TBALink Opinion-Flash

September 23, 1998 -- Volume #4 -- Number #137

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 00-New Opinons From TCCA

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Lucian T. Pera
Editor-in-Chief, TBALink



FRANCES BLANCHARD
vs.
ARLENE KELLUM, D.D.S.

Court:TSC

First Paragraph:

Arlene Kellum, D.D.S., Defendant/Appellee, has filed a petition to
rehear this cause pursuant to Tenn. R. App. R. 39 contending that our
opinion conflicts with a principle of law and overlooks a proposition
of law.  After due consideration, we conclude that the petition for
rehearing should be and the same is hereby denied at the cost of
Defendant/Appellee.

URL:http://www.tba.org/tba_files/TSC/blanchar_ord.WP6
Opinion-Flash

DENNIS DYKES 
vs.
BILLY COMPTON, Warden   

Court:TSC

Attorneys: 

For Appellant:                  For Appellee:

LLOYD R. TATUM                  JOHN KNOX WALKUP   
Henderson, Tennessee            Attorney General and Reporter

                                MICHAEL E. MOORE
                                Solicitor General

                                ELIZABETH T. RYAN
                                Assistant Attorney General
                                Nashville, Tennessee

                                C. PHILLIP BIVENS
                                District Attorney General
                                Dyersburg, Tennessee                         

Judge:BIRCH

First Paragraph:

Convicted in 1989 upon a plea of guilty to aggravated rape and now
serving a thirty-five year sentence, the appellant, Dennis Dykes,
claims in a petition for writ of habeas corpus that the failure of the
indictment to allege a culpable mental state renders the indictment
invalid and the resulting conviction void.  The trial court dismissed
the petition, concluding that challenges to an indictment are not
subject to habeas corpus relief and further that the judgment in
question is not void on its face.  The Court of Criminal Appeals
agreed that habeas corpus relief is not available; nevertheless, it
considered the appellant's claim and found the indictment valid.

URL:http://www.tba.org/tba_files/TSC/dykesd_opn.WP6
Opinion-Flash

JAMIE EDWARD BREWER
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

For the Appellant:              For the Appellee:

Thomas G. McCroskey             John Knox Walkup        
627 Smithview Drive             Attorney General of Tennessee
Maryville, TN 37801                 and             
                                Todd R. Kelley
                                Asst. Attorney General of Tennessee
                                425 Fifth Avenue North      
                                Nashville, TN 37243-0493

                                Michael L. Flynn
                                District Attorney General
                                    and
                                Philip Morton
                                Assistant District Attorney General
                                363 Court Street
                                Blount County Courthouse
                                Maryville, TN 37804                          

Judge:Tipton

First Paragraph:

The petitioner, Jamie Edward Brewer, appeals as of right from the
Blount County Circuit Court's order denying him post-conviction relief
from his three 1996 robbery convictions resulting in a total sentence
of fifteen years in the Department of Correction.  He contends that
his guilty pleas were not knowingly, understandingly, and voluntarily
entered because his appointed counsel was ineffective by providing him
misadvice regarding release eligibility.  We affirm the trial court.

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

STATE OF TENNESSEE
vs.
DAMON BYRD

Court:TCCA

Attorneys:

FOR THE APPELLANT:                      FOR THE APPELLEE:

James L. Weatherly, Jr.                 John Knox Walkup
Hollins, Wagster & Yarbrough, P.C.      Attorney General & Reporter
2210 Third National Financial Center
424 Church Street                       Karen M. Yacuzzo
Nashville, TN  37219                    Assistant Attorney General
                                        425 Fifth Avenue North
                                        2d Floor, Cordell Hull Bldg.
                                        Nashville, TN  37243-0493                          

Judge:BYERS

First Paragraph:


The defendant appeals from the denial of his request for diversion by
the District Attorney General and the action of the trial court in
affirming that decision.

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

STATE OF TENNESSEE
vs.
MARK A. CASH

Court:TCCA

Attorneys:

FOR THE APPELLANT:                      FOR THE APPELLEE:

Lionel R. Barrett, Jr.                  John Knox Walkup
Washington Square Two - Suite 418       Attorney General & Reporter
222 Second Avenue, North                425 Fifth Avenue, North
Nashville, TN  37201                    Nashville, TN  37243-0493

                                        Timothy Behan
                                        Assistant Attorney General
                                        425 Fifth Avenue, North
                                        Nashville, TN  37243-0493

                                        William Edward Gibson
                                        District Attorney General
                                        145 South Jefferson Avenue
                                        Cookeville, TN  38501-3424

                                        Shawn C. Fry
                                        Asst. District Attorney General
                                        145 South Jefferson Avenue
                                        Cookeville, TN  38501-3424                          

Judge:LAFFERTY

First Paragraph:

The defendant, Mark A. Cash, entered guilty pleas to nine counts of
incest.  An aggravated rape count was dismissed.  As part of the plea
agreement, the defendant agreed for the trial court to run counts two
through five concurrently and counts six through ten concurrently, but
consecutively to counts two through five.  The trial court imposed
sentences of five years for each conviction for an effective sentence
of ten years.

