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Today's Opinions: January 11, 2005
Volume 11 — Number 006
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 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
03 New Opinion(s) from the Tennessee Court of Appeals
07 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

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 or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.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. • Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. • Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

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


IN RE:  RULE 4, RULES OF THE COURT OF CRIMINAL APPEALS OF TENNESSEE

Court:TSC - Rules

Judge: WADE

First Paragraph:

It is hereby ordered that Rule 4 of the Rules of the Court of Criminal
Appeals of Tennessee, effective May 3, 1982, as amended by order
entered May 3, 1996, is hereby amended by deleting the rule as it
presently exists in its entirety and substituting thereof the
following Rule 4: Rule 4. Sessions. - Sessions shall be held at such
times as the court directs.  Unless otherwise ordered, the court will
convene at 9:00 a.m. each day upon which cases are set for argument. 
Unless otherwise ordered, cases set for argument will be heard in the
order in which they appear on the calendar

http://www.tba.org/tba_files/TSC_Rules/ccarule4_011005.wpd

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. C.D.W.

Court:TCA

Attorneys:                          

J. Eric Harrison, Morristown, Tennessee, for the Appellant C.D.W.

Paul G. Summers, Attorney General and Reporter, and Mary S. Foust,
Assistant Attorney General, Nashville, Tennessee, for the Appellee
State of Tennessee, Department of Children's Services.

Judge: SWINEY

First Paragraph:

This appeal involves the Juvenile Court's termination of the parental
rights of C.D.W. ("Mother") to her three oldest children.  After a
trial, the Juvenile Court held there was clear and convincing evidence
that Mother had failed to substantially comply with the terms of her
permanency plans, and that the conditions present at the time the
children were removed had not been remedied and it was unlikely these
conditions would be remedied in the near future.  The Juvenile Court
also held there was clear and convincing evidence that termination of
Mother's parental rights was in the children's best interest.  We
affirm the judgment of the Juvenile Court.

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

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. J.M.F.

Court:TCA

Attorneys:                          

Rodney Craig Miller, Cleveland, Tennessee, for the Appellant J.M.F.

Paul G. Summers, Attorney General and Reporter, and Kate Eyler, Deputy
Attorney General, Nashville, Tennessee, for the Appellee State of
Tennessee, Department of Children's Services.

Judge: SWINEY

First Paragraph:

This appeal involves the Juvenile Court's termination of the parental
rights of J.M.F ("Father") to his two children, B.J.F. and S.D.F.  The
Juvenile Court held there was clear and convincing evidence that
Father had abandoned the children, that Father had failed to
substantially comply with the terms of his permanency plans, and that
the conditions present at the time the children were removed had not
been remedied and it was unlikely these conditions would be remedied
in the near future.  The Juvenile Court further held that Father's
parental rights should be terminated pursuant to Tenn. Code Ann. S
36-1-113(g)(6).  Finally, the Juvenile Court concluded there was clear
and convincing evidence that termination of Father's parental rights
was in the children's best interest.  We affirm the judgment of the
Juvenile Court.

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

IN RE: Z. M. B.

Court:TCA

Attorneys:                          

Douglas J. Toppenberg, Knoxville, Tennessee, for appellant, Elizabeth
Anne Berry Browand.

Lori Farris Fleishman and Samuel W. Brown, Knoxville, Tennessee, for
appellees, Randall Eugene Bedard and Carey Bedard.

Shannon M. Holland, Knoxville, Tennessee, Guardian Ad Litem

Judge: INMAN

First Paragraph:

This case presents the recurring issue of subject matter jurisdiction
of the juvenile courts.  The child, nine years old, was born out of
wedlock.  Paternity was adjudicated in the juvenile court, together
with the issues of support and visitation.  Years later, father filed
a petition in the case alleging a change of circumstances and seeking
custody of the child.  The juvenile court found a change of
circumstances and awarded custody of the child to her father.  Mother
appeals, insisting that a juvenile court is not vested with
jurisdiction to change custody of a child because of a change in the
circumstances.  The judgment is affirmed.

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

STATE OF TENNESSEE v. TIMOTHY RYAN BAGGETT

Court:TCCA

Attorneys:                          

William B. Lockert, III, Public Defender, Ashland City, Tennessee, for
the appellant, Timothy Ryan Baggett.

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

Judge: SMITH

First Paragraph:

After a jury trial held on January 15 and 16, 2003, the defendant,
Timothy Ryan Baggett, was found guilty of one count of rape as
charged.  The trial court then sentenced the defendant to ten (10)
years as a violent offender at 100% service of sentence.  The
defendant appealed to this Court arguing: (1) that there was
insufficient evidence to support his conviction; (2) that the
prosecutor made improper comments during closing argument that
amounted to prosecutorial misconduct; and (3) that in sentencing the
defendant the trial court relied upon evidence not in the record.  We
have found each of these issues to be without merit and, therefore,
affirm the judgment of the trial court, but modify the defendant's
sentence to eight years at 100% service of sentence.

