TBALink Opinion-Flash

May 28, 1998 -- Volume #4 -- Number #082

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

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George Dean
TBALink Chief Editor


STATE OF TENNESSEE
vs.
VIRGINIA AILENE GANN

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:

VICKIE FRYE-FOWLKES (at trial)      JOHN KNOX WALKUP
Attorney at Law                     Attorney General & Reporter
P.O. Box 247        
Winchester, TN  37398               KAREN M. YACUZZO
                                    Assistant Attorney General
ROBERT S. PETERS (on appeal)        425 Fifth Ave. North
Attorney at Law                     2d Floor, Cordell Hull Bldg.
100 First Ave., S.W.                Nashville, TN  37243-0493
Winchester, TN  37398
                                    C. MICHAEL LAYNE
                                    District Attorney General

                                    STEPHEN E. WEITZMAN
                                    Asst. District Attorney General
                                    P.O. Box 147
                                    Manchester, TN  37349-0147                          

Judge:WITT

First Paragraph:

The defendant, Virginia Ailene Gann, appeals her convictions of second
offense driving under the influence and evading arrest. Her
convictions resulted from a jury trial in the Coffee County Circuit
Court.  The trial court sentenced her to serve eleven months and 29
days for driving under the influence, with 180 days of incarceration
followed by probation, and two years of incarceration for evading
arrest.  Concurrent sentences were imposed.  In this direct appeal,
Gann contends the convicting evidence is insufficient to support
findings of guilt beyond a reasonable doubt and that her sentences are
excessive.  Following this court's review of the record and the briefs
of the parties, we affirm the judgment of the trial court.

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

STATE OF TENNESSEE
vs.
JOEL GUILDS

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:


ERIC L. DAVIS                   JOHN KNOX WALKUP
317 Main St., Suite 208         Attorney General & Reporter
Franklin, TN  37064
                                JANIS L. TURNER
                                Counsel for the State
                                425 Fifth Ave., North
                                Cordell Hull Bldg., Second Fl.                              
                                Nashville, TN  37243-0493
                
                                JOSEPH D. BAUGH
                                District Attorney General

                                MARK PURYEAR
                                Asst. District Attorney General
                                P.O. Box 937
                                G-6 Williamson County Courthouse
                                Franklin, TN  37064 
                          

Judge:PEAY

First Paragraph:

The Williamson County grand jury returned a two count presentment
against the defendant charging him with alternative counts of theft of
property in excess of one thousand dollars ($1000).  Following a jury
trial, he was convicted of the first count and was given a four year
sentence.  The trial court ordered the defendant to serve 150 days of
his sentence, day for day, with the remainder to be served on
intensive probation.  The defendant now appeals and argues that the
evidence was insufficient to convict him of theft, that his sentence
is excessive, and  that the trial court erred in denying his motion
for a new trial.  After a review of the record and applicable law, we
find no error and affirm the judgment of the court below.

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

TRACY HIGGINBOTHAM
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:                FOR THE APPELLEE:

TRACY HIGGINBOTHAM, pro se        JOHN KNOX WALKUP  
(At Trial)                        Attorney General & Reporter

MARK T. FREEMAN                   DARYL J. BRAND
1092 Gen. George Patton Drive     Asst. Attorney General
Nashville, TN 37221               425 Cordell Hull Building, 2nd Fl 
(On Appeal)                       Nashville, TN 37243-0493
                          
Judge:PEAY

First Paragraph:

The petitioner, Tracy Higginbotham, appeals the Wayne County Circuit
Court's dismissal of his petition for a writ of habeas corpus.  He was
convicted by a jury in the Robertson County Criminal Court on
September 11, 1992 of two counts of aggravated sexual battery and one
count of aggravated rape. He received an effective sentence of twenty
years in the Tennessee Department of Correction.  In his habeas corpus
petition, he challenged the sufficiency of the Robertson County
indictment, which alleged five counts of aggravated sexual battery and
one count of aggravated rape, on the grounds that the essential mens
rea elements were not stated.  After a review of the record on appeal,
the briefs of the parties, and the applicable law, we affirm the
dismissal of the habeas corpus petition.

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


Note: These are reposted today due to a file name error yesterday.

