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TBALink Opinion-Flash
April 27, 1998 -- Volume #4 -- Number #068
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):
- 01-New Opinons From TSC
- 00-New Opinons From TSC-Rules
- 06-New Opinons From TSC-Workers Comp Panel
- 12-New Opinons From TCA
- 27-New Opinons From TCCA
- 01-New Opinons From TSC
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TBALink Chief Editor
HOWARD A. WOODS vs. MTC MANAGEMENT AND SOLOMON MANAGEMENT Court:TSC Attorneys: For Appellant: For Appellees: Howard A. Woods, Pro Se J. Whitten Gurkin 3389 Carrington Avenue Memphis, Tennessee Memphis, Tennessee 38111 Judge:ANDERSON First Paragraph: We granted this appeal to determine whether the tenant's suit against the landlords under the Uniform Residential Landlord Tenant Act (URLTA) was properly dismissed by the chancery court for lack of subject matter jurisdiction. The chancery court ruled that a suit under the Act must be filed in circuit court. It denied the tenant's motion to transfer the case to circuit court, and dismissed the suit. The Court of Appeals affirmed. URL:http://www.tba.org/tba_files/TSC/woodsha_opn.WP6
GLORIA BENSON
vs.
NORTHERN TELECOM, INC.
Court:TSC - Workers Comp Panel
Attorneys:
For the Appellant: For the Appellee:
Daniel Todd Mark Spoden
219 Second Avenue North SunTrust Center
Suite 300 424 Church Street, Suite 800
Nashville, Tennessee 3720l Nashville, Tennessee 372l9
Diane Dycus
2nd floor, Cordell Hull Bldg
Nashville, Tennessee 37243
Judge:Gayden
First Paragraph:
The plaintiff filed this suit and alleged she sustained a back injury
on September 13, 1991, while trying to lift a typewriter and alleged a
gradual worsening of that injury in January, 1995.
URL:http://www.tba.org/tba_files/TSC_WCP/bensong_opn.WP6
GEORGE GOFF
vs.
CITY OF DECHERD
and
DINA TOBIN, DIRECTOR OF THE
DIVISION OF WORKERS
COMPENSATION, DEPARTMENT OF
LABOR, SECOND INJURY FUND
Court:TSC - Workers Comp Panel
Attorneys:
For the Appellants:
Timothy S. Priest
SWAFFORD, PETERS & PRIEST
Winchester, Tennessee
For the Appellee:
J. Russell Farrar
D. Todd Sholar
FARRAR & BATES
Nashville, Tennessee
Judge:MALOAN
First Paragraph:
The defendant, City of Decherd, appeals the judgment of the trial
court finding the plaintiff, George Goff, suffered an occupational
disease; awarding the plaintiff eighty-five percent (85%) permanent
partial disability to the body as a whole; and requiring the defendant
to pay certain medical expenses. For the reasons stated in this
opinion, we affirm the trial court, as modified.
URL:http://www.tba.org/tba_files/TSC_WCP/goffg_opn.WP6
MARGARET HENRY
vs.
CEDAR CREEK HOME HEALTH
AGENCY, also known as ELK
VALLEY HOME HEALTH CARE
AGENCY, INC.
Court:TSC - Workers Comp Panel
Attorneys:
For the Appellant: For the Appellee:
William A. Cameron Lane Moore
Cameron and Chaffin Daniel H. Rader, III
100 South Jefferson Ave. Moore, Rader, Clift and Fitzpatrick, P.C.
Cookeville, TN 38501 46 North Jefferson Avenue
P.O. Box 3347
Cookeville, TN 38502
Judge:BYERS
First Paragraph:
Review of the findings of fact made by the trial court is de novo upon
the record of the trial court, accompanied by a presumption of the
correctness of the findings, unless the preponderance of the evidence
is otherwise. Tenn. Code Ann. S 50-6-225(e)(2). Stone v. City of
McMinnville, 896 S.W.2d 548, 550 (Tenn. 1995).
URL:http://www.tba.org/tba_files/TSC_WCP/henrym_opn.WP6
ANTHONY JOHNSON
vs.
THE TRAVELERS INSURANCE
COMPANY, a Non-Resident Corporation
Court:TSC - Workers Comp Panel
Attorneys:
For the Appellant: For the Appellee:
David C. Nagle James S. Stephens
Suite 407 James Building P.O. Box 220
735 Broad Street Tracy City, TN 37387
Chattanooga, TN 37402
Judge:BYERS
First Paragraph:
The issue in this case is whether the plaintiff forfeited the right to
have the defendant pay for future medical expenses, if any are
required, for a compensable injury for failure to have an annual
physical examination as provided for in the settlement of the
plaintiff's compensation claim against the defendant.
URL:http://www.tba.org/tba_files/TSC_WCP/johnsona_opn.WP6
RALPH D. WEST
vs.
SONIC DRIVE-IN and
ANCO INTERSTATE INSURANCE COMPANY
Court:TSC - Workers Comp Panel
Attorneys:
For the Appellants: For the Appellee:
W. Stuart Scott Jacky O. Bellar
Stewart, Estes & Donnell 212 Main Street
SunTrust Center, 14th Floor P.O. Box 332
424 Church Street Carthage, TN 37030
Nashville, TN 37219
Judge:BYERS
First Paragraph:
This case is here in a different position than most appeals.
URL:http://www.tba.org/tba_files/TSC_WCP/westrd_opn.WP6
LINDA SUE WHITE
vs.
EATON CORPORATION
Court:TSC - Workers Comp Panel
Attorneys:
For the Appellant: For the Appellee:
John R. White David L. Cooper
Bobo, Hunt & Bobo Columbia A. McHale
202 First National Bank Bldg Cannon, Cannon & Cooper, P.C.
P.O. Box 169 1000 Northchase Drive, Suite 110
Shelbyville, TN 37162 Goodlettsville, TN 37070
Katherine M. Wall, Pro Hac Vice
Eaton Corporation
Eaton Center
1111 Superior Avenue
Cleveland, OH 44114-2584
Judge:BYERS
First Paragraph:
The only issue raised in this case is whether the award of 35 percent
permanent disability to the plaintiff's right arm is excessive.
