Opinion FlashAugust 27, 2002Volume 8 — Number 149 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):
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Howard H. Vogel New Tennessee Rules of Professional Conduct Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/nurule8.wpd Orders implementing Tennessee Rules of Professional Conduct Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/order.wpd STATE OF TENNESSEE v. JOHN TRAVIS COLLINS, ALIAS Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Randall Eugene Nichols, District Attorney General; and Patricia Cristil and Steven C. Garrett, Assistant District Attorneys General, for the appellant, State of Tennessee. James A.H. Bell (at trial), Steven Oberman (at trial), and Tommy K. Hindman (on appeal), Knoxville, Tennessee, for the appellee, John Travis Collins, Alias. Judge: WILLIAMS First Paragraph: The State challenges the trial court's jurisdiction to modify sentence more than six years after judgment. Generally a trial court would not have jurisdiction to modify a sentence more than 120 days after judgment becomes final. However, we conclude that where the defendant was never in the physical custody of the Department of Correction, jurisdiction to modify sentence remained in the trial court. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/collinsjtalias.wpd STATE OF TENNESSEE v. SCOTT M. CRAIG Court:TCCA Attorneys: Leonard "Mike" Caputo, Chattanooga, Tennessee (on appeal) and Ashley L. Ownby, Cleveland, Tennessee (at trial) for the appellant, Scott M. Craig. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; Jerry N. Estes, District Attorney General; Stephen D. Crump, Assistant District Attorney General; Carl F. Petty, Assistant District Attorney General; and Shari Lynn Tayloe, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Scott Craig, was convicted by a Bradley County jury of one count of aggravated kidnapping and two counts of aggravated rape. He was sentenced to eight years for aggravated kidnapping and fifteen years each for the aggravated rape convictions. The trial court ordered the two aggravated rape convictions to be served concurrently with each other, but consecutively to the aggravated kidnapping conviction, for an effective sentence of twenty-three years. Defendant appeals his conviction and sentence, presenting the following issues for review: (1) whether the trial court made improper and prejudicial comments during the trial which deprived Defendant of his right to a fair trial; and (2) whether the trial court erred by imposing consecutive sentences. After a thorough review of applicable law and all relevant facts and circumstances in the record, we affirm Defendant's convictions. We reverse the judgment of the trial court concerning the length of Defendant's sentence for aggravated rape and the trial court's order of consecutive sentencing, and remand this matter for a new sentencing hearing. http://www.tba.org/tba_files/TCCA/craigscottm.wpd STATE OF TENNESSEE v. JAMES MICHAEL DAVIS Court:TCCA Attorneys: Ardena J. Garth, District Public Defender (on appeal and at trial); Donna Robinson Miller, Assistant District Public Defender (on appeal); and Karla Gothard, Assistant District Public Defender (at trial), for the appellant, James M. Davis. Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General; and Mary Sullivan Moore and Dean C. Ferraro, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, James Michael Davis, was convicted of driving under the influence. The trial court imposed a sentence of 11 months, 29 days, with all but 48 hours suspended. In this appeal of right, the defendant asserts that because the police officers did not have "reasonable suspicion" to warrant an investigatory stop, the trial court erred by denying his motion to suppress. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/davisjames.wpd STATE OF TENNESSEE v. WILLIAM ROBERT POSEY Court:TCCA Attorneys: Lloyd A. Levitt, Chattanooga, Tennessee, for the appellant, William Robert Posey. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Bill Cox, District Attorney General; and Thomas E. Kimball, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, William Robert Posey, appeals as of right from the judgment of the trial court, which found him guilty of driving under the influence (DUI) as a third offender. The Defendant raises two central issues on appeal. First, the Defendant argues that the two preceding DUI convictions are invalid on their face and therefore cannot be used to enhance his punishment for the present conviction. Second, the Defendant argues that the trial court committed error by failing to hold a hearing pursuant to Momon v. State, 18 S.W.3d 152 (Tenn. 1999), to determine whether the Defendant personally waived his right to testify. Because the record is void of any evidence that the Defendant did personally waive his right to testify, we remand the case to the trial court for a hearing to determine whether the Defendant's right to testify was violated, and if so, whether the violation of the Defendant's right to testify was harmless beyond a reasonable doubt. http://www.tba.org/tba_files/TCCA/poseywr.wpd STATE OF TENNESSEE v. RICHARD VANOVER Court:TCCA Attorneys: Frederick M. Lance, Jonesborough, Tennessee, and Kristi M. Davis, Knoxville, Tennessee, for the appellant, Richard Vanover. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; Joe C. Crumley, Jr., District Attorney General; and Steven R. Finney, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: Defendant pled guilty to seventeen offenses and was subsequently sentenced to fourteen years in confinement. On appeal, defendant alleges that trial court committed error in (1) applying certain enhancing factors, (2) denying any form of alternative sentencing, and (3) ordering consecutive sentencing. We affirm the judgment. http://www.tba.org/tba_files/TCCA/vanoverr.wpd KENNETH LEE WESTON v. STATE OF TENNESSEE Court:TCCA Attorneys: Mark E. Stephens, District Public Defender; Paula R. Voss, Assistant Public Defender (on appeal); and Ellery Hill (at trial), Knoxville, Tennessee, for the appellant, Kenneth Lee Weston. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; and Robert L. Jolley, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: A Knox County jury convicted the Petitioner of robbery by the use of a deadly weapon. The trial court found the Petitioner to be an habitual criminal and sentenced him to life imprisonment. This Court affirmed both the sentence and verdict on direct appeal. The Petitioner subsequently filed his first petition for post-conviction relief, alleging ineffective assistance of counsel at his trial. The post-conviction court denied relief, but no appeal ensued. The Petitioner then filed a second petition for post-conviction relief, alleging that counsel in his first post-conviction proceeding was ineffective for failing to file an appeal. After a hearing, the post-conviction court dismissed the second petition and ruled that the Petitioner did not have a constitutional right to effective assistance of counsel in a post-conviction proceeding. This Court affirmed. The Tennessee Supreme Court reversed and remanded the case to the post-conviction court for an evidentiary hearing to determine whether the Petitioner received ineffective assistance of counsel at his first post-conviction proceeding and whether, as a result, the Petitioner was effectively denied a first-tier appeal of his first post- conviction petition. Before the hearing, the Petitioner filed an amended petition for post-conviction relief. The post-conviction court heard the amended petition, but found that the issues raised were without merit. On appeal, this Court affirmed the post-conviction court's finding that the Petitioner had been effectively denied a first-tier appeal in the original post-conviction proceedings, but held that the post-conviction court was not authorized to hear the amended petition. The supreme court affirmed this ruling and remanded the case to this Court for a first-tier appeal of the Petitioner's original and unamended petition for post-conviction relief. Having reviewed the record, we conclude that the Petitioner received effective assistance of counsel at trial. Therefore, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/westonkl1.wpd PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! SUBSCRIBE TO OPINION FLASH! UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi Home • Contact Us • PageFinder • What's New • Help |
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