TennBarU, the TBA Elder Law Section and the National Academy of Elder
Law Attorneys Present: Elder Law Basics
August 19-21 - Gaylord Opryland Hotel in Nashville

This program covers the breadth of elder law. The distinguished
faculty for this program includes past NAELA presidents and authors of
several national treatises on elder law. Level of instruction is basic
and intermediate. A unique aspect of this program is its focus on a
case study, in which participants will develop a long-term care plan
under the tutelage of experienced elder law attorneys. This course
provides 15.75 hours of general and one hour dual CLE credit.

Today's Opinions: July 5, 2005
Volume 11 — Number 126
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
00 New Opinion(s) from the Tennessee Court of Appeals
13 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. 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


SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/2005/certlist7505.pdf

STATE OF TENNESSEE V. WILLIAM J. CARICO

Court:TCCA

Attorneys:                          

William J. Carico, pro se, Mountain City, Tennessee.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks,
Assistant Attorney General; C. BerkeleyBell,Jr., District Attorney
General; and DougGodbee, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Petitioner, William J. Carico, was convicted of aggravated rape,
and the trial court sentenced him to twenty-five years in prison.
Subsequently, the Petitioner filed a petition for post-conviction
relief, and the post-conviction court dismissed the petition as
untimely. On appeal, the Petitioner contends that Blakely v.
Washington, 542 U.S. __, 124 S.Ct. 2531 (2004) announced a new rule of
constitutional law that applies retroactively to his case and creates
an exception to the one-year statute of limitations for filing a
post-conviction petition. Finding no reversible error, we affirm the
judgment of the post-conviction court.

http://www.tba.org/tba_files/TCCA/2005/caricow7505.pdf

MARK ALAN DEAKINS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Wade Hinton and Daniel J. Ripper, Chattanooga, Tennessee, for the
appellant, Mark Alan Deakins.

Paul G.Summers, Attorney General and Reporter; John H.Bledsoe, III,
Assistant Attorney General; William H. Cox, III, District Attorney
General; and Yolanda Mitchell, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The petitioner, Mark Alan Deakins, pled guilty in the Hamilton County
Criminal Court to especially aggravated sexual exploitation of a
minor, sexual exploitation of a minor, and statutory rape and received
an effective eleven-year sentence to be served as one year in jail and
the remainder on probation. Subsequently, the petitioner filed a
post-conviction petition, alleging that he was prosecuted under
unconstitutional statutes and in violation of ex post facto
constitutional provisions. The trial court denied post-conviction
relief. Upon review of the record and the parties' briefs, we affirm
the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/deakinsm7505.pdf

WAYFORD DEMONBREUN, JR. v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Wayford Demonbreun, Jr., Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Pamela Anderson, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: MCLIN

First Paragraph:

The petitioner, Wayford Demonbreun, Jr., appeals from the trial
court's dismissal of his pro se petition for writ of habeas corpus.
Following our review, we affirm the trial court's judgment

http://www.tba.org/tba_files/TCCA/2005/demonbreunw7505.pdf

STATE OF TENNESSEE v. RICKY ESTES

Court:TCCA

Attorneys:                          

John Preston Pryor, Smithville, Tennessee, for the appellant, Ricky
Estes.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; William Edward Gibson, District Attorney
General; and William M. Locke, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: MCLIN

First Paragraph:

The defendant, Ricky Estes, was convicted of burglary of an
automobile, theft under $500.00, and possession of drug paraphernalia.
The trial court sentenced the defendant as a multiple offender to four
years, eleven months, and twenty-nine days. On appeal, the defendant
raises the following issues: (1) whether the trial court erred in
denying his pre-trial motion for a continuance; (2) whether the
evidence is sufficient to support his convictions; and (3) whether the
trial court erred in sentencing the defendant. Upon review, we affirm
the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/2005/estesr7505.pdf

STATE OF TENNESSEE v. ERICONTA DAMAN FLENOID

Court:TCCA

Attorneys:                          

David A. Doyle, Gallatin, Tennessee (at trial and on appeal), and
Roger A. Sindle, Hendersonville, Tennessee (at trial), for the
appellant, Ericonta Daman Flenoid.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball,
Assistant Attorney General; Lawrence Ray Whitley, District Attorney
General; and C. Wayne Hyatt, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Ericonta Daman Flenoid, pled guilty in the Sumner
County Criminal Court to aggravated burglary and robbery. He received
a total effective sentence of ten years, with one year to be served in
confinement and the remainder on probation. Subsequently, the trial
court revoked the appellant's probation, finding that the appellant
failed to comply with the terms of probation. The trial court ordered
the appellant to serve his sentences in confinement. The appellant
appeals. Upon review of the record and the parties' briefs, we affirm
the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/2005/flenoide7505.pdf

STATE OF TENNESSEE v. LAMONN LEE HARRIS

Court:TCCA

Attorneys:                          

Andrew Jackson Dearing, III., Assistant Public Defender, Shelbyville,
Tennessee, for the appellant, Lamonn Lee Harris.