URL:http://www.tba.org/tba_files/TSC_WCP/whitels_opn.WP6
MOHAMED F. ALI, M.D.
vs.
FREDIA MOORE, DANNY (PAT)
STORY, AMERICA'S MOST
WANTED and FOX TELEVISION
BROADCASTING
Court:TCA
Attorneys:
Mohamed F. Ali, M.D., Pro Se,
of Mountain City
Donald L. Zachary, Sue E. McClure; Bass, Berry & Sims, PLC
of Nashville, For Appellee, Fox Television Broadcasting
Judge:CRAWFORD
First Paragraph:
This is an action for defamation and violation of constitutional
rights. Plaintiff/Appellant Mohamed F. Ali, M.D. sued
Defendant/Appellee Fox Television Broadcasting (Fox), for defamation
and for relief under 42 U.S.C. S 1983 as a result of two television
broadcasts. The trial court granted summary judgment to Fox and
subsequently made the order final pursuant to Tenn.R.Civ.P. 54.02.
The trial court also enjoined Ali from filing future pro se actions.
Ali appeals.
URL:http://www.tba.org/tba_files/TCA/alimoham_opn.WP6
TERRY COMPTON
vs.
DONAL CAMPBELL, COMMISSIONER,
TENNESSEE DEPARTMENT OF
CORRECTION
Court:TCA
Attorneys:
Terry Compton, #77594
N.W.C.C.
Route 1, Box 660
Tiptonville, TN 38079
PRO SE/PLAINTIFF/APPELLANT
Sohnia W. Hong, #17415
Assistant Attorney General
Second Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243-0488
ATTORNEY FOR DEFENDANT/APPELLEE
Judge:TODD
First Paragraph:
This is an action by a prisoner in the custody of the Department of
Correction challenging disciplinary action resulting from his
misconduct while in the status of minimum security. He was
transferred to medium security. His complaint is essentially that the
Department is not impartial in implementing its "policies" in regard
to transferring prisoners from one "security status" to another.
URL:http://www.tba.org/tba_files/TCA/comptont_opn.WP6
BARBARA ANN HOWARD
vs.
FMS, INC.
Court:TCA
Attorneys:
For Plaintiff/Appellant: For Defendant/Appellee:
Gus A. Wood, III David J. Pflaum
James R. Omer & Associates Watkins, McGugin, McNeilly & Rowan
Nashville, Tennessee Nashville, Tennessee
Judge:KOCH
First Paragraph:
This appeal involves a tenant who was injured when she fell on ice
that had accumulated on the sidewalk of a common area in her apartment
complex. The tenant filed suit against the manager of the apartments
in the Circuit Court for Davidson County asserting that the manager
had negligently permitted ice and freezing rain to collect and remain
on the sidewalk. The trial court granted the apartment manager's
motion for summary judgment, and the tenant has appealed. We affirm
the summary judgment because we have determined that under the facts
of this case the apartment manager did not have a duty to keep the
sidewalks free of frozen precipitation.
URL:http://www.tba.org/tba_files/TCA/howardba_opn.WP6
DIANE KEE LAZENBY
vs.
JAMES ALLAN LAZENBY
Court:TCA
Attorneys:
Honorable John T. Gwin
2542 North Mt. Juliet Road
P.O. Box 888
Mt. Juliet, TN 37122
ATTORNEY FOR PLAINTIFF/APPELLEE
Honorable Sidney S. F. Bennett
1225 First American Center
315 Deaderick Street
Nashville, TN 37238
ATTORNEY FOR DEFENDANT/APPELLANT
Judge:TODD
First Paragraph:
In this divorce case, the defendant/husband has appealed from the
judgment of the Trial Court granting both parties a divorce as
provided by TCA S 36-4-129(b), granting to the plaintiff/wife the
custody of the minor child of the parties, with specified visitation
by the husband, fixing child support, and dividing the marital estate.
URL:http://www.tba.org/tba_files/TCA/lazenbyd_opn.WP6
STACIE LEIGH NORRIS
vs.
JEFF WINDROW
Court:TCA
Attorneys:
Clark Lee Shaw
2525 Lebanon Road
Nashville, Tennessee 37214
ATTORNEY FOR PLAINTIFF/APPELLANT
R. Steven Waldron
202 West Main Street
Murfreesboro, Tennessee 37130
ATTORNEY FOR DEFENDANT/APPELLEE
Judge:TODD
First Paragraph:
This appeal is from an order of the Juvenile Court committing custody
of a child born out of wedlock to the natural father of the child.
URL:http://www.tba.org/tba_files/TCA/norrisst_opn.WP6
DOROTHY H. O'SHEA
vs.
VET CONDER and Wife,
BETTY CONDER
Court:TCA
Attorneys:
For the Plaintiff/Appellant: For the Defendants/Appellees:
Paul Kevin Carter Tommy E. Doyle
Lexington, Tennessee Linden, Tennessee
Judge:LILLARD
First Paragraph:
This case is a suit for rescission of a deed. The plaintiff
conservator alleged that the transfer to the defendants of real
property for no consideration was the result of undue influence. The
trial court granted summary judgment to the defendants. We affirm.
URL:http://www.tba.org/tba_files/TCA/oshead_opn.WP6
CATHY P. SPRAYBERRY-GRAVITT
vs.
