August 2, 2001
Volume 7 — Number141

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
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
07 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
 

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

STATE OF TENNESSEE v. JACKIE F. CURRY
Court:TCCA

Attorneys:    

Darryl W. Humphrey, Memphis, Tennessee, for the appellant, Jackie F.
Curry.

Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant
Attorney General; Randall E. Nichols, District Attorney General;
Robert L. Jolley, Jr., Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

The Defendant, Jackie F. Curry, appeals as of right his conviction for
three counts of aggravated rape.  The trial court sentenced the
Defendant to twenty-two (22) years for each count.  The sentences were
ordered to run consecutively to each other and consecutively to a
prior eight-year sentence for which the Defendant was on probation at
the time of this incident.  The Defendant raises the following three
issues in this appeal: 1) whether the evidence was sufficient to
sustain his convictions for aggravated rape; 2) whether the trial
court erred in permitting the State to impeach him with two prior
convictions for the sale of cocaine; and 3) whether the trial court
erred in sentencing the Defendant.  The judgment of the trial court is
hereby affirmed.

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





DONALD MITCHELL GREEN v. STATE OF TENNESSEE

Court:TCCA

Attorneys:  

Donald Mitchell Green, pro se.

Paul G. Summers, Attorney General & Reporter; David H. Findley,
Assistant Attorney General; and Randall E. Nichols, District Attorney
General, for the appellee, State of Tennessee.                        

Judge: WADE

First Paragraph:

The petitioner, Donald Mitchell Green, appeals the trial court's
denial of post-conviction relief.  In this appeal of right, the
petitioner contends that the trial court erred by ordering a dismissal
without an evidentiary hearing.  The judgment is reversed and remanded
to the trial court for the appointment of counsel and an evidentiary
hearing.

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





STATE OF TENNESSEE v. BEN WARREN MILLER

Court:TCCA

Attorneys:

Thomas McKinney, Jr. and Clyde L. Tootle, Kingsport, Tennessee, for
the appellant, Ben Warren Miller.

Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann,
Assistant Attorney General; H. Greeley Wells, Jr.,  District Attorney
General; and Robert Montgomery, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

Pursuant to Tennessee Code Annotated sections 55-10-601 to 55-10-617,
the State of Tennessee filed a "petition and notice" to have the
Appellant/Respondent, Ben Warren Miller, declared an Habitual Motor
Vehicle Offender.  The Appellant filed, in one pleading, an "Answer
and Motion to Dismiss."  In the answer, the Appellant admitted all
material allegations which would support a judgment declaring him to
be an habitual motor vehicle offender.  In his motion to dismiss, the
Appellant argued that no summons was issued with the petition, and the
trial court violated the Tennessee Rules of Civil Procedure in signing
an order which required, in part, that Appellant "may be held in
violation of this order" if he did not appear and defend the petition
to be declared an habitual motor vehicle offender.  The trial court
denied the motion to dismiss and rendered a judgment declaring
Appellant to be an habitual motor vehicle offender.  On appeal, the
Appellant does not challenge the substantive grounds for having him
declared an habitual motor vehicle offender.  However, in three
issues, he argues that the judgment should be reversed and the
petition dismissed because:  (1) The trial court's order entered
subsequent to the filing of the petition required Appellant to appear
and defend or "he may be held in violation of this order," (2) the
trial court's order giving notice of the hearing on the petition was
not signed by an assistant district attorney, (3) the trial court did
not have the authority to issue an order directing the Appellant to
appear at a hearing on the petition and did not have the authority to
state in the order that he might be held in violation of the order if
he did not appear and defend the petition.  We affirm the judgment of
the trial court.

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





KENNETH STOMM v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Joe H. Walker, Public Defender, and Walter B. Johnson, II, Assistant
Public Defender, for the appellant, Kenneth Stomm.

Paul G. Summers, Attorney General & Reporter; Patricia C. Kussmann,
Assistant Attorney General; and Scott McCluen, District Attorney
General, for the appellee, State of Tennessee.                          

