Names sent to governor for Hagler position

The Judicial Selection Commission met in Cleveland this morning and sent three names to Gov. Phil Bredesen for his consideration. They are: Ginger Wilson Buchanan of Cleveland; John William Cleveland Sr. of Sweetwater; and Jerry Hoffer of Cleveland. The successful nominee will fill the 10th Judicial District Circuit Court vacancy created by the Dec. 31 resignation of Judge John Hagler. The Administrative Office of the Courts today reported the commission's actions.
TODAY'S OPINIONS
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You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) 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. 2) 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.

FREE THE FATHERS, INC. v. STATE OF TENNESSEE, DEPARTMENT OF STATE, CHARITABLE SOLICITATIONS DIVISION

Court: TCA

Attorneys:

D. Marty Lasley, Chattanooga, Tennessee, for the appellant, Free the Fathers, Inc.

Robert E. Cooper, Jr., Attorney General and Reporter, and Joe Shirley, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: CLEMENT

This appeal arises from an enforcement action against a not-for-profit charitable corporation to compel the corporation's compliance with the registration provisions of the Solicitation of Charitable Funds Act, Tenn. Code Ann. section 48-101-501, et. seq. The corporation contended that it was a religious institution and thus exempt from the Act; however, it failed to submit an application for exempt status after numerous requests from the Charitable Solicitations Division of the Tennessee Department of State to do so. The Secretary of State issued an administrative decision enjoining the corporation from soliciting charitable funds and imposing a $40,000 civil penalty against the organization. The corporation filed a petition for judicial review in the Chancery Court of Davidson County challenging the constitutionality of the Act. The Chancellor found the constitutional challenges to be without merit and affirmed the decision of the Secretary of State. Finding no merit to the issues raised, we affirm.

http://www.tba2.org/tba_files/TCA/2008/freefathers_020808.pdf


STATE OF TENNESSEE v. QUINTIN O'NEAL DUKES

Court: TCCA

Attorneys:

Roger E. Nell and Collier W. Goodlett, Jr., Clarksville, Tennessee, for the Defendant, Quintin O'Neal Dukes.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Cameron L. Hyder, Assistant Attorney General; John W. Carney, District Attorney General; John Finklea, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Quintin O'Neal Dukes, pled guilty to aggravated burglary, and the trial court sentenced him to five years to be served on probation. Subsequently, the trial court issued a warrant alleging that the Defendant violated his probation, and, after a hearing, it revoked the Defendant's probation. On appeal, the Defendant claims the trial court abused its discretion by revoking his probation because the rules of probation were unlawfully imposed and there was not sufficient evidence that he violated his probation. Finding no error, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2008/dukesq_020808.pdf


STATE OF TENNESSEE v. BRENDA GALLARDO

Court: TCCA

Attorneys:

Andrew Jackson Dearing, III, Assistant Public Defender, Shelbyville, Tennessee, for the appellant, Brenda Gallardo.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; Mike McCown, District Attorney General, and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant was convicted in the Bedford County Criminal Court upon her pleas of guilty to two counts of filing a false police report. She was sentenced to concurrent terms of three years' incarceration in the Tennessee Department of Correction as a standard offender. On appeal, Appellant maintains she should have received a sentence other than total incarceration. Because it appears from the record that Appellant has an extensive criminal record involving misdemeanors, past efforts at alternative sentencing have been unsuccessful, and the record supports the trial court's determination that Appellant's potential for rehabilitation is low, the judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2008/gallardob_020808.pdf


STATE OF TENNESSEE v. WILLIAM KEITH GILLUM

Court: TCCA

Attorneys:

