Opinion Flash
February 26, 2003
Volume 9 — Number 034
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 |
| 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 |
| 12 |
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
DEBORAH GRIFFIN v. ACE USA
Court:TSC - Workers Comp Panel
Attorneys:
P. Allen Phillips, Jackson, Tennessee, for the appellant, Ace USA.
Jack Manhein, Jr., Jackson, Tennessee, for the appellee, Deborah
Griffin.
Judge: BYERS
First Paragraph:
This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann.S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law. The trial
court found the plaintiff had sustained a 40 percent permanent partial
impairment to her body as a whole as a result of an injury to her left
arm, which aggravated a previous impairment to her right arm. The
employer appeals the trial court's judgment. The employer contends
that the plaintiff's injury was to a scheduled member, not to the body
as a whole, and that the evidence did not preponderate in favor of the
amount of the trial court's award. We conclude that the plaintiff may
recover only for the injury to her left arm, a scheduled member, and
we modify the plaintiff's award to 50 percent permanent partial
disability to the left arm.
http://www.tba.org/tba_files/TSC_WCP/griffin.wpd
STEPHANIE MARIE STEPHENS v. BEKAERT STEEL WIRE CORPORATION
Court:TSC - Workers Comp Panel
Attorneys:
Paul C. Peel, Memphis, Tennessee, for the appellants, Bekaert Steel
Wire Corporation and Liberty Mutual Insurance Company.
Jeffrey A. Garrety and Joseph R. Taggart, Jackson, Tennessee, for the
appellee, Stephanie Marie Stephens.
Judge: BYERS
First Paragraph:
This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann.S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law. The trial
court found the plaintiff sustained an 80 percent permanent partial
disability to the body as a whole as a result of an industrial injury
while employed by the defendant. The defendant says the plaintiff
cannot recover because the plaintiff had a previous injury which was
aggravated by the accident, and further says the award is excessive.
The medical evidence, however, shows the plaintiff suffered a new and
distinct injury. Furthermore, we do not find the evidence
preponderates against the finding of the trial judge regarding the
amount of the award.
http://www.tba.org/tba_files/TSC_WCP/stephens.wpd
CATHY ANITA HARRIS ANDERTON v. GERALD DWAYNE ANDERTON
Court:TCA
Attorneys:
Stephen W. Pate, Murfreesboro, Tennessee, for the appellant, Gerald
Dwayne Anderton.
Daryl M. South, Murfreesboro, Tennessee, for the appellee, Cathy Anita
Harris Anderton.
Judge: KOCH
First Paragraph:
The trial court awarded rehabilitative alimony to wife who, in her
complaint, did not seek alimony but who testified at discovery that
she was indigent and needed financial assistance. Husband argues that
absent a pleaded request for alimony, the trial court was powerless to
award it. The trial court disagreed. We affirm. Husband's petition
alleging that wife was in criminal contempt for failing to allow
visitation with the child of the parties was dismissed, and husband
appeals. An acquittal of criminal contempt cannot be appealed.
http://www.tba.org/tba_files/TCA/andertoncah.wpd
STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. A.N.G. and
S.L.G.
Court:TCA
Attorneys:
Douglas L. Payne, Greeneville, Tennessee, for the Appellant A.N.G.
David L. Leonard, Greeneville, Tennessee, for the Appellant S.L.G.
Paul G. Summers, Attorney General and Reporter, and Douglas Earl
Dimond, Assistant Attorney General, Nashville, Tennessee, for the
Appellee State of Tennessee, Department of Children's Services.
Judge: SWINEY
First Paragraph:
The State of Tennessee, Department of Children's Services ("State" or
"DCS") obtained temporary custody of the three minor children of
A.N.G. ("Mother") and S.L.G. ("Father")(collectively referred to as
"Parents") after Parents' two year old son was found in a roadway near
their home. DCS later sought to terminate Parents' parental rights.
