Opinion FlashFebruary 12, 2004Volume 10 — Number 029 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):
TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.mgi. Here's how you can obtain full-text version. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Howard H. Vogel MORGAN SUSANNE FOXX v. STEVEN C. BOLDEN Court:TCA Attorneys: John M. Foley, Knoxville, Tennessee, for the Appellant Morgan Susanne Foxx. Martha Meares and Laura Jane Webb, Maryville, Tennessee, for the Appellee Steven C. Bolden Judge: SWINEY First Paragraph: Morgan Susanne Foxx ("Wife") sued Steven C. Bolden ("Husband") for a divorce. After a lengthy trial, the Trial Court granted the parties a divorce, divided the marital property, and awarded Husband $25,000 in attorney fees. Wife appeals claiming, among other things, that the Trial Court erred when it failed to classify any of Husband's TVA funded retirement pension as marital property and equitably distribute it. Wife also claims the award of attorney fees to Husband was an abuse of discretion. We agree with Wife regarding the pension and, therefore, vacate the judgment as to the marital property division and remand this case to the Trial Court to determine how much of Husband's TVA funded retirement pension is marital property and to make an equitable distribution of all the marital property, including this additional asset. We likewise vacate the award of attorney fees to Husband since the propriety of that award may be affected by the marital property distribution. We affirm the granting of the divorce. http://www.tba.org/tba_files/TCA/foxxm.wpd JOSEPH BROWN v. STATE OF TENNESSEE Court:TCCA Attorneys: Joseph Brown, Hardeman County Correctional Facility, Whiteville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Reginald Henderson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner, Joseph Brown, appeals pro se the denial of his petition for post-conviction relief from his convictions for facilitation of first degree murder and two counts of especially aggravated kidnapping. He argues that the trial court's failure to advise him of his constitutional right against self-incrimination voids his guilty pleas and that the court's failure to provide him with a transcript of the post-conviction hearing violated his constitutional rights. Additionally, he argues that the record does not reflect that counsel who represented him at the post-conviction hearing was relieved from continuing to represent him on appeal, and that he is entitled to counsel in his appeal to this court. We agree that the petitioner is entitled to be represented by counsel in the first tier appeal of the denial of his post-conviction petition and, accordingly, dismiss the appeal and remand to the post-conviction court with instructions to reenter its findings of fact and conclusions of law, with the petitioner's time for appeal to start at the date of reentry, and the petitioner to be represented by counsel on appeal. http://www.tba.org/tba_files/TCCA/brownjoseph.wpd JACOB LEE DAVIS v. STATE OF TENNESSEE Court:TCCA Attorneys: William C. Barnes, Jr., Columbia, Tennessee, for the appellant, Jacob Lee Davis. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; W. Michael McCown, District Attorney General; and Ann L. Filer, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Petitioner, Jacob Lee Davis, filed a pro se petition for post-conviction relief and was appointed counsel to assist him during the post-conviction hearing. Following the evidentiary hearing, the trial court dismissed Petitioner's petition for post-conviction relief. On appeal, Petitioner argues that his trial counsel rendered ineffective assistance of counsel because they (1) failed to properly conduct voir dire or preserve for appeal the issues concerning the selection of jurors; (2) failed to pursue meaningful plea negotiations; and (3) failed to adequately apprize Petitioner of his right to testify. After a thorough review of the record, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/davisjacoblee.wpd STATE OF TENNESSEE v. ERNEST G. MURPHY Court:TCCA Attorneys: David Neal Brady, District Public Defender, and John Byers Nisbett, III, Assistant Public Defender, for the appellant, Ernest G. Murphy. Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General; William Edward Gibson, District Attorney General; William M. Locke, Assistant District Attorney, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Ernest G. Murphy, pled guilty in the DeKalb County Circuit Court to vehicular assault, a Class D felony; driving under the influence (DUI), fourth offense, a Class E felony; driving on a revoked license, third offense, a Class A misdemeanor; and leaving the scene of an accident, a Class A misdemeanor. The trial court was to determine the length and manner of service of the sentences. After a sentencing hearing, the trial court merged the defendant's vehicular assault and DUI convictions and sentenced him as a Range I, standard offender to three years, nine months. For each misdemeanor conviction, the trial court sentenced the defendant to eleven months, twenty- nine days and ordered that all of the sentences be served consecutively. The trial court also ordered that the defendant serve four and one-half years in confinement and the remainder of his sentences on probation. The defendant appeals, claiming that the trial court erred by ordering consecutive sentences and by denying full probation. Although we determine that consecutive sentencing and denial of full probation are justified, we conclude that the sentences stated at the sentencing hearing and the sentences reflected in the judgments of conviction are dissimilar. The judgments of the trial court are reversed, and the case is remanded for resentencing pursuant to law. http://www.tba.org/tba_files/TCCA/murphyernestg.wpd STATE OF TENNESSEE v. DYWAND CARLOS PETTWAY CORRECTED OPINION Court:TCCA Attorneys: Donna Leigh Hargrove, District Public Defender, and Curtis H. Gann, Assistant Public Defender (on appeal) and Andrew Jackson Dearing, III, Assistant Public Defender (at trial), for the appellant, Dywand Carlos Pettway. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; William Michael McCown, District Attorney General; and Michael David Randles and Ann L. Filer, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: A Bedford County Circuit Court jury convicted the defendant, Dywand Carlos Pettway, of aggravated robbery, a Class B felony, and possession of a Schedule II controlled substance, a Class A misdemeanor. The trial court sentenced him as a Range II offender to twenty years in the Department of Correction for the aggravated robbery conviction and eleven months, twenty-nine days for the possession of a Schedule II controlled substance conviction, to be served consecutively. In this appeal, the defendant claims (1) that the evidence is insufficient to support his aggravated robbery conviction and (2) that his sentences are excessive. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/pettwaydywandcarlos_opn.wpd CORRECTION MEMO http://www.tba.org/tba_files/TCCA/pettwaydywandcarlos_cor.wpd STATE OF TENNESSEE v. DANIEL L. ROBINSON Court:TCCA Attorneys: Michael J. Flanagan, Nashville, Tennessee, for the appellant, Daniel L. Robinson. Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Amy Eisenbeck, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Daniel L. Robinson, entered guilty pleas on December 19, 2001, to the offenses of felony possession of less than .5 grams of cocaine, in case 2000-C-1609, and attempted possession of cocaine with intent to sell, in case 2000-C-902. Defendant was sentenced to five years probation for each conviction, to be served consecutively for a total effective sentence of ten years probation. On January 10, 2003, a probation violation warrant was issued against Defendant, alleging that he had violated the terms and conditions of his probation based on a new arrest for homicide. Following an evidentiary hearing, the trial court found that Defendant had violated the terms and conditions of his probation and ordered that Defendant's original sentences be placed into effect. After a review of the record, we conclude that the trial court erred in ordering revocation. Accordingly, we reverse the judgment of the trial court and dismiss the probation violation warrant. http://www.tba.org/tba_files/TCCA/robinsondaniell.wpd Beer Permits - Distance Requirement Date: February 3, 2004 Opinion Number: 04-012 http://www.tba.org/tba_files/AG/2004/op12.pdf DUI as a lesser-included offense of child endangerment and consecutive sentencing for DUI and child endangerment. Date: February 5, 2004 Opinion Number: 04-013 http://www.tba.org/tba_files/AG/2004/op13.pdf Responsibility for Maintenance of Reelfoot Running Bayou Date: February 5, 2004 Opinion Number: 04-014 http://www.tba.org/tba_files/AG/2004/op14.pdf Compensation of Members of County Legislative Body During Term of Office Date: February 5, 2004 Opinion Number: 04-015 http://www.tba.org/tba_files/AG/2004/op15.pdf Conflict of Interest: Sale of County Commissioner's Property Date: February 5, 2004 Opinion Number: 04-016 http://www.tba.org/tba_files/AG/2004/op16.pdf PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! SUBSCRIBE TO OPINION FLASH! UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi Home • Contact Us • PageFinder • What's New • Help |
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