Opinion Flash

December 31, 2002
Volume 8 — Number 229

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
18 New Opinion(s) from the Tennessee Court of Appeals
08 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


BETTY R. BROWN  v. MELVIN E. BROWN

Court:TCA

Attorneys:   

David E. Danner, Nashville, Tennessee, for the appellant, Melvin
Eugene Brown.

James L. Curtis, Nashville, Tennessee, for the appellee, Betty Ruth
Brown.                       

Judge: CANTRELL

First Paragraph:

The trial court granted the wife a divorce after a marriage of
twenty-five years, and ordered the husband to pay her $300 per month
as alimony in futuro.  Eight years later, the husband filed a Petition
to Modify the Final Decree and eliminate the alimony obligation,
citing a significant increase in the wife's earnings.  The trial court
denied the petition.  We affirm the trial court.

http://www.tba.org/tba_files/TCA/brownbr.wpd
								
CHRISTINA CLIBURN v. PAUL DAVID BERGERON Court:TCA Attorneys: Gary N. Patton, Murfreesboro, Tennessee, for the appellant, Christina Cliburn. John M. Green, Murfreesboro, Tennessee, for the appellee, Paul David Bergeron. Judge: COTTRELL First Paragraph: In this consolidated appeal, we are called upon to review the trial court's decisions on two separate but related petitions. In the action brought by the mother, the trial court dismissed for lack of jurisdiction a petition which sought to register and modify a 1997 foreign divorce decree granting custody and support, enforce a foreign decree of child support, and establish parentage of a second child not the subject of the previous orders. Because the trial court did not have jurisdiction to modify a foreign custody decree when another state had continuing exclusive jurisdiction and because there was no personal jurisdiction over the alleged father, a nonresident, we affirm the trial court's decisions. In the petition subsequently brought by the father to register and enforce a later modification by the foreign court granting custody to the father, the trial court granted the requested relief. We affirm that decision because any deficiencies in the father's petition were technicalities, and the trial court had the entire record of the foreign court's proceedings before it. http://www.tba.org/tba_files/TCA/cliburnc.wpd
GRAY'S DISPOSAL CO., INC., et al. v. METROPOLITAN GOVERNMENT OF NASHVILLE, DAVIDSON COUNTY, TENNESSEE Court:TCA Attorneys: Thomas E. Stewart; Thurman T. McLean, Jr., Gallatin, For Appellants Gray's Disposal Co., Inc., and Ray Webster, d/b/a Hermitage Hills Sanitary Co. John L. Kennedy; Jennifer Surber, Nashville, For Appellee, The Metropolitan Government of Nashville and Davidson County Judge: CRAWFOD First Paragraph: Garbage haulers filed suit against metro government challenging legality of "tipping fees" imposed by government on disposal of residential solid waste collected outside the city district and disposed of at government-owned waste facility. This suit was consolidated with government action against appellant-haulers for collection of unpaid tipping fees. Court granted government's Motion for Summary Judgment as to the action filed by appellant-haulers, finding that the tipping fee was not a tax, a rational basis existed for the fee, the fee did not constitute an unlawful flow control mechanism, and the fee was authorized by T.C.A. S 68-211-835(b), thereby immunizing the government from antitrust liability. The trial court further granted government's Motion for Summary Judgment filed in government's suit against haulers, finding that no genuine issue of material fact existed as to the amount owed by appellants in unpaid tipping fees. On appeal, haulers challenged fees on double taxation, equal protection, and federal interstate commerce clause grounds, asserting that the tipping fee was an illegal flow control device, unenforceable "double tax," and violation of haulers' equal protection rights under 42 U.S.C. S 1983, as it was discriminately applied to haulers disposing of waste from outside the city district, and not those disposing of waste collected within the city district. Haulers further appealed trial court's grant of summary judgment in the consolidated case on the basis that haulers could not be held liable for payment of fees imposed under an unconstitutional flow control regulation. We affirm the trial court's grant of summary judgment as to the action filed by appellant-haulers, and vacate the summary judgment Order entered in favor of the government in the action initiated by appellees. http://www.tba.org/tba_files/TCA/graydisposal.wpd
