TBALink Opinion-Flash

November 3, 1997 -- Volume #3 -- Number #111

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
03-New Opinons From TSC-Workers Comp Panel
13-New Opinons From TCA
20-New Opinons From TCCA

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George Dean
TBALink Chief Editor


EDWARD DOUGLAS ATKINS 
vs.                            
ARGONAUT INSURANCE COMPANY

Court:TSC - Workers Comp Panel

Attorneys:
For Appellant:                          For Appellee:

Stephen K. Heard                        William L. Underhill
Stewart, Estes & Donnell                Madison, Tennessee
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.  At the trial, the only
issue was the extent of the claimant's permanent partial disability. 
In this appeal, the employer's insurer, Argonaut, contends the trial
judge (1) erred in accepting the opinion testimony of an examining
physician over that of the treating physician and (2) erred in using a
multiplier of 4.9 times the medical impairment to determine the
claimant's permanent partial disability.  As discussed below, the
panel has found no reversible error but concluded the award of
permanent partial disability benefits should be modified.

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

CHARLES C. JONES,                          
vs.                                     
TRIDON and LIBERTY MUTUAL      
INSURANCE COMPANY,                                                                                                     
and                                                                                                                        
ROYAL INSURANCE COMPANY

Court:TSC - Workers Comp Panel

Attorneys:
For Appellants:                         For Appellee, Jones:

Luther E. Cantrell, Jr.                 Jim Wiseman
Davies, Cantrell & Humphrey             Sally Schneider
Nashville, Tennessee                    Murfreesboro, Tennessee

                                        For Appellee, 
                                        Royal Insurance Company:

                                        Randolph A. Veazey
                                        Glasgow & Veazey
                                        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
defendants-appellants contend (1) the evidence preponderates against
the trial court's finding of an injury by accident, (2) the evidence
preponderates against the trial court's finding that the claimant's
injury was one arising out of the employment, (3) the trial court
exceeded its authority under an agreed order, and (4) the evidence
preponderates against the trial court's award of medical and temporary
total disability benefits.  As discussed below, the panel has
concluded the award of medical and temporary total disability benefits
should be reversed and the judgment otherwise affirmed.

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

ROXIE MOOREHEAD
vs.
LINCOLN & DONALSON CARE     
CENTER

Court:TSC - Workers Comp Panel

Attorneys:
For the Appellant:                      For the Appellee:

Helen Sfikas Rogers                     Floyd Don Davis
SunTrust Bank Building, Ste 1550        Floyd Don Davis, P.C.
201 Fourth Avenue North                 201 First Avenue, N.W.
Nashville, TN 37219                     Winchester, TN 37398
                          
Judge:INMAN

First Paragraph:

The issue is this case is whether the replacement of the plaintiff's
right knee was causally related to a compensable accident within the
purview of applicable law.  The trial judge found the issue in favor
of the plaintiff and awarded benefits based upon a determination that
she had an 85 percent permanent partial disability to her right leg. 
The employer appeals, insisting that the judgment is contrary to the
preponderance of the evidence.

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

DAVID ALCAZAR
vs.
CHRISTOPHER HAYES
and                     
GOVERNMENT EMPLOYEES        
INSURANCE COMPANY

Court:TCA

Attorneys:

For Appellant                       For Appellee

JIMMY W. BILBO                      DONALD W. STRICKLAND
Logan, Thompson, Miller, Bilbo,     Grant, Konvalinka & Harrison, P.C.
Thompson & Fisher, P.C.             Chattanooga, Tennessee
Cleveland, Tennessee
                          
Judge:Susano

First Paragraph:

This appeal causes us to focus on the uninsured motorist provisions of
an automobile insurance policy issued by Government Employees
Insurance Company ("GEICO") to Deborah Wheatley, the mother of the
plaintiff David Alcazar.  When this action was commenced, process was
issued and served on GEICO pursuant to the provisions of T.C.A. S
56-7-1201, et seq., the Tennessee uninsured motorist statutes.  The
trial court granted GEICO's motion for summary judgment, finding that
the plaintiff had failed to comply with the notice requirements of
GEICO's policy.  Plaintiff appealed, arguing, in his words, that the
trial court "err[ed] in granting [GEICO's] motion for summary
judgment, on the basis that timely notice was a condition precedent to
recovery under the policy, absent a finding of unreasonable delay or
prejudice to the insurer."  We affirm.

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

MARCELLA  J. CHEEK      
vs.
MARGARET CULEPPER,          
COMMISSIONER OF             
EMPLOYMENT SECURITY and 
GALEN INTERNAL MEDICAL  
GROUP, P.C.,                

Court:TCA

Attorneys:

Cynthia R. Freemon, Chattanooga, Attorney for Appellant Galen Internal
Medical Group, P.C.

Randy Sellers, Cleveland, Attorney for Appellee Marcella J. Cheek.
                          
