September 1, 2000 Volume 6 -- Number 139 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. This Issue (IN THIS ORDER):   00 New Opinion(s) from the Tennessee Supreme Court 03 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 11 New Opinion(s) from the Tennessee Court of Criminal Appeals 00 New Opinion(s) from the Tennessee Attorney General (PDF format) 00 New Judicial Ethics Opinion(s) 00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility   There are three ways for TBALink members to get the full-text versions of these opinions from the Web: Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Lucian T. Pera Editor-in-Chief, TBALink PATRICIA M. CAMPBELL, v. CITY OF TULLAHOMA, et al. Court:TSC - Workers Comp Panel Attorneys: Tripp Steven Fried, Franklin, Tennessee, for the appellant, Patricia M. Campbell. Frank Thomas and Hal W. Wilkins, Nashville, Tennessee, for the appellees, City of Tullahoma and American International Underwriters, Inc. Judge: LOSER First Paragraph: The appellant, Campbell, insists the trial court erred in granting the appellee's motion for discretionary costs because no equitable ground for such relief was asserted in the motion and accompanying affidavit. The panel concludes that the plaintiff's voluntary dismissal of her complaint is a sufficient ground for an award of discretionary costs. http://www.tba.org/tba_files/TSC_WCP/campbellpat.wpd TATUM CARTER v. WAL-MART STORES, INC. Court:TSC - Workers Comp Panel Attorneys: John D. Drake, Murfreesboro, Tennessee, for Appellant, Tatum Carter Angela D. Sutherland and Jeffrey B. Kopet, Chattanooga, Tennessee, for Appellee, Wal-Mart Stores, Inc. Judge: KURTZ First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. As discussed below, the panel has concluded the judgment of the trial court granting the appellee summary judgment should be reversed. http://www.tba.org/tba_files/TSC_WCP/cartertatum.wpd THE KROGER COMPANY, et al. v. SARA COOPER Court:TSC - Workers Comp Panel Attorneys: Clifford Wilson, Gracey, Ruth, Howard, Tate & Sowell, Nashville, Tennessee, for the appellants, The Kroger Company and CNA Insurance Company. James P. Smith, Jr., Bean & Smith, Crossville, Tennessee, for the appellee, Sara Cooper. Judge: LOSER First Paragraph: The employer has appealed contending the trial court's award of permanent partial disability benefits based on thirty-five percent to the leg for a torn meniscus is excessive. http://www.tba.org/tba_files/TSC_WCP/krogerco.wpd STATE OF TENNESSEE v. THOMAS ANDERSON, JR. Court:TCCA Attorneys: Judy A. Oxford, Franklin, Tennessee, and Larry D. Drolsum, Assistant District Public Defender, for the appellant, Thomas Anderson, Jr. Paul G. Summers, Attorney General and Reporter, Kim R. Helper, Assistant Attorney General, and Sharon E. Tyler, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Thomas Anderson, Jr., pled guilty in the Williamson County Circuit Court to two counts of sale of cocaine, class C felonies. The trial court sentenced the appellant as a persistent, Range III offender to consecutive terms of ten years incarceration in the Tennessee Department of Correction. The appellant now appeals his convictions and sentences, presenting the following issues for our review: (1) whether the trial court erred in imposing consecutive sentencing; (2) whether the trial court erred in denying the appellant placement in a community corrections program; and (3) whether the trial court erred in denying the appellant's motion to withdraw his guilty pleas. Following a review of the record and the parties' briefs, we reverse the judgments of the trial court and remand this case for proceedings consistent with this opinion. http://www.tba.org/tba_files/TCCA/andersontj.wpd STATE OF TENNESSEE v. GDONGALAY PARLO BERRY Court:TCCA Attorneys: William C. Roberts and Robert L. Marlow, Shelbyville, Tennessee, for the appellant, Gdongalay Parlo Berry. Paul G. Summers, Attorney General and Reporter; Todd R. Kelley, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Katrin N. Miller, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant appeals his jury convictions of two counts of aggravated robbery for which he is serving two consecutive nine-year sentences. The defendant raises the following issues: 1) whether the evidence was sufficient to support his convictions; and 2) whether the trial court properly ordered the defendant's sentences to be served consecutively. