Opinion Flash

May 1, 2003
Volume 9 — Number 079

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):
01 New Opinion(s) from the Tennessee Supreme Court
01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
04 New Opinion(s) from the Tennessee Court of Appeals
06 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. HAROLD L. GREEN

Court:TSC

Attorneys:

James M. Webster, Oak Ridge, Tennessee, for the appellant, Harold L.
Green.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and  Elizabeth B. Marney, Assistant Attorney
General, for the appellee, State of Tennessee.

Judge: BIRCH

First Paragraph:

We granted Harold L. Green's application pursuant to Rule 11 of the
Tennessee Rules of Appellate Procedure to determine the duration of
the trial court's authority to entertain a motion to withdraw a guilty
plea.  On October 8, 1999, Green pleaded guilty to driving while under
the influence of an intoxicant and was, thereafter, sentenced by the
Criminal Court of Anderson County.  On November 5, 1999, Green filed a
motion to withdraw the previously entered guilty plea; the trial court
granted the motion.  The State appealed pursuant to Rule 10 of the
Tennessee Rules of Appellate Procedure.  After granting the State's
request for appeal, the Court of Criminal Appeals held that the trial
court was without jurisdiction to consider the motion to withdraw the
guilty plea.  We find that the trial court's jurisdiction to hear and
decide the motion to withdraw the guilty plea continued for thirty
days after the plea was entered.  Accordingly, we reinstate the
judgment of the trial court and remand the cause for any further
proceedings that may be appropriate.