Glenn R. Funk, Nashville, Tennessee, for the appellant, William Keith Gillum.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and Pamela Sue Anderson, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, William Keith Gillum, was charged in count one of the indictment with first degree premeditated murder, and in count two with aggravated assault. Defendant entered a best interest plea of guilty in count one to the lesser included offense of voluntary manslaughter, a Class C felony, and the State dismissed count two of the indictment. Following a sentencing hearing, the trial court sentenced Defendant to seven years. The trial court ordered Defendant to serve three months in the county workhouse, with Defendant placed on probation for the balance of his sentence. On appeal, Defendant challenges the length of his sentence, arguing that the trial court erred in the weight assigned to the one enhancement factor and the three mitigating factors. After a thorough review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/gillumw_020808.pdf


STATE OF TENNESSEE v. THOMAS MATTHEW GOSS

Court: TCCA

Attorneys:

Andrew Jackson Dearing, III (at trial and on appeal) and Dorothy Buck (at trial), Shelbyville, Tennessee, for the Appellant, Thomas Matthew Goss.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Renee W. Turner, Assistant Attorney General; Chuck Crawford, District Attorney General; Hollyann L. Hewgley and Ann L. Filer, Assistant District Attorney Generals, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Moore County jury found the Defendant, Thomas Matthew Goss, guilty of rape and aggravated burglary. The trial court sentenced him to an effective sentence of twelve years. On appeal, the Defendant raises two issues: (1) the State presented insufficient evidence to support the convictions; and (2) the trial court improperly sentenced him. Finding no error, we affirm the trial court's judgments.

http://www.tba2.org/tba_files/TCCA/2008/gosst_020808.pdf


STATE OF TENNESSEE v. TRISTON LEE HARRIS
With Dissenting Opinion


Court: TCCA

Attorneys:

J. Daniel Freemon, Lawrenceburg, Tennessee, for the appellant, Triston Lee Harris.

Robert E. Cooper, Jr., Attorney General & Reporter; Lacy Wilber, Assistant Attorney General; and T. Michel Bottoms, District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Triston Lee Harris, appeals a certified question of law following his Lawrence County Circuit Court June 12, 2006 conviction of possession of cocaine with intent to sell, for which he received a six-year Department of Correction sentence. The defendant challenges the circuit court's denial of his motion to suppress. We hold that although the defendant's vehicle was subject to a search following a proper canine sweep, the contraband which was found on the defendant's person should have been suppressed, and we reverse the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/harrist_020808.pdf

TIPTON dissenting
http://www.tba2.org/tba_files/TCCA/2008/harrist_DIS_020808.pdf


ROCKY J. HOLMES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Susan E. McCown, Fayetteville, Tennessee, for the appellant, Rocky J. Holmes.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Charles F. Crawford, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The petitioner, Rocky J. Holmes, appeals from the Marshall County Circuit Court's denial of his petition for post-conviction relief from various felony convictions and an effective eighteen-year sentence. The petitioner claims on appeal that he was entitled to relief based upon (1) ineffective assistance of counsel and (2) an unknowing and involuntary guilty plea. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/holmesr_020808.pdf


STATE OF TENNESSEE v. ADRAIN CHEIZ LEWIS

Court: TCCA

Attorneys:

Jeffrey A. DeVasher (on appeal) and J. Michael Engle (at trial), Assistant Public Defenders, Nashville, Tennessee, for the appellant, Adrain Cheiz Lewis.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Rob McGuire, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Adrain Cheiz Lewis, was convicted of one count of evading arrest and three counts of misdemeanor reckless endangerment. He was ordered to serve a total effective sentence of eight years, eleven months, and twenty-nine days in confinement. On appeal, the defendant argues that the trial court erred in imposing the maximum sentence of eight years for his evading arrest conviction contrary to the principles of sentencing as reflected in Tennessee's sentencing statutes. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/lewisa_020808.pdf


PAUL GRAHAM MANNING v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Paul Graham Manning, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; William E. Gibson, District Attorney General; and Ben Fann, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Paul Graham Manning, appeals from the judgment of the trial court dismissing his petition for writ of error coram nobis. The trial court dismissed the petition because it was not timely filed and because the petition did not allege newly discovered evidence or make allegations which had not been previously raised or litigated. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/manningp_020808.pdf


STATE OF TENNESSEE v. MARCUS RICHARDS

Court: TCCA

Attorneys:

Venus Niner, Franklin, Tennessee, for the Appellant, Marcus Richards.

