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TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at http://www.tba.org/getpassword.mgi.

01 - TN Supreme Court
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06 - TN Court of Criminal Appeals
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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

STATE OF TENNESSEE v. ROBERT PAGE

Court: TSC

Attorneys:

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Tracey Jones, Assistant Attorney General; William L. Gibbons, District Attorney General; and David H. Findley, Assistant District Attorney General, for the appellant, State of Tennessee.

Paul Guibao and Larry Copeland, Memphis, Tennessee, for the appellee, Robert Page.

Judge: BIRCH

We granted the Stateís application for permission to review this case pursuant to Tennessee Rule of Appellate Procedure 11 in order to determine the constitutionality of Tennessee Code Annotated section 40-18-110(c), which provides that failure to request a lesser-included offense instruction in writing waives the right to assign it as an issue in a motion for a new trial or on appeal. We conclude that section 40-18-110(c) renders the omission of instruction on lesser- included offenses subject to the general rule that issues concerning instructions are considered waived in the absence of objection or a written request, unless they contain plain error. Under section 40-18-110(c), even absent a written request, the trial judge may still charge the jury on applicable lesser-included offenses and an appellate court may still review a lesser-included offense issue under the doctrine of plain error. We conclude, however, that the failure to instruct on lesser-included offenses in the present case does not constitute plain error. Accordingly, we reverse the judgment of the Court of Criminal Appeals.

http://www.tba2.org/tba_files/TSC/2006/pager020806.pdf


CHARLENE SINOR v. TIMOTHY BARR

Court: TCA

Attorneys:

Mike J. Urquhart, Nashville, Tennessee for the Appellant, Timothy Barr.

Paul G. Summers, Attorney General and Reporter and Warren Jasper, Assistant Attorney General, Nashville, Tennessee for the Appellee, Charlene Sinor.

Judge: SWINEY

Charlene Sinor (Petitioner) filed a petition for contempt seeking, in part, to have Timothy Barr (Respondent) found in criminal contempt for his failure to pay child support as ordered. After a trial, the Trial Court held Respondent in criminal contempt finding six violations of the Trial Courtís orders. Respondent appeals to this Court claiming that his conviction of criminal contempt was based upon an improper evidentiary presumption and insufficient evidence. We reverse.

http://www.tba2.org/tba_files/TCA/2006/sinorc020806.pdf


STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES, v. T.M.B.K.

Court: TCA

Attorneys:

D. Marty Lasley, Chattanooga, Tennessee, for the Appellant, T.M.B.K.

Paul G. Summers, Attorney General and Reporter, and Douglas Dimond, Senior Counsel, General Civil Division, Nashville, Tennessee, for the Appellee, State of Tennessee, Department of Children's Services.

Judge: LEE

In this appeal, T.M.B.K. (Mother) contends that the trial court erred in terminating her parental rights and that the trial court lacked jurisdiction to adjudicate the initial child custody proceeding. After careful review of the evidence and applicable authorities, we hold that the trial court had subject matter jurisdiction and the evidence does not preponderate against the trial courtís finding by clear and convincing evidence of abandonment and substantial noncompliance with the permanency plan. We futher hold that the evidence preponderates against the trial courtís finding by clear and convincing evidence of a failure to remedy persistent conditions. Therefore, we affirm in part and reverse in part.

http://www.tba2.org/tba_files/TCA/2006/tmbk020806.pdf


BRENDA WOODS, TAWANA POLK, JONATHAN JOY AND CLIFTON POLK
v.
CATHY N. JONES, ADMINISTRATOR OF ELECTIONS, HARDEMAN COUNTY ELECTION COMMISSION;
YVONNE ALLEN, HARDEMAN COUNTY ELECTION COMMISSIONER;
CARL GIBSON, HARDEMAN COUNTY ELECTION COMMISSIONER;
THAREN E. HALEY, HARDEMAN COUNTY ELECTION COMMISSIONER; JAMES E. HICKS, HARDEMAN COUNTY ELECTION COMMISSIONER; AND
JANET WELLONS, HARDEMAN COUNTY ELECTION COMMISSIONER


Court: TCA

Attorneys:

C. Michael Robbins, Memphis, Tennessee, for the appellants, Brenda Woods, Tawana Polk, Jonathan Joy, and Clifton Polk.

W. Boyette Denton, Bolivar, Tennessee, for the appellees, Cathy N. Jones, Administrator of Elections for the Hardeman County Election Commission, and Yvonne Allen, Carl Gibson, Tharen E. Haley, James E. Hicks, and Janet Wellons, Hardeman County Election Commissioners.