Judge:INMAN

First Paragraph:

The Appeals Tribunal and the Board of Review held that this appellee
was disqualified to receive unemployment insurance benefits because
she voluntarily quit her job without good cause.  Judicial review was
sought by the appellee, and the decision of the Board of Review was
reversed by the Chancellor, who found that "there was no substantial
evidence to support the finding of fact that the petitioner's shift
change was temporary."  The employer appeals and presents for review
the propriety of the reversal of the decision of the Board of Review.

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

RONALD STEPHEN COFER
vs.
LYNDA SUSAN DAVIS COFER

Court:TCA

Attorneys:

D. Mitchell Bryant, Cleveland, for Appellant.

Ron D. Powers, Chattanooga, for Appellee.
                          
Judge:INMAN

First Paragraph:

The appellant argues that (1) the Court erred in awarding both parties
a divorce, insisting that she should have been awarded a divorce; (2)
the Court failed to award her sufficient alimony; (3) the Court should
have awarded the entire interest in the marital residence to her,
rather than a 50 percent interest; (4) the Court failed to award her a
reasonable attorney fee.

URL:http://www.tba.org/tba_files/TCA/cofer_ca3.WP6
Opinion-Flash

FIRST AMERICAN NATIONAL BANK
vs.
JAMES FITZGERALD and        
ERIC M. GEORGESON

Court:TCA

Attorneys:

Neal S. Melnick and Lawrence E. Ault, Knoxville, for Appellants.

Cheryl E. Light, Knoxville, for Appellee.
                          
Judge:INMAN

First Paragraph:

This is a suit on a promissory note executed on January 18, 1994 by
the defendant James Fitzgerald to the plaintiff.  The payment of this
note was guaranteed by the defendant Eric M. Georgeson, who executed a
separate document.  Each document appears to be facially regular and
routine.

URL:http://www.tba.org/tba_files/TCA/fanb-fit_coa.WP6
Opinion-Flash
    
STATE OF TENNESSEE  
DEPARTMENT OF HUMAN 
SERVICES
vs.
LISA PICKETT BRANDT MANIER

Court:TCA

Attorneys:

Dale W. Peterson, Woodbury, Tennessee
Attorney for Defendant/Appellant.

John Knox Walkup, Attorney General & Reporter
Douglas Earl Dimond, Assistant Attorney General
Attorney for Plaintiff/Appellee.                          

Judge:FARMER

First Paragraph:

This is a termination of parental rights case.  The children involved
are Lisa Nicole Brandt a/k/a Brittany Nicole Brandt, born March 30,
1991, and Shawn Russell Brandt, born November 30, 1992.  Pursuant to a
petition filed by the State of Tennessee, Department of Human Services
(Appellee), the trial court terminated the parental rights of their
natural mother and father, Lisa Pickett Brandt Manier and Richard
Brandt.  Only Mrs. Manier has appealed from the trial court's
decision.  For the reasons set forth below, we affirm.

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

IN RE: ESTATE OF            
JAMES C. MEADER, DECEASED   

Court:TCA

Judge:INMAN

First Paragraph:

The decedent, James C. Meader, died testate in Bledsoe County,
Tennessee on May 23, 1995.  His will was duly propounded for probate
and letters testamentary were issued to his widow, Virginia Meader.

URL:http://www.tba.org/tba_files/TCA/meader_ca3.WP6
Opinion-Flash

JANET LYNN MORGAN
vs.
MICHAEL LEE MORGAN

Court:TCA

Attorneys:

WM. STANTON MASSA, III, Knoxville, for Appellant.

PATRICK T. PHILLIPS, Knoxville, for Appellee.
                          
Judge:McMurray

First Paragraph:

Michael Lee Morgan [father] appeals from the trial court's judgment
requiring him to pay $192.50 per month child support to his ex-wife,
Janet Lynn Morgan [mother].  The sole issue on appeal is whether the
court erred by refusing to award the father child support for the
three months in the summer during which he has physical custody of the
children for a greater number of days than does the mother.

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

MACK MULLINS
vs.
LILLIAN J. MULLINS,

Court:TCA

Attorneys:

PAUL G. WHETSTONE, P.C., Morristown, for Appellant.

J. RANDALL SHELTON, Morristown, for Appellee.
                          
Judge:Franks

First Paragraph:

In this divorce action, both husband and wife have raised issues on
appeal.

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

STEWART WAYNE PAIT
vs.
CITY OF GATLINBURG, TENNESSEE     
and HARRY MONTGOMERY

Court:TCA

Attorneys:
For Appellant                   For Appellees

STEWART WAYNE PAIT, Pro Se      RONALD E. SHARP
Pikeville, Tennessee            Sharp & Ripley
                                Sevierville, Tennessee
                          
Judge:Susano

First Paragraph:

Stewart Wayne Pait (Pait), an inmate at the Southeastern Tennessee
State Regional Correctional Facility, filed suit against the City of
Gatlinburg and its Chief of Police seeking access to police files
pertaining to his two criminal cases.  Pait's action was filed
pursuant to T.C.A. SS 10-7-503(a) (Supp. 1996) and 10-7 505(a), which
provide for inspection of public records by "any citizen" of
Tennessee.  The defendants filed a motion to dismiss the complaint on
the ground that, as a result of Pait's felony convictions, he was not
a "citizen" within the meaning of T.C.A. SS 10-7-503(a) and
10-7-505(a).  The trial court granted the defendants' motion, and Pait
appealed, arguing that his convictions do not exclude him from the
ambit of T.C.A. SS 10-7 503(a) (Supp. 1996) and 10-7-505(a).  We
affirm.

