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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
- 00-New Opinons From TSC
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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
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
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
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
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
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
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
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
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
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
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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