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October 18, 1999
Volume 5 -- Number 144
What follows is the case style or name, first paragraph, author's name, and the names of attorneys for the parties of each opinion released eletronically today to TBALink from Tennessee's three appellate courts.
- This Issue (IN THIS ORDER):
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| 02 |
New Opinion(s) from the Tennessee Supreme Court |
| 00 |
New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel |
| 01 |
New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court |
| 00 |
New Opinion(s) from the Tennessee Court of Appeals |
| 07 |
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
JOHN L. GOODWIN, III
VS.
HENDERSONVILLE POLICE DEPARTMENT
DAVID L. KEY, Police Chief, and R. J. THOMPSON, Mayor
Court:TSC
Attorneys:
For Appellant: For Appellee:
JOHN L. GOODWIN, III JOHN R. BRADLEY
Pro se Hendersonville, TN
Judge: BIRCH
First Paragraph:
John L. Goodwin, III, applied for permission to appeal pursuant to
Tenn. R. App. P. 11. We accepted the case in order to consider two
questions:
1. Is a convicted felon a "citizen" within the meaning of the Public
Records Act and thereby entitled to utilize its provisions?
2. Did Goodwin file his notice of appeal in a timely fashion?
After completely examining the record and thoroughly considering the
contentions of the parties, we conclude that both questions must be
answered in the affirmative.
http://www.tba.org/tba_files/TSC/GOODWINj_opn.wpd
SCHERING-PLOUGH HEALTHCARE PRODUCTS, INC
VS.
STATE BOARD OF EQUALIZATION
Court:TSC
Attorneys:
Defendant/Appellant: Plaintiff/Appellee
John Knox Walkup Fred M. Ridolphi, Jr.
Attorney General & Reporter Humphreys, Dunlap, Wellford,
Acuff & Stanton, P.C.
Memphis, Tennessee
Michael E. Moore
Solicitor General
Michael W. Catalano
Associate Solicitor General
Nashville, Tennessee
Amicus Curiae Shelby County and Shelby County Assessor
Donnie E. Wilson
Shelby County Attorney
Robert B. Rolwing
Assistant County Attorney
Judge: DROWOTA
First Paragraph:
This case presents for review the decision of the Court of Appeals
which reversed the Chancery Court's dismissal of the petition of
Schering-Plough Healthcare Products, Inc. ("Schering-Plough") which
sought judicial review of a decision of the State Board of
Equalization ("Board"). The Chancery Court dismissed the petition
after concluding that it lacked subject matter jurisdiction over the
action because Schering-Plough had failed to name Shelby County as a
party in the petition and had failed to serve Shelby County with a
copy of the petition within sixty days of the final decision of the
Board. The Court of Appeals reversed the dismissal and held that
Tenn. Code Ann. S 4-5-322(b) (1998 Repl.) does not require that all
parties to the contested case be named in the petition for review or
that copies of the petition be served upon all parties to the
contested case within the sixty-day time limitation. We agree and now
affirm the decision of the Court of Appeals.
http://www.tba.org/tba_files/TSC/SCHERING_OPN.wpd
SUPREME COURT OF TENNESSEE
STATE LIST FOR PERMISSION TO APPEAL
Court:TSC - Rules
http://www.tba.org/tba_files/TSC_Rules/CERTList_1018.wpd
FRANK BARNARD
VS.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
For Appellant: For Appellee:
Kyle L. Marquardt Paul G. Summers
Attorney for Appellant Attorney General and Reporter
211 Printers Alley, Suite 502 450 James Robertson Parkway
Nashville, TN 37201-1414 Nashville, TN 37243-0493
Georgia Blythe Felner
Counsel for the State
Criminal Justice Division
425 Fifth Avenue North
Nashville, TN 37243
John Seaborg
Washington Square Bldg.
