LawTech 2005
April 14 - Tennessee Bar Center, Nashville

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Today's Opinions: April 1, 2005
Volume 11 — Number 061
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
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
02 New Opinion(s) from the Tennessee Court of Appeals
09 New Opinion(s) from the Tennessee Court of Criminal Appeals
09 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. We recommend you download the Opinions to your computer and then open them from there. • Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. • 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


THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, IN ITS
OWN BEHALF AND FOR THE USE AND BENEFIT OF THE STATE OF TENNESSEE v.
DELINQUENT TAXPAYERS AS SHOWN ON THE 1999 REAL PROPERTY TAX RECORDS ON
THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY AND MORE
SPECIFICALLY DESCRIBED IN CAIN, JOHN E., III, TRUSTEE

Court:TCA

Attorneys:                          

J. Brooks Fox, John L. Kennedy, Lora Barkenbus Fox, and Philip Daniel
Balz, for the appellant, The Metropolitan Government of Nashville and
Davidson County.

Thomas V. White, Nashville, Tennessee, for the appellee, John E. Cain,
III.

Judge: FARMER

First Paragraph:

This appeal arises from an action brought by the metropolitan
government to collect delinquent property taxes.  The taxpayer owned
37.25 acres of property that were zoned commercial but were granted
"greenbelt" status.  In 1999, the taxpayer leased 1.21 acres of his
property to a retail pharmacy, but he did not inform the assessor's
office of the change in use of the 1.21 acre portion of his land.  In
2000, after the assessor's office learned of the change in use through
a review of a building permit summary, the assessor changed the
classification on the entire 37.25 acre parcel from "greenbelt" to
commercial.  As a result, a "rollback" was issued causing taxes to be
due on the entire 37.25 acre parcel at a commercial rate for the three
previous years.  The assessor mailed the taxpayer a 1999 tax bill
showing the amount owed due to the rollback.  Although the assessor
informed the taxpayer that the matter could no longer be corrected
through the assessor's office, the taxpayer did not file an
administrative appeal or bring a lawsuit to dispute the error in
classification and assessment.  Following a hearing on the delinquent
tax lawsuit, the trial court found that the assessor's office erred in
removing the taxpayer's entire parcel from "greenbelt" classification
and subjecting the entire parcel to a tax "rollback."  The court found
that only the 1.21 acre portion of the parcel used for construction of
the pharmacy should have lost "greenbelt" status.  Additionally, the
court found that, because the parties stipulated that no change in use
of the property had occurred since the underlying action was
initiated, its findings were dispositive not only for tax years 1999
and 2000, but also through the date of the final order, November 26,
2003.  The metropolitan government appealed arguing that the taxpayer
was barred by statute from contesting the validity of the assessment
once the delinquent tax lawsuit was filed.  We reverse.

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

TANYA HOLLIMON v. SHELBY COUNTY GOVERNMENT

Court:TCA

Attorneys:                          

Emma L. Cole, Memphis, Tennessee, for the appellant, Tanya Hollimon.

Eugene C. Gaerig, Assistant Shelby County Attorney, for the appellee,
Shelby County Government.

Judge: FARMER

First Paragraph:

The Shelby County Circuit Court upheld the decision of the Civil
Service Merit Board to terminate the employment of Tanya Hollimon.  We
affirm.

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

STATE OF TENNESSEE v. DRAMA SUE DAVIS, Alias

Court:TCCA

Attorneys:                          

Herbert S. Moncier, Knoxville, Tennessee, for the appellant, Drama Sue
Davis, alias.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; and Patti Crystal, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

In 1992, the defendant, Drama Sue Davis, alias, pled guilty and was
sentenced for DUI, a Class A misdemeanor.  Judgment was not entered,
and the matter was reset so the defendant would have time to pay the
fine and costs.  She was to appear at the next setting unless she had
paid the fine, costs, and restitution in the interim.  Although the
costs had been only partially paid, she did not appear at the next
setting.  A capias was issued, but the defendant was not arrested
until ten years later, with the judgment then being entered by the
trial court.  On appeal, the defendant asserts that, pursuant to
Tennessee Code Annotated section 40-6-206, the capias was void after
five years, with the trial court thus lacking jurisdiction to impose
sentence; and she was denied her right to a speedy trial.  Following
our review, we affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. JEREMIAH GINN
WITH CONCURRING OPINION

Court:TCCA

Attorneys:                          

Dan T. Bryant, District Public Defender, for the appellant, Jeremiah
Ginn.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; Clement Dale Potter, District Attorney
General; and Larry G. Bryant and Thomas J. Miner, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

A Warren County Circuit Court jury convicted the defendant, Jeremiah
Ginn, of second degree murder, a Class A felony, and the trial court
sentenced him to twenty-four years in the Department of Correction. 
The defendant appeals, claiming that the evidence was insufficient to
support his conviction; that the trial court erred in instructing the
jury by referring to statements made by the defendant as "admission
against interest;" by not repeating mens rea definitions for lesser
included offenses; and by not including a charge on the doctrine of
"mutual combat"; that the trial court erred in allowing the state to
introduce certain photographs into evidence; and that his sentence is
excessive.  We affirm the judgment of the trial court.

