TBALink Opinion-Flash

July 30, 1998 -- Volume #4 -- Number #111

What follows is the case style or name, first paragraph, author's name, and the names of the attorneys for the parties of each opinion released today from Tennessee's three appellate courts.

This Issue (IN THIS ORDER):
00-New Opinons From TSC
00-New Opinons From TSC-Rules
2-New Opinons From TSC-Workers Comp Panel
00-New Opinons From TCA
9-New Opinons From TCCA

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Lucian T. Pera
Editor-in-Chief, TBALink


DARRELL SWEARENGIN, JR.
vs. 
PACIFIC EMPLOYERS INSURANCE
vs.
DINA TOBIN, DIRECTOR, DIVISION
OF WORKERS' COMPENSATION
TENNESSEE DEPARTMENT OF
LABOR, SECOND INJURY FUND

Court:TSC - Workers Comp Panel

Attorneys:

For the Appellant:                  For the Appellee (Swearengin):

John Knox Walkup                    Catherine B. Clayton
Attorney General and Reporter       Spragins, Barnett, Cobb & Butler
                                    110 East Baltimore
Dianne Stamey Dycus                 Jackson, TN  38301
Senior Counsel              
Civil Division                      For the Appellee (Pacific):
425 Fifth Avenue North      
2nd Floor, Cordell Hull Building    Julia J. Tate
Nashville, TN  37243-0499           4413 Dakota Avenue
                                    P.O. Box 90564
                                    Nashville, TN  37209                          

Judge:BYERS

First Paragraph:

There are no issues of fact in dispute in this case.  All sides agree
that the plaintiff is totally and permanently disabled and that he
qualifies for payment until age 65.  Because the injury in this case
was subsequent to previous injuries, the Second Injury Fund incurred
liability under Tenn. Code Ann. S 50-6-208(a).  The employer and the
Second Injury Fund agree that their liability is properly apportioned
at 25 percent to the employer and 75 percent to the Second Injury
Fund.

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

VICKIE SUE HEIDEL
vs. 
BARNES & NOBLE BOOKSTORES, INC.                            
and ROYAL INSURANCE COMPANY

Court:TSC - Workers Comp Panel

Attorneys:

FOR THE APPELLANTS:                 FOR THE APPELLEE:
                            
RANDOLPH A. VEAZEY                  SONYA W. HENDERSON    
CONNIE JONES                        218 West Main Street
GLASCOW & VEAZEY                    Suite 1                      
Washington Square                   Murfreesboro, Tennessee 37130
222 Second Ave., North 
Suite 312
Nashville, Tennessee 37201-1649                           

Judge:RUSSELL

First Paragraph:

The plaintiff/appellee employee, Vicki Sue Heidel, was working as a
janitor for the State of Tennessee at Tennessee Technological
University when she sustained a low back sprain or strain while
lifting a waste basket on January 31, 1992.  Her workers' compensation
claim against the State of Tennessee was resolved upon an adjudication
of a resultant 6% permanent partial disability to the body as a whole.

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

STATE OF TENNESSEE
vs.
THOMAS R. BALDWIN

Court:TCCA

Attorneys:

For the Appellant:              For the Appellee:

Karl Dean                       John Knox Walkup
District Public Defender        Attorney General of Tennessee
     and                        and             
J. Michael Engle                Ellen H. Pollack
Assistant Public Defender       Asst. Attorney General of Tennessee
Stahlman Bldg., Suite 1202      425 Fifth Avenue North      
Nashville, TN 37201-5066        2d Floor, Cordell Hull Building
(AT TRIAL)                      Nashville, TN 37243-0493
          
                                Victor S. Johnson, III
Karl Dean                       District Attorney General
District Public Defender                and
     and                        Sharon Brox
Jeffrey A. DeVasher             Washington Square
Assistant Public Defender       222 2nd Avenue North
Stahlman Bldg., Suite 1202      Nashville, TN 37201-1649
Nashville, TN 37201-5066                          

Judge: TIPTON

First Paragraph:

The defendant, Thomas R. Baldwin, appeals as of right from his
convictions by a jury in the Davidson County Criminal Court for
attempted second degree murder, a Class B felony, aggravated assault
with a deadly weapon, a Class C felony, reckless endangerment, a Class
E felony, and unlawful possession of a weapon, a Class A misdemeanor.
He was sentenced as a Range I, standard offender to twelve years for
the attempted second degree murder conviction, four years and six
months for the aggravated assault conviction, one year and six months
for the reckless endangerment conviction, and eleven months and
twenty-nine days for the unlawful possession of a weapon conviction.
The trial court ordered that the defendant serve his felony sentences
in the custody of the Department of Correction and that the attempted
second degree murder and aggravated assault sentences be served
consecutively.  The defendant presents the following issues for our
review: (1) whether the evidence is sufficient to support the reckless
endangerment conviction;  (2) whether the trial court erred by
allowing the reckless endangerment conviction separate from the
attempted second degree murder and aggravated assault convictions; 
(3) whether the trial court erred by imposing excessive sentences for
the attempted second degree murder and aggravated assault convictions
and by ordering partial consecutive sentences.  We affirm the
convictions for attempted second degree murder and aggravated assault.
 We reverse the conviction for felony reckless endangerment and
dismiss the charge.  We modify the defendant's sentence for aggravated
assault to three years.