DAVID BAKER, Director of Schools for the
CLARKSVILLE-MONTGOMERY COUNTY
SCHOOLS and THE CLARKSVILLE-
MONTGOMERY COUNTY BOARD OF
EDUCATION
Court:TCA
Attorneys:
CHARLES HAMPTON WHITE
RICHARD L. COLBERT
KURTIS J. WINSTEAD
Cornelius & Collins
Suite 2700, Nashville City Center
511 Union Street
P. O. Box 190695
Nashville, Tennessee 37219
ATTORNEYS FOR PLAINTIFF/APPELLANT
RICHARD H. BATSON
SUZANNE M. PEARSON
Batson, Nolan, Brice,
Harvey & Williamson
121 South Third Street
Clarksville, Tennessee 37040
ATTORNEYS FOR DEFENDANTS/APPELLEES
Judge:BUSSART
First Paragraph:
This is a teacher tenure case wherein the plaintiff teacher challenged
her dismissal from a teacher position in the Clarksville-Montgomery
County School System ("the school system") on the basis that she had
attained permanent tenure status under the provisions of the Tennessee
Teacher Tenure Act. Tenn. Code Ann. S 49-5-501 to 49-5-515. Finding
that the plaintiff had not attained tenure, the trial court summarily
dismissed her case. On appeal, we determine that there remain genuine
issues of material fact to be resolved by the court below.
Accordingly, we vacate the trial court's judgment and remand this case
to the trial court for further proceedings.
URL:http://www.tba.org/tba_files/TCA/sprayber_opn.WP6
STONES RIVER UTILITIES, INC.
vs.
METROPOLITAN GOVERNMENT
OF NASHVILLE, DAVIDSON COUNTY,
TENNESSEE, acting by and through
the ELECTRIC POWER BOARD and
d/b/a "NASHVILLE ELECTRIC
SERVICE" or "NES"
Court:TCA
Attorneys:
Stanley M. Chernau
R. Garry Chaffin
CHERNAU, CHAFFIN & BURNSED
424 Church Street, Suite 1750
Nashville, Tennessee 37219
ATTORNEYS FOR PLAINTIFF/APPELLEE
T. Larry Stewart, No. 3345 Cyrus L. Booker, No. 10747
Nancy A. Vincent, No. 16938 Ursula Y. Holmes, No. 18040
STOKES & BARTHOLOMEW BOOKER & ASSOCIATES
424 Church Street, Suite 2800 315 Deaderick St., Ste 1280
Nashville, Tennessee 37219-2386 Nashville, TN 37238-1280
Eugene W. Ward, No. 3119
Nashville Electric Service
1214 Church Street, Suite 235
Nashville, Tennessee 37203
ATTORNEYS FOR DEFENDANT/APPELLANT
Judge:TODD
First Paragraph:
The defendant, Metropolitan Government and its Electric Power Board
have appealed from a jury verdict and judgment in favor of the
plaintiff, Stones River Utilities, Inc., for $210,436.24.
URL:http://www.tba.org/tba_files/TCA/stonesri_opn.WP6
BOBBY TEASTER
vs.
TENNESSEE DEPARTMENT
OF CORRECTION, ET AL.
Court:TCA
Attorneys:
For Plaintiff/Appellant: For Defendants/Appellees:
Bobby Teaster, Pro Se John Knox Walkup
Attorney General and Reporter
Patricia C. Kussmann
Assistant Attorney General
Judge:KOCH
First Paragraph:
This appeal involves a disagreement between a prisoner and the
Department of Correction concerning the calculation of his sentence.
The prisoner filed a petition for a declaratory judgment in the
Chancery Court for Davidson County asserting that the Department had
failed to credit him with 765 days of street time while he was on
probation. The trial court converted the Department's Tenn. R. Civ.
P. 12.02(6) motion to dismiss to a motion for summary judgment and
then dismissed the petition. On this appeal, the prisoner asserts
that he should have been notified of the conversion of the
Department's motion and should have been given an opportunity to
respond with appropriate evidentiary materials. We agree and
accordingly vacate the summary judgment.
URL:http://www.tba.org/tba_files/TCA/teasterb_opn.WP6
JAMES R. TULLY, JR.
vs.
USA WIRELESS, INC.,
PMT INVESTMENTS, INC., and
PATRICK M. THOMPSON, in both
his individual and corporate capacity
Court:TCA
Attorneys:
LARRY D. ASHWORTH
227 Second Avenue North
Nashville, Tennessee 37201-1636
PETER D. HEIL
P. O. Box 40651
Nashville, Tennessee 37204
Attorneys for Defendant/Appellant
HUGH C. HOWSER, JR.
KENNETH M. BRYANT
511 Union Street, Suite 2500
Nashville, Tennessee 37205
Attorneys for Plaintiff/Appellee Patrick M. Thompson
Judge:CANTRELL
First Paragraph:
The Chancellor granted summary judgment to the defendant on the
plaintiff's fraud claim. Because we believe the plaintiff has alleged
sufficient facts to make out a claim of fraud, and the defendant has
been unable to negate those allegations, we find the fraud claim
inappropriate for summary judgment, and we reverse. We also find that
the plaintiff has not waived his contract claim, and we remand this
case to the trial court for the resolution of both claims.
URL:http://www.tba.org/tba_files/TCA/tullyjr_opn.WP6
JENNIFER O. WILSON
vs.
LARRY ARNOLD WILSON
Court:TCA
Attorneys:
JOHN E. HERBISON, Nashville, Attorney for Plaintiff.
EARL J. PORTER, JR., Nashville, Attorney for Defendant.
Judge:TOMLIN
First Paragraph:
Jennifer O. Wilson ("plaintiff") filed suit for divorce against Larry
A. Wilson ("defendant") in the Circuit Court of Davidson County.
During the course of this litigation, certain restraining orders were
issued by the court. Thereafter, defendant filed a petition against
plaintiff for contempt. The petition failed to specify whether civil
or criminal sanctions were being sought. Plaintiff filed a
counterclaim for contempt against defendant.
URL:http://www.tba.org/tba_files/TCA/wilsojen_opn.WP6
RICHARD M. WRIGHT, III, et al
vs.
C & S FAMILY CREDIT, INC., et al
Court:TCA
Attorneys:
D. Ronald Ingram, Goodlettsville, Tennessee
Attorney for Defendant/Appellant.
Joseph L. Lackey, Jr., Nashville, Tennessee
Attorney for Plaintiff/Appellee.
