November 9, 2001
Volume 7 — Number 209

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
01 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
05 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

DAVID KEE v. UNIMIN CORPORATION

Court:TSC - Workers Comp Panel

Attorneys:

Richard C. Manglesdorf, Jr., and Thomas J. Dement, II, Nashville,
Tennessee, for the appellant, Unimin Corporation

Terry J. Leonard, Camden, Tennessee, for the appellee, David Kee                        

Judge: LOSER

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.  This is an
action by an injured employee to recover workers' compensation
benefits for three separate claimed injuries by accident occurring at
different times.  After a trial on the merits, the trial judge
dismissed the claim based on an arm injury for insufficient proof that
it occurred at work, but awarded, inter alia, permanent partial
disability benefits based on 40 percent to the body as a whole for the
injuries to the neck and back.  The employer has appealed contending
(1) the evidence preponderates against the trial court's finding that
the employee's claimed neck injury is compensable and (2) the trial
court erred in awarding permanent disability benefits for the neck
injury and for an admittedly compensable low back injury.  As
discussed below, the panel has concluded the judgment should be
affirmed.

http://www.tba.org/tba_files/TSC_WCP/keedavid.wpd



STATE OF TENNESSEE v. NORDELL BUGGS Court:TCCA Attorneys: Larry B. Felts, Nashville, Tennessee, for the appellant, Nordell Buggs. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams III, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and Kymberly L. A. Haas, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: Defendant contends that the evidence was insufficient to support the convictions of attempted burglary and possession of burglary tools. We affirm the judgments from the trial court. http://www.tba.org/tba_files/TCCA/buggsn.wpd
STATE OF TENNESSEE v. RITA DAVIS Court:TCCA Attorneys: John H. Dickey, Fayetteville, Tennessee, for the Appellant, Rita Davis. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; John H. Bledsoe, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Rita Davis, pled guilty to one count of failure to appear, a class E felony, and was sentenced as a career offender to six years confinement. No direct appeal of her sentence was taken. Davis then filed a petition for post-conviction relief, requesting (1) a delayed direct appeal of her sentence; and (2) that her conviction be vacated upon grounds: (a) that her guilty plea was involuntarily entered based upon ineffective assistance of counsel; and (b) that her conviction was obtained in violation of "constitutional due process rights." After review, we find that the post-conviction court's consolidation of issue (1), granting the direct appeal of her sentence, and issue (2), the collateral review of Davis' challenge to her conviction through post-conviction process, conflicts with our previous holding in Gibson v. State, 7 S.W.3d 47 (Tenn. Crim. App. 1998). Thus, consistent with Gibson, we reverse and remand issue (2) with instructions that Davis' collateral attack of her conviction be dismissed without prejudice. With respect to issue (1), we grant review of Davis' six-year sentence. After review, we find this issue is without merit and affirm her sentence as imposed. http://www.tba.org/tba_files/TCCA/davisrita.wpd
STATE OF TENNESSEE v. PAMELA SUE KING Court:TCCA Attorneys: Michael A. Colavecchio (on appeal) and Lionel R. Barrett, Jr. (at trial), Nashville, Tennessee, for the appellant, Pamela Sue King. Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Pamela S. Anderson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The defendant, Pamela Sue King, was indicted by a Davidson County Grand Jury on one count of first degree premeditated murder. She was subsequently convicted by a jury of second degree murder, and was sentenced by the trial court to twenty-three years incarceration at 100% as a violent offender. Following the denial of her motion for a new trial, she filed a timely appeal to this court, raising two issues: (1) whether the evidence was sufficient to support her conviction for second degree murder; and (2) whether the trial court erred in allowing the jury to use a dictionary in its deliberations. After a review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/kingpamela.wpd
STATE OF TENNESSEE v. JOHNNY MORROW Court:TCCA Attorneys: Philip A. Condra, Jasper, Tennessee, for the Appellant, Johnny Morrow. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Thomas E. Williams, III, Assistant Attorney General; James Michael Taylor, District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Johnny Morrow, a former member of the Tennessee Army National Guard, was convicted by a jury of five penal provisions of the Tennessee Military Code of 1970. The convictions were merged into a single Class E felony offense of fraud against the government, in violation of Tenn. Code Ann. S 58-1-630(3). Morrow appeals his conviction, arguing: (1) that the penal provisions of Title 58, which are peculiar to the military, are not applicable to a member of the National Guard when not on active duty or in drill status; and (2) that his prosecution was barred by the statute of limitations. After review, we find merit in Morrow's argument that three of his convictions (Counts II, III, and IV), including his felony conviction of fraud against the government, did not occur while in a drill or duty status; therefore, these convictions are reversed and dismissed. We find that two of his convictions (Counts V and VI), both misdemeanors, are not subject to a drill or duty status requirement and, after finding they are not barred by the statute of limitations, these convictions are affirmed. Accordingly, the judgment is affirmed in part, reversed in part, and remanded for misdemeanor sentencing. http://www.tba.org/tba_files/TCCA/morrowjohnny.wpd
STATE OF TENNESSEE v. KENNETH LEE PIPKIN Court:TCCA Attorneys: Kenneth R. Goble, Jr., Clarksville, Tennessee, for appellant, Kenneth Lee Pipkin. Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; David H. Findley, Assistant Attorney General; Dan Alsobrooks, District Attorney General; and George Sexton, District Attorney General, for appellee, State of Tennessee. Judge: SMITH First Paragraph: A Stewart County grand jury indicted the defendant on one count of first degree murder involving Marilyn June Adkins' death. Following a jury trial, he stood convicted of second degree murder. For this offense he received fifteen years as a Range I, standard offender. Thereafter the defendant elected not to file a new trial motion and waived his right to bring a direct appeal. Nevertheless, he later filed a post-conviction petition alleging five grounds for relief. Finding that trial counsel had provided ineffective assistance in advising the defendant regarding waiving direct appeal, this Court allowed him to file a delayed appeal. See Kenneth Lee Pipkin v. State, No. 01C01-9608-CC-00328, 1997 WL 749441 at *1, 8-9 (Tenn. Crim. App. at Nashville, Dec. 4, 1997.) As no new trial motion had been brought, the defendant was also allowed to file such motion. See id. at *9. Through this motion the defendant unsuccessfully alleged that there was insufficient evidence to support his conviction. He now brings the same issue before this Court. However, after reviewing the matter, we find it to lack merit and affirm the action of the lower court. http://www.tba.org/tba_files/TCCA/pipkinkenneth.wpd

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