Opinion Flash

August 10, 2004
Volume 10 — Number 153

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
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


JEFF WILLARD v. GOLDEN GALLON-TN, LLC

Court:TCA

Attorneys:                          

Anita B. Hardeman and Kent Thomas Jones, Chattanooga, Tennessee, for
the Appellant, Jeff Willard.

Donna J. Gilluly and Rosemarie L. Bryan, Chattanooga, Tennessee, for
the Appellee, Golden Gallon- TN, LLC.

Judge: LEE

First Paragraph:

This is a retaliatory discharge case wherein the Plaintiff/employee
alleged that his employment was terminated,  inter alia, in violation
of the Family and Medical Leave Act and because he obeyed a lawful
subpoena.  The Trial Court granted the employer's motion for summary
judgment.  The employee  appealed.  We vacate the Trial Court's grant
of summary judgment because we have determined that (1) a claim for
retaliatory discharge in violation of Tennessee public policy lies in
cases where a substantial factor in an employer's decision to
terminate an employee is the fact that the employee honored a lawful
subpoena, (2) a genuine issue of material fact exists as to whether
the employee was terminated for honoring a lawful subpoena,  and (3) a
genuine issue of material fact exists as to whether the employee was
terminated in violation of the Family Medical and Leave Act. 
Accordingly, we vacate the judgment of the Trial Court and remand for
further proceedings consistent with this opinion.

http://www.tba.org/tba_files/TCA/willardjeff.wpd

DON ALLEN COLEMAN v. JACK MORGAN, WARDEN

Court:TCCA

Attorneys:                          

Don Allen Coleman, Appellant, Pro Se.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; and Ronald L. Davis, District Attorney
General, for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

Don Allen Coleman petitioned the Hickman County Circuit Court for
habeas corpus relief, contending that the two rape of a child
judgments against him impose illegal sentences.  We agree that the
sentences are illegal and we vacate them, thereby reviving the two
indictments and pleas for further proceedings.

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

STATE OF TENNESSEE v. CARL CREASON

Court:TCCA

Attorneys:                          

Edward L. Boring, Pikeville, Tennessee, for the appellant, Carl
Creason.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; J. Michael Taylor, District Attorney
General; and James W. Pope III, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

A jury found the Defendant, Carl Creason, guilty of driving on a
revoked driver's license.  After conducting a sentencing hearing, the
trial judge sentenced the Defendant to six months in the county jail. 
The Defendant appeals his sentence, arguing that the trial court erred
by not allowing him to serve his sentence on probation.  We affirm the
judgment of the trial court, but remand for entry of a uniform
judgment document.

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

ERIC T. DAVIS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Eric T. Davis, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; John Wesley Carney, Jr.,
District Attorney General; and Arthur F. Bieber, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

The petitioner, Eric T. Davis, pled guilty to robbery, and the trial
court sentenced him to six years probation.  The petitioner
subsequently pled guilty to possession of cocaine with the intent to
sell, and the trial court sentenced him to eight years probation, to
be served consecutively to his prior sentence.  The petitioner's
probation was revoked in both cases.  He appealed the trial court's
order revoking his probationary sentences, and this court affirmed the
revocation of his probation.  Thereafter, the petitioner filed a pro
se petition for post-conviction relief in which he alleged, among
other things, that he was denied effective assistance of counsel at
his probation revocation hearing.  The post-conviction court summarily
dismissed the petition, holding the petitioner failed to assert a
colorable claim for post-conviction relief.  After reviewing the
record and applicable law, we conclude that the post-conviction court
was correct in summarily dismissing the petition.  Accordingly, we
affirm the post-conviction court's judgment.

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

STATE OF TENNESSEE v. DAVID LAMAR HAYES

Court:TCCA

Attorneys:                          

Gerald L. Melton, District Public Defender (on appeal); and Gregory M.
Galloway, Nashville, Tennessee (at trial), for the appellant, David
Lamar Hayes.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; William C. Whitesell, Jr., District
Attorney General; and J. Paul Newman, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

A Rutherford County jury convicted the defendant of thirteen counts of
rape of a child and seven counts of rape, for which he received an
effective 220-year sentence.  He raises the following issues on
appeal: (1) whether the evidence is sufficient to sustain his
convictions; and (2) whether the trial court erred in imposing
sentence.  We affirm the convictions with the exception of one count
of rape, which count is reversed and dismissed.  We further reduce the
effective sentence and remand for entry of amended judgments
reflecting an effective sentence of sixty-six years.