Assistant District Attorney General
222 Second Avenue North
Nashville, TN 37201-1649
Judge: OGLE
First Paragraph:
The petitioner, Frank Barnard, appeals the dismissal of his petition
for post-conviction relief by the Davidson County Criminal Court on
June 11, 1998. On November 13, 1992, the petitioner was convicted by
a jury in the Davidson County Criminal Court of first degree murder,
felony murder, robbery, and aggravated sexual battery. The trial
court merged the felony murder count with the first degree murder
count because they arose from the same offense. The petitioner filed
a Motion for Judgment of Acquittal and Motion for New Trial. The
trial court denied the motion on all grounds except the trial court
reversed the robbery conviction. On September 1, 1994, this court
affirmed the petitioner's convictions and on November 24, 1994, our
supreme court denied further review. State v. Barnard, 899 S.W.2d 617
(Tenn. Crim. App), perm. to appeal denied (Tenn. 1994).
http://www.tba.org/tba_files/TCCA/barnardf_opn.wpd
WILLIAM H. HORTON
VS.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
MICHAEL J. FLANAGAN PAUL G. SUMMERS
95 White Bridge Road, Suite 208 Attorney General & Reporter
Nashville, TN 37205
ELIZABETH T. RYAN
425 Fifth Avenue North
Nashville, TN 37243
VICTOR S. (TORRY) JOHNSON III
District Attorney General
JOHN C. ZIMMERMAN
Assistant District Attorney
Washington Square
222 Second Avenue North
Nashville, TN 37201
Judge: WILLIAMS
First Paragraph:
The petitioner, William H. Horton, appeals the trial court's denial of
his petition for post-conviction relief. The petitioner contends that
he received ineffective assistance of counsel at trial and on direct
appeal, as well as prosecutorial misconduct. After careful review, we
AFFIRM the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/HORTONWH.wpd
STATE OF TENNESSEE
VS.
KENNETH A. JOHNSON
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
KARL DEAN PAUL G. SUMMERS
District Public Defender Attorney General & Reporter
JEFFREY A. DeVASHER MARVIN E. CLEMENTS, JR.
Assistant Public Defender Assistant Attorney General
2nd Floor, Cordell Hull Building
JOAN A. LAWSON 425 Fifth Avenue North
Assistant Public Defender Nashville, TN 37243
ALLAN CALHOUN VICTOR S. JOHNSON, III
Assistant Public Defender District Attorney General
1202 Stahlman Building
Nashville, TN 37201 DIANE LANCE
Assistant District Attorney General
DAN HAMM
Assistant District Attorney General
Washington Square - Suite 500
222 Second Avenue North
Nashville, TN 37201-1649
Judge: WOODALL
First Paragraph:
On March 20, 1998, the Davidson County Grand Jury indicted Appellant
Kenneth Allen Johnson for two counts of aggravated sexual battery, two
counts of rape, and one count of sexual battery. Following a jury
trial on March 23-25, 1998, Appellant was convicted of one count of
rape and two counts of simple assault. After a sentencing hearing on
July 1, 1998, the trial court imposed a ten year sentence for the rape
conviction and a six month sentence for each of the simple assault
convictions. In addition, the trial court set Appellant's release
eligibility percentage at 100% for the rape sentence and 75% for each
of the simple assault sentences. The trial court also ordered the
sentences for the simple assault convictions to run concurrently to
each other, but consecutively to the sentence for the rape conviction.
On August 14, 1998, the trial court dismissed Appellant's convictions
for simple assault because they were barred by the statute of
limitations. Appellant challenges his sentence for the rape
conviction, raising the following issues: 1) whether the trial court
imposed an excessive sentence; and 2) whether the trial court erred
when it set the release eligibility percentage at 100%.
After a review of the record, we affirm the judgment of the trial
court.
http://www.tba.org/tba_files/TCCA/johnsnka_opn.wpd
TOMMY LEE KELLEY
VS.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
JENNIFER LYNN THOMPSON PAUL G. SUMMERS
715 Crescent Road Attorney General and Reporter
Nashville, TN 37205
MARK E. DAVIDSON
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243
VICTOR S. JOHNSON
District Attorney General
BRET T. GUINN
Assistant District Attorney General
Washington Square, Suite 500
222 Second Avenue North
Nashville, TN 37201-1649
Judge: WELLES
First Paragraph:
The Defendant appeals as of right pursuant to Rule 3 of the Tennessee
Rules of Appellate Procedure from the trial court's denial of his
petition for post-conviction relief. In a negotiated plea agreement,
the Defendant pleaded guilty to two counts of aggravated burglary.