IN RE: THE ESTATE OF MARIE H. GUY, DECEASED Court:TCA Attorneys: Dan E. Huffstutter, Nashville, Tennessee, for appellant, Linda Sue Guy Minton. Joseph L. Hornick, Dickson, Tennessee, for appellee, James Hatcher Hayes, Executor. Judge: LILLARD First Paragraph: This case involves a codicil to a will. The decedent executed a valid will, which was signed by two witnesses and included an attestation clause. The decedent later executed a typed codicil to her will, which was signed by two witnesses but did not include an attestation clause. The plaintiff was a beneficiary under the will, but the codicil removed the plaintiff as a beneficiary. Upon the decedent's death, the plaintiff objected to the admission of the codicil into probate. One of the witnesses to the codicil recalled signing it, remembered the decedent stating that it was a codicil, and remembered the second witness signing the document. The second witness to the codicil did not remember signing it, but recognized her signature and said that she would not have signed it unless she first saw the decedent sign it. The probate court admitted the codicil into probate. The plaintiff appeals, arguing that the second witness's lack of an independent recollection of witnessing the decedent's signature on the codicil should prevent its admission into probate. We affirm, finding that the execution of the codicil meets the statutory requirements, and therefore it was validly admitted into probate. http://www.tba.org/tba_files/TCA/guymh.wpd
HARPER ENTERPRISES, LLC, et al. v. CITY OF BEAN STATION, TENNESSEE, et al. Court:TCA Attorneys: Richard C. Jessee and Lori L. Jessee, Morristown, Tennessee, for the appellants, Harper Enterprises, LLC, and Joe Harper. Nathan D. Rowell, Knoxville, Tennessee, and Steven Douglas Drinnon, Dandridge, Tennessee, for the appellees, the City of Bean Station and the Bean Station Beer Board. Judge: SUSANO First Paragraph: The City of Bean Station ("the City") denied the application of the plaintiff ("the applicant") for a permit to sell beer for off-premises consumption. The applicant filed a petition for certiorari, naming the City and seeking a writ of mandamus to compel it to issue the requested permit. On cross motions for summary judgment, the trial court granted the City summary judgment. The applicant appeals. It contends that the City, "by actions and/or inaction," has caused its beer ordinance, which limits beer permits within the municipality to two, to be invalid. In the alternative, it contends that the City "has engaged in discriminatory, arbitrary and capricious application of the ordinance." We vacate the trial court's judgment and remand for further proceedings. http://www.tba.org/tba_files/TCA/harprent.wpd
GREGORY HEDGES v. TENNESSEE DEPARTMENT OF CORRECTION Court:TCA Attorneys: Gregory Hedges, Mountain City, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Mark A. Hudson, Senior Counsel, Nashville, Tennessee, for the appellee, Tennessee Department of Correction. Judge: KOCH First Paragraph: This appeal involves a prisoner at the Southeast Regional Correctional Facility who was charged with refusing to take a drug test and attempting to alter the results of a drug test. A prison disciplinary board sentenced the prisoner to twenty days in disciplinary segregation and ordered him to pay a four dollar fine for attempting to alter the test results and a twenty-five dollar fine for refusing to take a drug test. The prisoner filed a petition for common-law writ of certiorari in the Circuit Court for Davidson County challenging the disciplinary board's action on the ground that the Department had not complied with its drug testing policy. He also challenged