Opinion FlashNovember 19, 2003
Volume 9 Number 212
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):
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Howard H. Vogel
GLORIA J. GUINN v. LUCIOUS T. GUINN Court:TCA Attorneys: Lucious T. Guinn, Jr., Germantown, TN, pro se James V. Ball, Memphis, TN, for Appellee Judge: HIGHERS First Paragraph: This is an appeal from a final divorce decree awarding Wife an absolute divorce on the ground of inappropriate marital conduct. This appeal comes to this Court without a record and only a statement of the evidence. For the following reasons, we affirm in part and remand for further findings consistent with this opinion. http://www.tba.org/tba_files/TCA/guinn.wpd
THE HARDISON LAW FIRM, P.C. v. CALVIN HOWELL Court:TCA Attorneys: Nicholas E. Bragorgos, Thomas F. Preston of Nashville For Appellant, Cross Appellee, Calvin Howell J. Houston Gordon, Covington, For Appellee, Cross Appellant, The Hardison Law Firm Judge: CRAWFORD First Paragraph: This appeal arises from the breach of a commercial lease. Appellant/Landlord breached lease by failing to provide around the clock security guard as required by the lease. After notice and time to cure, Appellee/Tenant vacated lease and moved its offices to a new building. Appellee/Tenant sued Appellant/Landlord for breach to recover moving expenses, relocation costs, increased rents, and attorneys fees. Appellee/Tenant was granted partial summary judgment on the issue of Appellant/Landlord's breach of the lease. After a separate hearing on damages, Appellee/Tenant was awarded judgment against Appellant/Landlord. Appellant/Landlord appeals both the grant of partial summary judgment and the award of damages. We affirm as modified herein. http://www.tba.org/tba_files/TCA/hardis.wpd
STACEY ANNE SCHMALHOFER v. BRYAN MICHAEL SCHMALHOFER Court:TCA Attorneys: Marc E. Reisman, Memphis, Tennessee, for the appellant, Bryan Michael Schmalhofer. Christopher L. Brown, Memphis, Tennessee, for the appellee, Stacey Anne Schmalhofer. Judge: KIRBY First Paragraph: This is a child custody case. The parties were married in 1995. At that time, both were in the military and lived in North Carolina. About a year later, the parties had a daughter, who is the subject of this dispute. The father left the military. In 1999, after the mother received military orders, the parties moved to the navy base in Millington, Tennessee. Within a few months, the parties separated, and the father moved back to his hometown in Pennsylvania. In 2001, both parties petitioned for divorce. At the trial, the only dispute was over custody of the parties' minor child. After a bench trial, the trial court granted custody to the mother, based in part on the benefit of the child remaining in the same surroundings, rather than moving to Pennsylvania with the father. The father filed this appeal. While the appeal was pending, the appellate court granted the father's motion to consider the post-judgment facts that the mother had remarried, her new husband is also in the military, and that she and her new husband want to accept orders to move to England with the child. In light of the post-judgment facts, we reverse the trial court's custody determination and award custody to the father. http://www.tba.org/tba_files/TCA/schmal.wpd
ANTONIO BONDS v. STATE OF TENNESSEE WITH DISSENTING OPINION Court:TCCA Attorneys: Antonio Bonds, Henning, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; and William L. Gibbons, District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The petitioner, Antonio Bonds, appeals the dismissal of his petition for post-conviction relief based upon its filing beyond the statute of limitations. He argues his petition was timely filed. We hold that for purposes of the post-conviction relief statute of limitations, the final action of the Tennessee Supreme Court is the date of its denial of an application for permission to appeal, not the date it denied the petition to rehear. Because the instant petition was filed more than one year from the date of denial of the application for permission to appeal, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/bondsa_opn.wpd
BILLY B. BROWN V. STATE OF TENNESSEE Court:TCCA Attorneys: Gray W. Bartlett, Memphis, Tennessee, for the appellant, Billy B. Brown. Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General; William L. Gibbons, District Attorney General; and Scot A. Bearup, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The petitioner appeals the denial of post-conviction relief. He argues the post-conviction court erred in determining he received the effective assistance of counsel at his trial. We affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/brownb.wpd
DEVON CRAWFORD v. STATE OF TENNESSEE Court:TCCA Attorneys: Charles W. Gilchrist, Jr., Memphis, Tennessee, for appellant, Devon Crawford. Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney General; William L. Gibbons, District Attorney General; and P. Thomas Hoover, Assistant District Attorney General, for appellee, State of Tennessee. Judge: SMITH First Paragraph: On August 19, 1999, the petitioner, Devon M. Crawford, filed a pro se petition for post-conviction relief from his convictions of aggravated robbery, especially aggravated robbery and first degree murder. Counsel was appointed and an evidentiary hearing was held. In this appeal, petitioner argues that the trial court erred in dismissing his petition for post-conviction relief. After a review of the record, we reverse and remand this case to the trial court for a decision on the merits of the post-conviction petition as it relates to indictments 97-02686 and 97-03493. http://www.tba.org/tba_files/TCCA/crawf.wpd
