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TODAY'S OPINIONS
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03 - TN Supreme Court
00 - TN Worker's Comp Appeals
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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2007/certlist_012907.pdf


STATE OF TENNESSEE v. MELISSA ANN LAYMAN and STATE OF TENNESSEE v. JONATHAN RAY TAYLOR

Court: TSC

Attorneys:

M. Sue White, Seymour, Tennessee, for the appellant, Melissa Ann Layman.

Kevin C. Angel, Clinton, Tennessee, for the appellant, Jonathan Ray Taylor.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; John H. Bledsoe, Assistant Attorney General; James N. Ramsey, District Attorney General; and Jan Hicks, Assistant District Attorney General for the appellee, State of Tennessee.

Judge: HOLDER

We granted and consolidated the applications for permission to appeal filed on behalf of Melissa Ann Layman and Jonathan Ray Taylor to determine the scope of a trial courtís discretion to deny a motion to nolle prosequi to which the defendant has consented. Laymanís appeal also presents the issue of whether a victimís family has a right to be heard at a pretrial hearing concerning a plea agreement or a nolle prosequi. We conclude that when an uncontested motion to nolle prosequi or dismiss a criminal charge is independent of a plea agreement, a trial courtís discretion to deny the motion under Rule 48(a) of the Tennessee Rules of Criminal Procedure is limited to extraordinary circumstances indicating betrayal of the public interest. Because in each case the prosecutorís independent, uncontested motion to nolle prosequi the greater charge of the indictment was neither filed in bad faith nor motivated by considerations clearly contrary to manifest public interest, we hold that the trial court abused its discretion in rejecting the nolle prosequi. We also hold in Laymanís case that the victimís family did not have the right to be heard at the pretrial hearings concerning the plea agreement and nolle prosequi because such pretrial hearings are not critical stages of the criminal justice process as defined by Tennessee Code Annotated section 40-38-302(2). Any error in considering the statements of the family, however, was harmless. Accordingly, we reverse the judgments of the trial court and the Court of Criminal Appeals in each case and remand for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TSC/2007/layman-taylor_012907.pdf

GARY R. WADE, J., concurring and dissenting.
http://www.tba2.org/tba_files/TSC/2007/layman-taylorDIS_012907.pdf


STATE OF TENNESSEE v. STEPHEN McKIM

Court: TSC

Attorneys:

Mark S. McDaniel, Memphis, Tennessee, for the appellant, Stephen McKim.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Brian Clay Johnson, Assistant Attorney General; William L. Gibbons, District Attorney General; Kevin Rardin, Assistant District Attorney General; for the appellee, the State of Tennessee.

Judge: CLARK

We accepted this extraordinary appeal in order to (1) determine the effect of a district attorney generalís consideration of an irrelevant factor in deciding whether to grant pretrial diversion and (2) clarify when an interlocutory appeal from a denial of pretrial diversion should be granted. In this case, the defendant was indicted for criminally negligent homicide following the death of his daughter after the defendant left her in his car on a hot summer day. The defendant applied for pretrial diversion. The district attorney generalís office denied diversion, in part on the basis of its judgment that diversion of a negligent homicide ďappears to be an aberration of the law.Ē The trial court refused to overturn the prosecutorís decision, and the defendant applied for permission to pursue an interlocutory appeal. The trial court denied permission, and the defendant then applied to the Court of Criminal Appeals for permission to pursue an extraordinary appeal. The Court of Criminal Appeals denied the defendantís application. We granted review and hold that the district attorney general abused his discretion when he relied upon an irrelevant factor in denying pretrial diversion. The trial courtís judgment affirming the denial of the defendantís application for pretrial diversion is reversed, and this matter is remanded to the trial court for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TSC/2007/mckims_012907.pdf


GLENDA J. WHITE v. FORT SANDERS-PARK WEST MEDICAL CENTER

Court: TCA

Attorneys:

David H. Dunaway, LaFollette, Tennessee, for appellant.

Jay W. Mader, Knoxville, Tennessee, for appellee.

Judge: FRANKS

Plaintiff sued her former employer on grounds of breach of contract, retaliatory discharge, and violation of the Tennessee Human Rights Act, as well as the Tennessee Public Protection Act. The Trial Court granted defendant summary judgment. Plaintiff appealed and we affirm the Trial Court.

http://www.tba2.org/tba_files/TCA/2007/whiteg_012907.pdf


BETH FREEMAN, individually and on behalf of all others similarly situated, v. BLUE RIDGE PAPER PRODUCTS, INC.

This is a corrected opinion.


Court: TCA

Attorneys:

W. Kyle Carpenter and Robert L. Vance, Knoxville, Tennessee, for appellant.

Gordon Ball and Thomas S. Scott, Jr., Knoxville, Tennessee, for appellee.

