TBALink Opinion-Flash

February 20, 1998 -- Volume #4 -- Number #034

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
00-New Opinons From TCA
14-New Opinons From TCCA

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TBALink Chief Editor


FREDDIE JANE COOK
vs.
MONROE FARMERS COOPERATIVE

Court:TSC - Workers Comp Panel

Attorneys:

For the Appellant:                  For the Appellee:

Philip P. Durand                    Lynn C. Peterson
607 Market St., 9th Floor           P.O. Box 2467
Knoxville, Tenn.  37902             Knoxville, Tenn.  37901
                          
Judge:THAYER

First Paragraph:

The appeal has resulted from a decision of the trial court to dismiss
the complaint.  The Circuit Judge found the employee had failed to
establish she had sustained an injury as a result of her work
activities on January 12, 1994.

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

GWENDOLYN SUE MULKEY
vs.
PALM BEACH COMPANY and      
EMPLOYERS INSURANCE OF WAUSAU   

Court:TSC - Workers Comp Panel

Attorneys: 

For the Appellant:                      For the Appellees:

Douglas C. Weinstein                    Rhonda L. Bradshaw
Lockett, Slovis & Weaver                Stokes, Fansler & Williams
Eighth Floor, Medical Arts Bldg.        620 Market Street, Ste 200
603 Main Avenue                         One Centre Square
P.O. Box 1668                           Knoxville, Tenn.  37902
Knoxville, Tenn.  37901-1668
                         
Judge:THAYER

First Paragraph:

The appeal has been perfected by the employee, Gwendolyn Sue Mulkey,
from a decision of the trial court resulting in a dismissal of the
complaint.  The Circuit Judge found the employee had failed to
establish she had sustained an injury as a result of her work
activities on August 13, 1993.

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

FREIDA PACK
vs.
BTR DUNLOP, INC.

Court:TSC - Workers Comp Panel

Attorneys: 

For the Appellant:          For the Appellee:
John M. Foley               F. R. Evans
Foley, Bowers & Bell        Milligan, Barry, Hensley & Evans
712 Walnut Street           800 First Tennessee Building
Knoxville, TN 37902         Chattanooga, TN 37402
                         
Judge:INMAN

First Paragraph:

Because arthritis is not an occupational disease and is normally not
caused by trauma but is part of the aging process and thus not within
the ambit of the Workers' Compensation Law, this case is not without
its difficulties as a matter of law.

URL:http://www.tba.org/tba_files/TSC_WCP/pack_wc3.WP6
Opinion-Flash

BILLY W. ALDRIDGE
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

For the Appellant:                  For the Appellee:

Billy W. Aldridge                   John Knox Walkup
Riverbend Maximum Security          Attorney General and Reporter
 Institution                            
7475 Cockrill Bend Industrial Rd.   Ellen H. Pollack            
Nashville, 37209                    Assistant Attorney General
                                    425 Fifth Avenue North
                                    Nashville, TN 37243-0493


                                    Victor S. Johnson, III
                                    District Attorney General

                                    Roger D. Moore
                                    Assistant District Attorney
                                    222 Second Avenue North
                                    Washington Square
                                    Nashville, TN 37201-1649
                         
Judge:Barker

First Paragraph:

The appellant, Billy W. Aldridge, appeals as of right the dismissal in
the Davidson County Criminal Court of his petition for writ of habeas
corpus.  In that petition, appellant challenged the validity of his
convictions alleging a defective indictment and an unconstitutional
sentence.  The trial court summarily dismissed the petition, finding
that the grounds alleged were appropriate for post-conviction relief,
but not cognizable in a habeas corpus proceeding.  Because appellant
was convicted in Shelby County, the trial court was unable to treat
the petition as one seeking post-conviction relief.  See Tenn. Code
Ann. S40-30-204(a) (Supp. 1996) (requiring post-conviction petition be
filed in the court of conviction).

