TBALink Opinion-Flash

October 8, 1998 -- Volume #4 -- Number #145

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 Opinion(s) from the Tennessee Supreme Court
00-New Opinion(s) from the Tennessee Supreme Court Workers Comp Panel
00-New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
00-New Opinion(s) from the Tennessee Court of Appeals
04-New Opinion(s) from the Tennessee Court of Criminal Appeals
00-New Judicial Ethics Opinion(s)
00-New Formal Ethics Opinion(s) from the Board of Professional Responsibility

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Lucian T. Pera
Editor-in-Chief, TBALink



TERRY L. BAKER
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:          FOR THE APPELLEE:
    

PAUL J. BRUNO               JOHN KNOX WALKUP
Washington Square Bldg.     Attorney General & Reporter
222 Second Ave N,Ste 350M
Nashville, TN  37201-1652   DEBORAH A. TULLIS
                            Asst. District Attorney General
                            Cordell Hull Bldg., 2nd Fl.
                            425 Fifth Ave., North
                            Nashville, TN  37243
                            
                            VICTOR S. JOHNSON, III
                            District Attorney General
                
                            MARY HAUSMAN
                            Asst. District Attorney General
                            Washington Square Bldg.
                            222 Second Ave., North, Suite 500
                            Nashville, TN  37201                             

Judge:PEAY

First Paragraph:

The petitioner pled guilty to six counts of drug charges in Davidson
County case number 92-A-647 on May 16, 1995.  He was sentenced as a
Range I offender to concurrent ten year sentences to be served in the
Community Corrections program.  On January 19, 1996, the petitioner
was found guilty of violating his community corrections sentence and
the court increased his sentence from ten years to twenty years to
serve.  On December 11, 1996, the petitioner filed a petition for
post-conviction relief.  The petition was dismissed by the trial court
on the grounds that it was filed outside the applicable statute of
limitations.  The petitioner now appeals and argues the
post-conviction court erred when it dismissed the petition.   We agree
and reverse the judgment of the court below and remand this cause for
a hearing on the merits of the petition.

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

STATE OF TENNESSEE
VS.
CALVIN DEWAYNE BRANCH

Court:TCCA

Attorneys:  

FOR THE APPELLANT:      FOR THE APPELLEE:

Roger K. Smith          John Knox Walkup
104 Woodmont Blvd       Attorney General & Reporter
Suite 115               425 Fifth Avenue, North
Nashville, TN  37205    Nashville, TN  37243-0493

                        Karen M. Yacuzzo
                        Assistant Attorney General
                        425 Fifth Avenue, North
                        Nashville, TN  37234-0493

                        Victor S. Johnson, III
                        District Attorney General
                        222 Second Avenue, North, Suite 500
                        Nashville, TN  37201-1649

                        James W. Milam
                        Assistant District Attorney General
                        222 Second Avenue, North, Suite 500
                        Nashville, TN  37201-1649                        

Judge:LAFFERTY

First Paragraph:

The defendant, Calvin Dewayne Branch, appeals as of right from his
convictions for driving without a driver's license and the knowing
possession of a handgun by a convicted felon by a jury in the Davidson
County Criminal Court. After a sentencing hearing, the trial court
sentenced the defendant to time served for driving without a driver's
license and to six years as a career offender for the knowing
possession of a handgun by a convicted felon. The defendant raises
four issues in this appeal:  (1) whether the trial court erred in
charging the jury the Range 1 penalty provided for a Class E felony, 
one year to two years, then subsequently, after the jury had retired,
recalling them and recharging them with the entire penalty range of a
Class E felony, one year to six years; (2) whether the defendant was
prejudiced by the conduct of the State and a witness for the State
alluding to the defendant's prior convictions during direct
examination; (3) whether the defendant was prejudiced by the State,
during closing argument, alluding to the defendant's not testifying;
and (4) whether the fine levied by the jury was excessive due to the
defendant's impoverished circumstances.

The judgment of the trial court is affirmed.

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

STATE OF TENNESSEE
VS.
EDWARD ANTHONY JOSLIN

Court:TCCA

Attorneys:  

FOR THE APPELLANT:          FOR THE APPELLEE:


SAM WALLACE, SR.            JOHN KNOX WALKUP
227 Second Ave., North      Attorney General & Reporter
Nashville, TN 37201
                            TIMOTHY F. BEHAN
                            Asst. Attorney General
                            John Sevier Bldg.
                            425 Fifth Ave., North
                            Nashville, TN  37243-0493
        
                            VICTOR S. JOHNSON, III
                            District Attorney General

                            JOHN ZIMMERMANN
                            Asst. District Attorney General
                            Washington Sq., Suite 500
                            222 Second Ave., North
                            Nashville, TN 37201-1649                        

Judge:PEAY

First Paragraph:

A jury found the defendant guilty of conspiracy to possess with the
intent to deliver over seventy pounds of marijuana; two counts of
possession with the intent to deliver one-half ounce to ten pounds of
marijuana; and delivery of ten pounds, one gram to seventy pounds of
marijuana.  The trial court imposed an effective sentence of
thirty-nine years incarceration, with a total fine of one hundred
sixty thousand dollars ($160,000).  On appeal, the defendant presents
ten issues for review, most of which deal with the sufficiency of the
convicting evidence or the propriety of the defendant's sentence.  We
affirm the defendant's convictions and sentence.

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

STATE OF TENNESSEE
VS.
MICHAEL W. ORMAN

Court:TCCA

Attorneys:

FOR THE APPELLANT:
    
    THOMAS F. BLOOM
    500 Church Street, 5th Floor
    Nashville, Tennessee 37219

FOR THE APPELLEE:
    
    JOHN KNOX WALKUP
    Attorney General and Reporter
    
    TIMOTHY BEHAN
    Assistant Attorney General
    Cordell Hull Building, 2nd Floor
    425 Fifth Avenue North
    Nashville, TN  37243-0493
    
    VICTOR S. JOHNSON III
    District Attorney General
    
    ROGER D. MOORE
    Assistant District Attorney General
    Washington Square - Suite 500
    222 Second Avenue North
    Nashville, Tennessee  37021-1649                          

Judge:RILEY

First Paragraph:

The defendant was found guilty by a Davidson County jury of burglary
and theft of property over $1,000.  The trial court sentenced
defendant to Range II sentences of six years on each count and ordered
them served consecutively for an effective twelve-year sentence.  The
defendant contends that the trial court erred in finding and weighing
the enhancement and mitigating factors and in ordering the sentences
served consecutively instead of concurrently.  After a thorough review
of the record, we affirm the sentence as imposed.

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


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