http://www.tba.org/tba_files/TSC/greenharold.wpd
								
LARRY WHITE v. FEDERATED MUTUAL INSURANCE COMPANY Court:TSC - Workers Comp Panel Attorneys: Gordon C. Aulgur and David Brett Burrow, Nashville, Tennessee, attorneys for the appellant, Federated Mutual Insurance Company. Tracy White Moore, Columbia Tennessee, attorney for the appellee, Larry White. 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 suffered a 16 percent loss of his left arm and 28 percent loss to his right arm and entered judgment accordingly. The trial court further ordered the defendant to hold the plaintiff harmless for any subrogation claims against him for recovery of medical bills paid by an insurance company under a policy for health care owned by the plaintiff. The defendant says the evidence does not support a finding the plaintiff was injured in the course and scope of his employment with the defendant; the court erred in not finding the last injurious rule should apply; there is no showing the plaintiff suffered any vocational disability to his arms, and that the trial court erred by finding the defendant should hold the plaintiff harmless for any subrogation claims of a health insurance policy for payment made on behalf of the plaintiff for treatment of the carpal tunnel syndrome. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/whitelarry.wpd
KEITH AND WENDY DOWNEN, Individually and as Parents and Next of Kin of ADAM TROY DOWNEN, v. MICHAEL ANGELO TESTA and CAROL ANNE TESTA Court:TCA Attorneys: Robert E. Pryor, and Perry H. Windle, III, Knoxville, Tennessee, for Appellants. Edward U. Babb, Knoxville, Tennessee, for Appellees. Judge: FRANKS First Paragraph: Trial Court granted social hosts summary judgment on grounds that "consumption" of alcohol and not the furnishing was proximate cause of death, pursuant to Tenn. Code Ann. S 57-10-101. We affirm on that ground, but vacate in part as to voluntary assumption of duty. http://www.tba.org/tba_files/TCA/downenk.wpd
ALVIN FREEMAN v. TENNESSEE DEPARTMENT OF PROBATION AND PAROLE CORRECTED OPINION Court:TCA Attorneys: Alvin Freeman, Whiteville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter, and Shay B. Winebarger, Assistant Attorney General, for the appellee, Tennessee Board of Probation and Parole. Judge: KOCH First Paragraph: This appeal involves a dispute between a prisoner and the Tennessee Board of Probation and Parole. After the Board declined to parole him, the prisoner filed a pro se petition for common-law writ of certiorari in the Chancery Court for Davidson County seeking judicial review of the Board's action. The trial court, acting pursuant to Tenn. Code Ann. S 41-21-807 (Supp. 2002), ordered the prisoner to make a partial payment of the filing fee within thirty days and dismissed the petition for failure to prosecute when the prisoner failed to do so. The prisoner has appealed. We have determined that the trial court properly dismissed the prisoner's petition. http://www.tba.org/tba_files/TCA/freemanacorr.wpd
WILLARD EUGENE MALONE v. JUDY MAE BISHOP MALONE Court:TCA Attorneys: Michael May, Kingsport, for the Appellant, Willard Eugene Malone John P. Chiles, Kingsport, and Thomas F. Bloom, Nashville, for the Appellee, Judy Mae Bishop Malone Judge: GODDARD First Paragraph: In this post-divorce case, Willard Eugene Malone (Husband) filed a motion requesting the Trial Court to decrease or discontinue his alimony payments to Judy Mae Bishop Malone (Wife). The sole basis for the motion was Husband's allegation that Wife "is cohabiting with a third person . . .and is no longer in need of the alimony paid by [Husband]." Wife denied that a reduction or elimination of alimony was appropriate, alleging that the person who had lived with her did not provide her financial support or contribution, and that he no longer lived in her trailer at the time of her answer. Wife also alleged that she remained in need of the alimony payments. The Trial Court found no substantial material change in circumstances and ordered Husband to continue paying alimony in the amount of $1000 per month. Husband appeals. We affirm the judgment of the Trial Court. http://www.tba.org/tba_files/TCA/malonew.wpd
JEFF UTLEY v. TENNESSEE DEPARTMENT OF CORRECTION, et al. Court:TCA Attorneys: Jeff Utley, Henning, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; and Abigail Turner, Assistant Attorney General, for the appellees, Tennessee Department of Correction and Donal Campbell. Judge: KOCH First Paragraph: This appeal involves a dispute between a prisoner and the Department of Correction regarding his punishment for two unrelated disciplinary offenses. On both occasions, the Department extended the prisoner's release eligibility date in accordance with versions of Tenn. Dep't Corr. Policy Index No. 502.02 issued after he committed the crimes for which he was incarcerated. The prisoner filed a complaint in the Chancery Court for Davidson County asserting that the Department's application of the later version of the policy to him violated the Ex Post Facto Clause of the United States Constitution. The trial court granted the Department's Tenn. R. Civ. P. 12.02(6) motion, and the prisoner has appealed. We have determined that the prisoner's complaint fails to state a colorable ex post facto claim under either the federal or state constitution. Accordingly, we affirm the dismissal of the prisoner's complaint. http://www.tba.org/tba_files/TCA/utleyj1.wpd
STATE OF TENNESSEE v. LARRY D. ANDERSON Court:TCCA Attorneys: Gary F. Antrican, District Public Defender, and Julie K. Pillow, Assistant Public Defender, for the appellant, Larry D. Anderson. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and James Walter Freeland, Jr., and Tracey A. Brewer, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant was found guilty by a jury of first degree felony murder and especially aggravated burglary. He was sentenced to life plus twelve years, respectively, in the Department of Correction. The defendant contends that he was mentally incompetent to stand trial or to give a knowing, intelligent, and voluntary waiver of his Miranda rights and that his sentences were in error. We affirm the judgments from the trial court. http://www.tba.org/tba_files/TCCA/andersnl1.wpd
MANNY T. ANDERSON v. STATE OF TENNESSEE Court:TCCA Attorneys: Barry R. Tidwell, Nashville, Tennessee, for the appellant, Manny T. Anderson. Paul G. Summers, Attorney General and Reporter; Christine M. Lapps, 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 pled guilty to two counts of aggravated assault and one count of aggravated kidnapping on September 10, 1998, and was sentenced as a Range II, multiple offender to concurrent sentences of eight years at 35% for each count of aggravated assault and as a Range I, standard offender to eight years at 30% for the aggravated kidnapping charge, with the sentence suspended and the petitioner placed on eight-year probation. As a result of a probation violation, the trial court, on September 14, 2001, revoked probation and amended the judgments so that the sentence to be served for aggravated kidnapping was modified to eight years at 100%. Challenging the amendment, a pro se petition for post-conviction relief was filed on January 2, 2002, which was denied as being untimely. On appeal, the petitioner argues that, because the one-year statute of limitations began to run at the time of entry of the amended judgment for the kidnapping conviction, his post-conviction petition was timely. We agree and reverse the order of the post-conviction court dismissing the petition as untimely. http://www.tba.org/tba_files/TCCA/andersonmannyt.wpd
CLEOPHIS KING, III v. STATE OF TENNESSEE Court:TCCA Attorneys: Robert B. Gaia, Memphis, Tennessee, for the appellant, Cleophis King, III. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Thomas Hoover, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner appeals the denial of his petition for post-conviction relief, arguing that the post- conviction court erred in finding that his guilty pleas were knowing and voluntary and that he received the effective assistance of counsel. Following our review, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/kingc.wpd
STATE OF TENNESSEE v. DANYELLE DEWAIN PARKER Court:TCCA Attorneys: Dwight E. Scott, Nashville, Tennessee, for the appellant, Danyelle Dewain Parker. Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General; and Angelita Dalton, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The petitioner, Danyelle Dewain Parker, appeals the trial court's denial of post-conviction relief. The single issue presented for review is whether the petitioner was denied the effective assistance of counsel at trial. The judgment is affirmed. http://www.tba.org/tba_files/TCCA/parkerdd1.wpd
WILLIAM K. ROBISON v. STATE OF TENNESSEE Court:TCCA Attorneys: Jeff Preston Burks, Franklin, Tennessee, for the Appellant, William K. Robison. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Christine M. Lapps, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Michael J. Fahey, III, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, William K. Robison, appeals the denial of his petition for post-conviction relief by the Hickman County Circuit Court. Robison is currently serving an effective sentence of fifteen years as a result of his guilty pleas to aggravated assault, setting fire to personal property, escape and theft over $10,000. On appeal, Robinson argues the post-conviction court erred in finding that: (1) he received effective assistance of counsel and (2) his guilty pleas were knowingly and voluntarily entered. Finding no error, the judgment of the post-conviction court is affirmed. http://www.tba.org/tba_files/TCCA/robisonwilliamk.wpd
STATE OF TENNESSEE v. DWAYNE A. WILLIAMS Court:TCCA Attorneys: Robert Wilson Jones, District Public Defender; Karen Massey and Garland Ergueden, Assistant Public Defenders, for the appellant, Dwayne A. Williams. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; William L. Gibbons, District Attorney General; and Scot A. Bearup, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant was convicted by a jury of possession of more than 300 grams of cocaine with the intent to deliver. The trial court sentenced the defendant as a Range I standard offender to twenty years incarceration. The defendant contends the evidence is insufficient to sustain his conviction. We conclude the evidence is sufficient to sustain the defendant's conviction and affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/wilamsda.wpd

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