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

GERALD POATS and               
CECILIA E. POATS
vs.
CHARLES E. NELSON

Court:TCA

Attorneys:
For Appellants                  For Appellee

BOYD W. VENABLE, III            JEFFREY L. CUNNINGHAM
Shanks & Blackstock             Carter, Harrod & Cunningham
Knoxville, Tennessee            Athens, Tennessee
                          
Judge:Susano

First Paragraph:

This case arose out of a contract for the sale of real estate.  The
plaintiffs, Gerald Poats and his wife Cecilia E. Poats (collectively,
"the Poats"), sued Charles E. Nelson ("Nelson"), claiming that Nelson
had breached a contract for the conveyance of two lots in an "airpark"
subdivision with access to the McMinn County Airport.  At the close of
the Poats' proof, the trial court granted Nelson's motion to dismiss
the complaint pursuant to Rule 41.02(2), Tenn.R.Civ.P.  The Poats
appealed.

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

MARION SHOFNER, Individually            
and as personal representative of           
the estate of Danny Shofner         
deceased                        
vs.
RED FOOD STORES (TENNESSEE)
INC., CORKER PROPERTIES III         
LTD. and CORKER DEVELOPMENT 
CORPORATION

Court:TCA

Attorneys:
DOYLE E. RICHARDSON
Rogers, Richardson & Duncan
100 North Spring Street
Manchester, Tennessee 37355
ATTORNEY FOR PLAINTIFF/APPELLANT

PATRICK A. FLYNN
P.O. Box 90
Columbia, Tennessee 38402-0090
ATTORNEY FOR DEFENDANTS/APPELLEES
                          
Judge: LEWIS

First Paragraph:

This is an appeal from the decision of the Bedford County Circuit
Court.  Plaintiff/appellant, Marion Shofner, claims the circuit court
erred when it granted directed verdicts in favor of
defendant/appellees, Corker Properties III, Ltd. ("Corker Properties")
and Corker Development Corporation ("Corker Development").  Plaintiff
also claims the court erred in ordering her to pay discretionary
costs.

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

VOLUNTEER BEER, INC.
vs.
RALPH W. JOHNSON, JR.

Court:TCA

Attorneys:
G. KLINE PRESTON, IV
Nashville, Tennessee
Attorney for Appellant

LAURENCE M. McMILLAN, JR.
CUNNINGHAM, MITCHELL, HICKS & McMILLAN
Clarksville, Tennessee
Attorney for Appellee                          

Judge: HIGHERS

First Paragraph:

Plaintiff Volunteer Beer, Inc. (VBI), appeals the trial court's final
judgment dismissing its claim for fraudulent registration of trademark
against Defendant/Appellee Ralph W. Johnson, Jr.  The trial court
granted summary judgment to Johnson based on the court's conclusion
that Johnson did not intend to deceive anyone when he made a false
statement on his trademark application.  We reverse because we
conclude that Johnson's affidavit regarding his state of mind at the
time he completed the trademark application was an insufficient basis
upon which to grant summary judgment.

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

MARY HELEN WHITTLE  
WOLFE,              
vs.
JOHN TROY WOLFE

Court:TCA

Attorneys:

John P. Konvalinka and Antonio L. Matthews, Chattanooga, for
Appellant.

Glenna M. Ramer, Chattanooga, for Appellee.
                          
Judge:INMAN

First Paragraph:

The monetary terms of the dissolution of the appellant's eighth (8th)
marriage were not satisfactory to her, and she appeals.

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

STATE OF TENNESSEE
vs.
PATSY O. BAKER

Court:TCCA

Attorneys:
FOR THE APPELLANT:                  FOR THE APPELLEE:

PHILIP A. CONDRA                    JOHN KNOX WALKUP
District Public Defender            Attorney General and Reporter
12th Judicial Distirct
P. O. Box 220                       KAREN YACUZZO
Jasper, TN  37347                   Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN  37243

                                    J. MICHAEL TAYLOR
                                    District Attorney General

                                    STEVEN M. BLOUNT
                                    Assistant District Attorney
                                    1 South Jefferson St.
                                    Winchester, TN  37398                          

Judge: SMITH

First Paragraph:

Appellant Patsy O. Baker appeals from a jury verdict rendered in the
Franklin County Circuit Court finding her guilty of (1) simple
possession of a Schedule VI controlled substance, (2) evading arrest,
and (3) failure to stop at a stop sign.  After a sentencing hearing,
Appellant received the following respective sentences for the offenses
listed above:  (1) eleven months and nineteen days of probation to be
effective after service of ten days in the Franklin County Jail, $250
fine, and 100 hours of community service on the conviction for simple
possession; (2) a concurrent term of eleven months and twenty-nine
days of probation on the conviction for evading arrest; and (3) thirty
days of probation on the conviction for failure to stop at a stop
sign.  Appellant presents three issues for consideration on this
direct appeal:  (1) whether the trial court erred in overruling
Appellant's motion to dismiss based on allegations of illegal seizure
of Appellant without probable cause; (2) whether the trial court
properly allowed a police officer to testify regarding the purposes of
an affidavit of complaint; and (3) whether the trial court properly
sentenced Appellant in compliance with Tennessee Code Annotated
Section 40-35-101 et seq.  After a review of the record, we affirm the
conviction.

