TBALink Opinion-Flash

October 13, 1997 -- Volume #3 -- Number #099

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> 00-New Opinons From TSC <02> 00-New Opinons From TSC-Rules <03> 00-New Opinons From TSC-Workers Comp Panel <10> 00-New Opinons From TCA <12> 00-New Opinons From TCCA

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George Dean
TBALink Chief Editor



    ORDER AMENDING NAME OF COMMISSION
    AND APPOINTING COMMISSION MEMBERS


Court:TSC

Attorneys:                          

Judge:

First Paragraph:


WHEREAS, by order of May 30, 1996, and as amended on June 26, 1996,
this Court created the Statewide Commission on Foster Care
(hereinafter "Commission") as part of its State Court Improvement
Program; and

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

STATE OF TENNESSEE
vs.
CORA MURPHY

Court:TSC

Attorneys:


For Appellee:                       For Appellant:

JEFFERSON T. DORSEY                 JOHN KNOX WALKUP
Assistant Public Defender           Attorney General and Reporter
Nashville, TN
                                    MICHAEL E. MOORE
                                    Solicitor General

                                    WILLIAM DAVID BRIDGERS
                                    Assistant Attorney General
                                    Nashville, TN

                                    VICTOR S. JOHNSON, III
                                    District Attorney General

                                    JAMES D. SLEDGE
                                    Assistant District Attorney
                                    Nashville, TN
                          

Judge:BIRCH

First Paragraph:

The Court of Criminal Appeals reversed the judgment of the trial court
that convicted Cora Murphy, the defendant, of driving while under the
influence of an intoxicant and remanded the case for a new trial.  We
consider now the appeal of the State of Tennessee, and we must
determine whether testimony concerning an Horizontal Gaze Nystagmus
("HGN") sobriety test constitutes "scientific, technical, or other
specialized knowledge" under  Tenn. R. Evid. 702.  We hold that the
HGN test is a scientific test.  To be admissible at trial, such
evidence must satisfy the requirements of Tenn. R. Evid. 702 and 703
as announced in McDaniel v. CSX Transportation, Inc.,     S.W.2d    
(Tenn 1997).  Because we are unable to determine from the record now
before us whether these admissibility requirements have been met, the
judgment of the Court of Criminal Appeals is affirmed, and we remand
this case to the trial court for a new trial.

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

RICHARD HITCHCOCK                                                                                         
vs.                                                               
WAUSAU INSURANCE COMPANIES                                                    
and SERVICE AMERICA                        
CORPORATION,                                                                                                                                                                                          
and                                                                                                                              
LARRY BRINTON, JR., DIRECTOR,     
DIVISION OF WORKERS'                      
COMPENSATION, SECOND                  
INJURY FUND

Court:TSC - Workers Comp Panel

Attorneys:For Appellant:             For Appellee, Hitchcock:

Charles W. Burson                    Kenneth M. Switzer
Attorney General & Reporter          Williams/Nebel & Associates
                                     Nashville, Tennessee
Dianne Stamey Dycus
Senior Counsel                       For Appellee, Wausau:
Nashville, Tennessee
                                     Angus Gillis, III
                                     Schulman, LeRoy & Bennett
                                     Nashville, Tennessee                          

Judge:Loser

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann. section 50-6-225(e)(3) for hearing and reporting
of findings of fact and conclusions of law.  In this appeal, the
Second Injury Fund (the fund) contends (1) the evidence preponderates
against the trial court's finding that the claimant is permanently and
totally disabled, and (2) that it was error to approve a settlement
between the employee and employer under the circumstances.  The
claimant contends the objection to the settlement comes too late.  As
discussed, the panel has concluded both judgments should be
vacated and the case remanded for further consideration.