STATE OF TENNESSEE
vs.
KEITH E. HODGE

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE:

CHARLES I. POOLE            JOHN KNOX WALKUP
133 Commerce Street         Attorney General and Reporter
Sevierville, TN 37862
                            MARVIN E. CLEMENTS, JR.
                            Assistant Attorney General
                            425 Fifth Avenue North
                            Nashville, TN 37243

                            AL SCHMUTZER, JR.
                            District Attorney General

                            STEVEN R. HAWKINS
                            Sevier County Courthouse
                            Sevierville, TN 37862
                          

Judge:SMITH

First Paragraph:

On August 20, 1996 a Sevier County jury convicted Appellant, Keith
Hodge, of nine counts of aggravated rape and two counts of aggravated
sexual battery. After a sentencing hearing, the trial court sentenced
Appellant to twenty years imprisonment for each aggravated rape
conviction and ten years imprisonment for each aggravated sexual
battery conviction. Three of the twenty year sentences were to be
served consecutively, all other sentences were to be served
concurrently, for an aggregate sentence of sixty years to be served as
a Range I standard offender. After the trial court denied Appellant's
motion for a new trial, Appellant filed this appeal, challenging the
judgment of the trial court.

URL:http://www.tba.org/tba_files/TCCA/Hodgekei_opn.WP6
URL:http://www.tba.org/tba_files/TCCA/Hodgekei2_opn.WP6
URL:http://www.tba.org/tba_files/TCCA/Hodgekei3_opn.WP6
Opinion-Flash

ROLAND H. MATLOCK
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:

TERRY J. CANADY
211 Printers Alley Building
Suite 400
Nashville, TN  37201-1414
FOR THE APPELLEE:

JOHN KNOX WALKUP
Attorney General and Reporter

LISA A. NAYLOR
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN  37243-0493

VICTOR S. JOHNSON, III
District Attorney General

KYMBERLY HAAS
Assistant District Attorney General
Washington Square, Suite 500
222 Second Avenue North
Nashville, TN  37201-1649                      

Judge:SMITH

First Paragraph:

The petitioner, Roland H. Matlock, appeals the order of the Criminal
Court of Davidson County denying his petition for post-conviction
relief after an evidentiary hearing.  He is presently serving an
effective sentence of thirty-five (35) years as a result of guilty
pleas to aggravated burglary, aggravated kidnapping and four (4)
counts of rape.  On appeal petitioner claims he received ineffective
assistance of counsel because: (1) counsel persuaded him to plead
guilty to aggravated kidnapping contrary to the principles of State v.
Anthony; and (2) counsel failed to advise him of his right to seek
second tier appellate review of his convictions and sentences to the
Tennessee Supreme Court.  Because we find that petitioner was denied
his right to seek second tier appellate review, we grant him the right
to seek a delayed appeal to the Tennessee Supreme Court.  In all other
respects, the judgment of the trial court is affirmed.

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

STATE OF TENNESSEE
vs.                                             
JACK EDWARD PIERSON

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

JOHN KNOX WALKUP                    THOMAS McKINNEY 
Attorney General & Reporter         222 E. Center Street
                                    Kingsport, TN 37660
ELLEN H. POLLACK                
Assistant Attorney General          
Cordell Hull Building - 2nd Fl      
425 Fifth Avenue North              
Nashville, TN 37243

H. GREELEY WELLS JR.
District Attorney General

EDWARD WILSON
Assistant District Attorney
P.O. Box 526
Blountville, TN 37617                         

Judge:CLARK

First Paragraph:

The State appeals the trial court's grant of defendant's motion to
suppress evidence seized based on an invalid warrantless search.  The
judgment of the trial court is affirmed.

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

STATE OF TENNESSEE
vs.
REGINALD SUTTON

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

MARK E. STEPHENS                JOHN KNOX WALKUP 
District Public Defender        Attorney General & Reporter

JAMIE L. NILAND                 SANDY C. PATRICK 
Assistant Public Defender       Assistant Attorney General
1209 Euclid Avenue              2nd Floor, Cordell Hull Building
Knoxville, TN  37921            425 Fifth Avenue North 
                                Nashville, TN  37243

                                RANDALL E. NICHOLS
                                District Attorney General 

                                MARSHA SELECMAN
                                Assistant District Attorney General
                                City-County Building 
                                Knoxville, TN  37902                          

Judge:WOODALL

First Paragraph:

The Defendant, Reginald Sutton, appeals from the sentencing order of
the Knox County Criminal Court.  Defendant pled guilty to one count of
making harassing telephone calls.  Following the sentencing hearing,
the trial court sentenced Defendant to serve eleven (11) months and
twenty-nine (29) days, to be served at seventy-five percent (75%).  
Defendant appeals the sentence, arguing that it does not conform to
the requirements of the Criminal Sentencing Reform Act of 1989, and
that the sentence is excessive and should be reduced on appeal or
remanded for a new sentencing hearing.  We affirm the judgment of the
trial court.

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

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