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

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

STATE OF TENNESSEE v. GARY HOPPER

Court:TCCA

Attorneys:                          

Robert J. Ross, II, Memphis, Tennessee, for the appellant, Gary
Hopper.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and David Zak, Assistant District Attorney General, for the
appellee, State of Tennessee

Judge: GLENN

First Paragraph:

The defendant, Gary Hopper, pled guilty in two separate cases to
vehicular assault as the result of intoxication, a Class D felony;
reckless aggravated assault, a Class D felony; and leaving the scene
of an accident, a Class A misdemeanor, for which he received an
effective sentence of seven years, eleven months and twenty-nine days
in the county workhouse as a Range II, multiple offender.  The sole
issue he raises on appeal is whether the trial court should have
sentenced him to community corrections instead of incarceration. 
Following our review, we affirm the judgment of the trial court.

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

DAVID LACKEY v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

David Lackey, Only, Tennessee, Pro Se.

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

Judge: GLENN

First Paragraph:

The petitioner appeals the summary dismissal of his petition for
post-conviction relief, arguing that he should have been appointed
post-conviction counsel and given an evidentiary hearing.  Following
our review, we affirm the dismissal of the petition, as it was
untimely filed.

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

STATE OF TENNESSEE v. DAVID A. LANGLEY

Court:TCCA

Attorneys:                          

William B. Lockert, III, District Public Defender; and Haylee Bradley,
Assistant District Public Defender, Ashland City, Tennessee, for the
appellant, David A. Langley.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; William Michael McCown, District Attorney
General; and Carey Thompson, Assistant District Attorney General, for
the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

In a three count indictment returned by the Houston County Grand Jury,
Defendant, David A. Langley, was charged with rape of a child in the
first two counts and with aggravated assault in count three. 
Following a jury trial, Defendant was convicted of rape of a child, a
Class A felony, in count one; of the lesser included offense of
aggravated sexual battery, a Class B felony, in count two; and of
reckless endangerment with a deadly weapon, a Class E felony, in count
three.  Defendant was sentenced as a Range I standard offender to
twenty-three years for the rape of a child conviction, ten years for
the aggravated sexual battery conviction, and two years for the
reckless endangerment conviction.  The trial court ordered Defendant's
sentence for aggravated sexual battery to be served consecutively to
his sentence for rape of a child, and his sentence for reckless
endangerment to be served concurrently with his sentence for
aggravated sexual battery, for an effective sentence of thirty-three
years.  On appeal, Defendant argues (1) that the evidence is
insufficient to support his convictions; (2) that the trial court's
demeanor denied Defendant his due process right to a fair trial; (3)
that the trial court erred in not suppressing Defendant's statements
which he made on the night he was arrested; (4) that the trial court
erred in not granting a mistrial when the State's witnesses made
references to Defendant's previous incarceration and offenses; (5)
that the State failed to make a proper election of offenses; (6) that
the trial court erred in not permitting Defendant to call a certain
witness and in limiting Defendant's cross-examination of Officer Chad
Smith; (7) that the trial court erred in not allowing Defendant to
introduce evidence pursuant to Rule 412 of the Tennessee Rules of
Evidence; and (8) that the trial court erred in deferring its ruling
of Defendant's motion to suppress the pornographic photographs found
on his computer after his arrest.  Defendant does not appeal the
length or manner of service of his sentences.  Following a thorough
review of the record, we dismiss Defendant's conviction of felony
reckless endangerment and remand for a retrial on count three of
Defendant's indictment in accordance with this opinion.  We otherwise
affirm Defendant's judgments of conviction for rape of a child and
aggravated sexual battery.

