Opinion Flash

February 20, 2002
Volume 8 — Number 032

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
02 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
09 New Opinion(s) from the Tennessee Court of Criminal Appeals
06 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


ANGELA LEMMONS v. P & P ENTERPRISES, LLC

Court:TSC - Workers Comp Panel

Attorneys:

James M. Balthrop, Springfield, Tennessee, for the Appellant, Angela
Lemmons.

Sean Hunt, Nashville, Tennessee, for the Appellee, P & P Enterprises,
LLC.

Judge: PEOPLES

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann.
S 50-6-225(e) for hearing and reporting of findings of fact and
conclusions of law.  The employee appeals the finding of the trial
court that she failed to carry her burden of proof that her injuries
arose out of and in the course of her employment.  We affirm the
judgment of the trial court.

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

JARRETT WILLIAM UTLEY v. BRIDGESTONE/FIRESTONE 

Court:TSC - Workers Comp Panel

Attorneys:

Mark A. Baugh, Bruce, Weathers, Corley & Lyle, Nashville, Tennessee,
for the Appellant, Jarrett William Utley.

Terry L. Hill, Manier & Herod, Nashville, Tennessee, for the Appellee,
Bridgestone/Firestone.

Judge: PEOPLES

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) for hearing and reporting of
findings of fact and conclusions of law.  The employee appeals and
contends the trial court erred (1) in finding his claim for a
work-related repetitive injury was barred by the statute of
limitations, and (2) in concluding that his injury on  September 20,
1997 did not result in any permanent disability.  We affirm the
judgment of the trial court.

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

STATE OF TENNESSEE v. ANNETTA BELL

Court:TCCA

Attorneys:  

James O. Martin, III (on appeal), and George J. Duzane (at trial),
Nashville, Tennessee, for the appellant, Annetta Bell.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney,
Assistant Attorney General; and Sharon Guffey, Assistant District
Attorney General, for the appellee, State of Tennessee.                        

Judge: WADE

First Paragraph:

The defendant, Annetta Bell, was convicted after a bench trial of
theft of property having a value less than $500.00.  The trial court
imposed a sentence of 11 months and 29 days.  All but six months was
suspended.  In this appeal as of right, the defendant contends that
the evidence was insufficient to support her conviction.

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

BARRY DUNHAM v. STATE OF TENNESSEE

Court:TCCA

Attorneys:  

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Tom P. Thompson, Jr., District Attorney
General; Guy Yelton and Robert N. Hibbett, Assistant District
Attorneys General, for the appellant, State of Tennessee.

E. Guy Holliman, LaFayette, Tennessee, for the appellee, Barry Dunham.

Judge: MCGEE OGLE

First Paragraph:

On October 5, 1998, the defendant, Barry Dunham, pled guilty in the
Macon County Criminal Court to one count of second degree murder and
received a sentence of twenty-five years incarceration in the
Tennessee Department of Correction.  The defendant filed for
post-conviction relief which was granted by the post-conviction court.
 The State now appeals.  Upon review of the record and the parties'
briefs, we affirm the judgment of the post-conviction court and remand
for new trial.

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

STATE OF TENNESSEE v. GONZALO MORAN GARCIA

Court:TCCA

Attorneys:

Richard McGee, James Holt Walker, and Bobby Ballinger, Nashville,
Tennessee, for the appellant, Gonzalo Moran Garcia.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and John Zimmerman, Assistant District Attorney General, for
the appellee, State of Tennessee.                      

Judge: MCGEE OGLE

First Paragraph:

The appellant, Gonzalo Moran Garcia, appeals his conviction by a jury
in the Davidson County Criminal Court of one count of possession of
one thousand grams or more of methamphetamine with intent to deliver,
a class A felony.  He raises the following issues for our review: (1)
whether the trial court erred in denying his pre-trial motion to
suppress; (2) whether the trial court erred in admitting at trial the
testimony of Daniel A. Rosales, an officer employed by the Houston
Police Department in Texas; (3) whether the evidence underlying the
appellant's conviction is sufficient; and (4) whether the trial court
erred in rejecting his proposed jury instructions.  Following a
thorough review of the record and the parties' briefs, we reverse the
judgment of the trial court and remand this case to the trial court
for a new trial.

http://www.tba.org/tba_files/TCCA/garciagm3_opn.wpd

STATE OF TENNESSEE v. GONZALO MORAN GARCIA                       

WILLIAMS DISSENTING

http://www.tba.org/tba_files/TCCA/garciagm3_dis.wpd

KENNETH R. GRIFFIN v. STATE OF TENNESSEE

Court:TCCA

Attorneys: 

Kenneth R. Griffin, Pikeville, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Joe C. Crumley, Jr., District Attorney
General; and Victor J. Vaughn, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

Petitioner, Kenneth R. Griffin, appeals from the trial court's summary
dismissal of his petition for post-conviction relief.  Pursuant to
Tennessee Code Annotated section 40-30-206, the trial court entered an
order dismissing the petition without an evidentiary hearing.  In its
order, the trial court made a finding of fact that the petition
contained no verification of any facts under oath.  Since the petition
was devoid of verified facts upon which the trial court could grant
relief, it concluded that a dismissal was required.  On appeal, the
State agrees with Petitioner that the trial court's judgment should be
reversed.  After a thorough review of the record, we reverse the
judgment of the trial court and remand this case for further
proceedings.

