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 21, 2005
Volume 11 — Number 138
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
01 New Opinion(s) from the Tennessee Court of Appeals
11 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


FORREST L. WHALEY, ET AL. v. JIM ANN PERKINS, ET AL.

Court:TCA

Attorneys:                          

John D. Horne of Memphis for Appellants, Jim Ann Perkins, Albert Lewis
Beshires and Terry Lynn Beshires

Richard M. Carter, Paul H. Morris, and Brian K. Kelsey of Memphis for
Appellees, Forrest L. Whaley and Margaret Ann Whaley

Judge: CRAWFORD

First Paragraph:

Purchasers of real property filed suit for breach of contract,
negligence per se, intentional misrepresentation, breach of warranty
of title, and emotional distress against various parties, alleging
that purchasers had purchased the subject property in reliance upon
misrepresentations by defendants as to the merchantability of title to
the property, only to discover later that the property had been
illegally subdivided by defendants. Purchasers contended that they
suffered catastrophic pecuniary and other loss as result of alleged
misrepresentations, due to extremely limited legal uses that could be
made of illegally subdivided parcel. At trial, jury found that each of
the defendants had committed intentional misrepresentation, and
awarded compensatory damages in the amount of $170,000 and punitive
damages in the amount of $5,000. Defendants appeal on numerous
grounds. Finding that the trial court erred, we vacate and remand.

http://www.tba.org/tba_files/TCA/2005/whaleyf72105.pdf

STATE OF TENNESSEE v. RODERICK DAVIS
CORRECTED OPINION (ORGINALLY ISSUED 12-13-2004)

Court:TCCA

Attorneys:                          

Larry Fitzgerald, Memphis, Tennessee (at trial), Robert Little and
James Thomas, Memphis, Tennessee (at trial); and Michael Scholl,
Memphis, Tennessee (on appeal), for the Appellee, Roderick Davis.

Paul G.Summers, Attorney General & Reporter; J. Ross Dyer, Assistant
Attorney General; William L. Gibbons, District Attorney General; and
Patience Branham and Ray Lepone, Assistant District Attorneys General,
for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The defendant, Roderick Davis, was convicted by a ShelbyCountyCriminal
Court jury of especially aggravated robbery, for which he received a
sentence of 24 years, and especiallyaggravated burglary, for which he
received a sentence of eleven years. The trial court imposed the
sentences to run consecutively. On appeal, the defendant claims that
the convicting evidence is insufficient and that the trial court
erroneously excluded alibi evidence, instructed the jury, and
sentenced him. Upon review, we affirm the conviction of especially
aggravated robbery, reverse the conviction of especially aggravated
burglary and modify it to aggravated burglary, and modify the
sentences.

CORRECTED OPINION
http://www.tba.org/tba_files/TCCA/2005/davisr72105.pdf

CHRISTOPHER A. JOHNSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Christopher A. Johnson, Chattanooga, Tennessee, Pro se.

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

Judge: OGLE

First Paragraph:

The petitioner, Christopher A. Johnson, appeals from the trial court's
order denying his petition for writ of habeas corpus. The State has
filed a motion requesting that this court affirm the trial court's
denial of relief pursuant to Rule 20 of the Rules of the Court of
Criminal Appeals. The petitioner has failed to establish a cognizable
claim for habeas corpus relief. Accordingly, the State's motion is
granted and the judgment of the trial court is affirmed.

http://www.tba.org/tba_files/TCCA/2005/johnsonc72105.pdf

STATE OF TENNESSEE v. JOHN A. JUDKINS, JR.

Court:TCCA

Attorneys:                          

David Brady, Public Defender; and John B. Nisbet, III, Assistant
Public Defender, Cookeville, Tennessee, for the Appellant, John A.
Judkins, Jr.