Judge:FARMER
First Paragraph:
Defendant C & S Family Credit, Inc., appeals the trial court's
judgment entered in favor of Plaintiff/Appellee Richard M. Wright,
III, in the amount of $122,048. The trial court's judgment was
predicated on C & S's failure to disclose the existence of a judgment
lien on property being purchased by Wright with proceeds from a loan
transaction with C & S. We reverse the trial court's judgment based
on our conclusion that, under the circumstances of this case, C & S
owed no duty to disclose to Wright the existence of the judgment lien.
URL:http://www.tba.org/tba_files/TCA/wrightrm_opn.WP6
WILLIE BACON, JR.
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
Ardena J. Garth Charles W. Burson
District Public Defender Attorney General of Tennessee
and and
Donna Robinson Miller Michael J. Fahey, II
Assistant Public Defender Assistant Attorney General of TN
Suite 300, 701 Cherry Street 450 James Robertson Parkway
Chattanooga, TN 37402 Nashville, TN 37243-0493
William H. Cox, III
District Attorney General
and
C. Leland Davis
Assistant District Attorney General
City-County Building
Chattanooga, TN 37402
Judge:Tipton
First Paragraph:
The petitioner, Willie Bacon, Jr., appeals as of right from the
Hamilton County Criminal Court's denial of post-conviction relief
after an evidentiary hearing. He contends that he is entitled to
post-conviction relief because the reasonable doubt and malice
instructions given at his trial violated his due process and equal
protection rights and because he received the ineffective assistance
of counsel. We disagree and affirm the judgment of the trial court.
URL:http://www.tba.org/tba_files/TCCA/baconw_opn.WP6
JAMES CARR
vs.
STATE OF TENNESSEE
Court:TCCA
Judge:JONES
First Paragraph:
This matter is before the Court upon the state's motion to affirm the
judgment of the trial court in accordance with Rule 20, Rules of the
Court of Criminal Appeals. In January 1984, the petitioner was
indicted on one count of aggravated rape. The petitioner was
subsequently convicted of this charge and was sentenced to life
imprisonment. The petitioner has since filed a petition for a writ of
habeas corpus challenging the sufficiency of the indictment and the
jury instruction on reasonable doubt. The trial court denied relief.
URL:http://www.tba.org/tba_files/TCCA/carr-j_ord.WP6
JOHN DERRICK COLEMAN
vs.
STATE OF TENNESSEE
Court:TCCA
Judge:RILEY
First Paragraph:
This case represents an appeal from the dismissal of the petitioner's
petition for post-conviction relief. The petitioner originally filed
his petition in September 1994. The trial court dismissed the
petition without a hearing and without appointing counsel. On appeal,
concluding that the trial court should have appointed counsel, allowed
counsel to file an amended petition, and, if necessary, afford the
petitioner a hearing on his petition, this Court reversed and remanded
the order of the trial court. Coleman v. State, No.
02C01-9505-CC-00122 (Tenn. Crim. App., Apr. 17, 1996). On remand,
after appointing counsel and hearing the merits of the petition, the
trial court again dismissed the petition. The petitioner, by and
through counsel, filed a notice of appeal to this Court.
URL:http://www.tba.org/tba_files/TCCA/coleman_ord.WP6
STATE OF TENNESSEE
VS.
THOMAS CONGDON
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
J. ROBERT HAMILTON JOHN KNOX WALKUP
Stallings, Hamilton & Fox, P.A. Attorney General and Reporter
225 East Main Street
Lebanon, TN 37087 GEORGIA BLYTHE FELNER
Assistant Attorney General
Cordell Hull Bldg, Second Fl
425 Fifth Avenue North
Nashville, TN 37243-0493
TOM P. THOMPSON, JR.
District Attorney General
ROBERT N. HIBBETT
Asst District Attorney General
111 Cherry Street
Lebanon, TN 37087
Judge:LAFFERTY
First Paragraph:
The defendant, Thomas Congdon, appeals as of right pursuant to
T.R.A.P. 3 from his conviction for vandalism under $500. On appeal,
the defendant argues that the evidence was insufficient to support the
verdict and that the trial court erred by denying his motion to sever
offenses. We disagree and affirm the judgment.
URL:http://www.tba.org/tba_files/TCCA/congdon_op.WP6
STEVEN J. COOPER
vs.
STATE OF TENNESSEE
Court:TCCA
Judge:JONES
First Paragraph:
This matter is before the Court upon the state's motion to dismiss, or
in the alternative, to affirm the judgment of the trial court under
Rule 20, Rules of the Court of Criminal Appeals. This case represents
the appeal of the trial court's dismissal of the petitioner's petition
for post-conviction relief. The record was filed on March 2, 1998,
and on March 13, 1998, the petitioner filed "motion to vacate and set
aside sentence imposed," which shall be treated as his appellate
brief.
URL:http://www.tba.org/tba_files/TCCA/coope-s1_ord.WP6
CLEO CRAWFORD
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
STEPHEN WALLACE JOHN KNOX WALKUP
Public Defender Attorney General & Reporter
RICHARD A. TATE ELLEN H. POLLACK
Asst. Public Defender Asst. Attorney General
P. O. Box 839 425 Fifth Ave., North
Blountville, TN 37617 Cordell Hull Bldg., 2nd Fl.
Nashville, TN 37243 0493
H. GREELEY WELLS, JR.
District Attorney General
BARRY STAUBUS
Asst. District Attorney General
P. O. Box 526
Blountville, TN 37617
Judge:PEAY
First Paragraph:
The defendant was convicted of first-degree murder and received a life
sentence. His conviction and sentence were affirmed by this Court and
his application for permission to appeal was denied on February 8,
1982. The petitioner previously filed a petition for post-conviction
relief which was denied after a hearing. This Court affirmed the
lower court's dismissal of that petition, and the application for
permission to appeal to the Supreme Court was denied on December 28,
1987.
URL:http://www.tba.org/tba_files/TCCA/crawford_opn.WP6
STATE OF TENNESSEE
vs.
