Opinion Flash

December 30, 2002
Volume 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):
07 New Opinion(s) from the Tennessee Supreme Court
02 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
01 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. 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
	

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