Opinion Flash

April 22, 2002
Volume 8 — Number 068

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
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
09 New Opinion(s) from the Tennessee Court of Appeals
15 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


SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_0422.wpd


RONNIE BRADFIELD, a/k/a PAUL FARNSWORTH v. JAMES DUKES, et al.

Court:TCA

Attorneys:

Ronnie Bradfield, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Dawn Jordan, Assistant Attorney General for the
appellees, James Dukes, Tennessee Department of Correction and Donal
Campbell.

Judge: FARMER

First Paragraph:

Appellant is an inmate housed in the custody of the Tennessee
Department of Corrections (TDOC).  Appellant filed a writ of
certiorari with the trial court asserting that the TDOC violated his
rights under the Americans with Disabilities Act and section 1983 of
the U.S. Code.  Appellant also claimed that the parole board refused
to provide scheduled parole hearings in 1994 and 1995.  The trial
court dismissed the case ruling that a writ of certiorari was not
proper in this case, that Appellant did not exhaust his administrative
claims, and that the petition was not timely.  For the reasons below,
we affirm the trial court's dismissal of the case.

http://www.tba.org/tba_files/TCA/bradfieldr.wpd


JIMMY E. CAMPBELL v. TENNESSEE DEPARTMENT OF CORRECTION

Court:TCA

Attorneys:     

Jimmy E. Campbell, Only, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Stephanie R. Reevers, Associate Deputy Attorney
General, for the appellee, Tennessee Department of Correction.

Judge: KOCH

First Paragraph:

This appeal involves a dispute between a prisoner and the Tennessee
Department of Correction regarding the calculation of sentence
reduction credits.  The prisoner, believing that he has a right to
have his sentence calculated "according to the least onerous method,"
filed suit in the Chancery Court for Davidson County seeking to
require the Department to calculate his sentence reduction credits
using the pre-1985 sentence credit statutes.  The trial court
dismissed the prisoner's petition after concluding that it lacked
subject matter jurisdiction because the prisoner had failed to allege
in his petition that he had exhausted his administrative remedies as
required by Tenn. Code Ann. S 4-5-225(b) (1998).  We have determined
that the prisoner's petition should have been dismissed, not for lack
of subject matter jurisdiction but because it fails to state a claim
upon which relief can be granted.  Accordingly, we affirm the judgment
dismissing the prisoner's complaint.

http://www.tba.org/tba_files/TCA/campbellj.wpd

SHARON GLENN v. GORDON CONSTRUCTION, INC., et al.

Court:TCA

Attorneys: 

W. Thomas Schmitz, Brentwood, Tennessee, counsel on appeal for the
appellant, Gordon Construction, Inc.

Eugene N. Bulso, Jr., Nashville, Tennessee, for the appellee, Sharon
D. Glenn.

Judge: COTTRELL

First Paragraph:

Plaintiff filed suit against construction company for negligent repair
of tornado damage to her home.  Parties submitted an Agreed Order of
Compromise, Settlement, and Dismissal which was signed by  the trial
court and filed on the same day it was received.  The construction
company retained new counsel and filed a motion to set aside the
order.  Plaintiff sought contempt because the construction company
refused to comply with the Agreed Order.  Months later Plaintiff
issued execution against construction company after failure to comply
with the terms of the Agreed Order and garnished over $11,000 from its
bank account.  The trial court denied a motion to quash execution
filed by the construction company.  The construction company appeals
arguing that the agreed order could not have been entered after one of
the parties withdrew consent for the settlement.  We affirm the
decision of the trial court.

http://www.tba.org/tba_files/TCA/glenns.wpd

SHERRY ANN HALL v. MARK STEPHEN HALL

Court:TCA

Attorneys: 

Thomas F. Bloom, Nashville, Tennessee, for the appellant, Mark Stephen
Hall.

Janet D. Powell, Murfreesboro, Tennessee, for the appellee, Sherry Ann
Hall.                         