the twenty-five dollar fine on the ground that he had not been convicted of refusing to take a drug test. The trial court granted the Tennessee Department of Correction's Tenn. R. Civ. P. 12.02(6) motion to dismiss the petition. In the absence of the disciplinary board's records, we must presume the truth of the allegations in the prisoner's petition that he was not convicted of refusing to take a drug test. Fining a prisoner for a disciplinary offense of which he was not convicted violates the Department's Uniform Disciplinary Procedures and the prisoner's constitutionally protected property interests. Therefore, we conclude that the prisoner's petition states a claim for which relief can be granted. http://www.tba.org/tba_files/TCA/hedgesg_opn.wpd
GREGORY HEDGES v. TENNESSEE DEPARTMENT OF CORRECTION Court:TCA COTTRELL CONCURRING http://www.tba.org/tba_files/TCA/hedgesg_con.wpd
HILTON JEFFRIES v. TENNESSEE DEPARTMENT OF CORRECTION Court:TCA Attorneys: Hilton Jeffries, Only, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Dawn Jordan, Assistant Attorney General, for the appellee, Tennessee Department of Correction. Judge: KOCH First Paragraph: This appeal involves a prison disciplinary proceeding. A prisoner at the Southeast Regional Correctional Facility was charged with four serious disciplinary infractions. He pleaded guilty to three charges, and a prison disciplinary board found him guilty of the fourth. The board placed the prisoner in punitive segregation for five days and ordered him to pay $810 in restitution from his inmate trust fund account. The prisoner filed a petition for common-law writ of certiorari in the Chancery Court for Davidson County alleging (1) that his guilty pleas had been coerced and (2) that he had been denied due process on the fourth charge by the board's failure to provide him twenty- four hours notice of the hearing and its interference with his opportunity to present exculpatory evidence. The trial court granted the Tennessee Department of Correction's motion for summary judgment and dismissed the prisoner's petition. We have determined that the trial court erred by granting the summary judgment with regard to the $810 restitution order because the record contains material factual disputes regarding whether the prisoner waived his right to twenty-four hours notice of the hearing and whether the board refused to permit him to call an exculpatory witness. http://www.tba.org/tba_files/TCA/jeffriesh.wpd
BASIL MARCEAUX I v. GOVERNOR DON SUNDQUIST, in his official capacity, et al. Court:TCA Attorneys: Basil Marceaux I, Pro Se. Paul G. Summers, Attorney General & Reporter, and Richard H. Dunavant, Assistant Attorney General, for the appellees, State of Tennessee, et al. Judge: FARMER First Paragraph: Appellant filed a complaint in the Davidson County Chancery Court naming Governor Don Sundquist, all members of the United States Congress representing Tennessee, all members of the state legislature, all Tennessee District Attorneys General, all Tennessee Sheriff's Departments, and others as defendants. The complaint alleged the numerous defendants were guilty of "kidnapping, extortion, and racketeering" through the application of laws calling for mandatory car insurance, and the practice of routine traffic stops. The trial court dismissed the complaint finding, inter alia, that Appellant failed to state a claim upon which relief can be granted. We affirm. http://www.tba.org/tba_files/TCA/marceauxb1.wpd
SUSAN ALVA ROSE NORRIS V. LESLIE RAY NORRIS Court:TCA Attorneys: Clark Lee Shaw, Nashville, Tennessee, for the appellant, Leslie Ray Norris D. Scott Parsley, Joshua G. Strickland, Nashville, Tennessee, for the appellee, Susan Alva Rose Norris Judge: MALOAN First Paragraph: This appeal arises from a post-divorce contempt petition where the petitioner mother alleged the respondent father failed to provide income information required by a previous court order. The trial court entered a judgment for past due child support in the amount of $34,950 and awarded attorney's fees in the amount of $1,000. On this appeal, the father contends the judgment violates the prohibition against retroactive modification of child support, Tenn. Code Ann. S 36- 5-101(a)(5) and that the award of attorney's fees was error. We reverse the judgment for past due child support and affirm the award of attorney's fees. http://www.tba.org/tba_files/TCA/norrissa.wpd