Judge: KIRBY

This is an election contest. The plaintiffs were unsuccessful candidates for office in a municipal election held on May 19, 2005. On June 3, 2005, they filed this election contest. The defendants filed a motion to dismiss the lawsuit based on the special ten-day statute of limitations for election contests, which is set out in T.C.A. Section 2-17-105. The trial court granted the motion to dismiss. The plaintiffs now appeal. We reverse, concluding that, pursuant to Tennessee Rule of Civil Procedure 6.01, intermediate Saturdays, Sundays, and legal holidays are excluded from the computation of the time in which the plaintiff must file suit.

http://www.tba2.org/tba_files/TCA/2006/woodsb020806.pdf


STATE OF TENNESSEE v. ROBERT FLUELLEN

Court: TCCA

Attorneys:

Irwin Cantor (at trial) and Gerald S. Green (on appeal), Memphis, Tennessee, for the Appellant, Robert Fluellen.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General; William L. Gibbons, District Attorney General; Alanda Dwyer, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

Following a bench trial, the Defendant, Robert Fluellen, was convicted of one count of burglary of a building, a Class D felony. The Defendant was sentenced as a multiple offender to six years in the workhouse. On appeal, the Defendant contends that the evidence presented at his bench trial is not sufficient to sustain his conviction. Finding no reversible error, we affirm the trial courtís judgment.

http://www.tba2.org/tba_files/TCCA/2006/fluellenr020806.pdf


JOSEPH D. GAINES v. KEVIN MYERS, WARDEN

Court: TCCA

Attorneys:

Joseph D. Gaines, pro se.

Paul G. Summers, Attorney General & Reporter and Rachel E. Willis, Assistant Attorney General, for the appellee, Kevin Myers, Warden.

Judge: WADE

The petitioner appeals the summary dismissal of his petition for writ of habeas corpus. In this appeal, he asserts that the judgments are void because the indictment was defective. The judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2006/gainesj020806.pdf


STATE OF TENNESSEE v. SHANNON A. HOLLADAY
With Concurring Opinion


Court: TCCA

Attorneys:

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; James N. Ramsey, District Attorney General; and Jan Hicks, Assistant District Attorney General, for the appellant, State of Tennessee.

J. Thomas Marshall, Jr., District Public Defender, for the appellee, Shannon A. Holladay.

Judge: TIPTON

An Anderson County grand jury indicted the defendant, Shannon A. Holladay, for one count of vehicular homicide by intoxication, a Class B felony, and one count of vehicular homicide by recklessness, a Class C felony. Before trial, the defendant filed a motion to suppress the evidence obtained from the air bag sensor module in the defendantís car, which the Anderson County Criminal Court granted. The state appeals, contending that the trial court erred in granting the defendantís motion to suppress. We dismiss this case for lack of jurisdiction.

http://www.tba2.org/tba_files/TCCA/2006/holladays020806.pdf

Concurring Opinion
http://www.tba2.org/tba_files/TCCA/2006/holladays_con020806.pdf


LARRY McKAY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Larry McKay, Nashville, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; C. Daniel Lins, Assistant Attorney General; and Victor S. (Torry) Johnson III, District Attorney General, Dan Hamm, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

This matter is before the Court upon the Stateís 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 courtís order summarily dismissing the petition for the writ of habeas corpus. In that petition, the petitioner argues that his indictments were void because the applicable statute under which he was indicted did not define the use of a deadly weapon as an element of first degree murder. 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 Stateís motion is granted and the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2006/mckayl020806.pdf


STATE OF TENNESSEE v. RYAN SANDSON

Court: TCCA

Attorneys:

Robert Wilson Jones, Shelby County Public Defender; Garland Ergüden, Assistant Public Defender (on appeal); and Harry Sayle, Assistant Public Defender (at trial), for the appellant, Ryan Sandson.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General; William L. Gibbons, District Attorney General; and Theresa McCusker, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Ryan Sandson, was found guilty by a Shelby County jury of aggravated robbery, a Class B felony, and was sentenced as a standard offender to eleven years, six months in the Department of Correction. On appeal, he raises two issues: (1) whether the evidence was sufficient to support his conviction; and (2) whether his sentence was excessive. Following our review, we affirm the judgment of the trial court

http://www.tba2.org/tba_files/TCCA/2006/sandsonr020806.pdf


JEREMY D. SHIVERS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Dominic Leonardo, Nashville, Tennessee, for the appellant, Jeremy D. Shivers.

