Opinion Flash

February 12, 2004
Volume 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):
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
01 New Opinion(s) from the Tennessee Court of Appeals
05 New Opinion(s) from the Tennessee Court of Criminal Appeals
05 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


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

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