Judge: LILLARD

First Paragraph:

This is a divorce case.  The wife was awarded more than half of the
martial assets and alimony in futuro in amounts that would step down
after three years and end when the wife reaches retirement age.  In
addition, the trial court awarded the wife, in lieu of attorney's
fees, ownership in a life insurance policy on the husband's life.  The
husband now appeals the trial court's division of marital property,
the award of alimony in futuro, and the award relating to attorney's
fees.  We affirm the trial court's division of marital property and
the award relating to attorney's fees, but we reverse the trial
court's award of alimony in futuro and instead award rehabilitative
alimony.

http://www.tba.org/tba_files/TCA/hallsa.wpd

BEN THOMAS HOUSTON v. MICHELE HOUSTON

Court:TCA

Attorneys:   

David E. Danner, Nashville, For Appellant, Ben Thomas Houston

Phillip Robinson, Nashville, For Appellee, Michele Houston                       

Judge: CRAWFORD

First Paragraph:

In this post-divorce proceeding, the appellant, Ben Thomas Houston
(hereinafter "Father"), filed a petition for modification of child
support.  The trial court increased Father's child support obligation
and awarded the appellee, Michelle Houston (hereinafter "Mother"),
attorney's fees.  Father appeals.  We affirm.

http://www.tba.org/tba_files/TCA/houstonben.wpd

MELODY JO KNOWLES v. JACK REED KNOWLES

Court:TCA

Attorneys:  

David L. Scott, Murfreesboro, For Appellant, Jack Reed Knowles

Delilah A. Speed, Columbia, For Appellee, Melody Jo Knowles                        

Judge: CRAWFORD

First Paragraph:

Wife sued for divorce on grounds of inappropriate marital conduct and
adultery.  The trial court granted Wife an absolute divorce, awarded
her alimony in futuro and attorney fees, and ordered Husband to pay
Wife's health insurance costs.  Husband appeals.  We reverse in part
and affirm in part.

http://www.tba.org/tba_files/TCA/knowlesmelody.wpd

ISHMAEL H. MACE  v. PHYLLIS C. MACE

Court:TCA

Attorneys:   

Mimi Phillips, Memphis, Tennessee, for the Appellant Ishmael H. Mace

Phyllis H. Mace, Pro Se                       

Judge: LILLARD

First Paragraph:

This is a post divorce action to recover a child support arrearage. 
The parties' original Pennsylvania divorce decree required that the
father pay child support for their three children.  Under the foreign
decree, the support was not to be reduced on a pro rata basis as each
child reached majority, but simply end when the youngest child reached
majority.  This decree was later domesticated in Tennessee, then
modified to increase the monthly child support obligation.  The father
did not pay.  The trial court found him in contempt and ordered him to
pay the arrearage.  The father filed a motion to alter or amend,
arguing that there should be a pro rata reduction as each child
reached the age of majority, or at least a pro rata reduction of the
amount of the Tennessee modification.  This was denied.  The father
now appeals.  We affirm, finding that the  father's child support
obligation remains subject to the provision in the original foreign
decree stating that the  child support would not be reduced pro rata
as each child reached majority.

http://www.tba.org/tba_files/TCA/maceIh_opn.wpd

ISHMAEL H. MACE  v. PHYLLIS C. MACE

Court:TCA

HIGHERS DISSENTING

http://www.tba.org/tba_files/TCA/maceh_dis.wpd

RAYMOND MITCHELL v. DONAL CAMPBELL

Court:TCA

Attorneys:

Raymond Mitchell, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Dawn Jordan, Assistant Attorney General,
Nashville, Tennessee, for the appellee, Donal Campbell.                     

