TBALink Opinion-Flash

May 12, 1998 -- Volume #4 -- Number #075

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
00-New Opinons From TSC-Workers Comp Panel
00-New Opinons From TCA
04-New Opinons From TCCA

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George Dean
TBALink Chief Editor


HAZEL MAXINE COLN and       
husband, CARL F. COLN
vs.
CITY OF SAVANNAH, TENNESSEE
and
DEBBIE VANCLEAVE
vs.
MATTHEW MARKOWSKI and       
wife, DIANE MARKOWSKI,

Court:TSC

Attorneys:

For Appellants, Coln:           For Appellee, City of Savannah:
Edward L. Martindale, Jr.       James A. Hopper
DREW AND MARTINDALE             Savannah, Tennessee
Jackson, Tennessee

For Appellant, Vancleave:       For Appellees, Markowski:
James H. Bradberry              Russell E. Reviere
JAMES H. BRADBERRY              Bradford D. Box
   & ASSOCIATES                 RAINEY, KIZER, BUTLER, REVIERE
Dresden, Tennessee              & BELL, P.L.C.
                                Jackson, Tennessee

For Amicus Curiae, Tennessee    For Amicus Curiae, Tennessee
Trial Lawyers Association:      Municipal Attorneys Association:
John A. Day                     Todd Moore
Donald Capparella               HAYNES & FREEMAN, PLC
Nashville, Tennessee            Goodlettsville, Tennessee
        and
Jeffrey A. Garrety
Jackson, Tennessee
                         
Judge:ANDERSON

First Paragraph:

We granted permission to appeal in two premises liability cases to
determine a common question to both - whether and to what extent the
traditional open and obvious rule eliminating a landowner's duty to
one injured as a result of an open and obvious danger continues to be
viable after the adoption of comparative fault in McIntyre v.
Balentine, 833 S.W.2d 52 (Tenn. 1992).

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

STATE OF TENNESSEE
vs.
JANICE FAY DUNCAN and       
NICKY LYNN DUNCAN

Court:TCCA
                         
Judge:PEAY

First Paragraph:

The appellants in this case pled guilty to simple possession of
marijuana and were sentenced to eleven months and twenty-nine days and
fined $350.  It appears the appellants were placed on probation after
serving fifteen days in the county jail.  Prior to entering the guilty
pleas, the appellants filed a motion to suppress all evidence obtained
from the search of their residence.  After a hearing, the trial court
denied the motion.  The appellants have attempted to reserve the right
to appeal the suppression issue.  Based upon our review of the entire
record before the Court, including the briefs of the parties, we
affirm the judgment of the trial court pursuant to Rule 20, Rules of
the Court of Criminal Appeals.

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

BENJAMIN MOSS
vs.
STATE OF TENNESSEE

Court:TCCA
                        
Judge:SUMMERS

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.  The petitioner was originally convicted of
second degree murder and sentenced to forty years imprisonment.  This
Court affirmed the conviction and sentence on appeal.  State v.
Benjamin Moss, No. 02C01-9404-CR-00072 (Tenn. Crim. App., Nov. 2,
1994).  In 1995, the petitioner filed a petition for post-conviction
relief, which was denied by the trial court after an evidentiary
hearing.  On appeal, finding that the petitioner was denied his right
to file an application for permission to appeal to the Supreme Court,
this Court vacated and reinstated its opinion on the direct appeal. 
Benjamin Moss v. State, No. 02C01-9602-CR-00064 (Tenn. Crim. App.,
Feb. 18, 1997).  However, the petitioner never filed an application
for permission to appeal.

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

ROY CLEVELAND SMITH, JR.
VS.
STATE OF TENNESSEE

Court:TCCA
                     
Judge:SUMMERS

First Paragraph:

This case represents an appeal from the dismissal of the petitioner's
petition for post-conviction relief.  On June 17, 1996, the petitioner
pled guilty to rape of a child and received a fifteen year sentence. 
No appeal was taken.  On June 23, 1997, the petitioner's petition for
post-conviction relief was filed by the trial court.  Finding that the
statute of limitations had expired, the trial court dismissed the
petition without a hearing.

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

KEITH WOOTEN
vs.
DONAL CAMPBELL,         
COMMISSIONER, T.D.O.C., ET AL.

Court:TCCA
                          
Judge:WOODALL

First Paragraph:

This is an appeal from the trial court's denial of the petitioner's
petition for writ of habeas corpus.  The record reflects that in 1989
the petitioner was convicted on two counts of armed robbery and was
sentenced to thirty-five years on each count.  These sentences were
run concurrent with one another, concurrent with a previous ten year
sentence for armed robbery, and consecutive to two separate four year
sentences for grand larceny.  The petitioner was paroled from prison
in May 1991.  The Parole Board was apparently unaware of the
petitioner's thirty-five year sentence for armed robbery when it
authorized the petitioner's release.  Upon discovery of its error, the
Parole Board issued a warrant for the petitioner's arrest in September
1991.  In November 1991, the petitioner was also convicted on two
counts of aggravated burglary and received two concurrent three year
sentences to be served consecutively to the thirty-five year sentence
for armed robbery.  The petitioner thereafter filed a petition for a
writ of habeas corpus in the trial court claiming, in part, that the
Parole Board improperly revoked his parole without a hearing.  Finding
that the petitioner's sentences are not void and have not expired, the
trial court denied the petition.

URL:http://www.tba.org/tba_files/TCCA/wooten1_ord.WP6

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