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

THOMAS RAY DYER
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

For the Appellant:              For the Appellee:

Mark E. Stevens                 John Knox Walkup        
District Public Defender        Attorney General of Tennessee
     and                                and             
John Halstead                   Clinton J. Morgan
Assistant Public Defender       Asst. Attorney General of Tennessee 
1209 Euclid Avenue              425 Fifth Avenue North      
Knoxville, TN 37921             Nashville, TN 37243-0493
(AT TRIAL)
                                Randall E. Nichols
Mark E. Stevens                 District Attorney General
District Public Defender                and
     and                        Marsha Selecman
Paula R. Voss                   Asst. District Attorney General
John Halstead                   City-County Building
Assistant Public Defenders      Knoxville, TN 37902
1209 Euclid Avenue
Knoxville, TN 37921
(ON APPEAL)                         

Judge:Tipton

First Paragraph:

The petitioner, Thomas Ray Dyer, appeals as of right from the Knox
County Criminal Court's order dismissing his petition for
post-conviction relief as untimely filed.  The petitioner asserts that
his illiteracy should serve as a basis for waiving the statute of
limitations.  We disagree.

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

STATE OF TENNESSEE
vs.
HENRY CLAYTON GILLIAM

Court:TCCA

Attorneys:

For the Appellant:                  For the Appellee:

Greg W. Eichelman                   John Knox Walkup        
District Public Defender            Attorney General of Tennessee
     and                                and             
R. Russell Mattocks                 Janis L. Turner
Assistant Public Defender           Asst. Attorney General of Tennessee
1609 College Park Drive, Box 11     425 Fifth Avenue North      
Morristown, TN 37813-1618           Nashville, TN 37243-0493

                                    C. Berkeley Bell, Jr.
                                    District Attorney General
                                    109 S. Main Street, Suite 501
                                    Greeneville, TN 37743
                                        and
                                    John Douglas Godbee
                                    Asst. District Attorney General
                                    Main Street
                                    Hawkins County Courthouse
                                    Rogersville, TN 37857                          

Judge:Tipton

First Paragraph:

The defendant, Henry Clayton Gilliam, appeals as of right from his
conviction by a jury in the Hawkins County Criminal Court for driving
under the influence, second offense, a Class A misdemeanor.  The trial
court sentenced the defendant to eleven months and twenty-nine days in
the county jail, seventy-five percent to be served before release.  It
imposed a fine of one thousand five hundred and ten dollars.  The
defendant contends that the evidence is insufficient to support his
conviction and his sentence is excessive.  We affirm the judgment of
conviction.

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

GORDON SCOTT HOBBS
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

For the Appellant:              For the Appellee:

Gordon Scott Hobbs, Pro Se      John Knox Walkup        
# 94583                         Attorney General of Tennessee
Route 4, Box 600                    and             
Pikeville, TN 37367             Todd R. Kelley
                                Asst. Attorney General of Tennessee 
                                425 Fifth Avenue North      
                                Nashville, TN 37243-0493

                                William H. Cox, III
                                District Attorney General
                                600 Market Street, Suite 310
                                Chattanooga, TN 37402                          

Judge:Tipton

First Paragraph:

The petitioner, Gordon Scott Hobbs, appeals from the Hamilton County
Criminal Court's dismissal of his petition for post-conviction relief.
 The petitioner contends he received ineffective assistance of counsel
because his counsel failed to introduce evidence of the petitioner's
Vietnam stress disorder, explosive disorder, and major depression. 
The petitioner is presently serving life imprisonment in the custody
of the Department of Correction for first degree murder and assault
with intent to commit first degree murder.  This is the petitioner's
sixth petition for post-conviction relief, all of which have been
denied.  He has appealed two of the denials, both of which have been
affirmed by this court.

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

STATE OF TENNESSEE
vs.
JAMES SMITH, a.k.a. 
JAMES E. MAXWELL

Court:TCCA

Attorneys:

For Appellant:                  For Appellee:

Mark E. Stephens                John Knox Walkup
District Public Defender        Attorney General & Reporter
6th Judicial District 
                                Georgia Blythe Felner 
Paula R. Voss                   Assistant Attorney General
Julia Auer                      Criminal Justice Division 
Assistant Public Defenders      450 James Robertson Parkway
1209 Euclid Avenue              Nashville, TN  37243-0493
Knoxville, TN  37921    
                                Randall Nichols
                                District Attorney General
                                    and
                                Leon Franks 
                                Asst. District Attorney General
                                400 Main Avenue 
                                Knoxville, TN  37902                           

Judge:WADE

First Paragraph:

The defendant, James Smith, a.k.a. James E. Maxwell, appeals the trial
court's revocation of his community corrections sentence.  The
following issues have been presented for review: (I)    whether the
trial court should have held a hearing before the revocation of his
suspended sentence and imposition of greater sentences; and
(II)    whether the judgment forms and orders reflect illegal
sentences.  The judgment of revocation is affirmed; the sentences are
modified as provided herein.

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


STATE OF TENNESSEE
vs.
MICHAEL WALLS

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:

Philip A. Condra                    John Knox Walkup
District Public Defender            Attorney General & Reporter
12th Judicial District
200 Betsy Pack                      Lisa A. Naylor
P.O. Box 220                        Assistant Attorney General
Jasper, TN  37347                   Criminal Justice Division
                                    425 Fifth Avenue North
                                    Nashville, TN  37243                          

Judge:BYERS

First Paragraph:

The defendant was convicted of aggravated assault in a jury trial. The
jury assessed a fine of $10,000.00 and the trial judge sentenced the
defendant to serve five years as a Range I, standard offender. The
defendant raises the following issues: 1. Is the judgment against the
Appellant void for failure of the indictment to allege an offense
under T.C.A. 39-13-102(c)?  2. Is the evidence, specifically on the
element of bodily injury, sufficient to support the verdict of guilt
on aggravated assault beyond a reasonable doubt?  3. Is the fine of
$10,000, the maximum for a class C felony, excessive?  4. Was the
sentence imposed in compliance with the provisions of T.C.A. 40-35-101
et seq?  The judgment is affirmed.

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

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