Judge: KOCH

First Paragraph:

This appeal involves a dispute between a prisoner and the Tennessee
Department of Correction regarding the Department's decision to
classify the prisoner as a multiple rapist under Tenn. Code Ann. S
39-13-523(b) (2000).  After the Commissioner of Correction denied his
petition for a declaratory order, the prisoner filed a petition for a
declaratory judgment in the Chancery Court for Davidson County
claiming that the Department had misclassified him and, if it had not,
that he was still entitled to earn sentence reduction credits because
he was a Range I standard offender.  The trial court dismissed the
petition, and the prisoner has appealed.  We have determined that the
Department properly classified the prisoner as a multiple rapist and
that the prisoner is not otherwise entitled to earn sentence reduction
credits.  Accordingly, we affirm the trial court's judgment.

http://www.tba.org/tba_files/TCA/mitchellr.wpd

VARNER CONSTRUCTION COMPANY, INC., and THE ESTATE OF 
BROOKS VARNER v. DAVID M. MARRS AND LATITIA M. MARRS

Court:TCA

Attorneys:

John J. Heflin, III, and Kenneth P. Jones, Memphis, Tennessee, for the
appellants, David M. Marrs and Latitia M. Marrs.

J. Frank Hall, Memphis, Tennessee, for the appellees, Varner
Construction Company and the Estate of Brooks Varner.                           

Judge: LILLARD

First Paragraph:

This is a construction case.  In 1981, the defendant owners hired the
plaintiff construction company to build a custom home.  Over the
course of construction, the parties disagreed over many things, and
their relationship ended in July or August 1983.  The construction
company sued the owners, alleging that the owners had not paid the
full amount due under the contract.  The owners filed a counterclaim,
alleging that the construction company owed them for amounts expended
in completing the project and for estimated amounts to cure remaining
defects.  The chancellor referred the case to a special master who,
after taking the case under advisement for a lengthy time, issued
findings which favored the construction company.  The chancellor
adopted the findings of the master and awarded the construction
company damages plus prejudgment interest.  The owners now appeal.  We
affirm in part, reverse in part and modify.

http://www.tba.org/tba_files/TCA/varner.wpd

STATE OF TENNESSEE v. ELWOOD JEFFREY BARRIGHER

Court:TCCA

Attorneys:  

Joseph P. Atnip, District Public Defender, Dresden, Tennessee, for the
Appellant, Elwood Jefffrey Barrigher.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Braden H. Boucek, Assistant Attorney General;
Thomas A. Thomas, District Attorney General; and Kevin McAlpin,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Elwood Jeffrey Barrigher, appeals the judgment of the
Obion County Circuit Court revoking his placement in the Community
Corrections program and reinstating his original nine-year sentence in
the Department of Correction.  Prior to his revocation, Barrigher was
serving a nine-year Community Corrections sentence, which stemmed from
his 1999 class B felony conviction for delivery of a Schedule II
controlled substance.  Finding no abuse of discretion, we affirm the
revocation.

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

STATE OF TENNESSEE v. MICHAEL WAYNE BELCHER

Court:TCCA

Attorneys: 

H. Randy Fallin, Mountain City, Tennessee, for the appellant, Michael
Wayne Belcher.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams
III, Assistant Attorney General; Joe C. Crumley, Jr., District
Attorney General; and Dennis D. Brooks, Assistant District Attorney
General, for the appellee, State of Tennessee.                          

Judge: WILLIAMS

First Paragraph:

The defendant appeals his convictions for aggravated burglary and
possession of burglary tools. After a review of the record, we
conclude that the defendant was not prejudiced by the State's failure
to redact an obscure reference to the defendant's probation status
from an audio taped statement that was played at trial.  However, we
are unable to find sufficient evidence to establish that the defendant
had a hammer and screwdriver in his automobile with the intent to
commit burglary.  Therefore, the defendant's conviction for possession
of burglary tools, a Class A misdemeanor, is reversed and dismissed. 
The aggravated burglary conviction is affirmed.

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

JACKIE WILLIAM CROWE v. STATE OF TENNESSEE

Court:TCCA

Attorneys: 

Jackie William Crowe, Appellant, Pro Se.

Michael E. Moore, Solicitor General; Christine M. Lapps, Assistant
Attorney General; and Jerry N. Estes, District Attorney General, for
the Appellee, State of Tennessee.                         