AUDREY J. OWEN v. WILLIAM C. MARTIN, III Court:TCA Attorneys: B. Lynn Morton, Clarksville, For appellant, William C. Martin, III R. Price Nimmo; Rabin P. Nimmo, Nashville, For Appellee, Audrey C. Owen Judge: CRAWFORD First Paragraph: This case was previously remanded by this Court for a determination of monthly payments due to Appellee from a resulting trust. Appellant appeals from an Order entered by the Chancery Court upon remand. The Order set the amount of the monthly payments but set no end date for those payments. We hold (1) that the corpus of the resulting trust is the equity Appellee possessed in the Property and is, therefore, a finite amount, (2) that the corpus should be reduced by rental amounts owed to Appellant by Appellee, and (3) that the remainder of the corpus may be paid as provided by the trial court. http://www.tba.org/tba_files/TCA/owenaj1.wpd
LARRY E. PARRISH, et al. v. ROBERT S. MARQUIS, et al. Court:TCA Attorneys: John J. Mulrooney, Memphis, Tennessee, for the Appellants, Larry E. Parrish and Larry E. Parrish, P.C. Deborah C. Stevens and Summer H. Stevens, Knoxville, Tennessee, for the Appellee, Ronald C. Koksal Frank Q. Vettori, Knoxville, Tennessee, for the Appellee, Robert S. Marquis Judge: GODDARD First Paragraph: In this appeal from the Circuit Court for Knox County the Appellants, Larry E. Parrish and Larry E. Parrish, P.C., contend that the Trial Court erred in dismissing their cause of action upon grounds that it was not timely filed under T.C.A. 28-1-105(a). We affirm the judgment of the Trial Court. http://www.tba.org/tba_files/TCA/parrishl.wpd
PAUL R. PEAK, et al. v. TRAVELERS INDEMNITY COMPANY Court:TCA Attorneys: Rick G. Mansfield, Murfreesboro, Tennessee and Larry R. McElhaney, II and S. Alexa Whittemore, Nashville, Tennessee, for the appellants, Paul R. Peak and Virginia M. Peak. Marc O. Dedman and Gayle B. Lakey, Nashville, Tennessee, for the appellee, Travelers Indemnity Company. Judge: CAIN First Paragraph: The named insureds in an automobile liability insurance policy providing $300,000 per accident liability insurance appeal a trial court grant of summary judgment that they had effectively reduced their uninsured motorist limits per accident to $60,000. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/peakpr.wpd
IN RE: THE ESTATE OF HARLEY TIMOTHY PRICE Court:TCA Attorneys: Charles J. Gearhiser and Robin L. Miller, Chattanooga, Tennessee, for the Appellant, Cynthia A. Price. J. Michael Sharp, Cleveland, Tennessee and Tracy C. Wooden, Chattanooga, Tennessee, for the Appellee, Estate of Harley Timothy Price. Judge: DANIEL First Paragraph: This case involves an appeal by Mrs. Cynthia A. Price, widow of Harley Timothy Price, who appeals the trial court's determination that Mr. Price was domiciled in Marion County, Tennessee thereby providing a jurisdictional basis for the probate of his will. In responding to this appeal, the estate of Harley Timothy Price appeals the trial court's determination that Mrs. Cynthia A. Price has standing to contest the jurisdiction of the Court. The trial court found that Mrs. Price had standing to contest jurisdiction. It also found that Mr. Price was domiciled in the State of Tennessee and, therefore, the letters testamentary were issued. For the reasons stated in this opinion, we affirm the trial court's decision as to both issues. http://www.tba.org/tba_files/TCA/priceht.wpd
RIVER LINKS AT DEER CREEK, LLC v. JOSEPH MELZ, et al. Court:TCA Attorneys: Phillip North and R.J. Pursell, Nashville, Tennessee, for the appellants, Joseph Melz, Deer Creek Golf Interests, LLC and Deer Creek Construction, Inc. Nancy S. Jones and Caroline Thomas Trost, Nashville, Tennessee, for the appellee, River Links at Deer Creek, LLC. Judge: CANTRELL First Paragraph: The developer of a golf course brought a fraud complaint against the property owner who furnished the land for the course, and against the companies he controlled. The defendants argued that the plaintiff's remedies were limited by the arbitration clauses in two of the three contracts that defined the relationship between them. The trial court ruled that the arbitration clauses were not applicable to the plaintiff's claims. We affirm the trial court. http://www.tba.org/tba_files/TCA/riverlinks.wpd