URL:http://www.tba.org/tba_files/TSC_WCP/hitchcoc_opn.WP6
Opinion-Flash

INSURANCE COMPANY OF             
NORTH AMERICA
vs.
RONNIE STORIE

Court:TSC - Workers Comp Panel

Attorneys:


For Appellant:                       For Appellee:

Randall A. York                      Robert M. Shelor
Crossville, Tennessee                Kennerly, Montgomery & Finley
                                     Knoxville, Tennessee
William J. Campbell
Jamestown, Tennessee
                          

Judge:Loser

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann. section 50-6-225(e)(3) for hearing and reporting
of findings of fact and conclusions of law.  The issue presented by
this appeal is whether the evidence preponderates against the trial
court's finding that the employee's injury was proximately caused by
intoxication.  As discussed, the panel has concluded the
judgment should be reversed and the case remanded for an award of
benefits.

URL:http://www.tba.org/tba_files/TSC_WCP/inscona_opn.WP6
Opinion-Flash

DAVID PAUL WILBURN
vs.
JOHN BOYLE & CO., INC., d/b/a       
AQUAMINE PLASTIC PRODUCTS,  
INC.,                   

Court:TSC - Workers Comp Panel

Attorneys:

For the Appellant:                  For the Appellee:

Michael E. Large                    Edward J. Webb
Large and Associates                K. Jeff Luethke
511 Alabama St.                     Hunter, Smith & Davis
Bristol, TN  37620                  P.O. Box 3740
                                    Kingsport, TN  37664
                          

Judge:BYERS

First Paragraph:

The plaintiff below appeals the trial courtŐs dismissal of his
complaint, holding that the plaintiff had not met his burden of
proving that he had sustained a permanent vocational disability as a
result of his work-related accident. We affirm the trial courtŐs
judgment.

URL:http://www.tba.org/tba_files/TSC_WCP/wilburn_wc.WP6
Opinion-Flash

IN RE:  AMENDMENT OF SUPREME COURT RULE 8 AND RULE 9

Court:TSC - Rules

First Paragraph:

The high standards of professional conduct demanded of lawyers require
that lawyers subject to the jurisdiction of the Board of Professional
Responsibility comply with all court orders, including child support
orders; consequently, Rules 8 and 9 of the Rules of the Supreme Court
are amended. 

URL:http://www.tba.org/tba_files/TSC_RULES/RULE8&9_ORD.WP6
Opinion-Flash

SUPREME COURT OF TENNESSEE
STATE LIST FOR PERMISSION TO APPEAL
October 13, 1997                                                        

Court:TSC - Rules                        

URL:http://www.tba.org/tba_files/TSC_RULES/STATELST5_WPD.WP6
Opinion-Flash

PAULA RENEE STEPHENS COONER
vs.
GARY KENT COONER

Court:TCA

Attorneys:

L. R. DeMarco, #2652
Suite 400
Washington Square
Nashville, TN 37201-1476
ATTORNEY FOR PLAINTIFF/APPELLANT

Louise R. Fontecchio, #4065
20th Floor, First American Center
315 Deaderick Street
Nashville, TN 37238-2075
ATTORNEY FOR DEFENDANT/APPELLEE                          

Judge:TODD

First Paragraph:

The captioned plaintiff/wife, has appealed from a post-divorce order
in a contempt proceeding instituted by the captioned
defendant/husband.

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

GAYNELL COVINGTON
vs.
WILLIAM E. ACUFF

Court:TCA

Attorneys:

For the Plaintiff/Appellant:        For the Defendant/Appellee:

Stacy A. Turner                     Daniel Mark Nolan
Clarksville, Tennessee              Daniel, Harvill, Batson & Nolan
                                    Clarksville, Tennessee
                          

Judge:KOCH

First Paragraph:

This appeal involves the relation-back features of Tenn. R. Civ. P. 3.
 A motorist who was injured in an automobile collision filed two
successive lawsuits against the driver of the other vehicle.  After
the process for both these complaints was returned unserved, the
plaintiff driver filed a third suit in the Circuit Court for
Montgomery County and obtained service on the other driver over three
years after the collision.  Upon motion of the defendant driver, the
trial court dismissed the third complaint because the plaintiff
driver's claims had not been saved from the statute of limitations by
the relation-back features of Tenn. R. Civ. P. 3.  The plaintiff
driver has perfected this appeal.  We have determined that the trial
court correctly dismissed the plaintiff driver's third complaint
because it was not filed within the time required by Tenn. R. Civ. P.
3.