After a trial, the Juvenile Court determined there were sufficient
grounds to terminate Parents' parental rights and doing so was in the
best interests of the children. Parents appeal, claiming DCS failed
to prove by clear and convincing evidence that there were sufficient
grounds to terminate their parental rights. Parents also claim DCS
failed to prove by clear and convincing evidence that termination of
their parental rights would be in the best interests of the children.
We affirm the judgment of the Juvenile Court.
http://www.tba.org/tba_files/TCA/ang.wpd
QUENTIN CAVNAR v. STATE OF TENNESSEE
Court:TCA
Attorneys:
Quentin L. Cavnar, Madison, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Laura T. Kidwell, Assistant Attorney General,
for the appellee, State of Tennessee.
Judge: KOCH
First Paragraph:
This appeal involves the diagnosis and treatment of a person who was
briefly hospitalized at Middle Tennessee Mental Health Institute.
Following his release, the patient filed a claim with the Tennessee
Claims Commission asserting that he had been misdiagnosed and that the
staff had subjected him to mental abuse and torture. The Commission
dismissed the patient's complaint after he failed to file a timely
response to the State's Tenn. R. Civ. P. 12.02(6) motion to dismiss,
and the patient has appealed. We have determined that the Commission
properly dismissed the patient's claim, not only because of his tardy
response but also because the response fails to state a claim upon
which the Commission may grant relief.
http://www.tba.org/tba_files/TCA/cavnarq.wpd
THOMAS JOSEPH DOUGHERTY v. JOYCE ELAINE PARRY DOUGHERTY
Court:TCA
Attorneys:
Michael W. Edwards, Hendersonville, Tennessee, for the appellant,
Thomas Joseph Dougherty.
Louis W. Oliver, Hendersonville, Tennessee, for the appellee, Joyce
Elaine Parry Dougherty.
Judge: CANTRELL
First Paragraph:
A divorced father petitioned the court to transfer custody of his two
children from his former wife to himself. The trial court dismissed
the petition, finding that the father had not met the threshold
requirement for change of custody by proving a material change of
circumstances. We find that there has been such a change of
circumstances, and we remand this case to the trial court with
instructions to determine the best interest of the children.
http://www.tba.org/tba_files/TCA/doughertytj.wpd
E. MICHAEL HARRINGTON v. GRANT SMITH
Court:TCA
Attorneys:
Helen S. Rogers, Nashville, Tennessee, for the appellant, Grant Smith.
Kent B. Thomas and J. Christopher Anderson, Nashville, Tennessee, for
the appellee, E. Michael Harrington.
Judge: CAIN
First Paragraph:
Defendant appeals a grant of summary judgment against him on a
promissory note and an additional judgment against him for breach of
contract. We affirm the action of the trial court.
http://www.tba.org/tba_files/TCA/harringtonem.wpd
KENNETH HINTON v. THE ESTATE OF JOHN D. KNOWLES, JR.
Court:TCA
Attorneys:
Walter E. Grantham, II, Chattanooga, Tennessee, for Appellant.
Kevin B. Wilson, Chattanooga, Tennessee, for Appellee.
Judge: FRANKS
First Paragraph:
Estate appealed Trial Court's Judgment that plaintiff was the son of
decedent. We affirm.
http://www.tba.org/tba_files/TCA/hintonk.wpd
TAUNYA MARTIN v. APPEALS TRIBUNAL, TENNESSEE DEPARTMENT OF EMPLOYMENT
SECURITY
Court:TCA
Attorneys:
Taunya Martin, LaMesa, California, Pro Se.
Paul G. Summers, Attorney General and Reporter, and Douglas E. Dimond,
Assistant Attorney General, for the Tennessee Department of Employment
Security.
Judge: KOCH
First Paragraph:
This appeal involves a worker's attempts to obtain unemployment
compensation benefits. After the Department of Employment Security's
Board of Review upheld the denial of her claim, the employee filed a
pro se petition for writ of certiorari in the Chancery Court for
Davidson County seeking judicial review of the denial of her claim.