Paul G. Summers, Attorney General and Reporter; Brent C.Cherry,
Assistant Attorney General; W. Michael McCown, District Attorney
General; and Weakley E. Barnard, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: MCLIN

First Paragraph:

The defendant, Lamonn Lee Harris, entered an open guilty plea to
fourteen counts of forgery, Class E felonies, and one count of theft
less than $500.00, a Class A misdemeanor. He was sentenced to an
effective sentence of six years as a Range I, standard offender. On
appeal, he argues that the trial court erred in denying alternative
sentencing and in imposing an excessive sentence. Following our
review, we affirm the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/2005/harrisl7505.pdf

BENJAMIN HERNANDEZ v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Jonathan L. Young, Cookeville, Tennessee, for the appellant, Benjamin
Hernandez.

Paul G. Summers, Attorney General and Reporter; Preston Shipp,
Assistant Attorney General; William Edward Gibson, District Attorney
General; and Benjamin W. Fann, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The petitioner appeals the denial of his petition for post-conviction
relief, challenging: (1) the jury instruction given on the mens rea
term "knowingly," and (2) the trial court's failure to instruct on the
lesser included offenses of aggravated assault and assault. Upon
review, we conclude that the issues are waived for failure to provide
a completed record on appeal. Furthermore, notwithstanding waiver, the
errors were harmless beyond a reasonable doubt. Therefore, we affirm
the denial of postconviction relief.

http://www.tba.org/tba_files/TCCA/2005/hernandezb7505.pdf

STATE OF TENNESSEE v. DERWOOD S. KENDRICK

Court:TCCA

Attorneys:                          

Daniel J. Ripper, Chattanooga, Tennessee, for the Appellant, Derwood
S. Kendrick.

Paul G.Summers, Attorney General &Reporter; KathyD.Aslinger, Assistant
Attorney General; Bill Cox, District Attorney General; Rodney C.
Strong, Assistant District Attorneys General, for the appellee, State
of Tennessee

Judge: SMITH

First Paragraph:

The defendant, Derwood Scott Kendrick, was on probation for several
convictions of attempted misapplication of contract funds and one (1)
conviction of illegal voting. While on probation, the defendant was
arrested for theft, misapplication of contract funds and passing
worthless checks. The trial court held a probation revocation hearing.
At the conclusion of the hearing, the trial court revoked the
defendant's probation. The defendant appealed this revocation on the
grounds that: (1) the trial court erred in refusing to divest the
media privilege for a news reporter and (2) there was insufficient
evidence for the trial court to revoke his probation. We have analyzed
the issues and find that the trial court did not err in refusing to
divest the media privilege. However, we also find that the evidence
does not support the revocation of the defendant's probation. We
affirm in part and reverse in part the decision of the trial court,
and remand for further proceedings in accordance with this opinion.

http://www.tba.org/tba_files/TCCA/2005/kendrickd7505.pdf

STATE OF TENNESSEE v. EARL D. MILLS

Court:TCCA

Attorneys:                          

Mark E. Stephens, District Public Defender and Robert C. Edwards,
Assistant Public Defender, Knoxville, Tennessee, for the appellant,
Earl Mills.

Paul G. Summers, Attorney General & Reporter; William G. Lamberth, II,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; and Jo Helm, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The appellant, Earl D. Mills, pled guilty to vehicular homicide. As a
result of the guilty plea, the remaining nine (9) counts of the
indictment were either merged with the vehicular homicide conviction
or nolle prossed by the State. The trial court sentenced the appellant
to twelve (12) years as a multiple offender. At the sentencing
hearing, the appellant sought pre-trial jail credit for the 197 days
he spent in jail prior to his guilty plea. The trial court denied the
request because the appellant was serving a sentence on an unrelated
probation violation charge while awaiting trial on the charges arising
out of the indictment for vehicular homicide. The appellant filed a
motion to reconsider. The trial court granted the motion and awarded
the appellant thirty-six (36) days of jail credit. However, the
appellant insists he should receive credit for the entire 197 days.
For the following reasons, we affirm the judgment of the trial court

http://www.tba.org/tba_files/TCCA/2005/millse7505.pdf

JEFFREY LYNN MYERS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Jeffrey Lynn Myers, Whiteville, Tennessee, Pro Se.

