Opinion Flash

August 27, 2002
Volume 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):
00 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
02 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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Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document.

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


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

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