STATE OF TENNESSEE v. KEVIN D. GUFFEY Court:TCCA Attorneys: Bryan H. Hoss, Lee Davis, and David W. Wallace, Chattanooga, Tennessee, for the appellant, Kevin D. Guffey. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; William H. Cox, District Attorney General; and Mary Sullivan Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Kevin D. Guffey, pled guilty in the Hamilton County Criminal Court to driving under the influence (DUI), a Class A misdemeanor. The trial court sentenced the appellant to eleven months and twenty-nine days in the county workhouse, to be suspended after serving forty-eight hours, and imposed a fine in the amount of three hundred sixty dollars ($360). The trial court also suspended the appellant's driver's license for one year and ordered the appellant to attend "DUI school." Pursuant to the plea agreement, the appellant reserved the right to appeal a certified question of law challenging 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/guffeykd.wpd
STATE OF TENNESSEE v. TORRANCE MAURICE KNIGHT Court:TCCA Attorneys: David R. Barrow, Chattanooga, Tennessee, for the appellant, Torrance Maurice Knight. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Randall Eugene Nichols, District Attorney General; and Lila Statom, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant pled guilty to three counts of aggravated assault, two counts of solicitation of a minor, four counts of indecent exposure, and possession of a dangerous weapon. He agreed to an effective five-year sentence, with the manner of service to be determined by the trial court. The defendant contends that the trial court erred in denying him an alternative sentence. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/knighttm.wpd
STATE OF TENNESSEE v. CALVIN LYONS, SR. Court:TCCA Attorneys: Stephen P. Spracher, Jackson, Tennessee, for the appellant, Calvin Lyons, Sr. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Jerry Woodall, District Attorney General; and Jody Pickens, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Calvin Lyons, Sr., appeals as of right from the judgment of the trial court, which revoked the Defendant's probation and reinstated his original sentence. Finding no error, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/lyonsc.wpd
STATE OF TENNESSEE v. TERRANCE G. MOTLEY Court:TCCA Attorneys: Robert Wilson Jones, Shelby County Public Defender; Tony N. Brayton, Assistant Public Defender, Memphis, Tennessee, on appeal, for the Appellant, Terrance G. Motley. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Thomas E. Williams, III, Assistant Attorney General; William L. Gibbons, District Attorney General; and Jennifer Nichols and Amy Weirich, Assistant District Attorneys General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Terrance G. Motley, was convicted by a Shelby County jury of criminal attempt to commit first degree murder and being a felon in possession of a firearm. He was sentenced to an effective sentence of forty-four years in the Department of Correction. At trial, Motley waived his right to be represented by counsel and proceeded pro se. On appeal, Motley raises three issues for our review: (1) whether the trial court denied him his constitutional right to the assistance of counsel by failing to ascertain if his waiver was knowingly and intelligently given; (2) whether the trial court erred in failing to instruct the jury on the lesser included offense of criminal attempt to commit voluntary manslaughter; and (3) whether the evidence was sufficient to support the jury's verdict. After a review of the record, we conclude that issues (1) and (3) are without merit. With regard to issue (2), we conclude that failure to give an instruction on the lesser included offense of attempted voluntary manslaughter was error, but harmless. Accordingly, the judgments of conviction are affirmed. http://www.tba.org/tba_files/TCCA/motleyt.wpd
STATE OF TENNESSEE v. THOMAS ANTHONY TALLEY Court:TCCA Attorneys: Harold R. Gunn, Humboldt, Tennessee, for the appellant, Thomas Anthony Talley. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; Garry G. Brown, District Attorney General; and Jerald Campbell, Assistant District Attorney, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant was convicted of driving under the influence, fourth offense, and violation of the implied consent law. He contends on appeal that (1) there was no reasonable suspicion for the stop and (2) the evidence was insufficient because the officer used a non-standardized test. Crossing the yellow line on several occasions and almost hitting a trooper provided sufficient probable cause for the stop, and the evidence was sufficient to support the conviction. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/talleyta.wpd
ANDRE WILSON v. STATE OF TENNESSEE DISSENTING OPINION Court:TCCA Judge: HAYES First Paragraph: I am unable to join with the majority in affirming dismissal of the petition upon grounds that it was time-barred. http://www.tba.org/tba_files/TCCA/wilsonandre_dis.wpd
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