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

LEWIS ANDERSON
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

Pamela Drewery                  John Knox Walkup
Attorney At Law                 Attorney General & Reporter
1008 West Forest                500 Charlotte Avenue
Jackson, TN 38301               Nashville, TN 37243-0497

                                Clinton J. Morgan
                                Counsel for the State
                                Cordell Hull Bldg Second Fl.
                                425 Fifth Avenue, North
                                Nashville, TN 37243-0493

                                William L. Gibbons
                                District Attorney General
                                201 Poplar Avenue, Suite 3-01
                                Memphis, TN 38103

                                Rhea Cliff
                                Asst District Attorney General
                                201 Poplar Avenue, Suite 3-01
                                Memphis, TN 38103
                          
Judge:Jones

First Paragraph:

The appellant, Lewis Anderson (petitioner), appeals as of right from a
judgment of the trial court summarily dismissing his second action for
post-conviction relief.  The trial court found that the petitioner's
action was barred by the statute of limitations.  The petitioner
contends in this court that the trial court committed error by
dismissing his initial action without an evidentiary hearing.  After a
thorough review of the record, the briefs submitted by the parties,
and the law governing the issue presented for review, it is the
opinion of this court that the appeal of the petitioner must be
dismissed.  Since the petitioner was convicted following the effective
date of the Post-Conviction Procedure Act legislation in 1995, he is
limited to one action for post-conviction relief.  Consequently, he
was not entitled to maintain this action.  Moreover, this court cannot
grant the petitioner appellate relief in an action he is not permitted
to maintain.  The trial court should have dismissed the action on this
ground -- not the statute of limitations.

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

HENRY S. BAKER
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE:

Robert Gaia                 JOHN KNOX WALKUP
P.O. Box 11381              Attorney General & Reporter
Memphis, TN 38111           
                            KENNETH W. RUCKER
                            Assistant Attorney General
                            Criminal Justice Division
                            450 James Robertson Parkway
                            Nashville, TN 37243-0493    

                            WILLIAM L. GIBBONS
                            District Attorney General
                
                            GLENN BAITY
                            REGINALD HENDERSON
                            Asst District Attorney Generals
                            201 Poplar Ave.  Ste. 301
                            Memphis, TN 38103
                          
Judge:WITT

First Paragraph:

The defendant, Henry S. Baker, appeals pursuant to Rule 3 of the
Tennessee Rules of Criminal Procedure from the Shelby County Criminal
Court's denial of post-conviction relief.  On December 5, 1991, the
grand jury indicted the defendant for attempted aggravated robbery,
theft of a motor vehicle,  and robbery.  He pleaded guilty to all
three charges on April 22, 1993 and received an effective sentence of
five years as a Range I offender to be served consecutively to a
sentence received in convictions unrelated to these.  Baker filed a
timely petition requesting post-conviction relief in all three
convictions on February 8, 1996.  In this appeal, however, Baker
challenges only the validity of his conviction for attempted
aggravated robbery.   He contends that, his guilty plea was entered
involuntarily, and that, but for the errors of counsel, he would not
have pleaded guilty to attempted aggravated robbery.  We disagree.

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

BILL R. DIXON, JR.
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

Clifford K. McGown, Jr.             John Knox Walkup
Attorney at Law                     Attorney General & Reporter
113 North Court Square              425 Fifth Avenue, North
Waverly, TN 37185                   Nashville, TN 37243
(Appeal Only)           
                                    Elizabeth T. Ryan
Daniel J. Taylor                    Assistant Attorney General
Assistant Public Defender           425 Fifth Avenue, North
227 West Baltimore Street           Nashville, TN 37243
Jackson, TN 38301
(Trial Only)                        James G. Woodall
                                    District Attorney General
OF COUNSEL:                         P.O. Box 2825
                                    Jackson, TN 38302
George Morton Googe
District Public Defender            Donald H. Allen
227 West Baltimore Street           Asst District Attorney General
Jackson, TN 38301                   P.O. Box 2825
                                    Jackson, TN 38302
                         
Judge:Jones

First Paragraph:

