Opinion Flash
March 19, 2003
Volume 9 — Number 049
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 |
| 00 |
New Opinion(s) from the Tennessee Court of Appeals |
| 09 |
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. RICHARD D. BATEY
Court:TCCA
Attorneys:
James O. Martin, III, Nashville, Tennessee, for the appellant, Richard
D. Batey.
Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; Victor S. (Torry) Johnson, III,
District Attorney General; and Jon P. Seaborg, Assistant District
Attorney General, for the appellee, State of Tennessee.
Judge: MCGEE OGLE
First Paragraph:
The appellant, Richard D. Batey, pled guilty in the Davidson County
Criminal Court to one count of possession of more than .5 grams of a
substance containing cocaine with intent to sell, a Class B felony.
The trial court sentenced the appellant to eight years split
confinement, with one year to be served in confinement and the
remaining seven years to be served in the community corrections
program. Pursuant to the plea agreement, the appellant reserved the
right to appeal as a certified question of law the trial court's
denial of his motion to suppress. Upon review of the record and the
parties' briefs, we affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/bateyrd.wpd
DELBERT LEE HARRIS v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Douglas A. Trant, Knoxville, Tennessee, for the
appellant/cross-appellee, Delbert Lee Harris.
Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; Dan Mitchum Alsobrooks, District Attorney
General; and Kim G. Menke, Assistant District Attorney General, for
the appellee/cross-appellant, State of Tennessee.
Judge: MCGEE OGLE
First Paragraph:
The petitioner, Delbert Lee Harris, was convicted in the Dickson
County Circuit Court of aggravated assault, rape, rape of a child, and
attempted sexual battery. The petitioner was ultimately sentenced to
an effective sentence of thirty-two years incarceration in the
Tennessee Department of Correction. Subsequently, the petitioner
filed a petition for post-conviction relief, complaining that he
received the ineffective assistance of counsel and that several errors
occurred during trial. The post- conviction court partially granted
the petition and dismissed the remainder of the petitioner's issues.
The petitioner and the State timely appealed. Upon review of the
record and the parties' briefs, the judgment of the post-conviction
court is affirmed in all respects except for the dismissal of the rape
conviction.
http://www.tba.org/tba_files/TCCA/harrisdl1.wpd
STATE OF TENNESSEE v. PHETSAMAY INTHAVONG
Court:TCCA
Attorneys:
James G. King, Nashville, Tennessee, for the appellant, Phetsamay
Inthavong.
Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; Tom P. Thompson, Jr., District Attorney
General; and Robert N. Hibbett and Jerry D. Hunt, Assistant District
Attorneys General, for the appellee, State of Tennessee.
Judge: GLENN
First Paragraph:
In this interlocutory appeal, the defendant challenges the trial
court's upholding of the district attorney general's denial of her
application for pretrial diversion. She argues that the district
attorney general erred in not considering all required factors in the
diversion denial and the trial court erred in taking testimony, upon
which it relied in upholding the denial of diversion. Based upon our
review, we reverse the order of the trial court denying pretrial
diversion and remand for a reconsideration by the district attorney
general of the defendant's diversion application.
http://www.tba.org/tba_files/TCCA/inthavong.wpd
STATE OF TENNESSEE v. EDWIN NELSON LUNCEFORD
Court:TCCA
Attorneys:
Roger E. Nell, District Public Defender, Clarksville, Tennessee, for
the appellant, Edwin N. Lunceford.
Paul G. Summers, Attorney General; Kathy D. Aslinger, Assistant
Attorney General; John W. Carney, Jr., District Attorney General; and
Lance A. Baker, Assistant District Attorney General, for the appellee,
State of Tennessee.
Judge: WEDEMEYER
First Paragraph:
A Montgomery County jury convicted the Defendant of robbery, and the
trial court sentenced him to ten years' incarceration. In this appeal
as of right, the Defendant argues (1) that the trial court erred in
instructing the jury by failing to limit the definition of "property"
in its instruction to the jury; (2) that the trial court erred by
admitting into evidence at the sentencing hearing a transcript of a
prior trial; and (3) that his sentence is excessive. Finding no error
by the trial court, we affirm the judgment of the lower court.
http://www.tba.org/tba_files/TCCA/lunceforden.wpd
STATE OF TENNESSEE v. JOHN WINSTON McMURRY
Court:TCCA
Attorneys:
David R. Howard, Gallatin, Tennessee, for the appellant, John Winston
McMurry.
Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Lawrence Ray Whitley, District Attorney
General; and Dee Gay, Assistant District Attorney General, for the
appellee, State of Tennessee.
Judge: WILLIAMS
First Paragraph:
The defendant's probation was revoked after his house was searched and
a twelve-gauge shotgun was found inside. The defendant contends there
was insufficient evidence to revoke his probation. The defendant
contends the rules of probation and a police report were improperly
admitted into evidence. Because the trial court is only required to
find a violation of probation by a preponderance of the evidence, we
affirm the trial court's revocation of probation.
http://www.tba.org/tba_files/TCCA/mcmurryjw.wpd
STATE OF TENNESSEE v. TIMOTHY M. ROBERTS
Court:TCCA
Attorneys:
Michael A. Colavecchio (on appeal) and Ron Munkeboe, Jr. (at hearing),
Nashville, Tennessee, for the appellant, Timothy M. Roberts.
Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Derrick L. Scretchen, Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: RILEY
First Paragraph:
The defendant originally pled guilty pursuant to a plea agreement to
various theft and forgery offenses as a Range II multiple offender for
an effective six-year sentence, most of which would be served on
community corrections. At the time of the plea, he agreed his
sentence would be increased to ten years if he violated the community
corrections program. He was subsequently revoked and ordered to serve
an effective ten-year sentence in the Department of Correction. On
appeal, he contends the trial court failed to make sentencing findings
and imposed illegal sentences above the authorized Range II
punishment. We agree and, therefore, reverse and remand for a new
sentencing hearing.
http://www.tba.org/tba_files/TCCA/robertstimothy.wpd
GLENN A. SADDLER v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Harry A. Christensen and Henry Clay Barry, Lebanon, Tennessee, for the
appellant, Glenn A. Saddler.
Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Tom P. Thompson, Jr., District Attorney
General; and Robert N. Hibbett, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: GLENN
First Paragraph:
The petitioner was convicted of second degree murder and sentenced to
imprisonment for twenty- five years as a Range I offender. Following
an evidentiary hearing and the dismissal of his petition for
post-conviction relief, the petitioner argues on appeal that
prosecutorial misconduct and ineffective assistance at his trial merit
a new trial. We affirm the post-conviction court's dismissal of the
petition.
http://www.tba.org/tba_files/TCCA/saddlerglenna.wpd
STATE OF TENNESSEE v. DARRELL W. SMITH
Court:TCCA
Attorneys:
Jerre M. Hood, Winchester, Tennessee, for the appellant, Darrell W.
Smith.
Paul G. Summers, Attorney General and Reporter; Christine M. Lapps,
Assistant Attorney General; J. Michael Taylor, District Attorney
General; and Steven Blount, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: MCGEE OGLE
First Paragraph:
The appellant, Darrell W. Smith, pled guilty in the Franklin County
Circuit Court to evading arrest and operating a motor vehicle in
violation of the Motor Vehicle Habitual Offenders Act, both Class E
felonies. The parties agreed that the appellant would be sentenced on
each conviction to one year and one day with the sentences to be
served consecutively. The manner of service of the sentences was to
be determined by the trial court. Following a sentencing hearing, the
trial court ordered the appellant to serve 120 days in the county
jail, with the balance of the sentences to be served in the community
corrections program. On appeal, the appellant challenges the period
of confinement. After reviewing the record and the parties' briefs,
we affirm the judgments of the trial court.
http://www.tba.org/tba_files/TCCA/smithdw1.wpd
DARRELL WENTZEL v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Darrell Wentzel, Only, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; and Ronald L. Davis, District Attorney
General, for the appellee, State of Tennessee. Judge: WILLIAMS
First Paragraph:
On December 6, 1996, the petitioner was convicted of armed robbery,
aggravated burglary, and aggravated kidnaping. On direct appeal,
those convictions were affirmed. The Tennessee Supreme Court denied
permission to appeal on May 10, 1999. On June 21, 2001, the
petitioner filed, pro se, a document titled "motion for extraordinary
relief." The trial court dismissed the motion, characterizing it as a
petition for post-conviction relief, and barred by the one-year
statute of limitations. We affirm the dismissal from the trial court.
http://www.tba.org/tba_files/TCCA/wentzeld.wpd
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