Robert E. Cooper, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Sean B. Duddy, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WOODALL

Defendant pled guilty to misdemeanor possession of cocaine. Prior to his plea, Defendant filed and the trial court heard a suppression motion. The trial court, after the hearing and submission of briefs by the parties, denied the motion. Defendant properly preserved a certified question of law. After a thorough review of the record, we reverse the judgment of the trial court and dismiss the charge against Defendant.

http://www.tba2.org/tba_files/TCCA/2008/richardsm_020808.pdf


STATE OF TENNESSEE v. MICHAEL ANTHONY SALES

Court: TCCA

Attorneys:

Christopher P. Westmoreland, Shelbyville, Tennessee, for the appellant, Michael Anthony Sales.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; and Michael Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Michael Anthony Sales, pleaded guilty to two counts of violating an habitual traffic offender order and was sentenced to consecutive terms of five years and six months in the Department of Correction for each offense. On appeal, the petitioner argues that the sentence he received is excessive and contrary to law. We affirm the sentence of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/salesm_020808.pdf


DAVID WAYNE SMART v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

David M. Hopkins (on appeal) and Michael Colavecchio (at post-conviction hearing), Nashville, Tennessee, for the Appellant, David Wayne Smart.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; J. Ross Dyer, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Lisa Naylor, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Petitioner, David Wayne Smart, was convicted in 2001 of first degree premeditated murder and sentenced to life in prison. We affirmed that judgment on direct appeal, and the Tennessee Supreme Court denied permission to appeal. The Petitioner subsequently filed a petition for post-conviction relief alleging he was denied the effective assistance of counsel. The post-conviction court denied the petition after a hearing. Upon a thorough review of the applicable record and law, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2008/smartd_020808.pdf


CHARLES G. SUMMERS v. JAMES FORTNER, WARDEN

Court: TCCA

Attorneys:

Charles G. Summers, Only, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Rachel E. Willis, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Charles G. Summers, appeals the summary dismissal of his petition for writ of habeas corpus. He contends that his sentence is illegal and that his judgment is, therefore, void. The petitioner has established that his sentence for escape was imposed in direct contravention of a statute, and is, therefore, illegal and void. Because the petitioner has made a threshold showing that he is entitled to habeas corpus relief, the judgment of the habeas corpus court is reversed, and the case is remanded for the appointment of counsel and an evidentiary hearing to determine the scope of the remedy available to the petitioner.

http://www.tba2.org/tba_files/TCCA/2008/summersc_020808.pdf


STATE OF TENNESSEE v. BUDDY MCDONALD THOMAS

Court: TCCA

Attorneys:

David Neal Brady, District Public Defender, and H. Marshall Judd, Assistant Public Defender, for the appellant, Buddy McDonald Thomas.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William Edward Gibson, District Attorney General; and Beth Elana Willis, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Buddy McDonald Thomas, was found guilty by a Putnam County Criminal Court jury of facilitation of theft of property valued at $60,000 or more, a Class C felony. See T.C.A. sections 39-11-403(a) (facilitation); 39-14-103 (theft of property). The trial court imposed a four-year, Range I sentence, to be served on ten years of probation. In this appeal, the defendant challenges the sufficiency of the convicting evidence and the propriety of a jury instruction on the permissive inference relative to possession of recently stolen property. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/thomasb_020808.pdf


LARRY LAMONT THOMPSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

K. Robert Barlowe, Nashville, Tennessee, for the appellant, Larry Lamont Thompson.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Roger D. Moore, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The petitioner, Larry Lamont Thompson, appeals from the Davidson County Criminal Court's denial of his petition for post-conviction relief from his assault conviction. He claims on appeal that he was deprived of his right to a trial de novo in Criminal Court in the underlying proceedings, that his counsel provided ineffective assistance, and that he did not enter a knowing and voluntary guilty plea to the conviction offense. We hold that the trial court erred in denying relief and reverse its judgment and remand for further proceedings.