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/berrygp.wpd STATE OF TENNESSEE v. THERON L. BOYD Court:TCCA Attorneys: Mark C. Scruggs, Nashville, Tennessee, for the appellant, Theron L. Boyd. Paul G. Summers, Attorney General and Reporter; Marvin E. Clements, Jr., Assistant Attorney General; Victor S. Johnson, District Attorney General; Pamela Anderson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Theron L. Boyd, appeals as of right from an "Agreed Final Judgment Granting Delayed Appeal" entered by the trial court upon the trial court's finding that the Defendant was entitled to post-conviction relief. The "Agreed Final Judgment Granting Delayed Appeal" purports to modify the original judgment of conviction by explicitly reserving certified questions of law which would be dispositive of the case and then to grant a delayed appeal of those issues. The Defendant argues that his convictions pursuant to his guilty pleas should be reversed because the trial court erred in denying his motion to suppress evidence found as a result of illegal searches by police. http://www.tba.org/tba_files/TCCA/boydtl.wpd STATE OF TENNESSEE v. MICHAEL BYRD Court:TCCA Attorneys: Beverly J. White, Assistant District Public Defender, for the appellant, Michael Byrd. Paul G. Summers, Attorney General and Reporter, Todd R. Kelley, Assistant Attorney General, and Mike Bottoms, District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: On February 13, 1996, the appellant was convicted of attempted aggravated child abuse, a class C felony, pursuant to his plea of nolo contendere in the Giles County Circuit Court. The trial court imposed a sentence of six years incarceration in the Tennessee Department of Correction, suspending the appellant's sentence and ordering an equal term of participation in the local community corrections program. On March 3, 1999, the trial court revoked the appellant's community corrections sentence, and the appellant now challenges the revocation and his consequent incarceration in the Department of Correction. Following a review of the record and the parties' briefs, we reverse the judgment of the trial court and remand this case for proceedings consistent with this opinion. http://www.tba.org/tba_files/TCCA/byrdmi.wpd STATE OF TENNESSEE v. ROGER M. DEMASS Court:TCCA Attorneys: Gene Honea, Assistant Public Defender, Franklin, Tennessee, for the appellant, Roger M. Demass. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Ron Davis, District Attorney General; and Lee Driver, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant pleaded guilty in the Williamson County Circuit Court to aggravated burglary, without a sentence recommendation. After a sentencing hearing, he was sentenced as a Range I standard offender to four years incarceration, suspended after service of one year at seventy-five percent in the Williamson County Jail. He was also placed on six years supervised probation. In this appeal as of right, the Defendant argues that the trial court erred by refusing to suspend his entire sentence, that the trial court erred by ordering the Defendant to serve an amount of time greater than the percentage allowed under Tennessee Code Annotated S 40-35-314, and that the trial court erred by ordering the Defendant to pay restitution to the victim. We find no error. Accordingly, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/demassrm.wpd STATE OF TENNESSEE v. TYWAN FAULK Court:TCCA Attorneys: Carrie W. Kersh, Clarksville, Tennessee, for the appellant, Tywan Faulk. Paul G. Summers, Attorney General and Reporter, Todd R. Kelley, Assistant Attorney General, Daniel Brollier, Assistant District Attorney General, and Lisa Donegan, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Tywan Faulk, appeals his conviction by a jury in the Montgomery County Circuit Court of one count of possession of more than .5 grams of cocaine with intent to deliver and within 1,000 feet of a school, a class A felony. Prior to trial, the appellant pled guilty to driving on a revoked license, a class B misdemeanor. Pursuant to the appellant's conviction for possession of cocaine with intent to deliver, the trial court imposed a sentence of fifteen years incarceration in the Tennessee Department of Correction. Additionally, the trial court imposed a sentence of thirty days incarceration in the county jail for the driving on a revoked license conviction. http://www.tba.org/tba_files/TCCA/faulkt.wpd STATE OF TENNESSEE v. DELWIN KEITH O'NEAL Court:TCCA Attorneys: Delwin Keith O'Neal, Clifton, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; William Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: In 1997, the defendant pled guilty in Marshall County to aggravated assault. Pursuant to a negotiated plea agreement, he was sentenced