Deadline approaches for $90,000 to be distributed to
'We The People' consumers


Consumers eligible for refunds from We The People, a self-described "legal document preparation company," have until May 22 to turn in their claim forms to the Tennessee Attorney General's Office. Attorney General Paul G. Summers made the announcement after his office was unable to reach several eligible consumers following the agreement with We The People. The agreement, reached in February, resolves the state's lawsuit, which alleged consumer protection and unauthorized practice of law violations. We The People subsequently closed down its two franchise locations in Tennessee.

Read the attorney general's press release.
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.

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Editor-in-Chief, TBALink

SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2006/certlist050806.pdf


IN RE: F.R.R., III

Court: TSC

Attorneys:

Gary W. Wicks, Sr., Franklin, Tennessee, for the appellant, Floyd Ray Rogers.

Deana C. Hood, Franklin, Tennessee, for the appellees, Mitzi A. Gomes and Gary F. Gomes.

Robert H. Plummer, Jr., Franklin, Tennessee, Guardian Ad Litem.

Judge: JANICE M. HOLDER

In this direct appeal from the termination of his parental rights, Father seeks to reverse the juvenile courtís finding that he abandoned his child. After carefully reviewing the record and relevant legal authority, we affirm the juvenile courtís finding of abandonment and the judgment terminating Fatherís parental rights.

http://www.tba2.org/tba_files/TSC/2006/frr050806.pdf


BRENDI ERIN KAPLAN (formerly BUGALLA) v. JOHN A. BUGALLA

This is a corrected opinion.


Court: TSC

Attorneys:

Gregory D. Smith, James G. Martin, III, and Aminah M. Collick, Nashville, Tennessee, for the appellant, Brendi Erin Kaplan.

David W. Garrett, Nashville, Tennessee, for the appellee, John A. Bugalla.

Judge: CORNELIA A. CLARK

This case involves a post-divorce petition to modify child support to include payment of the childrenís extraordinary educational expenses. The trial court denied relief, and the Court of Appeals affirmed. We accepted this case to determine whether an obligee-parent is required to prove a ďsignificant varianceĒ, as defined in the Child Support Guidelines, in the obligor-parentís income before the trial court can order the obligor-parent to pay a portion of the childrenís private school tuition and expenses. We hold that the ďsignificant varianceĒ standard is inapplicable to a modification of child support for payment of extraordinary educational expenses. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TSC/2006/kaplanbCORR050806.pdf


STATE OF TENNESSEE v. MARTY MITCHELL CLARK

Court: TCCA

Attorneys:

George Morton Googe, District Public Defender, and Gregory D. Gookin, Assistant Public Defender, for the appellant, Marty Mitchell Clark.

Paul G. Summers, Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General; James G. Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: ALAN E. GLENN

The defendant, Marty Mitchell Clark, was convicted by a Madison County jury of aggravated burglary, a Class C felony, attempted aggravated burglary, a Class D felony, theft of property under $500, and vandalism under $500, both Class A misdemeanors. He was sentenced as a Range II, multiple offender to ten and eight years, respectively, for the felony counts and eleven months and twenty-nine days for each misdemeanor, with all sentences to be served concurrently for a total effective sentence of ten years in the Department of Correction. On appeal, he argues the evidence was insufficient to support his convictions. Finding no error, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/clarkm050806.pdf


STATE OF TENNESSEE v. CRYSTAL ANTONETTE DELANEY

Court: TCCA

Attorneys:

Shana McCoy Johnson, Senior Assistant Public Defender, Somerville, Tennessee, for the Appellant, Crystal Antonette Delaney.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Terry D. Dycus, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: DAVID G. HAYES

Pursuant to an open plea agreement, as provided by Tenn. R. Crim. P. 11(e)(1)(B), the Appellant, Crystal Antonette Delaney, aka Crystal Ward, pled guilty to identity theft, a Class D felony, and theft of property, a Class C felony. Following the guilty plea hearing, the Fayette County Circuit Court sentenced Delaney, as a Range III persistent offender, to ten years for the identify theft and twelve years for the theft of property. The court further ordered that the two sentences were to be served concurrently to each other but consecutively to an effective twelve-year sentence imposed in a separate Lauderdale County case. On appeal, Delaney contends that the trial court failed to properly consider and follow the sentencing guidelines and raises the following issues for our review: (1) whether the sentences imposed are excessive; and (2) whether the court erred in ordering that the sentences be served consecutively to her Lauderdale County sentence. Because the trial court failed to conduct a sentencing hearing as contemplated by our sentencing statutes, the record contains no findings of fact with regard to sentencing enhancement factors or the trial courtís reasons for imposing consecutive sentences. As such, we are unable to conduct a de novo review of the sentences imposed and, accordingly, remand the case to the Fayette County Circuit Court for a sentencing hearing and for written findings of fact and imposition of sentences in accordance with statutory law.

http://www.tba2.org/tba_files/TCCA/2006/delaneyc050806.pdf


JEFFREY L. GILLS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ronald Munkeboe, Jr., Nashville, Tennessee, for the Appellant, Jeffrey L. Gills.