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

STATE OF TENNESSEE
vs.
KATHY BALL

Court:TCCA

Attorneys:

FOR THE APPELLANT                   FOR THE APPELLEE

Thomas V. Testerman                 John Knox Walkup
301 East Broadway                   Attorney General and Reporter
Newport, Tennessee 37821            450 James Robertson Parkway
                                    Nashville, Tennessee 37243-0493
                    
                                    Eugene J. Honea                                     
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, Tennessee 37243-0493

                                    Alfred C. Schmutzer, Jr.
                                    District Attorney General
                                    Sevier County Courthouse
                                    125 Court Avenue, Suite 301-E
                                    Sevierville, Tennessee 37862

                                    James B. Dunn
                                    Asst District Attorney General
                                    339-A East Main Street
                                    Newport, Tennessee 37821                          

Judge: BARKER

First Paragraph:

The Appellant, Kathy Ball, appeals as of right her conviction and
sentence for solicitation of first degree murder.  She argues on
appeal that she was improperly convicted of an offense not contained
in the indictment and that her sentence was excessive.

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

OTHA BOMAR
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:                      FOR THE APPELLEE:

JENNIFER L. SMITH (on appeal)           JOHN KNOX WALKUP
Attorney at Law                         Attorney General & Reporter
P.O. Box 92547
Nashville, TN  37209                    PETER M. COUGHLAN
                                        Assistant Attorney General
STEPHEN F. WOOD, JR. (at hearing)       Criminal Justice Division
Attorney at Law                         450 James Robertson Parkway
424 Church St., Ste. 2000               Nashville, TN 37243-0493    
Nashville, TN  37219
                                        VICTOR S. JOHNSON III
                                        District Attorney General

                                        KYMBERLY HAAS
                                        Asst District Attorney General
                                        Washington Square
                                        222 Second Ave. N, Ste. 500
                                        Nashville, TN  37201-1649                          

Judge: WITT 

First Paragraph:

The appellant, Otha Bomar, appeals the Davidson County Criminal
Court's denial of his petition for post-conviction relief.  Bomar is
presently serving a 20-year sentence for second degree murder.  State
v. Otha Bomar, No. 01C01-9203-CC-00065 (Tenn. Crim. App., Nashville,
Dec. 10, 1992), perm. app. denied (Tenn. 1993).  In his amended
petition, Bomar alleged his conviction was infirm in numerous
respects.  Following a hearing, the lower court found all of his
claims without merit.

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

STATE OF TENNESSEE
vs.
ANTHONY DARDEN

Court:TCCA

Attorneys:

For Appellant:                          For Appellee:
    
John E. Rodgers, Jr.                    Charles W. Burson
Lackey, Rodgers, Price & Snedeker       Attorney General and Reporter
Suite 1230, First American Center           
315 Deaderick Street                    Daryl J. Brand
Nashville, TN.  37238-1230              Assistant Attorney General
                                        Criminal Justice Division
                                        450 James Robertson Parkway
                                        Nashville, TN.  37243                                   
                                        
                                        Victor S. Johnson III
                                        District Attorney General
                                        Suite 500,Washington Sq Bldg
                                        222 Second Avenue North
                                        Nashville, TN. 37201

                                        Dan Hamm                
                                        Asst District Attorney General
                                        Suite 500,Washington Sq Bldg
                                        222 Second Avenue North
                                        Nashville, TN. 37201                          

Judge: BARKER

First Paragraph:

The appellant, Anthony Darden, appeals the sentences he received in
the Criminal Court, Division III, of Davidson County.  The appellant
pled guilty and was sentenced on two counts of possession with intent
to sell .5 grams or more of a substance containing cocaine, a Class B
felony, and one count of selling less than .5 grams of a substance
containing cocaine, a Class C felony.  The trial court sentenced the
appellant, as a range I standard offender, to serve ten years in the
Department of Correction and to pay the minimum mandatory two thousand
($2000) dollar fine for each count of possession with intent to sell
.5 grams or more of cocaine, and to serve five years for the selling
of less than .5 grams of a substance containing cocaine.  The
sentences were ordered to run consecutively for an effective sentence
of twenty five years.

