Opinion FlashFebruary 5, 2002
Volume 8 Number 022
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.
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Howard H. Vogel
SAM MIRABELLA, et al. v. STATE OF TENNESSEE, et al. Court:TCA Attorneys: Billy J. Stokes, Knoxville, Tennessee, for the Appellants Sam Mirabella, Marie Mirabella, Charles Mirabelle and Joanne Mirabella Ronald C. Leadbetter, Associate General Counsel, The University of Tennessee, Knoxville, Tennessee, for the State of Tennessee and The University of Tennessee Judge: GODDARD First Paragraph: This is a suit by Sam Mirabella and his son Charles Mirabella and their wives, seeking damages against the State of Tennessee and the University of Tennessee for damages incurred as a result of the unlawful arrest of both Mr. Mirabellas and negligence resulting in injury to Sam Mirabella. The Trial Court found it did not have jurisdiction to hear the unlawful arrest claim and awarded damages for the injury to Sam Mirabella in the amount of $4528 and to his wife in the amount of $800. As to Sam Mirabella we modify the judgment to increase the award to the sum of $11,528 and as to his wife $1800. http://www.tba.org/tba_files/TCA/mirabellas.wpd
JOHN KEVIN POORE v. SONYA JOYCE POORE Court:TCA Attorneys: Leslie Richard Hunt, Clinton, Tennessee, for Appellant. Edward R. Sempkowski, Morristown, Tennessee, for Appellee. Judge: FRANKS First Paragraph: In this custody dispute, the Trial Court awarded custody of the children to the father who was not the biological parent of one of the children. We vacate the Judgment as to that child and remand with instructions to apply the correct analysis of the evidence as to the custody of the child. http://www.tba.org/tba_files/TCA/poorej.wpd
IN RE: GUARDIANSHIP OF ASHLEY J. TATUM, A MINOR Court:TCA Attorneys: Earle J. Schwarz, Memphis, For Appellant, BellSouth Michael G. McLaren; Vickie Hardy Jones, Memphis, For Appellee, Fidelity & Deposit Company of Maryland Judge: CRAWFORD First Paragraph: This case involves liability for misappropriation of funds in a guardianship estate. After a guardian was appointed by the probate court, Fidelity and Deposit Company of Maryland executed a guardianship bond as surety. The order appointing the guardian provided for the guardian's attorney to have joint control of the guardianship estate with the guardian. BellSouth Telecommunications, Inc. owed certain sums to the ward and was notified by the guardian's attorney of the joint control provision. The guardian's attorney also requested that the funds be sent to him to be deposited in the guardianship accounts. BellSouth ignored the request and sent the check payable to the guardian. Subsequently, the guardian misappropriated the funds, and the substitute guardian was awarded judgment against F & D. F & D filed a third party complaint against BellSouth for the sums so paid, and after a nonjury trial, the probate court entered judgment for F & D against BellSouth. BellSouth has appealed. We affirm. http://www.tba.org/tba_files/TCA/tatumash.wpd
STATE OF TENNESSEE v. DELORES ANN BABB Court:TCCA Attorneys: Guy T. Wilkinson, District Public Defender, for the appellant, Delores Ann Babb. Paul G. Summers, Attorney General and Reporter; T. E. Williams, III, Assistant Attorney General; G. Robert Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant was found guilty of DUI by a Henry County jury and sentenced to 11 months and 29 days, all suspended except for ten days. On appeal, she argues the evidence was insufficient to support her conviction. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/babbda.wpd
STATE OF TENNESSEE v. TORAYO OLANDIS BROWN Court:TCCA Attorneys: Jeannie Kaess, Bolivar, Tennessee, for the appellant, Torayo Olandis Brown. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; and Walt Freeland, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WADE First Paragraph: The defendant, Torayo Olandis Brown, was convicted of possessing with intent to deliver more than .5 grams of cocaine, a class B felony. The trial court imposed a sentence of eight years and nine months, ordering eight months to be served in the local jail and the balance to be served in a community corrections program. In this appeal of right, the defendant contends that (1) the evidence is insufficient to support his conviction; (2) the trial court erred by allowing the state to impeach him with a prior conviction; and (3) the state improperly argued that he was impeached by the prior conviction. Because of plain error in the trial court's failure to provide a limiting instruction relating to the impeachment evidence, the judgment is reversed and the cause is remanded for a new trial. http://www.tba.org/tba_files/TCCA/brownto.wpd
STATE OF TENNESSEE v. EARL DEWAYNE COLE Court:TCCA Attorneys: Stephen P. Spracher, Assistant Public Defender, Jackson, Tennessee, for appellant, Earl Dewayne Cole. Paul G. Summers, Attorney General & Reporter, Kim R. Helper, Assistant Attorney General; Jerry Woodall, District Attorney General; and Jody Pickens, Assistant District Attorney, for appellee, State of Tennessee. Judge: SMITH First Paragraph: The appellant, Earl Dewayne Cole, was convicted by a Madison County jury of the offense of aggravated assault with a deadly weapon. He was sentenced as a Range II offender to a term of seven (7) years incarceration in the Tennessee Department of Correction. In this appeal the appellant claims the trial judge failed to adequately respond to a jury question regarding the need for unanimity in their verdict, that the written jury instructions showed the victim's name and weapon only under the main charge, and that the trial judge should have considered a lesser offense at sentencing. We find that all of these alleged errors have been waived by the failure of the appellant to enter a contemporaneous objection to them, by the failure to raise these issues in the motion for a new trial, and by the failure of the appellant on appeal to cite to any relevant authority supporting his arguments. Moreover, we find that none of these alleged errors constitute plain error. We therefore affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/coleearld.wpd
