TBALink Opinion-Flash

October 03, 1997 -- Volume #3 -- Number #95

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):
00-New Opinons From TSC
00-New Opinons From TSC-Rules
00-New Opinons From TSC-Workers Comp Panel
04-New Opinons From TCA
08-New Opinons From TCCA

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George Dean
TBALink Chief Editor


JORDAN BAIR, Minor, b/n/f/   
and Parent, MARK BAIR
vs.
JOHN DOE   

Court:TCA

Attorneys: 

Richard Baker   
Mark W. Strange 
Knoxville, Tennessee
Attorney for Plaintiffs/Appellants
                        
Lela M. Hollabaugh                
Nashville, Tennessee  
Attorney for Defendant/Appellee                          

Judge: LILLARD

First Paragraph:

In this case, Appellants Jordan, Whitney, Linda, and Mark Bair ("the
Bairs") were traveling on 1-40 near Dickson, Tennessee.  Hillary Bair,
a fifteen-year-old with a learner's permit, took over the driving from
her mother, Linda Bair.  Ten minutes later, while traveling at the
speed of 65 m.p.h., the legal speed limit, Hillary decided to pass a
tractor-trailer in front of her.  As her mother watched her, Hillary
checked the rear-view mirrors, put on her left-hand turn signal,
looked to her left to make sure there were no vehicles in the
left-hand lane, and, seeing no other cars, began to pull into the
left-hand lane.  Linda Bair also looked at the left-hand lane and also
saw no other cars.  There was an impact from behind, on the left rear
bumper of the Bair vehicle.  Hillary then saw a light-colored vehicle
pass by.  The van began to fishtail, and Hillary lost control of it. 
The van ran off the road into an embankment and rolled, causing
various injuries to the Appellants.

URL:http://www.tba.org/tba_files/TCA/bairj_opn.WP6
Opinion-Flash

BILLY FRANK HENLEY and,
JOE H. MARLOW
vs.
DALE DOTSON and wife, 
ELSIE DOTSON

Court:TCA

Attorneys: 

Aubrey L. Harper
McMinnville, Tennessee
Attorney for Defendants/Appellants
                        
Robert F. Hazard                  
Tullahoma, Tennessee  
Attorney for Plaintiffs/Appellees                          

Judge: LILLARD

First Paragraph:

The plaintiffs in this case, Billy Frank Henley ("Henley") and Joe H.
Marlow ("Marlow"), own tracts of farm land in Coffee County,
Tennessee.  Henley acquired his land in 1992 from his brother,
Clarence Henley, and his sister-in-law, Nona Mae Henley.  Clarence and
Nona Mae Henley had acquired the property from his parents in 1974. 
His parents had owned the property since 1957.  Marlow acquired one
tract of land at issue in 1973 and another tract of land at issue in
1975.  The plaintiffs claim that a road separates their land from that
of the defendants, Dale and Elsie Dotson ("Dotson").

URL:http://www.tba.org/tba_files/TCA/henleybf_opn.WP6
Opinion-Flash

ISSAC LYDELL HERRON
vs.
ELIZABETH T. RICE, et al

Court:TCA

Attorneys:

Issac Lydell Herron, Pro Se

John Knox Walkup, Attorney General & Reporter
Abigail Turner, Assistant Attorney General
for Defendants/Appellees Elizabeth T. Rice and Jimmy Harrison                          

Judge: FARMER

First Paragraph:

Issac Lydell Herron appeals from the trial court's order dismissing
his petition for a writ of mandamus.  The complaint alleges that Mr.
Herron is the president and incorporator of the Church of God at Cold
Creek, Inc., a Tennessee corporation.  Jimmy Harrison is the warden of
Cold Creek Correctional Facility (CCCF) and Elizabeth T. Rice is the
District Attorney General of the 25th Judicial District.  Although not
specifically stated in the complaint, it is apparent from the exhibits
to the complaint that Mr. Herron is incarcerated at CCCF.

URL:http://www.tba.org/tba_files/TCA/herronil_opn.WP6
Opinion-Flash

ANTHONY EARL McCANN and 
CYNTHIA McCANN
vs.
PEGGY McCANN PATTERSON
WEATHERS

Court:TCA

Attorneys:

A. Don Walker, III, Dyersburg, Tennessee
Attorney for Petitioner/Appellant.

John W. Palmer, THE PALMER LAW FIRM, Dyersburg, Tennessee
Attorney for Petitioner/Appellee.                          

Judge: FARMER

First Paragraph:

Peggy McCann Patterson Weathers appeals the trial court's order which
granted the petition of Appellees Anthony Earl McCann and Cynthia
McCann to adopt the two minor children of Weathers' daughter, Virginia
Darlene McCann Wills.  We affirm the court's final order of adoption.

