Solo and Small Firm Forum
May 13 - Tennessee Bar Center, Nashville

The TBA Solo and Small Firm Conference offers a unique opportunity for
practitioners from all over the state to come together to focus on
specific issues impacting them in the practice of law. CLE course
offerings will include substantive sessions in practice areas most
common to the solo and small firm practitioner including: PERSONAL
INJURY AND WORKERS COMP LAW, JUVENILE & FAMILY LAW, WILLS, ESTATES &
PROBATE , SOCIAL SECURITY UPDATE , CRIMINAL DEFENSE, and ETHICS.
There will also be many opportunities for networking with your fellow
practitioners during this conference — including a cocktail reception
after the program.

Today's Opinions: May 12, 2005
Volume 11 — Number 090
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.
01 New Opinion(s) from the Tennessee Supreme Court
01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Court of Appeals
02 New Opinion(s) from the Tennessee Court of Criminal Appeals
03 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


CHRISTA GAIL PIKE v. STATE OF TENNESSEE

Court:TSC

Attorneys:                          

Donald E. Dawson, Post-Conviction Defender, and Catherine Y.
Brockenborough, Assistant Post- Conviction Defender, Nashville,
Tennessee, for the appellant, Christa Gail Pike.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General, Alice B. Lustre, Assistant Attorney General; and
Leland Price and S. Jo Helm, Assistant District Attorneys General, for
the appellee, State of Tennessee.

Wade V. Davies, Knoxville, Tennessee, for Amicus Curiae, Tennessee
Association of Criminal Defense Lawyers.

Gerald L. Gulley, Jr., Knoxville, Tennessee, for Amicus Curiae,
National Association of Criminal Defense Lawyers.

Bradley A. MacLean, Nashville, Tennessee, for Amicus Curiae, National
Alliance for the Mentally Ill.

Judge: DROWOTA

First Paragraph:

This appeal presents two determinative issues: (1) whether
post-conviction review of a death sentence should be mandatoryand
should proceed over the objection of a competent death-sentenced
inmate; and if not, (2) whether, and under what circumstances, a
competent death-sentenced inmate may revoke her waiver of
post-conviction review. We conclude that post-conviction review is not
mandatory and may be waived by a competent death-sentenced inmate. We
also conclude that a competent death-sentenced inmate may revoke a
waiver of post-conviction review so long as the revocation occurs
within thirty days of the trial court's order permitting the inmate to
waive postconviction review. Our holding is limited to death-sentenced
inmates who seek to revoke an initial waiver of post-conviction
relief. Our holding does not apply to death-sentenced inmates who
attempt to manipulate and to delay the judicial process by repeatedly
seeking to waive and thereafter to reinstate post-conviction review.
Applying this rule, we conclude that Christa Gail Pike may revoke her
waiver and reinstate her post-conviction petition. Pike filed a motion
seeking to revoke her waiver on the twenty-ninth day after the trial
court filed its order permitting her to waive postconviction review.
Pikehad not previouslywaived post-conviction review. Accordingly, we
reverse the judgment of the Court of Criminal Appeals and remand this
case to the trial court with instructions to reinstate the petition
for post-conviction relief and to schedule an evidentiary hearing.

http://www.tba.org/tba_files/TSC/2005/pikec51205.pdf

GATHA BLAKENSHIP v. AMERICAN ORDNANCE SYSTEMS, LLS, d/b/a MILAN ARMY
AMMUNITION PLANT

Court:TSC - Workers Comp Panel

Attorneys:                          

Jeffrey P. Boyd, Jackson, Tennessee, for the appellant, Gatha
Blankenship.

Fred Collins, Milan, Tennessee, for the appellee, American Ordnance
Systems, LLC, d/b/a Milan Army Ammunition Plant.

Judge: DROWOTA

First Paragraph:

The employee in this workers' compensation case injured her back while
taking an upper body strength test on the employer's premises. The
employee, who was laid off at the time of the injury, voluntarily took
the strength test as part of the application process for new jobs
being created in the employer's factory. The trial court found that
the employee's injury was not compensable because it did not arise out
of her employment. The employee's appeal was transferred to the full
Supreme Court prior to the Special Workers' Compensation Appeals Panel
hearing oral argument. The dispositive question before this Court is
whether the evidence preponderates against the trial court's finding
that the employee's injury did not arise out of her employment. After
carefully examining the record and the relevant authorities, we hold
that the evidence does not preponderate against the trial court's
finding that the employee's injury did not arise out of her
employment. We also conclude that the employee's injury did not occur
in the course of her employment. Accordingly, we affirm the trial
court's judgment.

http://www.tba.org/tba_files/TSC_WCP/2005/blakenshipg51205.pdf

STATE OF TENNESSEE v. LUIS PEREZ

Court:TCCA

Attorneys:                          

Robert Wilson Jones, District Public Defender, and Barry W.Kuhn and
Tony N. Brayton, Assistant Public Defenders, for the appellant, Luis
Perez.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and J. Robert Carter, Jr., and Valerie L. Smith, Assistant
District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant appeals his dual convictions for possession of marijuana
with intent to sell and with intent to deliver. We affirm the
sufficiency of the evidence and the denial of the defendant's motion
to suppress. We remand for merger of the offenses as the dual
convictions are violative of double jeopardy. Further, we modify the
sentence to two years in our de novo review, due to error in failure
to make findings of fact in sentencing.

http://www.tba.org/tba_files/TCCA/2005/perezl51205.pdf

STATE OF TENNESSEE v. HARLEN ROY L. ZIRKER, aka ANTHONY LAMONT ZIRKER

Court:TCCA

Attorneys:                          

G. Kerry Haymaker, Nashville, Tennessee, for the appellant, Harlen Roy
L. Zirker, aka Anthony Lamont Zirker.

Paul G.Summers, Attorney General and Reporter; Preston Shipp,Assistant
Attorney General; Victor S. Johnson, III, District Attorney General;
and Sarah Davis and Bernard McEvoy, Assistant District Attorneys
General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, Harlen Roy L. Zirker, aka Anthony Lamont Zirker, was
convicted by a Davidson County jury of two counts of rape of a child,
a Class A felony, and four counts of aggravated sexual battery, a
Class B felony, and received an effective sentence of seventy-two
years. The defendant raises the following issues on appeal: (1)
whether the evidence is sufficient to support his convictions; (2)
whether the trial court erred in denying his motion to strike two
jurors for cause, in admitting evidence of the defendant's prior
criminal convictions, and in imposing consecutive sentences. Following
our review, we affirm the convictions and sentences.


http://www.tba.org/tba_files/TCCA/2005/zirkerh51205.pdf

Proposed Amendment to House Bill 476 (Senate Bill 853) Relative to
Engine Compression Brakes on Trucks or Truck Tractors

Date: May 10, 2005

Opinion Number: 05-077

http://www.tba.org/tba_files/AG/2005/op77.pdf

Voluntary Pre-K for Tennessee Act of 2005

Date: May 10, 2005

Opinion Number: 05-078

http://www.tba.org/tba_files/AG/2005/op78.pdf

Registers' Fees

Date: May 10, 2005

Opinion Number: 05-079

http://www.tba.org/tba_files/AG/2005/op79.pdf

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