December 3, 1999
Volume 5 -- Number 165

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):
 
00 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Court of Appeals
10 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

						
STATE OF TENNESSEE 
VS. 
CECIL U. COBB, JR.

Court:TCCA

Attorneys:


For the Appellant:              For the Appellee:

Gerald L. Gulley, Jr.           Paul G. Summers
Contract Appellate Defender     Attorney General and Reporter
P. O. Box 1708  
Knoxville, TN  37901-1708       Marvin S. Blair, Jr.
                                Assistant Attorney General             
    (APPEAL ONLY)               Criminal Justice Division
                                425 Fifth Avenue North
and                             2d Floor, Cordell Hull Building
                                Nashville, TN 37243-0493            
Leslie S. Hale  
Office of the Public Defender                       
P. O. Box 839                   H. Greeley Wells, Jr.       
Blountville, TN  37617          District Attorney General

                                Robert H. Montgomery
                                Asst. District Attorney General
Thomas McKinney                 Blountville, TN  37617
Attorney at Law                     
222 E. Center Street
Kingsport, Tn  37660

Judge: HAYES

First Paragraph:

The appellant, Cecil U. Cobb, Jr., was convicted by a Sullivan County
jury of the misdemeanor offenses of possession of Dihydrocodeinone, a
Schedule III controlled substance; simple possession of marijuana;
failure to obey a traffic signal; and driving under the influence of
an intoxicant.  The trial court imposed an effective sentence of
twenty-three months, twenty-eight days.  On appeal, the appellant
challenges the sufficiency of the evidence for each of his four
convictions and the chain of custody related to the possession of the
marijuana and Schedule III drugs.