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

STATE OF TENNESSEE v. STEFANIE M. HENSON

Court:TCCA

Attorneys:                          

Ross E. Alderman, District Public Defender; Jeffrey A. DeVasher,
Assistant Public Defender (on appeal); and Amy Dawn Harwell, Assistant
Public Defender (at trial), for the appellant, Stefanie M. Henson.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Bret Thomas Gunn, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Stefanie M. Henson, pled guilty in the Davidson County
Criminal Court to robbery, a Class C felony.  Pursuant to the plea
agreement, the defendant received a sentence of four years for the
offense, with the manner of service to be determined by the trial
court.  After a sentencing hearing, the trial court denied the
defendant's request for an alternative sentence and ordered that she
serve her sentence in the Department of Correction.  The defendant
appeals, claiming that the trial court erred by ordering that she
serve her sentence in confinement.  We affirm the judgment of the
trial court.

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

STATE OF TENNESSEE v. DONNIE LOMAX
WITH CONCURRING IN PART AND DISSENTING IN PART OPINION

Court:TCCA

Attorneys:                          

Jack L. Garton, Dickson, Tennessee, for the appellant, Donnie Lomax.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; Dan Mitchum Alsobrooks, District Attorney
General; and Carey J. Thompson, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant, after entry of a plea of guilty, appeals from the
imposition of consecutive sentences, the denial of alternative
sentencing, and the requiring of restitution to be paid to an entity
not named as a victim in the indictment.  Upon careful review, we
affirm the respective sentences and the denial of alternative
sentencing, but reverse the imposition of consecutive sentencing.  The
cause is remanded for additional hearing for determination of
Automotive Financing Corporation's victim status and if so
established, the amount of restitution.  We further direct that the
recipient of the restitution for sales tax and clerk fees be changed
from the State of Tennessee to the individuals named in the
indictments who paid the sales tax and clerk fees.

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

CONCURRING/DISSENTING OPINION
http://www.tba.org/tba_files/TCCA/lomaxd_con.wpd

STATE OF TENNESSEE  v.  MICHAEL A. PRECHTEL 

Court:TCCA

Attorneys:                          

David Neal Brady, District Public Defender; and Joe L. Finley, Jr.,
Assistant Public Defender, for the appellant, Michael A. Prechtel.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; William Edward Gibson, District Attorney
General; Kevin D. Poore, Assistant District Attorney General, for the
appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, Michael A. Prechtel, appeals the trial court's revocation
of probation.  On September 6, 2001, Defendant pled guilty in the
Cumberland County General Sessions Court to possession of drug
paraphernalia and was sentenced to serve 11 months and 29 days with
all but two days suspended and placed on supervised probation. 
Following three separate probation revocation proceedings in the
general sessions court, Defendant's probation was revoked and he was
ordered to serve his sentence in the Cumberland County jail. 
Defendant appealed to the Cumberland County Criminal Court.  Following
a de novo hearing, the criminal court affirmed the general sessions
court's decision to revoke Defendant's probation and ordered him to
serve 11 months and 29 days in confinement.  We affirm the judgment of
the Cumberland County Criminal Court.

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

GARY LYNN VERNON, PRO SE v. JIM DICKMAN, WARDEN & STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Gary Lynn Vernon, pro se.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney,
Assistant Attorney General, for the appellee, State of  Tennessee.

Judge: SMITH

First Paragraph:

The Petitioner, Garry Lynn Vernon, appeals the trial court's denial of
his petition for habeas corpus relief.  The State has filed a motion
requesting that this Court affirm the trial court's denial of relief
pursuant to Rule 20, Rules of the Court of Criminal Appeals.  The
Petitioner fails to assert a cognizable claim for which habeas corpus
relief may be granted.  Accordingly, the State's motion is granted and
the judgment of the trial court is affirmed.

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

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