Judge: FRANKS

In this class action, the jury returned a verdict for plaintiffís class which the Trial Judge

http://www.tba2.org/tba_files/TCA/2007/freemanbCORR_012907.pdf


STATE OF TENNESSEE v. LATISHA JONES

Court: TCCA

Attorneys:

James E. Thomas, Memphis, Tennessee, (on appeal); and Reba Robinson, Memphis, Tennessee, (at trial), for the appellant, Latisha Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; William L. Gibbons, District Attorney General; James Wax, Assistant District Attorney General; and Teresa McCusker, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

especially aggravated robbery, both Class A felonies. Defendant was sentenced to life imprisonment for her felony murder conviction. Following a sentencing hearing, the trial court sentenced Defendant as a Range I, standard offender, to twenty-three years for her especially aggravated robbery conviction and ordered her robbery sentence to be served consecutively to her sentence for felony murder. Defendant does not challenge the length or manner of service of her sentence. In her appeal, Defendant argues that (1) the evidence is insufficient to support her convictions; (2) the trial court erred in not suppressing her statement to the investigating officers; (3) the trial court erred in its instructions to the jury on facilitation; (4) the trial court erred in failing to instruct the jury on the lesser included offense of attempted especially aggravated robbery; and (5) Tennessee pattern instruction, criminal 43.04 is unconstitutional. After a thorough review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/jonesl_012907.pdf


RANDY L. MAY v. HOWARD W. CARLTON, WARDEN

Court: TCCA

Attorneys:

Randy L. May, Mountain City, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter and Leslie E. Price, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Randy L. May, appeals the summary dismissal of his petition for habeas corpus relief. He argues that the original judgments erroneously rendered him infamous; therefore, the judgments were void. After careful review, we conclude that a judgment that erroneously pronounces the petitioner infamous is not a colorable claim entitling him to habeas corpus relief. We affirm the trial courtís dismissal of the petition and denial of relief.

http://www.tba2.org/tba_files/TCCA/2007/mayrl_012907.pdf


STATE OF TENNESSEE v. SHERRY DENISE STEWART

Court: TCCA

Attorneys:

Thomas J. Seeley, III, Bristol, Tennessee; Stephen M. Wallace, District Public Defender; and Terry L. Jordan, Assistant Public Defender, for the appellant, Sherry Denise Stewart.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Joseph E. Perrin, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Sherry Denise Stewart, pled guilty to violating her probation and now appeals the trial courtís order requiring her to serve the balance of her original, effective ten-year sentence. We affirm the judgments of the trial court in accordance with Rule 20 of the Rules of the Court of Criminal Appeals of Tennessee.

http://www.tba2.org/tba_files/TCCA/2007/stewartsd_012907.pdf


STATE OF TENNESSEE v. JAMES GENO TEMPLEMAN

Court: TCCA

Attorneys:

Edward Cantrell Miller, District Public Defender, and Amber D. Haas, Assistant Public Defender, for the appellant, James Geno Templeman.

Robert E. Cooper. Jr., Attorney General and Reporter; David E. Coenen, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; and John D. Sellers, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, James Geno Templeman, appeals the sentence of the Circuit Court for Sevier County in which his driverís license was suspended for a period of two years as a result of his conviction for violating the implied consent law. It is undisputed that the defendant had a prior driving under the influence (D.U.I.) conviction which was used by the trial court in sentencing the defendant. On appeal, the defendant urges this court to impose the ten-year limitation contained in the D.U.I. statute to the implied consent statute to bar the use of any prior D.U.I. conviction more than ten years old. The State argues that the plain language of the statute contains no such limitation on the use of prior D.U.I. offenses, and we agree. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/templemanj_012907.pdf


Families First Act Status

TN Attorney General Opinions

Date: 2007-01-25

Opinion Number: 07-09

http://www.tba2.org/tba_files/AG/2007/ag_07-09.pdf

Superiority of a Properly Perfected Lien of the Department of Human Services ("DHS") for Overdue Child Support under Tenn. Code Ann. Section 36-5-901(a)(1) with respect to Attorney's Fees