Paul G. Summers, Attorney General and Reporter; Preston Shipp,
Assistant Attorney General; William A. Gibson, District Attorney
General; and William M. Locke, Assistant District Attorney General,
for the Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, John A. Judkins, Jr., appeals the sentencing decision
of the DeKalb County Criminal Court following termination of his
judicial diversion. Judkins was indicted for aggravated burglary and
two counts of theft of property and was granted judicial diversion and
placed on supervised probation for a period of three years.
Simultaneously with the entry of an order of judicial diversion, a
negotiated plea agreement was presented and approved by the court to
the indicted offenses which provided that Judkins would receive two
three-year sentences and one eleven month and twenty-nine day
suspended sentence for the three crimes. The agreement further
provided for concurrent sentences to be served on "straight
probation." A probation violation warrant was subsequently issued
alleging that Judkins had committed additional offenses. Following
termination of judicial diversion, in the absence of a sentencing
hearing, Judkins was sentenced to three years confinement in the
Department of Correction. Judkins argues on appeal that the trial
court erred by not imposing the effective three-year sentence of
"straight probation" as provided in the plea agreement. After review,
we conclude that the Sentencing Act does not contemplate the
coexistent grant of judicial diversion and service of a sentence
imposed pursuant to a negotiated plea agreement as the two are
inconsistent in purpose. Accordingly, the trial court's consideration
of the terms of the plea agreement in the sentencing decision was
error. The case is, therefore, remanded to the trial court for a
sentencing hearing.

http://www.tba.org/tba_files/TCCA/2005/judkinsj72105.pdf

KELVIN A. LEE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Kelvin A. Lee, Riverbend Maximum Security Institution, Nashville,
Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Kath Morante, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: MCLIN

First Paragraph:

The petitioner, Kelvin A. Lee, appeals pro se from the order of the
Davidson County Criminal Court denying his petition for habeas corpus
relief without a hearing. Specifically, he alleges that he was
improperly transferred from juvenile to criminal court and that the
trial court failed to comply with the terms of his plea agreement.
Upon review, we conclude that the petitioner has not presented any
claims that justify habeas corpus relief. Therefore, we affirm the
dismissal of his petition.

http://www.tba.org/tba_files/TCCA/2005/leek72105.pdf

MARIO A. LEGGS v. HOWARD CARLTON, WARDEN

Court:TCCA

Attorneys:                          

Mario A. Leggs, Mountain City, Tennessee, Pro se.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman
McIntire, Assistant Attorney General; and Joe C. Crumley, Jr.,
District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The petitioner was convicted by a jury in the Johnson County Circuit
Court of multiple offenses, and he received a total effective sentence
of twenty-two years, eleven months, and twenty-nine days.
Subsequently, the petitioner filed a petition for a writ of habeas
corpus, alleging that Blakely v. Washington, 542 U.S. 296, 124 S. Ct.
2531 (2004), renders his sentences void. The trial court summarily
dismissed the petition, which dismissal the petitioner appeals. The
State 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. Upon review of the record and the parties' briefs,
we conclude that the petition was properly dismissed. Accordingly, the
State's motion is granted and the judgment of the trial court is
affirmed

http://www.tba.org/tba_files/TCCA/2005/leggsm72105.pdf

STATE OF TENNESSEE v. BRIAN CARL LEV

Court:TCCA

Attorneys:                          

Mark E. Stephens, District Public Defender; and John Halstead,
Assistant Public Defender, Knoxville, Tennessee, for the Appellant,
Brian Carl Lev.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; and Takisha Fitzgerald, Assistant District Attorney General,
for the Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Brian Carl Lev, appeals the denial of judicial
diversion following his guilty pleas to two counts of statutory rape.
After review, we reverse the sentencing decision of the trial court
and remand for deferment of the proceedings as provided by Tennessee
Code Annotated section 40-35-313 (2003).

http://www.tba.org/tba_files/TCCA/2005/levb72105.pdf

WILLIAM P. LIVINGSTON, JR. v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Gerald T. Edison, Greeneville, Tennessee, for the Appellant, William
P. Livingston, Jr.