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

CHARLES W. BERNARD and wife     
KAREN BERNARD
vs.
HOUSTON EZELL CORPORATION, THE  
CITY OF BRENTWOOD, TENNESSEE and    
LAND INVESTMENT CORPORATION

Court:TCA

Attorneys:

William Kennerly Burger
301 N. Spring Street, P.O. Box 398
Murfreesboro, TN 37133-0398
ATTORNEY FOR DEFENDANTS/APPELLANTS

David J. White, Jr.
WHITE & REASOR
3305 West End Avenue
Nashville, TN 37203
ATTORNEY FOR PLAINTIFFS/APPELLEE, HOUSTON EZELL CORPORATION

Van French, BPR #6922
The City of Brentwood
8307 Bridle Place
Brentwood, TN 37027
ATTORNEY FOR DEFENDANT/APPELLEE                          

Judge:TODD

First Paragraph:


This suit arose out of alleged defects in the planning of a
subdivision lot and defects in the lot on which a house was built and
sold to plaintiffs.

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

FAMILY GOLF OF NASHVILLE, INC
vs.
THE METROPOLITAN GOVERNMENT 
OF NASHVILLE AND DAVIDSON       
COUNTY

Court:TCA

Attorneys:

For the Plaintiff/Appellant:        For the Defendant/Appellee:

Peter H. Curry                      Thomas G. Cross
Tuke, Yopp & Sweeney                Metropolitan Attorney
Nashville, Tennessee                Nashville, Tennessee                          

Judge:KOCH

First Paragraph:

This case involves the validity of an amendment to the Zoning
Ordinance for Metropolitan Government of Nashville and Davidson County
intended to permit a  family recreation center to construct a go-cart
track.  After the Metropolitan Planning Commission refused to amend
the zoning map in accordance with the amendment, the operator of the
recreation center filed a declaratory judgment action in the Chancery
Court for Davidson County.  Following a bench trial, the trial court
struck down the ordinance because it conflicted with the General Plan
for Nashville and Davidson County.  The operator has appealed.  We
have determined that the amendment is valid as long as it was passed
in accordance with the super-majority requirements of the Metropolitan
Charter and, accordingly, remand the case for a definitive factual
determination of that issue

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

JACK JORDAN
vs.
FRANCES J. MARCHETTI

Court:TCA

Attorneys:

For the Plaintiff/Appellant:        For the Defendant/Appellee:

Everett H. Falk                     C. D. Berry              
Franklin, Tennessee                 Franklin, Tennessee

                                    Ed Silva            
                                    Franklin, Tennessee
                          

Judge: LILLARD

First Paragraph:

This case involves an action for rescission of a deed to land
allegedly procured through promissory fraud and duress.  The trial
court dismissed the case on the grounds that it had been brought after
the expiration of the applicable statute of limitations.  We reverse.

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

HORACE A. LaRUE and CARLA LaRUE
Parents and next of kin of      
RANDALL CHARLES LaRUE, deceased
vs.                              
1817 LAKE INCORPORATED, d/b/a   
BONKERS, HOWARD R. TANNENBAUM,  
RICKY CHAMBERS, ROBERT ARCHER,  
and DANNY G. BREWER

Court:TCA

Attorneys:


WILLIAM A. SIMMS, Arnett, Draper & Hagood, Knoxville, for Appellant.


