TBALink Opinion-Flash

August 7, 1998 -- Volume #4 -- Number #116

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
1-New Opinons From TSC-Workers Comp Panel
00-New Opinons From TCA
8-New Opinons From TCCA

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Lucian T. Pera
Editor-in-Chief, TBALink


JAMES G. COOPER
vs.
ASARCO INCORPORATED

Court:TSC - Workers Comp Panel

Attorneys: 

For Appellant:                    For Appellee:

Arthur G. Seymour                 Lynn Bergwerk
Robert L. Kahn                    Memphis, Tennessee 
Knoxville, Tennessee                        

Judge:Loser

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann. section 50-6-225(e)(3) for hearing and reporting
of findings of fact and conclusions of law.  The employer contends the
award of permanent partial disability benefits based on seventy-five
percent to the leg is excessive.  As discussed below, the panel has
concluded the award should be affirmed.

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

STATE OF TENNESSEE
vs.
STEVE WAYDE BONNER

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:
DANA L. SCOTT                   JOHN KNOX WALKUP
Assistant Public Defender       Attorney General and Reporter
18th Judicial District
117 East Main Street            GEORGIA BLYTHE FELNER
Gallatin, TN 37066              Assistant Attorney General
                                Cordell Hull Building, Second Floor
                                425 Fifth Avenue North
                                Nashville, TN 37243-0493

                                LAWRENCE RAY WHITLEY
                                District Attorney General

                                THOMAS B. DEAN
                                Assistant District Attorney General
                                18th Judicial District
                                113 West Main Street
                                Gallatin, TN 37066                            

Judge:SUMMERS

First Paragraph:

The appellant, Steve Wayde Bonner, appeals as of right from the trial
court's revocation of his probation sentence.  He contends that the
trial court failed to exercise a conscientious and intelligent
judgment in finding by a preponderance of the evidence that he
violated the terms and conditions of probation.  The appellant also
contends that the trial court failed to give him credit for time
served.  Based on our review of the briefs and of the entire record in
this cause, we conclude that this is an appropriate case for
affirmance under Rule 20, Tennessee Court of Criminal Appeals Rules.

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

STATE OF TENNESSEE
vs.
WAYNE COLEMAN BOONE

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:
SHARA A. FLACY                  JOHN KNOX WALKUP
Public Defender                 Attorney General and Reporter
22nd Judicial District
128 North Second Street         GEORGIA BLYTHE FELNER
P.O. Box 1208                   Assistant Attorney General
Pulaski, TN 38478               Cordell Hull Building, Second Floor
                                425 Fifth Avenue North
                                Nashville, TN 37243-0493

                                T. MICHAEL BOTTOMS
                                District Attorney General
                                22nd Judicial District
                                P.O. Box 459
                                Lawrenceburg, TN 38464                           

Judge:SMITH

First Paragraph:

The appellant, Wayne Coleman Boone, pled guilty to one count of
driving under the influence of an intoxicant (DUI), third offense, one
count of simple possession of marijuana, and two counts of driving on
a revoked license.  After a sentencing hearing, the appellant received
an effective sentence of six months in jail, followed by 11 months and
29 days on supervised probation.  He was ordered to pay a fine of
$1100 on the DUI conviction and a fine of $250 on the simple
possession of marijuana conviction.  The appellant was ordered to
serve 120 days before he would be eligible for work release, and his
driver's license was revoked for three years.  In this appeal as of
right, the appellant contends that his sentence is excessive. 
Specifically, the appellant contends that the trial court should have
sentenced him to the statutory minimum of 120 days in jail, see T.C.A.
S 55-10-403(a)(1), and that the trial court should have remitted the
mandatory fines based on his indigency.  The state, in a cross-appeal,
contends that the trial court erred by failing to revoke the
appellant's driving privileges.

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

THOMAS BRADEN
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:
W. RAY CULP
439 Battle Avenue
Franklin, TN  37064

MICHAEL D. RANDLES
Assistant District Public Defender
P.O. Box 1119
Fayetteville, TN 37334

FOR THE APPELLEE:
JOHN KNOX WALKUP
Attorney General and Reporter

DARYL J. BRAND
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN  37243-0493

WILLIAM MICHAEL MCCOWN
District Attorney General

WEAKLEY E. BARNARD
Assistant District Attorney General
Marshall County Courthouse
Room 407 
Lewisburg, TN  37091                          

Judge:MOORE

First Paragraph:

The petitioner, Thomas Braden, appeals the dismissal of his petition
for post-conviction relief.  Petitioner was convicted of three (3)
counts of aggravated rape and one (1) count of false imprisonment on
July 26, 1993.  On appeal, petitioner raises the issue of ineffective
assistance of counsel as follows: 1.    Failure of trial counsel to
object to amendment of the original indictment. 2.  Failure of trial
counsel to secure a complete preliminary hearing transcript.
3.  Failure of trial counsel to investigate the background of the
victim. 4.  Failure of trial counsel to obtain an independent
serologist. 5.  Failure to move to have the counts of the subsequent
indictment  merged. 6.  Failure of trial counsel to prepare for
the examination of witness, Jones. 7.   Failure of trial counsel
to properly voir dire jury. 8.  Failure of trial counsel to inform
petitioner of the effects of T.C.A. S 39-13-523. After a review of the
post-conviction record on appeal, argument of counsel, and the
applicable law, we affirm the judgment of the trial court.

