Opinion FlashDecember 30, 2002Volume 8 — Number 228 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):
TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.mgi. Here's how you can obtain full-text version. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Howard H. Vogel STATE OF TENNESSEE v. ALAN L. ADLER Court:TSC Attorneys: Robert L. Hutton, Memphis, Tennessee, for the appellant, Alan L. Adler. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Kim R. Helper, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Ryan D. Brown, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: BARKER First Paragraph: The appellant, Alan L. Adler, was indicted for aggravated child neglect of a child under six years of age, a Class A felony. Following trial, a Fayette County jury convicted him of the lesser-included offense of reckless endangerment, a Class A misdemeanor. Subsequently, the appellant, pursuant to Tennessee Code Annotated section 40-32-101 (section 40-32-101), petitioned the trial court to expunge all public records pertaining to his indictment, prosecution, and trial for the aggravated child neglect charge. After the appellant's petition was granted by the trial court, the State of Tennessee appealed pursuant to Tennessee Rule of Appellate Procedure 3(c) (Rule 3(c)) and argued that Adler was not entitled to expungement under section 40-32-101 because he was convicted of a lesser- included offense. We granted this appeal to determine if the State is authorized under Rule 3(c) to appeal a trial court's expungement order. After examining the facts and the law pertinent to this issue, we hold that the State is not permitted to appeal a trial court's expungement order as of right pursuant to Rule 3(c). Nevertheless, treating the State's appeal as a writ of certiorari, we also hold that the appellant was entitled in this case to expungement of all public records pertaining to the felony charge of which he was acquitted. http://www.tba.org/tba_files/TSC/AdlerAL.wpd TERRANCE B. BURNETT v. STATE OF TENNESSEE Court:TSC Attorneys: Shana McCoy-Johnson, Somerville, Tennessee, for the appellant, Terrance Burnett. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Mark E. Davidson, Assistant Attorney General, for the appellee, State of Tennessee. Judge: BIRCH First Paragraph: Terrance Burnett, appellant, pleaded guilty to two counts of felony murder, two counts of attempted first degree murder, and one count of especially aggravated burglary. He received sentences of life without the possibility of parole, twenty years, and eight years, respectively. One year later, Burnett filed a petition for post-conviction relief alleging several constitutional violations that he claimed entitled him to relief from the above judgments. After having appointed counsel, the trial court dismissed the petition without having conducted an evidentiary hearing. The Court of Criminal Appeals affirmed the judgment. On appeal to this Court, Burnett contends that the trial court erred in dismissing his petition without an evidentiary hearing. For the reasons discussed herein, we are of the opinion that the trial court acted in a manner consistent with the provisions of the Post-Conviction Procedure Act of 1995. Accordingly, the judgment of the trial court and the Court of Criminal Appeals is affirmed. http://www.tba.org/tba_files/TSC/BurnettTB.wpd MARCO D. BUTLER v. STATE OF TENNESSEE Court:TSC Attorneys: Michael E. Scholl, Memphis, Tennessee, for the appellant, Marco Dewayne Butler. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Kim R. Helper, Assistant Attorney General; Bill Gibbons, District Attorney General; E. Greg Gilluly, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: BARKER First Paragraph: On November 19, 1999, the defendant, Marco D. Butler, pleaded guilty in the Shelby County Criminal Court to first degree murder and especially aggravated robbery in connection with the death of Charles Cantrell. On March 13, 2001, the defendant filed a post-conviction petition which was dismissed by the trial court as being time-barred by the statute of limitations. However, the defendant claimed that he originally caused to be mailed, and therefore filed, his post-conviction petition on October 9, 2000, though it was never received by the Shelby County Criminal Court Clerk's Office. The Court of Criminal Appeals affirmed the trial court's order dismissing the defendant's petition as being untimely filed. We granted this appeal to determine if the Court of Criminal Appeals erred in affirming the dismissal of Butler's post-conviction petition as time-barred. After examining the facts and the law relevant to this issue, we hold that pursuant to Tennessee Supreme Court Rule 28 S 2(G) (Rule 28 S 2(G)), the defendant is entitled to an evidentiary hearing to determine whether the defendant's alleged original post-conviction petition was timely filed. http://www.tba.org/tba_files/TSC/ButlerMD.wpd SUPREME COURT DISCRETIONARY APPEALS; DECEMBER 30, 2002 Court:TSC http://www.tba.org/tba_files/TSC/CERTLIST.wpd JAMES LEE JONES, III, et al. v. PIERCE BRANDON GARRETT a/k/a PERRY GARRETT Court:TSC Attorneys: Douglas R. Beier, Morristown, Tennessee, for the appellant, Pierce Brandon Garrett. Jonathan R. Perry and Laura D. Perry, Franklin, Tennessee, for the appellees, James Lee Jones, III and Stephanie Trent Jones. Judge: HOLDER First Paragraph: This case arises from a proceeding to terminate parental rights. In that proceeding, the prospective adoptive parents sought a determination that the father of the child in their custody had abandoned him. The trial court terminated the father's parental