TBALink Opinion-Flash

November 4, 1998 -- Volume 4 -- Number 160

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: 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



SCOTTIE DEWAYNE BURKE
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:          FOR THE APPELLEE:


LISA M. MACK                JOHN KNOX WALKUP
846 Oak St.                 Attorney General & Reporter
Chattanooga, TN   37403
                            ELIZABETH B. MARNEY
                            Asst. Attorney General
                            425 Fifth Ave., North
                            2nd Floor, Cordell Hull Bldg.
                            Nashville, TN  37243-0493
                
                            WILLIAM H. COX, III
                            District Attorney General

                            CALDWELL HUCKABAY
                            Asst. District Attorney General
                            Courts Bldg., Room 300
                            Chattanooga, TN   37402                         

Judge:PEAY

First Paragraph:

The petitioner was convicted by a jury of first-degree felony murder,
aggravated robbery, and aggravated assault.  He was sentenced to life
imprisonment for the murder, a concurrent eight year term for the
robbery, and a consecutive six year term for the assault.  The
petitioner's convictions and sentences were affirmed on direct appeal.
 State v. Scottie Dewayne Burke, No. 03C01-9208-CR-00265, Hamilton
County (Tenn. Crim. App. filed June 10, 1993, at Knoxville).  In this
petition for post-conviction relief filed in August 1995, the
petitioner contends that he received ineffective assistance of counsel
at trial and on direct appeal.  The court below denied relief and,
upon our review of the record, we affirm.

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


SAM JOHN PASSARELLA
VS.
STATE OF TENNESSEE

Court:TCCA

Judge:PEAY

First Paragraph:

This matter is before the Court upon the state's motion requesting
that the judgment in the above-styled cause be affirmed pursuant to
Rule 20, Tennessee Court of Criminal Appeals Rules.  The appellant
opposes the motion.

The petitioner was convicted of two counts of aggravated kidnapping
and was sentenced to consecutive sentences totaling 70 years.  This
Court affirmed the judgment in State v. Sam John Passarella, No.
81-260-III (Tenn. Crim. App., at Nashville, October 1, 1982), and it
does not appear that an application for permission to appeal was filed
in the Supreme Court.  Thereafter, the dismissal of the petitioner's
first petition for post-conviction relief was upheld by this Court. 
Passarella v. State, 891 S.W.2d 619 (Tenn. Crim. App. 1994).  The
petitioner filed his second post-conviction petition on May 9, 1996. 
On January 20, 1998, the trial court dismissed the petition as outside
the statute of limitation.  We affirm.

URL:http://www.tba.org/tba_files/TCCA/passare1_ord.WP6


STATE OF TENNESSEE
VS.
PATRICK LEON SMITH

Court:TCCA

Attorneys:                          

Judge:PEAY

First Paragraph:

This matter was originally before the Court upon the state's motion to
affirm the judgment pursuant to Rule 20, Tennessee Court of Criminal
Appeals Rules.  The state submitted that the appellant had waived the
issues raised on appeal by failing to include the transcripts of
evidence in the record.  The appellant did not file a response to the
motion.

From a review of the state's motion, the appellant's brief, and the
record on appeal, it was apparent that the transcripts were necessary
for full review of the issues raised on appeal.  Accordingly, the
Court entered an order on October 7, 1998, giving the appellant 10
days in which to file a response to the state's motion to affirm the
judgment.  The appellant's response was to address why the transcripts
of evidence were not included in the record and why the appellant had
not filed a motion to supplement the record pursuant to T.R.A.P.
24(e).  The Court indicated that failure to respond would result in
the granting of the state's motion to affirm.  As of the date of this
order, the time for filing a response has expired, and the appellant
has not filed a response.

URL:http://www.tba.org/tba_files/TCCA/smithpl1_ord.WP6



STATE OF TENNESSEE
VS.
RICKY H. WILSON

Court:TCCA

Attorneys: 

For Appellant:              For Appellee:

F. D. Gibson            John Knox Walkup
116 E. Harper Street    Attorney General and Reporter
Maryville, TN  37804    450 James Robertson Parkway
                        Nashville, TN  37243-0493

                        Ellen H. Pollack
                        Assistant Attorney General
                        Criminal Justice Division
                        425 Fifth Avenue North
                        Nashville, TN  37243-0493

                        Tammy Harrington
                        Assistant District Attorney General
                        363 Court Street
                        Maryville, TN  37804                             

Judge:WADE

First Paragraph:

The defendant, Ricky H. Wilson, was convicted in a bench trial of
disorderly conduct and public intoxication.  The trial court imposed
concurrent,  thirty-day sentences for each offense with release after
service of ten days.

In this appeal of right, the defendant raises the following issues:
(I)  whether the evidence is sufficient to support each conviction;
and

(II)  whether dual convictions for disorderly conduct and public
intoxication violate double jeopardy principles.

Both convictions are reversed and dismissed for insufficient evidence.

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

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