RICHARD W. BAKER, JR., Gilreath & Associates, Knoxville, for Appellee,
Danny G. Brewer.


CAROL A. BEELER for Appellee, Permanent General Companies, Inc. 


DOUGLAS L. DUTTON, Hodges, Doughty & Carson, Knoxville, for Appellee,
Maryland Casualty Insurance Co.


JAMES Y. REED, Jenkins & Jenkins, Knoxville, for Appellee, Ricky
Chambers.
                          

Judge:McMurray

First Paragraph:

This case arises from a motorcycle accident in which Randy LaRue, the
20-year old son of the plaintiffs, was killed.  Plaintiffs sued 1817
Lake, Inc. d/b/a Bonkers, a Knoxville restaurant and bar, and Howard
Tannenbaum, president of 1817 Lake Inc., alleging that the defendants
negligently and unlawfully served Randy and his companion, defendant
Danny Brewer,  alcoholic beverages on the evening of the accident. 
Plaintiffs also sued Robert Archer, the bartender who allegedly
provided LaRue and Brewer with the drinks, and Ricky Chambers, the
doorman on duty at Bonkers that night.  The remaining defendant, Danny
G. Brewer was the operator of the motorcycle at the time of the
accident which resulted in Randall Charles LaRue's death.

URL:http://www.tba.org/tba_files/TCA/larue_368.WP6
Opinion-Flash

BRENDA L. LEE
vs.
HIPPODROME OLDSMOBILE, INC.,    
ROBERT E. McADAMS,      
STEVE JACKSON

Court:TCA

Attorneys:

For the Plaintiff/Appellant:    For the Defendants /Appellees:

Jane J. Buffaloe                C. Dewey Branstetter, Jr.
Nashville, Tennessee            Bryan E. Pieper
                                Branstetter, Kilgore, Stranch & Jennings
                                Nashville, Tennessee                          

Judge: KOCH

First Paragraph:

This appeal results from an employer's recruitment and subsequent
termination of an at-will employee after only two weeks of work. The
employee filed suit in the Circuit Court for Davidson County alleging
breach of an implied employment contract, promissory fraud, and
outrageous conduct. The trial court granted the employer's Tenn. R.
Civ. P. 12.02(6) motion to dismiss for failure to state a claim upon
which relief can be granted, and the employee appealed. We vacate the
order of dismissal because we have decided that the complaint states a
claim for promissory fraud, albeit barely.

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

METROPOLITAN NASHVILLE FIREFIGHTERS 
ASSOCIATION LOCAL 763 and               
B.R. HALL, JR.,                     
vs.                 
THE METROPOLITAN GOVERNMENT     
OF NASHVILLE AND DAVIDSON COUNTY,       
TENNESSEE, F. CLAY BAILEY, in his capacity  
as Chairman of the Civil Service Commission,        
and JOHN W. LYNCH, in his capacity as       
Personnel Director

Court:TCA

Attorneys:

Michael J. Passino
Christopher M. Minton
LASSITER, TIDWELL & HILDERBRAND
213 Fifth Avenue North
Nashville, TN. 37219
ATTORNEY FOR PLAINTIFF/APPELLANTS

William Michael Safley
Department of Law
204 Metropolitan Courthouse
Nashville, TN. 37201
ATTORNEY FOR DEFENDANT/APPELLEE                          

Judge:CAIN

First Paragraph:


This case is before the Court on appeal from the Chancery Court of
Davidson County, Tennessee wherein a Motion for Summary Judgement made
by the Defendants was sustained by the Chancellor.