LARRY CUNNINGHAM
Court:TCCA
Attorneys:
FOR THE APPELLANT:
GEORGE MORTON GOOGE
District Public Defender
MICHAEL RASNAKE (at hearing)
Assistant Public Defender
227 W. Baltimore Street
Jackson, TN 38301-6137
JOHN E. HERBISON (on appeal)
2016 Eighth Avenue South
Nashville, TN 37204-2202
FOR THE APPELLEE:
JOHN KNOX WALKUP
Attorney General and Reporter
JANIS L. TURNER
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
JAMES G. WOODALL
District Attorney General
LAWRENCE E. NICOLA
Assistant District Attorney General
225 Martin Luther King, Jr. Dr.
P.O. Box 2825
Jackson, TN 38302-2825
Judge:RILEY
First Paragraph:
The defendant, Larry Cunningham, appeals the Madison County Circuit
Court's order affirming the revocation of his probation by the
Municipal Court of Jackson, Tennessee. The defendant contends the
trial court erred in not hearing his appeal from municipal court de
novo. We agree with the defendant, reverse the revocation, and remand
to the trial court to conduct a de novo review.
URL:http://www.tba.org/tba_files/TCCA/cunningh_opn.WP6
STATE OF TENNESSEE
vs.
BENJAMIN F. DISHMAN
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
Leslie S. Hale John Knox Walkup
Assistant Public Defender Attorney General & Reporter
P.O. Box 839 425 Fifth Avenue, North
Blountville, TN 37617 Nashville, TN 37243-0497
OF COUNSEL: Peter M. Coughlan
Assistant Attorney General
Stephen M. Wallace 450 James Robertson Parkway
District Public Defender Nashville, TN 37243-0493
P.O. Box 839
Blountville, TN 37617 H. Greeley Wells, Jr.
District Attorney General
P.O. Box 526
Blountville, TN 37617-0526
Teresa K. Murray-Smith
Assistant District Attorney General
P.O. Box 526
Blountville, TN 37617-0526
Barry P. Staubus
Assistant District Attorney General
P.O. Box 526
Blountville, TN 37617-0526
Judge:Jones
First Paragraph:
The appellant, Benjamin F. Dishman (defendant), was convicted of
aggravated rape, a Class A felony, by a jury of his peers. The trial
court found the defendant was a multiple offender and imposed a Range
II sentence consisting of confinement for forty (40) years in the
Department of Correction. In this court, the defendant presents six
basic issues for review. He contends (1) the indictment is defective
because it fails to allege the mens rea required to commit aggravated
rape, (2) the evidence is insufficient, as a matter of law, to support
his conviction, (3) the trial court erred by not requiring the state
to elect the offense it would prosecute, (4) the trial court erred by
refusing to instruct the jury on the defenses of voluntary
intoxication and ignorance or mistake of fact, (5) the trial court
erred by instructing the jury regarding the elements of aggravated
rape and lesser included offenses, and (6) the trial court erred by
limiting his cross-examination of the victim. 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/dishmanb_opn.WP6
STATE OF TENNESSEE
vs.
AARON L. DRUMMER
Court:TCCA
Judge:RILEY
First Paragraph:
The defendant, Aaron L. Drummer, pled guilty to possession with intent
to sell or deliver ten (10) pounds of marijuana, a Class E felony. He
agreed to a sentence of one (1) year and a $3,000 fine, the manner of
sentence to be determined by the trial court. At the conclusion of
the sentencing hearing, the trial court denied alternative sentencing.
The defendant was immediately incarcerated.
URL:http://www.tba.org/tba_files/TCCA/drummera_opn.WP6
STATE OF TENNESSEE
vs.
THOMAS JEROME ELDER
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
Julie A. Martin John Knox Walkup
Attorney at Law Attorney General and Reporter
P. O. Box 426
Knoxville, TN 37901-0426 Peter M. Coughlan
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
Randall E. Nichols
District Attorney General
Robert Jolley
Asst. District Attorney General
City-County Building
Knoxville, TN 37902
Judge:Hayes
First Paragraph:
The appellant, Thomas Jerome Elder, appeals as of right from his
conviction for criminal attempt to commit murder in the second degree.
Following his jury trial, the Knox County Criminal Court imposed a
twelve year sentence in the Tennessee Department of Correction to be
served consecutively to federal sentences for convictions for cocaine
distribution and related crimes.
URL:http://www.tba.org/tba_files/TCCA/eldertj_opn.WP6
STATE OF TENNESSEE
vs.
TIMMY FULTON
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
C. MICHAEL ROBBINS JOHN KNOX WALKUP
3074 East Street Attorney General and Reporter
Memphis, TN 38128
DEBORAH H. TULLIS
GARY F. ANTRICAN Assistant Attorney General
District Public Defender 425 Fifth Avenue North
25th Judicial District Nashville, TN 37243
P. O. Box 700
Somerville, TN 38068 ELIZABETH RICE
District Attorney General
MARK DAVIDSON
WALT FREELAND
Assistant District Attorneys
302 Market Street
Somerville, TN 38068
Judge:SMITH
First Paragraph:
On October 18, 1996 a Lauderdale County jury convicted Appellant,
Timmy Fulton, of murder in the second degree. After a sentencing
hearing, the trial court sentenced Appellant to twenty-two years
incarceration to be served at one hundred percent pursuant to
Tennessee Code Annotated S 40-35 501(I)(1)&(2).
URL:http://www.tba.org/tba_files/TCCA/fultonti_opn.WP6
RICKY HARRIS
VS.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
For Appellant: For Appellee:
Laura Rule Hendricks John Knox Walkup
606 W. Main Street Attorney General & Reporter
Suite 350
P.O. Box 84 Timothy F. Behan
Knoxville, TN 37901-0084 Assistant Attorney General
(on appeal only) 450 James Robertson Parkway
Nashville, TN 37243-0493
Margo Lamb
Jack Carpenter Ken Baldwin
Main Street Courthouse Assistant District Attorney General
Elizabethton, TN 37643 900 East Elk Avenue
(at post-conviction hearing) Elizabethton, TN 37643
Judge:WADE
First Paragraph:
The petitioner, Ricky Harris, was convicted of first degree murder and
received a life sentence. This court affirmed the conviction and the
supreme court denied review. State v. Ricky Jerome Harris, No. 85
(Tenn. Crim. App., at Knoxville, Nov. 8, 1990), app. denied, (Tenn.,
Feb. 4, 1991). In 1992, the petitioner filed this petition for
post-conviction relief. In 1996, after several evidentiary hearings,
the trial court denied relief.