Paul G. Summers, Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; Bret Gunn, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: ROBERT W. WEDEMEYER

A Davidson County jury convicted the Petitioner of facilitation of first degree murder, two counts of facilitation of attempted first degree murder, two counts of aggravated assault, and felony reckless endangerment. The trial court sentenced the Petitioner to fifty-one years in prison, and this Court affirmed the Petitionerís convictions and sentences on appeal. State v. Frank E. Huey, Ronnie Finch & Jeffrey L. Gills, No. M2000-02793-CCA-R3-CD, 2002 WL 517132, at *1 (Tenn. Crim. App., at Nashville, Apr. 5, 2002), perm. app. denied (Tenn. Oct. 14, 2002). Subsequently, the Petitioner filed a petition for post-conviction relief, alleging that he received the ineffective assistance of counsel. After a hearing, the post-conviction court dismissed the petition, and the Petitioner now appeals alleging that the post-conviction court erred. Finding no reversible error, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2006/gillsj050806.pdf


TIMOTHY HODGES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Jason White, Assistant District Attorney General, for the appellant, State of Tennessee.

Charles W. Cross, Nashville, Tennessee, for the appellee, Timothy Hodges.

Judge: JOHN EVERETT WILLIAMS

The State appeals the grant of habeas relief, contending that the habeas court went beyond its authority in determining that Wisconsin did not have personal jurisdiction over the petitioner in an action to extradite him for a criminal charge of intentionally failing to support his children. Upon review, we conclude that the petitioner was properly classified as a fugitive and further agree that the habeas courtís findings went beyond the scope of permissible inquiry. Therefore, we reverse the grant of habeas relief.

http://www.tba2.org/tba_files/TCCA/2006/hodgest050806.pdf


STATE OF TENNESSEE v. SPENCER PETERSON

Court: TCCA

Attorneys:

Kevin E. Childress, Memphis, Tennessee, for the Appellant, Spencer Peterson.

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

Judge: DAVID G. HAYES

The Appellant, Spencer Peterson, appeals the sentencing decision of the Shelby County Criminal Court. After a jury trial, Peterson was convicted of three counts of second degree murder, two counts of attempted second degree murder, eight counts of aggravated robbery, one count of aggravated burglary, three counts of attempted especially aggravated robbery, and two counts of attempted aggravated robbery. The trial court merged the three second degree murder convictions and the separate convictions of aggravated robbery involving the same victim and sentenced Peterson as a Range I offender to consecutive terms of twenty years for the second degree murder conviction and eight years for each of the four aggravated robbery convictions. The trial court ordered concurrent sentences for the remaining convictions, resulting in an effective sentence of fifty-two years in the Department of Correction. Peterson appealed the imposition of consecutive sentences, and this court remanded the case to the trial court for purposes of setting forth its reasons for consecutive sentencing, as required by Tenn. R. Crim. P. 32(c)(1). On appeal, Peterson again argues that the trial court erred in imposing consecutive sentences. After review of the record, we affirm the trial courtís sentencing decision.

http://www.tba2.org/tba_files/TCCA/2006/petersonr050806.pdf


STATE OF TENNESSEE v. DARRELL E. POINTER

Court: TCCA

Attorneys:

Jeffrey A. DeVasher (on appeal) and Allegra Montgomery (at hearing), Nashville, Tennessee, for the appellant, Darrell Eugene Pointer.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Renee Erb, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: ROBERT W. WEDEMEYER

The Defendant, Darrell E. Pointer, pled guilty to two counts of aggravated robbery, and the trial court sentenced him, as a Range III offender, to twenty years in prison for each count to be served consecutively. On appeal, the Defendant contends that the trial court erred when it imposed consecutive sentences. Finding that there exists no reversible error, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/pointerd050806.pdf


STATE OF TENNESSEE v. DANIEL E. POTTEBAUM, SR.

Court: TCCA

Attorneys:

Mark Scruggs, Nashville, Tennessee, for the appellant, Daniel E. Pottebaum, Sr.

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

Judge: DAVID H. WELLES

The Defendant, Daniel E. Pottebaum, Sr., was convicted by a Davidson County jury of two counts of rape of a child, two counts of aggravated sexual battery, and one count of assault. For these convictions, the Defendant received an effective seventy-four-year sentence in the Department of Correction. In this appeal as of right, the Defendant presents the following issues for our review: (1) whether the trial court erred by denying certain motions in limine regarding prior allegations of sexual abuse; (2) whether the trial court erred in ruling that, if the Defendant chose to testify, his prior felony conviction for escape would be admissible to impeach his credibility; (3) whether the trial court erred by denying his motion to dismiss the indictment based upon the Department of Childrenís Servicesí failure to preserve evidence; (4) whether it was error to permit the State to play a taped telephone conversation between the Defendant and the victimís mother; (5) whether the trial court erroneously permitted the State to ask ďopen-endedĒ questions; and (6) whether his sentence was improperly enhanced in violation of Blakely v. Washington, 542 U.S. 296 (2004). Because the Defendant should have been allowed to impeach the victim by cross-examining her about the prior accusation of sexual abuse and because the tape was erroneously admitted, the judgments of conviction are reversed, and the case is remanded for a new trial.