The issue this court must resolve is whether the appellant, Bill R.
Dixon, Jr. (petitioner), is entitled to (a) a new sentencing hearing
regarding the offense of the unlawful possession of a deadly weapon
with the intent to employ the weapon in the commission of a felony
(weapons offense), (b) a trial on the merits due to the illegality of
the original plea agreement, or (c) the affirmance of the judgment of
the trial court imposing the lightest sentence possible for the
weapons offense.  The petitioner contends he is entitled to have the
original plea agreement set aside and receive a trial on the merits. 
The State of Tennessee contends that since the petitioner received a
new sentencing hearing to correct the illegal sentence pursuant to
this court's ruling, the petitioner is not entitled to have the
original plea agreement set aside and receive a trial on the merits. 
After a thorough review of the record, the briefs submitted by the
parties, and the law governing the issue 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/dixonbr_opn.WP6
Opinion-Flash

FRANKLIN E. HARRIS
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

For the Appellant:              For the Appellee:

Walker Gwinn                    Charles W. Burson
Asst. Public Defender           Attorney General and Reporter
201 Poplar - Suite 2-01 
Memphis, TN  38103              Deborah A. Tullis
                                Assistant Attorney General                
A. C. Wharton               
                                Criminal Justice Division
District Public Defender        450 James Robertson Parkway
                                Nashville, TN 37243-0493                
                        
                                William L. Gibbons
                                District Attorney General

                                P. T. Hoover
                                Asst. District Attorney General
                                Criminal Justice Complex
                                Suite 301, 201 Poplar Street
                                Memphis, TN  38103
                          

Judge:Hayes

First Paragraph:

The appellant, Franklin E. Harris, Jr., appeals the denial of his
petition for post-conviction relief by the Shelby County Criminal
Court.  He is currently serving an effective sentence of life plus
twenty-five years in the Department of Correction for his 1993
convictions for first degree murder and attempted first degree murder.
  His convictions were affirmed on direct appeal to this court.  See 
State v. Harris, No. 02C01-9308-CR-00172 (Tenn. Crim. App. at Jackson,
May 25, 1994), perm. to appeal denied, (Tenn. Oct. 31, 1994).  In
November 1995, the appellant filed the instant petition for
post-conviction relief.  After a hearing on the merits, the trial
court denied the post-conviction petition.  In this appeal as of
right, the appellant challenges the trial court's finding that trial
counsel was effective.  Additionally, he contends that the reasonable
doubt instruction containing the terms "moral certainty" impermissibly
lowered the "beyond a reasonable doubt" standard.

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

DOYLE HART
vs.
BILLY COMPTON, WARDEN

Court:TCCA

Attorneys:

FOR THE APPELLANT:

DOYLE HART, Pro Se
Register Number 201666
Route 1, Box 330
Tiptonville, TN  38079-9775
FOR THE APPELLEE:

JOHN KNOX WALKUP
Attorney General and Reporter

ELIZABETH T. RYAN
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN  37243-0493

C. PHILLIP BIVENS
District Attorney General
P.O. Drawer E
Dyersburg, TN 38025-2005
                          
Judge:RILEY

First Paragraph:

The petitioner, Doyle Hart, appeals the order of the Lake County
Circuit Court dismissing his petition for writ of habeas corpus.  He
brought this petition claiming that the indictment charging him with
aggravated rape and incest did not allege the appropriate mens rea. 
We affirm the judgment of the trial court pursuant to Rule 20,
Tennessee Court of Criminal Appeals.

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

STATE OF TENNESSEE
vs.
RONNIE HOLMES

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:

Mike Mosier                     John Knox Walkup
Attorney at Law                 Attorney General & Reporter 
204 West Baltimore
P.O. Box 1623                   Janis L. Turner
Jackson, TN 38302-1623          Counsel for the State
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                Jerry Woodall
                                District Attorney General

                                James W. Thompson
                                Asst District Attorney General
                                P.O. Box 2825
                                Jackson, TN 38302   
                         
Judge:SUMMERS

First Paragraph:

Ronnie Holmes, the appellant, entered a plea of nolo contendere to
vandalism under five hundred dollars and criminal trespass in the
Chester County Circuit Court.  The court sentenced the appellant to
thirty days for each offense to run concurrently.  The court further
ordered that, after serving fifteen days, the appellant would be
eligible for work release.  On appeal, the appellant argues he should
have been sentenced to full probation.

