TBALink Opinion-Flash

December 11, 1998 -- Volume 4 -- Number 178

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
01-New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
02-New Opinion(s) from the Tennessee Court of Appeals
06-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



IN RE: PETITION OF THE TENNESSEE
COMMISSION ON CONTINUING LEGAL 
EDUCATION AND SPECIALIZATION
TO AMEND TENNESSEE SUPREME COURT RULE 21        

Court:TSC - Rules

URL:http://www.tba.org/tba_files/TSC_Rules/rule21_fin.WP6
Opinion-Flash

GUY BEATY
VS.
BOBBY McGRAW and STEVE BROWN

Court:TCA

Attorneys:  

For Plaintiff/Appellee:     For Defendants/Appellants:

John D. Agee                James P. Smith, Jr.
Cooley, Cooley & Agee       Crossville, Tennessee
Kingston, Tennessee
                            Patrick T. Phillips
                            Knoxville, Tennessee
                        

Judge:KOCH

First Paragraph:

This appeal involves a dispute over the sale and repossession of a
drilling rig.  The seller filed suit against the purchasers in the
Fentress County General Sessions Court seeking immediate possession of
the rig and damages.  Following the purchasers' de novo appeal, the
Circuit Court for Fentress County awarded the seller possession of the
rig but held that the purchasers could recover the rig by paying the
seller the outstanding balance of the purchase price.  On the
purchasers' appeal, this court held that the seller was entitled to a
judgment for the unpaid purchase price but that the seller had not
been entitled to repossess the rig.  Accordingly, this court remanded
the case to determine the purchasers' damages for the seller's
wrongful detention of the rig.  The purchasers asserted on remand that
the appropriate measure of their damages had already been determined
in a similar Roane County proceeding between the same parties.  The
trial court disagreed and awarded the purchasers $26,021 for the
seller's wrongful detention of the rig and $8,000 in attorney's fees
under Tenn. Code Ann. S 29-30-110 (1980).  All parties have appealed. 
The purchasers assert that the trial court should have used the same
measure of damages used in the Roane County proceeding and that they
should have been awarded exemplary damages under Tenn. Code Ann. S
29-30-210 (1980).  The seller asserts that the evidence preponderates
against the trial court's damage award and that the purchasers were
not entitled to recover their attorney's fees.  We have determined
that the trial court correctly calculated the purchasers' damages but
that the case must be remanded for further consideration of the award
of attorney's fees to the purchasers.

URL:http://www.tba.org/tba_files/TCA/Beatyg_opn.WP6
Opinion-Flash

JAMES R. REYNOLDS
VS.
TENNESSEE BOARD OF PAROLES et al.

Court:TCA

Attorneys:  

For Plaintiff/Appellant:    For Defendants/Appellees:

James R. Reynolds           John Knox Walkup
Pro Se                      Attorney General and Reporter

                            John R. Miles
                            Counsel for the State                        

Judge: KOCH

First Paragraph:

This appeal involves an inmate's challenge to the denial of his
application for parole by the Tennessee Board of Paroles.  After
serving approximately ten years of a 35-year sentence for aggravated
rape, the inmate filed a petition for a common-law writ of certiorari
in the Chancery Court for Davidson County asserting that the Tennessee
Board of Paroles was illegally and arbitrarily declining to honor his
plea bargain agreement.    The trial court dismissed the petition on
the grounds that it failed to state a claim upon which relief could be
granted and because it was not timely filed.  The inmate has appealed
pro se.  We concur that the petition was not timely filed and affirm
its dismissal in accordance with Tenn. Ct. App. R. 10(b).

URL:http://www.tba.org/tba_files/TCA/Reynolds_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
VS.
JEREMY AMIS

Court:TCCA

Attorneys:  

FOR THE APPELLANT:
    
    SHIPP R. WEEMS
    District Public Defender
    
    ROBERT H. STOVALL, JR. (At Trial)
    Assistant District Public Defender
    P.O. Box 160
    Charlotte, TN  37036-0160
    
    GREGORY D. SMITH (On Appeal)
    1 Public Square, Suite 321
    Clarksville, TN  37040

FOR THE APPELLEE:
    
    JOHN KNOX WALKUP
    Attorney General and Reporter
    
    CLINTON J. MORGAN
    Assistant Attorney General
    Cordell Hull Building, 2nd Floor
    425 Fifth Avenue North
    Nashville, TN  37243-0493
    
    DAN MITCHUM ALSOBROOKS
    District Attorney General
    
    GEORGE SEXTON
    Assistant District Attorney General
    County Courthouse, 2nd Floor
    Court Square
    Waverly, TN  37185                        

Judge:RILEY

First Paragraph:

A Humphreys County jury found defendant guilty of aggravated sexual
battery of a twelve-year-old girl, a Class B felony.  He was sentenced
as a violent 100% offender to twelve years in the Department of
Correction.  Defendant raises the following issues on appeal: (1)
whether the trial court erred in admitting the testimony of two
witnesses under the "excited utterance" exception to the hearsay rule;
and (2) whether the sentence is excessive. This Court finds no
reversible error and affirms the trial court's judgment.