rights, and the Court of Appeals affirmed the termination. We granted permission to appeal to determine whether the trial court erred in terminating parental rights on the basis of Tennessee Code Annotated section 36-13-113(g)(8)(A)(vi) (1996 & Supp. 1999) (failure to file a petition to establish paternity within thirty days after notice of alleged paternity by the child's mother) when the father had been adjudicated the legal parent of the child at the time of the hearing. We hold that Tennessee Code Annotated section 36-1-113(g)(8)(A)(vi) applies only to cases in which no legal relationship between the parent and child has been established. http://www.tba.org/tba_files/TSC/JonesJL.wpd STEVE VINSON v. UNITED PARCEL SERVICE, et al. Court:TSC Attorneys: Regina Morrison Newman, Memphis, Tennessee, for the Appellant, Steve Vinson. Mark W. Raines, Memphis, Tennessee, for the Appellees, United Parcel Service, et al. Judge: BARKER First Paragraph: The dispositive issue in this workers' compensation action is whether the Special Chancellor erred in finding the appellant, Steve Vinson, to be 100% permanently partially disabled, as a result of a motor vehicle accident that occurred in the scope of his employment. For the reasons set forth herein, we conclude that no such impairment classification exists in the workers' compensation statutes and cases of this state. After conducting our own de novo review of the record, we hold that the preponderance of the evidence supports the appellant's claim that he is 100% permanently and totally disabled and entitled to full workers' compensation benefits pursuant to Tennessee Code Annotated section 50-6-207(4)(A)(i). Additionally, pursuant to relevant workers' compensation statutes, we hold that the trial court erred in allowing appellees a credit for temporary total disability benefits that have heretofore been paid to appellant. Accordingly, the judgment of the chancery court is affirmed, as modified herein, and the case remanded for enforcement of the judgment of this Court. http://www.tba.org/tba_files/TSC/VinsonS.wpd STATE OF TENNESSEE v. ERNEST EDWARD WILSON Court:TSC Attorneys: David L. Johnson, Nashville, Tennessee, for the appellant, Ernest Edward Wilson. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Jennifer L. Smith, Assistant Attorney General, for the appellee, State of Tennessee. Judge: BIRCH First Paragraph: This appeal arises from Ernest Edward Wilson's conviction for second degree murder in the Criminal Court of Davidson County. At the close of trial, the trial court instructed the jury on first degree murder, second degree murder, and voluntary manslaughter; it did not instruct the jury on reckless homicide and criminally negligent homicide. The jury convicted Wilson of the lesser- included offense of second degree murder, and the trial court imposed a sentence of twenty-four years in the Department of Correction. On direct appeal, Wilson challenged the trial court's failure to instruct on lesser-included offenses. The Court of Criminal Appeals, in a split decision, affirmed the judgment of the trial court. We granted review and now conclude that the trial court erred in failing to instruct the jury on reckless homicide and criminally negligent homicide. Further, we hold that this error was not harmless beyond a reasonable doubt. Accordingly, we reverse the judgment of the Court of Criminal Appeals and remand the case for a new trial in accordance with this opinion. http://www.tba.org/tba_files/TSC/WilsonEE.wpd ANDY R. GANN V. FLAGSTAR ENTERPRISES, INC. Court:TSC - Workers Comp Panel Attorneys: Douglas R. Beier, Evans & Beier, Morristown, Tennessee, for the Appellant, Andy R. Gann. Pamela B. Johnson, Leitner, Williams, Dooley & Napolitan, Knoxville, Tennessee, for the Appellee, Flagstar Enterprises, Inc. 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 appellant claims that the trial court erred in granting summary judgment that his claim for worker's compensation benefits was not timely filed as provided in T.C.A. S 50-6-203. We affirm. http://www.tba.org/tba_files/TSC_WCP/ganna.wpd BILLIE JO LENEAR V. REHAB CARE GROUP, INC. Court:TSC - Workers Comp Panel Attorneys: Maurice S. Briere, Jr., Ralph Brown & Associates, Knoxville, Tennessee, for the Appellant, Billie Jo Lenear. Robert R. Davies, Stokes, Rutherford, Williams, Sharp & Davies, Knoxville, Tennessee, for the Appellee, Rehab Care Group, Inc. 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 appellant claims that the trial court erred in finding that she was not an employee and, thus, not entitled to worker's compensation benefits. We affirm. http://www.tba.org/tba_files/TSC_WCP/lenearb.wpd STATE OF TENNESSEE v. RICHARD ALAN HAWKINS Court:TCCA Attorneys: Bryan H. Hoss (on appeal) and Lloyd A. Levitt (at trial), Chattanooga, Tennessee, for the appellant, Richard Alan Hawkins. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; William H. Cox, III, District Attorney General; and Ruston L. Hill, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Hamilton County jury convicted the defendant, Richard Alan Hawkins, of assault, a Class A misdemeanor. The trial court sentenced the defendant to eleven months and twenty-nine days in the county workhouse to be served at 75%. In this appeal, the defendant raises the following issues: (1) whether the state's witnesses violated the rule of sequestration, and (2) whether the defendant's sentence is excessive. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/hawkinsr.wpd PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! SUBSCRIBE TO OPINION FLASH! 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