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

JOSEPH C. HOLT
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

For the Appellant:              For the Appellee:

Joseph C. Holt, Pro Se          John Knox Walkup
P.O. Box 2000                   Attorney General of Tennessee
Wartburg, TN 37887              and             
                                Michael J. Fahey, II
                                Asst Attorney General of Tennessee                  
                                450 James Robertson Parkway     
                                Nashville, TN 37243-0493

                                Charles E. Hawk, Jr.
                                District Attorney General
                                and
                                Frank Harvey
                                Asst District Attorney General
                                P.O. Box 703
                                Kingston, TN 37763
                         
Judge:Tipton

First Paragraph:

The petitioner, Joseph C. Holt, appeals as of right the Morgan County
Criminal Court's denial of his petition for habeas corpus relief.  He
contends that his convictions for rape of a child are void because the
indictment does not allege the required mens rea.

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

RANDALL LAY
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE:

M. JEFFREY WHITT            JOHN KNOX WALKUP
706 Walnut Street           Attorney General and Reporter
Knoxville, TN 37902
                            MICHAEL J. FAHEY, II
                            Assistant Attorney General
                            425 Fifth Avenue North
                            Nashville, TN 37243

                            RANDALL E. NICHOLS
                            District Attorney General

                            MARSHA SELECMAN
                            Asst District Attorney General
                            City-County Building
                            Knoxville, TN 37902
                          
Judge:WELLES

First Paragraph:

The Petitioner, Randall Lay, appeals as of right pursuant to Rule 3 of
the Tennessee Rules of Appellate Procedure from the trial court's
denial of his petition for post-conviction relief.  On March 19, 1993,
the Petitioner pleaded guilty to especially aggravated robbery.  As
specified in the negotiated plea agreement, he was sentenced to
fifteen years imprisonment as a Range I, standard offender.  His
sentence was ordered to run consecutively to a three-year sentence he
was serving at the time of the offense.  He filed a pro se petition
for post-conviction relief on January 24, 1995, which was amended with
the assistance of counsel on October 26, 1995.  In his petition for
post-conviction relief, the Petitioner argues that he was denied
effective assistance of counsel at his guilty plea proceeding for a
number of reasons.  The trial court conducted an evidentiary hearing
on December 16, 1996, and after considering the evidence, denied the
petition.  We affirm the judgment of the trial court.

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

LAKEITH O. LIGHTFOOT
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:

D. TYLER KELLY
213 E. Lafayette
Jackson, TN  38301-6217

FOR THE APPELLEE:

JOHN KNOX WALKUP
Attorney General and Reporter

KENNETH W. RUCKER
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN  37243-0493

WILLIAM L. GIBBONS
District Attorney General

PERRY S. HAYES
Assistant District Attorney General
201 Poplar Street, Ste. 301
Memphis, TN  38103-1947                         

Judge:RILEY

First Paragraph:

In this post-conviction case the sole issue is whether the petitioner
filed his petition for post-conviction relief within the one-year
statute of limitations.  Since the record does not reveal whether or
not the pro se petitioner delivered the petition to the appropriate
prison authority for mailing within the statute of limitations, we
remand for further proceedings.

