of this court.
URL:http://www.tba.org/tba_files/TCC/hulseyrd_opn.WP6
STATE OF TENNESSEE
vs.
EDWARD IROGHUEHI ISIBOR
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
STEPHEN CROFFORD JOHN KNOX WALKUP
209 10TH Avenue, South Attorney General and Reporter
Suite 511
Cummins Station PETER M. COUGHLAN
Nashville, TN 37203 Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
JOSEPH D. BAUGH, JR.
District Attorney General
DEREK SMITH
Asst District Attorney General
P. O. Box 937
Franklin, TN 37065-0937
Judge: RILEY
First Paragraph:
On July 30, 1996, Edward Iroghuehi Isibor was found guilty at a bench
trial of resisting arrest, a Class B misdemeanor. The trial court
placed defendant on judicial diversion with eleven (11) months and
twenty-nine (29) days probation. Defendant complains that the trial
court erred in allowing consolidation of the initial and subsequent
indictments, and the evidence is insufficient to sustain the trial
court's finding of guilt. We find these issues to be without merit
and AFFIRM the trial court in the finding of guilt. Although the
issue was not raised, the judgment of the trial court must be modified
to reflect judicial diversion with six (6) months probation.
URL:http://www.tba.org/tba_files/TCCA/isiborei_opn.WP6
EDDIE B. LEWIS
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
SHAWN A. TIDWELL JOHN KNOX WALKUP
Stanton, Tidwell & Mendes, PLLC Attorney General and Reporter
Cummins Station, Suite 507
209 Tenth Avenue South DARYL J. BRAND
Nashville, TN 37203 Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
VICTOR S. JOHNSON
District Attorney General
LILA STATOM
Assistant District Attorney
222 2nd Avenue North, Ste. 500
Nashville, TN 37201
Judge: SMITH
First Paragraph:
Appellant Eddie B. Lewis appeals the dismissal of his petition for
habeas corpus relief. He presents the following issues for review:
(1) whether Tennessee's sentencing scheme violates the Separation of
Powers Clause of the Tennessee Constitution; and (2) whether
Tennessee's sentencing scheme violates the determinate sentencing
statute set out at Tennessee Code Annotated Section 40-35-211.
After a review of the record, we affirm the judgment of the trial
court.
URL:http://www.tba.org/tba_files/TCCA/lewise_opn.WP6
KENNETH LOWE
vs.
HOWARD CARLTON,
WARDEN, and STATE OF
TENNESSEE
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
Kenneth Lowe, Pro Se Charles W. Burson
212010 NECC Attorney General and Reporter
P. O. Box 5000
Mountain City, TN 37683-5000
Michael J. Fahey, II
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
(AT TRIAL AND ON APPEAL)
Judge: Hayes
First Paragraph:
The appellant, Kenneth Lowe, appeals the trial court's dismissal of
his pro se petition for writ of habeas corpus relief. In September of
1992, the appellant was convicted by a Bradley County jury of the
offenses of attempt to commit rape and aggravated rape and was
subsequently sentenced to an effective sentence of fifteen years
imprisonment. He is currently confined at the Northeast Correctional
Center in Johnson County. The appellant filed the instant petition
alleging that the judgments entered against him are void because the
indictment failed to allege the mens rea of the offenses charged. The
trial court dismissed the petition on the basis that allegations
concerning the sufficiency of the indictment are not the proper
subject of habeas corpus relief. We agree with this ruling. See
Haggard v. State, 475 S.W.2d 186, 187 (Tenn. Crim. App. 1971); Brown
v. State, 445 S.W.2d 669, 674 (Tenn. Crim. App. 1969); Barber v.
State, No. 01C01-9408-CR-00281 (Tenn. Crim. App. at Nashville, Feb.
23, 1995). Accordingly, we affirm the trial court's dismissal of the
petition.
URL:http://www.tba.org/tba_files/TCCA/lowek_opn.WP6
ASON
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
Hershell Koger John Knox Walkup
135 North First Street Attorney General and Reporter
P.O. Box 1148
Pulaski, TN 38478 Clinton J. Morgan
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
T. Michael Bottoms
District Attorney General
P.O. Box 459
Lawrenceburg, TN 38464
Robert C. Sanders
Assistant District Attorney
Maury County Courthouse
Columbia, TN 38401
Judge: Barker
First Paragraph:
The appellant, Steven Mason, appeals as of right the trial court's
dismissal of his petition seeking post-conviction relief. He contends
that the trial court was in error in concluding that he had received
the effective assistance of counsel in his underlying felony.
Following our review of the record on appeal, we affirm the judgment
of the trial court
URL:http://www.tba.org/tba_files/TCCA/masons2_opn.WP6
STATE OF TENNESSEE
vs.