Judge: WITT

First Paragraph:

Jackie W. Crowe appeals from the McMinn County Criminal Court's denial
of his post-conviction motion to dismiss the indictments against him. 
Crowe, who is incarcerated in the Department of Correction on
convictions of rape and incest, is proceeding pro se.  Because he has
already exhausted his one opportunity for post-conviction relief and
because his motion does not comply with the requirements for a habeas
corpus proceeding, we dismiss the appeal.

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

STATE OF TENNESSEE v. CHARLES R. DEASON

Court:TCCA

Attorneys:

Gregory D. Smith, Clarksville, Tennessee (on appeal); William (Jake)
Bradley Lockert III, District Public Defender; and Christopher L.
Young, Assistant Public Defender (at trial and on appeal), for the
appellant, Charles R. Deason.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; Dan Mitchum Alsobrooks, District Attorney
General; and Suzanne M. Lockert, Assistant District Attorney General,
for the appellee, State of Tennessee.                         

Judge: WILLIAMS
 
First Paragraph:

The defendant was convicted by a jury of DUI.  After stipulating to
two prior DUI convictions, he was sentenced for third offense DUI to
eleven months and twenty-nine days, to be served in the county jail. 
We conclude that there is sufficient evidence to establish that the
defendant was driving while intoxicated as charged in the indictment. 
Furthermore, the trial court permissibly ordered the defendant to
serve eleven months and twenty-nine days in jail.  The judgment of the
trial court is affirmed.

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

STATE OF TENNESSEE v. JACOB DYCK

Court:TCCA

Attorneys:       

Steve McEwen, Mountain City, Tennessee, for the appellant, Jacob Dyck.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; Jerry N. Estes, District Attorney General;
and Chal Thompson, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Jacob Dyck, was convicted by a jury of theft of
property valued over $10,000 but less than $60,000, a Class C felony. 
See Tenn. Code Ann. S 39-14-105(4).  The trial court sentenced him to
six years in the Department of Correction.  In this appeal the
Defendant raises five issues:  1) whether the trial court erred in
denying him his right to self-representation; 2) whether the State
failed to elect the offense for which it was seeking a conviction; 3)
whether a material variance exists between the indictment and the
proof at trial; 4) whether the evidence is sufficient to support his
conviction; and 5) whether the Defendant's sentence  is excessive.  We
affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. SYLVESTER FORD

Court:TCCA

Attorneys: 

C. Michael Robbins, Memphis, Tennessee, on appeal; George M. Googe,
District Public Defender; and Stephen P. Spracher, Assistant Public
Defender, Jackson, Tennessee, at trial and on appeal, for appellant,
Sylvester Ford.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant
Attorney General; Jerry Woodall, District Attorney General; and Jody
S. Pickens, Assistant District Attorney General, for appellee, State
of Tennessee.                         

Judge: SMITH

First Paragraph:

The defendant, Sylvester Ford, was tried by jury and found guilty of
one count of rape of a child and one count of aggravated sexual
battery. The trial court sentenced the defendant to serve twenty years
as a Range I offender.  The defendant filed a timely motion for new
trial, which the trial court denied.  The defendant now brings this
appeal, alleging that he should receive a new trial because the trial
court committed plain error by failing to require the state to elect
which acts the jury should consider to support the defendant's
indicted offenses.  The defendant subsequently filed a writ of error
coram nobis, and the trial court denied the defendant's petition,
finding that the petition was untimely filed and did not allege
information that would warrant a new trial.  After reviewing the
record, we find that the defendant's direct appeal claim has merit and
warrants a new trial, and, therefore, we need not address the merits
of the defendant's coram nobis petition.

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

STATE OF TENNESSEE v. BRADLEY R. FULCHER

Court:TCCA

Attorneys:    

Michael A. Colavecchio, Nashville, Tennessee, for the appellant,
Bradley R. Fulcher.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Ronald L. Davis, District Attorney
General; and Mary Katharine Harvey, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Bradley R. Fulcher, appeals the Williamson County
Circuit Court's denial of alternative sentencing for his convictions
for aggravated burglary, a Class C felony, and theft of property
valued over one thousand dollars but less than ten thousand dollars, a
Class D felony.  We affirm the judgments of the trial court.