STATE OF TENNESSEE v. TIMOTHY TEREZE DEWALT Court:TCCA Attorneys: James S. Haywood, Jr., Brownsville, Tennessee, for the appellant, Timothy Tereze Dewalt. Paul G. Summers, Attorney General and Reporter; T.E. Williams, III, Assistant Attorney General; and Steven L. Garrett and Beth Boswell, Assistant District Attorneys General, for the appellee, the State of Tennessee. Judge: WADE First Paragraph: The defendant, Timothy Tereze Dewalt, was indicted for selling a controlled substance, a Class C felony. After his plea of guilty, the trial court imposed a standard Range I sentence of four years. In this appeal of right, the defendant contends (1) that he was denied the right to counsel and (2) that his sentence is excessive. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/dewalttt.wpd
STATE OF TENNESSEE v. TERRENCE JEROME JACKSON Court:TCCA Attorneys: George Morton Googe, District Public Defender; and Stephen P. Spracher, Assistant District Public Defender, for the appellant, Terrence Jerome Jackson. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Jody S. Pickens, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant appeals the revocation of his probation and reinstatement of his original six-year sentence for aggravated assault. The trial court found the defendant violated the terms of his probation by failing to verify employment, failing to exhibit conduct consistent with good citizenship, and failing to comply with curfew requirements; thus, it revoked his probation. We affirm. http://www.tba.org/tba_files/TCCA/jacksont.wpd
STATE OF TENNESSEE v. CHRISTOPHER D. LANIER Court:TCCA Attorneys: Coleman W. Garrett, Memphis, Tennessee, for the Appellant, Christopher D. Lanier. Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Julie Mosley, Theresa McCusker and Lee Coffee, Assistant District Attorneys General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant, Christopher D. Lanier, was convicted by a Shelby County jury of possession of one- half gram or more of cocaine with intent to deliver, and the trial court sentenced him as a Range I offender to incarceration for nine years in the Department of Correction. On appeal, he challenges the sufficiency of the convicting evidence and the trial court's decision to not require a police officer who testified for the state to reveal the identity of a confidential informant. Finding no error warranting reversal, we affirm. http://www.tba.org/tba_files/TCCA/lanierc.wpd
STATE OF TENNESSEE v. ROLAND G. RANSOM Court:TCCA Attorneys: William D. Massey, Memphis, Tennessee, for the appellant, Roland G. Ransom. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Stephen P. Jones and William D. Bond, III, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: Pursuant to a negotiated plea agreement, the defendant pled guilty to facilitation of the sale of cocaine greater than 0.5 grams for an agreed sentence of four years, with the manner of service to be determined by the trial court. Following a sentencing hearing, the trial court denied alternative sentencing. In this appeal, the defendant challenges the denial of alternative sentencing. We affirm. http://www.tba.org/tba_files/TCCA/ransomr.wpd
STATE OF TENNESSEE v. EDWARD ARNOLD RIVERA Court:TCCA Attorneys: Curtis F. Hopper, Savannah, Tennessee, for the appellant, Edward Arnold Rivera. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Robert Radford, District Attorney General; and John W. Overton, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Edward Arnold Rivera, was indicted by a Hardin County grand jury on two counts of official misconduct, each a felony, and one count of misdemeanor theft. The Defendant submitted an application for pre-trial diversion which was denied by the District Attorney General. The Defendant filed a petition for a writ of certiorari in the Hardin County Circuit Court pursuant to Tennessee Rule of Criminal Procedure 38 for review of the denial of pre-trial diversion. The Circuit Court found no abuse of discretion, denied the petition, and granted the Defendant leave to seek an interlocutory appeal to this Court pursuant to Tennessee Rule of Appellate Procedure 9(a). The Defendant contends on appeal that (1) the District Attorney General abused his discretion in denying pre-trial diversion and (2) the record does not support the denial. This Court granted the Defendant's application, and we now affirm the Circuit Court's denial of the petition. http://www.tba.org/tba_files/TCCA/riveraea.wpd
MICHAEL W. SMITH v. JAMES DUKES, WARDEN Court:TCCA Attorneys: Michael W. Smith, Henning, Tennessee, pro se. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; and Elizabeth T. Rice, District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Petitioner, Michael W. Smith, filed a "Petition for Writ of Habeas Corpus" in the Circuit Court of Lauderdale County. He alleged that his conviction for escape in the Circuit Court of Hardeman County was invalid because of an illegal and void sentence. Petitioner did not attach to his petition the Hardeman County judgment or any other portion of that record. He also alleged that the sentence had been served, that he was illegally sentenced as a Range II offender because he had no prior felony convictions, and that no enhancement factors could properly be applied to a Range I sentence. The trial court summarily dismissed the petition and assessed trial court costs against Petitioner, who now appeals both the summary dismissal of his petition and the assessment of costs against him. We affirm the dismissal of the petition for writ of habeas corpus, but reverse that portion of the order taxing costs to Petitioner. http://www.tba.org/tba_files/TCCA/smithm.wpd
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