Paul G. Summers, Attorney General & Reporter; Jane L. Beebe, Assistant Attorney General; and Amy Eisenbeck, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WADE

The petitioner, Jeremy D. Shivers, appeals the denial of his petition for post-conviction relief. In this appeal, he asserts that his trial counsel was ineffective and that, as a result of counsel's deficient performance, his guilty pleas were not knowingly and voluntarily entered. The judgment of the post- conviction court is affirmed.

http://www.tba2.org/tba_files/TCCA/2006/shiversj020806.pdf


Inability of the State to Require Notaries Public to be U.S. Citizens

TN Attorney General Opinions

Date: 2006-02-08

Opinion Number: 06-026

http://www.tba2.org/tba_files/AG/2006/ag_06-26.pdf

TODAY'S NEWS

Legal News
Legislative News

Legal News
New Roane County bar officers
The Roane County Bar Association has elected its new slate of officers: Browder Williams assumes the office of president; Harold D. Balcom Jr. is vice president; Jack McPherson takes over as treasurer; and Donice Butler-Kinsey is secretary.

Forgety announces candidacy for chancellor
Chancellor Telford Forgety of Dandridge has announced that he will run for re-election in the Republican primary on May 2. Forgety currently serves as chancellor of the 4th and 5th Judicial Districts, which serve Blount, Cocke, Grainger, Jefferson and Sevier Counties. Read more about the candidate in the
Newport Plain Talk
Dickson County primary canceled
State election officials have ruled that the Dickson County Democratic Party did not follow proper rules in calling for a primary election, which was scheduled to choose nominees for circuit court judges and the 23rd Judicial District attorney general and public defender. Read the full story in the
Gallatin News Examiner
Lawyer asks clients to fund special master
A Nashville lawyer recently asked members of a 6-year-old class-action lawsuit against the city of Columbia to help pay for a special master in the case.
Read about it in the Daily Herald
Victim witness coordinators serve important function
A Clarksville newspaper says that Montgomery County's victim witness program should be retained by local courts levying an additional fee to pay their salaries.
Read the Leaf-Chronicle's opinion
Qualifications for Bradley County judges
In a continuing series on elected positions within the county, the Cleveland Daily Banner highlights the qualifications and responsibilities of general sessions judges.
Read the story
Students get help in deciding careers
About 100 Maury County high school students participated in Job Shadow Day 2006 recently, exploring such careers as business, retail marketing and journalism as well as medicine and the law. "Iíve always leaned towards a career in corporate law but wanted to explore other aspects, including the role of a public defender," one of the students said, after spending the day with 22nd Judicial District Public Defender Claudia Jack.
The Columbia Daily Herald has the story
Legislative News
Government sunshine bill introduced
During the new legislative session, legislators likely will consider amendments to the 1974 state law that sets requirements for which government meetings must be open to the public. Among the provisions of interest to lawyers, the bill would create new procedures for closing a meeting, including those procedures governing lawyer-client meetings. The sponsors will contend that they will be codifying Tennessee Supreme Court holdings on the attorney-client issue. The Government Sunshine Improvement Act of 2006 also makes a number of other changes to the law such as providing a more explicit definition of what constitutes a meeting and imposing new penalties for violations. Read more about the proposed legislation in the
Loudon County News-Herald
Track legislation of interest to Tennessee attorneys
The TBA Action List tracks bills in the General Assembly that the TBA has a direct interest in. This means it has either initiated the legislation, taken a position on the bill or has a policy on the issue. The TBA Watch List is a broader list of bills of interest to the Tennessee legal community.
TBA Bill Tracking Service

 
 
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