The Department moved to dismiss the petition because the employee had
failed to name all the parties required by Tenn. Code Ann. S 50-7-
304(i)(1) (Supp. 1998) (superseded 1999) and failed to state a claim
upon which relief could be granted. The trial court granted the
Department's motion and dismissed the petition. The employee has
appealed. While we concur that the employee's petition failed to name
all the required parties, we have determined that dismissing the
petition was not the proper remedy. We have also determined that the
employee's petition states, albeit inartfully, a ground upon which
relief could be granted. Accordingly, we vacate the dismissal of the
employee's petition.
http://www.tba.org/tba_files/TCA/martint.wpd
REBECCA MCMURRY v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON
COUNTY
Court:TCA
Attorneys:
Richard W. Mattson, Nashville, Tennessee, for the appellant, Rebecca
McMurry.
John L. Kennedy, Rita Roberts-Turner, Nashville, Tennessee, for the
appellee, Metropolitan Government of Nashville and Davidson County.
Judge: COTTRELL
First Paragraph:
This appeal is brought by an employee of the Metropolitan Government
of Nashville and Davidson County who slipped and fell while working
and, as a result, injured her knee. The employee brought suit
pursuant to the Tennessee Governmental Tort Liability Act to recover
damages for her lost earning capacity, pain and suffering, and
expenses. Prior to this suit, Metro paid the employee's medical
expenses and compensated her for the work that she missed during her
recovery. The trial judge awarded the employee $24,000, finding that
Metro was at fault, but that the employee's injury was merely the
exacerbation of a previous knee injury. The trial court also awarded
the employee $2,858.30 in discretionary costs, but disallowed a $900
charge for the trial preparation fee of the employee's expert. The
employee appeals the trial court's final order. We affirm the trial
court in all respects.
http://www.tba.org/tba_files/TCA/mcmurryr.wpd
MARK A. PERCY v. TENNESSEE DEPARTMENT OF CORRECTION
Court:TCA
Attorneys:
Mark A. Percy, Pikeville, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter, and Arthur Crownover,
II, for the appellee, Tennessee Department of Correction.
Judge: KOCH
First Paragraph:
This appeal involves a dispute between a multiple rapist and the
Tennessee Department of Correction regarding the prisoner's sentence
expiration date. The prisoner filed a petition for a declaratory
order in the Chancery Court for Davidson County asserting that the
Department had misclassified him and that he was eligible to be
released because his sentence had expired. The Department responded
with a motion for summary judgment supported by an affidavit of a
sentencing technician asserting that the prisoner had been correctly
classified and that his sentence had not expired. The trial court
granted the summary judgment and dismissed the petition. We find that
the trial court reached the correct result, and, therefore, we affirm
the judgment dismissing the prisoner's petition.
http://www.tba.org/tba_files/TCA/percyma.wpd
E. PAUL RECTOR v. ELIZABETH HALLIBURTON, et al.
Court:TCA
Attorneys:
Dan R. Alexander, Nashville, Tennessee, for the appellant, E. Paul
Rector.
C. Dewey Branstetter, Jr., Nashville, Tennessee, for the appellee,
Elizabeth Halliburton.
Eugene W. Ward and Laura Israel Smith, Nashville, Tennessee, for the
appellee, The Electric Power Board of Nashville and Davidson County,
Tennessee.
Judge: CANTRELL
First Paragraph:
The residence owned by Mrs. Halliburton had no access owing to highway
construction. She acquired a driveway easement from the adjoining
landowner, who later sold the property to Mr. Rector. An electric
service line extended across the front of Mr. Rector's property which
was relocated. Mr. Rector's efforts to purchase the Halliburton
property were unavailing, and he began a policy of harassment
presumably to acquire the property. He claimed, inter alia, that the
easement terminated because it was improperly maintained, and that
NES moved the service line without his permission and hence was guilty
of trespass. Mrs. Halliburton filed a counterclaim for damages,
charging Mr. Rector with trespass and outrageous conduct. Mr.