as a Range II, multiple offender and received a six-year sentence, consecutive to a prior Montgomery County sentence. The defendant now claims his sentence does not comport with the plea agreement and asks this court to modify the sentence. Upon our review of the record, we conclude the defendant did not timely challenge his sentence and deny relief. http://www.tba.org/tba_files/TCCA/onealdk.wpd State of Tennesseee v. Kenneth R. Shell Court:TCCA Attorneys: David Neal Brady, District Public Defender, Joe L. Finley, Jr., Assistant District Public Defender, for the appellant, Kenneth R. Shell. Paul G. Summers, Attorney General & Reporter, R. Stephen Jobe, Assistant Attorney General, William Edward Gibson, District Attorney General, Anthony Craighead and Tammy Hobby, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WITT First Paragraph: Kenneth R. Shell appeals from his conviction of aggravated sexual battery. He seeks a new trial based upon newly discovered evidence. Finding no error in the trial court's denial of his motion for new trial on this basis, we affirm. http://www.tba.org/tba_files/TCCA/shellkr.wpd GEROME SMITH v. STATE OF TENNESSEE Court:TCCA Attorneys: David A. Simpson, Gallatin, Tennessee, for the petitioner, Gerome Smith. Paul G. Summers, Attorney General & Reporter, Clinton J. Morgan, Assistant Attorney General, and Kymberly Haas, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The petitioner, Gerome Smith, appeals the trial court's disposition of his petition for post-conviction relief. While granting the petitioner 60 days within which to file an application for permission to appeal to our supreme court this court's affirmance of the original conviction and sentence, the trial court otherwise denied post-conviction relief. The single issue presented for review is whether the petitioner was denied the effective assistance of counsel at trial and on appeal. Because the petitioner has been unable to meet his burden of proof, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/smithgerome.wpd STATE OF TENNESSEE v. KEVIN DEWAYNE STEEN Court:TCCA Attorneys: J. Thomas Marshall, Jr., District Public Defender; and Nancy Meyer, Assistant District Public Defender, Clinton, Tennessee, for the appellant, Kevin Dewayne Steen. Paul G. Summers, Attorney General and Reporter; R. Stephen Jobe, Assistant Attorney General; James N. Ramsey, District Attorney General; and Jan Hicks, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The sole issue in this appeal is whether the defendant was eligible for work release and/or periodic confinement prior to serving the mandatory minimum period of incarceration for second offense DUI. The trial court concluded that the defendant was ineligible for work release or periodic confinement prior to serving the mandatory minimum period of incarceration, and we affirm that judgment. http://www.tba.org/tba_files/TCCA/steenkd.wpd DANIEL BENSON TAYLOR v. JACK MORGAN, Warden Court:TCCA Attorneys: John E. Herbison, Nashville, Tennessee, for the appellant, Daniel Benson Taylor. Michael E. Moore, Solicitor General; Lucian D. Geise, Assistant Attorney General; Ron Davis, District Attorney General; Lucian D. Geise, Assistant District Attorney General, for the appellee, Jack Morgan, Warden. Judge: WELLES First Paragraph: The Defendant was convicted by a Shelby County jury for the offense of second degree murder committed on September 20, 1980. The trial court sentenced him to life imprisonment on October 6, 1982. His conviction and sentence were affirmed by this Court on direct appeal, and the Tennessee Supreme Court denied permission to appeal. The Defendant filed a petition for habeas corpus relief, which the trial court dismissed. The Defendant now appeals from the trial court's denial of habeas corpus relief, contending that he should have been sentenced under the Tennessee Criminal Sentencing Reform Act of 1982, under which he argues he would have received a lesser penalty. We hold that the trial court properly denied habeas corpus relief and affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/taylordb.wpd PLEASE FORWARD THIS E-MAIL! Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address. GET A FULL-TEXT COPY OF AN OPINION! See the intrsuctions at the beginning of this edition of Opinion Flash. JOIN TBALink! While Opinion Flash is a free service of the Tennessee Bar Association, you must be a subscriber to TBALink, the premier Web site for Tennessee attorneys, in order to access the full-text of the opinions or enjoy many other features of TBALink. 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