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

STATE OF TENNESSEE
vs.
DIRK BRADEN CARTER

Court:TCCA

Attorneys:

FOR THE APPELLANT:

C. DAVID JONES
P.O. Box 707
150 W. Main Street
Huntingdon, TN  38344-0707

FOR THE APPELLEE:

JOHN KNOX WALKUP
Attorney General and Reporter

MARVIN E. CLEMENTS, JR.
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN  37243-0493

G. ROBERT RADFORD
District Attorney General

ELEANOR CAHILL
Assistant District Attorney General
111 Church Street
P.O. Box 686
Huntingdon, TN  38344-0686                          

Judge: RILEY

First Paragraph:

The defendant, Dirk Braden Carter, was convicted by a Carroll County
jury of aggravated assault, a Class C felony.  He received a sentence
of three (3) years as a Range I, standard offender.  The trial court
ordered that defendant serve six (6) months in confinement, with the
remainder of defendant's sentence to be served on supervised
probation.  The trial court further ordered that defendant be
prohibited from entering the State of Tennessee during his
probationary period.  On appeal, defendant claims that the trial court
erred in (1) failing to sentence him as an especially mitigated
offender, and (2) ordering that defendant serve six (6) months in
confinement.  We find that the trial court erroneously prohibited
defendant from returning to Tennessee during his probationary period;
therefore, the judgment is modified to delete this provision.  In all
other respects, the judgment of the trial court is affirmed.

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

STATE OF TENNESSEE
vs.
WILLIE EARL CECIL   

Court:TCCA

Attorneys:

For the Appellant:                  For the Appellee:

Hershell D. Koger                   John Knox Walkup
135 N. First Street                 Attorney General & Reporter
P.O. Box 1148
Pulaski, TN. 38478                  Georgia Blythe Felner
                                    Assistant Attorney General
                                    2d Floor, Cordell Hull Building
                                    425 Fifth Avenue North
                                    Nashville, TN. 37243-0493

                                    T. Michael Bottoms
                                    District Attorney General

                                    James Lee Bailey, III
                                    Assistant District Attorney
                                    10 Public Square
                                    P.O. Box 1619
                                    Columbia, TN. 38402-1619                          

Judge:BARKER

First Paragraph:

The appellant, Willie Earl Cecil, appeals as of right from the Maury
County Circuit Court's revocation of his probation.  We affirm the
judgment of the trial court.

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

STATE OF TENNESSEE
vs.
ROBERT FARLEY

Court:TCCA

Attorneys:
    
FOR THE APPELLANT:                  FOR THE APPELLEE:

STEVEN A. CASSETTY                  JOHN KNOX WALKUP
P. O. Box 815                       Attorney General and Reporter
204B East Hull Avenue
Gainesboro, TN  38562               DARYL J. BRAND
                                    Assistant Attorney General
EDWIN SADLER                        425 Fifth Avenue North
One S. Jefferson Avenue, Suite 1    Nashville, TN  37243
Cookeville, TN  38501
                                    TOM P. THOMPSON, JR.
                                    District Attorney General

                                    ROBERT HIBBETT
                                    Assistant District Attorney
                                    Lebanon, TN                            

Judge:SMITH

First Paragraph:

On April 19, 1996, a Jackson County jury found Appellant, Robert
Farley, guilty of two counts of simple assault, upon an indictment
charging him with aggravated rape, aggravated assault by use of a
deadly weapon, and aggravated assault by causing serious bodily
injury. After a sentencing hearing, the trial court sentenced
Appellant to eleven months and twenty-nine days, ninety days of which
was to be served in jail and the remaining time to be served on
supervised probation. Appellant appeals both the judgment and the
sentence, raising several issues: 1) whether the State presented
sufficient evidence at trial to sustain the convictions on two counts
of simple assault; 2) whether the trial court erroneously prevented
Appellant from presenting an alibi defense; and 3) whether the trial
court appropriately sentenced Appellant to ninety days in jail
followed by probation.

After a review of the record, we affirm the judgment of the trial
court.

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

STATE OF TENNESSEE
vs.
GERALD SCOTT LONG,

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:

CARY TAYLOR                     JOHN KNOX WALKUP
Attorney at Law                 Attorney General & Reporter
547 E. Sullivan St.
Kingsport, TN  37660            TODD R. KELLEY
                                Asst. Attorney General
                                425 Fifth Ave. N., 2d Floor
                                Nashville, TN  37243-0493

                                H. GREELEY WELLS, JR.
                                District Attorney General

                                GREG NEWMAN
                                Asst. District Attorney General
                                P.O. Box 526
                                Blountville, TN  37617-0526                         

Judge:WITT

First Paragraph:

The defendant, Gerald Scott Long, appeals the manner of service of his
concurrent eleven month, 29 day sentences for his misdemeanor
convictions of casual exchange and reckless endangerment. The length
of Long's sentences were agreed upon as part of a guilty plea
settlement, and the manner of service was left for determination by
the Sullivan County Criminal Court.  Following a hearing, the court
denied alternative sentencing and ordered Long to serve his sentences
in the county jail.  In this direct appeal, Long claims he should have
received probation or some other form of alternative sentencing. 
Following a review of the record, we affirm the judgment of the trial
court insofar as sentencing is concerned.  However, we remand this
matter to the trial court for correction of an error on the judgment
form in case S37,948.