Rector's suit was dismissed, and the counterclaim of Mrs. Halliburton
was sustained. The dismissal of Mr. Rector's suit is affirmed; the
award of attorney fees to Mrs. Halliburton is reversed; the case is
remanded for a determination of the damages sustained by Mrs.
Halliburton, including punitive damages.
http://www.tba.org/tba_files/TCA/rectore.wpd
SMITH COUNTY, TENNESSEE v. DAVE ENOCH
Court:TCA
Attorneys:
Jacky O. Bellar, Carthage, Tennessee, for the appellant, Smith County,
Tennessee.
James B. Dance, Carthage, Tennessee, for the appellee, Dave Enoch.
Judge: KOCH
First Paragraph:
Smith County filed this action to enjoin the maintenance of an
automobile junkyard within one thousand (1,000) feet of a county road
pursuant to the authority of Private Acts. The defendant admitted his
violation of the Private Acts, but pleaded (1) the asserted lack of
standing of the County to file the action, and (2) the asserted
unconstitutionality of the Acts. The Chancellor sustained both
defenses. We reverse.
http://www.tba.org/tba_files/TCA/smithcounty.wpd
ROSE F. WARNICK v. CARTER COUNTY, TENNESSEE
Court:TCA
Attorneys:
Thomas E. Cowan, Jr., Elizabethton, Tennessee, for the appellant, Rose
F. Warnick.
Tausha M. Carmack and Patrick Ledford, Kingsport, Tennessee, for the
appellee, Carter County, Tennessee.
Judge: SUSANO
First Paragraph:
This is a negligence action filed by Rose F. Warnick against Carter
County ("the County") seeking damages for personal injuries arising
out of an automobile accident involving the plaintiff and Keith G.
Range ("Deputy Range"), a Carter County deputy sheriff, who, according
to the complaint, was "acting within the course and scope of his
authority as an agent, servant and employee of" the County at the time
of the accident. The County filed a motion to dismiss pursuant to
Tenn. R. Civ. P. 12.02(6). The trial court dismissed the plaintiff's
complaint, holding that it was not filed within one year of the
accident as required by the Governmental Tort Liability Act ("the
GTLA"). We affirm.
http://www.tba.org/tba_files/TCA/warnickrf1.wpd
STATE OF TENNESSEE v. RENNE EFREN ARELLANO
Court:TCCA
Attorneys:
William C. Barnes, Jr., Columbia, Tennessee, for the Appellant, Renne
Efren Arellano.
Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General; T.
Michael Bottoms, District Attorney General; and Joseph L. Penrod,
Assistant District Attorney General, for the Appellee, State of
Tennessee.
Judge: HAYES
First Paragraph:
The Appellant, Renne Efren Arellano, was indicted by a Maury County
grand jury for one count of aggravated arson, a class A felony, eight
counts of attempted first degree murder, class A felonies, and one
count of felony possession of a weapon, a class E felony. A
negotiated plea agreement allowed the Appellant to plead to one count
of arson, eight counts of aggravated assault, and one count of felony
possession of a weapon in exchange for an effective twelve-year
sentence. The manner of service of the twelve-year sentence was to be
determined by the trial court. Following a sentencing hearing, the
trial court ordered that the twelve-year sentence be served in the
Department of Correction. On appeal, Arellano contends that the trial
court erred in not sentencing him to any form of alternative
incarceration. However, plain error dictates that the convictions be
vacated and the case remanded for further proceedings because
aggravated assault is not a lesser included offense of attempted first
degree murder.
http://www.tba.org/tba_files/TCCA/arellanorennee.wpd
STATE OF TENNESSEE v. BOBBY EARL FERRELL, JR.
Court:TCCA
Attorneys:
Donna Leigh Hargrove, District Public Defender, and Andrew Jackson
Dearing, III, Assistant Public Defender, for the appellant, Bobby Earl
Ferrell, Jr.
Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; William Michael McCown, District Attorney
General; and Michael David Randles, Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: TIPTON
First Paragraph:
The defendant, Bobby Earl Ferrell, Jr., appeals as of right the
sentences imposed by the Bedford County Circuit Court following the
defendant's guilty pleas to aggravated burglary, a Class C felony, and
theft of property valued between $1,000 and $10,000, a Class D felony.
He contends that the trial court should not have ordered him to serve
his effective four-year sentence consecutively to a prior Rutherford
County sentence. We affirm the sentences imposed by the trial court.
http://www.tba.org/tba_files/TCCA/ferrellbobbyearl.wpd
DARRELL LAMAR FRITTS v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Darrell Lamar Fritts, Nashville, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; Victor S. (Torry) Johnson, III; and Pamela
Anderson, Assistant District Attorney General, for the appellee, State
of Tennessee.
Judge: MCGEE OGLE
First Paragraph:
The petitioner, Darrell Lamar Fritts, filed in the Davidson County
Criminal Court a petition for habeas corpus relief, alleging that the
plea bargain process employed by the State of Tennessee is
unconstitutional per se, thus rendering two of his convictions, which
resulted from guilty pleas, void. The trial court denied the petition
and the petitioner timely appealed. Upon review of the record and the
parties' briefs, we affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/frittsdl.wpd
STATE OF TENNESSEE v. WILMORE HATFIELD
Court:TCCA
Attorneys:
Onnie L. Winebarger, Byrdstown, Tennessee, for the Appellant, Wilmore
Hatfield.
Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Elizabeth B. Marney, Assistant Attorney General;
William Paul Phillips, District Attorney General; and Paul G.
Galloway, Jr., Assistant District Attorney General, for the Appellee,
State of Tennessee.
Judge: HAYES
First Paragraph:
The Appellant, Wilmore Hatfield, was indicted for attempted first
degree murder, aggravated assault, felony possession of a weapon, and
driving under the influence (DUI). Following a jury trial, Hatfield
was found guilty of felony reckless endangerment, as a lesser-included
offense of aggravated assault, and DUI. He was sentenced to
concurrent sentences of two years for the felony reckless endangerment
conviction and eleven months, twenty-nine days for the DUI conviction.
On appeal, Hatfield raises the following issues for our review: (1)
whether felony reckless endangerment is a lesser-included offense of
aggravated assault as charged in the indictment; (2) whether the trial
court's DUI instruction was proper; (3) whether the evidence was
sufficient to support the verdicts; and (4) whether his sentences were
excessive. We hold that felony reckless endangerment is not a
lesser-included offense of aggravated assault committed by
intentionally or knowingly causing bodily injury to another by use or
display of a deadly weapon. Therefore, the felony reckless
endangerment conviction must be reversed and remanded for a new trial
on the lesser charge of misdemeanor assault. Regarding Hatfield's DUI
conviction, we conclude that the trial court properly charged the jury
and the evidence was sufficient to support the verdict. However, we
find that the trial court erred by ordering Hatfield to serve his
entire eleven-month and twenty-nine-day sentence in the county jail.
Accordingly, his DUI conviction is affirmed; however, his sentence is
modified to reflect a sentence of eleven months and twenty-nine days,
with all time suspended except forty- eight hours to be served in the
county jail.
http://www.tba.org/tba_files/TCCA/hatfieldwilmore.wpd
STATE OF TENNESSEE v. TERRY WAYNE LUNA
Court:TCCA
Attorneys:
Aubrey Harper, McMinnville, Tennessee, for the appellant, Terry Wayne
Luna.
Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Dale Potter, District Attorney General,
for the appellee, State of Tennessee.
Judge: WELLES
First Paragraph:
The Defendant, Terry Wayne Luna, was convicted by a jury of aggravated
sexual battery. He was sentenced to twenty years in the Department of
Correction. In this direct appeal, he argues that the trial court
erred in overruling his motion for a mistrial because the Defendant
was unduly prejudiced by a non-responsive answer to a question asked
by defense counsel on cross-examination. We affirm the judgment of
the trial court.
http://www.tba.org/tba_files/TCCA/lunatw.wpd
STATE OF TENNESSEE v. KEVIN MARTIN
Court:TCCA
Attorneys:
Richard McGee and James O. Martin, III, Nashville, Tennessee, for the
appellant, Kevin Martin.
Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Ron Davis, District Attorney General; and
Mary Katherine White, Assistant District Attorney General, for the
appellee, State of Tennessee.
Judge: WELLES
First Paragraph:
The Defendant, Kevin Martin, pled guilty to one count of obtaining
prescription drugs by fraud, one count of possession of drug
paraphernalia, two counts of forgery, one count of telephone
harassment, one count of reckless endangerment, and one count of
assault. The negotiated plea agreement resulted in an effective
sentence of five years and six months. Pursuant to the agreement,
service of two of the years was suspended, and the manner of service
for the remaining three and one-half years was to be determined by the
trial court. Following a sentencing hearing, the trial court ordered
the Defendant to serve the sentences totaling three and one-half years
in confinement. It is from this order that the Defendant now appeals
as of right. We affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/martink.wpd
STATE OF TENNESSEE v. BILLY JOE PORTERFIELD
Court:TCCA
Attorneys:
Michael R. Jones, District Public Defender; Collier W. Goodlett,
Assistant Public Defender, Clarksville, Tennessee, for the Appellant,
Billy Joe Porterfield.
Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Helena Walton Yarbrough, Assistant Attorney
General; John Wesley Carney, Jr., District Attorney General; and Helen
Young, Assistant District Attorney General, for the Appellee, State of
Tennessee.
Judge: HAYES
First Paragraph:
The Appellant, Billy Joe Porterfield, was convicted by a Montgomery
County jury of aggravated burglary, especially aggravated kidnaping,
especially aggravated robbery, attempted first degree murder, and two
counts of aggravated rape, all arising from a single criminal episode.
As a result of these convictions, Porterfield received an effective
sentence of one-hundred-fifteen years imprisonment. On appeal,
Porterfield argues: (1) the evidence is insufficient to support his
convictions, and (2) the trial court erred in its application of
enhancement factors in determining the appropriate sentences. Finding
no merit to these issues, the judgment of the trial court is affirmed.
http://www.tba.org/tba_files/TCCA/porterfieldbillyj.wpd
STATE OF TENNESSEE v. BRADLEY RYAN WEBB
Court:TCCA
Attorneys:
William M. Leibrock, Newport, Tennessee, for the Appellee, Bradley
Ryan Webb.
Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Kathy D. Aslinger, Assistant Attorney General; Al
Schmutzer, Jr., District Attorney General; and Ronald C. Newcomb,
Assistant District Attorney General, for the Appellee, State of
Tennessee.
Judge: HAYES
First Paragraph:
The State appeals the ruling of the Cocke County Circuit Court
modifying the sentence of the Appellee, Bradley Ryan Webb, pursuant to
Rule 35, Tennessee Rules of Criminal Procedure. Under the terms of a
plea agreement, Webb received an effective six-year Department of
Correction (DOC) sentence, which stemmed from six theft convictions in
Cocke and Jefferson counties. The plea agreement provided that the
six-year DOC sentence would be served concurrently with a federal
sentence Webb was serving. Following a timely filed Rule 35 motion,
the trial court modified Webb's DOC sentences to "time served" and
ordered removal of the state detainer warrant lodged against Webb.
The trial court found that modification was necessary to effectuate
the intent of the plea agreement. The State argues that the trial
court's ruling was improper because Webb's sentences were imposed as a
result of an "agreed plea," and any post-sentencing developments
complained of by Webb were not unforeseen. After review, we conclude
that Webb's sentence was improperly modified. Accordingly, the
judgment of the trial court is reversed, and this case is remanded for
reinstatement of the judgments of conviction as originally entered.
http://www.tba.org/tba_files/TCCA/webbbradleyr.wpd
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