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

STATE OF TENNESSEE
vs.
RUSSELL DAVID FARMER

Court:TCCA

Attorneys:
For the Appellee:                   For the Appellant:

R. Eugene Pennington                Charles W. Burson       
P. O. Box 832                       Attorney General and Reporter
Athens, TN  37371-0832  
                                    Merrilyn Feirman
Randy G. Rogers                     Assistant Attorney General                            
P. O. Box 507                       Criminal Justice Division
Athens, TN  37371-0507              450 James Robertson Parkway
                                    Nashville, TN 37243-0493                
                        
                                    Jerry N. Estes
                                    District Attorney General
                                    P. O. Box 647
                                    Athens, TN  37371-0647                          

Judge: Hayes

First Paragraph:

The defendant, Russell David Farmer, and his two co-defendants were
convicted of second degree murder, burglary, and two counts of theft,
resulting from the September 6, 1990, beating death of Bill White. 
Their convictions were affirmed by a panel of this court on July 8,
1993.  See State v. Farmer, No. 03C01 9206-CR-00196 (Tenn. Crim. App.
at Knoxville, July 8, 1993).  However, finding that "some of the
enhancement factors used by the judge [were] inappropriate, and
because the court did not delineate which factors applied to which
offense," the panel remanded the case to the trial court for a new
sentencing hearing.  Id.

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

CHARLES GATES
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:
FOR THE APPELLANT:              FOR THE APPELLEE:

Mary Ann Stackhouse             John Knox Walkup
Attorney at Law                 Attorney General & Reporter
9509 Ravenel Lane                   500 Charlotte Avenue
Knoxville, TN 37922             Nashville, TN 37243-0497

                                Sarah M. Branch
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN 37243-0497

                                Jerry N. Estes
                                District Attorney General
                                P.O. Box 647
                                Athens, TN 37371

                                John A. Rehyansky
                                Asst District Attorney General
                                P.O. Box 1351
                                Cleveland, TN 37364-1351                          
    
Judge:Jones

First Paragraph:

The appellant, Charles Gates (petitioner), appeals as of right from a
judgment of the  trial court dismissing his action for post-conviction
relief following an evidentiary hearing.  In this Court, the
petitioner contends the evidence contained in the record preponderates
against the judgment rendered by the trial court.  He argues he was
denied his constitutional right to the effective assistance of counsel
because (a) counsel permitted him to plead guilty in view of the
evidence, (b) counsel failed to file an appropriate post-plea motion
after permitting him to plead guilty, and (c) counsel gave erroneous
advice which resulted in pleas of guilty that were not voluntarily,
understandingly, and knowingly entered.   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/gatesc_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
JAMES DAVID HARRIS

Court:TCCA

Attorneys:

FOR THE APPELLANT:                      FOR THE APPELLEE:


MART S. CIZEK                           JOHN KNOX WALKUP
245 North Main St., Suite 100           Attorney General & Reporter
Clinton, TN   37716
     (On appeal)                        TIMOTHY F. BEHAN
                                        Asst. Attorney General
TOM MARSHALL                            450 James Robertson Pkwy.   
District Public Defender                Nashville, TN  37243-0493
101 S. Main St.             
Clinton, TN   37716                     JAMES N. RAMSEY
     (At trial)                         District Attorney General

                                        JAN HICKS
                                        Asst. District Atty General
                                        Anderson County Courthouse
                                        Clinton, TN   37716                          

Judge:PEAY

First Paragraph:

The defendant was initially convicted in 1988 of attempted
first-degree murder with bodily injury.  He was granted
post-conviction relief in June 1991 on the basis of ineffective
assistance of counsel.  Following the State's appeal through our
Supreme Court of that decision and appointment of a new trial judge,
he was retried in November 1995 and convicted of assault with intent
to commit first-degree murder.  After a hearing he was sentenced as a
Range I standard offender to twenty-three years incarceration.

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

WILLIAM JOSEPH HAYES
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:
FOR THE APPELLANT:                      FOR THE APPELLEE:


WILLIAM JOSEPH HAYES, pro se            JOHN KNOX WALKUP
Turney Center Industrial Prison         Attorney General & Reporter
Unit 4-B
Route 1, Turney Center                  PETER M. COUGHLAN
Only, TN   37140-9709                   Asst. Attorney General
                                        450 James Robertson Pkwy.                               
                                        Nashville, TN  37243-0493
                
                                        JOSEPH D. BAUGH
                                        District Attorney General
                                        P. O. Box 937
                                        Franklin, TN 37065                          

Judge: PEAY

First Paragraph:

The petitioner pled guilty to one count of solicitation to commit
first degree murder and was sentenced pursuant to a plea-bargain as a
Range I standard offender to eight years incarceration in the
Tennessee Department of Correction.  Judgment was entered on August
25, 1994.  On May 3, 1996, the petitioner filed for post-conviction
relief alleging that he had pled guilty as a result of ineffective
assistance of counsel.  The court below summarily dismissed the
petition on the grounds that "measured against the court record, the
petition for post conviction relief is without merit."  The petitioner
now appeals, claiming that he was entitled to a hearing on his
post-conviction claims.  We agree and reverse and remand this matter
for an evidentiary hearing.

