TBALink Opinion-Flash

August 24, 1998 -- Volume #4 -- Number #125

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

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Lucian T. Pera
Editor-in-Chief, TBALink



SAMUEL L. ADAMS
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys:  

FOR THE APPELLANT:              FOR THE APPELLEE:

Samuel L. Adams, Pro Se         John Knox Walkup
T.C.I.P.                        Attorney General & Reporter 
Route 1
Only, TN 37140-9709             Timothy F. Behan 
                                Assistant Attorney General
John H. Henderson               425 Fifth Avenue North
District Public Defender        Nashville, TN 37243-0493

Elaine B. Beeler                Joseph D. Baugh, Jr.
Asst District Public Defender   District Attorney General
P.O. Box 68
Franklin, TN 37065-0068         Ronald L. Davis
                                Asst District Attorney General
                                P.O. Box 937
                                Franklin, TN 37065-0937                        

Judge:SUMMERS

First Paragraph:

The appellant, Samuel Adams, filed a petition for habeas corpus relief
in the Hickman County Circuit Court, alleging that his sentences had
expired.  After a hearing, the court dismissed the petition.  The
issue on appeal is whether the appellant's sentences have expired,
entitling him to relief.

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

STATE OF TENNESSEE
VS.
MITCHELL D. ASHLEY

Court:TCCA

Attorneys: 

FOR THE APPELLANT:          FOR THE APPELLEE:

Philip A. Condra            John Knox Walkup
District Public Defender    Attorney General & Reporter
204 Betsy Pack Drive        425 Fifth Avenue, North
Jasper, TN  37347           Nashville, TN  37243

                            Ellen H. Pollack
                            Assistant Attorney General
                            425 Fifth Avenue, North
                            Nashville, TN  37243

                            James M. Taylor
                            District Attorney General
                            265 Third Avenue, Suite 300
                            Dayton, TN  37321

                            William B. Copeland
                            Assistant District Attorney General
                            Franklin County Courthouse
                            Winchester, TN  37398                         

Judge:LAFFERTY

First Paragraph:

The appellant, Mitchell D. Ashley (defendant), was convicted of theft
of property, a Class D felony, and possession of a controlled
substance, a Class A misdemeanor by a jury of his peers. The trial
court found the defendant a standard offender and imposed a Range I
sentence of four (4) years in the Department of Correction for the
theft conviction and eleven months and twenty-nine days in the county
jail for the drug charge. The defendant was also fined $2,500.  The
trial court ordered that the two sentences run concurrently for an
effective sentence of four years.

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


STATE OF TENNESSEE
VS.
TERRY JOE BREWER,

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE:

JULIE A. MARTIN             JOHN KNOX WALKUP
P.O. Box 426                Attorney General and Reporter
Knoxville, TN 37901-0426
                            TODD R. KELLEY
                            Assistant Attorney General
                            425 Fifth Avenue North
                            Nashville, TN 37243

                            MIKE FLYNN
                            District Attorney General

                            PHILIP MORTON
                            Assistant District Attorney General
                            363 Court Street
                            Maryville, TN 37804                          

Judge:WELLES

First Paragraph:

The Defendant, Terry Joe Brewer, appeals as of right pursuant to Rule
3 of the Tennessee Rules of Appellate Procedure.  He was convicted,
upon his pleas of guilty, of violating the Motor Vehicle Habitual
Offender's Act, driving while under the influence of an intoxicant,
Class E felony evading arrest, and unlawful possession of drug
paraphernalia.  The agreed sentences for the two Class E felonies were
three years as a Multiple Range II offender.  The agreed sentences for
the Class A misdemeanors were eleven months and twenty-nine days.  All
sentences were to be served concurrently.  The manner of service of
the sentences was left to the discretion of the trial judge.  The
judge ordered that nine months of the felony sentences be served in
the county jail, with the balance to be served in the community
corrections program.  The Defendant appeals from the trial judge's
order that nine months of the sentence be served in confinement.  We
affirm the judgment of the trial court.