URL:http://www.tba.org/tba_files/TCA/mccannae_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
VICTOR LOFTON

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:
TOM W. CRIDER                       JOHN KNOX WALKUP 
District Public Defender            Attorney General and Reporter
28th Judicial District
                                    SARAH M. BRANCH
JOYCE DIANE STOOTS                  Assistant Attorney General
Assistant Public Defender           450 James Robertson Parkway
107 South Court Square              Nashville, TN 37243-0493
Trenton, TN 38382   
                                    CLAYBURN L. PEEPLES
                                    District Attorney General

                                    EDWARD L. HARDISTER
                                    Asst District Attorney General
                                    110 South College Street
                                    Suite 200
                                    Trenton, TN 38382                               

Judge: RILEY

First Paragraph:

This is an appeal from the revocation of a community corrections
sentence in which defendant's sentence was increased from two (2)
years to three and one-half (3 ) years.  Defendant raises two issues
for our review: (1) whether the trial court erred in increasing the
sentence, and (2) whether the trial court erred in failing to award
defendant proper credit for the time he was on community corrections. 
We agree with defendant's argument in both respects and modify the
sentence.

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

SHANNON R. MARTIN
vs.
JAMES A. BOWLIN, Warden,
and STATE OF TENNESSEE

Court:TCCA

Attorneys: 

For the Appellant:                  For the Appellee:
Shannon R. Martin, Pro Se           Charles W. Burson
S.T.S.R.C.F.                        Attorney General and Reporter
Route #4, Box 600   
Pikeville, TN  37367                Sandy R. Copous
                                    Assistant Attorney General                          
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493                
                        
                                    James Michael Taylor
                                    District Attorney General

                                    James W. Pope, III
                                    Asst. District Attorney General
                                    Fan Bank Bldg., Suite 300
                                    265 Third Avenue
                                    Dayton  TN  37321-1238                         

Judge: Hayes

First Paragraph:

The appellant, Shannon R. Martin, appeals the trial court's dismissal
of his pro se petition for writ of habeas corpus. The appellant is
currently confined at the state correctional facility in Bledsoe
County where he is serving a forty year sentence for aggravated rape. 
His conviction occurred on May 27, 1987.  The appellant filed the
instant petition on October 4, 1996, alleging that the judgment
entered against him is void because the indictment failed to allege
the mens rea of the offense charged.  The trial court dismissed the
petition, finding the indictment sufficient to support the entry of a
judgment of conviction for aggravated rape.  We affirm the trial
court's dismissal of the petition.

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

ANTHONY DEWAYNE PARKER
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:
ANTHONY DEWAYNE PARKER              JOHN KNOX WALKUP 
Reg. #13620-076                     Attorney General & Reporter
F.C.I., Memphis
P.O. Box 34550
Memphis, TN  38103                  M. ALLISON THOMPSON
                                    Assistant Attorney General
                                    425 Fifth Avenue North 
                                    2nd Floor, Cordell Hull Building
                                    Nashville, TN  37243

                                    JOHN W. PIEROTTI 
                                    District Attorney General

                                    JAMES MORTON LAMMEY, JR. 
                                    Asst District Attorney General
                                    201 Poplar Avenue, Suite 301
                                    Memphis, TN  38103-1947                          

Judge: WOODALL

First Paragraph:

The Petitioner, Anthony Dewayne Parker, appeals the order of the
Shelby County Criminal Court dismissing his pro se petition for post
conviction relief.   In this appeal, Petitioner raises numerous issues
which can collectively be summarized as challenging the trial court's
ruling that the petition for post-conviction relief is time-barred. 
The Petitioner's primary argument is that the Post-Conviction
Procedure Act that became effective May 10, 1995, gives him a new
one-year time period in which to file a Petition for Post-Conviction
Relief.  After a review of the record, we affirm the lower court's
denial of post-conviction relief.

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

ODELL RAY, JR.
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

For the Appellant:              For the Appellee:
MELANIE E. TAYLOR               CHARLES W. BURSON
50 North Front Street           Attorney General and Reporter
Suite 1150  
Memphis, TN  38103              KAREN M. YACUZZO
                                Assistant Attorney General                          
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493                
                        
                                WILLIAM GIBBONS
                                District Attorney General

                                DAVID SHAPIRO and
                                JENNIFER NICHOLS
                                Asst. District Attorneys General
                                Criminal Justice Complex
                                Suite 301
                                Memphis, TN  38103                         

Judge: Hayes

First Paragraph:

The appellant, Odell Ray, Jr., was indicted by a Shelby County Grand
Jury for the April 30, 1993, premeditated murder of Willie Hicks.  On
the second day of the appellant's scheduled trial, he entered a guilty
plea to a reduced charge of second degree murder.  Pursuant to his
plea agreement, the appellant was sentenced to forty-five years in the
Department of Correction, with a thirty-five percent release
eligibility date, as a range II offender.  On June 16, 1994, the
appellant filed a pro se petition for post-conviction relief, this
petition was later amended on February 23, 1995, with the assistance
of counsel.  The appellant's petition alleges that his trial counsel
was ineffective and that the trial court imposed an illegal sentence,
i.e., the sentence imposed was outside the applicable sentencing
range.  In reference to his ineffective assistance of counsel claim,
the appellant contends that (1) counsel failed to confer with him
concerning matters of defense; (2) counsel failed to conduct
appropriate investigations and discovery; (3) counsel failed to inform
the defendant that he was pleading outside his range; and (4) counsel
failed to submit any motions on the defendant's behalf. The
post-conviction court, after conducting an evidentiary hearing, denied
the appellant relief.  The appellant now appeals this denial.