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

STATE OF TENNESSEE
vs.
CLEOTHA NASH

Court:TCCA

Attorneys:

FOR THE APPELLANT:

GARY F. ANTRICAN (On Appeal)
District Public Defender

JULIE K. PILLOW (On Appeal)
Assistant Public Defender
118 E. Market Street
P.O. Box 700
Somerville, TN  38068

BETH BROOKS (At Trial)
2298 S. Germantown Road
Germantown, TN  38138-5951
FOR THE APPELLEE:

JOHN KNOX WALKUP
Attorney General and Reporter

CLINTON J. MORGAN
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN  37243-0493

ELIZABETH T. RICE
District Attorney General

MARK E. DAVIDSON
Assistant District Attorney General
302 Market Street
Somerville, TN  38068                          

Judge:RILEY

First Paragraph:

The defendant, Cleotha Nash, was convicted by a Lauderdale County jury
of reckless endangerment, a Class E felony.  The trial court sentenced
him to four (4) years incarceration.  Defendant raises three issues
for our consideration; however, because his notice of appeal was
untimely filed, we dismiss this appeal.

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

SEAN F. O'BRIEN
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:          FOR THE APPELLEE:

Thomas F. Bloom             John Knox Walkup
Attorney at Law             Attorney General & Reporter
500 Church Street                           
Fifth Floor                 Ellen H. Pollack
Nashville, TN 37219         Assistant Attorney General
                            450 James Robertson Parkway
                            Nashville, TN 37243-0493
                                            
                            Victor S. Johnson III
                            District Attorney General
                        
                            Kymberly Haas
                            Asst District Attorney General
                            Washington Sq. Bldg, Ste 500
                            222 Second Avenue, North
                            Nashville, TN 37219
                                                 
Judge:SUMMERS

First Paragraph:

The appellant, Sean F. O'Brien, appeals the denial of post-conviction
relief.  In 1994 he pled guilty to felony murder and received a life
sentence, to attempted second degree murder and received a twenty-year
sentence, and to especially aggravated robbery and received a
forty-year sentence.  In March 1995, the appellant filed a pro se
petition for post-conviction relief, and in February 1996, the
appellant's appointed attorney filed an amended petition.   After an
evidentiary hearing the court denied the appellant's petition for post
conviction relief.  He appeals.

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

JOE L. RUSSELL
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

Joe L. Russell, Pro Se          John Knox Walkup
TDOC #209487                    Attorney General & Reporter
7575 Cockrill Bend Road
Nashville, TN 37209-1057        Kenneth W. Rucker       
                                Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-4351     

                                William L. Gibbons
                                District Attorney General
                        
                                Janet Shipman
                                Asst District Attorney General
                                201 Poplar Avenue, Suite 301
                                Memphis, TN 38103
                                      
Judge:SUMMERS

First Paragraph:

The appellant, Joe L. Russell, was convicted by a jury in August 1992
of aggravated rape and was sentenced to fifteen years in the Tennessee
Department of Correction.  In November 1996, the appellant filed a
petition for writ of habeas corpus in which he challenged the
sufficiency of his aggravated rape indictment.  The trial court denied
habeas corpus and alternatively, post conviction relief.  The
appellant now appeals this denial of relief.

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

JEFFERY SMITH
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE:

MARTHA L. COCHRAN           JOHN KNOX WALKUP
304 Burwell Building        Attorney General and Reporter
602 S. Gay Street
Knoxville, TN 37902         MARVIN E. CLEMENTS, JR.
                            Assistant Attorney General
                            425 5th Avenue North
                            Nashville, TN 37243-0493

                            RANDALL E. NICHOLS
                            District Attorney General
                        
                            ZANE SCARLETT
                            Asst District Attorney General
                            City-County Building
                            Knoxville, TN 37902
                          
Judge:WELLES

First Paragraph:

The Petitioner appeals the trial court's denial of his petition for
post conviction relief.  In this appeal, he challenges the validity of
his conviction as an habitual criminal on several grounds: (1) That
the guilty pleas he entered for the underlying convictions were not
voluntary; (2) that counsel was ineffective for not properly informing
him of the consequences of his guilty pleas; and (3) that the now
repealed habitual criminal statute and his resultant life sentence
violates his rights to equal protection and against cruel and unusual
punishment. After due consideration, we affirm the judgment of the
trial court dismissing the post conviction petition.

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

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