Opinion FlashAugust 10, 2004Volume 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):
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 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 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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