September 17, 2001 Volume 7 — Number 170 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 02 New Opinion(s) from the Tennessee Court of Appeals 08 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. Howard H. Vogel Knoxville, Tennessee Editor-in-Chief, TBALink MICHAEL CHESLOCK v. BOARD OF ADMINISTRATION, CITY OF MEMPHIS RETIREMENT SYSTEM Court:TCA Attorneys: Thomas E. Hansom and Debra L. Fessenden, Memphis, Tennessee, for the Appellant, Michael Cheslock. Robert L. J. Spence, Jr., City Attorney and Steven D. Townsdin, Assistant City Attorney, Memphis, Tennessee, for the Appellee, Board of Administration City of Memphis Retirement System. Judge: FARMER First Paragraph: On December 14, 1995, Memphis Police Lieutenant Michael Cheslock appeared before the Pension Board of Memphis, Tennessee, to request a line of duty disability pension as provided by the Memphis Code of Ordinances, Section 25-1(27). Mr. Cheslock had been diagnosed by two psychiatrists as disabled by job related Post Traumatic Stress Disorder. The Pension Board refused the line of disability pension, determining that Mr. Cheslock did not meet the requirements as defined by the code. Mr. Cheslock filed a petition for writ of certiorari in the Chancery Court of Shelby County. The petition was denied and this appeal followed. We affirm. http://www.tba.org/tba_files/TCA/cheslockmichael.wpd JOE W. ROSS AND LOVIE M. ROSS v. SHELBY COUNTY HEALTHCARE CORP. AND JOHN D. KING, M.D. Court:TCA Attorneys: August C. Winter, Brentwood, TN, for Appellant, Joe Willard Ross Charles W. McDonald, Memphis, for Appellant, Lovie M. Ross Mark S. Norris, Nichole E. Soule, Memphis, for Appellee, Shelby County Healthcare Corp. William H. Haltom, Jr., Michael E. Keeney, Memphis, for Appellee, John D. King, M.D. Judge: HIGHERS First Paragraph: This appeal arises from the contraction of the HIV virus by the Appellant after he received blood transfusions from the Appellees. The Appellants brought a complaint with the Circuit Court of Shelby County against the Appellees but then filed a voluntary dismissal without prejudice. The Appellants refiled the complaint against the Appellees. Process for the Appellees was issued but returned unserved. The Appellants failed to reissue process within one year. The Appellants filed a motion for enlargement of time to issue new process pursuant to Rule 6.02 of the Tennessee Rules of Civil Procedure. The trial court denied the Appellants' motion and dismissed the complaint against the Appellees. The Appellants appeal from the denial of their motion and the dismissal of the complaint against the Appellees by the Circuit Court of Shelby County. For the reasons stated herein, we affirm the trial court's decision. http://www.tba.org/tba_files/TCA/rossjoew.wpd QUINCY BLEDSOE v. STATE OF TENNESSEE Court:TCCA Attorneys: Alan B. Chambers, Memphis, Tennessee, for the Appellant, Quincy Bledsoe. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; John H. Bledsoe, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Colin Campbell, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Quincy Bledsoe, appeals from the dismissal of his petition for post-conviction relief by the Fayette County Circuit Court. In 1997, Bledsoe pled guilty to aggravated kidnapping and attempted felony escape and received an effective nine-year Department of Correction sentence as a violent offender. On appeal, Bledsoe seeks to set aside his convictions upon grounds that his pleas were "based upon an uncounseled statement that was not knowingly and voluntarily given." Finding this issue without merit, the judgment of the post-conviction court is affirmed. http://www.tba.org/tba_files/TCCA/bledsoequincy.wpd STATE OF TENNESSEE v. PAUL H. CLEVER Court:TCCA Attorneys: Bill Anderson, Jr., Memphis, Tennessee, for the appellant, Paul H. Clever. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Jim Powell, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant pled guilty to driving under the influence and was sentenced as a multiple offender. In this appeal as of right, the defendant alleges that (1) the trial court erred in finding that he was a third offender for purposes of sentencing, and (2) the DUI sentencing statute is unconstitutional because it is vague and has an ex post facto effect. After careful review, we affirm the defendant's conviction and sentence. http://www.tba.org/tba_files/TCCA/cleverpaulh.wpd STATE OF TENNESSEE v. ERIC TERRELL GLOVER Court:TCCA Attorneys: Clifford K. McGowan, Jr., Waverly Tennessee, (on appeal only); Gary F. Antrican, District Public Defender; Shana McCoy-Johnson and Rickey W. Griggs, Assistant Public Defenders, Somerville, Tennessee, (at trial and on appeal). Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; John H. Bledsoe, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Walt Freeland and Colin A. Campbell, Assistant District Attorneys General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: In July of 1999, a Fayette County Grand Jury indicted the Appellant, Eric Terrell Glover, for the following offenses: (1) first-degree premeditated murder; (2) first-degree felony murder; (3) especially aggravated kidnapping; and (4) especially aggravated robbery. Following a jury trial, Glover was convicted on all charges and, in accordance with the jury's verdict, was sentenced to life imprisonment for first-degree premeditated murder. For his convictions of especially aggravated kidnapping and especially aggravated robbery, Glover was sentenced, as a violent offender, to concurrent twenty year sentences on each charge, with these sentences running concurrently to his life sentence. On appeal, Glover challenges the sufficiency of the evidence supporting his convictions as a principal offender under a theory of criminal responsibility for the conduct of another. He argues that the proof, at best, supports only the subordinate criminal responsibility of "facilitating." After review, we find no error and affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/glovererict.wpd STATE OF TENNESSEE v. JON ROBERT GOODALE Court:TCCA Attorneys: Jeffrey A. DeVasher, Assistant Public Defender, Nashville, Tennessee, for the appellant, Jon R. Goodale. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Roger Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Jon Goodale, was convicted of first degree premeditated murder, felony murder, and especially aggravated robbery in the Criminal Court of Davidson County. The first conviction was merged into the felony murder conviction and the Defendant was sentenced to life. The trial court then conducted a sentencing hearing and imposed a twenty-five year sentence for the especially aggravated robbery to be served consecutive to the life sentence. In his appeal as of right pursuant to Rule 3(b) of the Tennessee Rules of Appellate Procedure, the Defendant argues that (1) the evidence presented at trial was insufficient to support his convictions, (2) the trial court erred in failing to instruct the jury concerning accessory after the fact as a lesser-included offense to all charges, and (3) the sentence imposed by the trial court is excessive. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/goodalejr.wpd KARL HAMILTON, a.k.a. R. PREWITT v. STATE OF TENNESSEE Court:TCCA Attorneys: Robert B. Gaia, Memphis, Tennessee, for the appellant, Karl Hamilton. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Stephanie Johnson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: Petitioner appeals the order of the Shelby County Criminal Court dismissing his petition for post- conviction relief. Following an evidentiary hearing, the court held that the petition was time-barred by the statute of limitations. After a thorough review of the record, we conclude that the petition was filed timely, and reverse the decision of the post-conviction court. http://www.tba.org/tba_files/TCCA/hamiltonkarl.wpd STATE OF TENNESSEE v. ADRIAN S. LENNOX Court:TCCA Attorneys: Jefre S. Goldtrap, Nashville, Tennessee, for the appellant, Adrian S. Lennox. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Victor S. Johnson, District Attorney General; and J. Carlton Drumwright, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Adrian S. Lennox, was convicted by a jury of aggravated burglary, vandalism, felony evading arrest and driving on a revoked license. The Defendant was then sentenced as a Range II offender to nine years on the aggravated burglary conviction, three years on the vandalism conviction, five years on the felony evading arrest conviction, and six months on the conviction for driving on a revoked license. The trial court ordered that the aggravated burglary and the felony evading sentences run consecutively. On appeal, the Defendant argues that (1) the evidence is insufficient to support the Defendant's convictions, (2) the trial court improperly denied the Defendant's motion for the preparation of trial transcripts prior to his motion for new trial hearing, and (3) the trial court improperly sentenced the Defendant. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/lennoxas.wpd STATE OF TENNESSEE v. DONEY D. MILES Court:TCCA Attorneys: Michael E. Scholl, Memphis, Tennessee, for the appellant, Doney D. Miles. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and David N. Pritchard, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant appeals his conviction for aggravated robbery and sentence of eight years and six months, arguing: (1) there was insufficient evidence to support his conviction; (2) the trial court erred in allowing hearsay into evidence under the excited utterance exception; (3) the trial court erroneously failed to charge the jury on lesser-included offenses; and (4) his sentence is excessive. After a thorough review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/milesd.wpd STATE OF TENNESSEE v. MARCUS J. TURCO Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; William L. Gibbons, District Attorney General; and Paul Thomas Hoover, Jr., Assistant District Attorney General, for the appellant, State of Tennessee. Irvin M. Salky (at hearing and on appeal) and Stephen I. Cohen (at hearing), Memphis, Tennessee, for the appellee, Marcus J. Turco. Judge: RILEY First Paragraph: This is an appeal by the State of Tennessee from an order granting the defendant judicial diversion for the offense of sexual battery. This order was the result of a Tenn. R. Crim. P. 35 motion to reduce a previously ordered sentence of one year in the county jail with all time suspended and supervised probation for one year. Although the Tenn. R. Crim. P. 35 motion was timely filed, the trial court did not act upon the motion until after the original probated sentence had been fully served and expired. Two issues of first impression are presented in this appeal. We conclude that (1) judicial diversion is not a "sentence" and, therefore, may not be granted as Rule 35 relief; and (2) a trial court may not modify a sentence under Rule 35 after the sentence has been fully served and expired. Accordingly, we reverse the judgment of the trial court. http://www.tba.org/tba_files/TCCA/turcomj.wpd HAYES CONCURRING http://www.tba.org/tba_files/TCCA/turcomjcon.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. TBA members may join TBALink for just $50 per year. 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