VANDERBILT UNIVERSITY vs. TECHGEM DIAMOND TOOLS, INC., TECH-GEM CORP., S.S. GUPTA, a/k/a S.S. KANDELWAL, and SURESH GUPTA Court:TCA Attorneys: lan Dale Johnson and Alfred H. Knight, Nashville, Tennessee, for the Appellant, Tech-Gem Corp. Katharine R. Cloud, Nashville, Tennessee, for the Appellee, Vanderbilt University. Judge: DANIEL First Paragraph: This is an appeal by Tech-Gem Corporation from a default judgment entered by the Chancery Court of Davidson County as a sanction for non-compliance with discovery orders. Prior to trial, the Chancellor granted Vanderbilt University's Motion for a Default Judgment against Tech-Gem as to all four issues of liability alleged in Vanderbilt's complaint because of repeated failures to comply with discovery requests. Over one year later, the Chancellor heard the case and found that Vanderbilt was entitled to a judgment, jointly and severally against the defendants TechGem Diamond Tools, Inc. and Tech-Gem, in the amount of $22,731.00 plus pre-judgment interest. After the trial, Tech-Gem filed a Motion to Set Aside the Default Judgment. The Chancellor denied the motion and found that Vanderbilt would be prejudiced if the Motion to Set Aside were granted. We agree with the trial court and affirm its decision for the reasons stated herein. http://www.tba.org/tba_files/TCA/techgem.wpd
MR. SAMMY W. VEST, et al. v. DR. FRANCIS GOSWITZ, et al. Court:TCA Attorneys: Edward A. Slavin, Jr., St. Augustine, Florida, for the Appellants, Sammy W. Vest, Anglia M. Somner, Cheryl D. Travis and Danny W. Vest Debra A. Thompson, Knoxville, Tennessee, for the Appellees, Francis Goswitz, M.D., and Helen Vodopick, M.D. Judge: GODDARD First Paragraph: This is a medical malpractice case filed on January 3, 2000, and amended on January 11 of the same year. The suit was by Sammy W. Vest and his adult children, Anglia M. Somner, Cheryl D. Travis, and Danny W. Vest, against Dr. Francis Goswitz and Dr. Helen Vodopick. The suit seeks damages for the Defendants' failure to refer Mr. Vest to a specialist, resulting in an injury to him as well as to his children. The Trial Judge sustained a motion by the Defendants to dismiss the children as parties Plaintiff, and later a motion for summary judgment as to Mr. Vest's suit. He further granted sanctions pursuant to Rule 11.03 against counsel for the Plaintiff. We affirm. http://www.tba.org/tba_files/TCA/vests.wpd
DENVER J. WADDELL v. LAWRENCE M. OGLEDZINKSKI Court:TCA Attorneys: April Carroll Meldrum, Clinton, Tennessee, for the Appellant, Denver J. Waddell James S. MacDonald, Knoxville, Tennessee, for the Appellee, Lawrence M. Ogledzinkski Judge: GODDARD First Paragraph: In this appeal from the Knox County Circuit Court the Appellant, Denver J. Waddell, contends that the Trial Court erred in dismissing his case by grant of summary judgment upon grounds that the cause of action against the Appellee, Lawrence M. Ogledzinkski, is precluded by T.C.A. 50-6- 108(a). We affirm the judgment of the Trial Court. http://www.tba.org/tba_files/TCA/waddel.wpd
LISA H. WADE v. WILLIAM HOWELL WADE, II Court:TCA Attorneys: Gregory D. Smith, Clarksville, Tennessee, for the appellant, William Howell Wade, II. Debra A. Wall, Clarksville, Tennessee, for the appellee, Lisa H. Wade. Judge: FARMER First Paragraph: This appeal arises from a change in child support, increasing the Appellant's monthly support obligation and awarding Appellee one half of all un-reimbursed medical and dental expenses while Appellant is in the military. Concerning child support, we affirm in part, with modification, and reverse and remand in part. Concerning un-reimbursed medical and dental expenses, we affirm. http://www.tba.org/tba_files/TCA/wadelh.wpd