URL:http://www.tba.org/tba_files/TCCA/harrisrk_opn.WP6
ROBERT L. HOWELL
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
WILLIAM L. JOHNSON JOHN KNOX WALKUP
50 North Front St. Attorney General & Reporter
Suite 1150
Memphis, TN 38103 CLINTON J. MORGAN
Counsel for the State
425 Fifth Ave., North
Cordell Hull Bldg., Second Fl.
Nashville, TN 37243-0493
JOHN W. PIEROTTI
District Attorney General
GLEN BAITY
Asst. District Attorney General
201 Poplar St., Suite 301
Memphis, TN 38103
Judge:PEAY
First Paragraph:
Following a jury trial, the petitioner was convicted on October 22,
1992, of felony murder. This Court affirmed his conviction on October
13, 1993, and the Supreme Court denied his application to appeal on
March 7, 1994. On April 11, 1996, the petitioner filed a petition for
post-conviction relief alleging ineffective assistance of counsel.
After a hearing on November 15, 1996, the trial court dismissed the
petition. The petitioner now appeals and argues that his petition
should not have been dismissed. After a review of the record and
applicable law, we affirm the judgment of the court below.
URL:http://www.tba.org/tba_files/TCCA/howellrl_opn.WP6
STATE OF TENNESSEE
vs.
WILLIE B. JACKSON
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
MARK J. FISHBURN JOHN KNOX WALKUP
100 Thompson Lane Attorney General & Reporter
Nashville, TN 37211
LISA A. NAYLOR
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243
VICTOR S. JOHNSON, III
District Attorney General
JIM MILAM
Assistant District Attorney General
Washington Square
222 Second Avenue North, Suite 500
Nashville, TN 37201-1649
Judge:WOODALL
First Paragraph:
The Defendant, Willie Bruce Jackson, appeals as of right from his
conviction following a jury trial in the Criminal Court of Davidson
County. In the original indictment, Defendant was charged with seven
(7) drug-related offenses committed during the period of August
through October of 1993. At the conclusion of the State's proof,
Count 2 of the indictment was dismissed.
URL:http://www.tba.org/tba_files/TCCA/jacksnwb_opn.WP6
STATE OF TENNESSEE
VS.
TRACIE JENKINS and
DAVID RAGSDALE
Court:TCCA
Attorneys:
For the Appellants: For the Appellee:
Lee Ofman John Knox Walkup
317 Main Street Attorney General and Reporter
Suite 208
Franklin, TN 37064 Ellen H. Pollack
(For appellant Jenkins) Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
John S. Colley, III
Colley & Colley
P.O. Box 1476 Joseph D. Baugh, Jr.
Columbia, TN 38402 District Attorney General
(For appellant Ragsdale) Williamson County Courthouse
P.O. Box 937
Franklin, TN 37065
Judge:Barker
First Paragraph:
The appellants, Tracie Jenkins and David Ragsdale, appeal as of right
the sentences they received in the Williamson County Circuit Court
upon their pleas of guilty to the offense of voluntary manslaughter.
Appellants each received five-year sentences in the Department of
Correction. However, the trial court ordered split confinement by
requiring that appellants serve one year in the Williamson County
Workhouse and then be placed on intensive probation for six years.
URL:http://www.tba.org/tba_files/TCCA/jenkinst_opn.WP6
LARRY JONES
vs.
STATE OF TENNESSEE
Court:TCCA
Judge:BARKER
First Paragraph:
This case represents an appeal from the dismissal of the petitioner's
petition for post-conviction relief. In 1980, the petitioner was
convicted on two counts each of aggravated kidnapping and aggravated
rape, and one count of grand larceny. On appeal, this Court affirmed
the convictions for aggravated kidnapping and grand larceny but
reversed and dismissed the aggravated rape convictions. State v.
Jones, No. 37, Shelby County (Tenn. Crim. App., at Jackson, Mar. 19,
1981), perm. to app. denied, (Tenn., June 29, 1981). The petitioner
subsequently filed several state and federal petitions attacking his
convictions and sentences, the denial of the most recent petition for
post-conviction relief having been affirmed by this Court in 1993.
Jones v. State, No. 02C01-9207-CR-00162 (Tenn. Crim. App., Feb. 10,
1993), perm. to app. denied, (Tenn., June 1, 1993).
URL:http://www.tba.org/tba_files/TCCA/jones-la_ord.WP6
GREGORY JONES
VS.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
PAUL J. BRUNO JOHN KNOX WALKUP
Washington Square Bldg. Attorney General and Reporter
222 Second Avenue, North
Suite 350M TIMOTHY F. BEHAN
Nashville, TN 37201 Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
VICTOR S. JOHNSON
District Attorney General
KATRIN MILLER
Asst District Attorney General
Washington Square, Suite 500
222 Second Avenue North
Nashville, TN 37201-1649
Judge:BARKER
First Paragraph:
The Petitioner, Gregory Jones, 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. He was convicted
by a Davidson County jury of felony murder and attempted especially
aggravated robbery. The trial court sentenced him to consecutive
terms of life imprisonment and fifteen years. His convictions and
sentences were affirmed on appeal to this Court. Our supreme court
denied permission to appeal on April 22, 1996. He filed a pro se
petition for post-conviction relief on May 20, 1996, which was amended
with the assistance of counsel on August 19, 1996. In his petition
for post-conviction relief, the Petitioner argues that he was denied
effective assistance of counsel at his trial. The trial court
conducted an evidentiary hearing on December 18, 1996, and after
considering the evidence, issued an order denying the petition on
January 10, 1997. We affirm the judgment of the trial court.
