Opinion Flash

August 22, 2002
Volume 8 — Number 147

Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.

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
00 New Opinion(s) from the Tennessee Court of Appeals
06 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


STATE OF TENNESSEE v. CHRISTOPHER LYNN BRABSON

Court:TCCA

Attorneys:

Merrilyn Feirman, Nashville, Tennessee, and William C. Donaldson,
Athens, Tennessee, for the appellant, Christopher Lynn Brabson.

Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan,
Assistant Attorney General; Jerry N. Estes, District Attorney General;
and Shari Tayloe, Assistant District Attorney General, for the
appellee, State of Tennessee.                      

Judge: MCGEE OGLE

First Paragraph:

The appellant, Christopher Lynn Brabson, was convicted by a jury in
the McMinn County Criminal Court of one count of the sale of .5 grams
or more of cocaine, a Class B felony.  The jury also assessed a fine
of $80,000.  Following a sentencing hearing, the trial court imposed a
sentence of ten years incarceration in the Tennessee Department of
Correction.  On appeal, the appellant alleges:  (1) the evidence is
insufficient to support a verdict of guilt beyond a reasonable doubt,
(2) the trial court erred in sentencing, and (3) the jury imposed an
excessive fine.  We affirm the judgment of the trial court but reduce
the fine to $25,000.

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

ROGER HARRIS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Kenneth F. Irvine, Jr., Knoxville, Tennessee, for the appellant, Roger
Harris.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General;  Joe C. Crumley, Jr., District Attorney
General; and Kenneth C. Baldwin, Assistant District Attorney General,
for the appellee, State of Tennessee.                        

Judge: WILLIAMS

First Paragraph:

Petitioner appeals the trial court's denial of post-conviction relief.
 On appeal, petitioner alleges (1) ineffective assistance of trial
counsel, (2) ineffective assistance of appellate counsel, (3) he was
unconstitutionally denied bail, and (4) the indictment against him for
first degree murder was unconstitutionally amended.  We grant
petitioner a delayed appeal, and we stay further proceedings on his
remaining post-conviction claims.

http://www.tba.org/tba_files/TCCA/harrisr1.wpd

STATE OF TENNESSEE v. ROBERT ANDREW LEWIS

Court:TCCA

Attorneys:

Joe M. Felknor, Knoxville, Tennessee, for the appellant, Robert Andrew
Lewis.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Randall Eugene Nichols, District Attorney
General; and Zane Scarlett, Assistant District Attorney General, for
the appellee, State of Tennessee.                       

Judge: WOODALL

First Paragraph:

Defendant, Robert Andrew Lewis, pled guilty to two counts of driving
under the influence of an intoxicant, first offense, in the General
Sessions Court of Knox County.  The trial court imposed concurrent
sentences of confinement for 11 months and 29 days, with all but 10
days of the sentences suspended.  In addition, the trial court
suspended Defendant's driving privileges for one year, and ordered him
to pay a fine of $350.00 and attend DUI school.  Within one year, a
violation of probation warrant was issued, alleging that Defendant was
driving on a revoked license, arrested for DUI, and had failed to
complete DUI school.  The General Sessions Court of Knox County
revoked Defendant's probation and reinstated his sentences for both
offenses.  Defendant appealed to the Criminal Court of Knox County. 
On the date that his case was to be heard, Defendant's trial counsel
did not appear in court.  As a result, the criminal court dismissed
the appeal for failure to prosecute and affirmed the judgment of the
Knox County General Sessions Court revoking Defendant's probation. 
After a review of the record and applicable law, we reverse the
judgment of the criminal court and remand this case for a de novo
hearing on the probation revocation warrant.

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

STATE OF TENNESSEE v. BRENT TOD PERKINS

Court:TCCA

Attorneys:

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney,
Assistant Attorney General; and Charles Atchley, Jr., Assistant
District Attorney General, for the cross-appellee, State of Tennessee.

Bryan Delius, Sevierville, Tennessee, for the cross-appellant, Brent
Tod Perkins.                       

Judge: WADE

First Paragraph:

The defendant, Brent Tod Perkins, was charged with driving under the
influence.  The trial court determined that the officer had reasonable
suspicion to stop the defendant's vehicle, but granted a defense
motion to suppress the results of a breathalyser test, concluding that
the officer failed to comply with the requirements of State v.
Sensing, 843 S.W.2d 412 (Tenn. 1992).  Both the state and the
defendant were granted an interlocutory appeal pursuant to Rule 9 of
the Tennessee Rules of Appellate Procedure.  The investigatory stop
was conducted with constitutional safeguards.  Because the state
failed to establish adherence to the Sensing requirements by a
preponderance of the evidence, the order suppressing the results of
the breathalyser exam is affirmed.

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

STATE OF TENNESSEE v. IVAN RAY SHIRK

Court:TCCA

Attorneys:  

Mark E. Stephens, District Public Defender; Paula R. Voss and John
Halstead, Assistant Public Defenders, for the appellant, Ivan Ray
Shirk.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; Randall E. Nichols, District Attorney
General; and Philip H. Morton, Assistant District Attorney General,
for the appellee, State of Tennessee.                        

Judge: TIPTON

First Paragraph:

The defendant, Ivan Ray Shirk, appeals from the Knox County Criminal
Court's denial of his motion to declare void the judgment proclaiming
him to be a habitual offender pursuant to the Motor Vehicle Habitual
Offenders (MVHO) Act.  He contends that the MVHO judgment is void
because the trial court improperly entered it nunc pro tunc before
entry of the judgments on two of the three qualifying offenses. We
affirm the trial court's denial of the defendant's motion to void the
MVHO judgment.

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

STATE OF TENNESSEE v. THOMAS H. WHALEY

Court:TCCA

Attorneys:  

Dennis C. Campbell, Sevierville, Tennessee, for the appellant, Thomas
H. Whaley.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney
General; and Charles E. Atchley, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.                        

Judge: RILEY

First Paragraph:

The Sevier County Grand Jury returned a two count presentment alleging
the defendant committed a vehicular homicide by intoxication for the
death of one victim and a vehicular assault by intoxication for the
serious bodily injury of another victim.  The defendant pled guilty to
the amended charges of vehicular homicide by recklessness and
aggravated assault by recklessness for agreed concurrent sentences of
six years and three years, respectively, with the issue of alternative
sentencing to be determined by the trial court.  The trial court
sentenced the defendant to split confinement and ordered the defendant
to serve nine months "day-for-day" in the county jail with the
remainder of his six-year effective sentence on supervised probation. 
In this appeal, the defendant alleges he should have received
community corrections, or alternatively, he received excessive
confinement.  We conclude the trial court improperly ordered the
defendant to serve his nine months of confinement "day-for-day,"
thereby depriving him of the opportunity to earn good conduct credits.
 We remand for deletion of the day-for-day requirement; however, we
affirm the trial court in all other respects.

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

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