ERVIN LEE HAYES v. STATE OF TENNESSEE Court:TCCA Attorneys: Mike J. Urquhart, Nashville, Tennessee, for the appellant, Ervin Lee Hayes. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Roger Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Petitioner was indicted for two counts of attempted first degree murder. Following a jury trial, the Petitioner was convicted of both counts of attempted first degree murder. The trial court sentenced the Petitioner as a Range II, multiple offender to thirty-five years for each count and ordered that the sentences be served consecutively. The Defendant appealed, and this Court affirmed the judgment of the trial court. The Tennessee Supreme Court denied permission to appeal. The Petitioner then filed a pro se motion for post-conviction relief. The trial court found that the Petitioner failed to state any grounds for which relief could be granted and ordered that the Petitioner respond within fifteen days. Receiving no response, the trial court dismissed the petition. Eventually, with permission from the trial court based on extenuating circumstances, the Petitioner filed an amended pro se petition, alleging ineffective assistance of counsel. Following an evidentiary hearing, the trial court denied the petition. The Petitioner now appeals the denial of his petition for post-conviction relief. Finding no error, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/hayesel.wpd
STATE OF TENNESSEE v. RUFUS STEVEN JOHNS Court:TCCA Attorneys: John Mitchell, Murfreesboro, Tennessee, for the appellant, Rufus Steven Johns. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; and William C. Whitesell, Jr., District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Rufus Steven Johns, entered a nolo contendere plea to illegally registering to vote, a class E felony. After a sentencing hearing, the trial court sentenced the Defendant as a Range I standard offender to eighteen months to be served on probation. In this appeal as of right, he raises three issues: (1) whether the district attorney general abused his discretion by denying the Defendant pretrial diversion, (2) whether the trial court abused its discretion by refusing to grant judicial diversion, and (3) whether the trial court imposed an excessive sentence. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/johnsrs.wpd
STATE OF TENNESSEE v. ROBERT S. LUTRICK Court:TCCA Attorneys: Claudia Jack (at trial), Pulaski, Tennessee; and R. H. Stovall, Jr. (on appeal), Columbia, Tennessee, for the Appellant, Robert S. Lutrick. Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney General; T. Michel Bottoms, District Attorney General; and Richard H. Dunavant and Patrick Butler, Assistant District Attorneys General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: After a Giles County Circuit Court jury convicted the defendant, Robert S. Lutrick, of aggravated assault, a Class C felony, he applied to the court for an order of diversion. The trial court denied the request and sentenced the defendant to the minimum Range I sentence of three years, to be served on probation. The defendant now appeals the denial of judicial diversion. Upon review, we affirm. http://www.tba.org/tba_files/TCCA/lutrickroberts.wpd
JEREMY KYLE MASSEY v. STATE OF TENNESSEE Court:TCCA Attorneys: William J. Eledge, Lawrenceburg, Tennessee, for the Appellant, Jeremy Kyle Massey. Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough, Assistant Attorney General; Mike Bottoms, District Attorney General; and James G. White II, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The petitioner, Jeremy Kyle Massey, appeals the Lawrence County Circuit Court's denial of his petition for post-conviction relief. He challenges his conviction pursuant to a plea agreement with the state and contends that he received ineffective assistance of counsel and that his guilty plea was involuntary and constitutionally deficient. He further complains that the post-conviction court erroneously excluded certain testimony as irrelevant. We affirm the denial of post-conviction relief. http://www.tba.org/tba_files/TCCA/masseyjeremykyle.wpd