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

STATE OF TENNESSEE
vs.
SHELLY S. PERRY

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:


TIMOTHY JOEL WILLIAMS               JOHN KNOX WALKUP
147 Jefferson, Ste. 909             Attorney General & Reporter
Memphis, TN 38103
    (On Appeal)                     DOUGLAS D. HIMES
                                    Asst. Attorney General
ALYSON CHENSASKY                    John Sevier Bldg.
142 N. Third                        425 Fifth Ave., North       
Memphis, TN 38103                   Nashville, TN  37243-0493
    (At Trial)          
                                    WILLIAM L. GIBBONS
                                    District Attorney General

                                    JAMES CHALLEN
                                    Asst. District Attorney General
                                    201 Poplar St., Suite 301
                                    Memphis, TN 38103                        

Judge: PEAY

First Paragraph:

The defendant was indicted on two counts of theft of property worth
more than one thousand dollars ($1000) but less than ten thousand
dollars ($10,000) and one count of theft of property worth less than
five hundred dollars ($500).  After entering a negotiated plea of
guilty on all charges, the defendant was given an effective sentence
of two years imprisonment.  The defendant now appeals, arguing that
the trial court should have granted her an alternative sentence in
lieu of imprisonment.  Finding no merit in the defendant's argument,
we affirm.

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

STATE OF TENNESSEE
vs.
WILLIAM BURT SMITH

Court:TCCA

First Paragraph:

The appellant pled guilty to aggravated assault and was sentenced to
five years on supervised probation.  Subsequently, a probation
violation report was issued, alleging the following violations: (1)
failure to obey the laws -- arrested for driving on a suspended
license, drug abuse, and possession of drug paraphernalia, (2) failure
to report these arrests to the probation officer, (3) failure to
notify the probation officer or request permission to change residence
to Ohio, (4) failure to report to the probation officer, (5)
possession of narcotic drugs, (6) failure to pay $180 in probation
fees, and (7) failure to pay restitution in the amount of $94.  A
probation violation warrant was issued, and after a hearing, the trial
court revoked the appellant's probation and ordered him to serve the
entire five-year sentence in incarceration.

URL:http://www.tba.org/tba_files/TCCA/smithwb1_ord.WP6
Opinion-Flash

KIMBERLY SUTTON STREET
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:

CHARLES R. RAY
211 Third Avenue North
P.O. Box 198288
Nashville, TN 37219-8288

FOR THE APPELLEE:

JOHN KNOX WALKUP
Attorney General and Reporter

ELLEN H. POLLACK
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN  37243-0493

WILLIAM C. WHITESELL, JR.
District Attorney General
303 Rutherford Co. Judicial Bldg.
Murfreesboro, TN 37130                          

Judge: RILEY

First Paragraph:

The petitioner, Kimberly Sutton Street, appeals the denial of her
petition for post-conviction relief by the Circuit Court of Rutherford
County.  The petitioner contends that the trial court did not have
jurisdiction to alter the conditions of her appeal bond; therefore,
the alteration resulted in "punishment."  She contends that serving
the original sentence imposed by the trial court would violate her
constitutional right against double jeopardy.  The judgment of the
trial court is AFFIRMED.

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

STATE OF TENNESSEE
vs.
JERRY TAYLOR

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:

John H. Henderson                   John Knox Walkup
District Public Defender            Attorney General & Reporter
P.O. Box 68                         425 Fifth Avenue, North
Franklin, TN  37065-0068            Nashville, TN  37243-0497

Vanessa P. Bryan                    Karen M. Yacuzzo
Assistant Public Defender           Assistant Attorney General
P.O. Box 68                         425 Fifth Avenue, North
Franklin, TN  37065-0068            Nashville, TN  37243-0497

Larry D. Drolsum                    Joseph D. Baugh
Assistant Public Defender           District Attorney General
P.O. Box 68                         P.O. Box 937
Franklin, TN  37065-0068            Franklin, TN  37065-0937

                                    John W. Barringer
                                    Asst. District Attorney General
                                    P.O. Box 937
                                    Franklin, TN  37065-0937

                                    Jeff P. Burks
                                    Asst. District Attorney General
                                    P.O. Box 937
                                    Franklin, TN  37065-0937                          

Judge: WADE

First Paragraph:

The defendant, Jerry Taylor, was convicted of second degree murder, a
Class A felony.  The trial court imposed a sentence of twenty-one
years and fined the defendant $5,000.

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


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