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

STATE OF TENNESSEE
vs.
CHARLES ANTHONY RICHARDS

Court:TCCA

Attorneys: 


FOR THE APPELLANT:                  FOR THE APPELLEE:
Patricia Hall Long                  John Knox Walkup
Attorney at Law                     Attorney General & Reporter 
2100 Riverview Tower
900 S. Gay Street                   Marvin E. Clements, Jr.  
Knoxville, TN 37902                 Assistant Attorney General
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    H. Greeley Wells, Jr.
                                    District Attorney General

                                    Edward E. Wilson 
                                    Asst. Dist. Attorney General
                                    P.O. Box 526
                                    Blountville, TN 37617                         

Judge: SUMMERS

First Paragraph:

The appellant, Charles Anthony Richards, pled guilty to aggravated
robbery.  After a hearing, he was sentenced to eight years
incarceration.  His sentence is to be served consecutively to an
unrelated federal sentence.  The appellant contends that the trial
court erred in ordering his sentence to be served consecutively to his
federal sentence.

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

STATE OF TENNESSEE
vs.
TELLY M. SLAYON

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:

WALKER GWINN                        CHARLES W. BURSON
Assistant Public Defender           Attorney General and Reporter
201 Poplar Suite 2-01   
Memphis, TN  38103                  MICHAEL J. FAHEY, II
                                    Assistant Attorney General
                                    DENIELLE V. YOUNG
                                    Legal Assistant
                                    450 James Robertson Parkway
                                    Nashville, TN  37243

                                    WILLIAM L. GIBBONS
                                    District Attorney General

                                    JERRY KITCHEN
                                    Assistant District Attorney
                                    201 Poplar, Third Floor
                                    Memphis, TN  38103                        

Judge: SMITH

First Paragraph:

On February 10, 1995, Appellant Telly Slayton was found guilty by a
Shelby County Criminal Court jury of murder in the perpetration of
robbery in violation of Tennessee Code Annotated Section 39-13-202(2)
(Supp. 1996).  The trial court ordered a sentence of life
imprisonment.  On appeal, Appellant raises three issues for review:
(1) whether the evidence presented at trial was sufficient as a matter
of law to sustain the conviction; (2) whether the trial court erred in
overruling Appellant's motion to suppress his statement given to
police officers; and (3) whether the trial court erred in admitting,
over Appellant's objection, a photograph of the victim taken while the
victim was alive.  After a review of the record, we affirm the
judgment of the trial court.

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

JOHN C. TOMLINSON
vs.
HOWARD CARLTON, Warden,
and STATE OF TENNESSEE

Court:TCCA

Attorneys:

For the Appellant:                  For the Appellee:
John C. Tomlinson, Pro Se           Charles W. Burson
99306 NECC POB 5000                 Attorney General and Reporter
Mountain City  TN  37683    
                                    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, John C. Tomlinson, appeals the trial court's dismissal
of his pro se petition for writ of habeas corpus. In April 1983, the
appellant was convicted in the Davidson County Criminal Court of
aggravated kidnaping and two counts of robbery with a deadly weapon. 
For these convictions, he was sentenced to 30 years imprisonment.  In
December 1983, the appellant was convicted in the Wilson County
Criminal Court of aggravated rape and armed robbery resulting in
sentences totaling 35 years.  The appellant is currently confined at
the Northeast Correctional Center where he is serving an effective
sentence of 65 years for the convictions from both counties.  The
appellant now appeals the trial court's dismissal of his petition for
writ of habeas corpus.  Specifically, the appellant contends that the
trial court's summary dismissal denied him his right to due process of
the law.

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

JOHN J. VILLANEUVA
vs.
HOWARD CARLTON, Warden, 
and STATE OF TENNESSEE

Court:TCCA

Attorneys: 

For the Appellant:                  For the Appellee:
John J. Villanueva, Pro Se          Charles W. Burson
117376 NECC POB 5000                Attorney General and Reporter
Mountain City, TN  37683    
                                    Michael J. Fahey, II
                                    Assistant Attorney General                              
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493                
                        
                                    (AT TRIAL AND ON APPEAL)                                 

Judge:

First Paragraph:

The appellant, John J. Villaneuva, appeals the trial court's summary
dismissal of his pro se application for writ of habeas corpus.  On
July 16, 1987, the appellant was found guilty by a Jefferson County
jury of first degree burglary.  Based upon this "triggering" offense
and requisite qualifying felony convictions, the appellant received an
enhanced sentence of life imprisonment after a jury found him to be an
habitual offender.  See Tenn. Code Ann. S 39-1-801(repealed 1989).  On
November 10, 1987, the appellant pled guilty in the Jefferson County
Criminal Court to one count of rape, one count of sexual battery, and
two counts of first degree burglary.  The court imposed an effective
sentence of twenty-five years for these convictions and ordered that
this sentence run concurrently to his life sentence.  The appellant is
currently incarcerated at the Northeast Correctional Center in Johnson
County.

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

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