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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