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

TERRY L. CHARLTON
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

For Appellant:              For Appellee:

Peter D. Heil               John Knox Walkup
P.O. Box 40651              Attorney General and Reporter
Nashville, TN  37204        
                            Daryl J. Brand  
                            Assistant Attorney General
                            425 Fifth Avenue North
                            Cordell Hull Building, Second Floor
                            Nashville, TN  37243-0493
                         

Judge:WADE

First Paragraph:

The petitioner, Terry L. Charlton, appeals the trial court's denial of
his application for post-conviction relief.  In this appeal of right,
the petitioner claims that the trial court erred by entering an order
of summary dismissal without the appointment of counsel or the
opportunity to amend.  We must reverse a portion of the judgment and
remand to the trial court for further proceedings consistent with this
opinion.

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


STATE OF TENNESSEE
VS.
PHILLIP WAYNE DAVIS

Court:TCCA

Attorneys:  

For Appellant:                  For Appellee:

Natalee S. Hurley               John Knox Walkup
Asst. District Public Defender  Attorney General and Reporter
419 High Street 
Maryville, TN  37804            Todd R. Kelley
(at trial)                      Assistant Attorney General
                                425 Fifth Avenue North 
Julie A. Martin, Attorney       Second Floor, Cordell Building 
P.O. Box 426                    Nashville, TN  37243-0493
Knoxville, TN  37901-0426
(on appeal)                     Philip Morton 
                                Assistant District Attorney General
                                363 Court Street
                                Maryville, TN  37804                        

Judge:WADE

First Paragraph:

The defendant, Phillip Wayne Davis, entered guilty pleas to driving
under the influence, fourth offense, and driving on a revoked license,
second offense.  The trial court imposed an eleven-month,
twenty-nine-day sentence, with a release eligibility date at seventy
percent, for driving under the influence and ordered a concurrent
sentence of eleven months and twenty-nine days, with a release
eligibility date of seventy percent, for driving on a revoked license.
 The defendant was fined $1,600.00.

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

STATE OF TENNESSEE
VS.
ANTONIO JOHNSON

Court:TCCA

Attorneys: 

FOR THE APPELLANT               FOR THE APPELLEE

Niles S. Nimmo                  John Knox Walkup
Realtors Bldg., Suite 200       Attorney General and Reporter
306 Gay St.                     425 Fifth Avenue, North
Nashville, TN  37201            Nashville, TN  37243

                                Daryl J. Brand
                                Assistant Attorney General
                                425 Fifth Avenue, North
                                Nashville, TN  378243

                                Derek K. Smith
                                Assistant District Attorney General
                                P. O. Box 937
                                Franklin, TN  37065-0937                         

Judge:LAFFERTY

First Paragraph:

Following a bench trial, the appellant, Antonio Jackson, was convicted
of the unlawful possession of cocaine, a Class A misdemeanor.  The
trial court sentenced the defendant to serve sixty (60) days, day for
day, and pay a fine of $2,500.  The trial court suspended the sixty
(60) day sentence and placed the defendant on supervised probation for
eleven (11) months and twenty-nine (29) days.  Following a direct
appeal, this Court found that the trial court had abused its
discretion in sentencing the defendant and remanded the case for
resentencing pursuant to judicial diversion.  State v. Antonio
Jackson, Williamson County, No. 01C01-9601 CC-00014 (Tenn. Crim. App.
Nashville, December 13, 1996).  In resentencing the defendant, the
trial court imposed judicial diversion but retained the conditions of
probation from the original judgment.

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


JABARI ISSA MANDELA,
F/K/A JOHN HENRY WOODEN
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

For Appellant:                  For Appellee:

Jabari Issa Mandela, pro se     John Knox Walkup
#96305                          Attorney General & Reporter
CCA-SCCF,  P.O. Box 279
Clifton, TN  38425-0279         Daryl J. Brand
(on appeal)                     Assistant Attorney General
                                Cordell Hull Building, Second Floor
Stan Allen                      425 Fifth Avenue North
209 10th Avenue South           Nashville, TN  37243-0493
Suite 511                       
Cummins Station                 Roger D. Moore
Nashville, TN  37203            Assistant District Attorney General
(at hearing)                    Washington Square, Suite 500  
                                222 Second Avenue North
                                Nashville, TN  37201-1649                         

Judge:WADE

First Paragraph:

The petitioner, Jabari Issa Mandela, appeals the trial court's denial
of post-conviction relief.  He presents the following issues for our
review: (1)   whether prosecutors withheld evidence in violation of
Brady v. Maryland and whether imposition of the statute of limitations
violates due process;

(2)   whether the trial court erred by not providing the petitioner
with a full and fair hearing to present all claims regarding
reasonable doubt jury instructions and ineffective assistance of
counsel; and

(3)   whether the trial court abused its discretion by not allowing
access to physical evidence for performance of new scientific testing.