URL:http://www.tba.org/tba_files/TCCA/jonesgk_opn.WP6
CLINTON W. LYNCH
vs.
RICKY BELL, Warden
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
Clinton W. Lynch, Pro Se, #111631 John Knox Walkup
R.M.S.I. Unit 6-A-101 Attorney General of Tennessee
7475 Cockrill Bend Road and
Nashville, TN 37209-1010 Lisa A. Naylor
Asst Attorney General of TN
450 James Robertson Parkway
Nashville, TN 37243-0493
Victor S. Johnson, III
District Attorney General
and
Steve Dozier
Asst District Attorney General
Washington Square
222 2nd Avenue North
Nashville, ,TN 37201-1649
Judge:Tipton
First Paragraph:
The petitioner, Clinton W. Lynch, appeals as of right from the
Davidson County Criminal Court's dismissal of his petition for habeas
corpus relief. He contends that the trial court erred by dismissing
his petition without an evidentiary hearing or the appointment of
counsel. We affirm the dismissal of the petition.
URL:http://www.tba.org/tba_files/TCCA/lynchcw_opn.WP6
STATE OF TENNESSEE
vs.
MAX EUGENE MARTIN
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
David Neal Brady John Knox Walkup
District Public Defender Attorney General and Reporter
H. Marshall Judd Elizabeth B. Marney
Assistant Public Defender Assistant Attorney General
215 Regan Street 425 Fifth Avenue North
Cookeville, TN 38501 Nashville, TN 37243-0493
William Edward Gibson
District Attorney General
Lillie Ann Sells
Benjamin W. Fann
Assistant District Attorneys
145 Jefferson Avenue
Cookeville, TN 38501
Judge:Barker
First Paragraph:
The appellant, Max Eugene Martin, appeals the sentence he received
following his plea of guilty to one count of statutory rape, a Class E
felony. The trial court sentenced the appellant to eighteen months
confinement in the county jail and denied alternative sentencing.
URL:http://www.tba.org/tba_files/TCCA/martinme_opn.WP6
STATE OF TENNESSEE
vs.
JAMES EARL MASON,
a/k/a JAMES OSCAR MASON
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
ON APPEAL:
CURTIS H. GANN JOHN KNOX WALKUP
Assistant Public Defender Attorney General and Reporter
AT TRIAL: GEORGIA BLYTHE FELNER
Assistant Attorney General
MICHAEL D. RANDLES Cordell Hull Building, Second Floor
Assistant Public Defender 425 Fifth Avenue North
105 South Main Nashville, TN 37243-0493
P.O. Box 1119
Fayetteville, TN 37334 W. MICHAEL McCOWN
District Attorney General
ROBERT C. CRIGLER
Asst District Attorney General
One Public Square, Suite 100
Shelbyville, TN 37160
Judge:WADE
First Paragraph:
The defendant, James Earl Mason, who was indicted for both burglary
and theft, was convicted of theft of property under $500. The jury
assessed a fine of $500, and the trial court sentenced the defendant
to 11 months in the county jail. In this appeal of right, the primary
issue presented for review is whether the evidence was sufficient to
support the defendant's conviction. The defendant also claims that
the jury was inconsistent in its verdicts. We affirm the judgment.
URL:http://www.tba.org/tba_files/TCCA/mason_op.WP6
LARRY PITTMAN
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
GEORGE GOOGE JOHN KNOX WALKUP
Public Defender Attorney General & Reporter
DANIEL J. TAYLOR KENNETH W. RUCKER
Asst. Public Defender Asst. Attorney General
227 West Baltimore 425 Fifth Ave., North
Jackson, TN 38301 Cordell Hull Bldg., Second Fl.
Nashville, TN 37243-0493
JERRY WOODALL
District Attorney General
AL EARLS
Asst. District Attorney General
P.O. Box 2825
Jackson, TN 38301
Judge:PEAY
First Paragraph:
A Madison County jury convicted the petitioner of armed robbery in May
1984. The petitioner appealed, and this Court affirmed his conviction
on April 23, 1986. He then applied for permission to appeal to the
Supreme Court, but his application was denied on July 28, 1986. The
petitioner then filed a post-conviction petition alleging ineffective
assistance of counsel. His petition was denied and this Court
affirmed the denial on May 18, 1988. The petitioner then filed a
second petition for post-conviction relief on May 9, 1996. In this
petition, he alleges that the "moral certainty" jury instruction is
not constitutionally valid.
URL:http://www.tba.org/tba_files/TCCA/pittmanl_opn.WP6
STATE OF TENNESSEE
vs.
ROCKIE SMITH
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
ALAN BRYANT CHAMBERS JOHN KNOX WALKUP
-and- Attorney General & Reporter
HANDEL R. DURHAM, JR.
200 Jefferson Ave., Ste 750 GEORGIA BLYTHE FELNER
Memphis, TN 38103 Counsel for the State
425 Fifth Ave., North
Cordell Hull Bldg., Second Floor
Nashville, TN 37243-0493
JOHN W. PIEROTTI
District Attorney General
LORRAINE CRAIG
Asst. District Attorney General
201 Poplar, Suite 301
Memphis, TN 38103
Judge:PEAY
First Paragraph:
The defendant was indicted in May 1995 on two counts of aggravated
assault. A jury found him guilty of one count of simple assault. The
trial judge sentenced him to eleven months, twenty-nine days in the
county workhouse, but then suspended that sentence and placed the
defendant on probation. In this appeal as of right, the defendant
argues that the evidence presented at trial was not sufficient to
support a conviction for simple assault. After a review of the record
and applicable law, we find the evidence entirely sufficient and
affirm the conviction pursuant to Rule 20 of the Court of Criminal
Appeals.
URL:http://www.tba.org/tba_files/TCCA/smithr_opn.WP6
STATE OF TENNESSEE
vs.
