Opinion Flash

April 7, 2004
Volume 10 — Number 067

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
08 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. ROBERT M. BASS

Court:TCCA

Attorneys:                          

William (Jake) Bradley Lockert, III, District Public Defender; Richard
Taylor, Jr., Assistant District Public Defender, Ashland City,
Tennessee, for the Appellant, Robert M. Bass.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Kim R. Helper, Assistant Attorney General; Dan
Mitchum Alsobrooks, District Attorney General; and Carey Thompson,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Robert M. Bass, appeals the sentencing decision of the
Stewart County Circuit Court following revocation of his community
corrections sentences.  The trial court's order provides that Bass is
to serve eighteen months in the county jail and, upon service of this
term, return to community corrections supervision for the balance of
his sentences.  Bass argues that the trial court is without authority
to impose a sentence in excess of one year's confinement in the jail. 
The State concedes error.  We agree and remand for further
proceedings.

http://www.tba.org/tba_files/TCCA/bassrobertm.wpd

STATE OF TENNESSEE v. RUSSELL K. BOWMAN

Court:TCCA

Attorneys:                          

H. Marshall Judd, Assistant Public Defender, for the appellant,
Russell K. Bowman.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III,
Assistant Attorney General; and Thomas Tansil, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant was convicted of driving under the influence, second
offense.  The trial court imposed a sentence of 11 months and 29 days,
to be served on probation after service of eighty days' incarceration.
 In this appeal of right, the defendant challenges the sufficiency of
the evidence.  The judgment is affirmed.

http://www.tba.org/tba_files/TCCA/bowmanrk.wpd

STATE OF TENNESSEE v. JEFFREY R. DICKENS

Court:TCCA

Attorneys:                          

John H. Norton, III, The Norton Law Firm, Shelbyville, TN  37162, for
the Appellant, Jeffrey R. Dickens.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Elizabeth T. Ryan, Assistant Attorney General;
William C. Whitesell, Jr., District Attorney General; and Jennings H.
Jones, Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

Following a bench trial, the Appellant, Jeffrey R. Dickens, was
convicted of criminal attempt to commit unlawful photographing in
violation of privacy as proscribed by Tennessee Code Annotated section
39-13-605 (2003), a class B misdemeanor.  He was sentenced to six
months in the Rutherford County Jail, which was suspended after
service of eight days periodic confinement.  On appeal, Dickens argues
that his conviction cannot stand because an attempt to commit a
violation of this section is not an indictable offense. 
Alternatively, he contends that the proof is insufficient to
constitute a "substantial step" toward the commission of the attempted
crime.  After review, the judgment of conviction is affirmed.

http://www.tba.org/tba_files/TCCA/dickensjeffreyr.wpd

JAMES GORDON FREEMAN v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Kathleen G. Morris, Nashville, Tennessee, for the appellant, James
Gordon Freeman.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; Victor S. Johnson III, District Attorney
General; and Dan Hamm, Assistant District Attorney General, for the
appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Petitioner, James Gordon Freeman, filed a pro se petition for
post-conviction relief, which was amended by appointed counsel. 
Following an evidentiary hearing, the trial court dismissed the
petition.  On appeal, Petitioner argues that the post-conviction court
erred in finding that Petitioner received effective assistance of
counsel at trial.  After a thorough review of the record, we affirm
the judgment of the post-conviction court.

http://www.tba.org/tba_files/TCCA/freemanjamesg.wpd

STATE OF TENNESSEE v. TERRY A. HAWKINS

Court:TCCA

Attorneys:                          

Frank Lannom, Lebanon, Tennessee, for the Appellant, Terry A. Hawkins.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; David H. Findley, Assistant Attorney General; Tom
P. Thompson, Jr., District Attorney General; and Jerry D. Hunt,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Terry A. Hawkins, presents for review a certified
question of law.  See Tenn. R. Crim. P. 37(b)(2)(i).  Hawkins pled
guilty to DUI, first offense, and was sentenced to eleven months,
twenty-nine days jail confinement, to be suspended after service of
forty-eight hours.  As a condition of her guilty plea, Hawkins
explicitly reserved a certified question of law challenging the denial
of her motion to suppress the results of a blood alcohol test
administered by a private hospital in the course of medical treatment.
The Appellant argues that the procedures utilized to obtain the
results of the test violated both her constitutional right to privacy
and due process.  On appeal, the State asserts that the question
presented is not dispositive and, thus, this court is without
jurisdiction to hear this appeal.  After review, we agree that the
certified question is not dispositive.  Accordingly, the appeal is
dismissed.

http://www.tba.org/tba_files/TCCA/hawkinsterrya.wpd

STATE OF TENNESSEE v. ROBERT DENNIS HEISINGER
CORRECTED OPINION WITH CORRECTION MEMO

Court:TCCA

Attorneys:                          

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Robert
Dennis Heisinger.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III,
Assistant Attorney General; John Carney, District Attorney General;
and C. Daniel Brollier, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The appellant, Robert Dennis Heisinger, was convicted by a jury of one
count of theft of property valued at $10,000 or more but less than
$60,000.  He was sentenced as a Range II offender to an eight-year
sentence in the Tennessee Department of Correction.  On appeal, he
challenges the length of his sentence and the failure of the trial
court to grant him alternative sentencing.  We affirm the judgment of
the trial court.

http://www.tba.org/tba_files/TCCA/heisingerrobert.wpd

CORRECTION MEMO
http://www.tba.org/tba_files/TCCA/heisingerrobert_memo.wpd

STATE OF TENNESSEE v. ANDRE EDWARD HICKS

Court:TCCA

Attorneys:                          

Ross E. Alderman, District Public Defender; Jeffrey A. DeVasher,
Assistant Public Defender (on appeal); and Joan A. Lawson and James
McNamara, Assistant Public Defenders (at trial), for the Appellant,
Andre Edward Hicks.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Kim R. Helper, Assistant Attorney General; Victor
S. (Torry) Johnson, III, District Attorney General; and Bret Gunn,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Andre Edward Hicks, was convicted after a trial by jury
of aggravated robbery and was sentenced as a persistent offender to
thirty years in the Department of Correction.  On appeal, Hicks raises
the following issues for our review:  (1)  whether the evidence was
sufficient to support the verdict and (2) whether his sentence was
proper.  After a review of the record, the judgment of the Davidson
County Criminal Court is affirmed.

http://www.tba.org/tba_files/TCCA/hicksandreedward.wpd

STATE OF TENNESSEE v. JOHN DAVID SMITH 

Court:TCCA

Attorneys:                          

Gary F. Antrican, District Public Defender (on appeal), and J. Thomas
Caldwell, Ripley, Tennessee (at hearing), for the appellant, John
David Smith.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; and Walter Freeland, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The defendant entered a guilty plea to possession of cocaine and
properly reserved a certified question of law relating to the
vehicular stop and subsequent seizure of the cocaine.  We affirm the
judgment of the trial court.

http://www.tba.org/tba_files/TCCA/smithjohndavid.wpd

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