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TODAY'S OPINIONS: Friday, September 23, 2005
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.

00 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
02 - TN Court of Appeals
07 - TN Court of Criminal Appeals
01 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

EDWARD GAYLAND BELCHER v. GEORGIA HAMMOND BELCHER

Court: TCA

Attorneys:

Clinton R. Anderson, Morristown, Tennessee, for the Appellant, Georgia Hammond Belcher.

Creed A. Daniel, Rutledge, Tennessee, for the Appellee, Edward Gayland Belcher.

Judge: LEE

The issue in this post-divorce case is whether there was an accord and satisfaction of a judgment awarded pursuant to a marital dissolution agreement. Georgia Hammond Belcher filed a petition to enforce the partiesā marital dissolution agreement, and to hold her former husband, Edward Gayland Belcher, in contempt for failing to comply with its terms. Mr. Belcher responded that the parties had reached an accord and satisfaction whereby they orally agreed that Mr. Belcher would not pay Ms. Belcher the $10,000 he owed her under the marital dissolution agreement, in return for Mr. Belcher allowing Ms. Belcher to move back into the marital residence and paying her living expenses in their attempt to reconcile. The parties subsequently lived together for approximately 21⁄2 years, during which time Mr. Belcher paid, among other things, Ms. Belcherās living expenses. After the reconciliation attempt failed, Ms. Belcher filed her motion for contempt and to enforce the marital dissolution agreement. The chancellor ruled that Mr. Belcher proved an accord and satisfaction between the parties, and dismissed Ms. Belcherās petition. Finding that the evidence does not preponderate against the Chancellorās decision, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCA/2005/belche92305.pdf


IN RE: ESTATE OF WAYNE DOYLE BENNETT

Court: TCA

Attorneys:

Nicholas D. Bunstine, Knoxville, Tennessee, for the Appellant Angela Clabough.

A. Thomas Monceret, Knoxville, Tennessee, for the Appellee Paula Dalton.

Judge: SWINEY

Angela Clabough filed a claim against the estate of Wayne Doyle Bennett, claiming she was his illegitimate daughter. The administratrix of the estate filed an exception to the claim arguing, among other things, that the claim was time barred. After a hearing, the Clerk and Master filed a report recommending to the Chancery Court that the claim be disallowed because it was filed untimely. An exception to the Masterās Report was filed and after a hearing before the Chancery Court, the Chancellor agreed with the recommendation of the Clerk and Master and dismissed the claim as being untimely. We affirm.

http://www.tba.org/tba_files/TCA/2005/bennettw92305.pdf


STATE OF TENNESSEE v. HEZZIE BONDS

Court: TCCA

Attorneys:

Paul B. Conley, III, Humboldt, Tennessee, for the appellant, Hezzie Bonds.

Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General; and Garry Brown, District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

This is a direct appeal as of right from a jury conviction of aggravated rape and criminal exposure of another to HIV. The trial court sentenced the Defendant to consecutive terms of twenty-five years and six years, for an effective sentence of thirty-one years. On appeal, the Defendant raises only one issue: there is insufficient evidence to find him guilty of the two offenses for which he was convicted. We affirm the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/2005/bondsh92305.pdf


STATE OF TENNESSEE v. MIKE EDWARDS

Court: TCCA

Attorneys:

Anthony L. Clark, Paris, Tennessee, for the appellant, Mike Edwards.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; G. Robert Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant was convicted of aggravated robbery, a Class B felony. The trial court sentenced Defendant as a Range II, multiple offender to seventeen years in the Tennessee Department of Correction. Defendant does not challenge the length of his sentence. In this appeal, Defendant argues (1) that the evidence was insufficient to support his conviction of aggravated robbery; (2) that the indictment fails to state an offense; and (3) that the State failed to prove beyond a reasonable doubt that the charged offense occurred prior to the return of the indictment. After a thorough review of the record, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/edwardsm92305.pdf


MAURICE GARRETT v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Rebecca S. Mills, Ripley, Tennessee, for the Appellant, Maurice Garrett.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Tracey A. Brewer Walker, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Maurice Garrett, appeals the Lauderdale County Circuit Courtās denial of his petition for post-conviction relief. On appeal, Garrett argues that he was denied his Sixth Amendment right to the effective assistance of counsel. After a review of the record, we affirm the denial of postconviction relief.

http://www.tba.org/tba_files/TCCA/2005/garrettm92305.pdf


STATE OF TENNESSEE v. JAMES ROWE HUDSON

Court: TCCA

Attorneys:

Benjamin S. Dempsey, Huntingdon, Tennessee, for the appellant, James Rowe Hudson.