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

VICKIE DIANNE TUTTLE
vs.
ROBERT EDWARD TUTTLE

Court:TCA

Attorneys:

For the Plaintiff/Appellee:         For the Defendant/Appellant:

No Appearance                       Robert E. Tuttle, Pro Se                          

Judge:KOCH

First Paragraph:

This appeal involves a divorce in which the husband has been
incarcerated throughout the marriage.  After approximately four years
of marriage, both the wife and the husband filed suit for divorce in
the Circuit Court for Coffee County.  Following a bench trial attended
only by the wife, the trial court granted the wife a divorce on the
grounds that the husband was incarcerated and that his conviction had
rendered him infamous.  On this appeal, the husband asserts that the
trial court should not have granted the wife a divorce because she did
not properly verify her complaint and asserts that he did not receive
property that was rightfully his.  We have determined that the
judgment should be affirmed and that the case should be remanded for
consideration of the husband's property claims.

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

IN RE:                  
ERNEST L. WHITE,            
Conservatorship             
                        
TYRONE HOWELL,          
Administrator,              
vs.
LORETTA DeLOACH,            
Substitute Conservator

Court:TCA

Attorneys:

For the Plaintiff/Appellant:        For the Defendant/Appellee:

William S. Hofstetter               Thomas H. Ware
Nashville, Tennessee                Nashville, Tennessee

James C. Hofstetter
Nashville, Tennessee                          

Judge:KOCH

First Paragraph:


This appeal involves the adequacy of a conservator's accounting of a
disabled person's estate.  After the conservator filed her final
accounting in the Probate Court of Davidson County, the personal
representative of the disabled person's estate objected to the
accuracy and completeness of the accounting.  The probate court
conducted a bench trial and approved the conservator's amended final
accounting.  On this appeal, the personal representative asserts that
the final accounting was irregular and that the conservator has failed
to account for all of the disabled person's funds.  We have determined
that the conservator's final accounting cannot be reconciled and,
therefore, that the order approving the final accounting must be
vacated.