http://www.tba2.org/tba_files/TCCA/2006/pottebaumd050806.pdf


Ability of Municipalities to Prevent Individuals Convicted of D.U.I. from Holding a Beer Permit or Being Employed at an Establishment That Has a Beer Permit

TN Attorney General Opinions

Date: 2006-05-04

Opinion Number: 06-082

http://www.tba2.org/tba_files/AG/2006/ag_06-082.pdf

Validity of general pay raise for all school employees except contract school bus drivers that are paid partly as subcontractors and partly as school employees

TN Attorney General Opinions

Date: 2006-05-05

Opinion Number: 06-083

http://www.tba2.org/tba_files/AG/2006/ag_06-083.pdf

Payment of Medical Expenses of Jail Prisoners on Medical Furlough or Bond

TN Attorney General Opinions

Date: 2006-05-05

Opinion Number: 06-084

http://www.tba2.org/tba_files/AG/2006/ag_06-084.pdf

TODAY'S NEWS

Legal News
Passages
Election 2006
TBA Member Services

Legal News
Attorney general process sparks comments, speculation
The Tennessean supports the Supreme Court's role to choose the state's next attorney general, but calls for "an open, transparent selection process that is worthy of the office." Read the editorial here.

The Knoxville News Sentinel explores the question of whether the next attorney general might be a woman, with Court of Appeals Judge Patricia J. Cottrell, House Majority Leader Kim McMillan and Nashville attorney Margaret Behm expressing "at least some interest."

Johnson's execution date to be set
A motion to reset the date of execution has been issued by the Tennessee Supreme Court for Donnie E. Johnson. "The defendant will no doubt argue that the Court should refrain from setting a new date until he has been afforded an opportunity to appeal the district courtís denial of his Rule 60(b) motion," the order reads. "But the district courtís order makes plain that any such appeal would lack merit."
Read the order.
Ruling reinstates Reid's execution date
A state Supreme Court ruling last week reinstated the June 28 execution date for convicted killer Paul Dennis Reid after the justices denied his appeal.
The Tennessean has the story.
Wealthy turning to retired jurists as alternative to court
More and more Hollywood stars and business moguls are reportedly engaging in a practice some warn is creating a secret justice system for the rich and famous. The Los Angeles Times reports they're paying retired judges to quietly handle their civil disputes outside the glare of public courthouses.
Read the Associated Press story.
Passages
David Franklin Harrod dies
Athens attorney David Franklin Harrod, 54, died Sunday at his home. A 1976 graduate of the University of Tennessee College of Law, he practiced law in Athens for 29 years. He was a founding partner of Carter, Harrod & Cunningham, which is now Carter, Harrod & Willhite PLLC. Visitation is May 9, 10 a.m. to noon †and †4 to 7 p.m. at the Keith Memorial United Methodist Church in Athens. Funeral services are May 10, at 10:35 a.m., also at Keith Memorial. For details on suggestions for contributions, read the obituary in the
Knoxville News Sentinel.
Election 2006
Party label puts bind on judicial candidates
Columnist Gail Kerr says that making judicial candidates declare a party doesn't make any sense. "When you run under a party label, it gives the appearance that the courts are partisan, and they certainly are not," she quoted retired Tennessee Supreme Court Chief Justice Frank Drowota III as saying. "It is awkward and uncomfortable." Read more in the
Tennessean.
Court vote now settled; decision on judge next
SMYRNA ó Citizens have already decided the town's court will retain its General Sessions powers, now they face an August decision on who should sit on the bench. Residents Tuesday voted 836 to 46 to change the town's charter to allow the positions of town clerk and town judge to be elected to four- and eight-year terms, respectively, beginning this August. Read more in
The Daily News Journal.
First new circuit clerk in 20 years for White Co.
SPARTA -- Beverly Finley Templeton, who was vying for White County circuit court clerk, unseated 20-year incumbent Henry E. Foster by 336 votes last Tuesday. Read more in
The Expositor.
Cumberland Co. results
A light turnout did not hurt incumbent office holders in Cumberland County Tuesday with unofficially about 2,700 voters casting ballots in the Republican County Primary and 2,800 voters casting ballots in the Democratic Primary. Winners included Criminal Court Judge John Turnbull, Circuit Court Judge John Maddux; Chancellor Ronald Thurman; Criminal Court Judge Leon Burns Jr.; Criminal Court judges Lillie Ann Sells and Edwin G. Sadler; District Attorney General William E. (Bill) Gibson; and Public Defender David N. Brady. Read more details in the
Crossville Chronicle.
Voting machine malfunctions in Grundy Co.
Because of a problem with the new electronic voting machines, the unofficial Grundy County election returns were hand-tabulated from each electronic machine last week in the Grundy County Election Commission office. Read the list from the
Grundy County Herald.
TBA Member Services
Program offers savings on auto insurance
GEICO and the Tennessee Bar Association team up to offer the GEICO Preferred auto insurance program.
Find out more

 
 
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