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

STATE OF TENNESSEE v. KENNETH HERRING

Court:TCCA

Attorneys:  

Robert H. Stovall, Jr., Assistant Public Defender, Pulaski, Tennessee,
for the Appellant, Kenneth Herring.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; T. Michel Bottoms, District Attorney
General; and J. Douglas Dicus, Assistant District Attorney General,
for the Appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Defendant was convicted in Wayne County Circuit Court of five
counts of rape of a child and two counts of aggravated sexual battery.
 The Defendant received an effective sentence of seventy- five years
incarceration.  This Court subsequently reversed the five rape of a
child convictions and remanded the case to the trial court to
determine whether the remaining two twelve-year sentences for
aggravated sexual battery should be served consecutively or
concurrently.  The trial court determined that the sentences should be
served consecutively for an effective sentence of twenty-four years
incarceration. The Defendant now appeals, arguing that the trial court
erred in ordering that the Defendant's sentences for aggravated sexual
battery run consecutively.  Finding no error, we affirm the judgment
of the trial court.

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

STATE OF TENNESSEE v. TIMOTHY A. JOHNSON

Court:TCCA

Attorneys:

C. Dawn Deaner, Assistant Public Defender (on appeal), Nashville,
Tennessee; and Jerrilyn Manning, Assistant Public Defender (at trial),
Nashville, Tennessee, for the Appellant, Timothy A. Johnson.

Paul G. Summers, Attorney General and Reporter; Gill Robert Geldreich,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Jason Lawless, Assistant District Attorney General, for
the Appellee, State of Tennessee.                      

Judge: WEDEMEYER

First Paragraph:

Pursuant to a plea agreement, the Defendant pleaded guilty to one
count of possessing with intent to sell less than 0.5 grams of a
substance containing cocaine, and the trial court sentenced him as a
Range I standard offender to five years incarceration in the
workhouse.  The trial court suspended the sentence and placed the
Defendant on probation for five years.  Approximately four months
later, a warrant was issued against the Defendant alleging that he had
violated the terms and conditions of his probation.  The warrant
alleged that the Defendant had been arrested for evading arrest and
aggravated assault, that the Defendant had failed to report these
arrests to his probation officer, and that the Defendant had failed to
report to his probation officer after being released from jail. 
Following a hearing on the warrant, the trial court revoked the
Defendant's probation and ordered him to serve the remainder of his
sentence in confinement.  The Defendant now brings this appeal, in
which he challenges the trial court's order requiring him to serve the
remainder of his sentence in confinement.  Because we conclude that
the trial court did not abuse its discretion, we affirm the judgment
of the trial court.

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

CAMILLA RAY v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Albert J. Newman, Jr., Knoxville, Tennessee, for the appellant,
Camilla Ray.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; and Robert L. Jolley, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.                      

Judge: TIPTON

First Paragraph:

The petitioner appeals from the Knox County Criminal Court's denying
her post-conviction relief from her especially aggravated robbery and
especially aggravated kidnaping convictions and resulting concurrent
fifteen-year sentences that she received in 2000 based upon her pleas
of guilty.  She contends that her guilty pleas resulted from the
ineffective assistance of counsel in that counsel misadvised her about
the percentage of her sentence that she would have to serve in
confinement.  We affirm the trial court's denial of relief.

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

STATE OF TENNESSEE v. GREG STEWART

Court:TCCA

Attorneys:

Robert S. Peters, Winchester, Tennessee, for the appellant, Greg
Stewart.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; C. Michael Layne, District Attorney
General; and Doug Aaron, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: MCGEE OGLE

First Paragraph:

Pursuant to a bench trial, the appellant, Greg Stewart, was convicted
of two counts of simple possession of a controlled substance.  The
trial court sentenced the appellant to two concurrent terms of eleven
months and twenty-nine days incarceration in the Coffee County Jail. 
On appeal, the appellant contests the trial court's denial of his
motion to suppress the drug evidence due to the lack of proper consent
to the search.  Upon review of the record and the parties' briefs, we
affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. MICHAEL D. WRIGHT

Court:TCCA

Attorneys:

John H. Henderson, District Public Defender, Franklin, Tennessee, for
the appellant, Michael D. Wright.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Ronald L. Davis, District Attorney
General; and Mark K. Harvey, Assistant District Attorney General, for
the appellee, State of Tennessee.                         

Judge: WOODALL

First Paragraph:

In this appeal, Defendant raises the following issues: (1) whether the
trial court incorrectly applied two enhancement factors, thereby
causing his sentences to be excessive, and (2) whether the trial court
erred by ordering that certain of his sentences run consecutively. 
Following a thorough review of the record, we affirm the judgment of
the trial court.

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

Legislator's Oath of Office

Date: February 5, 2002
 
Opinion Number: 02-014                         

http://www.tba.org/tba_files/AG/OP14.pdf

Obligation of County Jail to Accept Prisoners

Date: February 6, 2002

Opinion Number: No. 02-015                         

http://www.tba.org/tba_files/AG/OP15.pdf

Confidentiality and Disclosure of Social Security Numbers

Date: February 6, 2002

Opinion Number: 02-016                         

http://www.tba.org/tba_files/AG/OP16.pdf

Collection of Litigation Taxes in Misdemeanor Speeding Cases Under
Tenn. Code Ann. S 55-8-152

Date: February 6, 2002

Opinion Number: 02-017                         

http://www.tba.org/tba_files/AG/OP17.pdf

Social Security Numbers on Applications for Drivers Licenses

Date: February 13, 2002

Opinion Number: 02-018                         

http://www.tba.org/tba_files/AG/OP18.pdf

Interpretation of Proposed Lottery Amendment

Date: February 13, 2002

Opinion Number: 02-019                         

http://www.tba.org/tba_files/AG/OP19.pdf

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