http://www.tba.org/tba_files/TCCA/COBBCU.wpd



STATE OF TENNESSEE VS. JIMMY J. DAVIS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: MARK E. STEPHENS PAUL G. SUMMERS District Public Defender Attorney General & Reporter PAULA R. VOSS ELLEN H. POLLACK JOHN HALSTEAD Assistant Attorney General Assistant Public Defenders 425 Fifth Avenue North 1209 Euclid Avenue Nashville, TN 37243 Knoxville, TN 37921 RANDALL E. NICHOLS District Attorney General ROBERT L. JOLLEY Assistant District Attorney City-Courty Building Knoxville, TN 37902 Judge: SMITH First Paragraph: The appellant, Jimmy J. Davis, was convicted by a Knox County jury of one (1) count of misdemeanor assault, and the trial court sentenced him to eleven (11) months and twenty-nine (29) days in the county jail. On appeal, the appellant challenges the sufficiency of the evidence for his conviction for misdemeanor assault. After thoroughly reviewing the record before this Court, we affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/DAVISJ.wpd
STATE OF TENNESSEE VS. MICHAEL E. DEAN Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: WILLIAM DOBSON (At trial) PAUL G. SUMMERS Assistant Public Defender Attorney General and Reporter KEITH A. BLACK (On appeal) ELIZABETH B. MARNEY 424 Georgia Avenue Assistant Attorney General Chattanooga, TN 37402 425 Fifth Avenue North Nashville, TN 37243 BILL COX District Attorney General JOSEPH REHYANSKI Assistant District Attorney General Courts Building - 600 Market Street Chattanooga, TN 37402 Judge: WELLES First Paragraph: The Defendant, Michael E. Dean, was indicted for the robbery of Margaret Jackson and the assault of Eric Carter, arising out of events occurring on December 6, 1996. A Hamilton County jury found the Defendant guilty of the robbery but acquitted him of the assault. He now appeals his robbery conviction alleging insufficiency of the evidence and prosecutorial misconduct. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/deanme.wpd
STATE OF TENNESSEE VS. TINA EARLS Court:TCCA Attorneys: For the Appellant: For the Appellee: Shawn Graham Paul G. Summers Office of the Public Defender Attorney General of Tennessee 419 High Street and Maryville, Tennessee 37804 Clinton J. Morgan (AT TRIAL) Assistant Attorney General of Tennessee 425 Fifth Avenue North Nashville, TN 37243 Gerald L. Gulley, Jr. Michael L. Flynn Post Office Box 1708 District Attorney General Knoxville, TN 37901-1708 (ON APPEAL) and Kirk E. Andrews Assistant District Attorney General 363 Court Street Maryville, TN 37804 Judge: TIPTON First Paragraph: The defendant, Tina Earls, appeals as of right from her conviction following a guilty plea in the Blount County Criminal Court for theft of property valued under five-hundred dollars, a Class A misdemeanor. The trial court sentenced the defendant to eleven months and twenty-nine days in the Blount County Jail, with probation eligibility after serving fifty percent of the sentence. The defendant contends that the trial court should have been sentenced her to full probation or to community corrections. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/EARLST.wpd
STATE OF TENNESSEE VS. MICHELLE FRANZE Court:TCCA Attorneys: For the Appellant: For the Appellee: John E. Herbison Paul G. Summers Attorney for Appellant Attorney General and Reporter 2016 Eighth Avenue South Nashville, TN 37204 Erik W. Daab Assistant Attorney General Criminal Justice Division (ON APPEAL) 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493 Mack Garner District Public Defender 419 High Street Michael L. Flynn Maryville, TN 37804 District Attorney General (AT TRIAL) Edward P. Bailey, Jr. Asst. District Attorney General 363 Court Street Maryville, TN 37804 Judge: HAYES First Paragraph: The appellant, Michelle Franze, was found guilty by a jury of theft of property over $10,000. The Blount County Criminal Court imposed a split confinement sentence of three years with 210 days confinement followed by two years, 5 months supervised probation. At trial, the appellant defended upon the affirmative defense of "claim of right." On appeal, she contends that "the trial court's failure to instruct the jury on the meaning of the phrase 'claim of right' constitutes plain and prejudicial error." http://www.tba.org/tba_files/TCCA/FRANZEM.wpd
DONALD HIGBEE and KIMBERLY HIGBEE VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANTS: LEWIS A. HOLD (for Donald Higbee) Public Defender P.O. Box 38 Jonesborough, TN 37659 MITZI PRIVETTE (for Kimberly Higbee) Attorney at Law 142 E. Market Street Johnson City, TN 37601 GERALD L. GULLEY, JR. (on appeal for both) Appellate Defender P.O. Box 1708 Knoxville, TN 37901-1708 FOR THE APPELLEE: PAUL G. SUMMERS Attorney General & Reporter MICHAEL J. FAHEY, II Asst. Attorney General 425 Fifth Ave. North 2d Floor, Cordell Hull Bldg. Nashville, TN 37243-0493 JOE C. CRUMLEY, JR. District Attorney General ANTHONY CLARK Asst. District Attorney General 101 E. Market Street Johnson City, TN 37605 LISA RICE Asst. District Attorney General P.O. Box 38 Jonesborough, TN 37659 Judge: WITT First Paragraph: The defendants, Donald Higbee and Kimberly Higbee, appeal the Washington County Criminal Court's imposition of confinement for their conviction of child neglect, a Class D felony. The defendants pleaded guilty to child neglect and agreed to a sentence outside the range for the offense, but the manner of service was left for determination by the trial court. At the sentencing hearing, the trial court sentenced the defendants to serve seven years in the Tennessee Department of Correction. In this appeal the defendants claim that they should have received an alternative sentence. After a review of the record, the briefs of the parties, and the applicable law, we affirm the sentence. http://www.tba.org/tba_files/TCCA/HigbeeD&K.wpd
STATE OF TENNESSEE VS. JIMMY D. LACKEY Court:TCCA Attorneys: FOR THE APPELLEE: FOR THE APPELLANT: GREGORY D. SMITH PAUL G. SUMMERS One Public Square Attorney General & Reporter Clarksville, TN 37040 ELLEN H. POLLACK Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 WILLIAM PAUL PHILLIPS District Attorney General CLIFTON SEXTON Assistant District Attorney Scott Co. Courthouse Huntsville, TN 37756 Judge: SMITH First Paragraph: The appellant, Jimmy Dewayne Lackey, was convicted of one (1) count of voluntary manslaughter upon a bench trial in Scott County. The trial court sentenced him as a Range I, Standard Offender, to six (6) years in community corrections. On appeal, the appellant claims that the trial court erred in denying his request for judicial diversion pursuant to Tenn. Code Ann. S 40-35-313. After reviewing the record before this Court, we conclude that the trial court erred in failing to state on the record its reasons for denying judicial diversion; thus, we reverse the judgment of the trial court and remand for further proceedings. http://www.tba.org/tba_files/TCCA/LACKEY.wpd
STATE OF TENNESSEE VS. MACARTHUR COFFEY Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JULIE A. RICE PAUL G. SUMMERS P.O. Box 426 Attorney General & Reporter Knoxville, Tennessee 37901 CLINTON J. MORGAN CHARLES HERMAN 425 Fifth Avenue North P.O. Box 337 Nashville, Tennessee 37243 Jacksboro, Tennessee 37757 MIKE RIPLEY Assistant District Attorney P.O. Box 326 Jacksboro, Tennessee 37757 Judge: WALKER First Paragraph: Appellant appeals the judgment of the trial court with regard to the manner of service of sentence. Appellant entered a plea of guilty to three counts of burglary of a vehicle, and one count of theft of over $1,000.00, with agreed sentences of two years as a Range I offender for each of the three auto-burglary charges, and four years as a Range I offender for the D felony of theft, with the further agreement that the sentences would run concurrently. The trial court determined the manner of service of his sentences. http://www.tba.org/tba_files/TCCA/MCOFFEY.wpd
STATE OF TENNESSEE VS. JOHNNY WADE MEEKS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JERRY S. SLOAN PAUL G. SUMMERS Attorney at Law Attorney General & Reporter 730 Cherry St., Ste. C Chattanooga, TN 37402 MARVIN S. BLAIR, JR. Assistant Attorney General 425 Fifth Ave. North 2d Floor, Cordell Hull Bldg. Nashville, TN 37243-0493 WILLIAM H. COX, III District Attorney General YOLANDA MITCHELL Asst. District Attorney General 600 Market St., Ste. 310 Chattanooga, TN 37402 Judge: WITT First Paragraph: The defendant, Johnny Wade Meeks, appeals from his conviction of driving under the influence. Meeks received his conviction in the Hamilton County Criminal Court at the conclusion of a jury trial. The trial court sentenced him to serve 48 hours in the county jail, with the balance of the eleven-month, 29 day sentence to be served on probation. http://www.tba.org/tba_files/TCCA/meeksjw.wpd
TRAY D. TURNER VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: HEIDI A. BARCUS PAUL G. SUMMERS LONDON & AMBURN, P.C. Attorney General & Reporter 1716 Clinch Avenue Knoxville, Tennessee 37916 ELLEN H. POLLACK Assistant Attorney General 425 Fifth Avenue North TRAY D. TURNER Nashville, Tennessee 37243 pro se RANDALL E. NICHOLS District Attorney General City-County Building Knoxville, Tennessee 37902 Judge: WALKER First Paragraph: The appellant appeals as of right from the denial of his request for re-calculation of his jail credit. The trial court found that appellant received the correct amount of jail credit and dismissed the petition. http://www.tba.org/tba_files/TCCA/TDTURNER.wpd

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