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

STATE OF TENNESSEE v. STEPHEN GREENE

Court:TCCA

Attorneys: 

Kevin Wayne Shepherd, Maryville, Tennessee, for the appellant, Stephen
Greene.

Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann,
Assistant Attorney General; Michael L. Flynn, District Attorney
General; and Kirk E. Andrews and Edward P. Bailey, Jr., Assistant
District Attorneys General, for the appellee, State of Tennessee.                    

Judge: WILLIAMS

First Paragraph:

The defendant appeals his convictions of rape of a child and incest. 
We conclude that the State did not improperly bolster the victim's
testimony on direct examination.  In addition, the defendant was not
denied his constitutional right to confront witnesses against him or
to an impartial jury when the trial court denied his request to
question a non-witness about an alleged statement made out-of-court.
Furthermore, the State was not obligated to disclose the contents of a
Department of Human Services file requested by the defendant under
Brady v. Maryland or Rule 16 of the Tennessee Rules of Criminal
Procedure.  We must, however, reverse the defendant's conviction of
incest and remand for a new trial on Count Two based upon the State's
failure to make a proper election for the offense.  We, therefore,
affirm the rape of a child conviction, reverse the conviction of
incest, and remand for a new trial.

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

STATE OF TENNESSEE v. HAMADI  G. HALEY

Court:TCCA

Attorneys:

Susan Shipley, Knoxville, Tennessee, for the appellant, Hamadi G.
Haley.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant
Attorney General; and Marsha Mitchell, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Hamadi G. Haley, was convicted of felony murder,
especially aggravated robbery, and aggravated robbery.  The trial
court imposed a sentence of life with the possibility of parole for
the felony murder, 17 years for the especially aggravated robbery, and
eight years for the aggravated robbery, with all terms to be served
concurrently.  In this appeal of right, the defendant claims that he
was denied access to material witnesses by the state and that he
should have been granted a new trial based on newly discovered
evidence.  The judgments of the trial court are affirmed.

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

STATE OF TENNESSEE v. JACKY E. JONES

Court:TCCA

Attorneys:

Mack Garner, Maryville, Tennessee, for the appellant, Jacky E. Jones.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Michael L. Flynn, District Attorney
General; and John Bobo, Assistant District Attorney General, for the
appellee, State of Tennessee.                        

Judge: MCGEE OGLE

First Paragraph:

The appellant, Jacky E. Jones, was found guilty by a jury in the
Blount County Circuit Court of one count of obtaining a controlled
substance by fraud and was sentenced to three years incarceration in
the Blount County Jail.  The trial court later granted the appellant
probation.  Months into the service of his probationary sentence, the
appellant stopped reporting to his probation officer.  Subsequently,
the trial court revoked the appellant's probation and sentenced him to
serve his original sentence in confinement.  On appeal, the appellant
contends that the trial court erred in failing to sentence him to
community corrections after revoking his probation.  Upon review of
the record and the parties' briefs, we affirm the judgment of the
trial court.

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

STATE OF TENNESSEE v. JOHNNY MOFFITT

Court:TCCA

Attorneys:

Lloyd R. Tatum, Henderson, Tennessee, for the appellant, Johnny
Moffitt.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant
Attorney General; and Alfred L. Earls, Assistant District Attorney
General, for the appellee, State of Tennessee.                          

Judge: WADE

First Paragraph:

The defendant, Johnny Moffitt, entered a plea of guilt to second
degree murder.  The trial court imposed a Range I sentence of 10
years.  By agreement, the defendant reserved a certified question  of
law.  See Tenn. R. Crim. P. 37.  The issue presented in this appeal is
whether the trial court should have dismissed the charge due to the
loss or destruction of evidence.  The judgment is affirmed.