CHARLES E. TAYLOR
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
A C WHARTON, JR. JOHN KNOX WALKUP
Public Defender Attorney General & Reporter
WALKER GWINN ELIZABETH T. RYAN
Asst. Public Defender Asst. Attorney General
201 Poplar, Suite 201 425 Fifth Ave., North
Memphis, TN 38103 Cordell Hull Bldg., Second Fl.
Nashville, TN 37243-0493
JOHN W. PIEROTTI
District Attorney General
ALANDA HORNE
Asst. District Attorney General
201 Poplar, Suite 301
Memphis, TN 38103
Judge:PEAY
First Paragraph:
The defendant was declared a habitual motor vehicle offender on
December 10, 1996. He now appeals and argues that such a declaration
violated the double jeopardy provisions of the state and federal
constitutions. He does not contest the underlying facts which led him
to be declared such an offender.
URL:http://www.tba.org/tba_files/TCCA/taylorce_opn.WP6
STATE OF TENNESSEE
vs.
TRACY C. THOMPSON
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
ON APPEAL:
JOHN KNOX WALKUP
DAVID A. COLLINS Attorney General and Reporter
211 Printers Alley Building
Fourth Floor JANIS L. TURNER
Nashville, TN 37201 Assistant Attorney General
Cordell Hull Building, Second Fl
AT TRIAL: 425 Fifth Avenue North
Nashville, TN 37243-0493
GLORIA A. DUMAS
Parkway Towers, Suite 1800 VICTOR S. (TORRY) JOHNSON, III
404 James Robertson Parkway District Attorney General
Nashville, TN 37219
GEORGE R. BONDS
Asst District Attorney General
Washington Square, Suite 500
222 2nd Avenue North
Nashville, TN 37201-1649
Judge:WOODALL
First Paragraph:
The defendant, Tracy C. Thompson, appeals as of right pursuant to
T.R.A.P. 3 from the order of the trial court finding him to be a
habitual motor vehicle offender. T.C.A. S 55-10-603. The defendant
argues that the trial court erred by considering two convictions
entered on January 20, 1995, as separate convictions under the Motor
Vehicle Habitual Offender Act. We disagree and affirm the judgment of
the trial court.
URL:http://www.tba.org/tba_files/TCCA/thompso1_op.WP6
STATE OF TENNESSEE
vs.
JAMES BYRON TRANSOU
Court:TCCA
Attorneys:
For Appellant: For Appellee:
Daniel J. Taylor John Knox Walkup
Assistant Public Defender Attorney General and Reporter
227 West Baltimore Street
Jackson, TN 38301 Deborah A. Tullis
(on appeal) Assistant Attorney General
450 James Robertson Parkway
Pamela J. Drewery Nashville, TN 37243-0493
Assistant Public Defender
227 West Baltimore Street Donald H. Allen
Jackson, TN 38301 Asst District Attorney General
(at trial) P.O. Box 2825
Jackson, TN 38302
Judge:WADE
First Paragraph:
The defendant, James Byron Transou, was convicted of attempted first
degree murder and aggravated assault. The trial court imposed
concurrent, Range II sentences of thirty-five years and eight years.
URL:http://www.tba.org/tba_files/TCCA/transouj_opn.WP6
GEORGE W. TUCKER
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT:
MARK A. MESLER
Ballin, Ballin & Fishman, P.C.
200 Jefferson Avenue, Suite 1250
Memphis, TN 38103-2328
FOR THE APPELLEE:
JOHN KNOX WALKUP
Attorney General and Reporter
PETER M. COUGHLAN
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
WILLIAM L. GIBBONS
District Attorney General
ROSEMARY S. ANDREWS
Assistant District Attorney General
201 Poplar Avenue, Suite 301
Memphis, TN 38103-1947
Judge:RILEY
First Paragraph:
The petitioner, George W. Tucker, appeals the order of the Shelby
County Criminal Court denying his petition for post-conviction relief.
He is presently serving an effective sentence of twelve (12) years
following his guilty pleas to the offenses of theft of property over
$10,000, theft of property over $1,000 and leaving the scene of an
accident. In his post-conviction petition he seeks to set aside his
convictions based upon ineffective assistance of counsel and
involuntariness of the guilty pleas. After an evidentiary hearing,
the trial court denied relief. We find no error and AFFIRM the
judgment of the trial court.
URL:http://www.tba.org/tba_files/TCCA/tuckergw_opn.WP6
STATE OF TENNESSEE
vs.
DANNY WALKER
Court:TCCA
Attorneys:
For Appellant: For Appellee:
Joyce Diane Stoots John Knox Walkup
Assistant Public Defender Attorney General and Reporter
107 South Court Square
Trenton, TN 38382 Janis L. Turner
Assistant Attorney General
Tom Crider Criminal Justice Division
Assistant Public Defender Cordell Hull Building, Second Floor
107 South Court Square 425 Fifth Avenue North
Trenton, TN 38382 Nashville, TN 37243-0493
Clayburn Peeples
District Attorney General
110 South College, Suite 200
Trenton, TN 38382
Larry Hardister
Asst District Attorney General
110 College Street, Suite 200
Trenton, TN 38382
Judge:WADE
First Paragraph:
The defendant, Danny Walker, entered a guilty plea to a sale of less
than .5 gram of cocaine, a Class C felony. Tenn. Code Ann. S
39-17-417. The trial court imposed a Range I, three-year sentence to
be served in Community Corrections and ordered a fine of $1,000.00.
Thereafter, the trial court revoked the alternative sentence and
ordered the defendant to serve a six-year sentence. On direct appeal,
this court reversed the order and remanded the cause for another
sentencing hearing because the trial court had failed to conduct a
hearing and make specific findings of fact in accordance with the
Criminal Sentencing Reform Act of 1989. State v. Danny Walker, No.
02C01-9508-CC-00025 (Tenn. Crim. App., at Jackson, Sept. 30, 1996).
After remand on the first appeal, the trial court reimposed a six-year
sentence, the maximum possible.
URL:http://www.tba.org/tba_files/TCCA/walkerd_opn.WP6
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