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

STATE OF TENNESSEE
vs.
JEFFREY D. HUNTER

Court:TCCA

Attorneys:
For Appellant:                  For Appellee:
John S. Colley, III             Charles W. Burson
Colley & Colley, Attorneys      Attorney General & Reporter
P.O. Box 1476 
Columbia, TN  38402-1476        Lisa A. Naylor 
                                Assistant Attorney General
                                Criminal Justice Division 
                                450 James Robertson Parkway
                                Nashville, TN  37243-0493           
                                Jeff Burks 
                                Asst District Attorney General
                                P.O. Box 937 
                                Franklin, TN  37065-0937                              

Judge: WADE

First Paragraph:

The defendant, Jeffrey D. Hunter, appeals the trial court's revocation
of his probation.  The trial court ordered the defendant to serve
consecutive terms of two, two, one, and eight years, a total of
thirteen years, and directed a transfer to the Department of
Correction Special Needs Facility pursuant to Tenn. Code Ann. S
40-35-314(e).

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

CARL HYSON, JR.
vs.
HOWARD CARLTON and          
STATE OF TENNESSEE  

Court:TCCA

Attorneys:
FOR THE APPELLANT:                  FOR THE APPELLEES:


CARL HYSON, JR., pro se             JOHN KNOX WALKUP
# 236076 NECC                       Attorney General & Reporter
POB 5000
Mountain City, TN   37683           MICHAEL J. FAHEY, II
                                    Asst. Attorney General
                                    450 James Robertson Pkwy.                               
                                    Nashville, TN  37243-0493
                
                                    DAVID CROCKETT
                                    District Attorney General
                                    Rt. 19, Box 99
                                    Johnson City, TN   37601                          

Judge:PEAY

First Paragraph:

The petitioner filed his petition for writ of habeas corpus on August
8, 1996, alleging that his 1994 convictions for aggravated sexual
battery must be set aside pursuant to this Court's opinion in State v.
Roger Dale Hill, Sr., No. 01C01 9508-CC-00267, Wayne County (Tenn.
Crim. App. filed June 20, 1996, at Nashville).  Specifically, he
claims that the indictment charging him with multiple counts of
aggravated rape fails to allege an essential element of the crimes and
his convictions must therefore be set aside.  The court below
summarily denied the petition on the grounds that it failed to state a
basis for relief.  The petitioner appeals.

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

STATE OF TENNESSEE
vs.
ROBERT GERRY JERNIGAN

Court:TCCA

Attorneys:                          

Judge: PEAY

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/jernigan_ord.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
PATRICK K. LEWIS, II,           
PATRICK K. LEWIS and            
DONNA LEWIS

Court:TCCA

Attorneys:
FOR THE APPELLANT:                  FOR THE APPELLEE:


DAVID L. RAYBIN                     JOHN KNOX WALKUP
2210 SunTrust Center                Attorney General & Reporter
424 Church St.
Nashville, TN   37219               LISA A. NAYLOR
       (On appeal)                  Asst. Attorney General
                                    450 James Robertson Pkwy.   
                                    VIRGINIA LEE STORY              
                                    Nashville, TN  37243-0493
136 4th Ave. S.             
P.O. Box 1608                       JOSEPH D. BAUGH
Franklin, TN   37065                District Attorney General
         (At trial)
                                    JEFF BURKS
WILLIAM DON YOUNG, JR.              Asst. District Attorney General
227 Bridge St.                      P.O. Box 937
Franklin, TN   37064                Franklin, TN   37065
         (At trial)                               

Judge:PEAY

First Paragraph:

Defendant Patrick K. Lewis, II ("Kelly") was indicted for driving
under the influence, possession of marijuana, felony reckless
endangerment, and evading arrest.  Defendant Patrick K. Lewis ("Mr.
Lewis"), Kelly's father, was indicted for evading arrest, being an
accessory after the fact in the evasion of an arrest, and tampering
with evidence.  Defendant Donna Lewis ("Mrs. Lewis"), Kelly's mother,
was indicted for aiding in an evasion of arrest, being an accessory
after the fact in the evasion of an arrest, and two counts of
tampering with evidence.  All cases were consolidated for trial.  The
jury convicted Kelly of simple (misdemeanor) possession of marijuana,
felony reckless endangerment, and evading arrest.  It convicted Mr.
and Mrs. Lewis of evading arrest and Mrs. Lewis of one count of
tampering with evidence.  The trial court subsequently entered a
judgment of acquittal on the tampering with evidence conviction.

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

NOAH H. LUNDY
vs.
HOWARD CARLTON and      
STATE OF TENNESSEE  

Court:TCCA

Attorneys:
FOR THE APPELLANT:                  FOR THE APPELLEES:


NOAH LUNDY, pro se                  JOHN KNOX WALKUP        
Inmate # 72638                      Attorney General & Reporter
P.O. Box 5000
N.E.C.C., Unit #14-217              MICHAEL J. FAHEY, II        
Mountain City, TN  37683            Asst. Attorney General
                                    450 James Robertson Pkwy.
                                    Nashville, TN  37243-0493

                                    DAVID CROCKETT
                                    District Attorney General
                                    Route 19, Box 99
                                    Johnson City, TN  37601                          

Judge: PEAY

First Paragraph:

The petitioner filed his petition for writ of habeas corpus on August
6, 1996, alleging that his 1973 convictions for rape and crime against
nature must be set aside pursuant to this Court's opinion in State v.
Roger Dale Hill, Sr., No. 01C01 9508-CC-00267, Wayne County (Tenn.
Crim. App. filed June 20, 1996, at Nashville).  Specifically, he
claims that the indictment charging him with the crime fails to allege
the essential element of his mens rea and his conviction must
therefore be set aside.  As an alternative ground for relief, he
alleges that the district attorney general failed to sign both the
counts of the two count indictment.  The court below summarily denied
the petition on the grounds that it failed to state a basis for
relief.  The petitioner appeals.  We affirm the judgment below.

