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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


Court: TSC


Michael E. Moore, Acting Attorney General and Reporter, and Dianne Stamey Dycus, Deputy Attorney General, Nashville, Tennessee, for the appellant, Sue Ann Head, Director of the Tennessee Department of Labor Second Injury Fund

Roger L. Ridenour, Clinton, Tennessee, for the appellee, Bonnie Turner

T. Joseph Lynch, Knoxville, Tennessee, and Kelley Bertoux Creveling, Indianapolis, Indiana, for the appellee, HomeCrest Corporation


In this workers' compensation case we granted the motion for review filed by the employee, Bonnie Turner ("Turner"), in order to evaluate the correctness of the trial court's decision to award benefits to Turner against the Tennessee Department of Labor Second Injury Fund. The award was predicated upon the court's determination that Turner had sustained a 60 percent permanent partial disability due to a work-related bilateral carpal tunnel injury and a resulting condition of hypertension. The trial court's award in this case was made subsequent to that court's decision to award Turner permanent total disability benefits against her employer as a result of a prior injury. We hold that an employee who is permanently and totally disabled as provided for in Tennessee Code Annotated section 50-6-207(4)(A)(i) is barred from receiving additional vocational disability benefits unless the employee can establish rehabilitation from the injury which caused the permanent and total disability. This principle applies even though the employee temporarily returns to work following the first injury and suffers a subsequent work-related injury close in time. Therefore, we reverse the trial court's award against the Second Injury Fund.


Court: TCCA


B. F. "Jack" Lowery, Lebanon, Tennessee, for the appellant, James Michael Hanners

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Bill Whitesell, District Attorney General; and Jude Santana, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: SMITH

A Rutherford County Jury convicted Appellant, James Michael Hanners, of assault on September 19, 2002. The judgment form included the notation that "Assault-Bodily Injury" was the offense for which Appellant was convicted. On March 1, 2006, Appellant filed a Motion to Correct Judgment requesting that the notation be changed to read "Assault." The trial court denied the motion stating in its order that the jury was instructed on assault based upon T.C.A. section 39-13-101(a)(1), intentionally, knowingly or recklessly caus[ing] bodily injury to another..." Appellant appeals from the trial court's denial of the motion. We dismiss Appellant's appeal because there is no appeal as of right for denial of a motion to correct judgment under Rule 3 of the Tennessee Rules of Appellate Procedure, and we decline to grant a writ of certiorari because the trial court has not acted without legal authority.


Court: TCCA


Patrick G. Frogge (on appeal), Michael J. Flanagan and James P. McNamara (at trial), Nashville, Tennessee, for the appellant, Robert K. Holloway

Michael E. Moore, Acting Attorney General and Reporter; Blind Akrawi, Assistant Attorney General; Dan Mitchum Alsobrooks, District Attorney General; and Suzanne Lockert, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: MCLIN

The petitioner, Robert K. Holloway, appeals the denial of his petition for post-conviction relief. On appeal, the petitioner argues that his counsel rendered ineffective assistance because he: (1) failed to interview and call certain witnesses to testify; (2) failed to submit proof of the victim's propensity for violence; (3) failed to impeach certainwitnesses at trial; (4) failed to divulge a conflict of interest; (5) failed to introduce a letter written by the victim at trial; and (6) failed to challenge the petitioner's sentence at the sentencing hearing and on appeal. The petitioner further argues that the cumulative effect of all of counsel's errors requires reversal. After a thorough review of the record and the parties' briefs, the judgment of the post-conviction court denying post-conviction relief is affirmed.


Court: TCCA


John E. Herbison, Nashville, Tennessee (on appeal); and Rebecca E. Byrd, Mark Waters, and Ken Sanney, Franklin, Tennessee (at trial), for the appellant, Jennifer Siliski

Robert E. Cooper, Jr., Attorney General and Reporter; C. Daniel Lins, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Braden H. Boucek and Derek K. Smith, Assistant District Attorneys General, for the appellee, State of Tennessee

Judge: GLENN

The defendant, Jennifer Siliski, was convicted by a Williamson County Circuit Court jury of eleven counts of animal cruelty. The trial court merged the convictions involving the same animals, resulting in nine convictions, and sentenced the defendant to concurrent terms of eleven months, twenty-nine days at 75 percent for each conviction, all suspended except for ten days, with the remainder of the time to be served on supervised probation, followed by eight years of unsupervised probation. The court additionally ordered that the defendant complete fifty hours of community service within the first year of supervised probation, that she be permanently prohibited from engaging in any commercial activity involving animals, and that she be subject to regular inspections of her home during her period of unsupervised probation to ensure her compliance with the terms of her sentence. On appeal, the defendant argues that counts 1 through 28 of the presentment were multiplicitious; the animal cruelty statute is unconstitutionally vague as applied in her case; the presentment failed to adequately state the facts constituting the offenses for which she was convicted; the trial court erred in denying her motion to suppress the results of the search warrant; the trial court erred in admitting a veterinarian's report into evidence; she did not adequately waive her right to testify under Momon v. State, 18 S.W.3d 152 (Tenn. 1999); the trial court erred by ordering consecutive periods of probation; the trial court's permanent prohibition against her commercial activity involving animals is too harsh; and the trial court lacked jurisdiction to modify her sentence after the original date of sentencing. Following our review, we affirm the defendant's convictions but conclude that the trial court erred by ordering consecutive periods of probation in conjunction with concurrent sentences. Accordingly, we remand for resentencing.


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