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

MARK A. HIGGINS
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:
    
    MARK HIGGINS, Pro Se
    #268562
    B.M.C.X., P. O. Box 2000
    Wartburg, TN  37887-2000

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
    
    JOSEPH D. BAUGH
    District Attorney General
    P. O. Box 937
    Franklin, TN 37065-0937                         

Judge:RILEY

First Paragraph:

Petitioner, Mark A. Higgins, appeals the dismissal of his petition for
post-conviction relief without a hearing by the Williamson County
Circuit Court.  Petitioner alleges his guilty plea to aggravated rape
was unknowing and his sentence illegal since he was sentenced as a
standard 30% Range I offender, whereas the statute classifies him as a
violent 100% offender.  We conclude, and the state concedes, that the
petition states a colorable claim for relief; therefore, we reverse
and remand for the appointment of counsel so that the petition for
post-conviction relief may proceed on the merits.

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

JAMES ROBERT MAJORS, SR.
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys:   

For Appellant:              For Appellee:

David A. Simpson, Attorney  John Knox Walkup
113 West Main Street        Attorney General and Reporter
Gallatin, TN  37066
                            Timothy Behan
                            Assistant Attorney General
                            Criminal Justice Division
                            425 Fifth Avenue North 
                            Nashville, TN  37243-0493

                            Sallie Wade Brown 
                            Assistant District Attorney General
                            113 East Main Street
                            Gallatin, TN  37066                        

Judge:WADE

First Paragraph:

The petitioner, James Robert Majors, Sr., appeals the trial court's
denial of his petition for post-conviction relief.  In this appeal of
right, the petitioner claims that his trial counsel was ineffective
and that the judgment of conviction should be set aside.

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

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

RICKY EARL MELVIN
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

For The Appellant:
    
    Marian C. Fordyce
    (at trial)
    129 Second Ave., North
    Nashville, TN  37201-1901
    
    
    Judson W. Phillips
    (on appeal)
    315 Deaderick St., Ste. 2395
    Nashville, TN  37238

For The Appellee:
    
    John Knox Walkup
    Attorney General and Reporter
    
    Daryl J. Brand
    Cordell Hull Building, 2nd Floor
    425 Fifth Avenue North
    Nashville, TN  37243-0493
    
    Victor S. Johnson III
    District Attorney General
    
    Kymberly Haas
    Assistant District Attorney General
    Washington Sq., Ste. 500
    222-2nd Ave., North
    Nashville, TN  37201-1649
                         

Judge:TIPTON

First Paragraph:

The petitioner, Ricky Earl Melvin, appeals the dismissal of his
petition for post-conviction relief by the Davidson County Criminal
Court.  Having been convicted of seven counts of aggravated rape and
serving an effective sentence of sixty-five years in the Department of
Correction, the petitioner contends he received ineffective assistance
of counsel.  After a careful review of the record, we affirm the
judgment of the trial court.

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

STATE OF TENNESSEE
VS.
SHANE SMITH

Court:TCCA

Attorneys:  

For Appellant:              For Appellee:

David Wolfe, Attorney       John Knox Walkup
505 West College Street     Attorney General and Reporter
Dickson, TN  37055
                            Karen M. Yacuzzo            
                            Assistant Attorney General
                            425 Fifth Avenue North 
                            Second Floor, Cordell Hull Building
                            Nashville, TN  37243-0493

                            Jake Lockert
                            Assistant District Attorney General
                            105 Sycamore Street
                            Ashland City, TN  37015                        

Judge:WADE

First Paragraph:

The defendant, Shane Smith, appeals the trial court's revocation of
probation.  The single issue presented for review is whether the trial
court abused its discretion.

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

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

JOHN HERBERT TALLEY
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:          FOR THE APPELLEE:

JOHN HERBERT TALLEY         JOHN KNOX WALKUP
Pro Se                      Attorney General & Reporter
U.S.P. Leavenworth
P.O. Box 1000               TODD R. KELLEY
Leavenworth, KS  66048      Assistant Attorney General
                            425 Fifth Ave. N., 2d Floor
                            Nashville, TN  37243-0493

                            WILLIAM H. COX, III
                            District Attorney General
                            600 Market St., Ste. 310
                            Chattanooga, TN  37402                         

Judge:WITT

First Paragraph:

The appellant, John Herbert Talley, appeals the Hamilton County
Criminal Court's denial of his petition for post-conviction relief. 
Talley is presently serving a life sentence in federal prison for
convictions he received in 1995.  His federal sentence was enhanced
based in part upon a state conviction he received in 1985.  In 1997,
Talley filed a post-conviction petition alleging his guilty plea was
not knowing and voluntary and was the result of ineffective assistance
of trial counsel.  He specifically pleaded that the statute of
limitations should not be applied to him under the authority of
Burford v. State, 845 S.W.2d 204 (Tenn. 1995), and Sands v. State, 903
S.W.2d 297 (Tenn. 1995).  The court below dismissed the petition,
finding it was barred by the one-year statute of limitations.  In this
appeal, Talley alleges the trial court erred (1) in finding his
petition barred by the statute of limitations and (2) by failing to
make specific findings of fact in its order dismissing the petition. 
Following a review of the record and the briefs of the parties, we
affirm the judgment of the trial court.

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


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