http://www.tba2.org/tba_files/TCCA/2008/thompsonl_020808.pdf


Civil Penalties for Personal Use of Campaign Funds

TN Attorney General Opinions

Date: 2008-02-08

Opinion Number: 08-21

http://www.tba2.org/tba_files/AG/2008/ag_08_21.pdf

Responses Related to Substance Abuse and Mental Illness on Hand Gun Carry Permit Application

TN Attorney General Opinions

Date: 2008-02-08

Opinion Number: 08-22

http://www.tba2.org/tba_files/AG/2008/ag_08_22.pdf

TODAY'S NEWS

Legal News
TBA Member Services

Legal News
AG opinion could uphold Cooper fine
An opinion issued by the state attorney general today may mean that former Sen. Jerry Cooper is on the hook for the $120,000 fine imposed on him in December by the Registry of Election Finance. The agency based the record fine on the presumption that each violation of the law carried a separate fine, but agreed to ask for an official opinion on that issue. In today's opinion, Attorney General Bob Cooper stated that each violation could be considered a separate offense with its own fine, thus upholding the agency's decision. Read the AP story
Download the opinion
Federal officials differ on waterboarding view
The director of the CIA yesterday raised doubts about whether the practice of "waterboarding" is currently legal, and the attorney general refused to investigate U.S. interrogators who have used the technique on terror detainees. Vice President Dick Cheney, meanwhile, said "it's a good thing" that top al-Qaida leaders who underwent the harsh interrogation tactic in 2002 and 2003 were forced to give up information that helped protect the country.
The News Sentinel carried the AP story
Sheriff to remain in jail
Former Sheriff Billy Long will remain behind bars at the Bradley County Jail awaiting action by a federal grand jury on charges of bribery, money laundering, providing a gun to a felon and drug trafficking. He appeared briefly before Magistrate Bill Carter on Friday afternoon and waived a detention hearing and preliminary hearing. His attorney, however, reserved the right to ask for a detention hearing at a later date.
Chattanoogan.com has the story
Clark named First Amendment chair at MTSU
Retired broadcast journalist Chris Clark has been named chairholder of MTSU's John Seigenthaler Chair of Excellence in First Amendment Studies. Clark said that Seigenthaler, "as editor and publisher of The Tennessean, and I, as news director of WTVF, have joined forces on numerous occasions to fight government efforts to circumvent the people's full and free access to information. On numerous occasions these efforts have taken us to court, and in almost all instances our efforts were successful in defending First Amendment access for our readers and viewers."
The Murfreesboro Post has the story
Justice complex to be named after Sheriff Kelley
The Fayette County Commission last week unanimously adopted a resolution to name their new criminal justice complex after former county sheriff Bill G. Kelley.
Find out more in the Fayette Press
Kentucky lawyer punched by client in court
A client who wanted to change public defenders punched his lawyer, giving him a cut on his cheek and a black eye earlier this week after the judge told him he wouldn't name a new lawyer. After the incident Peter Hafer said, "I just couldn't take it anymore, and I just snapped." The lawyer, Doug Crickmer, who spent the day at the hospital, responded with forgiveness. "I certainly don't fault him or blame him or wish him any ill will," he said Thursday on NBC's "Today" show. "I think Mr. Hafer was just frustrated [and] fed up ... and I was the nearest target."
See the interview on The Today Show
Is computer password covered by 5th Amendment?
A child pornography case alleging that the defendant stored illicit images on his laptop computer has raised what experts say is a novel 5th Amendment question. Federal agents want to use the images as evidence, but need a password to access the encryption-protected pictures. The question is whether the defendant can use the constitutional protection against self-incrimination to keep his password secret.
Learn more in this AP story carried by the Houston Chronicle
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Discounts from Office Depot
Are you saving yet? Sign up for the TBA-Office Depot Program and begin saving. TBA Members receive significant discounts on office supplies from Office Depot.
Find out more

 
 
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