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

STATE OF TENNESSEE v. CHRIS GRUNDER

Court:TCCA

Attorneys:                          

Gregory D. Smith, Clarksville, Tennessee (on appeal); and A. Jackson
Dearing, III, Shelbyville, Tennessee (at trial and on appeal), for the
appellant, Chris Grunder.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; W. Michael McCown, District Attorney
General; Michael Randles and Ann Filer, Assistant District Attorneys
General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Defendant, Chris Grunder, was convicted of especially aggravated
kidnapping, aggravated rape, aggravated assault, and theft of property
over $500.00.  The trial court sentenced the Defendant to an effective
sentence of thirty-one years.  On appeal, the Defendant contends that:
(1) the evidence is insufficient to sustain his convictions; and (2)
the trial court erred when it sentenced him.  After thoroughly
reviewing the record and the applicable authorities, we affirm all of
the Defendant's convictions.  Further, we hold that the trial court
improperly enhanced the Defendant's sentences in light of Blakely v.
Washington, 542 U.S. __, 124 S. Ct. 2531 (2004), and we reduce the
Defendant's sentence in accordance with this opinion to an effective
sentence of twenty-nine years.  We remand the case for the entry of
judgments of conviction consistent with this opinion.

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

STATE OF TENNESSEE v. BRADLEY LONSINGER

Court:TCCA

Attorneys:                          

Robert S. Peters, Winchester, Tennessee, for the appellant, Bradley
Lonsinger.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner,
Assistant Attorney General; Clement Dale Potter, District Attorney
General; and Thomas J. Miner, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, Bradley Lonsinger, was convicted of attempt to
manufacture a Schedule II controlled substance, methamphetamine, a
Class D felony, and was sentenced as a Range II, multiple offender to
eight years in the Tennessee Department of Correction and fined $5000.
 He raises two issues on appeal:  (1) whether the search warrant
leading to his arrest was based on sufficient probable cause; and (2)
whether the evidence was sufficient to support his conviction.  Based
on our review, we affirm the judgment of the trial court

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

STATE OF TENNESSEE v. JULIUS Q. PERKINS

Court:TCCA

Attorneys:                          

Paul J. Walwyn, Madison, Tennessee, for the appellant, Julius Q.
Perkins.

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

Judge: WOODALL

First Paragraph:

Defendant, Julius Q. Perkins, was indicted on one count of first
degree premeditated murder and one count of first degree felony
murder.  Following a jury trial, Defendant was found guilty of felony
murder and not guilty of premeditated murder.  He was sentenced to
life imprisonment.  On appeal, Defendant argues that the evidence was
insufficient to support his conviction of felony murder because the
State failed to show that the victim was killed during a robbery or
attempted robbery, or, alternatively, that Defendant was criminally
responsible for the death of the victim.  After a thorough review of
the record, we affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. RAYMOND D. SIMPSON
WITH DISSENTING OPINION

Court:TCCA

Attorneys:                          

William B. "Jake" Lockert, III, District Public Defender, for the
appellant, Raymond D. Simpson.

Paul G. Summers, Attorney General & Reporter; Richard H. Dunavant,
Assistant Attorney General; and Kim Menke, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Raymond D. Simpson, pled guilty to criminally negligent
homicide, a Class E felony.   The trial court imposed a Range I
sentence of two years.  The defendant was ordered to serve seven
months in confinement and the remainder on probation.  The defendant
contends that the trial court erred by denying full probation and/or
community corrections.  The judgment of the trial court is affirmed;
the sentence must be modified, however, to a Range I term of one year,
with 105 days to be served in confinement and the balance on
probation.

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

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

JAMES A. UHLES v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

James A. Uhles, Clifton, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; Mike Bottoms, District Attorney General;
and Michelle Chapman McIntire, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, James A. Uhles, appeals from the trial court's denial
of his petition seeking 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 State's motion is granted.  The judgment of the trial court is
affirmed.

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

ANTHONY L. WASHINGTON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Anthony L. Washington, Pro Se, Henning, Tennessee.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; and Mike Bottoms, District Attorney
General, for the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

This matter is before the Court upon the State's motion to affirm the
judgment of the trial court by memorandum opinion pursuant to Rule 20,
Rules of the Court of Criminal Appeals.  The petitioner has appealed
the trial court's order summarily dismissing the petition for the writ
of habeas corpus.  In that petition, the petitioner alleges that the
indictment charging the petitioner with first degree felony murder is
void because the word "robbery" was handwritten on the indictment. 
Upon a review of the record in this case we are persuaded that the
trial court was correct in summarily dismissing the habeas corpus
petition and that this case meets the criteria for affirmance pursuant
to Rule 20, Rules of the Court of Criminal Appeals.  Accordingly, the
State's motion is granted and the judgment of the trial court is
affirmed.

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

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