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

STATE OF TENNESSEE
vs.
CHRISTOPHER DANE MCBRIDE

Court:TCCA

Attorneys:
FOR THE APPELLANT:                  FOR THE APPELLEE:

WILLIAM A. OSBORNE                  JOHN KNOX WALKUP
Asst District Public Defender       Attorney General & Reporter
201 W. Main St., Ste. 101
Murfreesboro, TN  37130             GEORGIA BLYTHE FELNER
                                    Assistant Attorney General
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493    

                                    WILLIAM WHITESELL
                                    District Attorney General

                                    DALE ROBINSON
                                    Asst District Attorney General
                                    Judicial Bldg., Third Floor
                                    Murfreesboro, TN  37130                          

Judge: WITT 

First Paragraph:

The defendant, Christopher Dane McBride, appeals the Rutherford County
Circuit Court's denial of his post-revocation motion for reinstatement
of  probation.   Following guilty pleas to the crimes of DUI and
driving on a suspended license, McBride was sentenced to 11 months, 29
days at 75 percent service, suspended in favor of 48 hours of
confinement in the county facility, 17 months, 29 days probation,
payment of costs and fines, and revocation of his driver's license for
one year for DUI, and 6 months confinement at 75 percent, suspended in
favor of probation of 17 months, 29 days on the same conditions
imposed in the DUI conviction, for driving on a suspended license. 
The sentences were imposed consecutively.  Thereafter, the defendant's
probation was revoked when he failed to report to the Rutherford
County Jail to serve his 48 hours of confinement.  He was apparently
ordered to serve the balance of his sentence in the county jail, and
several weeks later he filed a "motion for probation," which the trial
court denied after a hearing.  In this appeal, he challenges the lower
court's denial of that motion. On review, we affirm the court below.

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

STATE OF TENNESSEE
vs.
KAREN MCKNIGHT

Court:TCCA

Attorneys:
FOR THE APPELLANT:                  FOR THE APPELLEE:

NED JACKSON COLEMAN                 JOHN KNOX WALKUP
108 North Spring Street             Attorney General and Reporter
Suite 108
Murfreesboro, TN 37130              KAREN M. YACUZZO
                                    Assistant Attorney General
                                    425 5th Avenue North
                                    Nashville, TN 37243

                                    WILLIAM WHITESELL
                                    District Attorney General
                                    Third Floor, Judicial Building
                                    Murfreesboro, TN 37130                          

Judge:SMITH

First Paragraph:

This is an appeal pursuant to Rule 3 Tennessee Rules of Appellate
Procedure, from the sentence imposed by the Criminal Court of
Rutherford County.  On appeal, Appellant Karen McKnight argues that
the trial court erred in denying her request for alternative
sentencing.  For the reasons set forth, the judgment of the trial
court is affirmed.

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

EDWARD F. NESBITT
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:
FOR THE APPELLANT:                  FOR THE APPELLEE:

WILLIAM A. LANE                     JOHN KNOX WALKUP
Attorney at Law                     Attorney General & Reporter
3236 Dilton Mankin Road
Murfreesboro, TN  37127             DARYL J. BRAND
                                    Assistant Attorney General
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493    

                                    VICTOR S. JOHNSON, III
                                    District Attorney General

                                    ROGER MOORE
                                    Asst District Attorney General
                                    222 Second Ave. North, Ste. 500
                                    Nashville, TN  37201-1649                          

Judge:WITT 

First Paragraph:

The petitioner, Edward F. Nesbitt, appeals the Davidson County
Criminal Court's dismissal of his petition for post-conviction relief.
 The petitioner is serving a ten-year sentence following his May 18,
1990 guilty plea to the crime of aggravated robbery.  In this
post-conviction action, filed December 8, 1995, he challenges his
conviction is various constitutional respects.  The lower court found
his claims barred by the one-year statute of limitations and dismissed
his petition without appointing counsel or conducting a hearing.  The
petitioner acknowledges more than three years passed between the date
of his conviction and the filing of his petition, but he alleges the
1995 Post-Conviction Procedure Act provided him with a one-year window
to file a claim.  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/TCCA/nesbitte_opn.WP6
Opinion-Flash

JEFFERY DEWAYNE ROACH
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

For the Appellant:                  For the Appellee:

Jeffery Dewayne Roach, Pro Se       Charles W. Burson
#12043-074 E-3                      Attorney General of Tennessee
P.O. Box 1000                       and             
United States Penitentiary          Elizabeth T. Ryan
Lewisburg, Pennsylvania 17837-1000  Assistant Attorney General of TN
                                    450 James Robertson Parkway     
                                    Nashville, TN 37243-0493

                                    C. Berkeley Bell, Jr.
                                    District Attorney General
                                    113J W. Church Street
                                    Greeneville, TN 37743                          

Judge: Tipton

First Paragraph:

The petitioner, Jeffery Dewayne Roach, appeals as of right from the
Hamblen County Criminal Court's summary 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/roachjd_opn.WP6
Opinion-Flash

ROBERT L. SMITH, JR. 
vs.
JUDGE STERLING GRAY,        
AND STATE OF TENNESSEE

Court:TCCA

Attorneys:
FOR THE APPELLANT:                  FOR THE APPELLEE:

ROBERT L. SMITH, JR.                JOHN KNOX WALKUP
Attorney, Pro-Se                    Attorney General & Reporter
N.E.C.C, Unit 14
P.O. Box 5000                       LISA A. NAYLOR
Mountain City, TN 37683-5000        Assistant Attorney General
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493    

                                    VICTOR S. JOHNSON, III
                                    District Attorney General

                                    KATRIN MILLER
                                    Asst District Attorney General
                                    Washington Square, Suite 500, 
                                    222-2nd Ave. North
                                    Nashville, TN. 37201-1649                          

Judge:WITT 

First Paragraph:

The petitioner, Robert l. Smith, appeals the Davidson County Criminal
Court's dismissal of his petition for post-conviction relief.  The
petitioner is serving four consecutive life sentences following his
October, 1982 convictions for aggravated kidnaping, aggravated rape,
armed robbery, and assault with intent to commit first degree murder. 
His convictions were affirmed by this court, and the supreme court
denied his application to appeal on May 29, 1984.  The petitioner
filed a petition for post-conviction relief on April 15, 1986, and in
1988, this court affirmed the trial judge's denial of relief.   The
record indicates that early in 1990 the petitioner filed a petition
seeking a writ of habeas corpus in federal court.  On January 9, 1996,
the petitioner filed this second petition for post-conviction relief
alleging that he had been denied the effective assistance of counsel
and that the conduct of the trial judge and prosecutor had denied him
a fair trial.  The lower court found that his claims were barred by
the statute of limitations and dismissed the petition without
appointing counsel or conducting a hearing.

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

STATE OF TENNESSEE
vs.
DONALD H. STANTON

Court:TCCA

Attorneys:
FOR THE APPELLANT:                  FOR THE APPELLEE:

LAURENCE M. MCMILLAN, JR.           JOHN KNOX WALKUP
310 Franklin Street                 Attorney General & Reporter
Clarksville, Tennessee 37040
                                    KAREN M. YACUZZO
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, Tennessee 37243-0493

                                    STEVEN GARRETT
                                    Assistant District Attorney
                                    204 Franklin Street
                                    Suite 200
                                    Clarksville, Tennessee 37040
                          

Judge: WALKER

First Paragraph:

The defendant, Donald H. Stanton, was convicted by a jury of theft. 
He was placed on post-trial diversion.

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

JIMMY WAYNE WILSON
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:
FOR THE APPELLANT:              FOR THE APPELLEE:

JIMMY WAYNE WILSON              JOHN KNOX WALKUP
Pro Se                          Attorney General and Reporter
#108253 MCRCF POB 2000
Wartburg, TN 37887              MICHAEL J. FAHEY, II
                                Assistant Attorney General
                                425 5th Avenue North
                                Nashville, TN 37243

                                GREELEY WELLS
                                District Attorney General
                                Sullivan County Justice Center
                                Blountville, TN 37617
                          

Judge: WELLES

First Paragraph:

The Petitioner, Jimmy Wayne Wilson, appeals from the trial court's
denial of his motion to reopen a prior petition for post-conviction
relief.  On July 22, 1985, he was convicted by a Sullivan County jury
of rape and found to be an habitual offender.  He subsequently filed
two petitions for post-conviction relief, the first in 1987 and the
second in 1990, both of which were denied.  The Petitioner filed a pro
se motion to reopen his first petition for post-conviction relief on
May 8, 1996.  In his motion, he alleged that our supreme court's
holding in State v. Kendricks, 891 S.W.2d 597 (Tenn. 1994),
established a constitutional right not recognized at the time of his
trial but requiring retrospective application to his case, that DNA
testing would prove that he was actually innocent of the rape, and
that his habitual offender sentence was based in part on a conviction
which had been invalidated. On May 21, 1996, the trial court dismissed
the motion to reopen without appointing counsel or conducting an
evidentiary hearing, finding that it did not present a colorable claim
for relief.  The Petitioner filed a notice of appeal with the trial
court clerk on May 30, 1996.  We conclude that, because the Petitioner
did not follow the appropriate statutory procedure for perfecting his
appeal to this Court, his appeal must be dismissed.

URL:http://www.tba.org/tba_files/TCCA/wilsnjw2_opn.WP6

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