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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
- 00-New Opinons From TSC
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George Dean
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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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© Copyright 1996-1997 Tennessee Bar Association - This Issue (IN THIS ORDER):