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

STATE OF TENNESSEE v. JOHNNY ISSAC LAW

Court:TCCA

Attorneys:                          

Merrilyn Feirman, Nashville, Tennessee (on appeal); Donna L. Hargrove,
District Public Defender; and A. Jackson Dearing, III, Assistant
Public Defender (at trial), for the appellant, Johnny Issac Law.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; William Michael McCown, District Attorney
General; and Weakley E. Barnard, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant pled guilty in the Lincoln County Circuit Court to
eleven counts of forgery, eleven counts of transferring a forged
instrument, sale of more than .5 grams of cocaine, delivery of more
than .5 grams of cocaine, and aggravated perjury.  The trial court
merged the forgery convictions with the transferring a forged
instrument convictions and sentenced the defendant as a Range I,
standard offender to one year on each count, to be served
concurrently.  He was sentenced to ten years for the sale of cocaine
conviction, which the trial court merged with the delivery conviction,
to be served concurrently with the forgery sentence, and four years
for the aggravated perjury conviction, to be served consecutively to
the sale of cocaine sentence, for a total effective sentence of
fourteen years.  On appeal, he alleges the trial court erred in
applying several enhancement factors in violation of the recent United
States Supreme Court case, Blakely v. Washington, and in not
sentencing him to the community corrections program.  Following our
review, we affirm the sentences but remand for entry of corrected
judgments in all three cases to reflect the conviction offenses, which
were omitted, and to reflect the correct offense date in Case No.
S0300119

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

HORACE DEMON PULLIAM v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Charles Edward Walker, Nashville, Tennessee, for the appellant, Horace
Demon Pulliam.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Roger D. Moore, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The petitioner, Horace Demon Pulliam, appeals the dismissal of his
petition for post-conviction relief alleging that the post-conviction
court erred in finding that he received effective assistance of
counsel.  After a review of the record, we affirm the judgment of the
post-conviction court.

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

JAMES R.W. REYNOLDS v. STATE OF TENNESSEE 

Court:TCCA

Attorneys:                          

James R.W. Reynolds, Nashville, Tennessee, Pro se.

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

Judge: OGLE

First Paragraph:

The petitioner, James R.W. Reynolds, pled guilty to two counts of
aggravated rape and was sentenced to concurrent thirty-five year
sentences.  Subsequently, the petitioner filed a petition for a writ
of habeas corpus, alleging that Blakely v. Washington, 542 U.S. __,
124 S. Ct. 2531 (2004), rendered the 1982 Sentencing Reform Act
unconstitutional in general and unconstitutional as applied to him
specifically.  The habeas corpus court summarily denied the petition
for a writ of habeas corpus, and the petitioner appeals.  Upon our
review of the record and the parties' briefs, we affirm the judgment
of the habeas corpus court.

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

STATE OF TENNESSEE v. ROY EDWARD TOLLIVER, JR.

Court:TCCA

Attorneys:                          

R. B. Baird, III, Rogersville, Tennessee, for the Appellant, Roy
Edward Tolliver, Jr.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Preston Shipp, Assistant Attorney General; C.
Berkeley Bell, District Attorney General; and Cecil C. Mills, Jr.,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Roy Edward Tolliver, Jr., was convicted by a Greene
County jury of one count of cruelty to animals and was sentenced to
eleven months and twenty-nine days in jail.  On appeal, Tolliver
argues that (1) the evidence is insufficient to support the verdict
and (2) the sentence is excessive.  After review of the record, we
affirm the conviction and sentence.

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

Removal of sentence credits by Tennessee Board of Probation and Parole

Date: March 29, 2005

Opinion Number: 05-031

http://www.tba.org/tba_files/AG/2005/op31.pdf

County Regulation of Junkyards via Private Acts

Date: March 29, 2005

Opinion Number: 05-032

http://www.tba.org/tba_files/AG/2005/op32.pdf

Higher Education -- Group Purchasing

Date: March 29, 2005

Opinion Number: 05-033

http://www.tba.org/tba_files/AG/2005/op33.pdf

Constitutionality of Property Tax Levy for County Schools in
Unincorporated Areas Only

Date: March 29, 2005

Opinion Number: 05-034

http://www.tba.org/tba_files/AG/2005/op34.pdf

Service by Publication of Habitual Motor Vehicle Petition

Date: March 29, 2005

Opinion Number: 05-035

http://www.tba.org/tba_files/AG/2005/op35.pdf

Nonlawyer Representation On Behalf of Bonding Companies Before
Sessions or Criminal Court

Date: March 29, 2005

Opinion Number: 05-036

http://www.tba.org/tba_files/AG/2005/op36.pdf

City Commissioner Serving on Board of Utility District

Date: March 29, 2005

Opinion Number: 05-037

http://www.tba.org/tba_files/AG/2005/op37.pdf

Ability of Judicial District Drug Task Force to Own Real Property

Date: March 29, 2005

Opinion Number: 05-038

http://www.tba.org/tba_files/AG/2005/op38.pdf

Amending Tullahoma City Charter Regarding Vacancies

Date: March 30, 2005

Opinion Number: 05-038

http://www.tba.org/tba_files/AG/2005/op39.pdf

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