Judge: WADE
 
First Paragraph:

The petitioner, Kenneth Stomm, appeals the trial court's denial of his
petition for writ of habeas corpus.  The single issue presented for
review is whether the petition was properly dismissed without an
evidentiary hearing.  The judgment is affirmed.

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





STATE OF TENNESSEE v. JAMES KEVIN UNDERWOOD

Court:TCCA

Attorneys:

Julie A. Rice, Knoxville, Tennessee (on appeal), and David F.
Bautista, District Public Defender, and Jeffery Craig Kelly, Assistant
District Public Defender (at trial), for the appellant, James Kevin
Underwood.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks,
Assistant Attorney General; Joe C. Crumley, District Attorney General;
and Victor Vaughn, Assistant District Attorney General, for the
appellee, State of Tennessee.                        

Judge: TIPTON

First Paragraph:

The defendant, James Kevin Underwood, was convicted of evading arrest,
a Class E felony; driving on a revoked license, fourth offense; and
possession of drug paraphernalia, the sentences to be served
concurrently.  Germane to this appeal, the defendant was sentenced for
the evading arrest as a Range I offender either to two years in "house
arrest" under a community corrections alternative program of which six
months are to be served in jail, "day for day," or to six months in
jail, day for day, followed by two years in a community corrections
alternative program.  Either way, the defendant contends (1) that the
sentence exceeded the one-year sentence in his plea agreement and (2)
that, in any event, the trial court cannot order him to serve six
months day for day.  We affirm the judgments for the two misdemeanor
offenses, but we remand the evading arrest case for resentencing.

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





STATE OF TENNESSEE v. DANIEL WADE WILSON

Court:TCCA

Attorneys:

Stephen M. Wallace, District Public Defender; William A. Kennedy,
Assistant Public Defender, for the appellant, Daniel Wade Wilson.

Paul G. Summers, Attorney General & Reporter; Patricia C. Kussmann,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; Joseph E. Perrin, Assistant District Attorney; Barry P.
Staubus, Assistant District Attorney General, for the appellee, State
of Tennessee.                       

Judge: WOODALL

First Paragraph:

The Defendant, Daniel Wade Wilson, appeals as of right his convictions
for second degree murder, first degree felony murder and especially
aggravated robbery in the Sullivan County Criminal Court.  The trial
court merged the second degree murder conviction into the felony
murder conviction, and the jury sentenced the Defendant to life
imprisonment for the felony murder. The trial court sentenced the
Defendant to twenty-three (23) years for the especially aggravated
robbery conviction.  The sentences were ordered to run consecutively. 
The Defendant raises the following four issues in this appeal: 1)
whether the trial court erred in failing to charge all applicable
lesser-included offenses; 2) whether the trial court erred in failing
to instruct the jury on the natural and probable consequences rule; 3)
whether the evidence was sufficient to sustain Defendant's convictions
for first degree felony murder and especially aggravated robbery; and
4) whether the trial court erred in sentencing the Defendant.  The
judgment of the trial court is hereby affirmed in part and reversed in
part, and remanded to the trial court for a new trial on the felony
murder charge in Count II and the especially aggravated robbery charge
in Count III of the indictment.  The case is further remanded for
sentencing on the second degree murder conviction in Count I of the
indictment.

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





STATE OF TENNESSEE v. LEWIS WOODY

Court:TCCA

Attorneys:

Lewis Woody, Mountain City, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; and Leon Franks, Assistant District Attorney General, for the
appellee, State of Tennessee.                      

Judge: WOODALL

First Paragraph:

The Defendant, Lewis Woody, filed a notice of appeal which we construe
to appeal the judgments of conviction for two forgeries resulting from
a negotiated plea agreement, and he also included within the notice,
an appeal from the trial court's order denying his motion to tax costs
to the State and to "quash execution of garnishment."  For the reasons
set forth herein, we dismiss his appeal.

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

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