His agreed sentence for each conviction was seven years as a Range II
multiple offender, with the sentences to be served concurrently. He
subsequently petitioned for post-conviction relief, alleging that his
guilty pleas were not knowing and voluntary and that he received
ineffective assistance of counsel. After conducting an evidentiary
hearing on the post-conviction petition, the trial judge denied the
Defendant's claim. We affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/Kelleytl_ord.wpd
STATE OF TENNESSEE
VS.
DONALD K. MOORE, JR.
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
MONTE D. WATKINS PAUL G. SUMMERS
1510 Parkway Towers Attorney General & Reporter
Nashville, TN 37219
LUCIAN D. GEISE
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243
VICTOR S. JOHNSON, III
District Attorney General
KATRIN NOVAK MILLER
Assistant District Attorney General
DERRICK SCRECHEN
Assistant District Attorney General
Washington Square - Suite 500
222 Second Avenue North
Nashville, TN 37201-1649
Judge: WOODALL
First Paragraph:
On July 29, 1996, the Davidson County Grand Jury indicted Defendant
Donald K. Moore, Jr., for one count of first degree murder and one
count of felony murder. Following a jury trial on May 11-12, 1998,
Defendant was convicted of one count of second degree murder. After a
sentencing hearing on June 15, 1998, the trial court sentenced
Defendant as a Range I standard offender to a term of twenty-one years
in the Tennessee Department of Correction. In addition, the trial
court ordered this sentence to run consecutively to sentences that had
previously been imposed in another case. Defendant challenges both
his conviction and his sentence, raising the following issues: 1)
whether the evidence was sufficient to support his conviction; and
2) whether the trial court erred when it ordered his sentence to run
consecutively to other sentences that were previously imposed in
another case.
After a review of the record, we affirm the judgment of the trial
court.
http://www.tba.org/tba_files/TCCA/mooredk_opn.wpd
STATE OF TENNESSEE
VS.
DELBERT G. MOSHER
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
PHILIP A. CONDRA PAUL G. SUMMERS
District Public Defender Attorney General & Reporter
FRANCIS W. PRYOR, JR. ELIZABETH B. MARNEY
Assistant Public Defender Assistant Attorney General
200 Betsy Pack Drive 425 Fifth Avenue North
P. O. Box 220 Nashville, TN 37243-0493
Jasper, TN 37347-0220
JAMES MICHAEL TAYLOR
District Attorney General
WILLIAM B. COPELAND
Assistant District Attorney General
265 Third Avenue, Suite 300
Dayton, TN 37321
Judge: GLENN
First Paragraph:
On May 6, 1997, a Franklin County grand jury indicted the defendant,
Delbert G. Mosher, on two counts of aggravated sexual battery. On
January 9, 1998, a jury found the defendant guilty of two counts of
the lesser included offense, attempt to commit aggravated sexual
battery. After a sentencing hearing on March 4, 1998, the trial court
sentenced the defendant to the maximum of ten years for each
conviction to run consecutively for a total of twenty years. After
denial of his post trial motions, Mosher timely appealed. Based upon
our review of the record, and of applicable law, we affirm the order
of the trial court.
http://www.tba.org/tba_files/TCCA/MOSHERDG.wpd
STATE OF TENNESSEE
VS.
HAROLD LYNN WOODROOF
Court:TCCA
Attorneys:
FOR THE Defendant: FOR THE APPELLEE:
JOHN E. HERBISON PAUL G. SUMMERS
2016 Eighth Avenue South Attorney General & Reporter
Nashville, TN 37204
MARK E. DAVIDSON
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
VICTOR S. JOHNSON, III
District Attorney General
DIANE S. LANCE
Assistant District Attorney General
222 Second Avenue North, Suite 500
Nashville, TN 37201-1649
Judge: GLENN
First Paragraph:
The defendant, Harold Lynn Woodroof, appeals as of right his sentence
of twenty-six years upon guilty pleas to four counts of aggravated
sexual battery and two counts of sexual battery in Davidson County
Criminal Court. According to the defendant's plea agreement with the
State, the sentence for each of the aggravated sexual battery counts
was eight years and the sentence for each of the sexual battery counts
was two years. Defendant argues that no evidence supports the
consecutive sentences imposed by the trial court. Based upon our
review of the record and of applicable law, we affirm the trial court.
http://www.tba.org/tba_files/TCCA/WOODROOF.wpd
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