Paul G. Summers, Attorney General & Reporter; Rachel E. Willis, Assistant Attorney General; and Steven L. Garrett (Henry County), Eleanor Cahill (Carroll County), and Steven Jackson (Carroll County), Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WADE

The defendant, James Rowe Hudson, was declared a Motor Vehicle Habitual Offender in Carroll County by default judgment. Several weeks later, he was charged in Henry County with driving while a Motor Vehicle Habitual Offender, a Class E felony. See Tenn. Code Ann. ¤ 55-10-616(a). The defendant then filed a motion pursuant to Rule 60 of the Tennessee Rules of Civil Procedure in Carroll County to set aside the original order. The motion was denied. Ultimately, the defendant was convicted in Henry County and received a Range I, two-year sentence. In this appeal of right, the following issues have been presented for our review: (1) whether the trial court of Carroll County properly denied the motion to set aside the order declaring the defendant to be a Motor Vehicle Habitual Offender; (2) whether the evidence was sufficient to support the conviction in Henry County for violation of the Motor Vehicle Habitual Offenders Act; and (3) whether the trial court of Henry County imposed an excessive sentence. The judgment of the Carroll County Circuit Court denying the defendant's motion to set aside the order declaring him to be a Habitual Motor Vehicle Offender is reversed and the order is set aside. Because the conviction in Henry County is based upon the Carroll County order, the conviction must be reversed and the charge dismissed.

http://www.tba.org/tba_files/TCCA/2005/hudsonj92305.pdf


STATE OF TENNESSEE v. JERMAINE NELSON

Court: TCCA

Attorneys:

Robert Wilson Jones, District Public Defender; Tony N. Brayton, Assistant Public Defender; and Robert Trent Hall, Assistant Public Defender, Memphis, Tennessee, for the appellant, Jermaine Nelson.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; William L. Gibbons, District Attorney General; Glen Baity, Assistant District Attorney General; and Tracye Jones, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Originally indicted for second degree murder, Defendant, Jermaine Nelson, was convicted of voluntary manslaughter, a Class C felony, following a jury trial. The trial court sentenced him to serve ten (10) years in the Department of Correction as a Range II offender. Defendantās sole issue on appeal is that the trial court erred when it sentenced him as a Range II offender. We agree, and affirm the conviction, but reverse the sentence and remand for an amended judgment imposing a Range I sentence of six (6) years.

http://www.tba.org/tba_files/TCCA/2005/nelsonj92305.pdf


STATE OF TENNESSEE v. GLORIA A. PORTER

Court: TCCA

Attorneys:

Vance Dennis, Savannah, Tennessee, for the Appellant, Gloria A. Porter.

Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan, Senior Counsel, Criminal Justice Division; G. Robert Radford, District Attorney General; and John W. Overton, Jr., Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

Aggrieved of her convictions of possession of cocaine with intent to manufacture, sell, or deliver and of simple possession of marijuana, the defendant, Gloria A. Porter, appeals. Because we have determined that the evidence was insufficient to support the convictions, we reverse and remand the case to the trial court for dismissal of the charges.

http://www.tba.org/tba_files/TCCA/2005/porterg92305.pdf


MONTEA WILSON aka MARCUS FLOYD v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Lance R. Chism, Memphis, Tennessee, for the appellant, Montea Wilson, aka, Marcus Floyd.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Betsy Carnesale, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

The petitioner, Montea Wilson, aka Marcus Floyd, was convicted by a jury of felony murder and attempted especially aggravated robbery in 2000. The jury sentenced the petitioner to life in prison without the possibility of parole for the felony murder conviction, and the trial court merged the attempted especially aggravated robbery conviction with the felony murder conviction. This Court affirmed the petitionerās convictions on direct appeal. See State v. Montea Wilson, No. W200000748-CCA-R3-CD, 2002 WL 925255 (Tenn. Crim. App., at Jackson, May 3, 2002), perm. app. denied, (Tenn. Nov. 4, 2002). The petitioner filed a pro se petition for post-conviction relief, alleging ineffective assistance of counsel, among other things. The petition was amended by counsel. At the evidentiary hearing on the petition, the post-conviction court refused to let the petitionerās attorney question trial counsel about his requests for jury instructions on lesser-included offenses, determining that the issue was waived or previously determined. At the conclusion of the hearing, the post-conviction court denied the petition for post-conviction relief. After a review of the record and applicable authorities, we determine that the post-conviction court improperly concluded that several of the petitionerās issues were waived or previously determined, denying the petitioner a full and fair hearing on the petition for post-conviction relief. Accordingly, we remand the matter for a full and fair hearing on the issues presented in the post-conviction petition.

http://www.tba.org/tba_files/TCCA/2005/wilsonm92305.pdf


Construction of Chapter 262, Public Acts of 2005

TN Attorney General Opinions

Date: 2005-09-20

Opinion Number: 05-143

http://www.tba.org/tba_files/AG/2005/op143.pdf

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