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

STATE OF TENNESSEE
vs.
CRAIG A. HAZLETT

Court:TCCA

Attorneys:

For Appellant:                      For Appellee:

Curtis H. Gann                      John Knox Walkup
Assistant Public Defender           Attorney General and Reporter
Seventeenth Judicial District           
105 South Main                      Georgia Blythe Felner
P.O. Box 1119                       Counsel for the State 
Fayetteville, TN  37334             Cordell Hull Bldg., Second Floor 
(on appeal)                         425 Fifth Avenue North 
                                    Nashville, TN  37243-0493
Michael D. Randles 
Assistant Public Defender           J. B. Cox 
105 South Main                      and 
P.O. Box 1119                       Weakley E. Barnard 
Fayetteville, TN  37334             Asst. District Attorneys General
(on trial)                          Room 407, Marshall Co. Courthouse 
                                    Lewisburg, TN  37091                          

Judge:WADE

First Paragraph:

The defendant, Craig A. Hazlett, was found guilty of one count of
driving after being declared a Habitual Motor Vehicle Offender and one
count of driving on a revoked license.  The trial court imposed a
Range II sentence of three years, four months in the Department of
Correction.  Fines totaled $350.00.  The trial court merged the
driving on a revoked license count into the greater offense.

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

STATE OF TENNESSEE
vs.
SAMUEL L. LAMB, JR.

Court:TCCA

Attorneys: 

For the Appellant:              For the Appellee:

James Robin McKinney, Jr.       John Knox Walkup
Suite 103                       Attorney General and Reporter
214 Second Avenue North 
Nashville, TN  37201            Karen M. Yacuzzo
                                Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493                
                        
                                William Michael McCown
                                District Attorney General

                                Weakley E. Barnard
                                Asst. District Attorney General
                                Marshall County Courthouse
                                Lewisburg, TN  37091                         

Judge:Hayes

First Paragraph:

The appellant, Samuel L. Lamb, Jr., appeals as of right the sentencing
decision of the Marshall County Circuit Court.  Pursuant to a plea
agreement, the appellant pled guilty to three counts of theft of
property and received an effective five year sentence.  Following a
sentencing hearing, the trial court ordered that the appellant serve
270 days of this sentence in the county jail with the balance of the
sentence to be served in the community corrections program.  In this
appeal, the appellant contends that the trial court erred by denying
full probation or placement in community corrections. After review, we
affirm.

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

STATE OF TENNESSEE
vs.
JEFFREY AARON PEWITT

Court:TCCA

Attorneys: 

For Appellant:                      For Appellee:

Jeffery A. DeVasher                 John Knox Walkup
Assistant Public Defender           Attorney General & Reporter
1202 Stahlman Building              
Nashville, TN  37201                Daryl J. Brand
(on appeal)                         Assistant Attorney General
                                    425 Fifth Avenue North
Jefferson Dorsey                    Cordell Hull Bldg., Second Floor
Assistant Public Defender           Nashville, TN  37243-0493
1202 Stahlman Building              
Nashville, TN  37201                Nicholas Bailey
(at trial)                          Asst. District Attorney General
                                    Washington Square, Suite 500
                                    222 Second Avenue North
                                    Nashville,  TN  37201                         

Judge:WADE

First Paragraph:

The defendant, Jeffrey Aaron Pewitt, indicted on four counts of
aggravated robbery, entered pleas of guilt to three counts of robbery,
a Class C felony.  See Tenn. Code Ann. S 39-13-401.  The trial court
classified the defendant as a Range II offender and imposed two
concurrent nine-year sentences and a consecutive sentence of six
years.  This effective sentence of fifteen years is to be served
consecutively to a previous sentence in which the defendant's release
on community corrections had been revoked.

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

STATE OF TENNESSEE
vs.
ANTONIOUS J. POOLE

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

MARK L. PITTMAN                 JOHN KNOX WALKUP 
295 Washington Avenue, #2       Attorney General & Reporter
Memphis, TN  38103
                                ELIZABETH T. RYAN 
                                Assistant Attorney General
                                2nd Floor, Cordell Hull Building
                                425 Fifth Avenue North
                                Nashville, TN  37243
    
                                JOHN W. PIEROTTI 
                                District Attorney General 

                                JOHNNY R. McFARLAND
                                Assistant District Attorney General
                                Criminal Justice Center, Suite 301
                                201 Poplar Avenue 
                                Memphis, TN  38103                          

Judge:WOODALL

First Paragraph:

The Defendant, Antonious J. Poole, appeals as of right from his
conviction in the Criminal Court of Shelby County.  In a single count
indictment, Defendant and co-defendant Gary Hunter were charged with
aggravated robbery.  Following a jury trial, Defendant was convicted
of aggravated robbery and Hunter was convicted of theft of property
over $1,000.00.  In this appeal, Defendant presents the following
issues: 1) Whether the evidence presented at trial was sufficient to
support the conviction for aggravated robbery; 2) Whether the trial
court's redaction of co-defendant Hunter's statement constituted
reversible error and whether such redaction compelled the Defendant to
testify in violation of his Fifth and Sixth Amendment rights; and 3)
Whether the trial court's failure to sever the co-defendant from the
trial constitutes reversible error; We affirm the judgment of the
trial court.

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

GREGORY TURNER
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:

GREGORY TURNER, pro se
#241929
Cold Creek Correctional Facility
P.O. Box 1000
Henning, TN 38041-1000

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

CLAYBURN L. PEEPLES
District Attorney General
110 S. College Street
Trenton, TN 38382                         

Judge:RILEY

First Paragraph:

The petitioner, Gregory Turner, appeals the Crockett County Circuit
Court's dismissal of his petition for post-conviction relief.  The
petitioner contends his plea agreement in Crockett County designating
concurrent sentencing with Haywood County was violated when the
Haywood County trial court ran the sentences consecutive.  The state
concedes error and suggests that the petitioner be allowed to withdraw
the guilty plea in Crockett County.  We REMAND the case for further
proceedings due to the lack of a complete record of the Haywood County
proceedings.

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


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