Paul G. Summers, Attorney General & Reporter; Michael Markham,
Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney
General; and Paige Miles Collins, Assistant District Attorney General,
for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The petitioner, William P. Livingston, Jr., appeals the dismissal by
the Hamblen County Criminal Court of his petition for post-conviction
relief. After review of the record, we affirm.

http://www.tba.org/tba_files/TCCA/2005/livingstonw72105.pdf

KENDRICK F. LOVE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Stanley K. Pierchoski, Lawrenceburg, Tennessee, for the appellant,
Kendrick F. Love.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; Mike Bottoms, District Attorney General;
and Patrick S. Butler, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

A Giles County Jury convicted the Petitioner, Kendrick F. Love, of
multiple felony cocaine offenses, and the trial court imposed an
effective sentence of twenty-eight years. On direct appeal, this Court
affirmed the Petitioner's convictions and sentences. The Petitioner
filed a petition for post-conviction relief, contending that he was
denied effective assistance of counsel. Following a hearing, the
post-conviction court dismissed the petition. After thoroughly
reviewing the record and the applicable law, we affirm the judgment of
the post-conviction court.

http://www.tba.org/tba_files/TCCA/2005/lovek72105.pdf

STATE OF TENNESSEE v. MICHAEL D. STREET

Court:TCCA

Attorneys:                          

Eric L. Davis, Franklin, Tennessee, for the appellee, Michael D.
Street.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; Ronald L. Davis, District
Attorney General; and Mary Katherine White, Assistant District
Attorney General, for the appellant, State of Tennessee.

Judge: MCLIN

First Paragraph:

In this interlocutory appeal, the State challenges the trial court's
suppression of various statements allegedly made by the defendant,
Michael D. Street. At the suppression hearing, the trial court
excluded the statements based solely upon the fact that the State
failed to comply with discovery Rule 16(a)(1)(A) of the Tennessee
Rules of Criminal Procedure, requiring notice to the defendant. The
trial court did not reach the constitutionality of the statements or
otherwise recite its reasoning for admission of some statements and
exclusion of others. In consequence, we remand this matter to the
trial court for further consideration and additional findings.

http://www.tba.org/tba_files/TCCA/2005/streetm72105.pdf

STATE OF TENNESSEE v. HARRY G. STURGILL
ORDER

Court:TCCA

Judge: PER CURIAM

First Paragraph:

This court granted Defendant's petition to rehear to consider the
impact of the United States Supreme Court's decision in Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004) on Defendant's
sentence. Since that time, the Tennessee Supreme Court has considered
the impact of Blakely on Tennessee's sentencing scheme and concluded
that the Criminal Sentencing Reform Act of 1989and its procedures do
not violate a defendant's Sixth Amendment right to a trial by a jury
as described in Blakely. See State v. Edwin Gomez, ____ S.W.3d _____,
No. M2002-01209-SC-R11-CD, 2005 WL 856848, at *22 (Tenn. Apr. 15.
2005). In light of the Supreme Court's recent decision in Gomez, this
court determines that Defendant's argument that his sentence is
improper under Blakely has no merit. This court's previous opinion is
affirmed in all respects. Costs are assessed against the State.

ORDER
http://www.tba.org/tba_files/TCCA/2005/sturgillh_ord72105.pdf

STATE OF TENNESSEE V. DEMARCUS O'SHEA WALKER

Court:TCCA

Attorneys:                          

Robin Farber, Columbia, Tennessee, for the Appellant, Demarcus O'Shea
Walker.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner,
Assistant Attorney General; T. Michael Bottoms, District Attorney
General; and Daniel J. Runde, Assistant District Attorney General, for
the Appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Defendant, Demarcus O'Shea Walker, pled guilty to various
offenses, and the trial court sentenced him to an effective sentence
of ten years, which it ordered the Defendant to serve on probation.
While the Defendant was on probation, a probation violation report was
filed and, after a hearing, the trial court revoked the Defendant's
probation and ordered that the Defendant serve the remainder of his
sentence in prison. On appeal, the Defendant contends that the trial
court erred by revoking his probation. After thoroughly reviewing the
record and the applicable authorities, we affirm the trial court's
judgment.

http://www.tba.org/tba_files/TCCA/2005/walkerd72105.pdf

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