Paul G.Summers, Attorney General and Reporter; John H.Bledsoe,
Assistant Attorney General; and William E. Gibson, District Attorney
General; and William M. Locke, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

This is an appeal as of right from the denial of post-conviction
relief. The Defendant, Jeffrey Lynn Myers, was convicted of one count
of attempted rape upon entry of a best-interest guilty plea. He was
sentenced to six years' imprisonment as a Range I, standard offender.
The Defendant filed a petition for post-conviction relief and received
an evidentiary hearing. The trial court subsequently denied the
Defendant's petition, and he now appeals to this Court. He argues
multiple issues, all of which we find to have been waived because the
claims are either (1) not proper issues for a postconviction
proceeding, (2) not properly preserved for appeal, or (3) not
reviewable due to an incomplete record. We affirm the judgment of the
trial court.

http://www.tba.org/tba_files/TCCA/2005/myersj7505.pdf

STATE OF TENNESSEE v. ROLAND R. SMITH

Court:TCCA

Attorneys:                          

Jeffrey A. DeVasher (on appeal) and J. Michael Engle (at trial),
Nashville, Tennessee, for the appellant, Roland Richard Smith.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Brian Holmgren, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Roland R. Smith, was convicted by a jury of nine counts
of statutory rape and three counts of especially aggravated sexual
exploitation of a minor. The trial court sentenced the Defendant to
two years on each of the statutory rape convictions and eleven years
on each of the sexual exploitation convictions. The sentences were
ordered to be served in such fashion as to result in an effective term
of seventeen years in the Department of Correction. In this direct
appeal, the Defendant raises the following issues: 1) whether the
evidence is sufficient to support certain of his convictions of
statutory rape; 2) whether certain of the Defendant's convictions must
be reversed under the doctrine of election of offenses; 3) whether
certain of the Defendant's convictions violate principles of double
jeopardy; 4) whether the trial court erred in refusing to sever some
of the offenses; and 5) whether the Defendant's sentence is excessive.
We reverse and remand for retrial the Defendant's convictions of
statutory rape arising out of Counts Four, Five, Eight and Nine. We
reverse and dismiss the Defendant's conviction of statutory rape
arising out of Count Six. The Defendant's effective sentence is
thereby modified to fifteen years. In all other respects, we affirm
the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/2005/smithr7505.pdf

MARTIN E. WALKER v. HOWARD CARLTON, WARDEN

Court:TCCA

Attorneys:                          

Martin E. Walker, pro se, Mountain City, Tennessee.

Paul G.Summers, Attorney General and Reporter; and Brent C. Cherry,
Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Petitioner, Martin E. Walker, filed a petition for writ of habeas
corpus seeking relief from an allegedly void judgment, which the
habeas corpus court dismissed. On appeal, the Petitioner contends that
the habeas corpus court erred in dismissing his petition because: (1)
count one of the indictment charging him with murder is defective
because it did not provide notice of the offense charged; (2) the
indictment is invalid because the district attorney failed to sign it;
and (3) the State failed to comply with the trial court's order for a
bill of particulars. Finding no error in the judgment of the habeas
corpus court, we affirm the dismissal of the Petitioner's petition for
habeas corpus relief.

http://www.tba.org/tba_files/TCCA/2005/walkerm7505.pdf

STATE OF TENNESSEE v. CARLOS WEEKS

Court:TCCA

Attorneys:                          

Robert Wilson Jones, District Public Defender (of counsel); and Tony
N. Brayton (on appeal) and R. Trent Hall (at trial), Assistant Public
Defenders, for the appellant, Carlos Weeks.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe,
Assistant Attorney General; and Michael Davis, Assistant District
Attorney General, for the appellee, State of Tennessee

Judge: WADE

First Paragraph:

The defendant, Carlos Weeks, was indicted in Shelby County for four
counts of aggravated robbery. Two of the four counts were alternative
charges. The defendant was convicted of all four counts and the trial
court merged the alternative counts into two convictions. The trial
court imposed a concurrent, Range I sentence of ten years for each of
the two offenses. In this appeal as of right, the defendant asserts
that there is a material variance between the indictment and the
evidence presented at trial and that the evidence is insufficient to
support either conviction. The judgments of the trial court are
affirmed.

http://www.tba.org/tba_files/TCCA/2005/weeksc7505.pdf

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