URL:http://www.tba.org/tba_files/TCA/whiteel_opn.WP6

STATE OF TENNESSEE vs. MICHAEL BAILEY Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Stacy L. Street John Knox Walkup Attorney at Law Attorney General & Reporter 630 Elk Avenue 500 Charlotte Avenue Elizabethton, TN 37643 Nashville, TN 37243-0497 (On Appeal) Sandy R. Copous J. D. Hickman Assistant Attorney General Attorney at Law 450 James Robertson Parkway 803 Liberty Drive Nashville, TN 37243-0493 Kingsport, TN 37663 (At Trial) H. Greeley Wells, Jr. District Attorney General P. O. Box 526 Blountville, TN 37617-0526 Nancy S. Harr Asst District Attorney General P. O. Box 526 Blountville, TN 37617-0526 David G. Overbay Asst District Attorney General P. O. Box 526 Blountville, TN 37617-0526 Judge:Jones First Paragraph: The appellant, Michael Bailey (defendant), was convicted of second degree murder, a Class A felony, by a jury of his peers. The trial court found that the defendant was a standard offender and imposed a Range I sentence consisting of confinement for twenty (20) years in the Department of Correction. In this Court, the defendant contends (a) his Due Process rights were violated because he was unable to assist his counsel as a result of being denied medication, and (b) the sentence imposed by the trial court is excessive. 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 that the judgment of the trial court should be affirmed. URL:http://www.tba.org/tba_files/TCCA/baileym_opn.WP6 Opinion-Flash STATE OF TENNESSEE vs. TRELVOR BRADLEY Court:TCCA Attorneys: FOR THE APPELLANT FOR THE APPELLEE Vance L. Baker, Jr. Charles W. Burson 114 Washington Ave. Attorney General & Reporter P.O. Box 1085 Athens, TN 37371-1085 Marvin E. Clements, Jr. Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243 0493 Judge: BYERS First Paragraph: The defendant was convicted by jury of attempted aggravated robbery and vandalism of less than $500. He was sentenced as a Range I, standard offender to six (6) years for the attempted aggravated robbery conviction to the custody of the Department of Correction. He was also sentenced to eleven (11) months and twenty-nine (29) days for the vandalism of less than $500 conviction to the custody of the McMinn County jail. The trial court ordered the defendant to serve both sentences concurrent with each other, but consecutive to a prior unserved sentence. The jury also imposed fines in the amount of $5,000 for the attempted aggravated robbery conviction and $1,500 for the vandalism of less than $500 conviction. URL:http://www.tba.org/tba_files/TCCA/bradley_cca.WP6 Opinion-Flash STATE OF TENNESSEE vs. BRENDA ANNE BURNS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: DAVID L. RAYBIN JOHN KNOX WALKUP Hollins, Wagster & Yarbrough, P.C. Attorney General and Reporter 2210 SunTrust Center 424 Church Street WILLIAM DAVID BRIDGERS Nashville, TN 37219 Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 ROBERT RADFORD District Attorney General P. O. Box 686 Huntingdon, TN 38344 Judge:SMITH First Paragraph: On October 19, 1995, a Henry County Circuit Court jury found Appellant Brenda Anne Burns guilty of first-degree murder. Appellant received a sentence of life imprisonment. URL:http://www.tba.org/tba_files/TCCA/burns_opn.WP6 Opinion-Flash STATE OF TENNESSEE vs. MICHAEL ANTHONY COLE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: C. MICHAEL ROBBINS JOHN KNOX WALKUP 202 S. Maple Street, Suite C Attorney General and Reporter Covington, TN 38019 JANIS L. TURNER GEORGE MORTON GOOGE Asst Attorney General District Public Defender 425 5th Avenue North 227 West Baltimore Street Nashville, TN 37243 Jackson, TN 30301 JERRY WOODALL District Attorney General JAMES W. THOMPSON Asst District Attorney General Lowell Thomas State Office Bldg Jackson, TN 38301 Judge:WELLES First Paragraph: The Defendant, Michael Anthony Cole, appeals as of right the trial court's revocation of his sentence to community corrections. The Defendant pleaded guilty to one count of felony theft of property over $10,000, a Class C felony, for stealing a Chevrolet pickup truck. He was sentenced to six (6) years, with sixty (60) days to be served in the workhouse and the balance of five (5) years and ten (10) months to be served in community corrections. He was fined one hundred dollars ($100), ordered to pay one hundred eighty dollars ($180) in restitution and provide 250 hours of community service. He was also ordered to stay away from the victim's business. In his one issue in this appeal, he contends that the trial judge abused his discretion in revoking his sentence to community corrections. We affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCCA/colema_opn.WP6 Opinion-Flash STATE OF TENNESSEE vs. KAREN A. DOWNEY Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: DAVID L. LEONARD (on appeal) JOHN KNOX WALKUP Leonard & Kershaw Attorney General & Reporter 128 So. Main St. Ste. 102 Greeneville, TN 37743 GEORGIA BLYTHE FELNER Counsel for the State FRANK X. SANTORE (at trial) Criminal Justice Division P.O. Box 113 450 James Robertson Parkway Greeneville, TN 37744 Nashville, TN 37243-0493 H. GREELEY WELLS, JR. District Attorney General JACK LEWIS COMBS, JR. Asst District Attorney General P.O. Box 526 Blountville, TN 37617-0526 Judge: WITT First Paragraph: The defendant, Karen A. Downey, pleaded guilty in the Sullivan County Criminal Court to one count of theft of property valued at five hundred dollars or less, a Class A misdemeanor. Tenn. Code Ann. S 39-14-105(1). The conviction arose out of a shoplifting incident that occurred on March 29, 1996 in which the defendant took a watch, an ankle bracelet and various earrings and pins, worth $24.41 altogether, from Hill's Department Store. At the conclusion of the sentencing hearing, the trial judge denied probation and sentenced her to serve eleven months and twenty-nine days in the county jail. In this direct appeal, the defendant alleges that the sentence is excessive and that the trial court erred in not granting her probation. URL:http://www.tba.org/tba_files/TCCA/downeyk_opn.WP6 Opinion-Flash STATE OF TENNESSEE vs. ROGER LEE FLEENOR Court:TCCA Attorneys: For the Appellant: For the Appellee: Larry S. Weddington Charles W. Burson 200 Seventh Street Attorney General and Reporter Bristol, TN 37620 Peter M. Coughlan Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493 H. Greeley Wells, Jr. District Attorney General Teresa Murray Smith Asst. District Attorney General Blountville TN 37617 Judge:Hayes First Paragraph: The appellant, Roger Lee Fleenor, appeals the sentence imposed by the Sullivan County Criminal Court upon his plea of guilty to the offense of attempt to commit aggravated sexual battery, a class C felony. Pursuant to a negotiated plea, the appellant received a sentence of eight years as a range II offender. The manner of service of the sentence was submitted to the trial court for determination. Following a sentencing hearing, the trial court denied any form of alternative sentence and ordered that the sentence be served in the Department of Correction. The appellant now appeals this decision. URL:http://www.tba.org/tba_files/TCCA/fleenorr_opn.WP6 Opinion-Flash STATE OF TENNESSEE vs. RICKY LEE JARNAGIN Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: CHARLES G. CURRIER JOHN KNOX WALKUP 709 Market St. Attorney General & Reporter Knoxville, TN 37902 MARVIN E. CLEMENTS, JR. Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493 C. BERKELEY BELL District Attorney General 109 E. Main St., Ste. 501 Greenville, TN 37743 VICTOR VAUGHN Asst District Attorney General 520 Allison St. Morristown, TN 37814 Judge:WITT First Paragraph: The defendant, Ricky Lee Jarnagin, was convicted in a jury trial in the Hamblen County Criminal Court of reckless aggravated assault, a Class D felony. As a Range I, standard offender, he received a four-year sentence in the Department of Correction and a one thousand dollar fine. In this direct appeal, the defendant challenges the sufficiency of the evidence and contends that he received an inappropriate sentence. URL:http://www.tba.org/tba_files/TCCA/jrnagnr_opn.WP6 Opinion-Flash THOMAS C. MANEY, JR. vs. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: THOMAS C. MANEY, JR., JOHN KNOX WALKUP Pro Se Attorney General and Reporter Register Number 216056 Route 1, Box 330 Tiptonville, TN 38079-9775 MARVIN E. CLEMENTS, JR. Asst Attorney General 425 5th Avenue North Nashville, TN 37243 JERRY N. ESTES District Attorney General RANDY G. ROGERS Asst District Attorney General 204 North Jackson Athens, TN 37303 Judge:WELLES First Paragraph: The Defendant appeals the trial court's dismissal of his petition for post-conviction relief. The single issue presented for our review is whether the trial court erred in its determination that the petition was barred by the statute of limitations. We conclude that the petition is not time-barred. We therefore reverse the judgment of the trial court and remand this case for further proceedings. URL:http://www.tba.org/tba_files/TCCA/maneytc_opn.WP6 Opinion-Flash JAMES R. MILLER vs. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JAMES R. MILLER, #135058 JOHN KNOX WALKUP South Central Correctional Facility Attorney General & Reporter Annex XF-134 P.O. Box 279 KENNETH W. RUCKER Clifton, TN 38425-0279 Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493 Judge: WITT First Paragraph: The petitioner, James R. Miller, appeals pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure from the trial court's denial of his "Petition for Breach of Bargaining Agreement." On March 7, 1996, Miller filed his pro-se petition in which he alleged that the state had breached his plea agreement by failing to release him from confinement when he had served the mandatory thirty percent as a Range I offender. The issue presented for review is whether the trial court correctly dismissed the petition without an evidentiary hearing because it was barred by the statute of limitations and because the petitioner requested relief which the trial court had no authority to grant. We affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCCA/millerj_opn.WP6 Opinion-Flash CHRIS KENDAL TIPTON vs. STATE OF TENNESSEE Court:TCCA Attorneys: For the Appellant: For the Appellee: VICTORIA L. DiBONAVENTURA CHARLES W. BURSON P. O. Box 1231 Attorney General and Reporter Paris, TN 38242 DEBORAH A. TULLIS Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493 ROBERT "GUS" RADFORD District Attorney General Post Office Box 686 Huntington, TN 38344 Judge:Hayes First Paragraph: The appellant, Chris Kendal Tipton, appeals the Henry County Circuit Court's dismissal of his petition for post-conviction relief. On November 18, 1992, a jury found the appellant guilty of one count of aggravated rape. Following the sentencing hearing, the trial court imposed a sentence of twenty years in the Department of Correction. His conviction and sentence were affirmed by this court on direct appeal. See State v. Tipton, No. 02C01-9305-CC-00099 (Tenn. Crim. App. at Jackson, May 4, 1994), perm. to appeal denied, (Tenn. Sept. 12, 1994). An amended petition for post-conviction relief was filed on November 27, 1995. Subsequently, an evidentiary hearing was held and, on April 16, 1996, the post-conviction court dismissed the petition finding that the appellant's claims were previously determined by this court on direct appeal and that the record is void of an abridgement of any constitutional right. In this appeal, the appellant alleges that he was denied his constitutional right to the effective assistance of trial counsel. URL:http://www.tba.org/tba_files/TCCA/tiptonck_opn.WP6 Opinion-Flash STATE OF TENNESSEE vs. QUANTREAL UNDERWOOD Court:TCCA Attorneys: For Appellant: For Appellee: Marvin E. Ballin, Attorney Charles W. Burson and Attorney General & Reporter Mark A. Mesler, Attorney Ballin, Ballin & Fishman, P.C. Ruth Thompson 200 Jefferson Avenue Counsel for the State Suite 1250 450 James Robertson Parkway Memphis, TN 38103 Nashville, TN 37243-0493 James A. Wax, Jr. and Karen Cook Asst District Attorneys General 201 Poplar Avenue, Third Floor Memphis, TN 38103 Judge: WADE First Paragraph: The defendant, Quantreal Underwood, was convicted of second degree murder and two counts of aggravated robbery. The trial court imposed a Range I, twenty-five-year sentence for second degree murder and two concurrent eight-year sentences on each count of aggravated robbery. URL:http://www.tba.org/tba_files/TCCA/underwoq_opn.WP6 Opinion-Flash STATE OF TENNESSEE vs. FREDRICK BURTON ZONGE Court:TCCA Attorneys: For the Appellant: For the Appellee: Joseph P. Atnip Charles W. Burson District Public Defender Attorney General of Tennessee P.O. Box 734 and Dresden, TN 38225 Charlotte H. Rappuhn Asst Attorney General of Tennessee 450 James Robertson Parkway Fredick Burton Zonge Nashville, TN 37243-0493 (Pro se at Trial) Thomas A. Thomas District Attorney General 414 S. Fourth, P.O. Box 218 Union City, TN 38261-0218 Judge: Tipton First Paragraph: The defendant, Fredrick Burton Zonge, was convicted in a jury trial in the Criminal Court of Obion County of especially aggravated kidnapping, a Class A felony, especially aggravated burglary, a Class B felony, aggravated assault, a Class C felony, and theft of property valued at over one thousand dollars, a Class D felony. He was sentenced as a Range II, multiple offender to thirty-five years, fifteen years, eight years and five years, respectively, to be served concurrently to one another but consecutively to a prior unserved sentence in the custody of the Department of Correction. The defendant was also fined $25,000 for the especially aggravated kidnapping, $15,000 for the especially aggravated burglary, $5,000 for the aggravated assault, and $2,500 for the theft over $1,000. URL:http://www.tba.org/tba_files/TCCA/zonge-fb_opn.WP6

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