RICHARD MCADAMS
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
GUY R. DOTSON, JR. JOHN KNOX WALKUP
102 South Maple Street Attorney General and Reporter
Murfreesboro, TN 37130
LISA A. NAYLOR
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
BILL WHITESELL
District Attorney General
JOHN W. PRICE, III
Assistant District Attorney
303 Rutherford Cty, Judicial Bldg.
Murfreesboro, TN 37130
Judge: SMITH
First Paragraph:
Appellant Richard McAdams entered a plea of guilty in the Rutherford
County Circuit Court to one count of possession of marijuana for
resale. As a Range I standard offender, the Appellant received a
sentence of one year and six months of incarceration with the
Tennessee Department of Correction, all of which was suspended with
the exception of 35 days to be served in the Rutherford County
Workhouse. Appellant also received a fine of $2,000. While in the
workhouse Appellant was placed on work release status. On April 18,
1995, a probation revocation warrant issued for Appellant. Appellant
allegedly violated workhouse rules in that he endeavored to bring
contraband into the workhouse upon returning to that facility from
work. Following a probation revocation hearing, Appellant was removed
from work release and ordered to serve 45 days of straight
incarceration at the Rutherford County Jail beginning January 8, 1996,
and to serve the remainder of his sentence on supervised probation.
In this direct appeal, Appellant contends that there was insufficient
evidence to support the trial court's ruling revoking Appellant's
probation. After a review of the record, we affirm the judgment of the trial
court.
URL:http://www.tba.org/tba_files/TCCA/mcadams_opn.WP6
======================================================================
TBALink Opinion Flash-P1
October 02, 1997 Vol. #3 -- No. #094
======================================================================
STATE OF TENNESSEE
vs.
ROBERT MOORE
with SEPARATE OPINION CONCURRING IN
PART AND DISSENTING IN PART
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
Shipp R. Weems John Knox Walkup
District Public Defender Attorney General and Reporter
Carey J. Thompson Janis L. Turner
Assistant Public Defender Assistant Attorney General
P.O. Box 160 450 James Robertson Parkway
Charlotte, TN 37036 Nashville, TN 37243-0493
Dan Mitchum Alsobrooks
District Attorney General
Suzanne M. Lockert
Assistant District Attorney
P.O. Box 580
Charlotte, TN 37036
Judge: Barker
First Paragraph:
The appellant, Robert Moore, pled guilty in the Circuit Court of
Dickson County to twenty (20) counts of passing forged prescriptions.
On July 16, 1993, the trial court ordered appellant to serve two (2)
years on each count in community corrections. Three counts were
ordered to be served consecutively for an effective sentence of six
(6) years. In January of 1996, after appellant violated three rules
of the program, his case officer obtained an arrest warrant for
violating community corrections. The trial court held a hearing and
revoked appellant's alternative sentence. It ordered appellant to
serve the remainder of his sentence in the Department of Correction.
URL:http://www.tba.org/tba_files/TCCA/moorer_opn.WP6
URL:http://www.tba.org/tba_files/TCCA/moorer_dis.WP6
STATE OF TENNESSEE
vs.
MARTHA L. PENNINGTON
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
MICHAEL J. FLANAGAN JOHN KNOX WALKUP
Attorney at Law Attorney General & Reporter
95 White Bridge Road #208
Nashville, TN 37205 DARYL J. BRAND
Assistant Attorney General
425 Fifth Avenue North
2nd Floor, Cordell Hull Building
Nashville, TN 37243
DAN M. ALSOBROOKS
District Attorney General
ROBERT S. WILSON
Asst District Attorney General
P.O. Box 580
Charlotte, TN 37036
Judge: WOODALL
First Paragraph:
The Defendant, Martha L. Pennington, entered a guilty plea to the
offense of driving under the influence of an intoxicant (DUI) in the
Circuit Court of Dickson County. The Defendant received a sentence of
eleven (11) months and twenty-nine (29) days, with all but forty-eight
(48) hours of the sentence suspended. She was fined $350.00 and
ordered to pay court costs. With the consent of the State and the
trial court, Defendant explicitly reserved a certified question of law
dispositive of the case pursuant to Tennessee Rules of Criminal
Procedure 37(b)(2)(i). The certified question of law in this appeal
is: "Whether or not the detention of the defendant, in this case,
under the policy of the Dickson County Sheriff's Department,
constitutes punishment so as to preclude further prosecution on double
jeopardy grounds or violates the defendant's due process rights."
After a thorough review of the record, we affirm the judgment of the
trial court.
URL:http://www.tba.org/tba_files/TCCA/penngtnm_opn.WP6
JOE SEIGLE
vs.