TN Attorney General Opinions

Date: 2007-01-26

Opinion Number: 07-10

http://www.tba2.org/tba_files/AG/2007/ag_07-10.pdf

TODAY'S NEWS

Legal News
Passages
BPR Actions
Politics
Upcoming
Correction

Legal News
Court: Denial of diversion for pastor was wrong
The Tennessee Supreme Court today said state prosecutors and a judge were wrong to deny diversion for a Bartlett youth pastor whose sleeping 7-month-old daughter, Mia, died in August 2004 after he inadvertently left her in the back seat of his car. The court ruled that prosecutors abused their discretion in denying diversion and ordered the trial court to reverse the prosecution's denial of diversion.
Read more in the Commercial Appeal
Read the Supreme Court's decision
Knox Sheriff talks of a conspiracy
Knox County Sheriff Tim Hutchison has only three days before he must leave office -- one of 12 county officeholders being forced out of office because of a recent state Supreme Court decision that upheld voter-approved term limits. In a television interview over the weekend, Hutchison blamed the situation on a "conspiracy by some lawyers" to destroy his administration through the court system.
The News Sentinel has the story
New form for civil subpoena
The civil subpoena form used in federal district courts has been updated to reflect the 'electronic discovery' amendments to the Federal Rules of Civil Procedure that took effect on Dec. 1, 2006.
You can download the revised form here
Death penalty unfair,
Starr says
The death penalty is a fundamentally flawed system under which two people can commit identical crimes but only one is sentenced to die, depending on, among other factors, the county where the case is tried, former Solicitor General Kenneth Starr said Friday.
Read more in the Tennessean
Judge: Katrina insurance deal needs work
Thousands of Mississippi policyholders whose homes were destroyed or damaged by Hurricane Katrina must wait a bit longer before reaping their share of a proposed settlement with State Farm Fire & Casualty Co., a judge ruled. U.S. District Judge L.T. Senter Jr. of Mississippi on Friday refused to endorse part of a proposal for the insurance company to pay at least $50 million to policyholders whose claims were denied but did not sue the company.
The Daily News Journal carried the story
Tracy named chair of Board of Professional Responsibility
Chattanooga attorney Ferber Tracy has been appointed by the Supreme Court of Tennessee as chairman of the Board of Professional Responsibility for 2007. Tracy has served as a member of the BPR since 2002. He practices with the law firm of Spears, Moore, Rebman & Williams, where he has practiced since 1967 following his graduation from Duke University Law School.
The Chattanoogan.com has more
Memphis law school looking to bolster minority enrollment
Memphis school administrators say they fear decreasing black enrollment because of the recent end to the 1968 Geier lawsuit. The suit was officially ended in September by Gov. Bredesen, who said the goal of diversity had been met. But Univeristy of Memphis counsel Sheri Lipman said that could have a negative effect on black enrollment. Minority students make up 18 percent of the law school, including about 10 percent who are black.
WMC-TV carried this AP story
Passages
Richard Taylor Sr. dies,
mass set for Tuesday
Richard D. Taylor Sr. died Jan. 26 at the age of 75. He retired two years ago from the practice of law in the firm of Taylor, Pigue and Marchetti. Visitation is today from 3 to 8 p.m. in the Fleming Center at the Cathedral of the Incarnation, 2001 West End Ave., Nashville. Funeral mass is 10 a.m. Jan. 30 at the Cathedral of the Incarnation. In lieu of flowers, contributions may be made to Cumberland Heights or the charity of choice.
Read his obituary in the Tennessean
George Linebaugh dies, memorial tonight
George Phillips Linebaugh Jr. died Jan. 25 in Knoxville, from complications of Parkinson's disease. He had practiced law for more than 40 years, often serving as substitute General Sessions judge. His family will receive friends at Brentwood United Methodist Church, Brentwood, this evening from 6-8 p.m., followed by a memorial service in the sanctuary. Interment with Military Honors will be Tuesday at 11 a.m. in Mount Olivet Cemetery in Nashville.
Read his obituary in the Tennessean
BPR Actions
Memphis attorney censured
Memphis attorney Melvin J. Werner was censured by the Board of Professional Responsibility on Jan. 24 for nonpayment of a fee associated with a court filing, which was followed by his neglect to respond to the Court of Criminal Appeals in the matter. He has since paid the fee.
Read the BPR's release
Politics
West Tennessee: not power central anymore
After nearly four decades of political domination, West Tennessee's grip on power in the state capital has slipped in the last four years, political analysts say.
Read why in the Commercial Appel
Upcoming
Supreme Court PBS series examines high court
An upcoming PBS television series, "The Supreme Court," which will examine America's highest court, is scheduled to air on public television stations in two parts on Jan. 31 and Feb. 7 from 8 to 10 p.m. Central time. Baker, Donelson, Bearman, Caldwell & Berkowitz PC is a sponsor of the series.
For details, go to the Baker Donelson web site
Correction
An article in the Lebanon Democrat concerning actions of the Wilson County Commission contained an error that was repeated in Friday's TBA Today. The commission approved a resolution asking the General Assembly to establish a third General Sessions Court in the county, not a Circuit Court as was reported.


 
 
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