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

EL PASO PITTS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Robert Little, Memphis, Tennessee, for the appellant, El Paso Pitts.

Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant
Attorney General; and Katrina Earley, Assistant District Attorney
General, for the appellee, State of Tennessee.                         

Judge: WADE

First Paragraph:

The petitioner, El Paso Pitts, appeals the trial court's denial of
post-conviction relief.  In this appeal of right, the petitioner
contends that he was denied the effective assistance of counsel and
argues that the trial court erred by allowing his trial counsel to be
present during the evidentiary hearing.  The judgment of the trial
court is affirmed.

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

NAKIA RUMPH v. STATE OF TENNESSEE

Court:TCCA

Attorneys:  

Mechelle Story, Taylor and Associates, Jackson, Tennessee, for the
Appellant, Nakia Rumph.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Braden H. Boucek, Assistant Attorney General; James
G. (Jerry) Woodall, District Attorney General; and Alfred Earls,
Assistant District Attorney General, for the Appellee, State of
Tennessee.                        

Judge: HAYES

First Paragraph:

The Appellant, Nakia Rumph, appeals from the dismissal of his petition
for post-conviction relief.  In 2000, Rumph pled guilty to two counts
of aggravated sexual battery and was sentenced to eight years
imprisonment on each count.  On appeal, Rumph challenges the validity
of his guilty plea upon grounds of: (1) voluntariness and (2)
ineffective assistance of counsel.  After review, we affirm the
judgment of the Madison County Circuit Court dismissing the petition.

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

STATE OF TENNESSEE v. TAVARUS WILLIAMS

Court:TCCA

Attorneys: 

C. Anne Tipton, Memphis, Tennessee, for the Appellant, Tavarus
Williams.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; William L. Gibbons, District Attorney
General; Jerry Kitchen, Assistant District Attorney General; and
Rosemary Andrews, Assistant District Attorney General, for the
Appellee, State of Tennessee.                         

Judge: WEDEMEYER

First Paragraph:

The Defendant was convicted in 1991 of first degree murder and
sentenced to life imprisonment.  After his conviction was affirmed on
direct appeal, the Defendant filed a post-conviction petition, and the
trial court denied relief.  However, on post-conviction appeal, this
Court determined that the Defendant received ineffective assistance of
counsel at trial and therefore reversed the trial court's decision,
vacated the Defendant's conviction, and remanded the case for a new
trial.  The Defendant was tried a second time in 2000 before a Shelby
County jury, and on this occasion, the jury found the Defendant guilty
of second degree murder.  The trial court sentenced him to twenty
years incarceration.  The Defendant now appeals his conviction and
sentence, arguing (1) that insufficient evidence was presented at
trial to support his conviction, and (2) that he was improperly
sentenced.  We conclude that sufficient evidence supports the jury's
verdict and thus affirm the Defendant's conviction.  However, we
conclude that the trial court erred in sentencing the Defendant and
therefore we remand for re-sentencing in accordance with this opinion.

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

ANDRE WILSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Andre Wilson, Pro Se, Memphis, Tennessee, the Appellant.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and James A. Wax, Jr., Assistant District Attorney General
for the Appellee, State of Tennessee.                        

Judge: WEDEMEYER

First Paragraph:

On November 27, 1995, the Petitioner, pursuant to a negotiated plea
agreement, pleaded guilty to six counts of aggravated robbery.  The
trial court sentenced the Petitioner to eighteen years incarceration
for each count, to be served concurrently with each other and with a
1993 federal sentence of 137 months for armed bank robbery.  On July
19, 2001, the Petitioner filed a petition for post-conviction relief
and/or a writ of coram nobis based on the decision of federal
authorities not to award him credit for the time he served in state
custody.  The post-conviction court denied relief based on the statute
of limitations.  The Petitioner now appeals, arguing that the
post-conviction court erred in denying him post-conviction relief. 
Finding no error, we affirm the judgment of the post-conviction court.

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

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