OSCAR MASON, Tennessee
Department of Corrections,
DOUG CLUCK, Tennessee
Board of Paroles, and
STATE OF TENNESSEE
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
Thomas R. Bandy, III Charles W. Burson
P. O. Box 1127 Attorney General and Reporter
Kingsport, TN 37662
Timothy F. Behan
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
H. Greeley Wells, Jr.
District Attorney General
Robert M. Montgomery
Asst. District Attorney General
Blountville TN 37617
Judge: Hayes
First Paragraph:
The appellant, Joe Seigle, appeals the trial court's dismissal of his
petition for writ of habeas corpus. On May 10, 1993, the appellant
pled guilty in the Sullivan County Criminal Court to one count of
passing a worthless check in excess of $60,000, a class B felony. The
length and manner of service of the sentence were to be determined by
the trial court. The trial court imposed a ten year sentence in the
Department of Correction. On the date of the sentencing hearing, the
appellant was in federal custody serving a five year sentence. The
record indicates that the appellant had additional federal charges
pending. The appellant is currently confined at the federal
correctional facility in Lexington, Kentucky.
URL:http://www.tba.org/tba_files/TCCA/seiglej_opn.WP6
JAMES H. TURNER
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
JAMES H. TURNER, pro se JOHN KNOX WALKUP
TCIP ANNEX, #99071 Attorney General & Reporter
Route 1
Only, TN 37140 LISA A. NAYLOR
Attorney for the State
450 James Robertson Pkwy.
Nashville, TN 37243-0493
JOSEPH D. BAUGH
District Attorney General
RONALD L. DAVIS
Asst. District Attorney General
P. O. Box 937
Franklin, TN 37065-0937
Judge: PEAY
First Paragraph:
The petitioner, an inmate with the Department of Correction, received
three concurrent forty-five year sentences for two convictions of
aggravated kidnapping and one conviction of accessory before the fact
to murder in the second degree. By petition for a writ of habeas
corpus, he challenges his restraint alleging that it is "illegal and
void on the face of the records." His petition was dismissed without
a hearing by the court below.
URL:http://www.tba.org/tba_files/TCCA/turnerjh_opn.WP6
ROBERT F. TURNER
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
Robert F. Turner, Pro Se Charles W. Burson
# 167179 Attorney General of Tennessee
Turney Center Annex and
Route One Eugene J. Honea
Only, TN 37140 Asst Attorney General of Tennessee
450 James Robertson Parkway
Nashville, TN 37243-0493
William H. Cox
District Attorney General
600 Market Street, Suite 310
Chattanooga, TN 37402
Judge: Tipton
First Paragraph:
The petitioner, Robert F. Turner, appeals as of right from the
Hamilton County Criminal Court's dismissal of his second
post-conviction petition without a hearing. He contends that he is
entitled to post-conviction relief because the use of the term "moral
certainty" in the reasonable doubt jury instruction given at his trial
allowed the jury to convict him based on a lower standard of proof
than is constitutionally required.
URL:http://www.tba.org/tba_files/TCCA/turnerrf_opn.WP6
LORENZO C. WATERS
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
W. CASEY REED JOHN KNOX WALKUP
211 Printers Alley Building Attorney General and Reporter
Suite 400
Nashville, Tennessee 37201 DARYL J. BRAND
Assistant Attorney General
450 James Robertson Parkway
Nashville, Tennessee 37243-0493
VICTOR JOHNSON
District Attorney General
ROGER MOORE
Asst District Attorney General
Washington Sq Building-Suite 500
222 Second Avenue, North
Nashville, Tennessee 37201
Judge: WALKER
First Paragraph:
The appellant, Lorenzo C. Waters, appeals as of right from a judgment
of the trial court denying his petition for post-conviction relief,
following an evidentiary hearing. Appellant alleges that he received
ineffective assistant of counsel when he entered a plea of guilty to
murder in the second degree and received a sentence of forty years as
a Range II offender.
URL:http://www.tba.org/tba_files/TCCA/watersop_wpd.WP6
TONY CRAIG WOODS
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
John E. Herbison John Knox Walkup
Attorney at Law Attorney General & Reporter
2016 Eighth Avenue, South 500 Charlotte Avenue
Nashville, TN 37204 Nashville, TN 37243-0497
(Appeal Only)
Eugene J. Honea
W. Casey Reed Assistant Attorney General
Attorney at Law 450 James Robertson Parkway
211 Printer's Alley Nashville, TN 37243-0493
Suite 400
Nashville, TN 37201 Victor S. Johnson, III
(Trial Only) District Attorney General
Washington Sq Building, Suite 500
222 Second Avenue, North
Nashville, TN 37201-1649
Thomas B. Thurman
Asst District Attorney General
Washington Sq Building, Suite 500
222 Second Avenue, North
Nashville, TN 37201-1649
Judge: Jones
First Paragraph:
The appellant, Tony Craig Woods (petitioner), appeals as of right from
a judgment of the trial court dismissing his action for
post-conviction relief. The trial court ruled the action was barred
by the statute of limitations. In this Court, the petitioner contends
(a) the trial court should have afforded him the opportunity to
present evidence to explain why he failed to file his action timely
and (b) the reasonable doubt instruction given by the trial court was
constitutionally infirm. After a thorough review of the record, the
briefs submitted by the parties, and the law governing the issues
presented for review, it is the opinion of this Court the judgment of
the trial court should be affirmed.
URL:http://www.tba.org/tba_files/TCCA/woodstc_opn.WP6
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