STATE OF TENNESSEE v. RICKY E. PULLEN Court:TCCA Attorneys: Gerald L. Melton, District Public Defender, and Russell N. Perkins, Assistant District Public Defender, for the appellant, Ricky E. Pullen. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and John W. Price, III, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant, Ricky E. Pullen, was indicted by a Rutherford County Grand Jury on one count of rape of a child and one count of aggravated sexual battery. After a jury trial, the defendant was convicted of aggravated sexual battery and acquitted of child rape. The trial court sentenced him as a violent offender to eight years in the Department of Correction. Only one issue is raised on appeal: whether the evidence was sufficient to convict the defendant of aggravated sexual battery. We conclude that the evidence was sufficient and affirm the conviction. http://www.tba.org/tba_files/TCCA/pullenrickye.wpd
TERRY DAVID STEPHENS v. STATE OF TENNESSEE Court:TCCA Attorneys: Jesse N.H. Bacon, Madison, Tennessee, for the appellant, Terry David Stephens. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Roger Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner was convicted in 1996 of aggravated rape and sentenced to confinement for twenty years as a Range I, standard offender. The conviction was affirmed on direct appeal and, subsequently, he filed a timely petition for post-conviction relief. The post-conviction court dismissed the petition following a hearing, and the petitioner timely appealed, alleging that trial counsel was ineffective for failing to convey settlement offers and to request jury instructions as to lesser-included offenses. The post-conviction court dismissed the petition following a hearing, and we affirm that dismissal. http://www.tba.org/tba_files/TCCA/stephensterrydavid.wpd
CHARJORAY P. WEIR v. STATE OF TENNESSEE Court:TCCA Attorneys: Brody N. Kane, Lebanon, Tennessee, for the appellant, Charjoray P. Weir. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; and Robert Hibbett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Petitioner was indicted for first degree murder. Pursuant to a plea agreement, he pled guilty to second degree murder, and received a sentence of fifteen years to serve in the Tennessee Department of Correction. The Petitioner then filed a petition for post-conviction relief, alleging that he was denied effective assistance of counsel resulting in an unknowing and involuntary guilty plea. The trial court dismissed the petition based on its untimely filing. However, our Court reversed that finding. The Petitioner filed an amended petition, and following an evidentiary hearing, the trial court denied the request for post-conviction relief. The Petitioner now appeals, arguing that the trial court erred by denying him post-conviction relief. Finding no error, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/weircp1.wpd
PATRICK WINGATE v. STATE OF TENNESSEE Court:TCCA Attorneys: James Patrick Wingate, pro se. Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General; William Michael McCown, District Attorney General; and Robert G. Crigler and Ann L. Filer, Assistant District Attorneys General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Patrick Wingate appeals the Bedford County Circuit Court's summary dismissal of his petition for post-conviction relief. He is serving sentences of life and 25 years in the Department of Correction as a result of his 1998 convictions of first-degree murder and arson. This court affirmed the convictions. See State v. Patrick Wingate, No. M1999-00624-CCA-R3-CD (Tenn. Crim. App., Nashville, May 25, 2000), perm. app. denied (Tenn. 2000). Wingate's post-conviction petition challenged (1) the effectiveness of his trial counsel's assistance and (2) the sufficiency of the convicting evidence. On April 30, 2001, the post-conviction court entered an order dismissing the petition on grounds that it contained mere conclusions of law and bare, unsupported factual allegations. Because we agree that the post-conviction petition was properly dismissed, we affirm. http://www.tba.org/tba_files/TCCA/wingatepatrick.wpd

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