We find no error and affirm the judgment of the trial court.

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

STATE OF TENNESSEE
VS.
GAIL PELL

Court:TCCA

Attorneys:

For Appellant:              For Appellee:

Mack Garner                 John Knox Walkup
District Public Defender    Attorney General and Reporter
419 High Street                     
Maryville, TN  37804        Ellen H. Pollack
(at trial)                  Assistant Attorney General
                            425 Fifth Avenue North 
Julie A. Martin, Attorney   Nashville, TN  37243
P.O. Box 426 
Knoxville, TN  37901-0426   Philip Morton 
(on appeal)                 Assistant District Attorney General
                            363 Court Street
                            Maryville, TN  37804                          

Judge:WADE

First Paragraph:

The defendant, Gail Pell, was convicted of driving while under the
influence of an intoxicant, second offense, and driving on a revoked
license.  The trial court imposed a sentence of eleven months and
twenty-nine days, suspending all but one hundred twenty days, for
driving under the influence and ordered a six-month concurrent
sentence, with all suspended except for two days, for driving on a
revoked license.  The balance of each sentence was to be served on
supervised probation.  Five months later, probation was revoked and
the defendant was ordered to serve her sentence in jail at
seventy-five percent.

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

ELIZABETH SMITH
VS.
STATE OF TENNESSEE,

Court:TCCA

Attorneys:  

FOR THE APPELLANT:          FOR THE APPELLEE:

ELIZABETH SMITH, PRO SE     JOHN KNOX WALKUP
3881 Stewart Lane           Attorney General and Reporter
Nashville, TN 37218-3302
                            LISA A. NAYLOR
                            Assistant Attorney General
                            425 5th Avenue North
                            Nashville, TN 37243

                            W. MICHAEL McCOWN
                            District Attorney General
                            P.O. Box 878
                            Fayetteville, TN 37334                        

Judge:SMITH

First Paragraph:

Appellant Elizabeth Smith was convicted by a jury in the Lincoln
County Circuit Court on April 15, 1992 of the first degree murder of
her husband.  She received a sentence of life imprisonment with the
Tennessee Department of Correction.  This Court affirmed her
conviction and sentence.  State v. Elizabeth Smith, C.C.A. No.
01C01-9211-CC-00362, Lincoln County (Tenn. Crim. App., Nashville,
March 2), perm. to appeal denied, (Tenn. 1995).  On appeal, she
presents the following issue for our review: whether the trial court
erred in dismissing Appellant's petition for post-conviction relief on
the ground that it was barred by the statute of limitations.

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


STATE OF TENNESSEE
VS.
LARRY WATKINS

Court:TCCA

Attorneys: 

FOR THE APPELLANT:          FOR THE APPELLEE:

G. Wayne Davis              John Knox Walkup
Attorney at Law             Attorney General & Reporter 
Suite 2121, Parkway Towers
Nashville, TN 37219         Georgia Blythe Felner
                            Counsel for the State
                            Cordell Hull Building, Second Floor
                            425 Fifth Avenue North
                            Nashville, TN 37243-0493
    
                            Tom P. Thompson, Jr. 
                            District Attorney General

                            David Earl Durham
                            Assistant District Attorney General
                            111 Cherry Street
                            Lebanon, TN 37087                         

Judge:SUMMERS

First Paragraph:

On February 13, 1996, the appellant, Larry Watkins, was indicted for
second degree murder and conspiracy to commit second degree murder. 
On April 4, 1997, he entered a best interest plea to criminal
responsibility for facilitation of second degree murder, which is a
Class B felony.  Following a sentencing hearing on May 22, 1997, the
trial court sentenced the appellant to twelve years in the Tennessee
Department of Correction as a Range I, standard offender, although the
appellant qualified for sentencing as a Range II, multiple offender.

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

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